author: Mayham, P. J.

text:
    The People ex rel. Rignal D. Woodward, Resp’t, v. Simon W. Rosendale, Attorney-General, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February, 1894.)

      1. Mandamus—Attobney-Genebal.
    In examining the declaration and charter of a proposed insurance corporation, the duties o'f the attorney-general are judicial or quasi judicial.

      %. Same.
    In such case, his judgment cannot be coerced by mandamus.
    3. Same.—Review.
    Such judicial determination cannot be reviewed by the Supreme Court on an application for a mandamus.
    Appeal from an order granting a peremptory mandamus commanding the Attorney General to certify to the Superintendent of Insurance that the declaration and charter of the proposed Sanitary Insurance and Inspector Company of New York, is in accordance with the requirements of law, as provided by § 10 of article 1, chapter 690, of Laws of 1892.

      Woodward & Mayer, for Resp’ts, (Rignal D. Woodward, of counsel).

      S. W. llosendale, Atty. Gen. & John W. Hogan, Depty. Atty. Gen. for App’lt.
   Mayham, P. J.

The relator and twelve associates signed á certificate of their intention to organize an Insurance incorporation, and presented it with a proposed charter also signed and verified by them, to the Superintendent of Insurance, who referred it for examination and certification to the defendant as Attorney General pursuant to § 10 of chapter 725 of the Laws of 1893. The proposed certificate or declaration was in the following form.

Exhibit “ A ”
In conformity with the laws of the State of New York, passed on the 18th day of May, 1892, entitled “An act in relation to insurance corporations, constituting chapter 38 of the general laws.”
“We, the undersigned, do hereby declare that we intend to associate and form an incorporate company for the following purposes, to wit; The inspection and certification as to the sanitary conditions of building and premises. The insurance of owners, lessee or tenants of buildings and premises against loss or damage to life or health from causes arising from the imperfect sanitary conditions of such buildings or premises; the insurance of landlords, lessees, tenants or occupants of houses, flats, office buildings or other structures from loss occasioned by imperfect plumbing, bursting pipes or leaks to walls, ceilings, furniture or goods and for the doing of such other business as may be lawfully connected with the business of sanitary inspection, care and insurance under subdivision 8 of § 70 article 2 of chapter 690, of the Laws of 1892, and that we propose to adopt the following charter as the charter of said Company.”

The proposed charter was attached to this declaration. To this communication from the Superintendant of Insurance the Attorney General made the following response, declining to make certificate.

Exhibit “B”
Hon. John E. Pierce, 'Superintendent of Insurance:
Dear Sir —I have the honor to acknowledge the receipt of yours of the twelfth instant, enclosing proposed declaration and charter of the Sanitary Inspection and Insurance Company of New York, and you ask if there is no question as to the legal right of said company to organize under the insurance law to transact the business specified in the declaration and charter, and the papers are otherwise made out and executed in accordance with the insurance law, that I attach the certificate of this department approving the same. In reply, permit me to say that this application is made under subdivision 8, § 70, of the insurance law.
The business proposed to be carried on is the inspection and certification as to the sanitary conditions of buildings and premises against loss or damage to life or health from causes arising from the imperfect sanitary conditions of such buildings or premises ; the insurance of landlords, lessees, tenants or occupants of houses, fiats, office buildings or other structures from loss occasioned by imperfect plumbing, bursting pipes or leaks, to walls, ceilings furniture or goods; and for the doing of such other business as may be lawfully connected with the business of sanitary inspection, care and insurance under sub division 8, of § 70, article 2, chapter 690 of the Laws of 1892.
In my opinion this is not a kind of casualty insurance such as is specified in any of the sub-divisions of § 70; nor is it a kind of insurance that can be lawfully carried on under said section. I therefore decline to attach my certificate of approval to said proposed declaration and charter.
Very truly yours,
(Signed) S. W. Rosendale.”

The relator thereupon applied at special term for, and obtained the following order:—“On reading and filing the affidavit of Rignal D. Woodward verified on the 26th of Sept. 1893 and the notice of mention attached thereto, and after hearing Rignal D. Woodward the relator in person for the motion, and Francis R. Gilbert of counsel appearing for the defendant, and objecting that mandamus is not the proper remedy, and that the act of the attorney general in declining to make and sign the certificate in the moving papers, referred to, can only be reviewed on certiorari and in opposition to the motion and due deliberation being had thereon. It is ordered, that the objections raised by the counsel for the attorney general defendant herein be overruled. .

It is further ordered that the prayer of the relator herein be, and the same is hereby granted, and that a peremptory writ of mandamus forthwith issue out of, and under the seal of this court, directed to the above named Simon W. Rosendale, attorney general of the State of Hew York, requiring and commanding him to certify to the superintendent of insurance, that the declaration and charter of the proposed Sanitary Insurance and Inspection Company of Hew York is in accordance with the requirements of law, as provided for by § 10, of article 1, chapter 690 Laws of 1892, to wit; in accordance with § 70 of article 2 of chapter 690 Laws of 1892 of the State of Hew York.

It is further ordered, that the relator is hereby allowed $50 costs of this proceeding.”

From this order and determination the defendant appeals to this court. The first and most important question presented by * this appeal for examination is whether the attorney general in the" performance of the duty imposed upon him by § 10 of article 1 of chapter 690 of the Laws of 1892, as amended by chapter 725 of the Laws of 1893, acts in a ministerial or judicial character.

If in the former, then he had no discretion and no right to exercise his judgment or follow his convictions, but must as attorney general certify such declaration and proposed charter to the superintendent, to be in accordance with the requirements of law, whether or not he believes it conformable thereto.

In other words, his only duty is to make, sign and deliver the certificate without regard to his own judgment as to its accuracy or truth, or suffer the pains and penalties of a writ of mandamus, obedience to which might compel him to certify falsely.

If, on the other hand, his duties were judicial, or quasi judicial, he could only be compelled to exercise his judgment, by acting, leaving the party who claimed his acts or determinations were erroneous, to his certiorari for the correction of such error.

We can best determine whether be acts ministerially or judicially by reference to the act of the legislature from which he derives his authority. Section 10 of chap. 725 of the Laws of 1893, under which the attorney general is required to act, is as follows:

“ When application is made to the superintendent of insurance by any persons desiring to become incorporated, as an insurance corporation, or for authority to transact the business of insurance in this state under or pursuant to any declaration and charter presented for filing in the insurance department, or any amended declaration, or charter required by law to be filed, or to be approved by the superintendent; the superintendent shall not file such declaration and charter or grant such certificate, or authority, until such declaration and charter have been examined by the attorney general, and certified by him to the superintendent, to be in accordance with the requirements of law."

The plain duty imposed by this section, upon the attorney general is to examine the declaration and charter proposed, for the purpose of determining whether they be in accordance with the requirements of the law. That examination involves the exercise of his judgment and determination of the question whether or not the subject of the proposed insurance as to the form of the application and charter proposed are within the and conformable to the law under which the respondents propose to organize and incorporate.

He cannot discharge that official duty without examination of the proposed articles and charter, or comparison of the same with the law, and an official determination, which is to be expressed in his official certificate that they are conformable to the law. Suppose such examination leads him to the conclusion that they are not conformable to the law ? Must he still abdicate his judicial functions, imposed by this law, which requires him to determine, and in violation of that determination, perform only this ministerial function of signing and filing a certificate which he believes false ? We think not. The law has long been settled that the judgment of an officer, court, or body, charged with judicial functions, cannot be coerced by mandamus.

The most that can be accomplished by that writ, is to compel such officer, court, or body, to decide, leaving the decision to the free exercise of the judgment and conscience of the tribunal charged with the duty of deciding, and reserving to the party affected by such decision, the right to review the same by certiorari or appeal. This rule is well stated in the matter of petition of Howland v. Eldridge, 43 N. Y. 457, when the court of appeals say:

“ This was the universal rule with respect to all subordinate courts and tribunals, clothed with the exercise of judgment and discretion. They may by mandamus be compelled to proceed and determine the matter, but cannot be compelled to decide in any particular way. If they could, it would no longer be their judgment and discretion, but that of the court awarding the writ.”

Under this rule, if the attorney general had refused to pass upon the sufficiency and legality of the application, and proposed charter of the relator, a mandamus would issue to set him in motion' and compel him to make the application, contemplated by § 10 above quoted, but could not issue to compel him to decide in any particular way. But in this case it is not objected that he failed to act; the only complaint is, that having acted, and made a determination, he did not determine as the relator desired.

If the court can compel him by this writ, to act as required against his own judgment, his act and determination would in the language of the court, in the case last cited, “ be no longer his judgment and decision, but that of the court awarding the writ.”

In that event the court would not be reviewing the judicial determination of the attorney general by any method of review known to the law, or practice, but would be substituting its determination in the first instance, and compelling him to make a certificate which the court is not authorized by statute to make, and which he had determined he could not legally make. The case is not like that of a review by the court on certiorari of his determination and a reversal of it, if erroneous; but rather an effort to have the court determine for him how he shall decide in a given case, and thus to compel him to adopt and act upon- as his own, the judgment of the court. It is no answer to this suggestión that if his decision was reversed on certiorari and he contumaciously refused to obey the order of the court, made on such reversal, the court would still be compelled to enforce its determination by mandamus.

His duty in that event would become purely ministerial, requiring him simply to execute the judgment of the court. But it is said that the act of 1893, authorizing the certificate of the attorney general, that the application conformed to law ; is similar to that vested in many cases in the secretary of state and comptroller, and, to that, heretofore vested in the superintendent of insurance and that while the attorney general is the law officer of the state, he, as such, has no judicial functions and therefore is but a ministerial administrative officer. While in the absence of any statutory authority, conferring on him judicial functions, this may be conceded; yet the legislature in talcing this duty from the superintendent of insurance and conferring it upon the law officer of the state, must have had in view the presumed legal capacity of the attorney general, to examine, determine and certify to the insurance department, his determination of questions of purely a judicial character, which when certified, fixed the ultimate rights of the appellant, and rendered the duties of the superintendent of insurance purely and solely ministerial, and leaving nothing for him but to file the application and charter and grant the certificate of authority.

It is fair to presume, therefore, that when the legislature transferred the determination of these questions from the insurance department to the attorney general, authorizing him to make a determination and record, in the form of a certificate, that the law had been complied with, that they intended to, and did impress upon him certain quasi judicial functions, which he did not before possess.

These duties which were performed by the superintendent of insurance had frequently been held of judicial character, and when determined by him, the courts had refused to interfere by mandamus to change such determination.

In the matter of the application of the Order of International Fraternal Alliance v. Maxwell, 32 St. Rep., 573, this court held the superintendent of insurance acted judicially in determining whether or not, the proposed association had in all respects, complied with the provisions of law authorizing its incorporation, and affirmed the order of the special term refusing a peremptory writ of mandamus and in rendering their opinion use this language—“ It is plain that the superintendent was confronted with a grave question of fact, not only judicial in its nature, but one requiring special facilities and qualifications which that office is presumed to command and possess. Unless he determined it in favor of the society no occasion for the ministerial duty of issuing the final certificate existed; ” citing the following cases in the court of appeals, People ex rel. Francis v. Common Council, 78 N. Y. 337 ; People ex rel. Millard v. Chapin, 104 N. Y. 96 ; 5 St. Rep., 588; People ex rel. Myers v. Barnes, 114 N. Y. 317 ; 22 St. Rep., 164. If in the matter of Order of International Fraternal Alliance v. Maxwell, (supra), the superintendent of insurance in determining whether the appellants had complied, acted judicially and for that reason could not be coerced by mandamus, for the same, and we think a much stronger reason the attorney general when called upon to make a similar determination, could not be controlled by mandamus in the decision he was required to make in the case at bar.

If we are right in our conclusion, that this statute imposed upon the attorney general the performance of a judicial act, in determining whether this application and charter were conformable to law, then it must follow-as a legal sequence that such judicial determination can not be reviewed byt his court on ah application for a mandamus. His judgment and determination are not before us for review. They can only be reviewed in some other proceeding in the nature of an appeal or certiorari.

The office of a mandamus is to set a ministerial or administrative officer in motion, to compel him to act while a certiorari maj be resorted to, to review the legality of his acts, and if found, illegal to set them aside, or reverse them.

We are cited to many cases by the learned counsel for the relator, where ministerial officers have been compelled by mandamus to perform their ministerial duties, but none has been cited where an officer acting judicially has been compelled to decide in a given way differing from his own determination or decision, by this writ. In the case of The People v. Tremain, attorney general, 17 How. 10, cited by the learned judge at special term, the statute required the comptroller to draw his warrant upon the treasurer where costs in a civil suit or proceeding had been adjudged against the State, for the amount of the same on the production of an authenticated copy of the record of the judgment, and the certificate of the attorney general that such suit had been duly instituted as by law.

In that case a special term held that a mandamus would lie to compel the attorney general to make such certificate. But that case was reversed on appeal by the general term upon another point.

But in such case the attorney general had nothing to pass upon judicially. The record of the judgment to which his certificate was to be affixed imparted absolute verity, that the suit in which the judgment was obtained, was duly instituted as by law required, and the attorney general in enforcing the payment of the judgment by his certificate, was in the performance of that duty as much a ministerial officer as the sheriff, who was required to execute final process in the collection of the judgment, or the clerk in satisfying the judgment of record after the execution had been returned satisfied.

In the case of The People ex rel. Bockes v. Wemple, 115 N. Y. 302; 26 St. Rep. 330, the comptroller in this case had no judicial duties to perform.

It was his ministerial duty to pay the salary of the judge and, in his failure to do so, it is clear that he could be compelled to do so by mandamus. The question of the propriety of proceeding by mandamus, in that ease, was not raised or determined in that action, and that case is, therefore, no authority in this case.

People ex rel. Gilbert v. Wemple, 125 N. Y. 485 ; 36 St. Rep. 20, presented the same question as that presented in the case of People ex rel. Bockes v. Wemple, supra and is, therefore, not an authority in this case.

There is, therefore, no real analogy between the statute under which the attorney general was required to act, in that case, and the one under consideration. In the view we have taken in this case we do not deem it important to examine the question whether the determination of the attorney general in holding that the proposed insurance was “ not a kind casual insurance, such as is specified in any of the sub-divisions of § 70 nor * * * * a kind of insurance that can be lawfully carried on under said act.

That question is not properly before us on appeal from an order granting a mandamus.

The order must be reversed with $50 costs and printing disbursements.

Putnam, J., concurs; Herrick, J., not acting.

       Reversing 56 St. Rep., 633.


source: Caselaw Access Project

license: Public Domain

text:
    The City of Albany, App’lt, v. The Watervliet Turnpike and Railroad Company, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February, 1894.)

    1. Nb&ligehce—Electric Railroads.
    Guard wires are neither necessary nor usual in the construction of single trolly lines for propelling street cars, and their absence does not constitute negligence.
    2. Same—Proximate Cause.
    Where telegraph or telephone wire falls upon the trolly wire and thus communicates a deadly current of electricity to plaintiff's horses, the trolly, so long as it remains in its proper place and performs its necessary functions, is not even the proximate cause of the injury.
    3. Same.
    In such case, the proximate cause of the injury is the falling of the telegraph or telephone wire upon the live trolly wire.
    Appeal from a judgment of the Albany county court dismissing the plaintiff’s complaint.

      John A. Delehanty, for app’lt; Marcus T. Hun, for resp’t.
   Mayham, P. J.

This action was prosecuted by the plaintiff to recover damages alleged to have been sustained by the negligence of the defendant in the construction and operation of its trolly for the propulsion of its railroad cars, by reason of which the plaintiff’s horses were injured by electricity.

The defendant owns and operates a surface street railroad through Broadway in the City of Albany. At the time of the alleged injury a violent storm of wind broke or detached telephone or telegraph wires which were elevated above the trolly wire of the defendant’s railway, and also the trolly wire of the Albany railroad company, operating a line of street cars, through State Street in the City of Albany, which two railway lines intersect each other at the junction of Broadway and State Street in said city; and such broken or detached telephone or telegraph wires fell upon the trolly wire of one of these railroads, at or near their point of intersection, by means of whieh a powerful current of electricity was transmitted to such broken wire, in which the horses of the plaintiff were, while properly upon such public street, entangled and killed, or seriously injured by such electrical current. The question as to which of these railroad trollys connected with the broken wires of the telephone or telegraph companies, and thus furnished the current which produced the injury was sharply contested on the trial, the plaintiff seeking to connect the defendant’s trolly wire with it by the evidence; and the defendant seeking to show that the current came from the electric light wires or the wires of the Albany Railroad Company. That the injury resulted from a current from one of these powerful electrical agencies, was established beyond question, and substantially conceded on the trial, and upon the question as to whether or not the current came from contact with the defendant’s trolly wire, or span wires, there was, we think, sufficient evidence to raise a question of fact for the jury.

It is true that no witness traced the telephone or telegraph wire which communicated the current to the horses directly from the horses to the defendant’s trolly or span wire, but the witness who cut the wire in which the horses were entangled, gave the general direction of the same towards the defendant’s trolly and span wires, and the testimony of Hawley and McNamara, tend strongly in the same direction, so that if the case had turned upon that point and a jury had found for the plaintiff upon that evidence, the Court would not be authorized to set it aside as wholly unsupported by evidence.

The inference could have been fairly drawn from this evidence-that the current was communicated from the defendant’s trolly or span wires, and in such case it was for the jury to decide. Hart v. Hudson River Bridge Co., 80 N. Y. 622; Bernard v. Rensselaer v. R. R. Co., 32 Barb. 165; affirmed 1 Abbotts Court of Appeals, 131. But if the jury had found that the current which caused the injury proceeded or was diverted from the defendant’s trolly or cross or span wires still the plaintiff could not predicate the right of recovery upon that fact alone, unless there was some evidence, that the defendant was guilty of negligence in the construction or maintenance of its line. The right of the defendant to use electricity as motive power, or energy upon the single trolly plan, is not denied, and unless by its negligent use the plaintiff was injured, it cannot complain, and. I find no evidence in this case that its use in • this instance was not in the manner in which it is ordinarily applied in the propulsion of street cars,- and the only precautionery measure suggested by the evidence, is by suspending a guard wire over the trolly, and span wires, so as to prevent telephone and telegraph wires, suspended above it, from falling upon those uninsulated and highly charged wires, and I find no evidence that such guard wires are either necessary or usual in the construction of single trolly lines for propelling street cars.

Under these circumstances was there any evidence of negligence which the Court could have submitted to the jury upon which a recovery could be had? If the proof had established beyond any doubt that the telephone or telegraph wire had fallen upon the trolly wire, and thence on the plaintiff's horses, and thus communicated a deadly current to the horses, so.long as the trolly, which cannot be insulated was in its proper place, performing its necessary and proper functions in the propulsion of cars, could it be said to be even the proximate cause of the injury?

Within the adjudged cases upon this subject in this State, we think not.

It is quite clear that the proximate cause of this injury was the falling of the telephone or telegraph wire upon the live trolly wire, of one or the other of these lines of railroad.

Had not that occurred there is no claim that the electricity from the trolly wire of the defendant’s railroad, could have communicated with or injured the defendant's horses.

The construction and operation of the defendant’s railroad by a single trolly power, was not the direct, necessary and natural cause of the injury complained of. But for the occurence of other events over which the defendant had no control, the injury could not have happened. The doctrine is so old as to be elementary that the injury for which damages are claimed in actions for wrongs, must be the natural consequence of the wrong complained of.

In Butler v. Kent, 19 Johns. 228, Spencer, C. J. in discussing this principle, uses this language: “ In actions of tort it is necessary to show that the particular damages in respect to which plaintiff proceeds, must be the legal and natural consequence of the wrongful act imputed to the defendant.”

In Selleck v. Langdon & Co., 55 Hun, 26 ; 28 St. Rep. 326, the court uses this language: “In an action for an injury the court cannot go back of the proximate cause, and as between other causes preceding that, select one rather than the other upon which to permit a recovery.” Citing in support of that doctrine Selleck v. Railroad Co., 58 Mich. 195; Daniel v. Balentine, 230 O. 532; McClary R. R. Co., 3 Abb. 44; Henry v. R. R. Co., 76 Mo. 288; Ryan v. N. Y. C. R. R. Co., 35 N. Y. 210.

Wharton in work on Negligence, section 73, says: “Negligence is the judicial cause of an injury where it consists of such an act or omission on the part of a responsible human being, as in ordinary and natural sequence immediately results in such injury.”

In Lowery v. Western Union Telegraph Co., 60 N. Y. 198, Andrews, J., delivering the opinion of the court in commenting upon this rule says: “ The law ¿ í not undertake to hold a person who is chargeable with a brek of duty towards another with all the possible consequences of hi ongful act.”

“ It in general takes cognizanA T of those consequences which are the natural and probable! of the wrong complained of, and which, in the language of Po C. B., in Rigby v. Hewitt, 5 Exch. 240, may reasonably be exp.^ed to-result, under ordinary circumstances from the misconduct.”

“ Every injury is preceded by circumstances, if any one of which had been wanting the injury would not have happened. In some sense, therefore, each is a cause of the injury, but to fasten a legal .responsibility for the injury upon every person whose wrongful act, however remote therefrom, had contributed to bring about a situation or condition which made the injury possible, would be an impracticable rule, and one which, if enforced, would, in most cases, inflict a punishment wholly disproportionate to the wrong.”

In Selleck v. Langdon & Co., 55 Hun, 19 ; 28 St. Rep. 326, supra, the plaintiff sought to recover for an injury sustained by the falling of a platform, on which he was employed to work, occasioned by the prop on which the platform rested being knocked out by vehicles visiting the platform to remove coal, and the court in reversing a judgment in favor of the plaintiff, after reviewing the authorities upon this question uses this language: “ From these various authorities it may be stated, as the true and general rules, that, unless the wrong and damage are known to be usually in consequence, the damage according to the ordinary cause of events following from the wrong, they will not support an action.”

In Allen v. Atlantic & Pacific Telegraph Company, 21 Hun, 22, the plaintiff sought to recover for injury from the tailing of a telegraph pole, which was knocked down by being run against by a runaway team, although the pole was at the time somewhat decayed, and Talcott, Judge, after an exhaustive review of the authorities, sums up his opinion in the following words: “If, therefore, the proximate cause of the breaking of the pole, whereby the accident to the plaintiff was occasioned, was the collision with Chubb’s team, we do not think the defendant was liable for the consequences of the accident.”

Applying the principle of these decisions to the evidence in the case at bar as it appears in the record, we do not think it was error for the learned trial judge to dismiss the plaintiff's complaint.

We have examined the exceptions taken by the plaintiff to the rulings of the trial judge in the receipt and rejection of evidence and see no error for which this judgment should be reversed.

Judgment affirmed with costs.

Putnam, J. concurs; Herrick, J. not acting.


author: Russell, J. Mayham, P. J.

text:
    Cornelius A. Barnett, Resp’t, v. Augustus L. McCrea, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February , 1894.)

    Contract—Statute oe Frauds.
    A memorandum of sale sufficient to satisfy the statute of frauds may be perfected by a letter sent to the party by his own agent.
    Appeal by the defendant from a judgment entered upon the decision of a single judge at a trial before him by stipulation at a special term.

      Oleason & Johnson, (A. T. Johnson of counsel) for app’lt; Theodore H. Swift for resp’t.
   This opinion of Russell, J., at present term is as follows:

Russell, J.

This action is brought to recover for the use of a mare bred to a stallion selected by the defendant, and for the keeping of the colt after it became four months old. The agreement was plainly not to be performed in a year and was, therefore, void by the statute of frauds unless a writing properly subscribed was made taking the case out of the statute. The negotiations were begun by Mr. McCrea in the nature of a proposition in writing by letter, dated April 6th, 1891, sent to Jeremiah. Donovan offering to furnish a stallion free and pay §75 for the colts from each mare when they were three months old, Donovan to keep the colts until four months old if McCrea wished. He names the stallion, Elial Gf., as the one to breed the mares to and says that he has made arrangements with the proprietor of that stallion for the service.

Donovan cannot write, but through an amanuensis advised McCrea that he had no mares to rent at that price, but mentioned the plaintiff and one other as having mares, and showed the communication of Mr. McCrea to the plaintiff. He also advised McCrea in that or another letter that he had made arrangement for breeding two mares and gave such terms and details as enabled the defendant, McCrea, on the 26th of May, 1891, to write to Donovan the following letter:

Jeremiah Donovan:
Dear Sir :—Breed the 2 mares you have rented for me at §75.00 each to Elial Gf., and your mare to Van Yalkenburg's horse by Pancoast. I will pay §100 for use of your mare and service. Yan understands I made arrangements for several mares. Yours truly, A. L. McCBEA, Jr.”

In pursuance of this letter plaintiff’s mare was bred to Elial Gf. at a cost of $25, and a consequent lien upon the mare for that sum. A colt was foaled from such service and has been since kept by the plaintiff. No testimony was given on the part of the defense and the only point relied upon is the want of proper writing subscribed by the party to be charged.

The letter of May 26th, 1891, furnishes ample evidence that Donovan had made an agreement with Barnett for the use of the mare which, though not in writing, was communicated to the defendant, McCrea, by a letter of Donovan duly signed in his behalf. This furnished a perfect memorandum of the terms of the contract, was properly subscribed by Donovan for McCrea and was supplemented by McGrea’s answer and letter accepting and acknowledging the contract. The only object of the statute of frauds is to prevent a reliance upon oral contracts in certain cases, and to obtain satisfactory written evidence by some memorandum subscribed by the party to be charged, or his agent, of the terms of the contract itself. The statute itself does not require the contract to be signed, but provides that a note or memorandum of it suffices for the purpose upon which the statute itself is based. Following this undoubted object, it has been frequently held that letters, signed by a party’s agent and sent to the principal, are ample evidence to satisfy the purpose of the statute, and there is no reason why this should not be so The statute of frauds is not a trap, but a wholesome law for the production of written evi* deuce, and is satisfied if that évidence exists. The whole contract may be evidenced by such a writing, as a letter by any agent to a principal, or where there are partial writings, exhibiting a portion of the terms of the contract, such a letter may fúrnish the additional information necessary to complete the contract and to charge the party sued upon such an obligation.

In Peabody v. Speyers, 56 N. Y. 230, our court of appeals held that a letter written by the agent to his ■ principal, even though the principal was undisclosed as a principal to the plaintiff, of which the plaintiff had no knowledge, was sufficient to perfect the momorandum of sale.

In Welford v. Beazely, 3 Atk. 503, Lord Chancellor Hardwiclce held that a letter to a man’s own agent has been deemed a signing within the statute, even though the party never intended to bind himself by it. This is approved by Sugden in his work on Vendors 129 marginal paging. See also Fowle v. Freeman, 9 Ves. 351, 355. Story’s Equity, Sections 755, 6 and 7. Jervis v. Smith, 1 Hoff. 470: Williams v. Bacon, 2 Grey, 391; Gale v. Nixon, 6 Cow. 445.

Within the principle of these authorities, the letters of Donovan and McCrea afforded ample evidence of the contract made. Viewing Donovan either as an agent of McCrea or as the mutual source of method of communication to give information between the parties,, a letter signed for him, with the communications of McCrea, justify the assertion that a note or memorandum of the contract with Barnett was signed by the party to be charged, or his agent, and renders a judgment for the plaintiff necessary.

The case of Haydock v. Stow, 40 N. Y. 363, does not militate against this result. The paper referred to in that case was not designed as a proposal, was not a narration of what had been done and, therefore, neither as a proposition to .be acted upon nor a memorandum of what had been done, did it suffice.

I have taken some pains to examine authorities not referred to J>y either counsel to see if my impressions produced upon the trial were correct, but such examination has only tended to confirm them.

Judgment for plaintiff for the rental price, the service fee of the stallion, and the cost of keeping the colt.

Mayham, P. J.

Upon the facts found by the learned trial judge, which seem to be supported by the evidence we think he reached a correct conclusion, and that the judgment should be n-ffirmp.fl upon the opinion at special term.

Judgment affirmed with costs.

All concur.


author: Mayham, P. J. The Court The Court

text:
    James E. Baxter et al., Resp’ts, v. Mathias Baxter et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed February, 1894.)

    Evidence—Surrogate’s decree.
    In an action to set aside a deed on the ground of the mental incapacity of the grantor at the time of its execution, the decree of the surrogate, refusing to admit to probate the will of the grantor, executed the same day as the deed, under the objection of the grantee that the executor was mentally incompetent to make such will, is, while prima facie evidence of the matters adjudge in it, not absolutely conclusive as an estoppel against such grantee.

      Barnum Brothers (Jl W. Barnum, of counsel) for app’lts; G. M. Palmer for resp’ts.
   Mayham, P. J.

On the 10th day of September 1883, John Baxter father of Benjamin Baxter and Mathias Baxter parties to this action, executed a paper purporting to be his last will and testament wherein he named the defendants Mathias Baxter and Benjamin Baxter as executors. After the death of the testator, Mathias and Benjamin Baxter filed their petition with the surrogate of the proper county for the probate of the will of John Baxter deceased, and objections to the probate of the same were filed on the ground among other things, that the testator at the time of making his will was not competent to make a valid will. On the trial of that question the surrogate held and decided that the testator was of unsound mind at the time of the execution of such will, and refused to admit the same to probate.

On the same day of the exection of this will by the testator he signed, executed and acknowledged the deed sought to be set aside in this action and on the next day sent for Mathias, the grantee, to come to his house so that he could deliver the deed to him, and about two weeks thereafter testator said Mathias had been up and he had delivered the deed to him. The exact time of the delivery of the deed does not appear, but it was not delivered on the day the will was executed.

The evidence discloses an executory parol contract between the testator and the defendant, Mathias, whereby it was agreed that if he would remain with his father, and work for him after he attained his majority he should receive for his services a farm, and the evidence discloses, and the jury find, that in pursuance to that contract he did continue for many years to work for his father without compensation other than was embraced in such parol agreement, which the jury found the defendant had fully performed.

The testimony also shows that the testator and grantor in the deed in conversation two weeks after the execution of the same, referred to the delivery of the deed as an act due to the defendant, Mathias, which he ought to have performed before, presumably referring to the services performed by the defendant under the parol contract.

On the trial the plaintiff put in evidence the decree of the surrogate, refusing to admit the will of John Baxter to probate under the objection of the defendant, Mathias, the court holding that it was competent evidence upon the question of the mental capacity of the defendant’s grantor at the time of the execution of the deed to defendant.

One the conclusion of the evidence the learned trial judge held and decided as follows:

The Court

"The surrogate of the county of Otsego, in a proceeding in which all the parties in this case were parties, and in which the question of the mental competency of John Baxter on the 10th day of September, 1883, was litigated, having adjudicated that he was then of unsound mind and mentally incompetent to make the instrument which was then propounded as his last will and testament, that adjudication is competent in this court and is conclusive on the mental competency of John Baxter on that day. If he was on that day mentally incompetent to make any testamentary disposition of his real estate, as a matter of law it follows that he was mentally incompetent to convey his real estate or to make any disposition of it by deed.

I shall hold that by reason of that adjudication this conveyance, which was executed upon the same day, was void.”

This defendant duly excepted to the ruling and determination of the judge, and insisted that the whole case should be submitted upon the question of fact to the jury, or determined by the court as questions of fact upon all the evidence to which the court responded.

The Court

“I decline to hold that there is any question of that kind to submit to the jury, and I decline to submit the question to them, and, as a court, I find John Baxter, at the time of the execution of the instrument in question in this case, was mentally incompetent. I find it as a question of fact in this case, and find it from the adjudication without taking into consideration the testimony in the case.”

To this conclusion of the learned trial judge this defendant excepted, and from the decree setting aside the deed be appeals.

One of the principal questions before the trial court, and litigated in this action on the trial, was, whether or not at the time of the execution and delivery of this deed, the grantor was mentally incompetent to execute a valid conveyance of real estate.

Upon this question the learned trial court took the decree of the surrogate as conclusive evidence against the defendant of the invalidity of the deed.

While the decree of the surrogate under the circumstances of this case, was, we think, competent evidence against the defendant, and as such was prima facie evidence of the matters adjudged in it, we do not regard it as absolutely conclusive as an estoppel against him. If the will had been admitted to probate the decree of the surrogate would have been presumptive evidence only on all matters determined by the surrogate. Section '2627 of the Code of Civil Procedure upon this subject provides as follows:

“A decree admitting to probate a will of real property * * * establishes presumptively only, all matters determined by the surrogate * * * as against a party who was duly cited, or a person claiming through or under him, or upon the trial of an action, or hearing of a special proceeding in which a controversy arises concerning such will, or when the decree is produced in evidence in favor of or against a person * *

In construing this section, the court of appeals in the Matter of the Will of Merriam, 136 N. Y. 61; 48 St. Rep. 897, uses this language:

“ The record is presumptive evidence only of its due execution and the mental competency and freedom from restrain of the testator, and not of the validity of the devises contained in it, in any tribunal where the title to the real property of the testator may be in issue, citing § 2627 of the Code, supra."

Under this provision of the statute the heirs would not have been concluded absolutely by the decree of the surrogate, if this real estate had been devised to the defendant in the will, and the same had been admitted to probate. The heir not being estopped under such circumstances by the decree of the surrogate it would seem to follow, that the grantee under the deed, the validity of which was not directly in issue before the surrogate, by a decree that the grantor on the day of the execution of the deed, was not competent to devise real estate.

The doctrine is laid down in Abbott’s Trial Evidence p. Ill and supported by the authorities there cited, that “where the probate of a will would not be conclusive in favor of the will, a decree of the probate court rejecting the will is not conclusive against it.” This deduction would seem to be logical, when applied to the will itself, and to apply with greater force, when applied to a deed executed contemporaneously with the will.

It is quite true that the trial court sitting as a court of equity, might have regarded the decree of the surrogate sufficient evidence, as matter of fact, and considered that prima facie evidence as matter of fact sufficient to overcome all the other evidence in the case. But his refusal to consider the other evidence and holding that the decree was as matter of law conclusive was, we think, error.

It was also a question of fact under all the evidence in this case whether the grantor was in the same mental condition at the time o the delivery of the deed as he was found to be at the date thereof.

The deed took effect from the time of its delivery, which by the undisputed evidence was some days after its execution, and there was some evidence, that at the time of the delivery, the grantor had some appreciation of the relation existing between him and the defendant, and of the obligation he owed to him; and while as we have seen, none of these matters, would as matter of law, necessarily overcome the prima facie case by the introduction of the decree; we think it raised a question of fact which the court should have considered.

I am therefore of the opinion that the learned judge erred, and that the judgment should for that reason be reversed.

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

Putnan, J., concurs; Herrick, J., dissents.


author: Per Curiam

text:
    Chester C. Burritt, App’lt, v. Koster, Bial & Company, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    Deposition—Examination.
    An examination of the defendant before trial will not be granted for the purpose of ascertaining whether the plaintiff has a cause of action.

      Appeal from order denying motion for the examination of defendant’s president before trial.

      George M. Pinney, Jr., for app’lt; Fromme Brothers, for resp’t.
   Per Curiam

We suspended the decision to which we inclined on the argument, that we might consider the authorities to which counsel for the appellant earnestly entreated our attention.

We have examined those authorities and we find them of no effect in modifying our impression of the propriety of the order in question. The decision of the learned judge at special term, is firmly supported by the reasons upon which he grounds it, and is vindicated by conclusive authority. Britton v. Macdonald, 3 Mis., 514; 52 St. Rep., 494.

While we have every disposition to assist the appellant in his declared purpose of protecting the process of the court, we cannot disregard the settled rules of law even in the pursuit of so laudable an object.

Order affirmed with costs.


author: Giegerich, J.

text:
    Edward S. Steinam, App’lt, v. George H. Bell, Resp’t.

      (New York Common Pleas, General Term,

      Filed February, 1894.)

    1. Pleadings—Answer.
    An allegation in an answer “that the defendant has not sufficient knowledge to form a belief ” as to the averments contained in certain portions of the complaint, is not authorized in district courts.
    3. Appeal—Dismissal of complaint.
    Where, in an action for fraud, the elements of representation, falsity, deception and injury are abundantly established by the evidence, and scienter confessed by non-denial, a judgment of dismissal is erroneous.
    Appeal by the plaintiff from a judgment or dismissal of the district court in the city of New York for the second judicial district, rendered on a trial had before the justice thereof, without a jury.
    The nature of the action and the material facts are stated in the opinion.

      M. A. Lesser, for app’lt; J. Stewart Boss, for resp’t.
   Giegerich, J.

The plaintiff in his verified complaint alleged: I. That the defendant, offering to sell the plaintiff a certain mare, warranted and falsely and wrongfully represented said mare to be sound, free from fault and correct in every respect. II. That the plaintiff, relying upon such warranty and representations, and induced thereby, then and there purchased said mare and paid the defendant therefor the sum of $250. III. “ That, at the time of said warranty and sale, the said mare was unsound, unkind and untrue, as well as restive and ungovernable in harness, and had an equine disease, and was, moreover, big with young at the time, and, therefore, by reason of the premises, practically worthless to the plaintiff and known by the defendant to be so.” IY. “That, in consequence of such condition of the animal, the plaintiff was put to great expense in the care and in attempting the cure of the said mare and in her treatment during pregnancy, and thereafter in the keeping of her and her colt, foaled on or about the 19th day of April last." Y. “ That, by reason of the premises, the plaintiff was injured and misled to his damage $250.”

The defendant, in his answer, also verified, after putting in issue the allegations of the first and second paragraphs of the complaint, denied the allegations in paragraph 3, down to and including the word “ harness,” and alleged “ that, as to the remainder of the allegations in said paragraph 3 contained, defendant has not sufficient information to form a beliefand “ that, as to the allegations in paragraphs 4 and 5, defendant has not sufficient information to form a belief.”

During the progress of the- trial, and before the plaintiff had rested, his counsel moved for judgment on the pleadings on the ground “ that the only issue raised by the answer is the question of warranty,” which motion was denied, and he excepted. The appellant insists that this is a reversible error. This leads to the consideration of the sufficiency of the answer.

A pleading in the district courts of this city may be oral or in writing. “ If it is oral, the substance thereof must be entered by the justice in his docket book; if it is written, it must be filed by him, and a reference to it made in his docket book.” Code of Civ. Pro., § 2938,. which is made applicable to these courts by § 1347 of the consolidation act, Laws 1882, chapter 410. A denial in an answer in these courts seems to be limited to one upon knowledge, Code of Civ. Pro., § 2938; consolidation act, §§ 1347 and 1383, subd. 1, to which should be added “a denial upon information and belief,” which seems to be. authorized by implication under § 526 of the Code of Civil Procedure, Wood v. Raydure, 39 Hun, 144; 9 Civ. Pro. 96 ; Bennett v. Leeds Mfg. Co., 110 N. Y., 150; 16 St. Rep. 841, which section, it appears, is made applicable to District Courts by §| 1346, 1383 of the Consolidation act.

An allegation in the answer “ that the defendant has not sufficient knowledge to form a belief ” as to the allegations contained in certain portions of the complaint is not authorized in District Courts, Dennison v. Carnahan, 1 E. D. Smith, 144. A denial “ of any knowledge or information thereof sufficient to form a belief,” permitted by section 500 of the Code of Civil Procedure, being expressly restricted to courts of record. Code of Civ. Pro. § 3347," subd. 4; see Dennison v. Carnahan, supra. It follows that the answer in the case at bar to portions of the third and the entire fourth and fifth paragraphs of the complaint that “ defendant has not sufficient information to form a belief,” is wholly insufficient and these allegations, if material, must be taken as confessed by non-denial. Are any of them material? In order to answer this question it will first be necessary to determine the nature of this action.

This case is almost identical with Ross v. Mather, 51 N. Y. 108, in which the Court of last resort held that the complaint contained all the elements of a cause of action for a fraud.

The essential constitutents of an action to recover damages for false and fraudulent representations are “ representation, falsity, scienter, deception and injury.” Arthur v. Griswold, 55 N. Y., 400, per Church, C. J.; Brackett v. Griswold, 112 N. Y., 454; 21 St. Rep. 791; Bosworth v. Higgins, 26 St. Rep., 474 ; 7 N. Y. Supp., 210. Tested by these rules, it is quite clear that the complaint in this case is for a fraud, not upon a contract. Such being the nature of the action, the averments in the third paragraph of the complaint as to the scienter of the defendant must be regarded as not being denied, and being material, are, therefore, admitted. Dennison v. Carnahan, supra.

The other allegations of the complaint, hereinbefore referred to, as to specific facts, as distinguished from a matter of opinion and other than a statement of unliquidated damages, must also be admitted by the defendant’s failure to deny them. Abbott’s Brief on Pleadings, § 540, subd. 3, p. 441, and cases cited. Accordingly, it must be held that the following allegations of the complaint were confessed by non-denial, viz: “ That the mare had an equine disease, and was, moreover, big with young at the time.” “ That the plaintiff was put, to great expense in the care and in attempting the cure of said mare, and in her treatment during pregnancy, and thereafter in the keeping of her and her colt.” The denials contained in the other portions of the answer were sufficient to put in issue the remaining allegations of the complaint; therefore, the motion for judgment on the pleadings was properly denied.

The allegations of the complaint as to representation, falsity, deception and injury were abundantly established by the evidence, and the scienter was confessed by non-denial, and was, therefore, not open to traverse or contrary proof on the trial. East River Electric Light Co. v. Clark, 45 St. Rep. 635; 18 N. Y. Supp., 464. The plaintiff, under any aspect of the cáse, was entitled to nominal damages. Moore v. N. Y. El. R.R. Co., 4 Misc. Rep., 132; 53 St. Rep. 169, and under all the circumstances of the case the - justice clearly erred in rendering judgment of dismissal, without prejudice to a new action. Cons, act, §1382.

It follows, from these views, that the judgment should be reversed and a new trial ordered, with costs to the party there prevailing.

In view of the statement contained in the appellant’s brief, that “the object of this appeal is to secure an authoritative utterance for the guidance of the court below,” it is deemed proper to remind the counsel for both parties litigant that the court below possesses ample power to allow a pleading to be amended at any time before or during the trial. Runge v. Esau, 6 Misc. Rep. 148; 56 St. Rep. 409,

Judgment reversed and a new trial ordered, with cost to the party there prevailing.

Bischoff, Jr., P. J., concurs.


author: Pryor, J.

text:
    In the Matter of the Application of John Torney for a Writ of Mandamus against Joseph H. Stiner, Justice of the District Court in the City of New York for the Eighth Judicial District.

      (New York Common Pleas, Special Term,

      Filed February, 1894.)

    1. Quo Warraxto—Title to Office.
    Quo warranto is the appropriate and only proceeding for trying and adjudging the title to office.
    3. Mandamus—Title to Office.
    As against an incumbent occupying under color of legal right, mandamus is unavailable and inoperative for the admission of an adverse claimant.
    Application for a mandamus to reinstate and reappoint the relator to the position of court attendant
    The opinion states the case.

      John W. Goff, for relator; Wm. H. Clark (Counsel to the Corporation) and Theodore Connoly, for resp’t.
   Pryor, J.

The application is for a mandamus to Joseph H. Stiner, justice of the district court in the city of Hew York for the eighth judicial district, commanding him to reinstate and reappoint the relator to the position of court attendant.. It appears that in March, 1888, the relator was duly appointed an attendant in the eighth district court for an indefinite term; that, at the time of his appointment, he was a privileged fireman within the provisions of § 1 of chapter 577 of the Laws of 1892; that his salary as such attendant was paid by the City of Hew York; that on the 2d of January, 1894, he was removed from his position without cause and without a hearing; and that John Hunnery has been appointed to his place and position. It is conceded that the position of court attendant is an office, and that Hunnery is now the incumbent of it, under a claim of title from the regular appointing power. Consol, act, § 1432.

Upon this state of fact the question instantly arises whether mandamus be the appropriate and available remedy for the wrong of which the relator makes complaint ? If not, then inquiry as to the validity of his title would be a purely academic discussion; and although, in Marbury v. Madison, 1 Cranch, 137, we have a memorable precedent for such sterile speculation, still the criticism incurred by Chief Justice Marshall for pronouncing upon a right not before the court is little calculated to commend even that illustrious example to imitation.

It being of concern to the public interests that the functions of public office should not be suspended, a summary method for investing the legal incumbent with the actual possession of the office was indispensable; and from the earliest times such method was supplied by the writ of mandamus. Moses on Mandamus, 150; High on Extraordinary Legal Remedies, § 67; 3 Blackst. Com. 110. It is upon this ground of public convenience that the decisions in People ex rel. Gorman v. Board of Police, 35 Barb. 527 ; and People ex rel. Titus v. Board of Police, 35 Barb. 535, may be vindicated; and it is upon this ground only that in other cases of plain usurpation of office relief by mandamus may be reconciled with the fundamental principle that the writ is an inappropriate process to determine the title to office.

The in efficacy of mandamus asy, method of trying title to office inheres in the nature of the writ itself, which issues only When the right is clear, and when no other legal redress is available, and which, involving only a contention between • the relator and the respondent, is incapable of concluding the claim of a stranger. Hence, it proceeds in every instance upon the assumption that the applicant has an evident and consummate legal title, and if the writ show less it will be denied, for the court cannot undertake in this proceeding to try a disputed right. In case of a contest there must be judgment of ouster against the incumbent before the writ will issue in favor of the contestant. State v. Dunn, 12 Am. Dec., 28-30 ; note collating cases.

It is not gainsaid that in other jurisdictions mandamus has been employed apparently as a means of determining title to office; but on examination of those cases it will be seen that the right was really not in contestation, but only the custody of the insignia, and that the courts .simply refused to suffer a mere usurper to turn the holder of the,legal title into the position of a contestant, and summarily awarded the possession to the unchallenged claimant. Warner v. Myers, 4 Ore., 72; Harwood v. Marshall, 9 Md., 83; Dew v. Judges, 3 Hen. & Man., 1.

A writer of authority distinguishes the case where the applicant, as here, seeks restoration to office (High on Ex. Legal Rem., §§ 49, 67); but the diversity in the decisions goes not upon principle but upon the accidental circumstance that the right of the incumbent is commonly clear, and that the removal was a nullity. At all. events the distinction is not recognized by the courts of this state. People ex rel. Wren v. Goetting, 133 N. Y., 569 ; 44 St. Rep., 503.

But, whatever may be the course of adjudication elsewhere, in Hew York it is settled beyond controversy, that quo warranto is the proper and only proceeding for trying and adjudging the right to office; and that, as against an incumbent occupying under color of legal title, mandamus is unavailable and inoperative for the admission of an adverse claimant. The People ex rel. Wren v. Goetting, 133 N. Y., 569; 44 St. Rep., 503; Nichols v. MacLean, 101 N. Y., 526; People ex rel. Faile v. Ferris, 76 N. Y., 326; Matter of Gardner, 68 N. Y., 467 ; People ex rel. Dolan v. Lane, 55 N. Y., 217; People v. Stevens, 5 Hill, 616; People v. Vail, 20 Wend., 12 ; People ex rel. Ballou v. Wendell, 57 Hun, 362 ; 32 St. Rep., 129 ; People ex rel. Arcularius v. New York, 3 Johns. Cases, 79.

What would be my decision on the merits of relator’s claim in the quo warranto or certiorari upon his removal it is unnecessary to indicate. It suffices that, for the reason given, the proceeding is not to be upheld.

Proceeding dismissed, with costs.


author: Mayham, P. J., (dissenting.)

text:
    Ruth Percy, as Administratrix, etc., App’lt, v. The Fitchburg Railroad Company, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed March 1, 1894.)

    Appeal from a judgment entered upon the order of the trial judge, dismissing the complaint and granting a nonsuit on the merits.

      George B. Wellington, for appl’t; T. F. Hamilton, for resp’t.
   USTo prevailing opinion was handed down.

Judgment affirmed, with costs.

Mayham, P. J., (dissenting.)

Appeal by the plaintiff from a judgment entered upon the order of the trial judge, dismissing the plaintiff’s complaint and nonsuiting the plaintiff upon the merits.

The action was prosecuted by the plaintiff to recover for the alleged negligence of the defendant in running its railroad train, by reason of which plaintiff’s intestate was killed.

The grounds of the nonsuit as stated by the trial judge, were that there was no evidence from which the jury could properly find that the plaintiff’s intestate was free from contributory negligence, and no evidence upon which the jury could find that the defendant was guilty of any negligence.

The evidence discloses that Hoosick station on the defendant’s railroad is a short distance south of the highway leading to Hoosick Village which is a hamlet lying mostly on the easterly side of the railroad.

This highway passes through the village and constituted one of it principal streets.

The station is located between the tracks, and the only way of ingress and egress to and from the station, from the highway, was over the defendant’s land, a distance of about 364 feet.

The plaintiff’s intestate was the mail carrier from the station to Hoosick post office, and also carried baggage from the station to the village using as his means of conveyance a single horse and open buggy, and was accustomed to visit this station on such business, five or six times each day. After driving from the the highway to the station between the defendant’s tracks, there was no way of getting out except by turning around at the station and driving back over the same route.

On the day of the injury, the plaintiff's intestate drove into the station to receive the mail' from the east bound mail train, which was late. After the mail train had come and gone, he turned his wagon, loaded in his mail and baggage. A light engine followed the mail train moving but slowly and making no unusual noise; and it appears from the evidence that about the time the light engine passed, plaintiff’s intestate got into his wagon and started in the direction of the highway, when an express train, on defendant’s west bound track, running at a high rate of speed passed the station. At that time deceased’s horse seemed to become unmanageable and started to run, the deceased apparently trying in vain to hold him. A bystander seeing his danger shouted a warning to deceased, but it does not appear whether or not he heard, either the train or warning ; and as his horse turned to cross the railroad track the wagon was struck by the train, and he was precipitated upon the ground and killed. It appeared that the whistle on the locomotive of the express train was sounded at the whistling post on approaching the station, but as ap pears by some of the testimony, not more than two seconds before the collision with deceased’s wagon.

The land between the defendant’s railroad tracks over which the station was reached in going from the highway, belonged to the defendants, and the distance between the two tracks was about sixty-three feet.

In passing over or standing upon this open space or driveway, between the station and' the highway, the station and a coal house adjoining it, obstructed the view along the track southerly, but by standing near either track, that obstruction was avoided, and the track southerly could be seen for a distance of two miles to the Petersburg station.

The contention of the plaintiff and appellant is, that the defendant by opening this cul de sac from the highway to the station and thus inviting the public to approach the station over it, and furnishing no other way of ingress or egress was negligently furnishing a trap into which the plaintiff’s intestate was compelled to enter to procure the mail he was required to take from the trains to the post office, and the defendant was on this occasion guilty of negligence, in running its trains off of its usual time at a rapid rate without sufficient warning to the deceased of its approach, tq enable him to avoid a collision, and that these facts should have been submitted to the jury, and that it was an error for the trial judge to take that question from them.

It is also insisted by the appellant that the evidence would justify the jury in finding that the plaintiff’s intestate was free from contributory negligence and that that question should also have been submitted to them.

On the part of the respondent it is insisted that as the land between the defendant’s railroad tracks belonged to it and the intestate was a mere licensee who was familiar with the location and the dangers incident to the same; that he was there at his peril and the defendant owed him no duty except to do him no intentional harm.

In Hulbert v. N. Y. C. R. R. Co., 40 N. Y., 154, the court held that the following language used by the trial judge in charging the jury was not error. “ That any place where the cars are ac- , customed to stop, passengers have a right to suppose that adjacent to the cars the ground admits of their getting safely out and in, and I do not think that it is right to let any other rule prevail; within the limits in which persons necessarily and ordinarily go to and from the trains, it is necessary that the company keep the ground safe."

In Hoffman v. N. Y. C. & H. R. R. R. Co., 75 N. Y., 605, the plaintiff’s intestate passed diagonally over the defendant’s railroad tracks to the highway, and in doing so fell into a cattle guard and was then struck by defendant’s train and killed. Upon this evidence the plaintiff was nonsuited at the trial. The nonsuit was on appeal to the court of appeals held error ; that it was defendant’s duty to furnish a safe and convenient passage from its depot to the highway (citing Hulbert v. N. Y. C. R. R. Co., supra,) and there was ground for a finding that in consequence of its neglect to perform that duty passengers would need to go along the tracks to pass conveniently from the depot to the highway, and if they were then exposed to injury it was because of defendant's neglect.

In Weber v. N. Y. C. & H. R. R. R. Co., 58 N. Y., 451, it was held that it was not enough in all cases to absolve a railroad company from the charge of negligence in running its trains and using its tracks at a crossing, that the statutory signals are given and that circumstances may require other precautions to be taken, in respect to the moving of their trains and the use of their road.

In that case the court uses this language: “Juries may and must say whether a railroad company sought to be charged for alleged negligence has in the operations of its trains and the use of its road tracks, and the conduct of its business used that degree of care and prudence which the circumstances and its obligation to others require but beyond this they cannot go."

While it is true that a jury would have no power or authority to prescribe the kind of signals to be used by a railroad, or the propriety or necessity of a flagman at a given point, or the manner of the location of its tracks, or depot, they may in a proper case determine whether or not it has been guilty of negligence' in the discharge of the duty which it owes to individuals or the public which has caused injury to individuals or the public, and in determining such questions may and must take into consideration the surrounding circumstances of each case submitted to them. Dyer v. Erie R. R. Co., 71 N. Y., 230 ; Cordell v. N. Y. C. & H. R. R. R. Co., 70 N. Y., 123 ; Houghkirk v. D. & H. C. Co., 92 N. Y., 219; Richardson v. N. Y. C. & H. R. R. R. Co., 45 N. Y., 846.

In the case at bar the jury, if the case had been submitted to them, would have been authorized to consider the speed of the defendant’s express train, the intestate’s opportunity of seeing or hearing the same, the means of ingress and egress furnished by the defendants to and from its station and from these and all the other surroundings bearing upon the questions, determine whether or not the defendant was guilty of negligence by which the injury occurred. Salter v. Utica and Black River R. R. Co., 88 N. Y., 50; Massoth v. D. & H. C. C., 64 N. Y., 531.

In considering the question as to what should be submitted to a jury in Martin v. N. Y. C. & H. R. R. R. Co., 27 Hun, 533, learned judge uses this language: “The defendant insists that a railroad company has a right to run its trains on its own land at a high rate of speed. Perhaps that is so. But this crossing was not its own land. It was land belonging to another, over which the public had a right to travel, and the railroad had also a right of passage. The defendant acknowledges that a high speed through a city or crowded locality is a circumstance bearing on the question of negligence when insufficient notice is given. But the defendant claims that it is only in a city or village that this rule applies; that in the country a high speed at a crossing is not to be considered on the question of negligence. We do not think this is correct. The law is properly laid down in Cont. Imp. Co. v. Stead, 95 U. S. Reps., 161.

Speaking of a crossing on the level the court say: ‘ The train has the .preference and right of way. But it is bound to give due warning of its approach. * * * Such warning must be reasonable and timely. But what is reasonable and timely warning may depend on circumstances. It cannot be such if the speed of the train be so great as to render it unavailing. The explosion of a cannon may be said to be a warning of the coming shot, but the velocity of the latter generally outstrips the warning. The speed of a train at a crossing should not be so great as to render unavailing the warning of its whistle and bell.’ That is the principle which should be applied here. Where there is an excessive rate of speed, that may be considered by the jury, not perhaps as being . in itself negligence, but as requiring at a crossing a warning which shall be available and as tending to make the ordinary warning o£ no effect.”

We are therefore of the opinion that within the authorities, there was sufficient evidence in this case upon the question of the defendant’s negligence, to authorize the submission of that question to the jury. Nor do we think the caso should have been taken from the jury on the ground that the plaintiff failed to show .that her intestate was free from contributory negligence.

It does not appear that the deceased was not properly at the station, or that he failed in attempting to do all he could to avoid the accident. It is true that his horse appeared to be running away, but it also appears that he attempted to restrain him.

If the jury had found that the defendant by its negligent act or omission had caused the circumstance of peril, and created the emergency, it would not be released from responsibility because the plaintiff did not exercise the soundest discretion in his efforts to avert the consequences of its fault. Roll v. Northern Central Railway Co., 15 Hun, 502; affirmed, 80 N. Y. 647.

“ Where the evidence is conflicting,' is capable of different interpretations or the inferences to be drawn from it are doubtful, it is the province of the jury to pass upon it.” Belton v. Baxter, 58 N. Y. 411.

“In the cases of negligence were there are inferences to be drawn from the proof which are not certain and incontrovertable, it is not proper to direct a verdict or a nonsuit, but the question is for the jury. ‘ Thus where it is necessary to determine what a man of ordinary prudence would be likely to do in the emergency proven, thus involving as it generally does, more or less conjecture can only be settled by a jury.” Bernhard v. Rens. & Sar. R. R. Co., 1 Abb. Ct. App. Dec. 131.

“ To justify a nonsuit upon the" ground of contributory negligence, the negligence must appear so clearly that no construction of the evidence or inference drawn from the facts would have warranted a contrary conclusion, and that a verdict of the jury the other way would have been set aside as against evidence.”

“In general, negligence is a mixed question of law and fact and is to be determined by a jury." Stackus v. N. Y. C. & H. R. R. R. Co., 79 N. Y. 466.

I am therefore of the opinion that the questions in this case were proper for the determination of a jury, and that it was error to take them from the consideration of that tribunal.


author: Mayham, P. J.,

text:
    In the Matter of the proceedings to extend South Market Street in the Village of Johnstown, etc., James Younglove, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed March 1, 1894.)

    I. Municipal Cobfoeations—Villages—Eminent Domain.
    In the exercise of their extraordinary power of taking private property for public uses against the will of the owner, trustees of the village of Johnstown must follow strictly the course pointed out by statute.
    3. Same—Commissionbbs.
    If they do not comply, they acquire no jurisdiction and their resolutions do not empower the court to appoint commissioners.
    8. Same—Delay.
    A failure of the commissioners to report within the statutory time does not ipso facto vitiate or annul their appointment.
    4. Same—Bab.
    The pendency of proceedings for the condemnation of land is a bar to the right to institute other proceedings for the same purpose.
    5. Same—Discontinuance.
    The right to discontinue such proceedings rests in the sound discretion of the court, when applied to for that purpose.
    Appeal by James Younglove, a land owner, from an order of the special term appointing commissioners, to assess the damages claimed by land owners, for the opening and extending of South Market street in the village of Johnstown.

      Edwin Baylies (John M. Carroll, of counsel) for app’lt; Andrew J. Nellis for Village, resp’t.
   Mayham, P. J.,

The first objection to the validity of the order sought to be reversed, urged upon this appeal, is based upon the contention that the papers used on this motion were insufficient to to confer jurisdiction, or authority upon the court to grant the order.

. The papers used by the respondents in support of this motion consist of a certified copy of a series of resolutions relating to the extension of said street, purporting to have been adopted at a meeting of the board of trustees of the village of Johnstown on the 22nd day of May, 1893.

The record shows that on these papers the special term of this court setting at Amsterdam on 12th day of June, 1893, made an order appointing three commissioners, to assess such damages and benefits if any, awarded on the real estate in the village, effected by the extension of South Market street in the village of Johns-town. But no action by such commissioners appears to have-been taken thereon prior to the 4th day of September, 1893.

On that day as appears from certified copies of the minutes of the proceedings of the board of trustees of the village, another series of resolutions was adopted, looking to the appointment of other commissioners to assess the damages and benefits to land owners, by extention of South Market street, which resolutions- and proceedings taken thereunder, constitute the basis of the order from which the appeal was taken.

The first resolution provided for the extension of Market street and fixed the extent and boundaries of the proposed extension. The next resolution contained the names of the persons whose-lands were proposed to be taken for such extention. The third, resolution contained the names of residénts and land owners of the village adjudged by the trustees as likely to be benefited by by the improvements. The fourth resolution provided for the assessment of benefits on such real property, as commissioners to-be appointed, shall determine were to benefited thereby.

The fifth resolution required the land owners to file claims for damages. The sixth resolution directed the clerk of the village to publish notice of the extent of the improvement and giving notice to the claimants for damages of the time and place of applying to the court for the appointment of commissioners to assess the benefit to land owners. The seventh resolution required the clerk to serve copies of said notice on land owners.

These resolutions which are set out in full are authenticated by the village clerk, attested by the village seal.

These resolutions were followed by a copy of the notice published by the village clerk, certified in like manner, and authenticated by the village seal. The moving papers also contained, the names of claimants for damages with the amounts claimed by them respectively.

Appended to the papers above referred to, is the affidavit of. the village clerk of the village of Johnstown as follows—

James D. Rogers, being duly sworn, says that he is the Clerk of the village of Johnstown and has been for some months past that at a regular meeting of the Board of Trustees of said village,, held on the 4th day of Sept. 1893, the resolutions hereunto annexed were offered by Mr. Maylender, a trustee of said village,, were regularly voted upon and said vote was recorded as follows (“ all voting aye ”) and that said record is now deposited in deponent’s office and is a regular record of said village.

Sworn to before me James D. Rogers,

this 30th day of Oct. 1893.

W. P. Butlar

Notary Public.

This affidavit is the only evidence in the papers of the vote ofi the village trustees upon the adoption of the resolution and it appears by the affidavit used in opposition to the motion, that the records of the proceedings as kept by the village clerk does not show that the board of village trustees ever voted on the resolutions to extend South Market street at the meeting of the Board, on the 4th day of Sept. 1893; but it appears by the affidavit of the clerk, that the vote on the same was recorded as follows “ all voting aye.”

It is insisted by the appellant that this is not sufficient; that the record does not disclose that there was a majority of the trustees of the village present or acting on these resolutions or that any vote of the trustees was legally taken.

Section 18 of chapter 78 of the Laws of 1890 purports to amend § 103 of chapter 303 of the Laws of 1881, so as to read as follows—Section 103. “All notices, motions or. resolutions offered by any member of the board of trustees, board of water commissioners, or board of health of said village, shall be entered upon the minutes or journal of proceedings, together with the name of the member offering the same; all votes upon such motions and resolutions, and all votes for appointments made by any of the above named boards shall be by calling of the roll, the members voting aye or nay; the vote of each member shall be recorded in the minutes or journal of proceedings.”

It is true that an examination of chapter 303 discloses that there are but 102 sections in that chapter, and that therefore § 103 is not an amendment of that section in the original act, it is nevertheless a valid provision of law relating to the village of Johnstown, and binding upon the village authorities as a part-of its charter. Section 21 of chapter 303 of Laws of 1881 re quires the village Clerk to attend all meeting of the trustees of the village, and record their proceedings; and § 86 of that chapter makes the minutes of such proceedings evidence in all courts, of the acts of the board of village trustees, as such.

The power sought to be exercised in this proceeding is that of condemnation of private property for public purposes, under the right of eminent domain vested in the sovereign prerogative of government; but that power cannot be exercised except in conformity to law, The board of trustees are creations of the statute with no inherent powers except such as are derived from the statute, and it seem to be the policy of the law that in the exercise of their extraordinary power of taking private property for public uses against the will of the owner they must follow strictly the course pointed out by statute.

It has long been the settled doctrine, that those claiming rights under inferior and limited jurisdictions must show affirmatively the facts upon which such jurisdiction rests. Dakin v. Hudson, 6 Cow., 221; Cornell et al. v. Barnes, 7 Hill, 35; People v. Koeber, 7 Hill, 40; Corwin v. Merritt, 3 Barb., 343. In the last cited case Mason, J., in discussing this question uses this language: “ It is a familiar principal that every statutory authority, in derogation of the common law to divest the title of one person and transfer it to another, must be strictly pursued, or the title will not pass.”

In Sharp v. Johnson, 4 Hill, 99, Bronson, J., uses this language : “ Where lands are to be taken under a statute authority, in derogation of the common law, every requisite, of the statute having the semblance of benefit to the owner, must be strictly comnlied with.”

The principals enunciated in these cases have been strictly adhered to so far as we know, inall the cases involving similar questions which have subsequently come before the courts in this state.

In the Matter of Widening Carlton Street in Buffalo, 16 Hun, 497-499, the failure to comply with the technical requirements of the statute by the common council in taking, and recording the vote on the resolution to widen the street, was passed upon by the supreme court in the fourth department.

That charter provided that the common council in authorizing the taking of land for the widening of a street “May declare by a resolution adopted by more than two-thirds of its members.”

The charter also provided that when by its provisions, “ A vote of more than a majority is required it shall be taken by the yeas and nays, which shall be entered in the journal, etc.”

Under these provisions it was held, that to render a resolution declaring that the city had determined to take.land, valid it must appear from the journal itself, that it was adopted by a two-third vote and that such fact could not be proved by extrinsic evidence. In discussing that question, Talcott, J., says: “ But no parol or other evidence, other than the journal of the proceedings of the common council, is admissible, to establish the fact that the vote was a two-thirds vote. The statute in order to render this matter certain has provided, that in such case the vote shall be taken by yeas and nays, and that such vote shall be entered on the journal, and unless this thing is done the proceeding is void, and the only legal evidence that the resolution was passed by the requisite vote, is the record of the proceedings of the common council kept according to law.”

To the same effect is the decision of the court of appeals, 78 N. Y., 362, affirming above case.

Ror can it be held that this requirement of the statute is immaterial. It was evidently enacted as an amendment to the original charter, to cure some supposed defect in that charter; but whatever the object, it is sufficient that the law requires the name of the mover of these resolutions to be entered upon the journal and that the vote taken upon them shall be by yeas and nays, and that the vote of each member shall be recorded in the journal kept by the clerk, which, in this case, seems to have been omitted.

In Merritt v. Village of Port Chester, 71 N. Y. 309, which was a proceeding to charge the property of an individual with the expense of a local improvement, Allen, J. says: “ It is a statutory proceeding effecting the property of the citizen, and by which it may be taken from him, and therefore within well settled rules of law, the statute must be strictly pursued, and any departure in substance from the formula prescribed by law, vitiates the proceedings.” It would seem to follow, therefore, that the board of trustees, by failing to comply with the provisions of the statute above quoted, did not acquire jurisdiction, and that their resolutions conferred no authority upon the special term to make the order appealed from. Nor do I see by what statutory right or authority these proceedings were instituted, so long as other proceedings of a similar character were pending for the condemnation of land proposed to be taken for the extension of this street.

No direct action seems to have been taken for the discontinuance of the former proceedings, and the former commissioners seem to have met and qualified and fixed a time for a hearing, but had made no report. It is true that the statute (§ 48 of chap. 303, Laws of 1881) requires that the determination and assessment of the commissioners shall be returned to the trustees within sixty days, and while an omission on their part to comply with that provision of the statute, might in a proper motion have subjected them to removal, I do not think an order of the court by which they were appointed was ipso facto vitiated or annulled by that delay.

The right to discontinue proceedings for the condemnation of property under the law of eminent domain seems to rest in the sound discretion of the court, when applied to for that purpose. Matter of Waverly Water Works Co., 85 N. Y. 478; Matter of Commissioners of Washington Park,. 56 N. Y. 144; Carleton v. Darcy, 75 N. Y. 375; People ex rel. Gas Light Co. v. Common Council, 78 N. Y. 56.

We are inclined, therefore, to the opinion that the objection made by the appellant upon the record, that there was another proceeding pending for the same matter, was well taken and that the order in the matter should not, for that reason, be sustained.

The view we have taken of the case renders it unnecessary for us to examine the constitutional question raised by the appellant

The order of special term reversed with ten dollars ($10.00) costs and printing disbursements.

Herrick, J. concurs in result; Putnam, J. not acting.


text:
    John S. Cronin, App’lt, v. Johanna C. Crooks, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed March 1, 1894.)

      1. Attachment—Warrant.
    The provision of section 641 of the Code that the warrant must briefly recite the grounds of the attachment, is mandatory.
    2. Same.
    The recital of the grounds, mentioned in last clause of subd. 2, section 636 of the Code, in the alternative is not a compliance with the requirements of section 641 of the Code. <

    Appeal from an order vacating a warrant of attachment, and directing the delivery of the attached property, by the sheriff who held the same under said warrant, to a person not a party of the action.

      Thomas F. Fagan, for app’lt; John P. Gurley, for resp’t.
   Mayham, P. J.

In this case a judge of this court at chambers granted a warrant of attachment, on an exparte application of the plaintiff, and subsequently on a motion made by the defendant on notice, but upon the affidavit used on the motion for the attachment, and the warrant of attachment issued by him, the same justice vacated such attachment, and the levy made thereunder by the sheriff, and by the order vacating such warrant and levy, directed the sheriff to deliver the attached property to a person therein named.

A summons in this action was issued and served on the defendant with the attachment. The affidavit upon which the warrant of attachment was issued alleges indebtedness from the defendant to the plaintiff. That she was the owner of a store of dry goods in Troy, N. Y., and that she, without any actual consideration, executed and delivered to -her son á chattel mortgage for $1,900, and on the execution thereof surrendered the nominal possession of the goods and store to the mortgagee. The affidavit also alleges certain conversations and admissions of the defendant which it is claimed tend to prove that this mortgage was fraudulent, but did not, we think, establish that fact. The affidavit concludes with the following statement:

“ That as this plaintiff verily believes, the said person being a natural person, and a resident of the state, by the execution and delivery of said chattel mortgage by her to her said son, James Walsh, on the entire stock of goods in her said store, which said stock of goods were at the time fairly worth as plaintiff believes about the sum of $6,000, and by putting said Walsh in possession of said stock of goods for her benefit, as aforesaid, has assigned and disposed of, and is about to assign and dispose of, her property with intent to defraud her creditor, and to hinder, delay and defraud this plaintiff in the collection of his claim and demand against her.

On this affidavit, and upon the execution of a proper undertaking by the plaintiff, the learned judge issued his warrant of attachment in the following form:

SUPEEME COUET—County of Eensselaer.
The People of the State of New York:—To the Sheriff of the County of Rensselaer, Greeting:

Whereas, An application has been made to me for a warrant of attachment against the property of Johanna C. Crooks, defendant, in an action in the supreme court of Eensselaer county, wherein John S. Cronin is plaintiff and Johanna C. Crooks is defendant.

And Whereas, It appears by the affidavit of John S. Cronin, which is presented to me on such application, that a cause of action, upon contract, for the recovery of money exists against said defendant in favor of such plaintiff, and that the sum of one thousand one hundred and thirteen dollars is due from said defendant to the said plaintiff, upon the ground that a cause of action exists against said defendant in favor of the plaintiff for the breach of a contract for goods, wares, and merchandise, sold and delivered, and moneys paid to defendant’s use by the plaintiff at defandant’s request, which constitutes the plaintiff’s demand against the defendant in said action, and that the said defendant is a natural person and a resident of the state, and has assigned and disposed of, or is about to assign or dispose of, her property with intent to defraud her creditors, and that the plaintiff is entitled to said attachment according to the provisions of the Code of Civil Procedure, and that he having given the undertaking required by the provisions of the said code, now, you are hereby commanded and required to attach and safely keep so much of the property within your county, which the defendant has, or which she may have at any time before final judgment in this action, as will satisfy the plaintiff’s demand above stated, together with costs and expenses, as security for the satisfaction of said judgment as said plaintiff may recover in said action ; and when this warrant shall be fully executed or discharged you are required to return the same, with your proceedings therein, to this court.

In witness whereof, I have hereunto set my hand this 31st day of October, 1893.”

The controversy in this case seems to arise on the sufficiency of the statement in the warrant, of the grounds af the attachment, and the sufficiency of the affidavit used on the application for the warrant, does not seem to be in question on this appeal, if the recital in the warrant is defective and doses not state a valid ground for the attached.

By § 641 of the Code of Civil Procedure it is provided as follows—“The warrant must be subscribed by the judge and the plaintiff’s attorney and must briefly recite the ground of the attachment.” This provision is mandatory, and unless we can find on the face of the warrant a statement of the ground upon which it was issued, we cannot hold that it is has been complied with.

The charge in this warrant is “that the said defendant is a natual person and resident of the state, and has assigned and disposed of, or is about to assign or dispose of her property with intend to defraud her creditors.”

Subdivision two of § 636 of the Code of Civil Procedure, specified the various grounds upon which an attachment may issue-, either of which when appearing is sufficient to warrant its issuance j but without the existance of one or more, of such grounds it cannot issue.

If therefore it appeared on the face of this warrant and was stated in it that the defendant had assigned or, disposed of her property with intent to defraud her creditors; it would have been a sufficient recital of the grounds of the attachment to meet the reguirements of § 641 of the Code. Or if it had recited that she was about to assign, secrete or dispose of her property with intent to defraud her creditors, such recital would have been sufficient. Or if the recital had united both these grounds by a copulative conjunction, that would have been a compliance with the provisions of that section ; because that would have been a recital of one or more of the grounds upon which an attachment may issue.

But by disjunctively uniting two grounds, either of which when standing along, would be sufficient, or both of which when coupled, would be good ground, that which would be a positive assertion when standing alone, or copulatively connected ; becomes an equivocal, or alternative assertion, leaving the ground in doubt and therefore, fails to be a recital of the “grounds of the attachment” such as is required by subdivision 2 of § 6S6 of the Code of Civil Procedure. This question seems to have been settled in several well considered cases on authority.

In Dintruff v. Tuthill, 62 Hun, 591; 43 St. Rep., 704, it was expressly held that statements in the alternative were not a compliance with § 641 of the Code of Civil Procedure which required that the warrant “must briefly recite the ground of the attachment.” To the same effect were Arnot v. Wight, 55 Hun, 561; 29 St. Rep., 425 ; Collins v. Beebe, 27 St. Rep., 4; First National Bank v. Bushwick Chemical Works, 25 St. Rep., 830; Rothchilds v. Mooney, 36 St. Rep., 565. It is true that in some of these cases it was held that the use of the disjunctive “ or ” instead of the copulative “and” in an affidavit for an attachment was a mere irregularity, for which the warrant could not be vacated if the affidavit on its face showed sufficient ground for the issuance of an attachment.

But I have found no case holding such a defect in the warrant could be disregarded.

Other questions are raised by the appellant on this appeal, but in the view we have taken they need not be considered.

We are, therefore, of the opinion, that the learned judge at special term was right in setting aside the warrant of attachment in this case, as no ground was stated therein for the granting of the same, for the reason that the statement in the alternative neither stated one fact nor the other, the order should, therefore be affirmed.

Order affirmed, with ten dollars costs and printing disbursments.

Putnam, J., concurs; Herrick, J., not acting.