author: Ingraham, J. Van Brunt, P. J. O’Brien, J.

text:
    Tillie Feldman et al., App’lts, v. The Grand Lodge of the Order of United Workmen, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    1. Interpleader—Notice.
    In an action upon a 'certificate of life insurance, it appearing that the wife of the deceased claimed the fund and also claimed that in a certain contingency her children would be entitled to a portion thereof, an order of interpleader was granted, making said widow and the children, some of whom were infants, parties in place of defendant. Notice had been served on the widow, but not on the infants. Held, error; that in the absence of notice to them, the infants could not be made parties. (Ingraham, J., dissents.)
    2. Same—Deposit.
    The complaint demanded judgment for the amount of the certificate with interest, while the order of interpleader only required the deposit of the principal sum. Held, error.
    Appeal from order interpleading Babette A. Dobler and others, claimants of the fund, and discharging this defendant on payment into court of the amount claimed.

      J. G. Flammer, for app’lts; L. Andrus, for resp’t.
   Ingraham, J.

(dissenting.)—By the certificate issued to Anton Dobler the sum of $2,000 was payable upon his death to Babette A. Dobler, his wife. Subsequently Anton Dobler revoked the direction under which this certificate was issued and directed the Eayment of the beneficiary fund to be made to Charles Dobler, is son. Subsequently Anton Dobler revoked the last direction and directed the payment of the fund to be made to Frank Joseph Anton Dobler and Tillie Dobler, his son and wife, share and share alike. It also appeared that Tillie Dobler was not the lawfui wife of Anton Dobler, and that Babette A. Dobler as the wife of Anton Dobler claims the fund and has demanded payment thereof. There is no intimation that there is any collusion between the defendant and the claimants of this fund, and we think that a proper case is made out for an interpleader and that the claimants be substituted as defendants in this action upon payment into court of the amount claimed. The complaint, however, demands judgment for the sum of $2,000, with interest thereon from December 28, 1891, and the order provides that tho defendant pay to the chamberlain of the city of New York to the credit of this action the sum of $2,000 within ten days from the entry of the order. Before the defendant can be discharged from liability it must pay into court the amount claimed by the plaintiff and the order must therefore be modified so that the defendant pay into court, in addition to the sum of $2,000, interest thereon from the 28th of December, 1891, to the date of payment.

The objection is also made that as some of the alleged claimants are infants and were not represented by guardian, and no notice of the application was shown to have been served upon them, the order would not be binding upon them. But it does not appear that any of the infants have made any claim to this fund.

All that appears is that the widow of Anton Dobler has made some claim that in a certain contingency her children would be entitled to a portion of the fund.

Notice was given to Babette A. Dobler, the person who claimed the fund, and she having appeared on the motion and consenting to the order, the court had power to substitute her as the defendant in the action upon the payment into court of the amount claimed in the complaint, and on such a motion the court also had power to join as a party defendant any person who has or claims an interest in the controversy adverse to the plaintiff or who is a necessary party defendant for the complete determination or settlement of the question involved therein. Code, § 452.

The plaintiff cannot be injured by the failure of the defendant to give notice to the infants and having a guardian ad litem appointed for them, as in case the defendants fail to answer the amended complaint they will be entitled to the fund.

I think, therefore, that the order appealed from should be modified by substituting for the sum to be paid into court die sum of $2,000, and interest thereon from December 28, 1891, to the date of the payment, and that upon such payment being made the summons and complaint in this action be amended by inserting the individuals substituted as defendants in place o'f the present defendant, and that the plaintiff be allowed to make and serve án amended summons and complaint accordingly, and as thus modified, the order should be affirmed, without costs to either party.

Van Brunt, P. J.

I dissent. I am of the opinion that parties should not be brought in without notice to them.

O’Brien, J.

This action was commenced to recover the sum of two thousand dollars under a beneficiary certificate, issued by the defendant, on the life of one Anton Dobler.

The plaintiffs' right to recover is based upon the fact that they are the ones designated as the beneficiaries in the policy. The defendant, while admitting its liability, seeks to have substituted as defendants in its place and stead, -by an order of interpleader, the wife and minor children of Dobler. Upon the defendant’s own affidavits as to the extent of the claim advanced adversely to plaintiffs, it is extremely doubtful, to say the least, if any such state of facts is presented showing a right to an order of inter-pleader. The rule is now settled that there must be some reasonable foundation for a claim asserted, to entitle a defendant, while admitting its liability, to have such claimants substituted by order of interpleader. In other words, the question upon a motion of this character is as to whether or not there is a reasonable doubt as to the safety of the stakeholder in paying over the money. As stated by Mr. Justice Van Brunt in Nassau Bank v. Yandes, 44 Hun, 55; 8 St. Rep., 415, such reasonable doubt must be supported by proof raising a question upon which the court may pass judicially, and the claim must have some foundation in law.

Assuming, however, that it were in other respects a proper ease for an order of interpleader, we think upon other grounds, apparent upon the record, the order should not be granted.

Section 820 of the Code of Civil Procedure provides in terms that a defendant may apply to the court, upon notice to the plaintiff and to the person making the claim, for an order of substitution or interpleader.

Here the defendant’s affidavits and notice of motion show that the application is to the court for an order that Babette Anna Dobler, Charles Dobler, Anton Dobler, Albert Dobler, Tillie Maehlein, Herman Dobler, Elizabeth Dobler and William Dobler be interpleaded in the action. Of these persons four are infants, upon whom service of the notice of motion was not made. The order appealed from, however, without such notice having been given, required the substitution, in addition to Babette Anna Dobler, of all the children, including these infants. In view of the express provision in § 820 of the Code requiring notice, this could not be done. This provision is most reasonable and should be observed, for otherwise persons without notice might be injected into a law suit without desiring it, and against the protest of the plaintiff.

Another omission in the order, as shown by Mr. Justice Ingraham', was the failure to provide for payment into court, in addition to the principal, of the interest on that sum. The order appealed from requires that the entire principal should be deposited into court, although in respect to the claim of one of the plaintiffs, Frank Joseph Anton Dobler, who claims one-half, no adverse claim is suggested, and in the absence thereof it would seemingly have been the proper thing to have directed the payment of one half of the -amount to him, though the court might have been of opinion that as to the balance it should have been deposited.

For these reasons we are of opinion that 'the order appealed from should be reversed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: O’Brien, J. Van Brunt, P. J. Andrews, J.

license: Public Domain

text:
    Victor S. Flechter, Resp’t, v. Gilbert E. Jones, Treas’r of the New York Times, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    Pleading—Demurrer.
    A defense which contains a general denial is not demurrable, no matter how often such denial is repeated in the pleading.
    (O’Brien, J., dissents.)
    Appeal from interlocutory judgment sustaining demurrer to second defense in amended answer.

      B. F. Einstein, for app’lt; Benno Loewy, for resp’t.
   O’Brien, J.

(dissenting.)—This action is brought to recover damages for the publication of a libel which is set out at length in the complaint. The answer contains, first, a general denial; second, a further and separate defense is set up, prefaced by the statement that the defendant repeats and makes part of this defense the denial contained in the first defense, and avers. There then follow in this defense various allegations, evidently intended as a justification, because not stated as a partial defense. To this plaintiff demurred, on the ground that the same was insufficient in law upon the face thereof and constitutes no defense.

In sustaining the demurrer the learned judge below correctly stated the rule to be applied in determining the sufficiency of a defense in an action of this character: “It is thoroughly settled that the justification must be as broad as the charge made, and of the very charge sought to be justified.” Leaving, therefore, out of consideration the first paragraph of this second defense, which contains a reiteration of the denials which form the first defense, the first question to be determined is as to whether or not the justification set forth in the second defense is as broad as the charge made.

The libel complained of charges, among other things, that one Bendix brought suit against Flechter for having obtained money under false pretenses; that morally Bendix won the suit, for Flechter at no time attempted to prove that the instrument was anything more than a base counterfeit. The justification alleges the sale of a violin by plaintiff to Bendix under fraudulent statements, but says nothing about the suit, or that Flechter did not attempt to prove that the instrument was anything more than a base counterfeit. So in respect to the libel complained of, that a suit for libel was brought by plaintiff against one Prof. Franko, a musical director, who called him a liar and a thief, the answer seeks to justify this charge by alleging the prosecution of Franko for the writing of a letter which, it is stated, might sustain the charge that plaintiff is a liar but not that he is a thief. So in respect to the charge that certain witnesses testified that they would not believe the plaintiff under oath, it is not claimed that one of them named Banner ever so testified. Another instance of the failure to make the justification as broad as the charge is to be found in respect to that part of the article which charges the plaintiff with smuggling and with perjury.

It is unnecessary, however, for us to particularize, or point out in the voluminous pleadings, such as are here presented for the consideration of the court, the instances wherein there is a failure to make the justification as broad as the charge, which is required in order to have it constitute a complete defense, enough having been already stated to show that the test thus applied to the answer will demonstrate that the defense as a justification is not sufficient under the rule which requires that the matter alleged in support of the charge must be as broad as the charge, and must cover the precise charge.

The only question,' therefore, that is presented for our determination is, whether the general denial which is set forth in the first defense, and which precedes in the second defense the allegations referred to, and to which objection has been made by the demurrer, saves the pleading from the result that otherwise must follow of being obnoxious to demurrer. In other words, will the fact that the second defense contains a general denial, which is a reiteration of a first defense, where the other facts set up as a justification are insufficient, prevent a demurrer lying to the entire defense.

By the first defense, the defendant availed himself of his right to interpose a general denial. And it seems to us that to permit the defendant, in a pleading of several pages in length, which is otherwise open to demurrer, by merely repeating, in introducing a second defense, a general denial, to escape the effect of a bad pleading, would be to regard the form rather than the substantial requirements of the Code and of common sense in reference to pleadings. The effect would be to allow the denial which is contained in and used as a first defense, by repeating it, to be made available as a second defense, and thus have the same thing twice repeated as two defenses to a cause of action set forth in a complaint. Such a practice, if permitted, would justify the insertion, coupled with a general denial, of any statements, however insufficient, as either a partial defense or a justification, and thus take away a right given by the Code of testing the sufficiency of a pleading by demurrer.

We do not think, in a case of this character, and in reference to a pleading such as the answer here set forth, that the plaintiff should be compelled, either to wait until the trial of the action and-avail himself of his objection when evidence was offered to sustain the defense, or to resort to a motion to strike out the objectionable portions of the answer as irrelevant or redundant. The defendant had the right either to plead justification, or to set forth facts which would constitute a partial defense in mitigation of damages ; but in the latter case they should be accompanied by an allegation showing the purpose for which such facts were stated. Where, therefore, a defendant attempts to set forth as a defense in justification facts which might be available, if stated to be for that purpose, as a partial defense in mitigation, objection may be taken by demurrer.

We think, therefore, that the judgment was right, and should "be affirmed, with costs, and with leave to the defendant to withdraw and amend, or answer over.

Van Brunt, P. J.

I dissent. I do not think that with a general denial incorporated in a defense, no matter 'how often repeated, can such defense be demurrable. The evils pointed out by .Mr. Justice O’Brien from such a form of pleading can be remedied by a motion to strike out the excessive denial as redundant, but no point of pleading can be stricken out on demurrer.

Andrews, J.

I concur in the opinion of the presiding justice that a defense which contains a general denial is not demurrable.

The judgment should be reversed, with costs.


author: Van Brunt, P. J.

text:
    Michael H. Haffey, Resp’t, v. Sarah Lynch, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    Specific performance—When will not be ordered.
    Plaintiff purchased certain property at auction, the terms of sale requiring defendant to convey a clear title by warranty deed, accompanied by a policy of title insurance. After the sale a lis pendens in ejectment was filed, and plaintiff refused an offer to convey the title as it was, or a return of Ms deposit and expenses, and brought action lor specific performance, or if that could not be had, to recover the money paid, expenses and damages. At the close of the trial plaintiff stated that he would take a deed without the title insurance, and recovered judgment directing defendant to execute the deed. Held, error; that a purchaser should not be permitted to speculate upon defects in the title, and to decline the title, and when it subsequently appears to be advantageous to him to accept the same to be allowed to change his entire position, and that under the circumstances specific performance should not be decreed.
    Appeal from judgment directing specific performance of an agreement for the sale of certain real estate.

      H. H. Anderson, for appl’t; C. Strauss, for resp’t
   Van Brunt, P. J.

On the second day of February, 1889, the defendant sold at auction certain real estate, including the premises in question. _ The terms of sale required the defendant to convey a clear title by warranty deed, accompanied by a policy of title insurance of the Lawyers’ Title Insurance Company. The plaintiff bought in the two lots in controversy, and at that time paid ten per cent, of the purchase price. The balance of the purchase price was to be paid on the delivery of the deed, with the option to the purchaser to pay sixty per cent, thereof by a purchase money mortgage.

At the time of the auction sale the defendant was m possession of the premises in question, and believed herself to be the owner in fee simple, without incumbrances except those set forth in the terms of sale. After the sale, and before the day fixed for the delivery of the deed, an action in ejectment was begun against the defendant, and a notice of Us pendens filed in that action. At the time of the sale the defendant had knowledge of the claim sought to be enforced by this action in ejectment. Shortly thereafter the defendant stated the facts with respect to the beginning of the actian of ejectment, and offered to convey to the plaintiff the title to the premises in question as it then was, or to return to him the instalment of the purchase money paid by him, with interest, and all lawful expenses incurred, and tendered to the plaintiff the amount thereof in United States currency, whereupon the plaintiff refused to accept the title, as it was not clear, or to accept said repayment. The plaintiff thereupon commenced this action, alleging that the defendant's title to the premises was encumbered by said ejectment suit and by said adverse claim, and that by reason thereof the title of the defendant to the premises was encumbered, not marketable, and doubtful. The plaintiff further alleges that the defendant could have obtained the cancellation of the said notice of pendency of action and conveyed a title to plaintiff according to the terms of the contract had she been so disposed, and demands judgment for a specific performance of the contract of sale, or if the defendant could not make a good marketable title to the premises, that she pay to the plaintiff the amount of his deposit, with interest, auctioneer’s and exchange fees, the sum of $500, his expenses incurred under the said agreement, and $5,000 damages.

At the end of the trial at special term the plaintiff for the first time stated that he would take a deed from the defendant without the title insurance required by the terms of sale, and judgment was entered directing the defendant to execute a warrantee deed of the property to the plaintiff upon his paying her the balance of the consideration' money named in the contract without interest. From this judgment the defendant now appeals to this court.

Apart from the question as to whether the plaintiff has shown a tender of the purchase money and a demand for a deed, it seems to us under the circumstances to be inequitable that the defendant should be called upon to specifically perform the contract in question. Fo offer was made by the plaintiff to accept a deed simply until after the trial of this action was ended so far as the taking of testimony was concerned. Up to that time the plaintiff had insisted upon his pound of flesh, and that was the nature of the bill of complaint which was filed by him; and it seems to us that it was too late for the plaintiff to change his mind upon the trial and waive conditions of the contract which he had repeatedly refused.

A purchaser should not be permitted to speculate upon defects in the title and to decline the title and, when it subsequently appears to be advantageous to him to accept the same, to be allowed to change his entire position. And furthermore, it may be doubtful whether the plaintiff should be permitted under any circumstances to waive the giving of the policy of insurance. That was a condition for the benefit of the defendant as well as the plaintiff, and the defendant should not be compelled to give a warranty for a title which she cannot insure.

We think that now to compel the defendant to specifically perform the contract would be an undue hardship. She acted in good faith ; the sale was made by her, believing herself to be the undisputed owner of the property; the cloud on the title was not created by her and no claim, was made or intimated until after the sale. In the face of the adverse claim the defendant should not be required to give a warranty, having acted in perfect good faith. Specific performance being discretionary with the court, such performance should not be decreed where it will result in hardship and injustice.

The party claiming under the contract should be remitted to his action for damages, which will entirely indemnify him for any loss which he may have sustained.

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

O’Brien and Andrews, JJ., concur.


author: Per Curiam.

text:
    In the Matter of the Judicial Settlement of the Account of Henry A. V. Post.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    Appeal—Reference in surrogate’s court.
    An order of a surrogate setting aside the report of a referee and referring the matter back to the referee, is not appealable.
    Appeal from an order of the surrogate referring this matter back to a referee who had previously been appointed to examine the administrator’s account and the objections thereto, and to determine all questions arising upon the settlement of said account which the surrogate has power to determine.

      J. C. O'Connor, Jr., for app’lt; Frederic W. Hinrichs, for resp’t.
   Per Curiam.

This appeal is premature. The surrogate had power under § 2546 of the Code of Civil Procedure to make the original order of reference, and his action in appointing a referee thereunder is not the subject of review. In re Pearsall, 21 St. Rep., 305. Still less is his present action the subject of review. The order appealed from required the referee to proceed with the accounting as originally directed and made no final disposition of the matter.

When the referee has reported under this direction, and his report has been confirmed or set aside, and a final order of the surrogate made thereon, there will be a proper subject of review; but not until then. The matter at present is simply utider investigation. Hone the less so because the surrogate "set aside a report under the original order of reference which, if confirmed, would have been final. If the surrogate, in setting aside this report, had made a final order, that would have been reviewable, but when he set it aside with directions to proceed anew under the principles laid down in his opinion, the whole matter was left in abeyance until the coming in of a further report and until a final order is made upon such further report.

The appeal should therefore be dismissed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien and Barrett, JJ.. concur.


text:
    Charles Myers, App’lt, v. The Mayor, etc., of New York, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    Municipal corporations—Suspension of inspector of grading—Compensation.
    Plaintiff, who was an inspector of regulating and grading in the department of public works, and paid by the month, was suspended by the commissioner, but notwithstanding this attended and tendered his services day by day. Reid, that he continued to be an employee of the department, and was entitled to the agreed compensation.

      (Gregory v. Mayor, 113 N. Y., 416; 22 St. Rep., 703, followed.)
    ■ Appeal from judgment dismissing the plaintiff’s complaint at circuit.

      W. W. Jenks, for app’lt; W. A. Sweetser, for resp’t.
   Per Curiam.

If the plaintiff had been discharged from his position as an inspector of regulating and grading in the department of public works, his case would have come within the principle of Higgins v. The Mayor, 42 St. Rep., 711; and in that event the complaint would have been properly dismissed, for the reason that no services were rendered during the period covered by his complaint. But he was not discharged. He was merely suspended, as appears from the notice served upon him by the commissioner of public works. His case thus comes within the principle of Gregory v. The Mayor, 113 N. Y., 416; 22 St. Rep., 703. See, also, Emmitt v. Mayor, 128 N. Y., 117; 38 St. Rep., 907. Indeed, the cases are entirely parallel, for the present plaintiff was paid by the month, and occupied the position of inspector of regulating and grading, while Gregory was paid in the same manner, and occupied the position of inspector of excise. The reasoning of the Gregory case is applicable to this, and we think calls for a reversal of this judgment. The plaintiff, notwithstanding the suspension, proceeded to the department of public works, and tendered his services day by day, as Gregory did in the case cited. He continued to be an employee of the department, a duly appointed inspector of regulating and grading, until such time as he ceased to occupy that position by his own resignation. He is, therefore, entitled to the agreed compensation for the period during which he continued to be a public servant pursuant to his original employment.

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

Van Brunt, P. J., O’Brien and Barrett, JJ., concur.


text:
    The Manhattan Life Insurance Co., App’lt, v. The Forty-second St. & Grand St. Ferry Railway Co., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    Corporations—Liability for acts of its president.
    One Allen, who was president of defendant, procured a loan from plaintiff upon his individual note, and gave as collateral security therefor an assignment of an alleged certificate of defendant’s stock, some of the signatures to which had been forged by said Allen. The loan not being repaid, this action was brought to recover the amount thereof from the company. Held, that Allen in procuring the loan was not acting in his official capacity, but was transacting his. own business, and hence the corporation was not liable for his representations.
    Appeal from, judgment entered after trial at circuit, the complaint having been dismissed.

      A. H. Holmes, for app’lt; F. H. Smith, for resp’t.
   Van Brunt, P. J.

In September, 1888, one Eben S. Allen, at that time the president of the defendant, procured a loan of $6,500 from the plaintiff upon his own promissory note for that amount, and gave to the plaintiff as collateral security for said note an alleged certificate for 100 shares of the defendant’s capital stock, with an assignment of said stock to the plaintiff with full power to transfer the same.

The note not having been paid, the plaintiff tendered the alleged certificate to the defendant, and demanded the transfer thereof to the plaintiff, which was refused, on the ground that the certificate was forged and spurious. The plaintiff thereupon brought this action to recover the amount of the loan. Upon the trial of the action it appeared that from March, 1883, to April, 1888, Allen had been secretary, treasurer and transfer agent of the defendant company, at which latter date he became president, and remained such president until August, 1889. One John Green was its president from 1867 to March or April, 1883, Charles Curtis from April, 1883, to April, 1888. Curtis was transfer agent while Green was president, with the exception of the year 1868. Charles P. Emmons became transfer agent in April, 1888, and remained such until August, 1889. One Jacobs was treasurer in April, 1888, and remained such until 1889. The authorized capital stock of the defendant was 730 shares, all of which except twenty shares had been issued prior to the 1st of January, 1870.

Sometime between 1876 and 1880, when Green, the then president, was going away, he signed ten or twelve certificates in blank to enable transfers of stock to be made during his absence, and gave them to Curtis, who retained them two weeks. Allen then took charge of them, and put them in a private drawer in the safe. At or about the time when he obtained the loan above mentioned, he filled out the body of the certificate in question, dating it February 10,1881, forged Curtis’ name as treasurer and his own name as transfer agent thereto, and took it to the office of the plaintiff and obtained the loan. Green died prior to February, 1887, and Curtis during the summer of 1888. Thus, at the time of the filling out of the certificate, both Green and Curtis were dead, and Emmons was the transfer agent

Upon these facts the court dismissed the complaint, and from the judgment thereupon entered this appeal is taken.

It is claimed upon the part of the plaintiff that the defendant is liable to the plaintiff for the acts of its president, because a corporation whose officer negotiates its stock regular upon its face is estopped from denying its validity, and is liable for the damages sustained by an innocent third party, a holder for value, who dealt with such officer in entire good faith. And we are cited to the case of the Bank of Batavia v. N. Y., L. E. & W. R. Co., 106 N. Y., 195-199; 8 St. Rep., 209, and cases there cited, as an authority for this proposition. In this case, it is held that it is a, well settled doctrine of the law of agency in this state that when the principal has clothed its agent with power to act upon the existence of some extrinsic facts necessarily and peculiarly within the knowledge of the agent, and of the existence of which the act of executing the power is itself the representation, a third person dealing with such agent in entire good faith, pursuant to the apparent power, may rely upon the representation, and the principal is estopped from denying its truth to his prejudice.

But the difficulty with the plaintiff’s case is that the facts do not bring it within the rule above mentioned, for the reason that at the time of the presentation of this certificate Allen was not actually or apparently acting as the officer or agent of the defendant He was transacting his own personal business; he was obtaining a loan for himself at the plaintiff’s office. The plaintiff knew that it was Allen’s individual transaction, because the loan was made upon Allen’s individual note, and whatever representations may be assumed to have been made by Allen by the presentation of the certificate, were Allen’s representations, and not those of the company.

Allen therefore was not. acting in his official capacity as the representative of the defendant at the time of the making of this loan; and the case consequently does not come within the principle holding corporations liable for the representations of their agents when acting for and on behalf of the corporation.'

In this respect the case differs materially from that of the Fifth Avenue Bank v. same defendant, heretofore decided by this court, 44 St. Rep., 379, where the defendant was held liable because inquiry was made of the proper officer at the offices of the company, and the statement was there made that the stock was,genuine. In that case the officer was acting on behalf of the company, and within the scope and limit of his authority, and thereby the defendant was liable because of the falsity of that representation.

The case of Shaw v. Port Philip, etc., G. M. Co., L. R., 13 Q. B. D., 103, does not apply to the case at bar, because the secretary in that case in issuing the stock in question was acting as an officer of the corporation, and apparently within the scope of the authority conferred upon him. The case is a direct authority in support of the decision of the Fifth Avenue Bank case, but has no application to the case at bar.

We are of opinion that the judgment should be affirmed, with costs.

O’Brien and Andrews, JJ., concur.


author: Barrett, J.

text:
    John Hopkins et al., Resp’ts, v. Anna Frey, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    Foreclosure—Failure of guardian ad litem to serve answer.
    A judgment of foreclosure is not invalidated by the failure of the guardian ad litem oí infant defendants to file the formal answer. Such failure is a mere irregularity, which the court may cure by permitting such answer to be filed nunc pro tuna at any time.
    Appeal from an interlocutory judgment overruling a demurrer interposed by Anna Frey to the plaintiff’s complaint.

      A. R. Dyett, for appl’t; I. Newton Williams, for resp’ts.
   Barrett, J.

The demurrer brings up the single question whether the complaint states facts sufficient to constitute a cause of action. Stripped of verbiage, the complaint sets forth that in the year 1875 the executors’ of one Landgrebe commenced an action in this court for the foreclosure of a second mortgage upon certain property in which the plaintiff, John Everett Hopkins, and his brother Frank Hopkins (since deceased) were interested. John Everett and Frank Hopkins were in fact the heirs-at-law of the mortgagor, Sarah E. Hopkins, who died m the year 1874. The present plaintiff, John Hopkins, was her husband. These heirs-at-law were minors when the mortgage was foreclosed, and the •court appointed a. guardian ad, litem fox them. The plaintiff there proceeded to judgment, and in October of the same year the property was sold by a referee to Mr. Christopher Fine. In November, 1875, Fine sold the property to the defendant Sanguinetti, who, in the year 1884, conveyed a part of it “ by way of gift or sale ” to the appellant Frey. It is alleged that the guardian ad litem for John Everett and Frank Hopkins did not appear, answer or demur in the foreclosure suit, and that he failed to perform the acts and duties required of him by the statutes and rules of court then in force. This is the only material fact which is alleged as against the foreclosure judgment. All else is either characterization or conclusion, e. g., that the court never acquired jurisdiction as to the minors, and that the judgment was void, etc. The statement that the referee never qualified or took an oath is immaterial, as no oath was called for after his appointment, nor was he required to give a bond or to qualify in any other formal manner. The court acquired jurisdiction by the service of the summons upon the infants, as provided by law, and after such service was completed by the appointment of a guardian ad litem. Such is the practice now, and such was the practice in 1875, under the old Code. Code of Procedure, § 134, subdv. 2; id. § 116, subdv. 2. The plaintiff in the foreclosure suit was bound to bring the infants within the jurisdiction of the court, to see to it that they were duly served with process, and that a guardian ad litem, was properly appointed. There, _ however, his responsibility ended. He was not bound to see to it that the guardian thus appointed did his full duty to the infants according to the rules off practice.

If the guardian failed in these particulars, he was liable to his ward, but the judgment of foreclosure was not invalidated by such negligence to which the plaintiff was not privy and which he could not control. There is no averment in the present complaint that the infants were not duly served with the summons as required by law, nor that they had any defense to the action, nor that the judgment of foreclosure could, even with entire diligence,, have been avoided. Consequently, it must be assumed that the infants were duly served and that they had no defense.

Thus we have simply the naked fact that the guardian failed to-interpose the only answer which he could have interposed, namely, the formal one which submits the rights of the infants to the court. It is upon this slight ground that the plaintiffs cow, after the lapse of sixteen years, seek a decree which will enable them « to question this foreclosure judgment The neglect of the guardian to interpose a formal answer, as required by the practice, was a mere irregularity which the court would have cured by permitting such an answer to be filed at any time nunc pro tune. Alt house v. Radde, 3 Bosw., 410; and see Croghan v. Livingston, 17 N. Y., 218, and Crouter v. Crouter, 44 St. Rep., 815.

The case made by the complaint is, however, weaker than if it were a direct attack upon the foreclosure judgment. It is further alleged that in May, 1883, and after John Everett and Frank Hopkins became of age, the defendant Sanguinetti secured from . them a quit-claim deed of this same property in consideration of a trifling sum of money, and it is this quit-claim, not the foreclosure judgment, which is here sought to be set aside. The plaintiffs charge that the quit-claim was obtained from them by fraud, in that Sanguinetti represented that they had no interest in the property; that their rights had been cut off by the foreclosure in 1875; that she, Sanguinetti, was about to sell the property ; that it was necessary to correct some clerical error in the foreclosure proceedings which the court would do without the signatures of John Everett and Frank Hopkins, but that this would take a little time and that she would pay $100 to avoid the delay and to secure the same end by their release. They agreed to this, took the money and signed the quit-claim. This is characterized as a fraud, and the representations are alleged to have been untrue. But the fact is quite the reverse. Every word Sanguinetti uttered was true, and if the plaintiffs had taken the trouble to look at the record they would have seen that what she said was quite accurate. Her facts were true even if she erred in her legal conclusions. The plaintiffs now say that they did not discover the falsity of her representations until 1891, but they do-not tell us why they failed to make this easy discovery (that is, easy, if the representations were untrue) for upwards of eight years. The record, which was the basis of the whole story, was in existence when Sanguinetti spoke, and it has been in existence ever since.

The record, so far as appears from any averment in this complaint, really disclosed the truth of Sanguinetti’s 'statement, but were it otherwise, the Hopkins Brothers were no longer minors when they were asked to sign the releases. They were then men of full age, and had the same opportunity as Sanguinetti to determine whether the judgment of foreclosure was valid or invalid. It is clear, therefore, that no fraud, as matter of fact, and as distinguished from adjectives and idle invective, is charged with regard to either the foreclosure proceedings or the release. None upon Sanguinetti's part. None upon her transferees’, who became transferees in reliance upon the recorded quit-claim. As to these transferees, not even notice of any alleged fraud in procuring the quit-claim is alleged. The complaint fails to state facts tending to constitute a cause of action, and it is wholly without merit.

The interlocutory judgment should, therefore, be reversed, with «costs, and an interlocutory judgment granted sustaining the demurrer, with costs, with leave to the plaintiffs to amend their «complaint within twenty days, if so advised, upon payment of the costs of the special and general terms.

Yak Brunt, P. J., and O’Brien, J., concur.


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    In the Matter of John Townshend et al.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    1. Cobpokations—Elections—Proxies.
    Where proxies to vote ata corporate election are regular inform, except that the day of the month is left blank because at the time of signing the precise date of the election had not been fixed, they are sufficient in form to entitle their holder to vote.

      % Same—New election.
    Where it appears that the refusal by the inspectors to accept such proxies and permit the holders to vote has changed the result of the election, a new election may properly be ordered pursuant to chap. 663, Laws 1890.
    3. Same—Res adjudicata.
    A denial of a former application for such an order is not res adjudicata, where the facts were not fully presented to the court on such application, and the parties are not the same as on the present application.
    Appeal from order setting aside an election of directors of the United States Cremation Company, Limited, and ordering a new election of directors of said company.

      C. T. Haviland, for app’lt; C. A. Hart, for resp’t.
   Per Curiam.

We think that the learned court at special term was entirely correct in holding that the proxies which were rejected by the inspectors of election were sufficient in form to entitle their holders to vote.

The only blank which appeared in the proxies was as to the day of the month. The month itself and the year were specified; also the hours between which the election was to take placa The election itself was also referred to as “ a new election of directors by the stockholders of the United States Cremation Company, Limited,” a phrase which was in precise accordance with the call for the election.

The intention of the stockholders who signed such proxies was, therefore, unmistakable. They referred to the particular election in question, and they clearly intended to confer upon the persons specified in such proxies the right to vote for them at such particular election. They could not at the time they signed the proxies have specified the day of the month, for the reason that the day of the month had not then been fixed by the board of directors. But the fact that such an election was to take place in the month of June was understood, and the proxies were drawn with direct reference to such forthcoming election.

We think that the persons to whom such proxies were delivered were even authorized, under the circumstances, to fill in the blank with regard to the day of the month, and that they might have done so at the moment when they tendered these proxies to the inspectors and claimed the right to vote thereon.

As it appears that the refusal to accept these proxies, and to permit the Holders thereof to vote thereon, changed the result of the election, we think that the special term was right in directing a new election to be held.

The only other important question presented by the appellant is, whether the court is powerless to grant this relief because of the denial of a previous application for similar relief. The appellant claims that by reason of such denial the question with regard to these proxies was adjudicated adversely to the view taken by the special term on the present application.

It appears, however, that the previous application was made by but two stockholders, named Dreher and Zimmerman, who simply alleged in their petition that proxies for 200 shares of the stock of the (company were rejected by the inspectors at such election “because the date of meeting was omitted therefrom.” This petition was supported by the affidavit of one Berendsohn, who stated that “ proxies for 200 shares were not counted for the reason that said proxies did not contain the date of said meeting.” These were the only facts with regard to the proxies in question before the court on such previous application; no proof upon the-part of the defendants upon that point. Upon such facts the court held, and properly, that such proxies were invalid for the reason that they did not appear to have reference to any particular election.

For aught that appeared in such papers, neither the day of the month, nor the year, nor the character of the election, was specified. The ruling of the court was therefore in the nature of a dismissal of the complaint in an ordinary action for lack of proof. The ruling in substance was that on the facts presented by applicant, 'the election could not be set aside. On the present application, however, the form of the proxies was before the court, and the intent of the stockholders who signed such proxies was made manifest by proper and competent proof.

It also appeared on the present application beyond question that the rejection of the vote under these proxies changed the result.

But it is quite clear, apart from all other questions, that the order made on the previous application was not res adjudicóla as to one at least of the present applicants, Albert Blumenthal, for the reason that he was not served with the papers, nor did he appear. He is one of the stockholders of. the company, and as such He has a right to avail himself of the provision of tfie statute which confers upon the court jurisdiction to order a new election, and he cannot be deprived of that right by reason of any adjudication made in a proceeding to which he was not a party.

It will not be necessary therefore to consider the question as to how far the granting or denial of a summary application in a .special proceeding like the present is res adjudicata within the rules which govern in actions. And we rest our decision upon the precise facts of this application, namely, that the parties were not all the same in both applications, -and that the denial of the motion on the first application amounted to nothing more than the dismissal of the complaint in an ordinary civil action for lack ■of proof with regard to some fact which, if properly proved, would have entitled the plaintiff to relief.

It follows that as the proxies should have been received, and as the question is not res adjudicata, the order should be affirmed, with costs.

Van Brunt, P. J., O’Brien and Barrett, JJ., concur.


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    Henry L. Gwalter, Resp’t, v. The New York Seal Plush & Tapestry Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    Attachment—Motion to vacate—Fraud
    On motion to vacate an attachment granted in an action for goods sold and delivered upon affidavits tending to show that the goods were sold on a credit which had not expired, the answering affidavits charged and tended to prove fraud in the original sale. Held, that the court properly refused to vacate the attachment and remitted the questions of fact to the trial of the action.
    Appeal from an order denying motion to vacate attachment

      D. D. Sherman, for app’lt; J. L. Bishop, for resp’t.
   Per Curiam.

The attachment was properly granted upon an affidavit disclosing a sufficient cause of action for goods sold and delivered, and showing that the defendant is a foreign corporation. The motion to vacate was based upon affidavits tending to show that the goods were sold upon a credit which had not expired at the time of the commencement of the action. The plaintiff met these affidavits by affidavits charging and tending to prove fraud in the original sale.

It seems to us quite clear that the question of fact thus presented was properly remitted. to the trial of the action; and that the court correctly decided that the attachment should not be disturbed.

The defendant is in error in supposing that it was necéssary for the plaintiff to set forth in his affidavit, or even in his complaint, the credit in question, and to allege, as a basis for rescission, fraud in the original contract of sale.

It is well settled in this state that the plaintiff, under such circumstances, may rescind the credit and sue at once for the value of the goods, leaving the question of fraud to be determined upon the trial, should the defendant set up the credit in his answer. If the credit be thus set up,, the plaintiff upon the trial may properly rest upon proof of the sale and delivery of the goods. The defendant may then prove an unexpired credit; and, at that stage, the plaintiff by way of rebuttal may prove the fraud. The affidavits read in opposition to the present motion make out a case of fraud amply sufficient to warrant the presentation of that ques tian to a jury. It is quite clear that what may thus properly be presented at the trial and there submitted for the determination of a jury should not now be ignored, nor should the verdict of the jury thereon be forestalled upon a mere preliminary motion of this character,

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

Van Brunt, P. J., O'Brien and Barrett, JJ., concur,


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    In the Matter of The Metropolitan Elevated Railway Co. to Acquire Title to Certain Real Estate. In re Jones et al.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    Costs—Disbursements—Stenographer’s fees.
    The expense of stenographer’s notes in another action which have been read pursuant to stipulation, cannot be taxed as a disbursement where such notes were procured under an order in the other action, for use in such action, which provided for the payment of such expense.
    Appeal from an order reversing the clerk’s decision disallowing an item of disbursement for the stenographer’s notes of testimony taken upon the trial of an action in the superior court between the same parties and directing the allowance of such disbursement.'

      Julien T. Davies and R. L. Maynard, for app’lts; Roger Foster for resp’ts.
   Per Curiam.

The affidavits conclusively show that the stenographer’s notes were not procured for use in this proceeding, but really for use in the superior court action. They were procured under an order of that court which provided that each party pay one-half of the stenographer’s fees, and that “ the successful party may tax the sum to be paid as a part of the costs of the action.” Some seven weeks after the procurement of these minutes in the manner indicated, a stipulation was entered into in this proceeding that either party might read therefrom, before the commissioners, any of the testimony thus taken in the superior court action. There was, however, no stipulation or further order with regard to the taxation in this proceeding of the disbursement so made. As this disbursement had no relation to the present proceeding, and as its taxation was provided for in the superior court action, it clearly should not be here allowed, and the order appealed from should therefore be reversed, with costs and disbursements, and the clerk’s taxation affirmed.

Van Brunt, P. J., O’Brien and Barrett, JJ., concur.


text:
    Henry W. Dayton, Resp’t, v. The McElwee Manufacturing Co., App’lt (two cases).

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    Attachment—Creditors moving to vacate must show regularity op THEIR OWN PROCEEDING.
    A junior attaching creditor who seeks to destroy the lien of a prior attachment because of jurisdictional defects must. show that every step in his own procedure was sufficient to confer jurisdiction, and should, therefore, present the papers upon which his own attachment was granted, and prove that such attachment was actually levied on the property covered by the prior attachment.
    Appeal from an order denying motion to vacate warrant of .attachment.

      T. W. Foster, for app’lt; Kneeland, Stewart & Epstein, for resp’t.
   Per Curiam.

We agree with the special term that there is no substantial distinction between these cases and that of Tim v. Smith, 3 Civ. Pro., 347. In the latter case, a copy of the warrant of attachment was not appended to the papers', but the attorney made an affidavit with regard to its existence. Here the attorney has made a similar affidavit, and has, in addition, furnished a copy of the warrant But the court held, in the case cited, that the junior attaching creditor was bound, when he moved to vacate •the prior attachment, to show that his warrant was granted upon papers sufficient to confer jurisdiction; in other words, that both parties should, on the motion to vacate, occupy the same position with regard to the papers upon which their warrants were respectively granted, and that the attacking party should disclose his own position as well as that of his adversary. This case of Tim v. Smith was affirmed by the court of appeals, 93 N. Y., 87, and it has since been repeatedly followed.

We think that the present motions come within the principle there enunciated. A junior attaching creditor, who seeks to destroy the lien of a prior attachment, because of jurisdictional defects, should come into court upon papers showing that every step in his own procedure was sufficient to confer jurisdiction. He should therefore present the papers upon which his attachment was granted, and prove that such attachment was actually levied upon the property covered by the prior attachment. It is only when these facts are made to appear that he shows himself to be “ a person who has acquired a lien upon or interest in the defendant’s property,” within the meaning of § 682 of the Code of Civil Procedure. What is there meant is, of course, a valid lien; i. e., a lien resulting from the existence of all the necessary jurisdictional facts. Upon both principle and authority, it is reasonable to require the moving party to present such jurisdictional facts as a pre-requisite to his attack upon the prior attachment. The plaintiff in the prior attachment should not be called upon to look up the papers upon which the junior attachment was granted, and to present them in opposition to the motion to vacate, lor the reason that he makes no affirmative attack upon such junior attachment. He merely defends himself against it, and he should therefore have the opportunity of showing its inherent weakness upon the face of his adversary’s motion papers.

The order should be affirmed, with costs.

Van Brunt, P. J., O’Brien and Barrett, JJ., concur.


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    The Attleboro National Bank, Resp’t, v. Jacob Wendell et al., Appl’ts.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    Attorneys—Liability for costs.
    The attorney for plaintiff brought this action in good faith, being imposed upon by persons professing to represent the bank, but the bank in fact had long before ceased-to exist. Defendants having recovered judgment for costs, Held, that the attorney should be required to pay such costs.
    Appeal from order denying motion requiring plaintiff’s attorney to disclose to the attorney for the defendant Wendell what bank, if any, is the real plaintiff in this action, and where it is located and does business, or if there be no such bank, why said attorney should not himself satisfy the judgment for costs rendered in this action.

      G. A. Strong, for app’lts; J. J. Adams, for resp’t.
   Per Curiam.

It is alleged in the moving affidavit upon information and belief, and not denied by the opposing affidavit, that this action was brought in the name of a bank which went, out of existence a number of years before the suit was instituted.

Under these circumstances there is no plaintiff in existence from whom the defendants can collect the costs awarded to them; nor was there any such plaintiff in existence when the action was brought. It follows that the attorney who inadvertently brought the suit, and thus subjected the defendants to the litigation which has resulted in this judgment for costs against the plaintiff, should be required to pay such costs.

There is here no question but that the attorney acted in perfect good faith in bringing the suit; and his liability rests upon no fact which affects in the slightest degree his professional position. He was himself practically imposed upon by others who professed to represent this non-existent bank. Believing in their authority and in the existence of the client, he brought the suit which has resulted in this bill of costs. His liability rests upon the fact that as an attorney he has brought the defendants into court, without authority from any existing principal or client, and has subjected them to the litigation which has resulted in the manner indicated. As the defendants have succeeded in that litigation, it will not do to say that the costs awarded against the nonexistent plaintiff shall forever remain unpaid and unsatisfied. If the attorney had required from an existing principal actual authority to bring the suit, he would not have been in the position in which he now stands. Having proceeded without such authority, the reasonable conclusion is that he must satisfy the judgment which the defendants have secured against his assumed principal.

The order should, therefore, be reversed and an order made requiring payment of the judgment for costs, together with the disbursements of this appeal.

Van Brunt, P. J., O’Brien and Barrett, JJ., concur.


author: Barnard, P. J.

text:
    The Long Island Railroad Co., App’lt, v. Joseph Silverstone et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    Injunction—Extension of street over railroad.
    An injunction will not lie to restrain the officials of a city from laying out an extension of a street across railroad tracks which are within the city limits after due notice as required by chap. 63, Laws 1853.
    Appeal from order denying motion for an injunction restraining defendants from removing fences from plaintiffs’ freight yard in Long Island City. ■

      William J. Kelly, for app’lt; Frederick B. House, for resp’t Silverstone; Walter J. Foster, for resp’ts Long Island City and Harrigan.
   Barnard, P. J.

The plaintiff, the Long Island Railroad, is the owner of the fee of the lands within Van Pelt street, Harold avenue and Bragard street These streets have not been actually opened across the track of the Long Island Railroad, but the history of the proceedings up to the filing of the complaint, however, is as follows: The city was incorporated by chap. 719, Laws of 1870, and amended by chap. 461, Laws of 1871, and chap. 765, Laws of 1871. By this last act the legislature appointed a commission to lay out streets in Long Island City, and file maps showing their acts in respect thereto. The commissioners did their duty under the law, and the three streets above named were laid out on the maps. The owners of the land within the streets executed deeds to the city in July, 1891, which was provided for by the city charter, chap. 461, Laws of 1871, title 3, chap. 2, § 19.

In August, 1891, the common council directed the streets opened for public use across the land of the railroad company, plaintiff, and notice was given by the city to the railroad company to cause the street to be taken across the tracks. The street is open and worked up to the railroad limits. The city was authorized to open the streets by its charter. The owners of the land consented, and deeded the land to the city.

By chap. 62, Laws of 1853, any city, village or town may lay out, without compensation, a highway across a railroad track upon a notice of thirty days to the railroad company of the laying out of the road. The papers do not show that the land was acquired or is used, except as a track which the authorities may cross without compensation. Albany Northern R. R. v. Brownell, 24 N. Y., 345.

The defendants are all acting under the Long Island City street opening.

The order denying an injunction should, therefore, be affirmed, with costs and disbursements.

Dykman and Pratt, JJ., concur.


author: Pratt, J.

text:
    Jasper W. Gilbert, Resp’t, v. The Board of Supervisors of the County of Kings, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    Justice of supreme court—Abriduement of term—Compensation.
    The term " compensation ” as used in art. 6, § 13, of the constitution includes the allowance made by the supervisors of Kings county to justices of the supreme court residing in that county under chap. 821, Laws 1866, and a justice residing in such county whose term has been abridged by reason of age is entitled to such allowance for the remainder of the term for which he was elected.
    Appeal from judgment in favor of plaintiff for $30,000.
    Action to recover the compensation of $6,000 per year allowed by the supervisors of Kings county by resolution passed March 6, 1871, pursuant to § 9 of chap. 821, Laws 1866, to justices of the supreme court resident in Kings county.
    The following is the opinion at special term:
    Cullen, J.—The The official term of the plaintiff as justice of the supreme court, under his second election to that office, expired under the constitutional limitation upon nine years service by reason of his then having reached the age of 70 years. By § 13, article 6, of the constitution, the compensation of justices and judges who have served ten years, and whose terms are abridged by the limitation as to age, is to be continued during the terms for which they may have been elected, i. e., fourteen years. That the plaintiff was entitled to this continuance of compensation, notwithstanding he served but nine years of his last term, but his aggregate continuous service being seventeen years, was decided in People ex rel. Gilbert v. Wemple, 125 N. Y., 485; 36 St. Rep., 20. Under the judgment in that case the plaintiff has received all of his compensation that is payable by the state at large. But the compensation of justices of the supreme court resident in the county of Kings is made up of three parts: first, a sum payable from the state as compensation; second, a further sum payable by the state in lieu of traveling expenses; third, an allowance by the supervisors of the county of Kings, and charged on that county alone. A similar provision exists as -to the compensation of the justices of the first district (the city of New York), and the justices of this district not residing in the county of Kings have a special additional allowance raised by taxation from the counties of the district other than Kings. The county part of the salary of the justices is granted under chapter 821, Laws of 1866, by which “ the board of supervisors of the county of Kings shall allow to justices, etc., for the services required of them under this act and the act hereby amended, such compensation as the said board shall deem reasonable and proper. ” The services required by the statute relate to drawing of jurors and the imposition or remission of fines of delinquent jurors. Acting under his statute, the supervisors, in March, 1871, fixed the compensation of justices of the supreme court at $6,000 per annum. To recover such annual sum for the five years for which the plaintiff’s term was abridged by his reaching the age of 70 this action is brought.
    The right of the plaintiff to this compensation is denied upon the ground that under the statute the compensation was to be made only for services, and that during such period the plaintiff has rendered no services. But this objection is equally applicable to all the compensation that plaintiff receives by virtue of the constitutional provision, for at the expiration of the year during which he became seventy, his functions, duties and powers wholly ceased. The court of appeals, in People ex rel. Bockes v. Wemple, 115 N. Y., 302; 26 St. Rep., 330, held that judges whose terms expired on account of the constitutional limit of age were entitled even to the amount allowed in lieu of traveling expenses, though subjected to no expenses in this respect. To give effect to this objection it is necessary, therefore, to go further and establish the proposition that the sums paid to the justices under this legislation are not a part of their compensation as justices.
    While it may not be necessary that the statute should impose upon judges the duty of attending the drawing of jurors and the imposition or remission of fines, etc., it cannot be denied that the subject matter is so connected with the administration of justice and judicial work that the legislature can properly create this duty in the judges. It must be a duty that at least may be judicial, or the judges cannot discharge it, and the statute would be void. The constitution (§ 10, article 6) declares that judges of the court of appeals and justices of the supreme court shall not hold any other office or public trust, and (§ 21) shall not receive to their own use any fees or perquisites of office. Therefore the duty must be performed by the judge as judge, and the salary received therefor cannot be received for the special services, but only as a part of the officer’s salary as judge. This case is much stronger than that of People ex rel. Bockes v. Wemple, supra, for there it was contended, and with sufficient force to obtain the assent of a most able judge, that the sum there in dispute was granted, not as compensation for services, but as indemnity against expenses. But here the sum is paid strictly as compensation. It seems to me clear that the plaintiff has the same right to this annual sum since he has retired that he had to receive it when holding office, or that my associates or I have to receive it now.
    While the right of the justices in office to this annual salary of compensation is not challenged, of course the point is in this case. As, however, the point is not raised, and the question affects my own interests, I shall only discuss it to the extent necessary to show the justification upon which it rests. As an original proposition, the question whether the means adopted to fix the salaries of justices of the supreme court in this county and in New York are those contemplated by the constitution of 18-16 might well be held debatable. But as early as 1852 a statute was passed authorizing the local authorities in the city of New York to grant additional compensation to the justices of the supreme court in that city. The power was immediately exercised, and the validity of that statute as to judges elected after its passage (the constitution at that time prohibiting an increase as well as a diminution of judges’ salaries) was expressly upheld in the case of People ex rel. Morris v. Edmonds, 15 Barb., 533, decided by Mr. Justice Strong.. Though this was but a special term decision, I cannot find that it has ever been questioned; certainly never overruled. From that time the salaries of the justices in that city have been in part established by the action of the local authorities. The constitutional convention of 1865, whence springs the present judiciary article, was composed largely of lawyers, some of great eminence, and a great part of its labor was bestowed on the judicial system, and the question of judicial salaries. The fact of the previous legislation and the practice under it was well known, yet no criticism was made upon it The compensation paid under the action of the local authorities has been recognized by the legislature in statutes relating generally to the justices of the supreme court, and also notably in the case where the justices of this district, resident outside of Kings county, are given a specific additional compensation These facts, and the uniform practice for nearly forty years, in which most eminent judges have participated, seem ample justification for assuming the legality of this provision for compensation. Judgment for plaintiff, with costs.

      John B. Meyenborg, for app’lt; Charles H. Otis and Stephen P. Nash, for resp’t.
   Pratt, J.

All the questions raised by the defendants are quite fully discussed in the opinion of the judge who tried this case at special term, and we deem it unnecessary to go over again the same ground, but affirm the judgment on that opinion, with costs.

Barnard, P. J., and Dykman, J., concur.


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    Oliver T. Hewlett, Resp’t, v. Emeline Jewesson, Adm’rx, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    Decedents’ estates—Claim for board and maintenance.
    Proof that claimant furnished cooked food from his table five times a week to deceased, who did not reside with him, but in her own house, and occasionally a small quantity of coal, and that he paid a small sum to a nurse during decedent’s last illness, and proof of declarations of decedent that he was her best friend, and she meant he should have her deposit in savings bank, and that she owed him money, is not sufficient to furnish a basis for a claim of $10 a week for six years for board, care and maintenance.
    Appeal from judgment in favor of plaintiff, entered upon the report of a referee.
    Action to establish a claim against the estate of Elizabeth Hewlett, deceased.
    Thornton, Earl & Kiendl, for appl’t; Henry A. Monfort, for resp’t.
   Barnard, P. J.

Elizabeth Hewlett died in March, 1889, in Hempstead, Queens county, N. Y. She had always lived there, and was over eighty-two years of age at her death. Oliver T. Hewlett presented a claim against her estate for board, care and maintenance of deceased. The claim was for $10 a week, and it was allowed as presented. The evidence shows that the. deceased did not live in the family of claimant, but lived in her own house. The evidence fails to show an employment of the plaintiff by deceased. The whole claim is substantiated by proof that the claimant furnished the deceased cooked food from his own table some five days in the week, and on a few occasions furnished coal, and a few other articles of trifling value. The' coal was not furnished over once a month, in a bag or basket A very small sum was paid to a nurse during the last illness of the deceased. There is no declarative bill, such as would be looked for if these things were furnished on a business basis. The whole proof of a contract consists of a declaration that claimant was her best friend, and she meant that he should have her deposit in the Dime Savings Bank, and that she owed him money. The evidence is very voluminous, and as a whole furnishes ground for a doubt whether or not the articles furnished, as proven by claimant, were not very much exaggerated. It seems certain that no basis is given for a charge of $10 a week for the last six years of the life of deceased; at its extreme value as claimed, that allowance would be excessive.

The judgment should therefore be reversed and a new trial granted. Order of reference vacated.

Dykhan and Pratt, JJ., concur.


author: Dykman, J.

text:
    Edward Millott, Resp’t, v. The New York & New England Railroad Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.

    Master and servant—Negligence.
    Plaintiff was a yard brakeman in the employ of defendant, and was injured while trying to uncouple a car while moving. He was unable to do so because of a dead link in the drawhead of the forward car over which the coupling; link went, and the drawhead of the other car was six inches lower. Plaintiff was the only witness in his behalf, and was contradicted by nine witnesses. Held, that as plaintiff’s evidence was sufficient to warrant a verdict in his favor if believed, such verdict was conclusive on the facts and should not be disturbed.
    Appeal from judgment in favor of plaintiff, entered on verdict.

      W. C. Anthony, for app’lt; John W. Lyon, for resp’t.
   Dykman, J.

The plaintiff in this action was employed by the defendant, and his duty was to couple and uncouple cars for the purpose of making up trains at the yard of the company at East Hartford in the state of Connecticut, tobe run out on the railroad.

Early in the morning of the 23d day of February, 1890, while it was yet dark, the plaintiff and others were making up a train in the yard, and he went between two cars to uncouple them: they were box cars belonging to another company, and the drawheads and bumpers were of unequal height, those of the hindermost of the two being about six inches lower than the other.

Before the plaintiff started to go between the cars he gave a signal to the engineer to kick off a car, and the train was started back slowly; then the plaintiff passed in between the cars as they were moving, with his lantern in his left hand, and took hold of the pin of the rear car with his right hand. That was the car to be kicked off on the switch. At that time the train was moving backwards and the plaintiff was unable to extract the pin because, according to his testimony there was a dead link driven into the drawhead. of the forward car, and the coupling link was over the top of that but did not enter the drawhead as far as it otherwise would. Then the drawhead on the car behind was five or six inches lower than the drawhead bn the other.

While the cars were moving slowly back in obedience to the ' signal, the slack went out of the train an$ the cars came suddenly together, and the drawhead of the lower car overrode the link and caught the elbow of the plaintiff bétween the two bumpers and crushed the main artery of this arm so that the blood would not circulate through it, and amputation was rendered necessary, and his arm was taken off six inches below his shoulder.

This action was commenced for the recovery of the damages sustained by the plaintiff, based upon the negligence of the defendant.

The cause was tried at the circuit, where a verdict was rendered for the plaintiff for $5,000, and from the judgment entered upon the verdict the defendant has appealed.

The defendant moved for a new trial on the minutes of the court upon the grounds enumerated in § 999 of the Code of Civil Procedure; the motion was denied and the defendant excepted.

There is no appeal from an order denying the motion for a new trial, and no order denying such motion.

There was no exception to the charge of the trial judge, and the charge is omitted from the case for that reason.

The plaintiff was the only witness sworn in his behalf upon the trial, and there were nine witnesses sworn for the defendant whose testimony tended to contradict that of the plaintiff, and some of them testified that he said the injury was the result of his own fault.

Whatever there was in conflict with the testimony of the plaintiff was settled in his favor by the verdict of the jury, and his evidence was sufficient to sustain the verdict.

There was one exception on the part of the defendant to the' exclusion of testimony respecting the compensation of men who pull the coupling pins, but it presents no question worthy of ■ examination.

The questions raised by motion for a nonsuit have all been decided adversely to the contention of the defendant Gottlieb v. N. Y., L. E. & W. R. R. Co., 100 N. Y., 462; Goodrich case, 116 id., 398; 26 St. Rep., 767; Fuller v. Jewett, 80 N. Y., 46.

The judgment should be affirmed, with costs.

Pratt, J., concurs ; Barnard, P. J,4 not sitting.


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    In the Matter of the Appointment to Fill Vacancy in The Board of Health of New Rochelle.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    1. Board of health—Vacancy.
    The determination of a county judge as to whether a vacancy in the membership of a board of health should be filled without delay is a matter of discretion.
    2. Same.
    The mere fact that a member of the board has a temporary residence during the winter months in a city within a short distance of the village does not constitute such a removal from the village as to require that his office should be declared vacant.
    Appeal from order of the county judge of Westchester county denying application of the trustees of the village of New Rochelle for the appointment of a proper person to fill a vacancy in the board of health of said village, said to exist by reason of the removal from the village of Dr. Henry D. Hoyes.
    The following is the opinion of the county judge:
    Mills, C. J.—This The application is made under a portion of § 2 of chap. 270 of the Laws of 1885, which is as follows: “If in any case a vacancy shall occur in the board of health of any city, village or town by the death, resignation, inability to act or removal from said city, village or town of any member thereof, and if the proper authorities by inability, neglect or refusal, fail to fill such vacancy, it shall be the duty of the county judge of "the county in which such city, village or town is situated, upon being satisfied that such vacancy should be filled without delay, to appoint in writing a competent person to fill such vacancy for the unexpired term.”
    The question to be determined by me is, whether Dr. Henry D. Hoyes has removed from the village of New Rochelle, within the meaning of the above quoted provision of the statute, so that his removal has caused a vacancy in the said board of health. It appears from the affidavits that Dr. Hoyes owns a residence in New Rochelle and has been in the habit for some years of actually residing there from May to Hoveinber, and that he is a practicing physician in the city of New York, and that during the winter months, for the convenience of his practice, he lives in the city of New York, and that in accordance with this habit, about the 1st of Hovember last, he left his residence in New Rochelle and went to live in the city of New York, where he intends to live until next spring, when he expects to return to his New Rochelle residence. His affidavits state that he regards Hew Bochelle as his place of residence and that he has attended to all his duties as a member of the board of health so far, and intends to perform them in the future. The only fact submitted in behalf of the motion to oppose these statements, made by Dr. Hoyes, is the fact that at the recent general election he registered and voted in Hew York City.
    In answer to that, his affidavit states that he has voted in New Rochelle in village elections and that he intends to vote in New Rochelle at all elections. A doubtful question perhaps is thus raised as to his real residence. I have to determine the matter upon the affidavits before me. It does not seem to me that I ought, in this summary way, to decide that Dr. Noyes has removed from the village and that thereby a vacancy has been created, unless such facts are clearly established. It is not, I think,, the intention of the statute that the county judge should declare a vacancy in any other than a clear case. The registration of Dr. Noyes in New York city is but evidence of his intention.
    Upon the whole, I think that in view of his affidavit declaring his intention to remain a resident of New Rochelle, and of the circumstances, it may be properly concluded that his leaving New Rochelle and going to the city of New York for the winter months is but a temporary absence from that village, and not a removal therefrom in the sense in which that term is used in the statute. It could not be claimed, under the statute, that if a member of the board of health left the village on a journey to the west, to be absent thereon for weeks or.months even, having all the time the intention of returning to the village when his business was completed, he thereby had removed from the village and vacated his office as a member of the board of health. In this case it does not appear that there is any real merit to the application, inasmuch as it is clear that Dr. Noyes is a valuable member of the board of health, and notwithstanding his temporary residence in New York city he is constant m attending the meetings of the board, and performing all the duties of his official position. It is not often that men occupying the position of Dr. Noyes consent to serve as members of a village board of health, and the public interests would seem to require that his service should continue, at least, for the balance of the term to which he was appointed by the village trustees, unless it is absolutely clear under the statute that his position should be declared vacant. As I do not think that conclusion is necessary, I have decided to deny the application, without costs

      Chas H. Noxon, for applt; M. J. Keogh, for resp’t.
   Pratt, J.

If it were clear that a vacancy existed in the board of health it would be a matter of discretion with the county judge to determine whether the vacancy should be filled without delay. He does not find that any vacancy exists, and if one does exist it is clear he does not think the public welfare requires an appointment

We do not .see that he is in error.

Order appealed from affirmed, without costs.

Barnard, P. J., and Dykman, J., concur.


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    The People ex rel. John E. Corwin, Resp’t, v. The Assessors and Clerk of the City of Middletown, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    1. Taxes—Certiorari to review assessment.
    A writ of certiorari to review an assessment under chap, 269, Laws of 1880, is not authorized unless the relator has done what he was required to do on grievance day.
    2. Same—Cobbection of assessment.
    The assessors have no power to reduce an assessment upon a case made solely upon the affidavit of the attorney for the person assessed, and an oiler to submit to an examination when the party is not present is of no effect.
    Appeal from order denying motion to quash a writ of certiorari to review an assessment of personal property, and from order referring the matters in issue.

      George H. Decker, for app’lts; William Vanamee, for resp’t.
   Barnard, P. J.

By chapter 269, Laws of 1880, a writ of certiorari is provided for when an assessment is illegal or erroneous by reason of over-valuation, or because the assessment is disproportioned to the assessment of other real and personal property. The words of this act are extremely general, and on their face seem to authorize a writ of certiorari to review the assessment without the aggrieved party applying to the assessors to correct the error. The court of appeals, in the case of The People v. Com'rs of Taxes, 99 N. Y., 254, restricts the act of 1880 to cases where there was a failure by the assessors to correct the assessment roll. The principle is again applied in People v. Adams, 125 N. Y., 471; 36 St. Rep., 166. Unless the relator did what he was required to upon grievance day, the law of 1880 does not apply to him. He did not personally appear, but did appear by attorney only. The attorney filed his affidavit that the assessment was illegal and unjust. The assessors asked the attorney if his client did not own $10,000 in personal property, which was the amount assessed against him, and the attorney admitted, for the sake of the argument, that his client was worth $75,000. No proof was offered, and upon a personal application to the relator he refused to state in what sum he should be assessed, or to make any statement as to the value of his property. What the relator should have done is provided for by chap. 176, Laws of 1851, as amended by chap. 536, Laws of 1857. The relator was to apply. It was then the duty of the assessors to examine him on oath. Then the assessors were to hear other supplementary evidence, under oath, to be presented by relator. If the relator refuses to answer questions as to the value of the estate under oath, or present sufficient evidence under oath to justify a reduction, the assessors “ shall not reduce the value of such real or personal estate.” The examination of relator and of the supplementary evidence is to be taken down, signed and filed in the town clerk’s office. An offer to submit to an examination when the party is not present was of no effect The assessors, therefore, had no power to reduce the assessment upon the case made solely upon the affidavit of the attorney.

The order should, therefore, be reversed, with costs and disbursements, and the motion to quash the writ be granted, with costs.

Dykman and Pratt, JJ., concur.


author: Barnard, P. J. Pratt, J.

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    The People ex rel. John Harper, Resp’t, v. John P. Adams, Commissioner of the Department of City Works, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)
    Veterans—Discharge—Mandamus.
    Relator, a veteran soldier, was discharged without hearing hy the then commissioner in December, 1887. No notice was given to the present commissioner until the commencement of this proceeding in 1891, when relator was reappointed, and on his objecting thereto, reinstated by defendant. Held, that under these circumstances his application for a mandamus compelling his reinstatement should have been denied.
    Appeal from order granting writ of peremptory, mandamus commanding defendant to reinstate relator as a laborer in the department of city works of the city of Brooklyn.

      Almet F. Jenks and Richard B. Greenwood, Jr., for app’lt; Sidney Williams, for resp’t.
   Barnard, P. J.

The relator is an honorably discharged Union soldier. In September, 1886, he was appointed as a skilled laborer in the department of city works of the city of Brooklyn. In December, 1887, he was discharged from the employment without a hearing. This was an illegal discharge, and in May, 1891, he was reappointed. The relator insisted on reinstatement. Such reinstatement was made at once, and the relator then reported for duty and was employed under his reinstatement and has since received his pay as a reinstated laborer, at the old rate of compensation for the employment. Nothing further can be accomplished by the writ of mandamus. There was no judgment which removed the relator from office, such as existed- in the case of The People ex rel. Fairchild v. Comr, of Fire, etc., 105 N. Y., 674; 8 St. Rep., 179.

A denial of a writ of mandamus in this case will not take away a claim which, relator has for back pay between the dates of the discharge and the reinstatement.

It seems by the authority of Terhune v. City of New York, 88 N. Y., 247, no action could be maintained for the back pay even if there was a judgment of reinstatement. See also McVeany v. The Mayor, 80 N. Y., 185.

The judgment should be reversed and the motion denied, with ten dollars costs and disbursements. See also Higgins v. Mayor, 42 St. Rep., 711.

Pratt, J.

There is great doubt whether the law giving a preference in public employment to veterans was ever intended to cover the case of a member of a militia regiment temporarily -called out for a few days service in the late rebellion, but was intended to apply to members of volunteer regiments regularly mustered into the service. Almost all, and I think all the militia regiments were at some period during the war called out for temporary service, but nobody ever supposed that thereby they all became veterans by such service. If such is the construction, then such service of one day would make a veteran.

The word veteran is defined by Webster as one “ who has grown old in service and has had much experience. One who has been long exercised in any service, "particularly in war.”

Under this definition it cannot be fairly said that the relator is a veteran. But it is not necessary to determine this question, but a statement of the fact of the nature of the service throws some light upon the merits of his claim, inasmuch as it seems to be conceded that the only object of obtaining a decision herein is to lay a basis for a claim against the city for about four years of services that were never rendered and for which no claim was ever presented until after the death of the commissioner of city works who held the office at the time of relator’s discharge.

The present commissioner, John P. Adams, took the office February, 1888, and the relator instead of offering his services or commencing suit, waits three years, and when he makes application is reinstated.

Such conduct deprives his claim of all consideration in equity, and was a snare that cannot be tolerated.

Any person who sleeps upon his right so long must be held to some acquiescence in the conduct of the opposing party.

It was held by Judge Danforth that a suit of mandamus might be denied in the discretion of the court when the delay in moving is unreasonable although it falls short of the time given for commencing actions.

If he had applied for a mandamus even as late as February 1, 1888, he would have undoubtedly been reinstated as was done by Mr, Adams as soon as his attention was called to the subject, and thus the city would have had three years services for which he would have been paid.

It is to be fairly inferred that he had a better job and preferred to lie by and mulct the city for services never rendered.

It does not appear that the foreman to whom the relator gave notice of his preference could either employ or remove men employed as was the plaintiff at the time of his alleged discharge.

Under such a state of facts he was not removed at all, but failed to appear for duty or to claim his pay, and thus acquiesced in the notice given him by the foreman Short, if indeed such notice was ever given.

It was plainly his duty if he claimed the veteran’s privilege to go at once to the head of the department and ascertain the foreman’s powers and make his claim.

If upon no other ground, relator’s motion for mandamus ought to have been denied as a matter of discretion.

Order reversed, with costs and disbursements.


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    The International Tile & Trim Co., Resp’t, v. Henry Ahlers, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    Sale—Sample—Acceptance.
    Plaintiff sold by sample to defendant certain mantels and fireplaces for ornamental purposes. The ones furnished were not according to sample, and were so imperfect as to be a disfigurement. Held, that the fact that the mantels remained in place did not constitute such an'acceptance as to relieve plaintiff from the result of its breach of the contract; that if it abandoned the attempt to fulfil the contract and wished to recover the mantels, it should assume the burden of taking them away and restoring the rooms to their original condition.
    Appeal from judgment in favor of plaintiff, entered on the report of a referee.
    Action to recover the purchase price of two' ornamental mantels and the accompanying tiles, grates and lining.

      Wm. M. Benedict, for app’lt; Horace Graves, for resp’t.
   Pratt, J.

The mantels and fireplaces contracted for were for ornament, not use. Their whole value was to be in the beauty and elegance they were expected to add to the rooms in which they were to be placed.

The orders were given from samples on exhibition in plaintiff’s show room, and were to be executed according tó the sample.

The performance was not according to the sample and was so imperfect that instead of being ornamental it was a disfigurement. And as the only value of the mantels and fireplaces was in the expected ornamentation, no benefit was conferred on defendant.

There was some effort made to show that defendant had accepted the work, but we think nothing that could relieve plaintiff from the result of its breach of contract.

The mantels were in place,, and it is not reasonable to require that defendant should take them out and return them to the plaintiff; on the contrary, if plaintiff abandons the attempt to fulfil its contract and wishes to recover the mantels, it should assume the burden of taking them away, and restoring the rooms to their original condition.

Judgment reversed on the facts; new trial 'rdered at circuit, costs to abide event

Barnard, P. J., and Dykman, J., concur.


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    Frank P. Davis, Adm’r, App’lt, v. Charles H. Van Wyck, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    1. Vendor and purchaser—Breach of contract—Tender.
    A sale of the premises by the vendor to a third person when neither party to the contract is in default waives a specific strict tender before an action for breach can be commenced.
    2. Same—Accounting.
    Defendant contracted to sell to plaintiff’s intestate certain real estate which he had purchased on foreclosure to secure certain debts due to him. A mortgage was to be given to him, but it was not given by the intestate who went into possession and made a payment on the contract. After his death a dispute arose as to the amount due and defendant sold the premises to another person. No formal tender had been made on either side. In an action for breach, Held, that a nonsuit was improperly granted; that there should have been an accounting and a balance- arrived at fixing the amount due.

      Appeal from, judgment in favor of defendant, entered upon a nonsuit, and from "order denying motion for a new trial on a case and exceptions.
    Action for breach of contract for the sale of real estate.

      S. S. Gowdey, for app’lt; William Van Namee (W. J. Groo, of counsel), for resp’t.
   Barnard, P. J.

On the 14th of December, 1867, the defendant agreed to convey to John M. Davis certain premises in Sullivan county. The consideration is left quite uncertain so far as it is expressed in the paper. The agreement signed by Van Wyck, defendant, is stated to be “ for the price this day paid for the same, together with the amount due me from the estate of said William Davis and also the amount he has this day agreed to pay the estate of William Davis, deceased, by an agreement with the administrators of said estate”

The agreement also recites that defendant had purchased the land to secure his claims against William Davis, deceased, and that he was to be indemnified by the sale to plaintiff’s intestate against an agreement which defendant had made to guarantee an agreement of John M. Davis to the administrator of said William Davis. There was paid $900 to Van Wyck, defendant, by John M. Davis on the 20th of January, 1871. John M. Davis had possession of the land from the date of the agreement and died in 1873. In 1877 the widow and family of deceased John M. Davis left the property. In 1877 the administrator had an interview with the defendant. The parties differed as to the debt due. The administrator said it was $1,300 about, and Van Wyck claimed it was over $2,500. The administrator expressed a willingness to pay the $1,300. Van Wyck refused to take it and in March, 1883, sold the property to one Case. There was no formal tender on either side and the agreement continued, Nelson v. Plimpton Fire-Proof Elev. Co., 55 id. Y., 480, and the question is reduced to this: whether a sale of the premises when neither party was in default waived a specific strict tender before an action for breach could be commenced.

The sale by Van Wyck put it out of his power to perform and is of itself a breach. A tender is not necessary where a party puts it out of his power to comply. There was proof tending to show that the claim of Van Wyck was a mortgage only, and as $900 had been paid on that there should have 'been an accounting and a balance arrived at, fixing debt and use and occupation reduced by payment. It was not too late to receive the testimony of the witness Glowdey.

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

Dykman and Peatt, JJ., concur.