author: Andrews, J.

text:
    Jennie E. Wood, Adm’rx, Pl’ff, v. Robert M. Nesbit, Def’t.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Will—Equitable conversion—Power of sale.
    Where a will gave all of a testator’s estate to his executors in trust to invest and provide for the payment of annuities, and directed the investment of a sufficient sum to produce such annuities, and there was not sufficient personalty for that purpose, Held, that there was an equitable conversion of the realty, and that the power of sale to provide a fund for such annuities could be exercised by an administrator with the will annexed, where the executors had not set apart a fund for that purpose.
    2. Same.
    Where the will authorized the executors to sell “all and every part of , the estate,” the fact that they had sold more than enough to provide for the annuities does not affect the right of the administrator with the will annexed to sell for that purpose, where it appears that the executors did not set apart such fund, but misappropriated the proceeds of sale.
    Submission of controversy without action.

      Maguer & Hughes, for app’lt; Chas. F. Halstead, for def’t
   Andrews, J.

This action came before the court upon an agreed case containing a statement of the facts upon which the controversy depends. The plaintiff is the administratrix with the will annexed of Samuel Wood, deceased. The defendant is a purchaser from her of certain real estate of which said Wood died seized. The defendant objects to the title of said real estate upon the ground that the plaintiff has no power to sell it, and this action is brought to compel the defendant to accept the title and pay the purchase price.

The decision of the question presented depends upon the construction to be placed upon certain portions of the will of Samuel Wood. By that will the testator, after providing for certain legacies to be paid immediately, gave all the rest of his estate to his executors, and the survivor or survivors of them, and to them and each of their successors forever, in trust, to provide for the payment of certain life annuities and the ultimate legacies depending thereon, and to create, endow and maintain an institution to be called the Samuel Wood College of Music.

The testator directed and required his executors to set apart out of his estate, and to securely invest in good interest paying securities, preferring mortgages on unincumbered real estate, and to keep securely invested to pay such annuities, the several sums of money given to the annuitants. The will provided for twenty-three annuitants, and the several sums which the executors were required to invest for their benefit amounted to about $198,000. Where the annuitants had children, the trust to pay the income was limited to two lives, and, on the termination of the second life, the principal was in most instances given absolutely in remainder. In cases where there were no children of annuitants, the principal was to become a part of the residuary estate on the death of the annuitant. Of the $198,000 the sum of $99,000 was to go to remaindermen, and the sum of $99,000 was to revert to the residuary estate. ISTearly all of testator’s property, both when the will was made and at the time of his death, consisted of real estate. The will gave $53,000 in legacies payable absolutely and immediately, and the personal property of the testator was not sufficient to pay such legacies and the valid claims against the estate. Most of the real estate was sold, and the money received therefor was placed in the general bank account of the executors, and was drawn upon by them for all purposes of the estate. According to the statement of facts, the executors appeared to have misappropriated a large amount of such money in various ways, which amounted to a devastavit of the estate. Among the various payments which they made were $150,000 for salaries to themselves, and over $150,000 for attorney and counsel fees and expenses of litigation. There were originally four executors, three of whom died, and the fourth was removed. ISTo sums of money were ever set apart or invested by the executors for the purpose of producing the annuities, but sums of money were paid to the annuitants once in six months, as if for interest, and were drawn out of the bank from the principal of the proceeds of the sales of the real estate. The annuitants were for the most part ignorant of the fact that no investments had been made for them. The trust created for the College of Music was declared void by the court of appeals, 126 N. Y., 299 ; 37 St. Eep., 371, so that the testator died in.-, testate as to all his residuary estate, and his sole next of kin and heir-at-law was one Abraham Hewlett. Said Hewlett was an annuitant, and appears to have been a party to the devastavit, and knew that no investments had been made for the annuitants. After a large portion of the real estate had been sold, and before the decision of the court of appeals above mentioned, the said Hewlett entered into a written agreement with the then two surviving executors, which contemplated a settlement with the annuitants, and a division of the remainder of the estate between the three parties to that agreement. Thereupon, in consequence of various misrepresentations made to them, many of the annuitants released their claims, but, afterwards, finding' they had been deceived, demanded a surrender of such releases ; and the removal of the last executor, Simonson, was based in part on his misconduct towards such annuitants. Subsequent to the obtaining of the releases Hewlett died, and his only heirs-at-law, who are collateral descendants of a paternal grandfather, in many degrees removed, are scattered through different states, and are nearly one hundred in number. Some of the annuitants, and among them one Joseph F. Wood, have never been settled with, nor have they executed releases, nor have they had any funds set apart for them. Upon the removal of the last executor plaintiff was appointed administratrix with the will annexed, and she entered into a written agreement for the sale to the defendant of a parcel of land of which the testator died seized, by the terms of which-agreement defendant was to pay for the land $100 in cash, and $400 was to be secured by bond and mortgage, executed to the plaintiff, her successors and assigns, in trust for said Joseph Wood during his life, and for his heirs after his death.

The first objection, made on behalf of the defendant to the title, is, that an administratrix with the will annexed has no power to sell real estate.

This objection is not well founded. It is true that an administrator with the will annexed has no power to sell real estate by virtue of his office merely; neither has an administrator, nor an executor, such power. It is only by virtue of some direction in the will that either obtains such power; and where the will gives the executor a discretionary power of sale such power does not pass to the administrator with the will annexed. In the case at bar, however, the power to sell wras not a discretionary one, for the provisions of the will in regard to the annuities could not be carried out, except by a sale of the real estate pursuant to the power expressly given to the executors by the eighth paragraph of the will.

In Mott v. Ackerman, 92 N. Y., 539, Finch, J., who delivered the opinion of the court, said : ‘We have no doubt therefore that where a power of sale is given to an executor for the purpose of paying debts and legacies, or either, especially where there is equitable conversion of land into money for the purpose of such payment, and for distribution, and the power of sale is imperative, and does not grow out of the personal discretion confided to the individual, such, power belongs to the office of executor, and under the statutes passes to and may be exercised by the administrator with the will annexed.”

In the case at bar there was no personal property whatever which could be invested to provide the annuities, and a sale of the real estate was absolutely necessary in order to make provision for them. The power to sell was therefore not a discretionary one, • and, upon the removal of the last executor, passed to the plaintiff .as administratrix with the will annexed.

The case of Cooke v. Platt, 98 N. Y., 85, does not apply, for in that case the trust which the testator attempted to create was held to be invalid; the power given to sell was not imperative, -and if the discretionary power of sale which was given had been -exercised, the only effect would have been to distribute the proceeds among heirs who were already vested with the title to the real estate.

Moreover, it may be plausibly claimed that, assuming that the '.testator’s property retained its character as realty, the power to sell such realty is given to the plaintiff, in terms, by the will itself. The devise of the residuary estate, contained in the seventh clause, is not made to the executors only, but to their and each of their “ successors; ” and the express power of sale, given by the eighth ■clause, is given not “ to my executors ” only, but also “ to their successors.” The only “ successor ” to an executor is an administrator with the will annexed, and it would seem that the will 7th us expressly confers the power to sell all the real estate upon .-any one who should succeed the executors in their office.

The second objection to the title is that because the original executors sold enough of the realty to have provided sufficient investments for the annuitants, therefore the power of sale is at an end. Meither is this objection well founded. The will gave the •executors power to sell not merely enough of the estate to provide .for the annuities, but “ all and every part of the estate.” It also •contained directions about the disposal of the proceeds of the entire estate, and neither the power nor the duty to sell ended until Tthe necessary funds had been actually set apart and investments ’had been made for the annuitants. It was not until ten years after the testator’s death that it was decided that the trust for the school of music was invalid, and there are no grounds upon which it can be claimed that the real estate, so far as it was disposed of by the executors, was sold merely for the purpose of raising funds "to be invested for the annuitants.

The entire proceeds of the real estate sold were not required to raise the annuities. It was the duty of the executors to have applied part of such proceeds in executing the trust to endow and maintain the college of music. It is impossible to say now whether the moneys wasted were those which should have been used to raise the annuities, or those which should have gone to •create a fund for such college. Where annuities are charged on realty generally, the entire estate of the testator is liable until the •charge has been satisfied. The rule contended for by the defendant that “ As soon as an executor had disposed of enough of the property of the testator to satisfy legacies, the general estate is relieved of their burden, and that the legatees’ claim is against the executors personally ” would be a very harsh and unjust one. Ordinarily it would be wholly impracticable for legatees to keep themselves informed of all the proceedings of an executor, and they are not bound to do so under peril of losing their interest in the estate. Until the beneficiary of a trust fund has his fund separated from the general funds of the estate, and set apart for his benefit, he is not divested of his right to look to the general estate for his satisfaction. An executor cannot be regarded as an agent of a legatee or an annuitant until the fund is set apart from the rest of the estate and invested separately for the beneficiary.. If the fund has been so separated and set apart, and is then misappropriated, the loss must fall upon the cestui que trust, but until the fund is separated from the general funds of the estate, the-executor represents such estate only.

In the case at bar a large number of the annuitants were infants, and others were aged and infirm persons, and it would be a great injustice if they are to lose all benefits under the will because of the misconduct of executors, over whom they had no-control, and if the proceeds of the remaining real estate are to go-to the distant'relatives of Abraham Hewlett, who was himself a party to the devastavit of the estate, and largely profited thereby. Moreover the only person who, if living, could object to the-sale made by the plaintiff to the defendant, would be the said Hewlett, and his participation in the misconduct of the executors-would estop him from raising such objection, and those claiming under him are in no better position than he would be if alive.

Again, there is another view which may be taken of the ease, which would seem to render any discussion. about the power to-sell real estate unnecessary.

The language of the will is: “I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed, * * * to my executors * * * in trust * * "* to invest and provide for the payment of the life annuities heretofore created.” There was no personal estate which could be applied to raising the annuities, and in order to carry out this and other provisions of the will, it was absolutely necessary to sell all-the relator’s real estate. It would seem, therefore, that there was. an equitable conversion of all testator’s real estate, and that the same must be regarded as personalty from the time of the testator’s death, so far as the rights of annuitants and duties of the executors are concerned. Byrnes v. Baer, 86 N. Y., 230; Kalbfleisch v. Kalbfleisch, 67 id., 364; Greenland, v. Waddell, 116 id.,. 234; 26 St. Rep., 667.

The 'question as to the rights of those annuitants who have-executed releases is not before the court, but we are of the opinion that for the purpose of providing money to raise the annuity given by the will to Joseph Wood the plaintiff had the power to-sell the property in question to the defendant, and to execute to-him a valid deed thereof.

Judgment should, therefore, be entered in favor of the plaintiff' .against the defendant for the sum of $100, and requiring the defendant to execute the bond and mortgage provided in the contract of sale. Ho costs should be allowed to either party.

Van Brunt, P. J., and Barrett, J., concur.


source: Caselaw Access Project

author: Daniels, J. Barrett, J.

license: Public Domain

text:
    James W. Kelly, Ex’r, Pl’ff, v. Ann Casey et al., Ex’rs, Def’ts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    Winn—Construction—Legacy.
    One C. died, leaving a will, by which he directed an annual income of $200 to be paid to his sister during the life of his wife; gave the residue to his wife, and directed that on her death the estate should be divided in three shares, one of which was bequeathed to the sister. The sister died before the wife. Held, that the executors of the sister were not entitled to said annuity, but that the same went to the wife under the residuary clause.
    (Barrett, J., dissents.)
    Case agreed upon and submitted under § 1279 of the Code of 'Civil Procedure.

      Horace K. Doherty, for pl’ff; John Weber, for def’ts.
   Daniels, J.

The will which it is the object of this proceeding to construe was made and executed by Luke Casey, who died ■on the 21st of May, 1885. By this will he directed to be paid to his sister, Catherine Casey, an annual income of $200 during the life of his wife, Ann Casey. And he then gave and bequeathed to his wife the residue of the income of his estate, both real and personal. At the time when the will was executed Catherine ■Casey was of the age of sixty years, and Ann Casey was of the age of fifty-four years. Catherine Casey died on the 5th of October, 1887. And since her decease the legacy directed to be paid to Catherine Casey has been claimed by her executors for the benefit of her legatees. And the point to be determined for "the disposition of the case is, whether these executors, or the widow of Luke Casey, became entitled to the legacy after the decease of Catherine Casey.

If the second and third paragraphs of the will, which are as follows;

Secondly. I give and bequeath to my sister, Catherine Casey, .an annual income of two hundred dollars, during the life of my wife, Ann Casey

“ Thirdly. I give and bequeath to my said wife all the remainder of the income of my estate, real and personal,” stood entirely alone, then the legacy of two hundred dollars directed by the testator to be paid to his sister Catharine, would continue .and be payable to her executors during the life-time of his widow, Ann Casey. The cases of Savery v. Dyer, Ambler, 139, and of Morgan v. Williams, 66 How., 139, are authorites directly sup.porting this conclusion. But this case is attended by the additional circumstance that by the fourth paragraph of the will, the testator directed his estate to be divided into three shares orí the ■death of his widow, one of which he bequeathed to his sister Catherine. And that evinces his belief and expectation to have been that this sister would survive the decease of his widow. And from that circumstance it may well be inferred, that his intention was that the legacy, in this manner provided for the sister, should continue only during her life time. These paragraphs of the will, taken together, indicate his purpose to have been to provide this-legacy of two hundred dollars yearly for his sister Catharine and upon the decease of his widow that she should become the devisee and legatee of one-third of his estate absolutely. In this respect, this case differs from those which have been already mentioned. For in the case of Savery v. Dyer there' was no gift whatever to-the legatee out of the residue of the estate. And that was a circumstance that attracted some attention in the disposition and decision of that case. While here, from these paragraphs of the will taken together, the intention of the testator appears to have? been to give to his sister this legacy during the life of the widow,, upon the plain supposition that the sister would be the survivor of the two. And that upon the decease of the widow she would then be in no farther need of a legacy, but would become the-owner of one-third of the real and personal property left by the testator. The intention in all cases of this description is the controlling fact to be considered. Phillips V. Davies, 92 N. Y., 199.

And the intention of the testator to the effect already stated seems to have been quite plainly disclosed in this manner. It. was not that the legacy should continue at all events during the life of his wife, but upon the supposition that the legatee would survive her, that she should receive the legacy during the life of the widow, and then absolutely take this share in the testator’s; estate upon her decease. And that appears to. exclude the intention that the sister should, at all events, become entitled to this legacy during t.he life-time of the widow in case the sister should be previously deceased. Judgment should, accordingly, be directed in favor of the defendants, on the points presented by this case-for the determination of the court, directing payment of the income of the estate under the second paragraph of the will to the-testator’s widow during her life.

Van Brunt, P. J., concurs in result.

Barrett, J.

(dissenting)—I dissent. There is no material distinction between the facts of this case and those passed upon in Savery v. Dyer and Morgan v. Williams. It may be that the testator here expected his sister to outlive his wife, although that is uncertain, as the sis.ter was six years older than the wife. But even if he had that expectation, why should an intention be inferred to continue the annual income given to his sister only during her life time ? He has expressly said that it should continue-during the life-time of his wife. Our decision frustrates this-explicit direction.

As Lord Hardwicke intimated in Savery v. Dyer, there is here-no question of intent. We are dealing with the legal import of plain words. The bequest over to this sister upon the death of his wife, instead of limiting the legacy in question to the life of the sister, plainly leaves such legacy to run on until stopped by the vesting of the estate in' enjoyment.

Thus the whole income is effectually disposed of until the death of the wife and the whole estate is then disposed of. Again, what is the widow to have during her own life ? The residue of the income after the payment of the annual $200 to the sister. There is not a hint anywhere in the will that upon the death of the sister, this $200 per annum is to go to the widow. Nor is there an intimation that, under any circumstances, the widow is to have more than the residue of the income after paying the $200 per annum. The defendants claim that upon the death of the sister the $200 per annum fell into this residue by operation of law for the reason that Catherine Casey was personally the sole object of the testator’s bounty and that consequently the legacy was to her and “ not to her estate.” It might as well be argued that the estate over fell into the remainder for the same reason. But that is not pretended. The annual sum in question vested in Catherine Casey and her legal representatives quite as effectually as the estate over vested in her heirs and for the same reason. There is no distinction in legal principle between this income and the estate over arising from the fact that Catherine was the object of the-testator’s bounty. Neither the annual income nor the estate over was limited upon the life of that object and consequently each took effect according to the ordinary rules of succession and devolution. There is no gap between the cessation of the vested income and the enjoyment of the vested estate.

They run into each other. Thus Catherine Casey or her representatives take the one until the death of the widow and then she or her heirs take the other. This is the scheme of the will and it accords with its plain language and also with such implications of intent as may possibly be gathered from its dear-directions.

I think the judgment should be in favor of the plaintiffs for all the income which has accrued since Catherine Casey's death, with interest and costs.

Judgment for defendants. ,


author: Barrett, J.

text:
    Samuel Wiener, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    Bailtload—Eleva ted—Damages—Benefits.
    In an action against an elevated railroad it is not error for the referee to refuse to set off the benefits resulting from the proximity of a station against any consequential damages accruing from the maintenance of the railroad where he does not find any consequential damages, hut only the actual value of the easements taken.
    Appeal from a judgment in favor of the plaintiff entered upon, the report of a referee.

      Lewis Lj. Delafield and Henry A. Forster, for resp’t; Julien TL Davies and J. C. Thomson, for app’lts.
   Barrett, J.

The first point upon which a reversal is here asked is, that the referee erred in refusing to set off the benefits resulting to the plaintiff’s premises from a neighboring station of the defendants’ railway, against any consequential damages accruing to the property from the maintenance of the structure. The .-short answer to this point is, that the referee found no consequential damages, but only the actual value of the easements, and, •consequently, the request upon which the point is founded was a mere abstract proposition. We need not therefore consider the ■soundness of the request.

But it would not have surprised us if the referee had erred in passing upon these specious and prolix propositions, for they partake very much of the nature of modern “ requests to charge,” .and seem to have been prepared solely for the purpose of excepting to processes of reasoning rather than to legal conclusions, properly so-called. That the referee found no consequential ■damages is plainly evidenced by his fifth and sixth conclusions •of law, which read as follows:

Fifth. The defendants should not be required to pay for the ■easements in question, as a condition for avoiding the operation of any injunction herein, any greater sum than one sufficient to compensate plaintiff for the injuries caused by the perpetual taking •of the easements aforesaid for the maintenance of defendants’ said railroad as at present maintained.
Sixth. The sum fixed which the defendants may pay to obviate the injunction herein should not be greater than the value of so much of the easements of light, air and access appurtenant to plaintiff’s premises as are impaired by the defendants’ said railroad, and excluding all other incidental injuries to the fee value ■of said premises resulting from the acts of the defendants.”

The rule contended for by the defendants is stated in these findings, and it would not have been a conclusion of law to state how the “sum fixed” was arrived at But it is apparent that the matter embraced in the defendants’ request was actually considered by the referee in arriving at the conclusion he did with regard to the value of the impaired easements.- For he found as a fact that the proximity of the defendants’ said station to the premises in ■suit is advantageous to the business portion of said premises, and produces a special benefit to the same for business uses.”

Upon this he also found as a conclusion of law “ that the dam.age, if any, to the use of the premises included in any recovery in this action should be computed with respect to the actual condition of said premises,and the uses to which the same have actually been put during the time for which such damages are awarded.” In other words, he considered the condition of the premises as respects their proximity to the station. And he also considered the special benefit to the store resulting from the uses to which it has been put; that is, its uses as affected by such proximity to the station. What the referee was specifically asked to do was to find the impossible. How could he set off the benefits resulting from the proximity of the station to the business portion of the plaintiff’s premises against any consequential damages accruing to the entire property? Ho foundation was laid for the application of such a rule. The precise measure of benefit was not proved and was of course impossible of proof. What the defendants believed themselves entitled to, and what they doubtless desired to secure, was general consideration of the advantages which the plaintiff derived from the proximity of the defendants’ station. That consideration seems to have been given by the referee. There certainly was no error, after properly finding the value of the easements and making the correct conclusion of law on that head, in refusing to find that advantages which were unliquidatedshould be set off ” against damages which were not found.

The judgment appealed from should be affirmed, with costs.

Andrews, J. concurs; Van Brunt, P. J., concurs in result.


author: Van Brunt, P. J. Barrett, J.

text:
    George F. Vingut, App’lt, v. George T. Vingut, Deft. Benjamin P. Fairchild, Purchaser, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    Judicial sale—Mistake in bed.
    Respondent bid upon property at a judicial sale, and the same was struck down to him. He had not seen the notices of sale, nor read the hand-bill circulated at the sale, and refused to sign the terms of sale, claiming that he was mistaken as to the location of the property, and requested the auctioneer to put it up again, which was refused. Held, that there was a clear mistake of fact on respondent’s part, and that he should be relieved from the purchase on indemnifying against the expense of a resale.
    Appeal from order denying motion to compel purchaser to-complete purchase.

      J. J. MachUn, for app’lt; H. O' Gorman, for purchaser.
   Van Brunt, P. J.

The complainant was a purchaser of the' premises in question at a partition sale; and upon his failure to complete his purchase a motion was made that he be compelled todo so, which was denied, and from the order thereupon entered, this appeal is taken. The defense which the respondent urged to the motion below was that he was mistaken as to the location of the property when he bid upon it at the sale.

It appears from the papers which were read upon the motion, that besides the publication of the legal notices, hand-bills containing maps describing the property to be sold were printed under the direction of the referee; that immediately before the sale such hand-bills were distributed among the surrounding bystanders ; that the lot was put up for sale and knocked down to the respondent, he being the only bidder for it, at $9,000 ; that he-gave the auctioneer the name of Frank Yoran as the purchaser, but claiming to have discovered that he was mistaken in respect to the location of the property, be so stated to the auctioneer, and requested him to put the lot up again, which request the auctioneer declined to comply with. The respondent refused to sign the terms of sale or to complete the purchase.

It seems to be admitted by the papers that the amount which "was bid by the respondent for the lot in question was in excess ■of its value, and that the purchaser was a dealer in real estate, familiar with the values of real estate in the city of New York. And that the respondent was actually mistaken, as he claims to have been, seems to be established.

It appears that he had not seen any of the notices in respect to the sale, and although he had in his hand one of the diagrams distributed at the commencement of the sale he had no opportunity to examine it before the lot bid upon by him was put up for sale, and his was the only bid offered, it being, as has already been said, in excess of the real value of the lot as it was actually ■situated, but much below the value of the lot if it had been situated as was supposed by the respondent.

It seems to us under these circumstances that there was a mistake in fact upon the part of the respondent, and that he should be relieved from his purchase, such mistake having' been beyond question established.

The case differs from that of Dennerlein v. Dennerlein, 111 N. Y., 518; 20 St. Rep., 110, in that in the case cited it did not appear that the purchaser had not seen at an earlier time the original legal advertisement containing certain qualifying words which removed the objection which the purchaser had to the title, and also in that case the purchaser had signed the terms of sale containing those qualifying words.

We are of opinion, however, that the respondent should have been charged, as a condition of relieving him from his purchase, with the expense of a resale, such expense being incurred because of the mistake of the respondent, and that only.

The order should be modified, therefore, by relieving the respondent from his purchase upon his indemnifying against the ■expense of a resale; and, as so modified, affirmed, without costs.

Daniels, J., concurs.

Barrett, J.

I concur. Mr. Fairchild was not guilty of negligence with regard to the mistake in question. And I think it would be inequitable under the particular circumstances of the case to hold him to a bargain which he never intended to make, and which resulted from a mere oversight not amounting to negligence.


author: Daniels, J.

text:
    Carlos D. Seigert et al., Resp’ts, v. Cornelius W. Abbott, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Judgment—Defendant not served—Trade-mark.
    While a judgment may be entered against two or more persons upon the service of the summons on one of them in cases where they have become jointly liable on contract, such a judgment cannot be entered in an action to restrain an infringement of a trade-mark.
    3. Same—Partnership.
    The court has no power in such an action to try any question against the person not served, and not appearing, or to find that he is a partner with the person served.

      Appeal from, an order denying a motion to vacate so much of the judgment in the action as is against the defendant Cornelius ~W. Abbott

      John Brooks Leavitt, for app’lt-; Arthur Mirher, for resp’ts.
   Daniels, J.

The action was brought to restrain the use of a trade-mark attached to what has been called and known as Angostura Bitters. These bitters were manufactured and sold by the plaintiffs under that name or designation, and had acquired a somewhat extensive sale to the profit and advantage of the plaintiffs. It was alleged in their complaint that the defendants had infringed upon these rights by manufacturing and selling a compound under the same name. The plaintiffs were engaged in this business in the city of ¡New York, while the defendant appealing, together with Cornelius F. Abbott, were residents of and engaged in business in the city of Baltimore, in the state of Maryland. 'The summons in the action was not served upon the appealing defendant, neither did he appear or answer the complaint. The -other defendant, Cornelius F. Abbott, appeared, and also served an answer to the complaint, taking issue with its material allegations, and also setting up as a bar to the action a decision made in the state of Maryland against the plaintiffs in a similar action prosecuted there.

The court upon the trial concluded that this preceding decision was not a bar to the action, and determined the issues framed by the answer of the defendant, Cornelius F. Abbott, in favor of the plaintiffs and found as a fact that Cornelius W. Abbott, the .appellant, was a partner with the defendant who appeared and .answered in the action, and directed judgment against the defendants jointly in favor of the plaintiffs, establishing their right to the use of this name as a trade-mark, and directing the defendants jointly and severally to be perpetually restrained and enjoined from putting up, selling, or offering for sale, any article in imitation of the plaintiff’s compound, or using the name Angostura Bitters, or Angostura Aromatic Bitters, or any imitation of the same; and also directing the defendants to deliver up to the plaintiffs, to be destroyed, all circulars, wrappers and labels in their possession, or under their control, of the form or character used by the defendants in putting up their article for sale. And judgment was entered against the defendants conformably to this decision. A motion was thereafter made on behalf of the defendant ■Cornelius W. Abbott to vacate so much of the judgment as was recovered against him, on the ground that he had not been served with the summons, or appeared in the action. And on the decision of the motion an order was made striking out from the judgment so much of it as perpetually enjoined both of the defendants jointly and severally, and their servants, etc., and inserting in place of that direction the clause “ as co-partners, composing the firm of C. W. Abbott & Co., and the said Cornelius F. Abbott, individually, ” thereby so far modifying the judgment as still to -enjoin and restrain Cornelius W. Abbott as a partner from making use of the phrases already mentioned in the manufacture and sale of these bitters.

The judgment, as it has been modified by the order, still contains an adjudication against the .appellant. In the findings of the court he is found to be a partner with the defendant who was served with process and appeared and contested the action. And that finding necessarily involved the trial of so much of the action against the appellant, in his absence, as included the taking of proof of the fact of the partnership and justified the finding of this fact by the court. And in the determination directed by the findings and included in the judgment, the judgment proceeds-against the appellant. It is made to operate upon him as a member of a partnership composed by himself and the other defendant To do that it was necessary to try the question whether he was or was not a partner with the other defendant, and to take-proof to establish the existence of that fact. And that could not. be legally done as long as the appellant was not a party to the-action. The court could no more try the question whether he was a partner with the other defendant to affect him individually, and therefore liable to be enjoined and restrained as such, than it could try any other part of the controversy intended to affect him by' the judgment to be recovered. It acquired no jurisdiction whatever to try any question concerning him that had been -in-eluded in the complaint as long as he was not served with the summons and did not appear. And the court exceeded its jurisdiction in taking proof of the fact that the appellant was a member of a firm composed of himself and the other defendant, and also in the direction that he should be enjoined with the other defendant from using the phrase in controversy. And the modification of .the judgment did not relive it from this objection, but it still left the judgment operative against the appellant as a member off this firm, and enjoined him not as an agent or servant of the other defendant, but as a member of the firm itself, when the most that the court had jurisdiction to do was to try and determine the action against the other defendant and to enjoin him, his agents and servants, from the use of these phrases Angostura Bitters, or the word Angostura, or any imitation of it, or Angostura Aromatic Bitters.

The law has in certain cases permitted a judgment to be entered in form against two or more persons upon the service of the summons on one of them. But those are cases where they have become jointly liable upon a contract, and do not include actions of this description. And the fact that statutes have been enacted, to permit that to be. done in actions upon joint contracts is very decisive evidence that without such legislation the courts would have no authority to permit a judgment to be entered against one person upon the service of the summons only on another. The legal principle, on the contrary, is that no person can be affected by a hearing or adjudication of a court of justice -without affording-to him by means of the service of process upon him, or upon his-property, an opportunity to appear and contest the claim that, may be made against him. And within that principle the court ■had no power to make any adjudication whatever against the appellant, either in the findings of fact or by the judgment finally • entered in the action. And when the motion was made he was -entitled, as he appeared only for the purpose of the motion, to have the judgment so far vacated as it was in form and effect entered against himself.

The order should be reversed, with ten dollars costs and the -disbursements, and an order directed striking out so much of the judgment as has been entered and is intended to be operative upon ■this defendant individually.

Van Brunt, P. J., concurs.


text:
    William R. Morgan, Jr., et al., Resp’ts, v. John Bowes and John Coombs, App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Nuisance—Blasting on adjoining premises.
    An action for damages;caused by blasting on premises adjoining those of plaintiff may be maintained where such damages are caused by violent and continuous concussions, although there is no actual trespass by rocks or soil blown on his premises.
    13. Same—Damages.
    In such case, however, the plaintiff is only entitled to recover the damage sustained at the time of the commencement of the action.
    Appeal by the defendants from a judgment in favor of the plaintiffs entered upon a verdict had. at circuit

      Early & Prendergast, for app’lts; John M. Bowers, for resp’ts.
   Barrett, J.

This action is for damages .to the plaintiffs’ houses in Eighty-third street, caused by the wrongful acts of the ■defendants in blasting rock upon the adjoining lands. The defendants are contractors, and as such were, in the months of May And June, 1886, engaged in excavating and removing the rock upon such adjoining lands. They were continuously at work ■during this period, and in the performance of such work they ■caused constant explosions and made heavy blasts. These blasts were produced by the agency of a species or gunpowder known as giant powder. Serious injury resulted therefrom to the plaintiff’s houses. The upper part of a mantel-piece was at one time knocked off. On another occasion the range was knocked out of place, also the washtubs, boilers and superstructure of the fireplace. The ceiling was left in a hanging condition. Again, the walls were blown in on one side, the staircase was blown down, a door was blown out and its frame broken. What was left of the fireplace and mantel, after a previous explosion, was blown across the room. Everything on the dining-room table was broken. The effect of these explosions was also to loosen all the walls of the house and all the ceilings; rendering them liable to fall at any time. The adjoining house became untenantable, and the danger was so great and imminent that the tenant in occupation,, after vainly protesting against the defendants’ conduct, was compelled to move out.

There can be no doubt that the plaintiffs established, without contradiction, a clear case of a private nuisance. The explosions-were not accidental, nor were they isolated acts. They were deliberate and continuous. And they did great, constant and increasing damage to the plaintiffs’ property. In other words, the defendants prosecuted the business in which they were engaged in such a manner as to disturb the rightful possession of the-plaintiffs and to cause direct and immediate injury to their property.

The appellants claim a reversal upon two grounds; first, that an action will not lie for damages to a neighbor’s house by excavating on one’s own soil; and, second, that an action for damages caused by blasting on one’s own land will only lie when an actual trespass upon the res is committed, as where the rock or soil is blown over into the adjoining lot or against the adjoining house.

As to the first point, we need only say that this action is not. for injuries to the plaintiffs’ wall or building, resulting from excavation upon the adjoining land. There is no question here of supporting the plaintiffs’ wall, or of digging out the contiguous-soil carelessly or unlawfully. Such cases, therefore, as Dorrity v. Rapp, 72 N. Y., 309, have no application. The question here is solely as to the acts of the defendants in blasting the rock upon the adjoining lands. We think the second point taken by the appellants is also untenable. ¿The rules which have been laid down upon the subject of private nuisances, causing damage to-individuals, do not limit the right of action as thus contended for. It is true that in Hay v. Cohoes Co., 2 N. Y., 159, fragments of the rock blasted by the defendants were actually thrown against and injured the adjoining building, which belonged to the plaintiff. The observations of the learned court were made with reference to that fact, but it was by no means intimated that such an action could not be maintained where the same damage was produced by violent and continuous concussions. On the contrary, the disturbance of the plaintiffs’ rightful possession, and the direct and immediate injury to his property, were the grounds upon which the right of recovery was placed. There the plaintiff’s stoop was demolished. It was certainly unimportant whether such demolition resulted from the direct attack of broken rock, or from the concussion caused by the blast. The court specified some of the acts which violate the right of domain, such as polluting the air upon the plaintiff’s grounds, abstracting a portion of the soil and casting foreign substances upon the land, but there was no attempt at a complete enumeration of actionable acts, nor was any limitation placed upon the broad principle that even in the pursuit of a lawful occupation one has no right to create a nuisance to the injury of his neighbor. The later cases abundantly support an action based upon the facts here established. Benner v. Atlantic Dredging Co., 34 St. Rep., 632, is directly in point.

What constitutes an actionable private nuisance was elaborately considered in McKeon v. See, 4 Rob., 449. There it was held that the continuous jarring of a neighbor’s house, by the use of steam power upon one’s own premises, causing injury, amounted to a nuisance and was actionable ; and that this was the law, although “ the defendant’s business was lawful and publicly beneficial, and conducted with every reasonable precaution as to the character of his building and machinery and mode of using them to prevent unnecessary injury to the plaintiff.”

This case was affirmed, and its principle approved by the commission of appeals. 51 N. Y., 300; citing Fish v. Dodge, 4 Denio, 311; Tipping v. St.Helen's Smelting Co., 4 Best & Smith, Q. B., 116 Eng. C. L. R., 608; 5 Am. L. Reg. (N. S.), 104. The same doctrine was laid down, with extended illustration and copious citation of authority, in Heeg v. Licht, 80 N. Y., 579. The grounds upon which the appellant claims a reversal, generally, are therefore untenable. Other objections to a recovery appear in the record, but as the appellants have not deemed such objections o£ sufficient importance to be raised upon this appeal, we need not consider them.

We think, however, that the learned judge erred in one par- ■ ticular with regard to the damages. He allowed the plaintiffs to recover $760 (with $109.67 interest thereon) for loss of rent. It appeared that the plaintiffs’ tenant moved out of theinjured house in June, 1886. He paid the rent for the months of May and June, 1886. The action was commenced on the 18th of June, 1886. From this it appears that the plaintiffs were allowed to recover for loss of rent from the commencement of the action down to the time of trial. Without considering any other question which this item suggests, it is sufficient to say that in an action at law for damages, the plaintiff is confined to such as have accrued at the commencement of his action. Uline v. N. Y. C. R. R. Co., 101 N. Y., 109; Pond v. Metropolitan Elevated R. R. Co., 112 id., 186; 20 St. Rep., 479; Barrick v. Schifferdecker, 48 Hun, 357; 16 St. Rep., 449. The learned counsel for the defendants duly excepted to the direction on this head. He also excepted to the denial of his motion to strike out the evidence as to the loss of rent and to the refusal of the learned judge to direct the jury that in no event could the plaintiffs recover anything for loss of such rent.

The other items of damages were properly submitted to the jury and were properly allowed.

The judgment should therefore be modified by deducting therefrom the sum of $869.67, and, as thus modified affirmed, without ■costs of this appeal.

Van Brunt, P. J., concurs.


text:
    Frank H. Graf, App’lt, v. Joel B. Smith, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    Bills and notes—-Diversion.
    A contractor with defendant stated to him that he was in need of help; that he was short on his pay rolls; owed for moulding, marble, etc., and could not get any more credit for them;, that if defendant would give a ñóte, the work would be done before it became due, or if not he would pay it. Defendant gave the note on condition that the work would be attended to at once, and it was transferred to plaintiff to take up the payee’s, unpaid check given for borrowed money. Held, that as the n-,te was not specially restricted by defendant the transfer to plaintiff did not constitute a diversion thereof.
    Appeal from a judgment in favor of the defendant rendered, upon a verdict had at circuit, and also from an order denying the-defendant’s motion for a new trial.

      A. G. /Smith, for app’lt; T. O' Callaghan, Jr., for resp’t.
   Barrett, J.

This case was tried and sent to the jury upon an erroneous view of the legal effect of the facts proved. The action was against the defendant as the maker of a promissory note payable to the order of T. Aspinwall & Son. The latter firm endorsed the note and transferred it before maturity to the plaintiff. This transfer was to pay- a loan previously made by the plaintiff to Aspinwall & Son for which he held their unpaid check. At the time when the transfer was made the unpaid check was surrendered to Aspinwall & Son. The defense was that the note was given by the defendant to the Aspinwalls for a specific purpose, and that it was fraudulently diverted by them from that purpose. If this defense had been established, there would be no-doubt as to the correctness of the verdict, for the reason that the surrender of the valueless check of Aspinwall & Son did not constitute the plaintiff a bona fide holder of the note in suit so as to shut out the defense of fraudulent diversion. The case of Phœnix Insurance Co. v. Church, 81 N. Y., 218, is directly in point, so far as this question is concerned, and the distinction between the surrender of a debtor’s own note and the surrender of his-worthless check is there'pointed out (p. 226 and 227).

The difficulty in the present case, however, is that a fraudulent, diversion of the note was not established, and the error consisted, in the supposition that what was proved by the defendant amounted to such a diversion. All that was proved was this: Some weeks before the note in suit was given, Aspinwall & Son had made a contract with the defendant to do the tiling work on ■ some buildings. The work had not yet commenced when a, representative of the Aspinwalls, one Robinson, called at the defendant's office and asked the defendant’s son, Frank B. Smith, if the defendant could not help them out in some way, that they were very short of money and did not know how they were going-“to pull through.” The son replied that he could not help them, out anyway. Thereupon Robinson said:'

“We are going to do this work. Here are those vestibules; the work will be done, and if the work is not done we will pay the note. The work will be all done before the note is due.” Hpon that understanding Mr. Frank B. Smith directed his father “ to make out a note for $500 at three months.” The son further testified as follows:
“He” (Robinson) “said they were short of money for payrolls, and they could not get along with their work at all, and it-would be a great accommodation, and he said he could get my note discounted, and it would give him money for his pay-rolls and to do the work, the tiling work of the buildings.”

And again:

“ He said they had to buy mouldings, and that their account on that was so large that they could not get any more credit on it, and they would have to have more money to buy mouldings and for their pay-rolls, etc.”

Upon cross-examination the same witness testified as follows :

“ Mr. Eobinson said that he wanted this note for the marble man; that their account with him was so large they could not get any more credit for marble, and they said they could not raise money to meet their pay-rolls, and wanted me to help them. He ■said Mr. Aspinwall sent him up to see if I could not help him out.”

Eobinson was also examined upon behalf of the defendant, and has testified that he asked Mr. Smith if he would give them some money, as they were “rather short." To which Smith replied, that “ he could not.” Eobinson then said, “ Can you not give us a note ? ” And Smith replied, “ I will give you a note if you will promise to attend to the work at once.” And Eobinson took the note from him “ on that understanding.”

The testimony given by the plaintiff need not be referred to, as the question of law necessarily depends upon the effect of the evidence which the jury by their verdict seem to have credited.

We think that, upon this testimony, which is all that was adduced by the defendant in support of his ' defense, no restriction was imposed upon Aspinwall & Son as to the manner in which they should use the note, and that the defense of a fraudulent diversion was not made out. It was simply a general accommodation. What Eobinson pleaded for was “help." If the Aspinwalls had help, they could fulfill their tiling contract. They wanted money for their pay-rolls, money to buy mouldings with, money for their marble man. ' But the note was not specifically restricted by the defendant to all or to any one of these purposes. These were simply specifications of the Aspinwalls’ needs and formed the basis of the appeal for help generally. The defendant’s inducement was, to sustain the Aspinwalls until they could perform their tiling contract, and the note"'was undoubtedly given to enable them to perform that contract. In other words, it was given to enable them to raise money to be used in their business, they promising, when thus in funds, faithfully to perform their existing co'ntract with the defendant. A fraudulent misappropriation cannot be predicated of such' facts. Such a misappropriation occurs where there is a diversion from, the original object and design, as where the note is designed to be discounted for the purpose of taking up other paper of the person giving the accommodation, or was otherwise intended for his benefit. Daniel on negotiable Instrujnents (3d ed.), vol. 1, § 794.

The benefit here referred to is a direct benefit to the accommodation maker. Not a benefit solely to the payee, even though, such be'nefit may enable the payee to do something for the accommodation maker which he has agreed to do, but which, were it not for the accommodation, he might be unable to do. Mr. Daniel also-says (Id. § 793):

“If the note be made for general accommodation, without restriction as to its use, the party accommodated may use it in any way beneficial to himself, provided such use be legal, and it will not matter that hefails to apply the proceeds according to a prim- agreement., for otherwise there could be no recovery on accommodation paper.”

And in support of this latter proposition he cites Broohs v. Hey,, 23 Hun, 372.

Iu the case at bar the defendant had no interest in the specific-application of the proceeds of the note. His only interest was in its use to benefit and sustain the Aspinwalls and enable them to-keep up. Thus the note had all the elements of accommodation paper, and the defendant was liable thereon although it was applied to the payment of a pre-existing debt. Indeed, he would have been equally liable if the note had merely been pledged to-secure such a debt. Id., § 793, and cases there cited. Even if,, upon a strained construction of the evidence, it could be held that, the note was given in anticipation of the work to be done under the tiling contract, still, that would not avail the defendant, for it. would simply amount to a case of mutual promises, and the agreement of the Aspinwalls, though subsequently unfulfilled, would support the note and furnish an adequate consideration therefor. It follows that in no aspect of the case was a defense made out,, and that the learned judge should have directed a verdict for the plaintiff.

The judgment and order' appealed from should, therefore, be-reversed, and a new trial ordered, with costs to appellant to ^bide; the event.

Van Brunt, P. J., and Andrews, J., concur.


author: Van Brunt, P. J.

text:
    George Penniman, Resp’t, v. The Fuller & Warren Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    Yenue—Change oe—When demand must be served.
    A demand for a change of the place of trial to the proper county must be made at or before the joining of issue, i. e., the service of answer, and' the time thus limited cannot be extended by the service of an amended, answer.
    Appeal from order denying motion to change place of trial.

      A. Smith, for app’lt; Barlow & Weimore, for resp’t.
   Van Brunt, P. J.

There is no question but that if the defendant has served its demand to change the place of trial in time, that it is entitled to the granting of the motion. This action, was brought to recover a sum of money on a written instrument;: ■the place of trial in the complaint being named as Hew York county. Hineteen days after the service of the complaint an answer was served by mail; and thirty-seven days thereafter the-defendant served a demand that the place of trial be changed from. New York county, where the venue was laid, on the ground that it was not the proper county because neither of the parties resided there, and on the same day served an amended answer, and the question presented is whether this demand was served in. time.

Section 984 of the Code provides that an action not specified in the last two sections (of which the action in question was not. one) must be tried in the county in which one of the parties resided at the commencement thereof. If neither of the parties then resided in the state it may be tried in any county which the-plaintiff designates for that purpose in the title of the complaint.. Section 985 reads:

“If the county designated in the complaint as the place of trial is not the proper county the action may, notwithstanding, be tried therein unless the place of trial is changed to the proper county upon the demand of the defendant followed by the consent of the plaintiff or the order of the court.” Section 986 provides that where the defendant demands that the action be tried in the proper county his attorney must serve upon the plaintiff’s attorney with, the answer or before service of the answer a written demand accordingly. The demand must specify the county where the defendant requires the action to be tried. If the plaintiff’s attorney does not serve his written consent to the change as proposed by the defendant within five days after service of the demand, the defendant’s attorney may within ten days thereafter serve notice of a motion to change the place of trial.

In the case at bar no demand was served with the answer, but. suck a demand was served with, the amended answer. And it is claimed upon the part of the defendant that as the amended answer becomes the answer after it is served, such an answer comes within, the spirit of the Code.

We do not think, however, that this construction can prevail.. It is evidently the intention of the Code that this demand should be made either at or before the time of joining issue. Issue is joined by the service of an answer, and although that issue may be waived- by the service of an amended answer, the service of an amended answer cannot extend the time thus limited by the Code for the service of the demand.

The demand must be made at or before the service of the answer, and the first answer served in the case is the one which necessarily limits the time. The issues are joined and, as already stated, it is the evident intention of the Code that this demand should be made either at or before the joining of issue.

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

Barrett and Daniels, JJ., concur.


author: Barnard, P. J.

text:
    The People, App’lts, v. Aaron A. Degrauw et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Turnpikes—Reorganization after abandonment.
    Where a turnpike company abandoned its road and sold its stock to a plank road company, Held, that it could not he reorganized by the stockholders of the plank road company on the termination of the charter of the latter company, but that on the dissolution' of such company by its own limitation the road bed became a public highway.
    Appeal from judgment dismissing the complaint.
    Action to restrain the defendants from acting as a plank road or turnpike company.

      Gliarles F. Tabor (F. II. Van Vechten, of counsel), for app’lts; A. F. Weller, for resp’ts,
   Barnard, P. J.

The legislature by chapter 37, Laws of 1812; created a corporation known as The Hempstead Turnpike Company to operate a road between Jamaica and Hempstead. This corporation acquired by condemnation an old road between these two points and by purchase certain other lands needed to make a good road. Under this charter the turnpike company erected gates and conducted the road according to the provisions of its ■charter until 1852. The legislature had before this date and in 1847 provided for plank roads, and such roads at first were very popular. Much was expected from such roads, and great powers were given them in respect to taking old roads for the purpose with the assent of the highway authorities and turnpike companies. A plank road corporation was formed in 1852 to construct and maintain a plank road between Jamaica Village and Hempstead Village. The plank road company was designated in its articles of association as “ The Hempstead & Jamaica Ríanle Road Company.” The general law in respect to plank road companies, § 10, chapter 210, Laws of 1847, authorized a turnpike company to abandon a road taken by a plank road company. The turnpike company required as a mode of assent to the making of the plank road on its road • that the plank road company should buy all the stock of the turnpike company. This was done, and the turnpike company by its officers transferred the road to the plank road company. By the terms of the charter the plank road company was to exist for thirty years, which period expired March 11, 1882. On the 5th of June, 1879, the plank road company procured the assent of the supervisors of Queens county for an extension of its charter for the period of thirty ad-, ditional years from March 11, 1882. The supervisors had no power to extend the charter. Such power was given by chapter 135, Laws of 1876, and taken away as to Queens county by chapter 253, Laws of 1879.

No question was made as to the validity of the extension, and the Plank Road Company continued to operate its road as a plank road until August 27, 1890. This action was then commenced, and thereupon the stockholders of the Plank Road Company re< organized under the old turnpike charter, and have since operated the road as a toll road. Thev change was made before this action was commenced, and the question is as to the validity of this reorganization. As has been stated, the Plank Road Company purchased all the turnpike stock, and by the assignment provision of § 10, chap. 210, Laws of 1847, under which the turnpike was taken, no provision was made as to the status of the turnpike corporation beyond permitting such corporation to abandon the road taken by the plank road. It is impossible to see what the Turnpike Company kept under the Laws of 1847. The stockholders has sold all its stock, and the company had deeded its lands, and by the law it was absolved from its duties under its charter. In 1857, by chapter 643 of the Laws of that year, § 10 of the Laws of 1847 was amended, and upon the commencement of this action the Plank Road Company organized itself as a Turnpike Road under its provision, and has since operated the road as a toll road. The question is whether this is permitted by this amendment. The amendment has no application to the defendant. By it only such turnpike roads as connected with a plank road were the subject of the amendment. If a turnpike connected with the plank road, the plank road corporation could buy its stock and then continue to run it as a turnpike “ pursuant to the charter of such Turnpike Road Company.’ On the dissolution of the plank road the turnpike was to be represented by stock according to the holding of the list of stockholders. It was not intended by the law to save the rights of the old Turnpike Company which was taken by the Plank Road in 1852. The turnpike had been taken and paid for, and the holding of the stock was only had as a form of assent. The same right to abandon turnpikes where a plank road was actually constructed and used is preserved in original § 10 of the act of 1847, and its amended condition under the Laws of 1857. When the plank road was dissolved by its own limitation, the road bed became a public highway under chapter 780, Laws of 1872; chapter 337, Laws of 1881.

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

Pratt, J., concurs; Dvkmajst, J., not sitting.


author: Pratt, J.

text:
    The People ex rel. Warren Foster v. James Howell et al.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Brooklyn bridge—Police—Removal.
    The resolution of the board of trustees providing that charges against a policeman shall be heard by the president of the board, who, in case he concludes that the accused should be dismissed, shall report his opinion and the evidence to the board, is valid, and does not prejudice any rights of the accused. The statute does not require a full meeting of the board at trials.
    Certiorari to review the action of the respondents in dismissing relator from his position as policeman.
    Relator was served with charges alleging that he was intoxicated, arrested and locked up in the station house on a certain date. He appeared before the president of the board of trustees, where a trial was had. The president certified to the board that in his opinion relator should be dismissed, and the board thereupon passed a resolution dismissing him. Relator claims that he was entitled to a hearing before the board before he could be dismissed.
    The board, in 1887, had passed a resolution as follows:

      Resolved, That the following rules ■ be adopted to regulate the manner of preferring charges against a member of the police force and of examining into such charges. Charges may be preferred against any member of the police force of the New York & Brooklyn bridge by any person for any of the following offenses: 1st. Any criminal offense. 2d. Neglect of duty. 3d. Violation of rules. 4th. Neglect or disobedience of orders. 5th. Incapacity. 6th. Absence without leave. 7th. Conduct, unbecoming an officer. Charges must be made in writing, and must be accompanied by specifications. Charges and specifications shall be filed with the secretary of the trustees.
    A copy with notice that the charges and specifications will be •examined into shall be served on the policeman charged, two days before the day of trial, counting the day of trial as one day, and excluding the day of service.
    Such service shall be as follows : First, by delivering such copy personally. Second, by leaving the same at the place of residence with some person of suitable age. Third, if after due diligence he cannot be found and his place of residence cannot be ascertained, by posting a copy in a conspicuous place in the office of the police force of the bridge.
    The chief engineer and superintendent shall have power to suspend a policeman against whom charges have been preferred without pay until the president or the board shall pass upon the said charges. The charges and specifications shall be publicly examined into at the time and place named by and before the president of the board of trustees. The president shall hear 'the statements under oath of witnesses, offered to support the charge and on behalf of the defendant policeman. The evidence shall be reduced to writing. On due conviction of any offense specified above, the president may in his discretion punish a policeman by reprimand, forfeiture of pay not to exceed one month’s pay. In case the president shall conclude that the policeman should be dismissed from the force he shall report the evidence in writing with his oral or written opinion to the board, and the board shall thereupon determine whether the member shall be dismissed.

      Sidney Williams, for relator ; J. C. Bergen, for resp’ts.
   Pratt, J.

It has been well held that a tribunal like the trustees of the defendant herein are vested to some’ extent with discretionary power which authorize it within established rules to take action without the restriction of strict legal rules governing trials in courts of law.

It was clearly competent for the defendants to make the rules stated in their return hereto, and all the proceedings which resulted" in the dismissal of the relator seem to have been regularly complied with. He was served with charges in due form as re-' quired, and given an opportunity to make his defense before Commissioner Howell.

The trial took place before that commissioner, who held the office of president. There is nothing in the statute that requires the whole board of trustees to be present

The only restriction upon the proceeding is that the president who tries an accused person cannot impose a sentence of dismissal. It is somewhat analogous in form to courts martial. The latter courts try offenders and sentence them when convicted, but certain grave punishments cannot be carried out without the approval of a higher power, to wit, the commander in chief. In the case before us, under the statute and the rules adopted by the board of trustees, the accused is tried by the president and sentence imposed, but when the sentence involves dismissal, it must be by vote of a majority of the board.

It would be impracticable and involve much time and expense to require a full meeting of the board of trustees to attend all the trials in every case of drunkenness or unbecoming conduct on the part of policemen, and, hence, the rules wisely ordain that the trial shall take place before one commissioner, to wit, the president, and there the trial ends either in a sentence or in a recommendation for dismissal.

Ho right of the defendant in this case was involved or prejudiced. He had ample opportunity to put in his defense. He was clearly proved guilty and the judgment ought to stand.

Certiorari dismissed, with costs.

Baenaed, P. J., concurs; Dykmah, J., not sitting.


author: Dykman, J.

text:
    Russell Brusie, Resp’t, v. Peck Brothers & Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    1. Trial—Improper remarks op counsel.
    While a statement made by plaintiff’s counsel in opening the case, that defendant had made an offer of judgment, is improper, it is not such error as to call for a reversal of the judgment.
    •2. Variance.
    The complaint in an action asked for equitable relief, damages for breach of the covenants of a license to sell under a patent, and royalties. The case was sent to the circuit for trial, where the evidence was confined to showing that certain sums were due for royalties. Held,'not a variance.
    .3. Patents—Liability oe licensee.
    An agreement to pay a certain royalty on each article manufactured and sold under a license is binding upon the licensee whether the principle was new or old, or the patent valid or invalid.
    Appeal from judgment entered upon the verdict of a jury, and from order denying motion for a new trial on the minutes.

      Wolff & Ilodge (Robert Sewell, of counsel), for app’lt; Robert S. Wensley (L. A. Gould and Horace Graves, of counsel), for resp’t.
   Dykman, J.

The plaintiff in this action held letters patent for .a portable lawn sprinkler, and on the 18th day of August, 1873, he entered into a written contract with the defendant, a foreign corporation, by which it acquired the right to manufacture and sell lawn sprinklers under the patent of the plaintiff, and it agreed to pay him a royalty of two dollars for the sprinklers known as Ho. 1 and two dollars and fifty cents for the sprinklers known as Ho. 2 made and sold by it.

As the complaint demanded both legal and equitable relief the cause was noticed for trial at the special term, but when it was called the counsel for the defendant demanded a trial before a jury, and the cause was thereupon sent to the circuit for trial.

Upon the trial at the circuit no claim was made for any equitable relief, and the plaintiff sought only to recover the amount due him for royalties under the written agreement with the defendant.

A verdict was rendered in favor of the plaintiff at the circuit, and the defendant has appealed from the judgment and from the order denying a motion for a new trial on the minutes of the court.

In opening the case to the jury the counsel for the plaintiff said: “ After the lapse of fourteen years the defendant made an . offer of judgment.”

The remark was excepted to by the counsel for the defendant, who now assigns the same for error.

While the remark was improper and the counsel for the plaintiff had no right to prove the offer, yet it was not an error which would justify the reversal of the judgment.

It is also the claim of the appellant that there is a fatal variance between the pleading and the proof, but it must be remembered that the complaint was originally drawn for the procurement of equitable as well as legal relief, and when the cause was sent to-' the circuit at the defendant’s request nothing could be recovered but the damages resulting to the plaintiff from a breach of the agreement on the part of the defendant, and certainly in a broad sense the failure to pay the royalties stipulated in the agreement was a breach thereof, and the amount of such royalties remaining unpaid was the measure and extent of the plaintiff’s damages.

The agreement was set out in the complaint and there is an allegation that the defendant has received sums of money for lawn sprinklers sold by it for which the defendant has become liable to pay the plaintiff large sums of money. It is true the complaint might have contained an allegation more appropriate, but if it was not sufficiently definite and certain, the remedy of the defendant was to have it made so by an application to the court for that, purpose.

As it was, there was an answer and the proof was admitted, and the case was properly submitted to the jury and the complaint is sufficient to hold the verdict.

We think also the cause was tried upon the proper theory of the law. The rights of the parties were fixed by and depended upon the written agreement, and the extent or validity of the patent was immaterial to the question to be determined. The defendant agreed to pay royalties for the sprinklers manufactured and sold under the agreement, and it was bound to do so whether the-principle was new or old, or the patent valid or invalid.

AH the exceptions have been examined and they present no-error.

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

Barnard, P. J., concurs; Pratt, J., not sitting.


text:
    Russell Brusie, Resp’t, v. Peck Brothers & Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Judgment—Entry.
    In the absence of special authority the clerk’s power is limited to the entry of a general judgment and he can neither enlarge nor abridge the scope or operation thereof by interpolating words therein.
    Appeal from order denying motion to correct and amend the judgment and postea.

    Action to recover royalties under a license to make and sell machines under a patent and damages for non-performance of the license and a rescission thereof.

      Wolff & Hodge (Robert Sewell, of counsel), for app’lt; Robert S. Wensley (Horace Graves, of counsel), for resp’t.
   Dykman, J.

When the plaintiff came to enter his judgment upon the verdict he obtained at the circuit, he did so in these words:

“ The issue in this action having been sent by order from the special term to the circuit for trial (thus limiting any recovery to claims arising prior to the commencement of the action), and the issues having been tried at circuit, and a verdict having been rendered in plaintiff’s favor, assessing his damages (down to the time of the commencement of this action) at $7,674.02, and the costs having been taxed at $1,521.59, now, on motion of Robert L. Wensley, plaintiff’s attorney, it is
“Adjudged that plaintiff do have and recover of the defendant the sum of $7,674.02 as damages and $1,521.59 costs, amounting in all to $9,195.61, and that plaintiff have execution therefor.
“ Wm. J. Kaiser, Clerk.”

The defendant made a motion to strike out the words included above in brackets, and the motion was denied, and the defendant has appealed from the order.

We think the motion was erroneously denied; there was nothing before the clerk to justify the interpolation of the objectionable words. He had authority to enter a general judgment in favor of the plaintiff against the defendant, and then his power was exhausted. His duties in making the entry were ministerial, and he could neither enlarge nor abridge the scope or operation of the judgment he was authorized to enter.

The order should be reversed, with ten dollars costs and disbursements, and the motion should be granted, with ten dollars costs.

Barnard, P. J., concurs; Pratt, J., not sitting.


text:
    Samuel McElroy, Resp’t, v. Henry Mumford et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Undertaking—Bar.
    Defendants were sureties upon appeals to the general term and also to the court of appeals. The judgment appealed from was affirmed and action brought on the undertaking given on the appeal to the court of appeals, in which judgment was recovered for the original judgment and. costs of both appeals; which judgment was reversed by general term on-, the ground that that undertaking did not cover the judgment and general term costs. Held, that that action was not a bar to an action on the undertaking given on the appeal to general term.
    Appeal from judgment in favor of plaintiff, entered upon decision of the court.
    Action against sureties on an undertaking on appeal to general term in an action wherein the present plaintiff was plaintiff, and the Brooklyn Underground Bailroad Company was defendant.

      Leslie W. Russell and Welton Percy, for app’lts; Frank P. Martin (John 0. Shaw,' of counsel), for resp’t.
   Barnard, P. J.

Upon the appeal in this action from the supreme court to the court of appeals, an undertaking was given- - apparently to cover the costs of the appeal only. . There had been an undertaking given upon the appeal from the trial court to the-general term, which provided for the payment of the judgment- and costs. An action was brought upon the undertaking that was-given upon the appeal to the court of appeals. A judgment was-given thereon for the original judgment, the costs of the general, term and the costs of the court of appeals. Upon appeal the general term concluded that the undertaking was not given to cover the judgment and general term costs, and reversed the judgment. The plaintiff appealed to the court of appeals,- and the decision is-not yet made. This action was brought to recover upon the undertaking given upon the appeal to the general term. Judgment, was given for the original judgment and for the general term costs. The sole question is whether the first action is a bar to-this one. As the record stands it is not. The first judgment is-entirely reversed, and the plaintiff is justified in acting upon the-reversal. If the court of appeals reverse the judgment of the general term, there will be two judgments for the same amount; but there can be but one satisfaction. In this case the sureties are the same in both appeals. If it were otherwise, an action against, the sureties on each appeal would have been rejected.

The judgment should be affirmed, with costs.

Pbatt and Dykman, JJ., concur.


text:
    Caroline L. G. Scott, Resp’t, v. The Haverstraw Clay & Brick Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    1. Lease—Covenants to keep in good order—Construction.
    A lease of a brickyard premises contained a covenant by the lessee that-it would maintain a proper and substantial brick yard on the whole of said premises, and keep and preserve all the buildings, etc., then on or which might be erected on the premises in good repair and condition at its own expense and leave the same in good condition at the expiration of the term;, all such improvements to be the property of the lessor. An extension lease provided that the lessee should erect and maintain a steam_ engine of sufficient power to manufacture brick on said premises, with suitable-buildings and fixtures and machinery for the same, and and leave the same on the premises in good order and condition, such engine and fixtures. being a part consideration for the extension. Held, that these covenants required the lessee to maintain one brickyard covering the whole premises and to furnish and leave thereon all the appliances necessary to a fully equipped brickyard and that the engine called for was one of sufficient power to run a brickyard covering the whole premises.
    3. Same—Damages.
    For breach of such covenants the measure of damage is the reasonable cost and expense of replacing everthing which was to be left on the premises.
    Appeal from judgment in favor of plaintiff, entered on the report of a referee.

      Calvin Frost, for app’lt; Alonzo Wheeler (F. A. Brewster, of counsel), for resp’t.
   Dykman, J.

This is an appeal from a judgment entered upon the report of a referee.

The action was brought to recover damages for the breach of covenants contained in two leases of certain brickyard premises located in Haverstraw, in Boclcland county. The first lease was. dated on the 23d day of February, 1878, and was made by Caroline Louisa Garner Scott, wife of James Scott, and William Henry Garner, to- the Haverstraw Clay & Brick Company, a domestic corporation organized under the laws of the state of Hew York, and demised brick yards and premises particularly described for five years from the 1st day of April, 1878, for the annual rent of $1,200, payable quarterly.

The defendant in that lease covenanted and agreed to use and occupy the premises for the purpose of the business of brick making from clay and sand to be procured elsewhere than on the premises, and that it would not use any clay, sand or other material for making brick procured from or on any part of the demised premises; and further that it would at its own proper cost and expense maintain and keep up a proper and substantial brick yard upon the whole of the demised premises; that if would keep and preserve all the buildings, sheds, docks, pits and other improvements then on the premises, or which thereafter might be erected, enlarged or altered, in good repair and condition, at its own cost and expense, and at the expiration of the term, or other sooner determination of the lease, to leave the premises with all the docks, buildings, pits, improvements and fixtures in good order and condition, the whole of which at the determination of the lease from whatever cause was to become the sole and absolute property of the parties of the first part, and at such time to be surrendered and yielded up to the parties of the first part,, or their legal representatives, in good order and condition. The defendant further covenants that it would not suffer or allow any bats from said yard or vessel, or any other material to be thrown in the Hudson river near the bulkheads or docks, so as in any way to obstruct or interfere with the navigation or free use thereof which might be connected with or belong to the demised premises so as to make the waters of the river in any degree more shallow or less deep.

There was a further covenant that the defendant on the deter-ruination of the lease would leave the docks, yards and grounds in good, smooth, regular surface and condition, and in good repair, and it was stated to be a part of the consideration of the lease that the party of the second part should keep the property from deterioration, and leave on the same all additions and improvements as aforesaid.

It was charged in the complaint in this action that under the terms of this first lease the defendant entered into the possession and occupation of the-premises about the 1st day of April, 1878, and in pursuance of the said lease, and of the extension mentioned in the complaint, continued in possession until the 1st day of April, 1888. It was alleged also that soon after the execution and delivery of the lease, and after the defendants had entered into possession of the premises, the title of the premises became wholly vested in the plaintiff in this action, Caroline L. G. Scott

It was further alleged that after the plaintiff so became the sole owner of the premises, she executed and delivered to the defendant, and the defendant accepted from' her, another instrument in writing, purporting and intending to be an extension of the terms of the said lease, for the purposes and upon the conditions mentioned in the first lease. In this second instrument, called a lease and also an extension of the first lease, the plaintiff demised to the defendant the same premises with the buildings and improvements thereon mentioned in the first lease for another term of five years, to commence on the 1st day of April, 1883, and to expire on the 1st day of April, 1888, unless sooner determined, at the yearly rental of $1,200, payable quarterly, and in this last instrument the defendant covenanted and agreed to pay that rent, and also that it would erect, put upon and maintain on the premises a steam engine for the manufacture of brick thereon of sufficient horsepower and capacity for the purpose thereof, with suitable buildings and fixtures and all inachinery required therefor, and that at the expiration of the last term it would leave the buildings, and every part thereof on the premises, in good order and condition, the whole of them to be and become the absolute property of the plaintiff; such engine, fixtures, building and machinery being a part consideration for the granting of the term thereby demised.

And it was further covenanted and agreed by the defendant that all the covenants, agreements and conditions in the first lease on its part made and agreed should be applicable to, and be a part of the last lease in every respect, with like force and effect as if recited in the last lease, and that it would keep, observe and perform the same with reference to the term thereby demised, as if they were expressed in the first lease. It was alleged in the complaint, that when the first lease went into effect, and the defendant entered into possession of the premises, there were thereon sheds, docks, pits, boilers and engines and appurtenances and fixtures and other improvements belonging to the plaintiff, and that during the occupation of the premises by the defendant certain buildings, sheds, additions, improvements and fixtures were erected and put upon the premises by the defendant, all of which by the terms of the lease became the absolute property of the plaintiff. Then it was alleged in the complaint, that in violation of the covenants of the lease, and the extension thereof, the. defendant failed to keep up and maintain a proper and substantial brickyard upon the whole of the said demised premises, but caused or permitted the siad premises, and the docks, sheds, buildings, machinery, fixtures, additiions and other improvements upon the premises, as well those thereupon at the beginning of the lease as those afterward erected or put thereon during the said demised term, to become and remain greatly out of repair, and to deteriorate and depreciate in condition and value.

It was further alleged, that at the expiration of the lease the defendant failed to surrender the premises in good order and condition, and failed to leave the grounds smooth and regular, but that the grounds were left greatly out of repair and uneven, and the facing upon the yards broken and worn out. Also, that the defendant caused or permitted certain buildings, sheds, pits, lumber, machines and other property belonging to the plaintiff to be removed and taken away from the premises; that the defendant wholly failed, as required by the said extensions of the lease, to put up, maintain and leave upon, the premises a steam engine of sufficient horse power and capacity, with suitable buildings and fixtures, and all machinery required therefor. Then it was alleged that by reason of the failure of the defendant to keep and perform the covenants in the leases, the plaintiff sustained damage to a large amount.

Most of the allegations in the complaint respecting the damage and negligence and default of the defendant were put in issue. The action was tried before a referee, and he has found all the material facts in favor of the plaintiff substantially as they were alleged in the complaint, and found that there was due to the plaintiff from the defendant $13,327.43, which includes interest.

The principal contention arose upon the trial and on the argument before us respecting the construction to be placed upon the leases, it being the contention of the plaintiff that the covenants in the lease on the part of the defendant to occupy and maintain at its own cost and expense a proper and substantial brickyard upon the whole of the demised premises meant one yard covering the whole premises; that it also meant every appliance necessary to a fully equipped brickyard, and that it was the intention of the plaintiff to require the defendant to furnish and leave upon the premises a fully equipped brickyard, and that the covenant to maintain, keep and repair, required the defendant to construct, keep, maintain and leave one brickyard upon the premises, and further, that the extension agreement, called the second lease, requiring the defendant to put up, erect and maintain on said premises a steam engine for the manufacture of brick thereon, of sufficient horse power and capacity for the purpose thereof, with suitable buildings and fixtures and all machinery required therefor, called for one engine of sufficient power to run a brickyard covering the whole property.

It was the contention of the plaintiff also that the covenant of the lease required that all buildings, sheds, docks, pits and other improvements on the premises at the commencement of the lease, belonging to the lessor, or thereafter erected thereon, should be kept in good order and condition and left on the. premises, and become the property of the plaintiff.

The referee took that view of the law, and tried and decided the cause upon that theory, and our conclusion is the same. It is to be noted that this covenant differs from the ordinary covenants in a lease, to leave the demised premises in good order and condition at the end of the lease. It is an absolute, unqualified covenant and agreement to leave the premises, with the docks, buildings, pits, improvements and fixtures in good order and condition at the expiration of the term fixed in the lease. The property was to be preserved and handed over to the plaintiff in good order.

The defendant on this appeal challenged also the measure of damages adopted by the referee, but it is to be borne in mind that the parties took pains to express in the writing that it was a part of the consideration of the lease that the defendant should keep the property from deterioration and leave all the additions and improvements upon the same, and the second lease provided that the whole were to become the absolute property of the plaintiff.

For a breach of this covenant, the plaintiff was entitled to recover the damages sustained thereby, which must be considered the reasonable cost and expense of replacing everything which was to be left upon the premises by the defendant, and we find that the referee has been careful to keep within bounds in all his valuations, and we think his measure of damage was as favorable to the defendant as could be expected.

Onr conclusion is, that the judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.