author: Per Curiam.

text:
    George C. Winchester, Resp’t, v. T. Quincy Browne, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    1. Jurisdiction—Action between non-residents.
    The refusal of the court to entertain jurisdiction of an action between non-residents for a tort committed out of the state does not depend on the motion of the parties necessarily, but the court may refuse to do so upon its own motion.
    .3. Same.
    Where the plaintiff was a resident at the time of the commencement of the action, and it has_ been litigated on the assumption that the court would entertain jurisdiction, and has reached a point where a speedy trial can be had, a refusal to dismiss is a proper exercise of discretion.
    Appeal from order denying motion to dismiss the action on the ground that the court should no longer entertain jurisdiction of the same.

      Leon Abbett, for app’lt; A. W. Otis, for resp’t.
   Per Curiam.

The plaintiff has been present as an inhabitant of this state for the period of eight years; and after he became such commenced this action against the defendant upon a cause of action arising in the state of Massachusetts. It has been litigated for the intervening period upon the assumption that the court would entertain jurisdiction of it; and it has now reached a point where a trial can speedily be obtained.

It should be borne in mind that this is an action in tort, both parties being non-residents, the cause of action arising out of the state; and the refusal of the court to entertain jurisdiction does not depend upon the motion of the parties necessarily. The court may refuse upon its own motion to entertain jurisdiction in such an action.

Whether the court would or would not retain jurisdiction in this action was a matter of discretion; and under the circumstances the discretion was fairly and reasonably exercised in the denial of the defendant’s motion.

The order should be affirmed, with ten dollars costs and disbursements to abide the event.

Van Brunt, P. J., Brady and Daniels, JJ., concur.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    William Hagadorn, Resp’t, v. The Village of Edgewater, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    Pleading—Answer.
    An answer denying that defendant has any knowledge of information as to the allegations contained in the complaint sufficient to form a belief, is sufficient and cannot be stricken out as frivolous.

      Appeal from judgment and order striking out defendant’s answer as frivolous.

      William M. Mullen, for app’lt; James Ridgway, for resp’t.
   Van Brunt, P. J.

As was said in the case of Barney v. King, decided herewith, the argument of the respondent’s counsel shows conclusively that in his opinion the answer stricken out was not frivolous. In order to sustain his proposition he has thought it necessary to cite twenty-six authorities, none of which . have the slightest application to the question presented.

The motion seems to have been granted upon the ground that the answer contained no denial, because it simply denied that the defendant had any knowledge or information as to the allegations contained in the complaint sufficient to form a belief. This form of denial, however, is expressly authorized by § 500 of the Code.

It hardly needs authority or argument to establish its sufficiency.

The judgment and order should be reversed, with costs.

Daniels and Brady, JJ., concur.


author: Daniels, J.

text:
    Sarah Uransky, Resp’t, v. The Dry Dock, East Broadway & Battery R. R. Co. App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    1. Negligence—Evidence—Experts.
    Questions put to expert witnesses which require them to determine in their own minds what the evidence was which had heen given, and then to form and express their judgment upon their own conclusions as to the nature and effect of that evidence, are improper, and should not be allowed.

      2. Same—Credibility op witnesses.
    The court having charged that the jury were not bound to give plaintiff’s testimony the same credence as they would to a disinterested witness, charged at her request that defendant’s employes were not disinterested witnesses and their evidence should be subjected to as severe criticism as the plaintiff’s. Held, error.
    Appeal from a judgment entered upon the verdict of a jury,, and from an order denying a motion for a new trial.

      John M. Scribner, for app’lt; James S. Lehmaier and Louis Z. Kinstler, for resp’t.
   Daniels, J.

The plaintiff was injured while riding as a passenger in one of the cars of the defendant, by a collision between the car and another vehicle upon the street, on or about the 22d of April, 1885. The injury received by her was charged to have been permanent and to have resulted in a miscarriage of a child of which she was at the time pregnant. Her evidence tended directly to prove that the collision with the other vehicle in the street resulted from carelessness, or improper management, on the part of the driver of the car. It also tended to establish the fact that these other allegations contained in the complaint were truthful. But in the examination of physicians who were called upon to testify as witnesses in her behalf questions were allowed to be. answered under the exceptions taken by the defendant which are now insisted upon as erroneous. By one of these questions the witness Nordeman, who was a practicing physician, was asked :

“Assume that Mrs. Uransky was in good.health upon the afternoon of April 22, 1885, and became a passenger upon a street car, which car came into collision with a truck; that the collision was so great as to result in her striking her head against a pane of glass; that the pane of glass was broken and her head was cut, that she then went home and went to bed, and two days afterwards had a miscarriage, having begun to bleed at her womb some hours after she returned home, and the bleeding having kept up until the miscarriage took place, would you, as an expert, say that the miscarriage was the result of that collision?"

This was objected to as incompetent, and the objection was sustained by the court on the ground that there was no such testimony in the case as was included in the question. After that ruling was made this further question was propounded to the same witness:

Q. Having heard the statement made by counsel and you having seen this woman on that evening with the injury such as she had, would such injury as she was then suffering, in your opinion, be sufficient to cause a miscarriage on the following Saturday ?

This was also objected to as incompetent, but the objection was overruled and the witness answered “ Yes, sir."

Another physician examined as a witness upon the trial was asked these questions:

Q. You have heard the statement contained in that question? A. I have heard the counsel make the statement now.
Q. You have heard the statement of what were the injuries that this woman claims to have suffered on that day ? A. I have heard counsel’s statement

And after answering them the further inquiry was made to him:

Q. Would that in your opinion, as an expert, have been sufficient to have caused a miscarriage at the time stated, namely, on the Saturday following the accident ?

This was objected to by the defendant’s counsel as incompetent, and the witness answered, “Yes, I should consider that a sufficient cause.” He was also asked:

Q. Did you hear- the testimony in regard to the miscarriage given by the plaintiff? A. Yes, sir; I heard a part of the plaintiff’s testimony.
Q. That portion of it in which she spoke of the miscarriage ? A. Yes, sir.

And was then directed to answer a previous question inquiring concerning the probability of the miscarriage being caused by what had occurred. And that was objected to by the defendant’s counsel as incompetent, but the objection was overruled and the counsel excepted to the decision so made, and the witness answered, “Yes." These rulings were clearly erroneous, for they required the witnesses to determine in their own minds what the evidence was which had been given, and then to form and express their judgment upon their own conclusions as to the nature and effect of that evidence. The jury in this form of inquiry would be utterly unable to apply the answers obtained from the witnesses to the case they had to consider and decide, for they had no means of knowing what views were entertained by the witnesses as to what the evidence was which had been previously given and upon which their answers were obtained. In the cases of Gregory v. N. Y., Lake Erie, etc., R. R. Co., 55 Hun, 303; 28 N. Y. State Rep., 726, and People v. McElvaine, 121 N. Y., 250; 30 N. Y. State Rep., 977, this mode of eliciting evidence has been condemned as entirely improper. And there is no reason disclosed from the case for doubting the fact that the jury must have acted in rendering their verdict upon the evidence in this manner obtained.

The court charged, at the request of the defendant, that the jury were not. bound to give to the evidence of the plaintiff the same credence which they would or ought to give to- a disinterested witness, as she was to receive the fruits of the litigation i"f the 'case proved successful. Upon the plaintiff's request the further charge was given to the jury that the defendant’s employes were not disinterested witnesses, and their evidence should be subjected to as severe criticism as the plaintiff’s, and to that an exception was taken on the part of the defendant While the first of these directions was appropriate to the case, the second as clearly was not so. For the jury were not bound to subject the testimony of the defendant’s employes to the same severe criticism as they were the evidence of the plaintiff, but it was for them to determine, in considering all the probabilities of the case, how much credit these witnesses were entitled to receive in their statements at the hands of the jury. This exception, accordingly, appears to have been well taken.

¡Neither of these objections were before the court upon the first appeal, the decision of which is reported in 44 Hun, 119; 7 N. Y. State Rep., 395, and 118 N. Y., 304; 28 N. Y. State Rep., 711; but they are presented for the first time upon this appeal. They were erroneously made and went to the foundation of the plaintiff’s right to maintain the action and recover damages. And without considering other objections of a somewhat similar character, the result seems to be unavoidable that this judgment and order should be reversed, and a new trial directed, with costs to the defendant to abide the event.

Van Brunt, P. J., concurs.


text:
    Catharine McIntyre, App’lt, v. The German Savings Bank, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    1. "Costs—Appeal.
    Where an order denying a motion for a new trial is affirmed on appeal, the respondent is entitled, as a matter of course, to the costs of the appeal, and, if the same are not paid within the time specified in § 779 of the Code, may collect the same by execution.
    2. Appeal—-Waiver.
    Where a motion to compel plaintiff to enter final judgment and to stay the collection of costs of appeal until such entry, is granted as to the stay, but denied as to the judgment, the plaintiff, by allowing the portion of the order in her favor to stand, does not waive her right to appeal from the portion directing a stay.
    Appeal from order staying the collection of costs granted to-the plaintiff by the order of the general term of this court, affirming an order of the special term denying a motion for a new trial on a case and exceptions, until the entry of final judgment and vacating execution issued for their collection.

      Arthur H. Smith, for app’lt; Lewis Sanders, for resp’t.
   Van Brunt, P. J.

Section 3239 of the Code provides that upon an appeal from an interlocutory judgment or order in an action costs are in the discretion of the court, and may be awarded absolutely or to abide the event, except as follows : When the appeal is taken from an order granting or refusing a new trial,, and the decision upon the appeal refuses a new trial, the respondent is entitled of course to the costs of the appeal.

In the case at bar the appeal was from an order of the special term denying a motion for a new trial on a case and exceptions, and such order was affirmed, and in pursuance of the section of the Code which has been cited the respondent was entitled as matter of course to the costs of the appeal. They were not in the discretion of the court The court had no power to make these costs abide the final event of the action, but the respondent upon the affirmance of such an order had an absolute right to these costs and they were awarded by the order of the general term entered upon the affirmance of the order of the special term. This brings the case clearly within the provisions of § 779 of the Code: where the costs of a motion or any other sum of money directed by an order to be paid are not paid within the times therein specified an execution against the personal property of the person required to pay the same may be' issued to any person to whom said costs or sum-of money is made payable by said order.

If it be said that the costs of an appeal from an order are not motion costs, it may be sufficient to answer that they clearly are such within the contemplation of the Code, because there is no other provision made for their collection.

It may be argued that they may be included in the final judgment, but occasions may arise where such costs are incurred after the entry, of a final judgment, as § 1005 provides that a motion for a new trial may be made after final judgment.

It is clear that in the contemplation of the Code an appeal from an order denying a motion is nothing but a continuation of the motion ; and whatever costs may be incurred in the continuation of the motion are the costs of the motion and have no relation whatever to the general costs of the action. We think, therefore, that the plaintiff had the right to collect these costs, she being by the provisions of the Code absolutely entitled to the same.

As to the claim that the plaintiff by appealing from so much of the order as restrained her from collecting the costs, leaving standing in her favor that part of the order denying the motion to compel her to enter judgment, thereby waived her right to appeal, we fail to see the force of the suggestion.

A party moved against is successful in defeating a part of the relief asked upon such motion; and because of such success it is claimed she is deprived of the right to appeal from so much of the order as grants relief against her.

This is certainly a novel proposition that a party must be entirely defeated in order that she may have a right to appeal; and that where the success of the moving party is only partial no right of appeal exists. .

The order should be reversed and the motion denied, with ten dollars costs and disbursements.

Daniels and Brady, JJ., concur.


author: O’Brien, J.

text:
    Frank Work et al., App’lts, v. Miles Beach, Resp't.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1881.)

    1. Contbact—Promise to pay when able.
    Where parties settle disputed claims by striking a balance which defendant promises to pay when able, an. action to recover such balance is not an action upon an account stated and settled, but one brought upon the promise, and in order to recover plaintiffs must prove some change for the better in defendant’s circumstances at a period subsequent to' the time when the promise was given.
    3. Same.
    Proof that defendant was in receipt of a judicial salary is not sufficient to show such ability, where it also appears that he received the same when the contract was made and that he saves nothing out of it.
    8. Same—Evidence.
    " Where one of defendant’s letters claimed to evidence the agreement stated that he would write a letter stating his obligation to pay when able “in accordance with our agreement on Saturday last,” evidence tending to prove what the entire agreement was is admissible, as the letter evidently did not contain the entire contract.

      4. Same.
    In such an action evidence as to whether defendant could not have saved sufficient from his salary to pay a portion of the claim, and why he did not do so, is inadmissible.
    Appeal from a judgment dismissing plaintiffs’ complaint.

      Henry S. Bennett, for app’lts; Augustus C. Brown, for resp’t.

       Affirming 35 N. Y. State Rep., 22.

   O’Brien, J.

The appellants claim that it was error upon the , part of the trial judge to assume that the promise made by the »defendant is the cause of action and insist that the pleadings and the proof show it to be an action upon an account stated and settled.

This precise question was presented upon a former appeal in this case, 53 Hun, 9; 24 N. Y. State Rep., 256, and it was held by this court upon an examination then of the complaint, as it now more clearly is made to appear by the proof offered upon the trial to sustain the allegations of the amended, complaint,. “ that the original debt was discharged and a new obligation created, and that the promise to pay ‘ when able to do so ’ upon which this action is founded was conditional, and that to entitle the plaintiffs to recover thereon they must plead and prove the fact of such ability.”

Upon the lines thus indicated the learned trial judge proceeded with the trial and correctly ruled that plaintiffs were not entitled to judgment upon the pleadings as upon an account stated, settled and admitted, and in an opinion remarkable for its force and clearness, he points out the error into which the plaintiffs seemed to have fallen “in completely ignoring the valuable consideration which-upon the settlement the plaintiffs received from the defendant for their acceptance of this! very conditional promise.”

We might well be content to allow this appeal to stand upon the decision and opinion of the learned trial judge, who in our judgment correctly disposed of every question presented.

It would be useless to go over the ground traversed by him and discuss the principles laid down in the cases cited in support of his rulings and which with a single exception included all the decisions that could be found, both American and English, bearing upon the issues between the parties. This exception (the-case of Tebo v. Robinson, 100 N. Y., 29), seems formerly to have'been overlooked by counsel; for it was not called to the attention of this court upon the former appeal, nor to the attention of the judge upon the trial.

The course of reasoning pursued by the latter is nevertheless directly in the line taken by the court of appeals in Tebo v. Robinson, supra, which thus becomes an argument and an authority to support the judgment rendered.

'The action of Tebo v. Robinson was brought upon a promise-contained in a letter written by defendant to plaintiff in October,, 1872. Of so much of the letter as is material, the following is a copy: ' .. .

. “You will find enclosed one hundred dollars, with interest,, which you so kindly loaned me one year ago, and I hope and trust that I shall shortly be able to enclose you one thousand dollars, which you also kindly loaned me, hoping at the same time you •may have no need of it until such time as I shall be able to pay it, and you may rest assured you shall have the money thei moment I am able to pay it’!

The complaint averred ability to pay prior to the commencement of the suit. This was not denied in the answer. The sole, defense set up in the answer was the statute of limitations.

In writing the opinion of the court, Andrews, J., says: “ The-cause of action on this promise accrued as soon as the defendant, had the pecuniary ability to pay his debt Proof that the defendant at a particular time, subsequent to October 19, 1872, had property equal to or greater than the amount of the plaintiff’s debt would not conclusively show that he was able 'to pay the debt within the meaning of the promise, so as to give a right of' action. This fact might be consistent with utter insolvency on. the part of the defendant, or the property might he of such a character that to deprive him of it would take away his means of livelihood as effectually as depriving a mechanic of his tools would deprive him. of means of support. A promise to pay when able is to be reasonably interpreted.

“ On the one hand it does not imply ability to pay without embarrassment, or even without crippling the debtor’s resources or business, while on the other hand ability to pay cannot be fairly implied while the debtor, although he may be in possession of property sufficient to pay the particular debt, is plainly insolvent, or when payment if enforced would strip him of his means of support. The creditor, or a promisee of this kind, reposes very much on the good faith of the promisor. He generally relies upon the debtor’s making known any change in his pecuniary circumstances which enables him to pay the debt, although there is no duty of voluntary disclosure. It is not contemplated by the parties" that the debtor will "pay the debt out of the earnings necessary for the support of himself or his family or that he will pay the particular debt to the prejudice of- other creditors whose debts are absolute and unconditional.”

In language of similar import Mr. Justice Barrett in this case says: “What is here meant by ability to pay? * * * It may fairly be deduced from the cases that the plaintiffs were bound to prove the defendant’s ability to pay at the commencement of the action, and that such ability could be shown by circumstances as well as by direct evidence. Beyond this there is no fixed rule. Bach case must depend upon the terms of the contract, read in the light of the surrounding circumstances. Substantial proof of ability within the intent and meaning of the parties must be given ; and although that proof may in the nature of things be difficult it is none the less requisite. By taking a conditional obligation, the condition itself .being founded upon a valuable consideration, the obligee accepts the burden imposed upon him of establishing the fulfilment of the condition before he can recover. * * * The understanding undoubtedly was that the defendant should be required to pay only when his circumstances were changed for the better, either by an acquisition of fortune or a decrease of obligation.”

It was therefore correctly ruled that it was incumbent on plaintiffs to show some change for the better in defendant’s circumstances at a period subsequent to the time when the promise was given. Such a construction, finding support as it does both upon principle and authority, was given to the contract between' the parties upon the trial. Ho evidence was presented to warrant the conclusion that defendant’s circumstances had improved, or showing his ability to pay. He was in receipt of his salary as judge when the contract was made. He received it then as now monthly, and the testimony shows that out of it he saved nothing. It is useless to speculate as to what defendant could or should have done, the question being, did the plaintiffs prove defendant’s ability to respond within the meamng of the contract. The conclusion reached was justified by the proof.

Assuming however that the principles ofTaw were correctly applied, it is claimed that the court erred in permitting the introduction and giving effect to evidence varying the written contract as set forth in the letters by allowing after objection the introduction of the complaint in the original action by plaintiffs on the joint account and by incorporating in the fifth finding the conversation between the parties as evidence of what the agreement was, thus modifying, as claimed, the lettersyvhich the parties wrote and in which they intended to express' the" agreement which they made. In other words the claim is that the court thus interpolated the conversation which led to the original agreement into the agreement itself.

In answer to this objection it is only necessary to remember that in 'the letter of December 15, 1884, written by the defendant to the plaintiff in which he directs them to sell the securities mentioned in the letter, he thus concludes : “ When this is done * * * I will then write a letter to you stating my obligation to pay this sum when I can do so, in accordance with our agreement on Saturday last” It will thus be seen that in the letter itself, which is one of the letters referred to by the appellants as containing the agreement between the parties, it would appear that the agreement itself was made on that Saturday, that the letters did not embody the entire contract, and this justified the reception of evidence tending to • prove what was the entire agreement. The effect of the construction given to the agreement by the judge necessarily resulted in excluding testimony offered by the plaintiffs tending to show how much the defendant could have paid, if anything, less his personal expenses, and as to whether he was not during that period able to save sufficient from his salary to pay any portion of the claim, and why he did not devote any portion of the difference between his individual expenses and the amount of his salary to pay this obligation. As already said, what he might, could or should have done was not the question at issue.

By the agreement between the parties it was an essential part of plaintiff's cause of action to show ability to pay.

Therefore, after a careful examination of the case and exceptions, we are of opinion that no error was committed justifying a reversal, and that the judgment should be affirmed, with costs and disbursements.

Van Brunt, P. J., and Daniels, J., concur.


text:
    Max Rosenheim, Resp’t, v, Alfred S. Rosenfield, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    1. Partnership—Dissolution—Business name.
    Where an agreement of dissolution of a partnership contains mutual covenants, such covenants are a sufficient consideration for all the reciprocal engagements and transfers of the parties, including an assignment of the exclusive property in the firm name.
    2. Same.
    Plaintiff and defendant were partners doing business in the name of “ The E. & E. Chemical Works.” On dissolution the exclusive right to use said name was assigned to plaintiff. Held, that his use thereof was not a violation of § 863 of the Penal Code, as he preceded the same with his own name as “ sole proprietor."
    3. Same—Injunction.
    Although plaintiff did not personally manufacture the articles sold by him under that name, the fact that he described himself in his circulars as “manufacturers” will not affect his right to be protected in its use by enjoining its use by defendant.
    4. Same.
    Where the assignment of the use of such name to plaintiff is absolute and not dependent upon an observance of the other parts of- the agreement, an invasion by him of territory exclusively reserved to defendant will not give the latter a right to use such name, or affect the plaintiff’s right to an injunction.
    Appeal from order of injunction restraining the use by the defendant of the name The R. & R. Chemical Works.

      Meyer Auerbach, for app’lt; Leonard Bronner, for resp’t.
   Daniels, J.

The parties were engaged as copartners prior to the 29th day of December, 1889, carrying on the essential oil and chemical and extract business, in the city of New York. The firm name was that of Rosenheim & Rosenfield, and they used and employed in their business the name of “ The R. & R. Chemical Works.” • This firm was dissolved on the day just stated, and an agreement was made by which the plaintiff took the entire stock of goods and merchandise and accounts of the firm then on hand, with power to collect and receive the debts due to the firm.

A further agreement was made between these parties on the twenty-ninth of the same month for the dissolution of the firm, and the regulation of their conduct in future business carried on by each of them. And it was thereby agreed that the defendant sold and conveyed “ To the said Rosenheim all his interest of every kind and nature in and to the said firm, good will of said firm, all and every trade-mark in any way owned or acquired by the said firm of Rosenheim & Rosenfield, hereby intending to sell and convey all my interest, both at law and in equity, which I heretofore had, and now have, in the said firm of Rosenheim & Rosenfield, including, as aforesaid, all trade-marks and good will of the said firm.”

And the agreement contained the further stipulations or covenants that “ It is further understood and agreed that the said Max Rosenheim may have the absolute and unrestricted permission and right to use the said firm name of Rosenheim & Rosenfield, and is to have all the benefits and privileges flowing therefrom ; that is to say, the said Max Rosenheim is to have the absolute and exclusive privilege of transacting and of doing business under the name of The R. & R. Chemical Works, and is to have the exclusive right and privilege of using all the trade-marks of the said chemical works, or any and all trade-marks owned and belonging to the said firm, this day dissolved, and hereinbefore absolutely transferred to the said Rosenheim.

“ It is further understood and agreed that the said Alfred S. Rosenfield shall at no time have any authority, in any way or manner, to make any contracts under the name of The R. & R. Chemical Works; it being expressly understood that the said Rosenfield has no power or authority to issue or make or accept any notes, checks or bills of exchange, or make any other contract or writing or paper under the said name of Rosenheim & Rosenfield ; it being expressly understood by the said Rosenfield that there is no relationship of principal and agent or of co-partners between the said Rosenheim and the said Rosenfield.”

And after • these agreements were made the defendant commenced and continued business for himself, in the same products or articles, under and used therein the name of The R. & R, Chemical Works. And by the injunction order he has been restrained from using that name, or phrase, during the pendency of the action.

The agreement by which the right to employ it in his business was transferred by the defendant to the plaintiff has been assailed as without consideration. But, as it contains mutual covenants or stipulations throughout, it is quite evident that the agreements of each of the parties formed the consideration of those entered into by the other, and that this objection cannot be sustained.

The further objection has also been taken that so much of the agreement as by its terpas transfers to the plaintiff the exclusive right to employ this phrase in his future business was made in violation of § 363 of the Penal Code, forbidding any person from using in his business “ the name as partner of one not interested with him as partner, or using the designation ' and company,’ or ‘ & Co.’, when no actual partner or partners are represented thereby,” and declaring the act to be a misdemeanor. But this objection has no foundation in the facts of the case. For the phrase, The R. &. R. Chemical Works, although identical in its two. initial letters with the initial letters of the surnames of the parties, do not as they have been used, and as it was intended by the agreement with the plaintiff they might be used, indicate that' the business since carried on by him is that of a partnership with any other person.

In their use, with exceptions stated to have been inadvertent and unintentional, they have been made to follow the name of the plaintiff as “ sole proprietor,” of the R. & R. Chemical Works, which on its face carries the information that the use is not by a firm, but by an individual only. And no person from a circular, or advertisement, in that form could by any possibility be misled, or induced to believe that the plaintiff was engaged in business with another person as á member of any business firm. The words on the contrary of sole proprietor clearly expressed the fact to be that the business was solely that of himself,-and that the statute was in no respect violated. It is highly penal in its provisions, and cannot be extended by the construction of its words to include this case, which is not within them, or within any fair significance which can be assigned to them. Gay v. Seibold, 97 N. Y., 472; Lauferty v. Wheeler, 63 How., 488.

The plaintiff was not personally engaged in the manufacture of the articles in which he dealt under these terms, neither was the firm itself while it existed. But they were manufactured by and obtained from Maas & Waldstein, who were the manufacturers. They appear to have been well known articles in the trade, and were dealt in by the firm, and the plaintiff, as its successor, as such. And in those dealings the plaintiff is, under the agreement made with the defendant, entitled to be protected against his violations of its provisions. The case in this respect is not dissimilar to that of Godillot v. Harris, 81 N. Y., 263, where it was held that the plaintiff, who was not the manufacturer himself, was entitled to be protected in his business as a dealer in a manufactured article, against the simulated competition of the defendant' in the same trade. And the fact that the plaintiff has stated himself in his circulars or business cards to be •“ distillers,” “ importers ” and “ manufacturers,” will not necessarily result in a forfeiture of that right, as long as it was no part of the agreement in controversy that those representations might or should not be made by him. What it was agreed he should be at liberty to exclusively use was the phrase, The R. & R Chemical Works, and it is no more than his right to that use, that is now brought into controversy by their similar use also by the defendant.

These additional words 'had also been in like manner employed in the business of the firm and could not result in any public deception, as the fact was that the plaintiff stated himself to be the 'sole proprietor of the business. That had the effect of changing and, in fact, applying the tenor of the words to himself alone, although they were left in the plural form of which, in strictness, they should be divested. But the failure so to employ them gave the defendant no authority to use the phrase in his business, the exclusive right to which he had to the extent of his interest in it transferred to the plaintiff.

It was a distinguishing designation of the business to which the plaintiff succeeded, and he became entitled to its unmolested use, for the identification of that business. Kidd v. Johnson, 100 U. S., 617; Manhattan M. Co. v. Wood, 108 id., 218; Symonds v. Jones, 82 Me., 302. And the cases of Hazard v. Caswell, 93 N. Y., 259, and Caswell v. Hazard, 121 id., 484; 31 N. Y. State Rep., 576, are in no respect subversive of that right.

The invasion by the plaintiff of the territory secured by _ the agreement to the defendant, for his exclusive custom, will not entitle him to use this phrase in the business carried on by him. For the exclusive right of the plaintiff to it has not been made in any respect to depend upon his observance of this other part of the agreement. But the exclusive right to the phrase has been positively and in the most direct terms transferred to the plaintiff. And the fact that he himself may have become involved in other wrongs will not forfeit the right in this manner obtained. The remedy of the defendant is that of an action in his own behalf for his own vindication; not an attempt to resume what he has irrevocably and finally parted with. The use, stated to have been inadvertent, of the partnership name in his own business by the plaintiff is controlled by the same principle. He had no right or authority to use that name outside of its own unfinished affairs. But that use of it vested the defendant with no power or authority to resume the use of this business phrase after it had been so effectually transferred to the plaintiff.

There is no good cause presented for vacating this injunction. And the order should be affirmed, with ten dollars costs and the disbursements on the appeal.

Van Brunt, P. J., and Brady, J., concur.


author: Van Brunt, P. J. Daniels, J.

text:
    Mary C. Fairfield, App’lt, v. John H. Feagles, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    Bills and notes—Consideration—Charge.
    The action was brought upon a note claimed to have been given to the mother of the parties to induce her not to claim dower, but to take tbe provision made for her by her husband’s will, and plaintiff testified that defendant so informed her after she had taken a transfer of it. Defendant gave evidence to show that it was given to the mother in lieu of support, in contemplation of her leaving his house, and that she changed her mind and remained. The court charged that plaintiff was entitled to recover if defendant produced no defense, and that if the jury found that the note was given under the circumstances sworn to by defendant he would be entitled to a verdict; and refused to charge that if it was given to induce the mother not to claim her thirds that was a good consideration and the note was valid and defendant liable, and also that if defendant, told plaintiff the note was so given it was valid and plaintiff was entitled to a verdict. Held, no error.
    Appeal from judgment entered upon verdict and from an order denying a motion for new trial.
    S. E. Fairfield, for app’lt; Davis & Feagles, for resp’t.
   Van Brunt, P. J.

This action was brought to recover upon a promissory note made by the defendant to his mother, Mrs. Polly Feagles, whereby one year from date he promised to pay to her $412 with interest, which note was duly assigned and transferred by Mrs. Feagles to her daughter Mary C. Feagles, now Mary 0. Fairfield, the plaintiff.

It appeared from the evidence in the case that the father of the plaintiff and defendant, Reuben D. Feagles, left a will in which he bequeathed to the defendant in fee a certain farm and imposed a' charge thereon either to support the wife of the testator or to pay to her a sum of $200 annually.

The testator made certain other provisions for his wife and provided that the said gifts and bequests should be in lieu of dower.

It was claimed upon the part of .the plaintiff that the note in question was given by the defendant in order to induce his mother to take the provision under the will and not elect to take her dower; and the evidence offered to support this claim was'that of the plaintiff herself, who testified that the defendant told her soon after the note was transferred to her that it was given so that the mother would not claim her thirds in his father’s estate.

Upon the part of the defendant evidence was offered tending to show that the mother of the defendant having expressed an intention to leave his house and to go and reside with her son David, made a demand for one or two years’ support, and that the note was given for $412, so that it would, on her disposing of the noté, realize $400, which would be two years’ support prescribed by the will; that the mother, having changed her mind, remained with the defendant and never went away, and told the defendant she had destroyed the note. The principal witness to support this claim was "the wife of the defendant. The defendant went upon the stand and contradicted the testimony of the plaintiff that he had ever made the statement testified to by her.

The case was submitted to the jury by the court with instructions that the making of the note being admitted, and the amount upon it due, the plaintiff was entitled to a verdict if the defendant produced no defense to the instrument; and, after setting forth the evidence to the jury, they were instructed that if they found that the note was given under the facts and circumstances sworn to by the wife of the defendant, then the defendant would be entitled to their verdict.

The plaintiff requested the court to charge that if the jury found that John R Feagles made and executed the note mentioned in the complaint, and that the same was given to the mother of the plaintiff to induce her not to claim her third of her husband’s estate, that is a good consideration and the note is valid and the defendant is liable; and further that if the jury found that the defendant told the plaintiff that this note was given so that she would not claim her thirds, the note is valid and their verdict must be for the plaintiff. These requests were refused, and the jury having returned a verdict in favor of the defendant, from the judgment thereupon entered and from the order denying a motion for new trial this appeal is taken.

It is clear that the proposition last above stated cannot be sustained. because it is entirely immaterial as to what the defendant told the plaintiff in regard to the noté. If the fact was not so, the telling could form no consideration for the note, as there is no evidence that the plaintiff ever parted with anything upon the strength of any such declaration.

The only question which needs consideration is the first request. It seems to us that if the jury had found that the note was given by the defendant upon sufficient consideration it would necessarily follow that the plaintiff must recover. It is true that the learned counsel for the respondent alleges that there were other questions for the jury, but he is studiously silent and utterly fails to point them out. There was no question raised about the transfer of the note to the plaintiff, and the sole defense was that this note was given in lien of support and in contemplation of the mother leaving the defendant’s house and going to live with another son, and she having remained the consideration failed.

But it seems to us this request was unnecessary because the court had already charged that unless the defendant substantiated his claim the plaintiff must recover.

-The court had charged that the making of the note and the amount being admitted the plaintiff was entitled to a verdict unless the defendant produced a defense. And the sole defense he attempted to establish was the fact that it was made in lieu of support, and that because his mother remained with him this consideration failed. The jury must have found that such was the origin of the note; because the last words of the court which ended the charge were substantially that the plaintiff was entitled to recover unless the note was given under the facts and circumstances sworn to by the defendant.

Now no plainer issue could have been presented to the jury, and they having evidently believed the story of the defendant’s wife, found a verdict in his favor.

We do not think under the circumstances that the court, having already submitted the question that unless they believed the story of the defendant’s wife a recovery could be had, was bound to repeat the same proposition in another form.

We think, therefore, that the judgment and order appealed from should be affirmed, with costs.

Daniels, J.

I agree to affirm the judgment and order. For as it is said in the opinion, the jury must have believed the note to have been given as that was stated by the defendant’s wife. And that excluded the possibility that the consideration for it was the widow’s agreement, or consent, not to claim her dower in the land.

O’Brien, J., concurs in the result.


author: Brady, J.

text:
    George Gorton, Adm’r, Resp’t, v. The United States & Brazil S. S. Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    Costs—Negligence—Code Crv. Pno., §§ 1903, 3338.
    In an action brought by an- executor or administrator under § 1903 of the Code, for causing the death of his testator or intestate by negligence, the plaintiff is not limited as to costs by the amount of his recovery, but upon recovering is entitled to full costs.
    Appeal from an order allowing the taxation of a bill of costs against appellants’ pontention that under § 1902 of the Code the plaintiff could not recover more than six cents costs under the circumstances of the case.

      Wm. B. Tullis, for resp't; H. Aplington, for app’lts.
   Brady, J.

This action was’brought under § 1902 of the .Code to recover $5,000 damages alleged to have been sustained by reason of the neglect of the defendants. . The trial resulted in a verdict of six cents in favor of the plaintiff, who, without notice, taxed the full bill of costs, which, upon re-taxing, was limited to six cents.

Upon the plaintiff’s motion, however, an order was granted authorizing the taxation of a full bill of costs, but granting to defendants a stay until after a determination of án appeal from that order.

The Code, § 3228, declares the plaintiff entitled to costs of course upon the rendering of a final judgment in his favor in either of the following actions:

3. An action specified in subdivision first, third, fourth or fifth of § 2863 of this act. But if in an action to recover damages for an assault, battery, false imprisonment, libel, slander, criminal conversation, seduction or malicious prosecution, the plaintiff recovers less than fifty dollars damages, the amount of his costs cannot exceed his damages.

Section 2863 referred to in § 3228 is one enumerating the civil actions which a justice of the peace cannot take cognizance of, and they are as follows:

3. Where the action is to recover damages for an assault, battery, false imprisonment, libel, slander, criminal conversation, seduction or malicious prosecution, or where it is brought under §§ 1837, 1843, 1868, 1902 or 1969 of this act.

This action is one embraced within the provisions of § 1902, and therefore one of those of which a justice of the peace cannot take cognizance, but it is not one of those specifically named in which a recovery of less than fifty dollars- damages limits, the amount of costs to the damages awarded.

The specific designation of the actions intended to be embraced in the limit of costs furnishes the most conclusive evidence of the intention of the legislature to exclude all others. The maxim JExpressio unius esi exclusio alterius applies with peculiar force.

Our attention has been called to the case of Garrabrant v. Sullivan, 13 Civ. Pro., 196, but that was a case for damages resulting from a fall into a coal hole, and the question here discussed, though apparently considered, is not so presented as to be regarded as controlling. The language of § 3228 is too emphatic to admit of any doubt, however ingeniously the arguments may be devised and employed. The plaintiff is thereby declared to be entitled to costs of course in actions of this character with others grouped with' it, but as to some of them the limit of costs is applied. The whole subject is embraced in the third subdivision of that section, and was considered, therefore, altogether, and both provision for costs and limit of them inserted in the same paragraph. Nothing on the subject can be said, therefore, to have been left to inference or implication or conjecture.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., and Daniels, J., concur.


author: O’Brien, J. Van Brunt, P. J.

text:
    Frederick B. Gurnet, Adm’r, Resp’t, v. The Grand Trunk Railway Company of Canada, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    1. Negligence—J urtsdiction—Pleading.
    In an action against a foreign corporation to recover for injuries causing death, which occurred outside of the state, it is sufficient, if the complaint show that the foreign statute upon which the action is based is of similar import and character to that of this state; it is not necessary that it should be exactly the same.

      2. Same.
    It is not necessary to allege that such death was caused by such wrong-act, neglect or default as would, under the foreign statute, if death had ot ensued, have entitled the decedent to maintain the action.
    3. Same—Parties.
    An administrator appointed in this state may maintain such an action without showing that letters of administration have been taken out in the state where the death occurred.
    4. Sam's—Demurrer.
    Where the want of jurisdiction does not appear on'the face of the complaint the objection cannot be taken by demurrer.
    Appeal from an interlocutory judgment overruling a demurrer to a complaint.

      George F. Brownell, for app’lt; Benjamin B. Foster, for resp’t.
   O’Brien, J.

The facts alleged in the complaint and conceded by the demurrer are that the defendant company, being a common 'carrier of passengers, on the 28th day of April, 1889, received the plaintiff’s intestate as a passenger on its railway, and so negligently and unskilfully managed the cars and locomotive engine of the railway that the deceased, while exercising due care and caution, was killed thereby; that the plaintiff was duly appointed administrator of his estate by the surrogate of Kings county, New York; that there was at that date and still is a statute in force in the Dominion of Canada, where the decedent was killed, entitled “An act respecting compensation to the families of persons killed by accident and in duels,” providing, among other things, that when the death of a person has been caused by such wrongful act, neglect or default as would, if death had not ensued, have entitled the party injured to maintain an action to recover damages in respect thereof, in such case an action for damages for the benefit of the wife, husband, parent and child of the person may be brought by and in the name of the executor or administrator of the person deceased, and that such statute is similar in its import and character to the provisions of the Code of Civil Procedure of New York with reference to actions by an executor or administrator to recover damages for a wrongful act, neglect or default by which his (decedent’s) death was caused.

The three grounds of demurrer assigned are:

First. That the court has not jurisdiction of the person of the defendant
Second. That the court has not jurisdiction of the subject of the action.
Third. That the complaint does not state facts sufficient to constitute a cause of action.

This last is the one most strenuously urged upon this appeal. It is claimed that as the cause of action presented did not exist at common law, but is based solely on statute, it was incumbent, upon plaintiff to plead not only the Canadian statute, showing it to be similar to our own in respect to surviving in favor of parent or next of kin; but, also, that the cause of action was one which, under the law of Canada, the party injured could have maintained if death had not ensued. Neither contention is tenable. The Canadian statute changing the common law and permitting an action to be brought in the name of the executor or administrator where death ensues is sufficiently pleaded. The contention that the statutes of New York and Canada must be exactly alike is disposed of by Leonard v. The Columbia Steam Nav. Co., 84 N. Y., 52. “It is not essential,” the court says, "that the statute should be precisely the same as that of the state where the action is brought The rule merely requires that it should be of similar import and character.” Nor was it necessary to allege that Gurney’s death was caused by such wrongful act, neglect or default as would under the law of Canada, if death had not ensued, have entitled him to maintain the action.

In Whitford v. Panama R. R. Co., 23 N. Y., 467, it is said: “ Courts do not in general take notice of the laws of a foreign country, except so far as they are made to appear by proof. In the absence, however, of positive evidence as to the law of another country, our laws indulge in certain presumptions. Prima facie a man is entitled to personal freedom and the absence of bodily restraint, and to be 'exempt from physical violence to his person, everywhere. Hence, if one bring an action for false imprisonment or for an assault and battery committed abroad, he need not, in the first instance, offer any proof that such acts are unlawful and entitle the injured party to a recompense in damages in the place where they were inflicted; for the courts will not presume the existence of a state of the law in any country by which compensation is not provided for such injuries. And where the condition of the law of another state becomes material, and no evidence has been offered concerning it, our courts will presume that the general principles of the common law, which are always considered to be consonant to reason and natural justice, prevail there. But no such presumption obtains respecting the positive statute law of the state.”

It therefore follows that while it was necessary to plead as it will be necessary to prove that statute law of Canada with reference to giving to plaintiff a right of action in a case where death ensued, it is not necessary to aver, nor will it in the first instance be necessary to prove, that plaintiff’s intestate could have maintained such an action in Canada if death had not ensued.

The claim advanced that the New York administrator cannot maintain any such suit in our courts, where administration is not also taken out in Canada, is directly in conflict with the case of Leonard v. Columbia Steam Navigation Co., 84 N. Y., 48. It is therein held that an administrator appointed in this state may maintain an action without showing that letters of administration have been taken out in the state where the death occurred.

The other ground of demurrer, that the court has no jurisdiction of the cause of action, was properly disposed of upon the authority of Phoenix Bank v. Donnell, 40 N. Y., 412.

As stated by the trial judge, ‘‘ It is only where it appears on the face of the complaint that the court has no jurisdiction of the subject matter of the action, that such an objection can be taken by demurrer. Here it does not appear on the face of the complaint that plaintiff is a non-resident, and that objection if it exists must be taken by answer.”

This is in accordance with the language of § 488 of the,Code of Civil Procedure, which provides that the defendant may demur to the complaint where the objection appears upon the face thereof. It is true that this action is brought against-a foreign corporation, to recover for an alleged cause of action which arose without the state and which exists only by virtue of a statute of that foreign country. It is equally true upon this state of facts that the action cannot be maintained under our Code unless it is shown that the plaintiff is a resident of the state.

Section 1780 of the Code makes the power to sue a foreign corporation upon a cause of action for tort arising without the state depend on the residence of the plaintiff within the state. This is the precise question in another form which arose in Phoenix Bank v. Donnell, supra, under § 144 of the old Code of Procedure, which contained a like provision, and which in language is similar to the present § 488 of the Code of Civil Procedure, and is, therefore, a binding authority. In that case, which was an action by an incorporated bank, the complaint contained no allegation that, the plaintiff was a corporation or entitled to sue as such. It was conceded that the legal position of the defendant demurring was sound, and that unless it was shown that the plaintiff was a corporation, it had no legal capacity to sue in that character, but the court says:

“Does the argument show that the demurrer is well taken?' All that the argument proves is that the complaint does not show upon its face affirmatively that the plaintiff has capacity to sue. But to sustain the demurrer the Code requires that it should appear upon its face that it had not such capacity, which in no respect appears. -For aught appearing upon the face of the complaint, the plaintiff may be a corporation entitled to sue as such.”

So here, while it is clear that, in order to maintain this action, the plaintiff must prove that he is a resident, and though the complaint does not allege such residence, still upon the face of the complaint it does not appear that he is not such, and the objection must be taken by answer. The fact that this action is a statutory one, and that the Code defiries and limits the jurisdiction of the court to the cases specified, does not change the rule of practice as to the manner in which the objection must be raised. There being no distinct ground upon which this can be distinguished from the question presented in Phœnix Bank v. Donnell, the latter is a binding and controlling authority.

The judgment, therefore, should be affirmed, with costs and disbursements, and with leave, upon payment of the same and costs of the court below, to withdraw the demurrer within twenty days.

Daniels, J., concurs.

Van Brunt, P. J.

The complaint in this action sets out a good cause of action, provided it appears upon the trial that the court has jurisdiction of the person and subject matter. Objection to jurisdiction may be raised by demurrer where it appears upon the face of the complaint that the court has no jurisdiction of the person or subject matter; but, unless want of jurisdiction appears upon the face of the complaint, the objection must be raised by a motion to set aside the summons, where an appearance would confer jurisdiction, or in cases where an appearance would not confer jurisdiction it may be raised by answer or at the trial or upon appeal or by the court itself. Robinson v. Oceanic S. N. Co., 112 N. Y., 315; 20 N. Y. State Rep., 741. I therefore concur.


text:
    David Weinstock, Pl’ff, v. George Levison et al., Def’ts.

      (Supreme Court, Special Term, New York County,

      Filed January, 1891.)

    1. Infants—Sale of real estate.
    The statute authorizing a sale of infants’ real estate cannot he resorted to for the purpose of divesting the infant of the title, or curing a defect therein.
    2. Same.
    Where such proceedings are resorted to for the sole purpose of placing the title in the father of the infant they are absolutely void, although no fraud was intended and the infant has received the fair value of its interest in the property.
    Action to recover back deposit paid upon contract and counsel fees, and expenses incurred in the examination of the title.
    The title was rejected .by plaintiff’s counsel on the ground that it was doubtful, and no marketable title could be given.

      Samuel D. Levy, for pl’ff; Hays & Greenbaum, for def’ts.
   O’Brien, J.

Moore v. Williams, 115 N. Y., 592; 26 N. Y. State Rep., 259, holds that the “ right to an indisputable title, clear of defects and incumbrances, does not depend upon the agreement of the parties, but is given by the law.” “ Within the meaning of this rule * * * a good title means not merely a valid title in fact, but a marketable title which can again be sold to a reasonable purchaser, or mortgaged to a person of reasonable prudence.”

It remains to be considered in the light of this and kindred decisions whether the title tendered and rejected was such that a “ reasonable purchaser, or a person of reasonable prudence, should have taken.”

It is unnecessary to consider the questions raised upon the trial as to the validity of the deed made by Phoebe Sonnenstrahl directly to her husband, without consideration and in contemplation of death, or whether Abraham Sonnenstrahl’s second wife was or. was not an infant when she executed the deed tendered to plaintiff.

The defendants tendered a deed which they asserted was based on a title derived through the infant proceeding, and the plaintiff repudiated the title upon- the express grounds that such proceedings were fraudulent, irregular and void.

The issues thus raised by the parties at the time of closing title should he inquired into in determining whether the title tendered was an indisputable one. At the outset the claim that these proceedings were fraudulent in fact or that any intentional wrong was present are negatived not alone by the character of the counsel conducting the proceedings, but by the testimony offered upon the trial. These infant proceedings, however, are purely statutory, and the purposes for which they may be resorted to clearly defined.

The petition upon which the proceeding in question was based, in substance stated that the mother of the infant died intestate, and that she was seized at the time of her death of the premises in question as tenant in common with one Eachel Levi-son, and that the father had an estate as tenant by the curtesy consummate.

This petition was supplemented by a statement that the purchaser was ready to take the property at a price as good as could be obtained, and that it was for the interest of the infant to sell to prevent a partition suit threatened by Eachel Levison, the co-tenant of the property.

The circumstance that Greorge Levison was the special guardian' appointed, and that within a short time after the alleged sale by the guardian to one Eawlings the latter conveyed the property to Eachel Levison, the wife of the guardian, put the plaintiff on his inquiry and he ascertained the facts substantially proved and admitted upon, the trial, that these proceedings were resorted to, not for the purpose of selling the infant’s property to a Iona fide purchaser, but for the purpose of placing the title in the father of the infant.

The test as to whether such a proceeding would bind the infant as against the father or a purchaser with notice must be determined by the consideration as to whether the statute authorizes or the court would have sanctioned such a proceeding if all the facts were really and not formally stated in the petition upon which the proceeding itself was based.

I think that these questions must be answered in the negative. The statute is intended for the benefit of the infant and cannot be resorted to for the purpose of divesting the infant of title or curing a defect therein, and it seems reasonably free from doubt that had the court been placed in possession of the real facts and purpose of the proceeding it would have withheld its sanction and not permitted what was in truth a fictitious sale.

Jt makes no difference, in my opinion, that no fraud was intended, nor is it material, as was shown, that the infant received fair value of her interest in the property from the father.

The facts still remain that the proceeding was not resorted to for the purpose of selling in good faith, to a real purchaser, the infant’s property, hut the alleged purchaser was brought forward to assist and co-operate with the special guardian in carrying out the plans arranged beforehand by which the title, unincumbered by the infant’s interest, could be transferred to the father. It is true the father deposited with the city chamberlain the money value of the infant’s interest, and wdiile therefore no attempt to overreach or wrong the infant was done or intended, it would never do to hold that such a proceeding was merely irregular or voidable, but it should be held to be absolutely void.

To hold otherwise would be in effect to say that when no wrong is intended the statute authorizing a sale of infants’ real estate may be resorted to, the forms of law employed, the sanction of the court obtained in a proceeding brought not to really sell an infant’s property, but for a purpose entirely foreign to that authorized by statute.

The purchaser after inquiry having received notice of the true state of affairs, was justified in refusing to take a title in which the infant still had an interest which could not be divested except in a manner provided by law.

ISTor do I think that the defendants can receive any comfort from the contention that if these proceedings were void, then the defendant Sonnenstrahl can assert title under the deed from his wife. It may well be that such deed conveyed a good title, but defendants did not rely thereon, but after examination and under advice of counsel they resorted to the infant proceedings to remove what they must have regarded as a doubt about the validity of the wife’s deed.

Defendants, moreover, contend against plaintiff’s right to assail the deed from the wife or to inquire as to the infancy of the second wife for the reason that they relied on the time of closing title upon the sole objection that the infant proceedings were void. In support of this contention reference is made to the case of the Ohio & Mississippi R. R. v. McCarthy, 96 U. S., 258, 267, which in effect holds that where a party gives a reason for his conduct and decision touching anything involved in a controversy he cannot, after litigation has begun, change his ground and put his conduct upon another and different construction.

Is not the same principle applicable to defendants themselves when, after asserting title under the-proceedings in question, they now seek to alter their position and claim that, although the proceedings were void, nevertheless, through another source they held a good title which plaintiff was bound to know of and which he should have accepted, although it appeared that defendant, by resorting to the proceedings themselves, cast a doubt on the validity of this very title? The question is not whether the title offered was absolutely good or bad, but whether there was such a reasonable doubt as to the title proffered as was sufficient to authorize its rejection.

In my opinion the proceedings to sell the infant’s property being void, whether defendant Sonnenstranhl had or had not a good title by deed from his wife, the purchaser was justified in refusing to take title and accordingly is entitled to judgment fot the deposit paid on the contract and his expenses for searching title.

Judgment accordingly.


author: Beach, J.

text:
    Ophelia J. Cuthbert, Pl’ff, v. Cornelia D. Chauvet et al., Def’ts.

      (Supreme Court, Chambers, New York County,

      Filed March, 1891.)

    Injunction—Determination of claims to real estate.
    In an action to compel the determination of adverse claims to real estate, of which plaintiff is in possession claiming to own the fee, an injunction pendente lite, under §§ 603 and 604 of the Code, will be granted against defendants who have brought ejectment suits against plaintiff affecting such land, restraining all proceedings in any of the suits last named until the final determination of the action.
    Motion for injunction pendente lite.

    Hoadly, Lauterbach & Johnson, for pl’flf; Donohue, Newcombe & Cardoza, for def’t, Chauvet; Charles F. MacLean, for def’t, Ives; Robert Sewell, for def’t, Schermerhorn.
   Beach, J.

The motion is for the continuance of a temporary injunction pendente lite. The complaint avers that plaintiff and the defendant, The Hew York Life Insurance & Trust Company, are owners in fee, holding requisite possession of realty therein particularly described. That defendant Schermerhorn lias pending against plaintiff and the other defendants ten actions of ejectment, and two of the defendants threaten suits of like character. All these parties claim as heirs-at-law of Francis W. Lasak, deceased, under whose last will and testament plaintiff takes her title. Each suit in ejectment involves the validity of the said will. Judgment is here demanded forever barring the defendants from all claims to any estate of inheritance, freehold, possession, reversion or remainder in the premises. Also, for a perpetual and a temporary injunction against the prosecution of pending actions and the bringing of others by defendants to enforce their claims.

This action is evidently brought under §§ 1638 to 1650 of the Code of Civil Procedure, regarding claims to real property. The learned counsel for defendants urge that no injunction pendente lite can issue, because the action is at law and not in equity,-and, whether so or not, is not within §§ 603 and 604, which prescribe rules for issuance of the writ. The position taken seems to me untenable. In Stamm v. Bostwick, 65 How. Pr., 358, the action being under the same Code provisions, an injunction was granted, and upheld by the general term of this department, where there was danger of the plaintiff’s possession being unlawfully disturbed. Therefore the court has the requisite power.

The form of action specially provided by the cited provisions of the Code has characteristics of both law and equity proceedure. Section 1643 names a verdict, report or decision, comprising a disposition by either branch of the court.

In this view an injunction pendente lite may be granted under averments of existent and threatened litigation, the language of § 603 being sufficiently comprehensive. The plaintiff in his complaint may demand “ a judgment against the defendant restraining the commission or continuance of an act, the commission or continuance of which during the pendency of the action would produce injury to the plaintiff.” Should the case proceed as one in equity, the relief would be appropriately included in the decree, and if under § 1642, as one at law, it would be omitted, the judgment provided being sufficient. This course of procedure cannot be determined until issue shall be joined. The prosecution of a number of ejectment suits would produce certain injury to the plaintiff, with a possibility for two trials of each one.

The relief asked in this motion was prayed and granted in the New York & New Haven R. R. Co. v. Schuyler, 17 N. Y., 592, where the numerous holders ■ of invalid stock certificates were stayed in the prosecution of suits. It is true that action was strictly in equity, their cancellation being sought. As before said, this action is in equity, until an issue of fact shall be joined, when the future procedure will assimilate to one at law. In the latter event the trial will be before a jury, and by § 1646 the unsuccessful party is entitled to a new trial within the same time and under the same circumstances as in ejectment. If no issue of fact shall be joined the trial is before the court without a jury, and results in the report or decision mentioned in § 1643.

The examination and citation of the many adjudications, upon the subject of multiplicity of suits, and bills quia timet, is not called for, because the question raised is whether or not, under the §§ 1638 to 1650 and 603-604, an injunction pendente lite should be given. With the mode thus provided to finally determine the rights and claims common to all in one action, it would be unjust to permit the institution and prosecution of many independent suits involving the same question, and entailing intolerable burdens of labor and expense.

Motion granted.


author: Lawrence, J.

text:
    The People ex rel. Alexander Meakim et al., Com’rs of Excise, v. Leonard A. Giegerich, Clerk of the City and County of New York.

      (Supreme Court, Chambers, New York County,

      Filed May, 1891.)

    Excise—Bonds—County clebk.
    The county clerk of New York is the clerk of the city within the meaning of the excise law of 1857, with whom the bonds taken by the commissioners must be filed, and he is entitled to receive the fee prescribed by § 3804 of the Code upon the filing of each bond.
    Application for mandamus.

      Edward Browne, for commissioners of excise; William H. Clark, corporation counsel, for def’t.
   Lawrence, J.

This is an application for a mandamus to compel the clerk of the city and county of Mew York to take and file the bonds of applicants, which are given to the excise board, without charging any fee therefor.

The county clerk refuses to take and file the bonds, basing such refusal upon § 3304 of the Code of Civil Procedure, which provides that “ A county clerk is entitled for the services specified in this section, except where another fee is allowed therefor by special statutory provision, to the following fees: * * * Eor filing any paper required by law to be filed in his office, other than as expressly provided for in this section, six cents. For filing any paper deposited with him for safe keeping^ six cents.”

The bonds which are the subject of this application were delivered to the relators pursuant to § 28 of chap. '628 of the Laws of 1857, which provides that: “Every bond taken pursuant to the provisions of this act shall, within ten days after the execution of the same, be filed in the office of the clerk of the town or village in which the license shall be granted, and in the cities, in the city clerk’s office.”

If, as the relators assert, the clerk of the city and county of New York is not the city clerk, it would be, as the counsel for the respondent contends, a short answer to this application to say that no right to a mandamus is shown, for the reason that no duty, under that construction of the statute of 1857, rests upon the county clerk to receive the bonds with or without the payment of fees. I think that it is manifest, however, that the clerk of the city and county of New York is the city clerk, within the meaning of the statute. The clerk of the county of New York had for years before the passage of the act of 1857 been designated as the clerk of the city and county oí New York. He was both the city clerk and the county clerk. Constitution 1821; Constitution 1846. It could not have been intended by the Legislature of 1857 that in this country, where so many bonds are required to be taken by the excise commissioners, there should be no place of deposit. It is plain to me that the legislature understood that by the constitution the county clerk of New York was also, as his official designation imports, the clerk of the city, and that with him the bonds taken by the relators under the act should be filed. I find no difficulty in holding under this interpretation of the act of 1857, that the county clerk is entitled to receive the fee upon the filing of each bond which is prescribed by § 8804 of the Code of Civil Procedure.

There is no other special fee prescribed by the act of 1857, nor by any other statute to which I have been referred, so as to bring the bonds in question within the exception contained in that section of the Code. Nor are these bonds excepted in any way from the operation of that section. The clerk is entitled to the fee for the filing of any paper other than those expressly provided for by this section, and he is entitled to the fee for any paper deposited with him for safe keeping, and those fees, when received by him under the provisions of chap. 299 of the Laws of 1884, belong to the city. Whether it is anomalous to provide that fees shall be paid by one city officer to another for the benefit of the city treasury is a question with which the court has no concern.

Regarding the provisions of the Code of Civil Procedure as imperative, and as embracing the bonds in question, I must deny this motion; but as it relates to public officers and interprets a statute relating to a public duty, the denial will be without costs.


author: Ingraham, J.

text:
    Rosa Herzog, Pl’ff, v. The New York Elevated R. R. Co. et al., Def’ts.

      (Supreme Court, Special Term, New York County,

      Filed March, 1891.)

    1. Railboadb—Elevated—Effect of consent of common council.
    A consent under authority of the legislature, given by the city of New York to the elevated railroads, to construct their roads through its streets, ves's irrevocably in the railroad companies the right to use the property of the city so devoted for such purpose.
    2. Same—Subsequent purchases fbom city.
    A subsequent purchaser from said city of abutting property takes with knowledge of the grant, and holds subject to the use of the street by the railroads.
    Action to restrain defendants from maintaining and operating their elevated railroad in front of plaintiff’s premises and for damages.-

      Burrill, Zabriskie & Burrill, for pl’ff; Davies, Short & Townsend, for def’ts.
   Ingraham, J.

Prior to the year 1875 the city of Hew York had acquired, under certain condemnation proceedings instituted under the act of 1813, the fee of Third avenue, which it held in trust for use as a public street. As a municipal corporation, the city of Hew York also owned in fee the property abutting on the westerly side of Third avenue, between Sixty-seventh, and Sixty-eighth streets.

On June 18, 1875, an act of the legislature known as the rapid transit act was passed.' By that act a system was established under the provisions of which authority could be acquired to construct elevated railroads over public streets and highways, and it was provided in that act that the use of the streets, avenues, places and lands authorized to be used for the purposes of such highway should be considered, and was thereby declared to be, a public use consistent with the uses for which the streets, roads, avenues and public places were publicly held.

That act also contained a provision which required as a condition for the construction of any elevated railroad under the authority thereby granted, that the consent of the local authorities having the control of that portion of the street or highway upon which it is proposed to construct or operate such railway or railways be first obtained.

In pursuance of the provisions of that act the defendant, the Hew York Elevated Railroad Company, was authorized to construct an elevated railroad in Third avenue, between Sixty-seventh and Sixty-eighth streets, and on September 7, 1875, the common council of the city of Hew York duly adopted and the mayor duly approved the following resolution:

“ Resolved, that this board, on behalf of the corporate authorities of the city of Hew York, hereby gives its consent to the routes adopted by the commissioners on rapid transit as contained in the report of the said commissioners transmitted to the board this day.”

Acting under the authority thus granted by the corporate authorities, the defendant, constructed its railroad in Third avenue, between Sixty-seventh and Sixty-eighth streets. Subsequently, in the year 1885, the mayor, aldermen and commonalty of the City of New York conveyed to the plaintiff’s grantor the premises described in the complaint in this action, abutting on Third avenue, and the plaintiff now brings this action, alleging that she acquired, by virtue of the grant from the city of New York to her grantor, 'and by the grant from her grantors to herself, an easement in Third avenue which has been appropriated by defendant in the construction and operation of its railroad, and asks for an injunction to restrain the defendants from trespassing upon or appropriating such easement. And the question that meets us on the threshold of this case is whether the consent given by the city of New York to the defendant to construct its road in Third avenue did not grant to this railroad company its right in Third avenue as abutting owner as well as its right and interest as owner of the fee of the street.

The city of New York, as a municipal corporation, held all of the property which it owned for public use. It held the fee of the street for a specific public use, viz.: that of a public street, and it had no authority, except by consent of the legislature, to appropriate any of the property held in trust to be used as a street for any purpose except a street use, but all the property that was vested in the corporation was corporate property, and could not be applied to any use except corporate use without the consent of the legislature. The legislature, however, had power to authorize the municipal authorities to consent to the use of its property for any public use, and for such purpose it had power to declare what should be a public use.

It had power, therefore, to declare that the elevated railroad should be deemed a public use, and to authorize the corporate authorities to devote any of the property that it held, whether in trust for public streets or for the general municipal purposes, to the use of such railroad, and when, acting under such authority, the corporation granted the right to use any of its property for the construction of such railroad, and the railroad company acted upon such consent and built its road, the right to use such property so devoted for the railroad vested absolutely and irrevocably in the railroad corporation, and neither the city nor the legislature could subsequently resume possession of such railroad property without the consent of the railroad corporation.

Thus in the case of The People v. O'Brien, 111 N. Y., 88 ; 19 N. Y. State Rep., 178, Ruger, Ch. J., says: “The title to the streets of New York is vested in the city in trust for the people of the state, but, under the constitution and statutes, it had' authority to convey such title as was necessary for the purpose to corporations desiring to acquire the same for use as a street railroad. The city had the authority to limit the estate granted either as to the extent of its use or the time of its enjoyment, and also had power to grant an interest in its streets for public use in perpetuity which should be. irrevocable.’’

Whatever interest, therefore, the city of Mew York had in the streets, whether as owner of the fee of the street, or as owner of abutting property, it had power to grant to the defendant for this public use, and the consent of the city to the use of Third avenue by the defendant operated as a grant of so much of the interest of the city in the street as was necessary for the construction, maintenance and operation of defendant’s railroad, and the railway company by such grant took an estate in the street People v. O'Brien, 111 N. Y., 40; 19 N. Y. State Rep., 173.

It would be entirely inconsistent with this grant made by the city to the company for the city to thereafter prevent the corporation from building its railroad because by the construction of the road the property of the city in the street would be appropriated. By its consent to build the road it had granted to the railroad company so much of its property in the street as was necessary for the maintenance and operation of the railroad.

If a private person had owned both the street and the abutting property, and had by grant authorized the railroad company to erect its structure and operate its road, it is clear that such consent would include the use of the easement in the street that was ap.purtenant to the abutting property, as well as so much of the fee of the street as was necessary for the construction and operation of its road, and I can see no reason why the same rule should not apply to property owned by' the city, when the city has authorized the construction of the road under legislative authority.

When the city, made its conveyance to plaintiff’s grantor, it could convey only such rights in the street as it had at the time of its conveyance, and subject to the rights of the railroad company theretofore acquired, and as the railroad company’s possession of the street at the time of the conveyance was open and notorious, I think the grantee -took with notice of the right that had been granted by the city to the railroad company.

The proceedings of the rapid transit commissioners in respect to the elevated railroads in the city of Mew York, and the resolution of the common council giving the consent to the construction of the road, were introduced in evidence by defendants, and by such proceedings and co nsent it appears that the consent of the local authorities applied to that portion of the road in front of the premises in question.

I think, therefore, that the property in Third avenue, acquired by the plaintiff by their conveyance of the abutting property, was subject to the úse of the street by defendant, and that no property of plaintiff has been or is appropriated by defendant, and it follows that defendant is entitled to judgment, with costs.