text:
    Felice Tocci, App’lt, v. Mayor, etc., of the City of New York et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    1. Constitutional law—Railroad tracks.
    The provisions of chapter 339 of 1893, which imposes upon the city a portion of the expense of elevating certain railroad tracks, does not violate § 11, art. 8 of the state constitution.
    '3. Same.
    The question whether the legislature required the city to pay too great a consideration, cannot he considered by the courts.
    '3. Same—Reversion.
    In such case, the land in the street reverted to the city for street purposes, without a formal release from the company.
    Appeal from an order denying a motion for an injunction pendente lite.

      Albert Reynaud, for app’lt; Frank Loomis, for respondents New York & H. R. Co. and New York Cent. & H. R. R. Co.; G. L. Sterling, for resp’t the mayor, etc.; William E. Clark, for resp’t Myers.
   Van Brunt, P. J.

This action is brought by a taxpayer to restrain the city officials from paying to the railroad companies, defendants, certain moneys, under the provisions of chapter 339 of the Laws of 1892, upon the ground that it imposes upon the city a contribution to the private railroad structure belonging to the defendant railroad companies, and is therefore unconstitutional. Upon the application for an injunction pendente lite, affidavits were submitted' upon both sides, and .certain material facts controverted in those affidavits. In cases of this description, it is much better practice, where the right to a preliminary injunction has been denied, and there are disputed questions of fact, that the party should go to trial, and settle the facts, and there determine the question as to the right to an injunction, rather than to attempt to procure a decision of the general term upon a state of facts which may be entirely changed upon the trial, and, unless a very clear case is made only by facts which could be found to be different upon the trial, such an order should be affirmed. In the case at bar, upon an examination of the papers upon which this application was founded, and the answers thereto, it seems to us that there is no possible reason for our interference with the court below. The whole fallacy of the plaintiff’s action is the assumption that the contribution of money by the mayor, aldermen and commonalty of the city of New York to the enterprise in question is a contribution to a private use. On the contrary, it would appear that it is a payment upon the part of the city for benefits and privileges received; and with the question as to whether the city has paid a high or low rate for what it has acquired, we have nothing to do.

It appears that the defendant railroad companies were, prior to-1872, the owners' of, and operating, on 4th avenue, in the city of New York, steam railroads, from 45th street up to and "across the Harlem river. In 1872 an act was passed giving the New York & Harlem Railroad Company a statutory grade between 45th street and the Harlem river, an increased width of depressed roadway, and, where the said roadway was to be in tunnel, giving to the city and the people the full width of 4th avenue between 56th and 96th streets. Between 96th street and Harlem river the railroad structure was to be upon a viaduct, and in a cut inclosed by side walls, with undercrossings between 102d and 118th streets, inclusive, and overcrossings from 119th street to 129th street, inclusive. The said railroads crossed, and were to cross, the Harlem river slightly above high-water mark. By this act the railroad companies were given the exclusive use and occupation of said railways, and persons were prohibited from entering or passing upon the same, or any portion thereof, under a penalty. In 1890 an act of congress was passed, providing that the secretary of war should cause the low bridges then crossing the Harlem-river to be replaced by other bridges, at the expense of the owners thereof, as soon as the necessary legislation, if such legislation were necessary, should enable the change in grade to the approaches of said bridges to be made; the owners of said bridges to be allowed a reasonable time in which to complete the work necessary for such bridges, and said bridges to have a clear space between the undersides thereof, and the high water of spring tides, of twenty-four feet. To enable the railroad companies to-comply with the act of congress, all that would have been necessary to be done was to change the grade from 125th street to the Harlem river, which would have been much less expensive to the companies than the plan hereinafter mentioned, provided for by the act of 1892. But, had this method been adopted, no part of Park avenue would have been returned to- public use, and it would not have permitted the free and unobstructed passage of the intersecting streets from one side of the city to the other. In 1892, in order to enable the said railroad companies to comply with the requirements of the act of congress, the legislature passed an act changing the grade of the road from 106th street to and over the Harlem river to 149th street, making in the act various requirements in respect to the plans, specifications, and estimates for said work, and to the method in which the work should be done. The act further provided that when the plans, specifications, and estimates should be made and filed as therein required, the expense and cost of the improvement should be borne and paid by the defendant the New York & Harlem Railroad Company, or its lessee, the Nevr ,:"or¿Central & Hudson River Railway Company, and the mayo/}ai'¡ur_ men & commonalty of the city of New York, in equal prop-.-tions, as the construction of the said improvement progressed The act further provided that when and as often as it should appear by the certificate of the superintending engineer of the work of said improvement, duly certified by a board provided to be appointed by said act, that the sum of $25,000 had been expended thereon by either of said railroad companies, specifying the portions and divisions of said improvement where the said expenditure had been made, the comptroller of the city of New York should draw his warrant, etc., for one-half of the same. The act further provided that in no event should the proportion of the cost of said improvement to be paid by the city of New York exceed the sum of $750,000, and that, if the cost of said improvement should exceed the sum of $1,500,000, then the entire cost, over and above such sum, should be borne and paid for by said railroad companies; and, further, that said improvement, structure, and bridge should be exclusively for the uses and purposes of the railroad companies, and it should not be lawful for any person or persons other than a public officer in the execution of his duty as such, with his agents and assistants, to enter and pass upon or through the same, or any portion thereof, on foot, or in any other way than in the proper cars of such corporation provided for such purpose, with the consent of such corporation, under the penalty of a fine; this provision being the same as that contained in the act of 1872.

It is urged upon the part of the appellant that the contribution imposed upon the city, by the statute, of one-half the cost of the structure from One Hundred and Sixth street to the river, declared to be exclusively for the uses and purposes of a private railroad company, is illegal, and in violation of the constitution; and our attention is called to the provision of the constitution, which, so far as it is applicable to the question now before the court," is as follows:

«]xr0 * * ->:• (¿ty * * * shall hereafter give any money or property, or loan its money or credit to or in aid of any individual, association or corporation; nor shall any such * * * city * * * be allowed to incur any indebtedness, except for city purposes.”

The argument of the counsel for the appellant is that the statute under consideration provides that the city shall contribute, practically, to two material works: First, the construction of a railroad structure, which is expressly stated to be exclusively for the use of the defendant company, that is, the New York & Harlem or the New York Central & Hudson River Railway Company ; and, secondly, the filling in, regulating, and paving under that structure of some space and street crossings from 115th street to 133d street, and making the same part of the public avenue—and that, if the second purpose is not within the prohibition of the constitution, if it has been so inextricably mixed in the statute with the first' Pm‘pose: which is within such prohibition, that it is inseparable, ep-Eire provision is vitiated. It is further urged that in the case »o"ba.r, however, the purposes and objects are not so mixed as to defy judicial discrimination, neither in principle nor in fact, and therefore the unlawful can and must be set aside ; for the provision so far as it prescribes the contribution to the ostensible-public work of filling in, regulating, etc., can be readily separated- from the part imposing upon the city the payment of one-half the cost of the private railroad structure declared to be for the railroad’s exclusive use and purpose.

We think, however, that in this statement of propositions the essential features of the improvement are lost sight of by the appellant. It is undoubtedly true that the expense attendant upon the opening, filling in, regulating, and paving of Park avenue, released by the elevation of the defendant’s railroad tracks, can be separated from the expense of building such elevated tracks. But this is by no means the whole of the improvement, nor is it the part of the improvement in which the city is most largely interested. These railroad companies were in exclusive occupation of a part of the public streets of the city of New York. It.was deemed by the legislature advantageous to the city of New Y orle that such occupation should cease, and that these portions of the streets should be restored to public use, and the interruption of communication between the two sides of the city should terminate; and they considered that the advantages to be derived from these changes, and the others to be made by the railroad companies, which the legislature had no power whatever to enforce upon said companies, were of sufficient importance to the city of New York to justify its payment of one-half of the expense of the improvement, up to $750,000. It is entirely immaterial, in the consideration of this question, whether the railroad company owned the fee of the land which they occupied or not. For all practical purposes, they were its absolute owners, and entitled to its absolute control and exclusive use for the purposes of their railroads. It was for the abandonment of these rights, and the expense of other construc.tions in their stead, that the city was authorized to make the payments provided for by the act. The provision of the act in regard to the payments to be made—that the certificate of the superintending engineer of the work of the improvement should specify the portions and divisions of said improvement where said expenditures had been made—was simply a method of determining as to how much money, under the provisions of the act, the city at any one time could be called upon to pay towards the improvement. It was a matter of considerable moment to the city of New York as to whether unobstructed communication should be had between the different sides of the city from One Hundred and Fifteenth street to the Harlem river. The improvement was but one work. There were different things to be done in carrying out its design. But merely because a portion of the improvement required either the removal or the bringing upon the ground of earthly material, and another portion required the bringing upon the ground and erection of iron structures, by no means segregated the parts of the improvement. They were, each and every of them, necessary parts of one design. The elevation of tracks and the improving of the street were parts of the same work, and it is to this one work that the city contributes. Even though the claim that the city contributes to the private structure of the railroad were true, if, in consideration of such contribution, the railroad surrenders rights which it had to public streets and avenues, and the legislature chose to permit the city to buy out such rights by contributing to the expenses incurred because of such surrender, we see no possible constitutional objection thereto. It is merely paying a consideration for substantial advantages supposed to be gained. And we have nothing to do with the question whether the legislature directed the city to pay a high or low price for the privileges which it acquired, or made an improvident bargain therefor, if their value is of such a character that an absolute gift cannot be inferred. Wow, it is conceded by the argument upon the part of the appellant that the acquisition of the streets occupied by the railroad companies, and the establishment of uninterrupted communication between the two sides of the city, are a matter of great value, but, it is contended, not of the value which the legislature directed the city to pay. Into this inquiry we cannot enter. ^

It is further urged upon the part of the appellant that, while the act is substantially granting a new franchise and use to these railroads, it contains no provision for a conveyance by the roads to the city, or even a quitclaim deed or release of anything they then owned. But this in no manner affects the question. It is undoubtedly true, as was so ably shown by the counsel for the appellant, that the use of the streets by the railroad company being abandoned because of their right acquired for an elevated railroad, the land in the street formerly occupied by them naturally and legally reverted to the city for street purposes. The conditions remained the same, whether there was a formal release, or a release by operation of law. The railroad companies surrendered their rights and accepted a new franchise, and the legislature authorized the city to pay them not to exceed a certain sum for so doing. As already stated, we see no constitutional objection to such a provision, under the circumstances disclosed in the case at bar.

The order should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Follett, J.

license: Public Domain

text:
    Charles Trotcky, an Infant, by Guardian, etc., Resp’t, v. Forty-second St. & Grand St. Ferry Railroad Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    Appeal—Evidence.
    When the testimony of the unsuccessful party’s witnesses, in addition to number, is of such a character as to render the truth of their statements more probable than the testimony of the witnesses of the successful party, the verdict will be set aside as against the weight of evidence.

      Appeal from a judgment entered in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes.

      Freling H. Smith and B. W. Simpson, for app’lt; W. Bourke Cochran (Christopher Fine and Wales F. Severance, of counsel), for resp’t.
   Follett, J.

This action is for the recovery of damages for a personal injury, caused, as it is alleged, by the negligence of the defendant’s employes. On the 17th of July, 1891, between eleven and twelve o’clock, A. M., the plaintiff, then but two years and three months old, was run over by one of defendant’s horse cars,, and suffered the loss of his right arm. The plaintiff resided, with his parents, on the third floor of Ho. 579 Grand street. His maternal grandmother occupied the ground floor of this number as a cigar store. At about eleven o’clock of the day of the accident the plaintiff’s mother took him downstairs, and left him in the care of his grandmother. Ho. 579 is on the south side of Grand street, and a little east of where Goerck street intersects Grand. The child saw an ice wagon on the north side of the street, and, expressing a desire for a piece of ice, his grandmother permitted him to dross the street in company with a boy by the name of Kelly, who was then about nine years of age. After the child, had received a piece of ice, he started to recross Grand street, and was run over by defendant’s open car Ho. 83.

The foregoing facts are not disputed. The evidence given in behalf of the plaintiff does not tend to charge any of the defendant’s employes with any negligent act which contributed to the accident, except the driver of car Ho. 83, and it is sought to establish that he was negligent in the following particulars: (1) That he was sitting, instead of standing, for which reason he was unable to see the child on the track as early as though he had been standing; (2) that the car was moving at an excessive rate of speed ; (3) that the driver did not promptly apply the brakes. To establish these propositions three witnesses were called in behalf of the plaintiff. His grandmother, Fannie Friedman, testified that the child left her store in company with the Kelly boy to cross the street for a piece of ice, and that, after securing it, he and the Kelly boy started to recross the street together, and while crossing the child fell on the south track, and the Kelly boy left him. She testified that the driver of Ho. 83 was sitting down, and that the car went very fast. Bernard Price and Hirsch Friedman testified that they were walking together from the ferry west on the north side of Grand street, and that they saw the child lying on the south track; that the driver of car Ho. 83 was sitting, and that he did not apply the brake until the car was very near the child, and that the car was running very fast. Both testified to substantially the same state of facts. On the .cross-examination both said that they could not say that the car was going as fast as at the rate of five miles an hour. This was substantially all of the evidence given in behalf of the plaintiff descriptive of the accident or of its cause. Patrick Glynn, the driver of car Ho. 83, testified that he was standing, with the lines in his left hand, with his right hand on the brake. That the car was traveling east towards the ferry on the south track at the rate of about six miles an hour; and that as he approached Goerck street, a yellow car, No 13, of the Cortlandt Street Line, approached from the east, going west on the north track. That the child was crossing the street from the north to the south, and ran in front of the horses drawing No. 13, and between the whiffletree and dashboard of No. 83, and fell under it. James Gettings, the driver of No. 13, testified that as his car approached Goerck street he saw this child standing on the northwest corner of Goerck and Grand; that he suddenly started and ran diagonally across the street in front of his horses; that he called to the driver of No. 83, but the boy ran against the whiffletree of No. 83, and fell under it. He testified that No. 83 was going at about the rate of six miles an hour; that its driver was standing; that he applied his brake, and stopped the car within eight or ten feet. Ellen Miller testified that she was riding on car No. 83; that the child ran in front of the horses drawing car No. 13, and against the one on which she was riding. Annie Eldredge testified that she was riding on the north end of the second or third seat from the front ■onc car No. 83; that the driver was standing, and that the car ■stopped very suddenly; but that she did not see the child before it was run over. Fannie Merrick, a sister of the last witness, testified that she sat by the side of her sister; that she did not see the child until after the accident; that the car stopped suddenly, and that the driver was standing. Rebecca Willis testified that she was riding on car No. 83 at the time of the accident; that it was not going very fast; was stopped very quickly ; and that the driver was standing; but that she did not see the child before the accident. Mary E. Lowery testified that she lived on the top floor of No. 581 Grand street, next east of the building in which the plaintiff’s parents resided ; that she was looking out of the window, and saw the accident; that the Kelly boy and the child went to the ice wagon; that the Kelly boy went onto the wagon, and handed the child a piece of ice, after which he started to cross the street alone, and that he fell between car No. 83 and its horses; that he ran in front of the horses of No. 13 and into No. 83; that the cars were not moving very fast, and that the driver of No. 83 was standing up, with his hand on the brake. Julia Murphy testified that she was looking out of the window of No. 581 with her sister, the last witness; that she saw the child run in front of the horses of No. 13, and that he fell between No. 83 and its horses; that she saw the Kelly boy go up to the ice wagon, and hand the child a piece of ice, after which he started to cross the street alone;• that the driver was standing with one hand on the brake. Mamie Pitt testified that she was looking out of the window with the last two witnesses; that she saw the Kelly boy hand the child a piece of ice, and that he then started to cross the street alone, and that he ran in front of the horses of No. 13, and between No. 83 and the horses attached to it. Dennis Conway, the conductor of No. 83, testified that the car was not running over six miles an hour; that as it approached Gfoerck street he heard the driver of No. 13 shout, but he did not see the child until after the accident; and that his driver was standing up. Albert E. Truman testified that he was standing on the fire escape of No. 408 Madison street; that he saw the child start to run across the street towards his home; that he ran in front of the horses of 'No. 13, and against the whiffietree of No. 83, the driver of which was standing, with the lines in one hand and the brake in the other; that he saw the driver apply the brake as fast as he could, and that the car was stopped within a short distance. William Truman, father of the last witness, testified that he was on the fire escape with his son, and saw the accident; that the driver of No. 83 was standing up, with the lines in one hand and the brake wheel in the other; that the child ran in front of the horses of No. 13, five or six yards in advance of them, and into No. 83. Antonio Marrone testified that he saw the accident; that the child started to cross the street, and ran between the hind legs of the horses and the dashboard of car No. 83. John Bovaird testified that he saw the accident; that he heard somebody call, and saw the boy run in front of No. 13, and into No. 83, the driver of which was standing, with one hand on the brake, and holding the lines with his other hand. Joseph Welsh testified that he saw the boy run in front of No. 13 and into No. 83, between its dashboard and whiffietree; that its driver was standing with the lines in one hand and the other on the brake; that both cars were going at about six miles an hour, and that the child was alone. James Kelly, who is said to have,accompanied the child across the street, was not sworn. At the close of the plaintiff's evidence this statement appears:

“I tender to the other side, if they choose to examine him, the boy James Kelly. He is in court. I am free to say to the court that I put him on the stand once, and don’t believe he understands the nature of an oath, or is sufficiently intelligent to give testimony, and that is the reason I don’t call him; but he is here, if the other side desire to examine him.”

The grandmother testified:

“ I had known this boy Kelly, at that time, half a year. The Kelly boy at that time boarded with his aunt in Mangin street, not a block from .where I lived. The Kelly boy had been round there before when Charlie was there. He comes there every day, and plays with the child.”

It is insisted by the defendant’s counsel that the grandmother was negligent in placing the child in the care of this unintelligent boy, with whom she must have been so well acquainted. How much intelligence he had does not clearly appear, and, as the view which we take of this case leads to a new trial, it may be that on the next trial it will be shown whether the Kelly boy was a proper custodian of this child.

A verdict of $15,000 damages was rendered. It seems to us that on the whole case the verdict in greatly against the weight of evidence; and, further, that by evidence which greatly outweighs the plaintiff’s, the defendant shows that its driver did not commit any one of the acts which the plaintiff sought to establish as a ground of recovery. There is no reliable evidence tending to show that the car was moving at more than six miles per hour, and it is not asserted that this rate of speed, at this time and place, was excessive or negligent Many witnesses, who were so situated that they must have known what the fact was, testified that the driver was not sitting, but was standing; and it seems to us that this issue was determined against the preponderance of the evidence, as was also the issue whether the brake was promptly and efficiently applied. The court does not set aside verdicts because the unsuccessful party produced the greatest number of witnesses on the vital issue; but when, in addition to numbers, the testimony of the witnesses is of such a character as to render the truth of their statements highly probable and more probable than the evidence of the witnesses of the successful party, this court must discharge the duty imposed on it by the statute, and determine for itself whether the issues have been determined against the weight of evidence. The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event. I think that the evidence shows conclusively that the witnesses upon the part of the plaintiff testified falsely in order to make out the negligence upon the part of the defendant.

All concur.


author: O’Brien, J.

text:
    Lorenz Reich, App’lt, v. William F. Cochran, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    1. Former adjudication.
    A judgment in summary proceedings for the removal of a tenant is conclusive of the evidence and validity of the lease in a subsequent action between the same parties.
    2. Judgment—Informality.
    An informality does not invalidate the proceedings and judgment, and is no objection to the judgment when brought collaterally in question.
    Appeal from a judgment in favor of defendant.

      Delos McCurdy, for app’lt; Treadwell Cleveland, for resp’t
   O’Brien, J.

This action was brought to have an agreement in the form of a lease from defendant to plaintiff declared a mortgage to secure a loan with usurious interest, and to have the same declared void, and delivered up and canceled. The plaintiff, having obtained a lease of the Cambridge Hotel, assigned the same to defendant, who thereupon made a sublease of the same premises to plaintiff, which arrangement the plaintiff alleges was a mere cover for a usurious loan, and should therefore be held void. As a defense, it was alleged that defendant, through a duly authorized agent, served upon the plaintiff a three-days notice and demand for the payment of a certain sum due as rent under said lease, or for the delivery of the premises, and that the plaintiff refused to pay the rent or deliver the premises ; that thereafter defendant commenced summary proceedings to recover possession of the premises by filing a petition with the clerk of the district court, according to the statute, praying for the removal of the plaintiff from possession of the premises, and for delivery thereof to the defendant; that a precept- was issued, which was served on the plaintiff, who appeared by his attorneys, and asked for an adjournment of the proceedings, which was refused, and judgment was thereupon rendered in favor of the defendant—“ that the said petitioner have possession of the said premises, and that a warrant issue to remove the said tenant and all persons from said premises, and to put the petitioner into full possession thereof.” Upon the trial the defendant offered in evidence a certified copy of this judgment, and thereupon moved for a dismissal of the com-plaint. As shown by the record, the following stipulation was made by the counsel:

“ For the purposes of this action, it is conceded that in August last a proceeding was instituted in the sixth judicial district court in the city of New York, whereby this defendant sought to dispossess the plaintiff on the ground that there was a certain amount of rent due under the lease that is set up in the complaint, and that such proceedings were had on the 17th of August, 1893, a judgment was entered in favor of the petitioner,—that said petitioner have possession of the premises therein described by reason of the nonpayment of the tenant’s rent, and that a warrant issue to remove the said tenant and all persons from the said premises, and to put the petitioner in full possession thereof.”

The court thereupon granted the motion and dismissed the complaint on the ground that this judgment was an adjudication that the relation of landlord and tenant existed between the parties; that there was a valid lease of the premises described in the complaint from the defendant to plaintiff; and that the plaintiff was estopped by such adjudication from questioning the truth of these facts, the existence of the relation, and the execution of a valid lease. To this ruling The plaintiff excepted; and in support of ■such exception, upon this appeal, it is insisted that the learned justice erred.

It is urged that, in order that the judgment of the district court should operate as an estoppel, or have the force accorded that was given to it by the j udge in the court below, two things must concur: First, the judgment must be properly pleaded; and, second, the facts which conclusively establish the jurisdiction of the court must affirmatively appear on the record of the judgment. With respect to the first,—that the judgment was not properly pleaded,—there are two answers,—one, that this objection was not taken upon the trial; and another, that, by the stipulation referred to, it -was impliedly waived. , As to the necessity for stating the facts showing jurisdiction, we think that, taking the certified copy of the judgment and the stipulation, sufficient facts affirmatively appear upon the record. This being the stipulation upon the trial, we think the court correctly held that the plaintiff was estopped by such judgment from questioning the validity of the sublease.

In Brown v. Mayor, etc., 66 N. Y., 385, and in Jarvis v. Driggs, 69 N. Y., 146, the extent to which the questions of res -adjudicata will be applied, showing that it includes summary pro•ceedings, is fully stated; and in the opinion in the latter case, the' court commenting upon Brown v. Mayor, etc., says:

“ This court decided that the question of the existence and validity of the lease between the plaintiff and defendants was conclusively established by the determination of the summary proceedings.”

That the claim of usury sought to be made available in this action was equally available as a defense to the plaintiff in the proceedings in the district court has been expressly held in People ex rel. Ainslee v. Howlett, 76 N. Y., 574. And in Nemetty v. Naylor, 100 N. Y., 568, which was an action brought to recover damages for an alleged breach of a contract to alter over certain premises, and fit them for a school, and to execute to plaintiff a lease thereof for a term of years, and in which a judgment in summary proceedings was pleaded as a bar, Miller, J., in writing the opinion says:

“We think that the adjudication in the summary proceedings was final and conclusive, and is a bar to the plaintiff’s right to recover in this action. The judgment, beyond any question, settled the facts as to the tenancy existing between the plaintiff and the defendants, the nonpayment of rent due and unpaid, and the holding over after default in payment by the plaintiff; and unless there was some invalidity in the proceedings which affected the authority of the court, and rendered its judgment inoperative and void, or a want of jurisdiction over the parties, it is not apparent how the proceedings can be disregarded.”

And that case is further authority for the proposition that an informality does not invalidate the proceedings and judgment, and is no objection to the judgment when collaterally brought in question. It may only be taken advantage of on objection taken in the proceedings. So, here, many of the grounds urged against giving proper force and effect to the judgment, and which might have been available upon a direct appeal therefrom, or upon a motion to vacate the same, cannot be resorted to for the purpose of attacking the validity of such judgment collaterally. Without discussing them all, we think it clearly appears from the record that the court obtained jurisdiction over both the cause and the parties; and when to this is added the" facts appearing in the stipulation—-that it affected the same premises, and was between the same parties as are joined in this suit—we do not think the court would be justified in seizing upon captious objections, which were neither taken in the district court nor upon the trial of this action in the court below, and which, if they had been, might have been obviated, for the purpose of destroying the binding force of the district court judgment.

Upon the whole case, we think that the decision dismissing the complaint was right, and that the judgment entered should be •affirmed, with costs and disbursements.


author: Van Brunt, P. J.

text:
    Peter Hart, Resp’t, v. Isaac L. Kip, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    Limitation—Absence.
    Where a person is absent from the state for more than a year, he is to be considered as residing out of the state within the term as used in the statute of limitation.
    Appeal from a judgment in favor of plaintiff.

      Isaac L. Miller, for app’lt; John B. Farrar, for resp’t.
   Van Brunt, P. J.

An examination of this record leads us to-the -conclusion that it is more remarkable for its omissions than for its contents. This action was brought to recover for services alleged to have been performed by the plaintiff as janitor of premises No. 110 West Fortieth street in the city of New York, upon the employment of the plaintiff, from the 1st day of May, 1879, until the 1st day of March, 1890. The defendant, by his answer, denied upon information and belief any contract of employment. The evidence showed that from the 1st of May, 1879, up to March, 1890, the plaintiff had occupied apartments in the premises No. 110 West Fortieth street without paying any rent therefor, so far as the record shows ; and that he certainly occupied such premises, and acted as janitor thereof, from May, 1879, to the 1st of January, 1880; and that in December, 1879, and January, 1880, the defendant paid him for his services as such-janitor, notwithstanding the fact that he had no knowledge or information sufficient to form a belief that he had ever been employed there as janitor. There is no evidence whatever that after the payments made in January, 1880, the employment of the plaintiff as such janitor was terminated; but the evidence of the plaintiff shows that he continued to occupy the premises which he had occupied when he was janitor, and which were a part of his compensation for his services performed as janitor, up to March, 1890, and that he performed the duties of janitor in such building. The defendant claimed upon the hearing that from the 1st of January, 1880, the plaintiff ceased to act as janitor; but the case is absolutely barren of evidence as to any other person having occupied that position, or.performed the duties thereof, during this period of time, and there is no contradiction whatever of the statement upon the part of the plaintiff that he performed those duties, or caused them to be performed when he was personally unable to do the same. It further appears that the defendant visited the premises upon several occasions during the period in controversy. The plaintiff was there, and there is no pretense that he paid any rent, or that any rent was demanded of him; and all that the defendant states in opposition to the sworn statement of the plaintiff is that from the 1st of January, 1880, Hart rendered no services to his knowledge. It is true that there was some evidence tending to show that in February, 1880, the defendant paid Mrs. Hart some money and also that "in January, 1886, he paid her an additional sum. But the only evidence connecting the plaintiff with the sum paid in 1886 was the fact that his indorsement appears upon the check under that of Mrs. Hart, and we find no evidence in the record showing upon what account these payments were made. There seems to be no reason, therefore, for disturbing the referee’s conclusion that this employment continued, as found by him.

It is urged, however, that the referee did not make the proper application in respect to the statute of limitations. Although a cause of action was proved from the 1st of January, 1880, the referee held as matter of law that the plaintiff could not recover for services rendered prior to August, 1884, the statute of limitations having been pleaded by the defendant. This action was commenced on the 17th of February, 1893; and it is conceded that the defendant departed from this state on the 28th of May, 1890, and remained continuously absent therefrom until the 2,3cl of November, 1892, and the referee found that he resided, during such period, out of the state. But it is urged, because during this period the defendant had a house and office within the city of New York, that therefore this finding cannot be sustained. But we think that the learned counsel for the appellant confuses the terms “domicile’ and “residence.” A person may temporarily reside out of the state while domiciled within the state: and it is clear from the language of the Code, as it now obtains, that where a person is absent from the state for more than a year he is to be considered as “ residing ” out of the state, within the term as used in the statute of limitations. It seems to us that the same interpretation as to “ residence ” in the statute of limitations must be given as obtained in the case of Hanover Nat. Bank v. Stebbins, 69 Hun, 309 ; 53 St. Rep., 350, where such word was interpreted as used in § 636 of the Code to mean the abode or place where one actually lives, and not where he is legally domiciled. The statute of limitations provides that if, after a cause of action has accrued against a person, he departs from and resides out of the state, and remains continuously absent therefrom for one year or more, the time of his absence is not a part of the time limited for the commencement of the action. In the case at bar the defendant departed from the state, lived without the state, and remained continuously absent therefrom for more than a year, and consequently he resided out of the state, within the meaning of the statute. The judgment appealed from should be affirmed, with costs.

All concur.


author: O’Brien, J. Van Brunt, P. J., (concurring.)

text:
    Edward S. Farrow, Resp’t, v. Holland Trust Company et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893,)

    Equity—Fraud.
    In an action alleging conspiracy no relief in equity can tie had where plaintiff took part in all the alleged transactions which were intended to defraud other persons.
    Appeal from an interlocutory judgment in favor of plaintiff.

      George H. Van Hoesen, for app’lts; Nichols & Bacon {Alexander S. Bacon, of counsel), for resp’t.
   O’Brien, J.

Seldom is the court called upon to pass upon a record containing so many and conflicting questions of fact as are here necessary to be resolved in order to determine whai relief, if any, should be accorded to the plaintiff. Such a determination, involving an examination into the transactions of individuals, and their relations to a company projected for the purpose of fostering a large land scheme, renders it impossible to reduce the facts into anything like a brief statement. Starting out with fair prospects of success, the company met with misfortunes until such time as the money of the original projectors was exhausted, when resort was had to divers plans to raise funds, to secure which required the making of notes, the execution of mortgages, and the marketing of the same, in order to keep the enterprise alive ; and all of which, when catastrophe has come, are now the subject of inquiry and question, demanding, that they may be understood, the examination of a most voluminous record. Apart, moreover, from the loss of money involved, much more important is the loss of character, which, if the charges made could be sustained, would result to some of the individuals and corporations who became interested in the enterprise. ■ The importance of the case, therefore, not only in a monetary sense, but from the charges made of fraud, abuse of trust, arid conspiracy, could alone justify a tiresome recital of facts which we are compelled to enter upon.

The record shows that the plaintiff in 1886 was the owner of 4,076 acres of land in Ocean county, IST. J., the title to 2,566 of which had been transferred .in July, 1889, to John B. Larner, a lawyer, of Washington, D. 0. A portion of Larner’s land, containing 311 acres, known as “Barnegat Park,” had been surveyed and laid off in streets by plaintiff under Larner’s employ, and lots sold to various parties, when in August, 1889, the Barnegat Park Company was organized as a corporation under the laws of Hew Jersey, with a capital stock of $300,000. Larner became president, and plaintiff secretary and treasurer. In October, 1889, the portion of Barnegat Park remaining unsold, viz., 303 acres, was conveyed by Larner to the companjr, Larner taking in full payment of the land 2,996 shares of the stock (all of the stock of the company except four shares). By various deeds of conveyance the company also obtained title to about 6,000 acres of land, including that formerly owned by plaintiff, and, in addition, the company holds quitclaim deeds to certain other land which has never been surveyed, but which plaintiff states contains about 8,000 acres, the title to which has never been traced on the public records. Larner wishing to retire from the presidency, Marcus W. Conkling,- the plaintiff’s partner, came in as president, and Larner sold all his stock to plaintiff and Conkling, retaining only a small mortgage interest in the company, under an unrecorded mortgage dated March 14, 1890. Plaintiff was an officer in the United States army. Conkling, as president, and plaintiff, as secretary and treasurer, continued the business of the company, which was selling lots. An hotel called “The Pines ” was built and opened, and efforts were madq to sell lots to officers in the army and navy, the design being to make the park an army and navy resort. They made some sales, but on the installment plan. The purchaser of a lot would make a small payment in cash, and give his notes, maturing at intervals of a mouth or three months. A deed of the property would then be made to the purchaser, containing what in New Jersey is known as the vendor’s lien clause for the unpaid balance of the purchase money. Indorsed on the note was a statement of the amount of the purchase price, the amount of cash paid, and that the remainder was secured by vendor’s lien. This was signed by the maker of the note. The note was then offered for discount, and, if taken, the deed was to be deposted with the note. In the latter part of 1889, Conkling individually and on behalf of the Barnegat Company opened an account with the Holland Trust Company, and in April, 1890, the plaintiff, having prepared °the way in a letter written to Conkling, which was shown to Van Siclen, the secretary of the trust company proposed to open an individual account with the trust company under conditions thus stated in his letter:

“I inclose the $1,125 note, previously referred to, for consideration. It has occurred to me that I might open a personal account with Holland Trust. I could then, from time to time, submit to you items which I personally receive on sales of lots for individuals; not company sales. For instance, I have to-day sold for Capt. Snyder lot No. 9, block 25, and on this sale I have a 4 mos. note, $500. I have this note, subject to a 10 per cent, off the face. On all this paper I can divide the discount, making it 5 per cent, off on such as you can conveniently handle. I have heretofore used this paper in Baltimore. If you think well of this idea, let me know, and I will send you some funds, and open account.”

April 22, 1890, Van Siclen replied:

“Lieut. B. S. Farrow—My dear Sir: In regard to your personal account, we can, from time to time, take some of those notes as indicated by you in yours of 21st. I understand that they will always be notes of officers of army and navy, and the first lien on property .sold, and for not over half the prices actually received from sales. So you can, if you please, open such account.”

April 26, 1890, Van Siclen wrote to plaintiff:

“Yours of 24th received, with three notes inclosed, which I have discounted, and placed $1,145.36 net amount to the credit of your personal account. I will occasionally take notes of civilans, where at least one-half cash has been paid upon the property; but you must always give me lot and block numbers, prices, and correct address of maker."

April 28, 1890, plaintiff replied:

“My dear Mr. Van Siclen : Yours of the 26th at hand this morning. I will, from time to time, send you some items of paper made by civilians for lots bought from me personally. I have a large quantity of this paper wliich will soon be within 4 mos. of maturity. I am not in need of the proceeds of these discounts’ therefore when I send you such items you need not trouble to submit them to the board, unless you think your board at such times would desire them. I will always reinvest the proceeds of such discounts in Park Company paper or in company lots, which I can either hold until maturity or rediscount at a profit, when such paper comes within 4 mos. limit. These lots I can always sell for cash and good notes.”

And on April 30, 1890, plaintiff wrote to Van Siclen:

“ I inclose some notes for personal account. Take any you may desire, and either return me the balance or keep them until such time as you might desire them. * * * The inclosed Stanton notes are 1 civilian ’ notes. Stanton has just purchased the two cottages opposite the hotel, and is to-day moving into same for permanent residence.”

Besides notes given for genuine sales of land, what plaintiff calls “ accommodation notes,” with the accompánying vendor’s lien, w$re prepared, signed by employes of the Barnegat Company, laborers, and others of no responsibility. In July, 1890, one Orson Adams became connected with the company, and August 13th was made president, on the strength of representations that he would bring into the company $50,000; and Conkling became vice-president. Plaintiff claims that he never negotiated any of the so-called accommodation notes himself, but that he prepared the deeds accompanying some of them, and sent them to the New York office, where loans were obtained upon them. As to others, where he did not know the makers, and assumed they might be accommodation makers, he prepared the deeds, but did not deliver ' them; but that on every note of that character made to his knowledge he now holds the deed in trust. As against this he testifies that all such paper made to his knowledge was irltended for Holland Trust Company .only, because that was the only place where such paper was understood to be acceptable, and that for every accommodation note legitimately discounted by Van Siclen or Holland Trust Company he delivered with the note the vendor’s lien deed, but that they got some notes they did not legitimately discount, and for them they have not got the deeds. It would appear that'the difference between legitimately and not legitimately discounting a note lay in the fact whether plaintiff or some other person — as, for instance the president of the company—presented the note. As to particular accommodation notes called to his attention, he says they were prepared with his full knowledge and consent; that the amount was designated by defendant Van Siclen, who received a bonus of fifty dollars each on their discount.’ If plaintiff is to be' believed, Van Siclen was not as particular about the high grade of the notes he or his company discounted as his letters indicate, but he knew that many of the notes received from plaintiff were accommodation notes, the makers of which had merely gone through the form of buying lots, and had paid no money down, and were not expected to pay the notes attheir maturity; a bonus was attached to each note of that kind which Van Siclen was to get, and the more there were of them the better Van Siclen was suited. Though most of the so-called accommodation notes representing fictitious sales of land were marketed subsequent to the connection of Adams with the Barnegat Company in July, 1890, it is a significant fact, as shown by plaintiff’s own evidence, that from the very first some sales, as well as notes which were subsequently discounted through Conlding & Farrow by the trust company were not bona fide. Van Siclen denies that he knew the character of any of the so-called accommodation notes, or that any of the bonuses were for his personal benefit, and says he did not find out till January, 1891, that any of the notes were accommodation notes, when Schramme, a creditor, accused plaintiff in Van Siclen’s presence of having made these sham notes, and that plaintiff then silently admitted their untrue character. Van Siclen then requested a statement from plaintiff of the amounts of such notes as Holland Trust Company held. This the plaintiff promised to furnish, and soon afterwards gave Van Siclen a list in his own handwriting, which has been offered in evidence. Large quantities of such notes were discounted by Ladenburg, Thallman & Co., Southern National Bank, People’s Trust Company, Kaufman Simon and Van Siclen. It is claimed by plaintiff that these notes, or some of them, were stolen from him by Adams, the president of the Barnegat Company, and James A. Simmons, who was a friend of Adams. That this version is not entirely correct, and that plaintiff’s other statement is true, that from the first fictitious notes were used, is evidenced by a note made as far back as March 26, 1890, which states, over plaintiff’s own signature, that a large part of the purchase price on six lots had been paid by the maker, who turned out to be a poor retired army officer, and who, plaintiff testified, “went through the ceremony of buying lots.” In August, 1890, the defendant Schramme, who was then connected with the firm of Ladenburg, Thallman & Co., began discounting notes for the Barnegat Company. The proceeds were handed, over to Simmons, who presented the notes. When the checks came back Schramme found that they went to the Barnegat Company. Those notes were not paid. The plaintiff having told him in January, 1891, that the notes Ladenburg, Thallman & Co. held were good notes, all made by army officers, Schramme endeavored to find the makers by writing to them at the addresses written by plaintiff on the notes, but could find out nothing. Schramme testifies that he told the plaintiff he suspected the notes were bogus, and that the latter, after first reiterating that there was a mistake, and that the notes were all army officers’ notes, and would be made all right, confessed that he had manufactured the notes under orders from Adam and Simmons. The notes discounted by Kauffman Simon for the Barnegat Company were presented, as Simon -testifies, in every instance by Conlding. Simon claims that the company was indebted to him on notes and checks in the sum of $15,000. Plaintiff and Conk-ling admit indebtedness of the company to Simon of $11,000. As a result of the discounting business, Adams failing to contribute any money, and a note of his to the company having gone to protest, the finances of the company got in a very bad way, and sales of property had ceased. It was ■ proposed by Adams, the president, to raise money by bonding the company. Conk-ling testifies that Adams and James A. Simmons, Adams’ friend, proposed a $500,000 trust mortgage, with the Holland Trust Com.pany as trustee, and that they introduced Mr. Edward H. Murphy, a New Jersey lawyer, to draw it up. Van Siclen says, he was first spoken to about the $500,000 mortgage in September, 1890. However, before the trust-mortgage scheme was accomplished, $35,000 was borrowed from the Holland Trust Company, secured by a mortgage dated October 23, 1890, and recorded October 30th, due one day from date. Plaintiff says the two mortgages were talked of rather at the same time, the $35,000' mortgage being represented as a mere temporary expedient until the bonding arrangement could be effected, that being a matter which required a little more preparation, and that he inferred the $35,000 mortgage was not to go on record. Conlding testifies-that the negotiations were conducted entirely by Murphy and plaintiff, but he is positive not only that the $500,000 mortgage was first talked of, but that it was drawn and executed and delivered to Murphy to be recorded before the other, and that when the $35,000 mortgage was recorded he supposed the trust mortgage had already been recorded.

These statements of plaintiff and Conkling are flatly contradicted by the terms of an agreement dated December 18, 1890, to which they were parties, and which bears their signature, which recites that the $35,000 mortgage “ is the first mortgage on the property of the company, and the same is duly recorded ; ” and the first stipulation of said agreement is that the $500,000 trust, mortgage shall be placed of record. The inconsistency between their statements as to the order in which the mortgages were to-be recorded and this evidence furnished by the written agreement is nowhere satisfactorily explained, thus leaving the record in that condition that the conclusion is forced upon us that both Farrow and Conkling knew or were'in a position to have known before they made the statements that their evidence was false. Conlding also testifies that after the bonding plan was agreed upon, Murphy and Simmons suggested that, as it was necessary to raise money immediately, and as the Holland Trust Company was one of the largest creditors of the park company, in order to-protect itself it should be induced or forced to advance $35,000 on mortgage, to pay off the pressing creditors, and avoid disasters ~ that he and plaintiff agreed to it; that Van Siclen refused to advance the $35,000, or to allow his company to do so, but an arrangement was made for the trust company to advance $10,000, which was done, and a chattel mortgage given on the hotel for $10,000 ; that a few days later, not satisfied with $10,000, these-men forced the trust company to make it $35,000, and the mortgage was executed. Van Siclen’s testimony on this subject is that the Holland Trust Company first advanced $10,000, and afterwards the amount Was increased to $35,000, to pay off lienorson the hotel; that the Barnegat Park Company’s note was taken for $35,000, and a mortgage on the real estate furnished for $35,-000 as security for the note, and a chattel mortgage for $10,000 on the furniture also given as joint collateral. In connection with this $35,000 mortgage, a statement of the condition of the company was drawn up, signed by Adams and Colliding, and submitted to the Holland Trust Company. It represented that there-were no mortgages of any description on the property of the Barnegat Company ; that the hotel property cost about $87,000 ; that the total amount of bills against the hotel was about $5,000, and against the furniture about $14,000, “ for which the maker holds the company’s notes, which are paid at maturity whenever due; ” that this statement is made for the purpose of obtaining from the trust company an immediate loan of $10,000. The statement concludes as follows:

“We would add that the hotel property and furniture is insured for $70,000, the policy for which will also be handed over to you, it being resolved by the company to make you its trustee in the matter of a mortgage bond issue of $500,000 to be arranged for. It is further understood that any moneys advanced by you are to be paid, if not sooner, from the first sales of the bonds which are to accompany said mortgage as per previous arrangements.”

From this documentary evidence it would appear that the $500,000 trust mortgage was a transaction arranged subsequent to the, $35,000, contradicting Gonkling’s oral evidence on this point, and confirming defendant’s contention that the $35,000 was understood to be a prior lien, created to meet immediate necessities, and to be paid off out of the proceeds of the first sales of bonds under the $500,000 trust mortgage. The trust mortgage for $500,000 was,drawn, dated November 1, 1890, with the Holland Trust Company as trustee, with the object of issuing bonds thereunder, from the proceeds of sale of which the creditors of the company should be paid, and the company set on a sound footing. Before the trust mortgage was recorded, however, and on December 20, 1890, a directors’ meeting of the Barnegat Park Company was held, at which were present Adams, Farrow and Coniding. By virtue of a resolution passed at said meeting, mortgages were prepared by Murphy, as attorney for the Barnegat Company—one to plaintiff for $32,000; one to Kaufman Simon for $Í5,000; one to New York Improvement Company for $22,000; and a trust, mortgage, with Conkling as trustee, in favor of certain creditors, to wit:

Ladenburg, Thallman & Co..... „................. $21,000
Southern National Bank.......................... 8,000
Holland Trust Compay........................... 40,000
E. S. Farrow.................................... 45,000
Aaron Raymond................................. 6,000
People’s Trust Company.......................... 6,000
R, I. Harrison................................... 4,000
Edward Wetmore................................ 5,000
E. W. Lancaster................................. 1,000
G. W. Van Sielen................................ 5,000
Lord & Taylor................................... 6,000
St. Rep., Yol. LYH. 22

A declaration of no set-off against the Simon mortgage, certifying that it was “a good, valid, and existing lien, and based on a full and proper consideration, and the Barnegat Park Company had no defense thereto, either in law or equity,” was made by Barnegat Park Company, signed by Adams as president and Farrow as treasurer, and Farrow acknowledged his signature thereto, on the witness stand. These five mortgages are all dated December 16, 1890, and were recorded December 20th, at 12 M. The first four mentioned state that they are concurrent liens, and are in all respects to prorate with each other upon the lands of the company, due one day from date. By the terms of .the resolution authorizing their creation the said mortgages were to come equally as to priority immediately after the first mortgage of $35,000 already held by the Holland Trust Company. The $500,000 trust mortgage was recorded at 7.30 p. M., December 20th, 7-J- hours after the five mortgages above-mentioned. The mortgage to the New York Improvement Company was assigned by that company to Murphy, as security for money loaned by him to Simmons. The laborers employed by the improvement company at the park being unpaid, and rioting for their money, the Holland Trust Company advanced $3,500 to pay the laborers on account, and took the mortgage as security for such advance. By agreement made December 18, 1890, between _ the Barnegat Company, Yan Sitien, as trustee, and the mortgagees named in the five mortgages above mentioned, it was agreed, that the Barnegat Company should record the $500,000 trust mortgage; that stock equal to the indebtedness of the company to each of the creditors should be issued to them ; that said five mortgages, after being recorded, should be assigned to said trustee, together with satisfaction pieces executed on the condition that said mortgages should be canceled and satisfied of record on payment to the mortgagees named or assigns, as their interest might appear, and that the stock should be delivered to and held by the trustee until the provisions of this agreement were performed; that the company should deliver to said trustee sufficient stock to enable him to hold a majority of the stock of the company; that the Holland Trust Company should be fiscal agent, and hold all bonds for sale at 80, and get a commission of 5 per cent, on sales of bonds made by it or through its agents. It was further agreed that the proceeds of said bonds should be applied, after providing for the ordinary expenses of the company, to the payment of the company’s mortgage indebtedness. Further, that the trustee should receive as compensation $25,000 in cash, to be retained from proceeds of sales of bonds, and a like amount of bonds independent of any sum paid to the Holland Trust Company for its services connected therewith. This agreement was signed by plaintiff, Yan Siclen, Colliding individually and as trustee,New York Improvement Company,Simon, and the Holland Trust Company. Yan Siclen testifies that it had been his intention to have the $500,000 mortgage made a prior lien to the concurrent mortgages, but that Murphy having, in the interests of his clients, recorded the concurrent mortgages ahead of it, he made other arrangements when he was confronted with this condition; that he learned from Murphy that these five mortgages had been executed ahead of the $500,000 trust mortgage, and when he heard of it he sent for plaintiff, and told him he must secure the Holland Trust Company for the advances made to him and the park company by assigning his mortgage to the Holland Trust Company as collateral, which plaintiff agreed to, and also agreed to assign the Farrow and Conkling mortgage, which he owned, as additional collateral. These assignments, dated December 20, 1890, were put in evidence by plaintiff. They were not acknowledged until February 16, 1891. Plaintiff gives a different version, and says he did not know in what order the mortgages were recorded until some time afterwards, but that his assignment of the mortgages was made about the time of their execution, with satisfaction pieces, in pursuance of the agreement above referred to of December 18th; and that in January, 1891, another assignment was demanded, which was given, and dated back to the original date in December.

On December 30,1890, Adams, by request, resigned as president of the company. The plaintiff at the same time resigned as treasurer, retaining the office of secretary. E. B. Eoosevelt, Jr., succeeded as president, and defendant Schramme as treasurer; and on January 7,1891, Eoosevelt, Jr., Farrow, Conkling, and James L„ Phelps—the latter a clerk in plaintiff’s employ—were elected directors. Simon, in accordance with the agreement of December 18th, executed a satisfaction piece of his mortgage, and delivered it to Van Siclen as trustee, receiving from the trustee a receipt therefor, with the condition inserted in the receipt that if the mortgage was not paid within a reasonable time the satisfaction piece should be returned to him. Simon testifies that when his mortgage was given to him he was told there were three or four other mortgages, and that on his suggestion it was agreed between himself, Conkling, Farrow, Murphy, and Simmons, that 1ns (Simon’s) mortgage should be a second lien and the other concurrent mortgages third,—the $35,000 being a first lien; that then, his mortgage being second, he proposed to the Holland Trust Company either to buy the $35,000 mortgage from them, or that they buy his $15,000 mortgage, and that several weeks after the tender they agreed to take his mortgage, and paid him $15,000 for it. For some reason it was objectionable to plaintiff that Simon should buy the $35,000 mortgage, for on January 1, 1891, he wrote to Van Siclen as follows :

“Look out for Simon. He wants to pay you the$35,000. He now has the money on hand to do it, and he will do his best to get control.”

January 14, 1891, plaintiff wrote to Van Siclen as follows:

“ If Messrs. Eoosevelt and Schramme will contribute $12,500 each at once to the treasury of B. P. Co., give them each $25,-000 of the first mortgage bonds of the company; also $15,000 Simon bonds. A resolution to this effect will at once be passed. As soon as this $25,000 is paid in the B. P. Co., pay off the Simon mortgage, $15,000, pay E. D. Murphy $5,000, and expend the remaining $5,000 for pressing company bills. When the Simon $15,000 is paid off, return to Farrow & Conkling the $11,700 belonging to Farrow & Conkling, now held by Simon as. collateral. Also recover for B. P. Co. $2,600 worth of diamonds likewise held by Mr. Simon as collateral.”

Plaintiff says he was coerced by Van Siclen to write this letter ; that he wrote it Van Siclen’s dictation, in the office of the Holland Trust Company. The $25,000 was advanced by the Holland Trust Company and Ladenburg, Thallman & Co., and the money expended as indicated in the letter. January 7, 1891, the Barnegat Park Company adopted at a directors’ meeting a resolution that, in order to fulfill a former agreement, this company at once pay to Mr. George W. Van Siclen $25,000 in first mortgage bonds of the Barnegat Park Cofnpany and $25,000 in cash ; and as at the present time there is not sufficient cash in the treasury to pay said amount, to give him $50,000 in first mortgage bonds of the Barnegat Park Company as collateral to secure s&id payment, of $25,000 in cash. By agreement, dated January 17, 1891, the agreement of the 18th of December, 1890, wherein Van Siclen, as trustee, was recited as the party of the second part, and certain creditors as party of the third part, was rescinded by the creditors in said agreement named, and January 20, 1891, at a directors’ meeting of the Barnegat Park Company, a resolution offered by Conkling, seconded by the plaintiff, -was unanimously passed that said agreement, so far as Barnegat Park Company was. concerned, was rescinded and annulled, Mr. Van Siclen assented thereto. In and by virtue of the same resolution the Barnegat Park Company was empowered to execute an agreement wherein the company was named as the party of the first part, and Van Siclen and Schramme as the party of the second part, and said agreement was accordingly entered into, by which' it was agreed by said company, in order, if possible, to avoid the necessity for foreclosure of the existing mortgages against the company, that there should be created two descriptions of bonds, to wit, (1) first mortgage bonds to the amount of $800,000, and (2) income bonds to the amount of $200,000 for both of which classes of bonds the Holland Trust Company was to be trustee, said bonds to be sold at a price thereafter to be agreed upon, and five per cent, to be paid or allowed Van Siclen and Schramme therefor; and Van Siclen and Schramme agreed to advance the following sums on the following terms and conditions: (1) $15,000 to procure an assignment of the Simon mortgage, together with all his collat.e2'al thet’efor; (2) $5,000 to be paid to Murphy, and to procure an assignment of his claim therefor, together with all collateral security held by him ; (3) $5,000 to be advanced to the company for the purpose of carrying on its future business, out of which sum $1,000, said to have been heretofore advanced by Van Siclen for account of the company, was to be paid him. It was further agreed that $50,000 of the first mortgage bonds shall be forthwith delive2'ed "by the Holland Trust Company to Van Siclen arid Schramme in compensation for their services in the matter of this agreement; that $5,000 of first mortgage bonds be delivered to Van Siclen in payment of services by him hitherto- rendered to Barnegat Company ; and that $15,000 of said bonds be delivered to the party of the second part to pay for the $5,000 furnished by them under this agreement for carrying on the future business of the company. Further, that Van Siclen be paid $5,000 of the income bonds as a balance of compensation due for services in full to date of this agreement, and that as compensation for the joint benefit of the persons composing the party of the second part they receive $65,000 of said income bonds for all services to be rendered by them in carrying out the objects of this contract.

Although the parties differ as to whether what are described as the concurrent mortgages were to be placed on record prior to the $500,000 mortgage or subsequent thereto, it is evident that, with knowledge of all the facts as to the actual order in which they were recorded, this agreement of January 17, 1891, was entered into. An attempt to carry out its terms was made, and the failure resulting hastened the collapse of the company. Each one was left to protect his particular interests in the best way that he could, and the first step seemingly taken was that of January 23, 1891, in a suit brought by Schramme and Van Siclen to foreclose the $32,000 mortgage, which, according to its terms, had been assigned by plaintiff as collateral security for his indebtedness. Subsequently, creditors meetings were held, a report of the condition of the company presented, and an effort made to induce the creditors and those holding mechanics’ liens on the property to extend the time of payment, and to take notes secured by first mortgage bonds as collateral. This effort was likewise abortive, and again the affairs of the company were thrown into inextricable confusion. The causes of this last failure to effect a settlement with creditors are said to have been, not only the existence of prior purchase-money mortgages amounting to about $6,000, which antedated the first mortgage of $35,000 given to the Holland Trust Company, but the inability of the company to prove title to more than about 13,000 acres of land, and the unwillingness of those holding mechanics’ liens to cancel the same. It is unnecessary forus to determine the cause, the result being that a settlement was not effected; and then followed a series of litigations by the Holland Trust Company and by Van Siclen and Schramme against the Barnegat Company and the plaintiff, as well as this action by the plaintiff, which was brought in July, 1891, directed principally against the Holland Trust Company, Schramme, Murphy and Van Siclen, charging a conspiracy on their part to wreck the Barnegat Company, and defraud it, and to deprive the plaintiff and other creditors of their property by trick and device, by resorting to various means to obtain the property of the Barnegat Company free and clear of all mortgages and judgments. The learned trial judge concluded that these charges were in the main sustained ; that the various transactions in which the defendants took part were in furtherance of a scheme or conspiracy to defraud the plaintiff-and the other creditors of the Barnegat Company; and decided that all the mortgages, stocks, securities, vouchers and papers assigned to any of the defendants should be retransferred to plaintiff, except one mortgage to the Holland Trust Company for $35,000, and the others cancelled as void ; and, fearing that sufficient justice would not thus be done to plaintiff, by a finding which was not, however, included in the judgment, declared that the plaintiff had been damaged by the defendants to the extent of $150,000.

In all this the learned judge seems to have lost sight of the very prominent part which the plaintiff took in every transaction excepting the actual placing by Adams and Simmons of some of the spurious notes with the trust company, proved to have been fraudulent. He it was who cunningly laid the plan by which, working upon the cupidity of Yan Siclen, he induced him to forget the duty which he owed to the trust company, of which he was an officer, and to advance its moneys upon false securities. The result is that the trust company now holds worthless notes to the amount of about $46,000, which it purchased from the park company, some with and some without plaintiff’s indorsement. The makers of such notes were either myths or totally irresponsible persons; and these were secured by pretended vendor’s liens, which were fictitious and sham. In this way, the trust company, by Farrow and those who can be justly regarded as his accomplices, has been swindled out of that amout of money.

In this condition of the record, we are unable to conceive how any relief could be accorded to one standing in the position of this plaintiff, coming, as he has done, into a court of equity, his hands soiled with his fraudulent acts resulting in injury to third parties. It has ever been a salutory principle of courts of equity that suitors must come therein with clean hands, and the application of this principle to the facts here appearing should-have impelled the trial. judge to turn the plaintiff out of court. As shown, from the very formation of the Barnegat Company down to the time that it passed into the receiver’s hands, its affairs were dishonestly conducted by Farrow and Conklin and those whom they associated with theln in the control of the company; and that this is true is shown by the plaintiff’s own answers to the questions put to him with respect to the very beginning of the company’s operations, wherein he admits that the sales and notes given even in those early days were not always bona fide. When it was impossible to sell lots, and there were no notes to dispose of, this in no way prevented those in charge of the affairs of the company from getting clerks and laborers in their employ and men working at the lifesaving stations to sign such notes, which were sold under representations that they were the notes of army officers, given in part payment for lots purchased. These, to the amount of $100,000 at least, were sold, and banks and financial houses as well as the Holland Trust Company were thus victimized. It is true that plaintiff insists that it was Simmons and Adams who put such paper upon the market, and he claims that it was stolen from the office of the Barnegat Park Company; but be does not deny that he knew of the existence of such paper, and no explanation is offered why there should be such paper in existence in the office of the company, whence it conld be stolen and passed off upon innocent purchasers. But, in addition, in this record will be found, a list of the names and makers of some of the bogus notes that the park company used to get money from the trust company furnished by Farrow himself; and so with respect to the mortgages which are now assailed. These were devised and arranged for as another means of raising money when the sale of spurious notes was no longer possible. The participation of Van Siclen, who was an officer of the trust company, did not deprive the latter of the right to attempt to recover by all legal means the moneys out of which it had been unlawfully and wrongfully swindled. And yet it was upon the evidence adduced by the plaintiff, who was a party and privy to the injury inflicted upon the trust company, that a finding was made which, in effect, held the trust company chargeable with fraud, and powerless to hold or enforce the meager securities in its possession other than the $35,000 mortgage.

If, however, we were to assume that the plaintiff ought not to be turned out of court, but had the right to present his grievances and those of the company to a court of equity, there are many other serious objections to the judgment entered. The complaint sets forth two separate and distinct causes of action—one for grievances of the plaintiff individually, and another for injuries inflicted upon the Barnegat Company. The judgment decrees relief upon both causes of action. The cause of action in favor of plaintiff was predicated upon the theory that by false representations he was induced to assign without consideration two mortgages, together with certain certificates of stock of and claims against the Barnegat Company, to certain of the defendants. One of these mortgages, namely, the one for $32,000, which it is stated was assigned as collateral security only, it is alleged in the complaint has been since assigned to another by the plaintiff, subject to the said assignment as collateral. With respect to this mortgage, we fail to see by what right the plaintiff can bring an action and obtain a judgment directing that the same should be reassigned to him. So as to the second cause of action, with respect to injuries inflicted upon the Barnegat Park Company, in the absence of proper allegations excusing the failure of the Barnegat Company to bring a suit on its own behalf, the plaintiff is in no position to sue or obtain a judgment on behalf of such company. The complaint and the proof are entirely barren of any facts showing that the company has been requested to bring such a suit, or that the situation of the company with respect to its control is such that the plaintiff, as a stockholder, is entitled to maintain such an action on its behalf. It will be noticed, moreover, that the plaintiff does not claim to sue on behalf of the company, and yet be is permitted on its behalf to have judgment nullifying and declaring void its corporate acts.

The sweeping character of the judgment is further evidenced when we consider its bearing upon the Simon mortgage for $15,-000, which was transferred^to the Holland Trust Company. The' latter, it is conceded, paid, in the plaintiff’s presence, and at his request, and on the faith of a certificate signed by him that it was •a valid and subsisting security, the full amount therefor; and yet in this action the plaintiff is awarded, on behalf of the corporation, a judgment decreeing that this mortgage is void. We think, too, that whatever reflections may be made upon the defendant Yan Siclen, whose conduct throughout was most reprehensible, this should not unjustly bear upon the trust company, which ought not to be held responsible for all his acts, and thus be deprived of the security it received for money advanced. That in some of his acts he represented and bound the trust company is clear ; but, regard being had to his individual relation to some •of the transactions, we think the court erred in holding that he acted, as an officer and agent of the trust company in all the transactions of which the plaintiff complains.

It will be seen that we are also unable to agree with the judge below in his opinion that the record fails to disclose any action or representation of the plaintiff calling for condemnation by the •court. Far from regarding him blameless, we think his plan for raising the money necessary for “the development of his ideas” by procuring the discount of worthless notes pretended to be given in part payment for lots was a canker which so gnawed the roots •of the enterprise as that disaster was inevitable, and might have been reckoned upon with the inception of such methods. In addition, there are many errors in the findings, some of which only it will be necessary to point out. Although the evidence was uncontradicted, the court refused to find that there were prior mortgages covering parcels of the land, which were created prior to the ownership of the Barnegat Company. And in the finding that the notes on which the Barnegat Park Company obtained money from the trust company are usurious the error is apparent when we recall the rule of law that, no mdtter what the discount, usury cannot grow out of buying paper from a corporation, even where the paper is made for the corporation’s accommodation.

It is unnecessary for us to discuss the numerous findings and conclusions, because we regard one salient feature, which pervades the whole record, and which has already been alluded to, as fatal to the interlocutory judgment. This consists of the effort to try two separate and distinct causes of action, one in favor of plaintiff and one in favor of the Barnegat Park Company, in a suit brought by this plaintiff; and in such an action not only to accord to the plaintiff such relief, ás he might upon the evidence have been entitled to, but also, in effect, to destroy all the corporate acts of the corporation, and adjudicate as to the amounts and priorities of claims against it which by the interlocutory judgment are directed to be tried before a referee. The Barnegat Park Company is a Hew Jersey corporation, now in the hands of a receiver appointed by the court of chancery of that state. It is not claimed that it has any assets in this state, its property consisting exclusively of lands in Hew Jersey. Yet by the judgment, in the absence of the receiver us a party to the action, and at the suit of a plaintiff who has no right to maintain such an action on the company’s behalf, the court assumes such right, without declaring the corporation insolvent, and requires creditors to prove their claims before a referee, under the penalty of having all claims adjudged void that are not so proven. Our conclusion, therefore, is that this judgment should not be permitted to stand, but in all respects should be reversed, and a new trial ordered, with costs to appellants to abide the event.

Follett, J., concurs.

Van Brunt, P. J., (concurring.)

I concur in the conclusion reached by Mr. Justice O’Brien. It is difficult to see upon what basis the learned court below arrived at the judgment which was entered in this action. It appears from the evidence in this action, established beyond contradiction, that very early in the history of this enterprise the plaintiff began the manufacture of fraudulent securities, because, as far back as March, 1890, and shortly before the plaintiff opened his individual account with the defendant, the Holland Trust Company, we find that fictitious notes were issued, stating over the plaintiff’s own signature that a large part of the purchase price of certain lots had been paid by the maker of the note, and who, the plaintiff testified, had simply gone through the ceremony of buying the lots without paying a cent. It further appears that the plaintiff made and negotiated (although he denies the latter fact, yet it is proved beyond peradventure) notes made by the employes and laborers of the Barnegat Company, which notes were represented to be the notes of purchasers of lots who had paid part of the purchase price, and that the company held vendors’ deeds as security for the notes. This is the class of securities which the cupidity of the Holland Trust Company and its secretary induced them to take without making the slightest investigation in regard to their validity; the whole course of business being of a character which savored rather of the methods of reckless speculation than of those which are supposed to belong to a so-called trust company. We find further, upon an examination of this record, that the testimony of the plaintiff, standing by itself, is totally unworthy of credit, because in so many instances is he contradicted by the plaintiff and the Barnegat Company being robbed through a conspiracy, it would seem that the Holland Trust Company and others were swindled to a large extent by means of these fraudulent securities. And when they attempt to recover by some means the money which they had advanced through the fraudulent and false representations of this plaintiff, it is held in this action to have been part of a conspiracy to rob the Barnegat Company, and to deprive the plaintiff and their creditors of their property by trick and device. It cannot be doubted that the Holland Trust Company had the right to attempt to enforce the securities given it for a portion of the money which it advanced, since which money had been advanced in the vain hope of that which had al* ready hazarded in the enterprise. This certainly proved no conspiracy on their part to rob the Barnegat Company. It should rather be charged against the plaintiff and his colaborers who manufactured these fraudulent securities, and induced divers persons to take them. It seems that the fraud initiated by the plaintiff and his associates was the source of all' the unbusinesslike transactions with which this enterprise seems to bristle. The claim upon the part of the plaintiff that the Holland Trust Company was guilty of bad faith in recording the mortgage of $35,000, seems to be entirely refuted by the agreement signed by the plaintiff and Conlcling in respect to the trust mortgage, where it is expressly recited that “ the $35,000 mortgage is the first-mortgage on the property of the company, and the same is duly recorded.” At this time the trust mortgage had not been executed, and yet the recording of this mortgage is one of the frauds of the Holland Trust Company by which it was seeking to rob the Barnegat Company,—recording an instrument given for money which it had advanced, and then endeavoring to collect the money. But it is useless to multiply instances. Whatever fraud the record discloses, it also shows that the plaintiff was a little deeper into it than anybody else connected with this action. For such a person to call upon a court of equity to restrain one of his victims from attempting to retrieve itself is a spectacle which has not been exhibited, to my knowledge, in a court of justice before. It is clear that the plaintiff has no right to the intervention of a court of equity, and the judgment should be reversed, and a, new trial ordered, with costs to appellants to abide event.

Follett, J., concurs.__


author: Parker, J.

text:
    Luigi de Matteis, Resp’t, v. Carlo la Maida, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    Appeal—Submission to juey.
    Where the plaintiff’s evidence, at the close of his case, warrants its submission to the jury, such right is not taken away by the fact that his evidence is contradicted, in substantial respects, by that of the defendant.
    Appeal from a judgment entered on a verdict in favor of the-plaintiff.

      L. L. Van Allen, for app’lt; Herman Frank, for resp’t.
   Parker, J.

The judgment awards to the plaintiff $1,250 damages in an action for malicious prosecution and false imprisonment. The appellant calls our attention to two exceptions only. The first was taken to a refusal of the court to dismiss the complaint after plaintiff had rested, and the second to the court’s denial of defendant’s motion to direct a verdict in his behalf after the case was closed. It is not controverted that plaintiff was arrested about the 16th of September, 1891, under a warrant based on a complaint of the defendant, charging him with having feloniously stolen jewelry to the value of $1,000, and imprisoned for twenty-four hours, after which he was released on giving bail in the sum of $2,500. On the day set for the hearing, defendant substituted for it a charge to the effect that plaintiff had feloniously stolen from the defendant a pair of diamond earrings. An examination upon such charge was had, resulting in the plaintiff’s acquittal. But defendant claimed upon the trial, and now insists, that he was entitled to a dismissal of the complaint at the close of plaintiff’s case, because, as he alleges, the plaintiff had failed to meet the burden resting upon him of showing want of probable cause for the action taken by, and malice on the part of, the defendant. Anderson v. How, 116 N. Y., 336; 26 St. Rep., 787. It then appeared, without contradiction, that for a period of four years prior to the arrest plaintiff had been doing business for and with the defendant on the following basis: In the morning of each day defendant gave to plaintiff a box containing jewelry for sale, the cost price of each article being designated by defendant. Plaintiff could not sell below this cost price, but was to divide with defendant whatever he could realize above it. At the close of each day plaintiff gave to the defendant an account of the proceeds received, and returned such jewelry as. remained unsold. Cash for the goods was obtained in some instances, and in others the sales were on the installment plan. Some days prior to plaintiff’s arrest he informed defendant of his intention to sail for Europe on the 16th of September, with his wife, who was then in ill health, and made application to him for steamer tickets which defendant had for sale. Defendant asked him to wait for another month, and, finding that he would not, kept postponing from day to day a settlement of the accounts between them, but did not in any way intimate that he was dissatisfied with the manner in which plantiffi had conducted the business. He remained the greater part of the day preceding the one upon which he was to sail with the defendant at his place of business, but nothing was said by the defendant suggesting that he regarded himself as having been wronged by the plaintiff; still, just before the hour of sailing arrived, he was arrested on the first charge, which was subsequently withdrawn, and another one substituted in its place, upon which an examination was had. This latter charge was to the effect that he had stolen a pair of diamond earrings of the value of thirty dollars. Of that charge plaintiff was acquitted, and in this action he describes the transaction which was the basis of defendant’s last charge as follows:

“ I told the defendant that Frank Savetto wanted to buy a pair of earrings, and he gave me three pairs to show him. Savetto took them to his wife, who selected one pair, returning to me the other two, which I gave to defendant, telling him that he would pay for them in fifteen days.”

Savetto testified in plaintiff’s behalf that he was acquainted with both plaintiff and defendant, and that he purchased the earrings upon a credit of fifteen days. Had not paid the plaintiff anything for them. It was. defendant’s contention during the criminal prosecution of the plaintiff that he had sold the earrings to Savetto, received payment therefor, and kept the money. Savetto not only disputed such contention, as 'did the plaintiff, but he further testified that the defendant came to his house after plaintiff’s arrest, and at a late hour of the night, and tried to persuade Mm to say that he had paid plaintiff for the jewelry. Uoon this evidence, standing as it did at the close of plaintiff’s case uncontradicted, it is clear that the court could not have held as matter of law that the defendant had such reasonable ground of suspicion, supported by circumstances of such strength, as to warrant, a cautious man in believing that plaintiff was guilty of the offense with which he was charged. It is true that the evidence presented on the part of the defendant contradicted in substantial respects the evidence of the plaintiff and his witnesses, but that, of course, did not operate to take away the right, which we have said plaintiff had established, to go to the jury. It presented the further question for the jury to pass upon whether plaintiff’s testimony was true. If true, the situation was precisely the same as when plaintiff rested. The appellant calls our attention to what he alleges to be an error in the admission of testimony, but, as no exception was taken, we need not consider it.

The judgment should be affirmed, with costs.

All concur.


author: Per Curiam.

text:
    Frederic Williams, App’lt, v. Thomas J. Montgomery et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    COHTBACTS—PEBFETUITIES.
    A contract, which provides that certain shares of stock shall not be sold, but shall be delivered to and held by a third party for a given period, is condemned by the statute against perpetuities, unless the period of suspension is measured by two lives.
    Appeal from a judgment dismissing the complaint.
    The contract sought to be enforced is as follows:
    “ This agreement, made this second day of November, 1892, by and between John B. Powell, Bernard Lande and Thos. J. Montgomery, all of the city of New York, and Fred. Williams, of London, England, witnesseth : For and in consideration of one dollar, paid by each of the parties hereto to each other, the receipt whereof is hereby respectively acknowledged, it is agreed as follows: That of the capital stock of the Hydraulic Brake Company, one million ($1,000,000) dollars shall be put into the treasury of the company for working capital, four hundred and fifty thousand ($450,000) dollars shall be issued to Messrs. Montgomery and Powell as trustees, four hundred thousand ($400,000) dollars to Messrs. Montgomery and Powell as trustees, one million and six thousand two hundred and fifty ($1,006,250) dollars to Thos. J. Montgomery, seven hundred and seventy-five thousand ($775,000) dollars to John B. Powell, seven hundred and seventy-five thousand ($775,000) dollars to Bernard Lande, and five hundred and forty-three thousand seven hundred and fifty ($543,-750) dollars to Fred. Williams. We also agree that the above certificates to Montgomery, Powell, Lande and Williams shall be deposited in the Central Trust Company, with a copy of this agreement, and shall not be withdrawn for the period of six months from this date, without the written consent of each and every party thereto; but with this proviso: That if sufficient treasury stock shall he sold to realize the sum. of thirty thousand ($30,000) dollars in cash, then, and in that event, the stock which has been deposited in the Central Trust Company may be withdrawn by either of the parties, provided said party shall first notify the other parties hereto in writing at least five days before said withdrawal.
    “ In witness whereof, the parties hereto have set their hands and seals the day and year first above written.
    (Signed)" “ Bernard Lande. [l. s.]
    “ Thos. J. Montgomery, [l: s.] “Fred. Williams. [l. s.]
    “ John B. Powell. [l. s.]
    “ In the presence of:
    “ M. J. Glynn, for Lande.
    “ Montgomery & Williams.
    “W. P. Wentworth.”
    “ .Regarding the notification clause of five days in the within agreement, I hereby agree that any notice served upon my attorney, Geo. M. Pinney, Jr., Ho. 96 Broadway, is binding upon me, the same as if served upon myself.
    “Fred. Williams.”

      George M. Pinney, Jr., for app’lt; Stern & Rushmore, for resp’t Lande; Waller, Cook & Wagner (William W. Cook, of counsel), for resp’t Powell.
   Per Curiam.

We are content with the position taken in this case on the appeal from the order denying plaintiff's motion for an injunction pendente lite. Williams v. Montgomery, 68 Hun, 416; 52 St. Rep., 470. Further reflection induces us to emphasize the assertion then made, that if the agreement was intended to restrain the disposition of the stock for a period of six months from its date, it was in violation of the statute relating to accumulations of personal property and expectant estates in such property. The statute reads:

“The absolute ownership of personal property shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance and until the termination of not more than two lives in being at the date of the instrument containing such limitation or condition ; or if the instrument be a will for not more than two lives in being at the death of the testator.” 1 Rev. St., p. 773, § 1.

Justice Allen, speaking for the court in Converse v. Kellogg, 7 Barb., 597, had under consideration the meaning which should be given to the word “ absolute,” which bad prior to that time been introduced into the statute. He said that “ the word 1 absolute ’ was doubtless used as the opposite of ‘ conditional,’ and in the same sense as‘perfect.’ It signifies 1 without any condition or incumbrance.’ ” This construes the statute as if it read : “ The unconditional and unincumbered ownership of personal property shall not be suspended by any limitation or condition whatever.” And clearly a contract which provides that certain shares of stock shall not be sold, but shall be delivered to and held by a third party for a given period, is condemned by that statute, unless the period of suspension is measured by two lives. Yice Chancellor Hoffman, in Butler v. Butler, Hoff. Ch. 347, remarked : “ The rule is inflexibly established that there can be no. limitation of personal estate by which the power of entire alienation shall be suspended for a longer period than the continuance of two lives,”'—an interpretation of the statute which accords with the views of Justice Allen already alluded to, and has been followed in many subsequent cases, including Manice v. Manice, 43 N. Y., 303, and nowhere, so far as we have observed, criticised. It commands the determination that an agreement which prohibits the sale and transfer of personal property for a period.other than provided by the statute is condemned by it, and therefore invalid. Instances in which efforts to outwit the statute have been brought to the attention of the courts have generally arisen under wills, but the statute applies alike to wills and other written instruments. It follows that the authorities, in so far as they discuss what accords with and what violates the provision of statute providing how the term of suspension shall be assured, are alike applicable to both wills' and contracts. A few instances of unsuccessful efforts to avoid the rigor of the' statute may be cited. In Cruikshank v. Home for the Friendless, 113 N. Y., 337; 22 St. Rep., 738; and People v. Simonson, 126 N. Y., 299; 37 St. Rep., 371; the trusts were to continue until the legislature should authorize by appropriate enactment an incorporation such as testator desired should receive the estate; in Garvey v. McDevitt, 72 N. Y., 566, the duration of the trust was sought to be limited to a period of four years immediately after testator’s death; in Killam v. Allen, 52 Barb., 605, until the payment and extinction of certain mortgages; in Moore v. Moore, 47 Barb., 257, until the reformation of a person, not exceeding three years. Other cases might be cited, but need not be, for with one accord they declare the statute violated whenever a suspension of the power of entire alienation of personal property is attempted for any other term or period whatever than that authorized by statnte.

The judgment should be affirmed, with costs.