author: Davis, P.'J.: Beady, J. :

text:
    AMASA CORBIN, Jr., and another, Appellants, v. JOSEPH F. KNAPP and another, Respondents.

      Libel — Supplemental complaint alleging publications unknown to plaintiff when suit was aomm&ncecL- — when allowed.

    This action was brought to recover damages for the publication by defendants, in a paper edited by them, of a libel concerning these plaintiffs. After the commencement of the action, plaintiffs, having learned that the defendants had circulated (prior and in one case subsequent to the commencement of this suit) other newspapers which had copied and published the alleged libel, marking it so as to call attention to it, moved for leave to file a supplemental complaint setting up these facts. Held, that the motion should be granted.
    Appeal from an order made at tbe Special Term, denying a motion for leave to file a supplemental complaint.

      Slcmner & Wood, for the appellants.

      Arnoux, Ritch <& Woodford, for the respondents.
   Davis, P.'J.:

This action was dommenced on the 28th day of September, 1874, and issue was joined on the 20th day of October, 1874. The complaint charged in substance that the defendants, on the 10th day of September, 1874, published in an insurance journal known as the “ Chronicle,” a certain libel of and concerning the plaintiffs which is set forth at length in the complaint. It alleged no other publication or circulation of such libel. After issue joined, and after the lapse of time to amend as of cowrse, the plaintiff moved for leave to file a supplemental complaint alleging that several newspapers therein named had, at dates before the commencement of this action, printed in their columns the said alleged libel (in haec verba), and that the defendants had willfully and maliciously circulated such papers, with the libel conspicuously marked, throughout portions of the country; that such circulation occurred at dates prior to the commencement of the action; but that, as they showed by affidavit, the fact of such circulation had come to their knowledge subsequently to the joining of issue. They averred as to one newspaper (The Brooklyn Daily Eagle), the printing of the libel, and that defendants circulated that paper, marked as above stared, after the commencement of the suit. The motion for leave to file the supplemental complaint was -denied. Section 177 of the Code provides that the plaintiff may be allowed on motion to make a supplemental complaint “ alleging facts- material to the case, occurring after the former complaint, or of which the party was ignorant when hisformer pleading was made? The facts alleged in a supplemental complaint are in all cases to be material to the case that is, to the case made against the defendant in the pending action. (Wattson v. Thibou, 17 Abb., 184; Buchanan v. Comstock, 57 Barb., 582; Slauson v. Englehart, 34 Barb., 198; Dann v. Baker, 12 How., 521.)

One reason for allowing such facts to be alleged under the Code by supplemental complaint, is, that they have occurred after the former complaint; another reason is, that they are facts of which the party was ignorant when his former pleading was made ; but in either case they are to be material to the case. The court below doubtless held that the circulation of the Brooklyn Eagle containing a republication of the libel, made subsequently to the commencement of the suit, gave a new cause of action independent of and not material to the cause of action on which the suit was brought. In strictness this was right, because every republication of the same libel is a new wrong for which a distinct civil and criminal remedy may be had.

There is, however, another view of the point which seems to us may properly be taken. The several publications of the same libel might all have been joined as distinct causes of action in the same suit, and the jury, on proof of such publications, could have rendered a verdict covering them all. It is not for the public interests to multiply prosecutions, either civil or criminal, for such offenses. Their joinder, while it protects the rights of all the parties, enables the State to administer justice with expedition and economy, and ought, therefore, to be sanctioned by the court. The case to which the matter sought to be brought in, is required to be material,” is the question whether the publication was libellous of and injurious, to the plaintiffs, and the republication in various forms by the defendants of the same libel, may well be deemed, if the plaintiffs so elect, mere aggravations of the injury of which they originally complained. I do not see any legal objection to allowing the supplemental complaint so far as it related to tbe publication in tbe Brooklyn Eagle.

Tbe other publications made prior to the commencement of the suit, it is true, may be brought in by amendment of the complaint, and that, perhaps, would have been the better course. The plaintiffs swear, however, that they were not known to them at the commencement of the suit, but have come to their knowledge since that time. They may well be regarded as material to the case, because the reiteration of the same libel or slander on various occasions, is competent proof of malice, and goes to the question of damages. "What is here sought to be brought in, is not the act of printing in the other papers named, the libel charged in the complaint, as first published in the insurance journal, but its circulation by the defendants themselves after it had been copied from their own journal into the several papers named. That fact, I think, may very properly be deemed, within the rule of the Code, material to the case; and as it did not become known "till after the suit was commenced and the time for amendment as of course had passed, there does not seem to be any substantial objection to bringing it in in the manner proposed.

I think the order below should be reversed, with ten dollars costs, besides disbursements, and the plaintiff should have leave to file his supplemental complaint on paying costs of opposing motion below.

"Daniels, J"., concurred.

Beady, J. :

I dissent. I think the mode is by amendment."

Order reversed, with ten dollars costs.


source: Caselaw Access Project

author: Davis, P. J.:

license: Public Domain

text:
    THE PEOPLE ex rel. THE PACIFIC MAIL STEAMSHIP COMPANY v. THE COMMISSIONERS OF TAXES, etc.

      Foreign corporations — assessment of property of— capital stock — legal situs of.

    The stock of foreign corporations, owned by individuals or corporations in this State, is not taxable here.
    The legal situs of the capital stock of a corporation is in the State by which it was created, and does not depend upon the nature or locality of the investments in which the capital of the company may chance to be made.
    CERTIORARI to revise the assessment of the capital stock of the relator.
    The relator claims that the assessment should be reduced by-deducting therefrom the value of certain shares of stock of the California Dry Dock Company, and also of certain steamships which, although registered at the port of New York, were permanently located on the Pacific coast.

      Morris dt Billings, for the relators.

      James O. Garter, for the respondents.
   Davis, P. J.:

In accordance with the principle of assessment adopted by the commissioners, the value of the California Dry Dock Company stock ($104,250) should also have been deducted. This court has lately held, in The People ex rel. Trowbridge v. The Commissioners (11 S. C. [4 Hun], 595), that the stock of foreign corporations owned by i/ndividuals in this State, is not taxable here ; and the Court of Appeals have affirmed that decision. Treating the relators as entitled to'the benefit of that rule requires the deduction of the value of such stock. All the other questions we think were disposed of in the case of these relators against the commissioners, in this court and in the Court of Appeals. (8 S. C. [1 Hun], 143 ; S. C., Court of Appeals., Op. by JohNSON, J.)

When we consider that the relators are a corporation of this State, and that by the laws of this State such corporations are taxable upon tbe actual value-of their capital stock, which capital stock has no legal situs outside of the State where the corporation is created, and that this situs does not depend upon the nature or locality of the investments in which the capital of the company may chance to be made, it is quite apparent that the relators have been favorably dealt with by the commissioners.

The assessment should be corrected in the particular above mentioned, and affirmed as to the residue, without costs.

Daniels and Beady, JJ., concurred.

Assessment modified by deducting the value of the stock of the California Dry Dock Company, and as modified affirmed.


text:
    In the Matter of the Petition of the NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent, v. THE METROPOLITAN GAS-LIGHT COMPANY, Appellant.

      Eminent domain — Depots-—for what purpose lands may he taken by raU/road company— when lands of corpwation may be taken —Public corporation.

    In the city of New York, depots for freight, cattle and live stock are within the purposes for which railroads are constructed; and the lands necessary therefor may he taken hy proceedings in vmitwm.

    A railroad company may acquire land under the statute for the purpose of approaching structures erected hy it for purposes for which the necessary land might have been taken in imiium.

      Qumre,' whether land might not also he so acquired to approach structures erected on land purchased by it, although they are of such a character that- the company could not have taken the land necessary therefor hy compulsory proceedings.
    To authorize a railroad company to take lands, a reasonable necessity therefor must he shown. It is not, however, a question of possibility, hut of strict practicability. A reasonable discretion must be allowed to the officers who locate the tracks.
    All lands within this State are subject to the right of eminent domain, and no exemption therefrom grows out of the fact that they are owned by a corporation.
    The Metropolitan Gas-light Company in New York is not a public corporation, within the sense of that term when applied to that class of corporations which is clothed with power to exercise the right of eminent domain.

      Appeal from an order of tbe Special Term appointing commissioners to appraise certain lands belonging’ to tbe appellant, sought to be taken for the purpose of enabling the respondent to lay its tracks over them, so as to approach, its new stock yard in the city of New York.

      E. L. Fcmoher, for the appellant.
    The premises in question, which the railroad company seeks to acquire, are “ not necessary for the purposes of its incorporation,” nor are they “ necessary to the operation of such railroad.” (Chap. 237, Laws of 1869.) . The purpose is to aid the cattle yards, abattoir and elevators, whereas lands cannot be taken for a subsidiary or extraordinary purpose. (W. Y and H. R■ R. Go. v. Kip, 46 N. Y., 552 ; Rens. and /Sar. R. R. v. Davis, 43 id,, 146; K. Y. and Ganada R. R. v. Guni-son, 1 Hun, 496.) The franchise of the gas company cannot be interfered with by a railroad company under the authority of the general law, which authorizes the acquisition of real estate only; it does not authorize the invasion of a franchise. (Rens. and /Sar. R. R. Go. v. Davis, 43 N. Y., 146; Boston and Lowell RaiVmay v. Salem, cmd L. R. R2 Gray, 1; 2 Redfield’s Am. R. Oases, 579, 586.) The statutes claimed to authorize the proceeding to take the land applied for, are to be strictly construed against the railroad company, and are not to be extended by implication or construction so as to affect a franchise. (Rens. and Sar. R. R. Go. v. Da/ois, 43 N. Y., 137; Webb v. Manchester and Leeds Railway Go., 1 Eng. Railway Cas., 439 ; Matter of Utica, etc., R. R. Go., 56 Barb., 456 ; Sharp v. Johnson, 4- Hill, 92-99 ; Sharp v. Spier, 4 id., 76; Sprague v. Bvrdsall, 2 Cow., 419.) A power delegated by ■ the legislature to a corporation to take private property for public use, must be strictly pursued. (Vanwiclcle v. Gam. and Am. R. Go., 2 Green [14 N. «T. L.], 162; State v. Jersey City, 1 Dutch. T25 N. J. L.], 309; Adams v. Saratoga R. R. Go., 10 N. Y. [6 Seld.], 328; Yanhorne v. Dorrance, 2 Dali., 304; Bradley v. N. Y. and N. H. R. R. Go., 21 Conn., 291; Morehead v. Little Miami R. R. Go., 71 Ohio, 340, 350.) • There must be a clear case of public necessity shown before the railroad can invoke the right of eminent domain. (State v. Gomms. of Mansfield, 23 N. J. L. [3 Zab.], 510; The Mayor of Alleghany v. Ohio and Penn. R. R.

      Go., 26 Penn., 360, 361 ; 8. W. Railway Go. v. Board of Health, 4 Ellis & Blackb., 189; B&rmettv. Boyle, 40 Barb., 551; Varióle, v. Smith, 5 Paige, 137, 159; S. C., 9 id., 557, 559; Beekman v. Saratoga, etc., R. R. Go., 3 id., 45, 73; Bloodgood v. Mohawk and Hudson R. R. Go., 18 Wend., 9; Matter of Albany St., 11 Wend., 149; Matter of John and Oherry Sts., 19 id., 659; Embury v. Gonner, 3 N. Y. [3 Comst.], 511; Nesbitt v. Trumbo, 39 Ill., 110; Clack v. White, 2 Swan [Tenn.], 540; Hoye v. Swan, 5 Md., 237; 43 N. Y., 144.)

      Henry H. Anderson, for the respondent.
    The uses for which lands are sought by the petitioners, are within the legitimate purposes of their incorporation, and the premises in question are necessary to the furtherance of those purposes. (Matter of the Petition of N. Y. and H. R. R. Go. v. Kip, 46 N. Y., 546; Matter of Boston cmd Albany R. R. Co., 53 id., 574.) Reasonable necessity being shown for the acquisition of the property by the petitioners for the legitimate purposes of their incorporation, it was not for the court to inquire as to the extent of their wants, or to determine the location or fix the limits of the lands to be taken. (Matter of Boston and Albcuny R. R. Go., 53 N. Y., 574; Matter of N. Y. and H. R. R. Go. v. Kip, 46 N. Y., 546; Stockton and JDarlvng-ton R. R. Go. y. Brown, 6 Jur. [N. S.], 1168; Land v. Midlcmd R. R., 34 L. J. [Ch.], 276.)
   Davis, P. J.:

The objection that no attempt was made by the respondents to agree with the appellants for the particular parcel of land described in the petition, does not seem to be well founded. The application in the outset was for a larger portion of the same premises. The appellants refused on such application to negotiate for the sale. Subsequently, as appears by exhibit “F,” vice-president Yandei’-bilt, acting as a committee on the part of respondents, renewed the application, as it seems fair to infer, for the particular piece shown on map, exhibit “ H” (which is the parcel described in the petition), and in response received the letter marked exhibit “ F,v in which the president of the appellants says that he took occasion to submit to his board of directors, at their last stated meeting, “ the small map you were pleased to leave with me, with the explanations you desired me to make to it, as to a purchase of part of our Sixty-fifth and Sixty-sixth street, North river property, adjoining to the property west of your railroad;” and after speaking of other matters connected with the lands, he adds : “As to the piece you desired to purchase, our committee decided that selling any portion would be detrimental to our property, even fatal to our own wants of supplying the district we occupy, at all times, sufficiently with gas.”

Afterwards, Mr. Yanderbilt wrote another letter to the president of the appellants, asking him, whether his company declined to sell to the respondents, “ any part of the block between Sixty-fifth and Sixty-sixth streets, and Twelfth and Eleventh avenues,” and saying that he asked this, “ as, on reviewing your last letter, I am uncertain whether the meaning that you so decline is intended.” This is supplemented by the testimony of Mr. Yanderbilt, that the president of appellants said distinctly that they did decline selling us any portion of that property.” In the absence of any averment in the answer to the petition, that the appellants are, and have been ready and willing to negotiate for the sale of the particular piece described in the petition, we think the objection that no proper attempt has been made to agree upon the purchase cannot be sustained. As we understand the facts, the premises of the appellants are already intersected and crossed by the present tracks (some jvoe in number, as shown in exhibit K), of the respondents’ railroad, and that the piece of land now sought to be obtained adjoins those tracks on the river side, and are desired for the purpose of laying diverging tracks to enable the respondents to approch their new stock yards on the westerly side, and to reach with facility their extensive river front below and adjoining Sixty-fifth street, and the various extensive improvements contemplated to be constructed on their own lands.

It hardly needs an argument to establish that, in the city of New York, depots for freight, and for the vast numbers of cattle and other live stock that are constantly being transported to the city, are as much within the purposes for which railroads are constructed, and as necessary to their operation,” as depots for the accomodation of passenger traffic. The argument, indeed, is more, strongly in favor of the former: for, while a railroad company might, with safety to itself, leave its passengers upon a public street to take care of themselves upon their individual responsibility, it could not do so with respect to the animals it transported, but must securely keep them from injuring and annoying the public, until proper delivery to owners or consignees. For the purpose oí performing their duty, in this respect with greater facility and safety to the public, and convenience to themselves, the respondents have obtained title to the large tract of land between Fifty-ninth and Sixty-fifth streets by purchase, and without resorting to the exercise of the right of eminent domain. Upon a large portion of this land they have erected extensive cattle depots and yards,' and the buildings necessarily connected with such structures, and it is said their design is also to build an elevator, of sufficient dimensions to receive 1,500,000 bushels of grain, and an abattoir sufficient to meet the requirements of the city, in which business is to be carried on by other companies or persons, to whom such establishments are to be leased. If all this be so, the authority of the respondent to acquire by voluntary purchase land for these purposes, is within the power granted by the act, as was held by the Court of Appeals in Rens, and Saratoga R. R. Co. v. Davis (43 N. Y., 137), and the respondents are not seeking to obtain title by these proceedings to any lands fo r such purposes. They do not propose to erect an elevator or an abattoir on the appellants’ land, but to use it for laying tracks, upon which their ears will run for the purposes of approach to their cattle depots and yards, and to the other structures mentioned; and the use for the public purpose of approaching structures for which lands might have been taken m invitum, is none the less so because their cars will at the same time approach structures not within the application of the law of eminent domain. A railroad corporation cannot take land under the right of eminent domain for the purpose of founding a town or city on the plea that when founded it will furnish business to the road of the company. But it is quite another question if the company be the lawful owner of lands on which it has founded and erected a city, whether it may not lawfully acquire, under eminent domain, the lands necessary to connect its tracks, being within its lawful route, with that city. A fortiori would the same reasoning apply where the track to be laid was primarily to erections within the rule of necessity, and only incidentally to those which fall within the class of business conveniences. We are therefore of opinion that the appellants are not protected by the rule that lands cannot be taken for subsidiary and extraordinary purposes,” but that this case is clearly covered-by the ruling of the Court of Appeals in the Matter of the Petition of the New York and Harlem, R. R. Co., v. Kip (46 N. Y., 546).

Upon the point, that the lands proposed to be taken are not necessary, because it might be practicable for the respondents to lay their tracks upon their own lands by adopting another curve, we are not prepared to concur with the appellants’ counsel. It is not a question of possibilities nor of strict practicabilities within the opinion of engineers. No route was ever surveyed for a railroad which was not open to such objections, and if the right to take lands was to be determined by conflicting evidence, whether, after all, the tracks might not, with greater or equal convenience, be laid elsewhere, the construction of a road would be attended with the most serious embarrassments. Reasonable necessity must be shown, but a reasonable discretion must be allowed to the officers who locate the tracks of a railroad, for it cannot be presumed that the corporation is unnecessarily incurring heavy expenses in obtaining lands, when those it already has would answer its purposes. We think enough was shown to bring this case within the rule of the authorities in respect to this question. (Matter of N. Y. and Harlem R. R. v. Kip, 43 N. Y., 546; Matter of Boston and Albany R. R., 53 id., 574.)

It is not sought to interfere with “ the franchise of the gas company.” That will remain intact, although some portion of the property on which it is exercised be taken for a public use. It may be quite sound to say, that the right of eminent domain does not attach to corporate franchises, and yet be quite unsound to insist that lands held by a corporation are exempt from its exercise. The doctrine insisted upon would create a distinction between the real estate of artificial and natural persons, to the great prejudice of the ptrblic. Such distinction does not, and ought not to exist. All lands in the State are subject to its right of eminent domain, whenever the exigency for its exercise arises, and no exemption grows out of the mere fact of the ownership and rise of property by a corporate body. A banking-house, however valuable and useful, must give way before that power, whenever it stands as a barrier in the path of some necessary public avenue. It is another question how far lands, already devoted to public uses and held for that purpose, can be taken under the right of eminent domain for another public use. Even upon that question I am not prepared to say that a use of inferior necessity must not yield to one of clearly superior necessity; as, for instance, a horse railway to the imperious necessity of rapid transit, or a chartered coach line or turnpike to the necessities of a railroad. It was held, in White River Turnpike Co. v. Vermont Central R. R. (21 Vt., 590), that there is no implied contract by the State, in a charter of a turnpi ke or other private corporation, that their property, or even their franchise itself, shall be exempt from the common liability of the property of individuals to be taken for public use. (Matter of Kerr, 42 Barb., 119.)

But 1 do not think there is any occasion to decide that question in this case. The appellants, by their charter, are not clothed with power to exercise the right of eminent domain. They do not hold the lands in questiou under the exercise of any such power, but as a mere private manufacturing corporation. They are claimed to be quasi public, because they furnish light to a portion of the public streets, but they would be none the less so if the contract under which they light the streets was taken from them and given to another. Their public character springs out of the nature of the article they manufacture, and the manner in which they deliver it to their customers, through mains and pipes in the public streets, and the legal obligation they are under to furnish to all who desire and who pay for it along the street where their mains are laid. These facts in themselves do not make the defendants a public corporation, within the sense of that term when ’applied to that class of corporations which is clothed by constitutional legislation with powTer to exercise the right of eminent domain. I think, therefore, they have no more right to claim that they are shielded from the exercise of that right, from the nature of the article manufactured by them, and the convenience or necessity of its use by the public generally, than any other private corporation, created to make and vend to the public any other articles of prime necessity: a corporation to manufacture cheap bread, for instance, or an ice company in midsummer. The fact that the public have an interest in the works or the property, or the object of a corporation, .does not make it a public corporation.” (Ten Eyck v. Delaware and Raritan R. R. Co., 3 Harr. [18 N. J. L.], 200; Firsman v. The Belvidere and Delaware R. R. Co., 2 Dutch. [26 N. J. L.], 148.)

The courts will act circumspectly and only on strong necessity, in allowing property devoted to uses of great public benefit to be taken ; but where such necessity is shown to exist, the power to act seems entirely clear. In this case the property sought to be taken is not, and has never been, in actual use for the purposes of the gas company. Doubtless, the use of their lands in the future, when the appellants come to need them, as they anticipate, will be more convenient without the additional tracks of the railroad than with them; but the railroad now crosses their land with several tracks, and the addition of two or three more, on land adjoining the present tracks, does not strike us as necessarily destructive of the uses to which the appellants wish to put their lands. The injury cannot be, as it seems to us, so greatly enhanced beyond what is already done, that their remaining land becomes useless to them. It is to be presumed that they will be protected to the extent that the act provides for, in their facilities of crossing and enjoying access to and from the divided parcel of their land, by the commissioners, or by the court on tire coming in of their report, and this, we think, is all, under the circumstances, they are entitled to claim.

The order appealed from should be affirmed, with ten dollars costs, besides disbursements.

Daotels, J., concurred.

Order affirmed, with ten dollars costs besides disbursements.


author: Beady, J.: Davis, P. J.

text:
    BANK OF CALIFORNIA, Respondent, v. WALTER K. COLLINS, Executor, etc., of GEORGE C. COLLINS, Appellant, and others.

      Action against trustees for failure to file report does not survive — Tort.

    The action given by the statute (3 Edm., 735, § 12; against the trustees of a corporation for a failure to file the report required thereby, is penal in its character, and does not survive against the executor of a deceased trustee. • (Davis, P. J., dissenting.)
    Appeal from an order reviving and severing this action as to the executor of G. G. Oollins, deceased.

      Winchester■ Britton, for the appellant.
    This action would not survive at common law. It is for a penalty. (Dabney v. Stevens, 10 Abb. [N. S.], 69 ; Squires v. Brown, 22 How. Pr., 35; Vineent v. Sands, 33 Supr. Ct., 516; Merchants' Banh v. Bliss, 35 N. Y., 416; 13 Abb., 238 ; Deming v. Puleston, 33 Supr. Ct., 238 ; Bough-ton v. Otis, 29 Barb., 197; 21 N. Y., 464; Andrews v. Mivrray, 33 Barb., 356; Bird v. Hayden, 1 Robt., 386; McHarg v. Eastman, 7 id., 137.) At common law the test as to whether an action abated by the death of the defendant was whether the cause of action was ex delicto. The axiom was “ actio personalis moritur mm persona." (Hambly v. Trott, Oowp., 371/ 375; 2 Wms. on Exrs., 1470; People v. Gibbs, 9 Wend., 29.) An action for a penalty is ex delicto and therefore would not survive at common law. (2 Saund. on Plead, and Ev., p. 5 * p. 506; 2 Wms. on Exrs., 1471.) Nor will such an action survive under the Revised Statutes. (De Witt v. Buchanan, 54 Barb., 32; Zabrishie v. Smith, 13 N. Y., 322; see, also, comments on this case, 58 Barb., 384.)

      Thomas L. Snead, for the respondent.
    It is settled law in this State that all. causes of action survive, saving those which are excepted in the second section of the statute. (2 Edm., 467.) In other words, the exceptions in the second section manifest the intention of the legislature that all other actions founded upon tort should survive. (Haight v. Hayt, 19 N. Y., 464, 468, 474; Bixby v.
      Wood, 21 id., 607, 612; Shelclon v. Wood, 2 Bosw., 269, 278; Johnston v.,Bennett, .5 Abb. [N. S.], 331; Gray v. Speer, 58 Barb., 319, 385; Heindmuller v. Gray, 13 Abb. [N. S.], 301, 302.)
   Beady, J.:

This action was commenced by a creditor of the La Abra Silver Mining Company, a corporation created under the laws of this .State, against trustees who failed to publish an annual report as required by law. During. its pendency one of - the defendants, George C. Collins, died, and on motion for that purpose an order was made at Special Term reviving the action and severing it so that it might proceed against his executor. The executor appeals. The action is for a penalty. The provisions of the statute by which it is authorized appear to be severely punitive, imposed on grounds of public policy for the protection of creditors and the prevention of frauds upon the public in respect to the financial condition of such corporations. (Per Leonard, J., in Merchants’ Bank v. Bliss, 35 N. Y., 416.) It was also said in that case that it was not necessary that the creditor should have sustained any injury or damage by reason of a violation of the statute. It was sufficient that the party prosecuting the action had a claim when the violation of the law toot place. The action is therefore penal in character. (Dabney v. Stevens, 10 Abb. [N. S.], 39; Squires v. Brown, 22 How. Pr., 35; Vincent v. Sands, 33 Supr. Ct., 516; Boughton v. Otis, 29 Barb., 196; Estes v. Burns, 37 Supr. Ct., 1; Merchants’ Bank v. Bliss, supra; McHarg v. Eastman, 7 Robt., 137.) The personal liability is imposed by way of punishment for the transgression of omitting to make the report. (Per Johnson, J., Briggs v. Easterly, 62 Barb., 61.) Actions ex delicto did not survive at common law. (Hambly v. Trott, Cowp., 375.) The right in such cases is based on an injury ex maleficio from which the testator derived no advantage to himself, and this is the principle on which his personal representatives are held not answerable. (Lord MaNSEield, J.; see, also, Whitacres v. Onsley et al., Dyer, 332, a.; Martin v. Bradley, 1 Caines, 123; Franklin v. Low & Swartwout, 1 Johns., 396.) A penal action cannot be supported against an executor for a penalty forfeited by the testator under a penal statute. (1 Chitty’s PL [6th Am. ed.], 103; Com. Dig., Admin., B, 15.) And whether this action be regarded as one arising ex deUeto (see Andrews v. Murray, 33 Barb., 354), or one dependent upon a penal statute, it does not survive at common law and cannot be maintained against the executor of Gr. C. Collins, deceased. It is supposed;, however, that the provisions of the Revised Statutes, which are as follows, make a change in the rules of the common law and give a right of action against the personal representative of the deceased wrong-doer:

Section 1. For wrongs done to the property, rights or interests of another, for which an action might be maintained against the wrong-doer, such action may be brought by the person injured, or after his death, by his executors or administrators, against such wrong-doer, and after his death against his executors or administrators, in the same manner and with like effect in all respects, as actions founded upon contracts.

Section 2. But the preceding sections shall not extend to actions for slander, for libel, or to actions of assault and battery, or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff, or to the person of the testator or intestate of any executor or administrator. (2 Stat. at Large [Edms.], 467.)

These provisions have been interpreted by a number of decisions, and it has been declared that the language contained in the second section makes the intention of the legislature manifest that all actions other than those designated in it shall survive. (Haight v. Hayt, 19 N. Y., 464, 468, 474; Byxbie v. Wood, 24 id., 607, 612; Sheldon v. Wood, 2 Bosw., 269, 278 ; Johnston v. Bennett, 5 Abb. [N. S.], 331.) But this construction relates to the class of wrongs done which are embraced within the terms of the first section; that is,' wrongs done to the property, rights or interests of another. This action is not to redress a wrong either to the property, rights or interests of the plaintiff. It is not necessary for its maintenance, as we have seen, that the creditor should have sustained any injury or damage by violation of the law out of which it springs. It has no relation to the actual loss or injury sustained by the party in whose favor the action is brought (Merchants' Bank v. Bliss, supra), but depends entirely upon the omission to file an annual report in accordance with the requisitions of the statutes relating thereto. The omission had no relation to any right, property or interest of the plaintiff. It did not affect his rights, property or interests, which were all in existence when the omission occurred. It simply created for him another mode of enforcing’ his claim, another liability to which he could resort in case the original debtor failed to pay his claim. It was not a wrong done to his property, or rights or interests, as contradistinguished from those of any other citizen, whether such citizen had or had not a claim against the company. It was, in all its elements, only an act invoking a penalty for the violation of a duty to the public, and not to any private person ; a duty imposed solely and exclusively by statute for the genei’al welfare of the people of the State. The statute, therefore, providing for actions' which should survive, does not, either in its terms or spirit, embrace the plaintiff’s demand, and’if that be so, the action ceases, and the order appealed from was erroneously made, and should be reversed.

Davis, P. J.

(dissenting):

I am not able to concur with the view expressed by my brethren in this case. In my opinion the case is embraced in the language of the statute, which declares, with clearness and precision, what actions shall survive against personal representatives of deceased parties. (2 Stat. at Large [Edm. ed.], 46/T.)

The first section declares that for wrongs done to the property, rights or interest of another, for which an action may be brought against the wrong-doer, such action may be brought by the person injured, or after death, by his executors or administrators, against such wrong-doer, and after his death, against his executors or administrators, in the same manner and with like effect, in all respects, as actions founded upon contract. The language of this section seems to me, in itself, sufficiently perspicuous to make the intention of the legislature manifest, that all actions brought for wrongs done to the property, rights or interests of another, shall survive .against the personal representatives of the wrong-doer. The words of the statute: “ for wrongs done to the property, rights or interests of another, for which an action may be brought against the wi-ong-doer,” are extremely broad and comprehensive, and would embrace all classes of wrongs but for the exceptions of section 2. But when this section is read in connection with section 2 of the same statute, the meaning is made so clear by the exceptions in the second section, that all doubt seems to me to be removed. The second section reads as follows: But the preceding sections shall not extend to actions for slander, for libel, or to actions of assault and battery, or false imprisonment, nor to actions on the case for injuries done to the person of the plaintiff, or the person of the testator or intestate of any executor or administrator. By thus specifying the exceptions in the second section, the legislature have given great force to the language of the first. JExpressio unius est exelusio alterius is the maxim to be applied. The plaintiff sues as a creditor of the bank. The action is given, it is true, by statute, and in a certain sense is a penal one. Nevertheless, the legislature have provided, by the statute giving this right of action, a remedy based, I think, upon the conception that the omission to make and file the return is a wrong done to the rights and interests of creditors. It is a wrong to the creditors of the corporation to be deprived of the means which the legislature requires to be publicly furnished, of information as to the affairs of the company. The object in requiring this return was to enable creditors, by reference to public documents, more easily to take care of and provide for their own rights and interests; and the personal liability imposed by the act on trustees for neglecting to make and file such return, is upon the supposition, which the statute makes conclusive, that the creditors are, or may be, injured by such neglect of duty.

The official negligence restores the personal liability of the negligent officer as to debts for which he would have been personally liable but for the provisions of the charter wholly or partially excusing him. The recovery and collection of a debt in an action against a trustee, undoubtedly, so far as the creditor is concerned, extinguishes it against the corporation. It is not necessary to determine whether the defaulting trustee who is thus compelled to pay the debt owing by the corporation in such action, has any remedy or redress against the corporation or his fellow corporators. It is enough in this case to be able to say that a remedy for the collection of an existing indebtedness is conferred upon the creditors, against officers of the corporation whose negligence is conclusively supposed by the law, to be a cause of injury to the rights and interests of the creditors of the company; and it is upon this idea that this personal right of action is given to the creditors.

In my judgment the decision of the court below holding that the right of action survived was correct and should be affirmed.

DaNxbls, J., concurred in opinion of Beady, J.

Order reversed, with costs.


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    THE EAST NEW YORK AND JAMAICA RAILROAD COMPANY, Respondent, v. JAMES H. ELMORE, Appellant.

      Treasurer of corporation — credits himself with corporate funds — when demand before suit not necesswy— Officer's of corporation — selling individual stoeh to corporation to supply subscriber’s — when illegal.

    When the treasurer of a corporation receives money belonging to the corporation, and asserts rights thereto inconsistent with the right of the corporation to demand the same, and makes charges in the corporate books in extinguishment of his obligation to pay over the money to the corporation, a demand is not necessary before suit brought by the corporation to recover the money.
    The plaintiff having issued all the stock it was authorized to, still had subscribers for seventy-two shares who had agreed to pay therefor at par; the defendant and the president of the company purchased a large portion of the stock, so issued, at fifty-five cents on the dollar, transferred seventy-two shares thereof to the subscribers, charging the company on the corporate books with the par value of such seventy-two shares. In an action against the treasurer by the corporation, he claimed such credit in his account with the company. EMd, that only a clear case of necessity and consent would warrant a court in upholding such a transaction, both of which were wanting in this case. The defendant could not, by charging over the stock at its par value, make -the corporation his debtor, and thus extinguish his liability for moneys received by him as its treasurer.
    Appeal from a judgment entered on a verdict directed by the court.
    The action was brought to recover $1,108.08, alleged to have been collected and received by the defendant as treasurer of the plaintiff (the defendant having since ceased to be such treasurer), with interest from April 1, 1867.
    The answer put in issue various allegations of the complaint, and then, by way of counter-claim, alleged that plaintiff was indebted to the defendant for money, lent, advanced and paid out, and for money bad and received by the plaintiff to the use of the defendant, and various other matters. The plaintiff replied denying the alleged counter-claim.
    On the trial the following facts were presented by the evidence: The amount of stock issued by the plaintiff was 2,119 shares, of the par value of fifty dollars per share, and no more.
    This stock was issued as follows:
    To William Durland, for stage franchise. 200 shares.
    To Kimball & Co., contractors to build the road ... Ij919 “
    Total.:.2 5119 shares.
    The defendant and Aaron A. DeGrauw entered into a contract with Kimball ■ & Co., by which they purchased all of the stock which the company issued to Kimball &'Co., excepting 100 shares at fifty-five cents on the dollar. •
    The certificates of stock which had been issued to Kimball & Co. were thereupon surrendered to the company, in order that new certificates therefor might be issued to those entitled to them. It seems that the company had subscribers for seventy-two shares of stock which they could not supply, having already issued (to Dur-land and Kimball & Co.) all the stock which the resolution of its board allowed them to issue. They were- obliged either to fail to deliver the seventy-two shares of stock 'thus subscribed for, or supply the stock by obtaining it from those who had stock already issued. The treasurer, this defendant, thereupon issued to the subscribers the seventy-two shares, collecting the subscription-price (par), crediting himself with one-half the sum paid by the subscribers, and a similar sum to DeGrauw.
    The court directed judgment against the defendant for the entire amount of $1,108.08 and interest.

      A. J. Vander'poel, for the appellant.

      Jno. E. Parsons, for the respondent.
   Davis, P. J.:

That the defendant was plaintiff’s treasurer, and as such received the money for which this action was brought, was clearly shown on both sides.

The plaintiff gave evidence tending to show a demand of the .money before suit brought. The defendant denied such demand. Perhaps, on that question, if it were a material one, the case should have gone to the jury; but, under the circumstances of the case, I think no demand was necessary. The defendant asserted rights in himself to the money, which were in hostility to plaintiff’s right to demand and receive it; and he had in fact, so far as in his power, canceled his obligation to pay over the money, by extinguishing his liability by charges against the plaintiff, which if rightfully made left the latter his debtor in more than $600. Having taken that position, he had no right to insist on a demand.

The only question in the case is, whether the defendant established his right to the set-off or counter-claim interposed by him. He was the treasurer and one of the directors of the corporation. The corporation had issued to the contractors who built the railroad 1,919 shares of its stock, which, with stock issued for the purchase of a stage franchise, is claimed to have exceeded the whole number of shares which under a resolution of its board could be issued. The stock thus issued to the contractors was all with the exception of 100 shares, purchased by defendant and one DeGrauw, who was president of the company, in their individual capacity, at fifty-five per cent of its par value. There were individual subscribers for seventy-two shares of stock, not yet issued, who had subscribed for and were bound to pay for the same at par. The certificates issued to the contractors for that portion of the stock bought by defendant and DeGrauw, were returned and new certificates made to them respectively of the same number of shares, less seventy-two, and certificates were then given to the subscribers above spoken of for seventy-two shares, thirty-six of which are claimed by the defendant to have been part of his purchase from the contractors, the par value of which would be $1,800. The plaintiff had received payment from the subscribers to that amount. The defendant gave himself credit, in his accounts as treasurer, for the sum of $1,800, the par value of such thirty-six shares, and claims thereby to extinguish his indebtedness for the money for which this suit is brought, and to recover the difference of some $600. This transaction is not shown to have been known to or recognized by tbe board of directors. It is claimed by defendant that it was known to DeGrauw, tbe president, wbicb, however, be denies. Assuming, however, that it was known and assented to by tbe president (for that is a question upon which the jury might have found favorably to tho defendant), it seems to me clear that these officers had no power to make any such transaction for their individual benefit. They could not buy in the stock of the company at a large discount for their individual account, and then supply the subscribers for shares, who had paid for the same at par, with apart of their shares, and make the corporation their debtor for the shares so supplied at their par value. Such transactions, if carried on to a large extent, would speedily absorb the capital of a corporation, and leave its stockholders the victims of the speculations of their officers in its stock. It would require, I think, a clear case of necessity and consent to warrant a court in upholding such a transaction, and necessity and consent were both wanting in this case.

The defendant may have equities upon which he can claim that his thirty-six shares of stock, used by himself and the president in the manner he states, shall be replaced to him. This it is not important to consider. But he cannot, by charging it over at par, make the corporation his debtor, and thus extinguish his liability for moneys held in his hands as its treasurer. The principles of law that prevent him from doing this are extremely well settled, and I think are clearly applicable to this case. (Robinson v. Smith, 3 Paige, 222; Gardner v. Ogden, 22 N. Y., 327; Butts v. Wood, 37 id., 317; Aberdeen Railway Co. v. Blaikie, 1 McQueen, 461; Cumberland Coal Co. v. Sherman, 30 Barb., 553; Benson v. Heathorn, 1 Younge & Coll., 326.)

The judgment should be affirmed.

Daniels, J., concurred.

Judgment affirmed.


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    THE PEOPLE ex rel. HENRY A. FROST v. THE MARVIN SAFE COMPANY and JAMES W. FOWLER, Justice.

      Summary proceedings — chapter 828 of 1868 — service of summons undw-regula/r-

    An affidavit stating that a summons, issued under chapter 828 of 1868, and returnable November twenty-fifth, was served November twenty-third, is sufficient to satisfy the requirements of the law as to service.
    CeRtioeari to i'evíew summary proceedings had under the landlord and tenant act. The following affidavits of service of the summons were made, upon the regularity of which this appeal rested:
    STATE OF NEW YORK, ) „ . City and County of New Yore, )
    C. H. Munsell, of the said city, being duly sworn, says, that he did, on the 23d day of November, 1874, serve the within summons on H. A. Frost, the tenant therein named, by affixing the same on a conspicuous part of the premises within described; to wit, on the door thereof, and that the said tenant was absent from said premises at the time of said service, and that said premises are his last or usual place of residence, and that there was no person on said premises at the time of said service, and that section number three of chapter 828, Laws of 1868, was indorsed on the copy summons so served.
    C. H. MUNSELL.
    Sworn before me this 24th day of November, 1874.
    A. J. De Laoy,

      Notary Public, N. Y. Oounty.

    City of New Yore, ss. :

    0. H. Munsell, of said city, being duly sworn, says, that he did, on the 23d day of November,-1874, serve the within summons in the city of New York on H. A. Frost, the tenant therein named, by leaving a true copy of the same at his usual place of residence with John Lobz, a person of mature age, who, at the time of the said service, was on said premises, and resided thereon, said tenant being then absent from his usual place of residence, at the same time showing the original, and that section number three of chapter 828, Laws of 1868, was indorsed on the copy summons so served.
    O. H. MUNSELL.
    Sworn before me this 24th day of November, 1874.
    A. J. Db Lacy,

      Notary Publio, N. Y. County.

      Henry A. Frost, relator, in person.

      Edward L. Pa/rris, for the respondents.
   Davis, P. J.:

The only point made by the relator is, that the summons was served only two days before the day of its return. Section 2, chapter 828, of the Laws of 1868 (Session Laws, vol. 2, p. 1931) provides that, if the summons be returnable on the day on which it is issued, it shall be served at least two hours before the hour at which it is made returnable, and, if not returnable on the same day, it shall be served at least two days before the day on which it is made returnable.” The summons in this case was issued on the 21st day of November, 1874, and was returnable on the twenty-fifth day of that month. It, therefore, conformed to the requirements of the statute, inasmuch as it was returnable in “ not less than three, nor more than five days.” (§ 30, title 10, chap. 8, part 3, Revised Statutes, as amended by chap 460, of the Laws of 1851; § 1, chap. 828 of the Laws of 1868.)

The summons was served on the twenty-third day of the month, which was two days before the return day mentioned therein. There were two affidavits of the proof of service; one, of service by affixing the summons to a conspicuous part of the premises described therein, the tenant being absent, and there being no person on said premises at the time; the other, of service on the twenty-third November, by leaving a true copy of the summons at the usual place of residence of the relator, with a person of mature age, wlio, at tbe time, of such service, was on the premises, and resided therein, the tenant being absent from his usual place of residence, and at the same time showing the original.

Both affidavits state the time of service to have been on the twenty-third November. We think this was clearly sufficient to satisfy the requirements of chapter 828 of the Laws of 1868, above cited. The proceedings must, therefore, be affirmed, with costs.

Daniels, J.-, concurred.

Proceedings affirmed.


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    MARIA L. MORGAN, Respondent, v. WILLIAM H. H. SMITH and another, Appellants.

      Landlord and tenant— action for rent— countm'-claim — effect ofpa/yment of rent.

    In an action for rent the tenant offered to show, as constituting a counter-claim, that a skylight constructed for the purpose of lighting the demised premises, and an appurtenant thereto, had been covered up by a tenant occupying rooms above, under a lease which gave him a right so to do, and that rent for two years had been paid by defendant under the assurance of his landlord that the obstruction would be removed. The evidence was excluded. Reid, that the payment of preceding rent did not prevent the tenant from setting up the injuries sustained by this violation of his rights, in an action brought for subsequently accruing rent, especially where the assurances of the landlord had persuaded him to make the previous payments.
    Appeal from a judgment in favor of tbe plaintiff, entered upon a verdict directed by tbe court, upon a trial of tbe cause before tbe 'court and a jury at Circuit.
    Tbe action was brought by tbe plaintiff to recover from the defendants $2,315, with interest, for one quarter’s rent of tbe ground floor, basement and sub-basement of building No. 738 Broadway, in tbe city of New York.
    Tbe defendants offered to prove certain facts, set forth in tbe opinion, but tbe court excluded the evidence offered.

      L. W. Bates, for the appellants.

      J. A. Godfrey, for the respondent.
   Davis, P. J.:

The skylight constructed for the use of the store leased by plaintiff to the defendants, was an appurtenance to the demised premises. The right to enjoy its use passed under the lease. At the time of making the lease, the light was obstructed by a carpet and billiard table, placed thereon by the tenants of the upper part of the building. I think it was competent to show, not only that the skylight was constructed for the purpose of lighting the floors below, and that it was so pointed out and represented by plaintiff, but also that she, by her agent, represented that the apparent obstruction was temporary and would cease on the occupancy of the store below. The offer was in substance to show that in point of fact the plaintiff by a prior lease had given the tenants of the upper floors the right to stop the use of the light by covering the skylight, and thus had prevented herself from giving possession of the enjbyment of the light under her lease to defendants, as an appurtenant to the premises demised, and that by this act defendants were prevented from such enjoyment during the whole time of their occupancy. This was accompanied by an offer to show the frequent promises of the plaintiff to put defendants into enjoyment of the light; and that the rent of the first two years was paid quarterly as it matured, under the strong assurance of plaintiff that the obstructions should be promptly removed. All this evidence was excluded, apparently because the defendants continued in possession of the store during the period in which the rent accrued for which the suit is brought.

It seems to me the evidence offered ought to have been received. It was not offered with a view to show a different contract between the parties than that expressed in the lease, but to show that defendants had been deprived by the acts of plaintiff of the enjoyment of a valuable appurtenance, to the use of which they were entitled under the terms of the lease, and thereby suffered serious damages which they propose to recover as a counter-claim in this action.

I do not think the payment of the preceding rent prevents the tenants from asserting their rights under the lease and alleging their injuries, when an action is brought for subsequently accruing rents; and that certainly ought not to be the case when the assurances of the landloi'd have persuaded them to make the previous payments. (Cook v. Soule, 56 N. Y., 420.)

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

DaNiels and Bbadt, JJ., concurred.

Ordered accordingly.


author: Daotels, J.:

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    THE PEOPLE ex rel. ANDBEW V. STOUT, Receiver, etc., Appellant, v. ORLOW W. CHAPMAN, Superintendent of the Insurance Department of the State of New York, Respondent.

      Imwrance Department— securities deposited in — disposition to he made of, in ease of the insolvency of the company.

    The laws have provided for two classes of insurance: one by policies unregistered, but still protected by a deposit of securities to the amount of $100,000 in the insurance department; the other by registered policies and annuity bonds, secured by an additional deposit of similar securities, to an amount not less than $25,000. The former, when the company is found to be in such a condition as to be unsafe for the further transaction of its business, are to be distributed under a decree of the Supreme Court, made for that purpose; while the latter are to be sold by the superintendent of the insurance department, the proceeds of their sale paid over to the receiver, on his receipt, and applied by him to the satisfaction of the registered policies and annuity bonds, and the surplus on the debts owing by the company.
    Appeal from an order denying a motion for a writ of mandamus, requiring the respondent to sell certain securities held by him and pay over the proceeds to the relator.

      E. L. Fcmeher, for the appellant.

      Daniel Pratt, attorney-general, and Charles F. MaeLean, for the respondent.
   Daotels, J.:

The relator was appointed receiver of the Asbury Life Insurance Company, under chapter 902 of the Laws of 1869. At the time of the appointment, the company had on deposit, in the office of the superintendent of the insurance department of this State, two certificates of the United States, amounting to the sum of $6,000, for the security of a registered policyholder, and $100,000 in like certificates, for the security and benefit of all its other policyholders. The latter were placed on deposit in such office-on the 6th day of April, 1868, before the passage of the act under which the appointment of the relator as receiver was made. Upon an examination into the affairs of the company, it was found that its assets and securities were less than its obligations, including those entered into for the purpose of insurance, and an application was made to the respondent, by the relator, for a sale of all the securities on deposit in his office, arid the payment of their proceeds over to him, on receiving his receipt for the same. This was declined by the superintendent, although assented to by the State treasurer, and the relator moved, upon notice, for a mandamus requiring such sale to be made, and the proceeds paid over to him. The application was denied, and the relator appealed; and it is now claimed that this decision was erroneously made. Whether it was or not, is the only point before the court upon the present appeal. The securities filed for the benefit of the company’s unregistered policyholders, amounting to the sum of $100,000, were placed in the superintendent’s hands, in compliance with statutory provisions then existing, which prevented life insurance companies organized under their authority from transacting the business of life insurance until that was done; and when they were filed, they were afterward to be held as security for these policyholders, in the company filing them. (Laws of 1853, chap. 463, § 6; Laws of 1860, chap. 328; Laws of 1862, chap. 300, pp. 503, 504.)

By the act of 1853, the securities were required to be filed in the office of the comptroller of the State, but, by the succeeding acts, that was changed to the office of the superintendent of the insurance department; and the act creating that department conferred upon its superintendent the powers, and required him to perform the duties, of the comptroller relating to insurance companies. (Yol. 4, Gen. Stat. N. Y., 252, § 3.) As that provision changed section 17, of the act of 1853 (Laws of 1853, 894, 895), the superintendent had authority, and it became his duty also, to cause an examination to be made of the affairs of the insurance company, and, when it appeared that its assets were insufficient to reinsure its outstanding risks, to communicate that fact to the attorney-general, whose duty it then became to apply to this court for an order that the company show cause why its business should not be closed. Upon the hearing of such an order, if it appeared that the assets and funds of the company were not sufficient to make such reinsurance, then it was provided that the court should decree a dissolution of the company, and a distribution of its effects, including the securities deposited in the hands of the superintendent. This provided a complete system for the disposition of all the securities deposited for the benefit of the general policyholders; and it appears to contemplate such disposition by the superintendent under the decree of the court to be made on the hearing of the attorney-general’s application. For that purpose no receiver was rendered necessary. But the distribution was to be made according to a specific decree made for the purpose, and as the superintendent was the lawful depository of the securities, and he held them in trust for the policyholders, there would be very manifest propriety in requiring the consummation of that trust through his instrumentality. And that is what the legislature appears to have designed, for no provision was made for these securities passing out of his hands into those of any other person to make the distribution which was to be directed by the decree, or for the intervention of any other person in its execution. The decree, when made in conformity to this provision of the statute, would act directly upon the securities held by him, and in his hands, and direct their proper distribution. And as he was their legal custodian, not for his own benefit, but for that of the policyholders, his trust could not be completely executed until they were secured the benefit of them. He is the proper functionary through whom the distribution should ordinarily be made, a public officer selected for that purpose, and only needing the decree which the court has been authorized to make, to enable him to exercise the power. That would secure the harmonious consummation of the system devised by the statute, and it is evident that the legislature designed it through the instrumentality of this officer.

Without changing those legislative provisions as to securities filed under them, it was further provided, in 1867, that any life insurance company, authorized to make insurances on lives within this State, might deposit in the insurance department other and additional securities, of the description of those mentioned in the preceding laws, in any amount not less than $25,000, which were to be for the special security and protection of registered policies and annuity bonds; and they were to be held and applied solely to that object. (Laws of 1867, chap. 708; Laws of 1869, chap. 902.) This authority was given to all companies authorized to make life insurance in this State, including those created by other States and by foreign countries, whose affairs could not be wholly closed by a receiver in this State, as well as those organized under its own laws. The provisions made by those laws chiefly relate to the security of holders of registered policies, and annuitants, as all the sections preceding section 7 of the act of 1869 very plainly show. And they require the securities deposited under them to be held and appropriated for the use of those persons, and no others, as long as any of their demands may remain unsatisfied.

JBut in the examination which the law has provided shall be made into the affairs of the companies, all assets and securities are required to be included, for the obvious reason that in no other way could the real condition be ascertained or discovered. On such examination into the affairs of any company which has deposited securities for the benefit of registered policyholders and annuitants, if they appear to be in such a condition as to render the issuing of additional policies and annuity bonds by it injurious to the public interests, the superintendent is required to report that fact to the attorney-general, whose duty it then becomes to apply to this court for an order that the company show cause why its business should not be closed. And if, on the hearing to be had, it shall appear that its assets and funds are not sufficient to justify the further continuance of its business, then the court shall restrain and enjoin it from doing so, and appoint a receiver of all its assets and credits, who shall take possession of all such assets and credits, except the securities deposited in the insurance department under the provisions of this act, and the act hereby amended, which said securities shall remain in said department, to be disposed of as hereinafter provided.” (Laws of 1869, 2276, § 7.) The act amended was the act of 1867, which first made provision for filing securities for the benefit of the holders of registered policies and annuity bonds; and the last clause-of the section just quoted, restricts the securities to be disposed of in the manner afterward provided for, to those deposited only for such purpose. The next section then provides how these securities shall be disposed of-; and that is, upon the receiver discovering, by the investigation provided for, that the securities deposited in the insurance department, and the assets and credits, including future premiums on outstanding policies, are insufficient to pay all the policies, annuities, and other obligations of the company, as they mature, and the costs and expenses of his proceedings, he shall notify the superintendent thereof, who, with the consent and advice of the treasurer of the State, and in such manner as the receiver, superintendent and • treasurer, or a majority of them, shall determine, shall sell and convert the securities into money, and pay over the proceeds to the receiver upon his receipt for the same. The securities so to be sold are not otherwise expressly defined by the statute than by the use of the terms contained in this section, which refers to them as “ said securities ” simply. (Laws of 1869, 2278, § 8.)

Their precise import is rendered somewhat obscure by reason of the circumstance that both descriptions of securities are previously referred to in the same section; and, in themselves, these terms are broad enough to include them all, but it does not seem to have been the intention of the law that they should be as broadly construed as that. The preceding act, which rendered the securities deposited for the protection of the unregistered policies distributable under the decree of this court, was not expressly repealed, and no good reason exists for holding that to have been done by mere implication.

The system created by the act of 1853, and that provided by the act of 1869,- may both be consistently maintained together, when limited to the subject-matter of the respective laws creating them; and when that proves to be the case, the preceding law is not necessarily to be considered as repealed by the one succeeding it. (People v. Palmer, 52 N. Y., 84; Spratt v. Huntington, 9 S. C. [2 Hun], 341, 344.)

Then, by the first clause of section 7, of the act of 1869, it was only companies which deposited securities under it,, or under the act of 1867, amended by it, that could be .proceeded against at all in the way it has prescribed;' and when that has been done, by the succeeding provisions of the same section, the receiver is only to be appointed of its assets and credits, from which the securities on deposit with the superintendent are expressly excluded. By the last clause of this section, they are to be disposed of in the manner afterward provided for, but even that disposition was limited to those deposited under the provisions of the acts of 1867 and 1869. (Laws of 1869, 2276, § 7.) This portion of the section very clearly indicates it to have been the purpose of the general terms used in section 8, only to provide for the disposition of the securities deposited for the benefit of the registered policies and annuity bonds.' And that was all which, at the time, required legislation, because the manner in which the securities deposited for the unregistered policies were to be distributed, had then been clearly regulated ■and prescribed by the act of 1853. Nothing further was needed on that subject.

The application to be made of the proceeds of bonds, sold by the superintendent pursuant to section 8, of the act of 1869, exhibits the propriety of that construction, for none of such proceeds can be used to satisfy or extinguish unregistered policies. They are wholly confined to other well-defined objects, and they are “ the payment of the registered policyholders of said company, in proportion to the net value of their policies respectively, and to the registered annuities of said company in proportion to the then present value of their respective annuities, as estimated by the legal standard for valuing life insurance and annuity obligations within this State. The surplus derived from such sale or sales, if any there be after the payments above mentioned, with all the other assets of the said company, shall be then applied to the payment of all the just debts of said company incurred in the conducting and carrying on its business.” (Laws of 1869, 2278, § 8.) This, it will be seen, makes no provision whatever for policies not registered, and if the securities to be sold under the authority of that section, shall be held to include those deposited under the act of 1853 and the laws amending it, for the sole benefit of unregistered policies, then the proceeds, according to section 8, of the act of 1869, must be diverted from such policies, to be first applied to the satisfaction of registered policies and annuity bonds, and afterward to the payment of the debts of the company. This could not have been the intention of the legislature in passing the law, for the registered policies and annuity bonds were rendered perfectly secure without such a diversion of the securities provided for the unregistered policies, and it would involve such an act of injustice to the holders of the latter, as cannot be held to have been contemplated.

The laws have provided for two classes of insurance: one by unregistered policies, but still protected by a deposit of securities to the amount of $100,000 in the insurance department; and the other by registered policies and annuity bonds, secured by an additional deposit of similar securities to an amount not less than $25,000. The former, when the company is found to be in such a condition as to be unsafe for the further transaction of its business, are to be distributed under a decree of this court made for that purpose; while the latter are to be sold by the superintendent, the proceeds' of their sale paid over to the receiver on his receipt, and applied by him to the satisfaction of the registered policies and annuity bonds, and the surplus on the debts owing by the company. Two distinct systems have been created, and justice to the unregistered policyholders requires that they should be separately preserved and maintained. It is not designed to be held that the court cannot select a receiver or a referee to make the distribution of the proceeds of their securities among the unregistered policyholders, and for the adjustment of the other obligations of the company under its decree, but that no such appointment has been rendered necessary by the statute to accomplish those objects. Whether that may be done or not in a case appearing to require it, is not involved on this appeal, for no such appointment of the relator has been made. He was appointed under the act of 1869, and has no more authority than by its provisions could be conferred upon him, which does not include the least control over the securities, or their proceeds, deposited for the protection of the holders of unregistered policies.

No other provisions made by the act of 1869 require particular consideration in the disposition of this case, for they have no application to the point presented for its decision. Sections 9 and 11 were designed to govern' a state of things not now before this court. The final clause of the latter provides that companies availing themselves of the right to issue registered policies and annuity bonds, may continue to issue unregistered policies as authorized by the charter, but subject to the provisions of section 8 in relation to the distribution of their assets. This provision is prospective in its nature, and it does not appear that the company of which the relator was appointed receiver, ever availed itself of that privilege. But if it did, no difference would result from it in this case, for it is simply the assets of the company that are thus placed within the control of section 8, and that term has not been so used in the act as to include the securities filed in the insurance department. They are rendered subject to a different disposition by the terms of section 8, when held for the benefit of registered policies and annuity bonds, and to another proceeding altogether, which has not yet been instituted for their distribution, when held for the security of unregistered policies.

The order appealed from was correctly made, and it should be affirmed with ten dollars costs, besides disbursements.

Davis, P. J., and Beady, J., concurred.

Order affirmed, with ten dollars costs, besides disbursements.


author: DANIELS, J.:

text:
    EMMA B. BRUCE and others, Respondents, v. JOSEPH KELLY and others, Appellants.

      Conspiracy — right of person defrauded, to maintain action to recover damages— joinder of legal a/nd equitable ccmses of action.

    "Where one, who, by a conspiracy entered into by several persons, has been deprived of certain real estate, brings an action and obtains a judgment therein directing the cancellation of certain conveyances, and requiring the defendants to convey the property to him, and account for the rents and profits received by them, he may subsequently bring an action against certain of the said defendants to recover any damages sustained by him, in addition to those provided for in the first judgment. The defendants may be held to bail in an action of this kind.
    The law does not require that legal and equitable causes of action shall be united, even when they arise out of the same transaction, or are connected with the subject of the action. It is a privilege conferred upon the plaintiff, but whether he will avail himself of it or not, is left solely to his own election.
    Appeal from, an order, denying a motion to vacate an order of anest, or reduce the amount of bail.

      Luther R. Marsh, for the appellants.

      Albert Stichney, for the respondents.
    The first point of this alleged conspiracy, i. e., the combination to have the property sold for much less than its true value, was a legal injury to the/plaintiffs, for which an action would have lain against the sheriff. If there were a combination among several persons to have this illegal act done, an action would lie against the persons so combining. {Jones v. Cassell, 3 Johns. Cas., 29; Rogers v. Brewster, 5 Johns., 125; Phillips v. Bacon, 9 East, 303 ; Neilson v. Neilson, 5 Barb., 565; Keightley v. Birch, 3 Campb., 521; Croff v. Jones, 6 Wend., 522; Crary v. Sprague, 12 id., 41.) The cause of action would come under either par. 1 or par. 4, of section 179 of the Code. It can be deemed either an injury to property, or an action to recover damages for fraud or deceit. {Moore v. Tracy, 7 Wend., 229 ; Swan v. Saddlemi/re, 8 id., 676; Topham v. Powers, 2 Hall, 277.)
   DANIELS, J.:

This action has been commenced to recover damages which the plaintiffs allege they have been subjected to by means of a fraudulent combination and conspiracy to divest them of their title to and interest in a piece of real estate situated in the city of New York.The defendants are charged as parties to the conspiracy; and, by means of it, the plaintiffs aver that the real estate was sold upon an execution issued to collect $98.13, the title conveyed and changed and incumbered, with the apparent design of putting it beyond their reach, before they had any knowledge of what had transpired. When that was ascertained, they at once commenced ah action in the Superior Court of the city of New York, to have the convey-anees annulled and the incumbrance removed, and for an account of the rents . and profits of the property. It was brought against Joseph Kelly, Ellen L. Kelly, his wife, Emma Weeks, Joseph W. Frazier and Philip - ; and resulted in a judgment adjudging the conveyances and incumbrance fraudulent, directing a reconveyance of the property, and an accounting for the rents and profits.

An action was also commenced in this court to foreclose the mortgage by which the premises had been incumbered, and was defended by the plaintiffs. In that defense, and in the prosecution of their action for the recovery of the title to, and the possession of, the property, and a preceding suit in this court for a similar object, they allege that they were subjected to very great expense beyond the costs recovered by them, and have brought the present action against three of the defendants in the suit in the Superior Court, and Thomas -, Wellington A. Carter, Cotton W. Bean and Alfred I. Works, as parties to the conspiracy and fraud, to recover the same as damages. It is claimed that nothing appeared from which the defendant Thomas -could be held liable in this action. But that is an evident mistake, for the affidavit made on behalf of the plaintiffs, and used on the application for the order of arrest, stated that in the action in the Superior Court, it was determined by the decree that the deeds and mortgage were made in collusion with him. He was also included in the general charge of the conspiracy made to defraud the plaintiffs, and no denial of that charge lias been made by him. There was enough shown to sustain the conclusion, that he and the other defendants were all parties to the fraud, by means of which, under color of legal proceedings, the title to the property was fraudulently divested and conveyed to other persons.

The defendants all insist that an order to hold to bail is not authorized in an action of this description, and Fassett v. Tallmadge (23 How., 244) and Merritt v. Carpenter (3 Keyes, 142), are relied upon in Suppport of the objection. The first merely held that the defendants were not liable to arrest on an execution issued against the person, in an action setting aside a conveyance as fraudulent at the suit of creditors; and the second, that the defendant was exempt from the like proceeding, in

an action brought to recover the possession of real estate. They are neither of them entitled to any weight in the decision of the present case. For, besides the fact that they are both inapplicable to it, the next year after the first was decided, it was expressly enacted that the defendant should be liable to arrest in actions brought to recover damages for fraud or deceit (Laws of 1863, p. 658); and this is an action of that description, for it is to recover damages for fraud that it has been commenced.

It has also been objected that the action in the Superior Court is a bar to the present suit, because the relief now applied for might have been obtained in that action. But from the mere circumstance that the plaintiffs might have included the present demand in the other action against the three persons then made defendants, who are also defendants in this case, it by no means follows that this action may not also be maintained against them and the four others sued with them at this time. There is very good reason for doubting the correctness of the objection made, that the relief now applied for would have been appropriate in the other case. For the purpose of entitling the plaintiffs to unite it with that cause of action it must have affected all the parties to it, and that is not shown to have been the fact as to two of the defendants in the other suit. (Code, § 167, sub. 7.) But the other action was very clearly one in equity, while the present is a simple action for damages at law; and if they could have been united, whether it should be done or not, was optional with the plaintiffs. The law does not. require that legal and equitable causes of action shall be united, even where they arise out of the same transaction, or are connected with the subject of the action. It allows it simply, without requiring that it shall be done. (Code, § 167.) It is a privilege conferred upon the plaintiff, but whether he will avail himself of it is left solely to his own election. The present objection, therefore, is without the least legal support.

The order required the defendants to be held to bail in the sum of ' $15,000 each, and that is objected to as excessive. In the affidavit, on which it was in part made, the premises affected by the fraudulent acts of the defendants are stated to have been of the value of at least $13,000, worth an annual rent of $1,000. The sheriff’s deed of them was executed in January, 1871, and the proper reconveyances were adjudged in the plaintiffs’ favor, in 1874, and made and filed before the 15th of February, 1875. The affidavit of one of the plaintiffs shows that over $10,000 were paid out in the prosecution and defense of the actions brought to annul the deeds and defend that brought to foreclose the mortgage. This statement has been neither contradicted nor involved in the least suspicion, and it was consequently sufficient for the order made upon it. The judgment directed an accounting for the rents in the Superior Court, but as long as it does not appear to have been had, or that satisfaction can be secured for them through its instrumentality, that circumstance should not be allowed to affect the amount of the order made for the defendants’ arrest. Satisfaction in either case will be an end of all further proceedings; but until that may be obtained from- some, or all the parties liable, the order of arrest should not be reduced.

The action commenced in 1871, in this court, for the same description of relief as was claimed and recovered in the Superior Court, seems to have been rendered inefficient by acts of the defendants not then known to the plaintiffs, and that suit, in substance, was abandoned when the second action was commenced. As the latter furnishes no proper answer to the plaintiffs’ right to maintain the present suit for damages, that preceding suit, of course, could be attended wfith no such effect.

The action in the Superior Court was not brought to annul a fraudulent contract or conveyance executed voluntarily by the owners of the title to the property, where an election of one remedy will ordinarily deprive the plaintiffs of others brought to redress the same imposition; but its object was to recover back their title and possession, when both had been obtained by means of which they were ignorant, and that were in themselves positively wrong. Their acts or intervention were not induced nor secured, but their title was filched from them without their knowledge ; and if annulling the transactions, with an accounting for the rents and profits, will not fully redress the injury sustained, the defendants have no legal right to complain if their misconduct has involved them in another action, rendered necessary to fully and completely recompense the loss produced by it. To what extent they may be so held, it is not now necessary to decide. It is sufficient to sustain the order of arrest and the order appealed from, that they are supported by a reasonably fair case, as the papers disclose it, which has neither been denied nor avoided by the defendants.

The order should be affirmed, with ten dollars costs, besides disbursements.

Davis, P. J., concurred.

Ordered accordingly.


text:
    GEORGE F. YOUNG, Respondent, v. ISRAEL G. ATWOOD, Appellant.

      Replevin — error inform of judgment im, — corrected by motion md not by appeal— Evidence — offer of rent — not competent evidence of value of me — eaypenses of

    The proper mode of correcting a judgment entered in a replevin suit, erroneous in that it is for 1he valúe of the property, instead of being for its possession, and in case a delivery could not be had, for its value, is by motion, and not by appeal.

      Ingersoll v. Bostwialc (22 N. Y., 425) followed.
    An offer of a certain price for the use of property is not competent evidence from which to determine the amount of damages arising from its unlawful detention.

    In an action of replevin, the expenses of taking and removing the property by the sheriff, are not to be included in the damages given for its detention. They constitute part of the disbursements in the action, and should be added to the costs.
    Appeal from a judgment entered on a referee’s report, in an action of replevin.

      Henry Stanton, for the' appellant.

      Frederick B. Swift, for the respondent.

      See Hotchkiss v. Germania Fire Ins. Co., ante, p. 90. — [Rep

   DANIELS, J.:

This action was brought to recover possession of a piano, wrongfully detained from the plaintiff by the defendant. It was delivered to the plaintiff upon the usual documents the Code allows to be issued for that purpose, at the time of the commencement of the action, and judgment seems to have been entered for its value, with thirty dollars damages, arising out of its wrongful detention. This form' of judgment was wrong. It should have been for the possession of the piano, or the value thereof in case a delivery could not be had, with the damages for its detention. (Code, § 277.) But the mode of correcting the irregularity, as long as the referee, by his report, directed the judgment to be entered in the form prescribed by this section, was not by an appeal, but by motion. (Ingersoll v. Bostwick, 22 N. Y., 425.)

Upon the trial it was proved, by a competent witness, that the rent of the piano was ten dollars per month. This evidence was given without objection, and it seems to have been quite satisfactory to the referee. For he stated that he should take it for granted that it was worth ten dollars a month, unless contrary proof was given on the subject. But, notwithstanding that, the plaintiff’s counsel insisted on showing, and was finally allowed to do so, that the plaintiff had been offered ten dollars a month for the use of it, from about the middle of January to the first of May. The defendant’s counsel excepted to the decision by which this was permitted to be shown, and there seems no reason to doubt that the exception was well taken. For an offer by another person to pay that sum for the use of the piano up to the first of May would not entitle the plaintiff to recover it, as long as it was not detained by the defendant to that time. Besides, a mere offer would be no legal proof of the fact that the plaintiff' was deprived of the sum offered, even if the piano had been afterward detained during the period the offer included. It furnished no certain reason for deciding that the plaintiff would have received the sum offered, if he had the possession of the property it related to. The evidence ought to have been excluded. (Masterton v. City of Brooklyn, 7 Hill, 62, 72.)

The referee found that the wrongful detention of the piano did not commence until the 15th of January, nor continue beyond tbe 22d day of February, 1870, and that ten dollars a month was the value of the rent of it. And yet he assessed the damages for the detention at the sum of thirty dollars. There is some reason for supposing that this was partially made up by the allowance of expenses paid for its removal, when it was taken by the sheriff from the defendant. But if that were the case it was improper, for those expenses formed no part of the plaintiff’s cause of action. They were part of the disbursements in the suit, and' should have been added to the costs, instead of the damages for the detention of the property. They were incurred in obtaining possession by means of the legal proceedings taken, and were part of the necessary expenses of the action, and, as such, taxable in the plaintiff’s costs. (3 R. S. [5th ed.], 933, § 7.) This section includes all charges for other disbursements beyond those particularly mentioned, and provides for their allowance, on an affidavit specifying the items, when they appear to have been necessary and reasonable in amount.

According to the actual time of detention, as the referee found it to have been established by the evidence, the damages for that should not have exceeded twelve dollars and fifty cents. The defendant claimed it should have been less, because the person to whom the piano had been rented by the plaintiff, had paid the rent for part of that time. But her right to the possession was expressly surrendered to the plaintiff by her, and in no way whatever transferred or assigned to the defendant. He was, therefore, not in a situation to justify his detention by means of a right of possession which she had, and relinquished to the plaintiff. He had no right to detain the property, and claimed none- by his answer.

But, as the damages allowed for the detention were more than either the proof or the facts found by the referee permitted the plaintiff to recover, the judgment should be reversed and a new trial ordered, with costs to the defendant to abide the event, unless the plaintiff, in twenty days after notice of this decision, stipulate to reduce the damages to twelve dollars and fifty cents. In case such stipulation be given, then the judgment, as so modified, should be affirmed, without costs of the appeal, but with costs of the action to the defendant since the service of the offer that the plaintiff might take judgment for the recovery of the property, and twenty-five dollars damages and costs, and with costs to the plaintiff up to the time of the service of such offer.

Davis, P. J., and DoNohue, J., concurred.

Ordered accordingly.