author: Abbott, S.

text:
    In the Matter of the Appraisal of the Property of Grace C. Stiger, Deceased.

      (Surrogate’s Court, Kings County,

      Filed February, 1894.)

    Taxes—Transfer.
    The interest of a child of the deceased, deposited to the credit of a partition action, is not exempt from taxation by § 2, chap. 399 of 1892.
    Appeal from decree of surrogate’s court confirming report of ■appraiser and assessing and fixing the cash value of the property of Grace 0. Stiger, deceased, and the tax to which the same is liable.

      William B. Stiger, for app’lt; James W. Ridgway, district attorney (Robert B. Bach, of counsel), for resp’t in person.
   Abbott, S.

Grace C. Stiger, formerly a resident of Brooklyn, died August 24, 1892, at the age of fifteen years and eight months, possessed of certain personal property and seized of certain real estate.

Among other property of which said Grace 0. Stiger was the owner at the time of her decease was one-third interest in a fund on deposit in the United States Trust Company to the credit of a certain partition suit to which the said Grace was a party.

The fund with accrued interest amounts to the sum of $76,936.26, of which $21,667.19 is accumulated interest, and $55,269.07 is the orginal amount paid in, and represents the share ■or interest of infants of the proceeds of sale of real property in partition. The value of Grace’s interest in the fund is $25,645.42.

Decedent left surviving, as her only next of kin and heirs at law, a father and brother and sister, her mother having died 0 May 3, 1878.

It is contended by the appellant that this fund, being the proceeds of sale of real property and passing to the heirs at law and not the next of kin of the intestate, is not personal property under § 2 of the act in relation to taxable transfers of property.

I am unable to agree with the appellant in his contention.

Chapter 399 of the Laws of 1892 provides:

“ Sec. 1. Taxable transfers.—A tax shall be and is hereby imposed upon the transfer of any property, real or personal, of the value of five hundred dollars or over, or of any interest therein or income therefrom, in trust or otherwise, to persons or corporations not exempt by law from taxation on real or personal property in the following cases: ,
“ 1. When the transfer is, * * * by the intestate laws of this state, from any person dying seized or possessed of the property while a resident of the state. * * * brother, sister * * * of such decedent, grantor, donor or vendor * * * such transfer of property shall not be taxable under this act, unless it is personal property of the value of ten thousand dollars or more, in which case it shall be taxable under this act at the rate of one per centum upon the clear market value of such property.”

In the construction of statutory provisions imposing taxes, the law does not favor such an interpretation of doubtful ór ambiguous provisions as will have the effect to exempt the property from the operation of the act, unless such an intention of the legislature shall clearly appear. People ex rel. Westchester F. Ins. Co. v. Davenport, 91 N. Y. 574; People ex rel. Savings Bank of New London v. Coleman, 135 id. 231; 47 St. Rep. 878.

Therefore, we must find in the terms of the Transfer Tax Act a clear intention to exempt the property in question.

The rule of law which has created the fiction that, under certain circumstances and for certain purposes, the proceeds of sale of real property shall continue to be regarded as real property has been adopted by our courts, which have followed the rule of the common law.

In Horton v. McCoy, 47 N. Y. 21, Church, Ch. J., writing the opinion, holds that the share of an infant of real property of proceeds of sale in partition retains its character of real property during the minority of the infant, so that such proceeds descend to the heirs at law of such infant, and not to his next of kin or to the legatees of infants over eighteen years of age. '

On the other hand, if the property be sold by executors under a direction contained in the will of a testator, there is effected an equitable conversion, and an infant's share of such proceeds of sale is personal property, passes to legatees under the will of an infant over, eighteen years of age, or to the next of lcin and not the heirs at law of an infant dying intestate.

The infant, being seized of land in his own right, had at common law absolutely no power to sell or dispose of the same or to alter its character.

“The court of chancery entertained jurisdiction in partition at an early period in England, partly to meet cases not cognizable in courts of law, and has continued ever since to exercise such jurisdiction, although the jurisdiction of courts of law has been greatly enlarged by statute. Story’s Eq. Juris. §§ 646-648.

“Until the statute of the thirteenth and fourteenth Viet., the interest of infants in real estate was not sold absolutely in such proceedings, but they were allowed a day after they attained twenty-one years of age to show cause against the decree. Id. § 652. Since the statute the infant is declared a trustee of the property, and the court is authorized by this statute to dispose of all interests held in trust Bowra v. Wright, 3 Eng. L. &Eq. 190. But I can find no authority departing from the rule before adverted to, of impressing the proceeds thus obtained with the character of real estate until the majority of the infant”

It now remains for us to determine whether, in the light of the foregoing authority, it was the intention of the legislature to exempt such proceeds of sale of real property from the transfer tax.

As we have seen, the law does not favor exemptions.

The Transfer Tax Act taxes, not the property, but the individual who receives the property as a condition to the transfer thereof to him.

In the case under consideration what kind of property is it which passes to the heirs at law of the intestate ? Certainly not real property. What they receive is money. The tax being upon the devolution, transfer or passing of title of the property, it would be an extraordinary extension of the fiction which regards personal property as real property for certain purposes to hold that the legislature intended to regard it as real property for the purpose of exemption when it says “ such transfer of property shall not be taxable under this act, unless it is personal property of the value of ten thousand dollars or more,” etc.

It is evident that the exemption was not intended for the' benefit of the heirs at law as such, because, among the classes specified in the exemption clause, the individuals constituting the heirs at law and next of kin are always the same, and their interests in real property under the law of descents are in most cases identical with their interests as next of kin under the statute of distribution.

So that the reason for the .exemption must be looked for in the kind of property the transfer of which is exempted.

This is real property, and the reason for its exemption probably is the fact that it already largely contributes to the payment of all taxes.

If the fund in question is to be exempted as real property-under the provision above quoted, it should be contended with greater force that the fund is subject to assessment and taxation as real property under the general laws providing for taxation of real property. The fund should be listed, assessed and taxed like other parcels of real property.

The effect of exempting the fund in question would be to twice exempt the interest of the infant in the real property sold. The real property sold is exempted from the tax as real property, and the fund with which it was purchased, which before was personal property and subject to the tax: now becomes real property and is exempt, so that the rule contended for would take out from the aggregate fund of personal property otherwise taxable just the amount paid for the real property.

I am of the opinion that the fund in question is not exempt from the tax.

Decree affirmed.


source: Caselaw Access Project

author: Clement, Oh. J.

license: Public Domain

text:
    William H. O. Greene, as Administrator, etc., App’lt, v. Edward F. Linton, Resp’t.

      (Brooklyn City Court, General Term,

      Filed February, 1894.)

    Nuisance—Excavations.
    An owner of a vacant lot, upon which there is an excavation at some distance from the street, is not liable for injuries caused thereby to persons not lawfully on the land, whether adults or infants.
    Appeal from judgment dismissing the complaint

      A. W. Tenney, for app’lt; Edward M. Grout, for resp’t.
   Clement, Oh. J.

The plaintiff’s intestate, a child of the age of six years, was drowned on September 19, 1891, by falling into a cesspool upon vacant lots owned by the defendant at the corner of Atlantic avenue and Cleveland street in this city. Children were in the habit of playing on said premises, which were not fenced, and on the day stated the deceased was sailing a toy boat on the pool, and fell in and was drowned. There is no claim that the child was using the highway, or that the cesspool was adjoining the same.

The complaint was properly dismissed at the trial term. While one or two authorities may be found in other states in a certain sense upholding the contention of the appellant’s counsel, the law in this state is well settled the other way. The case does not fall within the rule laid down in Beck v. Carter, 68 N. Y. 283, where it was held that an owner of land may be liable who makes an excavation so near the line of a highway that a traveler thereon falls in. In that case Judge Andrews says that an owner of land is not bound, at common law, to erect fences around his land,- and that “ the owner of land may also make an excavation on his own premises, and is not bound to fence it for the protection of persons not lawfully on the land.” The case of Murphy v. City of Brooklyn, 98 N. Y. 642 ; 118 Id. 575; 29 St. Rep. 858, cannot be distinguished from the one before us. The plaintiff’s intestate in that case, of the age of six years, was drowned in a hole fifty feet from the street. Judge Earl, on the first appeal, said: “ One who causes a dangerous excavation on his own land so near a highway that a traveler thereon, without any fault of his, falls therein and is thus injured, may be liable for damages, and there are many cases to be found in the books where damages have been awarded on account of such negligence. Liability in such case is imposed because slight deviations from the highway by a traveler are sometimes inevitable, and he should not carelessly be exposed to excavations so near the highway that he may accidentally fall therein. But this rule of liability cannot apply to the case of an excavation at least fifty feet from the highway, into which no traveler thereon could, by any accident or mistake, be precipitated.” Judge Parker, on the second appeal, reiterates the doctrine laid down by Judge Earl. It would, therefore, appear that the liability or nonliability of an owner of property, under the circumstances in question, does not depend on the question whether the party injured is an adult or an infant six years of age. It is true that there was a fence along the highway in the case of Murphy, consisting of crossbars. If there had been an open fence around the premises owned by the defendant, it would in no wise have prevented the deceased from visiting the cesspool where he was drowned. We held, in a case where the plaintiff was also six years of age, that the city was not bound to put up gates on a drawbridge so that boys could not climb over or creep under them. Maginnis v. City of Brooklyn, 7 N. Y. Supp. 194; 26 St. Rep. 689, affd.,.without opinion, 126 N. Y. 644; 37 St. Rep. 961. In Cusick v. Adams, 115 N. Y. 55; 23 St. Rep. 548, the plaintiff was injured by a fall through a hole in a private bridge which was used by the public for crossing to an island. This use of the bridge was made by the sufferance of the defendant. The court of appeals held that there was no liability, and cited many cases in point. If the plaintiff in that case had been a child, the result would have been the same, for the ground of the decision is that the defendant owed no duty to the public. See, also, Sterger v Van Sicklen, 132 N. Y. 499 ; 44 St. Rep. 863.

The case of Bransom v. Labrot, 81 Ky. 638, cited by the appellant, is, in our opinion, in conflict with the decisions of the court of appeals of this state, and cannot, therefore, be followed. A case, on the facts, almost exactly like the one now under consideration arose in Pennsylvania. Gillespie v. McGowan, 100 Penn. St. 144. A child was playing in the outskirts of Philadelphia, on vacant lo.ts which were not fenced. There was a deep uncovered well on the property, eighty feet from the road and three hundred feet from a paved street. The child fell in the well and was drowned, and the supreme court held that there was no liability on the part of the owner of the lots.

For the reasons stated the judgment appealed from must be affirmed, with costs.

Van Wyck, J., concurs.

Judgment affirmed, with costs.


author: Osborne, J.

text:
    The Twenty-sixth Ward Bank of Brooklyn, App’lt, v. Caroline W. Stearns et al., Impleaded, etc., Resp’ts.

      (Brooklyn City Court, General Term,

      Filed February, 1894.)

    1. Bills and notes—Indorsements—Conditional.
    A party has a right to make a conditional indorsement.
    2. Same—Subsequent indorser.
    An indorser is relieved from liability by reason of the non-liability of a prior indorser.
    Appeal from judgment in favor of defendants, entered upon verdict, and from order denying motion for a new trial on the minutes.

      Chas. M. Earle, for app’lt; Edward G. Whitaker, for resp’ts.
   Osborne, J.

Action on two promissory notes made by George W. Stearns, Jr., to order of W. B. Thomas, and indorsed by Thomas and the above-named defendants, who alone defend. The defense set up was that said notes were accommodation paper, and that these defendants indorsed only on the condition that the notes were not to be delivered unless the wife of W. B. Thomas also became an indorser, of all of which the plaintiff had notice.

It appeared on the trial that the notes in suit were given in renewal of four certain notes held by plaintiff, made by Stearns, Jr., and indorsed by Thomas and Stearns, Sr., one of which notes had matured and been protested, and the others were about maturing ; on these notes Caroline H. Stearns was not an indorser.

That the defendants had a right to make a conditional indorsement cannot be questioned. The making of any condition with reference to the indorsement of the notes in suit was denied by the plaintiff. This issue was left to the jury to determine, and it has rendered a verdict in favor of these defendants, which we see no • reason for disturbing. It appeared from the testimony that Mr. Kiendl was counsel for the plaintiff at the time the notes in suit were indorsed ; that he drew the notes himself and obtained the signatures of the makers and indorsers thereon, and delivered the notes to the plaintiff, who accepted them and has brought this action upon them. There was no attempt on the part of the plaintiff to explain how these notes came into its' hands other than through the instrumentality of Mr. Kiendl, who-was acting as its counsel, and was also one of its directors. The plaintiff here seeks to obtain the benefit of these notes procured for it by Mr. Kiendl, and it was for the plaintiff to show, if it could, that Mr. Kiendl was not acting for it in making the alleged agreement as to the conditional indorsement of these defendants. The jury, by its verdict, has substantially found that such agreement was made, and we think that the verdict is supported by the evidence.

As to the defendant George W. Stearns, Jr., we may further add that, as the jury has found that the defendant Caroline H. Stearns is not liable on her indorsement, he, as a subsequent indorser to her, is relieved from liability.

The judgment and order denying motion for a new trial should be affirmed, with costs.

Yah Wyck, J., concurs.

Judgment and order affirmed, with costs.


author: Clement, C. J.

text:
    Charles B. Redhead et al., App’lts, v. The Parkway Driving Club, Resp’t.

      (Brooklyn City Court, General Term,

      Filed February, 1894.)

    Brokers—Commissions.
    Where the members of a club appoint a committee to procure land for its use, an agreement on the part of the vendor to pay a commission to one of the committee who negotiated for the land, inures to the benefit of the club, and it is entitled to such commission.
    Appeal from judgment of the special term in favor of the defendant.

      Hugo Hirsh, for app’lts; William J. Gaynor (Edward M. Grout and William E G. Mayer, of counsel), for resp’t.
   Clement, C. J.

The appellants are brokers in real estate in this city, and brought this action originally against James Burrill, who sold real property to the respondent, to recover $2,000 commissions on such sale. Mr. Burrill paid the money into court, and the respondent, who also claimed the money of Burrill, was interpleaded.

The findings of fact are amply sustained by the evidence. It appears from such findings that on March 17th, 1892, a number of gentlemen met at the Union League Club in this city to organize a driving club, and at such meeting a committee of five was appointed to procure land for the use of such club. Suydam, one of the appellants, was a member of the committee, and the members agreed among themselves that no one should receive a commission, and that everything was to be done for the benefit of the club. The plaintiff, Suydam, and H. B. Campbell, two of the committee, conducted negotiations with Mr. Burrill, and purchased of his wife a large tract of land, and Suydam induced Burrill to agree to pay a commission of $2,000, and did not report to the committee that he was to get a commission, but concealed it. When it was found out by the committee, Suydam said he intended to give it to the club. The judge at special term has also found that Suylam was in the exclusive service of the defendant, and that Redhead had nothing to do with the negotiations, except as he was brought in by his partner Suydam.

The conclusion arrived at by the learned judge who tried this case, that the respondent is entitled to the sum paid into court, is sound.. Ho authority need be cited to uphold the result; the bare statement of the facts is sufficient. Mr. Suydam agreed that if any commission was received it should go to the club. The law would imply such an agreement, even if not expressed. Suydam stood in a position of trust, and if he made anything by reason of his position, the law would not allow him to retain it. Redhead knew that Suydam was a member of the committee, and Redhead and Suydam were never employed by Mr. Burrill or the committee. Redhead was simply brought into the matter by Suydam, and has no better standing in court. The claim of the plaintiffs is contrary to good morals and cannot prevail.

Judgment affirmed, with costs.

Van Wyck, J., concurs.


author: Clement, Ch. J.

text:
    The People ex rel. John F. Muldoon, App’lt, v. Henry I. Hayden, Police Commissioner, Resp’t.

      (Brooklyn City Court, General Term,

      Filed February, 1894.)

    1. Cebtiobari—Reversal.
    In passing upon the proceeding before the police commissioner, the court will not reverse for trifling errors, but will look at the whole case and see if the officer has had a fair trial, and ascertain that no injustice has been done him.

      2. Municipal cobpobations—Police.
    Upon the trial of specific charges of misconduct at the polls, and failure, to make arrests, the commissioner has a right to inquire as to the conduct ‘ of the officer at the polling place during the entire day,
    3. Same—Duty to abbest.
    If such officer sees persons violating the election laws, or disorderly, or persistently blocking up the door of the polling place, he cannot turn his back and claim that he did not see the offense committed and decline to make the arrest, unless the complainant will go with him to the station house.
    Certiorari to review the proceedings of the respondent in dismissing the relator from the police force of the city of Brooklyn.

      ‘Dailey, Bell & Orane, for relator; Francis A. McOloskey, for resp’t.
   Clement, Ch. J.

The relator was dismissed from the. police force of this city after a trial and conviction .on four charges for violation of the rules of the department, alleged to have taken place on election day in the twelfth election district of the first ward, and which charges were substantially as follows :

First. That he struck a man with his fist on the sidewalk in front of the polling place.

Second. That he said to him at the time, “If you come here again I’ll smash your face in.”

Third. That at the same time and place he failed to protect a citizen, Thomas C. Shearman, who was assaulted by an unknown party within his view.

Fourth. That he failed to arrest certain parties for violation of the election laws when requested to do so by Walter S. Brewster who was the chairman of the board of inspectors in said district during the time the polls were open.

According to the return, he was convicted on each and every charge.

In passing upon the proceedings before the police commissioner we must recollect that he is not a lawyer, and, though he acts in a certain sense judicially on the trial of police officers, we must not reverse for trifling errors, but should look at the whole case and-see if the officer has had a fair trial, and ascertain that no injustice has been done to him. Judge McAdam well said, in the case of People ex rel. Minchen v. McLean, 1 Misc. Rep. 463, 467; 49 St. Rep. 611: “The proceedings of the commissioners, while acting judicially, are to be reviewed with liberality, with a view of sustaining rather than reversing their judgments. This is necessary for the reason that the commissioners are to a large extent, responsible for the efficiency of the force under their control, and their methods of discipline should be interfered with only in extreme cases, where the charges have been unsupported by evidence, or the action of the board is clearly arbitrary, and not in accordance with legal requirements.” The decisions of the court of appeals fully sustain the rule above quoted. Judge Miller wrote as follows as to the powers of police commissioners in the case of People ex rel. Flanagan v. Police Comrs., 93 N. Y. 97, 102: “ Their action must be considered having in view the special powers conferred and tlie purposes for which their organization was intended, and not confined by the application of strict legal rules which prevail in reference to trials and proceedings in courts of law.” In the case of People ex rel. McCarthy v. Board of Police Commissioners of New York City, 98 N. Y. 332, 334, Judge Earl held as follows: “ This was not a common-law trial with the incidents and com-man-law rights pertaining to such a trial, nor, strictly speaking, was it a trial before a court. It was an investigation required by the statute in such cases to furnish information to the board upon which they can act in disciplining any member of the police force.” The rule is well established that the courts, in reviewing by certiorari the proceedings of police or fire commissioners, are only called upon to reverse (1) if the accused, on the whole case, did not have a fair trial; (2) on the facts, if the decision was against the weight of evidence. § 2140 of Code. On the latter question many authorities can be cited. People ex rel. Flanagan v. Board, etc., 93 N. Y. 97, 102 ; People ex rel. McGowan v. McLean, 13 N. Y. Supp. 685 ; 37 St. Rep. 539; People ex rel. Costello v. McClave, 15 N. Y. Supp. 221; 39 St. Rep. 479; People ex rel. Gardner v. McClave, 15 N. Y. Supp., 244; 39 St. Rep. 501.

After a careful examination of the whole case, we are satisfied that the relator had a fair trial. The commissioner had the right, in our opinion, to inquire as to the conduct of the officer at the polling place during the entire, day. The commissioner was bound to ascertain whether Muldoon was endeavoring to aid parties in the violation of the election laws, or whether he was honestly endeavoring to preserve order and enforce the laws. Muldoon did not arrest the party who attempted to vote, and who had forgotten his name, the person who is called in the record “the man with holes in his hat,” and testified that he did not see him, though he was in the polling place at the time. If Muldoon had conducted himself properly the entire day except on that occasion, the commission could well hold that, in the excitement, the officer made a mistake which was not willful and intentional; but, if it appeared that he permitted disorder at the polling place nearly all day, and that he allowed violations of the election laws to go on without making arrests during the same time, such evidence would tend strongly to show that, on the charges on which he was tried he was guilty, not technically, but that he willfully aided in the violation of the election laws, and willfully permitted disorder at the polls. The hearing before the commission was an investigation of charges, and it was the duty of the commissioner to make such investigation full and complete.

The remaining point of the counsel for the relator is that the decision of the commissioner was against the weight of evidence. We think that there was ample evidence on each charge to uphold the decision of the commissioner. The testimony given by the relator was evasive, and his explanation of his conduct is difficult to understand. Take his testimony: “ There were four or five Eepublicans standing in the doorway and obstructing it. Nothing I would say would get them to move, and Mr. Brewster had to come down and to talk to them before they would go." Muldoon thus stated that he, as a police officer, could not keep the door clear, and that the chairman of the board of inspectors had to ask persons not to block up the door. The claim of Muldoon that he could not arrest unless some one went to the station house with him, to make a complaint, is frivolous. If he saw persons violating the election laws, or disorderly, or persistently blocking up the door of the polling place, it was his duty to arrest such parties, and make the complaint himself, and lie could not turn his back and claim that he did not see the offense committed, and decline to make the arrest unless the Complainant went to the station house with him.

We have examined the record, and every point raised by the counsel for the relator, and can find no reason to disturb the finding of the police commissioner.

Yak Wyck and Osborne, JJ., concur.

Proceedings affirmed, with $50 costs and disbursements.


author: Yan Wyck, J.

text:
    Edward R. Lazarus, Resp’t, v. Charles J. Sands, App’lt.

      (Brooklyn City Court, General Term,

      Filed February, 1894.)

    Brokers—Liability.
    In an action against a broker for breach of good faith, if the evidence is not sufficient to make out a prima facie case that plaintiff employed defendant as his broker and agent in the matter, a motion for a nonsuit should be granted.
    Appeal from judgment in favor of the plaintiff, entered upon a verdict for $2,000, and from order denying motion for a new trial.

      A. Simis, Jr., for app’lt; Charles F. Brandt (Geo. W. Wingate, of counsel), for resp’t.
   Yan Wyck, J.

The plaintiff alleges in his complaint that he employed defendant, as his broker and agent, to negotiate for him a purchase of lots in Flatbush, and that, in violation of the good faith devolved upon defendant as such broker and agent, he fraudulently, to his own advantage, induced plaintiff to purchase the same for $14,000', whereas defendant could have secured them for $12,000, and plaintiff demands damages therefor. The case was sent to the jury, who gave plaintiff a verdict for $2,1?0. This is an appeal from the judgment entered thereupon and the order denying the usual motion for a new trial.

The question whether there was sufficient evidence to make out a prima facie case that plaintiff employed defendant as his broker and agent to negotiate for the purchase of these lots was duly raised by the motion for nonsuit, to the denial of which the defendant duly excepted. This requires a careful and critical examination of the evidence. The testimony of the plaintiff, his wife, the defendant Woods and Egerton fairly shows that Woods, being the owner of these lots in and prior to November, 1891.-placed them, in the early part of that month, in the hands of Egerton, a real estate broker, to sell for him at the price of $17,500 for the plot; that Egerton shortly afterwards put them in the hands of defendant Sands, another real estate broker, to sell at the same figure (which seems to be a somewhat common practice with real estate brokers), and that Sands placed them on his books of properties that he had for sale; that shortly thereafter Mrs. Lazarus, the plaintiff’s wife, called at Sands’ real qjstate office in relation to two other lots in Flatbush which she or her husband had previously bought from some one else for $1,600, when, according to her testimony, he told her that he had on his books these lots, which he could sell her or her husband cheaper than $400 per lot, and she, according to her husband’s testimony, informed him that Sands offered to sell her these lots very reasonably ; that Sands and plaintiff then met and went together to examine the property, and the former offered them to the latter for $250 a lot, $17,500 for the plot, assuring him that there could be realized a profit if $5,000 by the following spring; that plaintiff promptly refusec to buy at that price, but made him a bid of $13,000, which binds reported to Egerton, who saw Woods on November 30, vhtn the latter informed Egerton that he had just offered these lots to a New York broker for $12,000 net, and would do the same with Egerton, but without commission, and that Egerton must look out for himself, or could have all above that amount for his trouble; that Egerton then instructed Sands, in response to the bid of $13,000 submitted, to offer the lots for $14,000; that Sands then reported to plaintiff that his offer of $13,000 was refused, but that, if he would make a bid of $14,000, he could buy them for him; that plaintiff increased his bid to that sum, and, in about three hours, Sands returned and said to plaintiff, “ He had bought the property for ” him (Lazarus), who at once on that day, December 1, 1891, signed a contract of purchase for $14,000 from one Woodruff, to whom Woods, on that day, had made a contract of sale for $12,000. In the contract signed by plaintiff it is expressly stated that it is understood that Sands is the broker of the vendor and must look to him for payment for his services. Woods did not know Sands in the transaction. Plaintiff’s wife finally received title to the lots, which she still holds.

The foregoing statement covers substantially all the evidence bearing upon the question of the employment of Sands. We do not think the expression of Sands, that “ he had bought the property for ” him, when he reported to plaintiff that his bid of $14,000 had been accepted, was sufficient to carry to the jury the question of the employment of Sands by plaintiff, in view of the circumstances that plaintiff and his wife knew Sands was a real estate broker and was told by him, in the very inception of the negotiations, that he, as such real estate broker, had these lots belonging to another on his books for sale, and would sell the lots to them cheaper than they had bought previously two adjoining lots, and in face of the recital, in the written contract of purchase, that it was understood by plaintiff that Sands was the broker of the vendor, by whom he was to be paid. Any bad faith which is or can be shown on the part of Egerton to his principal, Woods, does not tend to make Sands the broker or employe of plaintiff. Believing that a nonsuit should have been granted, it is unnecessary to consider the other exceptions.

Judgment and order must be reversed and a new trial granted, with costs to appellant to abide the event.

Osborne, J., concurs.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.


author: Van Wyck, J.

text:
    Abram Fox, Resp’t, v. The Brooklyn City Railroad Company, App’lt.

      (Brooklyn City Court, General Term

      Filed February 1894.)

    Negligence—Stkeet bailboad.
    In an action for negligence, the fact that the company’s driver drove the car against a wagon standing across the track and about to enter a stable over the sidewalk, which threw plaintiff from the car upon the street, justifies a finding of negligence on the part of the company.
    Appeal from judgment in favor of plaintiff, entered upon verdict for $2,500, and from order denying motion for a new trial on the minutes.
    Action to recover for injuries sustained by plaintiff by reason of the negligence of the defendant.

      Morris & Whitehouse, for app’lt; M. L. Towns, for resp’t.
   Van Wyck, J.

After critical examination and careful consideration of all the evidence in this case,we see no reason to disturb the verdict, which seems to be fully justified on the questions both of negligence and of the amount of damages. According to-the testimony which the jurors seem to have credited, as they had a right to do, it appears that the driver of defendant’s car (upon which plaintiff was a passenger standing on the front platform) drove the car against a wagon standing across the track and about to enter a stable over the sidewalk. The collision threw plaintiff upon the street; his side was hurt, his foot was seriously and permanently injured, there being a complete loss of sensation from the ankle to the toes, and a partial loss of motion. His foot was exposed to the jury, and the physicians tested tbe loss of sensation in their presence. He was confined to his home for six weeks and suffered great pain, was under the care of the physician for a considerable time, and was unable to do hard work at the time of the trial.

The judgment and order must be affirmed, with costs.

Osborne, J., concurs.

Judgment and order affirmed, with costs.


text:
    Margaret Lewis, App’lt, v. Brooklyn Elevated Railroad, Resp’t.

      (Brooklyn City Court, General Term,

      Filed February, 1894.)

    1, Evidence—Negligence.
    In an action for negligence, evidence as to injuries that will be “apt to attend a patient,” or that “may become permanent,” is inadmissible.

      3. Appeal—Haemless.
    Where the jury have found that the plaintiff is not entitled to recover at all, the exclusion of proper evidence as to the amount of damages is not prejudicial.
    S. Same—1Charg-e.
    Where the charge fully covers the whole ground, the court is not re quired to traverse the same ground and charge requests that are simply ■cumulative.
    Appeal from judgment in favor of the defendant, entered upon verdict, and from order denying motion for a new trial.

      Edwin R. Root, for app’lt; Hoadly, Laicterbach & Johnson (William N. Cohen and Henry L. Scheuerman, of counsel), for resp’t.
   Osborne, J.

Plaintiff brought this 'action to recover damages for injuries alleged to have been sustained by her though the negligence of defendant’s servants. Her claim was that she entered the Hewes street station of defendant’s road; that a train was standing there at the time; that the gate at the platform of the car she expected to enter was closed ; that the guard opened the gate and told her to hurry and get on ; that just as she had placed her foot on the platform of the car the train started; that she hung on as well as she could, and after being carried some distance the train was stopped and plaintiff was rescued from her perilous position in a bruised and injured condition. Plaintiff’s evidence was uncorroborated as to the guard’s opening the gate and telling her to hurry and get on.

The gateman of the defendant, who was on the platform of the car in question, denied that he opened the gate and told plaintiff to hurry and get on. He testified that the gate was shut when he held his hand up and said : ‘‘You are too late;” that plaintiff, however, put her foot on the edge of the platform outside of the gate and seized one of the upright stanchions of the car with a view of compelling her admission to the car, and just then the train commenced to move; that he used his utmost efforts to save plaintiff from injury, and that with the assistance of some of the passengers the train was stopped and plaintiff was rescued.

The jury found a verdict in favor of the defendant, and plaintiff appeals from the judgment entered thereon and an order denying motion for a new trial.

On this appeal the learned counsel forthe appellant calls our attention to two exception to the exclusion of evidence, and also to the refusal of the court to charge sundry requests made by him, which were duly excepted to, and on these exceptions he bases his claim to a reversal. The questions to the exclusion of which exception was taken were addressed to the physician of plaintiff, and were as follows: “ Q. From your experience as a physician, what are the principal effects that will be apt to attend a patient who has suffered the injuries you have described?” “ Q. Can you state, from your experience as a physician, any of the effects which usually attend such injuries as you have testified to, and which are or may become permanent?”

We think both of the these questions were properly excluded as being vague and speculative. It will be noticed that neither of them is directed to the effect on the plaintiff of the injuries which she had sustained, but they are directed generally to the effects of such injuries on anybody and everybody who may have been unfortunate enough to have been strained, bruised and nervously affected just as was the plaintiff. Injuries such as the plaintiff sustained would unquestionably affect different persons in different degrees, according to sex, age and condition of health at the time, yet the questions objected to make no distinction. Evidence as to injuries that will be “ apt to attend a patient,'” or as to injuries which “may become permanent,” is purely speculative ; the questions involve the giving of evidence of future consequences which are merely possible, so far as the plaintiff was concerned-, and are, therefore, inadmissible. But, even were these questions admissible, plaintiff was not injured by their exclusion ; they relate only to the question of the amount of damages, and the jury have found by their verdict that plaintiff was not entitled to recover at all.

Some sixteen requests to charge were submitted to the learned trial judge, some of which he refused to charge and others of which he refused to charge further than as he had already charged on the points involved in such requests. We do not think that any of the exceptions thereto are tenable, and they do not strike us as of sufficient merit or importance to call for a discussion separately ; some of them are entirely erroneous, others have no-bearing on the issue submitted to the jury and others the learned trial judge had already substantially charged, and he was not called upon to repeat them. The charge was full and clear ; it defined accurately negligence and contributory negligence, fairly stated the contentions of the parties and explained to the jury the applications of those definitions to the matter in dispute, and seems to us fully covered the whole ground. This being the case, the learned trial judge was not required to traverse the same ground .again and charge requests that were simply cumulative.

We are of opinion that the judgment and order appealed from should be affirmed, with costs.

Clement,, Oh., J., concurs.

Judgment and order affirmed, with costs.


text:
    Ellen Conneughton, as Administratrix, etc., App’lt, v. The City of Brooklyn et al., Resp’ts.

      (Brooklyn City Court, General Term,

      Filed February, 1894.)

    Negligence—Miscalculation
    Where an accident is apparently 'the result of a miscalculation on the part of the deceased as to the height, from the ground, of the beams of a truck, which had been allowed to stand for some time previously in the street, neither the truck-owner nor the city is liable therefor.
    Appeal from judgment in favor of the defendants, entered on. a nonsuit.

      Chas. J. Patterson, for app’lt; Almet F. JenJcs, Corporation Counsel, for resp’t City of Brooklyn ; Mulqueen & Mulqueen, for resp’t Holland.
   Osborne, J.

This action was brought by plaintiff to recover damages for the death of her husband and intestate, Patrick Conneughton, which death it was alleged, was caused by the negligence of the defendants. At the trial term the complaint was dismissed, and the plaintiff appeals from the judgment entered on such dismissal. It appeared from the evidence that the deceased was in the employ of one Charles Hart, a contractor, and was engaged on the morning of March 4, 1891, in loading a wagon with paving blocks on the inner side of the sidewalk on Fourth avenue in this city. There was a single line of flagging laid on the sidewalk, leaving a space of dirt on both sides. The deceased’s truck stood on the inner side of this line of flagging next to the line of the lot. Both before and behind the truck which deceased was loading were two other trucks, which were likewise being loaded. Immediately opposite the place where deceased was loading was a large truck, such as is ordinarily used for carrying heavy iron girders, required in the construction of elevated railroads. This truck was from twenty-five to forty feet long, and the cross pieces over the axles were connected by two long beams a foot to eighteen inches thick, and about four feet apart. The lower side of these beams was from six to ten feet above the ground, .as variously testified to by the witnesses. One of the fore wheels of this truck was on the sidewalk, the other three rested on the roadway of the avenue. This truck had remained in this position for something like six months, and it was sought to hold the defendant, the city of Brooklyn, liable on the ground that it had negligently permitted this truck to remain as an unlawful obstruction in the highway, and the defendant, Holland, was sought to be held liable for having negligently and carelessly permitted said truck to stand in Fourth avenue for so long a period of time. The testimony further showed that, after deceased had loaded his truck, the mules attached thereto refused to draw in the soft dirt; that he turned their heads out onto the strip of flagging, got on his truck and started the mules, and, in endeavoring to pass with the load underneath the beams of- defendant Holland’s truck, deceased met with the injuries which caused his death.

We think that the complaint in this action was properly dismissed. While, in some minor particulars, there are differences between the witnesses, yet the plain, unmistakable conclusion to be drawn from all the evidence seems, to us, to clearly indicate that the deceased sought to drive out onto Fourth avenue with his load, underneath the long beams of the truck standing on Fourth avenue, on the supposition that there was sufficient space-for that purpose. It clearly appears that when deceased had completed his load and endeavored to start the mules they refused to pull on the soft ground, and that he then turned them with their heads pointed out toward the large truck above mentioned; that he then mounted his truck and the mules started, not going off a walk, and apparently under full control of deceased. There is no pretense that they were unmanageable or excited; they • did not go off a walk as they started to go under the beams of the truck, and the testimony shows that deceased bent forward, evidently with the view of passing under the beams. That the space was insufficient for him on top of his load to pass through was his misfortune, and in no respect due to any negligence thát might be charged against the defendants or either of them. The deceased apparently made a miscalculation as to the height of the beams from the ground. He took the chances of passing under, and the defendants cannot be held responsible for the consequences of his failure to pass safely beneath the beams of the truck.

. Judgment dismissing the complaint must by affirmed, with costs.

Judgment affirmed, with costs.

Clement, 0. J., concurs.


text:
    The People ex rel. James Shields, App’lt, v. Henry I. Hayden, Commissioner of Police, Resp’t.

      (Brooklyn City Court, General Term,

      Filed February, 1894.)

    Municipal coepobations—Police—Removal.
    In proceedings to remove a police officer on the charge of intoxication, the defense that he was only under the effect of medicine, to he available, must be established.
    Certiorari to review the determination of the respondent dismissing the relator from the police force of Brooklyn.

      Edward F. O'Dwyer, for relator; F. A. McCloslcey, for resp’t.
   Clement, C. J.

The relator, after a full and fair hearing before the police commissioner of this city, was, on September 12th, 1893, dismissed from the department on the charge, of intoxication. Captain Rhodes, Sergeant Lynch, and Roundsman Knapp testified at the trial that at roll call at six o’clock on the afternoon of September second Shields was intoxicated. Neither officer detected the odor of liquor upon him, but, from his language and walk, he had the appearance of a drunken man. Shields testified in his own behalf that he had been wet by rain while on duty previous to the day in question, and, as a result, had pains; that he went to a doctor, who prescribed for him; that on the way to the station house on the evening of September second he took some of the medicine, and that, although he got to the station house all right, he did not know what afterwards happened. Shields produced on trial the bottle of medicine. We have substantially stated all the testimony given before the commissioners.

Intoxication can be proven by witnesses who are present and observe the condition and acts of a party. McCarty v. Wells, 51 Hun, 171; 20 St. Rep. 630; People v. Eastwood, 14 N. Y. 562. On the testimony given before the commissioners we cannot hold that the relator did not have a fair trial, or that the judgment rendered was against the weight of evidence.

On the application for a writ of certiorari the relator presented, in addition to his petition, the affidavits of Peter Hughes, a physician, and Adolph Levy, a druggist. Dr. Hughes states that on the morning of September second he prescribed for the relator, and that the prescription contained morphine, and Mr. Levy says that, on the same day, he put up the prescription. Dr. Hughes says also that he was informed by' the relator that, about five o’clock on the afternoon of September second, he (relator) took a mouthful of the mixture instead of a teaspoonful, as was prescribed, and that, if Shields’ statement was correct, he would, at six o’clock of the same day, have had every appearance of a man who was intoxicated.

It becomes important to consider whether, on this hearing, we shall consider the affidavits of Dr. Hughes and Mr. Levy. Under the new Code, we are to consider all the papers on which the writ is granted, unless the facts therein stated are traversed, in which case the parties are heard solely on the return. Judge Earl so holds in the case of People ex rel. Peck v. Commissioners, 106 N. Y. 64; 8 St. Rep. 634. In that case is cited the authority of People ex rel. McCarty v. French, 25 Hun, 111. In the latter case Judge Daniels said: “It could not, however, have been the design of the law to allow the return to be controverted or overthrown in its statement by anything contained in the papers for the allowance of the writ. * * * And it could not have been the purpose of the legislature, by this provision of the Code, so far to interfere with the existence of this well-settled rule of practice as to allow the return itself to be rejected because it might not be consistent with the statements contained in the affidavit upon which the application should be made for the writ of certiorari. * * * All that was probably intended was, that where the return itself might be silent, that the affidavit or papers upon which the writ was issued might be resorted to, for the purpose of including facts not set out by the return." The affidavits of the doctor and druggist were in the nature of cumulative testimony, and, in an action in court, would be treated as such on a motion for a new trial on the ground of newly discovered evidence. They simply ■ are offered to show that the relator was not intoxicated by liquor x at the time charged. The question of intoxication is fully met by the return, and it was not necessary for the commissioner to deny specifically the matters which related to intoxication in the papers upon which the writ was granted.

Even if we do consider the two affidavits on this review, they cannot affect the result. The relator says in his petition, and so testified at the trial, that he took some of the mixture in a street oar on his way to the station house. The doctor and the druggist do not know whether he took any except by his statement. Reading the petition and affidavits and the return together, the case turned on the question whether the commissioner believed that Shields was intoxicated from the use of liquor or of medicine. It is a suspicious circumstance in the case that Shields did not mention the name of the doctor or the druggist on the trial, and, while we do not question the truth of their affidavits, we think it was a question of fact for the commissioner to decide, on the evidence before him, whether Shields was voluntarily or involuntarily intoxicated on the evening of September second.

It does not appear that Shields gave the explanation testified to at the trial to his superior officers before the trial. If his claim is true, it would seem that, as soon as he recovered his reason, he would explain to his captain the reason of his intoxication. The defense offered by the relator is frequently made by officers when charged with intoxication, and should be clearly made out.

The proceedings of the,, commissioner are affirmed, with fifty dollars costs and disbursements.

Van Wyok and Osborne, J.J., concur.

Proceedings of commissioner affirmed, with fifty dollars costs and disbursements.


author: Bradley, J.

text:
    The People ex rel. William L. Mercer, Pl’ff, v. N. Barnett Maynard et al., as Assessors, etc., Deft’s. The People ex rel. Andrew G. Mercer, Pl’ff, v. Same, Deft’s. The People ex rel. Philip M. Kendig, Pl’ff, v. Same, Deft’s.

      (Supreme Court, Monroe Special Term,

      Filed October, 1893.)

    1. Taxes—Assessment—Affidavit to ¡reduce.
    An affidavit to reduce an assessment upon personal property cannot be made before a notary public or commissioner of deeds.
    2. Same.
    If the person assessed refused to answer any question as to the value of bis property or the amount thereof, the assessors will not reduce the assessment.
    3. Same—Examination.
    The applicant must submit to an examination under oath as to the assessable value of bis personal property and subscribe such written examination.
    Certiorari to review the assessment in each of the above-entitled cases made by the assessors of the town of Waterloo, county of Seneca.
    The personal property of the relator William L. Mercer was assessed $23,940 ; the personal property of the relator Andrew GL Mercer, $38,700, and that of the relator Philip M. Kendig, $11,025.

      Frederick L. Manning, for relators; Charles A. Hawley, for debts.
   Bradley, J.

There is no question about the regularity of the proceedings of the assessors up to the time they met on the third Tuesday of August to review their assessments. The complaint is that the assessors then, upon the proceedings had in behalf of the relators, erred in not removing or reducing the assessments of their personal estate.

The question presented, therefore, is whether the assessors were fairly required to do so by the proofs as presented to them.

It was the duty of the assessors, on the application of any person aggrieved, to hear and examine his complaints on the subject. They did hear the complaints of the relators, but in the view they had of their duty concluded that the relators failed to furnish the requisite proof to require or justify the reduction sought of the assessments of their personal property. The return of the assessors to the writs of certiorari, or to the facts legitimately presented by them, must, for the purposes of the question here, be deemed conclusive.

In the case of the relator William L. Mercer the facts as so stated are that he did not personally appear before the assessors; that Andrew G-. Mercer appeared there and presented in his own behalf an affidavit, made by him before a notary public, and was by them informed that they could not accept it for the reason, as they understood the law, that the person should be sworn and examined by them; that afterwards, and just before departing from the office occupied by the assessors, he laid upon the desk an affidavit of William L. Mercer, which had- been taken before a commissioner of deeds, and said : “ Here is an affidavit that I will leave for my brother William,” and left the office. This affidavit was to the effect that his personal estate, including his bank stock after deducting his just debts and property invested in the stock of corporations or associations liable to be assessed therefor, and his investments in the obligations of the United States, did not exceed the sum of one dollar. Ho other proof in his behalf was presented to the assessors.

The relator, Andrew Cr. Mercer personally appeared before the assessors and presented to them his affidavit, taken before a notary public, and similar in all respects to that before mentioned of William L. Mercer. The assessors examined the affidavit and said to him that they could not accept it, and, on being asked why, replied that, as they understood the law, it was necessary, in order to remove the assessment upon personal property, that the person should be sworn and examined by them; they also stated to him that if he desired they would administer to him the oath, and if his examination was satisfactory they would remove the assessment. The oath was administered to him. He was asked : “ On what ground do you demand a reduction of your personal assessment ? A. On account of debts and money invested in stock corporations. Q. What is the nature of your indebtedness—of what does it consist ? A. I decline to answer.” After being told that if he could not answer the question there was no use ingoing any further with the examination, he said: “ Well, put it down twenty thousand. Q. To whom are you owing this money ? A. I decline to answer.” He answered no further questions, nor did he subscribe the examination, which was taken in writing, but, laying his affidavit before referred to on the desk, and saying “ that he would rest the case upon that affidavit,” left the office and did not again appear before the assessors.

The relator, Philip M. Kendig, also appeared before the assessor and presented his affidavit, similar to that before mentioned, takers, before a notary public, and after being informed that the assessors could not accept it for the reasons before stated, he, after some hesitation, consented to be sworn. The oath was administered to him, and he was asked: “ On what grounds do you demand a re- ' duction of your personal assessment ? A. That I am in debt. Q. What is the nature of your indebtedness; of what does it Consist? A. Notes and other evidences of debt. Q. What is the amount of your indebtedness ? A. Eighteen to nineteen thousand dollars. Q. To whom are you owing this money ? A. I decline to answer.” lie did not answer that question nor did he subscribe the examination, which had been taken in writing, but laying down his affidavit, before referred to, and saying “ that he would rest his case upon that affidavit," left the office and did not again appear before the assessors.

The application of Mr. Kendig was made about half an hour after that of Andrew Mercer. The assessors indorsed upon each of their affidavits the words “ Not accepted by the assessors as sufficient evidence to warrant a reduction,” and filed it in the office of the town clerk, and immediately thereafter mailed to each of the relators a written notice that his affidavit had been so indorsed as not accepted; that it had been so filed, and that his personal assessment had riot been reduced.

Those are the facts upon which the determination here must mainly be founded, and as the powers of the assessors are statutory, the question is whether or not the relators took such action in support of their applications as required the assessors to give them the relief they sought, or any relief by way of reduction of their assessments. By the act of 1851 (Chap. 176, § 6), as amended by Laws of 1857 (Chap. 536, § 5), it is provided that “ whenever any person on his own behalf, or on behalf of those whom he may represent, shall apply to the assessors of any town or ward to reduce the value of his real and personal estate, as set down in the assessment roll, it shall be the duty of such assessors to examine such person under oath touching the value of his or their said real or personal estate; and after such examination and such other supplementary evidence under oath as shall be presented by the party or person aggrieved, they shall fix the value thereof at such sum as they may deem just, ” etc., “ but if such person shall refuse to answer any question as to the valúe of his real or personal estate, or the amount thereof, or to present sufficient supplementary evidence under oath to justify a reduction, the said assessors shall not reduce the value of such real or personal estate. The examination so taken shall be written and shall be subscribed by the person examined.”

In the case of William L. Mercer there was an entire failure to comply with the statute, and the person presenting and leaving his affidavit with the assessors was advised by them that they would not accept an affidavit for the reasons stated by them.

It is said, on the part of the relator, that his affidavit follows the form of that in People v. Weaver, 100 U. S. 539. True, it does, but it may be observed that the affidavit there was made pursuant to a statute relating to the city of Albany (Laws 1850, chap. 86, § 9), which may have remained effectual notwithstanding the subsequent general statutes amending the Revised Statutes .on the subject. Laws 1851, chap. 176, § 4. In that case the sole question raised was one of the constitutionality of a statute of this state. People ex rel. Caggar v. Dolan, 36 N. Y. 59. There is no 'support for the writ issued in behalf of the relator William L. Mercer.

The disposition of the other two cases is dependent upon a state of facts applicable to both of them. Their affidavits were not effectual to support their claim for reduction of their assessments, and would not have been under the Revised Statutes before the amendment of 1851, as there the affidavits for such purpose must have been made before the assessors or one of them. 1 R. S. 894, § 25. Such provision was repealed by Laws of 1851, chap. 176, § 3, The assessors proceeded to examine those relators upon oath, and the examination of them was respectively interrupted and stopped by their refusal to answer the questions as to whom they owed the indebtedness referred to in their previous answers. It is urged that the assessors in making that inquiry were assuming to exercise an arbitrary and inquisitorial power not within reasonable limits and illegally, and that the relators properly declined to answer it.

The purpose of the statute of 1851, as amended in 1857, evidently was to provide for greater and more satisfactory means of information than that which was necessarily furnished by the affidavit provided for by the former statute. This might not be accomplished if the view of its purpose and effect urged on the part of the relators were adopted.

In the cited case of People v. Reddy, 43 Barb. 539, the question here did not necessarily arise. The court there said that the object of the amendment was to allow the assessors to subject the person appealing from his assessment to such an oral examination as they might think proper. Nor is the contention on the part of the relators as applied to the present case supported by People v. Howland, 61 Barb. 273 ; People v. Ferguson, 38 N. Y. 89, or People v. Ryan, 88 id. 143. There the courts held, as in People v. Reddy, that the assessors act judicially and must be governed by the evidence before them, and cannot arbitrarily determine the facts to the contrary. But it must be assumed that the facts appearing by the evidence to control their action must be such as appear from the examination which the assessors are at liberty to make of the person seeking relief against his assessment. Nothing to the contrary was held in People ex rel. Douglass v. Dykes, 19 N. Y. Supp. 78; 45 St. Rep. 621. And in the later case of People ex rel. Corwin v. Assessors of Middletown, 64 Hun, 167; 46 St. Rep. 148; 19 N. Y. Supp. 142, in the same court, it was held that the assessors had no power to reduce the assessment upon the case made solely by the affidavit of the attorney who appeared for the person assessed. 1

It is seen by reference to the statute before mentioned that if the person assessed refuses to answer any questions as to the value of his property or the amount thereof, the assessors shall not reduce the assessment. In Vose v. Willard, 47 Barb. 320, it was held that the assessors properly refused to reduce the assessment of the person making application therefor because, on examination by them in respect to the amount of his debts and to whom he was indebted, he stated he could not remember whom he owed, as well as for the reason that he did not subscribe his written examination. And there Mr. Justice Johnson said: “If he claims to be indebted to a large amount or to any amount and is unable to tell what persons he is owing, who his creditors are, and to what amount he is indebted to each, or near the amount, it would be quite safe for the assessors to( assume and to act upon the assumption that the claim was a mere pretense to avoid the payment of his just and proper share of the public burdens.” In the present case, the assessors in pursuing the inquiry which they made, and to which the relators refused to respond, were exercising their power within the purpose of the statute providing for the examination by them. A more limited construction of the power conferred by it would seem to make it appear that the amendment of the Revised Statutes upon -the subject was made without any substantial purpose. It was essential to their right to have their assessments removed or reduced that the relators submit to an examination under oath as to the assessable value of their personal property. This they did not do, but refused. And if it had been done it would likewise have been necessary for the relators to subscribe the written examination. The requirement on their part was not accomplished. It must be assumed that the assessors, according to the best information in their power, ascertained and inserted in the assessment roll the value of the relator’s taxable property and that of the other taxable inhabitants of the town. And for the reasons before given the relators failed to establish any right to have their assessments or that of either of them reduced.

The prayer of the petitioners should be denied and the writs dismissed, with costs.

Ordered accordingly.


author: Russell, J.

text:
    Warren Dake, Pl’ff, v. Prescott Hall Butler, Impleaded, etc., Def’t.

      (Supreme Court, Saratoga Special Term,

      Filed January, 1894.)

    Partnership—Lease.
    A provision in a lease that the landlord take an additional sum, if it arises, not as profits of an enterprise in which he joins with the lessee, but as rental compensation, contingent and not absolute, does not make him liable as a partner to third persons who deal with the lessee.
    Action for goods sold and delivered.

      T. F. Hamilton, for pl’ff; Charles S. Lester, def’t.
   Russell, J.

The plaintiff sues the heirs of the late Mrs. Cornelia M. Stewart to recover against them as partners with Mr. Woolworth for supplies furnished to Mr. Woolworth in the. management of the Grand Union Hotel at Saratoga Springs, and claim that the instrument by which Mr. Stewart’s heirs leased that property to Mr. Woolworth made them liable as partners to third persons dealing with him for goods furnished for the purposes of the hotel during the existence of the lease.

By the instrument in question the heirs leased to Woolworth the hotel and furniture for the yearly rent of $52,500, and such additional contingent sum as should equal one-half of the profits. In order that the parties leasing might avail themselves of the advantage of the contingent rent, it was further provided that books of account should be kept, and on November 1, a detail of the profits should be furnished; that the heirs should have free access to the books ¡'should have a right to a voice in the selection of the' bookkeeper, and that the deposits should be made in bank in gross, and that no part thereof should be drawn for the personal use of the lessee until the liquidation of the specific and contingent rent.

The claim of the plaintiff is based mainly upon the provision for a sum equal to one-half of the profits. The other provisions referred to are not designed to give a partner’s rights to the lessors, but simply to facilitate and secure knowledge, and a collection of the contingent rent.

The plaintiff’s counsel does not claim the heirs to be partners inter sese with Woolworth, but claims that, as to third persons, they are liable as such.

Ordinarily, the rule which casts a partnership liability upon those who have not agreed to be partners is based upon conduct of the parties which holds them out to the world as such, or which is calculated to mislead persons dealing with the enterprise into the belief that they are partners. This liability is not founded upon the existence of a partnership relation created by an agreement which must be made in order to constitute an actual partnership, but upon general rules of equitable dealing which prevent innocent ones from suffering on account of the acts of others that were calculated to deceive them.

It is plain that no liability was created under this general rule as to third persons for the reasons stated, because there was no proof given, and there was no claim made, that the Stewart heirs held themselves out by act or deed to third persons as partners of Woolworth. The liability as to third persons is claimed as springing out of the agreement itself, and not from the acts of the lessors in any other respect.

There is only one ground upon which such a plea can be maintained, which is that the agreement provided for the participation of the lessors with the lessee in the profits of the enterprise as such, by the contribution of something of value to the enterprise, in which event it may be readily admitted that the parties were partners as to the world, no matter how much they might covenant between themselves that they should not occupy such relation. The agreement would then be simply a device to enjoy all the emoluments of a partnership, without the incurrence of any of the risks.

But this case is widely different. The lessors' own a valuable hotel. The lessee desires to rent it. The minds of the parties must meet upon some basis as a consideration for the use of the hotel and furniture. They might speculate as to what the value of that use should be. Such value is largely dependent upon the custom attracted during the short season while this summer hotel would be in demand by guests. Such a speculation in advance might be far from the value as shown by the actual result.

A fairer way was devised. A basis was made for a certain rent smaller than the rental value, and, instead of a fixed sum beyond, the lessors content themselves with a further rent dependent upon the value of the use of the property to the lessee. They do not take this additional sum, if it arises, as profits of an enterprise in which they join with the lessee, but as a rental compensation, contingent and not absolute. It is precisely the same as if they had agreed to take an additional $50,000 in case the receipts of the hotel averaged $10,000 a day from the first of June to the-first of October.

I think these views are supported by the authorities. Perrine v. Hankinson, 11 N. J. L. (6 Halst.) 181.

This is a case of rental by which the landlord agreed with his-tenant to take a share of .the profits of the demised premises by way of rent. See, also, Pleasants v. Fant, 22 Wall. U. S. 116; Dwinel v. Stone, 30 Maine, 384; Augusta Bank v. Bones, 78 Ga. 246; Heinstreet v. Howland, 5 Den. 68 (also a rental case.); Richardson v. Hughitt, 76 N. Y. 55; 3 Kent’s Comm. 33.

The plaintiff argues that an agreement for a division of the profits in any form lessened the security of the creditors and furnishes the reason for making the lessors partners with the lessee. So do any expenses lessen the amount of the fund to which the creditors may have recourse for payment, and the preculiarity of'this lease is, that while a certain sum must be taken as expenses, as to which the lessors stand the same as other-creditors, yet, as to the contingent rental, they are deferred until the payment is made of all of the debts arising from the management of the hotel, they only receiving under this branch of the agreement a share of the remnants, so that in no view can that agreement on their part be antagonistic to the claims of the creditors.

They cannot enhance the profits by any control of their own. They have no power as partners and they should not be held to be liable as such.

Judgment is accordingly ordered for the defendants.


text:
    Sarah G. Smith, Pl’ff, v. John B. Smith, Def’t.

      (Supreme Court, Saratoga Special Term,

      Filed January, 1894.)

    1. Divorce—Review.
    Upon a motion to confirm the report of a referee in an action for divorce, the court will not consider the evidence, where the decision is. against a divorce.
    2. Same—Referee's decision.
    Where the issues have been fully and fairly tried before a referee, his decision should stand as a guide for the court in rendering judgment, unless some unjust, inadvertent or unwise ruling appears, which tends to destroy the safeguards which the court throws around the indissolubility of the marriage tie.

      Motion to confirm report of a referee in an action for divorce.

      Charles F. Doyle, for pl’fi; J, L. Henning and Myer Nussbaum. for deft.
   Russell, J.

A motion is made to confirm the report of a referee appointed to hear and determine the issues in an action of divorce on the ground of adultery, in which there was an affirmative defense of adultery on the part of the defendant and a counterclaim of the same issue, asking for an affirmative judgment in favor of the defendant. The reference was to Judge Houghton of Saratoga Springs, and after hearing the evidence, voluminous in its character, the referee reported in favor of the defendant: Firstly, that he had. not committed adultery, and, secondly, that the plaintiff had committed adultery, and awarded a divorce to the defendant.

Upon the motion to confirm the report, the plaintiff’s counsel object that the evidence was insufficient to justify the finding that the defendant had not committed adultery, and also that there was no sufficient evidence to support the finding that the plaintiff had committed adultery.

The court at special term is, therefore, asked by the plaintiff’s counsel to review the findings of the referee, both upon the merits and for errors committed upon the trial in rulings upon evidence, in order to reach the result that the motion to confirm the report should be denied.

Section 1228 of the Code of Civil Procedure provides that the report of a referee to hear and determine shall stand as a decision of the court, and upon it, as a matter of course, a judgment may be entered, without further application to the court upon the merits. But § 1229 modifies this provision in matrimonial actions so as to require that the judgment itself shall be rendered by the court.

It is obvious that the intent of the legislature in this variance in such actions was simply to provide that no judgment in such actions should ever be rendered without a direction by the court, and the purpose of this rule is also obvious. It is against public policy that the marriage contract should be dissolved by agreement, honest or collusive. The principle which protects this relation carries its necessity into every form of procedure in court in divorce actions, even where a referee to hear and determine has been appointed by the court in a divorce action, and one cannot be appointed without the order or direction of the court, and his decision is not the final judgment, but, for the protection of the policy of the public in its respect for marriages, the court itself must be satisfied that the divorce is fairly granted.

Otherwise, a referee who. is appointed to hear and determine might feel compelled, upon the evidence presented, to award a divorce, while the court which has to pronounce the judgment, in its broader scope and power, might interpose its veto, so that, notwithstanding there was prima facie evidence of adultery, sufficient having appeared upon" the trial or by proof aliunde to justify it, it might refuse to award judgment. All of this is is not intended as a review by the special term, of the report of a referee of limited power, as in ordinary cases of that kind, nor is it intended to stand for an appeal to the general term from the referee’s decision or judgment entered on the referee’s decision, where all of the questions arising before the referee can be properly heard and determined. It is simply an authority to the supreme court to intervene and prevent a judgment from being entered which would justify the consummation of a new marriage by the successful party, and the complications arising from the existence of a judgment which might be plainly erroneous.

The principle alluded to would not require, the court to scrutinize closely the evidence where the decision of the referee was against any divorce for in such cases the marriage is protected and preserved. Therefore, this court in the case at bar will not consider the conflicting evidence and inferences arising upon the referee’s finding that the defendant had not committed adultery, as such a review is not within the scope of the meaning of § 1229 or the reason upon which it is founded.

The plaintiff’s counsel ask the court to' review the affirmative finding in favor of a divorce for the defendant, on the ground that there is no sufficient evidence to justify the finding of such a legal conclusion. This presents a somewhat different question from the antecedent one. In the original issue upon -which the order of reference was made there was an affirmative counterclaim, as well as the defense, of adultery on the part of the plaintiff. It was not sufficiently broad, and the court, pending the hearing upon the reference, allowed a supplemental answer averring adultery by the plaintiff committed after the commencement of the action. As the testimony had largely been given showing the acts of adultery by the plaintiff prior to the service of the supplementary answer, the plaintiff’s counsel now claims that this evidence could be used in support of the supplementary answer without being regiven. His objection does not go upon this argument to the extent that the supplementary issue destroyed the force of the order of the reference. This evidence was competent and proper, if not for an affirmative decree of divorce in favor of the defendant, at least for the purpose of destroying plaintiff’s power to procure a divorce from the defendant, she being also a guilty party, even if he was also. When the supplementary answer was given, the evidence in the case might apply to all of the issues arising upon the pleadings. This was so held by the referee, and if he has committed an error in this respect, that error should be reviewed by the general term upon appeal, instead of the special term in pronouncing judgment in this action. Where the issues have been fully and fairly tried before a referee to hear and determine, his decision should stand as a guide for the court in rendering judgment, unless some unjust or inadvertent or unwise ruling appears which tended to destroy the safeguards which the court throws around the indissolubility of the marriage tie. In such a case, and such case alone, should the special term intervene.

I think this doctrine is a reasonable one, and is also sustained by the authorities, Schroeter v. Schroeter, 23 Hun, 230; Ryerson v. Ryerson, 27 St. Rep. 945 ; Ross v. Ross, 31 Hun, 140; McCleary v. McCleary, 30 id. 154; Matthews v. Matthews, 53 id. 244; 25 St. Rep. 79.

'Judgment is, therefore, ordered for the defendant, in accordance with the conclusion of the referee.


author: Parker, J.

text:
    The People ex rel. Lovell, Commissioner of Highways, Pl’ff, v. John C. Mellville et al., Commissioners, Def’ts. The People ex rel. Jacob Hevener et al., Pl’ffs, v. Same, Def'ts.

      (Supreme Court, Tioga Special Term,

      Filed January, 1894.)

    1. Highways—Return to certiorari.
    If the return to certiorari to review the proceeding of commissioners appointed to determine the necessity of a proposed highway contains irrelevant and improper statements, the general term will disregard them in making its decision.
    2. Same—Striking out.
    Ho part of such return can be stricken out.
    3. Same—Further return.
    Where all the information, which can be furnished the general term on the subject, is already returned, no further return will be ordered.
    Motions by the relators to strike from the returns to the writs of certiorari in these matters certain statements claimed to be improperly inserted therein.

      Rockwell, McDowell & McCann, for relator Lovell; Babcock, Baxter and Gibson, for relators Hevener and Tubbs; James A. Douglas (Roswell R. Moss, of counsel), for def’ts.
   Parker, J.

On the 20th of April, 1893, the three defendants in this matter were appointed by the county court of Chemung county commissioners to determine the necessity of a proposed highway in the town of Elmira, and to assess the damages occasioned by reason of laying out the same. Such commissioners were appointed under the provisions of §§ 83 and 84 of chapter 578 of the Laws of 1890. The proposed road passes through lands of Jacob Hevener and Samuel Tubbs, each of whom appeared at the hearing before the commissioners. The commissioners made and -filed a certificate, in which they decided that the road was necessary, and in which they assessed the damages accruing to Hevener at '$75, and to Tubbs,. $125.

Each of such owners have procured this writ of certiorari to review the proceedings of such commissioners, claiming that their proceedings were wholly without jurisdiction and unauthorized. Hevener claims it on the ground that it does not appear that either of the commissioners was a freeholder. Also that his premises through which the road passes are in fact such a yard as is exempted, by § 90, from the proceedings provided for by §§ 83 to 89 inclusive.

_ Tubbs put his claim on the ground that neither of the commissioners is a freeholder. And also that his premises through which the road passes is a vineyard, and that, therefore, by § 90, it is exempted from the proceedings under which the commissioners are appointed.

The order appointing the commissioners is silent as to whether either of them is or is not a freeholder.

The certificate containing the commissioners’ decision does not contain any specific finding or decision as to whether the road passes through a vineyard on Tubbs’ land, or a yard on Hevener’s land, nor whether or not any consent was given by either for such a passage.

The commissioners have made a return to the certiorari served upon them, which purports to be a narrative of the appointment and of the proceedings had before them, and to which they annex the petition and order appointing them, the evidence taken before them, and the certificate or decision made and filed' by them. But in such narrative they have included three statements to which the relators take exception, and who now make this motion to strike the same from the said return. Such statements are substantially as follows:

First That the commissioners were each of them freeholders at the time of their appointment.

Second. That although a portion of the land belonging to Tubbs, through which the road passes, was a vineyard, he, Tubbs, in open court, consented to the road passing through the same, and submitted to the commissioners the question of the damages. The record of. their proceedings does not show any written consent given by him, nor do I understand tlqat the commissioners claim that he gave any; merely that he appeared before them and consented to their proceeding.

Third. That the commissioners found and determined as a fact, •from the evidence taken and from their own inspection of the premises owned by Hevener, that the road did not pass through such a yard as is described in said § 90.

The complaint of the relators is that by these statements facts are sought to be inserted into the case which were not established on the hearing, and which nowhere appear on the record on which the authority to open the road alone rests.

And the commissioner of highways of the town of Elmira, who has also obtained a writ of certiorari on the same ground, claims that the record made up upon the hearing and filed is his only authority for opening the road. That he must justify his acts by that, and. that only, and that, therefore, on a hearing to determine whether such record would protect him, no facts should be inserted in a return except such as appear in the record itself. The theory of this motion is that the return should contain the record only, and that the statements complained of are no part of the record and hence should be stricken out.

It is true that the object of this writ is to determine whether the commissioners in opening this road had jurisdiction to act, and it is also true that the hearing must be had upon the return. People ex rel. Downey v. Dains, 38 Hun, 43. It is also held that such a return should give the record only. People ex rel. Waterman v. Schellinger, 32 St. Rep. 353. But if the return contains,irrelevant or improper statements, the general term on hearing will disregard them.

In People ex rel. Agnew v. Mayor, etc., 2 Hill, 9, it is said: The writ of ce7-tiorari * * * removes nothing but the record (or other entry in the nature of a record) of the proceedings in the court below. And if the return contains anything more, it cannot be regarded.”

Also, in People ex rel. Higgins v. Grant, etc., 58 Hun, 158; 33 St. Rep. 810, it is held that there is no authority for striking out any part of a return, and that the proper practice is to leave it to the general term to make its decision upon such part of the return as is properly there and to disregard such parts as are immaterial.

Thus, in the case at bar, it will be for the general term to decide whether the statements complained of could properly be added in .aid of the record (if it appears they are not sustained by the record), and if they may not be so added that court will disregard them in making a decision.

The cases seem to be direct authority against striking out the matter complained of.

As to the request that I order a further return, under the provisions of § 2135, requiring the defendants to state therein the facts upon which they based their conclusion as to whether Hevener’s land was a yard, and Tubbs consented that they should open the road through his vineyard, I am of the opinion that such section does not apply to this case. It is not claimed that any part of the record (except the map) has been omitted in his return. If it had, that might be added under the above section. But this return already states that the commissioners reached their conclusion from the evidence (which is returned) and their inspection of the land. Hence, I do not see but that all the information which can be furnished the general term on that subject is already returned. An attempt to return the facts learned by their inspection would be but giving their evidence as witnesses on the question in dispute. All the evidence in the case is returned, and if it appears from it that the land of Tubbs and of Hevener is such as they now claim it to be, and the record does not properly shovv any consent on the part of either to open the road through it, then the general term will have before it all the facts upon which the relators rely, and can give such force as, ought to be given to the facts so appearing, notwithstanding the conclusion which the commissioners now state they reached on that question. If such evidence fails to show that the land is of the character claimed, then I do not see how, from the record, or from any source, the facts on which the relators rely cap be made to appear to the general term. Surely those questions cannot now be tried out upon a reference ordered by me. People ex rel. Simonds v. Ryken, 6 Hun, 625. I conclude, therefore, that so. much of the motions as asks to strike out matter must be denied. So much as asks to add new matter to the return is also denied, except that the maps put in evidence, and which constitute part of it, should be returned with the evidence.

An order to this effect may be entered in each of the cases before me, and ten dollars costs of motion in one case only is allowed to defendants.