text:
    Susan Greene, App’lt, v. Jay J. Miller, Resp’ts.

      (Supreme Court, Ceneral Term, Third Department,

      Filed December, 1893.)

    Appeal—Dismissal of complaint.
    If, in any view of the evidence, there are questions of fact which may be determined for the plaintiff, and which, if determined in hisfavor, will entitle him to recover, the complaint should not he dismissed.

      Edward J. Maxwell, for app’lt; W. B. Dunlap, for resp’t.
   Herrick, J.

— This is an appeal from a judgment entered upon the report of a referee dismissing the plaintiff’s complaint.

The plaintiff is a married woman, and brings this action against the defendant, who is a doctor, for an alleged criminal assault made upon her while attending her professionally.

At the close of the plaintiff’s evidence a motion was made to dismiss the complaint, which was granted. Ho requests to find on either matters of fact or law appear to have been made by either side. On the question of dismissing a complaint, or of granting a motion for a non-suit, that aspect of the evidence which is most favorable to the plaintiff must be taken. If, in any view of the evidence, there are questions of fact which might have been determined for the plaintiff, and which, if determined in her-favor, would entitle her to recover, the complaint should not be dismissed. Pratt v. D. H. M. F. Ins. Co., 130 N. Y., 206; 41 St. Rep., 303. Within these rules, as to the consideration of evidence, there was testimony given upon the trial in behalf of .the plaintiff, which, if found to be worthy of credit, it seems to me, entitled her to recover in this action.

The defendant was in. attendance upon the plaintiff professionally, visited her several times, and on the day in question came to her room and committed the assault; it is claimed that she consented to it, but in one portion of her testimony she testifies as follows: “ I tried to scream, but I was so horse I could not. I could not make a noise. I was too weak to make any resistance. No other person was in the room during this interview.” If this it true, then there was no consent by her.

It may very well be that this testimony, when considered with all the testimony in the case, and with that given by her upon the cross-examination, is not to be believed; but that question is one that must be decided upon a consideration of the whole case upon its merits; upon a motion for non-suit or a motion to dismiss the complaint, it seems to me it must be taken as true, and if true, that an assault was committed upon her, she is entitled to recover.

The case was, therefore, not disposed of upon its merits, as held in Smith v. Pelott, 44 St. Rep., 242 ; Forbes v. Chichester, 125 N. Y., 769; 36 St. Rep., 248.

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

All concur.


source: Caselaw Access Project

author: Herrick, J.

license: Public Domain

text:
    Ella I. Pollock, Resp’t, v. Abram D. Van Camp, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    Fraudulent conveyance—Knowledge of vendee.
    Where, in an action for conversion of goods, taken under execution as property of a firm, which plaintiff claimed under a bill of sale, the evidence shows that the plaintiff knew of the insolvency of the firm at the time she took the bill of sale, it is error for the referee to refuse to find, at defendant’s request, that, at the time of the sale, plaintiff knew that the sale tended to hinder, delay and defraud the creditors of the firm.

      F. L. Wager (Sayles, Searle & Sayles, of counsel), for app’lt; H. M. Fldredge (Westbrook & Borst, of counsel), for resp’t.
   Herrick, J.

This is an appeal from a judgment upon the report of a referee, in favor of the plaintiff and against the defendant. The plaintiff is the wife of Irving Pollock, and the mother of Fred L. Pollock, who were carrying on business under the firm name of I. Pollock & Son, at Fort Plain, Montgomery county. The plaintiff, who claims to have loaned I. Pollock & Son money to the amount of nearly $2,000, took from them on the 21st of June, 1890, a bill of sale of all the personal property of said firm, as security as she claimed, for the amount owing to her, and at the same time she agreed and assumed to pay some, but not all, of the other debts of said firm of I. Pollock & Son. The firm of A. Ethridge & Co., of Rome, N. Y., dealers in groceries, commenced selling goods to the firm of I. Pollock & Son, April, 1890; the last bill of goods sold to them was June 19,1890. Pollock & Son never paid Ethridge & Co. for any of the goods purchased of them, and on the 26th of July, 1890, Ethridge & Co. commenced an action in the supreme court upon their claim and procured an attachment to'be issued against the property of I. Pollock & Son. The attachment was placed in the hands of the defendant. Van Camp, who was a deputy sheriff of Montgomery county, who executed the warrant of attachment, and took into his possession the property the sale of which gave rise to this action ; Pollock & Son made no defense to the action brought against them by Ethridge & Co., and judgment was obtained therein by default, and execution issued thereon, and the property which had been previously attached by the defendant was sold by him as deputy sheriff under said execution.

Thereafter the plaintiff commenced this action against the defendant, alleging that on July 26, 1890, she was the owner and in possession of the property, and that the defendant wrongfully converted the same; she claims ownership under the bill of sale before referred to. The defendant for his defense asserted thatas deputy sheriff he took the property by virtue of the attachment and execution before referred to, and that the said Irving Pollock and Ered L. Pollock, and not the plaintiff, were the owners and in possession of the property taken, and that the title claimed by the plaintiff and the alleged transfer to her, was a fraud upon the creditors of I. Pollock & Son, and void.

A great deal of evidence was taken upon the trial as to the alleged indebtedness of the firm of L Pollock & Son to the plaintiff, and as to whether there was in fact any change in the possession of the property, and as to the financial condition of the firm at the time of such transfer.

It will be seen that it is material and important to determine whether the firm of I. Pollock & Son was insolvent at the time of such transfer, and if it was insolvent, whether the plaintiff knew it or had reason to believe it, and whether the transfer was for the purpose of hindering or delaying creditors of the firm.

The referee was requested by the defendant to find “That at the time said alleged sale was made, that said Fred. L.' Pollock and Irving Pollock were insolvent, and unable to pay their debts, and said Ella 1 Pollock knew of such insolvency and of the pecuniary condition of said Fred L Pollock and Irving Pollock; the referee refused so to find, to which refusal the defendant excepted ; this I think was error; that they were in fact insolvent is not disputed, it is not a controverted question in the case; neither is it controverted so far as the evidence shows, but that both Fred. L. Pollock and Irving Pollock knew that- they were unable to pay their debts, and the evidence of the plaintiff, I think, conclusively established, that she also knew of such insolvency. In her testimony she states that in talking with her husband about securing her for the money that she claims to have advanced, that she said at different times that she thought the goods would not •secure her. At' the time the bill of sale was handed to her, she states “ He handed it to me to secure me, I knew it would not pay me; I said the goods in the store would not pay me.”

When she went to the store to look over the goods, she says she saw there were not goods enough to secure her. Her son testifies that she asked him if he thought there were goods enough to pay her, and that he told her he thought there were about enough just to pay her claim if they were sold at regular profit. In addition to swearing that she did not think there was enough property to secure her, she testifies that she knew that there were other debts; debts in addition to those she assumed to pay; in short, her testimony all through shows her belief that the business of the firm was in such a condition that it was necessary that something should be done to secure her, and also her belief that there was not a sufficient amount of property to pay the full amount of her claim. • While it may be true that she did not know either the amount of their indebtedness nor the actual value of the property that they had, yet she believed that it was inadequate to pay her and to pay the other claims ; and for the purpose of testing the validity of a transfer of property under such circumstances, belief on the part of the person receiving the property, that the grantors have not a sufficient amount to pay their debts, is equivalent to actual knowledge of that fact. Again, the referee refused to find, at the defendant’s request, “ that at the time of said sale this plaintiff knew that said sale and transaction tended and operated to hinder and delay the Ethridge’s and the creditors of said Fred. L. Pollock and Irving Pollock in the collection of their debts;” which refusal to find was excepted to by the defendant I think this refusal to find was error on the part of the referee; it was a; fact that was material and important in the case.

As I have before stated, the plaintiff knew that the firm was indebted to others beside herself; she believed that the property was insufficient to pay her claim ; she had been informed by her son, one of the firm, that “ there would be about enough to pay just her claim if they were sold out at regular profit.” She testified that she did not know of any property of the firm that she did not take, and she also testifies that she did not know of any way that the creditors were to get their pay. It must be presumed that she was possessed of ordinary intelligence, and knowing that they were indebted to various people beside herself and knowing that she was taking possession of all their property, it is difficult to conceive that she did not know that her act in taking such property would hinder and delay their creditors in the collection of their debts; she must be presumed to have known and intended that which would be the natural result of her acts; Upon this question there is no conflict of evidence, the only question is, what conclusion of fact is to be drawn from the plaintiff’s own testimony, I can see but one. Without discussing the other questions in the case, I think for the errors committed by the referee in his refusals to find the requests herein referred to; the same neither in form nor substance having been otherwise found by him, that the judgment should be reversed, the referee discharged and a new trial granted, costs to abide the event

Putnam, J., concurs; Mayham, P. J., concurs in result.


author: Per Curiam.

text:
    Edward H. Hawke, Resp’t, v. Madison C. Hawke et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    Injunction—Modification.
    Where the appellate court is strongly inclined to reverse an order granting an injunction, but there is a possibility that the plaintiff may be injured by such reversal, and the rights of all parties will be preserved by a modification of the injunction, it may be so modified.
    Appeal from an order denying an application to vacate an order granting an injunction.

      Henning & McCall, for executors; Edgar T. Brackett, for def’t Wilson ; Charles E. Patterson, for def’t Skelding; Foley & Wing, for pl’ff; J. S. HAmoreaux, for Maria T. Hawke.
   Per Curiam.

Wehave grave doubts as to the propriety of granting the injunction herein, and are strongly disposed to reverse the order granting it, but there is a possibility that the plaintiff may be injured by so doing, and the rights of all parties it seems to us will be preserved by a modification of the injunction.

It appears from the record before us that thé property involved in this litigation amounts to about the sum of $350,000, $100,000 thereof being in personal property, and the remaining $250,000 being in realty.

If the plaintiff succeeds in establishing the invalidity of his father’s will, he will be entitled to one-fourth part of that estate ; it will thus be seen that the realty affords abundant security for his protection, if it remains undisposed of or unencumbered.

The injunction, therefore, is modified so as to restrain the defendants herein from conveying, disposing of, or encumbering any of the real estate of which the testator died possessed, and from conveying and delivering, or passing over any of the said real estate to the devisees or legatees named in the last will and testament of said testator.

It being intended by this modification of the injunction to give the defendants entire control over the principal and interest of the personal property, and of the rents, incomes, and profits of the real estate; subject, of course, to their accounting for the same as the executors of the last will and testament of Edward H. Hawke, deceased, in the event of the plaintiff failing in the action, or of accounting to the plaintiff for his share thereof in the event of his succeeding in establishing the invalidity, of said will; and as so modified, the injunction and order appealed from is affirmed, with ten dollars costs, and printing and other disbursements, to the appellants.

All concur.


text:
    Sylvester McChesney, Resp’t, v. Panama Railroad Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    Neqmgence—Train dispatcher.
    Where the accident, is caused by the instructions, and the lack of full instructions, by the train dispatcher, the company is liable to an employe who is injured thereby.

      Appeal from a judgment in favor of plaintiff.

      Coudert Brothers, for app’lt; Parker & Fiero (J. Newton Fierot' of counsel), for resp't.
   Herrick, J.

The plaintiff, the engineer of a locomotive known as No. 9, on the Panama Railroad, came in collision with a special train drawn by an engine known as No. 30, and, as the result of such collision, suffered severe injuries, for which the jury rendered a verdict in his favor. The plaintiff was running a regular train, and on the 2d of January, 1890, started with such train from Aspinwall to go to Panama; he received the following instructions from the train dispatcher of the road: “ No. 9 will leave Aspinwall and run to Bohio ahead of time. Nos. 9 and 10 ahead of time will meet at Bohio.” Bohio is a station about fifteen miles from Aspinwall ;• the distance from Aspinwall to Panama is about sixty miles, according to the time-table in evidence in this case. San Pablo is beyond Bohio, and about twenty-five miles from Aspinwall; after he had passed San Pablo about a thousand feet the collision occurred with the train drawn by No. 30, which was going from Panama to Aspinwall. The engineer and conductor of the train drawn by No. 30 had received the following instructions from the train dispatcher of the defendant: “No. 30 will run special Panama to Aspinwall. Will not pass Bohio until No. 9 ahead of time has arrived there.” The train drawn by No, 30 was not a regular, but a special train, and had no place upon the regular time-table of the road.

It will be seen that the plaintiff received no notice of the running of No. 30, and it seems to me that he had a right to assume that the track would be clear after he left Bohio. The engineer and conductor of the train drawn by No. 30 had the right to assume that they would not meet the train drawn by No. 9, until they reached Bohio, instead of that they met between Panama and Bohio. The cause of the accident is thus perfectly apparent, the instructions, and the lack of full instructions, by the train dispatcher. The question as to whether the defendant is liable for the error of the train dispatcher is not an open question in this court, it was passed upon when the case was heretofore before us. See 49 St. Rep., 148.

As to the various exceptions taken to evidence and to the charge of the court on the trial, in the view that I have taken as to the cause of accident, I cannot see that the defendant has been injured by any rulings of the trial court.

The judgment should' be affirmed with costs.

All concur.


author: Mayham, P. J. Brown, J.

text:
    Joseph M. Warren et al., as Surviving Trustees for the Benefit of the Holders of Bonds Secured by a Mortgage or Deed of Trust, etc., Resp’ts, v. The Bigelow Blue Stone Co. et al., Respt’s. In the Matter of the Application of Helen M. Kellogg, a Stockholder, for Leave to Intervene, etc., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    Trust mortgage or deed—Intervention.
    After the lapse of more than twelve years with the knowledge of the execution and existence of a trust mortgage to secure bond-holders, acquiescence by a stockholder, who was such at the time of its execution, will be presumed, and he will not be permitted to intervene, in an action to foreclose such mortgage, for the purpose of setting up the defense of improper execution or usury.
    Appeal from an order denying motion to intervene.
    This is an action to foreclose a mortgage given to secure a series of bonds given by the defendant.
    Pending the action, Helen M. Kellogg, a stockholder of the defendant, petitions to intervene and to be made a defendant, and permitted to interpose an answer. The court at special term denies her application, and from that order she appeals.

      Kellogg, Rose & Smith, for app’lts ; A. T. Clearwater, for resp’t; King & Specie, for Bigelow Blue Stone Co., resp’t; Townsend, JDyett & Mnslein, for Importers & Traders’ Bank, resp’t
   Mayham, P. J.

We think this order should be affirmed for the reasons stated by the learned judge at special term.

Order affirmed, with ten dollars costs and printing disbursements.

All concur.

The opinion of Mr. Justice Brown in the court below was as follows:

Brown, J.

The petitioner on this motion is the owner of shares of stock in the defendant corporation, of which she became the owner in Pebruarv, 1880. She received them from the estate of her father, Luther Baffin, who was a stockholder at the date of the execution of the mortgage in suit.

Interest was paid regularly on the bonds until 1892, and annual statements, showing that mortgage bonds to the amount of $100,000 were among the liabilities of the company, were forwarded to the stockholders. It is not claimed that Mrs. Kellogg, or her father, did not know of the execution and existence of the mortgage, and it appears uncontradicted that some of the bonds were offered to her father at the time of their issue, but he declined to purchase them. Under these circumstances the petitioner cannot be permitted to plead as a defense to an action to foreclose the mortgage that it was not properly executed, or that it was not authorized by the owners of two-thirds of the capital stock. Acquiescence after such lapse of time will be presumed. Kent v. Quicksilver Mining Co., 78 N. Y., 159 ; Skinner v. Smith, 134 id., 240; 47 St. Rep., 528.

The claim that $32,000 of the bonds have been paid by the company does not rest upon the assertion of any fact. It is fully met in the affidavit of Mr. Caswell, and the transaction explained, and it affirmatively appears that none of the bonds were paid bj the company. The defense of usury cannot be pleaded to the mortgage in suit. The petition does not make out a prima facie case, and if all the facts set forth in the moving papers were before the trial court, the plaintiffs would be entitled to a decree directing a sale of the mortgaged property.

The motion must be denied.


author: Herrick, J. Putnam, J.

text:
    The People, App’lt, v. Frank McMasters, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    Game law—Liability.
    Where the defendant goes a hundred yards to shore with fish, and then makes complaint to the game constable because the latter throws them back into the water instead of offering some of them to him, there is no question but that he knowingly has them, and is liable to the penalty prescribed by § 102, chap. 448 of 1892.

      Wilmer H. Bunn, for app’lt; B. Corbin, for resp’t
   Herrick, J.

This is an appeal from a judgment entered upon the verdict of the jury in favor of the defendant, and against the plaintiff, and from an order denying the motion to set aside such verdict. The action is to recover a penalty for violation of the game laws of the state, and for the purpose of this appeal it is sufficient to take the defendant's version of the transaction. His statement is, that he was trolling for fish, and while so trolling, his line got hitched or caught to something, and then when pulled in, he found that it was a net; that he pulled the net, and the fish contained in it into his boat, and started for shore; that when he reached the shore, he saw a game constable who asked him what he was going to do with the net, to which the defendant replied, that he was going to destroy it; then the game constable said he was going to destroy it, for he got paid for that; the constable then took the net and cut it up, and threw the fish back into the water. That the defendant asked him to give him a few, saying, “ you are hoggish, why .don’t you leave some for me to cook.” The point from where the defendant found the net, to where he landed was about one hundred yards. The statute prohibiting the taking of fish in any manner or device except angling reads as follows: “ Fish taken contrary to the provisions of this section shall not be knowingly possessed.” Section 102, chapter 488 of' the Laws.of 1892. There is- no pretense but what the taking of fish in a net is contrary to the statute. There is no question, from the defendant’s own evidence but what he had in his possession fish caught in the net and there is no question but what he knowingly had them.

I can see no inference that can be drawn from the testimony, other than that he intended to keep them. He goes a hundred yards to shore with them in his possession, and he then makes complaint to the game constable because he threw them back into the water instead of offering some of them to him, the defendant, to cook.

Still it may seem rather harsh to hold a person liable for having fish in his possession taken under the circumstances that the defendant claims these were; on the other hand, it is very plain to be seen that a story of the kind here told may be a device to escape the penalty of the law.

But whether harsh or cot, it is the law; and the law in question if it is to be of any benefit must be strictly construed, and jurors are not at liberty to disregard it, because they think that in any particular case it is harsh, and the penalty heavy for the offense committed ; they are not at liberty to disregard the evidence. In this case the evidence of the defendant himself shows a violation of the law. Therefore, judgment should be reversed, and a new trial ordered, costs to abide the event.

Mayham, P. J., concurs.

Putnam, J.

Defendant did not catch the fish in question. He found them in a net placed by another party. He proceeded to to take the net with the fish in it to the shore. While they were being so conveyed I think the fish were not in possession of defendant within the meaning of the statute, unless he intended to keep them. It is not clear that he so intended. The presumption is against such an intention. I think the question of his intent under the circumstances of the case was one of fact for the jury, and hence that the trial judge properly disposed of the case.


author: Mayham, P. J.

text:
    S. Walter Scott, App’lt, v. The Sun Printing and Publishing Association, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    1. Verdict—Reductioh.
    Allowing tlie verdict to stand reduced in amount is equivalent to holding that the plaintiff is entitled, upon the case proved, to recover, hut, that the verdict is excessive.
    2. Damages—Excessive.
    When the damages found by the jury are flagrantly outrageous and extravagant, so as to evince intemperate passion, partiality or corruption, the court may interfere by setting aside the verdict altogether, or by directing the plaintiff to stipulate to take a less sum as a condition of retaining his recovery.
    8. Same.
    A case must be very gross, and the recovery enormous, to justify the interposition of the court on a mere question of damages in an action for libel.
    This is an appeal by the plaintiff from an order at the circuit setting aside the verdict of $10,000 as excessive, and an order granting a new trial, unless within thirty days after the service of the order the plaintiff stipulated to reduce the verdict to the sum of $4,000.

      Gibson & Van Kirk (G. 0. Kirk, of counsel), for app’lt; J?. & G. A. H. Bartlett (Franklin Bartlett, of counsel), for resp’t.
   Mayham, P. J.

The only question that can he properly considered on this appeal, is as to whether this verdict should he set aside or modified as excessive.

That seems to be conceded by counsel on both sides, and is the logical result of the order appealed from.

If the learned judge had felt called upon to interfere with the verdict, for errors and exceptions on the trial, he would have set aside the verdict in toto, as he would have had an undoubted right to do for such errors. Allowing the verdict to stand reduced in amount is equivalent to holding that the plaintiff is entitled upon the case proved, to recover, but that the verdict was excessive in amount.

Was the verdict within the rules of law governing such questions, excessive to such a degree as to authorize the court, for that reason, to set it aside or reduce it ? In actions for tort, when the damages are necessarily unliquidated, the judgment of the jury and not that of the court must fix the amount of recovery, subject only to the qualification, that when the damages found by the jury are flagrantly outrageous and extravagant, so as to evince intemperate passion, partiality, or corruption on the part of the jury, the court may interfere, by setting aside the verdict altogether, or by directing the plaintiff to stipulate to take a less sum as a condition of retaining his recovery.

We are not aware that this rule has ever been departed from in this state, and it has the sanction of the federal courts, and the highest judicial authority in England.

This rule has been recently re-affirmed in this court.

In Stephen v. The Hudson Valley Knitting Co., 48 St. Rep., 814, Herrick, J., says : “ In action for damages for torts, it is the well established law of this state that verdicts of jurors will not be set aside for excessiveness unless the amount is so great as manifestly to show that the jury must have been actuated by passion, partiality, prejudice or corruption.” Citing 9 Johns., 45; 13 Hun, 19 id., 253 ; 53 How., 395 ; 54 id., 495 ; 12 Barb., 492, and he adds : “ The case is one of that kind where if the plaintiff is entitled to recover at all, it is peculiarly the province of the jury to say how much. * * * The question of damages in such case is one which it is the special duty of the jury to determine; and while the court may reduce a verdict, it seems to me that if the court thinks the verdict is ■ so large as to indicate that the jury was actuated by improper motives, it is better to set the verdict entirely aside and have another jury pass upon it rather than determine itself what the verdict shall be, and thus assume and exercise the functions of a jury.”

While the policy of the reduction of the amount of a verdict by the court is, we think, properly questioned by the learned judge, its power to do so is conceded and seems to be established on authority. Holmes v. Jones, 121 N. Y., 461; 31 St. Rep., 379. Yet the exercise of the power to interfere with a verdict on the ground that it is excessive is confined to cases of manifest misconduct or impropriety on the part of the jury as evidenced by the excessive and unreasonable amount of the verdict.

This rule was adopted in this state as early as the case of Tillotson v. Cheethan, 2 Johns., 60, when the court said: “We cannot interfere on account of the damages. A case must be very gross and the recovery enormous to justify our interposition on a mere question of damages in an action of slander.”

This language was quoted with approbation in Root v. King, 7 Cow., 613, when the court refused to set aside or interfere with a verdict in an action for libel on the ground that it was excessive. In McCannell v. Hampton, 12 Johns., 236, the court say: “To justify the granting of a new trial vthe damages must be flagrantly outrageous and extravagant, evincing intemperance, passion, partiality or corruption on the part of the jury.”

. Tested by these rules we cannot concur in the opinion of the learned trial judge in setting aside or reducting this verdict.

The jury was required to assess these damages, and while this court or the trial court, might as an original question have fixed a lower measure of damages, in view of the gravity of this charge, we cannot say that the jury in arriving at and pronouncing their verdict, have evidenced by it that they were influenced By any of the improper motives which would authorize this court, within the rules of law, above referred to, to set aside this verdict • The order of the special term must be reversed, with ten dollars costs and printing disbursements.

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


author: Putnam, J.

text:
    William Sylvester, App’lt, v. Thomas B. Wheeler, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    1. Appeal—Nonsuit.
    Where a judgment of nonsuit has been granted, all contested questions of fact are deemed established in favor of plaintiff.

      2. Tbial—Question fob juby.
    Where under a contract X' construct a water-tight tank, there is evidence that the plaintiff’s assignor performed the contract in every respect except as prevented by the defendant, it presents a fair question of fact for submission to the jury.
    Appeal from a judgment of nonsuit.

      Shedden & Booth, (L. L. Shedden, of counsel), for app’lt; James B. Stearns, for resp’t.
   Putnam, J.

As claimed by plaintiff under well settled principles, a judgment of nonsuit having been granted by the trial court, all contested questions of fact should be deemed established in his favor. Bearing in mind this well established principle, the following facts may be considered as shown by the plaintiff on the trial.

Plaintiff’s assignor entered into a contract with the defendant, of which the following is a copy :

“ Bouses Point, K Y., November 11, 1891.

“ I hereby agree to construct for T. B. Wheeler, of Montreal, a tank of eighteen hundred gallons capacity, of clear stuff, pine, free from sap or knots, two inches thick, six feet three inches square, or more, if necessary, absolutely water tight immediately on being filled, of the very best workmanship, and of sufficient strength to be perfectly secure, with platform complete, at his labratory at Bouses Point, for the sum of eighty dollars, to be in place thirty days, or before, from date.

“E. 0. Sylvester.

“ Accepted, T. B. Wheeler.”

In pursuance of this contract Sylvester within thirty days made a tank of the best materials, free from knots and in the best manner, water tight and in all regards as called for by the terms of the contract. He did a “very fine job,” and on December 11, endeavored to set it up in the building mentioned m the contract, but was unable to obtain access to that place. One Bullís, who had, as Sylvester claimed, charge of the building for defendant, told him that Wheeler would be there the next day—Saturday, December 12th. He did not come Saturday, and on Monday, the 14th, Sylvester telegraphed to him at Montreal that the tank was ready and received a day or two after an answer stating that he would be at Rouses Point on December 21st.

On December 21st he accordingly came. The tank was set up and leaked. There was some evidence that it was merely a slight leakage. It was shown that when completed the tank wbuld not leak, being made of the best materials and in the best manner, and that the leakage was caused by its remaining for ten days in Sylvester’s shop exposed to the heat of the stove. When Sylvester put the tank in defendant’s labratory he offered to tighten it up, but the latter would not permit him to do so. Sylvester testified : “I told him if I did that it would stop the leaking. At that time it leaked just a drop in two or three places. He refused to allow me to tighten it up.”

The jury, if the case had been submitted to them, could have found from the evidence that, within the time specified by the contract, plaintiff’s assignor had constructed a tank in all regards as required,—of the best materials and in the best man ner, and one that would not leak, and had tried but was unable to place it in defendant’s labratory, which was not accessible to him. That defendant had prevented him from placing the tank in his labratory by locking up the same and remaining away from Rouses Point. In other words, that Sylvester had performed the contract as to making the tank and endeavored to perform it as to placing it in the labratory, but was prevented from so doing by defendant’s act. That defendant, after receiving notice of the completion of the tank, delayed seven days before opening his labratory to allow it to be placed therein. That the ten days delay occasioned by defendant’s absence, three day before he received the telegram and seven days afterwards, caused the leakage.

"Under the contract, Sylvester was legally bound to construct a tank as specified therein, within thirty days, and put the same in defendant’s premises, and the latter was obliged to receive the tank at the place specified in the contract, and, if made according to the agreement, to pay for it. The rights of the parties under the contract were not at all affected or changed by the letter written by defendant on November 14.

If Sylvester had completed the tank prior to. the expiration of thirty days from the date of the contract, it is possible that defendant would have been entitled to notice, so as to have had his labratory open ; but as Sylvester was only ready to place the tank on the last day mentioned in the writing, we think defendant was not entitled to any notice. The contract was notice to him. He was bound to carry out the covenants in the contract and to receive the tank where Sylvester covenanted to put it and where he agreed to receive it. He prevented Sylvester from carrying out the contract for ten days and for seven days after actual notice from Sylvester that the tank was ready. It was suggested by the trial court that from the evidence it may be deemed that the time to perform the contract was extended ten days by consent of the parties. The evidence, we think, is capable of another construction. The jury could have properly found that plaintiff’s assignor was prevented from placing the tank for ten days by the defendant without his consent. It appeared that he could not help himself. He testified on the trial that he “ told Dr. Wheeler the morning he came to receive the tank—before it left my shop—he told him it was not fair of him to bind me to make it and leave it there in my shop ten days.” Well, said he, “ I am ready to take it now.”

On the whole, we think, there was a fair question of fact in the case that should have been submitted to the jury. The jury on the evidence given could have properly found that plaintiff’s assignor performed the work on his part as to making the tank according to the covenants of the contract, and was prevented from placing it for ten days, and that this delay, occasioned by defendant, caused a slight leak. In other words, that plaintiff's assignor performed the contract in every regard except as prevented by defendant, and hence, that plaintiff was entitled to recover the contract price of the tank.

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

All concur.


text:
    Abel S. Myers, Resp’t, v. James Y. Parker et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    1. Trespass—Animals.
    In an action for trespass by defendant’s cattle in plaintiff’s garden and oat field, an agreement on plaintiff’s part to pasture such cattle is no defense, unless they strayed there through his fault.

      2. Evidence—Opinion.
    In an action for trespass by cattle, it is incompetent for defendant to testify that he considered his cattle in plaintiff’s care so long as he rented pasture from him, and, for that reason, he claimed that the cattle did not commit any trespass.

      Wilton Bennett, for app’lts; Ohas. S. Stage, for resp’t.
   Putnam, J.

This action was commenced in a justice’s court and on a verdict of a jury judgment rendered in favor of defendant for costs. The county court of Sullivan county reversed such judgment and defendant appeals to this court. The complaint stated a cause of action for trespasses of defendant’s cattle on premises of plaintiff. The alleged trespasses were clearly shown by testimony produced by plaintiff, which was not contradicted. The defendant undertook to show that plaintiff at the time of the alleged trespasses was under an agreement to pasture defendants’ said cattle, but no attempt was made to show a contract to so pasture them in plaintiff’s garden or oat field, where the alleged trespasses were committed. Plaintiff’s agreement to-pasture the cattle was no defense unless shown to be one to pasture them in plaintiff’s garden or oat field, or unless it appeared that the cattle strayed to those places through some fault of plaintiff. No such proof was produced by the defendants. On the evidence we think plaintiff was entitled to judgment.

Again, on the trial the following questions were asked defendant Parker as a witness, and he was allowed to give the following answers, viz.: “ Q. Did you consider your cows in plaintiff’s care so long as you rented pasture from him ? Objected as improper and immaterial and not within the issues raised by the answer. Objection overruled. A. Yes, sir. Q. And for that reason you say that these cattle did not commit any trespass on plaintiff’s, lands? Same objection. Same ruling. A. Yes, sir.” We think that this evidence was improperly received. The objections thereto of plaintiff should have been sustained. This evidence may have affected the verdict of the jury.

Our conclusion is that the judgment of the county court should be affirmed with costs.

All concur.


author: Per Curiam.—

text:
    Patrick Haddock, Resp’t, v. Patrick Naughton, Appl’t.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    Evidence—Slander.
    In an action for slander in charging plaintiff with unlawful intercourse-with his own daughter, evidence that he attempted to outrage another daughter is admissible in justification.
    Appeal from a judgment in favor of plaintiff.

      D. 8. Hill (T. F. Bush, of counsel), for appl’t; George H. Carpenter, for resp’t
   Per Curiam.—

Without considering or passing on the question raised as to whether the answer properly alleged a justification, we are of opinion that the evidence offered to show that plaintiff attempted an outrage upon his daughter Anna was properly excluded by the trial court

This case did not involve a question of motive or intent. The simple question was, did the plaintiff have unlawful intercourse with his daughter Mary. It is only in very exceptional cases,an issue being raised as to the commission of a crime by a party to the action, that another distinct offence can be shown. Those cases are where the intent or motive or knowledge c.f the party is a subject of inquiry. This in Cary v. Hotaling, 1 Hill, 311; Hill v. Naylor, 18 N. Y., 588, arid all the other cases cited by appellant, the intent or .motive of the alleged wrong doer was in question and necessary to be shown. The case of Mayer v. The People, 80 N. Y., 364, was where the defendant was indicted for false pretenses. Before-he could be convicted it must be shown that he intended to cheat and defraud. On that question evidence of similar transactions at about the same time was held competent. In the opinion of Justice Bari in the note at the end of said case, the learned judge quoted from Wharton’s American Criminal Law as follows: “ Where the scienter or quo animo is requisite to and constitutes a necessary and essential part of the crime with which the person is charged, and proof of such guilty knowledge or malicious intention is indispensible to establish his guilt in regard to the transaction in question testimony of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent is competent, notwithstanding they may constitute in law a distinct crime.”

In this case the defendant to establish his justification, assuming that one was alleged in the answer, was not compelled to show motive, intent or scienter of the plaintiff. He was simply bound to show that plaintiff had unlawful intercourse with his daughter. We think that he could not do so, by showing an outrage or attempted outrage on the person of another daughter.

No other error is suggested by the learned counsel for the appellant. Nor is it claimed that the judgment should be reversed on the evidence.

We therefore conclude that the judgment should be affirmed with costs.

Mayham and Herrick, JJ., concurs.


author: Barnard, P. J.

text:
    John New et al., Resp’ts, v. Howard Carroll et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Mechanic’s lien—Completion by owner.
    Where the defendant employed a carpenter to build a house, who engaged plaintiff to dig the foundation for a certain sum, an 1 afterwards plaintiff’s architect ordered the excavation to be enlarged, which was done under the direction of the architect, but, before the foundation was finished, the carpenter fell sick, and the house was completed by other persons upon the foundation made by plaintiff, the latter is entitled to a lien, for the work done by him.
    Appeal from a judgment in favor of the plaintiffs.
   Barnard, P. J.

The defendant Carroll is the owner of a lot of laud in Yonkers. He sent to defendant Koch, a carpenter and builder, to come to his office, and upon his arrival, told him that he wished him, Koch, to build a house on this lot for him. Koch accepted the employment. A few days after this in August, 1891, Koch was directed to start the house at once. Mr. Sufelt was Carroll’s architect, and within a day or two employed the plaintiff to dig the foundation. At this time only the foundation plan was made out New agreed with Koch to excavate the foundation for $520. Subsequently the extent of the excavation was increased by order of the architect, and this increase cost $240. The entire excavation was done under the direction of the defendant Carroll’s architect Before the excavation was finished Koch was taken sick, and was not able to build the house, but the same was finished on the foundation made by plaintiff, by other parties. Koch agreed to give $520 for the original work, and although the plaintiff said it was too much, no one stopped the plaintiffs, or told them that the agreed price was not to stand. On this proof the referee properly found that the plaintiffs were employed by Koch; that Koch as to this work was a contractor with Carroll; that it was worth $520, the agreed price, and that the extra work was worth $240. Nothing has been paid to Koch or to the plaintiffs on account of the same. The referee also justly and properly found that there was due from the owner to Koch, the contractor, the sum of $760. The proof .is clear that the owner knew of the progress of the work under the contract with Koch, and under the directions of his own architect, and was completed according to the requirements of the architect. The facts found authorize the judgment. Otis v. Bodd, 90 N. Y., 336 ; Miller v. Mead, 127 id., 544 ; 40 St. Rep., 177; Pell v. Baur, 133 N. Y., 377; 45 St. Rep., 241.

The judgment should be affirmed, with costs.


author: Dykman, J. Brown, J.

text:
    The Bath Gas Light Co., Resp’t, v. John Claffy, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Corporations—Ultra vires.
    A lease by a gas company of all its property and franchises is ultra vires.

    2. Same—Recovery,
    Though the lease is void, the company may recover for the rent, where the lessee has occupied demised premises.
    Appeal from a judgment entered upon the decision of the court.

      Kellogg, Rose & Smith (L. Lafllin Kellogg, of counsel), for app’lt; James McKeen, for resp’t
   Dykman, J.

This is an appeal from a judgment entered upon the decision of a justice of this court after a trial before him without a jury.

"We concur in the views of the trial judge and agree to affirm the judgment upon his opinion.

The opinion of Mr. Justice Brown in the court below is as follows:

Brown, J.

This case cannot be distinguished either in' fhfe character of the contract sued upon or in the cause of action set forth in the complaint from the case of St. Louis R. R. Co. v. Terre Haute R. R. Co., 145 U. S. Rep., 393, 402; The Central Transportation Co. v. Pulman Palace Car Co., 139 U. S. Rep., 24; Pennsylania R. R. v. St. Louis, etc., R. R., 118 U. S., 317; Thomas v. Railroad Co., 101 U. S., 71, and many others decided in the United States supreme court. The decision in these cases rested largely upon the fact that the contracting corporations w ere of a guasi public character, and “ exercised a public employment and were charged with the duty of accommodating the public in the line of that employment,” and in this respect, in their ability to contract for the disposal of their property, they were distinguished from a private business corporation. It would be impossible, I think, to make any distinction in this respect between a transportation company and a gas company. Each in respect to its business is charged with the duty of accommodating the public and is subject to legislative control. The gas company may be, and usually is, required to furnish gas to any applicant within a reasonable distance of its distributing mains. Its meters and the price of its gas are subject to public inspection and legislative regulation. It may be given the power to exercise the right of eminent domian, and the discharge of its duties to the public and individuals may be compelled by mandamus. In reference to the public character of a gas company the Supreme court of the United States has said: “ The manufacture of gas, and its distribution for public and private use by means of pipes laid, under legislative authority, in the streets and ways of a city, .is not an ordinary business, in which any one may engage, but it is a franchise belonging to the government, to be granted for the accomplishment of public objects to whomsoever, and upon what terms, it pleases. It is a business of a public nature, ana meets a public necessity for which the state may make provision. "x" * * New Orleans Gas Co. v. Louisiana Light Co., 115 U. S., 650.

The plaintiff in this case had specific authority to lay gas pipes in any of the public streets or highways in the city of Bath upon obtaining consent of the authorities of said city, and to re-lay and repair the same, and its business was made subject, in the act of March 30, 1853, to many conditions imposed for the benefit and accommodation of the public. And, while it is true, as claimed by the learned counsel for the plaintiff, that the defendant had an equal right to occupy the streets, and did not, so far as appears in evidence, acquire any right of a public nature from the lease that it did not possess under its articles of incorporation and the general laws of the state, the • case is not different in this respect from Central Transportation Co. v. Pulman Palace Car Co. In that case the defendant acquired and possessed, under its charter, powers and franchises as broad as those of the other contracting party, and, in substance, the contract gave it only the property conveyed, and the covenant of the plaintiff not to engage in business during the term of the contract. So here there is a lease of all the tangible property, and the conveyance of the use of the pipes and mains in the streets, and the agreement is, in substance, that plaintiff will not exercise its franchise during the existence of the lease. In my opinion, therefore, it was not within the power of the- plaintiff to execute the lease in question. It does not, however, follow that there can be no recovery in the case of a contract ultra vires which has been partly performed. All the authorities concede that, although all do not agree as to the form in which the recovery may be had. In the case last cited the action was upon the contract, and the complaint was dismissed. It appears to be conceded that the .defendant was under some liability to pay for the use of the property prior to its return to the plaintiff, and the intimation was, as it was in Penn. R. R. v. St. Louis R. R., supra, that it was in the nature of a meruit, and 1 not by an action on the contract. In this state the rule appears to be different. Woodruff v. Erie R. Co., 93 N. Y., 609; Rider Life Raft Co. v. Roach, 97 id., 378; Starin v. Edson, 112 id., 206 ; 20 St. Rep., 898 ; Mayor v. Huntington, 114 N. Y., 631; 23 St. Rep., 912 ; City of Brooklyn v. Balcom, 134 N. Y., 532 ; 47 St. Rep., 907. How far the final disposition of the action may be dependent upon the form of pleading, we need not inquire, but certainly when in our own state the distinction between forms of action are abolished, and when all the facts essential to a right to recover for the use and occupation of the property are alleged in the complaint, no reason is apparent why judgment should not be awarded according to the right and justice of the case made upon the trial. Assuming, therefore, that the contract was void, which need not necessarily be determined, I regard it of no importance whatever whether the plaintiff was to recover in his complaint upon the contract, or in disaffirmance of it. The only difference is between an express or implied agreement, and the nature of the cause of action in each case is the same, and the agreement is some evidence of the value of the use. All the cases cited from the court of appeals were, however, upon the contract, and recovery was had in all upon the ground that to decide otherwise would be to accomplish k wrong, and not promote justice. And especially would this be the case when neither the people of the state in which the corporation was created, nor any stockholder of the plaintiff corporation, has complained or objected to the contract I am constrained to follow, therefore, the law of our state upon the question, in the absence of any controlling authority in the state of Maine showing that the courts of that state have adopted the rule prevailing in the United States courts. None of the cases cited by the learned counsel for the defendant so hold. Bangor Boom Co. v. Whiting, 29 Me., 125, was an action in assumpsit. No specific agreement was alleged, and the only question raised was as to the right to amend the complaint, which had been granted on the trial. In Andrews v. The Union Fire Ins. Co., 37 Me., 256, there was an attempt to recover, under an ordinary policy against fire, for damages by lightning. The policy by its terms did not insure against damage by lightning unless it caused fire; it was attempted to enlarge the policy by reference to the by-laws of the company; this was overruled, and no other question was involved.. There is nothing in Cuming v. Webster, 43 Me., 192, applicable to this case. In Daly v. Trustees, 71 Me., 472, the defendant constituted a quasi corporation for a single purpose of holding and transferring title to property, and without'tbe power to contract or incur debts, and the decision went upon that ground. Franklin Co. v. Lewiston Ins. Co., is probably not cited correctly, and I have been unable to find it. None of these cases conflict with the rule that recovery may be had on an executed contract, although ultra vires. In this case the plaintiff seeks to recover the rent to the date of the removal of the defendant corporation from the property, and under the rule of Woodruff v. Erie R. R. Co., and kindred cases in this state, it is entitled to recover judgment.


author: Barnard, P. J. Dykman, J. (dissenting).

text:
    Alexander M. Conway, App’lt, v. Edward O. Carpenter, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Appeal—Dismissal of complaint.
    The facts and circumstances in this case were held sufficient to require the submission of the cause to the jury and render the dismissal of the complaint error.
    Appeal from a judgment dismissing the complaint

      William Riley, for app’lt; Rudd, Hunt & Wilder {James M. Hunt, of counsel), for resp’t
   Barnard, P. J.

The plaintiff is a minister of the gospel. On the 6th of March, 1892, he was attached as minister to the Messiah Baptist Church of Yonkers. The church edifice did not belong tq the Messiah Baptist Church, but was held under a lease frorp, the owner, the Warburton Avenue Baptist Church, at a nominal rent. There was a clause in this lease that if there should arise any serious disagreement in the Messiah congregation the landlord might, forthwith, re-enter. The plaintiff, on the 6th of March, 1892, on Sunday, went to the Messiah church to preach. One worshipper entered with the pastor. When he entered the ehurch or soon after, someone locked the door on the outside. The pastor began to preach to his small congregation, and suddenly, soon after he commenced, the door was unlocked and the pastor was forcibly removed from the pulpit and church and put out of the edifice by the direction of the defendant. He is a trustee of the lessor church. The justification for the act is contained in a resolution passed on March 5, 1892, as follows :

“ In closing the Messiah church on Sunday last, on motion, it was resolved that the keys be returned to Mr. Pollard and that he have permission to open the house for religious purposes only, and in case of any disturbance he return the keys to Mr. E. O. Carpenter.” Mr. Pollard was an officer in the Messiah church, and he aided in the force used on the occasion. There was no proof of the surrender of the lease or of its termination, except hy the resolution. There were no keys shown to have been in possession of the Warburton church or of Mr. Pollard, and if such fact existed, no justification is thereby made for this violent assault on a pastor who had no notice of the fact that the Warburton church had taken possession of the house of worship.

The judgment should be reversed and a new trial granted^ costs to abide the event.

Dykman, J. (dissenting).

This action was commenced for the recovery of damages for assault and battery by the defendant upon the plaintiff.

The complaint of the plaintiff was dismissed at the circuit, and he has appealed from the judgment. The plaintiff is a minister of the gospel, and had been the pastor of the Messiah Baptist church in the city of Yonkers, in Westchester county, but he had resigned his charge in December, 1891, and his resignation was accepted. On the 6th day of March, 1892, however, the plaintiff entered the meeting house and commenced to preach a sermon from the pulpit therein. The defendant was a member of the Warburton Avenue Baptist church, the owner of the building, and received authority from the trustees of that church to protect the building and prevent the plaintiff from trespassing upon'the premises. In pursuance of such authority he went to the building with a policeman and found the plaintiff there and caused his removal, and that is the assault of which the plaintiff complains. Under this state of facts the plaintiff obviously has no cause of action. He was a trespasser and intruded himself into the church building without authority or right, and the defendant was authorized by its owner to remove him. In doing so no unnecessary force was exerted and the defendant acted within his authority and rights.

The record discloses no error, and the judgment should be affirmed with costs. 0


text:
    Alonzo Osborn, App’lt, v. George Stephens, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Venue—Convenience of witnesses.
    It was held that, under the facts and circumstances of this case, it was error to grant defendant’s motion for change of place of trial from Westchester to Tompkins county for convenience of witnesses.
    Appeal from an order changing the place of trial.

      A. J. Adams, for app’lt; David M. Dean, for resp’t.
   Barnard, P. J.

The papers show that the defendant made a complaint upon a criminal charge of larceny in July, 1890, in Tompkins county. The arrest of the plaintiff was made in Westchester county. There were two complaints made upon the same charge, and the plaintiff was discharged upon each complaint. The arrest and the discharge are not disputed. The complaint in this action is for a malicious prosecution, and the plaintiff has to prove on the trial that the defendant had no probable cause to make the complaint and that he did so maliciously and with intent to injure the plaintiff. Upon these two items the trial should take place in Westchester county. The facts out of which the controversy arose are these: The plaintiff owed the defendant a small debt for groceries sold him. He had a crop of growing tobacco. He assigned the crop to defendant as security for the debt The plaintiff sold the crop and applied the proceeds to his own use. The defendant, after the sale, agreed to loan the proceeds to plaintiff’s wife on a note for four months, and did so. The note was not paid, and then followed the complaint. . The fact of the giving of the note by the plaintiff’s wife can be proven by the plaintiff’s wife and by Grinnell Barnes, witnesses who live in Westchester county. The plaintiff was arrested in Westchester county upon the first arrest. Upon the failure of that, the second arrest was made in Tompkins county. It will be seen that the proof of the loan of the money to the plaintiff’s wife is vital, and the plaintiff’s witnesses to prove that live in Westchester county. It cannot be said that the place of the transaction is entirely one in Tompkins county. The complaint was made there and the discharge given there, but plaintiff was a resident of Westchester county, and was taken, under circumstances of great indignity, from that county to Tompkins county.

The order should be reversed, with costs and disbursements, and the motion denied, with ten dollars costs, to abide event.


author: Lewis, J.

text:
    Heman A. Hibbard, App’lt, v. John H. Randolph, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    1. Trial—Offer of judgment.
    Under § 738 of the Code, the defendant is not limited to one offer of judgment, provided the offers are served within the time prescribed in. such section.
    3. Judgment—Assignment.
    Where, after an offer of judgment is made, the plaintiff recovers, but the defendant is entitled to costs accruing subsequent to offer, an assignee of such recovery takes it subject to defendant’s right to offset such costs.
    Appeals from orders of the county court of Chautauqua county.

      A. C. Pickard, for app’lt; J. D. Curtiss, for resp’t.
   Lewis, J.

The defendant unquestionably had the right to serve the second offer of judgment.

The county court, upon conflicting affidavits, decided that the defendant did serve a second offer of judgment for the sum of ninety dollars, which was for a greater amount than plaintiff’s recovery, and, therefore, the defendant was entitled to costs accruing after service of that offer. In taking an assignment of plaintiff’s claim, the attorney took it subject to the right of the defendant to offset the costs to which he might be entitled against the plaintiff’s judgment, in whosoever hands it might be. Were the rule otherwise, the provision of the Code providing for offer of judgment would be practically ineffectual and nugatory. Warden v. Frost, 35 Hun, 141.

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

Dwight, P. J., Haight and Bradley, JJ., concur.


author: Davy, J.

text:
    Richard P. McBride v. Frank O. Chamberlain et al., as administrator with the will annexed of Elbridge G. Lapham, deceased.

      (Supreme Court, Special Term, Ontario County,

      Filed June, 1893.)

    1. Costs—Executors and administrators.
    Sections 1835 and 1836 do not have reference to actions against executors or administrators for equitable relief.

      2. Same.
    Where such action is referred, costs are within the referee’s discretion.
    3. Same—Review.
    The exercise of such discretion cannot be reviewed upon a motion at special term.
    Motioh to correct judgment by striking certain items of costs ' therefrom.

      Henry M. Field, for pl’ff; Charles B. Lapham, for def ts.
   Davy, J.

The issues raised by the pleadings in this case were, by stipulation, referred to a referee to hear, try and determine, who rendered a decision in favor of the plaintiff. An appeal was taken from the judgment rendered upon this report which was reversed and a new trial granted, with costs, to abide the event. The case was then, by agreement, referred to another referee who also rendered a decision in favor of the plaintiff, with costs, holding that the plaintiff was entitled to a judgment requiring the defendants, as administrators, to assign and deliver to the plaintiff the bond and mortgage referred to in the complaint and restraining them from collecting any of the interest or principal due and unpaid thereon, and that the plaintiff was also entitled to recover the sum of $282.99, with interest thereon from the date of the referee’s report.

Upon the taxation of costs the defendants’ attorney appeared before the clerk of Ontario county and objected to the allowance of $192 costs, incurred on the second trial, upon the ground that the referee had no power, under the Code to award costs against the administrators; that costs could not be imposed against them only upon application to the court This motion is, therefore, made to correct the judgment by striking therefrom the said sum of $192.

Costs against executors and administrators in civil actions and in proceedings by reference, under the statute, are regulated by the Code of Civil Procedure. A proceeding by reference, under the statute, to enforce payment of a disputed claim against the estate of a decedent is not an action but a special proceeding founded solely upon the statute. 2 E. S., §§ 89-90. It can not be commenced by service of a summons and there are no pleadings. It can only be referred by the consent, in writing, of both parties and the approval of the surrogate. The only way in which it can be tried is before a referee, who has no power over the subject of costs, and his report is required to be confirmed before going into judgment. Roe v. Boyle et al., 81 N. Y., 305 ; Eldred v. Eames, 115 id., 403; 26 St. Rep., 277.

An action is commenced by the service of a summons in some one of the modes prescribed by law and no proceeding can be an action unless it be commenced' by the service of a summons on the opposite party.

The right oí a plaintiff, under § 3246 of the Code, to costs, on the recovery of a judgment in his favor in an action against an executor or administrator, is qualified by §§ 1835 and 1836, which make the right contingent and not absolute. The last section prohibits the allowance of costs in an action against an executor or administrator upon the recovery of a money judgment unless the claim against the estate was duly presented and the payment thereof was unreasonably resisted or neglected or the defendant refused to refer as prescribed by law, either of which conditions existing the court may, in its discretion, adjudge costs in favor of the plaintiff, and these facts must be certified by the judge or referee before whom the trial takes place.

It will be seen that §§ 1835 and 1836 define the nature of the action wherein costs may be allowed, which is, where the judgment for a sum of money only is rendered. These sections do not have reference to actions against executors or administrators for equitable relief. The judgment entered in this case requires the defendants, as administrators, to assign a certain bond and mortgage to the plaintiff and to account and pay over to him the interest money collected thereon. The action is for equitable relief and the issues having been referred to a referee to hear, try and determine, costs were within his discretion.

Section 1022 of the code of civil procedure expressly provides that in an action where costs are in the discretion of the court, the decision or report must award or deny costs; and if it awards costs it must designate the party to whom costs to be taxed are awarded. The referee’s report, as to costs, stands as the decision of the court.

The referee’s report in this case complied with the requirements of the above section. It contained findings of fact and conclusions of law and awarded costs against the defendants.

In the case of Barker v. White, 3 Keyes, 617, New York Court of Appeals Decisions, 95, the referee found in favor of the plaintiff and awarded costs against the defendant, the administrator. The court held that the action being in equity, the giving or withholding of costs against the administrator was within the discretion of the referee.

In Piper v. Poppenhauser, 43 N. Y., 68, the point was raised that the court had erroneously awarded costs against the executors contrary to the provisions of the code; the court held, Peckham, J., writing the opinion, that costs in equity cases are in the discretion of the court, to grant or refuse. Citing the case of Barker v. White, supra, with approval.

Folger, J., in Herrington v. Robertson, 71 N. Y., 280, says: “In equity suits costs are in the discretion of whatever court passes upon the question.”

The awarding or withholding of costs in this action was discretionary with the referee, and he having awarded costs against the defendants, his decision cannot be reviewed upon this motion. The remedy is to except to the findings of the referee and to appeal to the general term from the judgment entered upon his report. Woodford v. Bucklin, 14 Hun, 444; Rosa v. Jenkins, 31 Hun, 384.

This motion, therefore, must be denied, with ten dollars costs to the plaintiff.


author: Gray, J.

text:
    Frederick J. Lancaster, Pl’ff, v. The Amsterdam Improvement Company, Def't.

      (Court of Appeals,

      Filed January 16, 1894.)

    1. Corporations—Foreign.
    A foreign corporation, organized for the purpose of dealing in real estate, may, under the laws of New York, transact the business of purchasing and selling real estate situate in New York.
    2. Same.
    The fact that its incorporators are citizens of this state, and that it has its principal office and conducts its business here, does not exclude it from recognition by the courts of this state.
    3. Same.
    Where such corporation has complied with the provisions of the laws of this state, any question as to its right to transact business here, because of alleged irregularities in its organization, cannot be raised by one dealing with it.
    4. Same.
    Nor, in such case, can he raise the question that the' corporation has exceeded its authority.
    5. Same.
    A foreign stock corporation, after complying with the provisions of chap. 687 of 1892, is accorded the same right to transact business here, as domestic corporations.
    6. Same.
    Such right, so far as it related to the purchase and sale of lands is not limited by the provisions, of §§ 17 and 18 of this act.
    This was a submission of a controversy to the general term in the first department upon agreed facts.
    The Amsterdam Improvement Company was incorporated under the laws of the state of New Jersey, in May, 1891, by five persons, of whom one only was a resident of that state, the others-being residents of this state. Its certificate of incorporation, filed that day, contained the following article:
    “ Second. That the places in this state, where the business of such company is to be conducted, are Jersey City and the city of Hoboken, in the county of Hudson. The principal part of the business of said company within this state is to be transacted at Jersey City in the county of Hudson, and the places out of this state where the same is to be conducted and where the company proposes to carry on operations are the cities of New York and Brooklyn, in the state of New York; and that the objects for which said company is formed are the purchase and sale of real property, both improved and unimproved, the improvement of such property as may be purchased, and which, when purchased is unimproved, the exchange of property for other property, the lending of moneys.upon first and second mortgages, secured by bonds, and the purchase and sale, by assignment or otherwise, of such mortgages and bonds. The portion of the business of said company which is to be carried on out of this state in the said cities of New York and Brooklyn will be such as will come under the head of the objects for which this company is formed. The principal office or place of business of said company, out of this state, is the city of New York, in the county and state of New York.”
    On December 21, 1892, the secretary of state of the state of New York issued a certificate, of which the following is a copy:
    “State of New York, )
    “ Office of the Secretary of State, Albany, j
    “ It is hereby certified that the Amsterdam Improvement Company, which appears from the papers filed in this office on the twenty-first day of December, 1892, to be a foreign stock corporation, organized and existing under the laws of the state of New Jersey, has complied with all the requirements of law to authorize it to do business in this state, and that the business of such corporation to be carried on in this state is such as may be lawfully carried on by a corporation incorporated under the laws of this state, for such or similar business.”
    The statute under which this company was incorporated provided that: “ It shall be lawful for three or more persons to
    associate themselves into a company to carry on any kind of manufacturing, mining, chemical, trading or agricultural business, agricultural farms and exhibitions for the encouragement of competition in agriculture, horticulture, breed of stock and development of speed in horses, the transportation of goods, merchandise or passengers upon land or water, inland navigation, the building of houses, vessels, wharves or docks, or other mechanical business, the reclamation and improvement of submerged lands, the improvement and sale of lands, etc.”
    This statute also provided that corporations shall have the power “ to hold, purchase and convey such real and personal property as the purposes of the corporation shall require, not exceeding the amount limited in its charter, and all other real estate which shall have been bona fide mortgaged to the said company by way of security, or conveyed to them in satisfaction of debts previously contracted in the course of dealings, or purchased at sales upon judgment or decree which shall be obtained for such debts.”
    Other provisions authorized a company organized under the' statute to carry on a part of its business, and to have offices out of the state, and that “ they may hold, purchase and convey real and personal property out of the state, the same as if such real and personal property were situated in the state of New Jersey, provided that the certificate of organization shall state,” etc., etc. Another provision authorized any New Jersey corporation, incorporated under any general or special act, to conduct its business outside the state.
    May 23, 1891, Arthur P. Smith was the owner of a lot of vacant and unimproved land in the city of New York, which, by a deed dated that day and duly recorded May 25, 1891, he conveyed to the defendant. On the 15th of January, 1893, the plaintiff and the defendant entered into a written contract whereby they agreed to exchange said lot of land for another lot of land owned by the plaintiff. The land of the plaintiff was valued at $72,000, and the land of the defendant at $49,500, and the difference, $18,500, the defendant agreed to pay to the plaintiff at the times and in the manner specified in the contract. It was agreed that the deeds should be exchanged at a place named on or before February 15, 1893. Pursuant to said contract the defendant executed a deed in due form by which it assumed to convey the premises to the plaintiff.
    It is conceded that the defendant has done no business in the state of Hew Jersey, and that the only business or transactions in which it has been engaged since its organization have been carried on in the city and county of Hew York.
    The following question was submitted to the general term: “ Whether said defendant, the Amsterdam Improvement Company, possessed and has conveyed to Frederick J. Lancaster', the plaintiff herein, a good and sufficient title to the premises described in said contract and deed.” That court has adjudged that the defendant’s deed did not convey to the plaintiff a good title, and that its title was subject to the right, title and interest of the People of the state, whose title was, at the time of the execution and delivery of the deed, superior and prior to that of the defendant

      Thomas S. Bassford, for pl’ff; Hugo S. Mach (Louis Marshall, of counsel), for def’t.

       Reversing 55 St. Rep., 69.

   Gray, J.

Before approaching the discussion of the principal question in this case, certain questions of subordinate importance may be disposed of, which have been raised upon the argument. One of them relates to the right of this corporation to recognition in our courts, as affected by the fact that the incorporators are, with one exception, citizens and residents of this state. Whatever inference can be drawn as to the motives which took them into a foreign jurisdiction to organize a corporation under its laws, I agree with the general term that any such question has been once and for all settled by our recent decision in the case of Demarest v. Flack, 128 N. Y., 205; 40 St. Rep., 383. It appeared in that case that citizens of this state incorporated under the laws of West Virginia to carry on a certain business, with the principal office of the company in Hew York city, and where only it had been conducting its operations. It was claimed that these facts invalidated the corporation, and that there was a manifest evasion of and fraud upon the laws of the state. But it was held that they constituted no reason for refusing recognition to the corporation ; that there was no essential difference between a corporation formed under the laws of a foreign state', the members of which were its own citizens, and one so formed, the members of which were citizens of our own state. If our citizens are attracted to other jurisdictions for purposes of incorporation, because of more favorable incorporation or taxation laws, I cannot see in that fact, however, and in whatever sense to be deplored, any reason that they should be prevented from employing here the corporate capital in the various channels of trade or manufacture. That, as it seems to me, would be a rather hurtful policy and one not to be attributed to the state.

Another question relates to the regularity of the proceedings for the incorporation of the defendant company under the laws of the state of Hew Jersey. I am unable to perceive any defect therein. I should say there had been a compliance with its statutes. But if there could be pointed out some irregularity it could not be made the subject of an objection to the defendant’s title. It was a corporation de facto. Its incorporators had filed their certificate of incorporation as required by the laws of Hew Jersey, and any question affecting its right to transact business because of alleged irregularities in organization is a matter for the government of that state to inquire into. It was said in Methodist Epis. Church v. Pickett, 19 N. Y., 482, with respect to the capacity of corporations to act, that “ the rule established by law, as well as by reason, is that parties recognizing the existence of corporations by dealing with them have no right to object to any irregularity in their organization, or any subsequent abuse of their powers, not connected with such dealing. As long as they are overlooked or tolerated by the state it is not for individuals to call them in question.” That this principle is equally applicable to foreign corporations de facto was held in Bank of Toledo v. International Bank, 21 N. Y., 542.

With respect to the question of whether the laws of the state of Hew Jersey authorize the kind of business which this company was organized and proposes to transact, I think that the provisions of the statute for the formation of corporations, to which our attention is directed, are broad enough in their scope to comprehend the objects of this incorporation. They authorize in-corporations for the purpose of the improvement and sale of lands. With such an authorization and, as a corporation, being vested under those laws with the authority to hold, purchase and convey such real and personal estate, as the purposes of the corporation shi ll require, there is ample support for a construction that this company may deal in the purchase and sale of real estate. But, if any doubt might be • entertained upon the correctness of our construction of this foreign statute, I do not think the doubt affects the question here. If to engage in the business of buying and of selling real property is to act in excess of the powers conferred upon the corporation by the statute of Hew Jersey, it is not for that government to inquire into the exercise by its creature of corporate powers. It is not a question which the party dealing with it can raise. As a corporation de facto, possessing some capacity to acquire and convey real property, its conveyance is unimpeachable upon any ground of an excess or of an abuse of powers conferred, and unless in the laws of this state we are able to find a prohibition, expressed herein, or to be implied therefrom, which disabled this corporation from acquiring the, land and from conveying it, the plaintiff would obtain a valid title to' the premises conveyed.

The principal question for oar consideration is one of great importance, for upon its decision not only depend large interests, but a judicial definition of state policy. That question may be thus succinctly stated: Under our laws, can a foreign corporation, incorporated for the purpose of dealing in the purchase and sale of real property, come into this state and transact here such kind of corporate business ? ' The general term put the question in somewhat different form: Whether it may “ purchase and hold lands within this state which are not necessary for its business and which have not been acquired in securing the payment of a debt due to it.” That is hardly exact as applied to the case of this corporation. As I have shaped it, the question is certainly made broad enough.

The opinion of the general term was delivered by Mr. Justice Toilett, whose opinions are entitled to the highest respect, and he negatives the proposition embodied in the question, upon the ground, in substance, that from certain general statutes of this state, which relate to the right o£ foreign corporations to purchase or acquire, and to convey real property, and from numerous special acts, passed to authorize them to acquire lands, it is to be inferred that “ it is contrary to the policy of this state to permit such corporations to take, bold and convey lands in this state, without being specially authorized so to do.” The general statutes to which he refers are chapter 158 of the Laws of ■ 1877 and chapter 450 of the Laws of 1887, and he considers that to their declarations is to be referred, solely, the question of the right of foreign corporations, generally, to acquire, hold and convey lands, for they alone recognize their right in such respects. The act of 1877 authorized a foreign corporation to purchase at a sale under the foreclosure of a mortgage or under a judgment held by it; to hold the land purchased for not exceeding five years, and to convey it, etc. The act of 1887 authorized a foreign corporation, doing business in this state, to acquire such real property as might be necessary for its corporate purposes in the transaction of its business here. Both provisions were re-enacted in the “ general corporation law of 1892," chap. 687, Laws 1892, as §§ 17 and 18.

In order to uphold the validity of the conveyance in question here, I think we might very safely rest our conclusions upon the enactment of 1887, if other grounds were lacking. We might, without doing violence to any rule of law, say that that act was such sufficient authority as to make the title to the land conveyed by the foreign corporation quite indefensible in its grantee. The general term thought it was not broad enough; but there would not be much stress in reasoning that the foreign corporation being authorized to do business here, the authorization of the act of 1887 “ to acquire such real property as may be necessary for its corporate purposes in thé transaction of its business in this state,” even though we were disposed to define it as comprehending merely property for proposed use as an office, a warehouse or factory, etc., would, nevertheless, be sufficient to enable the corporation in possession of land by its conveyance to vest in the grantee a good title to it. It is not for the party contracting for the conveyance of the land to raise the question of how far his grantor may have exceeded the authority given by the statutes of state, any more than he might with respect to an alleged abuse of the powers conferred by its home charter. Those are questions between the corporation and the government. The presumption militates in favor of the validity of the transaction, and the right of interference by the state does not extend to any forfeiture of the property held by the corporation. Re McGraw, 111 N. Y., 66, 96; 19 St. Rep., 392.

In Cowell v. Springs Co., 100 U. S., 55, the objection was that the National Land & Improvement Company, a Pennsylvania corporation which granted certain lands in Colorado to the springs company, was not empowered to acquire a right to the lands, for the reason that they were not necessary to enable it to carry on its business, to which extent corporations in Colorado were limited, because of restrictions upon the legislative power in the creation of corporations. It was held that “ whether the particular premises in controversy are necessary for that business is not important ; that is a matter between the government of the state and the corporation, and is no concern of the defendant.”

But we are not confined to any such narrow ground as a construction of the particular acts referred to. Our general laws are such as to evidence a state policy, which makes no invidious distinction against foreign corporations coming within our boundaries to extend the area of their lawful operations. The answer to the question is not to be found in the acts to which the learned general term justices refer. If they have not overlooked, they have failed, in my judgment, to give due weight and significance to other provisions upon our statute books.

The general corporation law, passed in 1892, contains these further provisions as to foreign corporations:

“Section 15. No foreign stock corporation other than a moneyed corporation shall do business in this state without having first procured from the secretary of state a certificate that it has complied with all the requirements of law to authorize it to do business in this state, and that the business of the corporation to be carried on in this state' is such as may be lawfully carried on by a corporation incorporated under the laws of this state for such or similar purposes. * * * The secretary of state shall deliver such certificate to every such corporation so complying with the requirements of law. No such corporation now doing business in this state shall do business herein after December 31, 1892, without having procured such certificate from the secretary of state. * * * No foreign stock corporation doing business in this state without such certificate shall maintain any action in this state upon any contract made by it in this state until it shall have procured such certificate.

“ Section 16. Before granting such certificate the secretary of state shall require every such foreign corporation to file in his office a sworn copy of its charter or certificate of incorporation, and a statement under its corporate seal, particularly setting forth the business or objects of the corporation which it is engaged in carrying on, or which it is proposes to carry on, within the state, and a place within the state which is to be its principal place of business, and designating, in the manner prescribed in the Code of Civil Procedure,- a person upon whom process against the corporation may be served within the state.

“ The person so designated must have an office,” etc.

The negative form of the legislative expression is pregnant with meaning. All foreign stock corporations are accorded the same right to transact their business here as domestic corporations have, if it be one which the latter may also lawfully transact, and provided there has been compliance with certain stated requirements. It is a recognition of the right of a foreign corporation to do business here, with the imposition of reasonable conditions. A certificate was granted by the secretary of state in December, 1892, which certified a compliance with all the requirements of law, and that the business of the corporation to be carried on here was-such as may be lawfully carried on by a corporation incorporated under our laws for such or similar business. By chapter 691 of the Laws of 1892, known as “ The Business. Corporations Law,” what restrictions may have existed upon the organization of corporations in this state previously were done away with. Under that law ‘‘ three or more persons may become a corporation for the purpose of carrying on any lawful business,” by executing and filing a certificate, which shall contain the objects for which formed, including the nature and locality of the business. The-effect of all recent legislation is, most clearly, to remove all barriers to the transaction, through incorporation, of any lawful business in this state, and to recognize an equal right in the foreign corporation with that of the domestic corporation.

Presumably, in the opinion of the learned' general term justices, it was not considered that §§ 15 and 16 of the General Corporation law include within their purview such a business as the-acquisition of lands within this state by foreign corporations for purposes not”connected with necessities for a corporate use. But I do not think we can so limit the meaning of these sections. It is true that they are followed by §§ 17 and 18, to which the-opinion below attaches such weight; but their presence is no warrant for ignoring the broad and general authority contained in the preceding provisions. Section 18 may still have an office to perform in limiting the period of time for which a foreign corporation, without a certificate here, may hold land taken for-for a debt, or purchased at a sale under a judgment or decree ; while the necessity for retaining § 17 is not readily perceived. The foreign corporation which desires to acquire real property, solely for use connected with the transaction of its business here, must, under §15, procure the certificate of the secretary of state as a condition of being permitted to carry on business and, having the certificate, its right to do business as freely as a domestic corporation necessarily carries with it the recognition of the right to acquire and hold what real property may be necessary for that purpose. Both sections, possibly, were retained in the revision of corporation laws out of abundant caution. Neither section is a new enactment; but merely the continuation of an existing law. Whatever the reason to be assigned for retaining §§ 17 and 18, the provisions of §§ 15 and 16 contain an authoritative declaration by the legislature, and we neither can nor should attempt to refine away their comprehensive meaning. Nor am I able to perceive that it is, or that it ever was, the policy of this state to prevent foreign corporations from acquiring and holding real property here, if desired for the transaction of any lawful business. To discover the public policy of a state we are limited, as it was observed by Mr. Justice Story, in the Girard will case, 2 How. (U. S.) 127, to what “ its constitution and laws and judicial decisions make known to us.” I am aware of nothing in the constitution upon the subject. There were no statutes passed upon the subject prior to the act of 1877, referred to, and in their silence the principle of a general light in legally constituted corporations, with sufficient charter powers, and the principle of assent implied by the general law of comity between states, had a scope for operation in favor of the right of a foreign corporation to acquire and hold real property here. If special enabling acts have been procured, in particular cases, they do not, necessarily, disprove the general right. Prudence and cautious counsels may have dictated their procurement. While the enactment of the statute of 1877 contained a limitation upon the right of the foreign corporation to hold real property, with respect to time, the subsequent act of 1877 was in the direction of removing such, or any, limitation. Then came the general statutes of 1892, which allowed all foreign corporations to do business here, upon compliance with conditions named, and which place them upon a similar footing with domestic corporations, as to transaction of a corporate business. If we turn only to the decisions of this court, in our investigation of what has been the public policy of this state towards foreign corporations we find them interpreting and applying the principle of state comity in the broadest spirit. In People v. Fire Association, 92 N. Y., 311, it was observed that “where a state does not forbid, or its public policy, as evidenced by its laws, is not infringed, a foreign corporation may transact business within its boundaries and be entitled to the protection of its laws.” In Hollis v. Drew Seminary, 95 N. Y., 166, it was held that “ unless the legislature forbids, they ” (the corporation) “ can come here as freely as natural persons and exercise here all the powers conferred upon them by their charter, subject to the limitation imposed upon natural persons, that is, they can do no acts in violation of our laws, or of our public policy. But, unless prohibited by law, they can do here, within the limits of their chartered powers, precisely what domestic corporations can do.” This decision was in line with the early case in this court of Bard v. Poole, 12 N. Y., 495, in which the discussion turned upon the question of the right of a corporation of the state of Maryland to make loans secured by mortgages upon real estate within this state. Judge Denio said, in the opinion in that case, that “Any of the states of the Union may, as this and several of the other states have done, interdict foreign corporations from performing certain single acts, or conducting a particular description of business within its jurisdiction. But, in the absence of laws of that character, or in regard to transactions not within the purview of any prohibitory law and not inconsistent with the policy of the state as indicated by the general scope of its laws or constitution, corporations are permitted by the comity of nations to make contracts and transact business in other states than those by virtue of whose laws they were created, and to enforce those contracts, if need be, in the courts of such other states. It is, of course, implied that the contract must be one which the foreign corporation is permitted by its charter to make, and it must also be one which would be valid if made at the same place by a natural person, not a resident of that state.”

It seems to me to be very clear, upon examination of our laws and by reference to such judicial opinions, that there never was a time in the history of the state when a foreign corporation was prevented from entering its boundaries to transact any lawful business which a non-resident natural person might have transacted here. What public policy is evaded, and what public interests are prejudiced, by extending to the foreign corporation, for the transaction of its business, the privileges and protection of the laws of our own state, even when that business involves the acquisition of and dealing in real property? If we were to consider the question simply in the light of a sound or a good policy, there are abundant reasons for. holding that it is to the public advantage that our borders should be as much open for all lawful purposes to foreign corporations as to natural persons. Their advent and lawful operation cannot but tend to some advancement of our commercial interests and must advantage the commonwealth. It is the policy of the state to "encourage the employment of capital here bv liberal laws; upon what reasonable ground shall we recognize the natural person who comes here and refuse recognition to the foreign corporation ? And how is the matter affected if the capital is employed in dealing in the acquisition and barter of lands, and not in commerce, manufacturing or such like ways ? What legal difference is there, which the state can recognize, if all the corporators happen to be residents of this state ? The corporation is, nevertheless, a legal entity, endowed by a sister state with capacities and powers, and seeks our state as the field of its activity in the conduct of it business enterprise. Incorporations are, as a rule, advantageous to private and to public interests. As the business capacities of the general mass of mankind are constantly improving, associations of individuals, voluntarily combining their contributions, are able to perform works of ■various characters which no one person is able to accomplish. I believe that to be a well recognized principle in political economy. But we are not to consider the question as one simply of sound or of good policy, but whether there is any known public policy which is affected: What reason is there that the courts shall condemn the business proposed to be carried on by the defendant ? What vice inheres in it ? The case does not fall within those which the courts have decided to be against public policy. The business is not immoral in itself. That it is not prohibited by legislation I think I have been able to show.

In the opinion below it is suggested that if the defendant - may legally acquire and convey land in this state at pleasure, there is no limitation upon the amount which a foreign corporation may hold, except in its ability to purchase and pay. As applied to the case of this corporation, it might be a sufficient answer to say that the chartered purpose of dealing in the purchase and sale- of real property rather negatives the idea of an intended accumulation of real estate holdings to any extraordinary extent. But a better answer would be that it is always within the power of the legislature to interfere and to regulate if, by the magnitude of the business, the public interests are affected and seem unduly threatened. Decisions of this court might be referred to to show how far the legislative power has been deemed to extend in the direction of controlling a private business, on the ground that its magnitude affected the public and justified such interference.

Without prolonging the discussion, I think the general term erred in their conclusions, and that, the judgment should be reversed, and that judgment should be ordered for the defendant upon the submission, with costs.

All concur, except Bartlett, J., not sitting.

Judgment accordingly. David Dunham Withers, the executor of his