text:
    The People ex rel. William J. Gaynor, Resp’t v. John Y. McKane et al., App’lts.

      (Supreme Court, General Term, Second Department,

    Filed May 14, 1894.)

    Contempt—Injunction—Disobedience.
    Where the judge who grants an injunction has power to entertain the application, disobedience thereto is a criminal contempt, though the decision was erroneous.
    Appeal from orders adjudging each defendant guilty of contempt of court, and imposing on each punishment by/fine and imprisonment.

      James Troy, for app’lts ; Jesse Johnson, for resp’t.
   Brown, P. J.

If the supreme court had jurisdiction of the subject-matter of the action brought against the appellants, and if Justice Barnard had jurisdiction to grant the preliminary injunction, for disobeying or resisting which the.appellants have been convicted, that order must be treated ,as a valid and binding order of the court, and, as such, was to be obeyed, until it was revoked by subsequent order made in the sanie action. People ex rel. Davis v. Sturtevant, 9 N. Y. 263; Erie Railroad Co. v. Ramsey, 45 N. Y. 644; Mayor, etc., of New York v. New York & S. I. Ferry Co., 64 N. Y. 624; People ex rel. Negus v. Dwyer, 90 N. Y. 402 ; People ex rel. Cauffman v. Van Buren, 136 N. Y. 252 ; 49 St. Rep. 378. “Jurisdiction,” in the strict meaning of the term, as applied to judicial officers and tribunals, means no more than the power lawfully existing to hear and determine a cause. It is the power lawfully conferred'to deal with the general subject involved in the action. Bouv. Law Dict; And. Law Dict. It does not depend upon the ultimate existence of a good cause of action in the plaintiff, -in the particular case before the court. “ It is the power to adjudge concertiing the general question involved, and is not dependent upon the state of facts which may appear in a particular case.” Hunt v. Hunt, 72 N. Y. 217. “Jurisdiction does not relate to the right of the parties, as between each other, but to the power of the court. The question of its existence is an abstract inquiry, not involving the existence of an equity to be enforced nor the right of the plaintiff to avail himself of it, if it exists. It precedes those questions, and a decision upholding the jurisdiction of the court is entirely consistent with a denial of any equity in the plaintiff, or in any one else.” People ex rel. Davis v. Sturtevant, 9 N. Y. 263. The constitution of the state gives to the supreme court general jurisdiction in equity ; and the Code of Civil Procedure defines that jurisdiction to be all that was possessed by the court of chancery of England on the 4th day of July, 1776, with the exceptions, additions, and limitations created by the laws of the state. The .English court of chancery granted the equitable remedy of injunction by final decree and interlocutory writ, and the subject-matter of the action was therefore within the jurisdiction of the court. But, while the power in the supreme court to award the relief by final decree is general, the Code of Procedure has abolished the interlocutory writ, and substituted in its place a temporary injunction, to be granted by order, and has prescribed rules governing the application for, and granting of, such an order. In this respect, the jurisdiction of the court or judge is not general, but limited; and such temporary order must be made in compliance with the provisions of the Code, or it will be treated as void. Spears v. Mathews, 66 N. Y. 127. The question is thus presented whether Justice Barnard acquired jurisdiction to grant the temporary injunction. It is provided in the Code, inter alia § 603, that, when the right to an injunction depends upon the nature of the action, a temporary injunction may be granted, when it appears from the complaint that the' plaintiff demands, and is entitled to, a judgment against the defendant, restraining the commission or, continuance of an act, the commission or continuance of which during the pendency of the action would produce injury to the plaintiff. Jurisdiction, under this provision, is made dependent upon the presentation to the court or judge of a complaint setting forth facts upon which the plaintiff claims to be entitled to, and upon which he demands, equitable relief ; but it is not dependent upon the conclusion which the judge makes upon the facts of the complaint. Whether they constitute an equitable cause of action, or create a case within equitable cognizance, is a judicial question to be decided by the judge to whom the application is made. His power to decidedoes not depend upon the correctness of his decision. Jurisdiction is entirely independent of the manner of its exercise. It involves the power to decide either way upon the facts presented to the court. When Justice Barnard granted the injunction we are now considering, he had presented to him a verified complaint, in which the plaintiff demanded equitable relief, and which set forth the facts upon which such relief was claimed, and upon those facts 'application for a temporary order was made, tlpon the presentation of such a complaint, it became his duty to consider and decide whether or not to grant the order asked for. -He had power to consider the case, and decide the application made to him. His determination upon the factsbefore him,and the order which he issued, cannot, therefore, be said to be void. Clothed as he was with the judicial power to decide, the order made was valid. It may have been erroneous, but it was not void ; and it cannot be reviewed or questioned in any collateral proceeding, but must be respected and obeyed until vacated or set aside in the same suit in which it was granted. The court having jurisdiction of the subject-matter of the action, and the justice jurisdiction to consider and decide the application or the temporary1 order, it was the duty of the appellants to obey it; and disobedience or resistance to its mandate was an offense punishable as a criminal contempt. Code Civil Proc. § 8.

The question whether the complaint contained facts calling for the equitable interferenceof the court, or, in other words, whether it set forth a valid cause of action in the plaintiff, did riot arise upon the application to punish for a criminal contempt, and hence is not before, this court for review. This rule, which is applicable only to cases of criminal contempt, to which class the present proceeding belongs,is to be distinguished from the rule applied in cases of civil contempt. In the latter class, it is essential, to sustain a conviction, that there shall exist, not only jurisdiction in the court or officer granting the order which has been disobeyed, but also a valid cause of action in the aggrieved party; and this results from the fact that á civil contempt is not an offense, against the dignity of the court,but against the partyin whose behalf the mandate of the court has been issued, and a fine is imposed solely as indemnity to the injured party. And, as there can be no injury when there is no right to maintain the suit, it is essential that this right should exist, in order to sustain a conviction, and that question is always open for examination upon appeal. But it is otherwise in a case of criminal contempt. That offense involves no element of personal injury. It is of a public character, and indictable. It is directed against the dignity and authority of the court alone. Hence, in proceedings to prosecute such an act, the court will look only to the question of power; and, if there-was jurisdiction to grant the order,it will impose punishment upon those who willfully disobey it, for the purpose of vindicating its own power and maintaining its own dignity, and leave any error as to private rights to be redressed in the orderlymanner provided for by the rules of practice. And obviously no other rule could prevail, and maintain the usefulness of the courts. It would be intolerable if any suitor could question and disregard the orders and decrees of the courts whenever he considered they were erroneous. As well might the sheriff, who is its executive officer, refuse to execute them. Under such a rule, the administration of the law would fail, and government would break down in one of its vital parts. The distinction between a civil and criminal contempt is plainly stated in the Code, in §§ 3 to 14, inclusive, and has recently been pointed out by the court of appeals in People ex rel. Munsell v. Court of Oyer and Terminer of New York, 101 N. Y. 245. While I have been unable to find that it has been referred to in any of the contempt cases, it underlies every decision; and the different questions that have been, considered in the opinions in the reported cases result from the difference in the character of the two offenses, and the different results that follow conviction, according as the contemptuous act has been prosecuted as a civil or criminal offense. Criminal con-tempts consist in a violation of the rights of the public, as represented in their judicial tribunals. An element of willfulness exists in them, and they are punished in the interest of public justice, and not in the interest of individual litigants. Civil contempts cause an injury to a party to a civil action. The act need not necessarily be willful, and they are punished by a fine awarded to the individual litigant, as an indemnity for his loss, and payment of which is enforced by the compulsory process' of the court executed in his behalf; and conviction of such a contempt involves a judicial determination that the party’s rights or remedies have been defeated or impaired by the contemptuous act. Hence, it follows that as a party cannot be said to be injured, who has not shown himself to be entitled to the equitable right or remedy which has been awarded to him, the court, in determining whether a person is guilty of a civil contempt, will look into the facts of the case, and see if they present an occasion for equitable relief. Such are the cases of Erie Railroad Co. v. Ramsey, 45 N. Y. 637, and People ex rel. Cauffman v. Van Buren, 136 N. Y. 252; 49 St. Rep. 378. Those were civil contempts, and where, in the opinion, the term “jurisdiction” is used, it was not intended to refer to the power of the court to hear and determine the application for the injunction, but to the occasion for the exercise of that power, which is ‘'equitable jurisdiction,” as that term is used and understood in equity jurisprudence. As already pointed out, two questions were properly before the court in the cases cited—First, the question of abstract power in the judge who granted the order; and, second, was thp plaintiff entitled to the remedy awarded? Unless the latter question was answered affirmatively, the damages awarded could not be sustained ; and all that was said about the jurisdiction of a court of equity to entertain such a suit as was then before the court meant nothing more than a consideration of the question whether a proper case for equitable relief existed, on the facts presented. The discussion had nothing to do with the power vested in the court to consider and decide the case. That such power existed independently of the facts of the case was repeatedly stated in the opinion. In People ex rel. Cauffman v. Van Buren, it is true that the prevailing opinion, in its opening, proceeds to consider the question whether the court had jurisdiction of the subject-matter of the action. That was an inaccurate expression. There was no question of that kind before the court. A plea that the supreme court had no jurisdiction of the subject-matter of an action would be a plea in bar, because, if that court has no jurisdiction, no court in the state has; and as to any question arising under the laws of the state, and between its citizens,, such a claim would be absurd. The jurisdictional question, in that case, was not as to the subject-matter of the action, but whether the affidavits presented to the county judge brought the case within the provision of the Code, so as to authorize that officer to grant the preliminary injunction. What the learned judge who wrote the prevailing opinion in that cáse intended to demonstrate, and what he did demonstrate, was that the facts set out in the affidavits presented a proper case for equitable cognizance, or, in other words, that there was “equitable jurisdiction,” as the term is generally understood ; and that question was a pertinent one to the case, it being one of civil contempt. There is a clear distinction between the term “jurisdiction,” in its strict meaning, and .as generally used in equity jurisprudence. In its strict meaning, as I have stated, it imports only the power residing in a court to hear and determine an action. But, as applied to the power of a court of equity, it is ordinarily used with more limited signification, and imports, not the power to hear and decide, but the cases or occasions when that power will be exercised. This distinction, while clearly pointed out in the best works on equity jurisprudence, has not always been observed in judicial opinions; and the expression “jurisdiction" has been used when the writers meant only to inquire whether the facts before the court presented a case for the proper exercisp of the power of a court of equity. Mr. Pomeroy has very clearly pointed out the distinction here referred to. 1 Pom. Eq. Jur. §§ 129-131. The term “equity jurisdiction," he says, “is used in contradistinction to ‘jurisdiction’ in general, and to ‘cómmon-law ‘ jurisdiction’ in particular. * * *- ‘Equity jurisdiction,’ in its ordinary acceptation, as distinguished from the general power to decide matters at all, and from the ‘common-law jurisdiction,’ is the power to hear certain kinds and classes of causes, according to the principles of the method and procedure adopted by the courts of chancery, and to decide them in accordance with the rules of equity jurisprudence. * * * If a court clothed with the equity jurisdiction, as thus described, should hear and decide, according to equitable methods, a case which did not fall within the scope of equitable jurisprudence, such judgment, however erroneous it might be, and liable to reversal, would not necessarily be null and void. * * * Equity jurisdiction may' exist over a case, although it is one in which the doctrine of equity jurisprudence forbids any relief to be given, or any right to be maintained. This conclusion is very plain, and even commonplace. Yet equity jurisdiction is constantly confounded with the right of plaintiff to maintain his suit, and obtain his equitable relief; thus, in fact, making the power to decide whether equitable relief should be granted depend upon the actual granting of such relief.” In the sensé here referred to the expression is used in the cases cited, and, when the term is used in the opin? ions in connection with the facts, it has no reference to the power of the judge who granted the order, but to the question whether the facts showed a case for equitable cognizance. The discussions which appear in the opinions, in cases of civil contempt, in reference to the plaintiff's cause of action, are not, therefore, in any wise inconsistent with, or opposed to, the rule applied in cases of criminal contempt; and in the latter class the only inquiry pertinent to the nature of the alleged contemptuous act is, was the order which has been disobeyed or resisted made by a court or officer having power to make it? An examination of the decisions in this class of cases will.show how closely the courts have adhered to this rule. And, when the facts have been referred tó, it was only in the way of argument, and the final assertion has always been that questions arising upon the facts were not to be considered in the contempt proceedings. Thus, in the Sturtevant Case, after considering the complaint, and the nature of the act enjoined, and the point raised that, it being a legislative one, the power did not exist in the courts to restrain it, Judge Johnson says: “ Whatever may be determined as to the character of this act, it is, I apprehend, plain that the question is judicial The court which is called upon to determine this question is called upon to perform a legitimate judicial function, It is exercising jurisdiction when it makes its decision, and its order, though it may be erroneous, cannot be regarded as void.”

To the same effect are the remarks of Judge Finch in the Dwyer Case, where a similar question was raised. He says: 61 Whether the act sought to be enjoined was or was not of a legislative character, was a judicial question, to be disposed of by the court acting upon the facts. If the court erred in its conclusion the remedy was by appeal, and not by disobeying its mandate.”

We are not, therefore, permitted, upon this appeal, to review the decision of Justice Barnard in granting the preliminary injunction. His decision involved the determination of every question necessary to support the order; and, in making it, he was exercising the jurisdiction conferred upon him by the constitution and laws of the state. His order was a valid exercise of judicial power, and, while the question whether such an action as was brought against the appellants could be maintained is open to grave doubt, that question is not now before the court, and cannot be determined. , Disobedience or resistance to the order was a criminal contempt.

The point that the act which it was sought to restrain was one which would be final and complete before the trial of the action does not affect the jurisdictional question. The interlocutory writs of injunction were granted by the court of chancery because of the necessity of the case, and there could be no more proper occasion for the interference of the restraining power of the court than one where the injury would be complete before the plaintiff could bring his suit to trial. Mandatory injunctions, which require of a party the performance of some act, always to some extent, anticipate the judgment of the court. It may ultimately be defer-mined that such an order was erroneous, but it is no less within the power of the court to grant it. It rests in the discretion of the court, and never can be granted, under the Code of Practice in "this state, unless an action is pending; and ample provision is made to indemnify the defendants against loss, in case it is finally determined that the plaintiff was not entitled to it Numerous instances might be cited where the final judgment could not operate upon the act sought to be restrained. The cases instanced by Justice Cullen, of a threatened interference by a landlord with a tenant whose term would expire within twenty days, or of a contract to perform some act immediately, are fair illustrations. The threatened interference with private property, which was the case of Cercle Francais de L' Harmonie v. French, 44 Hun, 123; 7 St. Rep. 475 panel Bronk v. Riley, 50 Hun, 489 ; 20 St. Rep. 401, is a further illustration of this power. And while, in both of the cases cited, the preliminary injunction was ¡vacated, power of the court to grant it in the first instance was conceded. Injunctions which, in effect, anticipate the judgment, or give some of the relief which it is sought to obtain by the decree of the court, should be granted with caution, and only when the necessity is great. Applications therefor call for great care upon the court to which they are made. But not only the power to grant them is undoubted, but the remedial, and restraining power of a court of equity would be greatly impaired if such Vas not the rule. The conclusions of the special term upon the tacts have ample support in the evidence, and the orders appealed from are affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Brown, P. J.

license: Public Domain

text:
    Augustus Van Keuren et al., Rep’ts, v. William Starr Miller, App’lt.

      (Supreme Court, General Term, Second Department, Filed

      May 14, 1894.)

    Fobmeb adjudication—Splitting demands.
    Where one demand upon a contract is due, it may be sued for, and a judgment recovered on it is not a bar to another demand on the same contract not due at the time of the commencement of the former action.
    Appeal from a judgment in favor of plaintiffs.

      Esselstyn & McCarty, for app’lt; A. Lee Wager, for resp’ts.
   Brown, P. J.

This action was brought to recover commissions stipulated to be paid to the plaintiffs by the defendant upon the value of labor performed and materials used in the construction of a dwelling house. The only' defense necessary to be considered upon this appeal is that the claim here sued upon is a part of a cause of action made the'subject of a prior suit between the parties, and upon which judgment was recovered by the respondents. That case was before this court in 1893, and is reported in 71 Hun, 68; 54 St. Rep. 229. A recovery was there had for materials purchased by the plaintiffs, and used in the building. There was no general contract between the parties for the erection of the building; or any part of it, but the plaintiffs were to purchase the materials and furnish the labor, and to the bills therefor were to add 10 per cent., which sum was their commission or profit on the work. The contract between the parties provided that on or before the 15th day of each month the defendant should pay 90 per cent, of the value of the bills for materials and labor, and that the balance should be paid within ten days from the date of the nrml acceptance of the building. Bills for the materials and labor were to be rendered before the fifth day of each month, and bills for labor were to be made out for the exact amount paid by the builders to the men. It then provided as follows: “ On the bills so rendered, the builder shall be entitled to charge a commission of ten per cent, for his general services in connection with the work, the purchase of material, the employment of labor, and such clerical work as is necessary in connection with the execution of the work in a good and workmanlike manner.”

The appellant claims that the commissions were due monthly, and were a part of the bill for each month, and, if this contention is sound, they should have been included in the former action. A party cannot prosecute two or more actions for the same demand, and if a single cause of action is'severed, and a recovery had for a part of the claim, the judgment will operate as a bar to a subsequent action for any other portion of the same claim. And it has been held that all demands actually due upon the same contract make but a single cause of action in reference to the rule as to the splitting of demands. Bendernagle v. Cocks, 19 Wend. 207; Fish v. Folley, 6 Hill, 54. But there is no rule which requires a party to join in the same action separate causes of action, and, where one demand upon a contract is due,-it may be sued for, and a judgment recovered upon it is not a bar to another demand on the same contract not due at the time of the commencement of the first action. Butler v. Wright, 2 Wend. 369. Ho time was stipulated in the contract for the payment of the commissions on the labor and materials furnished, and, as it represented the profit or compensation of the plaintiffs, it was not due until the performance of the contract and the final completion of the building. The plaintiffs were discharged in March, 1893, and they were not entitled to sue for their commission until that date. The prior action was commenced in February. The claim here asserted was not, therefore, due when that action was commenced. The discharge of the plaintiffs terminated the contract, and they were entitled, in addition to commission upon work performed and materials furnished, to then sue for breach of the agreement; and, in the absence of any evidence justifying the discharge, they were properly allowed as damages 10 per cent, upon the cost of the work subsequent to the discharge. That sum represented the value of the contract to them. The judgment should be affirmed, with costs.

All concur.


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    William Wainwright et al., Resp’ts, v. Queens County Water Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    1. Pleadings—Averments—Conclusions.
    In an action against a water company for damages, an avdrment that “said agreement was entered into with defendant * * * for the benefit of the plaintiffs,” is a conclusion of the pleader, where the agreement did not state that it was for their benefit.
    2. Contract—Promise for benefit iOF third^ party.
    An action cannot be maintained by a person not a party, unless it is beneficial to him and intended to be'so by the parties.
    Appeal from an interlocutory judgment entered on an order overruling a demurrer to the complaint.

      Jesse Johnson, for app’lt; Dailey, Bell & Grane, for resp’ts.
   Brown, P. J.

The plaintiffs rest their right to recover solely upon the contract entered into between the defendant and the fire district. The allegation is that the defendant “ failed, neglected, and refused to comply with its agreement, * * * and that by reason thereof ” the buildings were destroyed. No negligence on the part of the defendant is alleged, or is there any assertion of omission on its part of any act, in its power to perform, to which could be attributed its failure to supply and maintain the required pressure on its pipes. The first question presented, therefore, is whether there is such contractual relation between the defendant and the plaintiff as to support this action. The allegation in the complaint which it is claimed established such relation is that “ said agreement was entered into with defendant * * * for the benefit of the residents and taxpayers within said fire district, and for the benefit of the plaintiffs.” The plaintiffs claim this to be an allegation of a fact which is admitted by the demurrer. I am of the opinion that it is only the pleaders’ conclusion as to the effect of the agreement. The substance of the resolution of the board of supervisors and the agreement entered into between the parties is set forth in the second and third paragraphs of the complaint. No individual taxpayer is named in the agreement, nor is it therein stated to be'for their benefit, or that it was intended for their benefit; nor does the defendant agree to extinguish fires. And it is clear, I think, that the allegation is a conclusion solely from the fact that its performance by the defendant would inure to the benefit of the plaintiffs and other taxpayers of the district. This is not sufficient to bring-the case within the rule that, when a promise is made by one person for the benefit of another, it may be enforced at the suit of the latter. It would-serve no useful purpose to renew the discussion that has existed upon this rule since the decision of the case of Lawrence v. Fox, 20 N. Y. 268. Many cases in which that principle has been applied seem to be ivn conflict with the rule that, in an action upon a contract, privity of contract must exist between the parties. But where the third party was specifically named in the contract, or the promisor received money or property which he agreed to pay over to the third party, who, by adopting the contract, became a beneficiary thereunder, or where the promisee was under a legal obligation to the third person which the promisor assumed as his own, and thus connected himself with the transaction, privity of contract by adoption was-spelled out. But it is now settled that, to bring a case within the rule, the contract must not only be beneficial to the third party but it must have been intended for his benefit ’by the contracting parties, Aetna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 82; Garnsey v. Rogers, 47 N. Y. 233; Vrooman v. Turner, 69 N. Y. 280. In many cases where, as in the one before the court, the performance of the agreement would be beneficial to third persons, recoveries have been denied, because the agreement was not specially intended for the benefit of those suing thereon. Turk v. Ridge, 41 N. Y. 207; Merrill v. Green, 55 N. Y. 270; Simson v. Brown, 68 N. Y. 355. This case cannot therefore, I think, be brought within the rule applicable to promises made for the benefit of third parties.

The case chiefly relied upon to support the action, and the one upon which the learned judge who decided the case at special term placed his decision, is Little v. Banks, 85 N. Y. 258. The decision in that case appears to have been put upon two grounds: (1) That the promise sued on was made for the benefit of the plaintiffs; (2) that the contract was with the state for a consideration received from it, upon which the defendants were liable to a private action at the suit of a party injured from a neglect to perform it. Upon the first ground it is distinguished from the present case in that the plaintiffs there were one of a class named in the contract for whose benefit the promise for the breach of which the action was brought was made, and for which breach the contract fixed the damages, and expressly authorized an action therefor in the name of the aggrieved party. The promise which was broken thus became a part of the consideration of the agreement, and the main question presented for the decision of the court was whether the state officers had authority to insert it in the agreement. The second ground upon which the decision rested has in my opinion no application to the present controversy. It does not support an action on contract, and is applicable only to actions for wrongs. It was first stated by Judge Selden in Weet v. Village of Brockport, 16 N. Y. 161, note, as the principle he deduced from English authorities upon which rested the liability of municipal corporations for the misfeasance and nonfeasance of its officers in relation to the duties with which they were charged as agents of the corporation. Whether it was the correct rule upon which to place municipal liability for such acts is of no importance. It is important, however, that its application was made to the liability of •officers charged with a public duty. It was applied in the cases against contractors for keeping the canals of the state in repair, of which the leading authority is Robinson v. Chamberlain, 34 N. Y. 389, and it was held there that one who, by contract with the state, assumes the duties and is invested with the powers of a public officer, is liable, for a neglect to perform such duties, to a person injured thereby. Those cases were all actions for wrongs. The opinions in Robinson v. Chamberlain all placed the defendant’s liability on the ground of neglect of a public duty, and in Bennett v. Whitney, 94 N. Y. 302, Judge Finch said the liability was for negligence by an officer in the performance of a public duty. In Little v. Banks, the state, Code Civ. Pro. § 211, made it the duty of the state reporter, 'and other officers named, to contract for the publication of the reports of the court of appeals with a person who should agree to publish and sell the reports on terms most advantageous to the public. The publication and sale of the reports was thus by the legislature made a public duty; and the person who undertook, by a contract with the state officers, to publish the reports, was thereby performing a public duty, precisely the same as if it had been specifically imposed upon him by act of the legislature, and accepted by him. The defendants in the case cited, therefore, fell within the principle stated, and were liable, not on the ground that there was privity of contract between them and the plaintiffs, but for official misconduct. But the present case presents no public duty, and the defendant, under its contract, has not undertaken to perform any.

The statute under which the board of supervisors acted js not referred to in the complaint, but, being a general law, we táke judicial notice of it. It authorizes such boards to establish fire districts in any unincorporated village in the state, and to empower such district to procure a supply of water, and purchase fire apparatus, for the extinguishment of fires therein, * * * and provide for the assessment, levy, and collection of the cost thereof upon such district in the same manner and at the same time as the taxes of the town in which the district was located were assessed and collected. Laws 1885, chap. 439. Powers similar to those conferred by this statute are granted¡ to municipal corporations of the state by their charters, or by the laws applicable to towns and incorporated villages, and it was the purpose of this act to meet the necessity for a supply of water in communities that could not avail themselves of general laws. It has never been regarded by the courts as a part of the corporate duty of a municipal corporation to supply its citizens with light, water, fire apparatus, hospitals, or any of those conveniences which to so great an extent improve the sanitary condition of the community and are beneficial to the inhabitants. The state delegates such powers as privileges. It does not impose them as duties, and, while highly beneficial to the communities, they are not regarded as beneficial to the municipality in its corporate charter. The power to perform acts or to maintain structures or systems for the supply of water and light is not equivalent to a duty to perform, and no obligation rests upon" the municipality in this regard to do the thing it has the power to do, and hence the authorities are uniform that the failure to maintain waterworks system in municipalities in such a condition that it might be determined as a fact that a fire would have been extinguished if the water supply had been sufficient does not create a cause of action against the municipality in favor of the aggrieved party. Wheeler v. Cincinnati, 19 Ohio St. 19; Vanhorn v. City of Des Moines, 63 Iowa, 447 ; Fisher v. City of Boston, 104 Mass. 94; Taintor v. City of Worcester, 123 Mass. 311; Edgerly v. Concord, 62 N. H. 8; Jewett v. New Haven, 38 Conn. 368; Torbush v. City of Norwich, 38 Conn. 225; Grant v. City of Erie, 69 Pa. St. 420. While I am not aware that the precise question decided by the authorities cited has been determined in this state, it has been decided by our courts, in cases quite analogous, that for the wrongdoing of the agents of the departments of charities and corrections and the water department the municipality is not liable. Maxmilian v. Mayor, etc., 62 N. Y., 160; Smith v. City of Rochester, 76 N. Y., 506, and cases cited. The cases of injuries occurring from defective highways have no application to the question under discussion, and need not be referred to.

I am unable to perceive how the fire district, the contracting party with the defendant, differed, in respect to procuring a supply of water, from the municipal corporations referred to in che cases cited. It had no duty to perform, but, under the act of the board of supervisors, it was permitted to exercise a power. But, unless it had a corporate or official duty, a contractor with it cannot be brought within the rule applied in Robinson v. Chamberlain or in Little v. Banks, supra. And I think it cannot be successfully claimed that territorial districts created by the lawmaking power, but not incorporated, stand in any different relation to the powers and duties which they are authorized and permitted to exercise than municipal corporations, and when, instead of supplying itself with water by a system owned and operated by the district, it contracts with a corporation to perform that service, not only is there no privity of contract between the individual taxpayer and the contracting corporation, but there is no official duty assumed by the corporation. The contracting party is responsible to the district alone, and persons who claim to have been injured because the agreed supply of water was not furnished have no cause of action against the company. The authorities upon this question in other states, with a single exception, sustain this proposition. Davis v. Water Works Company, 54 Iowa, 59; Fowler v. Water Works Company, 83 Ga. 219; Foster v. Water Co., 3 Lea, 42; Ferris v. Water Co., 16 Nev. 44; Nickerson v. Hydraulic Co., 46 Conn. 24; and to the same effect is Atkinson v. Water Works Co., 2 Exch. Div. 441. I do not see that the relation of the individual taxpayer to the company that agrees to supply water is any different than it is towards the persan who sells the fire engine or the hose to the fire district. The power of the district to contract in all cases is the same, and derived from the statute. But if, from the bursting of a defective hose or the breaking down of a defective engine, the extinguishment of a fire was made impossible, the owner of the destroyed property would .have no right of action against the vendor of those appliances. Longmeid v. Holliday, 6 Eng. Law & Eq. 562; Davidson v. Nichols, 93 Mass. 514; Losee v. Clute, 51 N. Y. 494; Coughtry v. Globe Woolen Co., 56 N. Y. 127. Privity of contract is an essential element to an action founded on a breach of contract, and, whether the action for damages resulting from the breach be in form on contract or for a wrong, it can only be maintained by a party to the contract. There is, in my opinion, no principle or authority upon which this action can be maintained, and the judgment must be reversed, and the demurrer sustained.

All concur.


text:
    Isaac Bell et al., App’lts, v. City of Yonkers, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    1. Municipal corporation—Assessments.
    Obvious errors in the description of the assessment district, contained in the printed notice of the meeting of the common council to act on the proposed sewer, dobs not invalidate a sewer assessment.
    3. Same—Errors.
    In order to set aside a sewer assessment, a substantial, prejudicial error in the assessment proceedings must be shown.
    3. Same.
    When such assessment is not subject to the objection that the'assessment district includes land omitted from the assessment.
    Appeal from a judgment in favor of the defendant.

      Ralph E. Prime, for app’lts; James M. Hunt, for resp’t.
   Brown, P. J.

This action was brought to set aside an assessment made upon plaintiff’s land for the construction of a sewer. Many defects in the assessment proceedings are alleged in the complaint, and the case before us contains 73 exceptions to the findings of the court, and to its refusal to find as requested by the plaintiffs. The grounds, however, upon which the plaintiffs have based their claim' to relief upon the argument before this court are comprehended in three general propositions: (1) That the assessment district which, by the charter of the defendant, it was made the duty of the common council to fix, included land omitted from the assessment; (2) that the notice of the time when the common council would act in relation to the proposed sewer did not correctly describe the assessment district as fixed by the common council; (3) that the assessors’ notice of the completion of their report, and of the time when they would meet to review the same, was not in the form required by the charter. The sections of the charter of the city to which we are referred, so far as they are important to be considered in connection with the questions presented, are contained in chapter 19, Laws 1887, and are as follows;

“ Section 17. Prior to contracting for any such work a plain and accurate specification of the work proposed to be constructed must be prepared. * * * The common council shall then fix a district of assessment, beyond which the assessment shall not extend, and cause to be published in one or more of the official city newspapers a notice that on a day therein to be named * * * it will act in relation to the work proposed to be constructed. A description of such district shall form a part of such notice.” ; Section 19. The assessors shall, make a report an writing of the assessment so made, and deposit the same with the city clerk, and cause to be published * * * a notice that the report has been completed and so deposited and that they will meet at a time and place therein to be specified * * * to review their report.”

It is not denied that plans and specifications were prepared, and an assessment district fixed, and the work of construction directed, by the common council in the manner provided by the charter. The charge that the assessment district included land not assessed rests upon the following facts : The communication from the water commissioners, and the plans and specifications, were referred by the common council to the street committee. The report of that committee was prepared by the city clerk. The description of the assessment district to be recommended by the committee was on a printed slip pasted to the report. The cleric, in reading over this description, thought there was an error, and he drew a line with pen and ink through, and eliminated, one course of the description, and the effect' of this was "to add to the district the rear portion of a considerable number of lots. He then found that it was correct as printed. And he intended, before the report was presented, to attach a new slip to it, but omitted to do that, and the report as presented to the common council contained the lines stricken out in the manner stated. In reading the report to the committee, however, he stated to its members that the description should be as if no erasure had been made from the printed matter; and when the report was presented to the common council, it was read as if there had been no erasure, and, as so read, it was adopted on May 12, 1890, and a resolution passed fixing the assessment district. The description of the district, however, was not actually inserted in the resolution until May 17th, when a printed slip, cut from the notice, of the time when the common council would meet to act upon the proposed sewer, was pasted into the minutes of the meeting. The description so inserted was not an exact copy of that in the report, but contained two errors which will be hereafter noticed. The appellants claim that the district as fixed by the common council was that described in the report with the erasures I have referred to, while the trial court has found that it was fixed as described in that report as if no erasures had been made. I have been referred to no provision of the charter that makes the report or the resolution of the common council conclusive evidence of what the council’s action was. Undoubtedly either the report in connection with the resolution adopting it, or the resolution fixing the district as it appeared in the minutes of the common council, would be prima facie evidence of the council’s action. But what that body did was a question of fact, and, as the evidence from the record was not consistent, parol evidence was admissible to show the fact; and it appears without contradiction, from the evidence of the city clerk, that the erasure was his act, and that neither the committee nor the common council adopted it The description was read to the council as if no erasure had been made, and upon the report as read that body acted, and the legal effect' of i ts action was to fix the assessment district according to the printed description, as if no erasure had been made on it. The argument that the common council must be presumed, in adopting the report, to have adopted it as printed, and not as read, has no force in the presence of competent and uncontradicted evidence showing a contrary result. The finding of the trial court was, therefore, in accordance with the evidence.

The changes from the description of the district as adopted and as printed in the official newspapers in the notice of the meeting of the common council to act upon the proposed sewer were immaterial, and deceived no one. They were errors, merely, that were obvious to any one reading the notice. In the district as adopted the description was, “to the southwesterly corner lot No. 145, Ri verdal e avenue; thence easterly" on a line parallel with, and twenty-five feet southerly from the southerly line of Harriot street.” In the printed notice the words “twenty-five” were made fo read “ fifty ” in one paper and “ fifty-five ” in another. But, as the course started at the southwesterly corner of lot No. 145, and ran “ thence easterly on a line parallel with Harriot street, it was of no consequence what the distance of that line from Harriot street was stated to be. It was controlled by fixed monuments, and the description in the notice did not vary the district from that fixed by the common council, and did not have the effect-to include in it additional land. The other change was of the same character. The description ran to the northwesterly corner of lot No. 73, Hawthorne avenue; thence along the rear line of lots fronting on the westerly side of Hawthorne avenue. In the printed notice it ran to the northwesterly corner of lot 72 Hawthorne avenue, which was upon the opposite side of the street, and from which the course along the rear line of lots fronting on the westerly side of said street could not be run. The error was obvious to anyone reading the description. But in considering the legal effect of the error in the notice, assuming that they did change slightly the boundaries of the district, I fail to see how the error is available to the plaintiffs. The object of making a description of the assessment district a part of the notice was that every land-owner within the district should know that his land was liable to be assessed. It was not a part of the proceedings to fix the district. It was addressed to every person within the district as fixed, and its object was to afford to such persons the constitutional right of an opportunity to be heard before the assessment was imposed. Stuart v. Palmer, 74 N. Y.183. And if it fulfilled that purpose, and met that constitutional requirement, the assessment cannot be held to be void because it was addressed to or reached parties outside of the district.. The effect of describing the first course0I have alluded to was apparently to include in the district two lots on Riverdale avenue. But the plaintiffs had no right to have the assessment spread on that property, and they suffer no loss because it has not been done. If the effect of the change was to leave out property lying in the district as fixed; a different question would be presented. The plaintiffs’ complaint comes to this: that notice of the hearing before the common council was served upon persons whose land was not within the district as fixed, and who were not liable to be assessed for the Improvement. This clearly did not injure the plaintiffs. Every one within the district had notice, and all jurisdictional require-, ments to every person liable to be assessed have been complied' with, and it is apparent, without further argument, that the error in the notice as published did not affect in the slightest degree any of the plaintiffs’ legal rights. The notice of the filing of the assessors’ report, and fixing a grievance day, substantially complied with the statute. The charter required a notice that the report had been “completed and deposited. ” The notice stated that the assessors had “assessed the expense” of extending the sewer, “made a report in writing,” which was the manner in which they were required to make it. and “had deposited the same with the city clerk,” the officer with whom the charter required they should deposit it. The statute required a notice of the time and place to be fixed by them to “review their report” The notice stated the time and place “when and where the parties interested can be heard.” No valid criticism can be made upon this notice, as it contained the substance of all that the statute required. Literal compliance with the law was not necessary.

This being an action equitable in its character, it was incumbent upon the plaintiffs to establish some substantial error in the assessment proceedings by which they were actually prejudiced. Otherwise, they are not entitled to be released from the assessment upon their lands. Morse v. City of Buffalo, 35 Hun, 615 ; In re Mutual Life Ins. Co., 89 N. Y. 530, And, while an omission to assess property situated within an assessment district is ground for declaring the assessment void, Hassan v. City of Rochester, 67 N. Y. 528; Ellwood v. Same, 122 N. Y. 236; 33 St. Rep. 260, that rule cannot be applied to this case. None of the errors claimed here to exist affected the plaintiffs or prejudiced them in the slightest degree, and no land has escaped assessment that the common council or its committee ever intended should be included in the assessment district.

The judgment must be affirmed, with costs.


text:
    Frank S. Benson et al., Resp’ts, v. Austin Corbin et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    1. Wills — Cokstkuctiobt.
    Where there is a devise to one person in fee, and, in case of his death, to another, the contingency .referred to is a death during the lifetime of the testator, unless there is some language in the instrument indicating a different intention.

      %. Same.
    An estate in fee, created by a will, will not be cut down or limited by a subsequent clause, unless the intent to so reduce it is as clear and decisiv® as the words used in giving the estate.
    Appeal from a judgment in favor of plaintiffs.

      K B. Hinsdale, for app’lts Corbin and Pratt; Davies, Short & Toivnsend, for app'It missionary societyDaly, Hoyt &. Mason, for resp’ts.
   Brown, P. J.

This action was brought to compel the defendants Corbin and'Pratt to specifically perform a contract by which they agreed to purchase from the plaintiffs real estate situated on the eastern end of Long Island. The defendants refused to accept the deed tendered to them by the plaintiffs, upon the ground that they could not convey a marketable title to the land in question, for the reason that the Domestic & Foreign Missionary Society of the Protestant Episcopal Church, had a contingent estate therein. The plaintiffs are the widow and only son and daughter of Arthur W. Benson, who d,ied in December, .1889, leaving a last will and testament, the ninth and tenth paragraphs of which are as follows :

“ Ninth. I give, devise, and bequeath to my son, Frank Sherman Benson, and my daughter, Mary B'enson, share and share alike, my house in Brooklyn, 214 Columbia Heights, and my* house at Mon tank, and all the contents of both, subject to the life occupancy of their mother, and also all my land imEasthampton, Amagansett, Napeag, and Montaulc, and any and all my other lands, wherever situated, subject to the dower right of their mother. Tenth. It is my will that in case of the death of both of my children, leaving no issue, that all my property given and devised to such children and their issue shall not pass to the branches of my family, or the family of my wife, but that all of it, personal or real, which 1 have the power to will, and also'the trust fund heretofore set apart for income to my wife, is hereby given, devised, and bequeathed to the Domestic and Foreign Missionary Society of the Protestant Episcopal Church, for the use of the society, to be expended for the current expenses within ten ypars.”

* The question presented is the oft-recurring one, whether’' the event which gives effect to the devise oyer is the death of the primary devisee in the lifetime of the testator, or whenever that event happens. If the former is the true meaning, the gift over to the missionary society was substitutionary merely, designed to prevent a lapse, and the children, upon the death of the testator, took an absolute fee. Vanderzee v. Slingerland, 103 N. Y. 47; Mead v. Maben, 131 id. 259; 43 St. Rep. 167. The defendants do not question the general rule that where there is a devise to one person in fee, and in case of his death to another, the contingency referred to is a death during the lifetime of the testator, and that this rule is uniformly applied in the construction of wills, unless there is some language in the instrument indicating a different intention. But they contend that the intention of the testator, indicated by the will, was that the devise to the missionary society should take effect upon the death of the children ■without issue, whenever that event occurred. This view cannot, in my opinion, be sustained. Little importance can be attached to the expression, in the tenth clause, that it is the testator’s will that his property should not pass to the branches of his family, meaning thereby collateral heirs. Such would be the result of the death of his children, intestate, without issue, after his own decease; but such, also, would have been the result of his own intestacy, in case lie left nor children or issue of children surviving him. By the third paragraph of the will, the testator’s house in Brooklyn and his house at Montaulc were devised to his wife for life, and in ease of the sale of either or both, with her consent, the income of the proceeds was to be paid to her. Clearly he contemplated that it might be desirable to sell these properties, and, as the will gives no power of sale, the only way that disposition could be made would be by a deed trom his children and widow. The children were to have the fee, subject to the wife’s life estate, and in this provision we have an indication that the phrase under consideration was intended to refer to a death in his own lifetime. By the fifth paragraph, one-third of the personal estate was given absolutely to his-wife, and by the sixth paragraph, one-sixth absolutely to his son. By the seventh and eighth paragraphs, he created two trust estates in his personal property,, the income from which was to be paid respectively to his son and daughter during their lives, and, upon their death, the principal to go to their surviving issue, with cross remainders to the surviving issue of the other, in case either died without surviving issue, and, 'in case of the death of both without issue surviving them, then the whole of the principal of said trusts was bequeathed to the missionary society.

lu these trusts the intention is clear that the missionary society takes upon the death of the children without surviving issue, whenever that event happens, and no reason is apparent why this direction should be repeated in the tenth clause. Nor is any reason apparent why he should have made two separate provisions for his son, one absolute in form, and the other in trust, if he intended the whole should go to the missionary society in the event of his death without issue. If such was his purpose; it is difficult to explain why he did not put all of the personal estate intended for his son in the trust. But the gift to the son is as absolute in terms as the gift of one-third of the personal estate to his wife. Again, some light upon the testator’s intention can be drawn from the character of the real estate in question. It consisted of about 10,000 acres of land at Mon tank and in Easthampton. It is not suitable for farming purposes. It has been used chiefly for grazing, but the income derived from it is insufficient to meet the taxes and other expenses connected'with its ownership. If it has any great value, it is in its adaptability for the purposes of summer residences, and during his lifetime the testator had made some sales for that purpose. He must have known that it was burdensome to hold this land, and it is not probable that he intended to prevent the sale of any of this property during the lifetime of his children. Yet, as the will contains no power of sale, it would, under the construction contended for by the defendants, be impossible to convey any title to the land while both of his children were living. The result would impose a severe burden upon them, with little chance of profit. The inference and conclusion drawn from the provisions of the will I have referred to are all opposed to the defendants’ contention and nothing.appears from a consideration of the whole instrument, or the general scheme for the disposition of the testator’s estate, to take the words used in the tenth clause out of the operation of the general rule winch refers them to a death in the testator’s lifetime. In support of this view, we may also invoke the rule that an estate in fee created by a will will not be cut down or limited by a subsequent clause, unless the intent to so reduee it is as clear and decisive as the words used in giving the estate. Roseboom v. Roseboom, 81 N. Y. 356; Byrnes v. Stilwell, 103 N. Y. 453 ; 4 St. Rep. 241. Such a result will not be declared because of a doubt arising from the meaning of the subsequent clause. We have in the sixth clause of the will before us an absolute gift of one-sixth of the personal estate to the son, and in the ninth clause an absolute devise of all the real éstate to his son and daughter as tenants in common. A doubt as to the intent of the testatoYin the use of the phrase “ death leaving no issue ” in .the tenth clause is not sufficient to cut down these absolute gifts. In the reported eases, where" such a result has been worked, there has been in the clause giving the estate some reference to subsequent limitation thereon, or it has appeared from the scheme of the will that the testator did not intend an absolute gift. Nellis v. Nellis, 99 N. Y. 505; Vanderzee v. Slingerland, 103 N. Y. 47; Buel v. Southwick, 70 N. Y. 581; Mead v. Maben, 131 N. Y. 255; 43 St. Rep. 167. It cannot, therefore, be determined that the testator’s intention was to give to his children a life estate, only, in his real estate; and the death referred to in the tenth clause must be held to refer to death in the testator’s lifetime. The children took an absolute fee, and the title tendered to the defendants was good.

The judgment must be affirmed, with costs.


author: Pratt, J.

text:
    Timothy Callahan, Resp’t, v. Wilbur H. Searles, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    False imprisonment—What is.
    Where the defendant ordered the officer to detain the plaintiff, .though only for a few minutes, it constitutes-a technical trespass, though the arrest was not made at his instance.
    Appeal from a judgment entered on a verdict in favor of plaintiff.

      William (?. Valentine (Frauds Larkin, of counsel), for app’lt; Nelson H. Baker, for resp’t.
   Pratt, J.

This is an action of false imprisonment, and the counsel for the defendant well says in his brief, that such a case would not be likely to happen in a lifetime. That such a coincidence should happen is remarkable, but I think it is clear that an arrest and detention or imprisonment were sufficiently proved to sustain a verdict for the plaintiff. The fact that the officer went into the presence of the plaintiff, inquired about the stolen property, showed his shield, and told the plaintiff to come along with him to defendant’s, was an arrest. Even if plaintiff was not arrested by a distinct order of defendant, the act of the officer was ratified afterwards at the store where the defendant ordered plaintiff to be detained until it was proved that the shoes had been a few doors from defendant’s store. A technical false imprisonment was proved, within well-settled rules of law. Bissell v. Gold, 1 Wend. 210; Searls v. Viets, 2 Thomp. & C. 224; Mowry v. Chase, 100 Mass. 79-85 ; Clark v. Starin, 47 Hun, 845; 14 St. Rep. 558. We should have been much better satisfied with the verdict if it had been much smaller, but we are unable to say that it is so excessive as to warrant us in setting it aside, Judgment affirmed.


text:
    Sophia Crozier, App’lt, v. George R. Read, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    1. Hegmgencb—Precaution.
    A party is chargeable with negligence for omitting to take a precaution, which a reasonable man would have taken, to prevent injury.
    8. Same—Question of fact.
    The question as to whether defendant’s servant was negligent was held, under the facts and eircumstances of this case, to be a proper one for the jury.
    Appeal from a judgment entered on a verdict directed by the court in favor of the defendant.

      Frederick W. Sherman, for app’lt; Maurice Dillon (Martin J. Keogh, of counsel), for resp’t.
   Pratt, J.

This is an appeal from a judgment in favor of the defendant, entered upon a verdict rendered by direction of the court at the close of the trial, notwithstanding plaintiff’s request to go to the jury. The action was brought by the plaintiff to recover damages for severe and permanent injuries caused by her being thrown from her wagon by a collision with one of the defendant’s horses. She testified that, as she was driving with her infant daughter in Port Chester, she saw a pair of defendant’s horses, in charge of a boy (plaintiff’s servant, McCarty), corning towards her. The boy was riding one bareback and leading the other by a halter. The horses were, from the time plaintiff first saw them in the distance, prancing and plunging about, so that she was frightened. She turned far out to the right,—so far that there was more than enough room for a two-horse team and large wagon to pass, and still leave rqpm on either side thereof. The boy, instead of turning out of the traveled road, or of stopping or attempting to stop the horses, took them sufficiently near to cause the accident, and then, when just abreast of her, jerked or pulled upon the halter of the led horse, causing the latter to swerve across the road, and back into plaintiff’s wagon, thereby arresting its progress with such suddenness as to throw her and her child out of the wagon. She fell upon the stone roadway, and injured her back, arm, shoulder, and legs. A conflict arises between the testimony of the four witnesses—two on each side—as to whether or not the defendant’s horses were misbehaving before the collision to such an extent as to have made it negligent to take them near the plaintiff's wagon.We think, under the testimony as it stood at the close of the trial, it presented a proper question to be submitted to a jury. The testimony on the part of the plaintiff might well justify the inference that the collision could have been -avoided by the exercise of proper care on the part of defendant’s servant. If, as claimed by the plaintiff, the horses, just previous to the accident, had become in a degree unmanageable, and were cavorting from one side of the street to the other, a jury might well infer it was' the duty of the servant to either turn the horses out of the poad, or dismount and hold them by the heads until the plaintiff had safely passed. A party can be charged with negligence for omitting to take a precaution which a, reasonable man would have taken to prevent injury, as for a positive negligent act which results in damage. Again, a jur/'might have found it was negligent, under the circumstances, to jerk the horses’ heads justas the-horses were about to pass the plaintiff. ' A sudden and violent jerk has a tendency, as everybody knows, to make a horse settle back; and, his head being turned from the wagon,_instead of towards it, the tendency would naturally be for him to back against the wagon. The jury might have thought that the boy negligently and unskillfully managed the horses at the instant of or just before the collision. If the horses’ heads had been towards the wagon, there would have been no collision, but the horses would have backed away, which is a conclusion that follows from the well-known disposition and habits of a horse not to run against any obstacle. At all events, it presents a case where twelve honest men might differ in their inferences as to the negligence of the defendant, and, if they found in favor of the plaintiff, it could not be said the verdict had no support in the evidence. It therefore appeared that the plaintiff was without fault.

Judgment reversed and new trial granted, costs to abide the-event


author: Dykman, J.

text:
    Charles Distler, App’lt, v. Long Island Railroad Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Negligence—Contributory.
    A person, who attempts to board a moving train upon a steam railroad though the conductor calls to him to get on, is guilty of contributory negligence. ,,
    Appeal from a judgment dismissing the complaint.

      Mirabeau L. Towns, for app’lt; IF. 0. Beecher, for resp’t.
   Dykman, J.

This action .is based upon negligence. The plaintiff was nonsuited at the circuit, and from the judgment dismissing his complaint he has appealed to this court. As a special train upon the defendant’s road was approaching the East New York station it slowed down for another railroad crossing, without intending to stop at the station. It was not scheduled to stop there. As the train approached the crossing and the station, which was near, the plaintiff was waiting to board it, and the conductor called out to him to get on. As he jumped upon the step of the car it started suddenly forward, and he was thrown to the ground, and seriously injured. The plaintiff was nonsuited at the circuit, and has appealed from the judgment dismissing his complaint.

It is exceedingly hazardous to attempt to board a train upon a steam railroad when in motion. According to the law as settled in this state, it is presumably negligent, and, unless such presumption of negligence is overcome by testimony offered by the plaintiffp there can be no recovery in such a case. To excuse such an act, and free the plaintiff from the charge of contributory negligence, there must be a coercion of circumstances, which did not leave the passenger the free and untrammeled possession of his faculties and judgment.” Solomon v. Manhattan Railway Co., 103 N. Y. 437 ; 3 St. Rep. 636; Hunter v. C. & S. V. Railroad Co., 126 N. Y. 18; 36 St. Rep. 367. In this case there was no coercion of circumstances, and the presumption of contributory neglihence must prevail against the plaintiff! The judgment should be affirmed, with costs.


text:
    Farmers’ Loan & Trust Company, Resp’t, v. New York & Northern Railway Company et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    I. Corporations—Mortgage foreclosure
    In an action to foreclose a mortgage given by a railroad company, misapplication of the earnings by it is not available to a stockholder as a defense.

      % Same.
    Stockholder may purchase mortgage bonds and enforce them in the usual way, though his object is to cause a foreclosure and purchase the property at the sale.
    3. Same—Stockholders.
    The relation betweeiAnajority and minority stockholders, discussed.
    Appeal from a judgment in favor of plaintiff.

      Simon Sterne and Holmes & Adams, for app’lts; David McClure, Ashbel Green, and Thomas Thacher, for resp’t.
   Brown, P. J.

This action was to foreclose a mortgage made by the New York & Northern Railway Company to the plaintiff, as trustee, to secure the payment of bonds amounting to the sum of $3,200,000. The railway company did not defend, but the defendants Holmes and Pick were permitted by the court to intervene and serve an answer to the complaint, and they .have appealed from the judgment. Prior to January, 1893, thecmajority of the bonds and stock of the Northern road, were owned by the New York Loan & Improvement Company. About January 28th, bonds to the amount of $1,700,000, and a majority of the stock, were sold by that company to Drexel, Morgan & Co., who in April, 1893, sold them to the New York Central & Hudson River Railroad Company. On July 14, 1893, the Central Company entered into an agreement with Louis Y. Bell and Henry K. Mc-Harg for the purchase of upwards of $700,000 of the bonds secured by the mortgage in suit, which agreement provided that the bonds might be used by Drexel, Morgan & Co., for the purpose of reorganizing the Northern Company, either by foreclosure or otherwise, according tó such plan as they should deem proper. The mortgage in suit was dated October 1, 1887, and the interest upon the bonds was payable semi-annually on December 1st and June 1st. Up to December 1, 1891, the interest was payable from net income only, subject to the right of the company to use the income for betterments, improvements, and other purposes. No interest was ever paid on the bonds. Coupons falling due June 1, 1892, and payable absolutely, were presented for payment, and protested. Default was also made in payment of coupons due December 1, 1892, and June 1, 1893.- The mortgage provided that, if default in payment of principal of interest should continue for twelve months after presentation of the bonds or coupons for payment, the plaintiff might, and upon request of the holders of $2,000,000 of bonds then outstanding and unpaid, should apply for a foreclosure and sale of the mortgaged property. On July 20, 1893, Drexel, Morgan & Co., holding $1,700,000 of the said bonds, and being authorized thereto by the Central Company, and also representing the owners of the Bell and McHarg bonds, requested, in writing, the plaintiff to take proceedings for the foreclosure and sale of the mortgaged property, and thereafter, on July 27th, this action was commenced.

The first defense alleged is that the earnings of the Northern Company bad been misapplied in order to bring about a default. This defense involves neither the plaintiff nor any bondholder. If there was any misapplication of the earnings prior to June 1,1892, it was the act of the mortgagor alone. It had the right to apply all the net earnings prior to December 1, 1891, to the improvement of the road, and the action of the directors was approved by the stockholders at their annual meeting, and, if the just and proper limitation of that authority was exceeded, the loss fell upon the bondholders to complain of this action. From the date eof the mortgage until the foreclosure, the appellant Holmes was a stockholder, and attended t,he annual meetings, and had knowledge of the manner in which'the income of the road was applied by the directors, while the appellant Pick purchased his stock after the default in the payment of the coupons.

The second proposition asserted as a defense is that the Central Company acquired 'a majority of the bonds and stock of the Northein Company for the purpose of destroying it as a competitor, and securing its property, and to that end so managed its business that its obligation should not be met or its default repaired. Nothing appears in the evidence to support this claim. Defaults on two coupons had occured before the Central Company became the owner of any of the stock or bonds, and it exercised no control over the management of the Northern Company after it acquired the stock. As a stockholder, it was in no respect illegal for it to purchase and hold the bonds, or to enforce their payment in the usual way. Officers and directors of a corporation may own its bonds and enforce their payment. Duncomb v. N. Y., H. & N. R. R. Co., 84 N. Y. 190 ; Id., 88 N. Y. 1; Harpending v. Munson, 91 N. Y. 652. The Central Company had a right, so long as it violated no duty owing to the mortgagor or its stockholders, to avail itself of all the stipulations of the contract contained in the bonds and mortgage, and although its object may" have been to cause a foreclosure, and to become the purchaser of the property at the sale, that purpose was not illegal, and afforded no ground of complaint on the part of the appellants, and is not available as a defense to this action. It certainly was under no obligation to advance money to repair the default which had occurred before the purchase of the bonds. Evidence was offered, and excluded upon plaintiff’s objection, which, it is claimed, would have tended to show a diminution of revenue of tlie Northern road subsequent to the purchase of the stock by the Central Company. This evidence was not pertinent to any issue in the case, and had no proper tendency to show any unlawful action upon the part of the Central Company as a stockholder. Its rejection was not error.

The third defense is that the request of holders of $2,000,000 of the bonds was requisite to the commencement and maintenance of the action ; that the Central Company had no power to purchase bonds and stocks of another railroad corporation, and that an action instituted upon its request could not be proceded with. This contention rests upon a misconception of the mortgage. The provision applicable to the case is as follows:

“In the event of any of the defaults mentioned in the next preceding article, the party of the second part may, and upon the written request of the holders of $2,000,000 of said bonds * "/r shall, apply to any court having jurisdiction * * * for a foreclosure and sale of the mortgaged premises.”

Two cases are provided for. Intone, the trustee may act upon his own motion ; in the other, his action may be coerced. It was not therefore essential that plaintiff should have alleged in its complaint that it had been requested to foreclose, and it is not essential to the support of the judgment that that fact should have been proven upon the trial. Morgan's L. & T. Railroad & Steamship Co. v. Texas Cent. Ry. Co., 137 U. S. 171; Guaranty Trust & Safe-Deposit Co. v. Green Cove Springs & M. R. Co., 139 U. S. 137. If the fact be that there was any informality in the request made, the plaintiff may, upon this appeal,, avail itself of the provision of the mortgage quoted, as it would be a useless proceeding to reverse the judgment upon this ground, when, upon a new trial, tlie plaintiff would be entitled to the same relief without proof that any request was made. It is of no importance, therefore, to this case whether the Central Company’s act in acquiring its bonds and stock was authorized or not. Ownership of the bonds is not in question, and the validity of that act may be left to be decided when it shall be questioned by some person interested in its determination.

The main argument, however, which the learned counsel for the appellant has addressed to us is based upon the assumption that the Central Company became an owner of a majority of the stock of the Northern Company. As the disability of the Central Company would apply equally to the ownership of stock and bonds, we shall assume, for the purpose of this appeal, that it had the power to purchase these securities. The meaning of § 40, chap. 588, Éaws 1892, is, we think,, hardly debatable, and power existed under that statute to acquire ownership of the stock and bonds in question. If we are wrong, however, in this, the argument addressed to the court, and which I shall now briefly, consider, has no force and no application to the case, as it rests solely upomthe ownership by the Central Company of a majority of the stock in the Northern Company. The argument is that the Central Company, as the owner of the majority of stock, occupied' a sort of trust relation towards the minority stockholders, which in some way is available to them as a defense to this action. I have been unable to learn from the appellant’s written or oral argument what is the practical application to this case of the relation that he claims to exist between majority and minority stockholders. If. it is intended to assert the Central Company could purchase bonds of the Northern road only in trust for all stockholders, the answer is that there is no such rule of law. Undoubtedly the holders of the majority of the shares of a corporation owe to the minority much the same duty which directors owe to all the stockholders. They may not use their power to obtain advantages at the expense of the minority, and, when that is done, equity will interfere to restrain the wrongful acts. All must be permitted to share equally in the benefits, and the law requires, both from the officers of the corporation and the majority stockholders, the utmost good faith in the management and control of the corporate business and property. But, between themselves, stockholders owe no duty to each other. In the purchase and control of his- stock, or any of the corporate obligations, each stockholder acts for himself, and he is in no sense a trustee for others. Gamble v. Queens County Water Co., 123 N. Y. 91; 33 St. Rep. 88. The Central Company purchased the bonds after default in payment of the coupons. It had a right to hold and enforce these obligations, and was subject to no restraint in so doing, except such as flowed from the terms of the contract. As a stockholder, it was not responsible for the default, and was under no obligation to contribute money to pay the interest or relieve the Northern Company from the effects of the default. It could remain passive until foreclosure, and become a purchaser of the mortgaged property, or receive payment of its bonds from the proceeds of the sale, without trespassing upon any right of the other stockholders. But assume it intended to compel a foreclosure, and for that purpose entered into the contract with McHarg and Bell for the purchase of additional-bonds, so that it should control an amount sufficient to make the request of the trustees necessary to compel its action, there is nothing in the act of purchase which violated any legal duty which it owed to the corporation or the other stockholders. It had a right to purchase the bonds, and, having the bonds in, had a right to enforce their payment But liad it not also the right to request the trustee to foreclose, if such request was essential to the enforcement or protection of its rights as a bondholder? Clearly it had a right to avail itself of every stipulation in the mortgage, and no duty tó any other stockholder required it to forego or surrender any of the rights annexed to the bonds. But, as I have already pointed out, this question is not of the slightest consequence to the appellants, as no request was necessary to institute this action, and the absence of such would not lead to a reversal of the judgment. There is no error in the judgment, and it must be affirmed. We have examined the questions arising upon the appeals from the orders denying motions for a change of the place of trial, for a reference, and for a postponement of the trial. No error appears upon any of the appeals, and the orders are affirmed. Judgment and orders are affirmed, with cost to be paid by the appellants.


author: Brown, P. J. Pratt, J.

text:
    Annie Foley, App’lt, v. Royal Arcanum, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    1. Insurance—Life—'Warranty.
    Statements in an application, where the insured warrants the truthfulness of the statements in his application and consents and agrees that any untrue or fraudulent statement made therein shall forfeit all rights under it, are warranties.
    53. Witness—Physicians.
    The amendment of 1891 to § 836 of the Code does not apply to an action on a life insurance poliey, issued before the amendment and expressly waiving the privilege.
    Appeal from a judgment dismissing the complaint on the merits.

      John M. Gardner, for app’lt; S. M. Lindsley, for resp’t.
   Brown, P. J.

This action was brought to recover upon a benefit certificate issued by the defendant to Jeremiah B. Foley, and made payable upon his death to the plaintiff, who was his wife. By the terms of the certificate the statement made by Foley in his application for membership in one of the defendant’s councils, and the statements certified by him to the medical examiner, both of which were filed in the supreme secretary’s office, were made a part of the contract. The application contained the following;

“ I have no injury or disease which will tend to shorten my life. Am now in good health. * * * I do hereby warrant the truthfulness of the statements in this application, and consent and agree that any untrue or fraudulent statement made herein, or to the medical examiner, * * * shall forfeit the rights of myself and my family * * * to all benefits.”

To the medical examiner he stated that he had never had any serious illness or injury, or undergone any surgical operation, and never had been subject to or had difficulty in urinating, excessive or scanty secretion of urine, and never had hemorrhoids, or any disease of the genital or urinary organs; and he warranted the truthfulness of the statements so made. The defense was that these statements were false ; and upon the trial it appeared by the testimony of the physicians who had treated and prescribed for .Foley prior to the application. for membership in the council of defendant, and by other witnesses who knew him intimately and saw him frequently, and to some of whom he had made statements as to bis health, that for some months prior to his application he had hemorrhoids; also, a disease of the urinary organs and difficulty in urinating. That he suffered severely from these diseases was clearly established, if the testimony of the-defendant’s witness was to be believed; and the inference was also permitted from the evidence that he had been a patient in Roosevelt Hospital in the month of Hovember, 1889. The application for membership was made in March, 1890. The certificate was issued on the 5th of April following, and in June following he became a patient in the New York Hospital, where a surgical operation was performed upon him, and where a few weeks later, he died. The learned trial judge held that the falsity of the statements made in the application was established by uncontradicted evidence, and, as a result, the plaintiff could not recover. The appellant asks to reverse the judgment on the following grounds: First, that the statements referred to were not warranties, but representations, and the question of their materiality was thus presented, and should have been determined by the jury ; second, .that there was a conflict of testimony upon the'question of their truth or falsity; third, that evidence of physicians who had attended Foley in a professional capacity was admitted, contrary to the provisions of the Code of Civil Procedure.

It is, I think, of no importance to this appeal whether the statements be regarded as representations or warranties. Their materiality to the risk is apparent, and, if untrue, the policy was avoided. But the trial court properly held that the statements were warranties. By the express language of the certificate, the statements made in the application and those certified to the medical examiner were made a part of the contract. Their truthfulness was warranted, and it was agreed that, if they were untrue, the applicant and his family and dependents should forfeit all benefits thereunder. The two papers were, therefore, to .be construed as a single instrument, and all the statements contained in the application and the answers made to the medical examiner were thus made warranties, and must be substantially true, or the policy will be avoided. Foot v. Ætna Life Insurance Co., 61 N. Y. 571; Cushman v. U. S. Life Insurance Co., 63 N. Y. 404; Insurance Co. v. Raddin, 120 U. S. 183.

There was no substantial contradiction of the testimony introduced by the defendant. The plaintiff’s evidence was drawn chefly from the friends and associates of Foley, and showed nothing more than that they had not observed, in his daily conduct, indications of the sickness for which the physicians had treated him. The certificate of Dr. Taylor, the medical examiner of the defendant, spoke only of his examination at the time of the application, and had no necessary tendency to show a condition of health during the year 1889. All this evidence was negative in its character, and raised no question for the jury to consider.

The testimony of Foleyls attending physicians was properly admitted, under the conditions and stipulations of the contract. In re Coleman, 111 N. Y. 220; 19 St. Rep. 501; Alberti v. N. Y., L. E. & W. Railroad Co., 118 N. Y. 77; 27 St. Rep. 865. There was an express waiver by the assured of the provision of the Code, and a consent that any physician otherwise disqualified might testify concerning his health and physical condition. The amendment of section 836 of the Code in 1891, providing, in substance, that the provisions of the three prior sections could only be waived on the trial, assuming it has the effect claimed for it by the appellant, has no application to this case. • Laws must be construed so as to be prospective, and not retrospective, in tfieir operation, unless they are specifically made applicable to past transactions (People ex rel. Newcomb v. McCall, 94 N. Y. 587); and there is no evidence that this amendment was intended to apply to old cases. Moreover, at the time of its enactment, the right of all parties were fixed. The contract was made effective by delivery in April,' and the insured died in July, 1890. The defendant’s liability must be adjudged upon the agreement as it then stood. It was entirely competent for the parties to stipulate what evidence should be received as to any fact upon which defendant’s liability was made conditional, and the legislature could not change or impair the obligation. To exclude the right to avail itself, upon the trial, of the evidence of the attending physicians, would be to destroy the contract made by the parties, and impose an obligation upon the defendant which it had not assumed. The legislature could change the rule of evidence, but it could not make the new rule applicable to a past transaction, if its effect was to impair the obligation of a contract. Ho other question needs consideration. The judgment must be affirmed, with costs.

Dykman, J., concurs.

Pratt, J.

(concurring). The ruléis well settled that upon the trial of a case at circuit, if the weight of evidence is so decided in favor of either party that a verdict against such party would beset aside, it is proper for the judge to direct a verdict. In this case the weight of the evidence was so decidedly against the' plaintiff that a verdict in his favor would have been immediately set aside, and the judge very properly dismissed the complaint upon the merits. The action was upon a mutual or fraternal certificate or policy issued by the defendant to the husband of the plaintiff. Prior to the issuance of the certificate, there was an application and medical examination, which, by the terms of the certificate, was made a a part of the contract. Under the questions and answers contained in the examinations, and signed by the deceased, beneficiary, was the following clause: “ I hereby warrant the truthfulness of all the answers given to the above questions.” The court was clearly right in holding that this was a warranty. Ripley v. Ætna Insurance Co., 30 N. Y. 157; Clemans v. Supreme Assembly, 131 N. Y. 485 ; 43 St. Rep. 571; 1 Bid. Ins., § 543, and other cases too numerous to refer to. It was proved beyond question that these answers, in many particulars, were false and fraudulent. These matters avoided the certificate. It is immaterial whether the answers made by the assured were considered as warranties or representations to obtain the certificate. If false, they equally avoid the contract. Cushman v. U. S. Life Ins. Co., 63 N. Y. 408; Higbie v. Guardian Mut. Life Ins. Co. 53 N. Y. 603; 1 Bid. Ins., § 531. -The weight of evidence was so clearly in favor of the defendant that no other course was open to the court except to dismiss the complaint. Dwight v. Germania Life Ins. Co., 103 N. Y. 341; 3 St. Rep. 115, and caseá there cited. What I have now stated is upon the assumption that the court was right in permitting the doctors to testify as to information they acquired while attending the insured in a professional capacity. We think the court, in this respect, committed no error, as the privilege contained in section 834 of the Code of Civil Procedure had been expressly waived by the insured. In the application for insurance, which is a part of the contract, are the following words:

“ And for myself, and for any person accepting or acquiring any interest in any benefit certificate issued on this application, I hereby expressly waive any and all provisions of law now existing, or that may hereafter exist, preventing any physician from disclosing any information acquired in attending me in a professional capacity or otherwise, or rendering him incompetent as a witness in any way whatever; and I hereby consent and request that any such physician, testify concerning my health and physical condition, past, present, or future.”

There can be no doubt that such a waiver was effective, and had reference to a trial upon the policy after the death of the insurede as there could be no occasion to use it until such time. In r‘ Coleman, 111 N. Y. 220; 27 St. Rep. 865; Alberti v. N. Y., L. E. & W. Railroad Co., 118 N. Y. 77; 19 St. Rep. 501; Rosseau v. Bleau, 131 N. Y. 177, 184; 42 St. Rep. 871; Cahen v. Continental Life Insurance Co., 41 Supr. 296; Railroad Co. v. Martin, 41 Mich. 667; Adreveno v. Association, 34 Fed. 870. This agreement to waive the privilege was an essential part of the contract, as much so as the payment of the premium. The defendant was not prevented from showing what were the real facts, by the production of the medical certificate of their own medical examiner, any more than they would have been from showing that any witness they put upon the stand was mistaken or incorrect upon some point in his testimony, so long as it was not done to impeach him. No point is made by the plaintiff as to change of beneficiary, or that the declarations of the insured were not properly received in evidence. There are no other points raised that require notice. Judgment affirmed, with costs.


author: Dyicman, J.

text:
    Elizabeth Gray, Resp’t, v. James C. Gray, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Divorce—Alimony—Pendente lite.
    Where there is some competent evidence of defendant’s guilt in an action by a wife for divorce on ihe ground of adultery, she will be allowed alimony pendente lite.

    Appeal from an order directing payment of counsel fees and alimony pendente lite.

      Baldwin & Boston, for app’lt; Man & Man (Frederick li. Man, of counsel), for resp’t.
   Dyicman, J.

This is an appeal from an order in an action brought by the wife against her husband for an absolute divorce on the ground of adultery. By the order the defendant was directed to pay $250 for a counsel fee, and $100 a month for alimony. The order should be affirmed, on the opinion of the judge who made it, with $10 costs, and disbursements.

All concur.

The opinion of Mr. Justice Cullen at special term is as follows s While it may be that under § 1757, Code Civ. Proc., a party to an action for divorce can demand, as a matter of right, a jury trial on the issue of adultery only, still, under § 971, it is within the power of the court to direct that any issues be so tried. I shall therefore follow the ordinary practice, and direct that all the issues relating to that cause of action, whether raised by plaintiff or defendant, be submitted to the jury. The allegations relating to plaintiff’s desertion are immaterial on that cause of action, and their submission would only embarrass the trial of the other issues. The effect of the residence of the parties it is not necessary to consider or pass upon now. That can properly be left to any motion made on the verdict. As to the right of the plaintiff to alimony and counsel fees, this case is to be distinguished from the case of Langley v. Langley (not reported). Here there is some competent evidence of the defendant’s guilt, to wit, his admission that he-, had no defense to the suit. I am of the opinion that plaintiff shows she is without means of her own for support or maintenance of the suit. The fact that her mother will undoubtedly prevent her suffering does not relieve defendant from his liability, to be assumed by one upon whom it does not rest in law. The issues, as proposed, will stand. Alimony, $100 a month; counsel fee, $250,—allowed plaintiff.