text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. CHARLES H. ROOSEVELT, Appellant, v. THE BOARD OF TRUSTEES OF THE VILLAGE OF NEW ROCHELLE, Respondent.

      Bepeal of law — when it revives a prior law — New Boehelle — its trustees have power to act as a hom'd of health.

    The repeal of the acts creating a metropolitan sanitary district by chapter 433 of 1871, and the provision contained in the latter act empowering the trustees, of every incorporated village in Westchester county to exercise all the authority given by the Revised Statutes, “ and all acts supplemental thereto and amendatory thereof,” revived subdivision 17 of section 1 of title 3 of chapter 249 o'f 1864 authorizing the board of trustees of the village of New Rochelle to act as a board of health within the village limits.

      Appeal from ail order denying a motion for a writ of mandamus to compel the board of trustees of the village of New Rochelle to appoint a board of health for that village.

      G. H. Roosevelt, appellant in person.

      Martin J. Keogh, for the respondent.
   Barnard, P. J.:

The defendants by their charter were clothed with the power to act as a board of health ” within the village limits. (Chap. 249, Laws of 1864; tit. 3, § 1, sub. 17; tit. 7, § 8.) As the general law stood in reference to villages the trustees had only power to appoint boards of health. (1R. S. [6 ed.], pt. 1, tit. 6, chap. 14, art. 2.) The charter to defendants, as to the village, was supplemental to the general law and provided a different board of health composed of the village trustees. Subsequently to the passage of the defendants’ charter a metropolitan sanitary district was created which included New Rochelle within its limits, and a board of health was provided by law for the entire district. ■

No doubt this board of health was designed to embrace all the sanitary district, and was to exclude all other boards of health. (Chap. 74, Laws of 1866; chap. 686, Laws of 1866.) .

In 1871, the act creating the sanitary district and board of health therein was repealed, and the trustees of every incorporated village in Westchester county were empowered to exercise all the authority given by the Revised Statutes above cited, “ and all acts supplemental thereto and amendatory thereof.” The charter of defendant was supplemental to the Revised Statutes as to a board of health within its boundaries. The legislature as to this village changed the general law and made the trustees a board of health. ■ When the metropolitan sanitary act was repealed, it revived the clauses in the defendants charter under the words supplemental thereto and amendatory thereof.” (Chap. 433, Laws of 1871.)

These words revived the general law, and all laws relating to the public health in specified divisions, like villages which had special

62 powers on this subject * * ,* and which had been suspended by the sanitary act referred to.

Order affirmed, with ten dollars costs and disbursements.

Gilbert, J., concurred; Dykman, J., not sittting.'

Order affirmed, with costs and disbursements.


source: Caselaw Access Project

author: Barnard, P. J.: Gilbert, J.: DyKMAN, J.:

license: Public Domain

text:
    In the Matter of the Application of the EAST RIVER BRIDGE AND CONEY ISLAND STEAM TRANSIT COMPANY.

      Blevated railroad — when the report of the convmissionws in favor of its construe tion will not he approved by the General Term— 1875, chap. 606.
    A report of commissioners appointed under chapter 606 of 1875, determining that an elevated railroad ought to he constructed and operated over and upon certain streets in the city of Brooklyn named by them, will not be confirmed by the General Term until some provision has been made whereby the owners of lots and buildings abutting upon the proposed route, whether they own the fee of the street in front of their premises or not, shall be compensated for the damages they may sustain by reason of the construction and operation of the railroad.
    Application to confirm the report of commissioners, heretofore appointed under chapter 606 of 1875, determining that an elevated railroad ought to be constructed and operated over and upon certain streets in the city of Brooklyn named by them.

      Dmid Bm-nett, for the company.

      Jf. H. Glement, for property .owners, opposed.
   Barnard, P. J.:

The report should not be confirmed. The proposed elevated road passes through many streets in the city of Brooklyn of various widths. It crosses many others. It must be assumed that in many cases the abutting owner does not own the fee of the street itself. Many owners are bounded by the side of the street to be taken, and others own the fee of the street subject to the public easement upon it as a street. The streets are in many cases completely built up. The proposed route passes many places of business and many dwellings. * It-must also be assumed that in some cases large damages are to be suffered by abutting owners.

The act under which the road is to be built, makes no provision for compensation for the injury to the building and premises fronting on the streets. The evidence in this case discloses many persons who believe their property will be ruined by the road. The right to their damages is questioned. If they 'do not own the fee of the street, their property rights are said not to be taken or affected. If they do own to the center of the street, can they get more than the difference between a street with and without a railroad upon it ?: If the fee is owned by another than the abutting owner, his rights are merely nominal, and still that may be all which is to be paid for 1 the disturbance of the owner of the premises bounded upon the street.

While these questions are unsettled, I am unalterably opposed to the confirmation of this report.

No magnitude of the public benefit to result from the building of this road will compensate for the injustice to be done by a partial destruction in value of the property of a single owner without compensation. What this compensation is to be, will be determined after the legislature provides a scheme of compensation which shall embrace the injury by a commission or by a jury. The amount awarded should first be paid to the owner as is required in the case-of a railroad constructed under the general law. There should be no- > taking first and payment afterward, as each owner shall be able to force an assessment against the opposition of the railroad. Without therefore examining the question whether the railroad proposed is really a rapid transit road, or is a mere incident to carry Coney Island travel, the motion for confirmation should be denied.

Gilbert, J.:

The Constitution of the State requires, as a condition precedent to the construction of a street railroad, that the consent of the owners of one-half in value of the property bounded on that portion of the street upon which it is proposed to construct such railroad shall be first obtained, or in case the consent of such property owners cannot be obtained, then the determination of commissioners appointed by. tbis- court that such railroad ought to be constructed, confirmed -by the court, may be taken in lieu of the consent of the property ■owners. The petitioner is a corporation organized pursuant to the act known as the rapid transit act, and that act contains the same requirement. (Const., art. 3, § 18; Laws 1875, chap. 606.) This is an application by the corporation to confirm a determination of the commissioners that the railroad which it proposes to construct 'in streets in the city of Brooklyn, and to operate by steam power, -ought to be constructed and operated, notwithstanding the requisite -consent of property owners has not been obtained, and the corporation has made no provision for compensating such owners as may .sustain damages by reason of the construction and operation of such railroad.

It has been decided by the court of last resort (Matter of Kings County Elevated Railway, 82 N. Y., 95) that this court has the power, and that it is our duty to review the report of the commissioners upon the facts, and after a consideration of all the •circumstances to determine the question whether private rights .and interests should be yielded for the sake of the public good. That being so, I have no hesitation in declaring my opinion that no man’s property should be taken for, or injuriously affected by, the construction or operation of an elevated railroad, except upon the condition that compensation for all damages sustained by him thereby should be made. Ample protection against direct invasions of the rights of private property is afforded by the fundamental law. It cannot be taken for public use without compensation. But property which merely abuts upon the street, and which the corporation does not “ take ” in a technical sense, may be injuriously affected by the railroad. The exclusion of light — the diffusion of offensive odors, smoke and steam, the disturbance caused by the rattling of the cars and the obstruction of the atmosphere tend to impair the value of property. The fact is indisputable that in many instances elevated railroads operated by steam power have injured property which has not been taken or in any manner appropriated by the corporation that owns them. , The evidence before us shows that similar ■consequences will follow the construction and operation of the petitioners’ proposed railroad. The injustice of treating such injuries as undeserving of compensation is perfectly apparent; nor can any amount of public benefit be deemed a just compensation therefor. And yet it is still a mooted question whether the owners-of property injuriously affected, but not actually taken by the railroad corporation, are protected by the constitutional provision referred to. That question should be set at rest before railroad corporations are permitted to inflict further injuries upon private-property. Their right to construct elevated railroads in streets-should be made dependent upon their providing a suitable and sufficient indemnity to abutting owners against any damages which they may sustain thereby, or if that may justly be deemed too onerous, then provision should be made by law for such indemnity in some other mode.

Until such indemnity in a suitable form shall have been provided the report ought not to be confirmed.

DyKMAN, J.:

It is in the fundamental law of this State that no law shall authorize the construction or operation of a street railroad, except upon the condition that the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having the control of that portion of a street or highway upon which it is proposed to construct or operate such railroad, be first obtained, or in case the consent of such property owners cannot be first obtained, the General Term of the Supreme Court in the district in which it is proposed to be constructed may, upon application, appoint three commissioners, who shall determine, after a hearing of all parties interested, whether such railroad ought to be constructed or operated, and their determination confirmed by the court may be taken in lieu of the consent of the property owners. This constitutional restriction was'respected in the rapid transit act of 1815, and the last part of section 3 of that law was made in conformity thereto.

This corporation was organized under these provisions, and is now in full subjection to their entire scope and limitation, and so it has been conducted thus far.

The first commission contemplated has been appointed, and by it a route has been fixed and determined for a road. The effort to procure the consent of the requisite number of owners of property bounded on the streets on, which it was proposed to construct and operate the road resulted in failure.

Thereupon there was appointed by the General Term of the Supreme Court three commissioners to determine whether the road ought to be constructed and operated, and they have made report to the court in favor of construction. Yet,- to stand in place of consent of the property .holders, their determination must be confirmed by the court. Such confirmation is now sought by the corporation and resisted by the owners, and the power to be exerted by the court is not a mere formal function. It has jurisdiction, power and duty to review the whole case, examine all the facts and determine in the exercise of sound judicial discretion whether they are sufficient to warrant the determination of the commissioners. (Matter of Kings Co. Elev. Ry. Co., 82 N. Y., 95.)

Plain it is that new functions have been added to the court to determine when in sound policy the objections of property owners should be overridden, and that in taking this power from the legislature and grafting it on the judicial system, the intent was to secure more effectually private property against corporate encroachment.

The wisdom of this provision in thus placing a power of partial repression in the property -owners is well illustrated by this case. The Constitution, without discrimination against the lack of technical title to the centre of city streets, recognizes the rights of abutting owners and places in their hands a partial veto power. That power has been exerted, and the reason put forward in justification of the veto is the great and irreparable injury and damage which must result to private property by the construction of this road.

This introduces to consideration the question of compensation, and being in, it takes place in the front rank of importance.

In the present state of the law, compensation is at least uncertain, and it is not just to throw any doubts into' the balance against the owners of abutting property. The construction of this railroad would cause a sacrifice of private property, and the most ardent advocate of the exercise of the right of eminent domain, under which private property is appropriated, would never claim that it ■could or should be used to wrest private property from its owners where there may be no compensation. Public good alone is to be weighed against individual injury. The construction of a railway without compensation is confiscation of private property, and to outweigh that there must be some great public necessity.

That has not been shown in this ease. There may be and doubtless is a necessity for some means of rapid transit in Brooklyn, but there is at least equal necessity for protection to private rights and private property, and when the constitution has placed in the hands of property owners a weapon-for their defense against corporations, of which they cannot bev disarmed even by the legislature, the courts will not take it from them and deliver them over to their enemies without the clearest necessity. The great corporations, including the elevated railroads, have already sufficient power and control without assistance from the courts to tighten or extend their grasp. They have been favored by the legislature with franchises and privileges until they have colossal proportions, and are carried on for the aggrandisement of the favored few in much disregard of individual and private rights, and at the great expense of the many, but we may at least hope that the day is not nigh when they can buy out the law or shove by justice.

If the necessity lor rapid transit in Brooklyn be as great as this corporation claims, it will remunerate an outlay for the depreciation to private’property to result from its realization, and its future may with safety be left to the operation of commercial laws.

No further elaboration of this subject will be attempted here, and this opinion is against confirmation of this report on the following grounds:

First. That compensation is not assured.

Second. That construction of an elevated railroad on city streets, without compensation, is confiscation.

Third. There is not disclosed a public necessity sufficient to justify the court in permitting the erection of this railroad against the dissent and opposition of more than one-half of the owners of property along its line.

The motion to confirm should be denied.

Motion to confirm report of commissioners denied.


author: Gilbert, J.:

text:
    ALICE HUNTINGTON, Respondent, v. EMELINE ASHER, Appellant.

      Easement — a privilege to take ice from a pond is not an easement —when such right does not pass by a conveyance of adjacent land,.

    One Hogan, the owner of the land covered by a mill pond and of an adjoining , lot of about one-half acre, conveyed the latter to one Asher; and, also, “as incident to the conveyance” granted and conveyed to him, his heirs and assigns, “ the exclusive right to take ice from the pond of the party of the first part, with the right and privilege of access for that purpose to and from, the pond to the ice-house to be erected on the lot ” conveyed. Asher in consideration of the grant covenanted for himself, his heirs and assigns, to furnish to Hogan and to the purchasers of the pond and mill privileges all the ice required for their family use as long as they continued to reside in the village. . Thereafter Asher conveyed the lot to the defendant, “together with all and singular the hereditaments and appurtenances thereto belonging or in anywise appertaining.”
    ■ Held, that the right to take ice from the pond was not an easement annexed to the lot, and did not pass to the defendant by the conveyance from Asher.
    Appeal from a judgment in favor of the plaintiff, entered on a trial before tbe court without a jury.
    The action was brought to recover damages for entering upon the plaintiff’s lands, and to enjoin. the ’ defendant from entering and restoring a dam and taking ice therefrom.
    On the 3d November, 1869, James Hogan was the owner of certain premises embracing those covered by a pond, formed by a mill dam, and an adjoining lot of about one-half acre. On that day he conveyed the adjoining lot to J. Howard Asher for the consideration of $1,000. The deed contained this clause: “And the party of the first part, as incident to this conveyance, also grants and 'copveys to the party of the second part, his heirs and assigns, the exclusive right to take ice from the pond of the party of the first part, with the right and. privilege of access for that purpose to and from the pond to the ice-house to be erected on the lot hereby conveyed.
    “ In consideration of which said grant as aforesaid the party of the second part hereby covenants and agrees for himself and his heirs and assigns to furnish and deliver to the party of the first part (so long as he shall continue to occupy his present residence) free of charge all the ice which he shall require for his own family use, and also to furnish and deliver to the purchaser or purchasers of the pond and mill privileges, and their heirs and assigns free of charge, all the ice which they shall require for their own family use so long as they continue to reside in the village of Rhinebeck.”
    Asher erected an ice-house on his lot and the ice business has since then been carried on from the premises by him and his grantee.
    On the 2d February, 1878, J. Howard Asher conveyed the lot conveyed to him by Hogan, to the defendant, “ together with ■ all and singular the hereditaments and appurtenances thereto belonging or in anywise appertaining.”
    On February 22, 1870, Hogan conveyed the mill pond premises to William Kelly by deed containing this clause; “ This conveyance, however, is subject to the right heretofore conveyed to J. Howard Asher of taking ice from the pond as contained in his deed of November 3,1869.” Kelly conveyed the same premises on February 22, 1871, to Marie E. Ford by deed containing the same clause as above and Ford conveyed them to the plaintiff by a deed of January 1, 1875, containing the same clause/
    The dam was torn down about 1872 by the then owner, Ford. In the fall of 1879 the plaintiff denied the defendant’s right to take ice and demanded $150 or $200 a year for the privilege, and the defendant claimed her right under the deed and refused to pay..
    The court held that it was not the effect of the deed from Hogan to Asher, that Hogan and his successors in title should be bound to-keep up the dam; that the plaintiff was not bound to keep up the dam, and that the defendant had no right to enter plaintiff’s lands-to put up a dam either permanent or temporary, or take ice therefrom ; that the plaintiff recover one dollar damages and defendant be restrained from entering on or putting up a dam cn the plaintiff’s lands.

      Henry M. Taylor, for the appellant.

      O. I). M. Balcer, for the respondent.
   Gilbert, J.:

It is a familiar rule that the owner of a dominant estate to which an easement in another’s land has been annexed, has a right to enter upon the servient estate and make necessary repairs, and to remove such obstacles as interfere with the beneficial enjoyment of the easement. We are of opinion, however, 1. That the right granted to the defendant’s grantor was not such an easement, and, 2. That such right was not transferred to the defendant by the conveyance under which she claims; in other words, that it is not a right which is appurtenant to her estate. A right by which one person is entitled to remove and appropriate for his own use anything growing in or attached to or subsisting upon the land of another, for the purpose of the profit to be gained from the property thereby acquired in the thing removed, has always been considered in law a different species of right from an easement. Such right is a privilege, and so is an easement. But the latter is a privilege without profit, and is merely accessorial to the rights of property in land, while the former is the reverse. If granted to one in gross, it is so far of the character of an estate or interest in the land itself, that it is treated as such. (Per Oh. Walworth, Post v. Pearsall, 22 Wend., 425; God. on Easement, 5 et seq., 11; Washburn on Easement, 11 et seq., 312, 521, 528.) It may be created by grant and held in fee for life or for years.- Whereas an easement proper in gross cannot be created by grant so as to be assignable or inheritable. (Ackroyd v. Smith, 10 C. B., 164, 187; Post v. Pearsall, supra; Tinicum Fishing Co. v. Carter, 61 Penn. State, 38.)

The grant in this case is of the exclusive right to take ice from the pond ” of the grantor. Such a right is in no way connected with the beneficial enjoyment of the one-half acre of land granted by the same conveyance. The effect of that conveyance would have been the same if the grant of the privilege had been made by a person other than the grantor, or if the grant of the privilege had been one to take ice from Rockland lake. The conveyance to the plaintiff merely transferred to her the one-half acre of land, with the appurtenances thereof. It contains no grant of the privilege in question.

The judgment must therefore be affirmed, with costs.

Dykman, J., concurred; Barnard, P. J., not sitting.

Judgment affirmed, with costs.


text:
    EMERETT JOHNSON, Respondent, v. SARAH N. CORNWALL and JAMES H. CORNWALL, Executors, etc., of SAMUEL M. CORNWALL, Appellants.

      Will — construction of a clame giving an annuity — when no demand is necessary before bringing an action.

    The defendants’ testator devised one-balf of Ms estate to Ms wife and the other half to bis son, “ subject to the exceptions hereinafter named,” and then gave and bequeathed “ unto Emerett Johnson (colored girl) her support during her natural life to be paid out of the whole property according to the exceptions above named.”

      Held, that the whole estate was charged with an annuity for the said Emerett Johnson, the amount of which was to be determined by the court, and that the wife and son, having accepted the estate devised to them, were personally liable to pay it.
    That no demand was necessary to enable the girl to maintain an action to enforce such liability.
    Appeal from a judgment in favor of tne plaintiff, entered upon the trial of this action by the court without a jury.
    The defendants’ testator by his will gave and bequeathed unto his wife one-half and to his son the other half of all his property, both real and personal, “ subject to the exceptions hereinafter named,” and then gave and bequeathed “ unto Emerett Johnson (colored girl) her support during her natural life to be paid out of the whole property according to the exceptions above named.”
    At the time of the making of the will of the testator and at the time of his death the plaintiff was, and had been for many years, a hired servant in his family. From the time of the death of the testator in 1865, until the fall of. 1879, the plaintiff continued to live with the defendant Sarah Cornwall (the widow of Samuel) as a hired servant, receiving her wages regularly as such. She made no demand of any support until just before she left the house of Mrs. Cornwall in the fall of 1879, though she knew of the provisions of the will in her behalf shortly after the death of Mr. Cornwall. When the plaintiff stated to Mrs. Cornwall that she was sick and nnable to work Mrs. Cornwall offered her a home and support in her house, which plaintiff refused.

      In tbis action, brought to compel the defendants to provide for her support, the court fixed the annuity at $360 a year.

      0. Frost, for the appellants.

      Wolcott <& Kent, for the respondent.
   Gilbert, J.:

I think the language used in the bequest to the plaintiff indicates that the testator intended that she should be furnished with sufficient pecuniary means for her support according to her condition in life; The legacy is of “ her support.” It is to be paid out of the whole property,” not supplied by means of any diminution of the property devised or bequeathed to the defendants. Nor was there a gift to the defendants upon trust to apply a part thereof to the support of the plaintiff. On the contrary, the legacy is to the plaintiff directly, and it is expressly excepted from the gifts to the defendants. They took only what remained after satisfaction of the legacy. The legal effect was to charge the whole estate, left by the testator, with an annuity for the plaintiff’s support indefinite as to the nominal amount thereof, but limited only by her reasonable needs. She is to be paid, not fed or clothed, by the defendants. ■ It is the duty of the court to determine the amount intended to be bequeathed. (Thorp v. Owen, 2 Hare, 610; Broad v. Beavan, 2 Russ., 511, n.; Forman v. Whitney, 2 Keyes, 165.) We think the sum fixed by the court under all the circumstances is not unreasonable.

The defendants having accepted and held the estates devised to them respectively, charged with the payment of the annuity, they became personably liable to pay the sam e. No demand was necessary to give to the plaintiff a right of action to enforce such liability. The case in 13 New Hampshire, 1 (Holmes v. Fisher), was put upon the ground of waiver. But the facts of this case preclude the idea of waiver. (Peoples Bank v. Mitchell, 13 N. Y., 406.)

The judgment should be affirmed, with costs.

Dykman and Cullen, JJ., concurred.

Judgment affirmed, with costs.


text:
    BOWKER ROBINSON, Respondent, v. JOHN A. ROWLAND and Others, Assessors, etc., Appellants.
    Assessors— their decision is conclusive if they home jurisdiction.

    Where the assessors of a town place the name of a resident thereof upon the list of those to be taxed for dogs, and there is evidence tending to show that he “harbored” the dog, their decision, though erroneous, cannot be attacked collaterally, and no action will lie against them by the person who is compelled to pay the tax although he did not in fact harbor the dog.
    Appeal from a judgment of the County Court of Suffolk county, affirming a justice’s judgment in favor of the plaintiff.
    The action was brought against the defendants, as assessors, to recover the amount of a tax imposed upon the plaintiff for a dog, which tax the collector had collected under a levy made upon plaintiff’s goods.

      B. K. Payne, for the appellants.

      JVathcm D. Petty, for the respondent.
   Gilbert, J.:

I think the county judge erred in treating the judgment of the justice of the peace as conclusive upon the question whether the plaintiff harbored the dog. It was his duty to review the evidence and determine whether the conclusion of the justice upon that question of fact was in accordance therewith. It was a question respecting the conclusion to be drawn from the evidence, rather than one arising upon conflicting testimony. (Wait’s L. and P., 887, et seq.). In Burnham v. Butler (31 N. Y., 480) nothing is decided which is opposed to the general rule here stated.

It is certainly a serious question whether the plaintiff did not harbor the dog. The law which imposes a tax upon dogs (Laws 1862, chap. 244; Laws 1875, chap. 482, § 14), is founded upon the idea that they are in one sense public enemies on account of their propensity to kill sheep. Hence the statutes referred to plainly indicate that the object of the tax is the indemnification of persons whose sheep have been killed or injured by dogs. Non-payment of the tax within five days after demand thereof imposes upon the collector the duty of killing the dog, and renders such killing by any person lawful. Such being the object of the statute the term “ harbor ” must be construed accordingly. One who affords shelter or protection to a dog, whether temporarily or permanently, harbors him within the meaning of the statutes cited. (Jones v. Van Zandt, 5 How. [U. S.], 215.) It appears that the plaintiff’s son lived in the same house with his father; that the dog in question belonged to the son’s father-in-law, Mr. Benjamin, and according to a preponderance of evidence, that the dog was in the habit of coming to the house of the plaintiff, and staying one or two weeks at a time, about the period when the assessors were making up their rolls; that he was in the habit of following the plaintiff when riding in his wagon, and that he was seen at different times in and about the plaintiff’s premises. There is no affirmative evidence that the plaintiff either fed the dog or in any way encouraged his remaining upon his premises, nor is there any evidence that he did any act to expel him therefrom. The evidence is certainly sufficient to show that whenever the dog was on his premises, it was with the plaintiff’s permission. That we think is sufficient to constitute a harboring of the dog within the meaning of the, statutes cited. But it is undisputed that the plaintiff is a resident of the town of Riverhead, and that during the period when the defendants were engaged in making up their assessment rolls, the dog was either at the plaintiff’s or at one Worthington’s in said town. Either Worthington or the plaintiff was liable to be taxed for the dog. The defendants in making the assessment acted judicially. They had jurisdiction both of the subject-matter assessed and of the person of the plaintiff. In determining that the plaintiff harbored the dog, they acted within the limits of the jurisdiction conferred upon them, and are not liable for an erroneous determination of that question.

The law affords to assessors, while acting within the scope of their jurisdiction, the same protection against liability to private parties for the erroneous exercise of their functions, as it affords to other judicial officers. Such protection is necessary to insure a free and unembarrassed performance of the duties of the assessors, unrestrained by any apprehension of personal consequences which may result from a mere error of judgment. (Cooley on Taxation, 550; Easton v. Calendar, 11 Wend., 90; Weaver v. Devendorf., 3 Denio, 117; Barhyte v. Shepherd, 35 N. Y., 238; Williams v. Weaver, 75 id., 30; Bell v. Pierce, 51 id., 12.) The case of National Bank of Chemung v. The City of Elmira (53 N. Y., 53), and, other kindred cases merely decide that assessors cannot acquire jurisdiction by an erroneous decision that the fact upon which their jurisdiction depends exists. Those cases are not applicable to this case, for the jurisdiction of the assessors to tax the dog, he being in the town of Biverhead, was expressly conferred by statute. The plaintifE was a resident of that town. That fact gave them jurisdiction of his person. The evidence that he harbored the dog, although it may have been insufficient to prove the fact of such haboring conclusively, was sufficient to call for the exercise of the judgment of the assessors upon that question, and however erroneous their determination may have been, it cannot be assailed collaterally, much less can it furnish ground for a private action against them.

The distinction is between an erroneous and an illegal assessment. The former is when the officers have power to act, but err in the exercise of the power; the latter where they have no power to act at all.” (53 N. Y., supra.)

The judgment of the County Court and that of the justice of the peace must be reversed, with costs.

BarNArd, P. J., and Dtxman, J., concurred.

Judgment of. County Court and of the justice reversed, with costs.


author: GILBERT, J.:

text:
    ROBERT F. WHITE, Respondent, v. ISAAC M. TWITCHINGS, Appellant.

      Broker — Tie cannot recover commissions unless he-^was the procuring cause of the sale.

    The plaintiff, a broker, who was employed to sell a house for the defendant, procured an offer of' $5,000 which he advised the defendant not to accept. Subsequently the defendant himself negotiated a sale at an advanced price to the same person who had made the first offer.

      Held, that the plaintiff was not entitled to recover his commissions upon the sale.
    Appeal by the defendant from a judgment, entered on the report of a referee.

      The plaintiff, a real estate broker, brought this action to recover the amount of his commissions for effecting the sale of a house and lot belonging to defendant.
    The property was placed in plaintiff’s hands for sale some two years prior to the sale. Qn the 7th day of April, 1879, the plaintiff informed the defendant that a Mrs. Ferris would buy the house at $5,000. This offer was declined. On the twenty-third or twenty-fourth day of May the defendant closed the bargain with Mrs. Ferris for $5,300.

      John II. Clayton, for the appellant.

      Caleb Griffin, for the respondent.
   GILBERT, J.:

Neither the facts found by the referee nor the evidence is sufficient to sustain the judgment in this case. The employment of the plaintiff as a broker is conceded. That employment was to effect the sale of a house and lot of the defendant. He procured an offer of $5,000 for the property which he advised the defendant not to accept. Subsequently the defendant himself negotiated a sale at an advanced price to the same person who made the offer. For such service, however meritorious, a broker is not entitled to recover. In Sibbald v. Bethlehem Iron Company (83 N. Y., 378) the Court of Appeals held that a broker is not entitled to commissions for unsuccessful efforts, even though after the failure and termination of his agency what he has done proves of use and benefit to his principal. The principal violates no right of the broker by afterwards selling to the first parties asked, even though it be the party with whom the broker was negotiating.

In Wylie v. Marine National Bank (61 N. Y., 415) it was held that when the broker opens negotiations, and failing to bring the customer to the specific terms abandons them and the employer subsequently sells to the same person at the price fixed, he is not liable to the broker for his commissions. It has been repeatedly held in cases of this kind that to entitle a broker to his commissions he must prove that he was the procuring cause of the identical contract of sale.

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

BarNard, P. J., and DyKman-, J., concurred.

Judgment of County Court reversed and new trial granted, costs to abide event; order of reference vacated.


author: GILBERT, J. :

text:
    MARY BAUMAN, Respondent, v. LUDWIG HOLZHAUSEN, Appellant.

      Statute offrcmds — when an oral agrément for the purchase of la/nd is raid.

    On the morning before a sale was made of certain real estate, under a decree of foreclosure entered in an action to which the plaintiff in this action was a party defendant (though it was not shown that she had any interest in or lien upon the premises) the plaintiff and defendant in this action entered into a verbal agreement by which the defendant agreed to buy the property at the sale and thereafter sell and convey the same to the plaintiff at a price named.
    The defendant having bought the premises and refused to convey them to the plaintiff,,the latter brought an action for specific performance.

      Held, that the agreement was void under the statute of frauds, and that the action could not be maintained.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.

      John H. Clayton, for the appellant.

      J. L. Ovei'encl, for the respondent.
   GILBERT, J. :

The object of this action is to compel the performance of a parol contract for the sale of lands. Both parties testified on the trial respecting the terms of the contract. The premises were advertised to be sold under a judgment of foreclosure. The' complaint contains an averment that the plaintiff “ was a party defendant in the foreclosure suit, for the purpose of cutting off her rights, interests and lien in and on said premises.” But no evidence was given that

sbe had any interest in, or lien upon the premises, nor was the existence of any such interest or lien found by the trial court. The plaintiff testified that the morning before the sale, the defendant, in a verbal conversation, promised her as follows: “ I will buy the house, deed it to you, and take a mortgage on it, for a hundred dollars.” The defendant testified that the plaintiff said, “ you buy the property, and sell it to me in four weeks, and I will give you your money, and a hundred dollars profit for your trouble, and pay the costs,” and that he promised to do so. Taking either version, the contract was one for the sale of lands, and not being in writing, it was within the statute of frauds, and void. (2 B. S., 134, 135, §§ 6, 8.) It does not aid the plaintiff to call the transaction an employment of the defendant's her agent to make the purchase for her. Sugden states the rule that in such a case if the agent buys for himself and denies the trust, and no part of the purchase money is paid by the principal, he cannot compel the agent to convey to him, as that would be directly in the teeth of the statute of frauds. (Sug. Y. •& P., ch. 21, § 2, ¶ 12.) Chancellor Keítt held the same doctrine in Botsford v. Burr (2 Johns. Ch., 405), which was decided in 1817. The rule has often been affirmed, and still remains unshaken. In no case can a trust arise by implication of law where one had undertaken by parol to purchase for another, but purchased for himself, unless the supposed cestui que trust paid the consideration of the purchase, or some part thereof, or there had been a part performance of the parol agreement. (Steere v. Steere, 5 Johns. Ch., 1, 19 ; Story’s Eq. Jur., § 1201 a; Lathrop v. Hoyt, 7 Barb., 59; Levy v. Brush, 45 N. Y., 589; Wheeler v. Reynolds, 66 id., 227.) It is no doubt a principle- of equity that a man can not become the purchaser of lands for himself, where he has a duty to perform which is inconsistent with the character of purchaser. But that principle is not applicable to this case, because: 1. The parol agreement being void, was ineffectual for any purpose. It neither imposed a duty nor created an obligation in law or in equity. 2. By the terms of the parol agreement the defendant was to become the nominal purchaser. That is a necessary conclusion from the testimony and from the nature of the transaction. Eor it cannot be supposed that the defendant consented that the property should be conveyed to the plaintiff before the payment by her of tbe consideration therefor. There are cases also .in which persons, in positions similar to that of the defendant, have been made trustees ex malifieio of property which they had purchased at judicial sales pursuant to parol agreements with the owner thereof to buy the same for his benefit. Such are the cases of Brown v. Lynch (1 Paige, 147), and Ryan v. Dox (34 N. Y., 307), and kindred cases. But in all those cases the parol agreement was taken out of the statute of frauds to prevent the accomplishment of a fraud, whereby the owner of the property would be deprived of a valuable interest therein, which it was the object of the parol agreement to protect. The cases also rest partly upon the rule that the specific performance of contracts will be enforced in cases of part performance thereof. That 'rule forms a qualification of the statute of frauds. (2 B. S., 135, § 10.) “But no case can be found,” says Grover, J., in Levy v. Brush (supra), “ where a contract has been taken out of the statute in favor of a party who had no existing interest in the property, who had done no act of part performance, who had parted with nothing under the contract, simply upon the ground that the other party was guilty of a fraud in refusing to-perform his verbal agreement.” These remarks are strictly pertinent to the facts of this case. The plaintiff has parted with nothing, nor has she done any act of part performance. The defendant’s refusal to perform his parol agreement constitutes no fraud upon her, for the reason that the agreement, being void, conferred no rights upon her and imposed no duty on the defendant. Neither a court of law or equity can redress the moral wrong (if any) of the defendant’s conduct.

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

BarNArd, P. J., and DykmaN, J., concurred.

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


text:
    FRANCIS SWIFT, Respondent, v. THE STATE OF NEW YORK, APPELLANT.

      Contract — consVt'uction of the clause establishing the pnce to be paid — Might of the State board of audit to allow a claim which the State is morally bound to pay — when such an allowance is not an “extra compensation" — Const, art. 3, sec. 34 — Evidence — when a certified copy of the report of a State officer to the assembly is admissible.

    The plaintiff having submitted to the defendant proposals to furnish the materials and perform the labor required to erect a structure in New York harbor, at specific prices for specific quantities of the various kinds of materials and work to be furnished and performed, thereafter entered into a contract with the defendant whereby he agreed to erect the said structure for “the sum of two hundred and fifty-two thousand four hundred and ninety-one dollars and sixty-eight cents, being the aggregate cost of the construction of said exterior walls and foundation, at the prices specified in said proposals.” The plaintiff ■completed the work and thereafter, claiming that the cost of the materials and labor furnished and performed at the prices specified in his proposals largely exceeded the contract price, applied to the Assembly and procured the passage of a resolution requiring the State engineer to make a survey and estimate of the materials used, and report the same to it. The engineer reported that the cost of the said work and materials at the prices specified exceeded the contract price by $39,375.13.
    The plaintiff having presented - his claim to‘the State board of audit, created by chapter 444 of 1876, and the board having audited his claim at the said sum of $39,375.13, this appeal was taken by the attorney-general, as authorized by the amendatory act, chapter 311, of 1881.

      Held, that the statement of the aggregate cost of the work in the contract was only intended as an estimate, and did not conclude either party as to what the actual cost would be, it being intended to pay the specified prices for such materials and labor as should be actually furnished and performed.
    That irrespective of the legal rights of the parties to the contract, the State was morally bound to compensate the plaintiff for the work done and materials furnished by him, and that the making of such compensation to him was not the granting of an “ extra compensation ” within the meaning of that term, as used in section 34 of article 3 of the Constitution.
    That a copy of the report of the engineer to the Assembly, certified by the clerk of the Assembly, was properly received by the State board of audit, and was pi'ima facie evidence of the quantity of work done and materials furnished.
    That the audit by the board should be affirmed.
    Appeal from a decision of the State board of audit, awarding to the respondent Francis Swift the sum of $39,375.12.

      The claim on which this award was made was for extra work and materials alleged to have been done and furnished by respondent in the erection of a structure, being an exterior wall and foundation, for quarantine purposes, on the west bank in the lower bay of New York, under a contract made in pursuance of chapter 751, Laws of 1866, entitled “An act in relation to quarantine in the port of New York, and providing for the construction of the permanent quarantine establishment.”
    The contract was made August 19, 1868, upon proposals submitted by Swift. He was to be paid “ the sum of two hundred and fifty-two thousand four hundred and ninety-one dollars and sixty-eight cents, being the aggregate cost of the construction of said exterior wall and foundation, at the prices specified in said proposals.”
    On the 7th day of May, 1872, a resolution was procured to be passed by the assembly in the following words:
    “Mesol/oed, That the State engineer and surveyor be and he is hereby required to make a survey and estimate of the number of cubic yards of crib-work, stone, sand and other materials built, filled in, and furnished in the construction of Quarantine Island No. 2, in the lower bay of New York, under contract of August 10, 1868, between the Quarantine Contracting Board and Francis Swift, and report the same to the assembly.”
    In October, 1872, the deputy state engineer and surveyor went, down to the island and commenced the work of making a measurement and continued the work, from time to time, for some six weeks.
    The State engineer made up a report to the assembly, dated May 8, 1873, making the whole amount of work and material, at the detailed prices specified in the contract, amount to $304,218.57, or $39,375.12 in excess of the amount paid by the comptroller for the whole work, including extra work and materials.
    In May, 1875, a concurrent resolution was passed in the following words:

      “JSesoTved, (If the assembly concur), That the comptroller, State engineer and surveyor and the attorney-general, be appointed a board to examine into said claim, with instructions to report to the next legislature.”
    It does not appear that said board ever took any action under said resolution.

      After March 1st, 1878, this claim was filed with the State board of audit.

      W. B. Buggies, deputy attorney-general, for the appellant.

      W. N. DyJcman, for the respondent.
   GILBERT, J.:

The claim of Swift is not one for extra compensation, but is limited to the actual liability of the State for work and materials furnished by him pursuant to his contract. The basis of that contract was the proposal of Swift to do the work and furnish the materials at specified prices per cubic yard for one class of work, per running foot for another class, per square 100 feet for another class, etc. That proposal was duly accepted on behalf of the State. Presumably the contract was intended to be in all respects conformable to such proposal. Indeed, such proposal was in terms made a part of the contract. The contract also contains a stipulation on behalf of the State to pay to Swift the aggregate cost of the work and materials therein referred to at the prices specified in said proposal, and the amount thereof is stated at $252,491.68, whereas Swift claims and the board of audit decided that the true amount of such cost is $304,218.57. The statement of the aggregate, cost of the ■work in the contract could hare.been nothing more than an estimate beforehand, and it did not therefore conclude either party as to the actual amount of such aggregate cost. The State did not become bound to pay any sum in excess of the amount of work actually done and the quantity of materials actually furnished, nor could it discharge its obligation under the contract by the payment of a less sum. But, irrespective of the strict rights of the parties to the contract, in law or equity there can be no doubt that the State is morally bound to compensate Swift for all the work done and materials furnished by him. The making of such compensation in the mode pursued, is not the “ granting of any extra compensation ” within the meaning of the inhibition contained in section 24 of article 3 of the Constitution. That provision was intended to prohibit gifts of public moneys by the legislature. We think it was not intended to take away the power of appropriating money for the payment of claims against the State which upon an audit thereof had been ascertained to be just, although the claimant might have become disentitled, as a matter of strict right, to enforce his claim. On the contrary, we are of opinion that ample authority for the latter kind of appropriation is contained in section 19 of the same article. Taking these two sections together we think that it is quite plain that the legislature has plenary power to authorize and regulate by law the auditing of private claims of every description, and to provide means for the payment of such as shall have been audited according to law. Where the claim is one for extra compensation the legislature has no power to impart validity to it by a grant, or to satisfy it except by an appropriation of money, after the claim has been audited according to law. The distinction is between an arbitrary grant of public money and the appropriation thereof to the discharge of an established claim. Instances are constantly occurring where structures have been swept away by fire and storm, or the cost of them has been ruinously increased by a sudden inflation of prices consequent upon events which occurred after they had been begun. The sharing of such losses by employers with contractors is not infrequently done by privare persons. It cannot be deemed incompatible with public duty. We think it was not the intention of the. people in adopting the provisions referred to that the State should be shorn of the power of exercising the same liberality through its representatives under the safeguard of an audit.

We have not discovered any sufficient reasons for disturbing the conclusions of the board of audit. The report of the State engineer and surveyor shows with reasonable certainty that Swift had done work and furnished materials largely in excess of the quantity for which he had been paid. The accuracy of the report and the good faith with which it was made is satisfactorily proved by the verbal testimony of Cooper and Haswell, both of whom assisted in ascertaining the data from which the report was made. All of them were agents of the State, and they appear to have been governed by a desire to protect its interests.

That such report was prima facie evidence in favor of Swift we think admits of no doubt. (Code Civil Pro., § 933; 1 Greenl. Ev., § 483; Laws 1859, chap. 321, § 6.) It embodied the result of-surveys, measurements and estimates ordered in the first instance by a resolution of one branch of the legislature, which action was subsequently recognized and ratified by a concurrent resolution of both branches. The facts on which the board of audit made their decision were .obtained in the only practicable way. The case affords no means of determining that such decision is erroneous.

The award must therefore be affirmed, with costs.

Barnard, P. J., concurred; Dykman, J., not sitting.

Award by the State board of audit affirmed, with costs.


author: Barnard, P. J.: Dykman, J.

text:
    THE CITY OF BROOKLYN, RESPONDENT, v. FREDERICK J. NODINE, APPELLANT.

      Common council — power of, to regulate- and license business —it cannot pass a revenue measure under disguise of a regulation.

    The charter of the city of Brooklyn authorizes the common council “to regulate and license * * * vehicles of every description used on the public streets in the conduct and carrying on of any business, except that of physicians, established and transacted in said city, provided that the license fee charged for any one vehicle shall not exceed three dollars per year.” An ordinance was passed providing that licenses should be granted by the mayor, to such persons as he might deem proper, to carry on the business or trade, or to act in the capacity of “coachmen, porters, owners and drivers of hacks, * * * and all other vehicles used upon the public streets in the conduct of any business (except that of physicians), * * * provided the licenses shall be granted to no person other than citizens of the United States.” It provided that on issuing licenses specified sums should be charged and paid, among others: “For each vehicle drawn by two horses, three dollars; to each vehicle drawn by one horse, one dollar.”
    In an action against the defendant, a livery stable keeper, to recover license fees alleged to be due upon vehicles owned and used by him in his business:

      Held, that the ordinance was too broad as it included as'well vehicles used for pleasure as for business.
    That it was objectionable because it authorized the mayor to license, a power which should have been exercised by the common council.
    That it was not an attempt to “regulate and license,” but an attempt to raise a revenue by taxation.
    That it was void. (Dykman, J., dissenting.)

      Qutm'e, as to the validity of the clause prohibiting the issue of licenses to aliens.

      Appeal from a judgment, entered upon an order overruling a demurrer, interposed on tbe ground that the complaint did not state facts sufficient, to constitute a cause of action.
    The action was brought by the City of Brooklyn to recover license fees alleged to be due from the defendant upon twenty vehicles owned and used by him in his business of keeping a livery stable, and which on demand he refused to pay.
    On the 16th day of June, 1880, the legislature so amended the city charter as to permit the common council “to regulate and license common carriers, carriers of passengers, criers, hawkers, peddlers, pawnbrokers, junk dealers, public cartmen, truckmen, hackmen, cabmen, expressmen, dealers in coal, fire-wood, hay and straw, meat shops, fishmongers, auctioneers, undertakers, intelligence offices, exhibitions, menageries, circuses, common shows and dogs, real estate, steamboat, railroad, insurance and ticket agents, billiard saloons, bowling alleys and shooting galleries; also vehicles of every description used on the public streets in the conduct and carrying on of any business, except that of physicians, established and transacted in said city, provided that the license fee charged for any one vehicle shall not exceed three dollars per year. The common council- shall also fix an annual license fee, not exceeding the sum of twenty dollars, for each street or horse car daily operated and used in said city.” (Laws of 1880, chap. 564.) Thereupon the common council passed an ordinance which contained among others the following provisions:
    SeotioN 1. Licenses shall be granted by the mayor from time to time, to such persons as he may deem proper, to carry on the business or trade, or to act in the capacity of coachmen, porters, owners .and drivers of hacks, trucks, cabs, omnibuses, stages, railroad cars^ and all other vehiclés used upon the public streets in the conduct of any business (except that of physicians), * * * provided that licenses shall be granted to no person other than citizens of the United States, x * * x *
    Sec. 3. There shall be charged and paid to the city clerk (except in the case of railroad cars, whose payment shall be made to the city treasurer) for the use of the city, on issuing the said licenses by the parties to whom they may be granted, the following sums: * * * * 1 * .

      For each driver of a hackney coach, cab or omnibus, other than the person licensed to keep the same, one dollar.
    For each vehicle drawn by two horses, three dollars.
    For each vehicle drawn by one horse, one dollar.

      William Q. Cooke, for the appellant.

      William C. De Witt, for the respondent.
   Barnard, P. J.:

The ordinances in question are not warranted by the power granted by the legislature. The power given is “ to regulate and license ” * * vehicles of every description used on the public

streets in the conduct and carrying on of any business except that of physicians, established and transacted in said city.” The defendant is a livery stable keeper and his business is not required to be licensed. The ordinance authorizes the mayor to grant licenses for certain classes of business providing that no license shall be granted to “ other than citizens of the United States.”

The ordinance then proceeds to establish a fee for the license in certain specified cases, among them, “For each vehicle drawn by two horses, three dollars. For each vehicle drawn by one horse, one dollar.” It is not against vehicles owned by any person doing business in Brooklyn, but against the owners of such vehicles simply as owners. It covers as well vehicles used for pleasure as for business, and this was beyond the legislative grant of power. Proof cannot be given to show that the defendant conducted a business which might be licensed. If the ordinance does not point out the defendant, of necessity, it is defective. The ordinance is also objectionable because it leaves a discretion to the mayor to license or not. It was for the common council to license or refuse.

The gravest objection to the ordinance is that it is not within the power granted, inasmuch as no attempt is made to “ regulate and license,” but to pass an extensive revenue measure under these words. There is no selection; certain businesses should be carefully guarded. In this ordinance all classes of business mentioned in it may be carried on by those who pay the tax or license therefor. Must a person be a citizen of the United States to be taxed for liis vehicle ? Can a license to use a vehicle be granted to one not a citizen ? Is the defendant a citizen ?' If he is not a citizen must he pay a tax on vehicles which he is not permitted to use and cannot be licensed to use ? Where is the legislative warrant for city legislation against those who are not citizens in so many forms of human labor ?

These are questions which might be considered, but it is not necessary to discuss them. The power to.regiilate and license does not carry the power to tax, which is the only end of. this ordinance. It is competent for the legislature to give the city of Brooklyn power to tax vehicles or other personal property. The' law under which this ordinance was passed, does not give such power.

The judgment overruling the demurrer should, therefore, be reversed, and an order be granted that the demurrer be sustained, with leave to plaintiff to amend in twenty days on payment of costs.

Gilbert, J., concurred, except as to exclusion of aliens.

Dykman, J.

(dissenting):

Chapter 561 of the Laws of 1880, amends the charter of the city of Brooklyn. The part material to this controversy empowers the city “to regulate and license * * * vehicles of every description used on the public streets in the conduct and carrying on of any business * * * established and transacted in said city, provided that the license fee charged for any one vehicle shall not exceed three dollars per year.”

The complaint alleges that the defendant carries on business as a r livery-stable keeper, and lets single and double carriages to be used in the public streets of Brooklyn, and therefore that he is liable to exactions called license fees fixed by the common council pursuant to the act quoted.

The complaint was demurred to, the demurrer overruled, and this appeal is from the judgment in plaintiff’s favor.

The defendant urges that what this act calls a license fee is in reality a tax.

It is further argued that a tax cannot be imposed in the guise of a license fee under the police power “ to regulate and license,” and lastly that the tax is unconstitutional. '

If we were disposed to take a narrow view of this controversy,, it would suffice to say that it does not affirmatively appear on the-face of the complaint that the amount of the fees in question go beyond police expenses, and must result in revenue.

We presume, however, that this is a tax imposed for revenue-under guise of license fees. That it is the imposition of a duty on sums of money for the purpose of revenue. And still we are constrained to decide that there is no constitutional restraint upon the-power of the legislature; that the legislature has implied this intent to confer power upon the city of Brooklyn to tax under guise of licensing, and that the defendant is within the scope of the power conferred. Judge Dillon in his valuable work on municipal corporations, after making reference to adjudicated cases on the subject, appends this note: “ These cases show some diversity of opinion as to the right to tax particular employments as distinguished from property, but the correct view, it is submitted!, is this : Unless specially restrained by the constitution, the legislature may provide for the taxing of any occupation or trade, and may confer tliis power upon municipal corporations. But such taxes are apt to-be inequitable, and the principle not free from danger of great abuseITenee ordinances of this character ought not to be sustained, unless the authority be expressly or otherwise unequivocally conferred.” (Dillon on Mun. Corp. [2d ed.], note, p. 392.)

It was proposed in the constitutional convention of 1846 to make taxation uniform. (Debates Convention of 1846 [Atlas ed.], 104, 289.) ' But nothing came of the attempt, and to-day our constitution places no limit upon the power of the legislature to tax. (The People v. The Mayor of Brooklyn, 4 N. Y., 427.)

It results that the legislature of this State has power to tax vehicles, or any employment in which'they are used.

This view in no way conflicts with The Mayor v. Second Avenue Railroad Company (32 N. Y., 274). In that case the tax was imposed under a general power to “ regulate and license.” It was rightly decided this did not authorize a tax for revenue. (Cincinnati v. Bryson, 15 Ohio, 625.) These decisions went upon the theory that the legislature had not authorized a tax. No question was made of its power.

The power of the legislature to tax any trade or employment being perfect, the remaining question relates to the manner of its exercise, and in this case whether the tax can be covered with the guise of a license fee.

We think the legislature intended to empower the city of Brooklyn to collect revenue, by taxation of the several trades enumerated in the act. It certainly knew that each vehicle might be obliged to pay three dollars, for it fixed that amount as the limit. If such an exaction be a tax, it had in mind a tax. Other parts of this act, especially the exaction from each railroad car, beyond question, was intended to furnish revenue, and the doctrine noneitur a sooiis has especial application here.

“ The power to license and regulate particular branches of business or matters is usually a police power; but when license fees or exactions are plainly imposed for the sole or main purpose of revenue, they are in effect taxes.”

Ordinarily the mere power to license or to subject to police regulations does not give the power to tax distinctly for revenue purposes, hut it may give the power when such appears from the nature of the subject-matter, or upon the whole charter or enactment to have been the legislative intent, but not otherwise.” (Dillon on Mun. Corp., § 609.)

We think it was the legislative intent to impose a sum not to exceed three dollars upon every vehicle used in business on the streets of Brooklyn.

The inevitable result would be revenue, and we are constrained to hold that revenue was the legislative intent.

It may be true that the defendant is not within the class of hack-men and cabmen. These, especially for purposes of license and police regulation, are defined to be those who occupy stands in the public street and solicit custom. But the defendant does use vehicles “ on the public streets in the conduct and carrying on of his business.” All such are within the express terms of the act.

The judgment should be affirmed, without costs.

Judgment reversed, without costs.


author: Barnard, P. J.: Dykman, J.:

text:
    CATHARINE L. PHIPPS, Respondent, v. THOMAS D. CARMAN, Appellant.

      Costs of a motion — what are— Code of Civil Procedure, sec. 779.
    The costs and disbursements of an appeal to the General Term, from an order made at a Special Term, are “ costs of a motion ” within the meaning of these words as used in section 779 of the Code of Civil Procedure, and a failure to pay them stays all proceedings on the part of the party in default.
    Appeal from that part of an order made at a Special Term refusing to set aside an inquest, -which imposed as a condition that the appellant pay ten dollars costs of the motion and thirty dollars trial fee.
    The defendant claimed that the inquest was irregular, because at the time it was taken all proceedings on the part of the plaintiff were stayed by her failure to pay the costs and disbursements granted by an order of the General Term upon affirming on appeal an order made at a Special Term.

      D. P. Barnard, for the appellant.

      George P. Avery, for the respondent.
   Barnard, P. J.:

A direction of a court not contained in a judgment is an order. (Code, § 767.) An application for an order is a motion. (Code, § 768.) The order of the General Term upon appeal from an order comes within these sections, and therefore falls within section 779, which stays all proceedings when “ costs of a motion ” are given until “ the payment thereof.”

The application for the direction of the General Terms, which is subsequently and after argument embodied in the order affirming or reversing the subject of the appeal, is a motion. This conclusion is in harmony with the principle enacted in section 779. That section was designed to prevent motions, unless meritorious and well founded, from being made. Irresponsible parties could and did make great trouble and annoyance by speculative and frivolous motions, and it was deemed wise by the legislature to enact that unpaid motion costs should work a stay. There is no reason why costs of an appeal from an order should be made an exception. Such a construction would not reach the annoyance. An appeal from an order may be made without payment of the costs of the order appealed from. If, after a hearing at General Term, those costs are not to be held within the section, appeals may be taken from orders without due consideration, and possibly for mere annoyance.

The rule as to costs upon a motion is applied by the Code (sec. 3233) to interlocutory costs upon an issue of law the same as if they were costs of a motion.” This enlarges the scope of section 779, as originally passed.

Section 3239 has no relevancy to the question. It becomes a question under the wording of the old Code, whether when there was an appeal from a judgment and also from an order granting or refusing a new trial, the successful party could have double costs or costs of two appeals. This section was passed to settle that question.

The order should be modified by striking out the part of the ' order appealed from, without costs of .the appeal.

Dykman, J.:

An order was made at Special Term in this action, that the report of the referee be taken from the files of the court, and all proceedings in the action subsequent to the filing of the report be set aside for irregularity, and that the plaintiff pay 'to the defendant ten dollars costs of the motion. On appeal the order was affirmed with ten dollars costs and the disbursements on appeal, and the disbursements were adjusted at twelve dollars and seventy-eight cents. The ten dollars costs were paid, but the disbursements have not been paid.

The plaintiff’s attorney noticed the cause for trial at the circuit and took an inquest, though his notice of trial was returned, and the defendant’s attorney served no notice of trial. Now a motion to set aside the inquest on the ground of- such irregularity has been granted on payment by the defendant to the plaintiff of a trial fee. and ten dollars costs of the motion. From this latter part of the order there is an appeal. There is no written opinion, but it seems to be understood that the decision was made on the theory that 'the costs of tbe appeal to the General Term are not costs of a motion within the meaning of section 779 of the Code of Civil Procedure.-

This seems to be a narrow view of the law. ' It was intended to prevent an onward movement in an action by a party who owed costs of a motion, and certainly the reason and spirit of the law includes all costs of a motion in any of its stages. This motion went to the General Term on appeal. There it was in the category of motions, and no more than ten dollars could be allowed as costs besides the disbursements. It was there really and in fact a continuation of the motion in the same court on appeal.

Our view is that the costs and disbursements on appeal from an order from the Special Term to the General Term of the Supreme Court, are within the spirit of the law and the mischief it was intended to prevent.

The portion of the order appealed from should be reversed, without costs.

Present — Barnard, P. J., and Dykman, J.; Gilbert, J., not sitting.

Part of order appealed from reversed, without costs of this appeal.


author: Dykman, J.:

text:
    JAMES BIGLER, Respondent, v. THE NATIONAL BANK OF NEWBURGH, Appellant.

      General assignment — the rights of the assignee axe not affeeted by the subsequent banTm'wptey of the debtor — when machinery in a mill becomes a fixture.

    Where a debtor has without any intent to defraud his creditors made a general assignment of all his property for their benefit, the rights of the assignee to the property so received are not affected by the subsequent bankruptcy of the debtor, and his discharge under a composition with his creditors made as provided in the bankrupt act.
    Where the owner of a steam planing and saw mill places machinery in the buildings, to be used therein, and tlie same is either annexed to the realty or to something appurtenant thereto, the machinery becomes a fixture. Such machinery passes to a purchaser at a sale had upon the foreclosure of a mortgage upon the property, where such mortgage by its terms covers “all buildings and improvements thereon situate and being.”

      Appeal from a judgment in favor of the plaintiff, entered upon .the trial of this action by the court without a jury.

      E. A. Brewster, for the appellant.

      F. A. Ward and Theodore F. Miller, for the respondent.
   Dykman, J.:

The plaintiff was the owner of a steam sawing and planing mill, and the land on which it was erected, and all the machinery used within it. On the 23d day of January, 1871, he executed and delivered to the Mutual Life Insurance Company of New Yoi’k, a mortgage on the property to secure the payment of $100,000. To the description of the property-in this mortgage were added these words : “Also all buildings and improvements thereon situate and being.” After this, and while yet the plaintiff was the owner m 1871, the mill and the machinery were entirely destroyed by fire, and immediately the mill was rebuilt and the machinery replaced by the plaintiff. The mortgage of the insurance company was foreclosed, and at the sale under the judgment the defendant became the purchaser of the property in March, 1879, and received a deed and went into possession thereunder.

On the 30th day of November, 1874, the plaintiff executed and delivered to David Moore & Co., a mortgage on this same property with other land, to secure the payment of $100,000, which was assigned to the defendant April 4,1878, and is now held and owned by the defendant and the Highland National Bank.

On the 23d day of March, 1878, the plaintiff being the owner of the property, including the machinery in Question here, executed and delivered to William O. Mailler, a general assignment of his property, real and personal, in trust for the payment of his debts, and the assignee in writing accepted the trust.

The assignment was recorded, but the assignee failed to give any bond as required by the statute. On the 30th day of March, 1878, the plaintiff was adjudicated a bankrupt, and the United States marshal thereupon took possession of all the property, including this machinery. After that, and in June, 1878, the plaintiff made a composition with his creditors under the bankruptcy act, but the defendant never surrendered its securities, and never proved its debt in tbe bankruptcy proceeding, and never accepted the composition.

Now the plaintiff claims that lie is yet the owner of the machinery mentioned, and this action is brought for its recovery. The action is prosecuted on the theory that the title to all the property in question passed to and became vested in "William O. hfailler, the general assignee, in trust for the creditors of the plaintiff under the general assignment, but that after the same was taken by the United States marshal in bankruptcy, and the recording of the bankrupt’s composition with creditors, the title thereto became reinvested in the plaintiff. The last proposition is found as a conclusion of law by the trial court, and to it there is an exception.

We will examine it here.

There is no claim that the general assignment for the benefit of creditors was fraudulent or void, or that it was made or intended to hinder, delay or defraud creditors,, or to evade any of the provisions of the bankruptcy act, and a general assignment like this, without fraudulent intent, is not violative of the bankruptcy law, unless the assignor contemplated insolvency when he committed the act, and the assignee knew or had reasonable grounds to believe that such was the ease. Both must concur. Two things must concur to bring an assignment within the prohibition of the bankrupt act, viz.: the fraudulent design of the bankrupt, and the knowledge of it on the part of the assignee. (Tiffany v. Lucas, 15 Wall, 410.) An equal distribution of the estate is all the bankrupt law requires, and on that theory rests its very foundation. If an assignment be executed without intent to perpetrate fraud or contravene the bankrupt law, it is not prohibited thereby. (Haas v. O’Brien, 66 N. Y., 597.) This assignment was therefore valid, and did not fall under the condemnation of the bankrupt law. Any presumption that might arise under the bankrupt law, that this assignment was prima facie fraudulent, is rebutted by the fact that it was .made in good faith and without intent to defeat that law. It follows therefore that no assignee in bankruptcy could have recovered this property or the value of it from William 0. Mailler, the general assignee. At all events the assignment was sufficient to carry the title of the property out of the plaintiff, and as there were no proceedings for its recovery, sale or distribution, under the bankrupt law, the title continued in Mailler, notwithstanding his failure to execute a bond. (Brennan v. Willson, 71 N. Y., 505; Thrasher v. Bentley, 59 id., 649.)

It may be that the plaintiff has become exempt from personal liability by the proceedings in bankruptcy, but the trust created by the assignment to Mailler is yet outstanding and the court may appoint another trustee on his refusal to act. (Laws 1877, chap. 466, § 6.) The result is that the plaintiff has no interest in the property and cannot maintain this action.

Besides this our view is that the engine and its connections, and all the other machines and property in question, were fixtures to the freehold and passed to the defendant by the purchase at the foreclosure sale. The machines were either actually annexed to the reality or to something appurtenant thereto, or were adapted to the use for which the building was constructed and to which it was appropriated; and as the plaintiff placed all this inachinery in the places now occupied by it when he owned the building, and had no view except to continue its use therein, it must be assumed that his intention in making the annexation was to make a permanent accession to the freehold for the purpose of continuing the work usually done in a steam sawing and planing mill. The question here is the same as bqtween vendor and vendee, and the purpose and intent of the annexation are most important considerations. (McRea v. Cent. Nat. Bank, 66 N. Y., 489.)

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

Barnard, P. J., and Gilbert', J., concurred.

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


author: Barnard, P. J.;

text:
    THOMPSON PINCKNEY, Respondent, v. ANDREW R. SMITH, Appellant.

      Surrogate — sale of real estate of a deceased person — service of the citation upon an infant — a special guardian cannot h& appointed until the infant has been served— the oi'der of sale is void if the infant has not leen served.

    Appeal from a judgment in favor of tlie plaintiff, entered upon the trial of this action by the court without a jury.
    This action was brought by the plaintiff to recover of the defendant, who is the administrator of the estate of Hiram R. Wood, deceased, the sum of $881.50 paid by the plaintiff to the said defendant as a part of the purchase-price of a house and lot in the city of Brooklyn sold by the defendant as such administrator, under an order •of the surrogate of the county of Otsego, to pay debts, on the ground that the proceedings before the surrogate were defective, and that he did not acquire jurisdiction of the person of the infant heir.
    The court at General Term said: “ The surrogate did not obtain jurisdiction of the person of the infant heir of Hiram R. Wood, whose lands were ordered sold,. The petition of the administrator was presented to the surrogate on the 2d day of March, 1880. The petition stated that Hiram R. Wood was the sole heir and was under fourteen years of age. The surrogate, upon this petition, made an order that all persons show cause against the petitioner on the 26th of April, 1880. This order vras duly published, but was not served on the infant. On the return day of this order the surrogate appointed Andrew R. Smith special guardian for the infant, and he admitted service of the citation ‘for said infant.’ The proof was then taken and the proceedings adjourned to the 10th of May, 1880. On the 26th of April, 1880, a copy of this order, returnable tbe 26th of April, 1880, was taken and the return day was erased, and the new adjourned day inserted and was then served upon the infant; no new order to show cause was entered or made. On the 10th of May, upon this proof of service and without any further proof of the facts showing a sale to be necessary, an order of sale was made. The infant, when the proof was taken against his inheritance, had not been served with process and had no legal guardian. The order served upon him was not in fact an order and it was too late to be of service. The object of the statute requirement of service upon the infant was such as to enable him to have some one appointed to defend Mm before any evidence should be taken. The giving him notice afterwards would not have that result. The order of sale did not give power to the administrator to divest the title of the infant and the judgment should be affirmed, with costs.”

      ■James A. Lynes, for the appellant.

      David Barnett, for the respondent.
   Opinion by

Barnard, P. J.;

Gilbert, J., concurred; Dykman, J., not sitting.

Judgment affirmed, with costs.


author: Gilbert, J.

text:
    ALMIRA B. COLEMAN, Respondent, v. THE MANHATTAN BEACH IMPROVEMENT COMPANY (Limited) and THE MARINE RAILWAY COMPANY, Appellants.

      Adverse possession —when a grant is not void because the land is then held adversely— the statute does not apply to a confirmatory deed given by an assignee in bankruptcy in order to correct errors in the description contained m a previous conveyance of the bankrupt.

    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    This was an action of ejectment to recover an undivided fifth part of the premises known as Pelican Beach. Both the plaintiff and the defendants claim title under one George Lott. He was the owner and in possession of the premises at the time of his death in 1835. The conveyance under which the plaintiff claims was made mme than twenty years prior to that under which the defendants claim. The former conveyance bears date September 11, 1855, and was made by Peter Lott and others, the widows and heirs-at-law of George Lott, deceased, to Cornelius Fornet. The grantors thereby remised, released and quit-claimed to said Fornet and to his heirs and assigns forever, all their right, title and interest in and to the Pelican Peach near Barren Island, town of Flatlands, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, etc., habendum to said Fornet, his heirs and assigns forever.
    Fornet conveyed the same premises to one Abraham B. Coleman, on the 23d of January, 1856, by the same description; and said Coleman, in July, 1856, conveyed to the plaintiff certain premises in Kings county, describing them as being the same premises that were conveyed to Abraham B. Coleman by the deed from Fornet, above named, but Pelican Beach is not otherwise described.
    Abraham B. Coleman was afterwards adjudged a bankrupt and John LI. Platt was appointed his assignee. In September, 1880, the plaintiff filed a petition in the United States District Court for the southern district of New York, alleging that she had purchased the premises in question from Abraham B. Coleman, and that a proper description of such premises had been omitted from the conveyance to her by mistake, and praying that said Platt, as assignee, might be directed to execute to her a deed for the purpose of correcting such mistake. After a hearing upon that petition the bankruptcy court made an order directing said Platt, as assignee, to convey to the said plaintiff all his right, title and interest as such assignee, in and to a certain piece or parcel of land known as Pelican Beach near Barren Island, in the town of Flatlands in the county of Kings, being a portion of the property that was conveyed by Fornet to Abraham B. Coleman, by the deed before mentioned, on the 13th of December, 1880. Platt as such assignee, for the purpose of correcting such alleged mistake and in obedience to the order of the bankrupt court, conveyed the premises in question by the description last aforesaid, to the plaintiffs.
    The court at General Term said : “ The only other question presented is whether the conveyance by the assignee in bankruptcy was void as having been made in contravention of the statute which provides that every grant of land shall'be absolutely void if at ihe time of the. delivery thereof such land shall be in the actual possession of the person claiming under a .title adverse to that of the grantor. (1 R. S., 739.) ¥e think it was not for two reasons : 1st. The title of the plaintiffs is not dependent upon' the conveyance from the assignee, that was merely confirmatory of a title which had been previously vested in her. 2d.' The title of the assignee was a merely nominal' or official one. He held it only as an officer of the bankruptcy court upon a trust for the payment of the debts of the bankrupt. The administration of that trust was at all times under the control of the bankruptcy court, and it was but a matter of common equity for that court to direct a conveyance for the purpose stated therein, viz., to correct a mistake in the conveyance which had been made to the plaintiff by the bankrupt before the adjudication in bankruptcy.” (Colie v. Jamison, 1 Hun, 281.)
    The judgment must be affirmed, with cost's.

      Winchester Britton, Alfred C. Chapin and Edgar Bergen, for the appellants.

      Henry G. Atwater and H. B. Hathaway, for the respondent.
   Opinion by

Gilbert, J.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Judgment affirmed, with costs.


author: Dykman, J.;

text:
    ROBERT W. PROSSER, Respondent, v. FRANCIS O. MATTHIESSEN and Others, Appellants.

      Defect of parties defendant — when a plea setting up the defect is sufficient— it need not allege that the pa/rties named, arre lining and within the jurisdiction of the court.

    Appeal from an interlocutory judgment, entered upon an order sustaining a demurrer interposed to ■ one of the defenses set up in the answer.
    This is an action against stockholders of a manufacturing corporation for the recovery of the amount due on a judgment obtained against the company by the plaintiff for labor and services. Among other defenses set up in the answer the defendants interposed a plea in abatement in the following language: “And for a further defense defendants allege that they are advised and verily believe that there is a defect of. parties defendant herein, in that the plaintiff has failed to join as defendants the following stockholders of said S. 0. Rockwell Manufacturing Company, to wit: Samuel 0. Rockwell and John IBalmore.
    The plaintiff demurred to this defense on the ground that it was insufficient in law on its face, and judgment was ordered in his favor thereon.
    The court at General Term said : “ The specific objection seems to be that the allegation is on belief and does not state that the parties omitted are living and within the jurisdiction of the court.
    “We are now working under a sj^stem of pleading and practice which requires courts to disregard errors and defects in pleadings or other proceedings which do not affect the substantial rights of the adverse party in every stage of the action; and here we have a pleading which states in plain language a defect of parties defendant in this action, and that the plaintiff has failed to join as defendants two persons who are stockholders in the company and whose names are given. Under this plea the court on the trial would admit testimony to prove the facts set up, and that is a fair test of its sufficiency.
    “ It would be idle for the defendants to claim that they are misled or that their substantial rights are affected by the omission to state that these persons named are alive and within the jurisdiction of the court. If they are stockholders and ought to be parties to this action they are alive, and it is quite immaterial where they are. They can certainly be brought under the jurisdiction of the court by some of the modes of service provided by the present system. We have long since cut adrift from technical rules of pleading, and it is hardly worth while to return now.”
    Gilbkrt, J., dissented on the ground that the liability is severaL (2 R. S. [6th ed.], 50J, § 38.)

      Leon Abbett, for the appellants.

      A. G. Aubery, for the respondent.
   Opinion by

Dykman, J.;

Barnard, P. J., concurred.

Order sustaining demurrer to tenth defense of defendants’ answer reversed, with costs, and plaintiff permitted to reply, if so advised, on payment of twenty dollars costs.


author: Opinion by Cullen, J.

text:
    JOHN HUNTER, Respondent, v. JOHN H. STARIN, Appellant.

      Bjeetment — where neither party eon prove a title, the one claiming under the first possessor may recover — facts insufficient to establish adverse possession may be mffi- , dent to show a possession sufficient to suppoi't a title as against third persons.

    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action, by the court without a jury.
    This action is ejectment to recover two small islands in Long Island Sound, at the mouth of New Rochelle creek. The islands remained unimproved till the spring of 1880, when the defendant entered upon them, erected buildings thereon, and connected them with a larger island now known as Glen Island, formerly called Davenport or Locust Island. The title to this latter island is concededly in the defendant. The defendant both put in issue the plaintiff’s title and also set up title in himself.
    The court at General Term, after holding that the defendant had failed to establish any title to the islands in himself, said : “ This brings us to the question of the plaintiff’s title. The defendant’s claim that the plaintiff must recover in ejectment on the strength of his own title, and not on the weakness of that of the defendant, is doubtless true. But it is subject to this qualification, that where no'legal title is shown by either party, the party showing the prior possession in himself or those through whom he claims, will be held to.have the better right. Such prior possession is a sufficient title to enable a party to recover in ejectment against an intruder and even against one whose claim of title is founded on a later possession. (Whitney v. Wright, 15 Wend., 171; Tyler on Ejectment, 72.) This is necessarily the rule, for it rarely happens that in the older parts of the country one can trace his title by an uninterrupted chain to its original source. * * * *
    “Possession under it (the deed to him) will entitle him (the plaintiff) to prevail in this action. Without reviewing in detail the evidence of such possession, we find that the plaintiff and the elder Hunter exercised dominion and control over the islands. They cut sedge and wood from it. It is urged by the defendant that the facts proved are insufficient to constitute an adverse possession in the plaintiff, and numerous cases are cited to establish this contention. I think defendant is correct, and the finding of the court below of an adverse possession erroneous.
    “ But I think there is a plain difference between the possession, which will bar the true owner of his title, and commonly called ‘ adverse,’ and the possession which is sufficient -to support a title as against third parties. I think .the cases cited recognize this distinction. In Smith v. BurUs (6 Johns., 19Y), the plaintiff claimed title by adverse possession. Kent, Oh. J. says: ‘We may infer title from his ten years’ possession sufficient to put the tenant upon his defense, but we ought not to imfier a tortious entry or an actual ouster suffcient to bar every defense.’ So in Wheeler v. Spinola (54 N. Y., 317), the distinction even in physical elements between possession and adverse possession is recognized. To constitute the former the possession must be exclusive, while the exercise of ordinary control and dominion of the land, I think constitutes a sufficient possession from which to infer title as against strangers. I think therefore that the plaintiff established a title as against defendant. ,
    “ It is now urged that the plaintiff should be estopped from asserting his title on account of his suffering defendant to make improvements on the land. Estoppel as to the title of land can only exist where the bona fide improver has been led into a mistaken expenditure by the acts or connivance of the owner. Here the plaintiff cannot be justly reproached even with delay in the' assertion of his claim.”
    Judgment should be affirmed, with costs.

      P. Oantine and Calmim Frosty for the appellant.

      John II. Miller and Edward Wells, for the respondent.
   Opinion by Cullen, J.

Present — Barnard, P. J., Gilbert and Cullen, JJ.

Judgment affirmed, with costs.


text:
    BYRON H. BIRD, Respondent, v. EMILY A. CRANE, Appellant.

      Action by a Tion-resident plaintiff in a Justices’ Court — it may be brought anyvJwre in the county of the defendants residence —Code of Civil Procedure, secs. 2869,2876.
    Appeal from a judgment of the Dutchess County Court, affirming a judgment rendered in a Justices’ Court.
    On the return'day of the summons in the'Justices’ Court the defendant appeared specially and objected to the jurisdiction of the justice. The objection was overruled and defendant excepted:
    The plaintiff was a non-resident at the time the action was commenced, and there was no proof in the case that the defendant lived in the town in which the action was brought, or in an adjoining town, or that plaintiff or his attorney was in the town in which the action was brought at the time of the commencement thereof.
    The General Term, after considering and sustaining certain objections taken by the appellant, said: “ There is no basis for the argument against the jurisdiction of the justice by reason of the non-residence of the plaintiff. Under the Revised Statutes a non-resident could sue in any town in the county where such plaintiff £ may be.’ A commencement of a suit wac then the delivery of the summons to a constable for service. By the Code the suit can be brought before a justice by a non-resident in any town where such i.on-residént or his attorney ‘ is at the time of the commencement of the action.’ (See. 2869, sub. 2.) This would clearly leave the law as it was held to be in Hunter v. Burtis (10 Wend., 359); but for section 2876, which provides that the action is commenced before a justice by the ‘ service of a summons.’ It is claimed that the attorney must wait in the town where the summons wras issued until it is served, to give a justice jurisdiction.
    “We think the legislature did not intend by these two sections (2869 and 2816) to impose any necessity for the personal attendance either of the non-resident or his attorney before the justice at the issuing of the summons, or that either of them should be there when the summons was served. A non-resident may sue anywhere in the county of the defendant’s residence.”

      Win. I. Thorn, for the appellant.

      B. c& S. Baker, for the respondent.
   Opinion by

Barnard, P. J.;

Gilbert and Dykman, JJ., concurred.

Judgment of County Court and of the justice reversed, with costs.


text:
    The People of the State of New York ex rel. William H. Benton v. Jacob Worth, Commissioner of the Department of Fire in the City of Brooklyn.
   Removal of relator affirmed, with costs. Opinion by

Gilbert, J.


text:
    Elizabeth Steinle, Appellant, v. Margaret Oeschler, Executrix, etc., Respondent.
   Decree of surrogate affirmed, with costs. Opinion by

Gilbert, J.


author: Barnard, P. J.,

text:
    John Lee v. Bridget Delahanty and others.
   Motion for reargument denied, with ten dollars costs. Opinion by

Barnard, P. J.,

Dykman, J., not sitting.


text:
    Thomas McGauley, Appellant, v. Ann Early, Individually and as Executrix, etc., of Ann McGauley, Deceased, and others, Respondents.
   Decree of surrogate affirmed, with costs. Opinion by

Gilbert, J.


author: Dykman, J.

text:
    Sarah E. Sarles, Appellant, v. John Betts, Respondent.
   Order affirmed, with costs and disbursements. Opinion by

Dykman, J.


text:
    Henry N. Wright, Appellant, v. The Congregational Society of Northville, Respondent.
   Order affirmed, with costs and disbursements. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    Narcissus E. Chamberlain, Appellant, v. Thomas A. Chamberlain, Respondent.
   Motion denied, with ten dollars costs and disbursements. Opinion by

Gilbert, J.


text:
    Thomas R. Dawley, Appellant, v. Daniel Alsdorf, Respondent.
   Motion denied. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    Frederica M. Kinney, Appellamt, v. William D. Nichols and Adelbert S. Nichols, Respondents.
   Order affirmed, with costs . and disbursements. Opinion by

Dykman, J.


author: Barnard, P. J.

text:
    James E. Martinhoff, Appellant, v. Ann Martinhoff, Executrix, etc., and another, Respondents.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Barnard, P. J.


author: Gilbert, J.;

text:
    William H. Homan, Appellant, v. George P. Byrne, Respondent.

   Order affirmed, with ten dollars costs and disbursements. Opinion by

Gilbert, J.;

Barnard, P. J., not sitting.


text:
    Henry R. Pierson, as Receiver of the Widows and Orphans' Life Insurance Company, Appellant, v. Simeon B. Chittendon, Respondent, Impleaded with others.
   Order affirmed, without costs. Opinion by

Dykman, J.


text:
    The People of the State of New York ex rel. Henry Pennie, Appellant, v. The Commissioners of the Department of Fire and Buildings of the City of Brooklyn, Respondents.
   Order dismissing writ of certiorari reversed, with costs and disbursements. Opinion by

Dykman, J.


text:
    The People of the State of New York ex rel. Thomas Flaherty, Appellant, v. The Commissioners of the Department of Fire and Buildings of the City of Brooklyn, Respondents.
   Order reversed, with costs and disbursements. Opinion by

Dykman, J.


text:
    The People of the State of New York ex rel. Patrick Larney, Appellant, v. The Commissioners of the Department of Fire and Buildings of the City of Brooklyn, Respondents.
   Order reversed, with costs and disbursements. Opinion by

Dykman, J.


text:
    The People of the State of New York ex rel. William E. Langdon, Appellant, v. The Commissioners of the Department of Fire and Buildings of the City of Brooklyn, Respondents.
   Order reversed, with costs and disbursements. Opinion by

Dykman, J.


text:
    The City of Brooklyn ex rel. C. A. M. Stadlmair, Respondent, v Charles A. Willard and Patrick Hefferman, Appellants.
   Judgment reversed, and new trial granted, costs to abide event. Opinion by

Barnard, P. J.


text:
    Elizabeth Carter Appellant, v. Charles W. Scofield and others, Respondents.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Gilbert, J.


text:
    James E. Delaney, Appellant, v. William C. Van Aulen, Testamentary Trustee, etc., Respondent.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    John M. Masterton, Appellant, v. Caleb E. Whitaker and Alexander M. Whitaker, Respondents.
   Judgment affirmed, with costs. Opinion by

Gilbert, J.;

Barnard, P. J., not sitting.


text:
    Oliver Rider, Respondent, v. Louis J. Dodge, Appellant.
   Judgment and order denying a new trial reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.