text:
    In the Matter of the Opening of Newland Avenue in the City of Jamestown.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    1. Eminent domain—Commissioners—Power of majority to adjourn.
    A majority of a board of commissioners appointed to appraise damages, for the taking of lands have the power to adjourn.
    2. Same—No title acquired to lands not embraced in the originad NOTICE.
    Where in a proceeding to take lands under the charter of Jamestown. (Laws of 1886, chap. 84) an objection was made that the land of a property owner was incorrectly described in the notice instituting the proceeding, and that a part was omitted, Held, that such an objection went to the effect and not to the regularity of the proceeding, and that the city would not acquire title to any more of the land in question than was embraced in said notice.
    Appeal by Almira E. Horthrop, a land owner, from an order of special term confirming the report of commissioners to appraise damages.

      A. Hazeltine, for app’lt; F. W. Stevens, for resp’t.
   Dwight, P. J.

Assuming that the order of the special term was appealable to this court under the general provisions of § 1356 of the Code of Civil Procedure, which may be subject to question under the particular language of the act of incorporation of Jamestown (Laws of 1886, chap. 84, § 7), we find no reason to interfere with the award of the commissioners which that order confirmed. The objection that the commissioners lost jurisdiction of the proceeding when two of their number adjourned it to another day, in the absence of the third, who had been duly notified of the first meeting, is altogether untenable. The statute itself provides for adjournment, if necessary, from day to day (§ 7, supra) ; and that the power of adjournment resides in the majority of any such body or board, cannot be questioned.

The objection is made that the land of the appellant which is proposed to be taken is incorrectly described in the notice by which the proceeding was instituted; and, accordingly,' that the award, in respect to the appellant, was made upon an incorrect basis. Evidence was given tending to show that the depth of the plaintiff’s lot along the center line of the proposed street was either nineteen or thirty feet greater than the length of the strip to be taken from her lot, as described in the notice. But apparently this objection goes to the effect and not to the regularity or validity of the proceeding. It will not probably be claimed that the city acquires title to any more land of the appellant by this proceeding than that which is described in the notice as “ proposed to be taken and appropriatedand if that description does not cover all the land which is required for the proposed improvement, further proceedings will be necessary to condemn what is lacking.

Certainly this court will not interfere with the determination of the commissioners to the effect that the benefits of the improvement to the appellant equal or exceed the damages sustained by her by reason thereof. That determination was reached wholly upon view of the premises, and by commissioners familiar with the property and its surroundings. No testimony was taken on the hearing by them, and the only matters relied upon as impugning their judgment are statements contained in ex parte affidavits used in opposition to the motion to confirm their report. Those affidavits contain no suggestion of prejudice, partiality, or bad faith on the part of the commissioners, and do not make a case which would justify this court, even if it has the jurisdiction to do so, in overruling the conclusion of fact reached by the original tribunal.

The order appealed must be affirmed.

Order appealed from affirmed, with ten dollars costs and disbursements.

Macomber, J., concurs.


source: Caselaw Access Project

author: Dwight, P. J.

license: Public Domain

text:
    Hugh Kelly, Resp’t, v. The City of Rochester, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    Negligence—Inadequate damages
    In an action to recover damages for negligence of a corporation in permitting a sidewalk to become unsafe from ice upon which, plaintiff fell and was injured the jury found for the plaintiff and awarded damages of fifteen dollars. The undisputed evidence showed that the plaintiff fractured two ribs, suffered pain and was disabled for several months. Held, that the court properly set aside the verdict upon the ground that the damages were inadequate.
    Appeal by the defendant from an order made on the minutes of the court at the circuit, granting a new trial to the plaintiff on payment of the costs of the circuit (Monroe, June, 1888.)

      H. J. Sullivan, for app’lt; E. L. Adams, for resp’t.
   Dwight, P. J.

The new trial was granted on the ground of the insufficiency of the damages awarded by the verdict of the jury. The action was for injuries resulting to the plaintiff from a fall on a sidewalk of the defendant, rendered unsafe by ice which the defendant negligently suffered to accumulate thereon. The two issues of the defendant’s negligence and of contributory negligence on the part of the plaintiff, were fully tried and were submitted to the jury, on the second day. of the trial, and the jury having been out all night came into court on the third day and rendered a verdict for the plaintiff, for fifteen dollars.

The undisputed evidence on the question of damages, showed) that the plaintiff, as a result of his fall, sustained a fracture of’ two ribs; suffered great pain in his side at the time and for some. months afterwards; was wholly disabled for labor for several months and that the pain and disability continued, in a measure, down to the time of the trial. There was also evidence tending to show that a weakness of the kidneys and incontinence of urine from which the plaintiff had suffered from a time shortly after the accident and down to the time of the trial, was due to the same cause.

The verdict of the jury found both the issues tried, in favor of the plaintiff, and that finding entitled him to full compensation for the injury which he had sustained. For that purp®se the verdict was grossly inadequate and must have been the result of unworthy and improper considerations prevailing with the jury. The discretion of the trial court was correctly exercised in setting aside the verdict and granting a new trial to the plaintiff. The terms imposed as a condition of the order were also, probably, within the discretion of the court, and no appeal has been taken from that part of the order.

The order appealed from must be affirmed and, under the discretion granted to the appellate court by § 3239 of the Code, with costs, absolutely, to the respondent

Macomber, J., concurs.


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    Frederick B. Potter, Resp't, v. The New York Central & Hudson River R. R. Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    Railroads—Not bound to maintain a fence between its track and ITS OWN LAND ADJOINING.
    The defendant was lessee of the N. Y., West Shore & Buffalo R. R. Co. It leased to H. a strip of land ten rods in width and containing twelve acres which ran along the tracks of the "West Shore and was not separated from them "by a fence. H. sublet to plaintiff whose horse, tethered on this strip, broke loose and was injured on the track. Held, that plaintiff could not recover; that the statutory liability to maintain fences did not require the lessee to maintain one upon its own land between said land and its track; that when plaintiff became occupant of the land he must restrict its use to those purposes for which it might safely be employed.
    Appeal by the defendant from a judgment of the county court of Monroe county, affirming a judgment of a justice’s court in favor of the plaintiff.

      A. H. Harris, for app’lt; H. G. Pierce, for resp’t.
   Dwight, P. J.

The defendant, as lessee, operating the lines and occupying the real estate of the West Shore Bailroad Company, leased to one Hayes a strip of land ten rods in width and containing twelve acres, belonging to that company and lying along-side its tracks in the town of Perinton, which was not separated from the track by any fence. Hayes, in 1886, sublet all but half an acre of the strip to the plaintiff, who occupied it for farming purposes. His horse, which was tethered on the strip for grazing, had broken loose and wandered onto the track, when one of defendant’s trains came in sight. The horse was frightened by the approaching train and ran before it, on the track, until he came to a bridge where he fell between the ties and broke his leg. The engineer stopped the train as soon as possible after seeing the horse on the track, and before the engine reached him.

The only question in the case is whether, under these circumstances, the railroad company must fence its own land lying along its track, from the track itself, or, in default of doing so, be liable to its own tenants for loss of cattle straying from such land onto its track. We think not There seems to be no American case in point, and the English authorities, under a statute similar to our own, are against the proposition. Roberts v. Great West'n R. Co., 4 C. B., N. S., 506; Marfell v. So. Wales R. Co., 8 id., 525; 2 Shearman & Redfield on Neg., 434.

In the case last cited, the defendant owned a strip of land adjoining its right of way, and separated from it only by a fence, which had become broken down. On the strip was a tramway used by the defendant, and which it permitted the plaintiff to use for a consideration. A horse of the plaintiff drawing a car on the tram-way became frightened by a passing train, and breaking loose from the car escaped onto the track of the defendant and was injured. Erie, ó. J., said: “It is clear that the defendants are under no obligation to put any fence on their own land. The statute which obliges them to fence against the land of the adjoining owner has no application to their own. If the tram way was without any fence, it is clear that the defendants might lawfully so use it, and if any one chose to have the use of it, he would be entitled to it as it was, and would have no right to complain if he found' it dangerous, and sustained damage for want of a fence. * * * If the fence was known to the plaintiff to be out of repair and broken down, and he chose to hire the use of the tramway in that state, there would be no contract creating a duty to keep the fence in repair.”

This reasoning commends itself to our judgment as correct. The defendant might, no doubt, leave the strip of land unfenced from the track so long as it was made use of for its own purposes, and, when it rents it to another occupant, the latter must take it as it is and be content to put it to uses for which it may be safely employed in its unfenced condition.

We are unable to see that a case was made of statutory liability on the part of the defendant to the plaintiff, and are of opinion that the judgment of the county court and of the justice must be reversed.

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

Macomber, J., concurs.


author: Macomber, J.

text:
    Laurence Green, App’lt, v. Henry W. Watson, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    Ships and shipping—Right op owner to control vessel.
    Plaintiff was master of defendant’s propeller. The engineer left and a new one was to be appointed to whom plaintiff objected, and he, refusing to serve with him, was discharged. Reid, that his discharge was proper; that, in the absence of any agreement that the master should be consulted in regard to such an appointment, the owner had the sole right to direct and control the vessel.
    Appeal from a judgment of the Brie county court, entered upon a nonsuit directed at the trial, and also from an order denying the plaintiff's motion to set aside the nonsuit, and for a new trial.

      Josiah Cook, for app’lt; Tracy C. Becker, for resp’t.
   Macomber, J.

In the complaint it is alleged that the plaintiff was employed by the defendant as captain of the steam propeller St. Louis for the season of navigation on the lakes in the year 1887 at a compensation of $1,500 ; that he began services as such captain on the 3d day of April of that year, and continued therein until September 2d, when he was discharged by the defendant without cause. This action is brought to recover the proportionate share of such salary or compensation accruing after such illegal discharge, to wit, the sum of $457.

No question is made but that the plaintiff was employed by the defendant, the latter being the owner of the propeller St. Louis, to act generally as the master of that steamer during the season of 1887. The wrongful dismissal alleged against the defendant is denied. It is shown on the part of the defendant that after the propeller had arrived at the city of Buffalo, where the owner resided, the engineer had voluntarily left the vessel, and that it became incumbent upon the defendant, as owner, to supply his place by another person. This was accordingly done. The plaintiff, however, ascertaining before such selection had been made, that a certain person was likely thus to be chosen as engineer, objected to such appointment upon two grounds; one being that the person so selected was incompetent as a mechanical engineer ; and secondly, that the plaintiff, as master of the steamer, would regard himself and the vessel unsafe if such person acted as engineer because of threats made against the life and person of the master by such new engineer. Bvidence was offered upon these two matters and excluded by the court. This opposition was made known to the defendant before the final appointment was made, but it was disregarded. The plaintiff did, in substance, refuse to act as master if the new selection of engineer was made.

At the office of the defendant, the plaintiff was asked to surrender to the defendant the boat’s papers, whereupon the plaintiff replied that he would do so provided the defendant had no further use for him, the plaintiff. Subsequently, on board the boat, the defendant discharged the master, whereupon the master handed him the boat’s papers and stepped ashore.

The question here presented is. whether or not the owner of the vessel had the absolute right to employ an engineer of his own choosing, or whether he was obliged to consult the wishes or caprices of the master. No claim is made in the case, that by the employment of the plaintiff the right was given to him to select the engineer or any other member of the crew. In the absence of such an arrangement, such right rested solely with the owner. Ward v. Ruckman, 86 N. Y., 82. We see in this instance no arbitrary or unlawful exercise of a right that the owner possessed to direct and control his own vessel. The plaintiff, having refused to command the vessel further as master unless his wishes in regard to the engineer should be observed by the owner, placed himself, voluntarily, in an attitude utterly inconsistent with his duties as such master, and must be deemed, under the facts shown, to have been properly discharged. It follows, therefore, that no recovery could be had for the unexpired time contemplated by his original employment.

The judgment and order appealed from should be affirmed.

Dwight, P. J., concurs.


author: Allen, J.

text:
    The People v. Louis S. Street.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)

    Bail—Forfeiture—Former adjudication.
    The court of general sessions has concurrent jurisdiction with this court to entertain applications to vacate judgments entered upon forfeited recognizances, and when such an application has been heard upon the merits and determined in either tribunal it is res adjudieata and cannot be entertained by the other. If any facts were omitted on the first application a rehearing should be sought in the court to which it was made.
    Application to vacate judgment entered upon forfeited recognizance.

      Frank J. Keller, for petitioner; DeLancey Nicoll, for the People.
   Allen, J.

The petitioner, Charles Stanton, became the bondsman for Louis S. Street, who was charged in two indictments with offenses under the Penal Code. The defendant, having been called to answer the indictments, failed to appear, and his bail-bond was declared forfeited, and judgment for the amount thereof was entered against the petitioner on the 14th day of October, 1889. The petitioner now makes an application asking this court "to remit the forfeiture and vacate the judgment entered thereon.

It appears from the papers herein that on or about the 2d day of October, 1890, the petitioner made an application for the relief now sought for to the Hon. Randolph B. Martine, one of the justices of the court of general sessions, which application was heard upon the merits and denied.

By chap. 379, Laws 1878, as amended by chap. 481 of Laws of ^ 1879, Code of "Grim. Pro., § 597, and Laws 1882, chap. 410, the judges of the court of general sessions are given concurrent jurisdiction with this court to entertain and determine an application for the remission of a recognizance and to vacate the judgment entered thereon. It follows that a petitioner seeking relief from a forfeiture of his recognizance may make his application to this court or to any judge of the court of general sessions. When, however, such an application has once been heard upon the merits and determined in either tribunal, it cannot be entertained by the other, and thus in effect a review had of the former application in the absence of express authority therefor. The well settled principle of law that “the judgment of a court of concurrent jurisdiction directly upon the point is, as a plea, a bar, or as evidence conclusive between the same parties upon the same matter directly in question in another court,” Green leaf on Evid., § 528; Duchess of Kingston's Case, 20 How. St. Tr., 538, should, in our judgment, be applied to adjudications of this character, for the judicial determination of a summary application authorized by statute is in effect a judgment, since it adjudicates the right of the applicant to the relief sought.

There is no difference in the rule of res adjudícala whether the' first adjudication is made in a formal action or in proceedings summary in this character, because even when there is not a technical judgment in the latter, it is a judicial act; it is a duty confided to judicial officer to be exercised in a judicial way. The parties are heard and their rights are settled by judicial determination. Demarest v. Dary, 32 N. Y, 281; Supervisors v. Briggs, 3 Den., 33.

It is claimed by the petitioner that when the application was made to Judge Martine, of the court of general sessions, certain facts mentioned in the affidavit of the said petitioner, which is attached to his present application, were not presented. If that be the fact, the petitioner’s remedy is to apply to that judge for a rehearing of his application.

Application dismissed, without costs.

Bischoff and Pryor, JJ., concur.


author: Bookstaver, J.

text:
    Alexander McSorley, Resp’t, v. James A. Faulkner et al., App’lts.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)

    Contract—Implied promise.
    Plaintiff sold out his business to defendants and moved from the premises, leaving behind a telephone, which he had been using in connection with the business. No agreement as to the telephone between the parties was shown, nor that defendants used it, except that it was used by some one a few times. Plaintiff was compelled to pay for its use and brought suit to recover the amount so paid. Held, that no promise to pay for its use could be implied, and that the complaint should be dismissed.
    Appeal from a judgment rendered in the district court, for the eleventh judicial district

      Mooney & Shipman, for resp’t; Johnston & Johnston, for app’lts.
   Bookstaver, J.

This action was brought to recover the sum of fifty dollars, which plaintiff claimed he had laid out and expended for the defendants. The proof showed that the plaintiff,, prior to July, 1889, had conducted business at No. 1151 Ninth avenue, and had used a telephone in connection therewith, under an agreement with the Metropolitan Telephone & Telegraph Co., by which he- was to pay them monthly for its use. In July, 1889, he disposed of that business to the defendants.-and moved out of the premises, leaving the telephone behind. It was not shown that this was done at defendants’ request, or that the use of the telephone was necessary to, or was conveyed with, the business, or that there was any agreement between the parties in relation thereto. The case is barren of evidence, tending to show that the defendants ever used the instrument The utmost which can be affirmed of the evidence given, is that the telephone was in working order from July until about the 20th of December, 1889, and that it was used for out-of-town purposes on a few occasions; but there is absolutely nothing to show that the defendants so used it As. far as appears from the record, the plaintiff might at any time have given notice to the company to remove the instrument, and thus terminate his liability. This, through inadvertence or negligence, he failed to do, and consequently the company brought" an action against him for Its use, which he settled without notice to the defendants for fifty dollars, to recover which this action was brought, and for which he recovered judgment

This judgment cannot be sustained on the ground of any express promise to pay, for none was made. Nor do I think it can on any implied promise. While it is true that, when one is compelled by law to pay the debt or obligation of another, he can recover of the delinquent the amount so paid, yet to entitle him to recover in such case, he must establish both the delinquency and the liability to pay the debtor obligation. This was not done here.

The plaintiff himself made the original contract with the company. The defendants were not privy to it, nor did they become so by any act or contract of theirs. The plaintiff failed to show anything more than that the instrument was left on the premises when he had sold out to the defendants, and that it was in working order and might have been used by them, and in fact was on occasion used by some one; but the witness who testified this expressly said that she could not tell who used it This was not enough to put the defendants to their proof, and the complaint .should have been dismissed.

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

Having arrived at this conclusion, it is unnecessary to discuss the other questions raised on the appeal, as they are not likely to arise on any retrial of the case.

Bitchoff, J., concurs.


text:
    Patrick G. Malony, App’lt, v. Edward J. Brady, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)
    Landlord and tenant—Negligence.
    _ A landlord who employs another to make repairs to his premises, occupied by a tenant, is liable to the tenant for injuries caused by the negligence of the person so employed, although the latter is an independent contractor, and may recover over against the contractor.
    Appeal from judgment of the district court of the city of New York for the ninth judicial district.

      A. McDonald, for app’lt; Johnston & Johnston, for resp't.
   Bookstaver, J.

Plaintiff is the owner of the, building No. 265 Washington street, which in December, 1890, was occupied by the Eppens, Smith & Wymans Co. This building needed a new roof, and with the consent of the tenants plaintiff undertook to have one put on, although the case does not show that he was under any obligation to keep the premises in repair. He made a contract with the defendant to do this work for the sum of $140,, and the latter guaranteed plaintiff against all loss or damage from his acts while the work was being done. The old roof was of tin, and the new one was to be of the same material. The tenants at. that time_ had a quantity of teas, coffees and perishable goods in. the building. When the defendant commenced the job, he put but one roofer and a helper at work. The plaintiff frequently complained of this, but the defendant said he could fin'd only one: roofer just then, but that it would be all right, and he would guarantee no damage should arise. After he had been at work some days, the weather became threatening, and the plaintiff again saw the defendant and warned him of the danger, and he said the plaintiff might be at rest he would guarantee there would not be a dollar’s worth of damage if a storm came.” Plaintiff then asked him to send his men around to put the roof in a condition to resist the storm, which he promised to do. A storm then came on. At that time but one-half of the roof was covered with new tin, and the old was drawn over it in such a manner that the rain penetrated into the building and, it is claimed, damaged some of its contents, for which the plaintiff paid the tenant the sum of $178.80, to recover which this action was brought Upon the trial the complaint was dismissed. This must have been upon the theory that the plaintiff was not in any way liable for any degree of negligence in putting on the roof.

As a general rule, where a person is employed to perform certain work in the nature of repairs or improvements to a building by the owner thereof, which requires the exercise of skill and judgment as a mechanic, the accomplishment of which is left to his discretion with no restriction as to its exercise, such person does not occupy the relation of a servant under the control of a master, but is an independent contractor, and the owner is not liable for his acts or the acts of his workmen who are negligent and the cause of injury to another. It is essential in order to establish the liability against the principal for the negligence of others, that the relation of master and servant should exist Hexamer v. Webb, 101 N. Y., 377; 1 N. Y. State Rep., 46; King v. N. Y. C. & H. R. R. R. Co., 66 N. Y, 181; Devlin v. Smith, 89 id., 470 Morton v Thurber et al, 85 id., 550.

But a landlord making repairs to his premises occupied by a tenant, seems to be an exception to this rule. In Sulzbacher v. Dickie, 6 Daly, 469, it was held that a landlord, under circumstances very similar to those which were proved in this case, was liable, and we feel constrained to follow that decision.

The judgment must therefore be reversed and a new trial ordered. But as the appellant did not call the attention of this court to the foregoing decision, and presumably did not call the attention of the court below to it, we think under the circumstances no costs of this appeal should be allowed to either party.

Upon a new trial, the amount paid by the landlord is not to be taken as the measure of damages, but the defendant should be at liberty to show if he can that he was guilty of no negligence in the matter; and in no event should the plaintiff recover more than the actual damage sustained by the tenant.

Bischoff, J., concurs.


text:
    William D. Phelan, App’lt, v. The Mayor, etc., of New York, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 1, 1891

    Municipal corporations — Suspension of aqueduct inspector — Estoppel.
    Shortly after plaintiff’s appointment as superintending inspector of masonry on the new aqueduct he entered into a written agreement with the commissioners, reciting his appointment, and in consideration thereof agreeing that if he were suspended or discharged for any cause whatever while in the employ of the commission his pay should cease from the time of such suspension. Held, that while the commissioners had no power to suspend, yet that plaintiff was estopped hy his agreement from disputing their power to suspend and from claiming pay for any period during which he was suspended.
    Appeal from judgment in favor of defendant, dismissing the complaint.

      Charles E. Burke, for app’lt; William H. Clark, for resp’t.
   Allen, J.

In this action the court directed a verdict in favor of the defendants, and from the judgment entered upon the verdict this appeal is taken.

i The plaintiff in the action was employed by the defendant through the aqueduct commissioners, as superintending inspector of masonry on the new aqueduct He was appointed to this position on the 3d of October, 1888, and continued to discharge the duties thereof until April 1, 1889, when he was suspended from his position of superintending inspector.

On April 6, 1889, he was assigned to duty as an inspector, but not as superintending inspector, and performed services and received pay of such inspector until August 3, 1889, when he was suspended from the position of inspector. This action is brought to recover the difference between the pay of superintending inspector, at $135 a month, and that of an inspector,*at $120 per month, from March 30, 1889, to August 3, 1889, and the pay of superintending inspector from August 3,1889, to February 1,1890.

It is alleged in the answer, and was proved upon the trial, that on the 29th day of December, 1888, the plaintiff entered into an agreement in writing with the defendant, which recites his appointment as inspector, his subsequent promotion to superintending inspector, and contains a clause to the effect that if he is suspended or discharged for any cause whatever, while in the employ of the said commission, he will promptly deliver to the division engineer all books and papers in his possession, or under his control, relating to said work, and his pay as such inspector or superintending inspector shall cease from and after the time of such suspension subject to the direction of the aqueduct commissioners.

In the case of Gregory v. The Mayor, 113 N. Y., 416; 22 N. Y. State Rep., 703, it was held that while the board of excise commissioners had the power to remove their employes, there was nothing in the power to remove or expel which included the power to suspend, and that they had no authority to suspend an inspector without pay.

In the case of Mullen v. The Mayor, 34 N. Y. State Rep., 913, the same question of law was raised in the case of an aqueduct inspector, and the same decision arrived at The decision last referred to has been followed by the general term of the superior court in Emmitt v. The Mayor, 88 N. Y. State Rep., 355.

It seems, therefore, that unless the agreement of December 29th, 1888, is operative, the right of the plaintiff to recover cannot be doubted.- That the plaintiff acted deliberately in entering into . this agreement, appears from the testimony in the case. It cannot be successfully claimed that it is in any way unlawful; on the contrary, it was made in the interest of a careful and economical administration of the commission. It appears to be founded upon sufficient consideration. It was made with officers who possess the power to appoint and discharge, and the agreement itself states that it is in consideration of being appointed and promoted that the plaintiff agrees that his pay shall cease from and after the'time of suspension. We think, therefore, the agreement is operative and binding upon the plaintiff, and that he is estopped from disputing the power to suspend for any period, and from claiming pay for any period during which he has been suspended.

We are aware that a statutory salary or compensation cannot be reduced except by law, and that corporate authorities have no power to fix the compensation regulated by statute at a less amount than that prescribed by the statute, and that the acceptance of a reduced compensation is not a waiver of the statutory provision. Kehn v. State of New York, 65 How., 488; Satterlee v. Board of Police, 75 N. Y., 38. This principle, however, has no application to the case before us. The plaintiff’s salary or compensation was not fixed by statute, but was left to the discretion of the Aqueduct Commissioners by § 33, chap. 490, Laws 1883.

The judgment appealed from should be affirmed, with costs.

Bisohoff and Pryor, JJ., concur.


text:
    In the Matter of the Application of Mary A. Poole to discharge a Mechanics’ Lien.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)

    1. Mechanics’ lien—Discharge.
    The right of the owner of property to a discharge of a mechanics’ lien on return of the notice, prescribed by sub. 5 of § 24 of the act of 1885, in case no action has been commenced within the time prescribed in the notice, is not absolute, but the court has power, and it is. its duty, to. consider the equitiesof the case in determining the application

      2. Same.
    Within the time prescribed in the notice the lienor filed a summons, complaint and Us pendens, and served copies of the same on the attorney who had countersigned the notice, who refused to appear for the owner without seeing her. The owner was a non-resident. On the return day the court gave the lienor ten days to make service or begin publication of the summons, and subsequently on proof that an order of publication had been made and publication actually begun within the time allowed, denied the application to discharge the lien. Held,, that the court had power to make the orders, and that the denial was a proper exercise of discretion.
    Appeal from order denying application to discharge a mechanics’ lien.

      George W. Carr, for app’lt; Charles M. Earle, for resp’t
   Allen, J.

On October 29, 1890, Charles Molten, who had done the plumbing work of nine houses in Ninety-ninth street, in the city of New York, filed a mechanic’s lien for $1,183.20 against said property. Three of the said houses are owned by Mary A. Poole. On December 4, 1890, said Mary A Poole caused to be served upon the said Molten the notice provided for in paragraph 24, subd. 5, chap. 342, Laws 1885, requiring him to forclose his lien on or before January 6, 1891, or in default thereof show cause at a special term of this court on January 10, 1891, why the lien should not be discharged. This notice was signed by the said Mary A. Poole and countersigned by George W. Carr, attorney for owner, 29 Wall street, N. Y. On January 6, 1891, the lienor filed with the clerk a summons and verified complaint in foreclosure and lis pendens with the county clerk. On the same day his attorney went to the office of Carr, the attorney who had countersigned the notice, at the address named in that notice, and said Carr being absent, left copies of the papers with the person in charge; and on January 8th Mr. Carr was asked to appear for Mrs. Poole, which he declined to do without seeing her. On the return of the notice, the court at special term made an order giving the lienor ten days time to enable him to serve Mrs. Poole, or to procure an order and begin the publication of the summons against her. After the lapse of ten days, upon proof that an order for the publication of the summons against Mrs. Poole had been made, and that the publication was actually begun within the time allowed by the order, the court made an order denying the application to discharge the lien.

The appeal is taken from both of said orders. The appellant claims that the court had no power to make either of the orders, and that no action to foreclose the lien having been begun according to the terms of the notice, the court was obliged to discharge the lien.

The statute, pursuant to which the notice was served, provides that the owner may give notice to the lienor to bring an action of foreclosure by a day named, or show cause why the lien should not be vacated ; and further provides that the court may make an order vacating the lien. The language of the statute is plain and intelligible. The intention of it was clearly to enable the owner to require the lienor to test the validity of his lien speedily and to give to the court the power to vacate or discharge the lien in, case the action was not commenced, or sufficient reason presented to the court excusing the lienor for not commencing the action in the time named in the notice.

A proper and equitable construction of this statute gives the court not only the power but makes it the duty of the court to take into consideration the equities of the case and exercise a sound discretion in granting or refusing the application. Equitable Life Insurance Soc. v. Stevens, 63 N. Y., 341. If the intent of the statute was that the right of the owner to have the lien discharged upon the return of the notice, in case no action was com-, menced within the time mentioned in the notice, should be absolute, the application to the court is an idle ceremony.

It is clear to us that the court had the power to exercise its discretion in treating the application in accordance with the equities of the case; and it is also clear to us, from the facts disclosed by the record, that there was no improper use of discretion in making either of the orders appealed from.

Mrs. Poole was a resident of Mew Jersey and could not be found in this state so that service could be made upon her within the time mentioned in the notice; and it appears the lienors exercised reasonable diligence in his attempts to obtain an appearance for her and ascertain where she could be found in order that service might be made upon her. This proof being presented to the judge on the return of the notice, the court, in the proper exercise of its discretion, made an order directing the motion to stand over for ten days to enable the lienor to serve Mrs. Poole and ordering the publication of the summons. The order of publication was obtained, and the publication was begun before the ten days allowed by the order had expired, and the court having before it these facts showing plainly that the lienor bad done everything that could be done up to that time to commence the action, denied the application. Although, strictly speaking, it may not be said that the action was begun by filing the summons and complaint and obtaining the order of publication, yet the lienor had certainly commenced the action so far as it was possible for him to do so, and we think the denial of the application of the owner was a proper exercise of discretion.

The orders should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.


author: Bradley, J.

text:
    John V. Lewis, Resp’t, v. Wallace C. Andrews, App’lt.

      (Court of Appeals, Second Division,

      Filed June 9, 1891.)

    1. Evidence—Documentary and oral proofs.
    In an action to recover §10,000, alleged to have been paid by check to defendant to he used in the promotion of a cable road, should a franchise be obtained, if not, to be returned, the court refused to charge as requested by defendant, that “ the letters and written correspondence between the parties shortly after the contract was made are of more weight in deciding what the contract was than evidence as to verbal admissions at a later date.” Held, no error; that whether the letters, which requested that the bonds be sent, were entitled to more weight than evidence of admissions, was of no importance, unless they were inconsistent with it, and the inference was permitted that when plaintiff wrote the letters referred to, he understood that the franchises had been obtained.
    2. Tender.
    Upon payment of the check, a certificate of a trust company had been • sent to plaintiff, agreeing to deliver to him certain bonds of the cable company held by it in trust. The court charged the jury that if the certificate had no value, it was sufficient to surrender or tender it at the trial. Held, no error.
    Appeal from judgment entered upon order of the general ..erm of the supreme court, in the first judicial department, affirming judgment entered on a verdict in favor of the plaintiff.
    The action was brought to recover $10,000 alleged to have been advanced by the plaintiff to the defendant to be used in the promotion and construction of a cable railway in the city of New York upon the promises of the defendant to repay the amount on demand. The demand and refusal are alleged and by the answer admitted. The other allegations of the complaint are denied.

      Everett P. Wheeler, for app’lt; Almon Goodwin, for resp’t.

       Affirming 34 N. Y. State Rep., 1001.

   Bradley, J.

The plaintiff delivered his check drawn upon the Metropolitan Bank of Cincinnati to the defendant, bearing date September 3, 1885, for $10,000, payable to the order of the latter. The check was afterwards deposited for collection, collected, and its proceeds placed to the credit of the defendant in a bank in the city of New York. The controversy between the parties has relation to the agreement or understanding pursuant to which this check was given to and received by the defendant. The latter was then president of the New York Cable Railway Company, in behalf of which efforts were then being made by its promoters to obtain franchises to enable it to construct cable railways in certain streets of the city of New York; and unless such rights were procured the purpose of the company would substantially fail and be defeated. The evidence on the part of the plaintiff tended to prove that at an interview between him and the defendant, the latter expressed much confidence in the enterprise and advised the plaintiff to advance some money with a view to taking bonds of the company; and that it was finally agreed between them that the plaintiff would give his check for $10,000 to the defendant, for which he should receive $20,000 first and $20,000 second mortgage bonds of the company when it obtained such franchises; that until then the check should not be used; and that if at any time the plaintiff felt dissatisfied or for any reason disinclined to continue in the position thus taken, the defendant would, on demand, return to him the money without interest; and that the check was afterwards made and delivered pursuant to such arrangement.

The effort to obtain such franchises failed. The plaintiff demanded of the defendant the repayment of the money, which was by him refused ; and the purpose of this action was to recover it. The evidence of the defendant is in conflict with that on the part of the plaintiff, so far as relates to the assumption by the former of any personal responsibility for the repayment of the money, and tends to prove that he was acting, as he says the plaintiff was then advised, in a representative capacity; and that although he informed the plaintiff that the money not used in the promotion of the enterprise should be returned if it failed, he also stated to him that the money would be turned over to one Shaw, the attorney of the company, with whom such was the understanding, and that the money was so finally disposed of by the defendant. On the other hand, the plaintiff, by his evidence, says that the name of Mr. Shaw was not mentioned, nor did the defendant assume to act in the transaction with him other than on his individual responsibility. The question of fact arising upon the conflicting evidence, in behalf of the'respective parties, was submitted to the jury. Thus far no question arises for consideration on this review.

It appears that after the delivery of the check to the defendant there was some correspondence between the parties. The first was a telegram, of date October 14, 1885, from the defendant to the plaintiff, stating that the check was deposited that day. This was followed by letter of same date from the plaintiff at Cincinnati acknowledging the receipt of the telegram and saying the check would be paid when presented, and adding: “Will you please send the bonds such payment will entitle me to receive, under the agreement, to me here, made in my favor in sums of $5,000 each, par value.” And not having received any answer to it, he enclosed copy of that letter in one also from Cincinnati of date November 3, 1885, for fear, as there expressed, that it may not have been received, and in it said: “Will thank you to wire upon receipt of this at my expense, whether the bonds I have paid for have been sent me, and in case they have not when I may expect to receive them. Would also like to have by mail any information you can impart as to work being done, as have heard nothing since I saw you.”

On November 5, 1885, at New York, the defendant wrote the plaintiff acknowledging receipt of letter saying:' “The bonds were not ready for delivery through the trust company as there was some unavoidable delay. Both classes of bonds have now been completed and the accepted orders of the Am. Loan & Trust Co. have been issued to-day which has been the earliest issue possible to all the subscribers." He then referred to the fact that he enclosed the plaintiff’s accepted order for bonds, which bonds he could receive at any time from the trust company, but that all the subscribers there so far as he knew left the bonds on deposit with the trust company.” The purport of the receipt and contract of that company was that it had received from the plaintiff $10,000 on account of Charles P. Shaw, attorney, for which sum the trust company out of certain bonds delivered to it agreed to deliver to the plaintiff $20,000 first mortgage bonds and a like amount of second mortgage bonds of the New York Cable Railway Co. And on the 9th of November, 1885, the plaintiff wrote the defendant acknowledging the receipt of his letter with enclosure and said : “ I note the bonds are now ready for delivery, but that the majority of the owners have left them on deposit with the American Loan & Trust Co. Mr. Burnett of Chicago and myself are, as Burnett expresses it, ready ‘to go with the crowd,’ in this matter if we can see any advantage in doing so.” The plaintiff also gave evidence of conversations with the defendant at interviews subsequent to those letters and especially in January and April, 1886, to the effect that the defendant then recognized the agreement on his part to repay the money to the plaintiff and repeated his promise that it should be so repaid on the terms before mentioned in the evidence of the plaintiff. Having in view those written communications the defendant’s counsel requested the court to charge the jury that “the letters and written correspondence between the parties shortly after the contract was made, are of more weight in deciding what the contract was than evidence as to verbal admissions at a latter date."

And the justice remarked: “ I will not charge that they are of more weight, but I will charge that these letters, as I said before, are to be taken into consideration, and in connection with the oral testimony and their indications as to what the understanding of the contract was by the writers of" the letters; ’’ and exception was taken to the refusal to charge as requested, These letters were not by this proposition treated as constituting the contract, but it was assumed that it had been made verbally between the parties before they were written. Whether or not the letters were entitled to.more weight than evidence of admissions, was of no importance unless they were inconsistent with it, and it is only in the view that they were 'so, that the request may be deemed to have been made. The fact that the defendant’s letter of November 5th may - not be deemed in harmony with the evidence of his admissions, did not necessarily, as against the plaintiff, require the conclusion that it was entitled to more weight than was such evidence, unless it could also be said, as matter of law, that the plaintiff was, at the time of receipt of that letter, advised of the situation as it then existed in respect to the railway company in its relation to the franchises before referred to. In view of the evidence on his part of the arrangement under which the money was advanced, the inference was permitted that he understood, when he wrote and received those letters, that the franchises had been obtained. This, in that view, may have been assumed by him when the defendant’s telegram of October 14, 1885, was received ; and the jury were also at liberty to infer that no personal interview was had between the parties after the check was advanced until in January, 1886, when the plaintiff testified that he “ expressed surprise that the money had been used without having first obtained the concessions of the charters and franchises as he (defendant) had promised;" and that the defendant then said “ that, although the franchises and charters had not been as yet obtained, it would be only a question of a short time; that they would be granted, and he said just leave this money as it is, this matter is coming out all right * * * I said to Mr. Andrews I will let this money remain with you a little longer, provided Mr. Burnett is of the same mind.” Then in his letter of 27th of February, 1886, the plaintiff after referring to his January conversation! with the defendant, stated that unless the bonds shall be issued atj an early date, he might prefer to take down the deposit of the $10,000. This was followed by a letter in answer from the defendant, to the effect that things were looking favorably.

The plaintiff testified to another interview in April in which the defendant gave like assurances. And in June the plaintiff, by letter, informed the defendant of his purpose to “ take down the money deposited,” etc., and thereafter he sought to obtain it from the defendant. It may be observed that the evidence warranted the conclusion that the plaintiff understood the arrangement to be such that he was to take the bonds of the company only in the event the city franchises were obtained, as upon that depended their value, and without them there was nothing on which to place a mortgage to secure the bonds; and that in his letters aiter the telegram, and prior to January, 1886, he assumed, and was permitted to do so, that the franchises had been acquired, ' inasmuch as his evidence tended to prove that the check was not to be used until and except in that event.

In view of these circumstances, and some others which might be mentijoned, the force which may have been given to the evidence furnished by the letters in its bearing upon the oral evidence of the contract and of admissions relating to it, was dependent upon the relation and application it was found to have to that subject, and consequently its comparative “weight, indicating what the contract was,” became a question solely for the jury. The court properly refused to charge the unqualified proposition as requested.

The court was also requested to charge that “if the jury find that the certificate issued to the plaintiff was not tendered to the defendant before suit was brought, their verdict should be for the defendant ”

The court remarked that it had already charged upon that subject and it was unnecessary to charge further upon it The exception to this refusal to charge as requested was not well taken. The court, in calling the attention of the jury to the evidence of tender, charged them that if the certificate had no value it was suffieien; to surrender or tender it at the trial, as had been done. In this there was no error. It may be observed that the action was not ¡founded upon rescission of the contract, but upon it to recover the money which the plaintiff claimed the defendant had agreed to repay upon demand. The offer to surrender it at the trial was sufficient. And it is uncontroverted that the attorney for the plaintiff offered by letter to the defendant before the action was commenced, to return the certificate to him.

The court left the question to the jury to find whether or not there was a tender of the certificate before suit; and that if they found it was valueless no tender before then was necessary. The evidence of MacAuley, to which exception was taken, was substantially the same as that previously given by the defendant on his cross-examination. The slight difference, such as it "was, added nothing inconsistent with that so given by him which could excite attention to his prejudice Then the defendant on his direct examination had opened the subject which properly furnished the ground for the cross-examination by which the facts were elicited, to which MacAuley testified in relation to his transaction with the defendant

After a careful examination of the evidence and all the exceptions taken, our attention is called to no other question requiring the expression of consideration.

The judgment should be affirmed.

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


author: Follett, Ch. J. Bradley, Haight and Brown, JJ. (dissenting).

text:
    Paul M. Berger et al., Resp’ts, v. George E. Varrelmann, Impleaded, App’lt.

      (Court of Appeals, Second Division,

      Filed June 9, 1891.)

    1. Assignment fob creditors—Preferences—Confession of judgment
    A preference by insolvents not created in or by a general assignment, but by a separate instrument and in contemplation of making a general assignment, is prohibited by the statute.
    2. Same.
    Immediately prior to the execution of a general assignment for benefit of creditors the firm confessed judgment to the father of one of the partners for more than one-third the entire value of the asssets, upon which execution was immediately issued and levy made, and all before the assignment was executed. Held, that the circumstances showed that the confession was taken with knowledge and in fraud of the assignment and was void as being in violation of § 30, chap. 503, Laws 1887.
    (Bradley, Haight and Brown, JJ., dissenting.)
    Appeal from a judgment of the general term of the supreme court in the first judicial department, which affirmed a judgment entered on a decision of the special term.
    From June, 1888, to April 29, 1889, Henry Erdtmann and Gustave Yarrelmann were partners engaged in business at "Nos. 252 and 254 Pearl street, Hew York, under the firm name of “ W. & H. Erdtmann.” April 29, 1889, they confessed judgment in favor of George E. Yarrelmann (the father of Gustave Yarrelmann) for $7,824.62, which was entered and docketed in the office of the clerk of the city and county of Hew York, at twenty-six minutes past twelve o’clock of that day, and on the same afternoon an execution thereon was delivered to the sheriff of that county, who on the same day “ levied under such execution upon the entire stock and property of said defendants, Henry Erdtmann and Gustave Yarrelmann, in their several places of business, 252 and 254 Pearl street, and at the warehouse of W. A. Evis & Go., 63 Front street, in the city of Hew York.” Immediately after the levy of the execution, and on the same day, the defendants therein executed and delivered a general assignment for the benefit of creditors, to Clemans J. Kracht, bv which their individual property was devoted to the payment of their personal debts, and the surplus, if any, together with the firm property, to the payment- of its debts, and the surplus of the firm assets, if any to the payment of their personal debts (if their individual assets were insufficient for that purpose), according to the interest of each partner. None of their individual creditors were preferred except employees, whose wages were to be first paid. The salaries and wages of the firm employes were directed to be first paid, after which the firm creditors were divided into six classes, which were to be paid in full in their order. April 30 and May 1, 1889, were legal holidays, and the assignment was not recorded until May 2, 1889, at five minutes past nine is. the forenoon.
    At the time judgment was confessed and the assignment executed, an action was pending in the supreme court, brought by the plaintiffs herein against the assignors for the recovery of the amount due on their promissory note for $1,000, which fell due April 4, 1889, in which action a judgment was duly entered and docketed at ten o’clock and ten minutes in the forenoon of May 2, 1889, and ten minutes thereafter an execution thereon was duly issued and delivered to said sheriff. May 9, 1889, the sheriff sold, under Yarrelmann’s execution, all of the property upon which he had levied for $5,877.79, nearly all of which was purchased by the plaintiff in the execution. On the 9th of May,-1889, this action was begun to set aside the judgment so confessed, the execution issued thereon, and for the recovery for the benefit of the assignee, from the defendant, George B. Yarrelmann, the amount realized upon the sale under the execution, on the ground that the assignors in contemplation of their general assignment, and as a part thereof, in violation of § 30 of the general assignment act as amended in 1887, created a preference for more than one-third of the assets of the assignors. The assignee refused to bring the action in his own behalf and was made a party defendant The judgment recovered and which is appealed from set aside the judgment confessed, the execution issued thereon, the levy and sale made thereunder, and adjudged that George B. Yarrelmann pay $5,877.79 (the sum collected on the execution) to the assignee, to be by him distributed according to the terms of the general assignment

      Rudolph Dulon, for app’lt; Frederic W. Hinrichs, for resp’ts.

       Affirming 34 N. Y. State Rep., 911.

   Follett, Ch. J.

The judgment which the appellant obtained by the confession of his debtors is sought to be set aside and the money collected by virtue of it recovered for the benefit of the creditors of the judgment debtor, on the ground that when confessed the confessors intended to make a general assignment and prefer the claim of the appellant through a judgment and execution, and thereby evade the prohibition of the thirtieth section of the assignment act, which is as follows:

“ Sec. 30. In all general assignments of the estates of debtors for the benefit of creditors hereafter made, any preference created therein (other than for the wages or salaries of employees, under chap. 328 of the Saws of 1884, and chap. 283 of the Laws of 1886) shall not be valid except to the amount of one-third in value of the assigned estate left after deducting such wages or salaries, and the costs and expenses of executing said trust; and should said one-third of the assets of the assignor or assignors be insufficient to pay in full the preferred claims to which, the provisions of this section, the same are applicable, then said assets shall be applied to the payment of the same pro rata to the amount of each said preferred claims.” Chap. 503, Laws of 1887,

The appellant insists that his judgment and execution, by which he secured more than one-third of the estate of the insolvent debtors are not brought within the prohibition of the section, because: (1) The trial court did not find as a fact that the debtors contemplated making a general assignment when the judgment was confessed. (2) The trial court did not find as a fact that the appellant knew when he received the confession of judgment and seized the property by virtue of the execution issued thereon that the debtors contemplated making a general •assignment. (3). The preference was not created in the general assignment, but by a separate instrument

Before this section was added in 1887 to the general assignment act of this state, the practice which had become so prevalent that it may be said to have become a custom for failing debtors to devote by general assignment the whole or a large part of their estates to the payment of a few preferred creditors, often near relatives, resulted in so much hardship and injustice that the section above quoted was adopted to mitigate the evils arising from the practice. The section, being remedial, should be liberally construed, so as to prevent the mischiefs at which it was aimed. White v. Cotzhausen, 129 U. S., 329; Hulder v. Golden, 36 N. Y., 446; Mart v. Cleis, 8 Johns., 41.

The trial court found that the estate of the assignors was not worth three times the amount of the appellant’s judgment, and "that its collection consumed more than one-third of it, and that when the judgment was confessed, execution issued and levied and the assignment executed, the assignors and George E. Yarrelmann all knew that the sale under the execution to be issued would absorb more than one-third of the debtors’ assets. The decision signed by the trial judge contains seventeen findings of fact and seven conclusions of law, the first and second of the latter are as follows:

First. The judgment confessed in favor of the defendant George B. Yarrelmann, and the execution and levy which followed, were made by the defendants Henry Erdtmann and Gustave Yarrelmann, in contemplation of their general assignment and as part thereof, and for the purpose of preferring said defendant, George E. Yarrelmann, in whose favor the said judgment " was confessed by them out of their property for more than one-third of the net assets of the said defendants, Henry Erdtmann and Gustave Yarrelmann, and to prevent the said assets from going into the hands of the defendant Kracht, as assignee, and being distributed to the plaintiffs and the other creditors of the said defendants, Henry Erdtmann and Gustave Varrelmann, pursuant to the terms of their general assignment deed.
Second. Said confession of judgment, and the execution and levy which followed, were made in fraud of the said general assignment, and are void, and should be set aside and vacated and the assets levied upon, or the entire proceeds thereof should be paid the defendant Kracht, as assignee, to be distributed pursuant to the terms of the deed of general assignment”

The learned counsel for the appellant insists that these conclusions cannot be given the effect of findings of fact, but must be held to be conclusions of law, and that the facts so found cannot be considered on this appeal. This contention is not well founded, for it is well settled that though a “ finding of fact ” be called a “conclusion of law,” and improperly classified as such in the decision signed, Code Civ. Pro., § 1022, it will, for the purpose of upholding a judgment, be given the same effect as though embraced within and designated as one of the findings of fact. Parker v. Baxter, 86 N. Y, 586; Murray v. Marshall, 94 id., 611; Adams v. Fitzpatrick, 125 id., 124; S. C., 34 N. Y. State Rep., 859.

The facts found in the conclusion of law above quoted, that the assignors confessed the judgment in contemplation of making a fgeneral assignment as a part thereof, and for the purpose of preerring George E. Varrelmann for more than one-third of their estate; that the confession of judgment, the execution and levy were made in fraud of the general assignment, will be given the same force in support of this judgment as though they had been properly classified in the decision signed.

It would not be claimed, we think, that a preference for more than one-third of the assigned estate, when created by an instrument known as a general assignment, would be valid, though executed without the knowledge of the preferred creditors. If such a position could be successfully maintained the section would be wholly inoperative, as it would be quite easy, as, indeed, it is frequently the practice, to execute those instruments without consulting the favored creditors. If the absence of pre-knowledge on the part of the creditors that a preference is to be created by an assignment does not strengthen their position, it is not easy to see how the want of knowledge that an asssignment is contemplated would avail them, though the preference be created by an independent instrument This section is designed to limit the power of insolvents to create preferences beyond the extent named, and to regulate their conduct, but not to control the action of creditors, who are left free to collect or secure their claims by the usual remedies. It is the action of the insolvent debtors which the law seeks to control. Home National Bank of Chicago v. Sanchez, 131 Ill., 330.

The only remaining question is whether a preference by insolvents not created in or by a general assignment, but by a separate instrument and in contemplation of making a general assignment, is prohibited by the statute.

We are asked to construe the language, “In all general assignments of the estates of debtors for the benefit of creditors hereafter made, any preferences made therein * * * shall not be valid, except,” etc., closely, and hold that preferences not created in instruments known as general assignments are not within the condemnation of the section. Such an interpretation would defeat the intent of the legislature, and the statute would be found to be no bar to the practices at which it was aimed. Insolvents would be left free to secure their friends by independent instruments, executed in contemplation of making general assignments, which, when executed, would carry to their assignees but a remnant of their estates for the benefit of their unfavored creditors. The words of the section must be construed to embrace all of the instrumentalities which failing debtors, in contemplation of a general assignment, voluntarily employ to give preferences to particular ceditors. As was said by Finch, J., in Richardson v. Thurber, 104 N. Y., 610; 6 N. Y. State Rep., 489: “ The word ‘assignment’ may sometimes have reference to the instrument which affects the transfer and sometimes to the transfer itself, considered as a legal effect or result"

The section under consideration was intended to prevent the forbidden result, whether accomplished within or without the general assignment This question has been several times before the supreme court in this state and conveyances which created preferences for more than one-third of the insolvent’s estate, when made in contemplation of a general assignment, have invariably been condemned as violations of the statute. Manning v. Beck, 54 Hun, 102; 26 N. Y. State Rep., 483; Spelman v. Freedman, 54 Hun, 409; 27 N. Y. State Rep., 392 ; Sweetser v. Smith, 5 N. Y. Supp., 378; 20 N. Y. State Rep., 62; Spelman v. Jaffray, 6 N. Y. Supp., 570 ; Kessell v. Drucker, id., 945 ; Abegg v. Schwab, 24 N. Y. State Rep., 986; Wilcox v. Payne, 28 id., 712.

The question has also been considered by the courts . of other states under similar statutes, forbidding or regulating preferences in voluntary or general assignments for the benefit of creditors.

In Illinois the act is entitled “ An act concerning voluntary assignments, and conferring jurisdiction upon county courts. Approved May 22, 1877,” and contains fourteen sections. The first prescribes the mode in which assignments shall be executed and is, in part, as follows :

“Section 1. Be it enacted by the people of the state of Illinois, represented in the general assembly, that in all cases of voluntary assignments hereafter made for the benefit of creditors, the debtor or debtors shall annex to such assignment an inventory,” etc.

The succeeding eleven sections prescribe the power and duties of assignees and the procedure by which voluntary assignments are to be carried into effect The fourteenth section confers jurisdiction upon the county courts to carry out the provisions of the act The thirteenth section provides :

“ Section 13. Every provision in any assignment hereafter made in this state providing for the payment of one debt or liability in preference to another shall be void, and all debts and liabilities within the provisions of the assignment shall be paid pro rata from the assets thereof.”

The question has several times arisen whether preferences created, not in a voluntary assignment, but by instruments executed at about the same time and in contemplation of making a general assignment; were within the statute. In Preston v. Spaulding, 120 Ill., 208, the insolvents preferred certain of their creditors by confessing judgments, and on the same day that their general assignment for the benefit of creditors was made. The point was taken that the statute made void only preferences in the general assignment, and not those otherwise given. In discussing this question it was said: “We hold that it is within the spirit and intent of the statute that, when a debtor has formed a determination to voluntarily dispose of his whole estate, and has -entered upon that determination, it is immaterial into how many parts the performance or execution of his determination may be broken; the law will regard all his acts, having for their object and effect the disposition of his estate, as parts of a single transaction, and on the execution of a formal assignment will, under the statute, draw to it, and the law will regard as embraced within its provisions, all prior acts of the debtor, having for their object and purpose the voluntary transfer or disposition of his estate to or for creditors; and if any preferences are shown to have been made, or given by the debtor to one creditor over another in such disposition of his estate, full effect will be given to the assignment, and such preference will, in a court of equity, be declared void and set aside as in fraud of the statute.” This doctrine has been approved in subsequent cases in that state, and also in the supreme court of the United States, in White v. Cotzhausen, 129 U. S., 329, which arose under the Illinois statute. In that case an insolvent debtor, by deeds, bills of sale and warrants for the confession of judgments, disposed of all his property for the benefit of his brothers and sisters who were creditors, but made no general assignment In an action brought in the circuit court of the United States to set aside the conveyances as violations of the thirteenth section of the voluntary assignment act, it was held that it was quite immaterial that no general assignment had been executed, but that any preference, however created, by an insolvent while engaged in making a complete disposition of his property, was forbidden, and void under the act.

The judgment of the circuit court was placed in part upon the ground that the conveyances and confessions of judgment “were made without adequate consideration and with intent to hinder, delay and defraud the appellee, Cotzhausen ” (p. 333), the complaining creditor, but the judgment of the supreme court was not rested upon that ground. It was said: “We have already seen that the circuit court proceeded upon the ground that the conveyances, bill of sale, confession of judgment and transfers by Alex. White, Jr., were made without adequate consideration and with intent to hinder, delay and defraud the appellee. Upon these grounds it gave him a prior right in the disposition of the property. We are not able to assent to this determination of the rights of the parties; for the mother, sisters and brother of Alex. White, Jr., were his creditors, and, so far as the record discloses, they only sought to obtain a preference over other creditors.” (Page 344.)

The reference to White v. Cotzhausen must not be taken as an indication of approval, nor this cautionary remark as an intimation that we disapprove of the doctrine that when an insolvent, without making a general assignment, transfers his entire estate to favored creditors by several instruments, it is a violation of the section, but the case is instructive in its reasoning, and shows the trend of courts when called upon to consider like statutes.

In this state the supreme court, Stein v. Levy, 55 Hun, 381 ; 29 N. Y. State Rep., 87, one judge dissenting, has declined to-follow the doctrine of the case cited to its logical conclusion.. In Pennsylvania it has been held, Lake Shore Banking Co. v. Fuller, 110 Penn. St., 156, that a confession of judgment to a bona fide creditor, by an insolvent, on the eve of making a general assignment for the benefit of creditors, is not a violation of the statute which forbids preferences in assignments, but in most of the states the construction which we have indicated prevails.

Thus far this case has been considered upon the theory that the-appellant had no knowledge when he took his confession of judgment- that his confessors contemplated making a general assignment, and we think it might well be decided upon that theory. But it is urged by some of our brethren that there being no express finding of fact that the appellant knew that the judgment debtors intended to make an assignment when the confession was. taken, that his judgment should not be set aside, but allowed to stand as a valid preference to the extent of one-third of the estate, of the assignors.

We think a sufficient answer to this suggestion is that the appellant makes no such claim, but from the first to the last he has planted himself upon the ground that in the absence of an explicit finding that he knew that a general assignment was intended, he is entitled to sustain his judgment and retain the whole sum collected thereby No such question was raised at special term, at the general term, nor is it suggested in his brief on this appeal.

There is a further answer to this position as before stated, the. record before us contains none of the evidence. “ Where the evidence given on a trial is not contained in the case on appeal to-this court, it must- be assumed that the facts proved were sufficient to sustain the findings, and also to sustain any additional findings required to support the conclusions of law not in conflict with the affirmative facts found. '' Gardiner v Schwab, 110 N. Y., 650; 17 N. Y State Rep., 174; Murray v. Marshall, 94 N. Y, 611, 617; Reese v. Boese, id., 623 ; Kellogg v. Thompson, 66 id., 88; First Nat. Bank v. Wood, 45 Hun, 413; 10 N. Y. State Rep. 87; Bond v. Bond, 50 Hun, 507; 21 N. Y. State Rep., 682.

An assumption that George E. Varrelmann knew that the judgment debtors contemplated a general assignment is not in conflict with any of the affirmative facts found, nor is it in conflict with any facts which the court refused to find. The record does not disclose that the court refused to find any facts which were requested, by either party As before stated, the court found as facts that “ said confession of judgment, and the execution and levy which followed, were made in fraud of said general assignment.’’ The judgment by confession was the joint act of the judgment debtors and of the judgment creditor, which is found to have been made in fraud of the assignment. Issuing the execution, causing a levy and sale to be made, were the individual acts of George E. Varrelmann, which the court found were in fraud of the assignment. These facts so expressly found with the other significant facts found and admitted by the answers, to wit: the relationship existing between the parties, that the assignment, the confession of judgment, and the issuing of the execution and levy thereunder, were concurrent acts performed on the same afternoon, taken in connection with the knowledge of Varrelmann that his judgment, execution and levy' would absorb much more than one-third of the assets of the firm, seem to us to require this court, under the rule laid down, to infer in support of this judgment, which is so apparently an equitable one, that George E. Varrelmann knew, when he took his judgment and made his levy, that his son and the partner of his son then contemplated making a general assignment. If he was not aware of their purpose, it is quite singular that the steps which he took were so timely and happily taken as to accomplish the absorption of the entire assets of the assignors. We think these various proceedings were not the result of accident, but of design. This judgment, confessed in fraud-of the assignment, cannot be regarded as part of it, for both parties to the judgment say it was not so intended, but if it could be, it may be cut down by any act of the assignors 'which would invalidate a general assignment, and the fraud of the assignors, though not participated in by those benefited, avoids a general assignment. Loos v. Wilkinson, 110 N. Y., 195; 18 N. Y. State Rep., 110.

The judgment should be affirmed, with costs.

Bradley, Haight and Brown, JJ. (dissenting).

We are unable to concur with the majority of the court. The record does not contain the evidence. And the facts found do not warrant the conclusion that the appellant took the judgment by confession otherwise than in good faith for a valid debt, and without any knowledge or information that the debtors contemplated making an assignment for the benefit of their creditors.

In that view no reason appears to us for setting aside the judgment ; and it is the right of the creditor to retain it as it was to take it pursuant to the statute providing for that method of taking judgments. But inasmuch as the contession of it was made by the judgment debtors in contemplation on their part of the general assignment which was soon after made by them, and treating it as part of the scheme or transaction of their assignment, so far as they were concerned, the sale on the execution of the judgment was properly set aside and direction given for the payment of the proceeds of the sale to thé assignee for distribution in execution of his trust. In that view, the creditor taking the judgment should not be denied entirely the benefit of the preference which it and the levy of his execution apparently gave him, but he should at least be treated as a preferred creditor, and the amount of one-third of the estate of the assignors left after making the deduction directed by the statute should, treating him as much, be applied pro rata amongst the preferred creditors as their rights in that respect may appear. Othérwise, his means as such judgment creditor to realize anything upon his debt may be entirely defeated. And the rule adopted that the judgment in such case be set' aside, may well have the effect to discourage the taking of judgments by confession, as per chance it may be followed by a general assignment of a debtor making such confession. It would seem to us in such case more in accordance with principle to set aside the assignment as well as the judgment confessed rather than to set aside the latter and permit the former to stand, and such discrimination against the judgment creditor cannot properly be made, unless he is chargeable with a fraudulent intent as against the creditors of his judgment debtor in taking his judgment.

Our conclusion is that unless the plaintiffs stipulate to modify the judgment as above suggested, the judgment should be reversed and a new trial granted, costs to abide the event, and in case they do so stipulate, the judgment be modified accordingly, without costs.

Judgment affirmed, with costs.

All concur, except Bradley, Haight and Brown, JJ., dissenting.