text:
    Matter of the Guardian of the persons of Annie C. King, Edith King and Gertrude King, Infant Children of Elizabeth R. B. King, Deceased.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    1. Guardian—Infants—Jurisdiction of court in matters relating to.
    The supreme court may interfere for the protection of infant children whenever a proper case may appear for that puipose. It is not necessary that the party supplying the information shall disclose an injury to himself, or that any of his rights shall he shown to be jeopardized, but that he shall show such a state of facts as will render it evident to the court that it should interpose for the protection of the infants. When that information is supplied it is the court which acts and directs the proceedings found to be necessary to fully inform itself and indicate what action in the premises may appear to be proper.
    2. Same—Court may remove a testamentary guardian.
    The court has power to deprive the parents of the custody of their children, and as the parent can not delegate any more complete or irrevocable authority than he or she may possess, it has also the power to remove a testamentary guardian appointed by the parent.
    8. Same—Reference on proceeding to remove testamentary guardian—When an irregular admission of matters before tile REFEREE WILL NOT VITIATE AN ORDER BASED UPON THE REPORT.
    Upon the hearing of a petition for the removal of a testamentary guardian, affidavits were produced and read on behalf of the petitioners as well as on behalf of the guardian, and the court directed a reference to take proof of the facts. On the hearing before the referee the counsel for the petitioners proposed that he should receive not only the petition, but the affidavits. Held, that these papers having been presented to the referee as disclosing the allegations made by the parties to the controversy and not as evidence, and the referee having made his decision upon the evidence of the witnesses examined on the hearing, the admission of them was not such an error as to call for a reversal of an order made upon the report of the referee.

      4. Same—What held sufficient ground for removal of a testamentary GUARDIAN.
    Where the guardian neglected to protect the wards from immoral influences. Held, that such conduct warranted the removal of the guardian.
    Appeal by Phoebe F. Fullerton, testamentary guardian, from an order confirming the report of a referee, and removing her from her guardianship of Annie C. King and others.

      Christopher Fine, for app’lt; Joshua H. Van Cott, for petitioner, resp’t.
   Daniels, J.

The proceedings were instituted by a petition presented by Donald McKay, an executor of the will of Elizabeth R. B. King, the mother of the infants, who by her will appointed Phoebe Fullerton, the appellant, for their testamentary guardian. The objection has been taken in the outset that the proceedings could not be lawfully commenced by petition, but that it should have been done by a summons, the process .provided for commencing an action at law or in equity. But the practice in this class of cases has been to proceed in. a summary manner by petition, and it does not appear to have been intended to be dependent upon or restricted to the ordinary proceedings in an action. It has been urged that the case of Livingstone (34 N. Y., 555), proceeded upon a principle adverse to this practice, but while the subject of the right to proceed by petition was there considered, it was not held or decided that this course of practice was improper. The general principle relating to this subject was, on the other hand, mentioned with approval, and that allows a petition to be presented in any matter, “over which the court has jurisdiction by some act of the legislature, or other special authority. Id., 569. And to the •same effect is 2 Barb. Oh. (2d ed.), 579, note 2; and as the proceeding has been described in Wilcox v. Wilcox (4 Kernan, 575), a petition would be the proper mode for commencing it. The proceeding has been commenced by a petition under the latter branch of the rule, just mentioned,_ that it has been provided for and sactioned by the special authority of the court. It is not an action as that has been defined, for the reason that it is not necessarily brought to maintain or enforce a right of the petitioner, or to redress a wrong suffered by him, which are the objects of actions prosecuted in courts of justice. Strictly what an action may be now designated to be has not been defined in the present Code of Civil Procedure.

What it contains on this subject, is the statement made in subd. 20 of sec. 3343, and that is that the word action refers to a civil action, which is as intelligible as many other portions of this code. The preceding Code by subd. 2 of sec. 1, was more clear and explicit in its definition, and that defined an action to be a regular judicial proceeding in which a party prosecutes another for the enforcement or protection of a right or the redress or prevention of a wrong, and declared every other civil remedy to be a special proceeding. This definition was clear and apt and entirely consistent with the preceding as well as subsequent understanding of the distinction between an action and a special proceeding.

This proceeding has not been brought for the protection or enforcement of any right of the petitioner, or to redress any wrong sustained by him, but to inform the court of the existence of certain facts upon which the exercise of its paternal authority has been invoked in behalf of these infants. That authority is well established as a fundamental element of the law, and it requires the court when-whenever a proper case may appear for that purpose, to interfere for the protection and welfare of infant children. It does not require to be set in motion, that the party supplying the information shall disclose .an injury to himself, or that any right he may be entitled to enjoy is in danger of being put in jeopardy. What he is required to do is to inform the court of such a state of facts as will render it evident that it should interpose for the protection of persons dependant upon it as infants are. And when that information is supplied it is the court which acts and directs the proceedings found to be necessary to fully inform itself and indicate what action in the premises may appear to be proper. And this is one of the peculiar proceedings not originating in any legislative act but prescribed and followed by the court as best adapted to the necessities of such cases.

The case is of such a description as ordinarily to require summary action free from the intricacies and delays of an ordinary suit. And that it is the appropriate mode through which this action of the court is to be obtained is evident from this being the course of proceeding ordinarily taken for this purpose. The fact that actions are not resorted to for the purpose of inquiring into the conduct, competency or character of guardians, is a strong argument against the correctness of the objection which has been urged upon this subject by the counsel for the appellant. Both principle and practice sanction this course of proceeding, and this objection must be still held, as it already has been, to be untenable.

The further objection that the court has no authority to remove a testamentary guardian is equally incapable of being maintained, for in the exercise of its authority it has often interposed to divest the parent himself of the custody of his child or children where that may be proven to be necessary for their benefit. Matter of Watson, 10 Abb. N. C., 215; Matter of Waldron, 13 John., 418; People ex rel. Brush v. Brown, 35 Hun, 324.

And as long as the court has the authority of depriving the natural guardians of the custody of their children, it certainly must be equally authorized to remove a guardian deriving his or her authority wholly from the parent. For it follows that the parent must be incapable of delegating any more complete or irrevocable authority than he or she can be held to possess. The rule upon this subject has been broadly stated in 2 Story Eq. Jur. (5th ed.), § 1339, to include all guardians testamentary as well as those otherwise appointed. And while the cases referred to in support of the proposition do not nominally include a testamentary guardian, the principle maintained by them is so broad as not to justify an exception to its operation in his, or her, favor. The object and purpose of the interference of the court is to secure the safety and promote the welfare of the children themselves, and‘wherever it becomes necessary for these objects to interpose, the custody and care of infants will in all "cases be provided for as that can best be secured. For these purposes it has been rightly said: “that the court interfered with the ordinary rights of parents as guardians by nature, or by nurture, in regard to the custody and care of their children. For although in general parents are entrusted with the custody of the persons and the education of their children, yet this is done upon the natural presumption that the children will be properly taken care of and will be brought up with due education in literature and morals and religion, and that they will be treated with kindness and affection. But wherever this presumption is removed, whenever for example it is found that a father is guilty of gross ill-treatment, or cruelty, towards his infant children, or that he is in constant habits of drunkenness and blasphemy, or low and gross debauchery, * * * or that his domestic associations are such as tend to the corruption and contamination of bis children, or that he. otherwise acts in a manner injurious to the morals, or interests, of his children; in every such case the court of chancery will interfere and deprive him of the custody of his ■ children and appoint a suitable person to act as guardian and to take care of them and to superintend their education.” 2.Story Eq. Jur. (5th ed.), § 1341. . .

. . And in the general bearing and extent the same principle is recognized and approved in Matter of Welch, 74 N. Y., 299, and it follows from this ample authority of the court to deprive the. parent of the. custody of his children where that may be found to be necessary for their protection, education and maintenance, that it may also deprive a testamentary guardian of such custody.

Upon tibe hearing of the petition, affidavits were produced and read on behalf of the petitioner as well as on behalf of the guardian, and the court deeming the controversy to be of sufficient importance to justify the order, directed a reference to a referee to take proof of the facts, as they were generally alleged against the. guardian. On the hearing before the referee the counsel for the petitioner proposed that he should receive not only the petition, but the affidavits. That was objected to by the counsel for the guardian who excepted to the decision of the referee ahowing the papers to be .made a part of the proceeding, These papers do not appear to have been presented to the referee as evidence for his consideration, but as disclosing the allegations and assertions made by and in behalf of each of the persons engaged in this controversy. And that seems to have been his opinion in tíre proceeding, for he has made Ms decision upon the evidence as it was obtained from the witnesses sworn and examined upon the hearing. Even, therefore, if these affidavits should not strictly have been received, they in no manner biased or prejudiced the case against the guardian, and an error in that respect would not result in a reversal of the order. This also seems to have been the view taken of the proceeding by the special term when the order was made from which the guardian has appealed, for it was upon a consideration of the evidence, as it has been given by the witnesses, that the order was directed removing the guardian.

Beyond these objections the counsel for the guardian has presented elaborate arguments tending to support his conclusion that the evidence was not sufficient to warrant the removal of the appellant.. It will not be necessary to follow these arguments'minutely fin-the Consideration of theevidence, for the impression produced by that which must be accepted as controlling, is such as to require this point to be determined against the guardian. She is a widow and a relative of the deceased father of these children, and was a friend and associate of their mother, who, believing her to be a competent and trusty person for this purpose, appointed her by her will the guardian of these, her infant daughters. These three children are still in immature years. The eldest, Anna 0., was of the age of twelve years; Edith, the second daughter, of the age of nine years, and Gertrude, the tMrd daughter, of the age of seven years, shortly before the time when these proceedings were instituted. The family of the guardian consisted of herself and of her son Richard Butler, of the age of about eighteen years, in addition to the domestics of her household. The evidence does not show that she ill-used these children while they remained in her custody as their guardian, but it does tend to prove improper management on her part in directions given to the two younger of them while they were members of her household. These directions sent one, or both, of fhé younger children to the room of her friend and visitor Mr. Chambers before he was dressed in the morning, and when his clothing consisted of only his flannel shirt and drawers. This person was a friend of the mother of the children, and a weekly visitor at the residence of the guardian, remaining there over night, and in the morning, on several occasions, was allowed to repair to her room with his pants and undershirt on, to complete his toilet under the observations of one or both of these younger children. • Her conduct with this person is not free from suspicion, and so far as the children were affected by it she appeared to have no special feelings of delicacy on their account. Upon one occasion Madeline Fardon, who was slightly older than the second of these children, was a visitor at this residence, and she, with the sanction apparently of the guardian, was allowed to sleep in the same bed with her own son, to the knowledge and within the observation of her wards. This, though not a personal injury to the wards themselves, was, to say the least of it, an indecent exhibition of indifference to the influences which should be exerted over the children. It was not such an example as should have been permitted to have been brought within the range of their observation. And this circumstance, together with the other conduct already referred to, tended very decidedly to prove that the guardian possessed no very high degree of solicitude for the moral influences to which these children should be subjected.

But the more serious and important of the charges affecting the care and management of these children is that relating to the conduct of the guardian’s son Richard. It has been charged against him that he took indecent liberties with the younger two of these children and subjected them to sexual abuse. This has been denied on the part of herself and her son, and it has been intimated that the charge originated with the family, friends or relatives of the children, who desired in that manner to supersede her guardianship. And from the evidence it is reasonably clear that some of them certainly were dissatisfied with her selection as the guardian of these children. But it is not to be concluded from this fact or the evidence given in exoneration of herself and her son, that the charge itself has not been sufficiently supported to maintain it. For before any motive could have been supplied to the children to make a false charge against the guardian’s son, or any influence could probably have been exerted over them inducing them to misconduct themselves in that respect, they had disclosed to their nurse Alice O’Neil the fact that they had been interfered with in this very improper manner. The relations given by them of what is státed to have occurred are so innocently childish hi themselves as to exclude the probability that they had been practiced upon by any person or persons, or in any manner induced to relate what had not happened as a part of their own experience. These relations were made by the younger children to the nurse on Friday before Mrs a Sterns, who is their distant relative, spent the night at the residence of the guardian. And they are entirely consistent with the evidence given by these two younger children upon the hearing before the referee, and strongly corroborate the probable truth of their evidence and warrant the conclusion that in their intermediate denials they had been induced by the guardian, or some friend interposing in her behalf, to make such denials to shield and protect her against the result of such a proceeding as this. The conduct to which the two girls had been subjected had come to the knowledge of their elder sister Annie also previous to the time when there could have been any motive or opportunity for practicing upon them or creating a disposition to state otherwise than truly what had taken place. • This eldest sister occupied the same bed with Mrs. Sterns during the night she was at the dwelling, and then related to her what she had understood had been the conduct of the guardian’s son to her two younger sisters. And it was not until after that relation that either Mrs. Sterns, or the petitioner in the proceeding, appear to have made any investigations or taken any steps towards the removal of the appellant as the guardian of the children. Their conduct, therefore, does net appear to have been stimulated or induced by any unfriendly disposition towards the guardian, but from a conviction that what these children had said was the truth, and that she was no longer a proper person to have the charge and custody of the children as long as they were exposed to abuses of this description. And. upon that conviction, which may have been induced in part by the feeling that she ought not in the first instance to have been appointed their guardian, they have proeéeded with this investigation. And certainly after the information received by them from the children, and substantially also from their nurse, it was hot only proper but commendable that they should intervene for the protection and .benefit of these children, who were too young to be expected to do that for themselves. The evidence given upon this charge is taken together, of so convincing a character as to render it apparently impossible for any person other than the guardian to doubt its truth. It is not necessary to go into any detail of the statements of the witnesses, to exhibit the strong probability that what the children said was true. It is sufficient to say that the details repeated by them were beyond their own invention, or imagination and must have been impressed upon their minds by the unfortunate occurrences to which they had been subjected. At the time when the nurse was informed, no idea of the magnitude of the wrong had entered into the minds of these two children, and their artless relations of the occurrences carried with them the impress of truth at every step. Their conduct and their statements wholly corresponded, leaving no ground for substantial doubt, that what they said as to the conduct of the son, was most undoubtedly the truth. And that very clearly exhibited the impropriety of their being longer permitted to remain mernbers of the same family with the guardian. Her testimony is that she had sent her son from the house, intending that he should no longer be a member of the family of which these children formed a part. But neither that circumstance, nor the fact that she was not complicated with misconduct of her son, would justify the court in leaving the children longer in her charge. For, as she states herself, she disbelieved what the children had said and considered her son to have been falsely accused by them, that would in future induce a feeling of indifference and probable resentment on her part towards the children rendering her an improper person for their custody. It would be entirely natural for the mother believing her son to have been untruthfully accused of this misconduct by the children, to regard them as the agents of a gross wrong to her own family. And with that conviction resting upon her mind she could not be expected to give them that solicitude and affectionate care which their sex and ages require, or to maintain with them, the confidential relations that a guardian standing in the place of their mother, should be expected to maintain. After what has occurred in this respect according to her own statements, even if she could be relieved from direct responsibility for the conduct of her son, she would manifestly be an improper person to be longer entrusted with the charge and control of these children.

What the court is required to consider is that which will best promote their safety; welfare, education, deportment and security and these • objects evidently will be best sub-served by placing them under the guardianship of some other person who will not be induced to indifference or stimulated to resentment by the conviction that she has suffered a wrong through the accusations and statements of the children themselves. And as long as a friendly, competent and careful guardian can well be secured for them, it should be done in preference to subjecting them to the risks which they would encounter by returning them again to the charge of the appellant.

_ No reason has been discovered, from a very full examination given to the case, for doubting the sufficiency of the evidence to maintain the conclusions arrived at by the referee. And as the proceedings themselves in all respects appear to have been regular, the order from which the appeal has been taken should' be allowed to stand. No further direction than this will be necessary for the disposition of the appeal, for the order itself has provided for the return of the deposit of $1,000 to the petitioner. And as the case is an unfortunate one, not only for the children themselves but also for the guardian, the affirming the order appealed from should.be made without costs.

Davis, P. J., and Brady, J., concur.


source: Caselaw Access Project

author: Daniels, J.

license: Public Domain

text:
    Henry L. Pierson et al., App’lts and Resp’ts, v. Robert Crooks et al., Resp’ts and App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    1. Contract, for sale of goods—When delivery not complete upon loading of goods on the vessel.
    C. and Co , of Liverpool, entered into a contract, dated New York, certain specified quantities of three distinct and separate qualities of iron for different prices “ all free on board Liverpool, payment by sixty days sight bill of exchange against shipping documents here less two and one-half per cent.” Held, that the contract neither provided for nor eontemplated'an inspection or examination of the iron by P. & Co., at Liverpool. That no intervention on their part was provided for, but the obligation to deliver the quality of iron mentioned and described in the agreement free on board at tljfit- pjaqe'was wholly cast upon:'C. '&"Co.,'ánd"that "if they failed to perform -it, P. & Co. had the right upon, the discovery of that fact oji its.anStaTto..reject so much ,of tlie .iron, as failed to comply with the term of the5 contract"(cases cited and uisiinguished).

    3. Same—Acceptance—When examination must be made

      HM, that the law requires no more than reasonable diligence in the examination of property shipped, or offered to the purchaser after its arri\ al. That P. &Co., were not required to dispense with tlie other demands of their business and devote immediate attention to the iron as soon as it arrived; but that-it was their duty to proceed reasonably as they would" be expected to do with other urgent matters of business.
    3. Same—Right of inspection in executory contracts.
    . Held, that the light of inspection arid and" examination precedes the obligation to accept the property, where the sale is executory and the property itself is unascertained or separated.
    4. Same—When severable—When can be accepted in part and rejected in part.
    On a certain steamer was shipped by C. & Co. to P & Co.-, a lot of iron containing a certain quantity oí each of two kinds of the iron. The iron of one kind was accepted, hut that of the oth. r rejected, being of inferior quality. By the agreement these were distinct and separate quantities of iron, whi. h 0. & Go. agreed to sell and deliver for different prices. Held, that the contract of sale was not entire but severable in its nature alloy ing tile purchaser to receive that distinct part of the property complying with the terms of the contract and reject the other distinct part that failed ro he of the description of property agreed to he sold. That by so doing P. & Co. did not rescind the contract, but, were entitled to recover from 0. & Co., under the contract what they had paid upon the iron not accepted and for any loss . ustained in consequence of a change in its market price.
    5. Same—When part payment is not an acceptance.
    It was essential that P. & Co. should possess the “ shipping documents " in order to be able to obtain any control of the iron. Held, that the payment of money on the delivery as required by the contract on the supposition that the contract had been performed by C. & Co. was not a waiver of P. & Co. to insist upon the iron being according to agreement.
    6. Same—Shipment from a port other than agreed upon—Effect of.
    Part of the iron was shipped from a port other than Liverpool and refused for that reason. Held, that C. & Co. were bound to ship.the property as provided in the agreement and having failed to do so, P. & Co. were relieved from receiving or accepting the iron so shipped.
    Appeal from a judgment recovered on the report of a referee.

      George A. Black and James C. Carter, for pl’ffs; John L. Hill, for def’ts.
   Daniels, J.

The action was brought by the plaintiffs to recover back moneys paid by them for freight, duties and other charges, on iron which the defendants contracted to sell and deliver to them. The contract was made through the agency of brokers representing the defendants, who were merchants in the city of Liverpool. The conti'act is as follows:

£‘ New York, February 11, 1880.
Sold to Messrs. Pierson & Co., New Yox*k, for account of Messrs. Eobert Ci’ooks & Co., Liverpool:
One hundred (100) tons W. I. W., or equal hoop iron, at £10 per ton.
One hundred (100) tons W. I. W., or equal sheet iron, at £11 15s.
Fifty (50) tons E. GL, or equal sheet iron, at £16 5s. 0d., all free on board Liverpool; paymexxt by 60 days st. bills exchange against shipping documents here, less 2{- per cent. Immediate specification.
White & Drummond, Brokers.
Accepted. PIEESON & OO.”

And the one hundred tons of hoop iron mentioned in it were afterwards inci’eased to one hundred and fifty tons. Specifications were supplied by the plaintiffs for the shipments and delivery of the iron in three or. four different parcels. The defendants were not manufacturers of the iron, but it was designed that they should, as they after-wards did, obtain that from the manufacturers, which they afterwards shipped to the plaintiffs. The one hundred tons of sheet iron proved to be satisfactory and acceptable, and was received and paid for by the plaintiffs. And so was a certain portion of what is called the R. Gf. sheet iron, subject to certain allowances and deductions which were made. The controversy in the action has in this manner been limited to the hoop iron, and the final shipment of the R. G. sheet iron, amounting to nearly forty-one tons. As to all the hoop iron, and this residue of the R. G. sheet iron, the plaintiffs objected to receiving it upon its arrival in New York where the hoop iron was unladen, and in Brooklyn where the R. G. sheet iron was unladen. The objection taken to the acceptance of the hoop iron was that it was very much' inferior in quality to that which the plaintiffs were by the terms of the agreement entitled to receive. Two of the shipments which were made of the hoop iron were also accompanied with shipments of sheet iron. These were made upon the steamers Germanic and Arizona. Other shipments of hoop iron were made by the steamers City of Chester and Abyssinia. Upon these two steamers’ were laden no portion of either quality of sheet iron, and upon their arrival and the unlading of the iron, the plaintiffs, upon an examination of its quality and condition, rejected it as not in compliance with the agreement they had made with the defendants. And the referee by his decision concluded that the plaintiffs were justified in the objections made to this iron leading them to reject it. And for that reason they have been permitted by the judgment to recover against the defendants what they paid for freight, duties and other charges' or ádvances upon this iron. It appeared by the evidence that they were not perinitted to handle or remove the iron until it had been weighed by the officers of the custom house, and that after delaying'until' that-was done the portion of the iron coming by the Germanic was taken to the plaintiff’s place of business,'where an examination was made, of it resulting in their determination to reject it, of which notice was given to the defendants. The other was examined upon the wharf, and being found of the” same quality, that also was rejected." That the evidence justified the referee in concluding this iron to be of an inferior quality to that mentioned in ,the contract of sale is conceded by the case, and that relieves -it from the necessity of any examination of this fact which was disputed before the referee upon the •trial.

There appears to be nothing unreasonable in the delay which took place at the city of New York in the examination of the iron after its arrival. It was not done as speedily as that might be done, but, as the circumstances were made to appear, there was no unreasonable delay on the part of the plaintiffs in subjecting the iron to these examinations. And as the law has required no more than reasonable diligence in the examination of property shipped or offered to the purchaser after its arrival, its requirement was observed by the plaintiffs in this instance. They were not required to dispense with the other demands of their business and devote immediate attention to this iron, but it was their duty to proceed reasonably, as they would be expected to do with other urgent matters of business. And that duty does not seem to have been neglected, as the facts of this case have been disclosed.

It is insisted, however, on behalf of the defendants, that this right to examine the iron and reject or accept it as it was found not to conform with the contract, could not be made after it was received and shipped at the city of Liverpool; that the agreement designated that to be the place for its delivery, and impose the duty upon the plaintiffs of making their examination of it at that port. But that is not the construction which should be given to the agreement. It neither provided for nor contemplated an inspection or examination of the iron at that port, but what was to be there done was for the defendants to deliver the quality of iron mentioned and described in the agreement, free on board, at that place. This was the obligation that they undertook by the contract that was entered into. It was to deliver on board the ships at Liverpool, this, and no other quality of iron. And no intimation was given, or obligation indicated that the plaintiff, who were merchants doing business in the city of New York, should present themselves at Liverpool, either personally or by an agent to discover whether the defendants performed this obligation or not. No intervention on their part was provided for, but the obligation to be there performed was wholly cast upon the defendants themselves, and if they failed to perform it, the plaintiffs had the right upon the discovery of that fact, to reject so much of the iron as failed to comply with the terms of the contract. A point similar to this was considered in Allard v. Greasert (61 N. Y., 1), where the controversy arose under the Statute of Frauds. And while this statute is not brought in question in this case, what was there said concerning the obligation of the vendee to examine the property at the place of shipment for the purpose of ascertaining whether it compiled with the requirements of the contract, is applicable to this controversy. But if not, because of this distinguishable circumstance, as it was manifestly the intention of the parties from the agreement, that what was to be done at Liverpool, was to consist wholly of the acts of the defendants, the vendees were not obliged to present themselves there, either in person or by agent, to see whether they performed as they agreed to do that, or not. This point under a somewhat similar contract was considered in Mee v. McNider (39 Hun, 345), where it was held that the contract of sale obligated the vendor to deliver the property agreed to be sold in the condition required by the agreement, on ship board at the place of shipment. And if tie did that, his agreement was performed; while, if he failed to do so, he failed to perform his contract, and thereby place the property at the risk of the vendee. This point was also considered and a like conclusion reached in Pope v. Allis, (115 U. S. 363). And the authorities very clearly distinguish this case from those relied upon in support of this position by the defendants. For in Neaffie v. Hart (4 Lans., 4), the defective boiler was not only received, but knowing its defects it was retained and used as a .boiler by the vendee. And so was the cheese, which was the property sold in Pease v. Copp (67 Barb., 132), while-in Stafford v. Poolar (67 id., 143), the contract made the delivery of the hops personal to the defendant. These cases are consequently inapplicable to this controversy, and do not conflict in the principle they follow, with that maintained by the other authorities. Those authorities proceed upon the obligation of the vendor in an agreement of this character, to ship the property of the quality, and in the condition described in the agreement, reserving upon its arrival at the port of destination, to the vendee the right to examine and reject it if that obligation appears not to have been performed.

This right of inspection and examination preceding the obligation to accept the property, is maintained by all the authorities where the sale is executory, and the property itself is unascertained or separated as were the facts in this case. This was the conclusion of the court in Sprague v. Blake (20 Wend., 61), where it was said that “when the party come under such a contract, to deliver an inferior, unmerchantable commodity and it lies open to inspection, then is the time for the vendee to take his ground. He must then refuse acceptance, or at least so soon as he discovers what the quality of the article is, and offer to return it,”-(id., 64), and as much as this was held in Reed v. Randall (29 N. Y., 358). For there it was stated in the prevailing opinion that the vendee “isnot bound to receive and pay for a thing that he has not agreed to purchase, but if the thing purchased is found on examination to be unsound, or not to answer the order given for it, he must immediately return it to the vendor, or give him notice to take it back, and thereby rescind the contract, or he will be presumed to acquiesce in its quality. He cannot accept the delivery of the property under the contract, retain it, after an opportunity of ascertaining its quality, and recover damages if it be not of the quality or description called for by such contract,” (id,, 363). And Gurney v. Atlantic, etc., Railway Company (58 N. Y., 358), proceeds upon the same principle. There it was stated that “the general rule is, when articles are sold upon an executory contract * * * that the delivery and acceptance of the articles after examination, or an opportunity to examine them is a consent or agreement that the articles correspond with the contract and precludes a recovery for any defects w'hich'may exist,” (id., 304). And the plaintiffs fully complied with this rule in their examination of the iron, their refusal to receive it, and their notice of that refusal to the defendants. This examination was made when the opportunity first presented itself for observing and testing the make and quality of the iron. It was not required that this should be done before the arrival of the iron at its port of destination by anything contained m, or to be implied from, the agreement, and the right to subject it to the examination which was made, was under the authorities referred to, for the first time legally presented upon the arrival of the iron in the city of New York.

In the case of Pope v. Allis, the examination and inspection of the property was deferred to a much longer and more remote point of time, and still it was sustained by the court and the vendee was relieved from the obligation to recover and accept the property under the agreement. As to these two shipments therefore the plaintiffs clearly maintained their right to recover the amounts awarded to them by the referee in his report. For while the iron on the Abyssinia was not inspected, or examined by the defendants, the evidence in the case justifies the conclusion that it was of the same quality as that delivered from the City of Chester. It was not contended to be otherwise by the defendants, and the plaintiffs assuming from the three preceding shipments that the hoop iron was all of the same quality, notified the defendants of their refusal to receive any more of that quality of iron. And this was communicated to the defendants before the iron by the Abyssinia, was entirely laden, or the ship had left the city of Liverpool. In this refusal they certainly seem to have been justified by the principle proceeded upon in Pope v. Porter (102 N. Y., 366.) For as the defendants had shipped to them only this inferior quality of iron, the facts supported them in the conclusion that no better quality could be expected to be received under the agreement.

As to the hoops shipped by the steamers Germanic and Arizona, a further objection to the right of the plaintiffs to recover arises out of the fact that upon these steamers there were also shipped certain quantities of the sheet iron, the Germanic having on board upwards of fifteen tons and the Arizona upwards of forty-seven tons of the sheet iron. This iron was accepted and received by the plaintiffs, but the hoop iron arriving with it was rejected, and the objection has been taken that the plaintiffs could not accept one portion of these shipments and reject the other. But by the agreement these were two distinct and separate qualities of iron which the defendants agreed to sell and deliver for different prices. For the hoop iron they were to be paid £10 per ton, and for the sheet iron they were to be paid £11 15s. per ton. These sales were accordingly of two separate and distinct subjects for distinct prices pertaining and applicable to each of them. And when that is the case the contract of sale has not been considered to be entire but severable in its nature, allowing the purchaser to receive that distinct part of the property complying with the terms of the agreement, and to reject the other distinct part which fails to be of the description of the property agreed to be sold. This point was considered in Young, etc., v. Wakefield (121 Mass., 91), where it was held that different articles bought at the same time for distinct prices might be accepted so far as they conformed to the agreement of sale, and rejected where that proved not to be the fact. Id., 93. This was also held to be the law in Merrill v. Agricultural Ins. Co. (73 N. Y., 452), and the same principle is applied in Swift v. Opdyke (43 Barb., 274), and it is in no degree in conflict with the case of Secor v. Sturgis (16 N. Y., 548.)

This principle applied in this manner is entirely consistent with the general legal rule that where an agreement is to be rescinded, it must be rescinded wholly or not at all, for the plaintiffs did not undertake to rescind the agreement relating to the shipments of hoop iron except in the single instance of that which finally came by the Abyssinia. What they did was to refuse to receive the inferior quality of hoop iron shipped to them by the defendants for the purpose of performing their agreement. That did not rescind the contract or any part of it. It was still left as a subsisting agreement between these parties which the defendants might have fulfilled by supplying the plaintiffs with the proper quality of hoop iron. If they had done that, then the plaintiffs would have been liable for whatever damages might have been sustained by refusing to receive the iron. And as they failed to do that, the plaintiffs were at liberty to claim indemnity under the contract for what they had paid upon the iron, or for any loss they might have sustained in consequence of a favorable change in its market price. These rights legally grew out of the contract itself, and entirely distinguish the case from those where a rescission of an agreement has been attempted. There the law requires that it shall be wholly rescinded to make the act of the party effectual for the purpose of recovering back that which he may have parted "with under the agreement. This is not that case, but it is a case where the defendants agreed to deliver a special quality of hoop iron and failed to do so. By that failure they omitted to perform their agreement, and all that the plaintiffs did was to refuse to receive the inferior iron when they discovered this failure on the part of the defendants. It was not a rescission of the agreement in any respect whatever, but no more than a refusal to receive what they were not bound to accept as a part performance of the agreement. And they were accordingly entitled to recover upon the view which the referee was supported in adopting concerning the facts of this part of the controversy.

The payments which were made by the plaintiffs towards the purchase price of the iron did not have the effect of waiving their right to insist upon it that the quality should be the same as that mentioned in the agreement. For the first payment does not seem to have included any part of the hoop iron on the Germanic which had then been discovered to be defective in quality, and it was made as the agreement declared it should be, by a bill of exchange against the shiping documents produced and delivered to the plaintiffs, which it was essential they should possess in order to be able to obtain any control of. the iron. This payment including the invoice by the Arizona, as well as the succeeding payment were made on account, and on the supposition that the contract had been, or would be, so performed as to entitle the defendants to the money. It was not a voluntary payment in the sense excluding their right to recover so much of it back as would protect the defendants against the obligation to restore so much of the money, as the plaintiffs’ indemnity required to be restored by the failure to perform the agreement which they entered into. Neither these payments nor any other facts appearing in the case, deprive the plaintiffs of the right to recover, so far as it has been sustained by the conclusions of the referee.

It has, however, by the judgment, been determined that the plaintiffs were not justified in refusing to accept so much of the R. G. sheet iron as arrived by the steamer Rhubnia. This iron was not laden on the steamer at Liver-. pool, but it was put on board of her at Curdith, a port in Wales, on the Bristol channel. And because of its shipment in this manner, as well as objections taken to a slight excess in the quantity, the plaintiffs refused to receive it.

And the first of these objections certainly appears to have been warranted by the agreement, for the defendants agreed to ship this iron at Liverpool. They were not to insure it, but that was to be done according to the specifications by the plaintiffs. And as they were not aware of this change in this port of shipment, the insurance effected by them upon it if they did insure it would have been worthless if the iron had been injured or lost, by a peril of the sea. This variation from the port of shipment would render the insurance invalid and it did not create even a qualified delivery of the iron to the defendants, subject to their right of examination, under the rule sustained in Wilcox, etc., Plate Co. v. Green, 72 N.Y., 17. For to constitute even a qualified delivery of this description, the defendants were bound to ship the property as that had been provided for in their agreement. And having failed to do that and no acceptance of the iron being made by the plaintiffs after its arrival, there was not even a qualified delivery, of the.iron shipped in this manner. As to this iron the defendants failed to perform what the parties had agreed upon as one of the precedent attributes of their contract. And the peformance of that condition was not waived by receiving and paying for the iron shipped at the same port on the Rhiwinda, as that payment was made without information on the part of the plaintiffs that the iron had not been shipped at Liverpool, and the defendants accordingly had no legal right to claim that this iron should be received by the plaintiffs. A point of this description was considered in Filley v. Pope (115 U. S., 213), where it was held that such a departure, into the port of shipment, relieved the vendee from accepting or receiving the property so shipped. The referee accordingly erred in the conclusions arrived at by him, that the plaintiffs were legally liable to accept this iron, and not having done so, were chargeable with the difference between the price they agreed to pay for it, and the net proceeds of the sale which was after-wards made of it. This part of the judgment, therefore, requires to be reversed, and the amount deducted on account of it from the demands sustained by the proof in the plaintiff’s favor, should be restored. And as there is not the slightest ground for supposing, as suggested, that the defendants will be able to make any case upon which the plaintiffs would be legally chargeable for this difference, a further trial of this part of the action will not be necessary. This part of the judgment should accordingly be reversed and the counter-claim of the defendants including it, dismissed unless a further trial of this part of the action shall be made to appear to be desirable on the settlement of the terms of the decision, and the plaintiffs should have judgment for the amount found to be otherwise due and owing to them by the referee and included in the judgment, and as so modified the judgment should be affirmed.

Davis, P. j., and Brady, J., concur.


text:
    George A. Haynes et al., App’lts, v. John I. Brooks et al., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    1. General assignment for the benefit of creditors—Partner may DEVOTE HIS INDIVIDUAL PROPERTY TO THE PAYMENT OF FIRM DEBTS.
    A par ner may by a general assignment for the benefit of creditors, appropriate bis own individual property, as well as that of the firm, to the payment of partnership debts.
    á. Same—By Surviving partner may include firm property.
    A surviving partner may make a general assignment for the benefit of creditors, and include in it property of the preceding firm.
    Appeal from a judgment recovered on trial at the special term.

      George W. Van Sly etc, for app’lts; Franklin Paddock, for resp’ts.
   Daniels, J.

The action is prosecuted by the plaintiffs as judgment creditors to set aside as fraudulent, a general assignment by the defendant, John I. Brooks, for the benefit of creditors. He was the surviving partner of the firm composed of himself and Edward 0. Brooks, deceased. His partner died in September, 1883, and he himself carried on the business until this assignment was made on the 3d of March, 1884. It included so much of the partnership stock as still remained undisposed of, and such further goods as the assignor himself had purchased and added to the stock during this intervening period, and still remained unsold. By the assignment preferences were made which were directed to be paid out of the proceeds of the assigned property, and the plaintiffs have objected to the legality of the assignment, on the ground that the assignor could not in this manner devote his own individual property to the payment of debts owing by the firm, of which he had been a member. But this objection cannot be sustained, for the reason that the law permits a partner to appropriate his own individual property, as well as that of the firm, to the payment ef partnership debts. This was considered and held in Kirby v. Schoonmaker (3 Barb. Ch., 46), and that principle was followed in Hurlbert v. Dean, (2 Abb. Ct. App., 429). It was also considered the law in Egberts v. Wood (3 Paige, 517, 526), and Shanks v. Klein (104 U. S., 18), seems to have preceded upon the same understanding of the law.

A further objection taken to the assignment is that one assignor as a surviving partner had no authority to make it and include in it the property of the preceding firm. But this has been held otherwise in the case of Williams v. Whedon (39 Hun, 98), and in the still more recent case of Emerson v. Senter (118 U. S., 2). And these decisions to some extent, certainly reduce the force and effect of Nelson v. Tenney (36 Hun, 327), which, however, does not control the point now being considered.

A further objection to the assignment is, that it has not provided for, or directed the payment by the assignee of the individual debts owing by the assignor. But that as a matter of construction seems to be a misapprehension for the assignment by its fourth paragraph directs the assignee not only to pay the other debts owing by the firm of John I. Brooks & Company, but also the debts against the assignor as the survivor of that firm. And this direction does include his individual debts. For whatever may have been contracted by him since the dissolution of the firm were his individual debts, as the surviving member and describing himself as the survivor of the firm did not change their character or his liability upon them. Under this direction it would be the duty of the assignee to pay not only the remaining debts of Brooks & Co., but also such debts as should be found to be owing from the assignor himself. The cases of O'Neil v. Salmon (25 How., 246) and Crook v. Rindskopf (34 Hun, 457) are entirely distinguishable from the point presented by this appeal. And so is that of Collomb v. Caldwell (16 N. Y., 484), inasmuch as the assignment does authorize and make it the duty of the assignee to pay all the debts of the assignor, whether owing by the firm or by him individually. And the obligation after such payments, if the estate should prove sufficient for that purpose, is imposed by law, of returning the surplus to the assignor. The case was disposed of at the trial as the law required that to be done, and the judgment in this action, as well as in the other case heard with it, of Spring v. Brooks, should be affirmed.

Davis, P. J., and Brady, J., concur.


text:
    John H. Starin, App’lt, v. Mayor, etc., of New York et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    1. Ferry franchises—Hew York city—Consolidation act—Wharves and piers—Legality of sale by commissioners of sinking fund— Laws 1882, chap. 410.
    An action was brought by S. the plaintiff, as a taxpayer, under chapter 531, Laws 1881, to restrain the completion of the execution and to. set. aside a contract for a lease of a wliarf and ferry franchises in the city of New York. The wharf and bulkhead was situated at the foot of Whitehall street (which was not a uistriet appropriated by the department of docks to special comme; cial inte ests/, and one of the ferry routes extended from that street to Staten Island, the other from ihe same point to Bay Ridge on Long Island. The franchises were advertised to be let to the highest bidder for a certain term from June 1, lt84. The rental of the wharf property was pieviously fixed and mentioned in the notice ;.t the sum of $10,u00, and the ferry franchises were to be offered atan upset price of five per cent of their gross receipts. The sale took place as it was advertised, and the S. I. R. T. Railroad Company purchased tli; term and franchise for which a lease was to be executed and delivered to it. Before the sale was made, objections were presented to the right of the sink ng fund commissioners to make it in this manner. Bids were refused at the sale proposing a higher rental for the wharf and an advance over the upset price for the ferry franchise, it being determined at the ti ne of the sale that the rental had been fixed for which the lease of the wharf was to be made. Held, that the consolidation act (Laws 1882 chap. 410, § 716) required that the lease of the wharves be sold to the highest bidder. That the determination of the rent by the commissioners was in violation of the statute and their proceedings were illegal, and that they should be restrained from carrying them into effect, and so far as they may have been consummated they should be vacated and annulled.
    S. Same—Who may acquire ferry franchise—What ferry franchises MAY BE ACQUIRED BY STATEN ISLAND RAPID TRANSIT R. R. COMPANY— Laws 1884, chap. 193.
    The S. I. R. T. Railroad Company was incorporated under the general railroad law of this state to construct and operate a railway between certain points on Staten Island. Held, that it was no part of its organization to acquire a ferry right or to run or operate a ferry from the terminus of its road to the city of New York. That while Laws 1884, chapter 193, was sufficiently broad to entitle said road to acquire the right to do this, it does not confer upon the company the power to lease another distinct ferry to be operated fro n. the city of New York to Bay Ridge.
    3. Same—Party plaintiff—When taxpayer may bring action to set aside lease of city property—Laws 1881, chap. 531.
    S. was a bidder at the sale and was interested in the use of the wharf and the ferry franchise previous to the time of the making of the sale. Held, there was nothing in these facts disabling S. from maintaining the action under Laws 1881, chapter 531.
    Appeal from a judgment recovered at the special term dismissing the plaintiff’s complaint.

      James McNamee, forappl’t; Stewart & Boardman and D. J. Dean, for resp’ts.

       Reversing S. C., 1 H. Y. St. Rep., 545.

   Daniels, J.

The action was brought by the plaintiff as a tax-payer under chapter 531 of the Laws of 1881, to restrain the completion of the execution, and to set aside a contract for a lease of a wharf and ferry franchises in the city of New York. The wharf and bulkhead is situated at the foot of Whitehall street, and one of the ferry routes extended from that street to Staten Island, the other from the same point to Bay Ridge in the town of New Utrecht on Long Island. The franchises were advertised in the City Record, to be let to the highest bidder for the term of eight years and eleven months from June 1, 1884. The rental of the wharf property was previously fixed and mentioned in the notice, at the sum of $10,000, and the ferry franchises were to be offered at an upset ¡Drice of five per cent of their gross receipts. The sale took place as it was advertised and the defendant, The Staten Island Rapid Transit Railroad Company, purchased the term, and franchises, for which a lease was to be executed and delivered to it. Before the sale was made, objections were presented to the right of the Sinking Fund Commissioners to make it in this manner. It was urged that each ferry route should be separately sold, and that the rental for the wharf property should be fixed alone by the price for which the purchaser would be willing to take it at an auction sale. These objections were disregarded and bids were refused at the sale proposing a higher rental for the wharf, and an advance over the upset price for the ferry franchises, it being determined at the time of the sale that the rental had been fixed for which the lease of the wharf was to be made. The plaintiff deeming this to have been an unlawful disposition of the leasehold interest in the wharf and of the ferry franchises sold with it, as one of the tax-payers of the city brought this action to restrain and prevent the completion of the sale, by the execution and delivery of the lease, and to vacate and annul the sale itself. He was a bidder at the sale, and was interested in the use of the wharf and the ferry franchises previous to. the time of the making of the sale. And because of his interest, the objections made by him to the authority of the Sinking Fund commissioners to make the sale in the manner in which it took place, it has been urged, should not be considered and that this action cannot be maintained by him. But, the law contains nothing disabling a tax-payer, who may have been desirous of obtaining the leasehold interest, or who bid at the sale, or previously owned a leasehold term - in the same property, from maintaining such amaction as this.. What it requires is that the plaintiff- shall be :-a: tax-payer ■ assessed for property to the amount, at least, of'$1,000,,. and that the requisite bond'ShalF’b'e executed ’ ahd*delivered,’‘ as that" has been directed by the law. And that the plaintiff was such a tax payer, and. this bond has been executed and filed, appears as facts in the case. And that distinguishes this case from Hull v. Ely, (2 Abb., N. C., 440). Under the provision of the statute, he was a person authorized to maintain the action, if upon the facts appearing the disposition proposed to be made of the property and ferry franchises, was illegal. The object of'this statute is to secure the protection of public property, and to subordinate the acts of officials in its disposition, or appropriation, to the restraints of the law. And it requires to- be liberally construed and applied to carry this object into effect, Ayers v. Lawrence (59 N. Y., 192), and under its provisions, actions in part the same as this have been sustained and approved by the courts. Bird v. Mayor, etc, 33 Hun, 396; Warrin v. Baldwin, 35 Hun, 334.

By a resolution adopted by the common council of the city of New York, and approved by the mayor on the 3d of November, 1875, a ferry was established to run from the bulkhead at the foot of Whitehall street in the city of New York to Staten Island, the franchise of which was directed to be sold at auction to the highest bidder. By another resolution adopted by the common council, and approved' by the mayor, on the 1th of June, 1877, another ferry was established from the foot of Whitehall street to Bay Ridge, the franchise of which was also directed to be sold at auction to the highest bidder. This was also the mode provided by section 176 of chapter 410, of the Laws of 1882, for the sale and disposition of city property, including franchises. It was thereby declared that the board of commissioners of the sinking fund should “exceptas in this act otherwise especially provided, have power to sell, or lease, for the highest marketable price, or rental, at public auction, or by sealed bids, and always after public advertisement and appraisal, under the direction of such board, any city property, except wharfs, or piers, but not for a longer term than ten years, nor for a renewal for a longer term than ten years.” The same commissioners, by section 180, of this act, were further empowered to lease along with ferry franchises, within the city “ such wharf property, including wharves, piers, bulkheads and structures thereon, and slips, docks and water fronts adjacent thereto,- used or required for the purpose of such ferry, now owned or possessed, or which may hereafter be owned, or acquired by said city. ” This authority so far qualified the exception contained in, section 170, of the same act, as to empower the commissioners to lease with the ferry franchises, the wharves, piers,. bulkheads, and structures, adjacent thereto, -and required for the purposes of. the ferry. ■ ?But thetéxercise of .,the..autho.rity in this manner conferred upon the commissioners of the sinking fund was restrained by the provision, that , such wharves, piers, bulkheads, or structures, should be leased in the manner provided by law. That is the express language of the section itself, and it contemplates the existence of a restraint upon this power of leasing the wharves, piers, bulkheads and structures thereon. And this restraint seems to be no other than that contained in section 716, of the same act, which provided that “said department may in the name, and for the benefit of the corporation of said city, lease any or all of such property for a. term not exceeding ten years, and covenant for renewal or renewals, at advanced rent of such leases for terms of ten years each; but not exceeding in the aggregate fifty years. All leases, other than for districts appropriated by said department to special commercial interests, shall be made at public auction to the highest bidder.” This section is contained in that part of the act as relates to the department of docks. But by the provision contained in section 180, of the act, that the lease shall be made in the manner provided by law, it appears to have been the object and design of the legislature to apply these directions contained in section 716 to leases made by the commissioners of the sinking fund, for the use of wharves, piers, bulkheads, and structures thereon, required for the purposes of a ferry. The intention of the statute appears to be, that in the disposition of this property, the sales, or leases, if it should be made through the intervention of an auction or sealed proposal, after public notice properly advertising it. It was to give the public the advantage of competition in which interested parties should be brought together, and the highest possible price obtained for the property to be sold, or leased. And no reason can be perceived why the dock commissioners should be expressly restrained in this manner, and the commissions of the sinking fund should be at liberty to disregard this restraint. The act on the contrary discountenances any such distinction, for it requires the commissioners of the sinking fund, in leasing wharves, for ferry'purposes, to proceed in the manner provided by law, and that manner of proceeding by section 716, is to put the property, up at auction.

This direction of the law was disregarded in the notice published for the lease of this wharf property, which was not in a district appropriated to any special commercial interest, and the auction itself also proceeded in violation of this direction, for the leasehold property was put up at a fixed price of $10,000 rental, and no change in that amount was permitted to be made, and no bid contemplating any change was received at the time when the sale took place. This was a violation of the direction given in the consolidation act for the leasing of this description of property. The law did not permit the rent to be determined by the commissioners, but that was to be done when not fixed, by sealed proposals by the persons attending at the sale and by the highest bid offered for the lease. That it might not be a perfectly easy matter to comply with this direction of the law for the disposition of the wharf will not justify the proceeding which was taken, for the language of the statute is imperative that the rental to be paid shall be fixed in the manner in which the prescribed sale is required to take place. But in reality the difficulty in thé way of making the sale in compliance with the direction of the statute is more imaginary than real, for by putting the ferry franchise or franchises together with the lease of wharf, the bidders could very intelligently bid for both by indicating the rental to be paid for the wharf and the percentage on the earnings of the ferry to be paid for its franchise. No serious obstacle would stand in the way of carrying the law into execution in this manner and complying literally with its directions. That was not done at the auction which took place; through which the railroad company claims to have acquired the right to the use of the wharf and the franchise of each of these ferries.

The railroad company was incorporated under the general railroad laws of this state to construct and operate a railway from a point on the shore of the lower bay of New York, at or near New Deap Lane, to, or near the foot of the Church road in the village of Port Richmond. It was no part of its organization to acquire a ferry right or to run or operate a ferry from the terminus of its road to the city of New York. And whatever right or authority it has since obtained for this purpose, was acquired by it under chapter 193 of the Laws of 1884. This act provides that “Any steam railroad company incorporated under the laws of this state, with a terminus in the harbor of New York, is hereby authorized and empowered to purchase or lease boats propelled by steam, or otherwise, and operate the same as a ferry or otherwise over the waters of the harbor of New York to any point distant not more than ten miles from said terminus.” And while this act is sufficiently broad to entitle the railroad company to acquire the necessary boats and franchises and to operate a ferry from the terminus of its road to the city of New York, it does not appear to confer upon the company the power to lease another distinct ferry, as it is now proposed it shall do, to be operated from the city of New York to Bay Ridge on Long Island. What the statute intended was that any railroad company having a road with a terminus at the harbor of New York should be empowered to reach this city by maintaining a ferry from that terminus, to any other point not more than ten miles distant from this terminus. But the ferry route extending from the foot of Whitehall street to Bay Ridge has no connection whatever with the terminus of the railroad company. It is on the other hand, distinct and independent from the terminus of the railroad having terminal points of its own, in which the railroad company is in no way concerned. And if it could acquire under the authority of this statute, the lease of such a ferry route, it may acquire with equal propriety a lease of any route extending from any portion of the city of New York, either to Long Island, or the Jersey shore. And to confer

such power upon the railroad company very clearly seems not to have been the design of this act. And if it was not, then the lease proposed to be made to the railroad company for the Whitehall and Bay Ridge route, would be an illegal disposition of the property and franchises of the city, and liable to restraint and prevention under the act of 1881. This subject was considered in Latham v. Richards (12 Hun, 360), and an unauthorized disposition of public property was in that action restrained. And there is good reason why it should be, for if the railroad company had no power to purchase or accept the lease of this ferry franchise, and the right to use the wharf so far as it should be necessary for that purpose, it might hereafter refuse to be bound by the lease, and abandon it as unauthorized to the city. And the commissioners of the sinking fund have not been empowered to place the public property under a contingency of that description. The sale was made, so far as the wharf was included in it, for a distinct price incapable of being-separated or apportioned to the different ferry franchises. And if it was unauthorized in part because of the inability of the railroad company to acquire the Bay Ridge route, it seems to follow that it must be held to be wholly unauthorized. But whether it be so held or not, as long as the commissioners disposed of the leasehold term for the wharf in violation of the provisions of the statute, their proceedings were illegal, and they should be restrained and prevented from carrying them into effect, and so far as they may have been consummated they should be vacated and annulled. The judgment therefore, should be reversed, and as the facts are already found by the court in its decision a judgment in conformity with these views should be entered in the action. And as this will dispose of the allowances, no specific attention is required to be devoted to them.

Brady, J., concurs; Davis, P. J., taking no part in the decision,__


author: Davis, P. J.

text:
    Richard S. Roberts et al., App’lts, v. Henry M. Graves, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    1. Pleadings—Partnership—When not a material issue.
    Action was brought on a promissory note alleged to have been made by the defendant to the plaintiffs. Plaintiffs alleged that they were partners doing business under a firm name. The answer admitted by not denying that the defendant made and delivered the note to plaintiffs; that it was wholly unpaid and that the plaintiffs were owners and holders of it. Held. that it was immaterial whether or not the plaintiffs were co-partners, and that ti.e court erred in treating it as a material issue.

      2. Non-joinder of parties plaintiff—When waived—Code of Civil Procedure, § 488.

      Held, That assuming it to be material, the misjoinder and non-joinder were waived by not averring them in the answer. Code Civ. Pro., § 488.

      Appeal from judgment on verdict directed by the court.

      J. P. Stillman, for app’lts; George W. Parsons, for resp’t.
   Davis, P. J.

This action was brought upon a promissory note alleged to have been made by defendant to plaintiff for goods sold and delivered. The plaintiffs also allege that they were copartners doing business under the firm name of Roberts, Cushman & Company. The answer averred, that “ the defendant had no knowledge or information sufficient to form a belief as to whether or not the plaintiffs are copartners, as alleged in the complaint, or otherwise.” The answer also set up the Statute of Limitations as a defense.

The making and delivery of the note were not denied; nor was the allegation of the complaint that the plaintiffs were the owners and holders of the note put in issue; nor was there any allegation in the answer of misjoinder, or defect of parties.

It appeared upon the trial that the plaintiff Charles Stone, was not at any time a member of the firm of Roberts, Cushman & Company, but that the firm was composed of the other plaintiffs named, and one Edward Roberts.

The court erroneously excluded answers to a large number of questions on the part of plaintiffs, seeking to explain Stone’s relations to the firm, and to show that he was properly a party to the suit; but it is not necessary to review the rulings on such questions.

The answer admitted (by neglect to deny) that the defendant made and delivered the note to plaintiffs; that it was wholly unpaid and that the plaintiffs were owners and holders of it; and it was an immaterial circumstance whether plaintiffs were copartners or not; the court erred in treating that as a material issue. Besides, if it were of any importance, the misjoinder and nonjoinder were waived under the provisions of the Code by not averring them in the answer. The Code (section 488) enacts that such objections when not taken by demurrer or answer are waived. They could not have been taken by demurrer in this case, because they did not appear on the face of the complaint; but the supposed misjoinder of Stone and nonjoinder of Edward Roberts, could have been pleaded by the answer, and thus, if material, have presented an issue for trial. Nothing of that kind having been done, the plaintiff’s case stood admitted, and they were entitled to a verdict, unless the defendant established his affirmative defense of the Statute of Limitations. The judgment must be reversed and new trial ordered with costs to abide the event.

Brady, J., concurs.


author: Daniels, J., Davis, P. J.

text:
    William M. Kingsland et al., Pl’ffs, v. Mayor of New York et al., Def'ts.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    Practice—Submission of controversy under Code Civ. Pro., § 1879— Bound by relief agreed upon—Code Civ. Pro., § 1880.
    7 he parties to an action agreed to a statement of facts in an action and submitted it to the court, under Code Civ. Pro.. § 1279. This case, as submitted, declared the relief which should be awarded if the f cts submitted entitled the plaintiff to redress. The case was decided in favor of the plaintiff and judgment entered in accordance with the agreement. On a motion to grant a different relief, I-ield, that tile court had no au hority under Code Civ. Pro., § 1280, to change the pari of the agreemmt m de by the parties, as to the relief which should be awarded to the plaintiff in case it should be held lie was entitled to recova-.
    Motion by plaintiffs to amend the clause for relief in a case submitted upon an agreed state of facts.

      W. W. MaeFarland and Stewart & Boardman, for pl’ff; James C. Carter and E. Henry Lacombe, for def’ts.
   Daniels, J.,

The case was agreed upon and submitted to the court under the authority of sec. 1279 of the Code of Civil Procedure. It was argued by counsel and after being considered by the court, a judgment was ordered in favor of the plaintiffs under the agreement made a part of the case defining the'relief to which the plaintiffs in the event of their success) would be entitled. And that was for the recovery of damages because of the unlawful interference of the defendants with the plaintiffs’ property, consisting of a bulkhead and wharf fronting upon the Hudson River. Since this decision was made, and the judgment has been entered upon it, the court of appeals is stated to have decided in the case of Steers v. City of Brooklyn, not yet reported, that the owners of the wharf are entitled to the structure erected in front of it by the city, and thereby extending their water front so much further into the river. And the object of the motion is to secui e to the plaintiffs the benefit of this decision by awarding to them instead of damages for the act of the defendants, the possession of the additional structure itself. The right to this relief was not placed in controversy by the case agreed upon between the parties, but it was expressly limited to that of damages for the interference of the defendants by which the water front of the plaintiffs’ property was destroyed, by reason of the structure erected in front of it by the defendants. The authority conferred upon the court over the subject matter of the action was defined and limited by this agreement of the parties. It was to award to the plaintiffs in case of their success remuneration by way of damages, and no other or different relief. And it may very well he if the relief which is now the object of the motion had been insisted upon that the defendants would not have submitted the case by agreement to the judgment of the court.

But whether -they would or not, inasmuch as the parties by their well considered and deliberate agreement have limited the court in the relief which should be awarded, to that of compensation by way of damages, it probably has no further control or authority over the controversy than that which they have in this manner specified and declared. They have agreed upon the facts of their case, and declared the relief which should be awarded if those facts entitled the plaintiffs to redress. In Fearing v. Irwin (55 N. Y., 486), it was held in submissions of this description that the court is confined to the facts agreed upon, and can make no inferences or in any way depart from, or go beyond, the statements presented. And that would seem to be the just construction required by the acts of the parties in the submission of controversies in this manner.

It is true that by section 1280, upon filing the submission, the controversy becomes an action in the court to which the provisions of the law relating to proceedings in actions are subsequently applicable. But this section was not designed to confer upon the court the power to change the agreement of the parties, but only that of conforming to the provisions applicable to proceedings in actions, in the determination and disposition of the controversy. As the facts are now presented, the court has probably no authority to change the part of the agreement made by the parties as to the relief which should be awarded to the plaintiffs in case it should be held they were entitled to recover. But if it had the authority, it would not be a provident use to make of it to interfere with and change this part of the agreement after the case itself has been heard and decided and the rights and obligations of the parties have been declared and defined by the judgment which has been entered.

In the Case of Henry K. S. Williams v. The Mayor, etc., of the City of New York, a like motion has been made, depending upon a similar state of facts, and as it should not be allowed to prevail in the Case of Kingsland and others, it follows that it should not in the Case of Williams.

The motion should be denied, with the usual costs,

Brady, J., concurs.

Davis, P. J.

I concur, on the ground that it would be an injudicious exercise of discretion to exercise the power of amendment under the circumstances of the case.


author: Davis, P. J. Daniels, J.

text:
    The People, Resp’t, v. Matthew McInnery and John J. McDonald, App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    1. Criminal trial—Appeal—Review—Power of general term on appeal FROM GENERAL SESSIONS—NEW TRIAL—CODE GRIM. Pro., § 527.
    On an appeal from a conviction by the court of general, sessions, the general term has authority to review the evidence, and if satisfied that the verdict against the prisoner is against the weight of evidence, or against law, or that justice requires a new trial, it may order a new trial, whether any exception shall have been taken or not in the court below. Code Crim. Pro., § 527.
    2. Same—New trial—When authorized on ground that verdict is AGAINST WEIGHT OF EVIDENCE.
    It is not enough to justify interference with the verdict, that the court on the case before it can see that the evidence made the case a conflicting or doubtful one, demanding the solution of a verdict to settle the doubt or conflict, but it must be quite apparent that the conflict has been settled by a verdict against a substantial wad preponderating weight of evidence.
    3. Charge to jury—-Power of comment on undisputed fact.
    Where on the trial of parties under indictment the judge stated that the crime of violent nature had been committed, and remarked upon the enormity of the crime, and animadverts upon the possibility of such an event taking place in the locality in which it did, saying that there was not a doubt as to the commission of a crime of the character of that to which he alluded. Held, That as there was no dispute as to the clime having been committed, and as the charge did not as ume the crime to be that charged in the indictment, or that the parties charged were guilty, it was not erroneous, not being in excess of legitimate comment by the court upon undisputed facts of the case.
    Appeal from judgment of the general sessions on conviction of robbery in the first degree.

      Howe & Hummel, for app’lts; B. B. Marline (district-attorney), for resp’ts.
   Davis, P. J.

The appellants were convicted of the crime of robbery in the first degree. The point first presented on this appeal on their behalf is that the verdict was against the weight of evidence and justice requires a new trial. This court has authority to review the evidence, and if satisfied that the verdict against the prisoners “ is against the weight of evidence, or against law, or that justice requires a new trial, it may order a new trial whether any exception shall have been taken or not in the court below.” See 527 Code of Criminal Procedure; People v. Hovey, 92 N. Y., 554; People v. Boas, id., 563; People v. Panniza, MSS. op., Brady, J.

We have given the evidence in this case a careful study, fully impressed with the obligation imposed upon us by the section of the Code of Criminal Procedure, above cited, and feel constrained to say that we see no ground upon which our duty requires us to interfere with the verdict of the jury. The testimony was to some extent conflicting. That given by the defendants themselves, if believed by the jury, would have exculpated them from all charges of crime; while that on the part of the people strongly tended if believed by the jury, to establish their guilt. It is no province of the court to say on such a question of conflict that the jury were wrong in not accepting the evidence of defendants as true, and, therefore, rejecting that given by the people. The court must not, under the new rule of review given by section 527, above cited, cease to regard the important fact that the jury had the vast advantage of seeing all the witnesses sworn in the case personally before them, and being able from their appearance, demeanor and manner of testifying, to judge of their credibility, and to take those things into consideration in weighing their testimony, instead of the mere stenographic photograph of the words they uttered, which is furnished to the court. It is not enough to justify interference with the verdict that the court on the case before it can see that the evidence made the case a conflicting or doubtful one demanding the solution of a verdict to settle the doubt or conflict; but it must be quite apparent that the conflict has been settled by a verdict against a substantial and preponderating weight of evidence. We are not able, therefore, to interfere with the verdict on the first point of the counsel for the appellants.

It was said hy; Brady, J., in the People v. Penniza (ubi sup.) that “Justice requires a new trial whenever the court can perceive in reviewing all the evidence either that a verdict of acquittal should have been rendered or that the jury were led by reason of prejudice into convicting the defendant of a grave offense altogether unwarranted by the evidence.”

In our consideration of the evidence in this case we have not failed to give the appellants the full benefit of this rule.

This crime of robbery, if committed by them at all, was committed by both acting in concert as accomplices each of the other. It was also committed, if at all, with a degree of personal violence which inflicted grievous bodily harm upon the person from whose possession the property was taken.

If the _ jury found from the evidence that the crime charged in the indictment was committed by the defendants, they were justified in finding that it was committed with either or both of the attending circumstances which characterize it as a robbery in the first degree. A finding of the assault, with intent to rob, committed by the defendants and consummated by actual robbery, can leave no room to doubt that they acted in concert as accomplices, nor that they inflicted the injuries suffered by the party robbed.

The second and only other point presented is that the recorder erred in charging as follows : “That such a crime as this could be perpetrated in any civilized community, much less in a great city like this, is a matter of some degree of astonishment. But that a crime was committed, and a crime of the character and description of the one I have just alluded to, there can be no question.”

Standing by itself, this charge would present a very serious question. But correctly to understand the signification of the charge, it must be read in connection with its context.

In commenting upon a crime which had been committed by some one, the recorder said : “A citizen, quietly, peaceably and properly upon one of the public streets of this city is felled to the ground, and while prostrate assaulted with great brutality by some person or persons;” and then follow's what is above quoted and excepted to, to wit: “That such a crime as this could be perpetrated in any civilized community, much less in a great city like this, is a matter of some degree of astonishment. But that a crime was committed, and a crime of the character and description of the one I have just alluded to, there can be no question.”

Thus reading the part of the charge excepted to, with its immediate context, shaw's that ilthe crime just alluded to” was the felling to the ground and the assaulting with great brutality of a citizen quietly, peaceably and properly upon one of the public streets. That this occurred was not in dispute. The defendants themselves testified that they were attracted by the outcries of Schwarzler, the complainant, and hurrying to his relief found him felled to the ground by an assault committed by some person, indicating violence and brutality. It was in a public street, where he was standing quietly, peaceably and properly; and the learned recorder committed no error in speaking of the assault, Avhich no one denied had been committed by somebody, as a brutal and alarming crime.

The questions in the case were whether the defendants were the assailants and wdiether the intent of the assault was robbery, and whether such robbery was m fact committed. Upon these questions the charge when recited, as it appears in the case, to a portion of which the exception was taken, was not injurious to the defendants, nor in excess of legitimate comment by the court upon undisputed facts of the case.

The result of our consideration is that the conviction and judgment must be affirmed.

Brady, J., concurs.

Appeal from a judgment of the court of general sessions of the county of New York convicting the defendants of the crime of robbery.

William F. Howe, for app’lts; Be Lancey Nicoll, for resp’ts.

Daniels, J.

Two positions have been taken by the counsel for the appellants in support of this appeal. It is urged that the evidence did not warrant the conviction of the defendants, and the court erred in what was said concerning its effect in submitting the case to the jury. An examination of the testimony given upon the trial fails to sustain the objection taken that it did not justify or warrant the verdict of the jury. For while it is true that the evidence of the prosecuting witness was in some respects open to criticism, it was still so far sustained as to justify the jury in believing that he testified to the truth. From his own evidence, as well as that of all the other witnesses who saw him, he appears to have been cruelly assaulted and beaten. And this he states was done by these two defendants, and after he was beaten and before they completed their disposition of him, he testified that he felt a hand in his pocket. He did not, however, according to his evidence realize that he had been robbed until the following morning, when he found that the silver coin in one of his pockets, concerning the amount of which he may, according to other testimony, have been mistaken, had been taken from him, and for want of that discovery and the effect which the blows upon his head had upon him, he failed to refer in his complaints in the police stations to the alleged fact of his robbery. He did, however, on one of these occasions assert that an attempt had been made to rob him, but this was evidently not there regarded as demanding any special consideration, because of the attention deemed to be demanded by the severe bodily injuries which he had sustained. After he discovered in the morning that the silver was gone from his pocket, then he did complain that he had been robbed. And the search which was made of the defendants at one of the stations disclosed the fact that each of them had silver coin, of the general description of that mentioned by him to have been taken from the complaining witness.

That the defendants were the persons who assaulted the witness was positively stated by him, and other testimony indicating the absence from the locality of any other persons who probably made the assault immediately after his outcry was made, tended to support the correctness of this statement. The person, too, by whom he was assaulted appear to have had no cause of quarrel with him, and could very well have been inferred by the jury to have made the assault as a step in the consummation of the crime of robbery.

The defendants denied they had either assaulted or robbed the complaining witness, but their evidence was contradicted in such a manner as very seriously to reduce its credit. This contradiction, included an untruthful statement of the, witness Mclnerney, concerning the number of his badge, and of the defendant McDonald, as to the fact of his being a member of the park police. So it was as to the fact that a light was made when the inspection of the badge took place, and as to the alleged circumstances of the defendants meeting near the hour of five o’clock in the afternoon. As to part of these circumstances there was a plain discrepancy between the evidence of the defendants given upon the trial and and that taken upon their examination, and the discrepancy was not explained or removed by anything contained in the testimony of these witnesses. Neither their own evidence nor that given in proof of their previous good character, deprived the testimony on behalf of the prosecution of so much of its force as renders it improper for the jury to act upon it and convict the defendants. The probabilities of the case were strongly against them and they were not seriously reduced in weight by the omission of the complaining witness to make the broad charge contained in the indictment when he was at the stations to which these persons were taken on the evening of his assault.

In submitting the case to the jury the recorder presiding at the trial referred to the fact that a crime had been clearly shown by the evidence to have been committed, and to the statement made concerning it an exception on behalf of the defendants was taken by their counsel. To present this exception a part of what was stated to the jury has been separated from its context, and from that separation the argument has been presented in support of this exception. But by restoring what was said previous to the remark excepted to, it will be seen that the court did not express the opinion that the defendants were guilty or had committed the crime for which they had been indicted. What was said was that one of the most atrocious crimes known to the law was perpetrated against the person of the complainant in this case, and it was that crime alone that was made the subject of this and the immediately following reference. And that this witness had been made the victim of the commission of such a crime was clearly proved and established not only by the evidence on the part of the prosecution, but likewise by that given on behalf of the defense, by the witnesses who observed the appearance of the complainant. He was described by a witness apparently disinterested as “in a terrible condition. His left eye was completely closed, his lips were very much lacerated and protruded, and as he leaned on the railing in front of the desk he was constantly spitting blood.” And that this was no exaggeration of his condition was quite evident from all the other testimony given upon the trial, and fully justified what the court referred to as the fact that he had been most atrociously beaten. That it was not intended by what was said to influence, or control the action of the jury as to the crime charged in the indictment, appears from the residue of the charge of the recorder. For in that he fully submitted the case to the jury leaving the question of the guilt or innocence of the defendants to be wholly determined by the view they should take of the evidence, and directing them in case of a reasonable doubt that an acquittal should follow. Upon this special subject of the opinion as expressed in the charge it was added, that, “I have called your attention to some of the prominent features in this case, not, however, gentlemen with any desire on my part to infringe upon your duty of passing upon the evidence, or injecting into the case any opinion whatever of mine upon the question of the guilt or innocence of the defendants. The responsibility rests upon you of determining all of the questions of fact that have arisen upon the evidence in this case, and if anything which I have said, although it was without a desire to affect your judgment upon the questions of fact, tended to intimate any opinion bearing upon the guilt or innocence of the defendants, it is your duty to disregard that opinion, and act upon your own judgment, uninfluenced by any opinion of mine, and to determine the question of the guilt or innocence of these defendants upon the evidence as you have heard it;” which fully corrected what had previously been stated, even if by an enlarged construction it could be said to include the robbery itself, or the defendant’s guilt. This case consequently is clearly distinguishable from McKenna v. People (81 N. Y., 360), and the authorities referred to, in the opinion, and noted in the brief of the counsel. As the case was made to appear it was wholly for the jury to determine the question of the defendant’s guilt, and as they arrived at the conclusions adversely to them upon evidence plainly presenting this case as a question of fact, and there was no error in the charge, the judgment should be affirmed.

Brady, J., concurs.