text:
    Joseph Phillips, Resp’t, v. Charles H. Covell, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    1. Appeal—Insufficiency of evidence.
    The appellant cannot urge the incompetency of evidence, received without his objection.
    2. Same—Nominal damages.
    Where plaintiff is entitled to recover substantial damages, the rule that a verdict for defendant in a justice’s court will not be reversed merely to enable plaintiff to recover nominal damages, does not apply.
    Appeal from a j udgment of the county court reversing a judgment in favor of defendant.

      J. W. Dunwell, for app’lt; C. H. Ray, for resp’t.
   Haight, J.

This action was brought to recover damages for trespass on lands. The plaintiff testified, in substance, that he knew the defendant’s sheep in 1889; that they broke into his meadow in 1889, 1891 and 1892, a good many' times; there were ninety or one hundred of them; that in 1892 they were in there three weeks, and they broke into his wheat field and meadow. He further testified that he was a farmer, and that he knew the worth of the damages done; that they had damaged his meadow to the amount of ten dollars, and his wheat five dollars. His son, „ Charles Phillips, testified that he saw the sheep in his father’s lot about the 15th of October, 1891; that they were there three or four weeks, and that there were eighty.or ninety of them; that he cut the hay on shares, and that on his part he had fourteen loads, and that his father on his part, where the sheep were, had but ten loads; that the sheep were on the meadow after the wheat was up; that he was a judge of .the damages done; and that the damages to the meadow were ten dollars, and to the wheat five dollars. To the same effect was the testimony of Frank Phillips and Merril Phillips. This was the evidence given on behalf of the defendant. The jury returned a verdict in favor of the defendant for no cause of action, upon which judgment was entered. An appeal was taken to the county court, where the judgment was reversed.

The undisputed evidence in the case showed a trespass upon the lands of the plaintiff by the sheep of the defendant, variously estimated in numbers from sixty to one hundred. It appears that at times they were upon the meadow lands, and at other times upon the wheat field of the plaintiff, and, on one occasion, after the wheat was up. It does not appear at what particular place they entered the plaintiff’s inclosure; but, as we understand, it is the duty of the owner of animals to restrain them from entering upon the premises of others, and, in case of failure so to do, he is liable to respond in damages for the injury done, unless he can show that the entrance was effected through the fault of the person claiming to be damaged; as, for instance, where the entrance was through a defective fence, which it was the duty of such person to maintain and keep in repair. Deyo v. Stewart, 4 Denio, 101.

It is claimed that the plaintiff failed to prove any damages; that the testimony of the witnesses giving their opinion as to the value of the damages was improper, and should be disregarded. Where there has been a trial in the justice’s court before a jury, and a verdict rendered for the defendant, the judgment will not be reversed on appeal merely to enable the plaintiff to recover nominal damages, even though the verdict may be against the evidence. Stephens v. Wider, 32 N. Y. 351. So that the question presented is as to whether the plaintiff was entitled to recover more than nominal damages. It is quite possible that the opinion given by the plaintiff’s witnesses would have been incompetent had an objection been taken thereto, but no objection was made, and on an appeal it is too late for the defendant to urge the'insufficiency of the evidence, which was received without his objection. Knell v. Stephan, 48 St. Rep. 190; 20 N. Y. Supp. 393; McLaughlin v. O'Toole, 48 St. Rep. 682; 20 N. Y. Supp. 653; Mead v. Shea, 92 N. Y. 122-127. On referring to the facts, we think sufficient has been stated to show that the plaintiff was entitled to more than nominal damages. The sheep were upon his meadow lands a number of times. They were there from three to four weeks,— one witness says from four to six weeks,— and during this time must have pastured thereon. One witness testified that he cut fourteen loads on his part, where the sheep had been; that they were upon his wheat lot after the wheat was up. The habits of sheep to run about over the lands, and feed upon that which is growing, is well known and understood. The jurors doubtless had the right to disregard the opinions given bv the plaintiff’s witnesses, but in doing so they should have substituted their own judgment as to the damages sustained, and awarded a verdict therefor.

The judgment of the county court appealed from should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Brown, P. J.

license: Public Domain

text:
    Henry Stanton, Resp’t, v. John H. Hennessey, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

   Concurring opinion. See 60 St. Rep. 254.

Brown, P. J.

I concur in the reversal of this judgment; but

I am of the opinion that the judgment roll in the action between plaintiff and defendant’s father was admissible in evidence to show that plaintiff had been subjected to the expense of an action in attempting to enforce the contract against defendant’s father White v. Madison, 26 N. Y. 120, 129. The costs of that suit and the expense of counsel, etc., were elements of the plaintiff’s loss. That judgment, however, was entered upon a verdict of the jury, and it was plainly incompetent for plaintiff to attempt to give the reason for the. verdict. Without his evidence on that subject, the case was destitute of any proof that defendant had made any false representations, and the complaint should have been dismissed.


author: Dwight, P. J.

text:
    The People, Resp’t, v. Joseph S. Upson, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    1. Statute—Amendment—Repeal.
    A statute, amendiíig a former statute “so as to read as follows,” repeal® such former statute by implication.
    2. Police justice—Constitutional law.
    Chapter 384 of 1887, in giving to the police justice of Rochester jurisdiction of all misdemeanors committed within the county of Monroe, is unconstitutional.
    3. Same—Void in toto.
    Such act is void as to the whole jurisdiction of said justice.
    4. - Statutes—Amendments óf repealed statutes.
    A statute, amending a statute previously superseded by an amendment, is valid, where it was the evident intention of the legislature to amend the amendatory, and not the amended statute.
    Appeal from a judgment of conviction for keeping a disorderly house.,

      H. B. Hallock, for app’lt; H. H. Widener, asst. dist. atty., for the people.
   Dwight, P. J.

The question in the case is of the jurisdiction of the police justice of Eochester, sitting as a court of special sessions, to try, and render judgment in, the case of a complaint under | 322 of the Penal Code. The offenses there defined are not among those enumerated in § 56 of the Code of Criminal Procedure as being within the jurisdiction of courts of special sessions; so that by virtue, merely, of an authority to hold courts of special sessions, with all the jurisdiction belonging to those courts in general, the police justice of Eochester was not empowered to hear and determine the charge against the defendant, upon which he was convicted in this case. If he had the authority at all, it must have been by virtue of some special provision of law, such as we might expect to find embodied in the charter of the city of Eochester; and so we do find, in several successive enactments of the legislature relating to the organization and government of that city, several provisions purporting to confer jurisdiction upon that office. Those provisions it becomes our duty to examine, and to determine their effect and bearing upon the question here involved.

The act of 1861 (chapter 143) was entitled “ An act to amend and consolidate the several acts in relation to the charter of the city of Eochester.” By § 245 of that act, it was provided as follows: “The police justice of said city shall have jurisdiction in suits brought for the violation of any of the city ordinances, or of the laws concerning the internal police of the state. He shall not, have nor exercise any other civil, jurisdiction, but shall have sole and exclusive jurisdiction in preference to any other justice, to hear all complaints and to conduct all examinations in criminal cases except in case of Ins absence from the city, or inability.”

This provision, it will be seen, does not empower the police justice to hold courts of special sessions, and gives him no jurisdiction to try and determine any charges of misdemeanor, but only, it would seem, to entertain complaints and conduct examinations with a view to holding the parties charged for the action of the grand jury.

The act of 1880 (chapter 14) was entitled “ An act to further amend chapter 143, Laws of 1861, entitled [as above], and to consolidate therewith the several acts in relation to the charter of said city.” By its first section, it was provided that “ chapter 143 of the Laws of 1861, entitled [as before], is hereby amended so as to read as follows." And then follows a complete resume and consolidation of ail the acts then in force pertaining to the subject in hand, including a re-enactment of most of the provisions of the act of 1861, supra, generally without change of language or arrangement, but incorporating with it some provisions of law enacted in the interval, and some which were altogether new. And, by subdivision 2-of § 290, it was provided that: “All acts and parts of acts inconsistent with or repugnant to this act or to the charter as hereby amended are hereby repealed or declared inapplicable to said city; but the repeal hereby of any statutory provision shall not affect any action,” etc., commenced prior to the time when this act takes effect."

It is very apparent that the statute of 1880, thus described, was intended to be, and was, in all respects, substituted for and in place of the statute of 1861, and that by virtue of the enactment of the former the latter statute was wholly superseded and repealed by implication. Heckman v. Pinkney, 81 N. Y. 211 ; In re New York Inst. for the Deaf and Dumb, 121 N. Y. 234; 30 St. Rep. 921.

By § 265 of tbe act of 1880, it was provided that: “The police justice of said city shall have jurisdiction in suits brought for the violation of any of the city ordinances, or of the laws concerning the internal police of the state, and is hereby empowered to hold courts of special sessions for the trial of all offenses triable in a court of special sessions.”

Since the passage of this act there has been no question of the power of the police justice to hold courts of special sessions, with the jurisdiction of those courts in respect to all those classes of offenses which are enumerated in § 56 of the Code of Criminal Procedure.

The act of 1887 (chapter 384) consists of a single section, which purports to amend only § 265 'of the act of 1880, supra. This it attempts to do by providing that the courts of special sessions held by the police justice of Rochester shall have—“In the first instance, exclusive jurisdiction to hear, try and determine all charges of misdemeanors committed within the county of Monroe, as is now or may be hereafter provided for in relation to courts of special sessions by § 56 of the Code of Criminal Procedure, and shall also have exclusive jurisdiction, in like manner, * * * to hear, try and determine all other charges of misdemeanors and other offenses and crimes punishable as such, as are now defined to be misdemeanors by §§ 5 and 6 of the Penal Code or other statute now or hereafter passed."

The definitions of §§ 5 and 6 of the Penal Code include in the class of misdemeanors all crimes not felonies, and are broad enough to include the offense of which the defendant was convicted ; and here, as will be seen, was the first enactment which assumed to give to the police justice of Rochester, sitting as a court of special sessions, jurisdiction of that offense. But the provision was clearly unconstitutional, because it assumed to give to ■the police justice of Rochester a territorial jurisdiction throughout the county of Monroe. The office in question finds its only warrant for being in that provision of the constitution of the State which provides for the establishment by the legislature of “inferior local courts of civil and criminal jurisdiction.” Const, art. 6, § 19. The meaning of the term “local courts” is well established by the authorities. It means courts possessing a jurisdiction localized within the territorial limits of the city or village from which each is created, and by the electors of which its incumbent is chosen. Such is the plain doctrine of such cases as Brandon v. Avery, 22 N. Y. 469 ; Waters v. Langdon, 40 Barb. 408; Geraty v. Reid, 78 N. Y. 64; People ex rel. Sinkler v. Terry, 108 N. Y. 1; 12 St. Rep. 773 ; Curtin v. Barton, 139 N. Y. 505; 54 St. Rep. 812. In the two cases last cited the constitutionality of the enactments assailed was upheld only because, by a just construction of their terms, it was apparent that the j urisdiction of the courts created thereby was intended to be limited, in the one case, to the city (of Syracuse), and, in the other, to the village (of Canton), in which the courts were, respectively, constituted. The suggestion of the learned court of sessions that the words “within the county of Monroe” were inadvertently employed in place of within the city of Rochester,” as intended by the legislature, can hardly be accepted as an answer to the objection to the act in question. There is no recognized mode of ascertaining the intention of a legislative enactment, except from plain sense and reasonable construction of the terms employed; and by no process of construction can the city of Rochester be held to have been intended by the use of the designation “the county of Monroe.” Neither can the contention of the district attorney be maintained, to the effect that the act, though bad as to the whole of the county of Monroe, was good as to that part of it which is included within the territorial limits of the city of Rochester. The provision is single, and the designation of the territory embraced in the jurisdiction defined is entire." It must be good as to the whole, or bad as to the whole. The same objection must prevail to the attempted further amendment of § 265 of the act of 1880 by chapter 561 of the Laws of 1890. It consists of a re-enactment of the section as amended by the act of 1887, with scarcely more than a verbal amendment, which, however, serves to emphasize the intention of the legislature to extend the jurisdiction of the police justice of Eochester over the whole of the county of Monroe.

The next attempt to amend the provision of the charter of Bochesfer relating to the jurisdiction of its police justice is found in chapter 204 of the Laws of 1893. This act, we may well suppose, was passed with the intention of remedying the error of the legislation of 1887 and 1890 relating to the subject. If valid legislation, it would have accomplished that object, because it undertook, by ■express provision,-to limit the jurisdiction in question as it was, no doubt, impliedly limited by the act of 1880, viz. to offenses committed within the city of Eochester, and thus avoided the constitutional objection to the enactments of 1887 and 1890. The objection is made to this statute that it is void because it purports to amend a statute which has no existence; by reason of its repeal. There seems to be no reported decision of our own courts on this question. In several of the western states the rule has been held as contended for by the defendant (see 23 Am. & Eng. Enc. Law, 276, and the cases cited), whereas, in Massachusetts, a statute amending a section of a previous statute, which had been superseded and repealed by implication, was held to be valid on the ground that it was the evident intention of the legislature to amend the amendatory, and not the amended, section. There can, of course, be no doubt of the intention of the legislature in this case; and we are much disposed to follow the doctrine of the Massachusetts case, and give effect to the act of 1893 as a valid definition of the jurisdiction, after that date, of the police justice of Eochester, which covers the offense of which the defendant was ■convicted. Such being the case, the constitutional objection to the acts of 1887 and 1890 is avoided, and a jurisdiction was conferred upon the police justice to hear, try, and determine the complaint against the defendant. A most unquestioned case of gross violation of the law was made out against him, and that by evidence to which no objection was made.

The judgment should be affirmed.

All concur.

Judgment appealed from affirmed, and case remitted to the court of sessions of Monroe county to proceed thereon.


text:
    The People ex rel. John Lardner, App’lt, v. Samuel N. Carson, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    1. Attorney General—Substitution.
    The Attorney General may continue the prosecution of an action in the ■ nature of a quo-warranta, brought by his predecessor in office, without . procuring an order of substitution.
    3. Appeal—Order striking cause erom calendar.
    An order striking a cause from the calendar may be reviewed though the court has adjourned without day.

      Appeal from an 'order striking a cause from the calendar.

      W. H. Ransom, for app’lts; Charles Hickey, for resp’t.
   Dwight, P. J.

This action, which was in the nature of quowarranto for the office of superintendent of the poor of Niagara county, was begun in 1898, by Mr. Rosendale, then attorney general of the state, as attorney for the plaintiffs, and, being at issue, was noticed for trial in January, 1894, by Mr. Hancock, who in the meantime had succeeded Mr. Rosendale in the office of attorney general. The new attorney general also procured the cause to be put on the calendar of the Niagara circuit, for which it was noticed, and was in attendance, by counsel to try the same, when, on motion of the defendant, and after hearing counsel for the plaintiffs in opposition thereto, the court struck the cause from the calendar on the ground, as stated in the order, that the attorney general who noticed the case for trial was not the same person who brought the action, and had not been substituted for him as attorney for the plaintiffs. The order was manifestly wrong. The action was brought by the attorney general of the state, in behalf of the people and another, as plaintiffs, in performance of a statutory duty. Section 1948 of the Code of Civil Procedure provides that: “ The attorney general may maintain an action upon his own information, or upon the complaint of a private person. * * * (1) against a person who usurps, intrudes into or unlawfully holds or exercises within the state * * * a public office, civil or military.”

The section occurs in the first title of chapter 16' of the Code, and the title is “Of Actions in Behalf of the People.” The duty here prescribed is an official one, and pertains to the office of attorney general, and not to the person who at any time chances to be the incumbent of the office,—a duty which goes with the office, and devolves in turn upon each incumbent as he succeeds thereto. The officer of the state who noticed this cause for trial was to all intents and purposes the same officer who originally brought the action, viz. the attorney general of the state, upon whom is charged the duty of bringing and maintaining this action. It is contrary to the theory of the action and to the spirit of the statute that each successive incumbent of the office of attorney general should require to be individually substituted for his predecessor by an order of the court, before he can proceed with the prosecution of those actions in behalf of the people which are pending when he succeeds to the office. There is also evidence, in the record before us, that, as we might well suppose, the proposition to substitute is contrary to the uniform practice of the attorney general’s office as far back as the memory goes of any person connected with that department of the government of the state; and the suggestion of counsel for the plaintiffs is not impertinent to the effect that in the matter of an ebjectiop founded, as this is, only upon a rule of practice of the court, the practice of the attorney general’s office might well be considered as establishing an exception to the rule, if that were necessary.

The objections to this appeal are without force. The order appealed from was not granted ex parte, but was made upon notice, —not notice in writing, nor of any prescribed period of time, but notice on the spot, and an opportunity to be heard, of which the plaintiffs availed themselves, without which the court would certainly not have made the order. The order affects a substantial right of the plaintiffs, namely, their right to have their cause tried, according to their notice of trial, when reached on the calender. The fact that the same cannot be restored to its place on the calendar of a court which has adjourned without day is not conclusive against a review of the order. The plaintiffs have a right to have the practice settled, with a view to future attempts to bring their cause to trial; and the precedent of the decision at the February circuit might stand in their way, if not reversed. Section 766 of the Code of Civil Procedure has no application to this case. The provision there is for the continuance of the action by the substitution of a party plaintiff, and not for the substitution of an attorney. The order appealed from should be reversed, with costs.

All concur.

So ordered, with ten dollars costs, and the disbursements of this appeal.


text:
    Frederick R. Jutsum, App’lt, v. Bricklayers, Plasterers and Stonemasons’ Union of Rochester et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.).

    Bill op particulabs—Claim op damages.
    In an action for causing employers in plaintiff’s trade to refuse Mm employment, he will be required to file a bill of particulars, specifying the names and addresses of such employers.
    Appeal .from an order directing a bill of particulars as to claims for damages.

      A. G. Warner, for appl’t; D. C. Feely, for resp’ts
   Dwight, P. J.

The plaintiff claims damages for a wrong done him by the defendants, which had the effect to cause contractors and employers in his trade and calling to refuse to employ him, and thus rendered him unable to obtain employment, and deprived him of his means of earning a livelihood. The order appealed from requires the plaintiff by a bill of particulars, to specify the names and addresses of the contractors and employers who have thus been influenced to refuse him employment. The requirement seems to be very reasonable, and one to which no objection can be made on the merits. It is no answer to it to say that the defendants have already answered in the action, and denied all the allegations of which the particulars are sought. O'f course, if the defendants are innocent of any wrong of the character charged against them, they know their innocence, and can assert it; but they cannot for that reason know what particular acts of wrong or items of damage the plaintiff will attempt to prove, and of these particulars they have a right to be informed. They are not, necessarily, seeking to discover what the plaintiff’s evidence is to be, but what matters the plaintiff will attempt to prove. The case seems to be strictly within the doctrine of Post Express Printing Co. v. Adams, 28 St. Rep. 891; 8 N. Y. Supp. 276; Childs v. Tuttle, 48 Hun, 228; 17 St. Rep. 943; and Williams v. Folsom, 37 St. Rep. 635; 13 N. Y. Supp. 712, in which bills of particulars were allowed in cases very similar to the present.

The only objection which seems to call for discussion is that on the ground of loches. The fact that the motion was deferred until after answer served is not necessarily an objection. The defendants may, and, if their answer is true, must, have had knowledge of their entire innocence of the charge made against them, and thus have been able to answer by a general denial, when, without particular specifications of the charge, they may have been wholly unable to prepare for trial. The question for a defendant in such case is not what is the truth, but what is the untruth, which the plaintiff will attempt to establish ? The delay in making the motion is in a manner, certainly, accounted for by the pendency of negotiations for an adjustment of differences between the parties. That is a good reason, as far as it goes, for a suspension of hostilities ; and, for the rest, the suggestion of the learned judge at the special term is probably a sufficient answer, viz., that, so far as appears, the plaintiff can as easily furnish the particulars asked for now as he could have done at any earlier stage of the action. We think the order is right, and should be affirmed.

All concur.

Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Gould Coupler Company, App’lt, v. Kellogg Iron Works, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    1. Mechanic’s lien—Extending duration.
    Claimant may procure an extension of the lien beyond the period of one year by obtaining an order continuing it, though no action has been commenced for its enforcement.
    2. Same.
    Such continued lien carries its own limitation with it, by virtue of the statute.
    Appeal from an order continuing a mechanic’s lien.

      J. C. Milburn, for app'lt; J. M. Chipman, for resp’t.
   Dwight, P. J.

The motion which resulted in the order appealed from was macle under the provisions of § 6, chap. 342 of the Laws of 1885. The section, as printed and punctuated in the Session Laws, reads as follows:

“No lien provided for in this act shall bind the property therein described, for a longer period than one year after the notice of lien has been filed, unless within that time an action is commenced to enforce the same ; and i£ the action is in a court of record, a notice of the pendency of such action is filed with the county clerk of the county in which such notice of lien is filed, containing the names of the parties to the action, the object of the action, and a description of the premises affected thereby, and the time of filing the notice of lien. Or unless an order be made by a court of record continuing such lien, and a new docket be made stating such fact. And when a claimant is made a party defendant to any action brought to enforce any other lien, such action shall be deemed an action to enforce the lien of such defendant, who is a claimant within the provisions of this act. The neglect to file the notice of pendency, provided for by this act, shall not abate any action which may be pending to enforce the lien, but such action may be prosecuted to judgment against the person or persons, firm or firms, corporation or association liable for the debt.”

Here is, evidently, some mispunctuation. The alternative clause introduced by the disjunctive “or,” near the middle of the section, cannot have been intended as a complete sentence, as it is made to read. It was clearly intended to provide an alternative, either to the commencement of an action, or to the filing of a notice of the pendency of an action mentioned in the earlier part of the section. In the former case the holder of the lien, during its continuance, has the option to commence an action to enforce his lien, or to obtain an order of continuance. In the latter case he must first commence an action to enforce his lien, and may then either file a notice of Us pendens, or apply to the court for an order. The former construction is in accordance with the contention of the holder of the lien (respondent here); the latter, with that of the appellant. We are inclined to think that the former contention is correct. The statute of 1885 is an act of revision, covering the whole subject of mechanic’s liens, and applying to the whole state, including the city of Hew York; and the section (6) quoted above is apparently the result of several experiments with the statute, in different forms, in force at different times in that city. Thus, the first provision contained in any of our statutes for continuing the lien beyond one year was made in the act for the city of Hew York in 1863, where, by § 11, c. 500, of the Laws of that year, it was provided that such lien might be continued by an order of the court, and a redocketing of the lien. This statute was superseded in 1875 by chapter 379 of the Laws of that year, which,, by § 8, substituted action commenced and notice of pendency filed for the order of the court. In 1882 the statute—still for the city of Hew York—introdueed the alternative of the two modes previously tried, viz. action commenced, and notice of Us pendens filed, on the one hand, and, on the other hand, an order of the court. Such we take to be the effect of the provision referred to of Act 1882, c. 410, § 1812, which reads as follows: “Liens shall in all cases cease after one year from the date of the filing, unless an action shall be commenced and a notice of Us pendens filed with the clerk of the county wherein the premises are situated, or an order made conti huirig the lien for another year; in the latter case the county clerk shall, upon filing such order, make a new docket of such lien. Successive orders and new dockets may. be made in the discretion of the court. Where a claimant is made a party defendant to any action brought to enforce any other lien, a notice of the pendency of such action must be filed by him or in his behalf. But the neglect to file such notice shall not abate any ■action which may be pending to enforce the lien. Such action may be prosecuted to judgment against the persons liable for the debt.”

„ This provision is found in what is known as the “Consolidation Act,” and was evidently intended to give to lienors the benefit of a choice of the two, modes of relief prescribed,—the one by the statute of 1863, the other by that of 1875 (both supra),-—the former of which prescribed an order of the court alone, and the latter only an action commenced, and notice of pendency filed. Again, in 1883 (by chapter 276, § 17, of the Laws of that year), there was a return to the single prescription of an action and notice of its pendency; and lastly, in the revision act of 1895, made applicable alike to city and state; the alternative provision was reenacted almost in the same terms as those quoted above from the act of 1882. We cannot doubt, from this collation and comparison of the several enactments, that the alternative provision finally adopted presents the alternative of an action with notice of lis pendens, on the one hand, and an order of the court, on the other hand. This view derives confirmation from the language in which the same alternative is stated in subdivision 4 of § 24 of the same act of 1885. The section referred to is entitled “Lien, How Discharged,” and the subdivision is in the following terms: “(4) By the Lapse of Time. When one year has elapsed from the time of filing the notice of lien, and no action has been commenced either to enforce such claim or order of the court made continuing said lien as provided in section six of this act.”

We conclude, therefore, that the lienor, respondent in this case, was regular in applying to the court for an order continuing its lien, although no action had been commenced for the enforcement of its lien.

Neither of the statutes prescribing an order of the court defines the case which must be made in order to obtain it. It must be sufficient if it move the court, in the exercise of a reasonable discretion, to interpose for the preservation'of the rights of the parties; and such discretion, we think, was not abused in this casa. The lienors had commenced an action at law to recover a balance of about $1,200, claimed to be due to them on the contract price of the material which they had sold to the appellant, and which had gone into the appellant’s buildings. This they did, as their affidavit shows, because they believed they could bring such an action to judgment sooner than an action in equity to enforce their lien. But the appellant had caused an answer to be put in to their complaint, and the action was still pending, and the expiration of the year from the filing of their lien was approaching ; and, for the preservation of their lien, they desired its continuance pending the determination of the issue joined in such action. The fact that they had chosen the remedy by an action at law seems not to affect their right to a continuance of their lien. They may still, at any time before satisfaction of the judgment in such action, resort to their other remedy, which is conceded to be cumulative, Bierschenk v. Stokes, 46 St. Rep. 179 ; 18 N. Y. Supp. 854, viz. by a foreclosure of their lien. Raven v. Smith, 54 St. Rep. 94; 24 N. Y. Supp. 601. And certainly, if the lienor may foreclose his lien notwithstanding the pendency of an action at law to collect the debt, he may procure a continuance of his lien under the same circumstances.

The order granted an indefinite continuance, probably because the statute, in terms, prescribes no limitation for a continuance as such; but we suppose that every continuance granted under this statute is to be regarded as limited in duration by the general provision of the section—to which the provision for a continuance is only an incident—that no lien shall bind the property described for a longer period than one year from the filing of the notice of lien, in case of a continuance from the making of a new docket. So that every continued lien, like every original lien, carries its own limitation with it, by virtue of the statute.

The order appealed from should be affirmed.

All concur.

So ordered, with $10 costs, and the disbursements of the appeal


text:
    William Van Nostrand, Resp’t, v. New York, Lake Erie & Western Railroad Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    1. Railroads—Fires—Neglioercb.
    Even though the fact is established that the fire was set by sparks from the engine, plaintiff must further show that those sparks were such as could not pass through the meshes of a spark arrester of approved construction and in perfect repair.

      H. Same.
    The verdict for plaintiff, in this action, was held to be against the weight of evidence.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the court.

      J. H. Stevens, for app’lt; G. S. Van Corder, for resp’t.
   Dwight, P. J.

The action was to recover damages for the burning of a sawmill and appurtenant buildings of the plaintiff, caused, as alleged, by fire communicated by sparks from a locomotive engine of the defendant. There was but one engine in question, which was perfectly well identified, and to which all the testimony related. It was an extension front engine, and, as was conceded by the plaintiff and charged by the court, its appliances for arresting sparks were, in device and original construction, the best known to be in use. There were, therefore, but two possible grounds upon which the plaintiff could be charged with liability for the loss complained of, viz.: (1) Negligence in permitting the spark arrester to be out of repair; (2) negligence in the manner of its use. In regard to the latter of these propositions, we think it may properly be said that there was no footing for it to stand upon in this case. It is true, no doubt, and the evidence of one of the defendant’s witnesses shows, that the amount of fire which is drawn through the spark arrester may be increased by a greater head of steam and a more violent exhaust, but there iá no evi-, dence at all that such use was made of the engine when it was passing the plaintiff’s mill on the evening of the fire, and such-evidence as there is on the subject is to the contrary. It was shown that the track of the railroad was on a down grade to the-east, from a point a quarter of a mile west of the mill all the way to the neighboring station, which was a mile east; and the engineer testifies that, as he passed the top of the grade, he shut off his-steam, and ran by momentum past the mill and to the station, where the train was to stop. There certainly was no occasion for letting on steam, and it was impossible for the engine to labor going down that grade. The evidence also shows that in the extension front engine the wire netting of the spark arrester is fixed in position, not hinged or in any way movable, so that it cannot be-be opened at the will of the engineer for greater draft, or for any other purpose, except by removing its fastenings or breaking or tearing it away. The case of the plaintiff must, therefore, it seems have rested wholly on the proposition that the spark arrester of this engine was negligently out of repair, and the affirmative of that proposition was with the plaintiff. As usual, the attempt, was made to establish the fact by evidence of escaping sparks, and the witnesses who testified on that subject were a mother and; daughter, who lived in a house 200 feet north of the railroad, and-half a mile west of the mill. The date was -the 1st of ¡November, and the hour about 7 o’clock in the evening. The two woman were in the kitchen, engaged in washing their dishes after supper.. The night was dark, and they caught only a momentary glimpse-of the rapidly passing train. The wind' was from the east, and they testify that they saw a stream of sparks from the smokestack of the engine, which, as nearly as they were able to describe them, seemed to be from the size of a pea to that of a hickory nut. The train had still half a mile to run before it reached the mill, and the latter half of that distance was the down grade before mentioned. This is all the evidence in the case which tends to show that the engine in question at any time emitted sparks larger than those which would pass through the meshes of a netting of the most approved construction and in perfect repair. There is no-evidence that sparks were seen coming from the smokestack within half of a mile of the buildings which were burned, nor that any sparks were driven in the direction of those buildings, nor that cinders from the engine were found anywhere in the vicinity. On the other hand, there was the uncontradicted testimony apparently credible, of several persons holding positions of trust and responsibility in the employment of the defendant to the effect that, both shortly before and shortly after the casualty in question, the-spark arrester of this engine was found, upon actual inspection, to-be in perfect repair,—its wire netting permanently fixed in place,, without orifice or opening larger than the original meshes, which were conceded to be of the proper size. This evidence was direct and positive, and, unless willfully false, was conclusive against the theory of the defendant’s negligence. The evidence to the contrary was purely inferential, and related to nothing more definite than the apparent size, to the eye, of a momentary observer, a dozen rods away, of some glowing sparks flying in the darkness.

This is the case pro and con, upon the question of the defendant’s negligence, viz. in respect to the repairs of the spark arrester of the engine of the defendant which passed the plaintiff’s buildings a little time beford they were discovered to be on fire. We are of opinion that it fails to present a preponderance of evidence in support of the allegation of the plaintiff in this respect. The fact that the fire was discovered shortly after the passing of the plaintiff’s buildings by the engine in question would bear only remotely upon the question of the defendant’s negligence, for, even if the fact was established that the fire was set by sparks from the engine, it must be further shown that those sparks were such as could not pass through the meshes of a spark arrester of approved construction and in perfect repair. In Searles v. Man. Railway Co., 101 N. Y. 661, the court, by Earl, J., remarks that “ the mere proof of the escape of cinders was not sufficient ” to show that the spark arrester was defective, “ as the evidence showed that their escape could not be avoided, and was inevitable.” In this case, the court was requested to instruct the j ury, in substance, that, even if the fire was caused by sparks which passed through the netting when in good repair, then it was an accident for which then defendant was not liable; to which the court responded: “I think Twill charge that,” The defendant was unquestionably entitled to the instruction, and it was no doubt the intention of the court to give the defendant the benefit of such instruction, although from what subsequently occurred there is some reason to suppose that the court was not fully understood to that effect, because, after the jury had been out all night, they came in for further instructions, and propounded to the court the following question : “In case we find that the mill was burned by sparks from the railroad company’s engine, and further find that the spark arrester was in good and sufficient working order, can we give a judgment ? ” It is plain that this question was fully answered by the instruction above asked for by the defendant, and which the court evidently intended to give tó the jury; also, that a categorical answer to the question as now propounded required the court to say that, in the case supposed, they should give a verdict for the defendant. The question was not answered categorically, but by a renewed discussion, at some length, of the general principles governing the defendant’s liability. There was no further request by counsel for the the defendant, nor any exception which points to error in the response of the court, but the incident seems to us to emphasize what has already been said of the lack of proof in support of the particular allegation of negligence on the part of the defendant in respect to the repairs-of the spark arrester. That, as we have seen, was the only respect in which negligence could be charged, and it seems probable that that was the question upon which the jury hesitated, and that, if the instructions asked for and intended to be given had been clearly understood, the jury would have discovered the lack of a clear preponderance of evidence in support of the plaintiff’s allegations in that respect. We think that the verdict finally rendered was so far against the weight of evidence, upon the question discussed, as would have justified the court at the circuit in granting the defendant’s motion for a new trial. Kaare v. Troy Steel & Iron Co., 139 N. Y. 369 ; 54 St. Rep. 653.

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

All concur. So ordered.


text:
    Mary R. Sessions, App’lt, v. New York, Lake Erie and Western Railroad Company, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Carriers—Sleeping car companies.
    The railroad company is not liable, as carrier but only for its own negligence,for the loss of a passenger’s money in a sleeping car.
    Appeal from a judgment of the county court reversing a judgment of a justice’s court in favor of plaintiff.

      W. L. Sessions, for app’lt; C. R. Lockwood, for resp’t.
   Dwight, P. J.

The action was to recover the.sum of $30.75, alleged to have been lost by the plaintiff through the negligence of the defendant’s servants while she was a passenger on board a sleeping car of the defendant’s road. The action was tried by the justice without a jury, and judgment was rendered in favor of the plaintiff. On appeal to the county court, that judgment was reversed, and from the judgment of the county court this appeal was taken.

The money was lost from the personal custody of the plaintiff. It was in a portemonnaie, which was inclosed, with a jewel case, in a small velvet bag, which she carried in her hand satchel, and the latter she held in her lap or in her hand from the time of taking her seat in the sleeping car until she retired at night. She and her husband occupied a section, sleeping in the lower berth, and when they retired the hand satchel was placed between them, and Mi; Sessions testified that it was between his upper arm and his body. When they woke in the morning the bag was in the same place, only, as the plaintiff testifies, a little lower down in the bed. On rising, the plaintiff took her bag, and went to the ladies’ toilet room at one end of the car, and Mr. Sessions to the gentlemen’s toilet room at the other end. The latter returned first from the toilet, and took a seat in the drawing room, having first asked the porter to make up their section in order that his wife might have a place to sit when she came from her toilet. The evidence shows conclusively that the plaintiff did not discover her loss until after she had gone to the toilet room, taking her bag with her. Whether she discovered the loss while there or after her return to her seat her testimony does not disclose. Her only statement on the subject of the discovery is, “ after I got up in the morning, I opened my hand bag and my velvet bag. The jewel case was there, but the portemonnaie was gone, with the money in it.” Mr. Sessions testifies, “ soon after plaintiff arose, she opened her hand bag, and informed witness that her money was gone. Witness then inquired of the porter for the conductor of the sleeping car,” and upon his coming, “informed him of his loss.” The whole narrative shows that this must have been after the plaintiff returned from her toilet; and the porter testifies that, a few minutes after they returned to their seats, he saw Mr. Sessions looking around, and went to him, and he said, “ my wife has lost her purse; ” that he asked the lady when she had it, and she said she had it in the wash room; that he told her she had better go and look for it there; that she went, but soon came back, and said it was not there; and that it was after this that Mr. Sessions asked to see the conductor of the car, as he wished to report the loss to him. All this testimony of the porter is without contradiction, and it is entirely consistent with the narrative of the plaintiff and her husband, so far as the narrative goes. These facts seem trivial, but it is upon them that the question of the defendant’s liability depends. It is not contended that the defendant was liable for this money as a common carrier, or as a bailee of any sort; it can be charged with liability only on the ground of negligence, and the only negligence complained of is the failure to maintain a continued watchfulness over the interior of the car while the plaintiff and her husband were sleeping. That this is the duty enjoined by the court in the cases, cited by counsel for the plaintiff, of Carpenter v. N. Y., N. H. & H. R. R. Co., 124 N. Y. 53; 34 St. Rep. 854, and of Car Co. v. Gardner, 3 Penny. 76, and it is the only duty the neglect of which is complained of in this case. To quote from the single point made by counsel in his brief of argument on this appeal “ the negligence complained of is that none of the defendant’s employes were continually on guard in the car in a position to observe the movements of all persons in the passageway between the sections; ” quoting from the case in Penny-packer, supra, the statement, which is also quoted by the court of appeals in the case of Carpenter, supra, as follows: “ A corporation engaged in running sleeping coaches with sections separated from the aisle only by curtains, is bound to have an employe charged with the duty of carefully and continually watching the interior of the car while berths are occupied by sleepers.” It was plainly essential to the plaintiff’s case to show that her money was taken from the berth where she and her husband were sleeping. Upon no other theory could the loss have been attributed in any degree to the negligence complained of. But this theory is negatived by the testimony of the porter above recited, and the testimony of the plaintiff and her husband entirely fails to establish it. As we have pointed out, that testimony shows that the loss was not discovered until after the plaintiff had gone to the toilet room, and it fails to show that it was discovered until after she had returned to her seat in the body of the car. In either case there is a failure to-prove the fact essential to a recovery,—viz. that the pocketboolc was stolen from the berth while its occupants were asleep,—with a decided balance of the probabilities against that theory, while the burden was on the plaintiff to establish it.

For the failure of proof here pointed out we think the judgment of the justice’s court was properly reversed, and the judgment of the county court must be affirmed.

All concur.

Judgment of the county court of Chautauqua county, appealed from, affirmed.


author: Bradley, J.

text:
    Frances B. Scott, App’lt, v. Frances Calladine et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    1. Trusts—Resulting—Wife.
    No resulting trust is created, where the conveyance is made to the wife of the person paying the consideration, but it will be deemed to be an advancement.
    2. Same—Presumption.
    But such presumption may be repelled by evidence that it was not so intended at the time the payment was made.
    Appeal from a judgment dismissing the complaint on its merits.

      August Becker, for app’lt; P. F. King, for resp’ts.
   Bradley, J.

The purpose of the action is the partition of certain premises in the city of Niagara Falls, of which, it is alleged, Thomas Calladine died seized. He was the husband of the defendant Frances Calladine, and died in June, 1877. They were married prior to 1850, and came to this country from England within a few years after that time. In May, 1864, she took title in fee to the premises, by deed from Jane S. Townsend; and in December 1871, she executed and delivered directly to her husband a quitclaim deed of the premises. Presumptively, and at law, this deed was ineffectual to convey to him the land, and void. White v. Wager, 25 N. Y. 238; Winans v. Peebles, 32 N. Y. 423; Dean v. Met. El. Railway Co., 119 N. Y. 540 ; 30 St. Rep. 81. A conveyance, however, made directly between husband and wife, having the support of a suitable consideration, may be sustained by a court of equity. The plaintiff proceeded in this action upon the assumption that the deed of the wife to her husband was effectual to vest title in the latter. This is the contested proposition in the present case. When they came to this country, they had substantially no means other than their earning capacity for their support. The husband earned some money as a hotel porter, and the wife took care of it. The premises were purchased for $750. The deed was made to the wife, and the payment of the consideration was secured by the bond for that amount, made by both the husband and wife, and the mortgage of the latter to the grantor upon the premises ; and the referee has found that the wife then went into possession of the premises, and has ever since been in the possession of them. The consideration, by payments from time to time made, was fully paid ; and the major part of it from money earned by the husband, and handed to his wife, along as he earned and received it. He had knowledge of the execution and delivery of the deed and bond and mortgage, and of their terms, at the time they were made; and the payments on the bond and mortgage were made, with the knowledge and approbation of the husband, from such earnings, and such payments, or the most of them, were made by him personally. So far as appears, they lived and worked harmoniously together. In 1871 the wife was quite sick for considerable time, and her deed to her husband was then made. It expressed the consideration of one dollar, but in fact nothing was then paid as such. The contest here is between some of their children, of whom the plaintiff is one, and their mother; and it is urged that, in the fact that the consideration of the conveyance to Mrs. Oalladine was paid from moneys earned by her husband, she, equitably, as between them, took the title as trustee for him, and although there was no trust which she could be required to execute in his behalf, it will be recognized in support of her voluntary conveyance to him.

If the facts required the conclusion that such, as between them, was the relation she assumed when she took the title, her conveyance subsequently made to him was entitled to support, upon equitable considerations. Foote v. Bryant, 47 N. Y. 544; Norton v. Mallory, 63 N. Y. 434; Robbins v. Robbins, 89 N. Y. 251. The rule of the common law, before its abrogation by the statute, that the person paying the consideration on the purchase of land took the estate by way of resulting trust, although conveyed to another, was not applicable alike to conveyances to a stranger, and to the wife or child of the person paying the consideration. In the latter case it would be deemed an advancement, and so resulting trust would be presumed. But the presumption of advancement might be repelled by evidence that it was not so intended at the time the payment was made. Story, Eq. Jur. § 1204; Murless v. Franklin, 1 Swanst. 13; Finch v. Finch, 15 Ves. 43; Guthrie v. Gardner, 19 Wend. 414; Watson v. Le Row, 6 Barb. 489 ; Welton v. Divine, 20 Barb. 9; Partridge v. Havens, 10 Paige, 618. As of the time the purchase of the premises and payment for them were made, no circumstances appear to require the inference that a resulting trust to the husband was intended, and the referee has found that there was no understanding that she should hold them in trust for him. The evidence seems to support his finding in that respect. The fact that she made the deed to him in 1871 does not necessarily import anything more than a willingness on her part then to do so. There is no evidence of any circumstances leading to it, other than in the fact that she was then quite ill, and may have desired that he should have the beneficial enjoyment of the property if she did not recover. The evidence in respect to the presumption of advancement must be such as to show his intention was otherwise contemporaneously with the purchase. He and his wife resided on the premises at the time the purchase was made, and they continued thereafter to do so until his death. In this there was nothing to necessarily indicate that he took and had possession under the conveyance, or that the wife did not have it. As they were living happily together, it is likely that no question arose as to which of them was entitled to, or should be treated as having, the possession. She had the title, and it may be assumed, as nothing appears to the contrary, that the title and possession were united in the same person. There is some conflicting evidence as to the declarations of the widow as to the location of the title after the death of her husband; but, in .view of the findings of the referee, there is no occasion to make any further reference to that subject, as no consideration of it could affect the legal aspect of the case. The disability of married women, arising out of the marital relation, except so far as removed by statute, remains. Bertles v. Nunan, 92 N. Y. 152. As the consequence, they could not, at the time in question, effectually, at law, convey land, in tfii§ state, directly to their husbands; and, although equity may give effect to such conveyances then made, it would do so only when supported by a valuable consideration.

Upon the evidence, in view of the facts found, the conclusion was fairly justified that no trust, within the contemplation of the husband and wife, resulted to him from the payment of the con-sideration of the conveyance to her; and therefore there was none for the equitable support of her deed to him, founded upon any recognition of such a trust.

There are some other considerations urged by the learned counsel for the plaintiff in his able argument, all of which have been considered. But, in the view taken of the case, it is deemed unnecessary to make special reference to them.

The judgment should be affirmed.

All concur.


text:
    Alice M. Colvin, Resp’t, v. Sophia Shaw, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

      1. Estoppel—Recitals in affidavit fob attachment.
    The recitals in the affidavit for an attachment, in this case, were held not to estop the attachment creditor from asserting an equitable title td the land on which the attachment was levied.
    2. Election of remedies—What is not.
    An action for a debt was held not to be an election to relinquish rights under a contract for the conveyance of land in part payment of such debt.
    Appeal from a judgment in favor of plaintiff.

      John M. Stull, for app’lt; Daniel N. Salisbury, for resp’t.
   Bradley, J.

The view of the trial court, as appears by the findings of fact, was that the defendant, Sophia Shaw, had, as against Miles Broadbent, the mortgagor, the equitable title to the west half of premises described in the mortgage, but that she was estopped from asserting such title against the plaintiff. The facts, as found by the court, were that, in the fall of 1880, the defendant, Shaw, went into the possession of the west half of the premises, under an agreement of purchase with Broadbent; that she paid him the parenase price, in services, board, etc., and has since remained in the open, visible, and notorious occupation and possession of the premises; that in June, 1883, and after his refusal to convey the premises to her, the defendant, Shaw, commenced an action against Broadbent to recover the sum of $2,085.52, alleged in the complaint to be due to her from him, without deducting the amount claimed by her to have been allowed in payment for land pursuant to the contract of purchase; that she procured an attachment to be issued against the property upon an affidavit made by one Wilson and another by herself, portions of which are set forth in the findings, and which will hereafter be referred to. These affidavits were made and the attachment was. issued in July, 1883; and, upon the motion of the defendant in that action, the attachment was vacated August 1,1883. On that day the defendant, Shaw, made another affidavit, upon which a like attachment was issued, and levied upon the premises mentioned in the mortgage. The defendant in that action appeared therein. The complaint was not served until August 14, 1883 ; and in June, 1884, her motion to amend the complaint so as to express an allowance to the defendant therein, by way of credit, $1,200, the amount of the purchase price of the premises as per her contract of purchase, was made and granted. The complaint was amended accordingly. The action was afterwards tried, and complaint dismissed. In the meantime, and in October, 1883, Broadbent had brought an action against Shaw and her surety on the bond given upon the issuing of the first attachment, which was vacated; and she, in that action, alleged her equitable title, and demanded relief founded upon it. The action came to trial in February, 1884, and the plaintiff there recovered judgment for damages arising from the levy of the attachment. In 1887 the defendant, Shaw, commenced an action against Broadbent for specific performance of the contract. The trial resulted in judgment dismissing the complaint, affirmed at general term, and reversed by the court of appeals; and, by the judgment of the latter court, specific performance of the contract was directed, and judgment was perfected accordingly, with costs. Shaw v. Broadbent, 129 N. Y. 114; 41 St. Rep. 499.

We are thus led to the conclusion that, as between the parties to that action, the defendant, Shaw, had the equitable title to the west half of the premises described in the mortgage. The question remaining is whether such title in her is available against the mortgagee and his assigns. The mortgagee was an attorney at law, and was attorney and counsel for Broadbent in the actions of Shaw against him before mentioned, and in his action against her upon the bond made to obtain the attachment which was vacated; and on the same day it was accomplished, and before Shaw could with diligence get another attachment levied upon the property he took from his client the mortgage in question, and it was after-wards assigned to the plaintiff. It is said that she was estopped from asserting her title as against Decker, the mortgagee by reason of the facts stated in the affidavits upon which the first attachment was issued, and because she, by her action, had elected to sue for the full amount of her claim, not allowing to Broadbent the portion of it which had been applied as payment for the land. There otters stated in her affidavit to procure the attachment are not such as create any estoppel. She there stated that a cause of action existed in her favor against Broadbent to recover about $1,000 for board bill and services, and that she was then entitled to recover therefor such sum. She also states that “the defendant had been a boarder and occupant of certain premises in the village of Brock port, in the county of Monroe, and the village of Holley, in the county of Orleans, as such boarderand, further, that the “defendant is the owner of certain land premises in the village of Holley and county of Orleans, or has a large mortgage interest in said property.” fie was the owner of the east half of the premises described in the mortgage. It was only in the west half of them that Shaw claimed an interest The levy of the attachment of the whole was the act of the sheriff, and could not be treated as her act, nor could the affidavit of Wilson made in support of her application for the attachment be so treated, for the purpose of creating an estoppel; and Decker, at the time that he took the mortgage, could not have been advised that the action was brought to recover any sum in excess of $1,000, because the complaint was not served until two weeks after that time; nor could he have learned from the papers, or otherwise than from his client, that the claim made by the complaint embraced that which constituted the consideration for the sale to her of land which she occupied. There was therefore nothing in the papers or proceedings on the part of Shaw in her action up to the time when Decker took the mortgage to enable him to effectually charge that she was estopped from asserting her equitable title to the west half of the premises; nor did the adjudication in the action against her and her surety upon the bond support such charge. Shaw v. Broadbent, 129 N. Y. 114; 41 St. Rep. 499. She was then, and had been for three years, in the actual possession of that portion of the premises. This was notice to the mortgagee of such equitable right, title, or interest as she had in the land. Gouverneur v. Lynch, 2 Paige, 300; Union College v. Wheeler, 61 N. Y. 88.

The assignee of the mortgage occupies no more favorable position to assert estoppel than did the mortgagee himself. Schafer v. Reilley, 50 N. Y. 61. It is urged, however, that, inasmuch as Shaw brought her action to recover her claim for board and services against Broadbent, she made her election of remedy, and thereafter could not be premitted to assert any claim founded upon the contract with him for the sale and purchase of the land. It is true that when a party has two inconsistent remedies, and he pursues one of them, he will not be premitted to avail himself of the other. Moller v. Tuska, 87 N. Y. 166; Conrow v. Little, 115 N. Y. 387 ; 26 St. Rep. 527; Terry v. Munger, 121 N. Y. 161; 30 St. Rep. 746 ; Crossman v. Universal Rubber Co., 127 N. Y. 34 ; 37 St. Rep. 230. It may be assumed that Broadbent had refused to convey the land to Shaw in performance of the contract, and that in her action thereafter brought, she, by her complaint, as originally prepared, alleged due her from him a greater sum tho she was entitled to recover if she allowed to him credit for the $1,200, which was the contract price of the purchase; but she nevertheless claimed, ineffectually, as the result of the action established, that there was due her a sum in excess of that consideration. It has been observed that in her affidavit to obtain the first attachment, while she stated nothing about the purchase or its consideration, she there stated, as the amonnt due from Broad-bent, only about $1,000 over and above counterclaims, discounts, or set-offs. In her affidavit, made the day of the date of the mortgage to obtain the second attachment, she stated the same, and, after stating the facts out of which the claim arose, added that he “turned out and over to her certain real estate situate in Holley, but delivered her no deed thereof, as yet, but put her in possession thereof, for the purpose of having its value applied upon any general indebtedness which he was owing her, and which value was called $1,200, leaving a balance justly due and owing to her by him by reason of the matters aforesaid the aforesaid sum of $1,000, as aboved stated, over and above all counterclaims, discounts, or set-offs in his favor against her, or known to her.” The fact that she alleged in the complaint a claim against Broadbent in excess of that she was entitled to recover, or beyond that which she in her affidavit stated was due her over counterclaims and set-offs, did not necessarily establish the fact that she had elected to relinquish such rights as she had under the contract ; nor did the omission to mention such contract in the complaint, and expressly therein give credit to the defendant for the amount necessarily require the conclusion that she had made the election to recover that which constituted the consideration of the sale of the land to her; and although she, in the complaint, alleged due her a sum of upward of $2,000, the defendant and his attorney in that action were advisecj, by her affidavit in the action, long before the complaint was sqrved, that she, in making application for the attachment, stated, in effect, that she sought to recover about $1,000. and in her affidavit for the second attachment, two weeks before the complaint was served, stated that sum as the balance due her over the amount of such consideration. She stated the same fact in her affidavit upon which the motion to amend the complaint was made; and the complaint, pursuant to the order of the court, was so amended as to expressly exclude the amount of the consideration allowed for the land from that sought to be recovered. This amended complaint became the only com plaint between the parties to the action and for its purposes, as effectually as if it had been so from the beginning. Hurd v. Everett, 1 Paige, 124; Bank v. Garlinghouse, 4 How. Pr. 174; Sands v. Calkins, 30 How Pr. 1; Kanouse v. Martin, 8 Sandf. 659; Penniman v. Fuller & Warren Co., 138 N. Y. 444 ; 45 St. Rep. 654. It must now be assumed that the amendment was properly granted. The question of its propriety was one to be disposed of in that action only.

In view of all of these facts, there seems to be no support for the charge of election by the defendant, Shaw, of remedy inconsistent with the defense she now seeks to make, foundedupon the alleged equitable title to the west half of the mortgaged premises. The cases to the effect that a person brought into an action as defendant after its commencement is deemed a party only from the time he is made so, and therefore any defense existing in his behalf as of that time is available to him, do not have any necessary application to the present case. The question is, what right, as against the defendant, Shaw, was acquired by the lien of the mortgage at the time it was taken by the mortgagee? It does not appear that she had then denied to herself the right to assert such claim to the land as she had derived from the paroi contract of purchase, and its performance, etc., on her part, or that the mortgagee was then premitted to so assume to her prejudice, in consequence of any proceeding had or taken by her in the action she had commenced against the mortgagor; and the plaintiff, as assignee of the mortgage, occupies no more favorable position in that respect than the mortgagor then had to defeat the alleged defense of the defendant. The determination of the trial court was that she is estopped from asserting her title to the west half of the mortgaged premises as against the plaintiff. Although there does not appear to have been any exception taken to that conclusion of the court, exceptions were taken to refusals to find certain other conclusions of law favorable to the defendant; and, upon this review, such conclusion of the court, in view of the facts presented by the evidence and found, is open to consideration ; and in view of such facts, we think the determination that the defendant was so estopped is not supported.

The judgment should therefore be reserved, and a new trial granted; costs to abide the final award of costs.

All concur.


text:
    Lucy E. Hand, Resp’t, v. Charles Deady, as Trustee, etc., App’lt.

      (Supreme Court, General Term, Fifth Department;

      Filed June 20, 1894.)

    Officers—De facto—Colorable right.
    To consitute a de facto officer, Ills acts of official character must be founded upon some colorable right to the office, having the form of election or appointment, or ho must act as such, with the acquiescence of the public, for a sufficient length of time to permit the presumption of an election or appointment.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes.

      T. Robinson, for app’lt; Del Stow, for resp’t.
   Bradley, J.

The question for consideration is whether David Benjamin may, as to the plaintiff, be treated as having been trustee of the district at the time he made the contract with her. The facts bearing upon the question are that at a school meeting duly held in the district August 30,1887, there were present eight men and some boys. A chairman was elected, and the district clerk was present. The trustee of the preceding year, having read his report, said that the next thing in order was to elect a trustee, and, turning to one Buckley, suggested that he act as trustee. The latter said, “Ho, let Dave Benjamin have it.” Some one seconded it. Thereupon, David Benjamin, who seems to have been somewhat under the influence of liquor, immediately jumped up, and said, “All in favor of Dave Benjamin being trustee, say ‘Aye.’ ” Some one responded “Aye.” Then David Benjamin said, “I am trustee.” Ho negative vote was called for. The Chairman was not requested to, nor did he call for any vote on the subject. The meeting then proceeded to the election of a trustee, and James Benjamin was elected in the usual manner. He entered upon the duties of his office; and, three days later, David Benjamin called upon him, asserted his right to the office of trustee, and, by means of a threat, induced James Benjamin to let him take the district books. Thereupon, he assumed to act as trustee, in buying some lumber, some locks for doors, and some brooms, made the contract with the plaintiff to teach the school, and shortly afterwards ceased to act as such.

It is clear that he was not a trustee de jure; and, to constitute a defacto officer, it is essential that his acts of official character be founded upon some colorable right to the office, having the form of election or appointment, or that he has acted as such, with the acquiescence of the public, for a sufficient length of time to permit the presumptiqn of an election or appointment. This presumption arises from the reputation he thus acquires as an officer from such acts and acquiescence. Then, as matter of public policy, his acts in his apparent official capacity are not subject to collateral attack to the prejudice of others, and to them and the public, they are deemed effectual and valid. Wilcox v. Smith, 5 Wend. 231; Parker v. Baker, 8 Paige, 428; Hamlin v. Kassafer, 15 Or. 456. And in fact it is prima facie sufficient to establish the official character of local officers to show that they are generally reputed to be, and have acted as, such. McCoy v. Curtice, 9 Wend. 17. It does not appear that David Benjamin had so acted, with the acquiescence of the public, as to give him, in the district, the reputation of trustee, at the time the alleged contract was made. He had then assumed to act as such for less than a month, and in a very few days after he entirely ceased to act as trustee. The official acts to be performed within that time were probably few, and those he did perform were not numerous. In Wilcox v. Smith, Mr. Justice Sutherland said that “the mere claim to be a public officer, and the performance of a single act, or even a number of acts, in that character, would not, perhaps, constimte an individual an officer de facto." And in Rochester & G. V. R. Co. v. Clarke Nat. Bank, 60 Barb. 234, it was said that, “To constitute a person an officer de facto, a mere claim to be such officer, and exercising the duties of the office, are not sufficient. It is well settled that there must be color for the claim, and colorable title to the office.” In the present case, as presented by the record, the main question, therefore, is whether or not David Benjamin had a colorable right to the office, or in other words, whether his claim was supported by the appearance of an election or appointment.

, The statute provides that the inhabitants entitled to vote, when duly assembled in any district meeting, shall have power, by a majority of the votes of those present, to appoint a chairman, and to choose a trustee. Laws 1864, c. 555, tit. 7, § 16. There was a meeting held in the district, having the power to choose a trustee. The ludicrous occurrence referred to, in which David Benjamin was there the principal actor, was evidently treated by those present as a jest, as, following it, the meeting proceeded, in the usual—as well as an orderly—manner, to elect, and elected, a trustee, without, so far as appears, any assertion of claim or suggestion of David Benjamin, or any other person, that he had been chosen to the office.

The election of James Benjamin as trustee was entered in the minutes of proceedings kept by the clerk of the meeting. Ro reference in them was made to the transaction before mentioned, preceding such election. It is difficult to see, in what took place at the meeting, any colorable selection by it of David Benjamin as trustee. It evidently did not there, and at the time, have an appearance of his election as trustee, nor does it seem to be entitled to the characterization of such appearance, without which it lacked the quality essential to invest him with the color of right to the office. This was somewhat emphasized by the fact that seven of the eight legal voters at the meeting did not vote “ Aye ” on the motion put by David Benjamin. But the learned trial judge, as appears by his charge to the jury, lays stress, in support of his color of election, upon the fact that some one voted “ Aye,” and that when David Benjamin stated that he was trustee, no one raised any objection to it. There would have been more force in that fact if the meeting had not then proceeded to the election of a trustee. This indicated how the transaction appeared to those present, and characterized the understanding of such declaration of David Benjamin as a mere naked assertion on his part, to which the meeting did not accede.. There must be the form of an election or appointment to an office, to give a colorable claim to it; and it is then sufficient to constitute his acts following it as those of a de facto officer, although, by reason of some defect or irregularity, the election or appointment is illegally or inefficiently made. The difficulty with the claim in behalf of David Benjamin is that the meeting did not give him the form of election, nor did it recognize or acquiesce in his assertion there made that he was trustee. The mere claim of a person that he is an officer docs not relieve his acts from the character of usurpation, and give him the character of an officer defacto, unless he has notoriously performed them for such length of time, with the acquiescence of the public, as to give him the general reputation in the official district of being in that respect what he thus assumes to be. Then, as before suggested, his acts as to others may be effectually characterized as official. The view taken of the facts, as here represented, is that there was no color of election of David Benjamin at the meeting, and that he took, from what occurred there, no colorable right to the office. And the mere fact that he obtainéd the district books, whatever they were, from the person who was elected, has, of itself, no significance, although if, from that time, he acted, with the acquiescence of the inhabitants of the district, for such length of time as to raise the presumption of color of right, and thus took the reputation of being such officer, it may be seen that persons thereafter dealing with him as such could effectually assert, for their protection, that he was trustee. But no facts appear to justify that conclusion.

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

All concur.


author: Bradley, J.—

text:
    United States Glass Company, App’lt, v. Galvin H. Vary et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Corporations—Stockholders—Liability.
    Corporate creditors are relieved from exhausting the remedy against the corporation before proceeding against the stockholders only when such condition cannot be performed.
    Appeal from a judgment dismissing the complaint.

      Charles S. Kent, for app’lt; E. A. Nash, for resp’ts Trotter, Reynolds, and Rose; Horace McGuire, for resp’ts Vary, Keener, and Pitkin.
   Bradley, J.—

The plaintiff, by the complaint, alleges that the Trotter Refrigerator Company was incorporated under the Manufacturing, etc., Act of 1848, and those amendatory of it, by filing a certificate of incorporation March 19, 1890, whereby the capital stock was fixed and limited to $75,000, divided into shares of $100 each; that the 750 shares were issued as full-paid stock, but that it never was paid in full; that all the defendants are stockholders of the company; that in an action brought in June, 1891, in the supreme court, by Pitkin, against it, an order was made, appointing Peter Sleight receiver of the corporation; that he qualified, and took possession of, and sequestered, as far as possible, all the goods, chattels, property, and choses in action of the company; that “ the said action is now pending, undetermined, and no final judgment or final decree of dissolution has been entered therein, and said corporation has not in fact been dissolved, though it is, for all practical or business purposes, dissolved;” that in September following an interlocutory judgment or order was entered in that action, continuing the receiver, and that, thereafter, large amounts of money came into his hands, and were wholly paid out upon certain executions issued upon judgments, and for disbursements ; that the indebtedness of the company to the plaintiff (particularly specified) was so contracted as, by its terms, to be paid ■within one year; that it has not reduced its claim to judgment, etc., “because of the order of the court made in said action, wherein said receiver was appointed, restraining all persons and. creditors from commencing actions against ” it, and because the plaintiff is “advised the corporation is in fact dissolved, and all the property * * * sequestered and in the hands of a receiver,” and the execution could not be levied upon, or satisfied out of, property of the corporation. And some other matters are alleged in relation to other creditors who may be permitted to come in and share the benefits of the action, and thus obviate the necessity of multiplicity of suits, with a view to the equitable relief, as expressed in the prajmr of the complaint.

Equitable relief of that character may properly be the purpose of an action by a creditor of a corporation against its stockholders, in a case where they have become liable under the statute, and there are several creditors, to prevent the multiplicity of suits, and thus take an account for all of them. Briggs v. Penniman, 8 Cow. 387; Pfohl v. Simpson, 74 N. Y. 137; Bauer v. Platt, 72 Hun, 326; 55 St. Rep. 196. The question in the present case is whether or not the plaintiff was in a position to maintain the action. It seeks to charge the stockholders with liability under the statute which provides that the stockholders of a company shall be liable to its creditors, to an amount equal to that of their stock, until the whole amount of the capital stock of the company shall have been paid in, and certificate thereof recorded (Laws 1848, ch. 40, § 10), but that no stockholder shall be personally .liable for any such debt until an execution against the company shall have been returned unsatisfied, wholly or partially. Id., § 24. This requirement preliminary to the plaintiff's action is not alleged in the complaint, but averring that no judgment has been recovered upon its debt against the corporation, and no execution returned unsatisfied, the plaintiff alleges, by way of avoidance of the necessity for it, that a receiver appointed of the corporation has sequestered its property, and that while the corporation has not in fact been dissolved, it is for all'practical or business purposes dissolved, and adds that the plaintiff has not proceeded to judgment and execution because of the order by which the receiver was appointed, restraining creditors from prosecuting the corporation. The exhaustion of remedy against a corporation, as provided by the statute, is a condition precedent to the maintenance 'of an action to charge its stockholders. Handy v. Draper, 89 N. Y. 334; Rocky Mountain Nat. Bank v. Bliss, id. 338. In that respect, it is similar in effect to the requirement of judgment, and return of execution unsatisfied, against any other debtor, before proceeding by action to reach property or funds equitably chargeable with the payment of his debt. Estes v. Wilcox, 67 N. Y. 264 ; Adsit v. Butler, 87 N. Y. 585. And in neither case can it be dispensed with for any cause, except such as render its accomplishment practically impossible. The death of the debtor does not permit the creditor at large to proceed in equity by what is known as a “creditor’s bill,” because an action can first go against the personal representative of the deceased debtor, and in such case the bill will not be supported by the fact that he died insolvent. Estes v. Wilcox, supra. A creditor can be relieved from the necessity of that condition only when it cannot be performed. Nat. Tradesmen's Bank v. Wetmore, 124 N. Y. 241; 35 St. Rep. 316. And so, when a corporation has been dissolved, or, for other cause, judgment and execution cannot go against it, the creditor may be relieved from the statutory requirement. Shellington v. Howland, 53 N. Y. 371. In the present case there had been no judicial dissolution of the corporation, nor hail it ceased to have existence as such. The alleged receivership was created by an interlocutory order in a pending action against it. The purpose of that action is not alleged in the complaint, nor can it be assumed that its object was to put an end to its corporate existence. At all events,, so far as appears, it still retains its corporate franchise; and it does not appear that the plaintiff may not have obtained leave of the court to bring action against it, if such leave were necessary, as we may assume it to have been. There are cases to the effect that a corporation may suffer that to be done which will destroy or defeat the object of its creation, and which is equivalent to the surrender of its rights as such, and thus relieve its trustees from liability for not doing that which otherwise would be requisite to their protection. But those cases do not necessarily determine that the trustees can be made liable to a creditor of the corporation without his having first proceeded to -judgment and execution against the corporation. Slee v. Bloom, 19 Johns. 456 ; reversing 5 Johns. Ch. 366; Bruce v. Platt, 80 N. Y. 379 ; Hollingshead v. Woodward, 107 N. Y. 96; 11 St. Rep. 325. And, when that can be done, no reason is seen for its dispensation by the creditor who seeks to charge the trustees. The doctrine of those cases is that when a manufacturing, etc., corporation has encountered circumstances by which it is disabled from further proceeding in the execution of the purposes of its creation, the trustees may, without liability, omit to file certificates, or do that which otherwise is requisite for their protection. In such case, and for such purpose at least, its corporate functions would be suspended. But, to infer the surrender of corporate franchises from insolvency and suspension for a less period than that designated by the statute to consummate it, the circumstances must be such as to make it appear that the corporation has not the power to continue or resume its business. Bradt v. Benedict, 17 N. Y. 93. In the present case the facts alleged in the complaint are not such as to show a dissolution of the corporation. Kincaid v. Dwinelle, 59 N. Y. 548 ; Decker v. Gardner, 124 N. Y. N. Y. 334; 36 St. Rep. 267. And the futility of the preliminary remedy against it cannot effectually be shown otherwise than by evidence of its result. If these views are correct, the complaint failed to state facts sufficient to constitute a cause of action, and the judgment and orders appealed from should be affirmed.

All concur.


text:
    Francis X. Hooper et al., Resp’ts, v. John T. Story et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Appeal—Conclusions op law.
    The facts will not be reviewed, where exceptions are taken only to conclusions of law.
    Appeal from a judgment in favor of defendants.

      W. H. Whiting, for app'lts; L. M. Cummings, for resp’ts.
   Bradley, J.

—None of the evidence is here. The questions arise upon the exceptions to the conclusions of law of the referee, and those concessions are dependent for support upon the facts as found by him. The referee found that the plaintiffs agreed to make, and deliver to the defendants an extra large varnishing machine, to connect with -a certain drier, at a certain price, and represented, agreed, and warranted that it should be of capacity sufficient to properly varnish 10,000 sheets of labels or advertisements per day, and be complete in all its parts ; that the machine delivered to the defendants was not complete in all its parts, was not made in a workmanlike manner, and that it was not of a capacity sufficient to varnish 10,000 sheets of labels or advertisements per day; and, as one of his conclusions of law, the referee-found and determined “that the defendants, by retaining possession of the' machine, using the same, and deriving profit therefrom, with knowledge of its imperfections and incapacity, as well as making repairs and alterations thereon, accepted the machine, and became liable to pay therefor.” To this conclusion the defendants excepted.

The contract for the sale and delivery of the machine was executory. In such case the remedy of the vendee, if the property does not correspond with that which, by the contract of sale, the vendor undertook to deliver, is to refuse to accept it; and, if he retain the property after having opportunity to examine and ascertain its quality or character, he cannot maintain action for damages. Reed v. Randall, 29 N. Y. 358 ; Brown v. Foster, 108. N. Y. 387; 13 St. Rep. 805; Studer v. Bleistein, 115 N. Y. 316; 26 St. Rep. 400. But the remedy of the purchaser is not thus qualified and limited when the seller has, by his undertaking collateral to the contract of sale, expressly warranted the quality of the property. Then the liability of the vendor for breach of the-warranty survives acceptance of it by the vendee. Day v. Pool, 63 Barb. 506; 52 N. Y. 416; Parks v. Morris Axe & Tool Co., 54 N. Y. 568; Fairbank Canning Co. v. Metzger, 118 N. Y. 260 ; 28 St. Rep. 775. In the present ease the referee had found an express warranty of the capacity of the machine, and of its fitness for use with the “drier,” so called, and a breach of the warranty. This undertaking of the plaintiff did not include visible defects within its operation for the purposes of a remedy for damages. Studer v. Bleistein, 115 N. Y. 316 ; 26 St. Rep. 400. It may be that the difficulty in the adjustment of the machine for the purpose of its operation with the drier in use by the defendants was discernible, and not covered by the warranty. It, however, is not found that it was so. It must here be assumed, upon the findings of fact, that, as to the character of the machine, it was otherwise; and that the defendants were entitled to be allowed, by way of counterclaim, damages equal to the difference in value of the machine as it was the value which it would have had in accordance with the warranty. Ho other basis of estimating damages appears by the facts as found. The referee, as a further conclusion of law, found that the defendants failed to show any legal claim for damages. There is no finding upon the subject of the value of the machine. The defendants did, however, ask the referee to determine that they were entitled to a specified amount for money paid by them for repairs of the machine and the sum paid out for work spoiled. There was no error in the refusal of the referee to do so. While he found that the defendant had paid out certain sums for repairs of the machine and for work spoiled, he did not find that those expenses, or any part of them, were occasioned by any defect in the machine for which the plaintiffs were chargeable upon their waranty, and he declined to find that the work was spoiled by reason of the imperfect construction of the machine. He also refused to find, as requested, that the defendant’s profits would have been greater if it had been as warranted. While, therefore, a warranty and its breach appear, it does not appear by the facts as found by the referee that any damages were suffered as the consequence ; and, as this review is founded solely upon findings of the referee, there is no opportunity for inferences other than such as necessarily arise from the facts as found by him. The judgment must therefore be affirmed.

All concur.


text:
    In the Matter of the Buffalo Orphan Asylum, Resp’t, v. Fedora Karowney, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Order—Ex parte—Vacation—Discretion.
    The vacation of an ex i arte order, requiring an orphan asylum to give extracts from its records, with leave to renew the application on notice, is in the discretion of the court.
    Appeal from an order vacating an order, requiring the defendant to allow an examination of its records.

      Edward R. O'Malley, for app’lt; Carl T. Chester, for resp't Buffalo Orphan Asylum.
   Bradley, J.

—The order requiring the asylum to give to the petitioner complete extracts from its records concerning her child was made by the court upon her ex parte application. This was within the power of the court, and the order must be deemed to have been regularly made. But upon the application of the asylum the court, in the exercise of its discretion, made an order requiring: the petitioner to show canse why the first-mentioned order should not be vacated. In view of the facts presented, the court thereupon concluded that the case was one in which a hearing should be had upon the merits. The order was therefore vacated, with leave to the petitioner to renew her application upon t notice to the asylum. It is urged upon the part of the appellant that this was error, for the alleged reason that her right to the relief sought had the support of a mandatory statute. While it was the duty of the court to entertain her application, it was within its power tb direct and have such hearing as should be deemed suitable and reasonable before making a final order. This, evidently, was the design of the statute, which then provided that, in addition to the request of the person having the requisite relation to the matter, there should be an order of the supreme court for the production of extracts from the records relating to a child which had been placed in the asylum. Laws 1884, c. 438, § 3. It cannot well be supposed that the court, in making such an order, is • not to exercise any judgment in the matter. It is more reasonable to assume that it was contemplated that the court properly could and should inquire into the matter sufficiently to ascertain what are the facts, and to determine whether they are such as to justify or require the making of the order sought for. There may be - cases where, up.on the facts, applicants are entitled to the orders, and others where, as matter of right, they are not. In the former, orders of course would be made; but, in the latter, reasons might exist for their denial. Whether or not the petitioner, in the present case, is entitled to it, is a question not here for consideration. The order was vacated without any determination of that question, but merely to enable both parties to be heard on a renewal of the application upon notice to the asylum. The method adopted for such purpose, founded upon the order to show cause, was within the reasonable discretion of the court.

The order appealed from should therefore be affirmed, without costs. All concur.