text:
    In the Matter of a Proceeding to Compel Payment of a Transfer Tax on Property Bequeathed by Henry Bronson, Deceased.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb. 21, 1896.)
    - Tax—Transfer—Bonds and stocks—Nonresident.
    Bonds and stocks of local corporations, kept at the domicile of the nonresident owner, are not within the provi-ions of chapter 399 of 1892.

      Appeal from an order of the surrogate, affirming an appraisement and determination of a transfer tax.
    Howard Mansfield, for.app'lts; Emmet R. Oleott, for resp’t
   VAN BRUNT, P. J.

The decedent, Henry Bronson, prior to his death, had his domicile in the city of New Haven, in the state of Connecticut, where he died on the 26th of November, 1893. At the time of his death he owned bonds issued "by railroad corporations incorporated under the laws of New York, and stocks of various corporations incorporated under the laws of New York. All the bonds and the certificates for all the stock in question had been, and at the time of the decedent’s death were, in his possession,.at his domicile. ‘ He left a will by which he bequeathed these bonds and stock to residents of the state of Connecticut; and all the bonds and stock in question were formally transferred, before the initiation of these proceedings, to the residuary legatees, by the executors. This proceeding was begun to compel the payment of a transfer tax on all the property in question, under the provisions of chapter. 399 of the Laws of 1892. The imposition of the tax was contested by the executors and residuary legatees on the ground that none of said bonds and stocks were properly subject to a transfer tax in the state of New York, since the bonds and certificates of stock were all at the time of decedent's death, and for some time had been, in the state of Connecticut, where the decedent had his domicile. The appraiser appointed by the surrogate to appraise the property in question, made his report, appraising the value of the stocks and bonds ; and by a subsequent order the interest of the beneficiaries was determined, and the tax fixed. From this order the executors and legatees appealed to the surrogate, and the surrogate affirmed the order fixing the tax, and from the order thereupon entered this appeal is taken.

The statute above referred to imposes a tax upon the transfer of any property, real or personal, beyond a certain value—First, when the transfer is by will, or by the intestate laws of this state, from any person dying seised or possessed of the property while a resident of the state; and, second, when the transfer is by will or intestate law, of property within the state, and the decedent was a nonresident of the state at the time of his death. The want of power of this state to tax personal property,, under the circumstances above mentioned, so far as the bonds are concerned, does not seem open to question since the decision of the United States supreme court in the Case of State Tax on Foreign-Held Bonds, 15 Wall. 300-308. It was there held that the bonds issued by a railroad company are undoubtedly property, but property in the hands of the holders, not property of the obligors, and that, so far as they are held by nonresidents of the state, they are property beyond the jurisdiction of the, state. It is urged, however, upon the part -of the respondent, that there, may be a difference between the character of property in bonds and of that in certificates of stock, and that it was held In re James, 144 N. Y. 12; 62 St. Rep. 855, that the share certificates which a testator holds represents the interest which he possesses in the corporation which issued them, and the legal situs of that species of personal property is where the corporation exists, or where the testator has his domicile. It was not necessary, in the case cited, to determine which was the legal situs of the personal property, because the testator was a native of Great Britain, and the stocks and bonds in question were stocks and bonds of foreign corporations. -The court recognized the fact that the situs of property, such as certificates of stock and bonds was not governed by the fact that such certificates and bonds were physically within this state. In that case the certificates and bonds were at the time of the death of the testator in this state; and it was held that they were not property in this state, within the meaning of the act, and could not properly be included in the testator’s estate here, for the purpose of taxation under the act. In the case of Enston’s Will, 113 N. Y. 174; 22 St. Rep. 569, this rule was recognized ; the court saying that such property as stocks, bonds, and other dioses in action, attends the owner, and has its situs at his domicile, unless there is something in the policy of the statute, or- its language, which shows a different legislative intent. In re Romaine, 127 N. Y. 80; 38 St. Rep. 76, it was held that the personal property of a nonresident, invested oi habitually kept by him in this state, is subject to taxation under the collateral inheritance tax law. In re Swift, 137 N. Y. 77; 50 St. Rep. 81, and in re Merriam’s Estate, 141 N. Y, 479; 57 St. Rep. 593, the testator was a resident of the state; and it was held that certain personal chattels without the state, in the one case, and the stocks of foreign corporations in the other case, should be included in the appraisement of the estate for the purpose of taxation; the decision in each case,” the court say in re James, above cited, of course, resting upon the theory that the legal situs of the personalty should be regarded as at the owner’s domicile.” A consideration of the rules laid down by the court in the cases cited indicates clearly that no distinction is made between the stocks of corporations and the bonds of such corporations, in respect to the rule that the domicile of the owner fixes the place of taxation where the securities are kept at the domicile of the owner.

We are of opinion, therefore, that the orders appealed from should be reversed, with costs and disbursements.

All concur.


source: Caselaw Access Project

author: O’BRIEN, J.

license: Public Domain

text:
    George Johnson, Resp’t, v. Charles R. Tyng, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb’ry 21, 1896.)

    1. Contract—Breaph—Damages.
    A party cannot recover damages for the refusal of another to perform a contract where the first breach was committed by himself.

      2. Account stated—Recovery.
    Where one seeks to recover upon an account stated and fails, he cannot select one of the items going to make up such account, and recover upon it.
    3. Same.
    Such party is not obliged to rely solely upon such a plea, but may join in the same complaint a count for the original debt,' and, in such a condition of the pleadings, should he fail upen the account stated, he can prove, if able, some or all the original debt.
    4. Same.
    But where, though he pleads in both forms, he virtually abandons, upon the trial, the original indebtedness or the count for work, labor and services, and insists upon confining the issue to an account stated, he cannot recover for any separate item therein.
    Motion for a new trial on exceptions, ordered to be heard in the first instance at the general term.
    T. M. Tyng, for the motion; J. 0. O’Conor, opposed.
   O’BRIEN, J.

The complaint set up two causes of action: (1) For work, labor, and services; and (2) upon an account stated, a copy of which account, marked “Schedule A," is annexed to the complaint, and made a part thereof, the items of which are as follows:

July 31,1884 To balance due on old account....... $331 56

April 30, 1885 “ “ “ “ April Acct....... 526 36

May 31 “ Acct. rendered for May.......... 981 59

June 30 “ “ “ “ June......... 876 20

July 31 . “ “ “ July......... 659 63

$8,372 34

The answer contained a general denial, and set up a counterclaim., The court below dismissed the counterclaim, and directed a verdict for .the plaintiff for the first item of the account, viz., balance due on old account, $331.56, with interest, to which the defendant excepted. The plaintiff also excepted to the refusal of the court to direct a verdict for the full amount claimed, which exception was subsequently withdrawn, and the case is to be determined upon the defendant’s exceptions alone.

It appears that prior to July 21, 1884, the plaintiff did certain work for the defendant, under an agreement which was abrogated, and a new one entered into, bearing date July 31,‘1884. For work under the old agreement there was an account rendered in January, 1885, upon which there is a balance unpaid of $331.56. The new agreement provided, among other things, that the plaintiff should manufacture steel for and upon the order of the defendant and for his account, and deliver the same to him, and that plaintiff would execute defendant’s orders within the shortest time possible, and give to defendant the exclusive sale of all goods made by him; that the defendant should pay the plaintiff for all work done by him the. amount due to him for each month’s work within sixty days from the date of each monthly account; that any time lost by plaintiff in making repairs or alterations, or through any failure on his part, should not be considered as part of said time; and that, if defendant should fail to make the payments as above provided, the agreement should, on ten days’ personal notice, be null and void. The defendant’s counterclaim is that, without cause, and without default on the part of the defendant, the plaintiff failed and refused to keep and peform said agreement, to the defendant’s damage $10,000.

There are two questions presented for decision: (1) Did the oourt below err in directing a verdict for the balance remaining unpaid on the old account ? The defendant’s claim is that the action being upon an account stated, and this balance being included as one of the items therein, no recovery can be had for such separate item. (2) Did the court err in dismissing defendant’s counterclaim ? The plaintiff’s account rendered for the month 'of April, 1885, remaining unpaid' on July 28, 1885, and more than sixty days having elapsed, plaintiff notified the defendant in writing that, unless the April account was paid in ten days, the agreement would -be null and void. The defendant testified that he had not done anything towards fulfilling his part of the agreement after the 25th of July, 1885. It appears that, on a former trial of this case, the plaintiff testified that on July 25, 1885, he stopped all work under the agreement, and never thereafter resumed work thereunder. Upon this trial he explains this by saying that, when he testified he “ stopped all work,” he then had reference to rolling alone, but that his men were at different kinds of work in the mill, repairing, pickling, etc., the entire ten days during which the notice declaring the contract null and void was running. It will thus be seen that with this explanation in the case, if it were material to determine whether, upon defendant’s breach by failure to pay, plaintiff was precluded, as well held upon the former appeal (58 Hun, 501, 35 St. Rep. 570,) from recovering, because, as then appeared by the testimony, he had abandoned work, and had thus himself been guilty of breach, this, under the altered testimony, would have been a question of fact. No suggestion, however, was made by the plaintiff to go to the jury, but a request was made for a direction for the whole amount. This, we think, was properly denied, because—First, as stated, it was, at best, but a question of fact; and, secondly, because the plaintiff, relying on an account stated which he had failed to prove, was not entitled to such direction. Any error in this respect, however, is not directly presented, but we deem it necessary to call attention to the difference in the facts appearing upon this trial and those which appeared upon the former, as, upon a new trial and upon proper issues, they would have a bearing upon plaintiff’s right to recover the entire amount.

With respect to a counterclaim based upon a breach of the agreement by plaintiffs, we think it was properly dismissed, because, even if plaintiff was guilty of a breach, the defendant proved no damage resulting therefrom, and for the weightier reason that we think the evidence shows that the first breach was committed by the defendant in refusing to make payments in accordance with the terms of the contract.

This brings us to a consideration of the exception taken to the . direction of a verdict for the first item of the account. We can find no authority, nor do we think it consistent with good pleading, where one seeks to recover upon an account stated and fails, to permit him to select one of the items going to make up such account, and recover upon it. Upon the issue of an account stated, the items going to make it up aré not involved, nor is the one against whom it is charged bound to come prepared upon the trial to dispute each and every item going to make up an alleged account stated. If a pleader relies solely upon such a cause of action or defense, he must prove it as alleged, or fail in the action. He is not. however,.obliged to rely solely upon such a plea, but he may join in the same complaint a count for the original debt; and in such a condition of the pleadings, should he fail upon the account stated, he could prove, if able, some or all of the original debt. This follows because then the opposite party has notice that, upon failure to support the plea of an account stated, resort would be had to the original items.

The rule, 'we think, is well stated in the case of Goings v. Patten, 17 Abb. Prac. 340:

' “A party may fail to establish the stating of an account, but that does not cut him off from any defense he may have upon the unsettled account. * * * It admits the existence of a prior running account; and because a party relies upon the defense that it was mutually adjusted, and the balance ascertained and fixed, and fails to prove it, he is not thereby precluded from falling back upon the accounts, and showing that there is in fact a claim or balance due to him. He would,- undoubtedly, be precluded from doing so if his pleading were so framed as to show that he relied solely upon the defense of an account stated, for, that being made the sole issue, the other party might come unprepared to try any other. But a party, might also join with an account stated a count for the original debt; and, if he failed upon the one, he might recover upon the other [unless compelled to elect].”

It will be noticed that the complaint here adopts both forms of pleading to recover for the same indebtedness, alleging, as a first cause of action, work, labor, and services, and, second, an account stated. Having failed on the latter, if the plaintiff had then, by proper evidence, supported the original indebtedness, he could have recovered, upon his count for work, labor, and services, so much of the amount as he could by competent proof es- • tablish. The difficulty in this case, however, is that, while he ' pleaded in both forms, upon the trial he virtually abandoned the original indebtedness, or the count for work, labor, and services, and insisted upon confining the issue to an account stated ; and he succeeded in having the court do likewise, for, upon defendant’s attempting to introduce a defense to this item as an original ndebtedness, he was met by the objection that it was incompetent, and the court, in sustaining the objection, said:

“ I hold that,- in order to justify the defendant going back to the original consideration of that amount of $331.56, it is necessary that the answer should specifically allege that that account was a mistake, and there was nothing due under it, and that there was a breach of the agreement; and, not having done so, the defendant cannot prove it.”

It will thus be seen that that item was regarded as though, of itself, it constituted an account stated ; and the proof of it was not offered as an original indebtedness, nor was the defendant permitted to meet as such.

We are therefore brought back to a consideration of the question whether, the action as tried being on án account stated, there can be any recovery for any separate item therein. We think the answer to this must be in the negative. What was claimed to be an account stated was Schedule A in its entirety; and, if that had been sustained by competent proof, the verdict, under the pleadings, should have been for the entiie amount thereof. As it must be conceded that it was not sustained, there can be no recovery for any of its separate items.

Our conclusion, therefore, is that this exception is good, and that the judgment must be reversed; and a new trial ordered, with costs to the appellant to abide the event.

All concur.


author: GREEN, J.

text:
    Joseph B. Reger, as Administrator, etc., Resp’t, v. Rochester Railway Company, App’lt.

      (Supreme Court, Appellate Division, Fourth Department,

      Filed Feb’ry 7, 1896.)

    1. Damages—Vebdict—Setting aside.
    The appellate court is justified in interfering with a verdict only in those cases, where it appears that they, in fixing the amount of the verdict, were actuated by prejudice, passion, partiality, or corruption, or failed to understand and apply the rule of damages appertaining to the case, or, where it can be clearly seen from the record that, under all the circumstances of the case, the amount awarded was unreasonable and unfair.
    2, Same. .....~
    A verdict for $375 for the death of a girl three and one-half-years old, intelligent and in good health was, in this case, set aside as inadequate.
    Appeal from an order, setting aside a verdict for plaintiff on the ground of inadequacy.
    Appeal from an order made at the circuit term of the supreme court held in the county of Monroe, February 5, 1895, setting aside a verdict in favor of the plaintiff on the sole ground that the verdict was inadequate. This action was brought under the statute to recover damages for the alleged negligent killing of the plaintiff’s intestate, who was a daughter of plaintiff. April 24, 1893, plaintiff’s inte'state was killed by one of the oars operated by the defendant, which is a railroad corporation, operating a line of railway by electricity in the city of Rochester. Issues were joined upon the question of the defendant’s negligence, of intestate’s contributory negligence, and that of her parents. The evidence upon those questions was conflicting, and was submitted to the jury. The jury rendered a verdict in favor of the plaintiff for the sum of $375. All the testimony given by the plaintiff upon the question of damages was this: The child was three and one-half years old, bright, intelligent, active, and in good health. She resided with her parents and her brother and sisters. The other children were Elizabeth, seven years old Margaret, five years old ; Edward," two years old; and Minnie, one year old. The father was thirty-four years old in January, 1894, and at the time of the accident was working for a furniture company. He was a cabinet maker by trade, and earned $11 a week.
    Charles J. Bissell, for app’lt; John Yan Yoorhis, for resp’t.
   GREEN, J.

The sole question here presented is whether this court can say as matter of law that the jury violated any rule in giving the amount of damages which they Rid give, or that they should have given more. That the supreme court has the power, in a proper case, to set aside a verdict where it is excessive or inadequate, is conceded; but this power is exercised within well-defined limitations. The court is justified in interfering with a verdict of a jury only in those cases where it appears that the jury, in fixing the amount of the verdict, were actuated by prejudice, passion, partiality, or corruption, or failed to understand and apply, the rule of damages appertaining to the case; or where it can be clearly seen from the record that under all the circumstances of the case the amount awarded was unreasonable and unfair. Applying this rule to the case at bar, the verdict of the jury is subject to no criticism which would justify the court in interfering with its verdict. There are many cases brought under the statute where the evidence is such that the question of damages may be fixed with some reasonable degree of certainty; as in the case of an adult where the jury have before them evidence of the earning capacity and the age and condition in life of the deceased. But in the case of a child of 3^ years the evidence upon the question of damages must necessarily be indefinite, and to some degree uncertain. The age, the sex of the child, her physical condition, and circumstances of the parent of the child constitute the evidence upon which the jury must fix the amount of damages. In this case the child has never had any earning capacity, and possibly might never have had such. “In estimating the pecuniary value of this child to her next of kin, the jury could take into consideration all the probable, or even possible, benefits which might result to them from her life, modified, as in their estimate they should be, by all the chances of failure and misfortune. There is no rule but their own good sense for their guidance.” Birkett v. Knickerbocker Ice Co., 110 N. Y. 504; 18 St. Rep. 130. The jury were bound to confine themselves to the evidence given upon the question to be decided. It was their duty to consider the same, and pass their judgment upon it, Their determination must not be the result of mere speculation, conjecture, or guesswork. The foundation upon which they must build their verdict is the evidence. In view of the somewhat indefinite and uncertain character of the evidence, we are of the opinion, that this case is peculiarly one for the consideration of a jury, and one where the determination of a jiiry should be conclusive. No safer tribunal than the experience, good sense, and judgment of twelve men can be found for the determination of the question of damages in a case of this character. So far as appears from the record, the jury considered that somewhat difficult question, and arrived at a verdict which to them, fairly represented the pecuniary damages sustained by the next of kin. They had before them all the elements of damages properly involved in the plaintiffs claim. They violated no rule governing them in arriving at their conclusion; nor does it appear from their verdict or from record presented to the court that they passed beyond the limits prescribed within which they must exercise their functions. The court might have been better satisfied with a larger verdict But this alone furnishes no sufficient reason for invading the province of a jury, and substituting the opinion of the court for that of the jury. We are of the opinion that the verdict of the jury was conclusive, and that the order setting aside, the same should be reversed.

Order reversed, with costs.

All concur.


author: BROWN, P. J.

text:
    James J. Hogan, App’lt, v. Max Glueck, Resp’t.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb. 18, 1896.)

    1. Pleading—Complaint—Amendment.
    A complaint, in a court whose jurisdiction depends upon residence, may he amended so as to allege the residence of the defendant within the jurisdiction.
    8. Same—Presumption.
    Where it appears that the defendant lived within the jurisdiction of the court within a reasonable time prior to the commencement of the action, the conclusion is permitted that he was residing there when the action was commenced.
    Appeal from a judgment, dismissing the complaint and denying a, motion to amend.
    I. J. Beaudrias, for app’lt; William Riley, for resp’t.
   BROWN, P. J.

Plaintiff's complaint in this action was dismissed, after all the testimony ha'd been introduced by both parties, on the ground that the complaint was defective, in not alleging that the defendant was a resident of the city of Yonkers. The city court of Yonkers, in respect to civil actions, is given jurisdiction by statute in cases where the defendant resides in said city, or in a town of Westchester county adjoining that city, or where a warrant of attachment has been granted, to accompany the summons, and levied on property of the defendant within that city. This action was brought to recover damages for an alleged malicious prosecution. The complaint contained no allegation that the defendant was a resident of the city of Yonkers, and in this respect was defective. In the view we take of the case, it is not necessary to determine whether the objection thereto was waived by the defendant’s failure to take it by demurrer to answer. Code Civ. Proc. § 499. At the close of the testimony.the defendant moved for judgment on the ground that the court had no jurisdiction to determine the action, whereupon the plaintiff moved to amend his complaint by inserting an allegation that the defendant was a resident of the city of Yonkers, and in that respect to conform the pleading to the proof. The learned city judge, in his decision, states that in his opinion the plaintiff had a meritorious cause of action, but felt constrained to deny the plaintiff’s motion and to dismiss the complaint, on the ground that there was no evidence that the defendant was a resident of said city at the time of the commencement of the action. The complaint alleged that the defendant had, before the acting judge of the city court of Yonkers, on August 28, 1895, charged the plaintiff, with having maliciously broken open a door in a hallway on defendant’s premises. The answer, while specifically denying this allegation of the. complaint, alleged that “the defendant saw the plaintiff break with a hammer the lock of the door of the premises of which defendant was then the tenant and in possession.” Upon the trial it appeared that both parties were tenants of one Larry Oondon, and occupied portions of a house know as “ 15£ Palisade Avenue,”- in said city. 'Hogan occupied the ground floor as a saloon, and the defendant lived with his family on the floor over the saloon. The plaintiff testified as follows: “I know Max Glueck. He lives at 15£ Palisade avenue.” Richard Condon, a son of Larry Condon, testified in reference to the premises as follows: “The hallway is for the use of Mr. Hogan, on the basement floor; Mr. Glueck, on the next floor; and another tenant. * -■ * I granted to Mr. Glueck the use of that hallway.” Glueck himself testified that he. was a tenant of the apartments over Hogan, and saw him break the lock of the hall door; that after he saw him break the lock he went downstairs, and that his wife came down and complained; and that he (Glueck) then went out and consulted a lawyer, and caused the complaint to be made upon which Hogan was arrested. He further testified that he told the lawyer that Hogan occupied the saloon, and that he (Glueck) lived on the first floor over the saloon. Hear the close of his testimony he was asked the following question by his counsel, and made the following answer: “Mr. Glueck, does Mr. Hogan’s family live in the same building that you do? A. Ho, sir; two houses away.” This testimony, we think, showed clearly that the defendant lived in the building where the offense with which plaintiff had been charged was alleged to have been committed. The argument that it does not show he lived there at the time the action was commenced is not worthy of serious consideration. The offense was charged to have been committed on August 28th, and this action was commenced on August 80th, and proof of the fact that defendant lived in Yonkers on the 28th permitted the conclusion that he was living there two days later. The probative force of the testimony was not confined to the exact moment of which the witness spoke. When it appeared that the defendant lived within the jurisdiction of the court within a reasonable time prior to the commencement of the action, the con-, elusion was permitted that he was residing there when the action was commenced. But much of the testimony referred to related to the time of the trial, and showed that the defendant’s residence at the that time was the same as it was on the 28th of August, Indeed, it is apparent from a reading of the testimony that the case was tried by both parties on the theory and assumption that the defendant was a resident of the city of Yonkers, and within the jurisdiction of the court, when the action was commenced. We are of the opinion, therefore, that, as it appeared affirmatively that the court had jurisdiction of the action, the motion to amend the complaint should have .been granted.

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

All concur.


author: BARTLETT, J.

text:
    William E. Sabin, Resp’t, v. William A. Kendrick, Impleaded, etc., App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed Febr’y 18, 1896.)

    1. Service and proof—Summons—Publication.
    The failure of an order for publication of a summons to specify where copies should be mailed is immaterial, where a personal service is made upon the defendant outside of the state, as authorized by the order.
    S. Same—Time of service.
    The failure to serve the summons within the time limited by section 638 of the Code after the attachment is issued merely invalidates the attachment, but does not affect the validity of the service of the summons.
    Appeal from an order denying a motion to vacate'the order of publication and to set aside the service of the summons,
    William H. Sage, for app’lt; J.'M. Ferguson, for resp’it
   BARTLETT, J.

The learned .counsel for the appellant concedes that an order of publication need not contain both the requirement that the summons shall be published, and the provision that service may be made without the state, at the option of the plaintiff. In re Field, 131 N. Y. 184; 42 St. Rep. 863. He insist, however, that when the plaintiff makes no election between the two modes of service, but inserts both provisions in the order, the omission to specify a place to which copies of the summons, complaint, and order shall be directed, addressed to the defendant, is a jurisdictional defect which is fatal to the order. It does not seem to us that this view is correct. Ro doubt, the order of publication in the present case was defective,' in that it merely provided for the mailing of the papers, “ directed to the defendant,” without specifying any place to whibh they were to be addressed. But, inasmuch as everything relating to the publication and mailing might have been omitted without affecting the validity of. that part of the order which authorized the personal service of summons without the state, we do not see how the omission of one thing relating to such publication and mailing can invalidate it. The order remained perfect as an order permitting the plaintiff to have the summons served upon the defendant personally outside the limits of Hew York, and the summons was so served, in the state of Connecticut, on the 25th day of October, 1895.

The order of publication was made more than 30 days before that date, and- a warrant of attachment had also been granted against the property of the defendant more than thirty days before. Section 638 of the Code of Civil Procedure, which is contained in the title relating to the provisional remedy of attachment, prescribes that personal service of the summons must be made upon the defendant against whose property the attachment is granted within thirty days after the granting thereof; or else, before the expiration of the same time, service of the summons by publication must be commenced, or service thereof must be made, without the state, pursuant to an order obtained therefor. There was no attempt to publish the summons in the case at bar, but it was served in Connecticut, pursuant to the order, as already stated. We do not think that the lapse of more than thirty days had any effect upon the service of the summons without the state, or.upon the order authorizing such service. The effect of the delay was limited to the attachment, which the defendant thereupon became entitled to have vacated. The service of the summons without the state would have been perfectly good, although there had been no attachment whatever. The Code, in the provisions relating to-attachment, nowhere declares that the action shall abate, or the court be ousted of jurisdiction, by reason of a delay of more than thirty days in the personal service of the summons, or the beginning of the publication thereof; and, in the absence of such a provision in express terms, we can perceive no good reason for extending the effect of the omission beyond the avoidance of the attachment.

The order appealed from must be affirmed, with costs.

All concur.


text:
    Christian Mosel, App’lt, v. William H. Frank Brewing Company, Resp’t.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb. 18, 1896.)

    1. Evidence—Parol—Receipt.
    A receipt may be contradicted or explained by parol evidence, and is only prima facie proof of the facts stated in it.

      2. Same.
    If the same instrument contains both a receipt and a contract, parol evidence may be received to controvert or explain it, so far as it is an acknowledgment of payment, but ordinarily no further.
    8. Same.
    In an action for the purchase price of an article, the question of payment is for the jury, though a receipt acknowledging payment was taken, where there is parol evidence tending to show there was no payment.
    Appeal from a judgment, entered on a verdict directed for defendant.
    Bernard J. Isecke, for app’lt; M. Hallheimer, for resp’t.
   BARTLETT, J.

This litigation grows out of the sale of a chattel mortgage. The defendant purchased this mortgage from Mrs. Bettina Hammersen, through August Hammersen, her husband. According to his account of the transaction, the purchase price was $500, of which $325 still remains unpaid. According to the account given by the witnesses for the defendant, the purchase price was $350, for the whole of which Mrs. Hammersen accepted in payment two promissory notes aggregating that amount, which were made by the Fred Hower Brewing Company. Mrs. Hammersen assigned her claim to the plaintiff, who brought this suit to recover the balance of $325 alleged to be due thereon. There was a conflict in the evidence on two issues: First, as to whether the mortgage was sold for $500 or $350; and, second, as to whether the purchase price, whatever it was, had been paid by the transfer and acceptance of the notes already mentioned. At the conclusion of the case, however, the learned trial judge directed the jury to find a verdict for the defendant, holding that the testimony showed that the notes had been received in payment' for the mortgage, and also that a receipt or agreement which the defendant had put in evidence operated conclusively to relieve the defendant from liability. The exception taken by plaintiff’s counsel to this direction presents the only question which it is necessary to consider on this appeal.

The written instrument to which the court gave this conclusive effect was in the following terms:

“Received at date, from the Wm. H. Frank Brewing Company, three hundred and fifty dollars ($350), in consideration of which payment and sum we hereby release and discharge said company from all claims and demands in the chattel mortgage made [>y Jacob Seibert to Bettina Hammersen.

“Dated Evergreen, Queens Co., FT. Y., January 31, 1895.

“[Signed] Bettina Hammersen,

“By August Hammersen.

“August Hammersen.”

There was no claim on the part of the defendant that the mortgage was paid for in money, but this paper was offered as evidence that the notes of the Fred Hower Brewing Company, which represented $350, and were turned over to Mr. Hammersen, had been taken by him as absolute payment, instead of being received, as he contended, only to be retained as payment in the event that he could get them discounted, which he was unable to do. But the proof was not limited to this instrument alone. Testimony was given on both sides as to what was said at the time it was signed. Ss far as it purported to be a receipt, it was competent for the plaintiff thus to attack it A receipt may be contradicted or explained by parol evidence. It is only prima facie proof of the facts stated in it. Ryan v. Ward, 48 N. Y. 204. If the same instrument contain both a receipt and a contract, parol evidence may be received to controvert or explain it, so far as it is an acknowledgment of payment, but ordinarily no further. This rule was recognized, apparently, in taking the proof upon the trial under review; but, at the close of the evidence, it seems to us the court erred in refusing .to give any effect whatever to the parol evidence introduced by the plaintiff which tended to show that there had been no payment, although the receipt recited one. That evidence certainly was sufficient to raise an issue of fact, which should not have been taken away from the jury. The instrument did not conclusively establish the defense of payment, and it was for the jury to say what weight should be given to it in support of that defense. There was also a conflict of evidence as to the amount of the agreed purchase price. Both these issues of fact required the submission of the case to the jury. It was therefore to direct a verdict, and the judgment must be reversed, and a new trial granted.

All concur.


author: HATCH, J.

text:
    John Hynes, App’lt, v. John H. Alexander, as Assignee, etc., Resp’t.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb. 18, 1896.)

    Assignment for creditors—Accounting.
    Where there is a special course of procedure, provided for a specific purpose, regulating certain proceedings and adopted for the purpose of facilitating the disposition of matters cheaply and expeditiously, parties ■ should he relegated to such method and not be permitted a choice of tribunals, unless some substantial reason exists therefor, which should be specifically averred. So held in case of an action in equity against the assignee for creditors for an accounting.
    Appeal from a judgment dismissing the complaint.
    John Mulholland, for app’lt; Ralph E. Prime, for resp’t.
   HATCH, J.

The defendant is an assignee for the benefit of the creditors of J. & Gr. Stewart, a copartnership heretofore existing and carrying on business in the city of New York. This action is brought in the supreme court for an accounting for the benefit of plaintiff, whose debt is alleged, and for the benefit of all other creditors similarly situated. The complaint alleged the making of the assignment on the 16th day of August, 1894; that more than a year has elapsed since the making thereof; and that the assignee has not rendered any account of his. proceedings. Ho special reason is assigned why plaintiff is required to resort to an action in equity, or why he might not obtain all the redress and relief to which he is entitled by a proceeding for an accounting under the statrite regulating such proceedings. When the cause was called for trial, defendant moved to dismiss the complaint, and lor'judgment, on the ground that the cam plaint did not state a cause of action in favor of plaintiff, and because the complaint did not state any reason or cause why the court should assume jurisdiction of the action for .an accounting. The court granted the motion, and dismissed the complaint, with costs. There is nothing in the decision or in the judgment entered thereon, showing the ground upon which the court based its determination. But it was stated by counsel upon the argument, that the decision was placed upon the second ground above stated. We think the complaint was sufficient, and stated a good cause of action. But we are also of opinion that the decision was right, and that the judgment appealed from should be affirmed. By the statute is given a perfect remedy to obtain all the relief which plaintiff could succeed to if his action was prosecuted to judgment It is quite true that a court of equity has jurisdiction of the subject-matter, and can grant all necessary relief. Although it has jurisdiction, it does not follow that it will assume it in all cases. Where there is a special course of procedure, provided for a specific purpose, regulating certain proceedings, and adopted for the purpose of facilitating the disposition of matters cheaply and expeditiously, parties should be relegated to such method, and not be permitted a choice of tribunals unless some substantial reason exists therefor, which should be specifically averred. In the case of insolvent assignments, the statute provides an expeditious and cheap method of procedure, where the rights of all creditors can be fairly-protected and the estate cheaply administered. Under such circumstances, the assignee ought not to be subjected to the vexatious trouble and burden of an action which leads, in the end, to an accounting, for which the statute provides, nor should the assigned estate be made subject to the costs and expense of an action and the inevitable waste which the fees of referees and other contingencies produce as well as the costs of the action itself, unless there be exceptional grounds therefor ; and such necessity ought to be clearly alleged. This view is in harmony with the current of authority. In an action to compel an accounting by an executor, brought in the supreme court, the court of appeals thus expresses itself:

There was no reason for resorting to another forum than that established by the statute for the final settlement of an executor’s accounts. * * * These proceedings belong, by law, to surrorogate’s courts, which were constituted to take jurisdiction of them, and the powers of which are appropriate and adequate for the purpose.” Hard v. Ashley, 117 N. Y. 611; 28 St. Rep. 601.

The same rule has been recognized in other cases. Chipman v. Montgomery, 63 N. Y. 221; Uhlman v. N. Y. L. Insurance Co., 109 id. 421; 16 St. Rep. 371. These cases are particularly applicable, as the statute itself makes the proceeding to correspond with an accounting.of executors in surrogate’s Courts. 1 Birdseye, Rev. St. p. 129, § 20, subd. 9. And the supreme court is given concurrent power with the county court and county judge. Id. p. 131, section 30. This view is not in conflict with Hurth v. Bower, 30 Hun, 151. There the complaint alleged the misconduct of the assignee, and assigned a sufficient reason for the intervention of the equitable powers of the court. And, while the language used is quite broad, yet we think it should be held as limitecTand applied to the case there under consideration. In all the cases which have fallen under our observation, where the supreme court has assumed to exercise jurisdiction in this class of cases, some special reason was assigned in the complaint, or no question was raised respecting it.

For these reasons, we think the judgment appealed from should be affirmed, with costs.

All concur.


author: PATTERSON, J.

text:
    In the Matter of the Estate of Annie O’Brien, or Larkin, Deceased. Lizzie Thorpe, Resp’t. Comptroller of the City of New York, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed Febr’y 21, 1896.)

    Descent and distribution—Next of kin.
    In this proceeding to compel a distribution of the estate of an intestate, the evidence was held sufficient to show that petitioners are decedent’s next of kin.
    Appeal from a decree in favor of petitioner.
    C. A. O’Heil, for app’lt; B. Metzger, for resp’t.
   PATTERSON, J.

This is an appeal from a decree of the sur rogate of the county of Hew York, by which it was adjudged that one Lizzie Thorp, the petitioner, was the only surviving next of kin of one Annie O’Brien, or Larkin, who died intestate in the city of Hew York in the month of September, 1889. It appeared that the public administrator of the city and county of Hew York was granted administration upon the estate of the.intestate ; that he collected the assets, and paid them into the treasury of the city of Hew York, as required by law. In July, 1893, this petitioner made application to the surrogate, claiming to be a grand-niece and the only next of kin of the intestate, and asserting her right as such next of kin to the moneys on deposit to the credit of the estate, as above referred to. Citations were issued to various parties, including the public administrator and the comptroller of the city of New York; and upon the return of the citations, by an order of the surrogate, a referee was appointed tó take proof of the rights and interests of the petitioner, Lizzie Thorp, and any other person or persons, in the property, credits, chattels, and moneys belonging to the said estate of Annie O’Brien, or Larkin, deceased, and to report the same. The referee performed the duty imposed upon him, and has made a very elaborate report, con tai ning an analysis of the evidence before him, and that report has been confirmed by the surrogate.

There are two questions of fact presented by the record, and the first rebates to the identity of the intestate, Annie O’Brien, as being the same person claimed by the petitioner to have been her grandaunt., It was proven by two witnesses who knew Annie O’Brien in Ireland, in her childhood, that her maiden name was Ann Cody; that she came to the United States, settled in the city of New York, and there became notorious as a person engaged in keeping disreputable places of resort in the lower part of the city. It is shown by some of the witnesses that she went by the name of “Bed Ann ” ; and it is also stated that she was known by the additional sobriquet of “Bed Liza,” and that she also assumed the names 'of Whitney and of Smith. One of the witnesses who knew her in Ireland also recognized her in New York, saw her frequently for many years, and knew her by the several names above mentioned. The testimony shows that there was but one person in and about Water and Dover streets who kept places of resort of the character referred to and who was called “Bed Ann.” There was also proof before the referee that the petitioner’s mother was a niece of Ann O’Brien, or Larkin, and that she came here from Ireland, having been sent for by her aunt, and that for a time she acted as cook for the O’Brien woman, but left her, being disgusted "with her surroundings. The testimony was sufficient to justify? the referee in the conclusion at which he arrived concerning the relationship existing between the aunt and the niece. There is some discrepancy in the testimony as to the precise places of residence of the intestate at various times, but her identity was suf- • ficientlv established. It was stated by some of the petitioner’s-witnesses that she kept a place of resort called “Boatman’s Hall.” It was undoubtedly proved that the place was not kept by her, but by one Miller. But there is testimony to show that the place kept by “Bed Ann,” although it had a distinct sign with another name, was, nevertheless, called “ Boatman’s Hall.” We-do not think that there can be any fair doubt that the intestate was shown by satisfactory evidence to have been the grandaunt of the petitioner.

The other question of fact related to the establishment of the petitioner’s claim that she was the only next of kin. The intestate was married, but had no children, and her husband predeceased her. It was proven that she had but one sister whose name was Margaret Cody, who married one Collins in Ireland. Margaret Collins had but one child, Bridget Collins. This Bridget was the same person referred to as having been brought to this country from Ireland by the intestate, and with whom she lived awhile as coolr. Bridget Collins married one Thorp, who was the father of the petitioner. Many children were born to the Thorps, all of whom were dead at the time this intestate died, except three,—the petitioner and her two sisters. As these three Thorp children survived the intestate, each was entitled to one-. third of her personalty. The surrogate, in his decree, has recognized and given enforcement to the rights of the three children by awarding to this petitioner one-third of the personalty absolutely, and giving to her in a representative capacity, as administratrix of the estates of her deceased sisters, the two other shares, to be held in equal parts.

The case presenting merely questions of fact, and we concurring in the conclusion at which the surrogate arrived, the decree must be affirmed. We are compelled to say that we see no merit in the appeal which has been taken by the comptroller, and therefore no costs are awarded him on this appeal.

All concur.


author: BARRETT, J.

text:
    People ex rel. Agnes Karlsioe, Resp’t, v. William Karlsioe, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb. 21, 1896.)

      1. Divob.ce—Foreign.
    Where a.husband abandons his wife and acquires a residence in another state, a decree of divorce procured there without her knowledge is void, and is no defense to a prosecution for abandonment.
    2. Same—Abandonment.
    On the trial of a prosecution against a husband for abandonment of his family, it is error to refuse to admit testimony to show the financial condition of the wife.
    8. Same—Defense.
    On such trial, it is error to exclude testimony to disprove the abandonment, and tending to show that the plaintiff had refused to live with defendant, that he had offered her a home, that he had asked her to come and live with him and that she had declared she would not live with him at any place he might provide. ,
    Appeal from a judgment convicting defendant of being a disorderly person, in having abandoned his family.
    Hugh 0. Pentecost, for app’lt; George W. Lyons, for resp’t.
   BARRETT, J.

The defendant was convicted by a police magistrate of being a disorderly person, in having abandoned his wife and child, without adequate support, and having left them in danger of becoming a burden upon the public, and having ne- . glected to provide for them according to his means. Code Or. Proc. § 899, subd. 1. This conviction, upon a further hearing, was reaffirmed by the court of special sessions, and the judgment of the latter court was affirmed by the court of general sessions. From this latter judgment the defendant appeals.

The defendant complains that the special sessions rejected a decree of divorce which he claimed to have obtained in the state of Kentucky. This decree was properly rejected. The Kentucky court was without jurisdiction of the person of the present complainant, and the decree was therefore void under the rule laid down in the cases in this state. The complainant was never in the state of Kentucky, never appeared there, and had no notice of the divorce proceedings. In fact, she knew nothing about them. Prior to his going to Kentucky, the defendant had been arrested here several times for the abandonment of his wife. Upon his* third arrest he was paroled by the police justice. He promised to appear subsequently, but failed to do so. That was the last the complainant saw of him. As she says, he ran away. She was asked where he went, and her reply was that she did not know, but that she heard afterwards that he went to Kentucky. He undoubtedly went there to relieve himself, as he hoped, from further coercive proceedings here, by quietly severing the marriage tie. It is needless to say that, under the well-settled law of this state, he failed in his purpose. People v. Baker, 76 N. Y. 78; O’Dea v. O’Dea, 101 N. Y. 23; Cross v. Cross, 108 N. Y. 628; 13 St. Rep. 470; De Meli v. De Meli, 120 N. Y. 485; 31 St. Rep. 704; Williams v. Williams, 130 N. Y. 193; 41 St. Rep. 280.

The effort to bring the case within the principle of Hunt v. Hunt, 72 N. Y. 217, is futile. The Kentucky domicile of the [husband, even if genuine, was not here the domicile of the wife. ■Owing to his misconduct, she was clearly entitled to maintain her -independent domicile in this state. He never, in good faith, offered her a home in Kentucky, and his purpose throughout has plainly been to get rid of her and his martial obligations.

If this were the only question in the case, we 'would have no hesitation in affirming the judgment. Unfortunately, however, the special sessions erred to the defendant’s prejudice in shutting out competent testimony which might well have affected the judgment. The prosecution proved, by the direct testimony of the complainant, the abandonment and her poverty. But the defendant was not permitted to disprove these essential facts, either upon the complainant’s cross-examination or by independent testimony. The complainant testified that she had no income or means of support. It was sought upon cross-examination to shake this testimony, but every question tending in that direction was excluded. We do not mean to suggest that an affirmative answer to the numerous question which were propounded to her, and ruled out, would necessarily have absolved the defendant. They would not have absolved him had they simply disclosed the fact that others had charitably kept the complainant out of the workhouse, or the fact that she herself had put off the evil day by her own exertions. But they might have entirely disproved her direct testimony, and have shown that she was not poor; that she had ample means of support; and that she was not in least likely to become a burden upon the county. They might have shown, indeed, that she was amply provided for, and that her circumstances were far better than her husband’s. The questions were properly framed with a view to eliciting such facts, and it was a violation of the defendant’s rights to exclude them. The court also erred in excluding testimony to disprove the abandonment, and tending to show that the complainant had refused to live with the defendant: that he had offered her a home; that he had asked her to come and live with him; and that she declared she would not live with him in any place he might provide. It is impossible to sustain a judgment of conviction where the accused has thus been deprived of his legal rights, and where substantially everything save the complainant’s story of her wrongs has been treated as irrelevant.

Judgment must be reversed.

All concur.


author: WILLIAMS, J.

text:
    People ex rel. Albert M. Lee, App’lt, v. Warring, as Commissioner, etc, Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed February 21, 1896.)

    1. Statutes—Construction.
    ' When a general act of the legislature conflicts with a special act, the special act is not deemed to be repealed by implication.

      2. Municipal corporations—Employes—Dismissal.
    Chapter 269 of 1892, which amends consolidation act by adding thereto section 704b, is not restricted by section 1, chapter 119 of 1888, nor by its amendments, though the last amendment was enacted after said chapter 269 became a law.
    Certiorari to review the action of the commissioner of the department of street cleaning, dismissing relator from his position as assistant foreman of the department.
    The relator was appointed June 6, 1889, and continued to hold the position until June 3, 1895, when he was dismissed. He was an honorably discharged soldier who had served in the Union army during the war of the Rebellion. He was not appointed for a definite term, and his dismissal was not for cause shown' after hearing had. The respondent claimed the right to dismiss the relator under chapter 269, Laws 1892, commonly known as the “New York Street-Cleaning Act,” amendatory of the consolidation act, without complying with .the “Veteran Act,” so called, being chapter 119, Laws 1888, as amended by chapter 577, Laws 1892. If the latter act pretected the relator from dismissal, except as therein provided, then he was improperly removed, because, concededly, the provisions of that act were not complied with.
    Charles Blandy, for relator; James M. Ward, for resp’t.
   WILLIAMS, J.

By the “Consolidation Act,” so called (chapter 410, Laws 1882), the department of street cleaning was recognized as one of the departments of the city. By section 705 of that act, the commissioner of street cleaning, as head of a department, had power to appoint and remove, at his pleasure, all clerks, laborers, and other employes in his department. No restriction was placed by the legislature upon the power to remove or dismiss honorably discharged soldiers, until the passage of chapter 119 of the Laws of 1888, which provided:

“ Section 1. Mo person holding a position or appointment in any city or county in this state, receiving a salary from such city or" county (unless he has been appointed for a definite term), who is an honorably discharged soldier, sailor, or marine having served as such in the Union army or navy, during the war of the Rebellion, shall be removed from such position except for cause shown after' a hearing had,” etc.

This act was amended by chapter 67, Laws 1890, so as to cover those who had served in the Mexican war, and was again amended by the chapter in question (577, Laws 1892), so as to cover those who had served in the volunteer fire department, and so as to exclude those who had served in the Confederate army or navy. In other respects, the law has been the same from the time the ■original act was passed in 1888. It will be seen, therefore, that when the street-cleaning act of 1892 (chapter 269) was passed, there was on the statute books the act of 1882 (chapter 410), creating the department of street cleaning, which contained a provision conferring on the head of the department the power of appointment and removal at pleasure, and the so called “Veteran Act” (chapter 119, Laws 1888), as amended in 1890 (chapter 67). 'This street-cleaning act was a special act reorganizing the depart•ment. It related to a particular subject, and gave to the head of the department special power to enable him adéquately to effect the purpose for which the act was passed. It was necessary to give the commissioners substantially full power of removal in the case of common laborers. The force was divided into two distinct classes, the clerical force and the uniformed force; and the relator belonged to the uniformed force. By this act it was provided (section 704b):

“ The commissioner of street cleaning shall have power, in his discretion, on evidence satisfactory to him that a member of the uniformed force has been guily of any legal or criminal offense, or negligence of duty, violation of rules, or neglect or disobedience of orders, or incapacity, or absence without leave, or conduct injurious to the public peace or welfare, or immoral conduct or any breach of discipline to punish the offending party by forfeiting or withholding pay for a specified time, suspension, without pay during such suspension, for a period not exceeding thirty days, or by dismissal from the force, but no more than thirty days pay or salary shall be forfeited or deducted for any offense.”

This act was intended to provide for a particular work in respect to which the legislative regulations were particular and precise. The veteran act was general, providing for dismissal only, and not for a scheme of discipline and punishment to secure effective service by the employes. The intention of the legislature in enacting chapter 269, Laws 1892, must have been to take the uniformed force out of the provisions of the veteran act as it then existed. The power of'dismissal provided in the act (chapter 269, Laws 1892) was not intended to be hampered or qualified by the veteran act then existing. The scheme of the reorganization and discipline and control of the uniformed force could not be carried out effectually unless the power given by section 704b was left in full force, and uncontrolled or limited by the veteran act. If such was the intention of the legislature when it passed chapter 269, Laws 1892, certainly no change of intention could be inferred or deduced from the amendment of the act (chapter 577, Laws 1892). This amendment took effect only a few days less than a month after chapter 269, Laws 1892. But, more than this, it is a familiar rule of construction that when a general act of the legislature conflicts with a special act, the special act is not deemed to be repealed by implication. Brown v. Duane, 60 Hun, 102; 37 St. Rep. 691; People ex rel. Griffin v. Lathrop, 142 N. Y. 113; 58 St. Rep. 633.

We are of the opinion that the relator was not protected from dismissal by the “ Veteran Act,” so called, but that the respondent had power, under the street-cleaning act, in his discretion, and on evidence, satisfactory to himself, of neglect of duty, disobedience of orders, etc., which he alleged, to punish relator by his dismissal from the force, which he did do. No particular species of evidence is required under thé act. It is only required to be satisfactory to the head of the department. 'The respondent returns that the deputy commissioner recommended, in writing, that the relator be dismissed, on certain charges and specifications, and that he believed the charges and specifications were true, from the information he received. This was sufficient, within the provisions of the act.

Our conclusion is that the respondent had power to dismiss the relator, and that the writ should be dismissed, with costs.

All concur.


text:
    Garrett Reilly, App’lt and Resp’t, v. Charles G. Freeman et al., App’lts and Resp’ts.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb’ry 21, 1896.)

    1. Specific performance—Transfer of interest in business.
    Where the plaintiff and defendants enter into an agreement to engage in an enterprise in which they are to ' share equally, plaintiff to furnish the necessary money, and defendants to give their personal attention to the business, and the defendants organize a corporation and. issue all the stock to themselves and afterwards refuse to allow plaintiff an equal share with themselves, the plaintiff, in an action for an accounting, is entitled to the stocks specifically, not on the theory of specific performance, but because his interest exists' in the form of shares of stock.
    2. Equity—Adequate remedy at law.
    The defense of an adequate remedy at law is not available unless pleaded.
    5. Partnership—Accounting.
    In an action by a partner against his copartners for an accounting, it is error for the couit to make a specific award at one-half the amount found due plaintiff against each of the two defendants. Their liability is joint, and plaintiff is entitled to a judgment of the whole against each of them.

      4, Judgment—Altebnaitvb.
    Where the decree requires specific delivery of shares of stock and there is no evidence as to the value of such stock, an alternative-provision for a certain sum of money is erroneous.
    Appeal from a judgment entered in favor of plaintiff,
    Treadwell Cleveland, for pl’ff; L. Luflin Kellogg, for def’ta
   PATTERSON, J.

The plaintiff and defendants have appealed from the judgment herein. The plaintiff really seeks a modification of it, while the defendants ask for an absolute reversal. We will first considered the defendants’ appeal.

The pleadings present very simple issues of act. The plaintiff claims to be entitled to receive from the defendants some 1.500 shares of the common stock of the Retsoff Mining Company, or, alternatively, the value of such shares. The action is in form for an accounting of the results of a joint enterprise, in which it is alleged that they engaged upon an agreement to share equally in whatever might be realized as the outcome of the venture. The first issue raised related to the existence of an agreement of the character claimed by the plaintiff, upon which the court below-found, on sufficient evidence, in favor of the plaintiff. The testimony establishes that the defendant Freeman, in the year 1883, called the attention of the plaintiff to the then-supposed existence of salt deposits in Livingston county, in the state of Mew York, It is conceded that some agreement was then made by and between the plaintiff and the defendant Freeman and one Varker (an original defendant, who has died since the judgment was entered therein, and whose executrix has been substituted as defendant in his place), by which the plaintiff was to advance money for prospecting and exploration, and Freeman and Varker were to superintend such experimental work, and to procure options for the purchase of lands on or under which the salt deposits might be found. Thus far there seems to be no serious contradition in the testimony. That there was a joint venture, whether it be called a partnership quoad the particular subject of it or not, is fairly established. The plaintiff did advance moneys, and all that were advanced by any one up to a certain period, and when called upon to contribute more, and being unable to do so, authorized his associates to raise money by disposal of securities in their hands belonging to him. The first stage of an attempt to put in some tangible form the subject of the enterprise they had under» taken was the creation of a corporation called the Mew York Rock-Salt Company. Shares of stock of that company were issued—. one share to the plaintiff, one to each of the other associates, other shares were reserved for a working capital, and 2,500 shares were issued in a certificate to Freeman and Varker. In these last-mentioned shares was included the plaintiff’s one-third. Mo distribution of the 2,500 shares was ever made. The amount of the joint interest of the three subsequently was fixed at 1,500 shares. They were held by the defendants Freeman and Yarker. At this point it is claimed by the defendants that, on the organization of the rock-salt company and the issuance of shares by it, the plaintiff’s rights became fixed and determined, and consist now only of a vauleless chum to his proportion of 2,500 shares of capital stock of that company. It does appear in evidence that the parties contracted for the formation of a corporation, but that first corporation never did business, the plaintiff never received his proportion of stock, and when new arrangements were made, as hereafter stated, he relinquished active participations in the affairs of the venture. But he did not abandon his interest in the project. Freeman and Yarker had gone on and taken options, in which options the plaintiff was still interested. They had been secured by the money advanced by him, and, although not all actually so secured within the time originally contracted for with the owners of the land, yet notice of acceptance seems to have been given before the options expired. The only real asset of this joint venture between the parties to it were these options, which turned out after-wards to be of very valuable salt lands. It being found impossible to carry on the purpose of the venture through the rock-salt company, Freeman appears to have made efforts to induce a gentleman named Foster to come into the enterpise. Mr. Foster consented. A new corporation was created, called the Empire Salt Company, to which Freeman and Yarker conveyed all the options or lands embraced in the options. Mr. Foster seems to have /'had the dictation of the terms on which he would enter into the adventure, and, as matter of fact, the interest of Reilly and his associates was recognized and provided for. ' That Reilly was included is distinctly shown by Freeman’s own letter to him of February 28, 1884, in which he states: “The whole.responsibility of the' purchase of theland Mr, Foster assumes personally, and he also agrees to allow our interest to amount to one-quarter of the whole.” Here is a direct acknowledgement from Freeman; and Yarker knew, as his letter of January 4, 1884, shows that Reilly’s interest or some of it, still remained in him. In this organization of. the Empire Company shares were alloted to Freeman and Yarker, and Reilly was entitled to one-third of them. But the Empire corporation was not satisfactory to Mr. Foster, and he caused still another one to be formed, called the Retsoff Company, whicli issued shares, of which 6,000 were given to Freeman and Yarker, being in the proportion of five in the last to one in its predecessor corporation. That Reilly's third interest is traced into these shares was found by the judge below on evidence satisfactory to him and to us. Freeman and Yarker recognized the plaintiff’s right to participate in the shares allotted to them. They sent him a certificate for 500 shares, Freeman saying “because it was right”; but they suppressed the fact that they had received 6,000 shares, which fact was not discovered by Reilly until late in the year 1895. There was quite enough evidence to justify the conclusion of the court below that there was one continuous series of transactions from the initial agreement between the plaintiff and Freeman and Yarker down to the receipt by the latter of the 6,000 shares in the Retsoff Company, in which the three parties named were jointly interested, and that, out of the 6,000 shares which were the ultimate proceeds of those transactions, the plaintiff was entitled to his one-third. He is entitled to the stock specifically, not upon the theory of specific performance of an executory contract, as the defendants’ counsel intimates is the ground upon which the special term gave the particular relief, but because, upon the proofs, it appears that in an action for an accounting it is found that the plaintiff’s interest exists in the form of shares of stock in a corporation, which shares he elects to take in specie if they can be reached, and in accordance with the original agreement that a corporation should be formed, and the plaintiff’s interest consequently be held or represented in the form of shares.

It is urged by the defendants that the plaintiff has an adequate remedy at law, by action for damages or for conversion ; but no defense of that character is set up (Lough v. Outerbridge, 143 N. Y. 271; 62 St. Rep. 324), and for that reason it makes no difference whether or not the claim is well founded.

The statute of. limitations is also relied on by the defendants, but the statute would not begin to run until the shares of the Retsoff Company came into the hands of the defendants, which we understand to have been in December, 1885, and this we conceive to be a suit between partners to which the 10-years limitation applied. Still v. Holbrook, 23 Hun, 517.

Five hundred shares of stock in the Retsoff Company having been delivered by the defendants to the plaintiff, there apparently remained 1,500 shares to which he was entitled, from which the trial judge deducted 200, awarding the plaintiff 1,300 shares of the stock. Just at this point the appeals of both the plaintiff and the defendants come together. The plaintiff insists that the learned judge was in error in allowing any deduction, while the defendants claim that there is a palpable error in making the allowance of only 200 shares, because there should be a much larger deduction, in consideration of the fact that the 200 shares referred to were shares of the rock-salt company, and that, if those shares are to be taken into consideration, it must be in connection with the increased amount into which they were finfilly transmuted of shares in the Retsoff Company. We think the fact is established that, by the original agreement at the initiation of the enterprise, Reilly contracted to furnish all the moneys that were necessary to develop the land and to launch the enterprise. He admits that he was unable to furnish those moneys in full, and particularly an amount that was required to pay one Perry for sinking a well. Correspondence between Reilly and his associates concerning his inability to advance further is contained in the record, and it is also shown that Reilly authorized the defendants to dispose of a part of his original interest, in order that money might be raised for the purpose, just mentioned. It is said by the plaintiff that he merely authorized a sale. It is true that Freeman and Yarker did not make a direct and absolute sale of the shares at the time the authority was given. They pledged them, and they raised the money to pay Perry. Certainly, the plaintiff did not advance that money, and certainly he should not be permitted to retain his original interest in defiance of the fact that he failed to perform his contract in full. These 200 shares were pledged, as has been stated; and it would appear to be entirely immaterial to the plaintiff in what way those shares were disposed of, so long as he consented to an absolute relinquishment of them, in order that he might carry out the contract which he made with his associates. He does not appear ever to have protested against the course that was pursued, or to have demanded any account, but to have acquiesced in what was done; and he does not show that he was ignorant of it, or that he desired an opportunity to redeem the shares. It would be inequitable now to allow his claim, that, having broken in part his own agreement, he shall stand in the transaction, after years of acquiescence, as if he had performed it literally or in strict accordance with the obligation he originally assumed. The learned judge was therefore right in his ruling in reducing the number of shares awarded from 1,500, but he lost sight of the fact that the deduction should have been made by the proportionate amount which the increased allotment of Retsoff share bore to the rock-salt company shares, and therefore the account as to the Retsoff shares should be restated, and the plaintiff allowed 884 shares in the Retsoff Company, instead of the 1,300 shares awarded to him. This results from the following computa'tion: These three partners had 1,500 shares of the rock-salt company’s stock, each owning one-third of it, or 500 shares to each. As the plaintiff allowed this 200 shares to be disposed of,"that left him 300. It left for the three, Reilly, Freeman and Varker, 1,300, owned as follows: Freeman, 500; Varker, 500; Reilly, 300—1,300. They exchanged this for 1,200 shares in the Empire Company, and for that they received shares of the Retsoff Company, in the proportion of 5 to 1. But they had only 1,200 shares of Empire stock, whereas they had had 1,300 shares of the rock-salt company stock. They must share in the Empire stock in the proportions in which they held the rock company’s stock, viz.:

Freeman, five-thirteenths of 1,200................... 461.54

Varker, five-thirteenths of 1,200.................... 461.54

Reilly, three-thirteenths of 1,200.................... 276.92

1,200.00

The distributed shares in the Retsoff stock would therefore stand thus, viz.:

Freeman, 461.54x5............................... 2,307.70

Varker, 461.54x5................................ 2,307.70

Reilly, 276.92x5................................. 1,384.60

6,000.00

The plaintiff has received 500, which being deducted from his 1,384.50 leaves 884.60.

The appeal taken by the plaintiff brings up also the question of the nature of the judgment to which he is entitled. We think it was error in. the court below to separate the accountability of the defendants, and to make a specific award of one-half of the shares against each of the defendants, Freeman and Varker. Their liability to account is a joint one. They, without the consent of the plaintiff, distributed the shares, acting without consulting him, and disposing of the property as if it were altogether their own. He should not he remitted to a mere individual claim against each for a proportionate share, but allowed to pursue his remedy against both, and to get shares from whichever of them will be able to comply with the terms of a decree; and the judgment in that respect must be modified.

It is also obvious that a serious error has been made in the granting of an alternative judgment for distinct sums of money in case the defendants do not comply with the terms of a decree requiring the delivery specifically of the shares of'the Betsoff Company. The learned judge below acted without any evidence whatever before him on the subject of the value of the stock of the Betsoff Company. There is nothing to justify'a finding that the stock was actually worth its par value, which is the necessary effect of the decision as made. Our conclusion upon, the whole case is that the judgment must be modified, and that it should be provided by the decree that the plaintiff is entitled to recover from the defendants jointly 884.60 shares of the capital stock of the Betsoff Mining Company; that it be adjudged that the defendants transfer, under the direction of a referee to be appointed, such 884.60 shares to the plaintiff; that, in the event of their not doing so, they jointly and severally be adjudged to pay the value of those'shares, or so many of them, as they shall not transfer, such value to be fixed as of the entry of the decree hereon; that, in addition thereto, the defendants jointly and severally pay to the plaintiff the amount of dividends declared upon the 884.60 shares of stock from the time they received the same up to the present time, with interest on the amount of each dividend from the date of its payment to them; that a referee be appointed to take proof of the value of the shares and of the amount of such dividends ; and that he report to the court at special term his proceedings and conclusions upon the matters referred to him; and, upon the coming in of the report, either party may move at special term for a final decree.

Judgment will be modified as herein suggested, without costs to either party on these appeals.

All concur.


author: PER CURIAM.

text:
    Nathaniel N. Hunt, App’lt, v. American Radiator Company et al., Resp’ts.

      (Supreme Court, Appellate Divison, Fourth Department,

      Filed February 7, 1896.)

    1. Pleading—Complaint—Accounting.
    A complaint, in an action for an accounting on a contract for the use of a patent was held not to state a cause of action against the defendants who are not parties to the contract and áre guilty of no fraud in obtaining the use of the patent from the defendants, with whom the plaintiff contracted, where no privity was shown between them and plaintiff nor any violation of any agreement with plaintiff in permitting them to use the patent.
    2. Same—Improper joinder op causes op action.
    To justify the uniting of several parties as defendants in equity or an action at law, there must be a common interest, centered in one cause of action.
    Appeal from a judgment, sustaining demurrers to the complaint.
    Willard Payson Smith and John Cunneen, for app’lt; William L. Marey, for resp'ts.
   PER CURIAM.

Judgment affirmed, with costs, on the opinion of SPRING, J., delivered at special term, with leave to amend the complaint upon payment of costs of the demurrer and of this appeal.

The opinion by Mr. Justice Spring at special term is as follows:

Denuded of verbiage, the complaint isoas follows: It alleges that one Bryant had invented a tapping machine, and method for cutting screw threads; that he assigned one-half interest in this unpatented device to the plaintiff; that the defendants Bond & Pierce who were copartners, entered into an agreement with said plaintiff whereby the said defendants were to obtain a patent of such device, and manufacture and introduce the same into use, and to account to the plaintiff for one-half of the gains and profits flowing from the business carried on, and by the terms of such agreement the one-half interest in such patent owned by plaintiff was to be assigned to said Bond & Pierce, and the same was accordingly done; that in pursuance of said agreement said copartnership defendants did secure such patent, and did carry on the business contemplated thereby, and have failed to account (stating a cause of action against Bond & Pierce); that after a time the defendant the Pierce Steam-Heating Company was organized as a corporation, and by an arrangement with said Bond & Pierce, the nature of which is not alleged in the complaint, continued for a definite period to use said devise, and then another corporation, the American Radiator Company, defendant, was organized, and since that time it has been using said-device by virtue of an arrangement with said copartnership defendants, and it has failed to account for such use and the profit arising therefrom; that each of said corporations knew, of plaintiff’s agreement with said Bond & Pierce. The demurrer is on two grounds: (1) The failure to state a cause of action; (2) the improper joinder of causes of action.

Each ground seems to me tenable. A cause of action is stated against Bond & Pierce, but there is no privity alleged, nor can any be spelled out of the complaint, between the" plaintiff and the other two defendants. There is no allegation that Bond & Pierce fraudulently transferred any interest in the patent to either of said corporations, or that there was any violation of any agreement with plaintiff, in permitting either-of them to use the device. So far as the pleading shows, the copartnership held a valid right to its use, and that, too, without restriction. The copartners’ duty was simply to account to plaintiff for the profits accruing from the business. They, within the compass of their rights, by some understanding, allowed each of these defending corporations to use this devise. There is ho suggestion of any violation of that agreement with plaintiff in this license or permission or contract, whatsoever it may have been. That in no way absolved Bond & Pierce from accounting to plaintiff. Plaintiff was in the same situation in which he had always been. He had, according to his averments, a valid claim against them, and it was not impaired or affected by the arrangement with the defendants using the machine under these copartners. There is no allegation that the corporations were to account to plaintiff. They were liable to Bond & Pierce, and they have accounted, for aught that appears, but there was no privity between them and plaintiff. This is not the familiar case of novation, where the transferee agrees to account to the original owner, or assumes a specific burden running to a third party, for there is no intimation of an assumption of any liability by either of these corporations. It is simply that Bond & Pierce permitted these other defendants to use this device, and that neither conflicts with the rights of the plaintiff in his dealing with the copartners, nor does it impose any burden on the licensees to account to the plaintiff, so far as the allegations of the complaint show. A cause of action cannot be hinged upon the indefinite allegation that the arrangement between the two copartners and the corporations was unknown to plaintiff. In order to make defendant corporations liable, there must have been an agreement to pay plaintiff, and no such averment is pleaded, and it cannot be said the allegation referred to is sufficient to justify that inference.

If, however, it should be urged the copartners were trustees, and that the other defendants, having knowledge, áre chargeable with the performance of the trust, and hence liable to account, we are confronted with the other ground of demurrer,—the .uniting of actions improperly. The complaint alleges that the Pierce Steam-Heating Company used the device during its corporate existence. If liable at all, that corporation would be liable to account for the period of its user. That is a precise, specific cause of action. The radiator company has used the patent since its organization, and-is still using it,—another ascertainable period. There - is no community of interest between the two. The fact that Bond & Pierce are stockholders in each corporation in no way alters the situation. They are legal entities, distinct and separable, and each chargeable for its own acts. If one-eighth of the right of user of the device had been granted to the radiator company, a like fractional part to the Pierce Company, and a similar quantity to an individual, each explicitly chargeable with the duty of accounting to plaintiff, he could not sue them all in one action, for each stands on its own rights. Their interests are severable and divisible. If the plaintiff were the holder of half a dozen promissory notes against different makers, no one would claim the simple fact he was the owner of them all would justify him in bringing one action on all the notes; and if Bond & Pierce, with others, were makers on these notes, it would not alter the rule. In a suit in equity the rule adheres in its vigor, relaxed at times to prevent a multiplicity of suits, or where, possibly, an accounting is subsidiary to the main issue; but whether a suit in equity or an action at law, to justify uniting several parties as defendants there must be a common interest, centering in one cause of action. The complaint contains, in its prayer for relief, a request that the defendants retransfer the interest in the patent to the plaintiff, but there is no allegation in the complaint justifying the prayer. The assignment to Bond & Pierce is not attacked as fraudulently made or induced. .There is no claim of a denial of any interest of plaintiff in the patent, but it is simply a failure to account, in pursuance of an agreement which is recognized in the complaint as valid and subsisting. So the relief really sought by the complaint is an accounting, and each must account, if at all, to the extent of his user. IE this pleading is good, it involves the trial of three causes of action, with no sort of relation to each other, and against three defendants who are not united in interest, and all in one action. A jumble of that kind is not within the compass of the most liberal interpretation of Code pleading, in all its anxiety to obviate a multiplicity of suits. The cases cited by plaintiff are clearly distinguishable. In Brinkerhoff v. Brown, 6 Johns. Ch. 139, which is a leading case, the joinder of actions was upheld because there was a fraudulent conspiracy alleged, and that was the gravameq of the action; but the court explicitly enunciated the principle that it was necessary for all parties to be affected alike, to justify making them defendants. See Nichols v. Drew, 94 N. Y. 22; Adams v. Stevens, 7 Misc. Rep. 468; 58 St. Rep. 510; Gardner v. Ogden, 22 N. Y. 327. The demurrer must be sustained, with costs.


author: BISCHOFF, J.

text:
    John F. Reilly, Resp’t, v. Sicilian Asphalt Paving Company, App’lt.

      (Supreme Court, Appellate Term, First Department,

      Filed Feb. 26, 1896.)

    Negligence—Obstruction oe street.
    ■ Where an asphalt company leaves a bank of gravel about four feet from the gutter without a light, it is liable to one who drives over it in the night and is injured thereby, though piles of asphalt, about twenty feet distant from the gravel, but nearer the gutter, have lights thereon.
    Appeal from a judgment in favor of plaintiff,
    Herbert C. Smyth and G. Thornton Warren, for app’lt; John Mulholland, for resp’t.
   BISCHOFF, J.

The plaintiff sued for and recovered damages for injuries.to his carriage, occasioned by his driving upon and against a pile of wet sand and gravel, placed by the defendant company in the western driveway of Central Park, and maintained, during the darkness, without any signal of danger, in that highway. -No questions other than those touching the negligence of the defendant and the contributory negligence of the plaintiff are brought before us by the appellant.

The facts upon which the judgment is based are that the plaintiff was driving his vehicle, between 8:30 and 9 o’clock in the evening of July 1,1895, it being, at the time, quite dark; that the defendant was engaged, during the daytime, in repairing the sidewalks of the park, and had left piles of aspalt in the gutters of the roadway, at the locality of the accident, with a light upon each pile. The bank of sand and gravel, which caused the damage, had been deposited by the defendant ’ midway between two piles of asphalt, each being 20 feet, respectively, from such bank; but the latter was 4 feet from the gutteq and thus nearer the mid-die of the road than, were the asphalt piles. This sand and gravel mound was, in appearance, like the bed of the road, and the plaintiff, proceeding in a line paralled with the lighted piles, drove upon it, without having any warning of his danger,

We fail to find any reason for this appeal upon the facts, since the justice belo.w could most properly find, from-the evidence, that the defendant was negligent in its manner of maintaining the locality, thus rendered dangerous by the work in progress, and that the plaintiff used due care under the circumstances. There is no reason why the plaintiff’s testimony in this case should not have been believed by the justice, and that testimony quite fairly shows an absence of any contributory negligence.

Judgment affirmed, with costs.


text:
    Michael McDonald, Resp’t, v. Third Avenue Railroad Company, App’lt.

      (Supreme Court, Appellate Term, First Department,

      Filed, Feb. 26, 1896.)

    1. Negligence—Contributory.

      A driver,- in attempting to cross a cable car track while a car is 150 feet distant, is not, in law, guilty of contributory negligence because a collision results through failure of the gripman to make any effort to moderate the speed of the car.
    8. Same.
    In such case, he has a right to reply upon the observance, by the grip-man, of reasonable care.
    Appeal from a judgment in favor of plaintiff.
    Henry L. Scheuerman, for app’lt; John W= Hutchinson, Jr., and Walter S. Newhouse, for,resp’t.
   BISCHOFF, J.

This action was for injuries resulting to plain-tiff’s wagon from a collision with one of the defendant’s cable cars, and from a judgment for the plaintiff the defendant appeals,

But one question is presented to us by the appellant, and this, is whether there was contributory negligence, as matter of law, upon the part of the plaintiff’s driver. - Upon the facts, however, which are practically undisputed, we„must unhesitatingly hold that the appellant’s contention is unfounded. Plaintiff’s drivel-proceeding along Twenty-Fourth street, approached Third'avenue from the east, and when within 5 feet from the defendant’s easterly car track he observed a car upon that track approaching from a point one block distant, and another car approaching upon the westerly or down track, at a distant of three-quarters of a block. When his wagon, driven at an ordinary speed, was upon the westerly track, this second car-was suddenly discovered to be but 18 feet away, and despite his • efforts to escape, the collision- occurred. There is no question as to the actual negligence of the defendant’s servant. He gave no signal of his rapid approach, and appears to have made not the slightest effort to stop, or to moderate the speed of the car, although the plaintiff’s wagon must have been in sight, and about to cross the track, while this car was about 150-feet distant, according to very credible testimony.

In view of the position' of the vehicles it was certainly not the plaintiff’s duty to wait for the car to pass. He had the right to reply upon the observance, by the gripman of reasonable care, when he attempted to cross the tracks at the point noted, and the attempt itself was obviously justified. The point where the question of the plaintiff’s exercise of care arose was when the car was three-quarters of a block away, not when it had come to within 18 feet of the wagon, through the entire disregard of the plaintiff’s rights upon the part o.f the individual controlling it. Were it negligence for a driver to attempt a crossing under such circumstances, it might be urged that the highway in question were better closed to all except the employes of the railroad company- ,

Judgment affirmed, with costs.

All concur.