text:
    Village of Little Falls, Resp’t, v. Helen Cobb, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    1. Pleadings—Counterclaim—Demurrer.
    Sufficiency of the complaint may be attacked on demurrer to a counterclaim.
    2. Municipal corporations—Assessments.
    Municipal corporations cannot sue to foreclose an assessment lien unless authorized by statute.
    3. Same.
    Neither § 64, chap. 330, of 1850, nor § 9, tit. 6, chap. 291, of 1870, authorizes an action to declare an assessment a lien on the property assessed and to foreclose such lien.
    Appeal from an interlocutory judgment sustaining a demurrer.

      H. Clay Hall and R. H. Smith, for app’lt; H. A. De Coster and E. E. Sheldon, for resp’t.
   Martin, J.

—To a proper understanding of the questions involved on this appeal, a summary of the allegations of the pleadings seems necessary. In the complaint it was alleged that the plaintiff was a municipal corporation, duly incorporated under the laws of this state. That on or about the 1st of September, 1891, an application for making and grading Milligan street, one of the public streets of the plaintiff, by means of an assessment on lots interested in the improvement, was made and presented to the plaintiff’s board of trustees, by a petition duly executed by a majority of the persons owning lots on that street, being more than one-half in extent of lots fronting thereon, and of the land subject to be assessed, as provided in section thirty-two of the plaintiff’s charter. That it was received by the board, and placed on file with the clerk of the plaintiff. That such street had not theretofore been made or graded by means of, such assessment. That thereupon the trustees of the plaintiff ordered it to be graded, as provided in § 32, and notice in writing of such application, and subscribed by the president, stating the time and place where the same would be considered, was published in a newspaper in the village for two successive weeks before the time appointed therefor, inviting all persons who might be interested to appear and show cause, if they had any, against the application. That shortly thereafter, and prior to the making and grading of the street, affidavits showing such publication, and who were the owners of lots subject to assessment for such improvement, together with the application, were filed with the plaintiff's trustees, and an entry thereof duly made in the journal of the village. That thereupon, at a regular adjourned meeting of such board of trustees, held at the time and place stated in the notice, no one appearing in opposition to the application, it was duly granted, and a resolution and ordinance for the making and grading of the street was duly passed by the board of trustees. That such ordinance directed the expense of the improvement to be estimated and assessed upon all lots fronting upon the street or part of the street to be improved, or upon the owners thereof, in proportion to the benefit which the owners respectively were deemed to acquire thereby. That such ordinance specified the grade, width, and the manner of construction of the street, and a notice to contractors for proposals for the construction of such street was, by the board of trustees, caused to be published in a newspaper printed and published in the village. That thereafter, at a time and place fixed by such notice, the board met at their rooms in the village, and received such proposals. That, after examining the proposals made, it duly awaided the contract for the making and grading of the street to the lowest bidder. That thereupon the plaintiff entered into a contract with him for making and grading the street according to such ordinance. That, in pursuance of such contract, the contractor constructed said street according to the ordinance, and completed the same about December 1, ■ 1891, and it was then duly accepted by the board. That at its regular meeting on October 6, 1891, the board ordered an estimate and assessment therefor,- and fixed the time and place when application would be made to the county judge of Herkimer county for the appointment of three commissioners to make such assessment. That notice of such application was published for two weeks in a newspaper printed and published in the plaintiff village. That, at the time and place so fixed, application was made to the county judge, who appointed three residents of the village as such commissioners; that thereupon the board caused a proper survey and map to be made, and a blank form of assessment to be prepared, containing the names of the persons who, in its judgment, were subject to be assessed for the making and grading of such street, and a description of the lots belonging to each person who, in its judgment, was subject to be assessed, and appointed, as a time and place for the meeting of such commissioners, the 25th day of November, 1891, at 10 o'clock a. m., at the rooms of the trustees in said village. That it caused at least 10 days’ notice thereof to be personally served on all such owners, including the defendant That, at the time and place appointed, the commissioners met, examined the street, heard the persons interested, and the proofs which were offered by them as to the value of the property, and other facts affecting the question. That before entering upon the discharge of their duties, the commissioners took and subscribed the proper oath. That the commissioners adjourned from time to time, and at these meetings the defendant appeared, both in person and by attorney, and submitted proofs before such commissioners. That the plaintiff also appeared, and made proof of the foregoing facts and matters. That thereafter the commissioners assessed the expense of the damage for the making and grading of such street upon all the lots subject to be assessed therefor, and deemed benefited thereby, upon the owners of such lots, in proportion, as near as practicable, to the benefits which the respective owners were deemed to acquire by the improvement. That on December 30, 1891, the commissioners, by a certificate in writing, signed by them, and contained in an assessment roll, certified the assessment made by them to the plaintiff’s board of trustees, and the same was duly filed with the clerk of the plaintiff on January 4, 1892. That the proceedings before mentioned were duly had, taken, and performed pursuant to the provisions of the plaintiff’s charter, and that the trustees of the plaintiff had jurisdiction to make such ordinance for the making and grading of Milligan street, and of all the proceeding^ hereinbefore alleged ; that the commissioners had jurisdiction of the making of said assessment, and that it was duly made. That among the assessment so made by such commissioners was the sum of $146.70 against the defendant, which was assessed upon the lands owned by her, therein described as follows : “All that certain .village lot and premises situated on the northerly side of Milligan street, in the village of Little Falls, and designated as lots 54, 55, 56, on a map of said street made by E. T. E. Lansing, and bounded easterly by Lewis street, and westerly by premises of John Parker.”

—That such assessment, by virtue of the proceedings aforesaid, and by virtue of the provisions of the plaintiff’s charter and section 45 thereof, then became, and still is, a lien upon said lot in favor of the plaintiff. That thereafter, and on January 11, 1892, said board of trustees duly issued and executed their warrant to the collector of said village, in writing, signed by them upon said assessment roll, for the collection of said assessments so made by said commissioners, and certified to them. That said assessment roll and warrant were thereupon delivered to and placed in the hands of such collector for collection, and said collector thereupon proceeded to, and did, collect all of said taxes so levied and assessed and contained in said assessment roll, except the said tax hereinbefore mentioned, assessed against the defendant, and upon said lands owned by her. That thereafter, and upon the expiration of said warrant, the collector returned said assessment roll to the trustees with his certificate showing the collection of all the taxes and assessments in said roll contained, except said asesstnent against the defendant and her property, which said collector returned as unpaid, and that he was unable to .collect the same, and that he was not, upon diligent inquiry, able to discover any goods or chattels belonging to or in the possession of the defendant whereon he could levy the same. That the plaintiff is unable to collect said assessment out of the goods and chattels of the defendant. That, since the making of such assessment, the defendant has been repeatedly requested to pay said assessment by said collector and other officers, and other persons duly authorized, but she has neglected and refused, and still neglects and refuses, so to do, and that this action for the collection of the same is brought pursuant to the direction of the plaintiff’s board of trustees. That, by reason of the foregoing facts and matters, the defendant is indebted to the plaintiff in the sum of §146.70, and interest thereon at the rate of 12 per cent, per annum since about March 11, 1891.

The relief demanded by the plaintiff was that it be adjudged that said sum of $146.70 is a lien upon said lot; that it be enforced by a sale of the lot under the direction of the court; that the plaintiff be paid.the amount of such assessment, and the interest thereon at the rate of 12 per cent, per annum, with the costs of this action, out of the proceeds of such sale; that the dedefendant, and all persons claiming any interest in said lands under the defendant since the accuring of said lien, be foreclosed of any equity of redemption therein ; and for such other and further relief as to the court might seem just and agreeable to equity, with costs of this action.

The first eight subdivisions of the defendant’s answer consisted . chiefly of denials of the allegations of the complaint. In the ninth subdivision, it was alleged substantially as follows: That the defendant, further answering, and by way of an equitable offset and counterclaim to the demand of the plaintiff in this action, alleges and charges the truth to be that, prior to the alleged proceedings set up in the complaint, she, by herself and her immediate grantor of the property described in the complaint, had build and constructed over the creek or runway crossing said Milligan street, opposite her lots, a substantial covering of stone, at a cost of nearly $50, and had, by her said grantor and herself, caused said street to be filled in with good and substantial material opposite her said lots and covering said creek or runway, and making a good graded roadway on said street beyond the center thereof, as laid out by the engineer who established the grade of said street; that the cost of said filling was over $200; that such covering and filling by the defendant and hqr grantor inured to the benefit of the plaintiff, and to the benefit of all the other lot owners in said'street, and that, if such work had not been done by herself and her grantor, the opening and grading of Milligan street would have cost at least the sum of $200 more than -the plaintiff was compelled to pay therefor. The defendant, further answering, alleged that prior to the making and grading of such street as alleged in the complaint said premises had good ingress and egress to and from them upon said Milligan street, and said lots had and have a good natural front upon Lewis street, which is graded and sidewalks built thereon in front of all said premises on Lewis street; and she further represents that, by the grading done by the village, the ingress to said lot from Milligan street was injured, and said lots have not in any way been benefited by said grading, but, on the contrary, the defendant alleges that prior to said grading by the village there was a good, hard road on said Milligan street opposite said lots, and that the grading done by the village was of a character not only to injure the ingress and egress to said lots from Milligan street, but to turn the water from said streets upon said lots, by which acts of the plaintiff the defendant has been damaged to the amount of $100. The defendant demanded judgment that the complaint be dismissed ; that she have judgment against the plaintiff for the sum of $800, and for such other and further relief as to the court should seem just and equitable, with costs.

The plaintiff’s demurrer was as follows: “The plaintiff demurs to that part of the defendant’s answer contained in the ‘ninth’ division thereof, and demurs to each of the counterclaims and defenses in said ‘ninth’ division alleged, on the ground that the said counterclaims and defenses, and each of them, are insufficient in law upon the face thereof, and that the said counterclaims do not state facts sufficient to constitute a cause of action, and that no one-of said counterclaims states facts sufficient to constitute a cause of action, against the plaintiff.”

On the trial of the issues of law thus joined, the plaintiff’s demurrer was sustained upon all the grounds stated in it, and an interlocutory judgment was directed to be entered in favor of the plaintiff, sustaining such demurrer. A judgment in accordance with the decision of the special term was subsequently entered, with costs. The appellant insists that the special term erred in sustaining the plaintiff’s demurrer, for the reasons : (1) That the demurrer was bad because the counterclaims and defenses demurred to were not separated, or specified separately, as required by §§ 495 and 496 of the Code of Civil Procedure, and because the demurrer was taken to all the counterclaims, and does not distinctly specify the objections to the counterclaims, or either of them; (2) that at least one of the counterclaims was sufficient, and hence, that the demurrer should not have been sustained ; (8) that the complaint does not state facts sufficient to constitute a cause of action against the defendant. If it is true that the allegations of the complaint are insufficient to constitute a cause of action against the defendant, and the question of the sufficiency of the complaint is properly involved in the decision of this case, it will be unnecessary to examine the other questions raised by the appellant, as in that event the judgment of the special term is clearly wrong, and should be reversed. It seems to be well settled that upon a demurrer to an answer, the question of the sufficiency of the complaint may be raised. In Wilmore v. Flack, 16 Wkly. Dig. 236, it was held—“That the objection that the complaint does not state facts sufficient to constitute a cause of action is not waived by answer, but may be taken on the trial of any issue of fact or of law joined in the action. That the sufficiency of the complaint is always in issue, and an objection to it, if well taken, is a complete answer to the plaintiff’s demurrer, and must result in a dismissal of the complaint.”

While this case seems to have been reversed in 96 M. Y. 512, it was upon the ground that the complaint stated a cause of action, and the doctrine above quoted was not denied or questioned, but in effect affirmed. On demurrer to the answer for insufficiency, the defendant may attack the complaint on the ground that it does not state facts sufficient to constitute a cause of action. People v. Booth, 32 N. Y. 397. If the complaint is not good, the demurrer should be overruled. Parsons v. Hayes, 50 N. Y. Supr. Ct. 29 ; Petersen v. Swan, Id. 46. From an examination of the answer and demurrer, it will be perceived that the matters set up in the ninth subdivision of the answer are set up both as an equitable offset and as a counterclaim, and that the demurrer was to the defenses therein set forth, as well as to the counterclaims. The decision of the court and judgment both relate to the defenses, as well as to the counterclaims. Hence, if it can be said that the matters stated in that subdivision were alleged as defenses to the action, as well as counterclaims, it follows that, if the complaint is insufficient, the plaintiff’s demurrer should have been overruled. The plaintiff, however, claims that the matters set out in the portion of the answer demurred to were alleged as counterclaims, and that, upon a demurrer to a counterclaim, the defendant cannot attack the complaint. Thus, to determine whether the sufficiency of the complaint could be attacked upon the trial of the issues of law raised by the demurrer herein, it is perhaps necessary to determine whether, upon a demurrer to a counterclaim, the defendant can raise the question as to the sufficiency of the plaintiff's complaint. In Willover v. First Nat. Bank, 40 Hun, 184, the plaintiff demurred to a counterclaim set up in the answer, and, in delivering the opinion in that case, Bradley, J., said : “But it is contended on the part of the defendant that the complaint does not state a cause of action against the defendant. If that is so, the plaintiff’s demurrer to the answer was properly overruled, without reference to the question of the sufficiency of the alleged counterclaim."

Thus, the general term of the fifth department, in effect, held that, upon a demurrer to a counterclaim, the sufficiency of the com-' plaint was involved, and, if sufficient, the demurrer should be overruled. This question was somewhat discussed in Corning v. Roosevelt, 33 St. Rep. 154; 11 N. Y. Supp. 758, and in that case Judge O’Brien held that, upon the hearing of a demurrer to a reply, the sufficiency of all the preceding pleadings was open to consideration, and that the court should determine the sufficiency of the reply, the counterclaim, and the complaint. In Williams v. Boyle, 48 St. Rep. 713; 20 N. Y. Supp. 720, it was held by the general term of the court of common pleas that, upon a demurrer to a counterclaim set up in an answer, it was proper to inquire into the sufficiency of the complaint, and, the latter failing to show a cause of acfion, to render judgment for its dismissal. In Lawe v. Hyde, 39 Wis. 345, 355, it was held that a counterclaim in an answer was a pleading to the complaint, and, where the latter failed to state a cause of action, a demurrer to a counterclaim went back to the complaint, and, if the complaint was insufficient, the demurrer should be overruled. A somewhat contrary doctrine appears to have been held in the case of Morey v. Ford, 32 Hun, 446, where the defendant had answered the complaint, admitting the filing of a certificate of incorporation and the failure to file the report, and taking issue upon other allegations of the complaint. It was held that, upon the hearing of a demurrer to a counterclaim or offset, the defendant could not challenge the sufficiency of the allegations of the complaint in regard to the filing of the certificate and failure to file the report. It may be that, where a defendant has in his answer expressly admitted that certain acts have been performed, he canpot on demurrer to the answer insist that the complaint is defective in not properly alleging the facts which he has expressly admitted. That case may have been well decided upon the facts before the court, but should not, we think, be regarded as a binding authority for the general proposition that a complaint cannot be attacked upon a demurrer to a counterclaim. The only authority cited in that case for any such proposition was Wheeler v. Curtis, 11 Wend. 653. When the latter case is examined, we find that the defendant therein had pleaded to the declaration, the plaintiff had served a replication, and the defendant had demurred to the replication. Upon a trial of this demurrer, it was held that, as the defendant had waived any demurrer to the declaration by answering, he could not, on a demurrer to the replication, attack the declaration. The doctl'ine of that case has no application to the question before us. Moreover, the principle as there stated was qualified in Miller v. Maxwell, 16 Wend. 24, and Cooper v. Greeley, 1 Denio, 358. In Graham v. Dunnigan, 6 Duer, 629, 630, this question was alluded to, but not decided. We find nothing in these authorities which would justify us in holding the doctrine contended for by the plaintiff.

We are of the opinion, based both upon principle and authority, that upon a demurrer to an answer, whether the demurrer is to a defense theréin* or to a counterclaim (unless, perhaps, where the allegations of the complaint are expressly admitted by a part of the answer to which no demurrer is taken), the question of the sufficiency of the plaintiff’s complaint may be raised by the defendant, and the objection that the complaint does not state facts sufficient to constitute a cause of action is not waived by the answer, but is always in issue, and, therefore, if the defendant’s claim that the complaint in this action does not state facts sufficient to constitute a cause of action is correct, the special term erred in sustaining the plaintiff’s demurrer. This leads to a consideration of the sufficiency of the plaintiff’s complaint. Without examining the plaintiff’s charter, so far as it relates to the regularity of the proceedings taken to make and grade Milligan street, but assuming that the procedure which resulted in levying the tax was regular, and that the plaintiff acquired a lien upon the defendant’s premises therefor, we do not think the complaint states a cause of action. If this action can be maintained, it is because it is authorized by some statute. That the plaintiff has no right of action at common law to secure the relief sought is manifest. The relief demanded is that the tax be adjudged a lien on the defendant’s premises, that such lien be foreclosed by a sale thereof to pay the tax assessed upon laying out such street, with twelve per cent, interest and costs, and that the defendant’s equity of redemption therein be foreclosed. By the plaintiff's charter, the tax thus assessed became a lien upon the defendant’s land. Laws 1850, chap. 330, § 45. Section 64 provides that, when a tax or assessment which is a lien upon a lot shall be returned by the collector unsatisfied, it may be enforced by an order of the trustees directing-the lot to be leased for a time sufficient to pay the lien, Interest and costs. The charter then prescribes the procedure to be adopted. If payment is not made, the president must cause the property to be leased to the person, or his assigns, who will take the same for the shortest term and pay therefor the amount required, with interest and costs. After the sale, notice thereof must be given by the clerk to the owner, stating the length of time for which the same was let, the sum for which it was let, and that, unless it be redeemed by payment thereof to the treasurer, and ten per cent, in addition for the benefit of the purchaser, within thirty days after service of such notice, a lease will be executed by the president to the lessee. After thirty days from the service of such notice, a lease may be executed of the property to the person to whom it was struck off, or his assigns, for the term for which it was struck off, briefly referring to the non-payment of the tax, assessment, or other lien, and the lease shall be presumptive evidence that all the proceedings creating the lien, and for the enforcement thereof, to and including the lease, have been regular and according to law. Sections 65-67. The only remedy given by the plaintiff’s charter for the collection of a tax or assessment made for the purpose mentioned in the complaint is that above referred to. That the complaint does not state a cause of action against the defendant under the provisions of the plaintiff’s . charter is manifest.

The defendant, however, contends that this action is authorized by chapter 308 of the Laws of 1884, and the provisions of the general law for the incorporation of villages. Chapter 308 of the Laws of 1884 declares: “ The trustees and officers of any village in this state created by special charter shall have and possess the same powers as are prescribed in any general act for the incorporation of villages within this state, except as such special charter may be in conflict with any provision or provisions of said general acts.”

If it were to be held that this provision of the statute invested the plaintiff, ov any of its officers, with power to collect this tax • in the manner provided for by § 9 of title 6 of chapter 291 of the Laws of 1870, being the general act for the incorporation of villages,—which we by no means hold or decide,—it would still be necessary for the plaintiff to allege facts sufficient to constitute a cause of action under the provisions of that statute. Section 9 provides : In case the collector shall return that a tax or assessment on any estate is unpaid, and he is unable to collect the same, the trustees are authorized and empowered, after the lapse of thirty days after the date of such return, to prosecute a civil action against the owner or owners of such estate in the corporate name of the village, and to recover judgment for such tax, with twelve per cent, interest thereon, and all necessary costs and expenses of said action.”

It then provides for filing a transcript and docketing the judgment in the county clerk’s office of the county wherein the village is situated, and that the judgment shall thereupon be a lien upon all real estate of the judgment debtor in the county where it is docketed, and that a sale of such real estate may be made, on an execution issued to the sheriff of the county, if not collected out of the personal property of the debtor, and all the provisions of law in reference to sale and redemption of real estate on execution shall apply to sales and redemptions under that act. Under the provisions of this statute, no action can be maintained by the collector or in the corporate name of the village until after the lapse of thirty days after the date of the collector’s return. While we find that it is alleged in the complaint that the collector returned the assessment-roll to the trustees, showing the collection of all the taxes and assessments in said roll, except the assessment against the defendant and her property, which the collector returned as unpaid, and that he -was unable to collect the same, there is no allegation as to the date of or when this return was made, or any fact showing, or which would tend to show, that the thirty days after the date of such return had elapsed before the commencement of this action. No right of action existed under or was conferred by this statute until the lapse of thirty days after the date of the return that the tax or assessment was unpaid. Therefore, if it be admitted that the action could be maintained under § 9 of title 6 of chapter 291 of the Laws of 1870, still, as the complaint does not state facts sufficient to constitute a cause of action under that statute, it follows that the court erred in sustaining the plaintiff’s demurrer to the ninth division of the defendant’s answer. Moreover, this action was not one to recover a judgment against the defendant for the amount of her tax under the provisions of that statute. It was an action to have such tax adjudged a lien upon the defendant’s premises, to enforce such lien by a sale of the premises for the payment of the assessment, interest, and costs, and to foreclose the defendant's equity of redemption therein. No such right of action is given by either of the statutes mentioned. By the plaintiff’s charter, a person whose property is leased for the payment of a tax or assessment against hirh is given thirty days after service upon him of a notice of such leasing in which to redeem his property therefrom upon the payment of the tax and ten per cent, interest. Under the general village act, upon the sale of property upon an execution issued upon a judgment rendered for any tax or assessment, the owner is given the same right of redemption as exists upon the ordinary sale of real estate under an execution. Thus, in the former case, the defendant would have had thirty days after notice in which to redeem her property from the lease made by the president of the plaintiff. In the latter case, she would have had one year from the time of the sale in which to redeem. These rights of redemption are substantial, and the plaintiff is not entitled to maintain an action that would in any way limit or deprive her of such rights. These considerations lead us to the conclusion that the interlocutory judgment herein should be reversed. Interlocutory judgment sustaining the plaintiff’s demurrer reversed, with costs, and interlocutory judgment overruling such demurrer granted, with costs of the demurrer to the defendant, and leave granted to amend the complaint upon payment of the costs of the demurrer and the appeal.

All concur.


source: Caselaw Access Project

author: Ingraham, J.

license: Public Domain

text:
    Emil Oelberman, Pl’ff, v. New York and Northern Railroad Company et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed April, 1894.)

    Pleadings—Complaint—Amended.
    A proposed “amended and supplemental complaint” cannot be served.
    Motion for leave to serve a proposed amended and supplemental complaint, and also to amend the summons.

      Simon Sterne, for the motion; Simpson, Thacher & Barnum and Frank Loomis, opposed.
   Ingraham, J.

—This is a motion made by the plaintiff to serve a paper annexed to the moving papers, which is called a proposed “ amended and supplemental complaint; ” also to amend the summons by making the New York & Putnam Eailroad a party defendant. There is no such pleading known to the Code as an “amended and supplemental complaint.” The original complaint in this action having been demurred to, and the demurrer sustained (58 St. Rep. 462; 27 N. Y. Supp. 945), the plaintiff, in accordance with the leave granted by the interlocutory judgment, served an amended complaint, and that complaint now stands as the complaint in this action. If the plaintiff desires to serve a supplemental complaint under the provisions of § 544 of the Code, such a supplemental complaint must be prepared as distinct from the amended complaint as it now stands as the complaint in this action, as supplemental thereto, but there is no provision authorizing the court to allow allegations, by way of an amendment to the complaint, of facts that happened after the commencement of the action. It will produce great confusion to approve of such a practice as allowing the service of a pleading in which is contained the facts relied on to give a cause of action, and also contains the allegation of the facts which have arisen since the commencement of the action, which are supplementary to those alleged in the complaint as effecting the ultimate relief to be given. I think, therefore, this motion should be denied, with $10 costs to abide the event, with leave, however, to the plaintiff to make a motion for leave to serve a supplemental complaint as a distinct pleading, which shall allege the facts that he considers material which occurred after his former pleading, or of which he was ignorant when it was made. Order to be settled on notice.


author: Cullen,

text:
    John T. Barnard, as Temporary Administrator, etc., Resp’t, v. Clinton W. Starkey et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed June 18, 1894.)

    Judgment—Excuse nob non-compliance.
    Disobedience to a judgment will not be excused on the ground that compliance with another judgment has rendered obedience impossible, where the party has failed to take the usual legal steps for his own protection.
    Appeal from an order denying a motion to punish for contempt.

      Geo. G. Barnard, for app’lt; John F. Sullivan, for resp’t.
   Cullen,

—The plaintiff recovered a judgment, on the decision of the court of appeals, that defendants forthwith deliver to him certain specified securities. With this judgment, the defendants fail to comply, and a motion is made to punish defendant Starkey for contempt. He answers that in an action in this court in Hew York county, to which this plaintiff was not a party, he (Starkey) was removed as trustee, and directed to transfer the securities to the People’s Trust Company, as substituted Irustee; that in compliance with such judgment he so transferred the securities. This transfer was made pending this litigation, after a judgment in the trial court against the plaintiff, which was then on appeal to the general term, where it was reversed. The court denied the motion to punish for contempt, holding the plaintiff must seek relief in the Hew York action. This we think erroneous. The plaintiff's judgment is in full force and effect. The defendant Starkey has not sought to be relieved from it. The plaintiff has therefore the right to enforce it to the same extent as any other judgment. Had the transfer been made previous to the commencement of this action, the defendant would have been compelled to plead that fact as a defense. If he failed to do so, and judgment went against him, he could not attack that judgment afterwards. The transfer being had pending the action, he could, after the decision at general term, set up the fact by supplemental pleading. He could have secured perfect protection by application to have the new trustee made a party to this litigation, and by having the plaintiff made a party to the litigation in Hew York. He failed to take any steps to protect himself, and now fails to comply with the judgment against him. We do not say that he may not obtain relief now by applying to open the judgment in this action, and obtaining an order in the New York action for the transfer of the bonds to the plaintiff. But it is clear to us that it is the defendant who is embarrassed by the two judgments, and who must seek relief, and not the plaintiff. The plaintiff has the right to stand on his judgment, ana, having-recovered it, cannot be compelled to bring a new litigation. The motion might well have been left open to permit the defendant to apply for relief, but the absolute denial of the motion to punish for contempt practically abrogates the plaintiff’s judgment The order appealed from should be reversed, with $10 costs and disbursements, and motion granted, but proceedings thereunder stayed for 60 days, to enable defendant to apply for such relief in this action and in the-New York action as he may be advised.

All concur.


author: Martin, J.

text:
    Edmund K. Stedman, App’lt, v. Frank B. Ranney, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    Evidence—Whole conversation.
    Where a part of a conversation has heen given in evidence, the other party may give such further parts as explain or qualify the part first given.
    Appeal from a judgment reversing a judgment of a justice’s court.

      S. E. Spinning, for app’lt; M. H. Powers, for resp’t.
   Martin, J.

—This action was commenced before Samuel Ferguson, Esq.,—a justice of the peace of the town of Annsville, Oneida county, N. Y., to recover for damages to the plaintiff’s cutter, alleged to have been caused by the defendant’s negligence, in not properly and securely fastening his horse, whereby it became loose, and committed the injury for which the plaintiff sought to recover. The defendant denied the allegations of the plaintiff that the injury to. his cutter was caused by the defendant’s negligence; alleged that the plaintiff was guilty of contributory negligence, and that the injury was caused, not by the defendant’s horse, but by some other means. Thus, the principal issues in this action were: (1) Whether the plaintiff’s cutter was injured by the defendant’s horse; and, if so, (2) whether the defendant was guilty of negligence, and the plaintiff free from contributory negligence. The only witnesses who gave any evidence upon these issues were the plaintiff and defendant. On the direct examination of the plaintiff, after having testified that he found the defendant's horse loose, immediately behind his cutter, and the upholstering of it torn, and after describing the extent of the injury, he testified to having had a conversation with the defendant at that time. He then testified: “ I had another conversation with the defendant —I think, on the 8th of March. He said he did not want me to-mention that his horse did the damage.”

On the cross examination he was asked: “ Was there ai:y further conversation between yourself and Ranney on March 8th, except what you have stated? A. There was a conversation. Q. In that conversation between yourself and defendant, on March 8th, 1893, of which you have given a part, who spoke first, and what did he say ? (Objected to as immaterial and improper, assuming a fact not shown to exist, unless it relates to the matter in issue. Objection sustained.) Q. What was said, if anything, between yourself and defendant, on that occasion, before defendant told you he did not want you to mention again that his horse damaged your cutter ? (Objected to same as last above. Objection sustained.)”

From these questions and rulings, it appears that the plaintiff was permitted to testify to a single sentence of a conversation had between the parties, while, from the plaintiff’s own evidence, it is manifest that it was but a part of the conversation, and the ■defendant was prevented from asking the plaintiff, upon his cross-examination, for the whole of it. On the ground that the ruling was erroneous, the county court reversed the judgment of the justice.

The rule relating to proof of conversations of a party originally was that, such conversations being evidence against him in a suit, if counsel ask a witness as to anything which might have been said by an adverse party, the counsel for that party, had a right to lay before the court all that was said in the same conversation—not only so much as might explain or qualify the matter introduced by the previous examination, but even matters not properly connected with the part introduced upon the previous examination, provided only that it related to the subject-matter •of the suit The reason given for this rule was that it would not be just to take part of a conversation as evidence against a party, without giving him, at the same time, the benefit of all that was too said on the occasion. This rule was subsequently held to be broad, and the rule, as it now exists, seems to be that, where a part of a conversation has been given in evidence, any other or further part of it may be given in reply which would in any way explain or qualify the part first given, but that detached and independent statements, in no way connected with the statement given, are not admissible. Rouse v. Whited, 25 N. Y. 170; Starin v. People, 45 N. Y. 333, 340; Platner v. Platner, 78 N. Y. 90, 103; People v. Beach, 87 N. Y. 508, 512; Grattan v. Met, El. Ins. Co., 92 N. Y. 274, 284. We think the decision of the justice was in conflict with this rule. The defendant, «upon the cross-examination of the plaintiff, was entitled to prove by him the whole conversation as to which he had testified, as it is manifest that the purpose of the examination was to give the whole, instead of an isolated sentence of it, and thereby to qualify or explain it, and not to prove by the witness any detached or independent statement not connected with that given. Moreover, the effect of this ruling was to entirely deprive the defendant of the right to cross-examine the plaintiff as to the conversation of which he had given a part. He was prevented from proving how the conversation arose, why and under what circumstances the statement was made, and what was said which led up to it. We think the defendant should have been permitted to thus cross-examine the plaintiff. The right of cross-examination is justly regarded as one of the most efficient tests which the law has devised for the discovery of truth, and a party should not be arbitrarily deprived of it. Although the extent to which a cross-examination may be carried is largely within the discretion of the trial court, yet where, as in this case, the court lias practically deprived a party of that right, it is error. We think the county court was right in reversing the judgment, and that the judgment of that court should be affirmed.

This conclusion renders it unnecessary to consider the other questions suggested by counsel in their briefs. Judgment of the county court affirmed, with costs.

All concur.


text:
    C. Fred Thompson, Resp’t, v. Kate Sheridan, Impleaded, etc., App'lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    Justice’s court—Appearance by defendant.
    Where defendant appears before a justice of the peace on the return day before a judgment is rendered, while the plaintiff is present, and asks to be permitted to appear and defend, it is error for the court to refuse.
    Appeal from a judgment in favor of plaintiff.

      J. & T. E. Courtney, for app’lt; E. E: Mellon, for resp’t.
   Martin, J.

—This action was commenced before Dorr 0. Smith, Esq., one of the justices of the peace of the town of Cortland-ville, K. Y., to recover §64.70, and interest, for goods, wares, and merchandise sold and delivered to the defendant. The summons was issued May 3, 1893, and made returnable on the 12th of the same month, at 1 o’clock, P. M. It was personally served on both of the defendants May 5th. Upon the day the summons was returnable, the justice rendered a judgment in favor of the plaintiff for $67.97. The appellant claims that, before such judgment was rendered, the defendant, Kate Sheridan, appeared before the justice by counsel, and asked to be allowed to appear and answer. This was refused, and, from the judgment entered by the justice, Kate Sheridan appealed to the Cortland county court. That court affirmed the judgment of the justice, with costs. One of the principal and most important questions in this case is whether the court properly declined to allow the defendant to appear and answer. Upon the hearing of the appeal in the county court, affidavits were read, both upon the part of the appellant and upon the part of the respondent, as to what occurred at the time the appellant appeared before the justice. These affidavits are in direct conflict. We, however, concur in the suggestion of the respondent’s counsel that the facts stated in the justice’s return could not be controverted by affidavits, but that the return is conclusive as to the facts contained in it, and that in determining this question the return of the justice must alone be considered. In Barber v. Stettheimer, 13 Hun, 198, it was held that, upon an appeal to the county court from a judgment of a justice of the peace, the truthfulness of the justice’s return, if it be fully responsive to the notice of appeal, cannot be questioned nor controverted by affidavits, nor can a further return be required as to the truth of matters in respect to which the original return is controverted by affidavits. If the return be false, the remedy of the party aggrieved thereby is by an action against the justice. In Fitzgerald v. Fitzgerald, 25 Hun, 319, and Collier v. Van Hoesen, 6 Wkly. Dig. 49, the same doctrine was held. On appeal, affidavits in support of allegations of error in fact cannot be read, when they relate to any matter within the knowledge of the justice. The facts must appear by the return. Gibbons v. Van Alstyne, 29 St. Rep. 461; 9 N. Y. Supp. 156.

In the justice’s return in this case, it was stated:

“May 12. Case duly called at 1 p. m. Plaintiff appeared in person, and made oral complaint herein, demanding judgment against the defendants for the sum of $64.70, and interest thereon from January 18, 1893, and costs, for goods, wares, and merchandise sold and" delivered to the defendants, at' their request, and on their promise to pay therefor, to the amount, value, and agreed price of $64.70, with interest as above. Heither of the defendants appeared, and, after waiting one hour, neither of the defendants appearing, and the plaintiff being ready, I proceeded to the trial of this action. The plaintiff was sworn as a witness in his own behalf. Ho other evidence offered, and evidence closed. After the plaintiff had rested, and the evidence was closed,'and five minutes after two o’clock p. m., T. E. Oourtney, Esq., came into my office arid asked to be allowed to appear and answer for the defendant Mrs. William Sheridan, swore to his authority to appear for her, and offered to pay plaintiff’s costs herein made on this, the return day of the summons. The p.laiutiff was present, and objected, and refused to allow Mr. Courtney to so appear and answer, and asked that judgment be rendered and entered herein, to which the defendant excepted. Whereupon, I did immediately, and on this 12th day of May, 1893, render and enter judgment herein in favor of the plaintiff, and against the defendants, for the sum of $67.97, to wit: Damages, $65.67; costs, $2.30 ; judgment, $67.97. All of which is respectfully returned.
“Dated, Cortlandville, H. Y., June 20, 1893.
“Dorr C. Smith, Justice of the Peace.’’

Indorsed: “Filed June 27, 1893. S. K. Jones, Clerk.”

Thus by the return it plainly appears that before the judgment was entered, and while the plaintiff was present, the defendant appeared and asked to be allowed to appear and answer, and that, upon the objection of the plaintiff, this request was denied, and judgment was subsequently entered. Thus the question presented is whether, where a defendant appears before a justice of the peace on the return day, while the plaintiff is present, and asks to appear and answer, the justice can properly refuse to permit him to do so. In Atwood v. Austin, 16 Johns. 180, it was held that where a defendant in a justice’s court is ready in court to prove his defense, at the time that the plaintiff closes his case, he ought to be allowed to enter into it, although he was not present when the trial commenced. In that case the judgment was reversed because the justice declined to permit the defendant to prove his defense. That case was before the Revised Statutes went into effect, which, so far as they affect this question, were in all their essential particulars like the provisions of § 2934 of the Code of Civil Procedure. After the Revised Statutes, this question arose in the case of Pickert v. Dexter, 12 Wend. 150, where, upon the return of a summons in a justice’s Court, after waiting 1 hour and 20 minutes, the plaintiff exhibited his declaration, proceeded to the proof of his demand by examining two witnesses, and then (1£ hours after the time specified in. the summons of appearance) the defendant appeared, and asked leave to plead, offering to pay all costs, and the justice refused such leave, only permitting him to cross-examine the plaintiff’s witnesses. It was held that the refusal of the justice was error, and a judgment of the common pleas, reversing the justice’s judgment, was affirmed by the supreme court. In delivering the opinion in that case, Nelson, J., referring to the case of Atwood v. Austin, said: “The case of Atwood v. Austin I think unexceptionable, and am of opinion it should be observed in proceedings under the Revised Statutes.”

We have been cited to no recent case where this question has been decided, nor have we found any. We are unable, however, to see any good reason why the doctrine of the cases cited should not be applied under the statute as it now stands, as well as under the Revised Statutes, and are of the opinion that where a defendant appears before a justice of the peace on the return day, before a judgment is rendered, while the plaintiff is still present, and asks to be permitted to appear and defend, it is error for the court to refuse. We agree with the respondent’s counsel that parties should not be encouraged to appeal from judgments in justice’s courts where the error complained of is trivial or technical, not affecting the merits, and, where substantial justice has been done. But, where a defendant is erroneously deprived of his right to aplicar and defend an action, we think the error is neither trivial nor technical, and cannot be disregarded upon the ground that it did not affect the merits, or that substantial justice has been done. We think the judgment .of the county court should be reversed. Judgment of the county court and of the justice’s court reversed, with costs of this appeal and costs in the county court to the appellant. All concur.


author: Herrick, J.

text:
    Bernhard Liebstadter, Resp’t, v. Nathan Federgreen, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    1. Assault—Justification
    Mere possession of premises will not justify force to prevent the lawful occupant from entering therein, or to eject him therefrom.

      2. Same—Menace.
    The menace of violence, with a dangerous weapon within striking distance, is an assault, though the party threatened is not actually struck.
    Appeal from a judgment in favor of plaintiff.

      George H. Carpenter, for app’lt; T. F. Bush, for resp’t.
   Herrick, J.

—When the plaintiff hired the store of the defendant, he took that store as it had been theretofore used and occupied by the defendant himself. That gave him the right to the use of the cellar. The defendant, by surreptitiously and wrongfully barring plaintiff’s access to the cellar, did not thereby acquire a lawful possession thereof, within the meaning of Bristor v. Burr, 120 N. Y. 431; 31 St. Rep. 566, which would entitle him to resist with force and violence the efforts of the plaintiff to enter thereupon. The mere actual physical possession of premises by a person is not alone sufficient to justify him in using force and violence to either prevent the entry of the lawful occupant thereon, or, having entered, to eject him therefrom. The menace of violence with a dangerous weapon by a person within striking distance of the party menaced is an assault, even although the person menaced is not actually struck, and damages may be recovered for such assault. The'amount recovered in this case, while it seems large, yet is not so large that we can say it is evidence of passion, corruption, or prejudice; and the finding of the jury should not, therefore, be disturbed.

The judgment should be affirmed, with costs.

All concur.


text:
    Martin Grampp, Resp’t, v. John Watts De Peyster, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    Appeal—Statute op frauds.
    The defense of the statute of frauds is not available on appeal, where it was not pleaded; and evidence of the oral agreement was received without objection upon the trial.
    Appeal from a judgment in favor of plaintiff.

      Collier, Collier & Browning (C. P. Collier, of counsel); for app’lt; A. Frank B. Chace, for resp’t.
   Herrick, J.

—The referee has found that during the year 1892 the plaintiff, by himself, his agents and employes, did extra work upon a church that was being errected at Madalin, N. Y. (cleaning, painting, etc.), amounting in value, for the labor and material so furnished, to the sum of $290.60; “that such extra work was done at the request and under the direction of the defendant, and under and subsequent to the promise and agreement of the defendant to pay for the same.” Of course, if such findings of fact are correct, the judgment recovered in this case by the plaintiff necessarily follows; but the defendant and appellant contends that such findings of fact are not warranted by the evidence. The defendant contends that the evidence shows that the plaintiff, in truth and fact, was employed by another or others than the defendant, and that the requests and promises made by him are within the statute of frauds,—being promises to pay for the debt, default, or miscarriage of another,—and, not being in writing, are void. It seems to me that a discussion of the evidence in this case, to,determine whether there was an original contract of hiring between the plaintiff and defendant, is unnecessary, because I think it must be conceded that, whatever view is taken of the evidence, it establishes one of two things,-—either an original hiring between the plaintiff and defendant, or a promise or agreement on the part of the defendant to pay the plaintiff for work that he was doing, for which work the defendant was not primarily liable. Whichever conclusion we come to, the judgment must be sustained. If we arrive at the conclusion that it was an Agreement to pay the debt of another, then the defense of the statute of frauds asserted by the defendant is not available to him .now, because he did not raise it in his answer, and the evidence establishing such patrol contract to pay the debt of another was not objected to by him upon the trial. Crane v. Powell, 139 N. Y. 379 ; 54 St. Rep. 659.

The judgment should be affirmed, with costs.

All concur.


text:
    Sidney E. Maders, as Receiver, etc., Resp’t, v. William I. Whallon et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    Pleading—Fraudulent conveyances.
    A complaint, in an action to set aside a deed as fraudulent, which avers that defendant for the purpose ot.hindering, delaying and defrauding his creditors, conveyed away real estate, and to-jlr therefor a bond and mortgage, which he has, for an insufficient consideration which he has already parted with, conveyed to a stranger, beyond the jurisdiction of th"e court, alleges a state of facts entitling him to relief.
    Reargument.
   Herrick, J.

—This case is now before us upon a reargument, pursuant' to permission of the court heretofore granted. The facts in the case are substantially stated in the report of the case when it was before passed upon by this court (74 Hun, 372; 56 St. Rep. 327), and there is no occasion to rehearse them now ; but such facts as were not adverted to upon such former decision, that may be necessary to refer to in the course of this discussion, will be mentioned. Since this case was formerly before us, the case of Kain v. Larkins, 141 N. Y. 144; 56 St. Rep. 675, has been decided by the court of appeals, and a different rule announced as to what is necessary in a complaint in an action of this character from what this court apparently understood the rule to be. An inspection of the record in the case of Kain v. LarJcins shows the complaint in that case to have been substantially the same as the complaint in this case. In neither is there any allegation of the insolvency of the defendant, and in the Kain Case there is no allegation that the defendant had no other property out of which the plaintiff could collect his judgment other than that alleged to have been fraudulently conveyed. In this case the complaint, as amended, alleges that the defendant —“ Has no other property, and had no other property subject to levy and sale on execution at the time of or since the date of said conveyance, or since the rendition of the judgment, other than that embraced in the aforesaid conveyance, and the bond and mortgage given in pursuance thereof, out of which the aforesaid judgments, or either, could be satisfied, in whole or in part; and that, unless the said property can be reached and applied to the payment of said judgments, the same must remain wholly unpaid.” It will be recalled that the complaint in this action shows that, upon the conveyance being executed by the defendant of the real estate in question, the grantee, McAuliff, gave back a bond and mortgage for the entire purchase price ; and the criticism is made that the complaint, showing the execution and delivery to the de-. fendant of this bond and mortgage, indicates that the defendant was not in truth and fact insolvent; but that he apparently had property in his hands, to wit, the bond and mortgage, out of which the plaintiff might collect his judgments. There is much force, it appears to me, in such criticism, and yet, under all the facts in the case, it does not appear to me that such weight should be given to it as to call for a reversal of the judgment. Let us test the complaint, however, by the case of Kain v. Larkins. It shows the recovery of judgments against the defendant Whallon, the return of executions unsatisfied, the appointment of the. plaintiff as receiver of the property of the defendant Whallon ; that, after the commencement of the actions in which said judgments were obtained, the defendant Whallon conveyed all his property to the defendant McAuliff; that such conveyance was without consideration, and was made by Whallon and accepted by McAuliff with intent to delay, hinder and defraud the creditors of Whallon. As was said in the Kain Case, if we assume all the facts so alleged to stand admitted upon the record: They establish a cause of action by a judgment creditor against the defendant in the execution, and his fraudulent grantee or transferee, entitling him to equitable relief. A fraudulent intent on the part of the grantor and grantee is averred. The evidence necessary to support these allegations of a fraudulent intent may be, and usually is, made up of many different facts and circumstances, but it is not necessary to insert them in a pleading, and it is generally improper to do so. The pecuniary condition of the defendant at the time, the extent of his property, the part transferred and that retained, as well as the nature and extent of the plaintiff’s claim, which subsequently ripened into a judgment, were all facts bearing on the general allegations of fraud. The plaintiff could prove all these facts and circumstances under her complaint. The general allegation that a conveyance or transfer of property was made with the intent to hinder, delay and defraud creditors is broad and Sweeping in its operation and effect. It involves many elements, and may, before it can be deemed established, require proof of many other facts and circumstances which may be given in evidence under the general charge, without inserting them in the pleading.”

The evidence in this case shows that the defendant McAuliff, to whom the conveyance in question was made, was pecuniarily irresponsible, and a relative of the defendant Whallon; that Whallon remained upon the farm the same as before the alleged sale; that he took the mortgage for $5,000 that he received from McAuliff the purchase price of the farm to Canada, and sold it to a man, who was a stranger to him, for the sum of $750, which sum of money he says that he has expended in living expenses, and in paying his debts; so that, at the time of the commencement of this action, the defendant Whallon had not only parted with the real estate and personal property owned by him to the defendant McAuliff, but, if he is to be believed, had also transferred the title of the mortgage he had received in payment therefor to a person living beyond the.jurisdiction of the courts of this state, so that he had no property which could be reached, by execution or otherwise, to satisfy the judgments wherein the plaintiff was appointed receiver, unless the conveyance in question should be set aside as fraudulent. Under the language used by the court of appeals in the Kain Case, can there be any doubt but that all the facts just recited as to the giving of the mortgage and the subsequent disposition of it could be given in evidence to establish the fraudulent character of the whole transaction, and as being part of the means resorted to to perpetrate the fraud ? It was not necessary to set forth the execution and delivery of the mortgage in the complaint. It could have been given in evidence without pleading it, as part of the chain of evidence to establish the fact that the conveyance was fraudulent. It was evidence, and, as such, was not necessary to be pleaded. But being unnecessarily pleaded, and without alleging the further facts that the defendant had also parted with it, without any or for an insufficient consideration, to a person beyond the jurisdiction of our courts, it seems to me 'that the defect thus created in the complaint, if it was a defect, was cured by the facts proved upon the trial that the defendant had parted with the mortgage for the consideration and under the circumstances I have related, which facts, as before stated, could have been proved if nothing had been said in the complaint about the bond and mortgage.' But, in addition, it may be said that the allegation in the complaint of the execution and delivery of the bond and mortgage, and not coupling with it an allegation that the defendant had subsequently parted with it, is making a statement that the defendant had converted or attempted to convert, his real estate into personal property,—he had exchanged a deed for a bond and mortgage. It is a recital by the plaintiff of the method of the fraud. He couples his narration of the change of the defendant Whallon’s title to the property in question to a bond and mortgage upon the same property, with an allegation that such transaction was made with an intent on the part of both parties to hinder, delay, and defraud creditors. Such exchange may be fraudulent, although the party does not at once part with what he has received for his property. “Exchanges by which one kind of property is converted into another more easily concealed or transported, the incumbrance of visible and unavailable property, and the retention of that which is convertible, or even the reverse of this and other cases, where the aggregate value of the debtor’s property is not diminished, but an apparent obstacle to a creditor's proceedings is created, are among the methods by which frauds may be perpetrated by an insolvent debtor.” Billings v. Russell, 101 N. Y. 226-231.

The plaintiff has complained that the defendant, for the purpose of hindering, delaying, and defrauding his creditors, conveyed away his real estate, and took therefor a bond and mortgage. He lias proved, not only what he alleged, but, in addition, that the defendant has, for an insufficient consideration, which he has also parted with, conveyed away the bond and mortgage to a stranger, beyond the jurisdiction of the court, thus completely stripping himself of all property. The plaintiff has alleged and proved a state of facts entitling him to relief.

The judgment should be affirmed, with costs.

Putnam, J., concurs; Mayham, P. J., dissents.


text:
    In the Matter of South Market Street. In the Matter of James Younglove.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    Cost—Special proceeding.
    ■' Assessment of damages in proceeding to extend a street is a special Droceeding, within § 3240 of Code.
    Motion to modify and correct a memorandum of the decision of the appeal in this matter.

      Edwin Baylies, for app’lt; Andrew J. Nellis, for resp’t village of Johnstown; Philip Keck, for resp’ts Wade and others; Henry W. Thorne, in pro. per.
   Herrick, J.

—This is a motion to modify and correct a memorandum of the decision of the appeal in the above entitled matter, entered upon the clerk’s minutes, so as to award to the appellant costs at the same rate, and on appeal to this court in the final judgment in the action. The appeal in this case was taken from an order of the special term appointing commissioners to ascertain and assess the damages claimed by the-landowners in proceedings for the extension of South Market street, in the village of Johnstown. The proceeding to extend South Market street, was an exercise of the right of eminent domain. It was a condemnation of land for public purposes; and it has been repeatedly held that proceedings for railway purposes were special proceedings: that an order appointing commissioners to appraise damages was a special proceeding, from which an appeal might be taken as such. Rensselaer & S. Railroad Co. v. Davis, 43 N. Y. 137 ; In re Fow ler, 53 N. Y. 60. So, also, proceedings to take land, for public streets, or for the purpose of building a sewer, have been held special proceedings. In re One Hundred and Sixty-Third St., 61 Hun, 365; 40 St. Rep. 684; In re Wells Ave. Sewer, 46 Hun, 534. By § 3240 of the Code it is provided that costs upon an ' appeal in a special proceeding taken by a court of record, where they are not specially regulated by the Code, may be awarded to any party, in the discretion of the court, at rates allowed for similar services, in an action brought in the same court or in an appeal taken from a judgment in the same court in a like manner. By chapter 270 of the Laws of 1854 it was provided that “in special proceedings, and on appeals therefrom, costs may be allowed in the discretion of the court, and when allowed, shall be at the rate allowed for similar proceedings in civil actions.” And it was held that the proceeding under the general railroad act was a special proceeding, and that, under such statute, costs should be allowed in such proceeding the same as in a civil action. Rensselaer & S. Railroad Co. v. Davis, 55 N. Y. 145. In re Holden, 126 N. Y. 589 ; 38 St. Rep. 504, it is held that § 3240 embodies that portion of chapter 270 of the Laws of 1854 above quoted, and approves of the decision of the Davis Case; and In re Wells Ave. Sewer, supra, a proceeding to procure an easement in lands to construct a sewer, it was held that the proceeding was a special one, under § 3240 of the Code.

The motion should be granted.

All concur.


author: Barrett, J.

text:
    Frederick P. Forster, Resp’t, v. Charles E. Moore et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed July 14, 1894.)

    Principal and agent—Authority.
    Parol authority is sufficient to authorize the filling-up of a blank in a sealed instrument.
    Appeal from a judgment in favor of plaintiff.

      R. J. Robeson, for app’lts; H. A. Forster, for resp’t.
   Barrett, J.

—This is an appeal from a judgment of foreclosure and sale. The action was to foreclose a third mortgage upon property in 116th street, in this city, executed by both defendants. The consideration was in blank at the time when the mortgage was executed, and the main question presented by this appeal is whether the plaintiff was authorized subsequently to fill in the consideration. This question of fact has been decided adversely to the defendants,—and, we think, correctly. Everything in the case points to the justice of the plaintiff’s position. The property formerly belonged to the defendant Charles E. Moore. It was deeded by him to the plaintiff, to secure the latter for advances made for Moore, and also to secure him against risk in giving a certain guaranty for Moore’s benefit. Later the property was conveyed by the plaintiff to Moore’s wife, the defendant Elizabeth Moore, at Moore’s request, she giving back the present mortgage, which, as between herself and the plaintiff, was the sole consideration for the transfer. To carry out the particular transaction which necessitated the transfer, the plaintiff was to make further payments on Moore’s account, the precise amount of which could not be ascertained at the moment when the mortgage in question was executed. Of course, so long as the title remained in the plaintiff, he was secured against all advances. The giving up of the title and the substitution of the mortgage were solely for Moore’s benefit, and to enable him to carry out a transaction whereby he hoped to save the property. The intention of the parties was to keep the plaintiff secured precisely as though he still held the title. As the plaintiff was to make advances even after the delivery of the mortgage, it was entirely natural that he should be permitted to add such advances to those already made and to fill in the consideration for the total amount due him. It would have been the height of folly for the plaintiff to make further advances without adequate security, after parting with his title; and such security could only be by mortgage. The testimony is clear and convincing that the parties intended to give him this security, and that, to effectuate such intention, they both fully authorized the filling, up of the blank with the amount due or to become due to him. And this was honestly done, for the amount which the plaintiff believed to be due him. Shortly afterwards, the plaintiff gave the defendant Charles E. Moore, in writing, a full and detailed statement of the items which made up the consideration written in the mortgage. This was in the form of a letter, to which Moore replied the next day, without objecting to a single item. And it was not until the plaintiff, two days later, expressed a determination to foreclose the mortgage, that Moore objected to this statement and questioned the mortgage. The finding of fact on this head must be sustained. The legal conclusion follows that the instrument was valid. It is well settled that paroi authority is sufficient to authorize the filling up of a blank, as to a material par.t, even in a sealed instrument. Chauncey v. Arnold, 24 N. Y. 338; Knapp v. Maltby, 13 Wend. 590; Texira v. Evans, cited in 1 Austr. 228. The blank in the present instance was properly filled in, by the same authority, for advances made after the execution of the instrument. This is upon the principal which governs with respect to mortgages given to secure future advances. The learned justice at special term, upon a full inquiry as to the amount justly due to the plaintiff, eliminated from the case a small part of the amount which was filled in. Thus the judgment of foreclosure runs only for the sum actually due and payable to the plaintiff. The fact that the amount filled in as the consideration of the mortgage was somewhat greater than the amount awarded upon the trial does not affect the validity of the instrument, -as' it is not pretended that the larger sum- was fraudulently inserted. ■ It was simply a miscalculation. There can be no doubt that the plaintiff believed that the sum inserted was accurate. And the defendants cannot complain, because the court, upon a revision of the plaintiff’s items of claim, has done them full and complete justice. There is nothing in the point with regard to the application by the receiver of the rents collected by him. They clearly belong to the plaintiff, as the receiver must have been appointed on his application in this action. The judgment should, therefore, be affirmed, with costs.

All concur.


text:
    Elizabeth Stopp, Respt, v. Fitchburg Railroad Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    ¡NEGLIGENCE—CONTKIBUTABY.
    Where plaintifi could have seen the train by which she was injured for over 1,000 feet at any time after she reached a point fifty feet distant rom the track, if she had looked, a nonsuit should be granted, though she testifies that she stopped, looked and listened before going, and continued to look until she went, on the track.
    Appeal from, a judgment in favor of plaintiff.

      T. F. Hamilton, for app’lt; James C. Fursman, for resp’t.
   Herrick, J.

—This is an appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff and against the defendant for the sum of $525.84, damages and costs. In October, 1892, the plaintiff, while driving across the tracks of the defendant, was struck by one of defendant’s trains, and thrown from the buggy in which she was riding, and sustained injuries for which she brought this action. At the time in question she was driving in an uncovered buggy with her mother. She had a single horse. The horse was gentle, easily managed, not afraid of the cars, responsive to the whip and lines, who stopped readily when spoken to, and the plaintiff had fall control over him at the time in question. The highway where the accident happened is crossed by two tracks belonging to the defendant. They are about 260 feet apart. As she approached the crossing, and while at some distance therefrom, she observed two freight trains upon the track furthest from her. Upon observing them, she stopped her horse. At or near the place where she stopped there are two houses situated on the highway,—one distant about 170 feet from the first track, and the other about 250 feet. She says: “Before we came to these tracks, we stopped, and we saw two freight trains, one after the other, on the lower track, going by, and we stopped until these went by, and everything was all clear, as far as we could see, and then we listened for a minute or two,—I do not know quite so long, 'but then listened long enough to hear for noise and to see if any trains were coming. 1 looked both way to see if any trains were coming, and I know no more until we went on, and got struck with the train. There was no warning or sound given, no bell rung or whistle blown. The carriage and horse both stopped. We were waiting to see if there was any danger. We stopped for the trains to go by, and then we looked both ways and listened, and then went on, and were struck by this train. It was about quarter to nine in the morning. I looked both ways, up and down, to see if any more trains were coming, and did not see any more, so went on; then not knowing any more until we were struck by the cars.”

She was familiar with tlis crossing, and had crossed there a great many times. She says: “I think we stopped by the second house from the track, or near there. I could not say right in front of it nor near there. 1 don’t know whether a little past. I could not say just how far from the track. I should say about three hundred feet from the track. It is my best recollection now that we stopped before we .got to the last house. We did not stop from that time until the accident happened. Horse was going slow, and on a slow walk. I had full control over the liorse. When I stopped there were two trains on the lower track. After they passed I looked ahead. I looked both ways on this other track,—up and down on the first track we had to cross. I could not see anything from that point on account of the lay of the land,—the physical barrier. I could see down the west-bound track, and I could see those trains going by. My mind was on the first track we were crossing, because I knew we were in danger. When I stopped near the house, I could not see up the west-bound track at all. I could not see anything but the track road ahead of me. The first track— I could not see that. I could see the other track—the east-bound track—plainly with those freight trains coming east. Then I started on a walk. By the court: Q. Which way did you look ? A. Up and down. Q. After you started ? A. Yes, sir. Q. While you approached this track? A. Yes, sir. I did not hear any warning. There was no warning given me.”

There is a whistling post on the west-bound track (this is the track where the accident happened) 1,300 feet from the crossing. Sitting in a buggy 25 feet from the crossing the tracks can be seen for a distance of 1,100 feet towards the whistling post; 38 feet away, it can be seen 1,100 feet. Fifty feet away the tracks can be seen for a distance of 1,300 feet. At a distance of 100 feet from the track it can be seen for a distance of 180 feet. Standing on the crossing, the track is clear to the eyesight to the whistling post, and standing 20 feet distance from the track the the whistling post can be seen. The train by which the plaintiff was struck was a passenger train, going at the rate of about 40 miles an hour.

As to the facts herein stated there was no controversy upon the trial. The defendant moved for a nonsuit at the close of the plaintiff’s case, which was denied; and again at the close of all the evidence in the case, upon the ground that no negligence was shown on the part of the defendant, and that there was no evidence of the absence of contributory negligence on the part of the plaintiff; which was also denied. I think the court erred in overruling the defendant's motion for a nonsuit at the close of all the evidence. To maintain her cause of action it is necessary for her to establish the absence of contributory negligence by affirmative evidence. It is an issue in the case where the burden of proof rests upon the plaintiff. In the case of Bomboy v. N. Y. C. & H. R. Railroad Co., 47 Hun, 425 ; 14 St. Rep. 291, the plaintiff there testified that he had been looking for the train, but did not see any; that when he got near the railroad he looked up and down, but did not see any train. He testifies that he looked up and down the track when he was distant about 20 feet, and again when about 15 feet, and still again when about 10 feet, but saw no train. His horses were upon a walk. The evidence further shows that at 26 feet distance therefrom he could see down the track a locomotive, 320 feet, and could have a full view of an approaching train if he had looked over his left shoulder; and at the rate of speed at which he was going he would take between four and five seconds to go 26 feet; and there was no object in view to distract his attention, notwithstanding his testimony, the court stated: “It is highly probable that he had not looked during that space of twenty-six feet, but, if he had, he must have seen ,the "train.” It is important to notice that, according to his testimony, his horses barely stepped one' or two feet upon the track, and had stopped of their own accord, and that then for the first time he saw the locomotive just upon him. The court further says : “We must hold that the plaintiff was not free from contributory negligence. He had ample control of his team and of his own actions, was not off his guard, or distracted by any act of the defendant, could easily look, had ample time to do it, but heedlessly exposed himself and property to injury.” In this case, when at the distance of 25 feet from the crossing, the plaintiff had „ a clear view of the track for 1,100 feet, while in the Bomboy Case, at 26 feet from the track, only a view of 320 feet could be obtained. At 50 feet away the smokestack of the engine could be seen a distance of 1,300 feet from the point where she was struck by the locomotive. As was stated by the court in the Bomboy . Case, she had ample control of her team and of her own actions, and she was not off her guard, nor distracted by any act of the defendant, and could have easily looked, had ample time to do it, and, if she had looked during that time, she must have seen the train; and in the language of Woodard v. N. Y., L. E. & W. Railroad Co., 106 N. Y. 369-374; 11 St. Rep. 169, she had only to look and pause and be safe, at any time when within 50 feet of the defendant’s track. See, also, Tucker v. N. Y. C. & H. R. Railroad Co., 124 N. Y. 308 ; 36 St. Rep. 272 ; Daniels v. Staten Island R. Transit Co., 125 N. Y. 407; 35 St. Rep. 435. It being undisputable that she could have seen the train for over 1,000 feet at any time after she reached a point 50 feet distant from the track if she had looked, I think it must be held, in view of the cases I have referred to, that she did not look, excepting straight in front of her, but went heedlessly on. If she had looked, she would have seen the locomotive, and have had ample time to stop and be safe. If she did not do so, it was negligence. If she did not look, it was negligence. For the error, therefore, in denying the motion for a nonsuit, the judgment.should be reversed, and a ne w trial granted ; costs to abide the event.

All concur.


text:
    James Daley, as Administrator, etc., Resp’t, v. Port Jervis, Monticello and New York Railroad Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    Negligence—Question for jury.
    Question of company’s negligence is properly submitted to jury, where a person, while entering its car at its customary place to receive passen gers, is injured by a sudden jerk of the car.
    Appeal from a judgment in favor of plaintiff.

      Howell, Parshall & Schofield (Wm. A. Parshall, of counsel), for app’lt; John W. Lyon, for resp’t.
   Herrick, J.

—The plaintiff, with his wife and infant child, went to the depot of the- defendant, and purchased a ticket for his wife, shortly before six o’clock in the evening, the train which they were to take being scheduled to start at six o’clock. After purchasing the ticket, she proceeded to the platform, and there found a car standing with doors open, apparently ready to receive passengers. He and his wife were both accustomed to riding upon the train in question. It was about the time that it was scheduled to start, and the car stood at the usual place. Other passengers were there, taking the car. The wife entered the car; following her was another lady, not a member of plaintiff’s party; then came the plaintiff, with a basket and his infant child; he lifted the child upon the platform of the car, and started to get upon it himself, when the car was jerked forward, and the child thrown off, sustaining injuries from which it died. It seems to me that the defendant was clearly guilty of negligence, for, the car being in its accustomed position at the platform, open, apparently ready to receive passengers, it was an invitation to the plaintiff to board the train. The judgment should be affirmed. There is no special principle of law involved which calls for an opinion; the facts are such as to clearly require a submission to a jury, and the finding should not be disturbed.

All concur.