author:
O’Brien, J.
      Van Brunt, P. J.

text:
    Patrick Lennon, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 20, 1892.)

    1; Aegligehce—Crossing railroad tracks—Charge.
    In an action for injuries received by an infant while crossing railroad tracks in a street, the court charged that it was his duty to take means of ascertaining whether a train was approaching, and if he did not that his father could not recover; that he had testified that he did take such means; that while on the walk he looked both ways and saw no train, and before reaching the track he listened and heard no bell; but refused to charge that it was his duty to look for a train before entering upon the track, and if by doing so he could have seen the train and stopped, and avoided the accident, and he omitted so to look, plaintiff conn .t recover Feld, that such refusal was not ground for reversal, as the court’s attention was not sufficiently called by the request to the distinction counsel sought to make between the charge as made and, that involved in the request, viz.: that he should use all his senses and not that of listening alone.
    3. Same.
    A refusal in such case to charge that if the boy looked and saw the train and started to cross ahead of it, plaintiff could not recover, whether the boy did so taking the risk of crossing in front of it, or omitted to be governed by the fact that he had seen it. is error, where the fact in one view of the evidence was one the jury might consider, and the charge as given did not cover the proposition.

      8. Same—Cbedibility of witness.
    Where there is evidence that the injured boy had previously made statements to defendant’s attorney at variance with his testimony, which the boy denied, it is error to refuse to charge that if the jury find that such statements were made as to material features of the accident and its circumstances, they must take that into consideration in determining what credit to give his testimony, and could disregard his testimony altogether.
    Appeal from judgment entered on verdict in favor of plaintiff, and from order denying motion for new trial.

      D. W. Tears, for app’lt; L. E. Chittenden, for resp’t.
   O’Brien, J.

This action was brought by plaintiff to recover damages for the loss of services of his infant son, by reason of personal injuries alleged to have been negligently inflicted by defendant at or near Forty-seventh street and Eleventh avenue, in^he city of New York, on May 15, 1886.

Plaintiff’s evidence tended to show that he resided on the westerly side of Eleventh avenue, between Forty-eighth and Forty-ninth streets; that the avenue, at this point and north and south of it, is 100 feet wide and straight, and defendant’s trains run in the centre on four rails at grade. It is paved like a city street; on both sides are tenement houses, and streets sixty feet wide cross it, upon some of which streets 'áre street railroad tracks, which cross the tracts of the defendant’s road at grade. The son, who resided with plaintiff, was eight years old at the time of the accident, healthy, and of ordinary intelligence, and for four years prior to the accident had crossed the avenue and defendant’s tracks three or four times daily going to and from school, and had seen a great many of defendant's trains going up" and down the avenue. The son testified that on the day mentioned, in going to call a doctor, he crossed Eleventh avenue, going down the westerly side to Forty-seventh street, across Forty-seventh street, and reached the curbstone, preparatory to crossing the avenue, at a point in front of a grocery store, fifteen feet southerly from Forty-seventh street crossing. “At the curbstone he tarried a moment, looked up and down the avenue, listened, saw and heard nothing, and then started to go across the tracks. He ran straight across for twenty-five feet, and had about cleared the second rail he came to when he was struck by one of defendant’s locomotives south bound, which was running down grade at a speed faster than a horse can trot, without ringing a bell or blowing a whistle.” Plaintiff also introduced evidence tending to show that on that day there was a light rain, and that at the time of the accident the atmosphere was foggy or hazy. As to the distance that the boy could see up the avenue, he testified that his vision was unobstructed for a distance northward of about fifty-five feet, which would be about opposite a junk shop, where there were standing about ten small two-wheeled wagons, such as are used by junk dealers.

On the part of the defendant the evidence tended to show that the injuries resulted from an attempt of the boy to board one of the cars of the defendant’s train while, in motion down the avenue, after having been warned against the attempt.

The plaintiff, in order to recover, was bound to show not only that his son’s injuries resulted from the negligence of the defendant, but also that the son himself was free from any negligence which contributed to the injuries. As to the first, the testimony adduced tending to show that, though running through a public thoroughfare at a reasonably high rate of speed, no bell was rung or whistle sounded, would be sufficient to justify the submission of this question to the jury.

Upon the other proposition, of establishing that his son was free from any negligence that contributed to his injuries, the testimony was far from satisfactory, and in view of the law as laid down in Tucker v. N. Y. Central & Hudson River R. R. Co., 124 N.Y., 809; 86 St. Rep., 272, a serious question was presented, whether it was not the duty of the court to dismiss the complaint for failure to sustain the burden with respect to this proposition which was planed Upon the plaintiff. In that case it was said: “ The law requires a traveler, before crossing a railroad track on a public highway, to look and listen for the approach of trains. If he omits, to do so and sustains injury while crossing, he cannot recover, because of such omission. That which it is his! duty to do he * * * must, In an action to recover for damages sustained,, prove was done, or at least must prove facts from which inference can reasonably be drawn that he performed" his duty in that respect. It will not be presumed that he looked. It must be-proven. The plaintiff attempted to meet these requirements by the evidence of a witness who testified that before the intestate crossed the track, in the doing of which he was struck by the locomotive and killed, he stopped in the centre of the switch track eleven feet from the north rail of the track upon which the locomotive was running, and shifted the bag which he was carrying from one shoulder to the other, resting it upon the bumper of a car-standing upon the track as be did so, and that at this time his face was turned in the direction of the approaching engine. He then passed on in a southerly direction for a distance of about fourteen feet, when he was struck. The witness further testified that, after changing the bag from one shoulder to the other, he did not again turn his bead to the left, as it would be necessary for him to do in order to see the approaching locomotive.

It is urged that inasmuch as it appears that his face was turned in the direction from whence the locomotive cornea jury should be permitted to find that he did look, and thus observed that measure of care and caution which the situation imposed. We are unable to agree with that contention. * * * But if the inference was permissible that he looked at the moment of changing the bag, it does not meet the requirements of the case. He had still six tracks to cross, and was then eleven feet from the south rail of the first track. To look then and not again, to go on from that point without observing the further precaution of watching for the approach of trains upon tracks almost constantly in use, was not a proper observance of that care which it was his duty to exercise (cases cited.)”

In that case, which is in many other respects analogous to this, the reason assigned for not seeing the approaching train was the. fact that it was wiudy and snowing, while here the reason assigned is a hazy and foggy atmosphere. The' evidence here tended to show that the boy, while on the sidewalk and' preparatory to crossing, looked up and down and listened for approaching trains. Though we have the width of the avenue given as one hundred feet, the distance from the curbstone to the most westerly track, which was the portion of the street traversed by the boy before reaching the first track, is not given, but we know from the circumstance that the defendant company had but two tracks of four rails, which were placed in the centre of the avenue, that this space was greater than eleven feet.

In the Tucker case, as we have seen, although there was evidence to show that when within eleven feet from the track the person injured looked, it was held that this was not a sufficient ■discharge of the obligation which requires a traveler on the highway, before crossing a track, to look and listen for the approach of trains. And, to repeat what is stated in that case respecting what was done by the person injured when but eleven ■feet from the track, “ to look then and not again * * *'' was not a proper observance of that care which it was his duty to exercise.”

It is unnecessary, however, for us, in view of other exceptions taken to rulings made, which we regard as good, to place our reversal upon this ground. But we have alluded to this feature of the case in order to emphasize one of the exceptions referred to which the defendant urges upon this appeal. The learned trial judge refused to charge the defendant’s seventh request: “ That it was the duty of the boy, William Lennon, to look in the direction from which a train was to be expected on the track before entering upon the track; and if by so looking he could have seen the train and stopped, and avoided the accident, and he omitted so to look, the plaintiff cannot recover.”

It is true that the court had charged that: It was the duty of William Lennon, when he was about to cross the track, to take means of ascertaining whether there was or was not a train approaching on that track, and if he neglected to take some means, the means that you would expect from and of a child of his age, and if he was injured by reason of his neglect to take such means, then his father cannot recover in this action. He says he did take such means. He says that, as he was standing on the walk, a short distance south of the southerly line of Forty-sixth street and Eleventh avenue, he looked north and south to see whether there was,any train approaching. He says that after he left the sidewalk, and before he reached the track, he listened, and heard no ringing of the bell.”

It will thus be seen that the defendant’s attorney, by exception to the charge, again raised the point presented by the seventh request, that looking and listening on the sidewalk, and thereafter neglecting to again do both while traversing the space between the sidewalk and the rail, was not a compliance with the duty resting' upon liim.

Were this the only refusal to charge requests to which the defendant was entitled, we should not disturb the verdict, because, had the court’s attention been more specifically directed to. the distinction which the defendant’s counsel sought to make between the broader proposition contained in his request, as to the necessity of using all his senses, as contrasted with the more limited exposition of the law given by the court in its charge, that the boy’s duty might be discharged by listening simply, it would, no doubt, have been corrected. The defendant, however, asked the court to charge that, “ if the boy, William Lennon, looked and saw the train and started to cross ahead of it, the plaintiff cannot recover, whether the boy, William-Lennon, started to cross, taking the risk of crossing in front of the train, or omitted to be governed by the fact that he had seen it.”

This was refused. As there was no passage in the charge-covering the proposition embraced in this request, and as in one view to be taken of the evidence it was one which the jury might, consider, the defendant was entitled to have them instructed upon this p&int, and the refusal so to instruct them, we think, was-error'.

In addition to this, it appears that during the trial evidence was offered to show that in material respects the testimony of the boy, given upon this trial, was different from his version upon the occasion of his visit some time prior thereto to the office of the defendant’s attorney, where it was taken by a stenographer and used upon the trial. The boy’s attention was called to the discrepancy thus appearing between his two statements relating and leading up to his injuries, and he was permitted to explain, which, in the main, resulted in his denial of the making of the first statement in the office of the defendant’s attorney. In his charge the court in no way referred to this circumstance, and the defendant thereupon requested: That if the jury believe that the boy William Lennon has heretofore made a statement in conflict with his testimony as to material features of the accident and its circumstances, they must take that into consideration in determining what .credit they will give to his testimony, and have the right to disregard his testimony altogether.” The court made answer: “I refuse to charge, except as I have charged.” As there was no reference or allusion in the charge in any way to the discrepancy thus appearing, and as the- request contained a correct statement of the effect which the jury should give to such discrepancies as bearing upon the credibility of the witness, there was no reasonable-ground for refusal, and, the defendant having the right thereto,, such refusal was error.

Besides these, many questions in respect to the. admissibility of evidence have been pressed upon our attention ; but, in view of what we regard as errors in the court’s presentation of the case to the jury, it is unnecessary to consider them, the latter, in our opinion, requiring that the judgment should be reversed and a new trial granted,, with costs to appellant to abide the event

Van Brunt, P. J.

(concurring)—I am of the opinion that the complaint should have been dismissed. Concur in reversal and new trial.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The People ex rel. The Commissioners of Public Charities and Correction, Resp’ts, v. George I. Glaze, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October, 20, 1892.)

    Criminal law—Appeal—Disorderly persons.
    An appeal from a conviction by a police magistrate in the city of New York lies directly to the court of general sessions.
    Appeal from a judgment of the court of general sessions, dismissing, on jurisdictional grounds, defendant’s appeal from a judgment of conviction as a disorderly person, in that defendant had neglected to provide for his wife according to his means.

      W. H. Arnoux, for app’lt; H. J. Appel, Jr., for resp’ts.
   Per Curiam.

It seems to us apparent by the amendments made to §§ 515 and 749 of the Code of Criminal Procedure (which is the latest expression of the legislature regulating, the practice in criminal cases and special proceedings of - a criminal nature), that it was the intention to give a right of appeal from the lower criminal courts directly to the court of sessions of the county. The learned judge below, in his criticism upon the language of § 749 of the Code of Criminal Procedure, that it does not refer to the court of general sessions of the city and county of Hew York, evidently overlooked § 88 of that Code, which defines the courts of sessions. That section is as follows: “ The courts of sessions are (1) the courts of sessions in counties other than Hew York; (2) the court of general sessions in the city and county of Hew York.” Therefore, when in § 749 the term “ the court of sessions of the county ” is used, it evidently refers to the court of sessions as defined in § 38, which includes the court of general sessions in the city and county of Hew York. It would, therefore, seem that it was the intention of the legislature in these proceedings to adopt a uniform practice, by clear and explicit terms, and the right to appeal from the conviction of a police magistrate to the court of general sessions in the county of Hew York seems to be expressly given. The section reads: “A judgment upon conviction rendered by a police court or police magistrate may be reviewed by the court of sessions of the county upon an appeal as prescribed by this title, and not 'otherwise;” language in respect to which there does not seem to be room for any other interpretation than that adopted. We are- of opinion, therefore, that the judgment appealed from should be reversed, and the record remitted to the court of general sessions for further action.

Van Brunt, P. J., O’Brien and Patterson, JJ., concur.


author: Herrick, J.

text:
    Daniel C. Hewitt, App’lt, v. Moses Newburger, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    1. Criminal law—Sufficiency of information.
    Informations lodged before committing magistrates are sufficient if they specify in plain terms the charge made, so stated that the person proceeded against knows exactly what is charged against him.
    3. Same—Responsibility op complainant.
    After an information is lodged the magistrate becomes the responsible-party; he is to determine from such information whether a warrant should issue, and he, not the person lodging the information, is responsible for its form.
    3. Same—Inferior courts—Form of-procedure—Construction.
    Proceedings before inferior courts are, so far as the mere forms of procedure therein are concerned; to be liberally construed.
    4. False imprisonment—Malice not an element of.
    In an action for damages for false imprisonment, evidence offered to-prove malice is properly rejected, malice not being an element of false imprisonment. ¡J

    Appeal from a judgment entered in this action in the Montgomery county clerk’s office on May 28, 1892, dismissing ¡the complaint and for $152.71 costs, after trial before Mr. Justice-Kellogg and a jury at the Montgomery county circuit.
    The action was brought to recover damages for an alleged false-imprisonment. The defendant denied the complaint and justified, setting up that the arrest was made pursuant to a complaint duly made by him to the recorder of the city of Amsterdam, who had jurisdiction, and a warrant lawfully issued thereon. U
    The following is a copy of the complaint made to the recorder upon which the warrant for the arrest was made:
    “Information.
    “State of New York,
    “ County of Montgomery, ss.:

      "City of Amsterdam,
    “ Moses Hewburger, of said county, being duly sworn, says, that on the 27th day of June, 1891, at the city of Amsterdam, in the said county, one Daniel Hewitt did threaten to commit the-crime of injuring property belonging to the City Mills, a- corporation in said city of Amsterdam, ihlthat he threatened to tear down a wall now being erected by said corporation, and being the property thereof, and the same is being built for the purpose of a-dam, and there is just reason to fear that the said Daniel 0. Hewitt, will tear down and demolish said wall, as he, the said Daniel 0. Hewitt, hath as above threatened to do.
    “Wherefore, this deponent prays that a warrant issue for the arrest of said accused, and that he be dealt with pursuant to the-provisions of the Code of Criminal Procedure.
    “Moses Hewbtjrg-er,
    “ Complainant.

    "“ Sworn to before me this 27th day of June, 1891.
    “G-eorge B. White,
    ... “ Recorder of the City of Amsterdam, N. K”
    The plaintiff was arrested and brought before the recorder by a police officer, upon a warrant issued.
    ' The plaintiff’s arrest was merely technical ■ and he was put to no particular inconvenience, and was at no time actually restrained or imprisoned. And the recorder finally discharged him upon the importunities of his counsel and threats that he would sue the recorder for false imprisonment.
    When, the proofs were closed, defendant’s counsel moved to dismiss the complaint on the grounds that the recorder had jurisdiction of the alleged offense, and, as recorder, determined that the complaint was sufficient; that defendant Hewitt had threatened to commit a criminal offense, and having jurisdiction to so determine, defendant in this action is not liable for false arrest, and upon the facts and the law he could not be held liable for false imprisonment.
    The court after careful argument and consideration granted th& motion, and dismissed the complaint.

      Edward P. White, for app’lt; Westbrook, Borst & Perkins, (Westbrook & Borst, of counsel), for resp’t.
   Herrick, J.

The Code of Criminal Procedure, like the original Code of Civil Procedure, was intended to simplify pleadings; and informations like complaints are sufficient, if in plain terms they specify the charge made, so stated that the person proceeded against knows exactly what is charged against him. Proceedings before inferior courts are, so far as the mere forms of procedure therein are concerned, to be liberally construed.

Informations lodged before committing magistrates, and warrants issued upon them, are not expected to be drawn with the same technical accuracy that an indictment should be.

“ The information is the allegation made to a magistrate that a. person has been guilty of some designated crime.” Code of Grim. Pro., § 145.

So far as I know no construction of this section has been given by the courts. It certainly cannot be expected that persons before they can safely go to a magistrate for relief must employ some one learned in all the niceties of pleading, and acquainted with the definitions of crimes, nor that they shall possess such knowledge themselves. Courts of minor criminal jurisdiction are courts where people are expected and invited to initiate prosecutions without counsel, and it is the policy of the law to encourage them in so doing; and the proceedings then should be so regulated that the unlettered and unlearned may enter freely, without fear that their ignorance of the forms of law and its terms may lead them into greater dangers or difficulties than, those from which they •seek protection or redress.

A plain statement of the acts of which they complain, without stating the evidence, it seems to me, is sufficient

The magistrate then becomes the responsible party, he is to determine from that statement or information whether a warrant should issue, and he, not the person lodging the information, is responsible for its form; the person lodging the information being liable in an action for malicious prosecution if he wilfully, corruptly or maliciously misleads the magistrate by any false statement in his information.

In this particular case the magistrate personally drew up the-information, after an oral examination or statement made to him by the. defendant. It states in simple and direct terms what the ■defendant complained of, so that both the magistrate and the defendant could understand the charge made, and, tested by the principles I have suggested, it seems to me sufficient. Von Latham v. Libby, 38 Barb., 389 ; Pratt v. Bogardus, 49 id., 89.

The warrant follows the information and fully apprises the defendant of the charge against him, and while, perhaps, it might be open to objection where a direct attack was made, as upon an application to discharge the person arrested upon it, yet when it is attacked collaterally, and bearing in mind that the same techni■cal accuracy is not to be insisted upon in process issuing from minor courts as in indictments, I think it should be held sufficient.

The evidence offered to prove malice was properly rejected; malice is not an element of false imprisonment. 7 American and English Encyclopedia! of Law, 664.

The judgment should be affirmed.

Mayham:, P. J., and Putnam, J., concur.


text:
    Mary E. Stephens, App’lt, v. The Hudson Valley Knitting Company, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    Uegligence—Damages.
    In an action to recover damages for personal injuries to plaintiff, while in the employ of the defendant, a manufacturing corporation, and caused by the latter’s negligence, it appeared that the injury caused a severe spinal difficulty, wholly incapacitating plaintiff for work for months, and her physician testified that she would never be able to do anything but light work. The. jury rendered a verdict for plaintiff of $5,500, and the court ordered it set aside as excessive, unless plaintiff consented to reduce it to $2,000. Held, that the verdict was not so large as to warrant an inference .that the jury was actuated by improper motives, and it was error to set it aside.
    Appeal from an order of special term setting aside as excessive a verdict for plaintiff, and granting a new trial.
    The action was brought to recover damages alleged to have been sustained by plaintiff through the falling upon her of a pile of cloth, caused by defendant’s negligence. The verdict was for $5,500, and it was ordered set aside, and a new trial granted, unless the plaintiff stipulated to reduce it to $2,000. The injury resulted in a severe spinal difficulty, which caused her great pain in the head, and incapacitated her for work.
    Dr. Peckham, her family physician, testified as to her condition substantially as follows:
    He visited her very frequently; he found a laceration on one of the lips, and one tooth broken; he examined her back the day after the injury, and found a contusion of the tissues across the small 'of the back, and evidently a wrench or twist of the spinal ■column; he treated her with electricity and cupping; he made 115 visits; he examined her just before the trial; he found that ;she was suffering from chronic inflammation -about the vertebrae; that there was inflammation of tlje ligament, and he thought the cartilage between the vertebrae was involved.
    Early in her illness she was paralyzed; later there was paresis; paresis is the loss of the control of the muscles; it differs from paralysis in that the nerves of sensation in paralysis are also involved ; in the plaintiff’s case only the motor nerves are affected; for the first few months there was ansesthesis across the small of the back, at which point she was paralyzed; at the time of the trial she was not able to stand upon her feet.
    When asked as to the probabilities of her recovery, he answered : “ The condition is very much improved now from what it was the first few months; even now under the most favorable circumstances the strength of the back will be lost.
    “ Q. What are the probabilities as to her ever being able to get up and walk ? A. I think if she should recover to that degree she could only walk with difficulty and with pain; she maj be able to do light work, but never anything that requires any great exertion.”

      Smith & Wellington ( G. B. Wellington, of counsel), for app’lt; William Shaw, (Matthew Hale, of counsel), for resp’t.
   Herrick, J.

In actions for damages for torts it is the well established law of this state that verdicts of juries will not be set. aside for excessiveness, unless the amount is so great as manifestly to show that the jury must have been actuated by passion, partiality, prejudice or corruption. Coleman v. Southwick, 9 Johns., 45; Gale v. N. Y. C. & H. R. R. R. Co., 13 Hun, 1; Minick v. City of Troy, 19 id., 253; Gale v. N. Y. C. & H. R. R. R., 53 How., 395; Whiteman v. Leslie,, 54 id., 495; Collins v. A. & S. R. R. Co., 12 Barb., 492.

While the court may in such cases have the power to reduce the amount of the verdict, and if the prevailing party refuses to accept such reduction, order that the verdict be wholly set aside, yet if it has such power its exercise should be governed by the same principles which control the court in setting aside the verdict as an entirety. I can see nothing in.this case that warrants the inference that the jury was actuated by any improper motives.

This is not a case where there are several causes of action, or where there are separate and distinct items, some of which the court can strike out for error of fact or law, and thus reduce the verdict. Porter v. Dunn, 131 N. Y., 314; 43 St. Rep., 193; Whitehead v. Kennedy, 69 N. Y., 462. The case is one of that kind where, if the plaintiff is entitled to recover at all, it is peculiarly the province of the jury to say how much she is entitled to recover; the question of damages in such cases is one which it is. the special duty of the jury to determine, and while the court may reduce a verdict, it seems to me that ordinarily, if the court thinks the verdict is so large as to indicate that the jury was actuated by improper motives, it is better to set the verdict entirely aside and have another jury pass upon it rather than determine itself what the verdict shoukkbe, and thus assume and exercise the functions of a jury, and I find nothing in this case that makes it an exception to what should be the rule in such cases. •

The order appealed from should be reversed, with costs and printing and other disbursements.

Mayham, P. J., and Putnam, J., concur.


text:
    In the Matter of the Application of John W. Flynn and Charles Travis, to open the Decree made on the Final Settlement of the Accounts of Charles Leach, as Guardian of Lettie Leach Brown.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    «Guardian and ward—Final accounting—Error in interest account— Opening decree.
    Where, in a final accounting by a guardian, he charges himself with interest on moneys before received, and upon a larger amount than he received, and upon the full amount from its receipt until the accounting, when in fact the greater portion was paid out shortly aft.r its receipt, thus making a balance due his ward, for which she sued his bondsman, Held, that the error in the interest account was sufficient to justify the surrogate in opening the decree granted on such accounting.
    Appeal by Lettie Leach Brown from the order of the surrogate of Saratoga county, setting aside and vacating his former decree, settling the accounts of Charles Leach, as the guardian of Let-tie Leach Brown, and the accounting upon which said decree was granted, on the ground of fraud in said, accounting on the part of •said guardian and ward.
    The application to open the decree was made by the purchasers at partition sale of land formerly belonging to one of the bondsmen of the guardian, and against whom proceedings had been commenced for a sale of said real estate to pay the amount found due by the decree.
    Various grounds for opening the decree were submitted, among them that the guardian in his account charged himself with interest to the date of the account, although the moneys had long since been paid out; that he transferred all his property, and became impecunious, and that such accounting was collusive and fraudulent.

      C. H. Sturges ( Winsor B. French, of counsel), for app’lt; Edgar T. Brackett, for resp’t.
   Herrick, J.

I think the order of the surrogate opening the -decree should be sustained.

For the purposes of this appeal it is not necessary to discuss all the items of the guardian’s account, or to settle what should or should not be allowed upon his accounting; a brief Reference to one or two considerations will suffice to show that there was something radically wrong in the first accounting.

It appears from the case before us that the guardian received or was chargeable with $3,174; that of the amount received by him, $1,600 was received September 22, 1877, $519 April 1, 1878, and’ $760.57 April 9, 1879, and that in 1882 he received $320 for wood sold and for a right of way. It will be noticed that these sums slightly exceed the total sum, $3,174, with which he has been charged.

In making up his interest account he is charged interest upon $2,119, from July 23, 1877............ $1,609 25

Upon $735, from April 5, 1879............"....... 491 20

Upon $320, from January 1, 1882 ................ 153 60

Total.................................... $2,254 05

The first item, it will be observed, commences before he received the money, and' upon a larger aihount than he received that year. . Dow, while he is charged for interest upon the full amount that came into his hands from the time, or before the time, of its receipt down to the time of his accounting,° it appears from the case that, as a matter of fact, the greater portion of the money received by him was paid out shortly after he received it upon a mortgage on his ward’s farm, as follows:

October 1, 1877. $1,500 00

April 1,'1879.. . 105 00

May 5, 1879.... 9Ó0 00

April 1, 1880... 75 00

April 11, 1880.. 139 60

June 29, 1880 180 00

August 21, 1881 300 00

Either he should not be charged with the interest after he had paid the money on the mortgage, or else he' should on the other hand be credited with interest upon the amounts he paid on the-mortgage from the time he made the respective 'payments.

It may be that the guardian, being a tenant "by the curtesy of the' real estate upon which the mortgage was a lien, was legally liable to pay a portion df the mortgage personally, but how much his share would 'be, if any, it is not necessary to determine; in any event, the ward would have to pay a portion, if not all of the mortgage, and in the"event of her father’s inability to pay his proportion, it would be her guardian’s duty, where the property was worth more than the mortgage, to save the property to her by paying the mortgage out of moneys in his hands belonging to her. The mortgage was due; the tenant by the curtesy impecunious. The guardian received $1,600 September 22, 1877: October 1, 1877, he paid $1,500 upon the mortgage, yet he is charged interest upon the full amount received by him down to the time of settling his account, but receives no credit for interest upon the amount paid by him on the mortgage. „

” Without considering any of the.other questions, I think the error in the interest account alone was so serious as to justify the surrogate in opening the decree.

Let the order of the surrogate be affirmed, with costs.

Mayham, P. J., and Putnam, J., concur.


author: Herrick, J. Putnam, J.

text:
    The People ex rel. The Davis Colby Ore Roaster Company v. Frank Campbell, Comptroller.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    1. Gpkpokations—Taxation undeb chap. 543. laws op 1880.
    To justify the taxation of a domestic corporation under chap. 543, Laws of 1880, and the acts amendatory thereof, there must be some property belonging to it, or some business done by 'it, within the state, and the tax must be proportionate thereto.

      2. Same—Money in bank—Basis for tax.
    Where the only property within the state, of a domestic corporation doing its business without the state, was a small sum on deposit in a bank, Held, that the amount in the bank was the proper basis for the tax.
    Certiorari to review the determination of the state comptroller in declining to set aside a tax assessed upon the relator, a domestic corporation.

      R. Burnham Moffat, for relator ; Simon W. Rosendale, att’y-gen’l, for def’t.
   Herrick, J.

The relator is a corporation duly incorporated under the laws of the state of New York for the year 1848, chapter 40; its certificate of incorporation stated that its principal place of business was to remain in the city and county of New York, and that the operations of the company were to be carried on in the city and county of New York, and in such other places within and without the state of New York as the best interests of the company might thereafter determine.

It was thus a domestic corporation, and was liable to pay a tax upon its franchise and business, to be measured by the amount of its capital stock found to be employed in this state. People v. Wemple, 129 N. Y., 558-62; 42 St. Rep., 400. During the year 1891 it moved its office for the transaction of business to the state of Pennsylvania. It made no sales within the state of New York during that year, it manufactured nothing within the state, it occupied no premises, paid no rent, employed no men within the state during the year. It did do business outside of the state of New York during that time; it manufactured ore roasters, kept a bank account, and employed servants and paid them, outside of the state; and business done outside of the state in that way constitutes no part of the capital stock employed within the state. People v. Wemple, 133 N. Y., 323, 328; 45 St. Rep., 234.

The same things, if done within the state by a corporation incorporated in some other state, would have constituted doing business within this state, and upon which such foreign corporation could have been taxed by this state. People v. Wemple, 131 N. Y., 64; 43 St. Rep., 963; People v. Horn Silver Mining Co., 105 N. Y., 76 ; 6 St. Rep., 495.

If, then, a portion of the capital stock was employed without the state of New York, certainly all of it could not have been employed within the state of New York, and yet the defendant has assessed the relator upon the full amount of its capital stock; this I think was error.

A portion of the capital stock being employed elsewhere it could not be taxed as employed within this state.

It seems to me that in determining the amount of capital stock employed in this state the same principle applies to a domestic as to a foreign corporation. If a corporation has no property and no business within the state, then there is no basis upon which to compute the tax. People v. Wemple, 133 N. Y., 323-9; 45 St. Rep., 234.

There must be some property or business done within the state to 'justify a tax, ,and there must .be some evidence to show how much capital is employed, and if there is such evidence the court will hesitate to disturb the finding of the comptroller; but that determination must be supported by some -evidence, it must not be a purely arbitrary determination! Having seen that the determination of the comptroller in taxing the entire capital stock of the relator was wrong, we must then see what evidence there is by which we can determine how much it should be taxed..

The evidence discloses no business done within this state, and the only property disclosed is the sum of $1,391.63 in money, deposited with a banking house in the city of New York. The amount in bank was held a proper basis for determining the tax in People v. Wemple, 129 N. Y., 558; 42 St. Rep., 400. How that money or any portion of it was paid out, or for what purpose, perhaps is of nq consequence; whether any portion of it was used to pay past due dividends-1 do not think can be considered here as the case stands. The amount in the bank seems to be the only property that can be .used, as a basis to determine the amouht of the tax, and the tax upon that would be the sum of $7.65.

The determination of the comptroller should be reversed, the tax upon the relator 'fixed at the sum of $7.65, with fifty dollars costs and printing and other disbursements to the relator.

Mayham, P. J., concurs.

Putnam, J.

I concur in conclusions reached in foregoing opin> ion generally, but am not clear that relator might not be taxed for the two months of the fiscal year that its office was in the city of New York. See People v. Wemple, 18 N. Y. Sup., 513 : 44 St. Rep., 702.


text:
    In the Matter of the Application of Daniel Hyzer, sole Trustee of School District No. 3 of the Town of Hardenbergh for a writ of mandamus, Resp’t, v. The Board of Supervisors of the County of Ulster, App’lt. In the Matter of the Application of Sturgis Bulkley, sole Trustee of School District No. 10 of the Town of Hardenbergh, for a writ of mandamus, Resp’t, v. The Board of Supervisors of the County of Ulster, App’lt. In the Matter of the Application of Colonel Sprague, sole Trustee of School District No. 5 of the Town of Hardenbergh, for a writ of mandamus, Resp’t, v. The Board of Supervisors of the County of Ulster, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    Taxes—Presumption op resulabity.
    A peremptory writ of mandamus was issued commanding the payment of a returned school tax to the collector of the school district by the hoard of supervisors, the moving affidavit, which was not disputed, alleged regularity in the tax proceeding, the tax being on forest preserve lands. Upon argument of the appeal, the board claimed that the provisions of the law in regard to assessments on state lands had not been carried out and the tax therefore void. . Reid, that such irregularities, if any, should have been pointed out; the court will not assume that .there are irregularities, but rather that the public officers have done their duty.
    Appeal from orders of special term granting peremptory writs of mandamus, commanding, the board of supervisors to pay the returned school tax óf school districts Hos. 3, 5 and 10 of the town of Hardenbergh, Ulster county, to the-collectors of said districts, by voucher or draft on the county treasurer. Ho affidavits -were filed in opposition to the motions for the. writs, and the facts are undisputed. , . .
    It was argued in opposition to the applications for the writs that so far as the taxes were assessed on state lands they were void; and that the assessment rolls were defective in certain particulars, which rendered the. taxes void. ...

      John P. Cloonan, for app’lt; Linson & Van Buren, for resp’ts.
   Herrick, J.

The tax objected to wcas a tax on Forest Preserve lands. Such lands are taxable. Chapter 280, Laws of 1886.

The moving affidavit, which is not disputed, says that such tax was duly approved by the comptroller and forest commissioners.

The proceedings seem to have been regular all through.

If the proceedings were irregular in any respect, such irregularities should be pointed out; it is not the case of attempting to enforce a tax upon lands against a citizen, where it is a lien upon his lands, and- by it his property may be taken from him.

The court will not assume that there are irregularities, but rather that fjhe public officers have done their duty. ■

The orders should be affirmed, with costs.

Mayham, P. J., and Putnam, J., concur.


author: Gray, J.

text:
    Harry W. Link, an Infant, Resp’t, v. Jay W. Sheldon et al., App’lts.

      (Court of Appeals,

      Filed November 29, 1892.)

    1. Physicians—Malpractice.
    In an action against physicians for malpractice in setting an arm, it was shown that plaintiff sustained what is known as “ Colles’ fracture,” and after defendants had treated it for several days with a metallic splint, Dr. D. was called in and found bandaging which was claimed to have been too tiglit, and in the healing, through inflammation and resultant suppuration, the thumb was drawn in and the hand deformed. Rcld, that it was not necessary in order to sustain the action that there should have been proof of gross culpability upon the part of the defendants. _ It was sufficient to warrant a verdict against them that there was. evidence of any failure oti'their part to exercise proper care, or of any neglect in the discharge of the duty they had assumed towards the plaintiff.
    2. Same—Charge.
    Defendants requested the judge to charge that " if the jury find from the evidence that the position and stiffness of the thumb was caused by the abcess spoken of by Dr. D. in the palm of the hand which was not opened by him, but, allowed to gather and break and destroy the muscles and tissues in that vicinity, the defendants are not liable _therefor.” He had just charged that the verdict could not be for the plaintiff if the evidence satisfied the jury that the treatment of Dr. D., after he took charge,, was not proper, and that want of proper practice on his part had contributed to bring about the condition of the hand, and also that defendant must recover if it was just as probable that the injury was caused by the original injury, or by subsequent manipulations and treatment of Dr. D. and others, as from the pretended tight bandaging, and declined to charge as requested. Held, no error. - p
    3. Same—Evidence.
    An expert witness should be confined to questions ¿which contain in. themselves the facts assumed to be proven and upon which his opinion, is desired.
    ■ 4. Same.
    While it is competent to testify to the proper practice in certain kinds of cases, as pursued from study or established by experience, it is quite immaterial and irrelevant what, in the cases defendant had had in the course of his practice, the general results had been.
    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment entered upon a verdict in favor of the plaintiff at the circuit.

      T. K. Fuller, for app’lts; Wm. Nottingham, for resp’t.

       Affirming 45 St. Rep., 165.

   Gray, J.

The action was brought against certain physicians,, to recover damages for their unskillfulness, or their negligence, in the treatment of the plaintiff for a fracture of tfle bones of his right fore arm, whereby his hand was permanently deformed in part, and a verdict was recovered of $4,000; which recovery the general term has affirmed. .The apparent severity of the verdict; the nature of the issue, which involved the question of the competency of defendants as medical practitioners, and the earnestness with which the appellants have insisted upon the commission of errors upon the trial, have caused us to carefully examine and consider this record and its questions.

Although the plaintiff has shown that he may permanently suffer from a crippled ” hand, we, nevertheless, think that there was enough before the trial judge and the court at general term, in the nature of the accident, in , the conflict of professional opinions as to the treatment, and in the possible doubt which overhung the case, that the distortion of the hand was not wholly due to the malpractice charged against defendants, but might have resulted in any event, as,to have justified an interference with thq verdict on the ground of its excessiveness. There was latitude for the entertainment of a doubt concerning the treatment of the case and the final result complained of, which would not have subjected a reduction of the recovery by the general term to criticism, as being without adequate grounds. The practice of surgery must always admit of some doubt as to ulterior complete success. But, however that may be, the decision of the tribunals below in that respect is final; the doubt was resolved adversely to defendants and this court is without power to review the determination as to the” amount of the damages awarded. Oldfield v. N. Y. & H. R. R. Co., 14 N. Y., 810, 821; Gale v. N. Y. C. & H. R. R. R. Co., 76 id., 594.

The defendant moved upon several grounds for. a non-suit; which may be, in effect, resumed in the statement that the plaintiff had failed to show that his crippled condition is the result of waut of knowledge, or skill, or of any negligence on the part of the defendants; or that it was not caused by either his own peglect, or that of his parents; or that it was not attributable to the subsequent mismanagement of the case by the physician called in to take charge of it.

Briefly stated, the "facts were that plaintiff, a lad of thirteen years of age, while playing in a ¿hay loft, fell through an opening and .upon the barn floor, striking with such force upon his hand and fore arm as to produce what, is known by the surgical term of a Colles’ fracture of the large bone of the arm near the wrist ■joint, with a dislocation of the smaller bone. The defendants, one of whom had long attended upon the lad’s family, were called in. They dressed the wounded parts, and placed a splint to hold the bones in place. The accident occurred on a Friday, and the management of the case by the defendants ‘continued from that day until the following Monday evening; Dr. Doyle, another physician, being called in by the lad’s parents on Tuesday morning.

.Over the methods of the defendants in treating the wound and in bandaging the arm and hand a severe controversy was waged; it being claimed by the plaintiff that the treatment was unskillful and grossly negligent; while for the defense it was claimed that the treatment was such as the peculiar nature of the wound called for; -and that the bad condition into which the plaintiff fell on Monday and Tuesday was due to a refusal on the part of his parents to permit defendants to seasonably re-dress the hand on Monday evening. It appears that the plaintiff’s parents became dissatisfied with the defendants’ treatment of the case, and hearing of Dr. Doyle’s success in the case of some acquaintance, dismissed the defendants on Tuesday tnorning,' and palled in Dr. Doyle.

The points made for the plaintiff were that the accident having caused an ordinary Colles’ facture, a certain metallic splint used should have been adjusted to the palmar surface of the hand, instead of upon its back; and that the bandaging of hand and arm had been so tight as, by such ignorant and neglectful treatment, to cause an inflammation and resultant suppuration, which, in the healing,, drew in the thumb and permanently deformed the hand. The defendants testified that the fracture, though similar to that known as Colles’ fracture, had so reversed the position of the bones that the splint had to be used as it was placed by them; that the physical condition of the patient, in addition, was bad from feverishness; that the bandages were rightly adjusted ; that the great inflammation, discovered when Dr. Doyle was called in, was due to their having been prevented from re-dressing the wound for many hours, and, finally, that had the succeeding physician properly treated the hand in its inflamed and swollen condition by lancing instead of by poulticing, no distorted condition of the hand would have resulted.

Medical experts were examined in support of the plaintiff’s and of the defendants’ positions, and when the evidence was all in, the case was such as to present purely questions of fact for the determination of the jury, if they believed that it was an ordinary Colies’ fracture, then the weight of the skilled evidence,, if not all of it, showed that the metallic splint used upon the-occasion was wrongly adjusted and not fitted for use in the particular way adopted by defendants. If tiiey believed that the defendants ignorantly and unskillfully used this splint and neglected, to bandage and to compress the parts in such wise as to permit of circulation and to prevent inflammatory action, and that the; maimed condition of the hand was due to such unskillful, or neglectful treatment of the case and was not caused by the subsequent treatment by Dr. Doyle, then the plaintiff was entitled to a verdict. If they believed that the defendants understood and properly managed the case and that the. resultant distortion was due either to some interference with their treatment, or to the malpractice of the succeeding ' physician, the defendants were entitled to a verdict The evidence upon the material points was conflicting. There was more or less disagreement among the doctors; but it is impossible to say that there was not evidence tending to establish a lack'of skill, or some neglect, on the part of the defendants. It was not necessary, in order to sustain the action, that there should have been proof of gross culpability upon the part of the defendants. It was sufficient, to warrant a verdict against them, that there was evidence of any‘failure on their part to exercise proper care; or of any neglect in the discharge of the duty they had assumed towards the plaintiff. Carpenter v. Blake, 75 N. Y., 12.

The recovery, therefore, must stand, unless there were any such errors committed upon the trial as would justify us in awardifig to plaintiff a new trial of the action.

The charge itself' was so fair as to call for the approval of the defendants’ counsel; but he presented requests to charge, some of which were refused and the refusals were excepted to.

The only ruling we deem it necessary to advert to in that connection is upon a request to charge that “ if the jury find from the evidence that the position and stiffness of the thumb Was caused by the abscess spoken of by Dr. Doyle, in the palm of the hand, which wa,s not opened by him, but allowed to gather and break and destroy the muscles and tissues in that'vicinity, the defendants are not liable therefor.” The trial judge declined to so charge, adding, “that is a question of fact.” In the main charge he had very explicitly instructed the jury that their verdict could not be for the plaintiff, if the evidence satisfied them that the treatment of Dr. Doyle, after he took charge, was not proper, and that want of proper practice on his part had contributed to bring about the condition of the hand. Just before the request was presented, he had charged for the defendants, upon their request, that “if the jury find from the evidence that it is just as probable that the injury complained of was caused, either by the original severe injury, or by the interference of the plaintiff’s parents, or by the subsequent manipulations and treatment of Dr. Doyle and others, as from the pretended tight bandaging, it is the duty of the jury to find a verdict for the defendáis. ”

The defendants had had the benefit of a fair charge upon the' question of where the responsibility should rest; as to where it ceased for them and began with Dr. Doyle; and the trial judge had just ruled, upon th,cir express request, that the existence of any probability that the injury may have been as much caused by Dr. Doyle’s treatment would warrant their exoneration by the jury, and they cannot be heard to insist that it was prejudicial error to refuse the subsequent request, which had not only been ■covered, but, in its form, tended to an assumption of a fact which was in issue. That is, the-request seemed to assume that the destruction of the muscles and tissues of the hand was due to Dr. Doyle’s failure to lance the swelling; whereas the precise question for the jury was whether-that destruction of muscle and tissue was the result of a condition brought about by the defendants, or by the bad management of Dr. Doyle, after he had assumed charge.

We think there was no error in the ruling upon the request.

Plaintiff’s father had testified as to the lad’s sufferings, and he was asked, " Did he continue -these complaints ? ” to which he answered, “Just the same ; this burning, terrible pain.” The defendants’ counsel then objected “ to that class of evidence; ” the court overruled and counsel excepted. I think that the evidence was unobjectionable, for they were complaints which were communicated to the attending physician with the view of having him relieve the tight bandaging; but, even if the evidence was improperly introduced, it was too late to interpose the objection after the answer had been made. The remedy was to move to strike out the evidence. To similar questions, subsequently objected to, no answer appears to have been given.

A medical expert, being examined as a witness for the defendants, had answered a hypothetical question upon an assumed case and which involved . the consequences to the hand of not redressing it within a certain period of time. He was then asked by defendants’ counsel, “ Could you trace any of the results, which you have heard testified to by Dr. Doyle, to the lack of re-dressing on Monday night ? ” An objection to the evidence was sustained and an exception taken.

Dr. Doyle was called in, in the place of the defendants, and he had testified to the case; his treatment of it and as to the condition of the hand. The medical expert witness, to whom this -question was putj knew nothing of the case and had testified hypothetically. To have answered the question would have required him to pass upon, or to draw inferences from, the evidence given in the case by another witness, and that would have been clearly improper within the authorities. Reynolds v. Robinson, 64 N. Y., 589; Guiterman v. Liverpool S. S. Co., 83 id., 358. An expert witness should be confined to -questions which contain in themselves the facts assumed to be proven and upon which his opinion is desired. One of the defendants had testified as to his qualifications, his studies and his practices, and had said that he had had a number of cases of what is known as Colies’ fracture. He was then asked, “And with what results? ” The evidence gvas properly excluded upon objection. An answer would not have tended to enlighten the jury as to his treatment of the present case. The question they were called to pass upon concerned the performance of the defendants’ duty ih‘ caring for the plaintiff, and that was to be decided upon a consideration of the evidence of what they did, or did not do. It was competent to testify?- to the proper practice in such cases, as pursued from study, or established by experience ; but it was quite immaterial and irrelevant what, in the cases defendant had had in the course of his practice, the general results had been. If in every one he had been successful, that could not affect the issue as to the exercise of proper care and skill in the particular case. If it was intended to fortify their case by showing to the jury the reputation of the witness, it was nota the way to do so by particular cases in his past practice.

Other questions raised by exceptions, as were these in fact, were properly disposed of by the court at general term.

We are= unable to discover the commission of any error which would warrant our reversing the judgments below and they must, therefore, be affirmed, with costs.

All concur, except Andrews, J., absent.


author: Andrews, J.

text:
    Henry M. Peyser et al., App’lts, v. Matthew R. Myers et al., Resp’ts.

      (Court of Appeals,

      Filed November 29, 1892.)

    !.■ Partnership—Membership—Rights op creditors.
    The priority of lien of a firm creditor is not divested hy a transfer by an insolvent firm of the firm assets to one or more of the partners, nor can it be affected by any mere change in the personnel of the firm, as by the withdrawal of one partner from the firm, or the introduction of a pew-member.
    2. Same—Assignment eor creditors.
    Where a new partner comes into a firm upon the tacit understanding that there is to be no break in the' business and that a large loan from an estate is to be treated as a debt of the new firm, and statements of account are rendered to the executors from year ‘o year, the new firm has the right to recognize the debt owing to the estate, and to treat it as a debt of the new firm when it makes an assignment for creditors.
    3. Same.
    The assignment directed the assignee to pay $102,827, which through interest being computed by annual rests was $20,223 too much, and this being decided by an action the latter sum was repaid and applied on plaintiff’s claims. Held,, that this did not render the assignment fraudulent or void.
    - Appeal from judgment of the supreme court, general term, first department, affirming judgment of special term, which as against defendant Myers dismissed the complaint.

      John J. Adams, for app’lts; William Pierrepont Williams, for resp’ts.

       Affirming 45 St. Rep., 413.

   Andrews, J.

It will be convenient to consider the validity of the preference to the estate of John EL Myers for the sum of $102,872 made in the assignment of the firm of, Halsted, Haines & Co., dated July 12, 1884, irrespective of the claim that the preference exceeded the amount of the debt owing to that estate. The parties assailing the preference are creditors of the firm, whose-debts arose subsequent to February 1, 1882, the date on which Bentley became a member. The debt to the’Myers estate preferred in the assignment existed at the time of the admission of Bentley as a partner, except as it was increased by interest accruing thereafter. If the debt had not become the debt of the assigning firm, and there was no equitable right to prefer it in the assignment, the preference was void, because in that case-it would be in contravention of the rule which forbids an insolvent firm from appropriating its property to the payment of other than debts of the firm, or debts for which the members of the firm were jointly liable, to the prejudice of the firm creditors. Wilson v. Robertson, 21 N. Y., 587; Citizens' Bank v. Williams, 128 id., 77; 38 St. Rep., 834.

■It is indisputable that an incoming partner is not as of course liable for the debts or transactions of the firm, and that he can be made liable in an action at law by the creditor only by some agreement on his part to assume such liability. The mere fact that he becomes a member of the firm creates no presumption of the existence of such agreement. The fact, however, may be established by indirect as well as by direct evidence, and may, in the absence of an • express agreement, be inferred from facts and cir-i-ninstances which justly raise an implication of its existence. Serviss v. McDonnell, 107 N. Y., 264; 12 St. Rep., 485 ; Hannigan v. Morrissey, 37 id., 138; Lind, on Part., p. 208. The facts in the record justify the conclusion that Bentley came' into the firm upon the tacit understanding that there was to be no break in the business, and that the debt to the Myers estate was to be treated as the debt of the new firm.

The stock and assets of the prior firm went into the possession and ownership of the new firm. There was no inventory, and the business was conducted after Bentley became a member of the firm in precisely the same manner as before. Bently had been a salesman of the preceding firm of the same name for several years. He brought no capital into the firm, and the firm had no capital except that which was represented by the stock and assets derived from the prior firm. The debt to the Myers estate was credited to the estate on the books of the firm of 1882, and was credited with interest and debited with items for goods and money had by the executors from the firm Up to the time of the assignment

On the 1st of January in the years 1883 and 1884, and again on the 11th o.f January,. 1884, the new firm of Halsted, Haines & Go. rendered statements of account to the executors of Myers, shówing credits and debits and the net balance due to the estate. It seems that Bentley, when he became a partner, did not examine into, nor did he know the financial condition of the firm. He had nothing to do with the books, and while he knew that the firm - was using money of the estate of Myers, he did not know the amount and made no inquiries. He testified that it was his intention when he went into the firm “to.take the affairs of the old firm as he found them and go on with them as a member of the new firm.”

While it is doubtless true that Bentley joined the firm in ignorance .of its financial condition, it is difficult to reáist the inference that it was the understanding of all the partners that the debt of the Myers estate .was to be treated and regarded as a debt of the firm. In 1884 Bentley joined in the execution of the firm -assignment, in which the debt was preferred, and afterwards made no defense to an action brought by the estate against himself and the other members- to recover the debt as the debt of that firm, in which action judgment was rendered for the plaintiffs. If it was essential to maintain that there was a technical novation of the debt and a substitution of the members of the firm of 1882 as the debtors in exoneration of or in place of the persons originally liable thereon, in order to render the preference valid, the undertaking would encounter serious difficulties. Such a novation could ‘ only be effected by "the agreement of the original debtors, the new, firm and the creditor. It would be difficult to establish from the circumstances disclosed in the record that the creditor agreed to take the new firm as his debtor in place of the former members of the firm (one of whom had withdrawn in 1879, and another had died in 1880). So, also, if the case depended upon, the application of the principle of Lawrence v. Fox, 20 N. Y., 268, it would be difficult to find the existence of such a promise for the benefit of the estate of Myers made between Bentley and his co-partners, as would support an action at law by the executors of that estate against the firm of 1882 to recover the debt But' theodoctrine now well settled, that in case of the insolvency of a firm the joint property must be first applied to pay the joint debts, has its foundation in the equity that the credit given to the firm is presumed to have been extended upon the faith of the joint liability and on the fact that the property of the firm is in money,-and-perhaps in most cases a fund derived in part at least from the creditors who have dealt with the firm in the ordinary course of business. The corpus of the firm property belongs to the firm as an entity, and not to the individual partners, their separate interest being only in the surplus after an adjustment of the partnership debts and accounts, and hence the right of individual creditors is the right of their debtors in such surplus.

This priority of lien of the firm creditors is not divested by a transfer by an insolvent firm of the firm assets to one or more of the partners, nor can it be affected, as we conceive, by any mere change in the personnel of tile firm, as by thp withdrawal of one partner from the firm, or the introduction of a new member.

It is found and is undisputed that when Bentley became a member of the firm in 1882, the firm of Halsted, Haines & Co. was insolvent and had been insolvent from 1875, although the fact does not seem to' have been known to th'é firm. The stock and property of thé firm prior to and at the time .Bentley became a member, was subject to the equitable lien of the then existing creditors of the firm, among whom was the estate of Myers. This stock and property was transferred to the firm of which Bentley became a member. It was, as has been said, the understanding between the partners, inferable from the circumstances,o that the new firm should assume the Myers debt, and when the ■open insolvency occurred in 1884, this debt was "preferred as a debt of the insolvent firm. In this we think there was no violation of any legal or equitable right of the intervening firm creditors. The Myers estate had at least an equal equity to payment out of the firm assets! The new firm had the benefit of the stock and property of the prior firm, which presumably formed a large share of its assets at the time of the assignment.

We think the new firm had the right to recognize the debt owing to the Myers estate, and to treat it as a debt of the new firm when it came to make the assignment. This right does not depend upon the question of novation, nor upon the right of the executors of the Myers estate to recover at law against the firm of 1882. The firm having, under the law existing in 1884, a right to make a preference among its creditors, it had a right, we think, to prefer a debt which, in the origin of the partnership.and •concurrently with the transfer of the stock and assets .of the prior firm, it had recognized as the debt of the new partnership.

The principles set forth in the opinions in the case of Menagh v. Whitwell, 52 N. Y., 146, confirm and justify the conclusion we have reached. The firm of 1882 had the right to prefer thé claim the Myers estate and, as has been said, in so doing it interfered 'with no legal or equitable rights of other creditors. It is claimed, however, that irrespective of this question the preference was void for the reason that it exceeded the actual and legal debt owing to the Myers estate. The assignment directed the assignee to pay “ to the estate of John K. Myers, $102,827.00,” and this sum was paid by the assignee to the executor's of the estate of Myers,” pursuant to the direction, September 9, 1884, four years before the commencement of the present actiop. The legal debt owing to the estate of Myers at the time of the assignment was, as is found, only $82,649. The discrepancy between the debt as stated in the,assignment and the legal debt was occasioned by .embracing in the account as written up and rendered from time to time by Halsted, Haines & Co., compound interest; that is to say, the account was made up with annual or semi-annual rests, and the debt as preferred included $20,223, or thereabouts, of interest arising from this method of computation.

It is conceded that, computing the interest 'according to the rule laid down in State of Connecticut v. Jackson, 1 Johns. Cb.f 13, and approved in Young v. Hill, 67 N. Y., 162, the true ahiouiit of the debt at the tipie of the assignment would be $82,649. It is found, and of this there is no contradiction,, that the assignors in fixing the amount of the .debt, as stated in the assignment, and the assignee in paying that amount and the executors in receiving it, acted in good, faith and without any intent' to defraud and upon the belief that the amount preferred and paid was the actual sum due and legally owing to the estate. ’

The supreme court in a prior action by another creditor decided that the preference to the extent of $20,223 was ’ invalid, and it adjudged that-the estate of Myers should restore that sum, and this sum lias been repaid and applied upon the debts represented by the plaintiff in that- action. It is now insisted by the plaintiff in this action that the preference having exceeded the actual debt; the assignment- was fraudulent and void and that the estate of Myers is bound to restore at the suit of creditors of the firm, not the excess simply, but the whole amount paid and received under the assignment.

It is not necessary to determine whether an action to set aside an assignment for fraud could be supported upon the bare proof that the assignor had overstated the amount of the preferred debt, where it was made to appear that it was a mere mistake in the method of’ computation or in the amount due, and' was not attributable to any fraud. In the present case one creditor is seeking to compel -another to pay back money received by the former under the assignment, in good fáith, in discharge of an honest debt, before any lien had been acquired by the plaintiff on the fund in the hands of the assignee, and the plaintiff bases his claim on the ground that the estate was preferred a larger amount than the actual debt, and that although the parties acted in good faith and the estate has accounted for the excess, it ■ cannot retain the balance, which represents only the actual debt owing" by the in- ' solvent firm.

The opinion of the second division of this court in Knower v. Central Rational Bank, 124 N. Y., 552; 37 St. Rep., 89, considers with great ability the question'of the validity of» a payment made by an assignee for the benefit of creditors to a preferred creditor, pursuant,to the direction in the assignment, before lien acquired or judgment rendered declaring the assignment void. The opinion in that case is a satisfactory answer to the claim made in this action, and while this case differs in the circumstance that here the preference exceeded the legal debt and the payment was made of the whole amount preferred, this we think' did not, in the absence of an actual fraudulent intent, prevent the application of ’ the principle of the case cited, to protect the payment to the extent of 'the actual debt.

In fixing the actual debt at $82,649, the court applied the principle of computation recognized in the cases to which we have ■ referred. The interest was computed on the princm'al to such time as the payments equalled of exceeded the interest and then a new principal was ascertained. The method of computation adopted has been long recognized in this state as legal and we perceive no reason for disregarding it in the present case.'

We think there is no erjor in the record calling for a reversal of the judgment, and it"is," therefore, affirmed

Judgment affirmed, with costs.

All concur.


author: Peckham, J.

text:
    In the Matter of the Application of the Trustees of Schuyler’s Steam Towboat Co., a corporation, for its dissolution.

      (Court of Appeals,

      Filed November 29, 1892.)

    Jurisdiction—Federal and state courts—Receiver.
    A. receiver of the property of the Schuyler Towboat Company was appointed in proceedings, to dissolve the corporation by the special term of the supreme court. The order was filed at 11 a. m., August 1st. He executed his bond, and-it was approved August 3d and filed August 4th. On August 1, at Ip. m., one M., a creditor, had filed libels against several of thd vessels in the U. S District Court, and the marshal took possession. _ Held, that the state court acquired exclusive jurisdiction, as the appointment of the receiver was completed by the filing and entering of the order appointing him, and when he filed his bond he could take actual manual possession of the property, and his title related back to the time of his appointment, and the court has power to protect it.
    Appeal from order of the supreme court, general term, third department, affirming order restraining creditors of the corpora^ tian from prosecuting libels in'the federal courts.

      Joseph F. Mosher, for app’lts; James W. Eaton, for resp’t.

       Affirming 43 St. Rep., 163; 46 id., 963.

   Peckham, J.

A receiver of the property and effects of the above named corporation was duly appointed by a special term of the supreme court of the state, sitting at Albany, on the 81st of July, 1891, and the order appointing him was filed and entered in the proper clerk’s office August 1,1891, at 11 A. M. The receiver executed his bond, and it was duly approved August 3d, and filed in the clerk’s office August 4,1891. The proceeding was one for the voluntary dissolution of a corporation and the distribution of its property and assets among those entitled to receive the same. Intermediate the time when the receiver was appointed and the execution and filing of his bond, and in the afternoon of August 1st, a Mr: Moran in his own behalf, and in behalf of other creditors of the corporation, libelled several vessels which were the property of the corporation by filing libels in the U. S. District Court for the Eastern District of New' York, and upon process issued from that court the marshal took possession of such vessels.

Whe-T Moran instituted his proceedings, he says he had been informed that application had already been made for the appointmfent ol a receiver, but he was not informed, and did not know that one bad been appointed. Finding the marshal in possession of the vessels, and as he refused to give up such'possession, the receiver instituted these proceedings to restrain the libellants from further steps in the United States district court. The courts below have granted the order restraining further proceedings, and the other parties have appealed here.

The courts below have held that by the proper presentation of a petition to a state court praying for the dissolution of the corporation. and by the appointment of a receiver upon due notice of the ipplication to the attorney general, the court acquired jurisdiction of the subject matter of the proceeding, and took the prop-' erty of the corporation into the custodyof the law for the purpose of due administration, and that having thus acquired jurisdiction of such subject matter, and taken the property into the custody of the law, although the receiver had not actually and physically seized and taken it into his manual possession, the state court acquired the exclusive jurisdiction and right to take such possession and make a final decree, and that the libellants acquired no rights under their process, and should not be permitted to further proceed in the district court. The libellants, on the other hand, contend that this is a question of jurisdiction over the particular property, and that court obtains it which through its process and officer first actually seizes and takes possession of the property itself; and that although the receiver may have had a prior right to take possession, it was not exercised before actual possession was taken under the process from the U. S. court, and hence the first manual possession must determine the question of jurisdiction.

We think the contention of the libellants ought not to prevail' The question of the effect of the appointment of a receiver upon the title to the property of the person or corporation for which he was appointed, is not a new one. In Mann v. Pentz, 2 Sand. Ch., 257, it was said that when the appointment of a receiver was completed, the title to all property and effects which -were subject to the order vested in him. To the same effect are Porter v. Williams, 9 N. Y., 142-148 ; and Van Alstyne v. Cook, 25 id., 489-496.

The appointment of receiver is completed at the farthest by the filing and entering of the order appointing him, although before he proceeds to the discharge of his duties he may be directed to execute and file a proper bond. When that is done he can take actual, manual possession of the property and his title relates back to the time of his appointment Matter of Christian Jensen Co., Limited, 128 N. Y., 550 ; 40 St. Rep., 621, and cases cited by Earl, J.

In Storm v. Waddell, 2 Sand. Ch., 494, it was said that property that was liable to levy under execution at law could not be levied upon subsequent to an order appointing a receiver, as such order was equivalent to an actual levy upon the property.

I think the proposition involved in this case has been held adversely to the claim of the libellants by the decision in the Matter of Christian Jensen Co., Limited, supra.

The receiver was there appointed March 10, his bond filed March 11, and on March 12 he took possession of some of the property of the corporation. On the 11th of March, intermediate the appointment and qualification of the receiver, certain parties commenced an action against the corporation and sued out process in replevin in a New York district court, and under it took possession of certain property which was then in the possession of the corporation. On the same day an action against the corporation was commenced in the Yew York common pleas to recover a a money judgment, and a Lwarrant of attachment was issued, and the sheriff on the same day attached some of the property of the corporation. The receiver then asked for an order restraining the further prosecution of these actions, and after hearing, the order was granted permanently restraining such proceedings. At the same time the coiirt directed, the sheriff, who had .seized under his process in replevin certain property in the possession of the corporation, to surrender the same to,the receiver.

Some question was made as to the right of the corporation to-the possession of the property taken in replevin, but- upon the facts it was held the receiver was entitled to possession, and if any question arose as to whether the property seized under the replevin writ actually belonged to the corporation at the time of the appointment of the receiver, that question might .be inquired of by some action or proceeding against the receiver, commenced or taken with leave of the court. .What was intended to be asserted was that the appointment of the receiver vested the property of the corporation m him, although he was to thereafter qualify by giving a bond, and-that the title being in him and the property in the custody of the law, no other court could obtain jurisdiction over ■ the property after such appointment, even under process upon which possession was taken prior to the qualifying of the receiver.

A different rule does not prevail because one court is a state and the other a United States court. It is a question of jurisdiction in each case, and the same principles apply in both. The same rule obtains whether one court is of common law or equitable jurisdiction, and the other is a court of admiralty, although the nature of the jurisdiction of those courts is so different.

Mr. Chief-Justice Taney, in his dissenting opinion in Taylor v. Carryl, 20 How., U. S., 595-600, endeavored to establish -that such a difference in the nature of the jurisdiction of common law and admiralty courts over the vessel which was attached and libelled ought to make a difference in the • decision to be made. The jurisdiction of the district court of the United States in that case was invoked for the purpose of collecting seamen’s wages by the eiif of cement of the maritime lien upon the vessel given for that class of services, and it was said that such lien is by well established authorities prior and paramount to all other claims on the vessel, and must be first paid, and that by the constitution and laws of the„United States the district courts, acting as courts of admiralty, were the only courts which had jurisdiction over such lien, or that were authorized to enforce it, and that it was the duty of that court to do it. The chief justice then argued that as the attachment of the vessel under the state laws, and by process from the state court, only bound the interest of the owner, while the martime lien upon the vessel bound the res itself, the court which had jurisdiction only of a subordinate and inferior interest should not be able by virtue of such an attachment to close all proceedings to enforce the paramount lien for wages for twelve months, as by the laws of the state that period or more might elapse between the seizure of the vessel under the attachment and its sale or release from the process.

The case was decided upon what a majority of the court held was no new principle, and it was solved by the application of what was said to be a principle that was comprehensive, and just,, and equal, and opposing no hindrance to the efficient administration of judicial power. The jurisdiction of the state court was upheld notwithstanding its limited character, and that of. the admiralty court was denied, although it was thé sole court where the lien of the seaman for his wages could .be originally enforced against the vessel itself.rj The case shows that the fact that the different courts in the Christian Jansen Co. case, supra, were-courts of the same state, and of concurrent jurisdiction, is immaterial, and the same rule would hold if one court wgre a state and the other an United States tribunal. „

The cases cited by the counsel for these appellants do not involve the question as to the effect of the appointment of a receiver-in an action or proceeding where the court has obtained jurisdiction by thé proper service of papers. This court has held that the effect is, in a case of this kind, to take the property of the corporation into the custody of the law and that the court has power to preserve'and protect it. As was said in Heidritter v. Elizabeth Oil Cloth Co., 112 U. S., 305, “when, the object of the action requires the control and dominion of the property:involved in the litigation, that court which‘first acquires possession, or that dominion which is equivalent, draws to itself the exclusive right to dispose of it” That dominion was acquired by the order appointing the receiver in this proceeding. .

The same principle was declared in Union Trust Co. v. Rockford R. R. Co., 6 Biss., 197; Steele v. Sturges, 5 Abb. Pr., 442; Texas Trunk R. Co. v. Lewis, 81 Texas, 1.

Different considerations apply upon a motion to punish as for a contempt an alleged interference of a third person with property in regard to which a receiver may have'been appointed, but which he has not yet taken actual possession of. In the case of Albany City Bank v. Schermerhorn, 9 Paige, 372, the chancellor reversed the decree of the vice-chancellor adjudging the appellants to be in contempt, because the facts were not sufficient to enable the chancellor to judge whether the parties were or were not in contempt The question was one of procedure, “whether it was proper to proceed as for a contempt for the purpose of enforcing the actual delivery of property to the receiver. The court held such proceeding was improper where the receiver had never had actual possession, although his right to possession flowed from the order appointing him. The question now before the court was neither involved, discussed nor decided in the case pited. A party might not be guilty of contempt in taking control of property not actually seized by the receiver and while such party was in ignorance that a receiver had been appointed, and yet the property thus interfered with may notwithstanding have been in the custody of the law and jurisdiction over it may. unquestionably have existed in the court which appointed the receiver.

Our decision here does not-affect the legal rights of the libellants in the vessels in question. The receiver will be obliged in this proceeding to distribute the proceeds arising -from a sale, of the property among the creditors qf the corporation as their priority of rights may appear and be held valid.

We think the order was right and it must be affirmed, with -costs.

All concur.