text:
    Giovannia Pullutro, Pl’ff, v. The Delaware, Lackawanna & Western Railroad Co., Def’t.

      (Superior Court of Buffalo, Trial Term,

      Filed March 10, 1891.)

    Negligence—Evidence—When new trial granted.
    Where the evidence clearly shows that in the accident, for which damages are Claimed, there was no negligence on the part of the defendant, and the plaintiff -did not act as an ordinarily prudent person would under like circumstances, a verdict for plaintiff will he set aside.
    Motion for a new trial by defendant upon the minutes of the court.'

      Simon Fleischman, for pl’ff; John G. Milburn, for def’t.
   Hatch, J.

—The record upon which this case was brought before the general term, upon the appeal taken by plaintiff from the judgment of nonsuit disclosed, and the court in disposing of it assumed that the cars, between which the plaintiff was caught, were not provided with bumpers or dead woods, or other appliance, to prevent the cars from coming in immediate contact. Pullutro v. Delaware, L. & W. R. R. Co., 7 N. Y. Supp., 511.

That it was within the province of the jury to determine whether, by a failure to provide such appliances the master had not failed in its obligation to provide reasonably safe and proper implements and machine for the use of plaintiff in and about the performance of the duty required of him, and that if they found there was such failure, and if such absence of appliance was the proximate cause of the injury, then defendant’s negligence was established.

It was also assumed, that from the evidence, the jury would be authorized to find that the injury was inflicted by catching plaintiff’s leg between the ends of the car, and if the bumpers were present such accident would not have happened, as the cars would have been prevented from closing up. Id., 514. Under such circumstances, whether plaintiff was guilty of contributory negligence was also deemed a question for the jury. The evidence upon the new trial is essentially changed, and just how the injury was inflicted has ceased to be a disputed question of fact The plaintiff testifies that when he boarded the train he went between the cars, placed one hand on the end of one car, and the other hand upon the car next it, threw one leg up and was bringing the other up when it came between the drawheads, where the link was, and was crushed. The witness Minelli testified that plaintiff’s leg was caught in the middle of the car, and he indicated upon the diagram, used upon the trial, the place, which shows it to be the point where the drawheads were. The witness Manganzo states that plaintiff’s leg was caught at the place where the cars were coupled together. This constitutes the whole of plaintiff’s proof upon this subject. Instead, therefore, of the proximate cause of the accident being the absence of an appliance-to prevent the cars from coming together, it is beyond dispute-that their presence or absence was not even a contributing cause of the injury. The proof is without dispute to show that thedrawheads, where the cars were coupled, receive the first blow,, when the cars come together, and they give some inches; thus when his leg was between these, if they came together it must be caught without reference to the presence or absence of buffers, or dead woods. It is not claimed, nor could it be successfully, that there was any neglect of duty by defendant in the construction or placing of the drawheads. They were necessary in order to fasten the cars together. That they are made to meet, and will close together, in the ordinary operation of the train, is so apparent that a person endowed with ordinary understanding has but to glance at them to be informed, and there was nothing to obstruct his vision.

Under such circumstances, with the cars in motion, the placing of any portion of the person between them is so apparently dangerous, that the act can only be characterized as heedless and rash. I have not over-looked the suggestion that, by the absence of any appliance to get upon the car, the plaintiff was necessitated to go between them; that he was greatly hurried, unacquainted, in a large degree, with his surroundings, not instructed, had but recently been employed, and adopted the usual method by which the other men got upon the train; yet, with all these considerations, the use of his eyes would at once have disclosed the danger, and no matter how much he was hurried or ill-informed, the faculty which would disclose the danger could be used much quicker than he could act. His failure to do so resulted in the injury, as there is nothing to show that he could not have gotten up without placing his leg between the draw-heads. I am, therefore, unable to see how his act can be harmonized with the rule, requiring that he must act as an ordinarily prudent person would have acted under like circumstances.

It follows, that the verdict must be set aside, and a new trial ordered, with costs to abide the event.


source: Caselaw Access Project

author: Hatch, J.

license: Public Domain

text:
    The People of the State of New York, Pl’ffs, v. Gottschalk Olson, et at., Def’ts.

      (Superior Court of Buffalo, Criminal Term,

      Filed January 10, 1891.

    Indictment—Conspiracy—Subd. 4, § 168, Penal Code.
    An indictment, drawn to cover an offense created by sub-division 4, § ..68 of the Penal Code, charged the defendants with the crime of conspiracy, in attempting to cheat and defraud the city of Buffalo out of a sum of money, by making it pay an exorbitant sum of money for the construction of a public work by means of false bids. Held, that the word “cheat,” as used in the alternative clause of the section, in respect to the present subject matter, retained the significance which it possessed at common law.
    Demurrer to an indictment charging defendants with conspiracy to cheat and defraud.

      Frank Brundage and Lyman M. Baker, for def’ts; Giles Stilwell, for def’t Williams; Geo. T. Quinby and W. L. Marcy, for the People.
   Hatch, J.

—The indictment is drawn to cover an offense created by subdivision 4, § 168, Penal Code, and charges the* defendants with the crime of conspiracy, in attempting to cheat and defraud the city of Buffalo out of a sum of money. Believed of legal verbiage, the indictment charges that the defendants conspired among themselves and with other persons to cause and compel the city of Buffalo to pay an extortionate and exhorbitant sum of money for the construction of a public work, and thereby to fraudulently obtain from the said city the sum of $2,000. The means alleged, briefly stated, are that the city had lawfully ordered the construction of a sewer in Seneca street; that in pursuance of its charter it duly advertised for sealed proposals for the performance of the work; that the defendants were contractors in said city engaged in the construction of municipal works; that after having prepared bids for the performance of said work they conspired and agreed among themselves and with others to suppress and withhold the bids so prepared, and to cause other bids to be fraudulently prepared by four of their number and submitted to the authorities of said city authorized to receive the same; that said last bids should not be for a less amount than $5,000, whereas the just and reasonable cost of said work did not exceed the sum of $3,000. That they also confederated and combined together to prevent any other persons from making bids and proposals for the performance of said work. That when a bid for the work should be accepted the defendants were to meet, and by bids among themselves the work was to be awarded to the lowest bidder at the price of his bid, who should perform the work and receive the pay therefor, and the excess between the bid and the sum to be paid by the city to be divided ratably between the defendants. The indictment then alleges the means used and the overt acts done in pursuance of said conspiracy, by which it appears that three bids were prepared and submitted; that they were the only bids made, the lowest of which was the sum of $5,000. That thereafter said defendants met and bid among themselves for the performance of said said work; that the lowest bid so filed was for the sum of $2,250, for which one of their number agreed to perform the work. The demurrer admits the allegations of the indictment, but the claim is made that taken as true no crime is charged. At common law the facts alleged in this indictment would clearly constitute the offense of conspiracy within the definition laid down by Lord Denman in 4 B. & Ad., 345, that “ A common law conspiracy consists of the combination of two or more persons for accomplishing an unlawful end by lawful means, or a lawful end by unlawful means.”

In the case before us the means used were in themselves lawful, but the result sought to be accomplished was fraudulent and unlawful. The doctrine has since this case been extended in England, and the only limitation which seems to have remained, in the case of a combination of individuals, is that the thing sought to be accomplished must have been civilly wrong. This was carried so far as to uphold an indictment for a “ knock out ” at an auction, when the reason assigned was that the combination presented the false appearance of competition, and thus procured the consent of the auctioneer to a transfer of the property. Criminal Conspiracies, etc., Wright & Carson, 28.

Great difficulty was experienced in this state in settling the common law definition of conspiracy. The case of Lambert v. The People, 9 Cow., 578, is a leading case upon this subject, and furnished the basis for a settlement of the law, so far as a statutory definition may be said to settle it. In this case the court of errors, by the casting vote of its president, reversed the decision of the supreme court, and announced the offense of conspiracy to be either a combination to do a criminal act or to do an act not in itself criminal by criminal means. In other words, the object to' be accomplished must be. criminal or the means used must be so. And the court further held, that as property might be obtained fraudulently through cheating, and still not be indictable, it was essential that the means be stated in the indictment so that it might be seen whether a crime was intended. This decision was announced about 1828, and shortly after the legislature passed an act by which the crime of conspiracy was defined. Having especial reference to the offense alleged in this indictment, the statute provided § 8, “ if two or more persons shall conspire either,"' subd. 4, “to cheat and defraud any person of any property by any means which are in themselves criminal,” or 5, “ to cheat and defraud any person of any property by any means which, if executed, would amount to a cheat.” This definition provided for two contingencies when accompanied by overt acts: First, to cheat and defraud by criminal means ; second, to cheat and defraud by any means which, if the fraud was accomplished, would amount to the offense of cheating. No change was made in this statute until it was incorporated into § 168 of the.Penal Code, when §§ 4 and 5 were united in one subdivision, the phraseology was changed, but the sense and construction remains the same.

The particular question here presented is as to the true construction to be given to the word cheat in the alternative part of the section, it being claimed by defendants that the word imports, and is limited, to the offense stated in chapter 6 of the Penal Code, headed, “False Personations and Cheats.” And by the People, that the word has its usual and ordinary significance, and need not necessarily import a criminal cheat as therein referred to. If the former construction is to obtain, no offense is stated under this subdivisionif the latter, the offense stated is complete. Except as discussed in a multitude of cases no attempt has been made to formally define a cheat. The early decisions leave the question in an unsettled condition, are not harmonious, and did but little beyond applying the law to particular facts. Blackstone, while prolific in definition, contents himself by indicating certain things which are constituted at common law cheats, but he does not formally define the offense. Chase’s Blackstone, 921.

The Penal Code, before referred to, is in like manner silent. It states certain things, which may be said to be cheats, although the offenses defined are called by other names; but no attempt is made to define, in terms, what constitutes a cheat.

Mr. Wharton says: “ Cheats punishable at common law may, in general, be described to be such cheats (not amounting to felony) as affect, or may affect, the public, and are effected by deceitful or illegal practices, against which common prudence could not have guarded.”

In People v. Miller, 14 Johns., 371, it is said: “ A fraud indictable at common law must be such as would affect the public, and such as common prudence would not be sufficient to guard against. As the using of false weights and measures, or false tokens, or where there has been a conspiracy to cheat.”

In People v. Stone, 9 Wend., 188, it is stated: “A fraud to be indictable at common law must be such as affects the public, or is calculated to defraud numbers, and which ordinary care and caution cannot guard against; * * * or if there, be a conspiracy to cheat; for common care and prudence are not protection against these.”

In People v. Lambert, supra, Spencer, Senator, in speaking of, criminal cheats, says: “ At the common law, it must be such a fraud as would affect the public, or as common prudence cannot guard against.” Fraud and cheat are here used as convertible terms. These authorities seem to establish that at common law a distinction was made between deceitful acts, which, when committed against the individual, amount only to a private fraud, and not indictable, become indictable, when embraced in a combination, where the object of the combination is to defraud and cheat the public.

There is nothing in the discussion in the Lambert case which raised any controversy over the proposition stated in the foregoing authorities, with respect to cheats affecting the public, and the notes of the revisors who formulated the statute, the outgrowth of that case, are also silent; but they do say, in speaking of the great difficulty attendant upon defining the crime of conspiracy, that it is a sacred principle that no man shall be compelled to accuse himself of any crime. “Yet, such must be the result, or the ordinary jurisdiction of courts of equity must be destroyed by declaring any private fraud, when committed by two, or any consent to commit it, criminal.”

Not only is nothing said which indicates that any change was necessary or contemplated, but the reason assigned by them in placing the limitation upon private frauds entirely fails when applied to such frauds as affect the public. Making application of these rules to the indictment here, we find it alleged that defendants, for their benefit, caused to be made and signed false, fraudulent, exorbitant and extortionate bids and proposals for the construction of said sewer and caused them to be filed. That none of said bids were for less than $5,000, while the just, true and reasonable cost for such construction did not exceed the sum of $3,000, and thereby to cheat and defraud the said city and others out of $2,000.

The means by which the fraud was to be perpetrated is clearly set out, and from those allegations it appears that the combination was secret; that the bids which were filed, while regular upon their face, were false in fact, in that they did not and were not intended to represent just and true bids for the construction of the work, but were the means used to unlawfully create a fund to be distributed among defendants.

I am of opinion that these allegations establish a conspiracy at common law to cheat and defraud the public by means which common care and prudence were not sufficient to guard against. If this conclusion be correct, the question confronts us, has the incorporation of the provisions of the Revised Statutes in the Penal Code changed the law? It is evident to my mind that no change was contemplated and none made when the statutory definition was formulated. The words in respect to the present subject matter retained the significance which they possessed at common law. We have already seen that the statute, now in the Code, is the same as the Revised Statutes; that the consolidation and change of phraseology has worked no change of substance is conceded ; there are no words of qualification or limitation, and it would seem that the intention of the legislature was to continue the act and offense as the same existed under the Revised Statutes. Davis v. Davis, 75 N. Y., 221.

Such being its construction, the offense charged, if executed, would have constituted a cheat, and consequently is an offense within the statute. It is claimed that the acts charged as an offense, simply show a combination of individuals to obtain a larger compensation for their work, and that the law^ not only does not characterize such acts as criminal, but authorizes them. I do not so read the indictment. The acts as charged show that it was the purpose and object of defendants not to obtain a larger sum for the performance of the work, but to create a large sum to be distributed among them, representing no equivalent whatever to the city. The work was to be performed at its fair price by one, the excess was to be divided, not as the representative of the increased cost of the labor, but as the fruits of the conspiracy, for no work was to be done by those who participated therein. The claim that the city could not be injured, as it possessed the power and reserved the right to reject any and all bids, is sufficiently answered in People v. Lord, 6 Hun, 390, and People v. Stephens, 71 N. Y., 527, where it is held that a combination of contractors, under which work is to be secured without competition is against public policy, is fraudulent and illegal. Examination of the allegations of the indictment, claimed to be technically defective, has been had, and the conclusion is reached that it may be upheld within §§ 275, 284, 285, Code Criminal Procedure. People v. Dimick, 11 N. Y. State Rep., 749.

These views lead to the conclusion that the demurrer should be overruled and the defendants directed to plead.


text:
    Magdalena Murzynowski, Administratrix, Pl’ff, v. The Delaware, Lackawanna & Western Railroad Company, Def't.

      (Superior Court of Buffalo, Trial Term,

      Filed March 10, 1891.)

    Evidence—Settlement op cause op action—Obdeb op subrogate—New trial.
    In an action for damages brought by an administratrix against a railroad company, the answer alleged as a defense that prior to the commencement of the action, another action had been brought by the same party, which had been settled and compromised by the plaintiff, and a release given of all liability for and on account of the matters alleged therein. After the trial defendant offered in evidence an unverified petition of plaintiff, addressed to the surrogate, asking leave to settle the former action, also the surrogate’s order granting the same, and a release, under seal, executed by plaintiff as administratrix, acknowledging satisfaction of the cause of action and payment of $250. Objection was made and the evidence excluded. Held, error; that the verdict for plaintiff would be set aside and a new trial granted.
    Motion by defendant for a new trial made on the minutes of the court, and to vacate and set aside the verdict of a jury in favor of plaintiff.

      John G. Milburn, for def’t; George W. Cothran, for pl’ff.
   Hatch, J.

—The answer of the defendant herein alleged as a defense that prior to the commencement of the present action another action by the same party, had been begun to recover damages for the same cause of action, which former action had. been, upon order of the surrogate of Erie county, settled, and compromised by the plaintiff, upon the payment to her of the sum of $250, and that thereupon plaintiff had executed and delivered, to defendant a release of said cause of action, and of all liability for and on account of the matters alleged therein. Upon the trial of the present action defendant offered in evidence an unverified petition of plaintiff herein addressed to the surrogate of Erie county, showing that she was appointed administratrix of the goods, chattels and credits of Paul Muzynowski, and qualified as such; that she had brought an action against the present defendant to recover for the death of said intestate; that she was offered in settlement the sum of $250; that said intestate had left herself and several children; that the chance of recovering in such action was extremely doubtful, and praying to be allowed upon the payment of said money to settle and release the cause of action. Defendant also offered in evidence an order of said surrogate based upon the petition, granting the prayer thereof; also a release, under seal, executed by plaintiff as administratrix, acknowledging satisfaction of the cause of action, and the payment of $250. Objection was made by plaintiff to the reception of these documents in evidence, the court sustained the objection and excluded each of them, to which ruling defendant took exception. The ground of objection, and the ruling of the court, rested on the claim that the petition, presented to the surrogate, was unverified, and the facts stated therein were insufficient to confer jurisdiction upon the surrogate to make the decree, and in consequence-the entire proceeding was void.

Limited letters of administratian were granted to plaintiff, as provided for in § 2667, Code. By this section it is provided that the surrogate may, in his discretion, issue such letters and accept, modified security, where a right of action is granted to an administrator by special provision of law, for the purpose of the prosecution or such action; in such case the administrator shall be restrained from compromising the action or enforcing any judgment recovered therein, “ until further order of the surrogate on additional further satisfactory security.” The letters issued in this case contained the restraining clause. The ruling of the court can only be sustained upon the ground that the decree authorizing the compromise was absolutely void, and such is plaintiff’s contention. To determine this question involves an examination of the powers and jurisdiction conferred by law upon surrogates’ courts. The Code has made them courts of record, and their jurisdiction has been the subject of examination many times.

In Bearns v. Gould, 77 N. Y., 455, action was brought to charge a surety upon a bond, given by a guardian, who had been removed by the surrogate and ordered to pay a certain sum, and, in event of default, authorizing the prosecution of the bond. The complaint alleged the order of the surrogate fixing the amount of the default, the order of removal and directing prosecution. Demurrer was interposed upon the ground that the complaint failed to state facts constituting a cause of action. The argument to sustain the demurrer claimed that it did not affirmatively appear that the court had jurisdiction to make the order, or that the proceedings taken resulting therein were in accordance with the statute.

The court held the complaint good upon the authority of Laws-1870,. chap. 359, which placed orders and decrees of the surrogate of New York on the same footing with orders issued by a court of general jurisdiction, and that they could not be questioned collaterally.

In Harrison v. Clark, 87 N. Y., 572, a similar question arose, and it was there held, upon the authority of the same statute, that where jurisdictional defects exist in the orders of the surrogate, the object of the statute is to prevent their validity being questioned for want of jurisdiction, except by appeal, or in a direct proceeding for that purpose.

The only restriction which remains, seems to be, that if there be lack of jurisdiction of the general subject matter or the person, and no right exists under any circumstances to make the order or decree, it may be attacked in any proceeding collateral or otherwise.

It is true that the cases referred to were controlled in their decision by the special statute applicable to the city of New York, but by §§ 2473 and 2474, Code, substantially such rule is now the general law governing all surrogate’s courts, the object being, with respect to surrogate’s courts, to place their orders and decrees-upon the same footing as obtains in courts of general jurisdiction. See Throop’s note to section.

The result counsel for plaintiff strenuously combats, and the claim is made that § 2473 requires in all cases an allegation of jurisdictional facts contained in a written petition or answer, duly verified, or no jurisdiction is conferred to act

This language of the section is: “ Where the jurisdiction of the surrogate’s court to make * * * a decree or other determination is drawn in question collaterally and the necessary parties were duly cited, or appeared, the jurisdiction is presumptively, and in the absence of fraud or collusion, conclusively established, by an allegation of the jurisdictional facts contained in a written petition or answer duly verified, used in the surrogate’s court.” It is quite evident that this section does not seek to regulate the practice which shall obtain in surrogates’ courts; if it did then it is clear that no decree could be upheld unless founded upon a written petition duly verified containing a statement of jurisdictional facts. '

That such is not the rule clearly appears from § 2533, where it is made discretionary with the surrogate to take oral proof or require a written petition, unless the act expressly provides for a written petition. By reference to § 2667, where authority is found to authorize the compromise, no such proof is required. It was so expressly held in O'Connor v. Huggins, 113 N. Y., 511; 23 N. Y. State Rep., 275, where the court says: “ The surrogate was not confined to any form of procedure, or to any mode of proof, in acting upon an application for letters * * * The plea, when urged collaterally, that the decision was erroneous, must always be unavailing * * * The surrogate had jurisdiction to grant the letters, and hence the statute makes them conclusive evidence of the authority of the persons to whom they were granted until revoked or set aside.”

Section 2473 does not say that the order or decree shall be void if there be no written verified petition, but if there be such petition, it is presumptive, and if no fraud or collusion appear, it is conclusive, so that no proof would be admissible to shake it. In the absence of proof showing the want of jurisdiction, as a fact, it is not made incumbent upon the person relying upon the order to make proof of facts showing jurisdiction, nor does it become void if no proof is made. The section is drawn to protect the order or decree, not to destroy it, and if not founded on such verified petition the attacking party is at liberty to show, as a fact, not that there never was a petition, but that the jurisdictional facts did not exist, and that in fact the surrogate never had jurisdiction of the subject matter to make the order. That allegation appearing, the petition would conclude even that proof. This construction is in harmony with the following § 2474, which provides : “ The surrogates’ courts claims jurisdiction in every case, by the existence of the jurisdictional facts prescribed by the statute * * "* An objection to a decree or other determination founded upon an omission therein, or in the papers upon which it was founded, of the recital or proof of any fact necessary to jurisdiction, which actually existed, or the failure to take any intermediate proceeding required by law to be taken, is available only on appeal.” Mo language can make more plain this provision or the rule intended to be established by the two sections. This construction is not in conflict with Hood v. Hood, 85 N. Y., 561, or People v. Corlies, 1 Sandf., 229.

Both cases arose before the adoption of the Code. Mor do I think them applicable here in any event. In the case first cited, there had been no decree made by the surrogate which the executor had disobeyed, nor had any execution been issued against him and returned unsatisfied, nor had the surrogate assigned or ordered the prosecution of the bond, all of which the statute required. These facts appeared, and as they were essential, in order to create liability against the sureties in the bond, it was held that no action could be maintained. This presents a very different question from one where the surrogate had jurisdiction to make the order, and has made it. With respect to proof of service upon the infants therein, the Code has changed the rule. In the Corlies case a similar question was presented. These cases stand upon their own facts, and are not in conflict with the long line of decisions which have protected surrogates’ orders and decrees from collateral attacks. Jackson v. Robinson, 4 Wend., 437; Farley v. McConnell, 7 Lans., 428 ; affirmed on appeal, 52 N. Y., 630; Johnston v. Smith, 25 Hun, 171; Kelly v. West, 80 N. Y., 139 ; Roderigas v. Savings Inst., 76 id., 320, 321; 17 W. Dig., 460; Crosier v. Cornell Steamboat Co., 27 Hun, 215.

In the present case the surrogate had jurisdiction to grant the letters of administration, all the persons were before the court and all proceedings essential to that end were taken. The court also had jurisdiction to make an order authorizing a compromise of the action; it therefore had jurisdiction of the general and particular subject matter. The evidence tended to show that an action to recover damages for which this action was brought, was then pending; the plaintiff testifies she was present, in court, so that, to the extent necessary, the court had jurisdiction of the person. Having this jurisdiction the manner of its exercise was a question of practice; if there was a failure to observe the statutory requirements in this regard, it does not go to the jurisdiction but was an irregularity merely. The other particular defects pointed out consist in the claim; First, That the last clause of subd. 7, § 2472, Code, relating to the general jurisdiction of surrogates’ courts, which provides: “This jurisdiction must be exercised in the cases, and in the manner prescribed by statute,” limits the exercise of power to the specific mandates of the statute, and a failure to observe them renders the proceeding void. Such construction of this clause has been condemned in Hartnett v. Wandell, 60 N. Y., 346, where Judge Allen says: “ The last paragraph of the section, declaring that the powers conferred shall be exercised in the cases, and in the manner prescribed by the statutes of the state, does not limit or restrict the jurisdiction or qualify the general terms of the statutes conferring the jurisdiction and defining the powers of the surrogate.” And again: “ That part of the act which declares that he shall exercise the powers conferred in the manner prescribed by law is not jurisdictional, unless it is restricted in its operation to the manner of acquiring jurisdiction by citation or other process, or by proof of the facts upon which jurisdiction depends, as the case may be. As a regulation of practice, when the surrogate has jurisdiction, it is modal, and does not affect the powers of the magistrate. A substantial compliance with the statutes, would satisfy the act, and the statutes regulating the mode of procedure, like all rules of practice should be liberally construed. * * * Neither a literal or technical construction * * * should be given to the statutes, only affecting the mode of procedure in the surrogates’ courts.” Id., 353-354. Cited with approval in Martin v. Dry Dock etc., Co., 92 N. Y., 75.

. Second. It is claimed that the order is void for the reason that the surrogate did not require “ additional further satisfactory security.” Similar clauses were long ago held to be directory. Bloom v. Burdick, 1 Hill., 134; Sheldon v. Wright, 5 N. Y., 512; Farley v. McConnell, 52 id., 630.

It follows from these views that the evidence should have been received. The verdict of the jury is, therefore, set aside and a new trial ordered, costs to abide the event


text:
    William Reinhardt et al., Pl’ff, v. The City of Buffalo, Def't.

      (Superior Court of Buffalo, Trial Term,

      Filed January 10, 1891.)

    1. Municipal corporation—Award of damages to owner qf Alley-Assessment FOR STREET OPENING. 1
    Prior to proceedings to open a street, a land owner had opened an alley, in the line of the proposed street and sold off lots fronting thereon upon, which buildings had been erected. The city had never accepted the alley! and the owner was taxed for it as for private property. Held, that he was entitled to compensation for the taking of the land embraced in the alley.!
    2. Same—Estoppel. " j
    „ An adjoining owner who has had an award made for land taken, appeared before the commission, consented to the confirmation of the report and accepted the benefits accruing thereunder,is estopped from raising the¡ question of compensation to his neighbor, the owner of such alley.
    Action brought to vacate ancl set aside an assessment.
    Plaintiffs are the owners of • adjoining lands, fronting on High street in the city of Buffalo, being eighty-eight feet front by 245 feet deep, fifty-eight feet of which is owned by Reinhardt; the; balance by Lindeman. Proceedings were instituted by defendant1 for the purpose of opening a street between High and Best streets, sixty feet in width. For this purpose it became necessary to ac-j quire all of Lindeman’s land, except one and one-half feet. Prior' to the time proceedings were instituted to acquire the land, one Urban had opened a street or alley, thirty feet in width, on the, west side, in the line of the proposed street, and had sold off lots1 fronting thereon, upon some of which buildings had been erected. The land upon the east side was owned by the Utica Land Asso-, ciation for the entire distance north of Lindeman’s land. Said1 association had laid off a street at right angles to the proposed street, through its said lands, running east, and called Alwin street. Pursuant to defendant’s charter, commissioners to ascer-1 tain and report the just compensation to be made to the owners of land and property to be taken and appropriated for said street: were duly appointed.
    Said commission having been duly organized, and after hearing proof, made and filed their report in and by which awards were i made to various parties amounting in the aggregate to $10,289.20, in which was included an award to said Urban, of $250 for his interest in the land embraced within the said alley, and the sum of j $2,450 to said Lindeman, who had appeared before the commission. Thereafter, and upon consent of said Lindeman, said report was duly confirmed by the court and the respective parties j were thereafter paid and accepted the awards. Thereafter the defendant, through its common council, ascertained the amount to be paid, and determined that the whole sum .should be raised by j local assessment upon the property benefited by the improvement and thereupon directed the board of assessors to assess the amount upon the property so benefited. • Thereafter the said board of as- ] sessors met and prepared an assessment roll, assessing the whole ' amount upon the property benefited in proportion to the benefit as determined by them. The testimony discloses that in reaching the latter result said board assessed upon owners of land upon the west side of said street a rate of $2.06.52 per foot; on the east side $8.00 per foot. Alwin and North streets, thro,ugh which the proposed street ran, was omitted, and property fronting on Alwin street was assessed at a rate of fifty cents per front foot, and it was determined that the land fronting on North street was not benefited. .There was assessed against Lindeman upon the one and one-half feet left, $100, and upon Reinhardt the sum of $1,396. The roll was prepared, notices duly sent out and Reinhardt appeared before the assessors, filed objections, and upon reconsideration by the board the last named assessment was reduced to $1,031.25.

      Butler S. Farrington, for pl’ffs; Frank C. Laughlin, for def't.
   Hatch, J.

—It is claimed by the plaintiff that this assessment' must be vacated and set aside for the reason that the commissioners in the proceedings in invitum awarded damages to the owner of Urban alley. The ground of this claim rests upon the assumption that Urban had dedicated this as a public street, and was, therefore, at most, entitled to only nominal damages. It does not appear that Urban had ever dedicated this as a street beyond opening and selling the lots. The city had not accepted nor was it any part of a general plan of streets prepared by the city. Urban was taxed for it as private property, and although he was doubtless bound to keep it open for the benefit of those who had purchased fronting thereon, yet he owned the fee¡ and for very many purposes would be entitled to compensation if appropriated for other purposes than an easement, while the proceeding divested him of the fee and transferred it to the city.

The commission had jurisdiction to make him some award, and if excessive, it should have been corrected in the proceeding. If we assume plaintiffs’ position correct, it is not available to him here. So far as Lindeman is concerned, he is estopped from raising the question, as he appeared before the commission, consented to the confirmation of the report, and has accepted the. benefits accruing to him thereunder. The confirmation of the report is a judgment, and we must regard it as sacred, until vacated or modified by a direct proceeding for that purpose; it is not permitted to attack it collaterally in a proceeding like this. Mayer v. Mayor of N. Y., 101 N. Y., 288; Matter of Ferris, 10 N. Y. State Rep., 483.

There is nothing which appears upon the face of these proceedings from which their invalidity may be determined, and proof aliunde may not here be resorted to for that purpose. Dolan v. Mayor, etc., 62 N. Y., 472.

The omission of Alwin and North streets by the assessors in levying the assessment in no wise vitiates the assessment for two reasons. First, it appears by the proof and the admissions made upon the trial that these streets had been dedicated to the use of the public by the owners and have been accepted by the municipal authorities, who have evidenced such acceptance by constructing sewers therein. Second, the maps introduced in evidence and marked by the assessors show the streets laid out at the time the assessment was made, and in the performance of their duties they estimated that such land was not benefited. This was a judicial act, and, under the circumstances, the court cannot interfere ; to do so would simply substitute its judgment for that of the assessors. De Witt v. Village of Ithaca, 15 Hun, 568 ; Matter of Ingraham, 4 id., 499.

This does not present the same question as arose in Hassen v. Rochester, 65 N. Y., 516, and kindred cases. There the assessors were directed to assess upon all the lands benefited, but the assessors omitted lands concededly benefited, for the reason that, they deemed them not subject to taxation. Here the lands are omitted for the reason that they are public streets, and also for the reason that the same, in the judgment of the assessors, were not deemed benefited by the improvement, and they were authorized so to determine.-

It is not necessary that the city should own the fee of a street to constitute it a public street. It is also claimed that the assessors violated their duty in levying a different and lower rate-upon the west side than upon the east side. The evidence upon-this subject clearly discloses the fact that they took into consideration the situation and determined that the west side already had a street, and that they were not therefore benefited to the extent, that the east side was. No erroneous principle was applied, it. was an exercise of judgment, a judicial act, and even though we-may think they erred in judgment, yet such fact would furnish no ground for vacating their conclusion in this action. Kennedy v. City of Troy, 77 N. Y., 493 ; O'Reilley v. City of Kingston, 114 id., 448 ; 23 N. Y. State Rep., 799 ; Genet v. City of Brooklyn, 99 id., 307, 308 ; Spencer v. Merchant, 100 id., 585.

It is claimed that error is established for the reason that the1 assessors changed the feet front assessed against Reinhardt from-twenty-eight feet, so as to embrace fifty-eight feet, after the notices: were sent out. If this be so, then the assessment should be vacated. The People ex rel. Chamberlain v. Forrest, 96 N. Y., 544.

The roll is presumed valid until the contrary be made to appear. Matter of Voorhis, 90 N. Y., 668 ; Matter of Hebrew B. O. A. Society, 70 id., 476,

So that standing alone without proof the roll as it appears is to-be upheld. Has this presumption been overcome ? It is testified to by Reinhardt that he went to the office of the assessors with the notice sent out by the assessors, of the tax, that he was shown the roll by some person who he did not know, that it then only embraced the twenty-eight feet, and that the person exhibiting the roll on being informed that there was fifty-eight feet changed the figures therein. Lindeman corroborated this testimony, but on cross-examination stated that he could not read English, and so far corrected his testimony as to say that he heard it read. The roll also shows that a change was, at some time, made. It is upon this testimony that plaintiff relies. In opposition to this, defendant produces assessor Ludwig, who states his recollection to be,, that he made the correction ; that it was made prior to sending out the notices ; that in the course of business it would be so, and while he had no distinct recollection upon the subject as to be able to state positively, yet such fact was in accordance with the business of the office and his recollection.

The allegation of the complaint also negatives plaintiff’s claim, as it describes the land owned by Beinhardt, and then says that plaintiff, naming him, was assessed upon such property. Humorous other irregularities are alleged, but not this. The objection was not urged, so far as the evidence discloses, before the assessors, or before the common council, and only found place upon the trial at its close, when the plaintiffs were recalled for that purpose. I am of opinion that under these circumstances the presumption of regularity in this respect is not overcome. •

If Lindeman was in a position to avail himself of objection to the assessment upon the one and one-half feet, such position could not be upheld. In Terry v. Hartford, 39 Conn., 286, an assessment under dike circumstances was sustained. This case was cited with approval by Beckwith, Ch. J., in Brennan v. The City of Buffalo, not reported, and affirmed at general term.

It follows from these views that no substantial error, available to plaintiff in this action, is found. The complaint is, therefore dismissed.


text:
    Adam Fleeman, Jr., Pl’ff, v. Olive E. Fleeman, Impleaded. etc., Def't.

      (Superior Court of Buffalo, Trial Term,

      Filed January 10, 1891.

    Mutual benefit association — Insured has right to change beneficiary.
    A member of a mutual benefit insurance association has the right at any time to change the beneficiary named, in his certificate, by complying with the rules and by-laws of the association.
    This action is brought to determine conflicting claims to a fund paid into court by the Masonic Life Association of Western Mew York, a mutual benefit corporation existing under the laws of Mew York, the same having accrued under and by virtue of an assurance upon the life of Adam Fleeman, deceased. The said corporation was originally made party defendant, when, upon motionj defendant, as the party in interest, was ordered interpleaded.

      Roberts, Alexander & Messer, for pl’ff; Tracy C. Becker, for def’t
   Hatch, J.

—The evidence upon the trial disclosed that plaintiff is the son of deceased; that about 1873 deceased became a member of said ¿orporation and procured a certificate of insurance to be issued to him, conditioned for the payment after death of a sum not exceeding $2,000. In this certificate the designated beneficiaries were his wife, if living at his death, and in the event of death, to his four children.

In 1885, the plaintiff having made advances of money to his father and furnished, him a house, deceased changed his certificate, making $600 payable to plaintiff, together with such other sums as he might thereafter advance.

In 1887 another certificate was issued in which plaintiff was designated as beneficiary, to the extent of $1,200, together with such other sums as he should thereafter advance to deceased, the balance to be paid to the children of his first wife. On the 18th of January, 1877, his wife having died, deceased married Catherine Yerger. They lived together until August of the same year, when the wife left his house and went to reside in Alden, about twenty miles distant, where she has since resided and now lives. Ro decree of divorce was ever obtained annulling said marriage.

In 1883 deceased married the present defendant. The proof tended to establish that deceased had not, prior to the last marriage, heard from his said wife since she left his house.

On the 21st of October, 1889, deceased procured the issuance of a new certificate, naming defendant as beneficiary, except,that there should be paid to plaintiff the money he had' paid in keeping up the assessments on said certificate. Defendant was incorporated under chap. 319, Laws of 1848 ; its certificate of incorporation was approved by a justice of the supremeicourt on the 10th day of December, 1872, and was thereafter filed.

The purpose of said society as set out in its certificate is “ to provide for the payment to the legal representatives of any member of such society as may from time to time decease, of such sum as the by-laws of such society may from time to time prescribe. The said sum to be received by the voluntary contribution to the same by the members of said society, of such dues as such by-laws may from time to time prescribe; but such sum in no case to be paid to the legal representatives of such members as shall have failed to make payment of the dues so prescribed by the by-laws of said society to be paid ; and said sum to be paid to said legal representatives in no case to exceed the total sum of such dues remaining in the treasury of said society.”

The by-laws of the society then proceed to organize a system of mutual benefit life insurance stating its object to be, “for the purpose of aiding and assisting the widows and orphans of worthy brethren.” In respect to the right of designation the by-laws provide, “ In all cases an applicant for membership in this association shall designate, in his application, some person or persons to-whom the money shall be paid in the event of the applicant’s death; otherwise it shall be paid to his heirs-at-law. The secretary shall enter upon the records of the association the name of the person or persons so designated, and shall endorse and designate the name or names upon the certificate of membership. In case of 'the death of the beneficiary, as designated the loss shall be paid to the heirs-at-law of the deceased member.” ' This by-law is broad enough in its terms to authorize the designation of any person as beneficiary whether a legal representative or not, but. when construed with the objects of the association as expressed in its certificate, and by-law, it must be limited to such persons as are named therein, to wit: the legal representatives of the assured, as none others are named or provided for. Massey v. Mutual Relief Society, 102 N. Y., 523; 2 N. Y. State Rep., 487.

The person, therefore, authorized to share in the present fund must be brought within the class named. It is insisted that the association is not a mutual benefit society but an insurance company, and that in consequence the beneficiary named took at the time the certificate was issued a vested interest which could not thereafter be defeated'by act of the assured. If this claim be well founded then it is clear that defendant is entitled to nothing, and that plaintiff is only entitled to a proportionate share of the fund in connection with the other children of the first wife, under the designation first made.

From the certificate of incorporation and the by-laws thereunder, it may be conceded, that this is a mutual .benefit insurance company, and that alone, as it does not provide for any other purpose or object in the scheme of its organization; but with this concession it by no means follows that it is subject to the insurance laws of the state, or that the certificates which issues gives to the beneficiaries named a vested interest which may not thereafter-may be taken away. In many states this rule has been so held, and the authorities, where such rule is laid down, are collected in Bacon on Benefit Societies and Life Insurance, §§ 51 to 55, inclusive. But the learned author recognizes the fact that such rule is not uniform, and depends upon the charter and statutes existing in the state where the question arises, as he says : “ The question is one of construction of the statutes of the several states and of individual charters, and no uniform rule can be laid down that shall apply to all cases.” Section 53. We are, therefore, relegated to the statute for a solution of this question. By chap. 175, Laws 1883, provision is made for the regulation and incorporation of co-operative or assessment life and casualty insurance associations and societies, section five of which provides that such companies shall be subject only to the provisions of this act. By reference to this act and its amendments, Laws 1887, chap. 285, it is seen that the business carried on by this association is embraced within its terms, and is authorized. By § 18, a member is authorized at any time, with the consent of the corporation, to make a change in his payee or beneficiary without the consent of such payee or beneficiary. And by § 19, the money secured to be paid is exempt from seizure on execution, and may not be taken by any process, legal or equitable, for the payment of a debt or liability of the member. By the express provisions of the statute, therefore, no property right or interest is vested in the beneficiary or payee until the contingent event of death happens, and no restriction is placed upon the assured to change such beneficiary, except the consent of the association is essential. The case is, therefore, brought squarely within the decision of Boasberg v. Cronan, 30 N. Y. State Rep., 483, and upon these subjects must control. It is insisted that defendant is not the legal wife of deceased, and could not, therefore, be named as beneficiary. The proof upon that subject is to the effect that for a period of more than five years prior to the last marriage deceased had not heard from his wife, and did not know her whereabouts or that she was alive. It is provided by statute : “If any person whose husband or wife shall have absented himself or herself for the space of five successive years, without being known to such person to be living during that time, shall marry during the lifetime of such absent husband or wife, the marriage shall be void only from the time that its nullity shall be pronounced by a court of competent authority.” 4 R. S., 8th ed., § 6, p. 2596.

I find nothing in the proof which leads me to believe that at the time when the last marriage was solemnized the parties acted otherwise than in good faith, upon the belief that the former wife was dead. Defendant is not shown to have had any knowledge that any obstacle stood in the way of a legal marriage, while the testimony of the "former wife is to the effect that she never held any communication with her husband after she left his home. Under such circumstances the marriage must be held legal until a court of competent authority pronounces it void. Jones v. Zoller, 32 Hun, 280.

In Price v. Price, 33 Hun, 76, it was held that a wife married under similar circumstances, was entitled to a dower interest in the property of the husband owned by him at the date of a decree declaring null the marriage. The right of the wife to receive insurance moneys is also well settled; Story v. Williamsburg, etc., Ass’n, 95 N. Y., 474; Schnook v. Order Sons of Benjamin, 21 J. & S., 181.

Within the case last cited it would be quite competent to find that the association consented to the naming of the beneficiary in the last certificate, as its secretary was at the house of deceased, where defendant then was living with deceased as his wife, saw her and knew her to be the person named. But the evidence is sufficient to establish the legal relation of husband and wife until declared void. I am of opinion, therefore, that defendant is competent to take under defendant’s articles of incorporation.

The further claim is made that the last certificate is without legal effect, for the reason that it was not authorized in conformity' with defendant’s by-laws. The basis of this claim rests in the fact that the by-laws require, when a member desires to change his. beneficiary, he shall return his certificate, with a request in writing duly acknowledged to the secretary, “ when, by a majority vote of the board of directors present at any meeting,” the change, as requested, may be made. If the member is unable to return his certificate as required, ‘.‘.he shall state the reasons for such failure, * * * and the board of directors may, by a majority vote, grant such request without the return of such certificate.”

The board of directors consist of fifty members and seven is constituted as a quorum for the transaction of business. The claim is that if the certificate is returned a majority of the quorum is sufficient to grant the request. If the certificate is not returned then a majority of all the directors is required. The certificate in the present case was not returned, and the request was granted by the quorum authorized to transact business. We have already seen that plaintiff by his designation took no vested interest either as beneficiary named or as creditor. This question, therefore, does not concern him: it was a matter solely between the assured and the association; the assured had the right to change the beneficiary subject only to the consent of the association. This they assumed to give and deceased had the right to rely thereon. The secretary had notice, it was done at a regular meeting of which the full board were presumed to have had notice, it was entered in the minutes, and if we assume that the board acted without authority yet they have acquiesced in the members acting thereon, and are to be presumed to have acquiesced therein and ratified the act. Hoyt v. Thompson, 19 N. Y., 207, 215-218; Olcott v. Tioga R. Co., 27 id., 559; Porter v. Robinson, 30 Hun, 211.

There is no basis to support the claim that the association was bound to take notice of plaintiff’s debt It has already been observed that he had no interest and could protect no debt; the fund was placed beyond reach of that by a higher power; consequently plaintiff was in no legal sense injured by the change. There was a moral obligation resting upon the assured not to change the designation of plaintiff, but the law gave him the legal right so to change and no obligation in favor of plaintiff required the association to refuse consent. It follows from these views that defendant is entitled to judgment directing that the fund be paid to her, less the amount of the assessments paid by plaintiff. Ho costs are awarded in favor of either party as against the other.


author: Ward, J.

text:
    John Corrigan, Pl’ff, v. Margaret Ritter, Def’t.

      (Supreme Court, Special Term, Erie County,

      Filed June 8, 1891.)

    Answer—Supplemental—Counterclaim—What allowed.
    An action was commenced in 1888 to recover for an alleged breach of contract, and an answer served. Afterwards a new contract was entered into between the parties, which provided that, if properly fulfilled by the defendant, the action should be discontinued without costs. In 1891 the defendant moved for leave to serve a proposed supplemental answer, which alleged as a first defense that the second contract had been peri formed on her part, and for a second defense a counterclaim for work, labor and services performed in addition to that required by said contract’. Eeld, that as to the first defense the motion would be granted, but that the second defense was such a counterclaim as clearly came within subd. 2 of § 501 of the Code, and therefore not such a matter as could be counterclaimed in the action.
    Motion for leave to serve supplemental answer.

      Calkins & Forsythe, for the motion; Clinton, Clark & Ingram, opposed.
   Ward, J.

—This action was commenced October 18, 1888, to recover damages sustained by the plaintiff on account of an alleged breach by the defendant of a contract whereby she was to construct two marine boilers and put them on board of the steamer Aurora, a propeller navigating the great lakes, and also for damages sustained by the plaintiff, caused by the detention of the steamer, in consequence of the boilers not being put in as provided by the contract

About December 8, 1888, the defendant served her answer denying the complaint and setting up a counterclaim for $1,700, alleged to be the balance due upon the purchase price of the boilers. Afterwards a new contract was entered into between the parties, whereby the defendant was to take out of the steamer the two boilers put in by her (which had been put in under the first contract), and which new contract is set forth in the supplemental answer proposed and made a part of the motion papers ; and it was provided in said new contract that if the new boilers were constructed in accordance with the terms of the new contract, the parties hereto should discontinue, without costs, this action; defendant alleging that the said contract had been performed on her part, and had in effect extinguished the cause of action set forth in the complaint.

The proposed supplemental answer contains another defense, viz., that after the service of the original answer herein and subsequent to the 13th day of February, 1889, the defendant at the special instance and request of the plaintiff performed work, labor and .services, and furnished materials which were used in and about the works and repairs of the said steamer Aurora, which work, labor, services and materials were in addition to those required to be performed and furnished by the defendant under said new contract, and were reasonably worth the sum of $478.82, no part of which had been paid, etc., and which was due and unpaid, and the defendant demanded judgment for the said sum and alleged the same as a counterclaim. These two answers were separately stated in the proposed supplemental answer.

The difficulty upon this motion arises upon that branch of it which asks leave to serve as a supplemental answer the counterclaim above referred to. If this counterclaim may be regarded as : ‘‘ A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim or connected with the subject of the action ” as provided in the first subdivision of § 501 of the Code of Civil Procedure then under the authority of the case of Howard v. Johnston, 82 N. Y., 271, the court would be authorized to permit this answer to he interposed. If it does not come within the scope of that subdivision of the Code, but rather comes within the second subdivision of that section which defines a counterclaim as arising also: “ In an action on contract any other cause of action on contract existing at the commencement of the action,” it cannot be interposed because it did not exist at the commencement of the action. Bostwick v. Menck et al., 4 Daly, 68; Tiffany v. Bowerman, 2 Hun, 643; Farmer's Loan & Trust Company, etc., v. United Lines Telegraph Co., 14 Civ. Pro., 187 ; Continental Construction & Improvement Co. v. Vinal, id., 293; 15 N. Y. State Rep., 968; Bull v. Rothchild, 16 N. Y., 356; 22 N. Y. State Rep., 536; Bull v. Rothchild, 16 N. Y., 396; 22 N. Y. State Rep., 430; Staunton et al. v. Swann, 10 N. Y., 12.

It is alleged in the answer embracing the counterclaim that the amount sought to be counterclaimed was for work, labor, services and materials in addition to those required to be performed or furnished by the contract and were reasonably worth, etc. So that this claim was for extra work done and materials furnished by the defendant for the plaintiff and not embraced in the contract or connected with the subject of action set forth in the complaint, and had an action been brought thereon it would have been simply one for quantum meruit or an implied assumpsit, and clearly comes within the second subdivision of § 501 of the Code, and is therefore not such a matter as can be counterclaimed in this action.

The motion to serve a supplemental answer is granted as to the first answer set forth in the proposed supplemental answer, but denied as to the second answer set forth therein, being the answer alleging the counterclaim, without motion costs to either party.


author: Smith J.

text:
    The People of the State of New York ex rel. William Y. Bliss v. The Board of Supervisors of Cortland County.

      (Supreme Court, Special Term, Cortland County,

      Filed April, 1891.)

    1. Mandamus—To compel board of supervisors to audit claim—District ATTORNEY MAY HIRE EXPERT.
    A district attorney has the power to hire a physician to attend a trial as consulting expert and as a witness, and to make a contract for a specific compensation to be paid for such service. And where a board of supervisors refuse to properly audit such claim, they may be compelled by mandamus to do so.
    2. Same—How right foreclosed.
    Where the relator, in such a case, accepts the order of the board of supervisors for a less sum than his claim, even though he accepted it without prejudice to his rights in such a proceeding, he has foreclosed his right to demand the balance of the claim, and is not entitled to a writ of mandamus.

    The questions here arise upon an alternative writ of mandamus.

    The relator is a practicing physician, and, upon the trial of an indictment against one Griswold for murder, in the county of Cortland, the district attorney of said county hired him, at the "agreed price of twenty-five dollars per day, to attend and consult as an expert physician and witness. His bill for such service, amounting to $150, was presented .to the board of supervisors of Cortland county and referred to a committee. The committee interviewed the district attorney and heard the statement of the relator and determined that the contract for a specific sum per day was not made with the district attorney. It also determined that if such contract were made such contract was invalid and not binding upon the county. It further determined that the sum of ten dollars per day was reasonable compensation for the services rendered by the relator, and assumed to audit his bill at sixty dollars. This action and determination of the committee was reported to the board of supervisors, which adopted said report. The witnesses were never before the board, nor was their evidence presented. Further facts appear in the opinion.

      Lawrence T. Jones, for relator; Franklin Pierce and O. U. Kellogg, for def’ts.
   Smith J.

—By 1st Revised Statutes, Birdseye edition, p. 732, it is provided: “ The following shall be. deemed county charges: * * * Second: The fees of the district attorney and all expenses necessarily incurred by him in criminal cases arising within the county. * * * Ninth: The moneys necessarily expended ! by any county officer in executing the duties of his office, in cases where no specific compensation for such services is provided by law."

Under these statutes the district attorney had power to employ the relator to assist in consulting upon the trial of this case; and such has been found to have been the contract made at the time : of the trial. People v. Supervisors of St. Lawrenee County, 30 How., 173; People v. Montgomery, 13 Abb., N. S., 207; Kinney v. Cortland County, 58 Barb., 139-146. While the defendant concedes ; the power of the district attorney to employ experts, it denies the right to stipulate by contract for a specific compensation. In the case of People v. Supervisors of Cortland Co., 58 Barb., 146, it was i held that the district attorney had this right The right is also recognized in People v. Supervisors St. Lawrence Co., 30 How., 181, and in People v. Supervisors N. Y. County, 32 N. Y. 473. Such a contract may be a necessary one in the execution of his duties. Prominent experts, whose service it is important to obtain, may refuse to act and rely upon what they deem the caprice of the ¡ board of supervisors for their compensation. In such case the district attorney clearly has the right to make a contract for a specific sum. The test of the right to make such a contract is its I necessity. That necessity is to be judged from all the circumstances surrounding the case, and one of the elements is its reason- , ableness. A contract providing for exorbitant compensation ¡ would seldom be a necessary one. The district attorney, the law officer of the county, is the one best qualified to judge of its neces- ; sity, and his determination of such necessity should largely con- j trol the board, unless he should appear to have made a palpable mistake. While the board in such case is the primary court for the determination of the necessity of a contract made by a public ! officer, whether stipulating for a specific compensation or not, its conclusion is not final. Its determination is subject to the review of the court itself, under its writ of certiorari. The court, upon i . such review, is the final arbiter of such necessity.

In 1 R. S., Birdseye ed., p. 732, by § 17, it is provided: “Accounts for county charges of every description shall be presented ! to the board of supervisors of the county to be audited by them.” The board of supervisors is therefore made the court of original jurisdiction to determine the validity of this claim, and in making j such determination it acts judicially. Brown v. Green, 46 How., 306; People v. Stocking, 50 Barb., 573; Myers v. Barnes, 114 N. Y., 317 ; People v. Supervisors, 21 How., 322-328.

Its conclusion, if it has properly proceeded, can only be reviewed by a writ of certiorari. People v. Supervisors Madison Co., 51 N. Y., 442 ; People v. St. Lawrence Co., 25 Hun, 131-135; People ex rel. Myers v. Barnes, 114 N. Y., 317; 22 N. Y. State Rep., 164; Hyatt v. Bates, 35 Barb., 308; S. C. on appeal, 40 N. Y., 164. The court may by mandamus direct the defendant to properly j proceed to audit a claim, but it cannot by mandamus direct the board to allow a claim upon which it must pass judicially. People v. Chapin, 104 N. Y., 96; 5 N. Y. State Rep., 588. Ho case has been cited where a mandamus has been granted where the fads upon which the legal right depended have been questioned. In the cases cited the courts have simply declared the law upon conceded facts.

In auditing this claim, therefore, the board of supervisors was required to determine two questions. First. Was there a contract made between the district attorney and the relator ? Second. Was such a contract a necessary one in the execution of his duties ? If it be held either that there was no contract for a specific amount, or that such a contract was not a necessary one in the execution of his duties, then the board must determine a third question, as to what was the reasonable value of the services of the relator. Has the defendant, then, properly audited this claim and determined these questions ?

It appears that the claim was duly presented; that it was referred to a committee on miscellaneous accounts; that that committee informally took the statement of Mr. Bronson, the district attorney, not under oath, and maud investigation of the legal rights of the relator, and heard the testimony of Dr. Hunt, not under oath ; that this relator was given no notice whatever of any hearing upon the claim, though he was present at one time on his own motion and made a statement. He was not given any opportunity to produce witnesses, nor was he given opportunity to cross-examine those produced against him; nor opportunity to present, by counsel, his legal rights to the committee. Is it possible that this can constitute what in law is meant by a judicial investigation ? I apprehend there can be but one answer to such a question.

The statute has created this board of supervisors as a court to adjudicate upon the rights of this relator in his claim against the county. This court is his only recourse for payment. From its judicial determination he has no appeal, save a right to have the same .set aside or modified if it be against the weight of evidence. A judicial investigation means something more than an informal inquiry. In such investigation a party has the right to notice of a hearing by the judicial body upon his claim; he has the right to appear before the body and call witnesses ¿nd demand that they be examined under oath; he has the right to cross-examine adverse witnesses who shall be put under oath. More than that, he has the right personally, or by counsel, to present to the judicial body his views of his legal rights under his claim made. An investigation without such rights does not arise to the dignity of a judicial investigation. These principles have been thoroughly established by analogous cases. An arbi- . tration at common law was but a judicial investigation out of court. Upon an arbitration it is well settled by a long line of decisions that a party must have notice of a hearing before the judicial body. The witnesses must be examined under oath, unless the oath is expressly waived by the parties. Such an examination must be in the presence of the parties who have the right to cross-examine. In Elmendorf v. Harris, 23 Wend., 628, the chancellor says: “But I apprehend that as a fundamental rule of construction, in reference to their transaction in the nature of a judicial proceeding, the contract of submission necessarily implies that the arbitrator is not authorized or empowered to decide the question in controversy without giving the parties an opportunity to be heard in relation thereto.” Dobson v. Groves, 51 Eng. Com. Law Rep. (6 A. & E.), 636; In re Plews, id., 845; Knowlton v. Mickles, 29 Barb., 466; Day v. Hammond, 57 N. Y., 486, and cases cited; Jordan v. Hyatt, 3 Barb., 275, 283-4; Fudickor v. G. L. I. Co., 62 N. Y., 405, and cases cited; Biggs v. Hansell, 16 C. B., 562; Walker v. Frobisher, 6 Ves., Jr., 70; Pepper v. Gorham, 4 J. B. Moore, 148; Matson v. Trower, 1 R. & M., 17. If such be the rules which shall govern a proceeding in a court created by consent of the parties, fortiori must they regulate a judicial investigation in 'a court created by law, to which a party must submit his claim or suffer its loss.

In the case of People ex rel. Sherman v. Board of Supervisors of St. Lawrence Co., 30 How., 173, at' special term, views are expressed which would seem to indicate that the procedure which I have deemed requisite to a judicial investigation, is a mere moral obligation resting upon the judicial body, and is not a legal requirement With these views I cannot concur. Natural justice, if not constitutional prerogative, requires that the relator’s claims shall not be judicially foreclosed without d.ue process of law. He has a property right in his contract of which he cannot be summarily divested. The board and its committee are empowered to examine witnesses under oath. The claimant whose rights are being adjudicated may demand that his claim shall not be adversely determined without an opportunity to be heard, to produce witnesses and to cross-examine witnesses produced against him, under all the solemnity with which the proceeding can be invested in the power of the court. This procedure can be waived by the party, but is essential to a judicial determination unless there be clear evidence of waiver, which is not here found.

In this investigation the members of the board of supervisors are not the defendants of the county. They are bound in honor to stand impartial between the relator and the county. They are made by statute the judges to determine what is justly due to the relator, and as such judges they must hold themselves unbiased from favor or prejudice. Acting as a court impartially between the claimant and the county, the county should have the right to be represented before the board, and notice of the hearing upon the claim should be given to some law officer authorized to protect the county’s interest. The board should keep a record of all evidence produced before it, to the end that it may be prepared to obey the command of the court, if, by its writ of certiorari, the court should command its proceedings to be returned for review. It should also make a distinct finding upon the questions of fact decided, in order that the court upon such review may know what questions have been by it determined. The investigation, required, in order to constitute a judicial investigation, may be made by a committee of the board. The committee must to its report attach the evidence taken before it. The board itself is the legal judge and auditor of the claim. It cannot proceed to its determination unless either the witnesses have been sworn before it, or the evidence which has been taken before the committee has heen presented to the board, so that the vote of each individual member which enters into the determination of the board, may be based thereupon.

It follows, therefore, that the relator is entitled to the mandamus of the court commanding the defendant to assemble and properly audit his claim, unless he has, by some act, concluded himself from asking this relief.

It appears from the evidence that after this proceeding was commenced, this relator accepted the order of the said board for the sum of sixty dollars, the amount at which the said claim was assumed to be audited, and has drawn the money thereupon. It is contended by the defendant that the acceptance of the money found due him by the assumed determination of the board estops him from questioning the conclusiveness and validity of such determination.

The authorities seem to sustain the defendant’s contention. See People v. Supervisors Queens Co., 33 Hun, 305; People v. Supervisors Herkimer Co., 3 How. N. S., 243 ; Chase v. County of Saratoga, 33 Barb., 603. It seems to be held in People v. Supervisors Queens Co., supra, that the acceptance by the relator of these moneys has foreclosed his right to make this application, even though accepted after the proceedings were commenced. This issue is not raised by the return of the defendant, but the evidence was submitted without objection on behalf of the relator, and the issue accepted. See Frear v. Sweet, 118 N. Y., 454; 29 N. Y. State Rep., 972. It may be claimed by the relator that the acceptance of the order from the board was conditional. The evidence is that when he accepted it, he stated that he did it without prejudice to his rights in this proceeding, and that the supervisor who delivered the order assented to the condition imposed. But it was clearly beyond the power of the supervisor to make for the board any assent to such a condition. The reason, also, which underlies this rule of estoppel is inconsistent with a conditional acceptance. Having accepted the benefit of the assumed adjudication of the board, he is by law precluded from questioning its validity. It has been held that an acceptance under protest is still a bar to a prosecution of the relator's claim to a balance of the moneys. Chase v. Saratoga County, supra.

Inasmuch, therefore, as the relator has, by his acceptance of the order made upon the assumed audit of the defendant, foreclosed his right to demand the balance of the bill, he is not entitled to the peremptory writ which he asks, and the alternative writ must be dismissed.

As the defendant, however, has shown cause against obeying the command of the writ, by matters arising subsequently to the issuance thereof, it is not entitled to costs of this proceeding.


text:
    Robert H. Marvin et al., Ex’rs, etc., Pl’ffs, v. The Rector, etc., of St. Luke’s Episcopal Church et al., Def’ts.

      (Supreme Court, Special Term, Erie County,

      Filed June 10, 1891.)

    Will—Construction—Expense in fulfilling directions.
    Testatrix, by her will, directed her executors to use the sum of $5,000 ‘in the economical and judicious purchase of useful and suitable books” for an incorporated library, and $25,000 “in the purchase of oil paintings, which possess merit as works of art,” for said library. She devised the residue of her estate to a church corporation. Held, that the intent was that all the costs and expense of procuring and delivering the books and paintings should be paid out of the $5,000 and $25,000, respectively.
    Action to obtain construction of a will.

      Frank W. Stevens, for pl’ff.
   Ward, J.

—Mary A. Prendergast died at Jamestown, N. Y., in December, 1889, having made, published and declared. a last will and testament, in which she appointed the plaintiffs her executors. In this will, after providing for the payment of her debts and funeral expenses, she gives various legacies in seventeen clauses of the will, and the eighteenth clause provides as follows :

Fhghteenth. I hereby further will and direct my executors hereinafter named, within eighteen months after my decease to use and expend from my estate the sum of $5,000 in the economical and judicious purchase of useful and suitable books for the reference library of ‘ The James Prendergast Library Association of Jamestown, N. Y, and that my said executors deliver said books when purchased to the trustees of said Library Association.”
“ And I also further will and direct my said executors to use and expend from my estate within the said period of eighteen months, the sum of $2,500 in the purchase of oil paintings, which possess merit as works of art, and when purchased I hereby direct my said executors to deliver the same to the trustees of said James Prendergast Library Association, upon a proper assurance by said trustees that the said oil paintings shall be forever kept, preserved and properly and suitably displayed in the library building of said association in the said city of Jamestown.”

The nineteenth clause gives to the executors $1,000 each, and the twentienth clause is, so far as is important here, as follows:

Twentieth. I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, to the rector, wardens and vestrymen of St. Luke’s Episcopal church, in the said city of Jamestown.”

The twenty-first and last clause of the will appoints the plaintiffs as executors.

It is alleged in the complaint that the defendants, the James Prendergast Library Association and the rector, wardens and vestrymen of St. Luke’s Episcopal Church, were duly incorporated and existing when the said will took effect.

None of the defendants answered or appeared in the action, except the defendant Charles Norton, who simply appeared:, therein.

The executors are in doubt, as appears by the complaint, as to the true construction of the eighteenth clause of the will above set forth, and they bring this action and submit to the court the .said clause for construction, and allege that the question has arisen:

“Whether in purchasing the books and paintings named in the said eighteenth clause of the said last will and testament the plaintiffs are required or entitled to expend the full sum of $5,000 for such books and for the purchase price thereof, and the full ■sum of $25,000 in the purchase of said oil paintings, as and for the purchase price thereof, and that the necessary expenses by the plaintiffs incurred and made in such purchase be charged to the estate generally and be paid from the general fund of such estate or whether the said expenses shall be paid from the legacies themselves. That is to say, whether the expenses incurred in purchasing the books and delivering them at the library building aforesaid shall be paid from the said sum of $5,000, or whether the like expense in the purchase of said oil paintings shall be paid from the said sum of $25,000.”

From an inspection of this will it is. apparent that the testatrix ■distributed a large amount of property to many different persons and objects, with remarkable clearness and precision as to amount and beneficiaries, and what disposition should be made of the money or property bequeathed; and unless there is some doubt •or confusion growing out of this eighteenth clause, none can be perceived in the will.

Had she intended to have devoted the whole sum of- $5,000 to the purchase price of books alone, or the $25,000 to the purchase price of the paintings alone, the simple and direct method would •have been to have said so, and that would have been in keeping with the clear and direct statements of the other portions of the will; but she devotes the $5,000 to “ The economical and judicious purchase of useful and suitable books,” etc., * * * and that my said executors deliver the said books, when purchased to the trustees of such library asso ciation.”

The same provisions are made with reference to the purchase and delivery of the oil paintings, and they are to “possess merit as works of art.” So that the will plainly contemplates that in the discharge of this duty the executors shall exercise care and judgment and shall procure and deliver these books and paintings, and they shall be suitable and proper for the purposes for which they are purchased.

There is a large amount of money devoted to these objects, and ■enough to cover all probable expense and still carry out the purposes of the testatrix. The executors are thus clothed with ample means to discharge this important trust

We must assume that the testatrix understood the expense of procuring this large number of books and selecting them with care, so that they should be “ suitable,” and also the unavoidable expense of procuring such works of art and valuable paintings as ■she desired, which must necessarily involve time and travel possibly to foreign countries, or at least to distant cities where such paintings could be found, and where proper selections could be made, and that such expense would be considerable.

Had she intended to have charged this expense upon the residuum of the estate, it is probable that the will would have so provided.

It is not reasonable to suppose that the testatrix intended to have two separate funds in regard to this object, one for the purpose of the purchase price of the books and paintings, and the other for the expense of procuring and delivering them.

The ordinary and natural conclusion would be, that when she had provided a fund (especially a large one) to carry out a particular purpose, that she intended that fund to cover all the costs and expenses necessary for the accomplishment of that purpose.

There is nothing in the will to indicate a different conclusion. On the contrary, the twentieth and last clause (except the one appointing executors), expressly devises and bequeaths: “All the rest, residue and remainder of the estate both real and personal,” to the rector, etc., of St. Luke’s Episcopal Church, so that all the property, except the specific bequests in the preceding clauses of the will, goes to the residuary devisee and legatee, and nothing is left out of which to realize the expenses contemplated by the eighteenth clause, except the funds therein provided.

The conclusion is irresistible that the testatrix intended that all the costs and expense of -procuring and delivering the books should be paid out of the $5,000 and all the costs and expenses of procuring and delivering the paintings should be paid out of the $25,000, and that such is the true intent and meaning of the will, and such is the construction to be given it

Judgment is ordered accordingly, the plaintiffs to recover their costs and disbursements of the action, to be paid out of the residuum of the estate.


author: Van Brunt, P. J.

text:
    Nathaniel Hooper et al., App’lts, v. C. McCulloh Beecher et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 12, 1891.)

    1. Appeal—Where member of firm does not join in—Reversal.
    An. assignment signed by only one member of a firm was set aside on the ground that it was made to hinder and delay creditors. The assignee and one of the other members of the firm appealed to the court of appeals and the judgment was reversed imd a new trial ordered. Held, there being no limitation in the decision of the appellate court, and no evidence that it was their intention to allow the judgment to remain as to one defendant, the reversal operated as such with respect to the member who neither signed the assignment nor joined in the appeal.
    2. Same.
    A member of a firm who defends an action to set aside an assignment upon the ground of his non-assent, ratifies the assignment.
    Appeal from judgment entered on trial at special term dismissing the complaint on the merits.

      Franklin Bien, for app’lts ; C. E. Tracy, for resp’ts.
   Van Brunt, P. J.

—This action was brought to set aside an assignment alleged to have been made by the firm of Chas. McC. Beecher & Co., upon the ground that the same was made with intent to hinder, delay and defraud creditors.

This assignment, was signed in the name of the firm by one of the members thereof; and it is claimed that the same was never ratified or assented to by the other two members of the firm.

The case has been twice tried. Upon the first trial judgment was given for the plaintiff setting aside the assignment The defendants appealed to the general term, where the judgment was affirmed. The assignee and one of the members of the firm appealed to the court of appeals, where the judgment was reversed and a new trial ordered.

It is claimed that this new trial was only ordered as against the said assignee and the appellant assignor, and that one of the other assignors not having appealed, the final judgment remains setting aside the assignment as against him. We find no such limitation of the reversal contained in the report of the decision of the court of appeals, and no evidence that it was their intention to allow the judgment to remain as to one defendant, and reverse the same as to others who stood in precisely the same relation to the judgment.

Upon an examination of the questions which were discussed by the court of appeals, we do not see that there remains anything to be considered by this court. The court there held that the burden of establishing non-assent to the assignment by the non-executing members of the firm was upon the plaintiffs; and upon the same evidence now before the court, the court of appeals held that the finding was not sustained that Johnson, the non appealing defendant, did not assent.

It appears from the evidence that Johnson defended the action to set aside the assignment upon the ground of his non-assent; and if any authority were needed, the case of Adee v. Cornell, 93 1ST. Y., 576, holds that the fact that am assignor defended a suit to uphold the assignment was a ratification.

It is also urged that the other non-executing defendant Baillie never consented to any general assignment, nor assented to, ratified or confirmed the same after the making thereof. Baillie’s letter and telegram, which are now before the court, and are urged upon its attention, were considered by the court of appeals as though they were evidence in the case in discussing the question of Baillie’s assent, although they were not regularly before that court; and they held that that letter and telegram did not sustain the finding that he did not assent

The facts in respect to the application of the money of the estate to pay the Brazilian creditors was also before that court; and it was not considered any ground sufficient to sustain the judgment setting aside the assignment

Under these circumstances these questions are not open for discussion in this case, notwithstanding the elaborate brief which has been submitted thereon by the counsel for the appellant.

It seems to us that upon the previous adjudication all the points now raised have been covered, and that the judgment should be affirmed, with costs.

Daniels, J., concurs.


author: Patterson, J.

text:
    Isidore S. Korn et al., Resp’ts, v. New York El. Railway Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 12, 1891.)

      1. Elevated railroad—Abutting owner acquiring title after erection of—Damages.
    One acquiring title to premises after an elevated railroad is built in front thereof, and paying a diminished price for that reason, has sufficient equity to entitle him to an injunction and to recover damages.
    3. Same—Depreciation in rental value.
    Under the Code the owner of the fee is entitled to recover damages to rental value, notwithstanding the premises at the time he purchased were in the possession of a lessee, from whom he received the rent stipulated in the lease.
    3. Same.
    The rule that the owner is entitled to the difference in rental value does not depend upon either the actual receipt of rent, the occupation of property by the owner, or the premises standing idle.
    Appeal from judgment of special term.

      Davies & Rapallo, for app’lts; J. E. Burrill, for resp’ts.
   Patterson, J.

—There are numerous exceptions to the rulings of the trial judge presented by this record. Yone require consideration except three, which were insisted upon on the argument of this appeal.

The first claim made by the appellants is that the plaintiffs having acquired title to the premises after the railroad was built, and paying a diminished price for that reason, has not sufficient equity to entitle them to an injunction or to the relief sought by the complaint This question has been decided adversely to the appellants’ contention-in several cases, beginning with that of Glover v. Manhattan R. Co., 51 Supr. Ct Rep., 1. That decision has been followed in subsequent cases which are collected in the opinion of the general term of the court of common pleas in Werfelman v. Manhattan R. Co., 32 N. Y. State Rep., 683.

It is not necessary to discuss the principles upon which these cases proceeded, as they undoubtedly proclaim the rule of law as now understood applicable to this case upon the facts as they appear.

The second exception requiring consideration relates to the damages awarded to the plaintiff for depreciation in rental value of the premises. The learned judge below held that the plaintiff, as owner of the fee, was entitled to recover damages to rental value, notwithstanding the premises were in the possession of a lessee, from whom b.e received the rent stipulated in the lease. This lease was made in 1886, and extended by agreement until May, 1890. The plaintiff acquired title to the premises in June, 1887; that is, after the lease was first made and while it was in operation.

The award of damages to rental value, of course, proceeded upon the principles upon which such damages would be allowed in a common action for trespass; and at the common law, perhaps, the owner of the reversion would not be entitled to maintain such an action. But § 1665 of the Code of Civil Procedure provides that a person seized of an estate in remainder or reversion may maintain an action for an injury done to the inheritance, notwithstanding any intervening estate for life or for years.

It was clearly proven that the rental value of the property was reduced by the occupation of the street by the elevated railroad structure and by the trespass committed by the defendants upon the plaintiffs’ property; and the difference in rental value caused by the presence of this structure was fully proven. This subject was well considered in the case of Mortimer v. Manhattan Ry Co., 29 N. Y. State Rep., 262, and the reasoning in that case applies to this, unless it is to be considered that the plaintiff having become the owner of the property during the running of the lease could not maintain an action to recover for the loss of rents. But it seems to be quite clear that the owner is entitled to sue for trespass resulting in damage to the reversion, and during the whole period covered by this lease the rental value was diminished by reason of the existence of the structure and the operation of the defendants’ railroad. As was said in the case cited, the rule is settled in this state “ that the proper measure of damages for a trespass upon real estate or for the maintenance of a nuisance is the difference in rental value free from the trespass or nuisance and subject to it; and the rule has been applied, although the property was not rented but was occupied by the owner.” Francis v. Schoellkopf, 53 N. Y., 154; Michel v. Supervisors, 39 Hun, 47; Wiel v. Stewart, 19 id., 272.

If, therefore, the plaintiff has the right to recover for the trespass, the recognized rule of damage would be the difference in the rental value; and the application of the rule does not depend upon either the actual receipt of rent, the occupation of the property by the owner, or the premises standing idle. It is the one rule of damage which is applicable ordinarily to such cases, and in the absence of any proof of special damage.

It is further contended that it was error in the court 'below to refuse to recognize special benefits conferred upon this property by the advantages alleged to have accrued to it by the building and operation of the Elevated Railroad. In the Newman Case, 30 N.Y. State Rep., 36, which was a common law action, it was decided that special benefits must be taken into consideration in the ascertainment of the right of the plaintiff to recover damages. But on looking over this record, even supposing that the Newman case applies to a suit in equity for an injunction where the defendant is allowed to pay a sum of money, the value of the easement, to prevent the issuance of an injunction, as to which we express no opinion, the proof in this case was not at all sufficient to justify any finding that this property was benefited in such a way as to cause any reduction in the estimate of the fee value which was made by the learned judge in the court below. There was no evidence of any special benefit that could be set off against the inconveniences resulting from the maintenance and operation of the road.

The conclusions arrived at as to the value of the easement and the rental value of the premises were entirely justified by the •evidence, and there being no error the judgment should be affirmed, with costs.

Barrett, J., concurs.