author: Pratt, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. HENRY C. BAKER, Respondents, v. GEORGE BEATTY and Others, Appellants.

      Criminal procedure — when objections not raised in the lower court cannot be talcen on appeal— Code of Criminal Procedure, sec. 751.
    Upon tlie hearing of an appeal from a judgment of the Court of Sessions of Queens county, affirming a judgment of a Court of Special Sessions, convicting the defendant of disturbing certain oyster beds, it was for the first time objected, that in the charge before the Court of Special Sessions, the prefix “un.” had been omitted, making the charge allege that the defendant “lawfully ” did the acts set forth.

      Held, that as the error was not specified in the affidavit, required by section 751 of the Code of Criminal Procedure, it could not be considered.

      It seems, that if the objection had been properly brought before the court it would have been sustained.
    Appeal from a judgment of tlie Court of Sessions of Queens county, affirming a judgment of a Court of Special Sessions convicting George Beatty, Stephen Hendrickson and Reuben Wanser of the offense of disturbing certain oyster beds of Baker and another, in Oyster Bay harbor, Queens county. In the Special Sessions the case was tried before a jury.

      Wl B. Du Puy and IF. T. B. 'Millilcen, for the appellants.

      John Fleming, district attorney, for the people.
   Pratt, J.:

We entertain no doubt that the judgment entered in the Court of Sessions was proper, so far as it relates to the merits of the case. We concur in the opinion of the learned county judge in that respect.

But the defendants now raise a point which does not seem to have been submitted at any stage of the procedings below, either before the justice or at the sessions, viz.: That the prefix “un” was omitted from the word “lawfully” in the charge before the Special Sessions, so that the charge of the offense, which was doubtless intended to allege that defendants unlawfully distributed and interfered with oyster beds, has charged that they lawfully did the acts alleged.

The section of the Code of Criminal Procedure (§ 56) which delines the jurisdiction of the Courts of Special Sessions, provides that they have in the first instance exclusive jurisdiction to hear and determine charges of misdemeanors committed within their respective counties, as follows: * * * “25. Unlawfully taking and carrying away the oysters of another, lawfully planted upon the bed of a river, bay, sound or other waters within the jurisdiction of this State.” It will appear from a comparison uf the several subdivisions of paragraph 56 that the word “unlawfully” is an important one in defining the offenses over which the court has jurisdiction. The act of doing certain acts is treated as an offense. The doing of other acts is not criminal unless it be doue “unlawfully.” In this particular offense these distinctions are especially important. The act must be “unlawfully” one with respect to oysters “ lawfully ” planted.

The technical requirements of criminal procedure have doubtless been much simplified and abbreviated by the Code, but wo think it clear that the final record must in some way show a criminal act. Beginning at the foundation, we find by section 145 that the information to the magisti’ate must allege that defendant has been guilty of some designated crime. Section 151 prescribes the form of “ warrant of arrest,” and indicates what shall bo its substantial form, i. e., its substance, which shall state “ that the crime (designating it) has been committed,” etc.

Section 152 requires that this warrant “ must also state an offense in respect to which the magistrate has authority,” etc. When the prisoner is brought before the magistrate he must immediately inform him of the charge against him. (Sec. 188.) If the case is to be tried before the Special Sessions “ the charge against him must be distinctly read to him ” (sec. 699), i. e., it is not an oral charge; it must betaken either from the information or the warrant on some record. Then follows the plea the same as to an indictment. (Sec. 700.) If the defendant pleads guilty or is convicted after a trial, “the court must render judgment thereon” (sec. 717), and “ must make and sign a certificate of conviction,” in substantially a form briefly designating the offense (sec. 721); i. e., the offense stated in the information and necessarily stated in the warrant. (Supra.)

If the ease stood alone we should doubtless feel bound to hold that the record on appeal disclosed no offense; indeed, that it affirmatively excluded any offense. The omission may have been clerical, but it was in matter of substance and not of form only. But this point cannot now be considered, because the record does not present it. An appeal maybe taken by the presentation of “ an affidavit, * * showing the alleged errors. * * complained of.” (Sec. 751.) If the appeal is allowed under section 752, the magistrate shall make a return to all the matters stated in the affidavit, and must cause the affidavit and return to be filed, etc. It is thus obvious that the affidavit and return make up a sort of bill of exceptions which state only so much of the proceedings as were necessary to give point to the “ alleged errors ” stated in the affidavit. We find no reference in this affidavit to any informality or insufficiency m the information, the warrant, the arraignment, the reading of the charge, the judgment itself, or the certificate of conviction, neither of which in detail appear by the return. Non constat, these documents are each full to the point. We must assume that they are, or the defendant’s counsel would have made some specifications in his assignment of “ alleged errors ” in his affidavit.

It therefore remains for us only to affirm the judgment of the sessions and remit this record to the Special Sessions and proceed as required by section 772.

Present —Barnard, P. J., Dykman and Pratt, JJ.

Judgment affirmed.


source: Caselaw Access Project

author: Pratt, J'.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM J. CHIN and PATRICK H. TRAVERS, Appellants, v. WILLIAM D. MOORE and Others, Respondents.

      CM Service Act.- — 1883, chap. 354, and 1884, chap. 410, see. 4 — right of honorably discharged soldiers and sailors to priority in appointment.

    Section 4 of chapter 410 of 1884 provides that persons who served during the late war in the army or navy and have been honorably, discharged therefrom,' shall be preferred for appointments to positions in the civil service of the State and cities over other persons of equal standing, as ascertained under that act, and the act thereby amended, chapter 354 of 1883.

      The last named act provides that original appointments to positions in the civil service of the State and of cities with a population over 50,000 shall be made by selection from applicants graded highest as the result of competitive examinations, and that promotion from lower grades to higher shall be made on the basis of merit and competition.

      Held, that the act did not give to an honorably discharged soldier or sailor a right to be preferred for appointment over other persons standing above him on the list, but only gave him priority over persons having the same position and grade as himself.
    In other words, if his standing is equal or better than that of his competitors he has an absolute right to the appointment, which is not the case with other persons.
    Appeal from an order, entered in Kings county, denying a motion for a peremptory mandamus to compel the respondents W. D. Moroe and others, as a board of examiners, to certify the relators to the respondent R. Ii. Poillon, fire commissioner, for promotion to the position of foreman in the fire department, and to compel the fire commissioner to promote the relators in accordance with such certification.
    Prior to the 29th day of July, 1885, nine vacancies occurred in the position of foreman in the fire department. The head of the department desiring to fill them hy promotion from lower grades in the service designated the respondents Moore and others as a board of examiners to ascertain the fitness of candidates by means of the examination provided by the civil service regulations. This examination resulted in tliére being placed on an eligible list, that is to say, a list containing the names of the candidates who successfully passed the examination, the names of fifteen persons in the order established by the differences in standing indicated by the percentages obtained, on the examination. The relator Travers was at the bottom of the list and the relator Chin stood number thirteen, both of them receiving the lowest percentage obtained.
    The civil service regulations provide that in the preparation of eligible lists, and in certifying names for promotion in such cases, the examiner shall follow, so far as practicable, the rules governing the preparation of such lists and the certification of names by the civil service commission. The commission is required to prepare eligible lists for the different grades of service by placing thereon siich persons as have successfully passed the required examination in the order of merit shown by the percentage thus obtained, giving a preference, however, to honorably discharged soldiers and sailoi*3 over other candidates equal in rating with themselves. In certifying names for appointment from the list so prepared the commission is required to take the names first on the list, being those who received the highest rating on the examination. In making appointments the appointing power must give the preference to honorably discharged soldiers and sailors over persons of equal standing with themselves as ascertained under the civil service regulations. Acting in accordance with these regulations the examiners in the case at bar ranged the names of the successful candidates on the eligible list prepared by them, the relators, although honorably discharged soldiers, being placed at the bottom of the list and receiving no preference because not equal in standing to those above them. The examiners also deemed it to be a duty imposed upon them by the regulations, to certify for promotion to the several vacancies the requisite number of persons from the head of the list, not including the relators because of their inequality in standing to those above them. The fire commissioner coincided in these views and regarded it as his duty to make the promotions from the persons thus taken from the head of the list. The relators thereupon 1 moved upon an affidavit stating, among other things, the intention of the respondents to he as above set forth, for a peremptory mandamus to require that they be included amongst those who were to be certified and promoted. They founded their claim to this relief on the provisions of the law (Laws 1884, chap. 410, § 4) which gives to veterans a preference for appointment to positions in the civil service of the State and cities over other persons of equal standing as ascertained under the civil service acts. All persons on an eligible list they claimed were equal in standing, no matter how unequal in rating or percentage, and inasmuch as their names were on the list in question, although at the foot, they were entitled to be preferred. The court at Special Term denied the motion and delivered the following opinion : Cullen, J.— Section 4, chapter 410, Laws of 1884, provides that persons who served during the late war in the army or navy, and have been honorably discharged therefrom, shall be preferred for appointment to positions in the civil service of the State and cities over other persons of equal standing, as ascertained under that act, and the act thereby amended, chapter 354, Laws of 1883. By the last named act it is provided that original appointments to positions in the civil service of the State, and of cities with a population over 50,000, shall be made by selection from applicants graded highest as the result of competitive examinations, and that promotions, from lower grades to higher shall be made on the basis of merit and competition. The standing of applicants must, therefore, be determined by their respective merits and the results of the competitive examinations. It is equal competitive standing that the statute has in view. This seems to me so plain as to forbid elaboration. The contention of the relator, if conceded, would result that all appointments and promotions contemplated by the statute as the subject of .competition should be filled by discharged soldiers and sailors, if there were such applicants who might be found qualified, and only in default of such applicants should such appointments be open to other persons to competition. However just or proper such a rule would be, plainly the legislature has not enacted it. The construction of the statute here adopted does not render the preference given the discharged soldier or sailor illusory. It will still be substantial. Both the statute and the rules established under it contemplate the exercise of discretion by the appointing power among several of the applicants having the highest grading. The one with the highest standing may be passed by and one with a lower standing appointed. But if a discharged soldier or sailor is presented for appointment he must be appointed by preference to others having equal or lower standing. In other words, if his standing is equal or better than that of his competitors he has absolute right to the appointment, which is not the ease with other persons.
    Application for mandamus denied.

      Wm. J. Gaynor, for the relators.

      Frederick W. Gatlin, for the respondents.
   Pratt, J'.:

We think this order must be affirmed, and the opinion of Mr. Justice Cullen delivered at the Special Term, sufficiently expresses the views which have led us to this result.

The relator’s contention is that the moment a candidate is placed upon the eligible list, he has an equal stcmdmg with every other person whose name there appears, and that difference in grade among the eligible persons must be ignored. ¥e cannot adopt this view. It is a plain misinterpretation of the statute. The appearance of his name on that list simply shows that he is eligible for appointment. It is idle to say that one who stands at the foot — say graded at seventy-five and theretofore barely eligible, has an equal standing with the others who stand at from fifteen to twenty-five in grade above him. If the whole list was comprised of persons graded at seventy-five, doubtless the soldier or sailor would be entitled to a preference in his application for public service. But there is no justice in a claim that the soldier or sailor who stands seventy-five should be preferred over candidates who stand at ninety or 100. This is not the sort ■of preference which the legislature had in view. It was simply intended that of two or more who stand equal in their eligibility, ■the soldier or sailor should always be preferred.

The order should be affirmed, with costs and disbursements of this appeal.

Present — Barnard, P. «L, Dykman, and Pratt, JJ.

Order denying writ of mandamus affirmed, with costs and ■disbursements.


text:
    AUGUST APEL, Respondent v. HUGH O’CONNOR, Appellant, Impleaded, etc.

      Practice — power of the court to order issues to be settled although more than ten clays have elapsed since they have been joined — General Bules Supyreme Court No. 31.
    In tliis action, brought to foreclose two mortgages, a judgment of the County-Court was entered, sustaining the defense of usury to one and rejecting it as to the other. The General Term reversed so much of the judgment as was in favor of the plaintiff and granted a new trial. Thereupon the County Court, upon the motion of the plaintiff, granted an order to settle the issues, as to this mortgage, for trial by a jury.

      Held, that the court had power so to do, although more than ten days had elapsed ■since the issues had been joined in the action.
    Appeal from an order of the County Court of Kings county, .■settling issues in this action for trial by a jury.
    This is an action to foreclose two mortgages. The defense is usury.

      Upon the first trial the County Court, in which the action was brought, held that one of the mortgages was usurious, and as to that found for the defendant. It found that the other mortgage was not usurious, and as to that found for the plaintiff. From this finding the defendant appealed to the General Term of the Supreme Court, where so much of the judgment of the County Court as was against the defendant was reversed and a new trial was ordered. The plaintiff thereupon moved in the County Court to settle the issues as to this one mortgage, and the motion was after argument granted, and from that order thus made the present appeal is taken. The appellant claimed that the application to settle the issues was not made in time, as the Supreme Court rules required that the application must be within ten days after issue joined. (Rule 31.)

      John McGinn, for the appellant.

      Stephen Gondit and Wm. O. De Witt, for the respondent.
   Pratt, J.:

Appellant claims that as application for a trial by jury was not made within ten days after issue joined, the motion should have been denied. This contention would ordinarily prevail. By neglecting to make this application within the time prescribed, the moving party would certainly be without ground of complaint had the application been denied. Yet it cannot well be held that by failure of either party to move for a jury trial, the court loses the power to seek the assistance of a jury. When a court finds itself unable to decide a cause, it would be a severe ruling, and might produce a denial of justice, to forbid resort to the wisdom of a jury.

The order appealed from "was peculiarly within the discretion of the court, with which discretion we ought not to interfere.

Order affirmed, without costs.

Present — Barnard, P. J., Dykman and Pratt, JJ.

Order framing issues affirmed, without costs.


text:
    BYRON DE WOLF and Others, Plaintiffs, v. HENRY DAY, Defendant.

      Mes — right ofajwror to an extra compensation when a tn'ial occupies more than thirty days— Code of Civil Procedure, sec. 3815.
    To entitle a juror to an extra compensation, under section 3315 of the Code of Civil Procedure, upon the ground that the trial has occupied more than thirty days, it must appear that more than that number of days have been actually occupied in the trial of the cause, not including days on which the cause was not heard, such as Sundays, Saturdays or during adjournments.
    Appeal from an order granted by Judge Bartlett, denying a motion for extra compensation made by the jury who tried this case, under section 3315 of the Code of Civil Procedure.
    The motion was made upon the affidavit of James K. Frothing-ham, of the city of Brooklyn, the foreman of the jury impanneled to. try the action, which stated, among other things, that “ the trial of said action commenced at the April circuit of this court. Deponent with his fellow jurymen were summoned on the 6th day of April, 1885, and served from said day until the 9th day of May, 1885. The trial of the above entitled action lasted from the morning of April eighth until the ninth of May, during all of which time deponent and the other members of the panel were held by and subject to the orders of the court, and during this period, with the exception of Sundays and Saturdays and a short intermission occasioned by the death of Judge Tract’s sister, we were in constant attendance upon the trial of this case. We were forced to attend as above stated without any preliminary notice and to the great detriment of our private business. The per diem allowed by law was in no sense compensation for the loss of time and injury to our business occasioned by said forced attention to this cause for five calender weeks. The trial of the above entitled action lasted more than thirty days. For a day and a-half, including an entire night, said jury were confined to their room deliberating upon their verdict.”

      ■Frederick A. Ward, for the jury, appellant.

      William Q. Cooke, for the respondent.
   Pratt, J.:

We do not think a fair construction of section 3315 of the Code of Civil Procedure will warrant an extra compensation to the jurors who served in this case. The trial lasted for more than thirty consecutive days, but deducting Sundays and Saturdays and a short adjournment to accommodate counsel, the jury did not sit for quite thirty days. The authority to give extra compensation is derived wholly from the section above referred to, and that reads “ when the trial occupies more than thirty days.” It follows that when the trial occupies less than thirty days there is no power to award such extra compensation.

The whole question turns upon the intent of the legislature in using the word occupies. The fact that the legislature used the word “ occupies ” instead of “ protracted,” as used in the former statute, furnishes a strong argument that it intended to change the former statute in that regard. It is too plain for argument that in using the word “ occupies ” it was meant to be the equivalent of actually engaged in. It is not a question of computing time, but a question of fact, whether thirty days are actually occupied in the trial, including, of course, the time in,which the jury are deliberating upon their verdict. Any other construction would allow extra compensation in any case where by adjournment the trial is protracted beyond the period of thirty days. It seems more reasonable to believe that the legislature fixed the limit of thirty days as the period beyond which a juror is entitled to compensation.

Order affirmed, without costs.

Barnard, P. J., concurred; Dykman, J., dissenting.

Order affirmed, without costs.


author: Dykman, J.;

text:
    ELLEN KELLY, Respondent, v. THE NEW YORK AND SEA BEACH RAILWAY COMPANY, Appellant.

      Negligence — liability of a railroad company to a passenger injured by defects in Us ears.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover damages for injuries sustained by the plaintiff by a fall in getting out of one of the defendant’s cars.
    The court at General Term said: “ The plaintiff was a passenger on one of the open cars of the defendant, and when she was about to alight from the car, one of the curtain hooks caught her dolman and she was swung from her balance and thrown to the ground, and received the injuries complained of in this action.
    “ The car was furnished with cross seats, with upright stanchions at the end, to which curtains were attached to be drawn together when the weather required. One of the curtains at the end of the seat was furnished with a ring, and the opposite curtain was furnished with a snap-hook, so that the curtains were held together by the hook and ring. When in order the point of the snap hook was protected by the pressure of the snap or latch against the point, which formed a continuous smooth surface, from which all substances would pass without being caught. The snap of the hook which caught the garment of the plaintiff was broken, and the hook was left pendent and without a guard, and that defect, and the failure to remove it, is the negligence underlying this action.
    “ The main facts relating to the accident and injury are without dispute.. The defective and broken condition of the hook was established, and that was sufficient to impose liability upon the defendant if the case of the plaintiff was otherwise made out.
    £‘ The questions of negligence and contributory negligence were fairly submitted to the jury, and the verdict was for the plaintiff, and that now carries all the questions of fact in her favor.”
    “ There are no errors disclosed by the record, and the judgment and order denying a motion for a new trial should be affirmed, with costs.”

      A. P. & IF. Man, for the appellant.

      Chas. J. Patterson, for the respondent.
   Opinion by

Dykman, J.;

Barnard, P. J., and Pratt, J.,. concurred.

Judgment and order denying new trial affirmed, with costs.


author: Barnard, P. J.;

text:
    NATHANIEL R. DENTON, JOHN BAIRD and Others, Appellants, v. GEORGE W. SANFORD and ANDREW J. MAPES, Executors, etc., of SAMUEL DENTON, Deceased, Respondents.

      Executor — when he may invest moneys of the estate in fulfilling the testator’s agreement to purchase real estate in another State — when not liable for a loss-resulting from a defect in the title.

    Appeal iroin a decree of the surrogate of Orange county dismissing a petition.
    The petitioners applied to have the defendants removed from their position as executors of the last will and testament of Samuel Denton, deceased, upon the ground that they had wrongfully and unlawfully invested money belonging to the estate in real estate in the State of New Jersey.
    The court at General Term, in approving of the action of the surrogate in dismissing the petition, said: ££ Upon the mérits of the case, as disclosed by the appeal book, there is no well founded subject of complaint against the executors, although the result' has been disastrous to the petitioners.

      “ The petitioners are legatees under the will of J ames Denton, deceased, and the defendants are his executors. The deceased held a mortgage for $3,000 on lands in New Jersey which he had taken himself, and these lands were subject to prior liens. The deceased had foreclosed his mortgage in his lifetime and had bid in the lands himself for a sum which would pay all prior liens. The parcels were two in number and the farm in question was then worth $10,000 and was assessed for that sum. The bid for this farm made by deceased was $8,500. The deceased lived nearly or quite a year after he bid in the property, and did not take the deed from the sheriff in New Jersey who made the sale. There is no explanation for the delay. No proof of an intent, to abandon the purchase is given, but the fact that it required some $10,000 to obtain the deed may explain it. After his death the executors were justified in carrying out the intent of the testator. There was a margin apparently of $1,500 in the farm and they were justified in taking the title to secure it. The case is one which is supported by Ormistonv. Olcott (84 N. Y., 339). The loan was the act of the testator. The purchase of lands outside of the State was his act. The executors had the right to assume the prudence and care of the testator under the circumstances. The mortgagor of the testator had been possessor claiming as owner for many years before giving the mortgage, and his successors so continued for some years after. It then appeared after the executors had taken the title that two-sevenths was not good. This was shown in a litigation more or less expensive, and the amount finally realized from the farm is very small, some $2,200. The taking the title in the individual name of the executors was an act of prudence, and so long as the land was held for the estate no injurious purpose could be imputed to them for it. When cited they put the security in the form of a mortgage by a sale to Mrs. Mapes and a mortgage back from her for the purchase-price. If the deed was properly taken in the first place, no injury resulted to the petitioners by this course. Whatever security there was in the farm they got to the extent they were interested in it. Nothing of theirs was given away. At the time this mortgage was taken the land was worth at least the $6,000, and apparently would bring that sum and no doubt would have done so but for the failure of title which was manifested thereafter. Upon the facts disclosed, therefore, and without passing upon the question whether or not the former decrees of the surrogate of Orange county, and whether the former judgment of the Supreme Court are binding as an adjudication upon the petitioners, the judgment now appealed from should be affirmed, with costs.”

      Benjamin Bow, for the appellants.

      ■F. V. Samford and John J. Beattie, for the respondents.
   Opinion by

Barnard, P. J.;

Pratt, J., concurred.

Surrogate’s order dismissing petition affirmed, with costs.


author: Davis, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. CHARLES T. HARVEY, Appellant, v. EDWARD V. LOEW, Comptroller of the City of New York, Respondent.

      Construction of elevated railroads in city streets —power of the legislature to authoi'ke it to be done for experimental purposes — compensation must be made for the use of the strreet — a franchise or right cannot be given to an individual by a private or local act.

    Chapter 554 of 1885 amends chapter 489 of 1867, and the acts amendatory thereof, so as to authorize the construction of a new illustrative section of an elevated railway on some duly authorized street in the city of New York, to be not less than one-fourth of a mile in length, and provided with serial traction cables and testing cars of full working size, and to conform to the regulations as to structure and motive power provided in the former acts. It declares that “said section shall be constructed and the said experiments conducted upon the plans and under the direction of Charles T. Harvey, the engineer in charge of constructing the first experimental section hereinbefore mentioned.” It then further provides that the comptroller is authorized to pay a sum equal to one-third of the amount of a fund (paid to the comptroller by the elevated roads referred to in the said acts, being five per cent upon their net income from passenger traffic, as a compensation to the corporation for the use of its streets) — “ forthwith to the order of said engineer, for the purpose of defraying the expenses of experiments as to said motive power now in progress, and for making surveys and other preparations for building said section.”
    Upon an application for a peremptory mandamus to compel the comptroller to pay over one-third of the said fund to the relator:

      Held, that conceding the power of the legislature to authorize the construction of a railway in a public street for experimental purposes, and not for public use and traffic, yet this could not be done without making compensation to the persons interested therein for the damages thereby sustained, and that the omission of any such provision from this act rendered it unconstitutional and void.
    That if it were held that the section of railway which was to be constructed under the act was intended for public use and traffic, then the act was unconstitutional, in that it conferred a franchise or right upon a private individual by a local and private act in violation of the Constitution of the State.
    Appeal from an order of the Special Term, denying a motion for a peremptory mandamus.

      Abram Wakeman, for the appellant.

      D. J. Dean, for the respondent.
   Davis, P. J.:

By section 1 of chapter 489 of the Laws of 1867 it was enacted that the West Side and Yonkers Patent Railway Company, a company organized under the general railroad law of 1850, and the acts amendatory thereof, be authorized and empowered to commence and proceed with the construction of an elevated railway in the counties of New York and Westchester in the manner and upon a route therein specified. The third section of the act authorized the company “ to commence the construction of an elevated railway at the southerly extremity of Greenwich street, near Battery place, in the city of New York, and extend the same northerly along Greenwich street for a distance of half a mile in length,” which the act calls an experimental section. It then provides for certain experimental tests to be made upon that section under the inspection of commissioners appointed by the governor of the State and the local authorities of the city, and upon their certificate of approval of the experimental section, to be made and filed as prescribed in the act, the fourth section authorized the company to proceed and construct its railway along both sides of Greenwich street and Ninth avenue to a point designated. The ninth section provides that the company, after its road should be constructed and in operation should pay “ a sum of five per cent of the net income of said railway from passenger traffic upon Manhattan Island, as aforesaid, into the treasury of the city of New York in such manner as the-legislature may hereafter direct, as a compensation to the corporation thereof for the use of the streets thereof.”

By chapter 855 of the Laws of 1868 the time for the construction of the experimental road was extended; and it was provided by section 2 of the act that the five per cent required by section 9 of the act of 1867 should be paid in the month of January in each year, and quarter annually thereafter, to the comptroller of the city of New York, for the purpose of being expended in the improvement of the condition or appearance of the streets or parts o.f streets or avenues or places through which said railway shall be constructed, by preserving or transplanting shade trees, or by other embellish ments or improvements of awnings and sidewalk structures which may tend to render the general condition and aj>pearance of the 'streets aforesaid satisfactory to the citizens dwelling in or frequenting the same, and power was thereby given to the commissioners provided for in the act to expend the revenues received from the specified percentage in such manner as they shall deem best to promote the object aforesaid, subject to the official approval of the mayor of the city of New York.

And the comptroller was directed thereby to keep said revenue distinct and apart from all other funds, and to pay out of it warrants when signed by the commissioners and accompanied by vouchers of the expenditures indorsed as approved by the mayor; and the vouchers for the compensation of the commissioners when approved by the governor were directed to be paid from the same fund in like manner. Under the provisions of this act it appears by the petition in this case that a sum of money was paid in to the comptroller, which on the 13th of June, 1885, amounted to $168.099, and it would seem that that sum remains in the hands of the comptroller subject to the provisions of the acts of 1867 and 1868. In the interval that has elapsed since the passage of those acts it appears by chapter 595 of the Laws of 1875 (in which it was so recited) that the New York Elevated Railway Company have acquired by purchase under mortgage of foreclosure and sale and other transfer, all the rights, powers, privileges and franchises which were conferred upon the West Side and Yonkers Patent Railway Company, by the acts of 1867 and 1868 above referred to, and the New York Elevated Railway Company, was thereby “confirmed in the possession and enjoyment of the said rights, powers, privileges and franchises as fully and at large j as they were so granted in and by the acts aforesaid to the said "West Side and Yonkers Patent Railway Company.”

By chapter' 554 of the Laws of 1885, which is the act under which the question in this case arises, section 2 of the act of 1868 is amended so as to provide that the construction company therein mentioned “or its successor shall, in the month of January in each year and quarter annually thereafter, pay to the comptroller of the city of New York, five per cent of its net income for the purpose of being expended in the improvement of the condition or appearance of the streets or parts of streets or avenues or places through •which elevated railroads may hereafter be located or constructed, by demonstrating the practicability of making said structures more ornamental in appearance and by introducing such new or improved methods of operating the same as may tend to obviate such objectional features thereof as injuriously affect the condition of such streets or avenues. To this end a new illustrative section of said form of railway shall be erected on some duly authorized street, in said city, to replace the experimental section referred to in the first section of this act and subsequently removed, and to enable the resumption and completion of the experiments required in said section, to ascertain the best form of motor as therein contemplated, and the expenses incident thereto, shall be paid from said fund as hereinafter provided.”

The effect of this amendment is to authorize and require a new “ illustrative section ” of the railway to be constructed under the acts of 1867 and 1868 on some “ duly authorized street” in the city to replace the experimental section referred to in those acts, which in this act is stated to have been subsequently removed. The act declares that: “ Said new illustrative section shall not be less than one-fourth of a mile in length and shall be provided with serial traction cables and testing cars of full working size, and shall conform to the regulations as to structure and motive power as provided in the act to which this act is supplementary.” It then declares that “ said section shall be constructed and the said experiments conducted upon the plans and under the direction of Charles T. Harvey, the engineer in charge of constructing the first experimental section hereinbefore mentioned.”

The illustrative section thus authorized is, as we understand the section, to be a new and independent elevated railroad of not less than a quarter of a mile in length, erected on some duly authorized street of the city, and is not necessarily connected with any existing road, nor owned by any existing railroad corporation, nor to be used for the purposes of public traffic, but to be simply experimental, to illustrate the working of forms of motors in order to ascertain the best form as contemplated in the original act. It is not a public but a private road, having in contemplation only experiments to illustrate the value of motors and other improvements, doubtless with the purpose, by establishing such- value, to induce their introduction and use on other railroads. This is shown by the provisions of the act requiring the governor, the State engineer and the mayor of the city to designate a board of inspecting engineers, who shall proceed to inspect, test and report on die features of said illustrative section and the operative merits of its motive power, a copy of which report is to be filed with the comptroller, with the indorsement thereon of the several opinions of the governor, State engineer and mayor aforesaid as to the comparative merits of the illustration so made ; and in case they, or a majority of them, shall therein certify that in their judgment the said new illustrative section has demonstrated or developed material improvements in the methods of constructing or operating elevated railroads in said city, as compared with the forms or motive power of those then in use therein, and as tending to improve the appearance or condition of the streets or avenues herein specified, the said comptroller shall pay to the order of the said constructing engineer the amounts remaining in or accruing to said fund until the legislature shall otherwise direct, as compensation to him for services rendered, and to enable him to continue said experiments toward attaining the highest possible perfection for the designs of such railways, and of benefiting the appearance and condition of the streets and avenues of said city in connection therewith.

The act also provides that the “ section shall be constructed and the said experiments conducted upon the plans and under the direction of Charles T. Harvey, the engineer in charge of constructing the first experimental section.” It then declares that the comptroller is “authorized and directed to pay a sum equal to one-third of the amount of said fund now on deposit with him or in his custody forthwith to the order of said engineer, for the purpose of defraying the expenses of experiments as to said motive power now in progress, and for making surveys and other preparations for building said section.”

It is to require the payment of this first sum to Mr. Harvey that this mandamus is asked for. The court below put the denial of the mandamus upon the ground in substance that the relator did not show that he had taken any steps except filing the bond required by the act for the faithful performance of his work, and did not aver or make proof that he was doing or about to do or was willing or authorized to do the work referred to or had a permit to do it.

These grounds, we think, were altogether too narrow to uphold the order denying the writ, because the language of the act is very explicit that the sum named shall be paid to Mr. Harvey forthwith for the purpose of defraying the expenses of experiments as to said m,otive power now in progress and for making surveys and other preparations for building said section. The obvious purpose of this provision is to place the engineer forthwith in funds, and to furnish him in advance with the necessary means to launch the experiment by taking the preliminary steps necessary to that end. The section then proceeds to require him before he receives the moneys to execute the prescribed bond in the sum of $100,000, with good and sufficient sureties, to be approved by the chief justice of the Court of Common Pleas in said city, conditioned upon the full performance of the construction work herein provided for. Collating these several sections and reading them together seems to leave no doubt that the intent of the legislature was to furnish a fund, limited to one-third of the money in the comptroller’s hands, so that the work may be commenced by surveys and pi’eparations and the existing experiments as to motive power continued. If the act, therefore, can be held to be constitutional, we think there is no other mode of carrying out the legislative intent, as expressed therein, than by requiring the first payment to be made upon the filing of the prescribed bond, and the question which must control the application is the more important one of the constitutionality of the act. The power of the legislature under the Constitution to authorize by general laws the construction of railroads in the streets of the city of New York for the purpose of public travel and traffic need not be discussed, for it is manifest that it is not the purpose of this act to construct such a railroad. The construction of a railroad not less than a quarter of a mile in length, to be constructed under its provisions, is not authorized or intended for any purpose of public travel or traffic. It is a purely experimental section of railroad for the purpose of testing the qualities of motors and the superiority of such as Mr. Harvey may invent or use over those now in use upon the existing elevated railroads of the city, and to some extent to determine how the structures of elevated railroads may be improved in appearance and utility. The constitutional question is not, therefore, whether a railroad for purposes of public travel may be constructed as provided by this act, but whether the legislature can constitutionally authorize the streets of the city to be occupied by structures of the kind to be built under this act for the purposes expressed and intended by the act, to wit, for purely scientific experimental objects. Whether the fee of the streets be in the city or in the owners of the land abutting upon the streets, or whatever may be the relative rights of the city and such abutting owners in the road, does not seem to be an important fact for the purpose of determining the question now presented. It is enough that whether the city or the owner of the land owns the fee of roadway, it is nevertheless private property within the meaning of the constitutional inhibition against taking the same for public use without due compensation, and if the erection of an experimental railroad like that contemplated and authorized by this act can be said to be for a public use, because the experiments .to be worked out upon it may result in public advantage when their value is illustrated, nevertheless it seems 'a clear proposition that the street cannot be taken for a demonstration of that kind without due compensation. No such compensation is provided for by the act, and if the act be constitutional Mr. Harvey will have the right and power, when the comptroller pays him the necessary funds, to proceed to construct his experimental section in any street at any length not less than a quarter of a mile, and so occupy the same for such period of time as shall be necessary to accomplish the contemplated ends. This is not in our judgment a constitutional use of either public or private property without due compensation.

Again, if we consider the section of elevated railroad which may be constructed under this act to be a railroad within the general significance of that term, although it is devoted to mere illustrative experiments, nevertheless it is conferring a franchise or right upon a private individual by a local and private act of the legislature and not under the general law of the State. Such a privilege is one not sanctioned but condemned by the Constitution of the State; and though the court knows no reason to doubt that good results might follow from the carrying out of the provisions of this act, in some part of the city where private citizens might be little injured, yet we cannot say that the power exists to confer such privilege upon any citizen or corporate body under the restraint imposed on the legislature by the Constitution of the State. We do not discuss the question raised as to the power of the legislature to devote a fund required to be paid to the city by law as compensation for the use of its streets, first to the purposes mentioned in the amendatory act of 1868, and now to the experimental uses of the scheme devised by the act of 1885, as a legitimate exercise of constitutional power on the part of the legislature. That question is certainly one not free from grave doubt and may be a controlling one in the final disposition of this case if carried to the court of last resort. We are, however, for the reasons herein suggested, brought to the conclusion that the act under consideration is wholly void, because its scheme necessarily operates, if carried out, to transcend the limits imposed by the Constitution upon the legislature of the State.

The order should be affirmed, but without costs.

Daniels and Brady, JJ., concurred.

Order affirmed, without costs.


author: Daniels, J.:

text:
    THE PEOPLE’S BANK, Respondent, v. ST. ANTHONY’S ROMAN CATHOLIC CHURCH, Appellant.

      Religious corporation — a negotiable instrument issued by it invalid, unless shown to have been issued by authority of its board of trustees.

    This action was brought upon a written instrument which certified that the defendant, a religious incorporation formed under chapter 45 of 1863, and • .of ’chapter 60 of 1813, was indebted to Edwin Harlow or order for $500 duly-received from him as a loan, bearing interest at seven per cent per annum, payable semi-annually at a bank therein named. It stated that it was redeemable within two years or sooner at the option of the church. It was dated April 1,1876, and was signed “John Loughlin, President ; Daniel Ross, Secretary; William J. Lane, Treasurer and Pastor of St. Anthony’s Church.”

      Held, that as the act under which the' defendant was incorporated vested the management of its temporal affairs in a board of five trustees, and as there was no evidence to show that the board of trustees had authorized the issue of the certificate in suit, the defendant was not liable thereunder.
    'That its liability thereon was not affected by the fact that the three persons signing' the certificate were in fact members of the board of Trustees, and constituted a majority thereof.

      R seems that in a proper case, for the indebtedness of a religious corporation, the trustees acting as a board, properly organized for that purpose, would be authorized to empower its officers to execute and deliver in its behalf instruments of this description.
    Appeal from a judgment in favor of tlie plaintiff, entered upon rthe report of a referee.

      ■ Roger A. Pryor, for the appellant.

      John Clinton Cray and Edward G. Perlcins, for the respondent.
   Daniels, J.:

The judgment was recovered for the amount unpaid upon eight certificates or promissory notes, each for the sum of $500, and given in .the following form:

“No. 11 A —$500.
“ St. Anthony’s Roman Catholic Church, ]
“ G-reenpoint, Brooklyn, E. D., April 1, 1876. f
'“ This certifies that St. Anthony’s Roman Catholic Church of the ■city of Brooklyn, county of Kings and State of New York, is indebted to Edwin Harlow or order five hundred dollars, duly received from the said Edwin Harlow as a loan, bearing interest at seven per cent per annum, payable semi-annually at the Mechanics and Traders’ Bank (Greenpoint), Brooklyn, E. D.
“ This certificate is redeemable within two (2) years, or sooner, at the option of the church.
(Signed) “JOHN LOUGHLIN,
President.
“DANIEL BOSS,
Secretary.
“ WILLIAM J. LANE,
Treasurer and Pastor of St. Anthony’s Church.”

The defendant was at that time and still is a religious corporation created under chapter 45 of the Laws of 1863, and the act of 1813, chapter 60 (2 R. L., 212), providing for the creation of religious corporations. By section 4 of the latter act the trustees of every church, congregation or society organized under its authority have been vested with the power to take into their possession and custody all the temporalities of the society, consisting either of real or personal estate, and to recover by suit or otherwise the debts, demands, rights and privileges of all churches, meeting-houses, parsonages and burying places, with the appurtenances, and all estates belonging to the society, and to purchase and hold other real and personal estate, and demise, lease and improve the same for the use of the society, and to repair and alter their churches and erect others and dwelling-houses for their ministers, and school houses and other buildings for the use of the society. (2 R. S. [6th ed.], 414, § 12.)

This section, as it was framed and has since been construed and applied, subjects the temporal affairs of a religious corporation to the control and the management of its trustees. • By the act of 1863 the temporal affairs of thi.s society were vested in a board of five trustees, of whom the Boman Catholic archbishop, or bishop of the diocese, should be one, the vicar-general of the diocese another and the pastor of the church for the time being a third, and these three were empowered to select and appoint two laymen, who were members of the church, as the other two trustees. It was to this board of five trustees that the management of the property and temporal affairs of the society was given, and neither of the instruments upon which, the judgment was recovered was made by this board, neither was it shown that the board of trustees authorized in any form the making or delivery of either of them. The three persons subscribing the instruments were members of the board of trustees of the society, but did not profess to act as the board in executing or delivering the certificates or notes. But one of them subscribed his name as president, the second as secretary and the third as treasurer and pastor of the church. This act of subscribing and delivering the instruments may be construed as carrying with it an assertion that they had been authorized so to do, and acted on behalf of the board of trustees. But that is not evidence that the-authority to make or deliver these instruments liad by the board been conferred upon them, for an agent cannot prove his authority to act on behalf of a board by his own assertion that such authority has been acquired by him. (Whart. on Agency, etc., § 163; Marvin v. Wilbur, 52 N. Y., 270, 273.) And the same rule applies to officers acting on behalf of a corporation, where the existence of the office itself does not include the possession and exercise -of the authority, as it has been frequently held to do in the case of the cashier or teller of a bank. The fact that one of these persons may have been the president, another the secretary and the other the treasurer of the board of trustees, did not vest them, or either of them, with the power to bind the society or corporation by the execution or delivery of these instruments. In Packard v. Universalist, etc., Society (10 Metc., 427) this principle was considered in its application to the powers of the treasurer of a religious corporation, and it was held that “ there is nothing in the nature of the business to be done, or the duties which devolve upon the treasurer of such corporations, that can require or justify the giving of negotiable instruments binding the society without being authorized by a special vote to that effect.” (Id., 430.) And the principle is a general one, where the power exercised does not necessarily vest in the office, that the agent or officer professing to act for a corporation must be shown to have authority so to act before what he does will be binding upon the corporation itself. This subject was considered in McCollough v. Moss (5 Denio, 567), and it was held by the court of errors that the authority of an agent to act on behalf of a corporation must first be established before his acts can be legally binding upon that body. And this rule was followed in Adriance v. Roome (52 Barb., 399) and Dabney v. Stevens (10 How., 311), where it was said in the opinion, considering the powers of the officers of a manufacturing corporation, that “ neither the president, therefore, nor the secretary, nor both combined, possess the power to bind the company by making the drafts in. question or negotiating with the plaintiffs for their acceptance, except upon proof that the board of trustees had conferred either a general authority to borrow on the company’s credit upon them or either of them, or a particular authority in respect to the drafts in question, or that the conduct of the company was such as to create a well founded belief in the plaintiffs that such general or special power had been delegated, or that the acts of said agents, although unauthorized, were subsequently ratified by the board of trustees.” (Id., 347.) And to the like effect is Corn Exchange Bank v. Coal Company (1 Bosw., 436), and Marine Bank v. Clements (3 id., 600). There was no evidence upon the trial in this action to bring the case within this general legal principle. It was not shown that the board of trustees had ever in any form considered or acted upon the question whether the notes or certificates should be given. Nor was it proved that any of the money mentioned in them had ever been received by the corporation or that it had in any form ratified or confirmed the act by which the notes or certificates were given. The fact that the three persons subscribing the instruments were a majority of the board of trustees, will not sustain the judgment. For they did not act as a board in executing and delivering the instruments, but they were subscribed by them individually and separately without, so far as appears by the case, any concurrent action whatever. And that they clearly had no authority to do. For the power given to the trustees was vested in them as a board, and to exercise it the law required that they should meet and act together or that the minority should have received notice of the meeting and failed to attend. For the statute has provided when the powers of a corporation are directed by its charter to be exercised by any particular body or number of persons, a majority thereof, where the authority may not otherwise be provided, shall be sufficient to form a board for the transaction of business, and every decision of a majority of the persons duly assembled as a board shall be valid as a corporate act. (2 R. S. [6th ed.], 391, § 6.) And whenever any power, authority or duty is confided by law to three or more persons, and whenever three or more are authorized or required by law to perform any act, such act may be done and the power, authority or duty exercised and performed by a majority upon the meeting of all the persons or officers so intrusted or empowered, unless special provision is otherwise made, and whenever the duty has been or shall be enjoined by law upon three or more persons or officers, and one of them shall have died or have become mentally incapacitated, or shall refuse or neglect to attend a meeting of such persons upon reasonable personal notice, there the action of a majority of the whole number appointed shall be binding and effective. (3 R. S. [6th ed.], 862, § 29.) These statutes require where .legal power and authority has been vested in a corporate board that it shall be exei’cised by them as a board and not as individuals. For that purpose they must meet together, deliberate and determine the propriety of the act afterwards performed. Upon this subject it has been said that when a statute covers the whole subject and prescribes the persons who may bind a corporate body, and the manner in which they may "bind it, resort cannot be had to other instrumentalities. The designation of certain agents and methods for the doing of an act implies a prohibition of any others. (Landers v. Frank Street, etc., Church, 97 N. Y., 119, 124; First Nat. Bank v. Ocean Nat. Bank, 60 id., 278, 287.) And this rule was followed and maintained in McCullough v. Moss (supra), where it was said, in the opinion of Senator Lott, that the affairs of the corporation then before the court were to be conducted by five directors, a majority of whom formed a board for the transaction of business, and the decision of a majority of those duly assembled as a board was requisite to making a valid corporate act (Id., 575), and it was applied directly to the case of a religions corporation in Cammeyer v. United, etc, Churches (2 Sandf. Ch., 186), where it was held by the vice-chancellor that a the trustees in this case are by the charter the select class or body which is to exercise the corporate functions. In order to exercise them they must meet as a board so that they may hear each other’s views, deliberate and then decide. Their separate action individually without consultation, although a majority in number should agree Upon a certain act, would not be the act of the constituted body of men clothed with the corporate powers.” (Id., 229.) The same point was considered by Daly, Ch. J., in Constant v. Rector, etc. (4 Daly, 305, 307), where the law was stated in the same manner and received the sanction and approval of the court.

No such action was taken by the trustees of the defendant concerning the making and delivery of these notes or certificates, but as the case was left by the evidence their execution and delivery was no more than that of the separate and individual acts of the-three persons whose names were subscribed to them, and that failed to create obligations binding upon the defendant.

It has been supposed that what was said by the court in the- decision of Kent v. Quick Silver Mining Company (78 N. Y., 159), and in a large number of other authorities cited in support of the judgment, has sanctioned a different rule. But what was said in the opinion of the court in the case just referred to related to acts of the corporation itself, and not, as in this case, to those which were the-acts of individual officers, as distinguished from the action of tile-board entitled to represent and bind the corporation.

The cases which have been so industriously collected and cited have all been examined without finding any one in conflict with the legal principle applied to the disposition of this controversy. And this principle is further supported by Cattron v. Universalist Society, (46 Iowa, 106). As the facts of the case were proven at the trial no liability was established against the defendant for the payment of these notes or certificates, even though it be assumed, as probably it may be, that in a proper case-, for the indebtedness of a religious corporation, the trustees acting as a board properly organized for that purpose would be authorized to- empower its officers to execute and deliver in its behalf' instruments of this description. (Episcopal, etc., Society v. Episcopal Church, etc., 1 Pick., 372; 1 Pars. on Notes, etc., 164, 165.)

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

Davis, P. J., and Brady, J.,. concurred.

Judgment reversed, new trial) ordered, costs to abide event.


text:
    HENRY S. BILLINGE and VICTORY E. WETMORE, Respondents, v. ROZEL F. PICKERT and HATTIE E. PICKERT, Appellants.

      Discharge under the two-thirds act — Code of Oivil Procedure, see. 2165 — the provisions of the statute as to the manner of service must be strictly complied with — when parrot evidence to show that the court acquired jurisdiction will not be received.

    In an action to recover the price of goods sold to the defendants, the latter pleaded a discharge under the provisions of the Code of Oivil Procedure, replacing what was known as the two-thirds act. The plaintiff contested the validity of the discharge upon the ground that it appeared from the order of discharge that the order made by the County Court was, by its terms, to be served upon each of the creditors residing within the United States, by delivery of a copy of said order at least twenty days before the twenty-third day of July, then next, personally, or by depositing said copy at least forty days before that day in the post office, inclosed in a post-paid wrapper addressed to the creditor at “his. place of business,” instead of at “ his usual place of residence,” as required by subdivision 2 of section 2165 of the Code of Civil Procedure, and that it appeared that the order in this case was served by depositing it addressed to the plaintiff at his place of business instead of his usual place of residence, and that the proof presented to the court showed that it had been so served.

      Held, that as the service was not made in the manner prescribed by the statute, the court did not acquire jurisdiction to grant the discharge.
    The defendant offered to show that he served the order on the plaintiffs, person. ally, at their place of business and residence twenty days before the return day.

      ITeU, that the court properly refused to receive the evidence, as where the record fails to show that the court acquired jurisdiction of the person, it cannot be shown by parol evidence that it did in fact obtain jurisdiction.
    Appeal from a judgment in favor of the plaintiffs, entered upon a verdict directed by the court.

      Abram Walceman, for tbe appellants.
    IF. P. 8. Melvin, for the respondents.
   Davis, P. J.:

This action was brought for goods sold'by tbe plaintiffs to the ■defendants between tbe 11th of November, 1873,.and the 18th of April, 1879. On the trial it was admitted by stipulation that tbe defendants, as copartners under tbe name of Pickert & Co., bought from tbe plaintiffs, as copartners under the name of Billings & Wet-more, from and including November 11, 1878, down to and including April 18, 1879, goods, wares and merchandise of the value of ¡B2,116.89, and that that sum became due and payable on the 1st of May, 1879, and that no part has been paid. The defense was a discharge under the provisions of the Code of Civil Procedure which have taken the place of the provisions of the Revised Statutes familiarly known as the two-thirds act. The proceedings for the discharge were had in the County Court of the county of Herkimer, in this State, and are quite fully set forth in the answers of the defendant.

On the trial the plaintiffs’, counsel moved the court to direct a verdict for the plaintiffs, on the ground that the record of discharge recited in the order showed that the order made by the County Court was required by its terms to be served upon each of the creditors of the said defendants residing within the United States, by delivery of a copy of said order at least twenty days before the twenty-third day of July then next, personally, or by depositing said copy at least forty days before that day in the post-office, inclosed in a postpaid wrapper addressed to the creditor at his place. of business. That by section 2165 of the Civil Code of Procedure, subdivision 2, it is required that said order, when served other than personally, shall be so served by depositing it at least forty days before the return day in the post-office, inclosed in a post-paid wrapper addressed to the creditor at his usual place of residence. That by the terms of the answer it was averred that such order thus duly inclosed and post-paid was addressed to the creditor’s place of business instead of his usual place of residence, and that the answer also alleged that the proof presented to the court set forth that the order was served at least forty days before the twenty-third day of July, 1883, by depositing it in the post-office, inclosed in a postpaid wrapper addressed to the creditor “ at his place of business.”

A reference to subdivision 2 of section 2165 of the Code shows that the copy of the order when served by mail must be addressed to the creditor, at his usual place of residence. The question thus presented to the court was whether the County Court of Herkimer acquired jurisdiction to adjudge the discharge by proof of service by mail, in conformity to the directions of the order of that court by depositing the notice in the post-office addressed to the creditor at his place of business. On motion of the defendant, an amendment of the answer was allowed by inserting therein that defendant served a copy of the order on the plaintiffs personally at their place of business and residence, twenty days before the return day thereof,” and under such amendment the defendant offered to prove that he made such personal service upon plaintiff. This evidence was objected to. and excluded by the court, and the defendant’s counsel duly excepted. The plaintiffs did not appear in the proceedings, and there was nothing upon the face of the record to show that service was made in the form prescribed by the Code. By excluding the offer to prove personal service, the court held that the defect in the record could not be cured by such proof.

We are of opinion that the rulings of the court in excluding the evidence and directing the verdict were correct. The question was a jurisdictional one, and it has been held that where the record fails to show that the court acquired jurisdiction of the person, it cannot be shown by parol evidence that it did in fact obtain jurisdiction. (Noyes v. Butler, 6 Barb., 53.) It was essential that the record should show how the order to show cause was served. This requirement was sought to be complied with by showing that the order to show cause was served by mail directed to the place of business of tlie plaintiffs. The law required it to be directed to the usual place of residence. The place of business and the usual place of residence may be, and often are, identical, but they are not necessarily so, and where the statute expressly requires that service shall be directed to the latter in order to confer jurisdiction, courts cannot hold that service by directing to the former is a compliance with the statute. We are of opinion that the ruling of the court" upon this question was correct, and that the judgment upon that ground must be affirmed. Other defects in the proceedings apparently fatal are now urged which were not suggested on the trial. But it is not necessary that we should pass upon them now, inasmuch as we regard the point upon which the court below passed as fatal.

The judgment should be affirmed.

Daniels, J., concurred; Brady, J., dissented.

J udgment affirmed.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ROBERT KOPP, STEPHEN B. FRENCH and Others, v. BOARD OF POLICE COMMISSIONERS OF THE CITY OF NEW YORK, Respondent.

      Public, intoxication — when a ' ‘ crime ” within the meaning of that term, as used in the statute, 1883, chap. 410, sec. 268.
    A person who has been arrested, convicted and fined for a violation of section 17 of chapter 628 of 1857, as amended by chapter 856 of 1889, in that he has been found intoxicated in a public place, has ‘ ‘ been convicted of a crime,” within the meaning of that. term, as used in section 268 of chapter 410 of 1882, and is thereby disqualified from continuing to be a member of the police force of the city of New York.
    Ceetioeaei to review the proceedings of the respondent in removing the relator from the position of policeman in the city of New York, on the ground that he had “been convicted of a crime” within the meaning of section 26S of chapter 410 of 1882.

      John IS. Burke, for the appellant.

      D. J. Dean, for the respondent.
   Davis, P. J.:

The relator was appointed July 16, 1883, a patrolman of the police force of the city of New York. He continued in that office performing its duties until the 30th day of October, 1885, when by a resolution of the board his name was stricken from the roll of the police department and force, and the superintendent was directed to issue the necessary order for the return of his shield and manual, and not to allow him to perform any further duty as a patrolman. This action was taken wholly upon the ground that he was ineligible to continue to hold office, because he was on the 13th of April, 1880, convicted of intoxication in the Second District Police Court of the city. No written charges were preferred against the relator, but a resolution was passed by the board in the following form :

“ Resolved, That patrolman Robert Kopp, Twenty-second Precinct, be directed to appear before this board on the thirtieth inst. at 12 m., and that the attendance of Knox McAfee, clerk Second District Police Court, be requested.” A copy of this resolution was not served on the relator, but lie was informed by another officer that the board required his appearance and on the thirtieth of October he appeared in person accompanied by his counsel. It was then stated to him that the attention of the board had been called to a statement in which “ it was alleged that officer Kopp, at the time that he was appointed a member of this force, of the police force, had been guilty and had been so pronounced by a court of a crime which, if such'was the fact, made him ineligible for appointment at the time he was made a member of the force; ” and that he had been summoned before the board for the purpose of making inquiry in regard to that and ascertaining the facts. No objection was made by the relator that he had not- had proper and sufficient notice of the charge to be investigated, and it was undoubtedly understood what was the subject-matter of the investigation because he appeared by counsel as well as in person, and the counsel before any evidence was taken stated as follows:

If your honors please, I appear for the defendant, and we have to say this, that although we admit there that the officer had been arrested and fined in a police court, we now contend that there has never been a conviction of any crime. The defendant was called and examined, and he in substance admitted that he had been arrested for intoxication, taken before Mr. Justice Otterbourg, a police magistrate and by him fined five dollars, for the alleged offense on the 12th of April, 1880; that in his application, in answer to the question contained therein, “ have you ever been arrested for or convicted of any crime ? ” his answer was, “ not to my knowledge; ” that he did not consider that a crime, and that the idea that it was a crime never entered his head when he was signing that answer. The minutes of the police court were put in evidence amongst other things, showing that James Gumming, an officer of the Twenty-fifth Police Precinct, arrested Robert Kopp in a state of intoxication in a public place, and that Kopp was then on Broadway unable to take care of himself ; that the statement of Kopp before the magistrate in substance admitted the offense charged and that thereupon he was fined five dollars by the police justice. The evidence sufficiently showed that he was convicted of the alleged offense. It is of no importance that the deposition or affidavit of the officer was not subscribed by him. It appears that it was sworn to before the police justice and the proceedings and the evidence were sufficient to confer jurisdiction upon the magistrate.

The first question raised by the relator’s counsel, is that the relator should not have been removed from his position as a police officer without written charges having been preferred against him. The answer is, there are no charges of offenses committed by the relator as a police officer, but an allegation of ineligibilty to be appointed. Of this allegation he had notice and appears without objecting to any want of notice and a full hearing and investigation was had.

The second point urged by the counsel is that simple intoxica- * tion is not included in the meaning of the word crime, as used in the statute, which disqualifies a person convicted of any crime for membership in the police force. And the third point presented is that there was no competent evidence before the board to show a conviction. The evidence we think was abundant to show a conviction. The record of the police court established it, and besides it was conceded that he was arrested on a charge of intoxication in a public place and taken before a police magistrate and after examination fined five dollars for the offense.

The second question, however, is not so easily disposed of. We are not at all aided by the definition of the word “ crime ” given in the Penal Code, because the Penal Code was not enacted until 1881, and the offense of the relator was committed, and the conviction therefor, occurred in 1880. The offense for which the relator was arrested, is defined and declared by section 17 of the excise laws (chap. 628 of 1857), as amended by chapter 856 of the Laws of 1869. That act declares it to be the duty of every officer whenever he shall find a person intoxicated in any public place, to apprehend such person and take him before some police magistrate, whose duty it shall be to try him for such offense, and upon his conviction by the magistrate of such offense it is declared that such person shall be fined not less than three nor more than ten dollars in the discretion of the magistrate trying him, and provision is made for his imprisonment in case the fine be not paid. The section then proceeds: “The offense of intoxication in any public place being hereby declared an offense against the provisions of this act and punishable as above provided, it shall be the duties of such officers to arrest, or cause to be arrested, all such persons when so intoxicated, and of the magistrate to entertain such complaints and make such examination under the penalty of fifty dollars, with full costs of suit for any neglect to comply with the provisions of this section.” This provision did not when first enacted apply to the Metropolitan police district, but by the Laws of 1S70 (chap. 175), the provisions of the act of 1857 were applied to the whole State. The relator was, therefore, rightly arrested for the offense of intoxication and convicted and fined by the police magistrate.

It can hardly be doubted but that the relator, when in his application he stated that he had not been convicted of any crime, did not suppose that the offense of intoxication was a crime. That would be the general understanding of people not familiar with legal phrases and their significance. Nevertheless it seems impossible to avoid holding that he had in fact been convicted of a crime as that word is used and defined by the laws of the State. On looking into the statutes it will be found that the words “offense” and “crime” are used as synonyms indiscriminately, as meaning the same thing. The statute under which he was arrested declares intoxication in a public place to be an offense and prescribes the punishment that may be imposed therefor. And if we look at the definition as given by the Revised Statutes, we find it declared that the terms-crime or offense when used in the statute “shall be construed to mean any offense for which any criminal punishment may by law be inflicted.” (3 R. S. [Banks’ 7th ed.], 2539, § 32.) ¥e are forced, therefore, to the conclusion that the relator at the time of his appointment was ineligible to the office because he had been convicted of a crime, and by the express terms of the statute no person who has been so convicted can “ continue to hold membership ” in the police force. After the conviction was established to the satisfaction of the board it was their duty to revoke his appointment and to declare him no longer a member of the police force.

The proceedings must therefore be affirmed, but under the circumstances without costs.

Bjrady and Daniels, JJ., concurred.

Proceedings affirmed, without costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM MURRAY, Superintendent, etc., and Others, Trustees of the Police Relief Fund, Respondents, v. JOHN McCLAVE, Treasurer of the Police Board, Appellant.

      Relieffund for police department — members of the police force are not compelled to contribute to it —1885, chap. 486.
    In passing chapter 486 of 1885, entitled “ An act to create a relief fund in tlie police department in all cities in this State having, according to the last census, a population exceeding one million,” it was not the intention of the legislature to compel the members of the police force, against their own will, to contribute to and become beneficiaries of the fund created by the act, but it intended to leave it wholly to each one to determine for himself whether or not he desired to avail himself thereof.
    Appeal from an order of the Special Term granting a peremptory mandamus, directing the respondent to deduct two dollars from the pay of members of the police force in the city of New York and to pay the same to the trustees of the pension fund.

      D. J. Dean, for the appellant.

      E. M. Shepard, for the respondents.
   Davis, P. J.:

Two questions are raised upon this appeal. The first relates to the construction of chapter 486 of the Laws of 1885, entitled, “ An act to create a relief fund in the police department in all cities in this State having, according to the last census, a population exceeding one million.” And the second is as to the constitutionality of that act. The question of construction is raised to determine whether the relief fund created by the act is to be constituted, so far as it affects members of the police force, by a deduction of two dollars per month from the pay of each member of such force, without regard to his willingness or unwillingness to avail himself of the privileges and provisions of the act. The second section of the act is in these words:

Section 2. The police relief fund shall consist of a sum of money equal to two dollars per month for each member of the police force of said department, and also for each member or employee of said department other than the said police force who shall desire to avail himself of the privileges and provisions of this act, and also for members of the Police Mutual Aid Association of said department who, at the time of the passage of this act, are in good standing therein, and ■who shall desire to contribute to the said fund, to be paid monthly by the treasurer of the board of police or commissioners of police of said department to the treasurer of the board of trustees of the police relief fund created by this act, from moneys deducted from the pay of such members of said force or .members and employees of said department, and the treasurer of the board of police or commissioner of police of said department is hereby authorized and directed to make such deduction from the pay of the members of said police force, as herein provided.”

The point is whether the words “ who shall desire to avail himself of the privileges and provisions of this act” relate to and qualify the words “ each member of the police force of said department,” as well as the words “ each member or employee of said department other than said police force,” or are limited altogether to the latter.

A careful study of section 2 in connection with section 4 and a consideration of the general scheme of the act have convinced us that it was the clear intention of the legislature to create only a voluntary fund, to be made up only by persons who desired to avail themselves of. the privileges and provisions of the act, and that the power given to the treasurer of the board of police or of the commissioners of police of said department to deduct from the pay of members of the police force is limited to such members as shall desire to avail themselves of the benefits of the act, or, in other words, that the provisions of the act, in this respect are altogether voluntary and in no sense compulsory. It was we think the manifest intention of the legislature not to compel the members of the police force against their own will to become beneficiaries of the fund created, but to leave it wholly to each one to determine for himself whether or not he desires to avail himself thereof. This is shown not only by the language used but by the punctuation adopted. The insertion of the comma after the words “ police force,” as used in the second section, operates to make the intent more manifest by carrying back the qualifying words to the first branch of the section as well as to the second, and thereby subjecting both to the limitation of the phrase who shall desire to avail himself of the privileges and provisions of the act.” And this, as it seems to us, is made more clear by the provisions of section 4 touching the distribution of the fund. It is by that section provided that upon the death of any member of the police force of said depai-tment, or member or employee thereof, other than the said police force, contributing to the said fund, or of any person heretofore a member or employee and so contributing, there shall be paid b.y the trustees of said fund to the person or persons designated in writing by such member, employee or person so contributing thereto,” etc.

Here we think is manifested with great plainness the intention of the legislature to confer the benefits of the fund only upon such officers or other persons as contribute thereto, and the language used would seem to indicate a voluntary rather than a compulsory contribution. It is not an answer to this construction to say that no act of the legislature was necessary if the fund was to be created only by those who desired to avail themselves of its benefits, because the assertion is not well founded. It required an act of the legislature to constitute the superintendent of police and the inspectors of police of the police department and their successors in office a board of trustees of the fund as provided by the act, and to authorize them to do the several things pointed out for the administration of the fund. They became a corporation by force of the act and their power and control in its administration, and the duties imposed upon them could only be created and conferred by the legislature. This construction we think is not only in accordance with the legislative intent, and the more natural one of the language used, but it is essential to obviate serious questions touching the validity of the act which might under another construction be raised. Those questions are very fully discussed by the court below in the opinion delivered, but our construction of the act renders it unnecessary to consider them. The construction we give unquestionably makes the act a valid one and creates a board with ample power to take charge of and use the fund for the benefit of those who desire to enjoy its advantages without trenching in any way upon the legal or constitutional rights of others.

We think the order should be reversed, and the writ of mandamus denied, but without costs.

Brady and Daniels, JJ., concurred.

Order reversed and mandamus denied, without costs.


author: 'Davis, P. J.:

text:
    GEORGE ABEEL and Others, Appellants, v. JOHN J. ANDERSON. JAMES S. ALLEN, Assignee of JOHN J. ANDERSON, Respondent.

      Lien under an execution — when it does not attach until a levy is made.

    'The plaintiff recovered a judgment against the defendant and issued an execution thereon on October 1, 1884. On October eighth the defendant made a general assignment for the benefit of creditors to one Alien. Prior to the execution of the assignment the sheriff had made a demand for payment but had ma¡je no levy. Thereafter the execution was returned unsatisfied, and in supplementary proceedings instituted by the plaintiff a receiver of the property of the defendant was appointed.

      Held, that the plaintiff had no lien upon the property of the defendant at the time of the assignment, and that a motion to compel the assignee to pay the .amouut of the judgment from the assigned property was properly denied.
    Appeal from an order made at a Special Term denying a motion ■to compel James S. Allen, as assignee of tlie defendant John J. Anderson, to pay the plaintiffs’ judgment recovered against Anderson.

      E. S. Hatch, for the appellants.

      D. Niooll, for the respondent.
   'Davis, P. J.:

The plaintiffs in this action recovered their judgment against the ■defendant John J. Anderson, and issued execution thereon on the 1st of October, 1884. On the 8th of October, 1884, the defendant ■made a general assignment for the benefit of creditors to James L. Allen, the respondent on this appeal. The plaintiffs claim that -their judgment and execution was a lien upon the property of the defendant prior to such general assignment. No levy had been made of the execution before the assignment, but a demand for payment of the execution was made by the sheriff prior to the making of the assignment, and thereafter the execution was returned unsatisfied. Proceedings supplementary to execution were had, and one Henry A. Wheeler was appointed receiver of the property of the defendant. The receiver duly qualified.

The question presented is whether the demand made by the sheriff of payment of the execution operated to give him such a lien upon the property of the defendant as entities' the plaintiffs to the remedy they now seek. The court below held that no lien was. acquired.

Section 1405 of the Code of Civil Procedure provides that the goods and chattels of the judgment debtor situated within the jurisdiction of the officer, are bound by the execution from the time of its delivery to the officer to be executed.

This relates, however, to only such property as can be levied upon and sold by the sheriff, and there must be an actual levy during the life of the execution, otherwise the lien of the execution is lost. (Hathaway v. Howell, 54 N. Y., 97; Walker v. Henry, 85 id., 134.) In this case there was no lien upon any property. The execution was returned unsatisfied, and a receiver in supplementary proceedings was thereafter appointed, who duly qualified. If Allen, the assignee of the judgment debtor, did not take title to. the assigned property, then the receiver appointed in the supplementary proceedings was vested with such title. But the validity of the assignment in this case is not attacked. It is simply asserted that the judgment and execution and the demand of payment made upon the defendant under the execution in its lifetime created a lien which can be enforced under sections 2436,-2447 of the Code.

We are of opinion, as was the court at Special Term, that no such lien was created by the demand, and that the title of the assigned property vested in the assignee Allen, and so far as any facts are developed in this case, can only be reached and affected by the plaintiffs as judgment creditors by an action begun either by themselves or the receiver to set aside the assignment upon grounds affecting its validity.

But whatever may be the remedy that exists, it is quite clear to us that under the provisions of the Code the court had no power to order the application of the property, or its proceeds in the hands of the assignee, upon the judgment of the plaintiffs for its payment.

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

Brady and Daniels, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    THE NEW YORK LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant, v. GEORGE W. CARHART and CLARENCE A. BLANCHARD, Respondents, Impleaded with Others.

      Practice — stay of proceedings on appeal — when an alloioance of a counter-claim in behalf of a defendant, will be treated as a judgment recovered by him against the plaintiff.

    In an action brought by the plaintiff to recover freight money, collected by the defendant Carhart, as its agent, and by him deposited with the defendant, the New York Produce and Exchange Bank, an injunction was granted restraining the withdrawal of the moneys on deposit in the bank, during the pendency of the action. The referee before whom the action was tried, found that the moneys collected belonged to the plaintiff, but allowed items in the defend ant’s account, which were disputed by the plaintiff, amounting to about $4,000, and awarded him damages for a breach of a contract, alleged to have been made between the parties, to the amount of some $6,000, thereby reducing the amount of the plaintiff’s recovery to some $7,000 or $8,000, which was directed to be paid out of the funds on deposit in the bank.
    The plaintiff who desired to appeal from that portion of the referee’s report, which allowed the said items and the counter-claim of the defendant, moved, upon the ground of Carhart’s irresponsibility, for an order appointing a receiver of the fund or for its payment into court, or for a continuance of the injunction during the pendency of the appeal.

      Held, that the court properly refused to grant the relief sought, but that it should have granted an order directing that on the appeal the recovery of the counterclaim and of the $4,000 of disputed items, should be treated as a judgment in Carhart’s favor, the collection or enforcement of which might be stayed during the pendency of the appeal on the execution of an appropriate bond as upon a judgment against the plaintiff for the amount, with interest and damages, and costs if the judgment be affirmed.

      Appeals from two orders of the Special Term. One denying the continuance of the injunction heretofore granted in this action, the other denying a motion for the appointment of a receiver of the fund now in bank, or the deposit of the same in court, etc.
    IK IK. McFarland, for the appellant.

      G. Bainbridge Smith, for the respondents.
   Davis, P. J.:

This case is a peculiar one in the facts and circumstances. The defendant Oarliart was an agent of plaintiff, and as such received certain freight moneys for plaintiff, which were by him deposited in the defendant, the New York Produce and Exchange Bank, to the credit of the defendants Carhart & Blanchard, who were partners in business. The action was brought to compel Carhart, as plaintiff’s agent, to account for and pay over the freight moneys collected and received by him, and an injunction was obtained restraining the withdrawal of the moneys on deposit in said bank. The issues joined in the action were referred. It was not disputed on the trial but that the money on deposit was collected by Carhart, as agent, and deposited as alleged, but it was insisted that Carhart was entitled to divers credits against the fund, and that he had a claim against the plaintiff upon a breach of contract for his employment by plaintiff as its agent for one year, which he set up by way of counter-claim against the demand for said moneys.

On the trial, the referee, in taking and stating the account, as it is claimed by plaintiff, improperly allowed, items in favor of Carhart amounting to some $4,000, which reduced the balance due plaintiff upon the accounting, to about the sum of $13,000. The referee also found that the alleged contract for Carhart’s employment had been broken by plaintiff to the damage of Carhart in some $6,000, which he was entitled to recover as a counter-claim against the balance of moneys owing by him as agent, and thereupon reduced plaintiff’s recovery on the accounting to a sum between seven and eight thousand dollars, which he directed paid out of the funds in bank, as aforesaid.

The plaintiff, deeming the rulings and findings of the referee as to the deduction of the $4,000 and the recovery of their counterclaim erroneous, desire to appeal; but as upon entering judgment on the report of the referee the injunction, except as to the amount of the balance it is entitled to under the report, will terminate, and as it alleges Carhart not to be responsible if the residue of the moneys are withdrawn, it asks either for a receiver or for the payment of the fund into court, or for a continuance of the injunction in such form that if it succeeds upon the appeal and establishes its right to the whole, or a greater amount than has been allowed it by the referee out of the funds collected and deposited by its agent, it may be secure of its final recovery.

The case is an anomalous one and calls for some form of equitable relief. The admissions on all hands that some $19,000 of the money in bank consist of plaintiff’s money collected by Carhart as .its agent, and that the substantive litigation is over the claim of some $4,000 allowed by the referee as proper credits in Carhart’s favor, and the counter-claim of damages for the alleged breach of contract. It is manifest that the effect of the judgment ought not to be to hand those sums over to Carhart while his right to them is in controversy, as the case will stand on entering judgment on the X'eferee’s report. Caidiart in substance will recover a judgment on his alleged counter-claim against plaintiff for the amount thereof as found by the referee, payable at once out of plaintiff’s money in bank, and also will be entitled to reclaim thereout some $4,000 more of credits disputed and still to be conti’overted on the appeal by plaintiff. On the entry of judgment the injunction ceases as to those amounts and Carhart can withdraw the'same, and then if plaintiff ultimately succeeds in reversing the judgment as to those items and defeating Carhart’s right to them, may ultimately cause great injustice.

Under the authorities the denial of a continuance of the present injunction after judgment may be right. A x-eceiver of the fund does not seem to be necessary because that is an expense that ought, if practicable, to be avoided, nor is it necessary to bi’ing the fund into coui’t. The proper relief to be granted, as it seems to us, will be to order that, on the appeal to be taken, the recovery of the counter-claim and of the $4,000 of alleged disputed items be treated as a judgment in Carhart’s favoi*, the collection or enforcement of which may be stayed during the pendency of the appeal on the execution of an appropriate bond as upon judgment»; against plaintiffs for the amount with interest and damages and costs, if the judgment be affirmed.

Upon the execution of such a bond, on the appeal to be taken, an order staying the payment by the bank of any of the money on deposit to the extent such moneys have been found by the referee to be sums collected by Carhart, as agent of plaintiff, should be made.

The order, of the court below denying the continuance of the injunction and the appointment of a receiver, etc., are modified accordingly, and affirmed as modified, without costs of the motions or of the appeals to either party.

Beady, J., concurred.

Order modified, as directed in opinion, and affirmed as modified, without costs to either party.