text:
    The People, Resp’ts, v. John H. Phelps, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    Abortion—What constitutes offense of—Advice—Acting on.
    Mere advice to take medicine, where no medicine, drug or substance of any kind is taken, is not abortion under § 294 of the Penal Code.
    Appeal from judgment of court of sessions of St Lawrence county.

      V. P. Abbott, for app’lt; C. A. Kellogg, for resp’ts.
   Learned, P. J.

—The defendant was indicted and convicted under § 294 Penal Code; and he appeals from the judgment and conviction.

We pass for the present the first question, viz., as to the sufficiency of the indictment, to consider whether the evidence showed a crime under that section. That section, taking the parts directly applicable, is as follows: “Any person who, with intent thereby to procure the miscarriage of a woman * * * advises a woman to take medicine, drug or substance * * * is guilty of abortion, etc.” We notice that the first part of the subdivision, which speaks of prescribing, supplying or administering, is made applicable, whether the woman is pregnant or not It is a peculiar enactment which thus says that abortion can be committed on. a woman who is not pregnant. That provision is not in the latter part of the first subdivision, under which this case comes, nor in the second subdivision.

The testimony of the woman towards whom the offense is-alleged to have been committed is to the following effect; that about the 15th of June she told defendant that a week or ten days had passed beyond the time of her monthly sickness; that he told her she should better have something done; that she told him what she thought should be done; that he told her that she1 would better see a doctor; that she would better go to Dr. S. first; that she was to go there and see Dr. S., and see if he would not give her something to produce an abortion; that he told her she could get some kind of medicine; and if she used it at the-right time, she could produce an abortion; that he told her the1 time was about the third month.

The witness testified to other conversations, at other times, with defendant similar in character. But the court held that these were admissible only on the probabilities of the former testimony,. and that defendant could not be convicted for any advice given at other times. The case rests, therefore, on the testimony above given, assuming its truth.

It further appeared that the witness never went to Dr. S. There was no evidence that she ever took any medicine, drug or other substance; the child was duly born "at seven months. She testified that defendant was the father; and that he had had connection with her once within six weeks prior to the conversation of June 15 th.

The defendant denied this conversation; and admitted having had connection with her for some months prior to January 5th, but not afterwards. There was a sharp conflict as to the facts, which we need not discuss.

The important question raised in this case is whether the word '“advised” in the statute does or does not imply that the advice must be followed in order to constitute the crime. All the other words in the section in a similar position include some act other than mere speech. Such are “ prescribes, supplies, administers.” “Uses or causes to be used.” And where the word “advises” is used, the connection is, “ advises or causes a woman to take.”

Further, the person who does any of these is declared to be guilty of abortion. Now, abortion is the producing of young before the natural time; though the word must have a qualified meaning in this section, since the crime may be committed, according to the language, in respect to a woman who is not pregnant.

It is true that the word “ advises,” of itself, does not imply that the advice is followed. Advice which is rejected is still advice. But we must judge of the meaning here by the context. Section 295 provides for the punishment of the pregnant woman who takes a medicine or uses an instrument or submits to its use with intent to produce her miscarriage. And § 294 provides for the punishment of the accessory; including even the offense of giving medicine with such intent to one not pregnant. Probably this part of the section was enacted in view of the injurious effect of such medicine on a woman whether pregnant or not. But no injury could be done to a pregnant woman or to her child by advice not acted upon. One who counsels another to commit a crime is now a principal. Penal Code, § 29; People v. Bliven, 112 N. Y., 79; 20 N. Y. State Rep., 486. But where the crime is not committed such a person is not a principal, whatever counsel he may have given.

We have no occasion to consider the subject of attempts to commit a crime. Penal Code, § 34. Because the defendant was not convicted of an attempt to commit abortion. Section 686. He was convicted of having committed abortion. And, therefore, the question is presented whether that crime is committed by advice which is not acted upon.

The legislatures were careful to explain that abortion might be committed on a woman not pregnant It seems to us that if they intended that abortion could also be committed by mere speech, followed by no act, they should have stated this unequivocally. As they have not done this, we are of opinion that the word “ advises” in this section, like the word “causes,” which stands in the same connection, implies that the woman advised acted upon the advice and took the medicine, drug or substance. We are of opinion that mere advice to take medicine, where no medicine, drug or substance of any kind is taken, and where, therefore, no injury has been done to anyone, cannot be the crime of. abortion.

Judgment and conviction reversed; new trial granted.

Landou and Mayham, JJ., concur.


source: Caselaw Access Project

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

license: Public Domain

text:
    Michael Murray, Resp’t, v. Louis Friensberg, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    1. Trial—False imprisonment—Charge to jury—Probable cause.
    Upon the trial of an action for false imprisonment the judge charged: “This is the only controversy before you, because there is no pretense upon the part of the defendant in this case that there was probable cause for this arrest, nor is it asserted that the plaintiff was not properly discharged by the magistrate,” and afterwards instructed them: “If you find anywhere in the evidence, as intelligent men, anything to convince you, as reasonable men, that there was probable cause for directing this man’s arrest, you will give the benefit of it to the defendant.” Held, that with this qualification any objection to this charge was cured.
    (Landon, J., dissents.)
    2. Same.
    The judge charged that if defendant directed the officer to arrest plaintiff, as he was subsequently discharged, the plaintiff was entitled to a verdict, because the law presumed an arrest under the circumstances to be caused by malice, etc., and then stated that “when the arrest is without probable cause, and the person is afterwards discharged, the law will presume it to be malicious.” Held, that with the qualification the charge was correct.
    Appeal from a judgment in favor of the plaintiff at the Albany circuit, and from an order denying a motion for a new trial upon the minutes of the judge. The action was for false imprisonment, in which the plaintiff recovered á verdict, on which a judgment was entered from which this appeal is taken. The points on the appeal arise chiefly out of the exceptions taken to the charge of the judge.

      D. Cady Herrick, for app’lt; P. D. Niver, for resp’t.
   Mayham, J.

—The defendant went into the plaintiff’s store to-make some purchases, and while there the defendant discovered. that the overcoat plaintiff wore resembled one which had been stolen from him on the preceding December. He asked plaintiff where he got the coat, and, as defendant says, received from the-plaintiff contradictory statements. He then directed his clerk to procure an officer, as he says, to stand at the door, but the officer-on coming to the store did not stop at the door but came in, and was informed by the defendant of his suspicions, and then called the plaintiff to him, and after asking him some questions arrested him and took him to the station house, at the same time requesting the defendant to accompany him, which he did. The officer and plaintiff testify that defendant directed the officer to make the arrest. This the defendant denies. After being locked up-at the station house from 11.45 A. M. until 2 p.m. e was taken before the recorder. Defendant there refused to make a complaint against the plaintiff and one was made by the officer, and as both plaintiff and defendant desired an adjournment of the examination for the purpose of procuring witnesses, an adjournment was taken for two weeks. On the examination the defendant was discharged. The first exception taken to the charge, as appears from the record, is to that part in which the learned judge says:

“ This is the only controversy before you, because there is no pretense upon the part of the defendant in this case, that there was probable cause for this arrest. Nor is it asserted that the plaintiff was not properly discharged by the magistrate.” On counsel asserting that he argued that to the jury, the court in the most unequivocal terms instructed the jury that, “ if you could find anywhere in the evidence, as intelligent men, anything to convince you, as reasonable men, that there was probable cause for directing this man’s arrest, you will give the benefit of it to the defendant.” With’ this qualification we think any objection to the charge on that point was cured. The counsel for the defendant also excepted to the following language, used by the judge in his charge: “ If that is true, if you find the fact be that this defendant directed the officer to arrest the plaintiff upon .that occasion, in view of the fact that he was subsequently discharged, then the plaintiff is entitled to recover a verdict at your hands, because the law presumes an arrest under such circumstances to be caused by malice, and awards compensation in some sum to a person whose personal rights are thus invaded.” The court: “ When 'the arrest is without probable cause, and the person is afterwards discharged, the law will presume it to be malicious.” With this qualification we think the judge’s charge was correct. The counsel for the defendant also excepted to this portion of the judge’s charge: “You may find from this evidence, you have a right to find from this evidence, that this arrest was caused, by this defendant, and that he did make this charge of larceny against the plaintiff, and if you do so find as I have already charged you, you have a right to award him such damages within $2,000, as you think he ought to have.” This charge did not assert any erroneous or unsound principle of law. If the jury adopted the theory from the evidence that the defendant directed the arrest, and there was no probable cause for the same established in the proof, the jury were at liberty to find for the plaintiff.

On the whole case we find no ground for a reversal of this judgment

Judgment affirmed, with costs.

Learned, P. J., concurs.

Landon, J. (dissenting)

—I dissent. The question of probable cause was for the jury. The court at first instructed the jury that there was none, and, when his attention was called to the fact that that was the question counsel had discussed before the jury, said: “ If you could, find anywhere in the evidence, as intelligent men, anything to convince you as reasonable men, that there was probable cause for directing the man’s arrest, you will give the benefit, of it to the defendant.” The jury must have understood this as. a more emphatic and positive declaration than had already been made, that there was no probable cause. The import of the sentence contradicted and negatived its literal terms and declared the jury to be unintelligent and unreasonable if they supposed there was probable cause.


author: Per Curiam.

text:
    Edwin Young, as Ex’r, Resp’t, v. The Rondout & Kingston Gas Light Company et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    Corporations—Consolidation—Injunction pendente lite.
    Plaintiff, a stockholder, brought an action to restrain a gas light company from consolidating with another company, on the ground that the proposed consolidation was unlawful, and that, if carried out, the property of the defendant’s company would be mixed and confused with other-property, causing loss. Held, that an injunction pendente lite was properly granted.
    Appeal from special term, Ulster county.

      Putney & Bishop (J. L. Bishop, of counsel), for app’lts; Linson & Van Buren (John J. Linson, of counsel), for resp’t.
   Per Curiam.

—The plaintiff is the holder of a large amount, of stock in the Rondout & Kingston Gas Light Company, defendant. The complaint charges that the board of directors of that company have entered into a contract with the board of directors of the Kingston Electric Light, Heat & Power Company for a consolidation of the two companies, which they purpose to carry into effect; that over two-thirds of the stock of the defendant’s company are held by persons largely interested in the Kingston Electric Light, Heat & Power Company aforesaid ; that-until recently the two companies have been, to some extent, competitors in business, but that said two-thirds of stock have been acquired by the persons so interested as aforesaid for the purpose of effecting said consolidation. The complaint alleges that the-proposed consolidation is without authority of law, and that, if carried out, the property of the defendant’s company would be-mixed and confused with other property, causing confusion and loss.

No answer has been put in. On the complaint and on an affidavit of the plaintiff and affidavits of the treasurer of the defendant’s company, and of the president of the Kingston Electric Light, Heat & Power Company, and after a hearing of both-parties-an injunction pendente lite was granted by the special term, restraining the consolidation until further order. From this injunction, order the defendants appeal.

It is very evident that if a consolidation should take place,, pending this action, the final judgment, should the plaintiff succeed, would be ineffectual. It would be hardly possible to restore-the plaintiff to his rights, assuming that the consolidation is not lawful, if it should once take place.

On the other hand, the defendant will only be delayed as to the time of effecting this consolidation, should it prove on the trial of the cause that the defendant’s corporation was entitled to consolidate, as it claims.

The question is one of some importance. The plaintiff is in the rightful possession of his stock in the defendant’s corporation. The defendant claims the right to make the plaintiff a stockholder in a different corporation, with other powers and rights, under the name of the Kingston Electric Light, Heat & Power Company.

The question now before us is whether, until the rights of the plaintiff and defendant can be heard upon a trial of this cause, it is just that the defendant should be restrained from taking away the plaintiff’s property and compelling him to take other property therefor. It may, however, be said that this is a case under § 603, and that it is only where it appears from the complaint that the plaintiff is entitled to a final judgment restraining the defendant, that an in j unction pendente lite restraining the same acts ■can be granted. It may be said, therefore, that unless we decide that the plaintiff will be entitled to a final judgment, we cannot properly affirm the order.

While, however, as we are at present advised, it seems to us that the plaintiff will be entitled to a ffinal judgment, we think it best to make no decision, and to announce no fixed opinion on that subject. We therefore do not discuss that matter, and leave it open, so far as we are concerned, for such opinion as the evidence and the arguments after the trial shall produce on the minds of the court. We deem it better to say that enough appears in the case to justify the court in preventing the consolidation until the trial and final decision. Facts may be shown on the trial tending to prove that no injury will be done the plaintiff or that full compensation can be made to him, if (as defendant argues) this consolidation is somewhat in the nature of taking property by the right of eminent domain.

Order affirmed, with ten dollars costs and printing disbursements.

Learned, P. J., Landon and Mayham, JJ., concur.


author: Learned, P. J.

text:
    Elizabeth Winne, App’lt, v. The City of Albany, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    Negligence—Municipal corporations—Icy sidewalks.
    Upon the trial of an action to recover damages for injuries caused through falling upon an icy sidewalk, it appeared that for three days prior to the accident snow had fallen, after which the weather turned very cold. The ridge of ice was such as would be caused by the passing of a few persons over moist enow immediately after it had fallen, before it could be removed. Held, that there was no negligence shown on the part of the defendant, and that a'nonsuit was properly granted.
    Appeal from judgment of Albany county court

      Julius F. Harris (Eugene Burlingame, of counsel), for app’lt; D. Cady Herrick (John A. Delehanty, of counsel), for resp’t.
   Learned, P. J.

-This is an appeal from a judgment of the-county court entered upon a nonsuit granted at the trial.

The action was to recover damages for .injuries occasioned by falling upon a sidewalk said to be icy.

The court nonsuited on the ground of no negligence of defendant, and of contributory negligence of plaintiff.

The plaintiff testifies that she slipped and fell on a ridge of hard snow in the middle of the sidewalk. It is familiar to all who are acquainted with the climate prevailing in this part of the state that not unfrequently snow falls which is of such a degree of moisture that the passing over it of a few foot passengers will pack it into a hard mass adhering firmly to the sidewalk. Thus very often before there is time for the city to compel the removal of the recently fallen snow, there will be a hard ridge formed along the middle of the sidewalk. Should the weather become severely cold such a ridge is difficult to remove, so hard is it frozen to the pavement.

It is evident from the testimony in this case that it was on sueh. a ridge that the plaintiff slipped. It appears from the testimony, of the signal officer at Albany that from the 1st of January to-the 19th, the weather had been comparatively warm, generally above the freezing point. There was some rain and very little snow. On the 20th there was about two inches of moist snow; on the 21st, seven and six-tenths inches, and more after that up to the 23d, the day of the accident. On the 19th the minimum temperature was thirteen degrees; the 20th, seven degrees; the-21st, twenty degrees; the 22d, fourteen and five-tenths degrees. Thus it will be seen that the snow on which plaintiff fell must have been that which commenced on the 20th and ended on the 21st, and that the fall of temperature tended to produce that hard and adhering ridge of snow such as has been previously spoken of; a ridge almost sure to be caused by persons passing early in the morning before the housekeepers can cause the snow to be-shoveled off, and certainly before the city can enforce its regulations in this respect.

It was about 9 o’clock in the morning of the 23d that the plaintiff who lived on the south side of Jay street started to go down that street. She had reached No. 1 on that street, about, the corner of the house and there were children riding (that is on sleds) down the hill. She turned back and saw them, and stepped one side to get out of their way, slipped on this ridge of ice and snow as she describes it and fell. The ridge, as she says, was packed down by the people traveling on it and by its then thawing and freezing.

One witness states that this ridge had been there three or.four weeks. But it is evident that his recollection of the snow storms is at fault, as he says that there had been three storms of several inches each time during that month. For the accurate statements of the signal service officer show that there was no snow on the ground at the end of December, and that up to the 19 th of January scarcely any had fallen. Without going over the testimony of the officer in detail, it is enough to state these results, showing that it must. have been the snow which began Sunday, January 20th, at about 5 p. m. that caused this ridge. There could then have been only Monday and Tuesday intervening between the beginning of the storm and the accident.

The recent decisions of the court of appeals in cases of this, kind, notably the Taylor case, 105 N. Y., 202 ; 7 N. Y. State Rep., 332. The Kinney case and the Kaveny case, 108 N. Y., 567 and 571; 14 N. Y. State Rep., 15 and 18, have laid down principles somewhat more rigid than those which existed, or were believed to exist before, and have checked the practice which had prevailed of holding cities liable whenever a foot passenger slipped on an icy sidewalk.

These decisions are again sustained in Harrington v. Buffalo, 121 N. Y., 147; 30 N. Y., State Rep., 719. It appears to us that the law as laid down in these cases forbade a recovery in this case. It can be of no special use to repeat the language of the court of appeals in these and similar cases. ■ All that we need say is that,, in our opinion, the facts in this case, as we have briefly stated them, show that under these decisions, the city was not shown to have been guilty of any negligence. For it must be borne in mind that the city is not liable merely because a person falls. It is liable only when it is shown positively to have neglected some duty. And in considering the question of duty, we must remember the snow falls and is trodden upon on every sidewalk, and that the city cannot be expected to discover instantly every spot where a passenger turning to look at boys might fall.

Judgment affirmed, with costs.

Landon and Mayham, JJ., concur.


author: Landon, J. Mayham, J.

text:
    The People ex rel. The Edison Electric Illuminating Company of New York v. Edward Wemple, Comptroller of the State of New York.

      (Supreme Court, General Term, Second Department,

      Filed July 11, 1891.)

    1. Taxes—Exemption—Domestic corporation—Electric light company.
    An electric light company is not a manufacturing company, so as to be within the exemption from taxation, under Laws 1880, chap. 542, as amended by chap. 381, Laws 1881, as it collects and gathers the electricity but does not manufacture it.
    2. Same.
    No deduction is to be made for that portion of the capital stock of an electric light company, which is invested in patent rights.
    3. Same—Penalties—Laws 1881, chap. 361, § 2.
    The comptroller added to the taxes for 1882 a penalty of eighty per cent, and of ten per cent for each of the following years, for default in making proper report, Held, that the penal portion of the statute should be construed favorably to relator, and is satisfied by adding ten per cent to every year’s tax in default, and that the determination of the comptroller should be modified by deducting all penalties above the ten per cent.
    Certiorari to review the proceedings and determination of the comptroller of the state in levying and assessing taxes upon the franchise and business of the relator, under chapter 442 of the Laws of 1880, and the various acts amendatory thereof and supplementary thereto, and in declining to revise and readjust such taxes.
    The relator was incorporated in December, 1880, under chapter 37, Laws 1848, entitled “An act to authorize the formation of gaslight companies." Chap. 512, Laws of 1879, authorized companies incorporated under said act of 1848, to “ use electricity instead of gas,” and to adapt their plant and business accordingly. The relator has always used electricity, and has not produced gas light. Its sole business is and has been the production and marketing of light by means of electricity.
    The full amount of the capital stock of the relator for the years 1881 to 1885 inclusive, was $1,000,000, all of which was not issued, and a portion thereof was issued for patent rights. The comptroller in February, 1890, made an appraisement of the capital stock for each of the five years from 1881 to 1885, inclusive, making no deduction for the amount thereof issued for patent rights, and he stated and settled an account against it for the taxes due the state, upon its franchise and business under chapter 542, Laws 1880, and chapter 361, Laws 1881, and the acts amendatory thereof, amounting with the penalties added to the aggregate of $5,090.45.
    This sum the relator paid, and subsequently applied to the comptroller, under § 19 of the act of 1880, as added thereto by chap. 463, Laws 1889, to revise and resettle the same upon the ground that it was exempt therefrom, because it was a manufacturing corporation, and because a part of its capital was invested in patent rights, and read affidavits to support its claim for exemption.. Affidavits were read in opposition. November 26, 1890, the comptroller made an order denying the application, and thereafter this writ of certiorari was issued, pursuant to § 20 of the act of 1880, as added thereto by said chap. 463, Laws 1889.

      I. H. Maynard, for the comptroller; S. B. Eaton and E. H. Lewis, for the relator.
   Landon, J.

—We held in People ex rel. American Contracting & Dredging Co. v. Wemple, that the practice in that case, which is substantially the same as in this, was authorized, and brought up for review both the law and the facts upon which the relator’s claim of erroneous or illegal taxation, in whole or in part, was based. We, therefore, pass to the consideration of this case upon its merits.

The relator presents two objections to the imposition of the tax in question.

First. That it is a manufacturing company, and is, therefore, by the terms of the statute, exempt from the tax.

Second. That that portion of the capital stock of the relator invested in patent rights was not liable to any taxation by the state.

■ It also claims that the cumulation of penalties is erroneous.

Whether the relator was incorporated under the gas companies’ act, or under the comprehensive industrial act of 1848, chap. 40, with its many amendments and additions, usually called the manufacturing act, we do not deem material. In either case no question is made as to its right to obtain electricity and use and supply electrical currents for illuminating purposes. It is an electric lighting company. Whether such a company is a manufacturing company seems to depend upon the question whether electricity is manufactured by the relator, or whether it is already in existence, and is simply collected or gathered by the relator and utilized. The processes adopted by the relator are stated in the case, and we have the differing opinions of learned experts laid before us. As a scientific question, it would seem to be still in the debatable stage. Something also seems to depend upon the definition of terms. We cannot repose with much confidence upon the conclusion of the learned comptroller. Following our impressions, however crudely formed they may be, we conclude that electricity exists in a state of nature, and that the relator collects or gathers it and does not manufacture it. We refrain from any exposition of the premises upon which this conclusion is based. If this conclusion is true, the relator is not a manufacturing corporation, and, therefore, not within the exemption of the statute.

The relator, however, contends that it is manifest from the legislation upon the subject that electric light companies were exempt from the franchise tax until the passage of chap. 353, Laws 1889, and, therefore, exempt during the years here in question. Section 3 of chap. 361, Laws 1881, provided that: “Every corporation, * * * except manufacturing corporations carrying on manufacture within this state, which exception shall not be taken to include gas companies or trust companies, shall be subject to, and pay a tax as a tax upon its corporate franchise or business into the treasury of the state annually,” etc. Chapter 353, Laws of 1889, amended the section by excluding from the exemption “ electric or steam heating, lighting and power companies.” The relator contends that that amendment is a legislative declaration of opinion that electric companies were previously within the exemption. People v. Knickerbocker Ice Co., 99 N. Y., 181, and People v. Floating Dry Dock Co., 92 id., 487, are cited. In the first case, the ice company sought exemption from the franchise tax, alleging that it was a manufacturing corporation. It collected and marketed naturally formed ice. The court held that it was not a manufacturing company. It was incorporated under the so called manufacturing act, chap. 40, Laws 1848, as the act was supplemented by chap. 301, Laws 1855, extending its provisions to companies formed for collecting, storing, preserving, and vending ice. The court held that the supplementary act indicated the legislative opinion that such ice business was not embraced within the terms of the original act. The conclusion seems to be just under the circumstances. The Dry Dock case presented similar features and a similar ruling was made.

So it might be assumed that the enlargement of the gas companies’ act, so as to permit such companies to use electricity, implied that before the enlarging act the companies could not use electricity. But the addition of electric companies to the nonexempt companies may have been either to enlarge the nonexempt list or to settle an unwarranted claim to exemption raised by the electric companies. If the legislature regarded these companies as non-manufacturing, then the amendment of 1889 should be construed as setting the contrary claim at rest.

The case of People v. Davenport, 91 N. Y., 574,-591, holds that the circumstances under which an amendment is enacted are to be regarded in construing its effect, and if the circumstances imply a repudiation by the legislature of the construction sought by interested parties to be placed upon the original act, the amendment, instead of being declaratory of a change in the law, is to be regarded as the legislative opinion of its proper construction. Applying this rule, we see that lighting by electricity is more recent than lighting by gas, that the practical result is much the same, that the propriety of imposing a tax upon an electric lighting company is not obviously distinguishable from the propriety of imposing it upon a gas company, that one company may perform either or both kinds of service, that the gas companies were placed in the list of non-exempts because the court held that the companies which manufactured illuminating gas were manufacturing companies, Nassau Gas Light Co. v. Brooklyn, 89 N. Y., 409, that if electricity is also a manufacture it is less easily determinable to be so. When, therefore, the electric companies claimed an exemption which had been denied to the gas companies, and was denied to non-manufacturing companies, we can readily understand that the amendment of 1889 was the legislative response to such claim and a repudiation of it

We conclude that the defendant was not entitled to the exemption claimed.

Second. Although a part of the relator’s capital stock was invested in patent rights no deduction should be made from the tax upon that account. The tax is declared by the statute to be upon the “ corporate franchise or business,” and, as said in Home Ins. Co. v. New York, 134 U. S., 594, affirming same case in 92 N. Y., 328, “it cannot be affected in any way by the character of the property in which the capital stock is invested.” ' The samo case requires us to overrule the constitutional objection presented. . .

The comptroller added to the taxes for 1882 a penalty of eighty per centum, and also added a penalty of ten per centum for each of the years during which payment of the taxes for the years 1883 to 1885, inclusive, had been in default. Section 2 of chap. 361, Laws 1881, provides that in case the company defaults in making the proper report to the comptroller and in paying the tax, that “it shall be the dnty of the comptroller of the state to add ten per centum to the tax of said corporation, company or association, for each and every year for which such report or certificate of appraisement and oath or affirmation were not so furnished, or for which such tax shall not have been paid."

We think the penal portion of this section should be construed favorably to the relator; that the language - used does not necessarily import that ten per centum shall be added every year that the tax is in default, but is satisfied by adding ten per centum to every year’s tax that is in default The clauses of the paragraph may be transposed thus: “Add ten per centum to the tax for each and every year of said corporation,” etc., and the meaning is clearer.

The determination of the comptroller must be modified by deducting from the aggregate of the taxes and penalties the aggregate of the excess of the penalties above ten per centum, and as so modified affirmed, without costs, and the said excess must be restored to the relator.

Learned, P. J., concurs.

Mayham, J.

—The respondent insists that § 1 of chap. 361 of the Laws of 1881 furnishes a tribunal to which the relator could have appealed within a given time after the assessment and notification of this tax, and having failed to make such application, no certiorari will lie to review the action of the comptroller. Chapter 361 of the Laws of 1881 amends chap. 542 of the Laws of 1880, by substituting the act of 1881 for the act of 1880, so that the latter act, as amended, stands in the place of the former.

Section 1 of chap. 361 of the Laws of 1881 provides a general method for ascertaining or making a valuation by the comptroller and settling an account upon the valuation so made for the taxes, penalties and interest due the state thereon. “And any association, corporation or joint stock company dissatisfied with the account so settled may, within ten days, appeal therefrom to a board consisting of the secretary of state, attorney-general and state treasurer, which board, on such appeal, shall affirm or correct the account so settled by the comptroller; and the decision of such board shall be final, but such appeal shall not stay proceedings, unless the full amount of the taxes, penalties and interest as due on such account as settled by the comptroller be deposited with the state treasurer.”

■ It will be observed that this appeal is provided for when the comptroller is not satisfied with the valuation made and returned by the company, he is authorized and empowered to make a valuation thereof, and settle the account upon the valuation so made, and impose the taxes, penalties and interest due the state thereon, and the corporation dissatisfied with the account so made may appeal to the officers above specified. It would seem from this case that the comptroller did not dissent from the report of the company when made, but the report of the commissioner was based upon the enforced reports made by the company under protest, and his final imposition of tax and interest was predicated upon these reports, and the dissatisfaction does not appear to be so much with the account settled as with rights or power of the comptroller to impose tax upon it, upon the assumed ground that it was a manufacturing corporation doing business wholly within this state. The power of appeal given by § 1 of chap. 361 of the Laws of 1881 is confined to cases where the company is dissatisfied with the account so settled; that is, settled by the "comptroller, where he is not satisfied with the valuations returned to him by the corporation. It is not clear, therefore, that the appeal given by this section is applicable to a case of this kind. If it is, and is the only remedy provided by law, the relator would be compelled to pursue it or be remediless, at least, it could not ignore this remedy and resort to one by certiorari, as that writ could not issue, but would be expressly prohibited by § 2122 of the Code of Civil Procedure, which prohibits the issuance of the writ of certiorari, “ when the determination can be adequately reviewed by an appeal to a cburt, or to some other body or officer.” The-language of this provision of the Code is plain, and the rule which it declares is the settled law, as established by a uniform current of decisions both before and since the enactment of the Code.. But if this case shall be held to come within the provisions of § 1 above quoted, authorizing an appeal to the officers therein named, has not §§ 19 and 20, which were added to this chapter by the provisions of chap. 463 of the Laws of 18.89, made a certiorari' applicable to this.case? Section 19 of this chapter authorizes the comptroller to readjust any account theretofore settled by him in a proper case therein specified; and § 20 provides that the action of the comptroller, upon-application made to him by any person or corporation for revision and resettlement of accounts, may be revised, both upon the law and the facts upon the certiorari, bj the supreme court, at the instance either of the party making the-application, or the attorney-general in the name and in behalf of the People of the state; and for that purpose the comptroller shall return to such writ of certiorari the accounts of all evidence submitted to him on application.

In the case at bar the relator applied to the comptroller for a revision and re-adjustment of the several accounts for tax, and the comptroller made an order denying such revision or readjustment, assuming to base his action upon chapter 542 of the Laws of 1880 and the several acts amendatory thereof, of which § 20 above quoted is one of the last amendments. We are, therefore, inclined to the opinion that a writ of certiorari may properly be resorted to by. the relator to review the action of the-comptroller in this case. This brings us to .the consideration of the main or most important question in this case upon the merits.. Is this corporation taxable under the provisions of § 3 of chapter-361 of the Laws of 1881 ? That section provided, that “ Every corporation, joint-stock company, or association whatever, now or hereafter incorporated or organized under any law of this state,, or now or hereafter incorporated under the laws of ‘any other state or county, and doing business in this state, except savings banks and institutions for savings, life insurance companies, banks- and foreign insurance companies, and manufacturing corporations carrying on manufacture-within this state, which exceptions shall not be taken to include gas companies or trust companies, shall be-subject to and pay a tax, as a tax upon their corporate franchise and business, etc.”

The relator claims that it is a manufacturing corporation, doing business in this state, and therefore exempt from this tax by the terms of the statute. On the other hand, the comptroller insists that the relator is not a manufacturing corporation within the just meaning of that term, and is not within that exception in the statute; and this contention between the parties the court seems called upon to consider and decide. The relator, although incorporated as a gas company (the effect of which we may consider later), is, as it alleges in its petition, engaged as a manufacturer' and seller of electric currents, for the purpose of illumination.

The relator in its petition, which was presented to the comptroller on the application for the revision and readjustment of this tax, describes the process in use by the relator for the carrying on of its business of electrical illuminatioli substantially as follows: A steam engine is used as a motive power for the propulsion of machinery which is attached to a driving wheel from which by means of a belt it is connected with another wheel or pulley of the dynamo, which turns or revolves the armature. The armature is a coil of wire wound on a metal core and mounted on a shaft, and is revolved by the power communicated from the engine through the means of the belt. The armature is revolved within or between the ends of a large horse-shoe magnet, the opening of which is downward. The magnet is made by winding a soft iron horse-shoe or soft curved horse-shoe shaped iron with a coil of conducting wire, and sending through the coil a current of electricity. When once vitalized by such current the magnet never loses this magnetic property, even after the current stops, but is ever afterwards available for the purpose of electric currents upon the armature being revolved betweén the poles of this magnet. By the rapid revolution of the armature, within what is termed the field of force between the poles of the magnet, this mysterious force or energy is accumulated, known as electricity, and is thence conducted over copper bars or mains throughout the territory or city in which it is used, and is distributed on smaller wires or mains to the houses or places which are to be lighted. On the part of the relator it is claimed that the electricity and electric light thus collected or produced does not come into being until the revolution of the armature in the field of force as above described. That it has no existence until such revolution, and when the revolutions begin the electricity is developed in a minute quantity; and that the electricity thus produced is a new body, and this contention is sought to be reinforced by the claim that the latent energy in the coal, by the combustion of which heat is produced, is a factor in electricity, and that it is not unlike the production of gas, which is generated from coal when heated in a retort But this reinforcing argument fails, when we consider that the power which revolves the armature could be as effectually produced by water or horsepower, as by steam. It is not therefore the latent energy that may exist in coal, but that subtle and mysterious power or energy which either •exists in nature, and is drawn by these appliances from nature’s store-house, or is the product manufactured by them from some-impalpable, intangible and unknown raw material.

As this is a corporation and must, if relieved from the payment of tax, bring itself within the exceptions, the burden is, we think,, upon it to establish its exemption by proving itself to be a manufacturing corporation. It is quite clear that the common and usually accepted signification of the words or phrase “manufacturing corporation ” is a corporation organized for the production of some merchantable commodity out of raw materials, or the change of the form of one material substance into another. Webster defines the word “ manufacture ’’ to mean “ to make, or fabricate, raw materials by hand, by art or machinery, and work into’ forms convenient for use,” and when used as a noun, “ anything made from raw materials, by hand or by machinery or by art.”' Within these definitions it is difficult to see how electricity, even when utilized by means of ingenuity and brought into service,, can be termed a manufactured commodity, or how the process of its utilization can be held to be manufacturing electricity or manufacturing electric lights.

Electricity is defined by Webster as “a power in nature.” Linch, one of the defendant’s witnesses,'says : “The force or current that is given forth upon the circuit cannot, therefore, be spoken of as a manufactured product, but is always referred to as. a result.” And he adds: “The generation of electricity may be considered as a power drawing a supply of electricity from nature’s: well,- and the nearest practical illustration would be a series of pumps drawing water from a well and sending the same through a series of pipes. And, as another illustration, he says: “It would be the controlling of the flow of the natural gas wells and sending the same to some distance, as practically illustrated at Pittsburgh.” Another witness says: “ While the nature of electricity is not thoroughly understood, it is admitted to be a mere-form of energy, and not a material substance, in any sense of the word, and, therefore, not capable of manufacture.” It is quite-clear that the legislature in imposing this tax and creating the exemptions therefrom, intended to use the words “ manufacturing corporations ” in their ordinary sense, and so the courts of this state have uniformly held that where the corporation is engaged in gathering natural products or material existing in nature, it is not a manufacturing corporation.

In The People v. The Knickerbocker Ice Co., 99 N. Y., 182, the-court distinctly held that the collection of an article existing in nature, such as ice, and storing it for use and sale, was not a manufacturing company within the meaning of this statute. To the same effect is the case of The People v. The N. Y. Floating Dry Dock Co., 92 N. Y., 487, and where similar questions have arisen in other states, the rule contended for by the comptroller in this-case has been sustained. Byers v. Franklin Coal Co., 106 Mass., 131; Dudley v. Jamaica P. Aqueduct, 100 id., 183; Frazee v. Moffitt, 20 Blatchford, 267, and in the recent case of the Commonwealth of Penn. v. The United States Electric Light Co., decided in June, 1888, the court in an elaborate opinion pronounced upon a statute similar to the one under consideration in this case, and by cogent argument demonstrated, that neither electricity or light produced by it is a material substance capable of manufacture, and that the electric light company was not, therefore, a manufacturing company within the meaning of the statute exempting manufacturing companies from taxation upon its capital stock and franchise. Holding, as it does, the affirmative upon this subject, and assuming, as it must, the burden of bringing itself within the exemption it claims, Cooley on Taxation, 146; Academy of Fine Arts v. Philadelphia County, 22 Pa. State, 496; The People ex rel. Osgood v. Com. of Taxes, 99 N. Y., 154, we think the relator has failed in its contention upon this point; especially when we take into account the legislative intent as manifested by the amendment of § 3 of chap. 361 of the Laws of 1881, as amended by chap. 353 of the Laws of 1889, which expressly provides that the exemption from taxation “ shall not include gas companies, trust companies, electric or steam heating, lighting or power companies,” and therein expressly provides that they shall pay a tax upon their franchise and business. It is true that the amendment was passed after the time for the accruing of the taxes imposed by the comptroller in this case; but it appears to be a clear legislative expression of the intent with which the original act was passed, and being a statute in pari materia with that act may be taken as indicative of the legislative intent, in aid of a construction of its provisions, when doubt has been cast upon the true meaning of the original act.

In People ex rel. Westchester Fire Ins. Co. v. Davenport et al., 91 N. Y., 574, the court,[-in discussing this subject, says: “The force which should be given to subsequent, as affecting prior legislation, depends largely upon the circumstances under which it takes place. If it follows immediately, and after controversies upon the use of doubtful phraseology therein have arisen as to the true construction of the prior law, it is entitled to great weight.” But independently of this apparent legislative interpretation, we are of the opinion that the corporation seeking exemption in this case does not come within the exception contained in the original act. The comptroller, as a public officer, is charged with the duty of imposing the taxes and penalties provided for in these acts of the legislature, and his acts and determinations cannot be reversed by the courts unless it clearly appears that his determination was against the weight of evidence upon questions of fact or unless it clearly appears that his conclusions of law were erroneous. Code of Civil Procedure, § 2140.

In support of a claim to reduce or modify an assessment made by a public officer, having jurisdiction of the party and subject matter, it must be made to appear affirmatively that the assessment is in part or in whole erroneous. The People ex rel. Osgood v. The Commissioner of Taxes of N. Y., 99 N. Y., 154.

It is insisted by the relator that a part of the tax imposed is upon patents granted by the United States, which are exempt from taxation under state laws or state authority. If this were a property tax there might be great force in the contention of the . relator upon this point; but it is not; but a tax upon the fran.•chise. The franchise is a grant from the state and the legislature has, by virtue of its jurisdiction over corporations organized under its laws, authority to impose such a tax, and the court of appeals have expressly held that in taxing corporations under chap. 542 of the Laws of 1880, as amended, the state authorities are not required to deduct the amount of stock which the corporation holds in United States bonds from the total amount of its capital stock, and to compute the tax only upon dividends derived from the remainder. The People of the State of New York v. The Home Ins Co., 92 N. Y., 328.

. Upon all the questions raised by the relator by the certiorari and presented in this case, we think no substantial error is shown to have been committed by the comptroller in the imposition of this tax. Nor do we think the addition of interest annually was improper. The language of § 15, of chap. 501, of the Laws of 1885, is as follows: “ All accounts hereafter settled by the comptroller agreeably to the provisions of this act shall bear interest from a date thirty days after sending notice of settlement hereinafter provided for, until full payment thereof shall be made.” This provision is mandatory on the comptroller, and we think was executed by him according to its legal effect.

I think the action of the comptroller should be confirmed, and the writ of certiorari quashed, with fifty dollars costs and disbursements against the relator.

The determination of the comptroller modified, by deducting from the aggregate of the taxes and penalties the aggregate of the excess of the penalties above ten per centum, and as modified affirmed, without costs, and the said excess must be restored to the relator.


author: Mayham, J. Landon, J.

text:
    The People ex rel. The Brush Illuminating Electric Co., App’lt, v. Edward Wemple, Comptroller of the State of New York, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    Taxes—Domestic corporation—-Electric Light Co—Not exempt under Laws 1880, chap. 542.
    An electric light company is not a manufacturing company, and is not within the exceptions and exemptions from taxation upon its franchise or business, under Laws 1880, chap. 542, as amended by section 3 of chap. 361 of the Laws of 1881, as it is not yet made clear by scientific research as to whether electricity as accumulated by relators and dispensed in the form of electric light is or is not a manufactured article or product, and the comptroller having decided that it was not. it remains a question of fact with which this court will not interfere.
    This'is a certiorari to review an assessment and taxes imposed by the comptroller upon the relator, under chapter 542 of the Laws of 1880, and the various acts amendatory thereof. The relator is a domestic corporation, doing business in the city and state of New York, and was incorporated under the general laws of the state of New York, in February, 1881.

      The taxes were assessed and imposed by the comptroller upon the claim and assumption by that officer that the relator was not a manufacturing corporation doing business within this state, and was not, therefore, entitled to exemption upon its franchise under § 3 of the act referred to.
    The relator claims exemption under that act, and, after the imposition of these taxes, applied to the comptroller to reversé and readjust such assessment and taxes, which the comptroller refused to do, and, after such refusal, the relator sues out this writ to review the action of the comptroller.

      Eaton & Lewis (Engene H. Lewis and John W. Houston, of counsel), for app’lt; Charles F. Tabor (I. H. Maynard, of counsel), for resp’t.
   Mayham, J.

—The attorney-general objects to proceeding under this writ to review the action of the comptroller on the ground that by § 1 of the above mentioned act the relator had a remedy by appeal to a board of state officers therein referred to, and having failed to apply to such officers it is precluded by § 2122 of the Code of Civil Procedure from resorting to the writ of certiorari for redress. . ■.

We have held at this term in the case of The People ex rel. The Edison Illuminating Co. of New York v. Edward Wemple, comptroller, ante, that it was not clear that the appeal given by this section to the board of state officers designated therein applied to a case where the right to impose any tax was denied, as in this case; but whether or not that was so, § 20, which was added to this act and made a part of it, clearly authorized a review by certiorari from the determination of the comptroller on an application for a revision or re-adjustment of the taxes provided for in this act, and was, therefore, an available remedy.

But we reached a conclusion in that case upon facts similar to those presented in this, that an electric light company was not shown to be a manufacturing company, and was not within the exceptions and exemptions from taxation upon its franchise or business under § 3 of chap. 361 of the Laws of 1881.

The expert evidence in that case, as in this, is in conflict as to whether electricity as accumulated by the relators and dispensed in the form of electric light is or is not a manufactured article or product The comptroller, as the taxing officer, upon all the evidence now before the court, had determined it was not, and that determination was by no means unsupported by evidence. This controversy being presented to the comptroller as a question of fact, we do not think that there was such a preponderance of proof in favor of the contention of the relator as to justify this court to reverse his determination and hold as matter of law that electricity is such a manufactured article, commodity or force as to bring the company applying it within the designation of a manufacturing corporation under the statute, against the expressed of necessarily 'implied determination of the comptroller as the taxing officer of the state.

. Electricity is used in a great variety of forms; for telegraphic and telephonic communications in which the communications dispatched are matters of commerce and a source of revenue to the companies using the same, and as power in the propulsion of railroad cars from which the company derive an income, and we are not aware that in such uses of electricity it has been claimed or held that its production or use as thus applied has been held to be á manufactoring, so as to exempt the companies using it from taxation under the exemption in the statute. Future developments in science may settle definitely this disputed question. But until it is settled the determination of the comptroller in imposing this tax should not be reversed by the court. Our attention has been called by the relator to several acts of the legislature in which companies have been characterized as corporations to manufacture, use or supply electricity, or similar expression, from which it is urged that there is a legislative recognition of electricity as a manufactured article. But it is quite apparent from an examination of these acts that the legislature in using these expressions never had in contemplation any legislative determination of the question involved in this controversy.

In People ex rel. Edison Electric Illuminating Co. v. Edward Wemple, Comp., supra, this court held that to reverse an assessment made by a public officer charged with the duty of making an assessment and having jurisdiction of the parties and subject matter, it must be made to appear affirmatively that the assessment is in part or in, whole erroneous ; and this rule is fully supported by authority. People v. Commissioners of Taxes, 99 N. Y., 154. We think this rule applies with equal force in this case. The relator assumes the burden of showing this tax erroneous, and must affirmatively establish thát proposition. Cooley on Taxes, 146 ; Academy of Fine Arts v. Philadelphia County, 22 Pa. State, 496; People v. Commissioners of Taxes, 99 N. Y., supra.

In this we think the relator has failed. The action of the comptroller in making this assessment and in collecting this tax is confirmed, and the writ of certiorari quashed, with fifty dollars costs and disbursements against the relator.

Landon, J.

—This case also comes before us upon a writ of certiorari, to review the proceedings and determination of the comptroller, in imposing taxes upon the franchise and business of the relator with penalties added, and his refusal to revise and resettle the same.

The relator was incorporated under chapter 40, Laws 1848, the so-called manufacturing act. It is engaged in business like that of the Edison Electric Illuminating Company. The case differs in details, but not in principle, from that of the People ex rel. Edison Electric Illuminating Company v. Wemple just decided. For the reasons stated in the opinion in that case, a like order must be entered.

Determination of the comptroller modified by deducting from the aggregate of the taxes and penalties, the aggregate of the excess of the penalties above ten pereentum, and as so modified affirmed, without costs, and the said excess must be restored to the relator.

Learned, P. J., concurs.


author: Mayham, J.

text:
    Jonathan D. Manette, Resp’t, v. William Simpson, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    Parties—Lease—Principal and agent.
    In an action upon a lease, the tenant, defendant, set up that plaintiff was not the real party in interest, as he was merely the agent for the owner of the farm. Held, that as the contract was in writing, not under seal, and does not, upon its face, disclose the existence of the relation of pri-cipal and agent it could he maintained by the principal or agent in either of then’ individual names.
    Appeal from a judgment of Sullivan county court, affirming a judgment of a justice of the peace. The action was upon a written lease of a farm, which lease was executed by the parties March 28, 1890. The lease provided that the defendant should pay the plaintiff the sum of seventy-five dollars ($75) as rent for one year, payable on the 1st of October, 1890. The proof shows that the defendant occupied under the lease, that the rent was past due and had not been paid.

      Charles H. Stage, for app’lt; George H. Smith, for resp’t
   Mayham, J.

—The plaintiff prosecutes this action to recover rent which he claims is due him on a lease, of which the following is a copy:

“ It is hereby agreed between J. D. Manette of the first part, and William Simpson of the second part, that the said J. D. Manette agrees to rent to the party of the second part the farm situate near Thompsonville, and known as the Highston farm, now owned by Catherine Whitney, on the following conditions : The party of the second part agrees to pay seventy-five dollars and the highway tax for the use of the farm and buildings for one year from the first day of April, 1890, to the 31st day of March, 1891, payment to be made to the said party of the first part on or before the first day of October, 1890; if said party of the second part fails in his payment as agreed, then the hay and all the crops on the farm shall be holding for the same until said payment is made; and he further agrees to put up at least two-thirds of the hay raised on the place, and in case any part of the one-third of hay is left, he is to give the said J. D. Manette the first refusal of it. The party of the first part further agrees to furnish materials for and have the fences around the house and barn repaired in good order. The party of the second part rented for one year, with the privilege of three years on the same terms; the party of the first part reserving the right to sell at any time.
“ Dated the 28th of March, 1890.
(Signed) “J. D. Manette,
“Wtt Simpson.”

The answer, among other things, sets up that the plaintiff is not the real party in interest, and it appears in proof that the farm belonged to Mrs. Whitney and that the plaintiff acted as her agent. On this evidence the defendant asked that the plaintiff’s complaint be dismissed, which motion was denied, and the defendant excepts and now claims that the justice erred, and that the judgment should for that reason be reversed.

The contract was in writing, not under seal, and is between the plaintiff and defendant, and does not upon its face disclose the existence of the relation of principal and agent. In such a case the action may be maintained either by the principal or agent in either of their individual names. Considerant v. Brisbane, 22 N. Y., 389 ; Schaefer v. Henkel, 75 id., 378; Ludwig v. Gillespie, 105 id., 653; 7 N. Y. State Rep., 527. The action was, therefore, properly brought in the name of the lessor.

There was no error committed by the justice in receiving or excluding evidence for which the judgment should be reversed.

The conflict in the evidence as to. the agreement to furnish material for fencing made it a question of fact, and the decision of the'justice on such disputed facts cannot properly, under the evidence in this case, be reversed on this appeal.

Judgment of the justice and the county court affirmed, with costs.

1 Learned, P. J., and Landon, J., concur.


text:
    Amelia H. Bumstead, an Infant, App’lt, v. Walter T. L. Sanders et al., Resp'ts.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    Guardian—Liabilities of—Taking possession op estate—Worthless MORTGAGE.
    Defendant, plaintiff’s guardian, received fro* the trustee of a certain fund, which trust had determined, a second mortgage, with other securities, as plaintiff’s half of the trust fund. There had been an action for the construction of the trust, and the complaint showed that the trust fund was partly invested in the second mortgage. - The first mortgage was foreclosed, and on the sale the property produced only enough to satisfy it. Plaimiff brought an action to charge defendant with the loss. Held, that the defendant properly took the securities from the trustee, as they belonged to the fund, and that he could not be held liable for the worthlessness of a part.
    Appeal from a judgment upon trial by the court without a jury, entered in the clerk’s office of Rensselaer county on the 19th day of July, 1890.
    This action was brought for an accounting, and to require the' defendant, as trustee of Amelia H. Bumstead, an infant, to pay over to her or her guardian the sum of $3,500 and interest thereon, alleged to have been held by him as such trustee.

      Lansing & Cantwell (James Lansing, of counsel), for app’lt; Townsend, Roche & Nason (Martin I. Townsend, of counsel), for resp’ts.
   Learned, P. J.

—It was decided by this court in the case of Sanders, Trustee, v. Bullard (Albany, May, 1883,) that on the death of Henry Bumstead, December 25, 1872, the trust created for his life by the will of the testator ceased. It was adjudged by the special term, December 6, 1873, in Bullard, Trustee, v. Bumstead, that on the death of Henry. Bumstead half of the fund of $10,000 held in trust for him vested in Amelia H, the present plaintiff, but that in case Henry D. Bumstead should have other children, such children should be at liberty to apply to the court, if so advised, for a share of said $5,000.

Subsequently to the making of the last decision, and in January, 1874, the father of Amelia H. petitioned the court, and stated that she had no general guardian, and asked the appointment of some person as trustee to take care of her interests. The court did thereupon, on the 4th day of January, 1874, appoint the present defendant trustee of said trust fund of $5,000.

As we remarked in the opinion above referred to, we do not know of what trust the defendant was appointed trustee, since the trust under the Bumstead will ceased December 25, 1872. He was not the successor of the trustee of that original trust It would seem as if his appointment was that of a guardian of Amelia H., with perhaps some reference to the suggestion in the order of December. 6, 1873, that other children of Henry D. might, if any and if so advised, apply to the court for a share in the fund.

At the time of the commencement of the action of Bullard, Trustee, v. Bumstead, it appeared by the complaint therein that the $10,000 were invested in bonds and mortgages held by the then trustee, which he was ready to deliver to the party entitled; and it was in respect to the fund thus invested that the judgment therein was made, and that thereafter the appointment of defendant was also made.

The defendant accepted the appointment, and thereupon received from the.trustee of the original trust (which had then expired) a mortgage of $3,000, on which accrued interest of $577.50 had been capitalized and $1,500 in cash or its equivalent. The martgage was a second mortgage and on a foreclosure of the first in September, 1880, the property brought "practically only enough to pay the first mortgage ánd costs.

This action is brought for an accounting. The court held the defendant liable for the $1,500, about which there is no question, but did not hold him liable for the $3,500. The plaintiff appeals. The ground of the plaintiff’s claim is the alleged misconduct of defendant in accepting from Bullard, trustee, the $3,500 mortgage. We may assume for the present that the investment in that mortgage was one which Bullard as trustee ought not to have made. The question is, did the defendant do wrong in taking it

It is to be observed that the investment had been made long before the defendant had anything to do with the property. The bonds and mortgage were made specifically to Thomas J. Bullard as trustee for Henry Bumstead. They were, therefore, a part of the trust property at the time when defendant was appointed. And the complaint in the judgment roll to which we have above referred, showed that fund was invested in bonds and mortgages.

Now in this state - of affairs it was the duty of the defendant to take the securities which belonged to the fund. If he had neglected to do so and had assumed instead to sue the administrators of Thomas J. Bullard, then deceased, the former trustee, he would have assumed a very serious risk. If he could have maintained such an action (a point we need not decide) the estate might have been unable to pay, and thus he might have greatly injured his trust property.

There is still another consideration. In the action above mentioned of Thomas J. Bullard, trustee, this present plaintiff was a party defendant. Before the decision in that action Thomas J. Bullard died. Of course his duties then ended. In fact the trust had ceased before the action was commenced. Hence the accounts of said deceased trustee could have been passed in that action, and the present plaintiff could have had a settlement, and could have charged the estate of said deceased trustee as might have been proper.

But the plaintiff insists that notwithstanding the trust estate had been actually invested in this bond and mortgage, the defendant was not bound to take it, but could have required the administrators of the deceased trustee to pay him cash. He cites Ormiston v. Olcott, 84 N. Y., 339, to sustain this proposition. In that case one of two trustees, the one who had managed the estate, died. None of the trust property had been kept distinct, but it had all been practically absorbed in the estate of the deceased trustee. So that it stood simply as a debt from his estate. In this situation, the surviving trustee took from the estate an Ohio mortgage, . which in the end appeared to be of doubtful value. The general term thought the acceptance of that mortgage was not justifiable. 22 Hun, 270. But the court of appeals held otherwise; refused to hold the defendant liable, and decided that the action of the trustee did not come under the rule which forbids a trustee to make a foreign investment. Now, it is evident that the action of the trustee in that case was far less justifiable than that of this defendant. In that case the defendant was one of the original trustees. Here, he is not, and is not even a successor in the trust. In that case, there were no securities specifically belonging to the trust, and the defendant could have demanded cash. Here, there was a specific investment, which it would be hazardous to reject. In that case, the trust was still existing. Here, it is ended, and the estate has vested in the plaintiff. In that case too, as was held by the general term, the estate of the deceased trustee was solvent. The court of appeals said they were not certain of this; but did not find the contrary. But they point out the difficulty and delay of attempting to collect the.claim from the estate. All that difficulty exists here, with the further obstacle that an actual and specific investment had been made and was held by the estate of the deceased trustee. This circumstance would make still more difficult the recovery of money from the estate.

The decision in Matter of Foster, 15 Hun, 387, if applied to the present case, would show that the estate of Thomas J. Bullard is liable to the present plaintiff. It does not in the least show this defendant is liable. In that case a trustee had resigned and been discharged, and passed the securities to his successor. 'Some of these securities which he had taken were unauthorized. The ■cestui que trust was allowed to maintain a proceeding against such former trustee to set aside his discharge, and to compel him to make good the improper investments which had subsequently proved worthless. It is apparent that this case is directly in point to sustain an action by the present plaintiff against the estate of Thomas J. Bullard, but by implication, at least, is opposed to a recovery in this case.

Nor does the case of Baskin v. Baskin, 4 Lans., 90, sustain the plaintiff. A special administrator had collected money and deposited it in a bank, taking a certificate payable in six months, with interest. The executor received that certificate, and did not attempt to collect it until the failure of the bank, eighteen months after the certificate became payable. They were held liable as negligent, in not collecting a loan.

Under the decision, then, the defendant was not liable for taking this bond and mortgage. Nor do we see that subsequent neglect has been shown. The defendant, by the same counsel who now represents the plaintiff, sued the administrators of Thomas J. Bullard in February, 1882, to recover for the loss on this investment, but he was defeated. It has been shown above from the decision of December, 1873, that the half of the estate vested in the plaintiff. And by Matter of Foster, that she can sue the administrators of Thomas J. Bullard for any injury sustained by her.

If the defendant is really her guardian, though nominally trustee, the plaintiff urges that as such guardian he might have brought such an action. Perkins v. Stimmel, 114 N. Y., 359; 23 N. Y. State Rep., 657, cited by plaintiff, does not sustain that view, and we think it is not supported by the best authorities. Bradley v. Amidon, 10 Paige, 235; Segelken v. Meyer, 94 N. Y., 473. Certainly it is not so plain as to make defendant liable in damages for not acting thereon, when the plaintiff herself might bring the action in her own name.

Judgment affirmed, with costs.

Landon, J., concurs.


text:
    Louisa Freeman, Adm’rx, App’lt, v. The Glens Falls Paper Mill Co., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    3. Negligence—Contributory—Master and servant—Elevator—Absence OR AUTOMATIC TRAP DOORS—LAWS 1887, CHAP. 462.
    Plaintiff's intestate, an employe in defendant’s pulp mill, in company with other workmen passed from the upper floor upon the elevator, and omitted to close the well hole by putting up the bar, which, however, was put up by another employe. While working at the foot of the elevator shaft loading a heavy grind stone, a barrel jarred by the vibration of the mill rolled into the well, which had no automatic trap doors, as required by the statute, and falling, killed him. Held, that § 8, chap. 462, Laws 1887, requiring trap or automatic doors to he placed in elevator shafs, imputes negligence to a party coming within its provisions for failing to comply with its requirements and that a party injured in consequence of such negligence, unless shown to have waived its provisions or to have contributed to the injury by his own negligence, would have a right of action.
    2. Same.
    The question of the contributory negligence arising upon a state of facts conflicting in themselves or capable of more than one natural construction is one for the jury, and the failure of the trial judge to submit it to them is error.
    3. Same—Knowledge op danger by employe.
    The question whether deceased had knowledge of the danger caused by the defendant’s allowing a barrel to stand upon the mill floor in such a manner as to he rolled into the well hole by the jarring of the mill, and thus rendering it unsafe to work upon the platform of the elevator when on the lower fl or, is one for the jury.
    4. Same—Act op pellow servant.
    The defendant's foreman was intrusted with the management of the mill and represented the master in assigning the servant to his fatal place of labor; and the negligence, if any, was the master’s.
    Appeal from a judgment entered upon the nonsuit of the plaintiff at the Saratoga circuit. The action was prosecuted for the alleged negligence of the defendant in the construction and operation of its pulp mill, by reason of which the plaintiff’s intestate was killed while engaged as an employe of the defendant in repairing the mill where he had been engaged in similar service for four or five weeks, immediately prior to the accident, by which he was killed.
    The defendant's pulp mill stood upon a steep bank, and consisted of three stories, the floor of the upper story of which was on a level with the street, and which communicated with the two lower stories of the building by means of an elevator, which passed up and down through a shaft or well, and was propelled by machinery, which was put in motion by means of shifting a belt from a loose to a fast pulley.
    At the time of the accident there was no trap door to close the well or shaft in the upper floor through which the elevator passed in ascending or descending.
    The well or shaft was closed up on three sides on the upper floor, and on the other side were two bars, the upper of which was fastened to the posts of the well, and the other was movable back and forward through clasps attached to the posts. This movable bar was, when in position, about twenty-four inches above the level of the floor at one end, and about twenty-five and one-half inches at the other. There was some evidence tending to prove that it was the duty of persons passing through these bars from the elevator to the floor, or from the floor to the elevator, to close this lower bar on passing; and that a short time before the accident plaintiff’s intestate, in company with other workmen, passed from the upper floor on to the elevator, and that intestate, who was the last to pass through, neglected or omitted to close the well by putting np this bar, and it was closed by another employe of defendant. The evidence also shows that the barrel, by the falling of which the accident was produced, would roll under the bar if it was in position. -

      At the time of the accident, the intestate with others was engaged in loading on the elevator at the lower floor of the mill a heavy grind stone, and while adjusting a roller under the stone boat on which the grind stone was being moved upon the elevator his head came within the line of the well or shaft, and while in that position an empty oil barrel which had been left on the upper floor was put in motion by the vibration of the mill caused by the working of powerful machinery used in grinding and pulverizing wood, and> rolled from its position upon the floor, which slightly inclines towards the well, into the open well or shaft, and fell upon intestate’s head, causing his death, for which this action was brought. On the trial the plaintiff, on motion of the defendant, was nonsuited, and from the judgment entered upon the nonsuit the plaintiff appeals.

      N. C. Moak, for resp’t; T. F. Hamilton, for app’lt
   Mayham, J.

—Three questions are raised by this appeal:

First. Was there evidence on the part of the plaintiff sufficient to authorize the jury to find that the defendant was guilty of negligence in not furnishing a reasonably safe place for the intestate, who was its servant, to perform his work r

Second. Does the evidence disclose that the intestate was himself guilty of contributory negligence or was there such a failure of proof of freedom from contributory negligence as to justify the court as matter of law in taking that question from the jury ?

Third. Did the plaintiff’s intestate as matter of law take the risk of his employment so as to exonerate the defendant from liability ?

As to the first inquiry, propounded above, it cannot be denied that the law imposes the duty upon the employer in business of this character to fnrnish a reasonably safe place considering the nature of the employment for the performance of the work by the servant. Upon this point the appellant insists that the fact that the defendant omitted to place automatic doors or traps over the elevator well' or shaft on each floor of the building in which the elevator was used was in itself negligence, and upon this point call attention to the provisions of chapter 462 of the Laws of 1887. By § 8 of that chapter it is provided that: “It shall be the duty of the owner, agent, or lessee to provide such proper trap or automatic doors so fastened in or at all elevator ways as to form a substantial surface when closed and so constructed as to open and close by action of the elevator in its'passage either ascending or descending.” Section 20 of this chapter makes a neglect or refusal to comply with this provision a misdemeanor and prescribes punishment for the same. It is apparent that this statute imputes legal negligence to a party coming within its provisions for failing to comply with its requirements and that a party injured in consequence of such negligence, unless shown to have waived its provisions or to have contributed to the injury by his own negligence, would have a right of action against the party operating such elevator in violation of this provision of statute. In Jetter v. N. Y. & Harlem R. R. Co., 41 N. Y., (2 Keyes), 162, the rule upon this subject is stated to be axiomatic 11 that every person while violating an express statute is a wrongdoer and as such is ex necessitate negligent in the eye of the law, and that every innocent party whose person is injured by the act which constitutes the violation of the statute is entitled to a civil remedy for such injury, notwithstanding any redress the public may also have.” It is manifest, therefore, that, if this opening in the floor had been closed automatically by a trap door on a plane with the upper floor of the well, where the elevator passed down the shaft, that this injury could not have happened in the manner in which it did, and that the accident is directly traceable to the defendant’s failure .to comply with this statute.

In Mc Richard v. Flint, 114 N.Y., 222 ; 23 N.Y. State Rep., 100, it was held that, where a party was required by chapter 547 of the Laws of 1874, to provide a trap door at each floor at the openings for the elevator, and failed to comply with the statute, and a person lawfully upon the premises was injured by falling into the shaft, it was prima facie negligence, for which the owner was liable. White, by Guardian, v. Witteman Lithograph Co., 58 Hun, 381; 34 N. Y. State Rep., 895. But this would not alone make the defendant liable. The plaintiff was required to go farther, and show that the plaintiff’s intestate was himself free from contributory negligence on his part, and this brings us to the consideration of the second inquiry propounded. It is the settled law that, where a party seeks to recover damages occasioned by the negligence of the defendant, he cannot recover without establishing on the trial that he himself was guilty of no negligence which, in any degree, contributed to the injury complained of. This doctrine is too elementary to require the citation of authorities. The difficulty and embarrassment in this class of cases arises out of the application of the rule to each particular case. If this case clearly and unmistakably shows that the defendant is free from contributory negligence, then the law upon this branch of the case pronounces in his favor. But if the question arises upon a state of facts conflicting in themselves, or capable of more than one rational construction, then it becomes a question of fact for the jury, and in such case a failure by the trial judge to submit it to the jury would be error, for which a new trial should be granted.

It can hardly be claimed, in this case, that the question of contributory negligence on the part of the intestate was so clear as to be properly disposed of as a question of law by the trial judge. On the part of the defendant it is insisted that the plaintiff’s failure to close the bar after going upon the elevator to go down, a short time before the accident, was such a neglect as to charge him with contributory negligence, but this is attempted to be answered by the plaintiff by showing that the closing of this bar would not have prevented this barrel from rolling into the well, and that it was closed by a fellow servant, and that'the injury was in no way influenced by the bar being left open.

It is also urged on the part of the defendant that it was negligence for the deceased to allow his head to get in range of the side of the well or shaft, as by so doing he exposed himself to be hit by any' falling substance, to which the plaintiff replies, that he was giving attention to his work, and could not be expected to anticipate danger from defendant’s allowing empty barrels to roll over the floor of the building and thence into the well and upon intestate.

These questions being in the case, and, as we think, bearing in a greater or less degree upon the disputed fact of the plaintiff’s contributory negligence or freedom, from the same, they were proper subjects for the consideration of the jury upon that question. Kelly v. N. Y. C. & H. R. R. R. Co., 9 N. Y. Supp., 90; 29 N. Y. State Rep., 646; Pitcher v. Lake Shore & M. S. R. R. Co., 8 N. Y. Supp., 389; 28 N. Y. State Rep., 647. If, therefore, this was a proper case for the jury, it was error for the learned judge to take it from them, unless, as it is insisted by the defendant, the plaintiff’s intestate, in entering upon this employment, assumed all the risk incident to the employment without regard to the question as to whether or not the master had provided a reasonably safe place for the performance of the work. This brings us to the consideration of the third question suggested above. Did the deceased, as matter of law, assume the risk of-the injury he suffered by reason of accepting the employment in which he was engaged at the time of the accident. The general rule is well settled that, where the master performs his whole duty to his servant in furnishing a reasonably safe place and suitable and reasonably safe tools, implements and appliances for the performance of • the work, the servant takes all the risk incident to the performance of the service he undertakes to perform. The defendant insists that the plaintiff’s intestate having voluntarily continued his employment in the mill with the knowledge of the fact that there were no "automatic doors to the elevator, that all known and obvious dangers arising from the absence of such doors were assumed by him, and that the plaintiff cannot, for that reason, recover.

The case does not in express terms show that the deceased had. notice of or knew that automatic doors had not been placed in position to close the well at each floor, after the elevator passed, but I think from the frequency with which he passed up and down on the elevator it is fair to presume that he was cognizant of that fact, or at least had such ample opportunity to see the defect that he is chargeable with knowledge in the absence of proof to the contrary. There is no proof that the deceased had knowledge that loose barrels were left on the upper or first floor in such a position that by the vibration of the mill from the working of the-heavy machinery they might be set in motion and thus precipitated through the elevator hole in the upper floor and down upon the deceased while engaged in his legitimate duties at the bottom of the well, or on the lower floor of the mill.

That condition of insecurity does not appear to have been known to him, nor could it be discovered by him while engaged in the heavy and difficult task of loading the grind-stone, and it "bore expressly upon the question of the safety of the position furnished by the master for the performance of the work by the servant,

I do not see, with that condition existing, how it can be said as matter of law that the master in this case furnished a reasonably safe place for his employe to work. What was a reasonably safe place,^ it seems to us under the circumstances of this case, was a question of fact for the jury- and whether this was such a place should, it seems to us, have been submitted under the evidence as a question of fact for their consideration and determination.

We have been - referred by the learned counsel for the respond-, ent to a great number of cases upon this branch of the case, but 'an examination of them will show that in all, or nearly all, of them the servant had knowledge of the dangerous conditions ,to which he was exposed which produced the injury. -In Fitzgerald v. The N. Y. C. & H. R. R. R. Co., 36 N. Y. State Rep., 755, the deceased was hit by a bridge while standing on a freight car in motion. But it appeared that he had had his attention called to the bridge on previous occasions, and it was held that he could not recover, chiefly on the ground that he knew of the danger, .and forgetting or not heeding it at the time was negligence in him.

In Swartz v. Cornell, the plaintiff’s intestate, who was an iron worker and builder, while at work on a roof, fell through the hole in the roof, which was not left thereby any negligence of the defendant, the existence of which was known to and plainly perceivable by the intestate. In an action by his administrator he was non-suited, and the nonsuit was sustained on appeal, and the court uses this language: “We do not see how the defendant can be held liable in this case, without abolishing the well established rule that the servant by accepting the employment assumes the risk and perils incident thereto, so far as they are apparent and obvious.”

It will be observed in this case everything was open and obvious to the employe; there was no barrel out of sight in another room not séen by qr known to the servant which jeopardized his life. If in this case the deceased with a full knowledge that the elevator, well was open and unguarded had fallen through and been injured, as in the case put by the learned trial judge, it is- quite likely he would be without remedy, as in that case he would be held to have known just the risk he ran, and have contracted in reference to that risk. But this is not that case. Here, in addition to the fact that the well was not closed by automatic doors, which may be assumed to have been within the knowledge of the deceased, was another concurring if not an immediate cause of the accident, which is shown to have been brought within the know ledge of the deceased. The barrel which fell upon the deceased was left in a position which affected the safety of the place furnished by the defendant for the performance of the work in which the deceased was engaged, of which the plaintiff’s intestate, so far as the ■evidence discloses, had no knowledge, and from which the jury might have found the defendant guilty of negligence contributory to the injury, for which the intestate was in no way responsible.

If this risk related to the safety of the place of the employment and not to the dangerous character of the employment itself, then was the risk of the master and not that of the servant; for while the deceased took upon himself the risk of the dangerous character of the service, the employer assumed the risk and duty of furnishing a reasonably safe place for the performance of that service. Cullen v. Norton, 52 Hun, 11; 22 N. Y. State Rep., 221; Pantzar v. The Tilly Foster Iron Mining Co., 99 N. Y., 368. We think, therefore, under the circumstances of this case, the question whether the deceased had knowledge of the danger caused by the defendant’s allowing a barrel to stand upon the mill floor in such a manner as to be rolled into the well hole by the jarring of the mill, and thus rendering it unsafe to work upon the platform of the elevator when on the lower floor, was one for the jury.

But it is insisted that even if the leaving of the barrel upon the upper floor in such a manner as that it fell upon the plaintiff’s intestate and thus produced the injury was an act of negligence, still it was the act of a fellow servant, and the defendant is not liable. In this contention we cannot agree with the learned counsel for the respondent. If placing a barrel on the top floor under the circumstances of this case was negligence, it was negligence affecting the safety of the place where the work was being done and not the character of the employment for which alone the master is responsible. In Cullen v. Norton, supra, Landon, J., in discussing this question says: “ One of the duties of the master was to furnish -his servant a safe place and proper in which to prosecute his work. This duty continued to be the master’s,, no matter to what subordinate servant he delegated its performance. The defendant’s foreman was intrusted with its performance, and hence stood in the place of, and represented the master in assigning the servant to his fatal place of labor. If it was negligence to assign him to that place, the negligence was the master’s.” It is true that this case was reversed in the court of appeals, 36 N. Y. State Rep., 359, on the ground that the principle there stated did not apply to that case, but the doctrine was not overruled. For the reason above stated we think the case was one for the jury, and the refusal of the learned trial judge to submit it to them was error, for which the judgment should be reversed.

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

Learned, P. J., concurs; Landon, J., concurs in result