text:
    GURDON S. FANNING, Respondent, v. D. M. OSBORNE & CO. and DAVID M. OSBORNE, Appellants.

      Conveyance of a lot bounded on a street owned tiy tlie grantor — rights of the grantee in the street — he may rest/rain the operation of a steam railroad thes'eon — the officers of the company are liable individually as trespassers.

    Where a lot of ground is conveyed by a deed which describes it as abutting upon a street, and the fee of the land over which the said street is laid out is vested in the grantor, the grantee acquires a right to -have the space of ground covered by the street left open forever as a street, and the right to use it for every purpose that may be usual and reasonable for the accommodation of the granted premises, which right enables him to restrain the construction, maintenance and use of a steam railroad upon the said street, where no compensation has been.made to him for the loss of the rights acquired by his deed.
    Officers and agents of a company engaged in operating such a road are liable, individually, as trespassers, and may be restrained from further acting in an action brought against them by an abutting owner.
    The corporation for which they are acting is not a necessary party to such an action.
    Appeal from an interlocutory judgment, entered upon a decision rendered at the Cayuga Special Term upon a trial by the court without a jury.
    The judgment enjoined and restrained, the defendant from operating a steam railway for freight with “ T ” rails in Garden street, in the city of Auburn. The plaintiff is the owner of premises abutting on Garden street, a street the fee of which is in the plaintiff’s grantors, and which has been opened to the public for, fifty years.
    The East Genesee Street and Seward Avenue Eailway was incorporated by act of the legislature (chap. 527 of the Laws of 1871). The act requires the road to be operated with horses or mules, and that “ the track of said railroad shall be laid with such rails as will least obstruct the passage of vehicles and carriages across .the same.”
    In 1879 (by chap. 444) this act was amended and the said railroad company were authorized to use steam as a motive power in Garden’ street. The railway company, soon after the act of 1871, constructed a main line through Genesee street, with a branch to the New York Central Eailroad depot, through Garden street. Afterwards and on May 26, 1878, the railway company and the defendant, D. M. Osborne, entered into a written agreement by which a track was to be built through Garden street, and kept in repair at the expense of Osborne. The consent of the common council was obtained to build a railroad through Garden street, under the original act. Under the contract with D. M. Osborne the firm of D. M. Osborne & Co. (then a copartnership), of which D. M. Osborne was a member, took up the flat rail through Garden street and put down a “ T ” rail and operated the road with horses, drawing the New York Central and other loaded freight cars in front of plaintiffs premises, until 1879, when they introduced a steam engine. In April, 1875, the defendants I). M. Osborne & Go. were duly incorporated, with D. M. Osborne as president, and they have continued to operate this road in the same manner.

      B. Wright, for the appellant D. M. Osborne & Go.

      ■ H. V. Rowland, for the appellant David M. Osborne.

      8. R. Payne, for the respondent.
   Smith, P. J.:

It appears from the findings of the trial court that Robert Dill, from whom the plaintiff derives his title, originally owned a tract of land that included the plaintiff’s lot and the land now known as Garden street, and that when he conveyed said lot to Richardson, he owned the fee of the street, and the lot so conveyed abutted on said street and was so described in the deed. Richardson thereby became entitled, as a purchaser, to have the space of ground covered by- the street left open forever as a street, and “to the right of using the way for every purpose that may be usual and reasonable for the accommodation of the granted premises.” His right thus acquired by purchase was independent of the public right to the use of the street. It was his private property which could not be taken away or impaired by the public authorities of the city or the State without his consent, except by the constitutional exercise of the right of eminent domain. (White’s Bank of Buffalo v. Nichols, 64 N. Y., 65, per Allen, J., p. 73; Pratt v. Buffalo City Railway Co., 19 Hun, 30.) The' plaintiff succeeded to the title and interest of Richardson in said premises, including the right or easement above described.

The construction, maintenance and user of a steam railroad in said street, in the manner and for the purpose specified in the findings of the court are, in a measure, incompatible with and destructive of the use of the street as such, and the plaintiff’s property rights, so far as they are thereby interfered with, not having been properly acquired and compensated for, the plaintiff is entitled to an injunction .restraining such use, and to recover for the injuries he has sustained thereby. (Story v. The New York Elevated Railroad Company, 90 N. Y., 122; Mahady v. Bushwick, Railway Co., 91 id., 148, 153.)

The case is distinguishable from that of Kerr v. The People (27 N. Y., 188), in which it was decided that a horse railroad constructed under legislative authority on the surface of a city street, the fee of which was in the city,' was not an unlawful interference with the rights of abutting owners, but was a street use consistent with their rights therein. In that case two of the members of the court suggested the very ground upon which we place the plaintiff’s right to maintain this action, but conceded that it did not exist in that case. (Per Balcom and Marvin, JJ., p. 215.)

If the foregoing views are correct, it is no protection to the •defendants that they are acting with the consent of the street railroad company, .under the sanction of its charter. Nor is the defendant David M. Osborne protected by the circumstance that in what he has done by way of constructing, maintaining or operating the railroad he has acted as the president of the corporation defendant, D. M. Osborne & Co. Every person engaged in the work is a trespasser upon the' rights of the plaintiff, and whether he acts as the officer, agent or servant of another, he is liable individually, and as such may be restrained. The railroad corporation is not a necessary party, as no claim is made against it, nor is it affected by the judgment herein.

In the case of Elliott and that of Bell, decided by Rumsey, J., (MS. op.), the plaintiffs asked relief on the ground that they owned ■the fee to the center of 'the street, and the fact being found otherwise, it was held they were not entitled to an injunction. ’ The .complaints did not allege an interference with the right of way of the plaintiffs as abutting owners on the street. The decision in those cases does not stand in the way of the plaintiff here.

The views above expressed meet the several positions taken by the learned counsel for the appellants, and lead to the conclusion that the judgment should be affirmed, with costs.

Bradley, J., concurred; Barker, J., not sitting; Haight, J., not voting.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Smith, P. J.:

license: Public Domain

text:
    ETHEL L. LYON, Respondent, v. ASHBEL R. SELLEW, Appellant.

      Conversion — what possession is sufficient to maintain an action for the conversion of personal property.

    Upon the trial of an action tó recover damages for the conversion of a quantity of pine and oak logs and timber, it appeared that in 1879 the plaintiff went upon unimproved and unoccupied wood lots with men and teams for the purpose of removing the timber therefrom; that he made roadways and log-roads through the timber, cut down a large amount of white oak and pine timber; cut a portion of this into logs, placing a part of it on skids, and drawing off a part. While the plaintiff was in possession of the said logs the defendant ordered him to stop removing them, and thereafter took possession of them and converted them to his own use. No proof of title .was given by either party.

      Meld, that the plaintiff established a sufficient possession of the logs and timber to entitle him to maintain this action. ■
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.
    . W. S. Cameron and W. H. Henderson, for the appellant.

      Goodwill ds Stevens, for the respondent.
   Smith, P. J.:

The action is for the conversion of a quantity of pine and oak logs and timber. With a general denial, the defendant pleaded that one Elizabeth A. Wing was the owner of the land on which the timber was growing, and that she was induced to sell the same to the plaintiff by fraudulent representations made by him. But the answer in no way connected the defendant with Wing’s title.

The referee found that the lot on which the timber grew was a wood lot, unimproved and unoccupied ; that* in 1879 the plaintiff went on to the lot with men and teams, for the purpose of removing the timber growing thereon; he made roadways and logroads through the timber which was scattered over the lot, cut down-ia large amount of white oak and pine timber growing on the lot, cut about one-half of the trees so cut down into logs, and placed a con-* siderable quantity thereof on skids which he prepared therefor, and drew off from said lot, over said roadways, sohie of the logs so cut. He also found that while the plaintiff was in possession of the logs so cut the defendant ordered him to desist from removing them, and on 11th December, 1879, took possession of them and converted them to his own use. No proof of title was given on the trial.

The appellant contends that the plaintiff did not prove possession in himself and is not entitled to- maintain the action. We think otherwise. The plaintiff, by proving that he entered peaceably upon the lot, felled the timbers, cut it into logs, and prepared to draw them away upon roads made by him for the purpose, showed such a possession of the logs and timber as enables him to recover of the defendant, who, so far as the case shows, was a mere intruder. (Bassett v. Maynard, Cro. Eliz., 819, Rackham v. Jesup, 3 Wils., 332; Rowe v. Brenton, 8 B. & C., 737.)

The appellant’s counsel cites Miller v. Long Island Railroad Company (71 N. Y., 380) and Thompson v. Burhans (79 N. Y., 93). The first was trespass gph cl. fr., and the second ejectment, and in each of them it was a question whether the plaintiff had shown actual possession of the land. It was properly held that a mere entry on unoccupied land, accompanied by a claim of ownership and cutting wood thereon once or a number of times, or counting logs thereon, does not give a right of action against another,, person subsequently doing the same acts upon the same lands. The distinction between those cases and the one at bar is recognized by Eakl, J., delivering the opinion of the court in the case last cited. He says: “ It was never supposed that the hunter had possession of the forest through which he roamed in pursuit of game; and no more can a wood-chopper be said to possess the woods into which he enters to out logs. The logs which he, cuts are his against a mere intruder, and he may enter as against such one and remove them.” (P. 99.)

Again, the answer, as has been said, after denying the complaint, alleges title in Wing and a sale by her to the plaintiff. This is new matter, and is an admission by the defendant of the jilaintiff’s title. Tbe defendant’s allegation that the' sale by Wing to the plaintiff was procured by the fraud of the latter is not proved, and if it were, it would not help the defendant, as he did not connect himself in any way with Wing’s title. The plaintiff’s right to maintain the action seems to be admitted by the answer.

The judgment should be affirmed.

Barker, Haight and Bradley, JJ., concurred.

Judgment affirmed.


text:
    GARRETT AMERMAN and RODNEY W. YOUNGLOVE, as Overseers of the Poor of the TOWN OF WOLCOTT, Appellants, v. CLARA KALL, Respondent.

      Evidence — in civil actions for penalties — the aot of an agent is prima facie that of the principal — as to whether this rule holds in criminal cases.

    In an action to recover a penalty, under the excise law, for a sale of liquor without a license, proof of a sale by an agent in the shop of the principal, is prima facie evidence of a sale by the principal, and is sufficient to sustain a recovery.

      Quewe, as to whether such evidence would be sufficient to sustain an indictment for violating the excise laws.
    Appeal from a judgment of nonsuit 'rendered by the Wayne County Court.

      William Roe, for the appellants.

      Wood c& Walker, for the respondent.
   Smith, P. J.:

The action was brought by the plaintiffs as overseers of the poor of the town of Wolcott, to recover penalties for selling intoxicating liquors without a license. The defendant is- the wife of Charles Kail. The evidence tended to show that the liquors were sold and drunk in a building leased to the defendant, in which a saloon was kept, having a bar at which the liquors were sold and dealt out to customers by the drink, and that the business of the saloon was carried on by the husband as the agent of his wife, and the sales of liquor were made' partly by him as such agent, and partly by a clerk.

The evidence was enough, prima fade, to charge the defendant. Although the action is for a penalty it is a civil and not.a criminal action, and for its purpose a sale by an agent in the shop of his principal, or by a servant in the shop of his master, is prima fade a sale by the principal or master-. We so held in a similar ease against this same defendant in January last. (MS. opinion by Barker, J.; see, also, State v. Wentworth, 65 Me., 234; Commonwealth v. Nichols, 10 Metc., 259; State v. Brown, 31 Me., 520; Commonwealth v. Morgan, 107 Mass., 199; Smith v. Reynolds, 8 Hun, 128.)

The question whether such evidence would be sufficient to sustain an indictment for violating the excise law is not before us and we do not pass upon it. (See Riley v. State, 43 Miss., 397, 414.)

Aside from this we think there was evidence tending to show that the defendant was cognizant of the unlawful traffic carried on by her husband and authorized the same, which should have been submitted to the jury as the plaintiffs requested.

The judgment should be reversed and a new trial ordered in the Wayne County Court, costs to abide event.

Barker, Haight and Bradley, JJ., concurred.

So ordered.


author: Smith, P. J.;

text:
    JOSEPH ROE, Respondent, v. HENRY HALLETT, Impleaded, etc., Appellant.

      Note — one who signs his name on the book of a non-negotiable note is liable asa maleen' or gua/rantor, and not as an indorser.

    Appeal from a judgment of the Steuben County Court affirming a justice’s judgment in favor of the plaintiff.
    ■ The action was upon a promissory note which was accidentally destroyed before maturity. According to the testimony on the part ■of the plaintiff it was made in the latter part of May, 1880, for thirty dollars, payable to L. A. Hallett, at the Rank of Canisteo, with use, ninety days from date. It was signed by the defendant Travis, on the face, and the defendant Hallett wrote his name upon the back, before its delivery. The note'was assigned to the plaintiff before suit. The only defense was. that the appellant was not charged as an indorser.
    The court at General Term said: “ The note being payable to L. A. Hallett, and not to his order or to bearer, was not negotiable. (Story on Pr. Notes, § 128.)

      “ It is well settled in this State that a person who signs his name on the back of a non-negotiable note, before delivery, does not, in .a commercial sense, become an indorser of it with the rights and liabilities of a simple indorser. But he can be held as a maker of the note or as a guarantor of its payment. {Griswold v. Slocum, 10 Barb., 402; Bicharás v. Warring, 39 id., 42; S. C. affirmed, 1 Keyes, 576; Paine v. Noelke, 53 How. Pr., 273; S. O. affirmed, 54 id., 333; Cromwell v. Hewitt, 40 N. Y., 491; McMullen v. Rafferty,. 89 id., 456.)

      “ The complaint in this case properly charged the appellant as a maker, and as such-he showed no defense.”
    The judgment should be affirmed.
    P. J. Hallett, for the appellant.

      Eli Soule, for the respondent.
   Opinion by

Smith, P. J.;

Barker, Haight and Bradley, JJ., concurred.

Judgment of' County Court affirmed.


author: Haight, J.;

text:
    HELEN A. ELLIOTT, Respondent, v. ANN BARRY, Appellant.

      ■Gwil damage act — a wife who aids the husband, to procure liquor and consents to his intoxication cannot recover for damages thereby occasioned to her.

    Appeal from a judgment in favor of the plaintiff, enteréd upon a verdict of the Steuben County Court, and from an order denying a motion for a new trial made upon the minutes of the judge before whom the action was tried.
    This action was brought under the civil damage act to recover damages which the plaintiff claims to have sustained in her means of support by reason of the sale of intoxicating liquors to her husband by the defendant. The sale is alleged to have taken place in the Globe Hotel in the village of Corning.
    . It is contended on the part of the defendant that she is not the person that was engaged in keeping the hotel or in the sale of strong and spirituous liquors therein, and that the- verdict of the jury finding that she was the person is not warranted by the evidence.
    The General Term, after holding that the' court had erred in a portion of its charge, said: “ Again, the defendant requested the court to charge the jury that if the plaintiff contributed to the intoxication of her husband by consenting to the use by him of intoxicating liquor, and aiding him in procuring it or furnishing it to him, the plaintiff is not entitled to recover for injuries sustained by her in her means of support by and in consequence of such intoxication. This the court refused to charge, and the defendant by her counsel excepted. This, we are also of the opinion, was error. Evidence was given on the part of the defense tending to show that the plaintiff had on different occasions purchased beer and other liquors for and in company with her husband. It is true that this was controverted by the plaintiff, but it became a question of fact for the jury and it can hardly be claimed that the plaintiff would be entitled to recover damages for the intoxication of her husband produced from liquor which she herself had procured and furnished to him.
    “We are of the opinion that the judgment and order should be reversed and a new trial ordered in the Steuben County Court, and that the costs should abide the event.”

      A. S. Kendall, for the appellant.

      Francis A. Williams, for the respondent.
   Opinion by

Haight, J.;

Smith, P. J., and Barker, J., concurred; Bradley, 1., not sitting.

J udgment and order reversed and new trial ordered in the Steuben County Court, costs to abide the event.


author: Barker, J.

text:
    NILES CASE, Respondent, v. FRANK PEREW, Appellant.
    I City ordinance requiring a, boat to keep a light out —failv/re to keep the light constitutes negligence — it cannot be shown that it was the custom not to comply with the ordinance.

    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury rendered in the Erie County Court, and from an order denying a motion for a new trial.
    The action was brought to recover damages sustained by the plaintiff in consequence of the defendant’s propeller running into and injuring the plaintiff’s canal boat in the harbor of Buffalo creek.
    The court at General Term, after holding that an error had been made in the admission of certain evidence upon the trial, said: “ The harbor of Buffalo creek is within the limits of the city of Buffalo and is declared to be a public highway, and the common council are vested with the authority to widen, straighten or enlarge the same and are authorized to regulate and alter the wharves, piers, docks, canals and slips in the said city, and have also power to regulate and control the mode and manner of navigating the same. (City charter, chap. 519, Laws of 1870, tit. 8, §§ 1, 19.)-
    “The common council passed an ordinance requiring ‘canal boats to keep an out-port and conspicuous light,’ and gave a penalty for refusing so to do. With the view of establishing the plaintiff’s negligence which contributed, to the injury, as the defendant claimed, the defendant gave evidence establishing, or at least tending to establish, that the men in charge of the plaintiff’s Canal boat did not observe this ordinance. The plaintiff was permitted to prove, over the defendant’s exception, that it -was not the custom of canal boats to conform to the requirements of the ordinance by exhibiting the light required.
    “ The omission of other parties to observe this ordinance is no legal excuse for the plaintiff in omitting to comply with its requirements. If the plaintiff failed to keep the out-port light as required by the ordinance it tended to prove negligence on his part, and the receipt of the evidence objected to was practically a ruling by the court, and the jury must have so understood it, as excusing the plaintiff’s violation of the ordinance, if there was.in fact an omission to display the light required by the ordinance.”

      James M. Humphrey, for the appellant.

      Williams c& Potter, for the respondent.
   Opinion by

Barker, J.

Present — Smith, P. J., Barker, Bradley and Haight, JJ.

Judgment and order reversed and new trial ordered in Erie County Court, costs to abide event. -


author: Bradley, J.;

text:
    CALVIN AMADON, Appellant, v. HERMAN V. INGERSOLL, Respondent.
    JEhidenee— opinion of a witness, when it is admissible — the grounds of am objection to its competency must be specifically stated,.

    Appeal by tbe plaintiff from an order of tbe Cattaraugus Special Term denying a motion for a new trial made upon a case and exceptions.
    The plaintiff sustained an injury by the falling of a highway bridge in the town of Leon, county of Cattaraugus, which he alleged was occasioned by the negligence of the defendant, who was commissioner of highways of the town. The defendant had a verdict at the circuit.
    The defendant was a commissioner of highways of the town at the time of the accident. On 15th May, 1879, the plaintiff drove a team of four horses, drawing a wagon loaded with a steam boiler, weighing 6,000 pounds, on to the bridge in question, and some of the stringers supporting it gave .way and .the bridge fell, and the wagon and boiler went down with it. The plaintiff received some personal injury and the owner of the team, wagon and boiler was damaged somewhat in his property. . The latter assigned his claim to the plaintiff, who includedit with his own, for such personal injury, in the causes of action alleged in the complaint.
    The bridge had been erected several years before. It was a single span of about forty feet in length, supported by six stringers resting on abutments at each end, and extending across the stream, and plank were laid on and crosswise the stringers, making a bridge twelve feet wide; and, as an additional support, braces were erected on the two outer stringers, supported in and extending from near ends of them respectively, and coming together in the line of and a few feet above them. The evidence on the part of the plaintiff tended to prove that in September, 1878, the bridge had become weakened by reason of the braces getting loose and rotten, so that it would spring under heavy loads; that the defendant was then notified that the bridge was out of repair, and needed repair to render it safe for passage with teams; that the defendant then examined its condition, took up the plank, examined the stringers, concluded not to put in new stringers, and expressed the opinion that the old ones would last a while longer, but the defendant did put in new braces in me manner before' described, which came together on each side of and at the middle of- the bridge, over the outer stringers respectively and at an elevation of three feet, and through and from each junction of the braces he put and supported an iron rod, extending through the stringers beneath, and to the rod was attached, and supported by it, a needle beam, extending crosswise and beneath and in support of the stringers, giving additional strength and firmness to the bridge.
    The plaintiff also gave evidence tending to prove that some of the stringers were then impaired by a dry rot. On the part of the defendant evidence was given by him, and those with, him, when the bridge was examined and repaired (as before mentioned), tending to prove that "the stringers were examined and tested by cutting and boring into them; that while they were not entirely sound they were not rotten; that they were apparently sound; that some of them on top -where the plank rested, for an inch in depth, were “ a little dozy, powder posted, powder rot or dry rot,” but beyond that sound, and when struck into with an axe would split up.
    The plaintiff added evidence tending to prove that when the bridge broke down the stringers were decayed by a dry rot, except a little in the center that was sound (that they were beech timber, and the expense of putting in new ones would have been twelve dollars.
    The defendant’s counsel asked one witness who was present in September, 1878, and assisted the defendant in making the examination and reparation of the bridge, the question, “ Did you, from your examination of the bridge stringers, consider them sufficient ? ” And another witness also then there, and in like manner assisting, the question, “Did you consider the stringers at that time suitable and sound for that purpose?” And to the defendant he put the question, “ Did you consider these stringers sound and suitable for that bridge ? ”
    The plaintiff’s counsel objected to those questions respectively,without stating any ground of the objection.
    The objections were overruled by the court and exceptions severally taken, and the witnesses answered all of them in the affirmative.

      The eourt at General Term said: “ It must be assumed that the witnesses were qualified to.give their opinions if such evidence was competent. (Cushman v. Z7. S. Life Lns. Co., 70 N. Y., 73; Stevens v. Brennan, 79 id., 255.) The rule which excludes opinions of skilled persons is confined to matters of which the jury, on a statement of facts relating to the subject, are so advised as to be equally as competent as any witness to declare a conclusion; It is, therefore, where no skill peculiar to any class of persons is required in the determination of a matter of fact involved in a controversy that the testimony of witnesses is confined to a relation of facts, and is not permitted to announce any conclusion or opinion.
    “ The line between opinions permissible and not so, is not an arbitrary one, limited to any class of cases, but is based on the principle which distinguishes between questions that are and are not common to the understanding of all persons of ordinary intelligence or which may or may not become so by information of the facts upon which any particular conclusion of fact must be founded. (Clarh v. Bruce, 12 Hun, 274.)
    “ In this instance there was a bridge, of which timber stringers of certain size forty feet in length constituted a part, in the condition they were, supported by the braces, needle-beam and iron bolt or rod in the manner before mentioned. The plan of construction was involved in the consideration of the strength of the structure and its several parts, and in reference to the whole the question was one of judgment whether the bridge was suitable and sufficient for the purpose designed, or whether the stringers themselves in the structure were so. This would seem to require some calculation and the judgment of skilled persons; those wdiose knowledge was peculiar to that sort of erections made to bear weight. These six stringers occupied parallel lines, separated equal distances in a width of twelve feet, and the sufficiency of them depended upon their united power of resistance under the .various circumstances to which the pressure of wéight, by use of the bridge, might be ajiplied.
    “ The opinions of the witnesses in respect to the stringers, it will be assumed, had reference to them in their relation to, and connection with, the structure and its plan as a whole, and in view of their purpose in it. And it seems difficult to distinguish this testimony from that of skilled persons who, having inspected a work of this nature in its several parts, should be called upon to 'express their conclusion of its character and adaptability to the purpose of its construction. And, therefore, it seems to come within the rule which permits opinions of experts. (Moore v. Westervelt, 9 Bosw., 558; affirmed 27 N. Y., 234, 241; Meiners v. Steinway, 12 J. & S., 369 ; Bellinger v. IF. Y. C. B. B. Go., 23 N. Y., 42 ; Oonhoeton Stone B. v. B., N. Y. and E. B. B. Co., 3 Hun, 523; Spickerman v. Clark, 9 id., 133; Clark v. Bruce, 12 id., 274; Ferguson v. Hubbell, 26 id., 250; Curtis v. Cano, 26 N. Y., 426; Conrad v. Ithaca, 16 id., 173; Bairds. Daly, 68 id., 547; Transportation Line v. Hope, 95 H. S. [5 Otto], 297-298; Ward v. Kilpatrick, 85 N. Y., 413.)
    “ In Hover v. Barkhoof (44 N. Y., 113), the belief of one of the defendants that they had made use of all the means necessary to the safety of the bridge was excluded. That testimony offered, evidently was not treated as the judgment of an expert of the actual condition, strength or capacity of the structure, or any of its parts, but as his belief, merely, that the defendants had not neglected their duty and had relation to the purpose of the defendants. The question was Uegligenee or no negligence, and his belief had no •competent bearing on that fact. There was no question of good or bad faith involved in the case.

      “ In the case at bar the evidence having been received, questions put to the witnesses are entitled to the most favorable interpretation the language will fairly allow, in support of a legitimate purpose. It is difficult to see how the question of competency can be raised upon the exceptions taken to the admission of the testimony. The rule is general and very well settled that to support an exception to the reception of testimony a tenable ground of the objection must be specified in its support. (Walker v. Erie By. Co., 63 Barb., 261; Merritt v. Briggs, 57 N. Y., 651, 652; Adams v. People, 63 id., 621; Fountain v. Petiee, 38 id., 184, 186; In re Crosby v. Day, 81 id., 242; Ward v. Kilpatrick, 85 id., 414, 417; Daly v. Byrne, 77 id., 182.)
    “ The fact whether the stringers were suitable and sufficient for the purposes of the bridge was a material one, and the testimony offered and received must be deemed to be the opinion of the witnesses in that respect, which brings it within the rule requiring the point of incompetency of opinion to be specified to render an exception to the reception of evidence on that ground available on review. (See cases last above cited.)
    “In Ward v. Kil/pat/riolc (85 N. Y., Ill), an incompetent opinion of a witness was received against a general objection and exception. And the court, in holding that the exception was not available, say that if the objection had specified the ground {the difficulty might have been obviated. The form of the question could have been changed, or the party may have acquiesced in the incorrectness of the evidence and withdrawn the question entirely.’
    “The reason and propriety of the rule are obviously to avoid surprise and for the fair administration of justice, and the exception to it embraces those cases only where the objection cannot be obviated and the evidence offered is not in any aspect competent or material.” (Merritt v. Seaman, 6 N. Y., 168, 171 ; Porter v. Paries, 2 Hun, 651; Quvnby v. Strauss, 90 N. Y., 661.)

      Henderson & Wentworth, for the appellant.

      Allen & Thrasher, for the respondent.
   Opinion by

Bradley, J.;

Smith, P. J., and Barker, J., concurred ; Haight, J., not sitting.

Order affirmed.


text:
    WILLIS B. RICH, Respondent, v. ANDREW V. SMITH, Appellant.

      Wa/rranty on the sale of a horse — amount of damages recoverable for a b'eaeh thereof.

    Appeal from a judgment of the Monroe County Oourt, entered' upon the verdict of a jury.
    The plaintiff sued for $500 for money loaned, and the defendant recouped the damages sustained by him by reason of the breach of plaintiff’s warranty on the sale of a horse.
    The court at General Term, after considering other questions involved in the appeal, said: “ The defendant’s evidence tended to show that the mare which the plaintiff sold him was warranted by the plaintiff to be good, kind and gentle, suitable for family use, but that, in fact, she would run away, and on one occasion, when the defendant was driving her, she did run away, causing defendant’s buggy to collide with another with such force that the defendant was thrown out and injured, the buggy and harness were damaged, and the mare was hurt so that she had to be killed. The defendant offered to prove the amount of the injuries thus caused to his person, buggy and harness, but the proof was excluded. The judge charged the jury that the measure of the defendant’s damages was the difference between the value of the mare as she was and her value if she had been as warranted. The defendant excepted to the rulings above stated and now contends that he was also entitled to recover the damages which he offered to prove as above stated.
    “ The rule laid down by the judge is that which applies in the case of a general warranty of personal property sold. Where, however, the warranty is special, having reference to a particular purpose for which the property is to be used, out of the ordinary course, a different rule applies. In the latter class of cases the vendee is entitled to recover in case of a breach of the special warranty, such damages as either arise naturally, that is, in the usual ’ course of things, from the breach itself, or such as may reasonably be supposed to have been contemplated by the parties when making the contract, as the probable result of the breach. (Passing er v. Tho?'burn, 34 N. Y., 634, and cases there cited by Davies, C. J.) But where the warranty is general an accidental damage even • in the vendee’s own affairs is not regarded. As was said by Cowen, J., in H.a/rgous v. Ablon (5 Hill, 472), ‘ the search is for immediate * and necessary consequences.’
    “We regard the warranty in this case as a general warranty of the good qualities of the animal, and not as a special warranty for any particular purpose. She was asserted to be 1 good, gentle and kind,’ to the extent of being a good family horse. S'o far as her being otherwise depreciated, her value the defendant was entitled to recover, but the injuries resulting from his collision with another vehicle, while the mare was running away, instead of being the proximate and necessary consequences of a breach of the warranty, were remote and accidental. As well might the plaintiff be charged with the injuries to the colliding buggy, which the defendant testified were -paid for by him. (Blanchard v. EH, 21 Wend., 312; JBorgous v. Ablon, suprap S. C. affirmed, 3 Den., 106.)
    “ The proper rule of damages was adopted by the county judge, .and the judgment should be affirmed.”

      Romes Bros., for the appellant.

      J. & Q. Van Voorhis, for the respondent.
   Opinion by

Smith, P. J.;

Barker, Bradley and Corlett, JJ., -concurred.

Judgment affirmed.


text:
    ALFRED M. GAMMAN, Respondent, v. DEXTER BERRY, Appellant.

      Contempt — a/n order requiring a person to show cause why he should not be puntished, made by a county judge whose term expires before the return day, may be heard before his successor— Code of Civil Procedure, secs. 52, 2457, 2462.
    Appeal from an order made by the Hon. Harlo Hakes, county judge of Steuben county, adjudging the defendant guilty of contempt, in not appearing before a referee, pursuant to an order of the Hon. George H. MoMaster, county judge, made in proceedings supplementary to execution.
    George H. MoMaster, as county judge, made an order for the defendant to show cause why he should not be punished for his alleged misconduct, returnable before the county judge at the next ter.m of the Steuben County Court, in the village of Corning, February 18, 1881. After making the order and before the return day MoMaster’s term of office expired, and Hakes became his successor.
    The court at General Term said: “It is contended in the first place that Judge Hakes had no jurisdiction to entertain and continue the proceedings to punish for contempt upon the order to .show cause issued by Judge MoMaster.
    '“ Section 52 of the Code provides: ‘ In case of the death, sickness, resignation, removal from office, absence from the county, or •other disability of an officer before whom a special proceeding has -been instituted, where no express provision is made by law for the continuance thereof, it may be continued before the officer’s successor or any other officer residing in the same county before whom it might have been originally instituted,’ etc.
    “ Section 2457 of the Code provides for the punishment of a person who neglects to attend before the judge or referee, pursuant to an order in supplementary proceedings, and section 2462 provides that section 52, above quoted, ‘ applies to the special proceedings instituted as prescribed in this article.’
    “ It appears to us that these provisions of the Code are ample to authorize the continuance of the proceedings commenced before Judge MoMaster by his successor in office, Judge Hakes.”

      Charles JD. Baker, for the appellant.

      L. W. Wellington, for the respondent.
   Opinion by

Haight, J.;

Bradley, J., concurred; Smith, P. J., and Barker, J., not present.

Order affirmed, with ten dollars costs and disbursements


author: Hardin, J?. J.:

text:
    THOMAS W. EVELEIGH, Plaintiff, v. THE TOWN OF HOUNSFIELD, Defendant.

      Defective highway or bridge — in am action against a town to recover damages resulting therefrom, the possession of funds wherewith to repair it must be alleged — 1881, chap. 700.
    Where an action is brought against a town, under chapter 700 of 1881, to recover damages for injuries sustained by reason of defects in a highway and bridge therein, the complaint must allege that the town or its commissioners of highways had funds, or the means of obtaining funds, wherewith to repair the-bridge or highway alleged to be defective.

      Warren v. Qlemment (24 Hun, 472) distinguished.
    Motion by tbe plaintiff for a new trial on a case and exceptions, ordered to be heard in the first instance at the General Term, after the court had ordered the complaint to be dismissed.
    The plaintiff offered to prove all the allegations of the complaint. The court refused to allow him to do so, to which ruling the plaintiff excepted.
    The motion to dismiss the compiami was made upon the following-ground, viz.: “ Hpon the ground that it does not state facts sufficient to constitute a cause of action; upon the ground that the complaint contains no allegation that the highway commissioners of the town-had funds or had neglected to take any steps to procure them, or any facts showing negligence in that regard.”

      H. M. Wilber, for the motion

      Lansing <& Rogers, opposed.
   Hardin, J?. J.:

The plaintiff in his complaint alleged that he was the owner of1 a stallion of great value, and that on the 18th of July, 1882, while traveling upon a public highway, in the town of Hounsfield, without fault or negligence of the plaintiff, the horse was injured and disabled by falling through a defective bridge in the public highway in that town, and that the unsafe and defective condition of the highway and bridge was caused by the neglect of the said defendant, its commissioners of highways, officers and servants, of its and their duties.” It also alleged long before the said accident was caused, as aforesaid, the pathmaster of the beat upon which such bridge was, notified the said defendant’s commissioners of highways that said bridge was unsafe and unfit for the purposes for which it was used and built, and said defendant neglected and refused to repair said bridge until after the injury complained of herein.” And that the plaintiff sustained injuries by reason of the negligence of,the defendant in not Keeping said bridge and highway in proper condition for travel, as was its duty. No other material allegations are found in the complaint. We are called upon by the case before us, to consider whether or not the town is liable to an action upon the facts which we have quoted from the complaint.

In chapter tOO of the Laws of 1881 it was enacted, viz.: “ The several towns in this State shall be liable, to any person suffering the same, for all damages to person or property by reason of defective highways or bridges in such town in cases in which, the commissioner or commissioners of highways of said towns are now by lam liable therefor, instead of such commissioner or commissioners of highways? Before the passage of that statute it was well settled that it was the duty of commissioners of highways to repair defective highways and bridges “ after notice of their condition, with reasonable and ordinary degree of diligence, if they have sufficient funds in their hands, or authority to procure such funds, and neglect of this duty renders them liable to any person injured thereby.” (Hover v. Barkhoof, 44 N. Y., 113; Warren v. Clement, 24 Hun, 472; 2 R S. [7th ed.], § 1, p. 1212; Garlinghouse v. Jacobs, 29 N. Y., 297.)

It, was also well settled that in an action against the* commissioners of highways, for neglect of duty, that it was necessary to allege and prove the existence of funds, or other specific means provided by the statute to obtain them, as a condition precedent to the enforcement of any obligation on the part of the commissioners to repair. (People v. Adsit, 2 Hill, 619; Garlinghouse v. Jacobs, 29 N. Y., 297; Warren v. Clement, supra)

By the statute of 1881, already referred to, the towns were made liable, viz.: “ In cases in which the commissioner or commissioners of highways of said towns are now by law liable therefor, instead of such commissioner or commissioners of highways.” In adopting the language we have quoted from the statute we think it is reasonable to assume that the legislature did not intend to cast upon the towns any greater liability than under the settled law of the State was enforceable against commissioners' of highways We are, therefore, of the opinion that the complaint now before us was defective and failed to state a cause of action in that it did not aver that the town had funds or the means of obtaining -funds for the purpose of repairing the bridge or highway alleged to be defective.

We think the liability of the town lias not' been extended to cases in which the commissioner or commissioners were not liable prior to the passage of the statute of 1881. That statute was not remedial; it simply substituted the town as a party defendant in the same eases in which the commissioner or commissioners were liable prior to the passage of the statute. (Frasier v. The Town of Tompkins, 30 Hun, 168; Bussing v. Bushnell, 6 Hill, 382.)

The injuries received by the plaintiffs horse occurred on the 18th of July, 1882. The annual town meeting was on the second Monday of February previous. There is no averment that the bridge and highway were defective at the time the town meeting was held, or that it was in such a condition as to call upon the commissioner to avail himself of the power given by statute to raise the amount of $250 for the repair of roads and bridges of the town. The statute authorizes commissioners to apply in open town.meeting for a sum not exceeding $250, in addition to the sum allowed by law. (2 R. S. [7th ed.], 1216, 1217.)

We think the complaint should have contained a positive allegation that the defendant had funds or means of acquiring the same, or that its commissioners of highways had funds or means of acquiring the same. Ib will not do to presume that a public officer has neglected his duty. (Mandeville v. Reynolds, 68 N. Y., 528.) A commissioner of highways has no power to pledge the credit of the town for the purpose of repairing bridges or highways. (People ex rel. Everett v. Supervisors, 93 N. Y., 397.)

The views already expressed do not conflict with the rule laid down in Warren v. Clement (24 Hun, 472), for in that case it appeared that the commissioner of highways had actual notice of the condition of the bridge for more than two years before the injury complained of happened, and it was there held that he was negligent in not taking the needful steps to provide himself with funds to repair.

We think the plaintiff’s complaint was properly dismissed, and we must therefore deny the motion for a new trial and order judgment for the defendant.

Boardman and Follett, JJ., concurred.

Motion denied and judgment ordered for the defendant, with costs.


author: Hardin, P. J.:

text:
    CHARLES G. ALVORD, as Administrator, etc., of FRANCIS ALVORD, Deceased, Appellant, v. THE SYRACUSE SAVINGS BANK and CHARLES W. SNOW, Respondents, Impleaded, JAMES J. BELDEN and Others, and PETER SMITH, Railroad Commissioner of the Town of Salina and Others.

      Taxpayer — he cannot sue a bona fide holder for mtue of town bonds, to hme them canceled— Oode of Oiml Procedure, sea. 1925.
    Section 1925 of the Oode of Civil Procedure, authorizing an action to be brought by a taxpayer against the public officers of a county, etc., or any other person acting in its behalf, to prevent waste of or injury to the estate or other property of the municipality, does not authorize an action by a taxpayer against a bona fide holder, for value, of town bonds issued under an act of the legislature,, in which it is sought to have the bonds so issued canceled and 'declared void.

      Appeal by tbe plaintiffs from a judgment in Onondaga county dismissing the plaintiffs’ complaint, entered upon tbe trial of tbe action at a Special Term in that county. Tbe action was originally brought by Francis Alvord and Leman B. Pitcher, both of whom died pending this appeal. Tbe appellant above named was substituted in place of Francis Alvord, deceased.
    Tbe appeal was “ from so much of tbe judgment as was in favor of tbe Syracuse Savings Bank and Charles W. Snow.” Tbe bank owned $8,000 of certain bonds issued by tbe town of Salina, and Snow owned $20,500. Tbe trial court found that they were, each of theirq Iona fide holders and' owners of their bonds, respectively. Tbe bonds were all issued as early as December, 1870, and interest was paid up to and including August 1, 1880. Peter Smith, tbe railroad commissioner, did not appear in tbe action, and tbe appeal does not affect tbe judgment so far as it relates to him. Tbe plaintiffs’ action was in tbe nature of a suit in equity to have canceled $120,000 of bonds issued by tbe town of Salina to tbe Syracuse Northern Railroad Company, in exchange for its stock, under chapter 571 of tbe Laws of 1868.
    Tbe trial court held that the right of action was barred by lapse •of time and dismissed tbe bill as to all tbe defendants.

      Cornelius E. Stephens, for tbe appellant.

      George E. Comstock, for tbe respondent.
   Hardin, P. J.:

Prior to the passage of chapter 161 of the Laws of 1872, the plaintiffs, taxpayers of the town of Salina, could not have main-. tained this or any similar action. (Roosevelt v. Draper, 23 N. Y., 318; Phelps v. Watertown, 61 Barb., 121; Tifft v. The City of Buffalo, 65 id., 461; Cumines v. Supervisors of Jefferson Co., 63 id., 287.) That statute was designed to put a remedy in the bands of taxpayers not existing prior, thereto and to give that remedy against public officers and agents ” as it is phrased in the title of the act. (See Laws of 1872, chap. 161.) the statute received judicial construction in Ayers v. Lawrence (59 N. Y., 193), where it was said an action might be sustained against the railroad company commissioners to restrain the contemplated and threatened unauthorized issuing of town bonds by such commissioners. That case does not consider any question relating to an action by a taxpayer against a bond holder whose bond, when held in good faith, is declared valid. (Sec. 7, Act of 1868, chap. 571.)

In Metzger v. Attica and A. Railroad Company (79 N. Y., 171), it was held that an equitable action is maintainable to restrain “ the negotiation or payment of bonds,” and to restrain a town collector from paying over moneys to satisfy the coupons. That case having been brought against the commissioners and town collector differs from the appeal now before us. The substance of the Act of 1872 is found in section 1925 of the Code of Civil Procedure. Neither the statute of 1872, nor section 1925, authorize a taxpayer of a municipality to maintain an action against a bond holder who is a mere private individual doing or threatening no special injury or damage to the municipality in which the taxpayer is interested. Therefore the appeal now before us discloses an attempt to have this court declare invalid, bonds held in good faith, bought in good faith by two defendants, at the instance of a taxpayer who has not made a town officer or agent a party to the appeal. We are of the opinion that the appellant has no standing in court which entitles him to have the question, raised upon the merits of his.bill as between him and the town officer or agent, considered.

The plaintiffs are not in a situation to assert the rights of the town in the premises. If the action were by the town to have surrendered the bonds issued, then the right to maintain the action would not rest upon the statute or Code already referred to. (Town of Venice v. Breed, 65 Barb., 597; S. C., 1 T. & C., 130.)

As the plaintiffs, the appellants, are not before us with a case upon which they are entitled to maintain themselves under the Code or statute against the bond holders, and this appeal relates only to the right of the respondent to have the judgment below maintained, we think it our duty to affirm its judgment so far as the same is appealed from.

Follett and Yann, JJ., concurred.

Judgment affirmed, with costs.


text:
    ALBERT H. FORD, Respondent, v. GEORGE W. HEAD and DWIGHT D. WINSTON, Appellants.

      Bid of lading — construction of a clause requiring the consignees to pay the carrier for a/ny excess in the cargo.

    The plaintiff delivered to the defendants, at Utica, a cargo of corn which he had carried from Buffalo under a bill of lading which provided, that in consideration of the rate of freight therein named, and of the fact that the carrier had supervised the weighing of the cargo on board, it was agreed between the carrier and shipper and assigns “that the bill of lading shall be conclusive as between shippers, and assigns and carriers, as to the quantity or cargo received on board and to be delivered at port of destination, and that they will deliver the full quantity herein named. All damage caused by the boat or carrier, or deficiency in the cargo from quantity as herein specified, to be paid for by the carrier and deducted from the freight, and any excess in the cargo to be paid for to the carrier by the consignees.” When the cargo was discharged an excess of fifty-five bushels was found. The plaintiff claimed that under the bill of lading this belonged to him and that the defendants were bound to pay him the value thereof.

      Held, that his claim could not be sustained; that the clause providing that any excess in the cargo was to be paid for to the carrier by the consignee only required the latter to pay the freight on such excess at the stipulated rate. ,
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    Action was brought to recover freight and for an alleged surplus of fifty-five bushels of corn upon a cargo thereof carried by the plaintiff on a canal boat from Buffalo to the defendants at Utica, under a bill of lading dated November 17, 1880.

      S. J. Barrows, for the appellants.

      E. L. Stevens, for the respondent.
   Hardin, P. J.:

Two questions were litigated at the circuit; the first relates to the construction to be given to the bill of lading, and the second as to the sufficiency of a- tender of $125.08, made by the defendants by their check, dated May 25,1881. We will consider the one relating to the bill of lading first. That instrument must be construed, in order to meet the points made at the circuit and the arguments addressed to us by the counsel 'of the respective parties. We will quote from the bill of lading, viz.:

“And it is agreed between the carriers and shippers and assigns that in consideration, especially of the rate of freight herein named, the said carriers having supervised the weighing of "said cargo on board, hereby agree that this bill of lading shall be conclusive, as between shippers and assigns and carriers, as to the quantity or cargo received on board, cmd to be delivered at port of destination, and that they will deliver the full quantity hereon named. All damage caused by the boat or carrier, or deficiency in the cargo from quantity as herein specified, to be paid for by the carrier and deducted from the freight, and emy excess in the cargo to be paid ' for to the ca/rrier by the consignees.”

When the cargo was discharged it was weighed and found, as the ■ verdict indicated, to contain 8,455 bushels, an excess of fifty-five bushels of corn over what the bill of lading called for. Plaintiff’s contention is that he was entitled to collect pay for the value of the fifty-five bushels in excess of the quantity stipulated in the bill of lading. Defendants’ contention is that the bill of lading is to control the quantity as stated, and that they were only required.to pay-freight on 8,406 bushels, and were not bound to pay anything by reason of the excess.

It was said in Meyer v. Peck (28 N. Y., 590), that an ordinary bill of lading “ is not conclusive as between the original parties, either as to the shipment of the goods named in it or as to the quantity said to have been received, and any mistake or fraud in the shipment of the goods may be shown.” That case was followed in Abbe v. Eaton (51 N. Y., 410). The language of the bill of lading quoted by us in this case is unlike that found in Meyer v. Peck (supra.)

In Abbe v. Eaton (supra), the bill of lading contained a provision similar to that found in the bill of lading in this case, and upon it the court commented as follows: “It is claimed on the part of the appellant that his view of this claiise in the bill of lading is strengthened by the other clause which provides that any excess in the cargo (is) to be paid for to the carrier by the consignees.’ 1 do not perceive the precise purpose of this clause, unless it was to provide that the carrier should receime freight upon any additional quantity above what is specified in the bill of lading. If it was intended by the parties that the carrier should have as his own the value of any corn over and above the amount specified, whether there was any mistake in the amount or not, the language expressing such an intent would have to be very strong and explicit. To hold under such a bill of lading that if there happened by mistake, in weighing at Buffalo, to be 500 bushels more than was specified, the carrier could claim this quantity and the shipper would be precluded from showing any mistake, would violate principles of law and equity.”

While it may be said that the case from which we have just quoted is not decisive of the point here made, we regard the language used as being suggestive of the construction to be given to the bill of lading before us.

We are of the opinion that all the language of the stipulations considered together, and due effect being given to them and to the object the parties had in view in their use, requires us to hold that the title to the excess of corn over the specified bushels was not transferred to the carrier and he authorized to sell it as his own to the consignees, and upon such transfer to compel the consignees to pay its value. We therefore are of the opinion that the trial judge fell into an error in ruling to that effect. We think all that the carrier can justly claim under the language of the bill of lading is compensation for the freight of the additional bushels canned by him. He stipulated he had received 8,400 bushels, and as to his obligation to deliver that quantity the language of the bill of lading was conclusive, in the absence of clear mistake or fraud; it doubtless was prima facie evidence of the true quantity received. (Ellis v. Willard, 5 Seld., 529; Meyer v. Peck, 28 N. Y., 596.). The payments which were produced, provided to be made by the consignee to the carrier, were for freight. When the surplus of bushels was ascertained the excess in the cargo upon which freight was to be paid was apparent, and the amount of freight, at the price of four and one-half cents, as stipulated, per bushel, was “to be paid for to the carrier by the consignee.”

It follows, therefore, that the circuit judge erroneously ruled “ that when the plaintiff delivered 8,400 bushels he satisfied his contract and the balance belonged to him.” What was the effect of this erroneous ruling ? The parties were led to give evidence j>ro and con, as to the excess. The plaintiff claimed there was fifty-five bushels and the defendant disputed it and insisted there was no excess or, if any, not more than twenty-three bushels. The disputed questions in regard thereto were submitted to the jury, and. from their verdict it is apparent they found the excess to be fifty-five bushels.. Their verdict was for freight, “ $125.08, and the value of fifty-five bushels of corn at sixty cents a bushel and interest on both sums from the 25th of May, 1881,” in all, $166.75. (Defendant’s brief.) Whereas, according to our views, already expressed, the verdict should only have been for $125.08 and interest balance, and four and one-half cents for freight on fifty-five bushels, viz., two dollars and forty-seven cents, and interest from May 25, 1881, or, in other words, for balance of unpaid freight, to wit, $127.55, and interest from May 25, 1881. If the views already expressed are correct, it is not important to consider the questions made at the trial of the tender and its payment into court, as it was not for an amount equal to the right of plaintiff’s recovery. We have looked at the rulings made in respect to the admission and rejection of evidence upon the trial, and have found no error calling upon us to interfere with the verdict. We think there was evidence before the jury sufficient to warrant their finding of fifty-five bushels of excess in cargo ” over 8,400 bushels named in the bill of lading ?

We have, therefore, come to the conclusion to reverse the judgment and order unless the plaintiff shall stipulate to reduce the verdict to $127.55 and interest thereon from May 25, 1881, in which case the judgment and order will be affirmed without costs of this appeal to either party.

Judgment and order reversed and a new trial ordered, with costs to abide the event, unless plaintiff stipulates to reduce the verdict and judgment to $127.55 and interest thereon from May 25, 1881, in which case the judgment as so modified is affirmed, without costs of this appeal to either party.

Meewin, J., concurred; Follett, J., not sitting.

So ordered.


text:
    CHARLES M. GOFF, as Receiver, etc., of JOHN CRAVEN, Respondent, v. CATHARINE CRAVEN, Appellant.

      Trover — a judgment and am imprisonment thereunder without satisfaction does not vest title to property in a wrong doer.

    The plaintiff, who had been appointed a receiver of one John Craven in supplementary proceedings, brought an action of trover against him to recover a watch chain which he had refused to deliver to the plaintiff. A judgment was recovered by the plaintiff in that action on June twenty-fifth; and on July first Craven was arrested on an execution issued thereon and committed to jail, where he remained for thirty days when he was discharged. On July first Craven delivered the chain for safe keeping to the defendant, his mother, against whom, upon her refusal to deliver it to him, this action of replevin was brought by the receiver. ,

      Held, that he was entitled to recover; that the recovery of the judgment in the action of trover brought against the son, and his imprisonment thereunder without actual payment or satisfaction, were not sufficient to change the title of the chain from the plaintiff to him, and that as the son had no title thereto he could confer none upon the defendant.
    Appeal from a judgment of tbe Lewis County'Court, affirming a justice’s judgment for seventy-five dollars damages and costs.
    The action was brought to recover a gold watch chain alleged to have been converted by the defendant. The plaintiff was appointed a receiver of John Craven, a son of defendant, in supplementary proceedings instituted against him. By virtue of such appointment he became vested with the title to the said property and demanded the same of the said Craven who refused to deliver it up, and for such refusal the plaintiff as receiver recovered a judgment against John Craven for the value of the property. On that judgment an execution was issued and John Craven was arrested and lodged in the Lewis county jail on the 1st day of J uly, 1880, and there remained for thirty days when he was discharged under the statute, but without at any time paying the judgment or the value of the property, and nothing was actually collected on the judgment. On the first day of July John Craven delivered the property to his mother, the defendant and appellant, for safe keeping. On the third of July the plaintiff as receiver, duly demanded the property of defendant, but she refused to deliver the same to the plaintiff as receiver, but instead delivered it to her son John Craven. Thereupon this action was brought against her and a recovery had thereon after the son’s discharge from such imprisonment. The defendant, in her answer, claimed that what she did as to the property was done at the direction of John Craven, who owned it, and that she held it as his bailee.

      Walter Ballou, for the appellant.

      J. A. Wormouth, for the respondent.
   Hardin, P. J.:

Upon the appointment and qualification of .the plaintiff as receiver of John Craven he became vested with the title to the property in question, and the right to take the same into his possession to sell the same for the purpose of satisfying the debt of John Craven. Therefore the demand and refusal by John Craven gave the plaintiff, as such receiver a good cause of action against John Craven. Had he actually paid that judgment the title would, eo mstcmti, have passed from the receiver to John Craven, and he and any bailee of his would have been entitled to have and hold the property. Until such actual payment of the judgment so recovered against John Craven the title to the property remained in the plaintiff as receiver, and he was entitled to have the possession of the property for the purpose of realizing out of it the debt of Craven, the judgment debtor, and the defendant in the judgment in trover. (Ball v. Liney, 48 N. Y., 6; Thurst v. West, 31 id., 210; Brinsmead v. Harrison, L. R., 6 C. P., 584; affirmed, 7 id., 547; Freeman on Judgments, § 257.)

Appellant’s learned counsel insists that the demand and refusal, on the third day of July, of the property from the defendant here was not good, because her son was then in prison. He cites in support of his position Bank of Beloit, v. Beale (34 N. Y., 473). That was the case of a vendor who had been defrauded in the sale of his goods, and who had procured a judgment against the vendee upon the contraot of sale, after being fully apprised of the fraud, and it was held that his election was determined and that he could not follow the goods, or the proceeds thereof, into the hands of third persons, on the ground of fraud. That case differs from the one before us, as here no contract of sale has been affirmed. He also cites Koenig v. Steckel (58 N. Y., 475), where it was held that while an imprisonment continues no action can be maintained by the judgment creditor against one. standing as surety for the debtor, or to enforce collateral securities held for the payment of the judgment. That did not involve the title to personal property, and presented a different question from the one before us. "While a debtor is imprisoned he or his sureties may not be subjected to additional actions. That case is consistent with Sunderland v. Loder (5 Wend., 58), followed in Wakeman v. Lyon (9 Wend., 241), where it was held that an action on a bond collateral to a judgment on which a debtor was imprisoned could not be maintained while the imprisonment continued. In the case in hand it would be absurd to say the property, the title to which was in the plaintiff, was held as collateral to the judgment against John Craven. He had committed a wrong, and for that a money judgment had been recovered, and until he actually satisfied that judgment no good reason can be given for saying that the title passed from'the plaintiff to the wrong-doer. He therefore had not acquired title to the property when he put it in the custody of his mother, the defendant here.

Before title passes by operation of law upon the recovery of a judgment in trover there should be satisfaction. Such was assumed to be the rule by Johnson, J., in Thurst v. West (31 N. Y., 215). He there cites approvingly in support of the doctrine Osterhout v. Roberts (8 Cow., 43). Chapman v. Hatt (11 Wend., 41) did not involve the point presented in the case beíoré us.

In Osterhout v. Roberts (supra) it was said by Woodworth, J.: I think actual satisfaction is necessary to change the' property. Here there was a failure of satisfaction; for it is manifest the defendant in the former suit never paid the recovery. His imprisonment was no compensation, but the means resorted to in order to compel it.” Cohn v. Goldman (43 N. Y. Supr. Ct. [11 J. & S.], 446) contains an approval of the case of Osterhout v. Roberts (supra). The case was, however, reversed upon another point in 76 blew York, 284. Sheldon v. Kibbe (3 Conn., 214) seems to approve the doctrine of Osterhout v. Roberts, and in Lovejoy v. Murray (3 Wall., 15) Miller, J., apparently reaffirms the doctrine of Osterhout v. Roberts (supra), and cites other cases to the same effect. We therefore follow that case and approve of the reasoning of the county judge in his opinion, and approve of the conclusion reached by him, viz., that the imprisonment, without actual payment or satisfaction, was not sufficient to work a change of title from the plaintiff to John Craven, the wrong-doer. As he had no title to the property he could confer none upon the defendant, and when the plaintiff demanded possession of the property the defendant was without' any title or right of possession and should have delivered it to the plaintiff. Because she refused she committed a wrong, a conversion of the property, and the justice properly rendered judgment against her, and the County Court was right in affirming the same

The judgment should be affirmed, with costs.

Follett and Merwin, JJ., concurred.

Judgment of Lewis County Court affirmed, with costs.


text:
    LOUIS BAJUS, Respondent, v. THE SYRACUSE, BINGHAMTON AND NEW YORK RAILROAD COMPANY, Appellant.

      Negligence — remote and proximate ca/use — when the jury should be allowed to say whether or not the negligent act of the defendant caused the accident.

    An employee of the defendant while endeavoring to couple two cars caught the toe of his right foot in a tie, and a moment afterwards the foot was caught by the brake-beam of the car behind and held so tight that he could not extricate it. He immediately signaled the engineer to stop the engine, and the engineer attempted to do so but did not succeed until after the wheel of the car had run over the plaintiff’s knee and so injured his leg as to render its amputation necessary.
    Upon the trial of an action, brought by him to recover damages for the injuries he had sustained, evidence was given tending to show that the engine was out of repair and did not yield to the efforts of the engineer to stop it as it would have done had it been in good condition, and that this fact was known to the defendant.

      Held, that it was properly left to the jury to say .whether the accident of catch, ing his toe in the tie, or the defect in the engine, was the.cause of the plaintiff’s injuries, and that a verdict in his favor would not be disturbed. /
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury for <$7,000, rendered at the Onondaga County Circuit, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      Louis Mm’shall, for the appellant,

      Goodell <& Nottingham, for the respondent.
   Hardin, P. J.:

On the '5th of February, 1877, the plaintiff was engaged as a •servant of defendant in an effort to uncouple cars, and while between two cars he was delayed by finding the pin, a square one in a round hole, unyielding to his efforts, and while making such efforts the toe of his right foot caught in a tie and in a moment after the right foot was caught under the brake-beam of the car behind him and it was held so tightly that he was unable' to extricate it. Plaintiff immediately gave a signal of distress to the engineer to stop the engine and the engineer attempted at once to do so. Evidence was given from which the jury was warranted in finding that the engine was out of repair and did not yield to the efforts of the engineer to stop it, and that the motion continued until the plaintiff’s foot was caught in a frog by the wheel of the car which ran upon his right knee and crushed his leg. His leg was taken off just about four inches below the hip joint, and for that injury he was awarded a verdict of $7,000. Shall it stand ?

We think the evidence required the submission of the question, of whether the plaintiff was guilty of contributory negligence or not, to the jury. (Fallon v. Central Park, etc., R. R. Co., 64 N. Y., 13; Hawley v. Northern C. R. R., 17 Hun, 115: S. C., 82 N. Y., 370; Smedis v. The Brooklyn and Rockaway Beach R. R. Co., 88 id., 13.)

Whether the engine was defective or not was disputed at the trial and much evidence taken upon the question, and we think it ample to sustain a finding that the engine was in such an imperfect condition that the steam could not be controlled by the engineer and the engine made to work like a perfect one, or like one in a suitable state of repair, for the use of employees of the company. The evidence warranted also a finding that the defendant well knew of the defects.

The evidence fully justified the jury in finding that the defendant knew that the engine was defective and that the plaintiff’s superior, some two or three weeks before the injury, had promised to furnish another engine to do the work at the yard where plaintiff was stationed. Plaintiff may have relied upon that promise when ■continuing in the use of the defective one. At all events, the jury had a right to take this promise into consideration when considering what effect should be given to any knowledge which they should find the plaintiff had of the defects of the engine at the time of the injury.

We come now to consider the question as to what was the direct or proximate cause of plaintiff’s injury. Was it the defective engine or was it the catching of his foot by the brake shoe? We might dispose of this question by saying that the Circuit Court properly left that question to the jury as one of fact, and that the finding ought to be accepted, as evidence was given from which such a finding could properly be made. (Pittsburgh, C. and St. L. R. Co., v. Staley, 30 Alb. Law Jour., 110.) When this case was before us upon a former appeal (16 N. Y. Week. Dig., 109) we held, in an opinion delivered by Barker, J., that no negligence was attributable to the defendant from the fact that the plaintiff caught his foot, and the trial judge followed that view of the case in the course of the trial now here for review. It was left to the jury to say whether the plaintiff’s injury came by reason of the ■defect, or whether the “particular respect in which it was out of repair caused the accident in question ; ” to say, in short, whether ‘but for these defects the plaintiff would have escaped from the ■dilemma in which he was placed, uninjured. We think the submission was proper and the finding proper. The dilemma in which the plaintiff was placed came about while he was in the line of his duty. ' He was doing his master’s work and the exigency arose, one in which he was gz-eatly involved, and when it was to him of vast importance that the defendant should have suitable machinery and appliances in the hands of defendant’s servants. The failure of the defendant in that regard, the jury say, as we think justly, was the cause of plaintiff’s great loss.

Lowery v. Western Union Telegraph Company (60 N. Y., 198) is dted by appellant in support of the theory that the defects of the engine were not direct or proximate causes of the injuries complained of. We think it does not aid the argument. That was a case where a mistaken telegram caused $5,000 instead of $500 to be delivered by plaintiff, and the court say that the embezzlement of the money was not the natural and proximate result of the mistake. Nor does Crain v. Petrie (6 Hill, 522), 'aid the appellant. That was an action on the case for deceit in the sale of sheep to- be' sold in a market of meat, and the court laid down a rule as to special damages saying they must appear to be “the legal and natural consequences arising from the tort, and not from the wrongful act of a third party remotely induced thereby.” The negligence here was in not having suitable machinery, and because of the defect came the injury. We think the case before us falls within the principle asserted in Cone v. Delaware, Lackawanna and Western Railroad (81 N. Y., 206). The case before us is unlike De Forest v. Jewitt (88 N. Y., 264), as there the defects in the yard were well' known to the injured party, and he voluntarily undertook to couple cars when the danger “must have been apparent and obvious to him.” While in the case in hand the defendant had induced the plaintiff to continue in the use of the engine by the assurance that it should shortly be replaced with another one more suitable for the service.

In the course of the trial the court allowed evidence of the condition of the engine before and about the time of the injury, with a view of enabling the jury to say whether it was out of repair and unsuitable at the time of the injury. Such evidence was pertinent and competent. It was not error to exclude evidence of the subsequent condition of the engine for years after; even that offered to show the condition in 1883, some six years after the accident. We have looked at the other rulings made and to the -charge as given and the refusals, and do not find any exception which presents an error. We therefore accept the verdict and affirm the judgment.

Follett and Merwin, JJ., concurred.

Judgment and order affirmed.


author: Follett, J.:

text:
    HARRIET E. STEVENSON, Appellant, v. WILLIAM STEVENSON, Respondent.

      Judgment for divorce — a provision made therein for the wife’s support is liable to be seized by her creditors.

    In 1855 the plaintiff recovered a judgment for a limited divorce against the defendant her husband, which required him to pay to her, for her support and maintenance during life, the sum of fifty dollars on each fifth day of January and July, and which further provided that the plaintiff should have execution therefor from time to time, as often as the said payments became due and remained unpaid, as well as her remedy by attachment for any disobedience of the judgment. In 1888 a receiver was appointed in proceedings supplementary to execution, instituted upon judgments recovered against the plaintiff in 1880.

      Meld, that the receiver became vested upon his appointment with the right to receive the payments to fall due in the future under the terms' of the judgment of divorce, and that upon paying the same to him the defendant was discharged from all obligations to pay such amounts to the plaintiff.
    Appeal from an order made at a Special Term, upon tbe bearing of an application to set aside two ■ executions issued against tbe defendant.
    September 13, 1855, tbe -plaintiff recovered a judgment against tbe defendant separating tbe parties to tbe action “ from bed and board forever,” and adjudging tbat tbe defendant should pay to tbe plaintiff, for “ ber support and maintenance during ber life,” fifty dollars on each fifth day of January and July, and tbat tbe plaintiff have “ execution from time to time as often as said semiannual payments shall become due and remain unpaid, as well as tbe remedy by attachment for any disobedience of this judgment.” Tbe defendant paid without process tbe sums payable until July 5, 1883, when be paid the plaintiff but twenty dollars of tbe sum then due.
    July 16, 1880, one Clark recovered against Mrs. Stevenson two judgments, one for $234.98 and tbe other for $364.71. Executions were duly issued upon said judgments, and returned wholly unsatisfied. In September, 1883, proceedings supplementary to execution were duly instituted against Mrs. Stevenson on tbe judgment for $234.98, and the defendant was duly ordered to appear and be examined, pursuant to section 2441 of the Code of Civil Procedure. Upon the examination it appeared that he owed Mrs. Stevenson thirty dollars, part of the fifty dollars due July 5, 1883. October 24,1883, an order was made, pursuant to section 2446 of the Code of Civil Procedure, permitting the defendant to pay to the sheriff said thirty dollars, in discharge of such indebtedness, which was paid October 27, 1883. November 5,1883, a receiver of all the property and equitable interests of Mrs. Stevenson was duly appointed, who duly qualified and entered upon the discharge of his duties. December 10, 1883, the sheriff, pursuant to section 2449 of. the Code of Civil Procedure, was directed to pay said thirty dollars to the receiver, which was done. In December, 1883, proceedings supplementary to execution were instituted on the judgment for $364.71, and the receivership was extended to said judgment. January 10,1884, the defendant paid to the receiver the fifty dollars due January 5,1884, under the judgment in favor of Mrs. Stevenson. January 10,1884, two executions were issued in favor of Mrs. Stevenson against her husband; one directing the sheriff to collect thirty dollars, and interest from July 5,1883, and the other fifty dollars, and interest from January 5, 1884. The husband moved to set aside the executions on the following grounds: 1. That more than five years had elapsed since the entry of the final judgment upon which the executions were issued, and that leave had not been granted for their issuance. 2. That nothing was due upon the judgment.
    The Special Term set aside the execution for the collection of fifty dollars, and refused to set aside the one for thirty dollars. Mrs. Stevenson appealed from the part of the order setting aside the execution for fifty dollars. The defendant Stevenson did not appeal.

      John Lomsvng, for the appellant.

      George F. Hooleer, for the respondent.
   Follett, J.:

At common law (since the statute of 13 Edward I, permitting lands to be taken on execution) all of a debtor’s property, except necessary wearing apparel, might be taken to pay the claims of creditors. So might all rights of action arising from contract, and abo judgments recovered for the wrongs of others.

The exceptions to this general rule exist solely by virtue of the statutes of exemptions, and no statute has been cited exempting alimony or the separate maintenance of a married woman. It has been held that the separate maintenance of a married woman secured by her husband, they living apart, may be reached by a bill in equity by the creditors of the wife. (Kenge v. Delavall, 1 Ver., 326; Lillia v. Airey, 1 Ves., Jr., 277.) In Ex parte Bremner (L. R., 1 P. & D., 254) it was held that an attorney’s lien attached to alimony. It is difficult to see why the creditors have not the same right to pursue a separate maintenance secured by judgment that they have to pursue one secured by deed No case has been cited or found in which this precise question has been determined, but remarks of judges in the reports may be found indicating that alimony and separate maintenance stand on the same footing.

In Hunt v. De Blaquiere (5 Bing., 560) Park, J., says: “No distinction can be drawn between maintenance under a separation deed and maintenance by virtue of a decree for alimony.”

In Burr v. Burr (7 Hill, 213) Nelson, Ch. J., says : “ The same power that can vest her with an absolute separate interest in a portion of the husband’s estate, can enable her to dispose of it as she may think proper.”

At the time the judgment in this case was entered and at the time the proceedings were had, the statute gave married women the absolute control of their separate estates and rendered them liable for their debts. After judgment awarding alimony the plaintiff acquires a vested right'to the sum which is not divested by her remarriage. (Shepherd v. Shepherd, 1 Hun, 240; affirmed 58 N. Y., 644; Park v. Park, 18 Hun, 466; affirmed 80 N. Y., 156.)

The only statutes under which it is claimed that the sums falling due under this judgment are exempt from the claims of creditors are sections 1879 and 2463, Code' Civil Procedure, which exempt from the reach of creditors, by bill or by supplementary proceedings, “ any money, thing in action, dr other property held in trust for a judgment debtor, where the trust has been created by, or the fund so held in trust has proceeded from a person other than the judgment debtor.” The trusts above referred to are the express trusts authorized by the statutes. No property has been set apart by a donor for a particular purpose, no property had by a trustee from which the annual payments are derived. A legal estate is not vested in one and an equitable estate in another, and no confidence is, or has been, reposed by any one in another.

The judgment and the relation of the parties to it, and to each other, are insufficient to 'create the semblance of an express trust. This judgment, by the law in force when it was entered, was enforceable by execution. (2 R. S., 183, § 104; Lansing v. Lansing, 4 Lans., 377; Miller v. Miller, 7 Hun, 208.)

A judgment directing the payment of a sum of money is-assignable. (Code Civ. Pro., §§ 1910, 1912.)

It might often prove a great hardship should a divorced wife be unable to procure credit on the strength of her judgment for alimony, and quite as great a hardship to the creditor, who, having advanced money upon the faith of the judgment, should be unable to enforce his demand. The judgment is a charge, a legal lien, enforceable by execution, as the plaintiff sought to enforce it, ánd which, by the way, is an unusual remedy for the enforcement of a trust.

While it may be that the separate maintenance of a wife (living apart from her husband); secured by deed through a trustee, is exempt under the sections of the Code above quoted (thus changing the-rule which existed before those sections), still those sections are not broad enough to exempt alimony in which she alone is interested, and arising from a judgment. The fifty dollars due January 5, 1884, was a debt. (Howard v. Howard, 15 Mass., 196.) It was but an incident resulting from the judgment, and is no more exempt as property acquired after the entry of the order than rent falling due on a lease for the life of, and held by, the debtor. It follows .that the receiver acquired title to these sums, and the payment of them by the defendant to the receiver discharged his •liability, and the execution was properly set aside.

The order is affirmed, with costs and disbursements.

Hardin, P. J., concurred; Merwin, J., not voting.

Order affirmed, with ten dollars costs and disbursements.


author: Merwin, J.: Follett, J.:

text:
    HERMAN REIS, Sr., and Others, Respondents, v. WILLIAM ROHDE and Others, Appellants.

      Conflicting claims to the office of trustee of a religious corporation — when those in possession of corporate property may hare simal claimants s'estrained fs'om disturbing theyr possession.

    Although the title of rival claimants to the office of trustee of a religious corporation cannot be determined in an equitable action brought by one claimant, or set of claimants, against another claimant, or set of claimants, yet an equitable action may be brought by persons who claim to be trustees of the corporation, and who are recognized as such by the pastor and the religious organization of the corporation, to restrain persons claiming to have been elected trustees from forcibly divesting the plaintiffs of their possession of the property and records of the corporation, and from interfering with them while acting as trustees, and also restraining the defendants from acting as trustees.
    Appeal from an order of the Onondaga Special Term denying a motion to vacate an injunction which restrained the'defendants, until the further order of the court, from in any way interfering with the plaintiffs in the use, enjoyment and possession of a church edifice belonging to a religious corporation, or interfering with the individual plaintiffs in acting as trustees thereof, and also restraining defendants from acting as trustees..
    The action was brought by a religious corporation, and four persons claiming to be trustees of it, against five other persons who claimed to have been duly elected to that office.

      Goodelle & Nottingham, for the appellants.

      Louis Marshall, for the respondents. ■
   Merwin, J.:

The number of the trustees of the corporation plaintiff was seven. Prior to December 18, 1883, the offices of four of them had been judicially declared vacant. The office of one more expired January 1,1881. Eor the purpose of filling those vacancies existing, and to exist, an election was in proper form called for December 18, 1883. Two elders were chosen as presiding officers, and they under the statute were the persons to .certify as to the result of the election. The defendants claim they were elected and one of the presiding officers so certifies. The plaintiffs Reis, Korb, Wiegand and -Schwartz claim that they and one Oswald were elected, and one of the presiding officers so certifies. Under the statute both presiding officers must join in the certificate in order to furnish to the party the prima facie evidence of election that the statute provides for. So that in the present case neither party has the statutory evidence of election.

The defendants lay stress upon the fact that they were orally declared elected. Still the force of such declaration, if there was one, depends on the surrounding circumstances, about which there is dispute and it is not what the statute makes prima faeie evidence. Both sides concede that, the question as to who in fact were elected cannot be tried in this action. That being so, will this court, by injunction, control the possession ?

Of the three in office at the date of the election one was the plaintiff Reis, whose term expired on January 1,1884, and who claims to have been re-elected and who would hold over in case there was no election. Of the other two one sides with the plaintiffs and the other with defendants. The pastor of the society, the vestrymen and one of two elders recognize the plaintiffs as properly elected. So that it is to be assumed that the religious organization side with the plaintiffs.

The question then would be whether, -in the absence of the statutory evidence of election, that party which is recognized by the religious organization and by the majority of those in office at the time of the election should not also be recognized by the courts until the determination of the legal right in* the proper forum. Were the election entirely invalid, or had there been no election at all, the control by the trustees then in office would have been substantially as the plaintiffs now desire it to be. The main object of a religious corporation is the religious culture of the society connected with it, and that ‘will be better subserved by harmony between the religious and temporal organizations.

This seems to be a case calling for equitable interference (2 High on Injunctions, § 1315; Kerr v. Trego, 47 Pa. St., 292-6; Lutheran Ev. Ch. v. Gristgau, 34 Wis., 328-336), not on the' ground, as stated in the injunction order, 'that the individual plaintiffs were duly elected, but on the ground that they were recognized by the authorities then existing, temporal and' spiritual, and should not be interfered with by those not having the statutory evidence of election and not having their right established at law. As said in Kerr v. Trego, the confusion that would be caused by two opposite parties pretending to act as the society should be stayed.

It follows that the order appealed from should be affirmed. This affirmance should be without • prejudice to any proceedings by defendants at law to secure their rights.

Follett, J.:

The title of rival claimants to the office of trustee of a religious corporation, cannot be determined in an equitable action, brought by one claimant or set of claimants against another claimant or set of claimants. The remedy is by an action brought by the attorney general in the name of the people. (Code Civil Pro., §§ 1918 to 1956, and § 1981; Hartt v. Harvey, 32 Barb., 55; The North Baptist Church v. Parker, 36 id., 171.) Such is the rule in respect to all contested corporate elections, except as it is otherwise provided by statute. (People v. A. and S. R. R. Co., 57 N. Y., 161, 171, 172.)

This action was not brought to determine the title of the rival claimants to the trusteeships, but to restrain the defendants, who-are out of possession, from forcibly divesting the plaintiffs of their possession of the property and records of the corpoi’ation. Nocase has been cited in which the courts of this State have determined whether an injunction may be issued for this purpose.

People v. Mattier (2 Abb. [N. S.], 289) and People v. Conklin (5 Hun, 452), relied upon by the defendants, hold that trustees defacto of corporations will not be restrained from continuing to act as trustees during the pendency of actions to try their title to the trusteeships. People v. Mattier arose out of a contest for the control of the New York State Inebriate Asylum, and People v. Conklin arose out of a contest over the control of a savings bank. Mickles v. The Rochester City Bank (11 Paige, 118), holds that acting trustees of a manufacturing corporation will not be restrained from acting, because the validity'of their election is questioned in a suit by a stockholder to wind up' the corporation, especially when it is not alleged that the trustees are irresponsible, or that they are wasting the property'of the corporation.

The rule that acting trustees will not be restrained from continuing to act, at the suit of rival claimants out of possession, affords no support to the defendants’ contention that the court is without power to restrain claimants out of possession from interfering with the property of the corporation in the possession of acting claimants.

Tappen v. Gray (3 Edw. Ch., 452; reviewed, 9 Paige, 507; affirmed, 7 Hill, 259); Mayor v. Conover (5 Abb., 171); Mott v. Connolly (50 Barb., 516); Coulter v. Murray (15 Abb. [N. S.], 129); Morris v. Whelan (11 Abb. N. C., 64; S. C., 64 How., 109), and Palmer v. Foley (44 id., 308; affirmed, 4 J. & S., 14; S. C., 45 How., 110), all arose out of the contests for municipal offices, and with the exception of Palmer v. Foley all hold' that claimants of municipal offices will not, in suits brought by rival claimants, be enjoined from acting. These cases have little bearing upon the question now presented. The policy of this State has been not to permit citizens to control the actions of public officers by suits brought in their own name or interest, except pursuant to enabling statutes. Religious corporations are in no sense governmental, and cannot be under our Constitution. Such corporations consist of their members who own, and through their trustees control the property. (Robertson v. Bullions, 11 N. Y., 243; Gram v. Prussia, etc., Society, 36 id., 161).

The chief distinction between such corporations and business corporations is that there are no stockholders, and that they are organized, not for profit, but for the improvement of society. They are subject to the control of their members, like private corporations.

In New Jersey, where it is held as in this State, that a court of equity is without jurisdiction to determine the rights of rival claimants to offices in corporations, it was said (Johnston v. Jones, 23 N. J. Eq., 216-226): “If the question of the legality of an election, or whether a certain person holds such an office, arises incidentally in the course of a suit of which equity has jurisdiction, that court will inquire into and decide it, as it would any other question of law or fact that arises in the cause. But the decision is only for the- purpose of the suit; it does not settle the right to the office or vacate it, if the party is in actual possession.” The case last cited was brought by a railroad corporation and several of its directors to restrain persons claiming to be directors from interfering with the property of the corporation, in which an injunction was granted and sustained.

In Featherstone v. Cooke (L. R., 16 Eq., 298) it was held that-the existence of disputes between members of the governing body of a company, preventing its affairs from being carried on properly, is a sufficient ground for an injunction, restraining directors out of possession from interfering with the property of the corporation in the possession of acting directors.

In Lutheran Evangelical Church v. Gristgau (34 Wis., 328) this question is fully discussed, and it is held that an action in equity to restrain the action of claimants to trusteeships, whose title to office is contested, may be maintained.

In Ewing v. Thompson (43 Penn. St., 372-379) an injunction, restraining a claimant of the office of sheriff, who was out of possession, from interfering with a claimant of the office who was in possession, was granted and sustained, pending the determination of an action at law to determine who was legally elected.

In Kerr v. Trego (47 Penn. St., 292) the doctrine of the last case was again asserted. It was said: If a private partnership or corporation were to fall into a similar confusion, affecting all its members and all its creditors, we can think of no better remedy than this (an injunction) for staying the confusion that would be caused by two opposite parties pretending to act as the society. It is the very remedy usually adopted when churches divide into parties, and we applied it in three such cases in the last year. Therein we decided directly on rights of property, because that became the aim of dispute. Here we must decide • on the right to public functions, because that is here the purpose of the dispute. The main question in all such cases is regularity of organization, and the right to functions and property is a mere consequence of this. May one of the conflicting bodies, or the members of it, maintain this action (an equitable one for an injunction) against the other? We think they may. This could not be doubted in relation to private corporations and partnerships. But it is argued that, in relation to public corporations, the attorney general alone can file such a bill. We do not think so. It is right for those to whom public functions are intrusted to see that they are not usurped by others. Either of these bodies has the right to demand of the courts that it and the interests of the public alleged to be committed to it shall be protected against the usurpation of the others.” (47 Penn. St., 295-296.)

The Pennsylvania cases go further than the cases of this State in asserting the jurisdiction of a court of equity, and much further than is necessary to sustain the jurisdiction of this court over this case. The case last cited distinctly asserts the jurisdiction of a court of equity to control the action of contending trustees of churches and of private corporations. A legal action in a court of law is the appropriate mode of determining the right of possession or title of rival claimants to real property ; but when a claimant out of possession threatens waste or an irreparable injury, a claimant in possession may maintain an action to restrain, and in such and like cases the right of possession or title may be determined in so far as it may be necessary to determine the action.

If this court has not jurisdiction of such an action, with the power of restraint, the seal, records, temporalities and franchises of such corporations are exposed to the hazards incident to frequent and perhaps violent changes in possession, the control finally resting" with the claimants possessing the most temerity, physical force and pertinacity ; and thus exposing to destruction, by the feuds of contending claimants, the rights of individual corporators and every interest which the corporation was organized to promote, besides engendering a multiplicity of suits.

We think this court has jurisdiction to restrain the claimants of trusteeships out of possession (in an action brought by a religious corporation and the trustees in possession) from interfering with the property, records and seal of the corporation in the possession of acting trustees, until the claimants out of possession establish their title to the trusteeships in an action brought for that purpose. To this extent the injunction in this case should be sustained.

Present — Hardin, P. J., Follett and Merwin, JJ.

Injunction order modified so as to allow the defendants to take any legal proceedings to secure their rights, and as modified affirmed, without costs.