author: GILBERT, J.:

text:
    CELINDA A. FULTON, Respondent, v. SOLON M. N. WHITNEY, JAMES F. TROTT, DEXTER R. JERAULD and others, Appellants.

      Trustee ex. mdtejieio — liaMity of — Purchase of trust pi'operty by trustee to the injury of his trust — Pinal accounting before surrogate.

    A trustee who buys in property under an incumbrance prior to that held by him as trustee, and at a price below its real value, is always considered as doing it for the use and benefit of his cestui que trust.

      It makes no difference whether the subject of the purchase is itself trust property, or whether such purchase has the necessary effect of injuring other trust property.
    The final accounting by executors or trustees before .the surrogate, is not a bar to an action brought for the enforcement of a trust of which the executors or trustees become trustees ex maleficio.

    ' Appeal from a judgment in favor of the plaintiff, entered on the decision of the court at Special Term.
    Action to charge defendants Solon M. N. Whitney, James F. Trott and Dexter E. Jerauld, as trustees in equity for the plaintiff.
    The facts are stated in the following opinion of Lamoot, J., delivered at the Special Term :
    Lamont, J.:
    By his will, Park'hurst Whitney bequeathed to his executors, Solon M. N. Whitney and James F. Trott, a special. fund, consisting of a mortgage made to him by Messrs. Whitney, Jerauld and Trott, and amounting to $19,171.96, of which, after the payments of debts not otherwise provided for, $12,000 and interest were in the next place to be paid by his executors to three of his grandchildren, Olympia, Helen and Oelinda Eowalewski, the last of whom is the plaintiff in this action, now the wife of Eobert O. Fulton. The residue of such- trust fund was then to go to other beneficiaries. By the death of said Olympia and Helen, leav-t ing no father, mother or brother, Oelinda, the plaintiff, their only surviving sister, became their sole heir at law and next of kin.
    By a residuary clause, the fifteenth in the will, the testator devised to his grandchildren, who were ten in number, a parcel of real estate at Niagara Falls, which is the principal subject of the present action. The testator had purchased this land, in 1859, for $10,000, for which he gave his bond with a mortgage on the premises. He died in 1862 and his will was proved and recorded as a will of personal and real estate in the Surrogate’s Court of Niagara county, and letters testamentary were taken out by the executors. On the foreclosure of the mortgage the premises were sold under judgment in this court, and on the 9th day of January, 1867, the executors and the defendant Dexter E. Jerauld became the pur-chasei’s at sheriff's sale for $5,000, one-half their real value. Before this time Olympia and Helen had died, and at the time of the sale the plaintiff was under twenty-one years of age.
    Solon M. N. Whitney was, at the time of the sale, the general guardian of the plaintiff and the administrator of the estates of both her deceased sisters..
    The purchasers, Whitney, Jerauld and Trott, were brothers-in-law and partners in business, conducting the Cataract House, a hotel at Niagara Falls. They were all equally and fully acquainted with the equities of the plaintiff.
    By the provisions of the will the bequest of $12,000, bequeathed to the Kowalewski sisters, was directed to be paid from no other part of the testator’s estate, except from the proceeds of said mortgage set apart for the purpose. The testator’s debts had been paid before the sheriff’s sale, except the bond and mortgage given by the testator for the land in question; and in order to pay said debts the executors had drawn considerably upon this trust fund, so that it yas manifest when the sale took place that any deficiency necessary to satisfy the bond, after the mortgaged premises had been appropriated, must be paid out of the trust fund in question, or, in other words, wholly out of the moneys coming to the plaintiff therefrom. The deficiency was $6,577.48. If the land had sold for $10,000, its real value, the deficiency would have been but $1,577.48. The plaintiff thereby lost $5,000, because the land did not bring what it was worth; and the purchasers were the two executors, one of whom was also her general guardian and the administrator of her two sisters, to whom she was next of kin, and the third purchaser the business partner of the other two. It was the dutyof the executors having this trust fund in charge to make it most available to the plaintiff. It was the duty of the administrator of the two deceased sisters to save this trust estate, their whole personal property substantially, for the benefit of the plaintiff, their next of kin. It was the duty of the general guardian of the plaintiff, who had a duty to perform to the plaintiff, both as to her real and personal estate, to protect it from diminution and spoliation.
    The two executors, in that character controlling this special trust fund, and one of them in three other characters, twice as administrator and once as plaintiff’s general guardian, stood in that relation of trust and confidence toward the plaintiff and her property under their charge, and in her infancy, that the law will not tolerate their speculation at her expense. The testator’s bounty cannot thus be suffered to be sacrificed to the self-interest of the persons appointed to protect it.
    The purchaser Jerauld, though neither an executor, administrator nor guardian,-acted with ample notice; and his situation would be the same if he had had no notice of the plaintiff’s equities, for it has been laid down that one purchasing jointly with a trustee has no better equity than the trustee himself. (Tiff. & Bull, on Trustees, 151, citing Paul v. Squibb, 12 Penn., 296; Mitchum v. Mitchum, 3 Dana, 260.) And, again, that a partner in business of a person holding such relations of trust and confidence is equally disabled. (Ex parte Burnell, 7 Jur., 116; approved in Gardner v. Ogden, 22 N. Y., 327.) Both Whitney and Trott had duties to perform inconsistent with their characters as purchasers. Their duty to plaintiff was that the land should sell for the highest possible price, that the deficiency might be to the smallest possible amount. Their interest as purchasers was that the land should sell at the lowest figure, and the deficiency be increased to the greatest possible extent., Their pecuniary interest was thus put in hostility to their duty to the cestui que trust. The rule of equity that condemns such transactions is of universal application to all persons standing in such relation, and it is not necessary to prove fraud in order to enable a party to have the benefit of this equity. (Case v. Carroll, 35 N. Y., 388, 389.) A trustee who buys in the trust property under a prior incumbrance, and at a price below its real value, is always considered as doing it for the use or benefit of his cestui que trust. (Slade v. Van Vetchen, 11 Paige, 26, 27.) The latter may treat the purchase as for his benefit, whether the sale was public or private, and for a bona fide price or otherwise. (Davoue v. Fanning, 2 Johns. Ch., 257-270; New York Central Ins. Co. v. National Protection Ins. Co., 14 N. Y., 91; Jewett v. Miller, 10 id., 402; Gallatian v. Cunningham, 8 Cow., 376-381.) It makes no difference whether the subject of the purchase is itself trust property, or whether such purchase has the necessary effect of injuring other trust property. ( Van Epps v. Van Epps, 9 Paige, 241.) No trustee can act for his own benefit and advantage to.the injury and ruin of those he is bound to protect. It is. the breach of duty that raises the equity for relief. (Colburn v. Morton, 3 Keyes, 305.) That the clause in the judgment of foreclosure and sale, allowing either or any of the parties to the action to purchase at the sale, does not affect the plaintiff’s equities, was a point ruled in Torrey v. Bank of Orleans (9 Paige, 661; affirmed in the Court of Errors, 7 Hill, 260). In York Building Association v. Mackenzie, in the House of Lords, of which the history is given and the authority approved in Gardner v. Ogden (22 N. Y., 344), there had been a sale, and the sale had been confirmed by the court (page 345; again so stated, 3 Keyes, 299), which, notwithstanding, was afterward set aside for reasons holding good in the present case. The sale had also been confirmed by the court to the guardian ad litem, in Gallatian v. Cunningham (8 Cow., 376), but the Court of Errors would not allow it to stand.
    The decree of foreclosure contained a like clause in Conger v. Ring (11 Barb., 356-359), where an executor was the purchaser, but the court ordered a resale unless the executor paid the debt prejudiced by the sale. In Colburn v. Morton (3 Keyes, 308) the assignees were charged with the difference between the amount paid by them on the purchase of the property and its actual value.
    The final accounting before the surrogate is no bar to the plaintiff’s rights in this action. Treated as a settlement of the accounts of executors, it is only so far final as declared by statute. (2 R. S., 94, § 65.) The following section (66) amended 1866, chapter 115, relates to accounts of trustees created by a last will or testament, whereby such trustee may settle his accounts before the surrogate, in the manner provided by law for the final settlement of the accounts of executors and administrators, upon citation; and the decree of the surrogate, on the final settlement of an account provided for in the section, has the same force and effect as the decree or judgment of any other court of competent jurisdiction on the final settlement of such accounts of the matters relating to such trust which shall have been embraced in such accounts or litigated or determined on such settlement thereof. The matters' in this action were not embraced, nor so much as mentioned in the •accounts before the surrogate, nor litigated nor determined in that accounting. The claim here is, that the purchasers of the real estate became trustees by virtue of the purchase, not trustees created by the will. They became trustees ex maleficio.

    One of those purchasers was not before the Surrogate’s Court, nor had the surrogate any means to obtain jurisdiction of him.
    The original final account of the executors was amended by leave of the surrogate, but the amended account embraced nothing new; the executors merely called themselves executors and trustees. All the accounts rendered were strictly executorial, relating exclusively to the administration of the personal estate, which it is an executor’s duty to administer. They accounted for. nothing but what their duty as executors required them to do.
    The trustee created by a will, intended by the statute, is not such a trustee as an executor is, but such a trustee as an executor is not. The law had already amply provided for the accounting of executors. By the will itself they are simply executors, charged only with the personal estate, the payment of debts and legacies, and to take care of personal property. They were not trustees created by a will within the meaning of the statute.
    “An executor is he to whom the execution of a last will and testament of personal estate is by the testator’s appointment confided.” (Toller on Executors, 30; Wood v. Brown, 34 N. Y., 342; Bogert v. Hertell, 4 Hill, 492; Stagg v. Jackson, 1 N. Y., 206 ; In the Matter of Wadsworth, 2 Barb. Ch., 381; Conklin v. Egerton’s Administrator, 21 Wend., 430; Craig v. Craig, 3 Barb. Ch., 76; Tucker v. Tucker, 4 Keyes, 151.) A trustee created by a will is a different character from one whom the law converts into a trustee by his own inequitable conduct. But the executors have never rendered any account, nor been required to account for the purchase of the real estate. They objected to the jurisdiction of the surrogate to try this matter, and he never undertook to try it. He seems to have acted upon the objection made by the executors, that he had no jurisdiction over the matter of the sheriff’s sale of the lands, and dismissed the subject for want of jurisdiction. This will not bar the plaintiff’s present suit. (Smith v. Adams, 24 Wend., 585.)
    As to the kind of relief proper in this case, I think the sheriff’s sale may be allowed to stand, and the purchasers made to pay the difference between their bid and the value of the premises, with interest and costs. (Colburn v. Morton, 3 Keyes, 296.) If they elect so to do, and judgment is given accordingly, that the plaintiff have a lien on the premises ’ to that amount and interest, and for such purpose; and that unless the said defendants, Solon M. N. Whitney, James F. Trott and Dexter R. Jerauld, pay the plaintiff such amount within sixty days after service of a copy of this judgment, the premises be sold by a referee appointed for the purpose, on condition that the amount of their bid at sheriff’s sale, to wit $5,000, be the sum below which the same shall not be exposed to sale ; and whatever it shall bring above that amount be paid to the plaintiff to the extent of $5,000 and interest thereon, as settled in the judge’s report and judgment to be entered therein, and the costs of this action, as specified in the findings of the court; and for any deficiency in the amount thus realized, to pay such costs and principal and interest to plaintiff, said Whitney, Jerauld and Trott be personally charged with payment of such costs, and in case of a surplus realized by such resale, over and above the sums above mentioned, the same be brought into court to abide further directions. If a surplus should so remain, it will be for the court to determine to whom it should be paid, considering the provision of the will, and the beneficiaries therein, as well as improvements made by the former purchasers, and used for hotel purposes. As they have had the use of the land since their purchase, they will not be entitled to interest on their bid; and their claim for any improvements must, under the circumstances, yield to the better equity of the plaintiff.

      M O. Sprague, for the appellants.

      Ellsworth <& Potter, for the respondent.
   GILBERT, J.:

Upon well established principles of equity, all profit resulting from the purchase made by the defendants, inures to the benefit of the plaintiff. Whitney and Trott were precluded by the duty which they owed to the plaintiff, from purchasing on their own account: and the interest of Jerauld is affected by the same disability, because the purchase was a joint one, and he is charged as having been privy to the circumstances which invalidate the transaction. The reasons given in the opinion delivered at Special Term are quite satisfactory on tbis point, and the rule on this subject is too familiar to justify discussion here.

The relief afforded by the decree may not be precisely adapted to the case, but as no objection to that has been raised on either side, the judgment will be affirmed with costs. A clause may be inserted in the judgment of affirmance, giving to the defendants a reasonable time to pay the money directed to be paid by them, and the same will be settled by Gilbebt, J., on ten days’ notice.

Present — MulliN, P. J., Smith and Gilbebt, JJ.

Judgment affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    SIMON P. HUFFSTATER, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Indictment under licence lam — vairiance in proof.

    Under an indictment charging a prisoner with selling “strong and spirituous liquors and wines, in quantities less than five' gallons at a time * * * without having a license therefor,” he cannot be convicted on evidence showing that he had a store-keeper’s license, but had made sales of liquors to be drank in his store.
    Wbét of error to the Court of Sessions in and for the county of Jefferson.
    The defendant was indicted for a violation of the excise law, and was tried and convicted at the Jefferson County Sessions.
    The indictment charged him with selling “ strong and spirituous liquors and wines, in quantities less than five gallons at a time * * * without having a license therefor, as provided by law,” etc. There was no allegation that such sales were made of liquors “ to be drank on the premises.” The evidence showed that he was a store-keeper, and had a store-keeper’s license which authorized him to sell in quantities less than five gallons, but not to be drank on the premises, and that he made various sales of liquor, by the glass, to be drank in his store.

      The defendant’s counsel insisted and asked the court to rule : 1st. That the indictment was insufficient, in that it should have been under the fourteenth section of the act of 1857, instead of the thirteenth section ; and, 2d, that the license proved was an absolute protection to the defendant for any sales proved.. These objections were severally overruled by the court, and the defendant’s counsel excepted.

      Anson B. Moore, for the plaintiff in error.

      Watson M. Rogers, for the defendants in error.
   GILBERT, J.:

The gist of the offense of which the plaintiff in error was convicted, consisted not of the act of selling, but of the purpose for which the sale was made. He had a license which authorized him to make the sale, but he was prohibited from making any sale of spirituous liquors to be drank on his premises. There is no averment in the indictment that the plaintiff in error violated that prohibition. It is contended on the part of the people, that the averment of sales without having a license therefor, is sufficient to uphold a- conviction for such violation. We cannot assent to that proposition. The selling without a license to sell is a distinct offense from that which a person licensed to sell commits when he sells to be drank on the premises. It is quite as necessaiy to aver the illegal purpose of the sale in the latter ease, as the want of a license in the former. To make out the offense intended by the pleader, it must be proved that the accused not only sold the liquor, but that he sold it to be drank on the premises. Whatever is essential to be proved must be'averred. It follows that the plaintiff has been indicted for one offense and convicted of another. We think such a conviction ought not to be sustained. The rule of law upon this subject is elementary, apd requires that the defendant be specially brought within all the material words of the statute, and nothing can be taken by intendment. (Whart. Cr. L., 364-380; Wood v. People, 53 N. Y., 511.)

The conviction must be reversed, and, if the plaintiff in error is in prison, tbe statute (2 R. S., 741, § 26) requires that he be absolutely discharged.

Present — Mullin, P. J., SMith and GilbeRt, JJ.

Conviction reversed, and prisoner discharged.


text:
    THE PEOPLE, Plaintiffs in Error, v. PATRICK TIGHE, Defendant in Error.

      Liquor licenses — §§ 25 and 26 of chap. 628 of 1857 — § 4, chap. 549 of 1878 — conviction under latter act revokes license.

    Sections 25 and 26 of chapter 628 of the Laws of 1857 (containing provisions for revoking and annulling licenses) are not superseded by section '4 of chapter 549 of 1878. The latter act gives only an additional remedy.
    A conviction of a licensee under any of the provisions of the act of 1878, ipso facto, annuls his license.
    Writ of Error to the Court of Sessions in and for the county of Livingston.
    The defendant was indicted by the grand jury of Livingston county, at a Court of Sessions held in said county, on the 11th day of September, 1874, for a violation of the excise law.
    The indictment charges that the defendant, at the town of Avon, in said county, on the 15th day of June, in the year 1874, sold strong and spirituous liquors and wines, in quantities of less than five gallons, to divers citizens of this State; and it is in the usual form of an indictment for the violation of the excise law.
    At a Court of Sessions held in and for said county, on the 18th day of December, 1874, the defendant was arraigned on said indictment and pleaded “not guilty.” The issue so joined was tried before the said court and a jury duly impanneled. From the evidence it appeared that the defendant had obtained from the board of commissioners of excise of the village of Avon, where he resided, a license, commonly known as a store-keeper’s license, to sell strong and spirituous liquors in the village of Avon,'in quantities of less than five gallons at a time, not to be drank on his premises, for the term of one year.

      It was proved and admitted on the trial, that on the 15th day of July, 1874, at the town of Avon, the defendant did sell strong and spirituous liquors in quantities less than five gallons at a time, but not to be drank on his premises. That the liquors so sold were carried off from the premises occupied by him. The sale proved and admitted was within the provisions of the license. To avoid the_ effect of the license, the district attorney offered and read in evidence a record of the conviction of the defendant for a violation of the excise law, by which record of conviction it appeared that the defendant was, at a Court of Sessions held at the court-house, in said county, on the 9th day of June, 1874, duly convicted by a verdict of a jury and by the judgment of the court, of the offense of selling strong and spirituous liquors, ale, wine and beer, in quantities of less than five gallons, to be drank in the house, shop or liquor store of the defendant, contrary to the provisions of the statute in such case made and provided. The district attorney insisted that by section 4 of chapter 549 of the Laws of 1873, the license which had been proved and offered in evidence, was by such conviction forfeited and annulled, and therefore that the sale admitted and proved was in violation of the law. The counsel for the defendant insisted and contended that the conviction of the defendant, in and of itself, did not annul and forfeit the license. That until the license was revoked by the judgment of some competent tribunal, it was in full force and effect, and justified the sales made by the defendant, as admitted and proved.
    The court held that the conviction of the defendant as proved did not of itself forfeit and annul ,the license under which the defendant claimed the right to sell spirituous liquors.
    The court also held that there was no question of fact for the jury, and directed the jury to render a verdict in favor of the defendant of “not guilty” of the offense charged in the indictment.
    The question was brought before this court by writ of error.

      E. A. Wash, district attorney, for the plaintiffs in error.

      James Wood, for the defendant in error.
    Two statutes shall stand together and both have effect if possible, for' the law does not favor repeals by implication; and all acts in pari materia should be taken together as if they were one law. (MeCarter v. Orphan Asyl/um, 9 Cow., 437.) Where two statutes are not plainly repugnant, unless in the one enacted some notice is taken of the other, indicating an intent to repeal it, it will not operate as a repeal of the other by implication, for the law does not favor, the repeal of statutes by implication. {Bowen v. Lease, 5 Hill, 221.) The repeal of a statute by implication is not favored. Unless the later statute is manifestly inconsistent with and repugnant to the former, both remain in force. (Williams v. Bolter, 2 Barb., 316.) The construction of a statute, which construction repeals another statute, should be very clear, especially when the repeal seriously mars the harmony of a system. {Hayes v. Symonds, 9 Barb., 316.) The repeal of a statute by implication is not favored, but the courts are bound to uphold the prior law if the two acts may well subsist together. The rule of construction is, that the earliest act remains in force, unless the two acts are inconsistent with and repugnant to each other. {Van Rensselaer v. Snyder, 8 Barb., 302.) Where several statutes i/n pari materia are passed by the same legislature, they are to be taken and construed together. {Stulls v. Hudson R. R. Go., 3 Keyes, 196; Power v. Shepard, 48 N. Y., 540.) The repeal of statutes by implication is not favored by the law; and whpn a later and former statute can stand together, both will stand, unless the former is expressly repealed, or the legislative attempt to repeal is very manifest. {People v. Pabner, 52 N Y.,'83.) The statute only operates as a repeal of a former one to the extent that the two are repugnant. {Monegon v. People, 55 N. Y., 713.)
   GILBERT, J.:

It would not be a very unreasonable construction of the act of 1873 (chap. 549, § 4), to hold that it was intended to supersede the provision for revoking and annulling licenses, contained in sections 25 and 26 of the act of 1857. It is more probable, however, that the legislature intended to superadd to the provision for revoking licenses contained in the act of 1857, when violations of law have been brought to light in civil prosecutions, another remedy of a like effect to follow a conviction upon' an indictment for a criminal offense. The meaning of an act cannot always be found in the technical signification of its phraseology. The framers of our statutes often use technical words in a popular sense. Although tbe word conviction ” is used both in sections 25 and 26 of the act of 1857, and in section 4 of the act of 1873, yet, in the former sections, it is restricted to proceedings in a suit for a penalty, or upon a bond, while in the latter there is no such restriction. Both statutes, therefore, may well stand together. When a conviction or judgment lias been obtained for a penalty, or upon a bond, the proceeding prescribed by sections 25 and 26 of the act of 1857 must be pursued. But when a licensee has been convicted upon the trial of an indictment for a criminal offense, no such proceeding is necessary. The conviction i/pso facto, by the express words of the statute of 1873, operates to revoke and annul his license, and it can no longer afford him any justification or protection. The twenty-ninth section of the act of 1857, makes all offenses against the act misdemeanors, and prescribes the punishment’therefor, and requires courts to instruct grand juries on the subject. The revocation of the license is a just addition to the punishment so prescribed, and well adapted to the case.

The judgment must be reversed, and a new trial ordered in the Court of Sessions of Livingston county.

Present — Mullen, P. J., Smith and Gtlbeet, JJ.

Judgment reversed, new trial ordered, and record remitted to Court of Sessions of Livingston county.


author: E. DaewxN Smith, J.:

text:
    LYDIA M. MACK, Respondent, v. ERASTUS P. BURT, Appellant.

      Landlord and tenant — effect of tenants holding oner — Bent—action for — whenpre-matwrely brought— General denial — what may be proved under.

    A tenant of demised premises Folding over after the expiration of his term, is deemed in law to hold over as tenant at the same rent he had previously paid, if no new agreement is made. But if he has notice from the landlord that if he retains possession he must pay a higher rent, specified as to amount at the time, and he remains in possession, he must he deemed to assent to pay such increased rent.
    Plaintiff purchased certain premises, at the time occupied by the defendant under a lease, the deed providing that he was to have the use and possession of the premises from and after May 1, 1872 ; the defendant held over for another year) and on the 1st of May, 1873, this action was commenced to recover the rent for the last six months. Reid (1), that the term did not expire until May second, and that the action was prematurely brought; (2), that the defendant was entitled to raise this objection under a general denial.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was commenced to recover for the rent of a store in the city of Oswego, at a' yearly rent of $600 from May 1, 1872, the plaintiff claiming a balance due of $375; also for the breakage of one light of glass, of the value of fifteen dollars, amounting in all to $390.
    The answer contained a general denial, and also the allegation that the rent as agreed upon was $450 per annum, and that that was a fair sum for the use of the store. It also alleged an offset of $225 and a tender, on May 1, 1873, of $225, the refusal of plaintiff to receive it, and the readiness of defendant, at all times since, to pay it; and it demanded judgment for costs.
    It appears from the report of the referee, that plaintiff purchased the store in question while it was occupied by defendant under a lease from the former owner, which lease expired May 1, 1872. About March 1872, the agent of the plaintiff informed defendant of such purchase, and stated, in answer to an inquiry .by defendant, that the rent for the ensuing year would be $600. Defendant replied that he would not have the store. No agreement was made; but, at the expiration of his tenancy, he- continued in possession and occupied the store the ensuing year. On November 1, 1873, defendant paid $225 on the rent, which the referee found was received as a part payment only of the $600 rent, and held that the retaining possession of the premises, under the circumstances, was an assent by defendant to pay the rent demanded. The conveyance to plaintiff contained the following clause: “ Said party of the second part to have use and possession of said premises from and after May 1, 1872.” This action was brought May 1, 1873, and was prematurely brought, as claimed by defendant on the trial, although not alleged in the answer. By custom, but not by agreement, the rent appears to have been paid semi-annually. The referee ordered judgment for seventy-five dollars, the balance due at $600 per annum, after deducting $225, together with interest from November 1, 1872, and for the further sum of $800, with interest from May 1,1873, making iii all $406.82. From the judgment so entered, the defendant appeals to this court.

      John G. Qhu/rohill, for the appellant.

      A. Perry and D. H. Marsh, for the respondent.
   E. DaewxN Smith, J.:

Upon the referee’s findings upon the facts, I think his conclusion of law, that the plaintiff was entitled to recover at the rate of $600 a year for the use of the premises, correct, and that she was entitled to recover for the seventy-five dollars, with interest thereon from November, 1872, within the cases of Despard v. Walbridge (15 N. Y., 374), and Schuyler v. Smith (51 id., 309, 214). These cases hold, in effect, that a tenant of demised premises, holding over after the expiration of his term, is deemed in law to hold over as tenant at the same rent he had previously paid, if no new agreement is made. But if he has notice from the landlord that if he retains possession he must pay a higher rent, specified as to amount at the time, and he remains- in possession, he must be deemed to assent to pay such increased rent; that he cannot hold the premises after such notice, and fix his own terms for the rent. The defendant held over as tenant to the plaintiff. He recognized that relation in November, 1872, and paid $225 on rent at that time, the plaintiff receiving it as rent, but claiming seventy-five dollars more as then due. But this sum, with interest thereon, was all that was due when this action was commenced. The referee finds that the deeds under which the plaintiff took title to said premises, contained the following clause, to wit: “ Said party of the second part to have use and possession of said premises from and after May 1st, 1872.” These words exclude the first day of May from the.term for which the defendant took, or must be deemed to have taken, the said premises, as tenant of the plaintiff. The second half-year of said term did not expire till the first day of May, 1872. The defendant was not liable to be sued for such rent until the second day of May. The case states, and the referee finds as a fact, that this action was com-rnenced on the first day of May. It was therefore prematurely commenced for the last half of the year’s rent. This objection was available under the pleadings, for the answer contains a general denial of each and every allegation, of the complaint. Under such an answer, the defendant, I thinlc, denied in effect every fact essential to make out a cause of action against him at the time of the commencement of the suit, and may disprove any such allegation. This question, in Smith v. Holmes (19 N. Y., 271), arose upon demurrer to the complaint, and the court held that neither the summons nor complaint showed when the action was commenced, and that the sheriff’s certificate of the service of the summons was no part of the record before the court upon demurrer, and that the question could only be raised by answer. It is sufficiently raised by an answer which contains an explicit denial, in effect, that the plaintiff had any cause of action against the defendant. The answer necessarily relates to the time of the commencement of the suit. In this case, the fact was proved and found by the referee, and it does not appear that any objection was made to the evidence, and I think no valid objection could be raised.

The judgment should be reversed and new .trial granted, with costs to abide the event.

Present — Mulliet,'P. J"., Smith and Gilbeet, JJ.

Judgment reversed and new trial granted, costs to abide event.


author: E. DaRwiN Smith, J.:

text:
    ANNIE GIBSON, Administratrix, etc., Respondent, v. THE ERIE RAILWAY COMPANY, Appellant.
    Master— WabiUty of, for ingwry to sentará — negligence.
    Plaintiff’s intestate, while ascending a stairway on the side of one of defendant’s freight cars, in the proper discharge of his duties, was struck by the projecting roof of one of defendant’s sheds, knocked from the car and killed. The roof projected in such a manner as to be distant from the top of the car on the side of the stairway three inches in a horizontal direction, and one foot and ten inches in a vertical direction. Meld, that a jury might properly find that it was negligence for the company to allow the roof to remain in this position.

      Appeal from a judgment in favor of tlie plaintiff, and from an order made at the Special Term, denying a motion for a new trial.
    This action was brought to recover damages arising from the death of the plaintiff^ intestate. The deceased, while ascending a stairway fastened to the side of a freight ear, was struck by a roof upon one of defendant's sheds, knocked from the ear and billed.
    The relative position of the track and of the projecting roof sufficiently appears from the opinion.

      Sprague, Gorham <& Bacon, for the appellant.

      Martindale <& Oliver, for the respondent.
   E. DaRwiN Smith, J.:

The verdict of the jury upon the points distinctly made in the defendants’ exceptions to the charge, settles the question that Parker, in ascending the car of the train at the time and in the manner shown in the evidence, was in the discharge of his duty, imposed upon him by virtue of his employment by and with the defendants. This finding implies also that the said Parker was free from fault or negligence on his part contributing to the injury.

The question remains, whether the defendants are liable to respond for such injury, upon the conceded facts of the case as they stood at the close of the plaintiff’s evidence, when the defendant’s counsel moved for a nonsuit, which was denied, or as it stood at the close of the case, when said motion was renewed and was denied, to both of which decisions the defendants’ counsel duly excepted.

The projection of the roof of the defendants’ depot, at Attica, where the accident ocóurred, so far over the track of their road as to subject a person getting on their cars in the ordinary course of duty, to such peril as involved and caused the loss of life of Parker, a conductor in their employ, can hardly be otherwise than a great omission of duty to them employes, and such as to warrant the jury in finding them guilty of negligence. The jury must have so found upon the facts, and I do not see how, as matter of law, this court can hold otherwise. It is well settled law, that, as between master and servant, the master is bound to exercise care and prudence, to see to it that his servants are not exposed to unreasonable risks and dangers in the discharge of their duties. (Noyes v. Smith, 28 Vt., 59.) In Hutchinson v. Railway Company (5 Wels., Hurls. & Gord., 352), Alderson, B., said the master was exempt for injury to his servants, provided he “ shall have taken due care not to expose his servants to unreasonable risks; ” and vide also Paterson v. Wallace (1 Macq. H. L. Cas., 748); Ryan v. Fowler, (24 N. Y., 414).

It appears from the evidence that the roof was twelve feet four inches above the iron track of the defendant’s road; that it projected eight feet and two inches from the building, and the track was ten feet and two inches from the building. The car on which Parker was killed was proved to have been one of the largest kind of box cars in use on the' defendant’s road. The widest car measured was nine feet and two inches in width, with about an inch and a half of coping, making the width at the top nine feet and five inches, and the stairs two and a half inches. The height of the car from the rail was ten and a half feet, and the stock cars were wider than the box cars. Parker was killed on a stock car. Allowing for the width of the car nine feet and five inches at the top, and two and a half inches for the width of the stairway, the space between the top of the car and the edge of the roof of the depot — the track of the road, being six feet wide — would be on the side toward the building only three inches, and from the top of the car to the roof one foot and ten inches. This would be a very narrow space for a man of ordinary size to occupy, in passing this station on the top or edge of the car.

I think the jury did not err in finding that it was negligence on the part of the defendants to expose their servants to danger in such narrow quarters. It appears that this depot was erected many •years since, and it seems quite apparent that while the freight cars used by the defendants have been constantly growing in size, the officers of the company have been insensible to the fact that the roof of the depot remained stationary.

The order denying the motion for a new trial should be affirmed.

Present — MulliN, P. J., Smith and Gilbeet, JJ.

Judgment affirmed.


author: E. DarwiN Smith, J.:

text:
    THE CENTRAL SAVINGS INSTITUTION, Plaintiff, v. THOMAS R. WALKER and another, Impleaded, etc., Defendants.

      Dissolution of corporation — liability of directors on notes subsequently made.

    This action was brought upon a promissory note, dated. June 3, 1867, made by one of the defendants as agent of the Utica Steam Woolen Mills Company, a corporation whose charter had expired by statutory limitation on February 27,1866, in ignorance of which fact the business had thereafter been carried on by the trustees as usual. This action was brought against certain of the stock- ' holders, the plaintiff! claiming that they were liable as copartners for the debts contracted after the expiration of the charter. Held, that the action could not be maintained ; that the business must be deemed to have been carried on by the directors acting as trustees, and that persons dealing with the said officers must be considered as contracting with them in their representative capacity, and as relying upon their responsibility in such capacity.
    Motion for a new trial on exceptions ordered to be beard in the first instance at the General Term, after a nonsuit ordered by the court.
    The plaintiff was a savings bank in Utica, created by chapter 265, Laws of 1851. The Utica Steam Woolen Company was originally a corporation created under the general manufacturing law, passed March 22d, 1811 (2 R. S. [5th ed.], 652), by the filing of a certificate in writing in the office of the secretary of State, on February 27, 1846. The Utica Steam Woolen’ Company continued its business for the allotted term of its existence, viz., twenty years; and, after the expiration of that term, to wit, after February 27, 1866, continued doing business the same as before, buying, selling, manufacturing, borrowing money and contracting debts. The defendants in this action were, on February 27, 1866, stockholders, and retained their interest in the company until it failed in 1869. In July, 1866, the company declared a dividend, and in August, 1866, the dividend was paid to the defendants, who received it as such. On four occasions after February 27, 1866, in the years 1866 and 1867, both before and after the dividend was paid, the company borrowed money of the plaintiff, amounting in the aggregate to $16,000, for which they gave four notes, two of $5,000 each, and two of $3,000 each, which have never been paid; and this action is brought against the defendants, as copartners, to recover one of these sums of $3,000. The defendant McQuade was one of the trustees of the company. Both defendants knew the business was being continued after February 27, 1866. This action was commenced in March, 1873, and, after the commencement of this action, the savings bank failed and went into bankruptcy, and this action is prosecuted on behalf of the assignees in bankruptcy.

      J. R. Swan, Jr., for the plaintiff.
    After the 26th day of February, 1866, the association continued a corporation or became a copartnership. (Story on Part., § 77; Oollyer on Part., § 1078.) After the 26th day of February, 1866, the association did not continue a corporation. (National Rank of Watertown v. Landon, 45 N. Y., 410; Angelí & Ames on Corp., § 778, a/ Lagrange, etc., R. R. Go. v. Rainey, 7 Coldw. [Tenn.], 420; Merrill v. Suffolk Bank, 31 Me., 57; Com. Bank v. Lookwood, 2 Harrington [Del.], 8 ; May v. State Bank, 2 Rob. [Va. Ct. of App.] ; White v. Gampb'ell, 5 Humph. [Tenn.], 38; 11 Geo., 459.) Not only the stockholders, but all persons were bound to know the law under which the corporation was created. It is a general law. ' {Dutchess Go. Manuf. v. Demis, 14 Johns., 238.) All persons had notice of the certificate of incorporation. It is a matter of public record. (14 Johns., 238.) The defendants are liable as partners to third persons who are creditors of the company. (3 Kent, 26; see, also, Story on Part., 82, § 54; Oollyer on Part., 34, note e j Parsons on Part., 69; Greenl. on Ev., § 482; Grace v. Smith, 2 Wm. Bl., 998 ; The M. B. and M. Go. v. Sears, 45 N. Y., 797; Thompson v. Brown, 4 Johns. Oh., 619.) The defendants are copartners inter se. (3 Kent, 23, 27; Ontario Bank v. Hemmens, 48 N. Y., 545.) After the dissolution the defendants allowed their share of the assets to remain in the business. The interest, then, of the several stockholders became equitable rights to a proportionate share of the assets, after payment of the debts. {James et ad. v. Woodruff et ad., 2 Denio, 574; affirming S. O., 10 Paige, 541.)

      IP. Kernan, for the defendants.
    Neither Walker nor any other owner of scrip for stock in the corporation is personally liable for the debt contracted by Clogher, in its name, after February 27th, 1866. Neither in fact nor in law, was he a partner in the business carried on in the corporate name after that date, or liable as such. A person cannot be made a partner without knowledge, consent, or an agreement on his part. (Story oh Part., § 3; id., §§ 2, 3, 5, 32; Baldwin v. Burrows, 47 N. Y., 199, 206; Livingston v. Lynch, 4 Johns. Oh., 573, and op. of chancellor, 591, 592, 593, 599; 3 Kent, 27 [11th ed.], [in. p.] 25; Hazard v. Hazard, 1 Story’s O. 0., 371; v. Barrett, 4 Paige, 14;8; Porter v. McClure, 15 Wend., 187 ; Whi. Bank of Watertown v. Landon, 45 N. Y., 410, 412, etc.) The fact that persons, by operation of law or otherwise, become tenants in common or joint tenants of property, does not make them ■ copartners or responsible for each other’s acts in reference to the property. (Story on Part., supra, § 3; 47 N. Y., supra; 4 Johns. Ch., supra.) Before the expiration of the charter, the property was owned by the corporation. The stockholders had no title to it. The stockholders owned in severalty a species of property created by the statute, called scrip or stock. (3 R. S., supra, 222, § 7; City of Utica v.' Churchill, 33 N. Y., 161, 237-239; Queen v. Arnaud, 9 Adol. & El. [N. S.], 806.) Upon the expiration of the charter, the property passed to the then directors of the corporation, as “ trustees of the creditors and stockholders of the corporation.” The stockholders did not become tenants in common or copartners. (2 R. S. [5th ed.], 597, § 9 ; Mickles v. Rochester City Bank, 11 Paige, 119, 128.) On the facts in this case, “ The Utica Steam Woolen Company ” was a corporation de facto at the time the debt in question was contracted. The plaintiff contracted with it and credited it as a corporation. The plaintiff gave no credit, and did not rely on the individual responsibility of the defendant Walker, and he will not be permitted now to allege that this company was not a corporation, and to hold the stockholders, as partners, responsible for the debt. (The Dutchess Co. Manuf. Co. v. Davis, 14 Johns., 239; White, Rear., v. Ross, 15 Abb. Pr., 66, decision of Court of Appeals; Meth. Epjis. Church v. Pickett, 19 N. Y., 482, 485, 486; Eaton v. Aspinwatt, 19 id., 119, 121; Lowry v. Inman, 46 id., 125, per AlleN, J.)
   E. DarwiN Smith, J.:

This action is for the recovery of the amount of a promissory note of $3,000, signed by Peter Ologher, one of the defendants, as agent for the Utica Steam Woolen Mills Company, dated June 3, 1867. The charter of the said Woolen Mills Company, under the general manufacturing act, expired by limitation of the statute, on the 27th of February, 1866. Upon the expiration of the charter of said corporation, the title to its property and the control of its affairs vested in the directors of said company, as trustees, under the provisions of the Revised Statutes in respect to the general powers and liabilities of corporations. (Sec. 9, tit. 3¿ chap. 18, vol. 2, p. 660.) These' trustees took said property for the benefit of the creditors and stockholders of the said corporation, to settle its affairs, and collect and .pay its debts, and divide among the stockholders the moneys and other property that should remain after payment of its debts. The stockholders had no individual rights in respect to said company, except to receive their pi'o rata share 'of its assets, after payment of its debts.

The business carried on by the officers and agents of said corporation, after the expiration of its charter, must, I think, in law, be deemed carried on by and under the authority of the directors of said corporation, acting in the capacity of trustees. Persons dealing with said officers must be deemed to have had knowledge of the actual status of said trustees and of such officers, and must be considered as contracting with such trustees in their representative capacity, and to have relied upon their responsibility in such capacity. These trustees were in no sense partners, nor was the relation of the stockholders of said corporation inter se changed from that of stockholders to that of partners. In respect to the business transacted by the officers of said company after such expiration of its charter, it was in effect, as I conceive, substantially the same as if said company had continued in lawful existence, or, supposing themselves to be duly incorporated, the stockholders, through their customary and proper officers, were exercising the franchises of a corporation, with the rights and immunities of a corporation defaeto. The stockholders of said corporation never formed or entered into any copartnership. They never agreed to put their money or credit into any copartnership business. Copartnerships do not arise by operation of law. They are creatures of express agreement, where two or more persons voluntarily contract to place their money, effects, labor, skill and credit, or some or all of them, in lawful commercial business, with the understanding that there shall be a communion of the profits thereof between them. (Story on Partnership, § 2, p. 4.) Actual intention is requisite to constitute a partnership inter se. (3 Kent Com., 28; Hazard v. Hazard, 1 Story C. C., 371.) In Story on Partnership (§ 3), it is said that, a partnership is founded in the voluntary contract of the parties, as contradistinguished from the relations which may arise between the parties by mere operation of law, independent of such contract.”

The ease of Fuller v. Rowe (57 N. Y., 28), where it is laid down by Gray, 0., as a conceded rule of law, “that parties assuming to act in a corporate capacity without a legal organization as a corporate body, are liable as partners to those with whom they contract,” does not appear to have been brought to tne attention of the court on the argument of the present appeal. — [Rep.

These defendants are clearly not liable in this action as copart-ners. They became stockholders in the woolen company, a corporation duly incorporated. They never voluntarily changed that relation to each other, or intended to assume any other liability, as between themselves, or toward the public. They never held themselves out as partners, and never in fact, it appears, knew thát their charter had expired till their company was put into bankruptcy.

I do not see any principle upon which these defendants, upon the facts as they appeared at the trial, could have been held liable to the plaintiff in this action, and think the nonsuit at the Circuit was properly granted, and that a new trial should be denied.

Present — Mullin, P. J., Smith and Gtlbe'KT, JJ.

New trial denied, and judgment ordered on the verdict.


author: E. DaewiN Smith, J.:

text:
    SAMUEL V. MILLER, Appellant, v. ARTHUR O’KAIN, Respondent.

      Proving claim, against estate of barilw'upt — effect of \ cm right to sue thereon.

    The amendment to the twenty-first section of the bankrupt act, passed June 12, 1874, providing that a creditor proving his debt or claim shall not be held to have waived his right of action or suit against the bankrupt, when a discharge has been refused, or the proceedings have been determined without a discharge, was not intended to change the law on-that subject, but simply to remove all doubt as to its true construction.
    The original section was not intended to cut off absolutely the rights of the creditor by mere proof of his debt, hut the provision was designed to take effect only upon the condition that the debtor obtained his discharge.
    Appeal from a judgment in favor of tbe defendant, entered upon tbe trial of this action at the Special Term. Judgment in this action was ordered for defendant on the ground that plaintiff, having proved his debt in bankruptcy against defendant, was precluded from maintaining this action therefor. The proceedings in bankruptcy were terminated before this action was brought, without discharge of defendant.

      jBrown c& Wood, for the appellant.

      Charles S. Baker, for the respondent.
   E. DaewiN Smith, J.:

This cause, it appears, was decided, and the finding of the judge who tried the same was signed by him, on the 6th of June, 1874, and was filed in the proper clerk’s office, on the ninth of the same month, but the judgment was not actually perfected till the sixth of July afterward. Intermediate the decision and the entry of judgment, the bankrupt act was amended by a provision which took effect on the twenty-second of-June, which would clearly have rendered the judgment erroneous if it had been in force at the time of the trial and decision. The judgment, though entered up after the passage of'said amendment, should relate to the time when the decision was rendered, and this court would doubtless have allowed it to be entered up as of that date, if that would make it a valid judgment. Judgment was ordered for the defendant, upon the ground that the plaintiff, having proved his debt in bankruptcy against the defendant, was precluded, by the terms of the twenty-first section of the bankrupt act, from maintaining any suit at law or in equity therefor against the bankrupt but should be deemed to have waived all right of action and suit against the bankrupt and all 'proceedings already commenced or unsatisfied judgments already obtained therein should be deemed discharged and surrendered thereby.” (Stat. of 1867, § 21.)

As this statute has been amended as above stated, by an act passed June 22, 1874, containing a provision as follows: “ But a creditor proving his debtor claim shall not be held to have waived his right of action or suit against the bankrupt when a discharge has been refused or the proceedings have been determined without a discharge,” it cannot be important to discuss particularly the question upon which the decision turned at Special Term, as this amendment removes all doubt as to the meaning and intent of the statute. We have no doubt, however, that this amendment correctly interprets the original intent and meaning of the act amended, and that this amendment was not intended to change the law on the subject, but simply to remove all doubt as to its true construction. Such we understand the learned circuit judge of the United States for this circuit to have held in the case of Clark v. Bailey (Int. Rev. Rep.); and vide Bump on the Law and Practice in Bankruptcy (7th ed.) 200; and, also, Dingee v. Becker (9 Nat. Bankr. Reg., 509), where a construction of the original section is held in conformity with the terms of such amendment. The latter case discusses the question quite fully, and, we think, shows quite conclusively that the original section was never intended to cut off absolutely the rights of the creditor by mere proof of his debt, and that such provision was merely provisional in its effect and operation, and designed to take effect only upon the condition that the debtor duly prosecuted his proceedings in. bankruptcy to a final discharge.

It is the discharge, and not the mere proof of the debt, that finally discharges such debt and the debtor absolutely. Any other construction of the s.ection would, we think, be • repugnant to the whole scope and design of the bankrupt act. Every statute should be construed in view of its general purpose and intent, and so as to give full effect to all its provisions.

The judgment should be reversed and a new trial granted, with costs to abide the event.

Present — Mullot, P. J., Smith and Gilbert, JJ.

Judgment reversed and new trial granted, costs to abide event.


author: E. DaewiN SMITH, J. :

text:
    FRANKLIN BAILEY, by Guardian, etc., Respondent, v. ROBERT S. PARK, Appellant.

      New trial — on ground that verdict is against evidence — costs must he paid as’ condition of.

    Where the court grants a new trial on the ground that the verdict is against the evidence, it can only he ordered on the payment of costs.
    This is an appeal from an order of a county judge, ordering a new trial in an action tried before him with a jury. The order set aside the verdict of the jury and granted a new trial, on the ground of excessive damages, and for insufficient evidence, with costs to abide the event. Plaintiff appealed from that portion of the order which reads as follows: “ Said verdict is set aside, and new trial ordered on said motion, with costs to abide the event.”

      D. F. Qott, for the appellant.

      Jjymcm c& James, for the respondent.
   E. DaewiN SMITH, J. :

It seems to be the settled rule that where the court grants a new trial on the ground that the verdict is against the evidence, it can only be ordered on the payment of costs. ( Ward v. Woodburn, 27 Barb., 346; North v. Sergeant, 14 Abb., 226; S. C., 33 Barb., 352; East River Bank v. Hoyt, 22 How., 480.)

In the case of Boyer v. Brown (noted in 4 N. Y. S. C., 698), the verdict was set aside by the county judge, on the ground that the verdict was against the evidence and the law as laid down by the court.

The order should be modified by striking out the words, “ with costs to abide the event,” and the words substituted, “upon the payment of costs,” and as so amended affirmed.

Present — MulliN, P. J., Smith and Gilbert, JJ.

Ordered accordingly.


author: Gilbert, J.:

text:
    THE PEOPLE ex rel. JEPTHA W. BABCOCK and others, Appellants, v. JOHN T. MURRAY and others, Respondents.

      Appointment to office — need not be m writing — chap. 175, of 1870— Commissioners of excise.

    No deed or writing is requisite to give validity to an appointment to an office in this State, unless the statute prescribes that formality; hut an appointment by parol is valid.
    Commissioners of excise may he appointed, in pursuance of chapter 175, Laws of 1870, by parol.
    Appeal from a judgment in favor of the defendants, entered upon the trial of this action by the court without a jury.
    On or about the 11 oh day of April, 1870, the defendants were severally duly appointed commissioners of excise of the city of Lockport, and qualified and entered upon the discharge of their duties. In April, 1873, the mayor of the city of Lockport stated orally to the other members of the common council of said city: “ I nominate [the relators] to lie commissioners of exciseand the members of the council voted in favor of concurring in such nominations. The relators took the oath of office, filed the same with the city clerk, and assumed to act as commissioners of excise of said city. The mayor never issued commissions to them. From May, 1873, until June 1, 1874, the defendants did not meet or transact business as a board of excise, but on the day last named, they did meet as such board and grant licenses.

      On the 18th day of June, 1874, this action in the nature of quo wa/rrcmto was brought. The complaint alleged the due appointment of relators, that they were rightfully entitled to said office, and that defendants had usurped the same. The defendants answered separately and denied the complaint and set up title to the office in themselves.

      Holmes, Fitts & Ghipmcm, for the appellants.

      Geo. G. Greene, for the respondents.
   Gilbert, J.:

We are of opinion that the relators were legally appointed. In this State, public offices are not the subject of grant or livery. They are mere agencies, created for the benefit of the public, and not of the incumbent. (Conner v. The Mayor, 1 Seld., 285.) An appointment to an office is only the execution of a power given by statute, and does not operate in any sense as a transfer of property or franchise from the person who makes the appointment, to him who receives it. No deed or writing, therefore, is requisite to give it validity, unless the statute prescribes that formality, but an appointment by parol is valid. (Bac. Ab., Offices and Officers, E.) By 1 William and Mary, chapter 21, section 5, confirming 37 Henry Till, chapter 1, the eustos rotulorum, shall, from time to time, when the office of the clerk of the peace is void, nominate and appoint one able and sufficient person residing in the county, etc., clerk of the peace. It was held that the appointment may be by parol, and without deed. (Saunders v. Owen, 2 Salk., 467; S. C., 12 Mod., 200.) The principle is, that whatever is to take effect out of a power or authority, or by way of appointment, is good without deed; otherwise where it takes effect out of an interest, and is to inure as a grant; for then if it be of a thing incorporeal, it must be by deed. Delivery is requisite to períect a gift of a thing corporeal. (Com. Dig., Biens, D. 2.) Such is the common law, and I cannot find that it has been changed. The legislature alone could do that (Const., art. 1, § 17); and it does not appear that they have done it. It is urged indeed, that the statute which requires that the commissions of all officers, where no special provision is made by law, shall be signed by the presiding officer of the board or body, or by the person mating the appointment” (1 R. S., 118, § 19), makes the signing of a commission essential to complete an appointment. This statute embraces only public officers of the State, other than militia and town officers. (People v. Molineux, 53 Barb., 9; S. C., 40 N. Y., 113.) It is at least doubtful, whether commissions of excise are included in it. But assuming that they are, the commission forms no part of the appointment. It is only evidence of it. (Marberry v. Madison, 1 Cranch, 137; Billy, a Slave, v. The State, 2 Nott & Mc C., 357.) The legislature having omitted to prescribe in what manner the appointmeut should be made, any act of the mayor, whereby he designated the relators as the persons whom he had chosen to fill the offices, followed by their qualification as such officers, was sufficient. (The People v. Van Slyck, 4 Cow., 324.) Such designation of the relators was in fact made. They accepted the office and entered upon the discharge of the duties thereof. We cannot doubt that the appointments were sufficiently proved, and were valid against everybody, and especially against the defendants, whose only claim to the office rests on the assumption of a right to “holdover,” by reason of a technical defect in the title of their successors.

The judgment must be reversed, and a new trial granted.

Present — Mullin',' P. J., Ssiith and GidbeRT, JJ.

Judgment reversed, and new trial g-ranted, costs to abide event.


author: GILBERT, J. :

text:
    JAMES V. VAN ALEN, Executor, etc., of CALVIN DRAKE, Deceased, Appellant, v. CHARLES HEWINS and another, Executors, etc., of LUCY HEWINS, Deceased, Respondents.

      Probate of will — right of next of Tdn to review — death of contestant — ■power of rogate to substitute his executors.

    ■Where proceedings have been instituted, in accordance with 2 Revised Statutes, page 60,.section 80, by the next of kin of one whose will has been admitted to probate, to contest the validity Of the same, such proceedings do not abate by the death of the contestant, and the surrogate has power to direct the continu-anee of the same and the substitution of the executors of the contestant in his place.
    Appeal from an order of tbe surrogate of Yates county.
    The will of Calvin .Drake was admitted to probate before tbe surrogate of Yates county, August 26, 1872, and the appellant appointed executor thereof. April 11, 1873, Lucy Hewins, only child and next of kin, filed allegations in the office of said surrogate against the validity of said will and the competency of the proof thereof. Citations were thereupon duly issued and served upon the proper parties, and, on the twenty-ninth day of May following, all parties appeared before the surrogate, joined issue, and proceeded to take testimony in the cause, and while the proceedings were yet pending and undetermined, and the testimony not all taken, and on the 5th day of February, 1875, the "said Lucy Hewins died, leaving a last will and testament, appointing the respondents her executors, which was duly proved before the surrogate of Yates county, on February 19, 1875, and the respondents qualified as executors and entered upon the duties thereof.
    On the second day of March following, the respondents presented a petition to the surrogate as such executors, praying for an order by the surrogate that said proceedings might be revived and con-tinuedf and that they might be substituted in the place of said Lucy Hewins in the further conduct of the proceedings contesting the validity of the will of said Calvin Drake. An order was made accordingly, from which an appeal was brought to this court.
    N Henry JR. Selden and Demid B. Prosser, for the appellant.

      Morris Brown, for the respondents.
   GILBERT, J. :

Probate merely authenticates an instrument propounded as a will. The effect of it is to establish the words of the probate as the legal will of the deceased. It is a quasi proceeding in rem. Snch a proceeding cannot, in the nature of things, abate by the death either of a proponent or a contestant. It must of necessity be continued until the instrument propounded be admitted to probate, or probate thereof be refused. For, until such probate shall have been made in the manner prescribed by law, the instrument has no legal effect as a will. The manner of proving a will is clearly and precisely defined by statute, and no administration of personal estate bequeathed can be had until after probate (2 K.. S., 69, § 1; id., 61, § 28 ; Laws 1837, 528, § 22); and before admitting any will to probate, the surrogate must be satisfied of it genuineness and validity. (Laws 1837, chap. 460, § 17.) The proceeding under review is the assertion of a right to a new probate. (2 B. S., 61, § 30 et seq.) It suspends all the powers of the executor, except the collection and recovery of moneys and the payment of debts, until a decision upon it shall be had; and the surrogate is required either to revoke or confirm the original probate. Proof must be made de novo (Collier v. Idley’s Exrs., 1 Bradf., 94; Kellum’s Will, 50 N. Y., 298); and the statute, before cited, which provides that the surrogate must be satisfied of the genuineness and validity of the will, governs him in this proceeding. The proofs taken must have produced that effect before he can confirm the probate; otherwise, it becomes his duty to annul and revoke the same. The death of the contestant, or of an executor or legatee, does not relieve the surrogate from the performance of the duty, which the statute enjoins, of deciding whether the will is valid or invalid. No such exemption is contained in the statute. Indeed, it has made no provisions for such a contingency. It cannot be supposed that the legislature intended that the surrogate should decide upon partial proofs, for that would almost certainly work injustice to beneficiaries under the will, or to those who would be benefited if probate thereof should be refused. The burden being upon the executor and legatee to give the requisite proofs before the probate can be confirmed, the death of the contestant cannot deprive them-of the right to give such proofs. From this it follows that the proceeding does not thereby abate, but that proofs in support of the will may be given thereafter, and hence, that somebody must have the right to give counter proofs in support of the allegations, or it must be the duty of the surrogate, of his own motion, to ascertain whether the allegations be true or not. For it would be absurd to confirm the probate in the face of allegations against the genuineness or validity of the will, without inquiry respecting the truth thereof; and without such confirmation administration of the estate cannot be resumed. We are, therefore, driven to the conclusion that justice to those who are interested in the property to be affected by the proceeding, either by a confirmation or a refusal of probate, as well as a due performance of the duty imposed on the surrogate, requires him to allow some one to step into the place made vacant by the death of the contestant. The power to do this, although not expressly given, is necessarily-incident to the jurisdiction vested in the surrogate to take proof of the execution of wills and to admit them to probate. (2 R. S,, 220, § 1; Laws 1837, chap. 460, § 71; Brick's Estate, 15 Abb. Pr., 12.) There can be no question that incidental powers of that kind belong to the surrogate. (Campbell v. Thatcher, 54 Barb., 382; Campbell v. Logan, 2 Bradf., 90; Pew v. Hastings, 1 Barb. Ch., 452; Kerr v. Kerr, 41 N. Y., 277.) The' right to contest a will is given to the next of kin, because they would be entitled to the property of the deceased if the attempted testamentary disposition of it should not be established. If the probate in this case had been revoked in the lifetime of Mrs. Hewins, she, being the only next of kin of the deceased, would have been entitled to the property. If revoked after her death, the property would belong to her personal representatives. (Rose v. Clark, 8 Paige, 574.) Her executors are therefore the proper parties to succeed her in the proceeding pending before the surrogate. The right survives to, and may be prosecuted by them, by analogy to the rule relative to actions. (Code, § 121.)

The order of the surrogate must be affirmed, with costs.

Present — Mullet, P. J., Smith and GtlbeRt, JJ.

Decree of surrogate affirmed, with costs.


text:
    PETER PITKIN, Appellant, v. LEVI COOLEY and others, Respondents.

      Motion, to set aside judgment —is a proceeding in the action — Oowrt may include disbursements in costs — Seferee’sfees on reference und&i' Code, § 271 — Decision made under mistalcen belief as to power.

    Every incidental or interlocutory application for relief in eitlier an action or special proceeding, wbether before or after judgment, is a step taken in the action or special proceeding, as tbe case may be, and is not a new and independ ent proceeding.
    A motion to set aside a judgment or to vacate a satisfaction thereof, is a proceeding in the action.
    The court, when in the exercise of its discretion it grants costs of a motion, has power to include in the adjustment of such costs the necessary disbursements of the successful party.
    The referee’s fees on a reference directed by the court, under section 271 of the Code, is a proper disbursement to be allowed to the successful party.
    The decision of a court, made because of the belief that it does not possess powers which really belong to it, will be reversed.
    The defendants moved,in tbe County Court to stay proceedings upon a judgment of that court for $121, on tbe ground that it was settled. The motion was opposed upon affidavits tending to show that the settlement was procured by misrepresentation or concealment in. regard to the original amount of the plaintiff’s claim. The court declined to determine the question upon the affidavits, and directed a reference to a referee to take testimony and report the same, with his opinion.' The referee reported the testimony, with his opinion that there had been concealment, whereby the plaintiff was made to believe that the original amount of his claim was seventy dollars, whereas in fact it was seventy-six dollars. The report was confirmed, and the motion to stay proceedings denied, with ten dollars costs.
    Afterward the plaintiff moved to be allowed further costs and disbursements, etc., upon the reference. The motion was denied, with ten dollars costs, upon the ground that the court had no legal authority to do so; and from this order the plaintiff- appeals.

      J. JD. Decicer, for the appellant.

      Theodore Bacon, for the respondents.
   GILBERT, J. :

The Code does not define remedies; it merely distributes them into two classes, viz., actions and special proceedings. Whether a given remedy belongs to one or the other of these classes, is determined at the commencement of it; and every incidental or interlocutory application for relief in .either class, whether before or after judgment, is a step taken in the action, or special proceeding, as the case may be. It is not a new or independent remedy. (See Belknap v. Waters, 1 Kern., 478.) It has been held repeatedly, that proceedings supplemeútary to execution belong to the action in which the judgment was entered. (Seeley v. Black, 35 How. Pr., 369.) A fortiori, a motion to set aside a judgment, or to vacate a satisfaction thereof, is a proceeding in the action. The direction of the court therein is an order (Code, § 400); and an application for an order is a motion. (Sec. 401.) The question is whether, when the court has, in the exercise of the discretion conferred upon it by section 315, granted costs of a motion, it has power to include in the adjustment of such costs the necessary disbursements of the successful party. We think it has. By section 311, the clerk is required to insert necessary disbursements in the entry of judgment; and that section further provides that “wheneverit shall be necessary to adjust costs in any interlocutory proceeding in an action,” etc., the same shall be adjusted by the judge or the court, or in such other manner as the court shall direct. No other authority for the recovery of disbursements, in addition to the specific allowances for costs, is contained in the Code. Such disbursements are recoverable only by virtue of the authority given to adjust them. They are to be added to sums fixed by law. The power conferred upon the court or judge is the same in kind, namely, a power to adjust costs. In short, this section, fairly construed, makes the ascertaining and inserting of the necessary disbursements, a part of the duty of adjusting costs. In interlocutory proceedings, it is to be done by the judge, or court;, in other cases by the clerk. Indeed, we can conceive no act which the judge can do in adjusting interlocutory costs, except to ascertain and fix the amount of the disbursements, for all besides has been before determined, by him, and it would be idle to do the same act twice. The maximum limitation contained in section 315, has no more restrictive effect than tbe fixed limitations contained in the other sections relating to costs. In Bond v. Smith, (4 Hun, 48), this court allowed disbm'sements besides costs on affirming an interlocutory order.

The court is authorized to direct a' reference, when a question of fact arises upon motion in any stage of the action. (Sec. 271.) The compensation of the referee is provided for (sec. 313) and it is reasonable to presume that it was the intention of the legislature, that the successful party should have the means of recovering his disbursement therefor. We are therefore of opinion that the court had no power to allow more than ten dollars besides disbursements, and that it had power to allow the necessary disbursements in addition to that sum. As the special county judge acted upon the supposition that he did not possess such powei*, the order must be reversed, and the proceedings remitted to the court below, with a direction to readjust the costs. (Tilton v. Beecher, 59 N. Y.)

Present — Mullen, P. J., Smith and Gilbert, JJ.

Ordered accordingly.


author: Gilbert, J..

text:
    AUSTIN L. WELLS and another, Executors, etc., Plaintiffs, v. THOMAS M. KNIGHT and another, Executors, etc., Defendants.

      Bequest of interest of specific fund — when legatee liable for taxes— when generad estate chargeable with them.

    When a testator directs a specifled sum to be invested, and the interest or income thereof to he given to a legatee, taxes are chargeable upon the particular fund, and not upon the general estate, unless a contrary intention is manifested in the •will.
    A legatee, however, is chargeable only with the taxes which the executor is compelled to pay upon such specific fund, and where such fund has never been separated from the general estate and separately invested, the legatee is entitled to the entire interest upon the same, and cannot be compelled to contribute toward the payment of the taxes assessed upon the general estate.
    Controversy submitted without action, in pursuance of section 372 of the Code.

      The first clause of the will of the defendants’ testator was as follows:
    First. I give and bequeath to my wife, Polly Patch, the sum of twelve thousand dollars, to and for her use during her natural life; provided, however, that my executor or executors shall have power, and he or they are hereby directed to invest the same in securities on real estate at not to exceed two-thirds its cash value, exclusive of buildings and fixtures; or in good bonds or stocks at or on interest payable annually at least, and to pay over such interest to my said wife for her own use and benefit.
    By a codicil thereto, he directed that the sum be increased to sixteen thousand dollars.
    His executors never set apart this sum for his wife, but paid her the interest thereon from the income of the general estate. The question before the court was, whether or not she was chargeable with a proportionate amount of the taxes paid by the defendants upon the general estate.

      T. P. Orosvenor, for the plaintiffs.

      H. G. Kingsbury, for the defendants.
   Gilbert, J..

It was the duty of the defendants to invest the sum of $16,000, as directed by the will of the testator, Nahum W. Patch. If they had done that, and the fund had been assessed for taxes, and they had paid the same, the question would have been more distinctly presented which has been argued before us, namely, whether such, taxes should be discharged out of the interest accruing from the general estate of the testator. Very little authority upon that question is to be found. The late Surrogate Bradford, in Booth v. Ammerman (4 Bradf., 129), held that the taxes which the executors might be compelled to pay upon the fund invested, must come out of the interest thereof, fyid were not a charge on the general estate,' because a bequest of the interest of a particular fund cannot be treated as an annuity, but only as a gift of income. The will in that case is not set forth, but it is assumed that a fund had been set apart, out of which the legacy was to be paid.. That decision was followed in Lansing v. Lansing (45 Barb., 182). On the other hand, Chancellor Walwobth, in Craig v. Craig (3 Barb. Ch., 16), where the executors were directed to invest a sum of money sufficient to produce in legal interest at least $500 per annum, held it was an annuity. In Drake v. Price (1 Seld., 430), the Court of Appeals held that the executors could not charge their commissions upon such fund separately, but that they must be included in their account against the estate generally, and the rate thereof be determined accordingly.

There is good reason for holding, that, when a sum specified is directed to be invested, and the interest or income thereof, whatever it may be, is given to a legatee, the taxes are chargeable upon the particular fund, and not upon the general estate, unless a contrary intention is manifested in the will. For the statute (1 Edm. Stat., 362, § 5) provides that every person shall be assessed for all personal estate owned by him, including all personal estate in his possession or under his control as agent or trustee, guardian, executor or administrator. Funds created by investments for the benefit of legatees pursuant to directions contained in wills, are held by executors as such, and not as trustees. ' (Valentine v. Valentine, 2 Barb. Ch., 430; Drake v. Price, supra,.) Still, the payment of taxes assessed upon the particular fund would not necessarily be made by them in their general capacity of executors. As to such payments, they may properly be deemed to act not only as executors, but as trustees of the fund; and such payments would seem to be more properly chargeable against the interest of the fund upon which they are assessed, than against the general estate. But a legatee cannot be charged with taxes not assessed upon the fund, or which the executor has not been compelled to pay by reason of such an assessment. It is only after a fund has been set apart and the income of that has been given, that the income is subjected to diminution by the payment of taxes. Here the executor made no investment of the sum the interest of which was given to the testator’s wife. Until such investmentshould be made, she was entitled to interest on $16,000, from the time of the testator’s death. (Williamson v. Williamson, 6 Paige, 298; Craig v. Craig, supra.) Without such investment, the gift stands as one of the interest on $16,000, and not of the income of a fund amounting to that sum. Sucb a gift has been held to be one of an annuity out of the testator’s estate, measured and expressed by the terms, “interest of $16,000,” equivalent to $1,120, and it was not chargeable with the taxes assessed upon the general estate in the hands of the executors, (Swett v. City of Boston, 18 Pick., 123; Brimblecom v. Haven, 12 Cush., 511.)

The cáse does not show the payment of taxes out of any specific fund, but does show that the same were assessed upon the personal estate of Nahum W. Patch, deceased, and that the ratable proportion of the legacy of $16,000 would be $1,851.37. The executors paid the legatee interest on $16,000 for every year after the death of the testator, excepting that preceding'her death, without deduction for taxes. They now seek to deprive her of the interest for the last year altogether, and to make her repay to them $731.37 besides, on account of taxes assessed upon the personal estate left by the testator and paid by them. We are of opinion that their claim ought not to be sustained, and that the plaintiffs are entitled to recover the whole amount of the legacy unpaid, namely, $1,120 with interest thereon from June 1, 1872.

Present — ■ Mullin, P. J., Smith and Gtlbebt, JJ,

Judgment accordingly.


text:
    MARY L. FOX, Administratrix, and another, Administrator, etc., Appellants, v. DANIEL FOX, Respondent.

      Administrator — when personally liable for costs— Trover.

    No costs are allowed against a plaintiff administrator personally, in an action of trover, wlien the alleged conversion was in the testator’s lifetime, but it is otherwise when the conversion is subsequent to the testator’s decease, and the action might have been maintained in the plaintiff’s own right.
    Appeal from an order made at the Special Term, making the plaintiffs personally liable for costs.
    This action was brought to recover the value of certain articles of personal property belonging to the plaintiffs’ intestate, which were, at the time of his death, upon a farm belonging to the defendant, and which, it was alleged, had been subsequently converted by him.

      Anson B. Moore, for the appellants.

      F. Lansing, for the respondent.
   Gilbert, J.:

No costs are allowed against a plaintiff administrator, in an action of trover, when the conversion was in testator’s lifetime; but it is otherwise when the conversion is subsequent to the testator’s decease, and the action might have been maintained in the plaintiff’s own right. When an administrator complains in trover, on the possession of his intestate, and a conversion after his death, and has judgment against him, he must pay costs (Holdrige v. Scott, 1 Lans., 303, and cases cited); and he shall not be excused from the payment of costs, though he bring the action as administrator, as upon a contract express or implied. (Tidd’s Pr., 978 ; Grimstead, Exr., v. Shirley, 2 Taunt., 116; Bollard, Admr., v. Spencer, 7 Term, 354.) The only good cause of action set forth in this complaint, arose upon the allegation, that, by the terms of the contract, the personal property was to vest in the intestate on his taking possession of the farm, and the allegations of a conversion by the defendant after the death of the intestate. We are inclined to think the other allegations of the complaint were not sufficient to make out any cause of action, for the contract was entire, and no benefit to the intestate, excepting the title to the personal property, could accrue from it until after the defendant’s death; and those allegations certainly formed no part of the cause of action in trover. If, however, they constituted a cause of action, it was distinct from' that relating to the possession of the personal property and the conversion thereof; and the referee having taken no notice of it, but treated the action as one in trover only, without objection, and that having been set forth as having accrued after the death of the intestate, the plaintiffs are not exempted from liability to pay costs. (Admr. of Tilton v. Williams, 11 Johns., 403.)

The order must be affirmed, with costs.

Present — MulliN, P. J., Smith and Gilbert, JJ.

Order affirmed.


text:
    In the Matter of the Appeal of LAURA W. SOUTHWORTH, from an Ordinance of the City of Lookport.

      Appeal from ordinance directing local improvements — questions relating to jurisdiction and regularity only cam he raised — Appeal papers — moho to furnish —power of court to compel copies of papers to he furnished hy officer in charge of them— Statute not revived hy repeal of revising statute.

    Where a statute (as §§ 20, 21- of title 9, chapter 365 of 1865) simply authorizes an .appeal to he taken from an ordinance directing a local improvement, and the mode in which it is to he prosecuted is not stated, the only questions that can he raised on such appeal are such as relate to the jurisdiction of the common council and the regularity of their proceedings.
    In such case, if the statute does not make it the duty of the common council to furnish a return or the papers on the appeal, the general rule requires the appellant to furnish them.
    If the officer having charge of the papers necessary to be used on appeal, refuses to furnish copies or allow them to he made, the court has power to compel him to do so.
    When a statute is revised, and parts of the former statute omitted from the statute revising it, the parts so omitted cannot he revived hy construction.
    Appeal from an order made at Special Term, denying a motion made by appellant for an order:
    1st. That an attachment issue against the common council of Lockport “as for a contempt for having refused, neglected or omitted to make a return to the appeal in the above entitled matter, as by law required; ” or,
    2d. That said council be required “ to make and file a return to said appeal; ” or,
    3d. That in default thereof, an attachment issue against said council; or,
    4th. That the ordinance be vacated and annulled.
    The charter of the city of Lockport is contained in chapter 365 of the Laws of 1865.

      D. Millar, for the appellant.

      George O. Greene, for the respondent.
   Gilbert, J.:

The whole effect of sections 20 and 21, title 9 of the charter, is to give an appeal from every ordinance directing any improvement, and from any local assessment. The mode in which the appeal is to be prosecuted is not specified. In such cases the only questions which can be raised on the appeal, are such as relate to -the jurisdiction of the common council and the regularity of their proceedings. (Embury v. Conner, 3 Comst., 523.) The statute does not make it the duty of the common council to furnish the papers on such appeal. The general rule on this subject requires the appellant to furnish the appeal papers. Such is the uniform practice in street cases, proceedings by railroads to acquire lands, and the like Whenever a statute has allowed an appeal, and required a return to be made of the proceedings appealed from, it has imposed the latter obligation only on payment of the fees therefor. Thus, on appeal from surrogates (2 R. S., 608, § 89), and appeals from justices of the peace. (Code, §§ 354, 360, etc.) It is manifestly just that such expenses should be borne by the appellant. It is his own act, done without the sanction of the court. To allow it to be done at the expense of the other party would encourage frivolous appeals, and might create an intolerable impediment to the transaction of public business, or necessitate an undue increase of clerical force to prepare the returns. When a remedy, by certiorari, is pursued, the evil can be guarded against by the judge to whom application for the writ is made. In cases like this, if the officers, having the custody of the papers, improperly refuse to furnish copies on payment of the fees, or to allow copies to be taken, no doubt the court has power to compel the furnishing of such papers, and it would be its duty to exercise it in a proper case. But we think it was not the duty of the respondents to make any return, except upon payment of their fee, or, if none have been fixed by law, upon payment of a reasonable compensation therefor.

We think section 45, of the act of 1846, does not apply to the case. We are inclined to think that it has been superseded by sections 20 and 21 of the charter. It is a well settled rule, that when any statute is revised, and parts of the former statute omitted, the latter cannot be revived by construction. (Ellis v. Paige, 1 Pick., 45; Lyon v. Smith, 11 Barb., 126.) The saving clause, contained in section 10 of title 9 of the charter, was not intended to preserve the provisions of the act incorporating the village, which relate to the same subjects that have been specifically legislated upon in the charter. But if this point be doubtful, we think the judge at Special Term was right in holding that the section' was limited to appeals from acts specified in the forty-fourth section, and that the proceeding complained of by Mrs. South worth was not among them.

The court below was therefore clearly right in refusing to punish the respondents for not making the return.

Present — MulliN, P. J., .SMITH and GtlbeRT, JJ.

Order affirmed, with costs.


author: MulliN, P. J".:

text:
    ROBERT F. PARKER, Respondent, v. THE ERIE RAILWAY COMPANY, Appellant.
    Damages— Conductor of railway — when not acting in discharge of Ms duty.

    A conductor upon one of defendant’s trains took up from plaintiff and his wife tickets purchased by them for South Livonia, telling them that -the train .did not generally stop there, but that it probably would on that occasion to take in water. The train did not stop there. Subsequently the conductor came into the car, asked plaintiff why he had not got out, and, in the course of a discussion which ensued, used insulting language to him. Held, that the conductor, in returning to the car and using insulting language to the plaintiff, was not acting in the discharge of his duty, and that the company was not liable therefor.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial.

      Sjprague, Gorham, <& Bacon, for the appellant.
    The court erred in charging the jury that the plaintiff was entitled to punitive damages. The company may be liable for the acts of its servants in the performance of its business, but not for such willful acts as are a departure from that business. (.Isaacs v. Third Ave. R. R. Go., 47 N. Y., 122; Wright v. Wilcox, 19 Wend., 343 ; see, also, 56 N. Y., 44; 47 id., 296; 51 id., 100; 20 id., 126; 47 id., 274; 17 id., 362; 1 Hill, 480; 2 Comst., 479 ; 57 Me., 202, dissenting opinion.) The defendant is not liable for punitive damages by reason of the language of the conductor to the plaintiff. (.Hibbard
      v. N. Y. and E. R. R. Go., 15 N. T., 455; Hamilton v. Third Am. R. R. Go., 53 id., 25; Townsend v. H. Y. O. cmd H. R. R. R. Go., 56 id., 295.)

      S. Hubbard, for the respondent.
    Corporations are liable in proper cases for punitive damages. If the injury is accompanied with insult and circumstances of aggravation, plaintiff is entitled to punitive damages. (Caldwell v. The New Jersey Steamboat Go., 47. N. Y., 283, 296 ; Gleghorn v. N. Y. G. and H. R. R. R., 56 id., 44; Weed v. Pa/nama R. R. Go., 17 id., 363; The Atlamtie and G. W. R. Go. v. Dunn, 19 Ohio St., 162; 2 Am., 382; Goddard v. Grand Trunk Railway Go., 2 Am., 39, 45, etc., 49, 50, 51, 52; S. C., 57 Me., 202; Taylor v. Gra/nd Trunk Railway Go., 48 N. H., 304; 2 Am., 229, 237.; Hopkins v. Atlantia a/nd St. L. R. R., 36 N. II., 9; Chicago and N. W. R. Go. v. Williams, 55 Ill., 185; 8 Am., 641-645.) The Court of Appeals having applied the doctrine of exemplary damages to corporations, of course apply it in the same manner as in the case of individuals.
   MulliN, P. J".:

On the 13th of July, 1872, the plaintiff purchased, at the defendant’s ticket office at Rochester, a ticket for himself and another for his wife, from that place to South Livonia, a station on the defendant’s road between Rochester and Corning, and paid for the same. Plaintiff and wife got on the cars, and when the train passed Avon, defendant’s conductor took up the tickets from plaintiff' and his wife, saying that South Livonia was not a stopping station, but the train would probably stop there for water. The train did not stop at South Livonia. After passing that station, the conductor, as the plaintiff testifies, in'an insolent manner asked plaintiff: Why didn’tyou get off? I told you to get off.” Plaintiff replied that he, the conductor, told him he would probably stop for water. The conductor passed by, and the plaintiff' followed him and pleaded with him to stop, as he had taken the tickets, and he, plaintiff, had the right to expect that he would be let off. The conductor told him that he had offered to indorse the tickets. Plaintiff said that it was not true, and that he, the conductor, had the tickets in his hands. The conductor told plaintiff that he came into the cars to try and find him and his wife at Livonia Station, which is next north of South Livonia. Plaintiff told him that they had not left their seats, and he, the conductor, said he doubted that; he did not believe they were telling the truth about it; he was insolent and excited somewhat. The jury rendered a verdict in favor of the plaintiff for $180.

A motion was made for a new trial, and it was denied; and an appeal is taken from the order refusing a new trial, and from the judgment.

The appellaát asks to reverse the judgment and order on two grounds:

1. Because the court charged the jury that the plaintiff might recover for mortification to his feelings.

2. That plaintiff was entitled to punitive damages.

In Hamilton v. The Third Ave. R. R. Co. (53 N. Y., 25), the plaintiff had been put off the cars of the defendant because he refused to pay fare, and he brought the action to recover damages therefor. It was held that he “had a right to compensatory damages, and they included not only compensation for the loss of time and the amount plaintiff was obliged to pay for passage on another car, but, in addition thereto, the injury done to his feelings might be taken into consideration by the jury, and a suitable recompense given therefor.”

If a wrong was done by the conductor while he was in the performance of his duty, the defendant is liable. It is very difficult to determine upon the evidence in this case, whether all the acts done, and things said by the conductor, were done in the course of his employment, in view of the decisions of the courts in this State. He was in the discharge of his duty in taking up the ticket held by plaintiff, and when he passed the station at which they were entitled to be let off. But was he in the discharge of his duty when, after the train had passed the station, he went into the car and used insolent and insulting language to the plaintiff ? It would seem that he went into the car with the. intention of picking a quarrel with the plaintiff, and used the poymr which a little brief authority gave him,, to insult and outrage the feelings of a harmless passenger. If the conductor had used the language testified to by the plaintiff while he was doing any legitimate act in the line of his duty, the defendant would have been liable. But it would be unjust to hold the company liable for insulting words used, or wrongful acts done, by an employe, unless done while performing-duties incident to the business in which they are employed.

If I am right in holding that the defendant is not liable for the insulting language used by the conductor, the plaintiff was.not entitled to any damages therefor, and certainly not to punitive damages for the use of such language.

The court told the jury that plaintiff was entitled to recover for the injury such language did to his feelings, and if there had been a wanton aggression upon his feelings, they might give such addi-' tional compensation as would punish the defendant. It is more than probable that the jury found that the language was a wanton agression on defendant’s feelings, and for that reason gave larger damages than would be a fair compensation for the injury done by the conductor for which defendant was legally liable.

The judgment and order should be reversed, and a new trial granted, costs to abide the event.

Present — MtjuliN, P. J., Smith and Gilbert, JJ.

Judgment reversed and new trial ordered, costs to abide event.