author: Per Curiam.

text:
    Emmett Howd, App’lt, v. Sarah E. Cole et al., Impl’d, Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed December 6, 1893.)

    1. Pleading—Demurrer,—Partial defense.
    Where it is entirely clear that the portion of an answer demurred to was intended to be set up as a partial defense, and where the relief demanded is only consistent with such, the answer should be deemed to sufficiently show or state that it is interposed as a partial defense.
    2. Same—Payment.
    An answer alleging a payment of a certain sum less than the amount claimed in the complaint, characterizes itself as a partial defense, and it is unnecessary for the pleader to call it such.
    Appeal from interlocutory judgment overruling demurrer to defendants’ answer.

      John W. Roddy, for app’lt; Shaw, Bailey & Murphy (Mr. Bailey, of counsel), for resp’ts.
   Per Curiam.

The complaint states a cause of action upon a bond and mortgage, claiming due thereon a principal sum of $8,000 and interest from Hovember 1, 1884. Defendants denied that the interest was due from Hovember 1, 1884, and alleges payment of the same to Hovember 1, 1891. In the prayer for relief he demands that in the computation of the amount due on the amount due on the bond and mortgage the interest may be computed from Hovember 1, 1891, instead of Hovember 1, 1884, as claimed in the complaint

The plaintiff demurred to the allegations in the answer setting ' up payment of interest as aforesaid on the ground that such answer is not therein alleged to be a “partial defense ” as required by § 508, Code of Civil Procedure. It is plain, however, that the payment is alleged by defendant as partial defense, although he does not characterize it by using those words.

We think in such a case as this, where an answer alleges plainly a partial defense it is unnecessary for the pleader to call it such. Such an answer characterizes itself, being necessarily a partial defense, especially with such a prayer for relief as was interposed in the answer in question. A reasonable construction of § 508, Civil Code, does not, we think, require a pleader in every case to use the words “ partial defense ” where the answer sets up a defense that clearly appears on its face to be such.

Section 507 of the Civil Code provides that a defense “ unless it is interposed as an answer to the entire complaint it must distinctly refer to the cause of action which it is intended to answer.” Yet it is held in Crasto v. White, 52 Hun, 475 ; 23 St Rep., 535; that where a separate defense containing denials and allegations which can by no possibility refer to any other than a particular cause of action in the complaint the defense refers within the meaning of § 507 supra to that cause of action. So, here, where it is entirely clear that the portion of the answer demurred to was intended to be set upon as a partial defense and where the relief claimed is only consistent with such, the answer should be deemed to sufficiently show or state that it is interposed as a partial defense. We have examined the cases cited by appellant but do not regard them as sustaining his contention.

An answer alleging a payment of a certain sum less than the amount claimed in the complaint characterizes itself as a partial defense, and hence in effect states that it is such.

The judgment should be affirmed, with costs.

Mayham, P. J., concurs ; Herrick, J., not .acting.


source: Caselaw Access Project

author: Herrick, J.

license: Public Domain

text:
    The People ex rel. John Wesley Bishop et al., Pl’ffs, v. Zachariah Palen et al., Def’ts.

      (Supreme Court, General Term, Third Department,

      Filed December 6, 1893.)

    Constitutional law—Excise—Laws 1890, chap. 163.
    That portion of chap. 163, Laws 1890, which provides for the taking and filing of an oath that the person taking it has not been engaged directly or indirectly in the manufacture or sale of intoxicating liquors, and disqualifies him from holding or continuing to hold the office of excise commissioner until he does so, is repugnant to article 13 of the constitution and is therefore null and void.
    Appeal from judgment entered upon verdict for defendants rendered by direction of the court subject to the opinion of the general term.

      S. W. Rosendale, Atty-Gen. (J. C. Van Etten, of counsel), for pl’ffs; Brinnier & Newcomb, for def’ts.
   Herrick, J.

This is an appeal from a judgment entered upon the verdict of a jury rendered by direction of the court, subject to the opinion of the court at general term, and ordered by the court to be heard in the first instance at general term.

, On the 3rd day of March, 1891, the relator John Wesley Bishop, was elected excise commissioner for the town of Olive, county of Ulster. He filed what purported to be his official oath and bond on the 11th day of March, 1891, but did not take or file the oath required by chapter 163 of the Laws of 1890, until the 9th day of April, 1892.

The relator, Wilbur F. Hill, was elected excise commissioner for the town of Olive, county of Ulster, on the 1st day of March, 1892, and on the 7th day of" March, 1892, he filed with the town clerk papers purporting to be his official oath and bond, but did not take or file the oath required by said chapter 163 of the Laws of 1890, until the 8th day of April, 1892.

On the 16th day of April, 1892, the town board of the said town of Olive, declared the officers of excise, commissioners to which said relators had been elected, as before stated, to be vacant, for the reason that they had not filed the oath required by chapter 163 of the Laws of 1890, and thereafter proceeded to appoint the defendants, Zachariah Palen and George W. Beesmer, excise commissioners, to fill said vacancies; that Palen and Beesmer thereafter, and in due time, took and filed the necessary oaths of office, including the one required by chapter 163 of the Laws of 1890, together with their official bonds, with the town clerk, and thereafter with one Albert Elmendorp, the other excise commissioner of said town, met and organized as the excise board of said town, and granted licenses as such board of excise, and received the money therefor. Thereafter this action was commenced asking for a judgment upon the right of the said John Wesley, Bishop and Wilbur F. Hill, to hold the offices of excise commissioners of said town, and that the defendants be adjudged to have no just or legal right to hold, occupy or exercise the duties of said office of excise commissioner, and that the said defendants be ousted and excluded from the office of commissioners of excise of the town of Olive.

Section 1, of chapter 163 of the Laws of 1890, enacted that: “ It shall be unlawful for any excise commissioner in the several villages, towns and cities of this state, to be either directly or indirectly interested in the manufacture or sale of spirituous or malt liquors, ales, wines or beer.” Section 3, of the same act, provides that: “ Every excise commissioner in the several villages of this state, shall, within thirty days after the passage of the act, make and subscribe an oath to the effect that he is neither directly or indirectly interested in the manufacture or sale of spirituous or malt liquors, ales, wines or beer, and that all such officers, as are hereafter elected or appointed, shall make and subscribe such an oath and file the same in the clerk’s office of the town or village, or with the police department of a city,” and it further provides “ that the failpre to take such oath shall disqPalify anyone from holding, and debar anyone from continuing to hold, any office or position mentioned in the act.”

Section 51 óf chapter 569 of the Laws of 1890, provides that “ every person elected or appointed to any town office, except justice of the peace, shall before he enters on the duties of his office, and within ten days after he shall be notified of his election or appointment, take and subscribe before some officer authorized by law to administer oaths in his county, the constitutional oath of office, and such other oath as may be required by law, which shall be administered and certified by the officer taking the same-without reward, and shall within eight days be filed in the office of the town clerk, which shall be deemed an acceptance of the-office ; and a neglect or omission to take and file such oath, or a neglect to execute ■ and file within the time required by law, any official bond or undertaking, shall be deemed a refusal to serve, and the office may be filled as in case of vacancy.”

The relators it appears from the case, were ignorant of the requirement of chapter 163 until about the time they took the oath, within required and filed the same in the town clerk’s office. It will be seen from what I have stated in regard to the requirement of said chapter 163 and from § 51 of chapter 569 herein set forth, that the relators come squarely within the provisions of these two statutes, and by their failure to take and file the oath provided for in chapter 163 of the Laws of 1890, as therein set forth, and as provided for in chapter 569 of the Laws of 1890, they were disqualified and debarred from holding the office of excise commissioners, provided the law requiring such oath to be taken and filed was one that the legislature had power to pass.

That portion of chapter 163 of the Laws of 1890, which provides for taking and filing the oath; that the person so taking and filing it has not been engaged either directly or indirectly in the manufacture or sale of intoxicating liquors, and disqualifies him from holding or continuing to hold office, unless he does so, is challenged as repugnant to Article 12 of the constitution of the state of New York. That article after prescribing the form of the oath to be taken by members of the legislature and executive and judicial officers, except such inferior officers as shall be by law exempted, concludes with the following sentence: “ No other oath, declaration or test shall be required as a qualification for any office of public trust.” This last clause of the article does not prohibit the legislature from prescribing qualifications as to fitness for office, but does prohibit requiring the candidate to take any oath or declaration as to such qualification or fitness; it may undoubtedly prescribe tests by which the candidate’s fitness for the position aspired to may be demonstrated, and it may impose certain conditions as to experience or fitness, as in requiring that the holder of certain offices shall be above the age of twenty-one years ; that inspectors of election shall be able to read and write ; that the holders of specific offices shall be civil engineers or attorneys and counsellors-at-law; but it prohibits the requiring of any qualifications that are measured or determined by the oath ór declaration of the candidate for office himself.

The article in question is a limitation upon the qualifications of office holders, that may be imposed or required by the legislature; it is an exclusion of anything in the notice of an oath except the one therein set forth. Some of the reasons that inspired the adoption of this clause of the Constitution in question are set forth in Rogers v. Common Council of the City of Buffalo, 123 N. Y., 173 ; 33 St. Rep., 55.

To the reasons there set forth it may be added, that the multiplying of oaths had become a great abuse and the solemn and binding effect intended had been weakened by the number required ; the extremely conscientious were debarred from making or holding offices of public trust; and in addition, it was obnoxious to the spirit of the common law to require a person to be a witness against himself, in any matter that might lead to the imposition of a fine, penalty, or forfeiture. Counselman v. Hitchcock, 142 U. S., 547, and cases cited.

All these things doubtless inspired the framing of the clause referred to, and it should be strictly construed for the purpose of •carrying into effect its undoubted spirit and intent.

Qualification in one sense means fitness for, in another, the doing of some act as a condition of taking or holding office.

Qualify. “To make oath to any fact; to take the oath of office before entering upon its duties.” Century Dictionary; see, also, Worcester’s Dictionary.

Qualification. “ That which qualifies a person to render him admissible to or acceptable for a place, an office, or employment.” Century Dictionary. Also Rapalje & Lawrence Law Dictionary.

The word is used in the constitution in the sense of something to be done before taking an oath of office, not in the sense of fitness.

That the oath prescribed 'by § 3 of ch. 163 of the Laws of 1890, is a requirement or qualification for holding office, seems to me can admit of no discussion ; the failure to take it disqualifies the person from holding, and prohibits him from continuing to hold any of the offices mentioned in the act; it is something to be done by him before he can hold office.

The statute in question is a law that increases the number of . oaths to be taken by officeholders; it is a law compelling a person to be a witness against himself in a matter that may lead to a forfeiture; it is a law requiring something to be done by the candidate, as a condition to his holding office, it requires an additional qualification by him to that set forth in article twelve of the constitution. It requires an additional oath of office; and it seems to me very clearly not only within the spirit and intent, but of the very letter of the constitution, and is, therefore, null and void; it follows that the relators were not required as a condition to holding the office of excise commissioner, to take the oath therein provided for. The facts being undisputed, and a verdict having been rendered subject to the opinion of the general term, the judgment entered thereon should be reversed, and judgment ordered as prayed for in the complaint of the plaintiff. Let judgment be entered accordingly, with costs.

Mayham, P. J., and Putnam, J., concur.


author: Putnam, J. Mayham, P. J. (dissenting.)

text:
    The People ex rel. The American Surety Co. v. Frank Campbell, Comptroller.

      (Supreme Court, General Term, Third Department,

      Filed December 6, 1893.)

    Corporations—Taxes—Capital employed without the state.
    About a third of relator’s capital was invested in real estate in Illinois and in United States bonds which were deposited with a trust company in Pennsylvania and with the minister of finance in Canada, to enable the relator to do business in those states and Canada. Held, that such portion of the capital could not be deemed to be employed in this state for _ the purposes of taxation, although the income arising therefrom was received by relator at its office in New York.
    Certiorari to review the determination of the comptroller of the state of New York declining to revise and resettle an account stated against the relator for taxes on the capital stock for the year ending November 1, 1891. The total amount of the company's stock for that year was $1,000,000, and the tax was assessed upon that sum.

      John J. Crawford, for relator; S. W. Rosendale, Att’y-Gen’l. for resp’t.
   Putnam, J.

The question to be determined is, what part of relator’s capital was used or employed within the state during the time in question. The total amount of the capital stock of relator was $1,000,000, and the comptroller assumed that it was all employed within the state. During the years for which the tax was so assessed it was shown that relator had $200,000 of its ■capital invested in real estate in Chicago, $121,187,50 of its capital invested in United States bonds, deposited under a deed of -trust in Pennsylvania, $60,500 of such bonds deposited with the minister of finance in Canada.

These bonds it was shown were so deposited and the real estate investment made to enable relator to carry on its business in Pennsylvania, Illinois and Canada. Were the bonds so deposited in Pennsylvania and Canada, and the $200,000 invested in real estate in Chicago, being a part of the capital of relator, employed ■within this state ? I think not. The $200,000 invested in real estate in Chicago is located out of this state, is taxable in Illinois, and a .part of the capital of relator placed in that state to enable it to ■there carry on business. It seems to me that such real estate may properly be deemed employed in Illinois. The way relator employs its capital is to keep it invested as a security for the benefit of those doing business with it. This $200,000 is invested in real estate in Illinois where those having claims against the corporation in that state can reach it. I think relator employed this portion of its capital in Illinois, and certainly did not employ it in New York.

So in regard to the bonds deposited in Pennsylvania and Canada. In the deed of trust to the Fidelity Insurance aud Safe Deposit Company, is the following provision, viz: “And whereas, •it is deemed expedient, and the said Surety Company is desirous of establishing and creating a trust fund in said commonwealth of Pennsylvania, by the conveyance in trust of certain securities hereinafter named, for the protection and benefit of all of its bond or policyholders wherever situated, subject, however, to the reservation named hereafter and to the trust and powers hereinafter provided.”

These United States bonds, a part of the capital stock of relator, were deposited in Pennsylvania and Canada-for the protection and benefit of its bond and policy holders in Pennsylvania, Canada or elsewhere. The capital of relator to the extent of said deposit was represented by United States bonds, and these bonds are placed as above. A creditor of relator in Pennsylvania or Canada can reach them in those places. The capital of relator to the extent of the bonds was located out of the state. The bonds in Pennsylvania were actually conveyed to the trustees and those in Canada were delivered to the minister of finance.

I think the papers show that the bonds in Pennsylvania and Canada were employed in those places. They were there to enable the corporation to do business, to give the corporation credit, and secure its policy holders, and those employed, and hence cannot be deemed to have been employed in this state.

I think these views are sustained by the case of People ex rel Edison Electric Light Co. v. Campbell, 138 N. Y., 543; 53 St. Rep., 184. In that case the relator’s capital originally was invested in patent rights. It sold patent rights to various local corporations outside of the state taking the stock of such corporations in payment, and the principal question in the case was whether the stock of such local corporations held by the relator was capital of the relator, employed within the state. This general term held that such stock was a mere investment. That presumably the certificates were held by the' corporation at its office in this state. That such stock was not 'employed by the corporation out of the state, and hence should be deemed employed within the state.

This doctrine, however, was overruled by the court of appeals. The court held, page.546, “The stocks which relator took of companies organized outside of the state stood for so much of relator’s capital invested outside of the state. It took a portion of its capital, to wit; a portion of its patent rights and employed it outside of the state to purchase those stocks. Its property in those corporations, represented by its shares of stock was outside of this state, and was in no sense employed here. Those stocks had no situs here and were not taxable here under any system of taxation, which has ever existed in this state. * * * As_ to a domestic corporation it is sufficient to subject it to taxation under the act that its capital was employed within the state, and it is employed where it is kept and used for the purposes of the corporation.”

It seems quite clear that the real estate in Illinois and the bonds transferred in trust in Pennsylvania as well as those deposited with the minister of finance in Canada cannot be said to be kept or used within this state. Such property is required and used out of the state. In the case last cited the company held bonds of foreign corporations received in payment of patent rights and such bonds were held to be taxable. The court used the following language in reference to them, page 547: Those bonds were presumably held at its office in this state, and such bonds, as well as all choses in action, unless kept, employed, or used outside of the state, have their situs at the domicil of the owner.” In the case under consideration the bonds are shown to be kept outside of the state and are there used to enable relator to carry on its business.

In the case referred to it was held that to entitle the corporation to exemption on account of that part of its capital stock invested in the stocks of foreign corporations, it was not necessary that such portion of its capital stock should be employed in business outside of the state. All that was necessary to entitle the corporation to exemption was that such portion was not employed within the state.

It is suggested by the learned attorney-general that the bonds of relator in question and the real estate in Illinois were subject to the claims of all creditors of the corporation, and that the income arising therefrom was received by the relator at its office in New York; The same, however, could be said in reference to the stocks of the foreign corporation referred to in People ex rel. Edison Electric Light Co. v. Campbell, supra. The stock referred to in that case was subject to all claims against the company, and presumably the income thereon was received by the corporation at its office in New York. It was also presumably received at that office and there used in the business of the corporation. It is to be inferred that all the business of the corporation was conducted at the New York office, and in doing the same the corporation used the income received from said stocks. .

I think the determination of the comptroller should be reversed, with costs to the relator.

Herrick, J., concurs.

Mayham, P. J. (dissenting.)

The relator is a corporation organized under the second department of chapter 463 of the Laws of 1853, and the several acts amendatory thereof and supplementary thereto, and has, since its organization, been engaged in the business for which it was incorporated, having its principal office in the city of New York.

The relator being liable to pay a tax into the state treasury for the use of the state under the provisions of chapter 361 of the Laws of 1881, and the several-acts amendatory thereof and supplemental thereto; on the 12th of November, 1891, forwarded its report to the comptroller, of which the following is a copy:

“New York City, Nov. 12, ’91.
“To the Comptroller of the State of New York:
Agreeably to law, as treasurer of the above company, I make the following report, viz.:
1. Date of organization of company, April 14,1884.
2. Total authorized capital of company, $1,000,000.
3. Whole number of shares of stock authorized, $20,000
4. Number of shares of stock issued, $20,000.
5. Par value of each share, $50.
6. Amount paid into the treasury of the company on each share, $50.
7. Amount of capital paid in, $1,000,000.
8. Amount of capital upon which dividends were declared, $1,000,000.
9. Date of each dividend, declared December 17, 1890, and June 25, 1891.
10. Amount of each dividend declared, $30,000.
11. Rate per cent per annum of dividends, six per cent
12. Capital stock employed in New York State, $618,750.
13. If not in New York state, where and how employed, $100,000 IT. S. reg. 4 per cent, bonds,cost value $119,750. Deposited with the Fidelity Ins. Co., Title Trust & Safe Deposit Co., of Philadelphia, Pa., $50,000 IT. S.- reg. 4 per cent, bonds, cost value $61,500. Deposited with- the Finance Minister of Canada, and the sum of $200,000 invested in real estate in the city of Chicago, 111.
S. S. Colville,
Treasurer.”

Subsequent to the filing of the report by the relator the comptroller imposed a tax in the following words and figures :

Comptroller’s Office, Albany, N. Y.
) j
“ The American Surety "Company, 160 Broadway.
In account with the State of New York, Dr.
“ For tax on franchise or business, based on dividends on capital stock employed in New York state, per chapter 542, Laws of 1880, as amended by chapter 361, Laws of 1881, chapter 151, Laws of 1892, chapters 359 and 501, Laws of 1885, chapter 353, Laws of 1889, and chapter 522, Laws of 1890, for the year ending November 1, 1891, as per report filed.

Dividend six per cent, on capital stock $1,000,000.

Tax one and one half mills (one-quarter mill for each one per cent, of dividend) $1,500.00.

The relator thereupon asked for a revision and readjustment of said account, for tax against said company before the comptroller, and after such hearing the comptroller made an order affirming the assessment and tax as originally fixed by him.

The main contention of the relator now is that from the original report and upon the evidence on such application for readjustment, it appears that a considerable portion of its capital was employed out of this state and was not therefore liable to taxation by the comptroller in this state.

This contention is based upon the fact that $121,187.50 of the relator’s funds or property were invested in United States bonds, which were deposited under a deed of trust in the state of Pennsylvania, $60,000 of the capital stock invested in like bonds which were deposited with the minister of finance in Canada, $200,000 invested in real estate in the city of Chicago, 111., and $35,000 of its property in railroad bonds deposited with commissioner of insurance in the state of Texas. That these securities were deposited in the states and country under laws or regulations with the government of the same for the purpose of enabling the relator to carry on its business there.

This question seems to arise chiefly on the construction that is to be put upon § 11 and the other sections which were added to the provision of chapter 542 of the Laws of 1880, by chapter 501 of the Laws of 1885. The added § eleven provides that “ In maldng to the comptroller the report in writing, or certificate of estimate and appraisal of the capital stock of such corporation, joint-stock company or association provided for in the first section of this act, it shall be the duty of such president or treasurer thereof, as the case may be, to state specifically the amount of capital stock employed within this state of such corporation, joint-stock company or association.”

Added § 14 of this act provides that: “ The comptroller is hereby authorized and directed upon application to him made by any corporation, joint-stock company, or association, to make, settle and adjust all accounts against such corporation, joint-stock company, or association, for all taxes and penalties arising under the third section of this act, since the 12th day of May, A. D. 1882, by taking as a basis for taxation the capital employed within the state by such corporation, joint-stock company or association.”

This act was again amended by chapter 353 of the Laws of 1889 by inserting a provision in the third section as follows :

“ If the dividend or dividends made or declared by such corporation, etc., * * * during any year ending with the 1st day of November, amount to six or more than six per centum upon the par value of the capital stock, then the tax to be at the rate of \ mill upon the capital stock for each one percentum of dividends so made and declared.”

It is not clear but that the provisions of the added §§ 11 and 14 in the act of 1885, so far as they relate to the taxation of the capital employed in this state was not repealed by the provisions of § 3 of chapter 353 of the Laws of 1889 above quoted.

But as the learned attorney-general does not seem to have discussed the effect of that amendment we are inclined to examine the question as it is presented by the proof under the provisions of the Laws of 1885 above referred to. What then must be the effect of the language of §§ 11 and 14 of chapter 501 of the Laws of 1885, which in effect provides that the tax 'must be upon the basis of the capital employed within the state.”

Was the entire capital stock employed in this state within the meaning of this act ? The principal office was in this state, and dividends were declared,in this state, all of its assets were subject to its liabilities, which were constantly being created in this state. Suppose it had given its guarantee to the amount, the same amount of its deposits in Pennsylvania, as a basis of doing business in that state; would that have reduced its assets in this state? Clearly not. Would the deposit of collaterals instead of the giving of its bonds be any different in effect ? It seems to me not. It was simply putting up collaterals as a guarantee for the performance of its obligations, incurred in another state or country. Such collaterals would be subject to recall by the company whenever its obligations for the security of which they were pledged were performed.

Under such circumstances, it seems to me, that the situs of such securities would still be in this state, where their owner resides, and to whose control they are at any time subject. ■

The same would, I think, be true of the railroad securities in Texas, and the deposits in the Dominion of Canada. Let us take for illustration the government bonds required to be deposited in the Federal treasury, as security for the circulation of the banks. Could , the bank making such deposit claim for obtaining immunity from taxation upon its stock, that because of the deposits of such collaterals, its capital represented in fact by such bonds was , not" within this state, and it was not employed in this state, and had no situs here, and was for that reason exempt from taxation?

It is true that the method of taxing the stock of banks and other money corporations is quite unlike that of taxing corporations of the character we are discussing. But there is similarity in this, that the corporation is located in a state, "and its deposits, as collateral security for its circulation, are or may be entirely in a different territory or jurisdiction.

The bond remains the property of the bank, and may be redeemed by the bank, and the return and retirement of the circulation secured by it. The bond represents the capital of the bank and the interest of the stockholder in it. So in the case of the corporation under examination, the bond, either government or railroad, represents the capital of the corporation and the interest of the individual stockholder, and its situs would seem from analogy to be controlled in the one case as'in the other by the location of the principal business, and the capital stock in both cases would seem to have its situs where the bank or corporation is located.

We are cited by the learned counsel for the relator to the case of People ex rel. Davis Colby Co., 66 Hun, 143-146 ; 48 St. Rep., 817, as one supporting its contention. It is true that that was a domestic corporation, incorporated under the laws of Hew York and authorized to do business in this and other states. But during the year for which the tax was imposed it moved its office for the transaction of business to the state of Pennsylvania. It made no sales within this state during the year; it manufactured nothing within the state; it occupied no premises, paid no rent, and employed no men within the state during the year.

It did no business within the state during that year. It manufactured ore roasters, kept a bank account, employed servants and paid them outside of the state. Upon these facts this court held that the entire business and capital was employed outside of the state, and under such circumstances could not be taxed by the comptroller in this state.

It needs no argument to show that that case is. distinguishable from this. The decision of that case is fully supported by the decisions in People, etc., v. Wemple, 131 N. Y., 64; 42 St. Rep., 632, and People v. Horn Silver Mining Co., 105 N. Y., 76; 6 St. Rep., 495. In People, ex rel., S. T. Co. v. Wemple, it was held that “ if a corporation has no property and no business within the state there is no basis upon which to compute a tax. 133 N. Y., 323-329; 45 St. Rep., 234.

In this case the court held that establishing an agency in this state, and selling by sample, goods manufactured in the state of Connecticut, carried with it to this state no part of the capital stock and could not be deemed an employment of the capital stock of the Connecticut corporation in this state.

“ It might selPits whole product by sample from an office in Yew Yo¿k to be delivered to the purchaser from the factory and yet not employ any part of its capital within the state.” It is therefore apparent that the mere transaction of the business of a corporation in another state, is not the employment of its capital there.

It follows that the mere transaction of business by this company in Pennsylvania, Texas and Canada was not the employment of its capital there. The case last cited also holds that if the foreign corporation kept on hand within this state, goods from which it sold, and made shipments in the usual way or money deposited here, and used in its business to that extent, it would be employing its capital here, which would be the subject of taxation.

But it will be observed that the relator had no goods or money in other states or country which it used in its business.

There does not appear to be any authority to pay one dollar of its guarantee or indemnity bonds out of. the government bonds deposited in Pennsylvania or Canada, or the railroad bonds in Texas, in the management or conduct of its business in those foreign states. We are, therefore, of the opinion that in depositing these securities out of the state the relator did not remove its capital stock beyond the jurisdiction of the state, but that it still continued to employ the same in the transaction of its business in this state. There does not appear to be any law or statute regulation in Pennsylvania under which the relators could deposit their bonds in the insurance department, or any other department of the state government, as a condition for doing business in that state, and the bonds would not, therefore, be taxable in that state within the principle of the decision of the case of the People v. New Eng. Mut. Life Ins. Co., 26 N. Y., 303.

Yor have we been able to find any evidence in this case of any •statute or law of the province of Canada or of the state of Texas requiring the deposit of their collaterals in' those jurisdictions.

Assuming as we must in the absence of proof that the law of that state and province are like our own on this subject, the case referred to in 26 N. Y., 303, supra, would govern. But if we are wrong in our conclusion, that the deposit of these securities outside of the state did not take that amount of capital stock outside of the state, still it seems to me that that capital could not be deemed employed there only to the extent of relator’s business-transacted in those places, and I find no evidence in the rehearing before the comptroller of the transaction of any business outside of the state.

The comptroller was, therefore, authorized to hold that such deposits were only for safe keeping or investment in aid of its business carried on in this state, and that the income from the same was realized and used in such business. People ex rel. Postal Tel. Co. v. Campbell, 24 N. Y. Sup., 208; 53 St. Rep., 790.

We are, therefore, of the opinion that the tax was properly imposed in this state as to the capital claimed to be employed by the relator in Pennsylvania, Texas and Canada.

The remaining question is as to the property of" this company-invested in real estate in the state of Illinois.

Was the property invested in that state employed in this state ?' It was leased by the relator and rents remitted to the home office-in New York, was not occupied by the relator for offices or in any other way for the transaction of its business, except to give-some kind of local credit in that state to the relator’s business-transacted there. While it must be conceded that this case is not. free from doubt we are inclined to the opinion that the relator ha» failed to establish that the assessment was erroneous. •

In this proceeding the onus is upon the relator to affirmatively establish the error. The rule upon this subject is settled, that when a corporation is subject to taxation under this act, the determination of the comptroller as to the assessment and tax, unless clearly shown to be erroneous, will be sustained People ex rel. American Contracting & Dredging Co. v. Wemple, 129 N. Y., 558; 42 St. Rep., 400.

On the whole we think the determination of the comptroller must be confirmed, and the writ of certiorari quashed, with fifty dollar» ($50) costs and disbursements.

Determination of the comptroller reversed, with $50 costs and printing and other disbursements.


author: Putnam, J. Herrick, J.

text:
    The People ex rel. Daniel E. Sutliff, v. The Board of Supervisors of Fulton County.

      (Supreme Court, General Term, Third Department,

      Filed December 6, 1893.)

    1. Sufervisoes—Audit of accounts.
    Where a claimant has had notice of the proceedings to audit his claim and an opportunity to examine witnesses and discuss the matter before a committee, the fact that he was not allowed to make an argument before the full board is not a ground for a reversal of its determination; that is a. matter within the discretion of the board.
    2. Same—Evidence.
    Although the court may review the action of the board of supervisor» in extreme cases in improperly receiving or rejecting evidence offered onu the audit of a claim against the county, yet ordinarily an error of the-board or its committee in receiving incompetent evidence will not cause at reversal of its determination.
    8. Same.
    Relator’s bill consisted of over a thousand items, which were summarized under four heads. The board after a hearing before a committee passed a resolution recommended by said committee which simply stated that the bill be audited and allowed at a portion of the amount claimed. Held, that the board failed to discharge its duty in failing to pass upon the items of plaintiff’s claim; that while it might not be necessary to pass on each item separately, yet in some way they should pass on and allow or disallow the items so that it may be known what the determination was as to each item.
    Certiorari to review the proceedings of the board of supervisors in auditing two bills of the relator as late sheriff of the county. '

      Smith & Nellis (Andrew J. Nellis and John M. Carroll, of counsel), for relator; N. H. Anibal (J. A. Dennison, of counsel), for resp’t.
   Putnam, J.

This is a certiorari brought to review the proceedings of the board of supervisors of the county of Fulton in auditing two bills of relator’s as late sheriff of said county.

Bill No. 1, a copy "of which is set out in the return consists of 1,287 items, and at the end thereof, is the following re-capitulation :

“ Fulton county,
To Daniel E. Sutliff, Dr.
For board of prisoners per schedule No. 1, 12,490
days, 1,784 2-7 weeks at $3.50 per week.....____ $6,245 00
For tub.fees, emptying tubs for prisoners, per schedule
No. 1, 1,784 2-7 weeks at 75 cents per week...... $1,338 21
For washing for prisoners, per schedule No. 1,1,7342-7
weeks at 75 cents per week.................... 1,338 21
For 2,577 turnkey’s fees, per schedule No. 1, at 37 1-2
cents......................................... 966 37
Total amount of schedule No. 1........ .......... $9,887 79

Bill No. 2 contains charges for taking prisoners to court, arrest, services, expenses, etc., and has at the end thereof the following recapitulation:

“Fulton county,
To Daniel E. Sutliff, Dr.
For taking prisoners to court, schedule No. 2....... $ 896
For criminal arrests, schedule No. 2............... ' 75 65
For services, expenses, etc., schedule No. 2......... 846 58
Total......................................... $43119

Both bills were promptly verified and were duly presented to the supervisors for audit. The board appointed a committee before whom the parties and their witnesses appeared and a large amount of testimony was taken. At the end of the hearing the committee reported, recommending the passage of the following resolution : “ Resolved. That the bill or claim of Daniel E. Sutliff, as sheriff of Fulton county, from November 1, 1888, to September 1, 1889, for $9,887.79, be audited and allowed at $1,809.02.”

“Resolved. That the bill of Daniel E. Sutliff as sheriff of Fulton county, called schedule ¡No. 2, for $431.19, be audited and allowed at $301.06.” The report was adopted by the board.

It is urged on the part of appellant that the supervisors erred in receiving incompetent evidence, in refusing to strike out evidence taken in the absence of relator and his counsel in refusing to allow relator to address the board, in allowing testimony taken before the committee to be read to the board in the absence of some of its members and in other regards.

We are of opinion, however, that no such error was committed in the regard above mentioned as requires a reversal of the determination of the supervisors.

On the bills being presented the board appointed a committee. Relator seems to have had a reasonable notice of the proceedings and have had an opportunity, with his counsel, to examine and cross-examine witnesses, and at the end of the examination stated that he had no other witnesses to examine. Counsel for relator was allowed to discuss the case before the committee at length. Whether he should be allowed to make an argument before the full board, or whether the stenographer’s minutes taken by the ■committee should be written out for the use of the board or not, was a matter within the discretion of the supervisors. And if some of the members went out from time to time during the reading of the testimony taken before the committee, which reading lasted seven days, we are of opinion that this fact would not compel us to set aside the finding. See People ex rel. Gilhooley vs. Commissioners, 23 Hun, 351.

Although the court may review the action of supervisors in extreme cases in improperly receiving or rejecting evidence offered on the audit of a claim against the county, People ex rel. Schabacker vs. State Assessors,, 47 Hun, 450; 14 St. Rep., 309; yet, ordinarily an error of the board of supervisors or its committee in receiving incompetent evidence will not cause a reversal of its determination. People ex rel. Board of Supervisors of Chenango Co. v. Board of State Assessors, 22 W. Dig., 453; People ex rel. Mizner v. Hair, 29 Hun, 125; People ex rel. Walkill Valley R. R. Co. v. Keator, 17 Abb. N. C., 369.

In the last casé the learned judge, delivering the opinion of the court, says: “¡Nowthis is a special proceeding, a proceeding authorized to be taken under a special statute ; it is not an action or proceeding to be conducted according to the strict rules of the common law, either in the admission of evidence or otherwise. It is like the case of People ex rel. Flannagan v. Police Commissioners of New York, 93 N. Y., 97. As there said, in regard to that case, having in view the special powers conferred and the purpose to be attained by the proceeding, it is not to be limited or trammeled by an application of strict legal rules, which prevail on trials and proceedings in courts of law.” Doctrines stated by the court in that case are applicable to this case. See, also, People ex rel. McCarthy v. Board of Com'rs of Police, 98 N. Y., 332-334.

We are, hence, of opinion that none of the objections to the proceedings of the supervisors above considered should cause a reversal of the decision made.

It is also urged by the appellant that, upon the evidence given in the case, relator was clearly entitled to the allowance of his bill or the greater part thereof, and that defendants had no right to reduce the same as they did. It is true that under the provisions of sub-division five, § 2140, Civil Code, the court can examine the evidence and set aside the determination of the board in the same cases that a court could set aside the verdict of a jury as against the preponderance of evidence. People, ex rel., McAleer v. French, 119 N. Y., 502; 30 St. Rep., 72.

But in this case it would be somewhat embarrassing for the court to undertake the examination of the very voluminous evidence given with the view of deciding which items of the plaintiff’s bill are supported by the testimony for the reason that it does not appear from the return of the supervisors or by their decision, what items of plaintiff’s claim were allowed and which were disallowed. The return shows a very long account presented by the relator, consisting of two claims, one of $9,887.79 and the other of $431.19. The first bill was allowed at the sum of $1,809.02 and the other at $301.06. It is impossible to say from the return of the board what items were allowed and what were disallowed.

A very large amount of testimony has been taken in this case and the parties have necessarily incurred great expense and we should much prefer to reach a conclusion sustaining the findings of the supervisors. But we think that they failed to discharge their duty in failing to pass upon the items of plaintiff’s claim. They failed to audit the bill properly and hence, within the provisions of sub-division 5, § 2140, Civil Code, their determination should be set aside. That the allowance by the supervisors of a gross sum on relator’s bill instead of passing on the items thereof was not a proper audit is well settled. In People, ex rel. Thurston, v. Board of Auditors, 20 Hun, 150, the question was passed upon by this general term and in the opinion the following language is used: “But, in order to a proper and legal audit of the account, the board must examine the bill in detail and allow or disallow the various items. It would be no proper or just audit of an account made up of numerous items to allow a gross sum instead of considering and passing upon the items.” This was held in the People, ex rel. Johnson, v. The Board of Supervisors of Delaware Co., 45 N. Y., 196. “* * * This precise question was decided in the case last cited. A legal and proper auditing of an account requires an examination of the items of which it is composed, and the allowance or disallowance of them, accordingly as they shall be found correctly or incorrectly charged both in fact and law.”

The above case was affirmed by the court of Appeals, 82 N. Y., 80.

The result is that defendants have failed to pass upon plaintiff’s claim. They must pass upon the items and should so discharge their duty in that regard, that the relator will be able to know which items were allowed and which disallowed. It may not be necessary for the hoard in their decision to pass on each item of relator’s bill separately. For instance, if they should disallow “ turnkey’s ” fees and all “ tub ” fees it would be sufficient to so declare without specifying each item. If they should allow the number of weeks board claimed but reduce the price it would be sufficient to merely state the price per week allowed. But in some way the board should pass on and allow or disallow tbe items of relator’s bill, and in such a way that it may be known what the determination in fact was as to each item. This may cause much trouble, but it seems necessary under the statute and decision.

In People ex rel. White v. Supervisors of Clinton County, 48 St. Rep., 8, where relator had charged a large number of days’ board of prisoners at a sum stated we held that one finding of the Supervisors fixing the price of board at sixty cents applied to a large number of items was sufficient, that in fact the supervisors passed on the items of relator’s bill. In this cáse, as above suggested, defendant may be able to pass on many items in the bill in question in one finding, but in any event it must audit the items of the bill.

On such an audit if the relator is dissatisfied, the items allowed and disallowed-being known, the evidence can be examined if necessary to determine whether the finding of the supervisors is supported or unsupported thereby.

The determination of the board of supervisors should be reversed with fifty dollars costs and disbursements to the relator.

Mayham, P. J., concur.

Herrick, J.

It seems to me that many of the items in the relator’s account there is no fee or compensation allowed by law, and that for such he is not entitled to recover under § 3280, Code of Civil Procedure

The board should also determine what the actual expense has been to the relator in providing the prisoners in his case with food pursuant to the statute. See Birdseye Statute, 2301; laws of 1847, chapter 460, title-1, article l,1 § 8.

Determination of board of supervisors reversed, with fifty dollars costs and disbursements to the relator.


author: Putnam, J

text:
    William A. Chrigstrom, Trustee, Resp’t, v. George McGregor, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 6, 1893.)

    1. Schools—Action to collect tax.
    An action by trustees of a school district to collect a tax cannot be maintained where the defendant resides in the district, and has sufficient goods and chattels therein to satisfy the tax.
    2. Same—Return bt collector.
    Where the collector has a valid levy upon property from which he could collect the tax the fact that the sale is forbidden by the owner of the property against whom the tax was assessed is no excuse for a return of the warrant uncollected.

      Appeal from judgment of the Clinton county court, affirming the judgment of a justice of the peace in favor of plaintiff.

      Corbin & Rowe (R. Corbin, of counsel), for app’lt; H. S. Haff, for resp’t
   Putnam, J

This is an appeal from a judgment of the county court of Clinton county, affirming a judgment of a justice’s court in favor of plaintiff. The action was brought to recover a school district tax assessed against the defendant, and which he neglected and refused to pay. It is not denied that defendant was a resident of the school district, and that he had sufficient personal property in his possession therein out of which the tax could have been collected. The collector levied on sufficient property and advertised the same for sale. The defendant forbidding the sale, and there being no bidders, the collector returned the warrant uncollected.

Section 86, chapter 555, Laws of 1864, as amended, provides as follows : “ Section 86. If the sum or sums of money, payable by any person named in such tax list, shall not be paid by him, or collected by such warrant within the time therein limited, it shall and may be lawful for the trustees to renew such warrant in respect to such delinquent person ; or in case such person shall not reside within their district at the time of making out a tax list, or shall not reside therein at the expiration of such warrant, or in case the property assessed be real estate belonging in an incorporated company, and no goods or chattels can be found whereon to levy the tax, the trustees may sue for and recover the same in their name of office.”

In a note contained in the code of public instruction prepared under the supervision of State Superintendent Draper in 1887 it is said: “The latter clause of the above section giving the trustees the right to sue, is confined to those persons who do not reside within the district at the time of making out the list, or who shall have ceased to reside therein at the expiration of the warrant, or to corporations having real property upon the tax list.” Code of Public Instruction, 366, note.

It will not be claimed that the above quoted section of the statute authorizes this action.

A school district is a quasi corporation, with some powers conferred by statute not generally possessed by such corporations. 2nd Bent’s Com., 278.

Such a corporation can exercise no powers beyond those conferred by the statute or which by necessary inference arise therefrom. 21 Amer. & Eng. Ency. of Law, 800.

Here the defendant lived in the district and concededly had sufficient goods and chattels therein to satisfy the tax. There is no statutory provision to sustain an action to collect a tax under said circumstances. On the contrary, § 86, chapter 555, Laws of 1864, as amended above quoted impliedly prohibits such an action. It authorizes an action to collect a tax against a non-resident of the district or in case the property assessed be real estate of a corporation and no goods or chattels can be found whereon to levy the tax, and thus impliedly forbids an action. This seems to be the proper coustruction of the statute. Expressio unius exclusio alterius. Wait v. Wait, 4 Com., 100-101; Matter of Washburn, 4 Johns. Ch., 113-114.

We do not'think that § 1926 of the civil code confers upon plaintiff a right to maintain this action. The effect of that section was not to create new causes of action but to confer upon the trustee a right to maintain in his own name, an action upon existing causes of action, in favor of the body represented by him, or of his predecessor or on contracts made by him. It was not intended to give the trustees power to maintain an action where no cause of action existed at the time of the enactment of said section. We think that no such a cause of action as set out in the complaint herein, then existed, because the statute did not authorize, but-on the contrary impliedly prohibited the maintainance of such an action.

The case of Torry v. Willard, 28 St. Rep., 641, is not a parallel one. That action was commenced by the trustees of a Union free school. The board of education of a Union free school is a corporation proper and not a quasi corporation like the trustees of the ordinary school district. The distinction between the two corporations is pointed out in Bassett v. Fish, 75 N. Y., 303-311. The statutory provision as to the two kinds of corporations are-not the same. And, hence, the case cited is not an authority here. A Union free school, being a corporation proper, can maintain an action upon any liability, express or implied, under the general power conferred on corporations. The plaintiff, however, represents a quasi corporation and can only maintain an action which is expressly authorized by statute. No cause of action exists in his favor unless expressly authorized.

Again, in the case cited it appears from the statement in the opinion that the collector was justified in returning the process without being able to collect the amount for the defendant. In this case it appeared that defendant had ample property from which the collector could have collected the tax, and hence, he' was not justified in returning the warrant uncollected. He had an actual levy on the property. We do not regard the fact that defendant forbid the sale as an excuse for" the collector’s neglecting to perform his duty.

In Torry v. Willard, supra, it was held that although there was no authority for the action, a common law action could be maintained on the ground that there being an obligation to pay the tax the law implied a promise to pay it In this case we could hardly hold that a common law action could be maintained in the face of the statute which, as we have seen, impliedly prohibits such an action.

Without considering the other questions raised by" the parties we think the judgment of the courts below should, be reversed, with costs in this court and in the county court.

Mayham, P. J., and Herrick, J., concur.


author: Putnam, J.

text:
    H. Cooley Green, Resp’t, v. Daniel C. Easton, App’lt.

      (Supreme Court, General Term,, Third Department,

      Filed December 6, 1893.)

    1. Manufacturing companies — Trustees—Liability for failure to file report.
    An unliquidated claim arising out of a breach of contract of employment is a debt within the meaning of § 12 of the manufacturing act.
    3. Same.
    In an action against a trustee under said section, after a judgment recovered against the corporation, the recovery must be limited to the damages recovered against the corporation, and cannot include the costs of the former action.
    Appeal from judgment in favor of plaintiff, entered upon decision by the court.

      Potter & Lillie, for app’lt; O. F. & R. R. Davis, for resp’t.
   Putnam, J.

Plaintiff brought this action against defendant as trustee of the Putnam Creamery Association, a corporation formed under chapter 40 of the Laws of 1848, and acts amendatory thereof, to recover the penalty imposed by § 12 of said act for the failure of said corporation to file the report required by the said section.

Plaintiff alleges that in the spring of 1890 the said corporation employed him to work for the ensuing season at the price of $50 per month, and that after giving him employment until August 1st, neglected thereafter to continue said employment for the balance of the season, being until about ¡November 1st. Plaintiff claims to recover damages resulting from such breach of contract by the company. That afterwards on or about January 1, 1891, plaintiff commenced an action against defendant on account of said breach of contract, and obtained judgment on October 6,1891, for $100 damages and $81.50 costs.

The plaintiff further alleges that defendant did not within twenty days from January 1, 1891 or of any year from the time of the incorporation of said company make or file the report required by § 12, supra.

The case was tried at special term, and plaintiff obtained judgment for $150 damages, with costs.

It is urged by defendant that the claim for damages set out in the complaint is nota debt within the meaning of § 12 of the Laws-of 1848. That such claim for damages constitutes a liability, but not a debt. While it is true that a claim for damages arising from a tortious act cannot be deemed a debt. Esmond v. Bullard, 16 Hun, 65, we are of opinion that an unliquidated claim arising out of a breach of contract of employment, is a debt within the meaning of § 12 of the manufacturing act. At the time the corporation failed to file the annual report some sum was due plaintiff by reason of the failure of the company to fulfill its contract of employment.

The amount was unliquidated but was in fact due. We think that under the act there may be a debt unliquidated as to the amount. At the time in question the corporation owed plaintiff on account of said failure to perform its contract an unliquidated sum, in other words, was indebted to him. This indebtedness can be properly deemed a debt within the meaning of § 12 supra. See N. J. Ins. Co. v. Meeker, 37 N. J. Law, 300, 301; Frazer et al. v. Tunis et al., 1 Binney, 254-262; Mill Dam Foundry v. Hovey, 21 Pick, 417, 434-5; Hayes v. Brown, 36 N. Y., 545.

We have examined the cases cited by appellant and think that none of them conflict with the views above stated.

The construction of the statute above given is the only reasonable one. No good reason is apparent why an action should be maintained against a trustee of a corporation for failure to file its annual report by a creditor having a liquidated obligation in preference to one having an unliquidated claim.

We think, however, that the recovery should have been limited to $100 damages. The complaint sets out the fact that an action was commenced against the corporation to recover for the claim in suit and that issue having been joined therein he recovered $100 damages and $81.50 costs. The plaintiff apparently intended to set up a cause for the amount so recovered, the damages and costs. It is settled that a recovery cannot be had against the defendant for costs of an action against a corporation. Rorke et al. v. Thomas et al., 56 N. Y., 559, 565.

It was not necessary for the plaintiff to obtain a judgment against the company before proceeding against the trustee. Miller v. White, 50 N. Y., 136. The complaint alleges a claim for damages against the corporation which had been liquidated by the judgment at $100 as the claim in suit upon which together with the costs the plaintiff claimed judgment. As we have seen he cannot recover judgment against the defendant for the said costs. His claim, therefore, should be limited to the amount of the damages which he sets out in his complaint was recovered against the corporation. The admission by the defendant on the trial that plaintiff’s damages for the breach of contract alleged was $150 is of no avail while the complaint remained unamended. Defendant while admitting the fact that plaintiff’s damages were $150, objected to the evidence as irrelevant and not within the issue.

It follows, therefore, that under a complaint which in fact alleges $100 damages the plaintiff could not properly recover $150 without an amendment of the complaint

Were the pleading otherwise, however, we are of opinion that plaintiff, having brought an action against the corporation to recover his claim, and issue having been made therein and he recovering only $100 afterwards bringing an action against a trustee for a failure of the corporation to file the annual report, can only recover judgment against the trustee for the amount for which he recovered judgment against the corporation. The judgment against the company should be deemed binding on the plaintiff. It liquidates his claim.

The judgment appealed from should be modified by reducing the amount $50. If the plaintiff within ten days after the order herein shall be served upon him stipulates to such reduction the judgment shall be accordingly modified, and as modified, affirmed without costs to either party.

Should the plaintiff fail to file such stipulation, judgment is reversed and a new trial granted, with costs to abide the event. Mayham, P. J., and Herrick, J., concur.


author: Merwin, J. Hardin, P. J.

text:
    Frederick H. Cyrenius, Adm’r, Resp’t, v. The Mutual Life Insurance Company of New York, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    1. Insurance [Life]—Construction of policy —Beneficiary.
    In an action on a policy of life insurance brought by F., an administrator of A, it appeared that the application for the "insurance was signed by A. and T., his son; the signature of the latter being opposite the expression, “ signatures of the applicants or the persons for whose benefit the assurance is applied for, “and the signatures of the former being opposite the expression," signature of the person whose life is proposed for insurance.” Upon the face of the application it was stated that the particulars therein called for, are mutually agreed to form apart of the contract with the company; that the person for whose benefit the assurance is to be effected by G. In the policy the amount is payable “ to the said assured, his executors, administrators or assigns.” and it recites that the money consideration is received from him. Held, that the “ assured ” referred to was G., and neither A. or his estate had any interest in the policy.
    3. Same.
    In such case, the fact that A. furnished the money for the first premium and the greater part of the other premiums is entirely consistent with the holding that G. was the beneficiary.
    3. Same.
    The delivery of such policy by G. to A., in the absence of any evidence showing any intent to transfer the title is not, sufficient to show that G. parted with his rights.
    Appeal from a judgment entered in Oswego county on the 24th day of October, 1892, upon a verdict at the Oswego circuit in favor of plaintiff for $4,944.66; also from an order denying a motion on the minutes for anew trial.
    The action is on a policy of insurance. In the complaint it is alleged that on the 18th of June, 1873, the defendant duly issued and delivered to Alvin Cyrenius its policy of insurance, whereby in consideration of $198.87 to the defendant then paid by George A. Cyrenius, son of Alvin, and of the payment of a like amount annually thereafter, the defendant did insure the life of Alvin Cyrenius in the amount of three thousand dollars for the term of his natural life, and agreed to pay the same to the assured, his executors, administrators or assigns in sixty days after due notice and proof of death; that the annual premiums were duly paid, less the dividends due under the policy, and the policy was in full force to the 18th of June, 1877; that on 6th June, 1877, Alvin Cyrenius died, and thereafter, on the 19th June, 1877, Lucy W. Cyrenius was duly appointed administratrix of the deceased, and proofs of death were duly forwarded to the defendant.
    The answer denies the delivery of the policy to Alvin Cyrenius, or that the premium due on 18th of June, 1876, was paid or that the policy was continued in force to June 18. 1877, or that anything was due thereon. It alleges that the premium due June 18, 1876, was not paid, and that the policy thereupon became void; that the policy was issued and delivered to George A. Cyrenius and for his benefit, and he became and was the owner thereof, and that the plaintiff or Alvin Cyrenius never had any interest therein; that on the 10th August, 1874, George A. transferred his interest in the policy to Frederick H. Cyrenius, and the same is now owned by Mm and not by the plaintiff.
    The plaintiff in the action as originally commenced on December 6, 1877, was Lucy W. Cyrenius as administratrix, etc., of Alvin Cyrenius, deceased. She has since died and Frederick H. Cyrenius was appointed administrator in her place and substituted as plaintiff.

      William H. Shepard, for app’lt; W. A. Poucher and William Tiffany, for resp’t.
   Merwin, J.

The main questions litigated at the trial were (1) whether the cause of action, if any, belonged to the estate of Alvin Cyrenius; and (2) whether there was a valid extension of time for the payment of the premium that became due on 18th June, 1876.

The court left it to the jury to say first, whether or not the policy was received by Alvin in his lifetime aS a policy insuring himself for the benefit of himself and of his estate, and was so held by the parties up to the time of his death, and, second, whether in 1876 before June 18th, George Cyrenius paid fifty dollars upon an agreement that that should be received as part of the premium, and that he should have time, a month or more for the payment of the balance, and thereafter, in accordance with the agreement did pay the balance. The court charged that if both these propositions were found in favor of plaintiff, he could recover, otherwise not. So we must assume that the jury found both of these questions in favor of plaintiff.

The appellant claims that upon the uncontfadicted evidence the plaintiff, as administrator, has no interest in the policy, and that the question of ownership should not have been submitted to the jury.

The policy is dated June 18, 1873, and by its terms it is provided as follows:

“ The Mutual Life Insurance of New York, in consideration of the representations made to them in the application for this policy, and of the sum of one hundred and ninety-eight dollars and eighty-seven cents, to them duly paid by George A. Cyrenius, son of Alvin Cyrenius, and of the annual payment of a like amount on or before the 18th day of June in every year during the continuance of this policy.
“ Do insure the life of the said Alvin Cyrenius of Scriba, in the county of Oswego, state of New York, in the amount of three thousand dollars for the term of his natural life. And the said company do hereby promise and agree to pay the amount of the said insurance at their office in the city of New York, to the said assured, his executors, administrators, or assigns^ in sixty days after due notice and proof of the death of the said person whose life is hereby insured, the balance of the year’s premium, if any, being first deducted therefrom.
“ This policy is issued and accepted by the assured upon the following express conditions and agreements:
1st. * * * Or if any of the statements or declarations made in the application for this policy, upon the faith of which this policy is issued shall be found in any respect untrue, then and in every such case this policy shall be null and void.”

The application for the insurance bears date June 14,1878. It is signed by George Arthur Cyrenius and by Alvin Cyrenius, the signature of the former being opposite the expression, “ signatures of the applicants or the persons for whose benefit the assurance is applied for,” and the signature of the latter being opposite the expression, “ signature of the person whose life is proposed for assurance.” Upon the face of the application it is stated that the particulars, therein called for, are mutually agreed to form a part of the contract with the company; that the person for whose benefit the assurance is to be effected is George Arthur Cyrenius; and it is declared “ by George A. Cyrenius, the applicant above named, and also by the person whose life is proposed for assurance,” that the answers made to to the questions are correct; that the above named applicant has an interest in the life of the said person whose life is proposed for insurance to the full extent of the amount of insurance above applied for.” And it is therein “ expressly stipulated and agreed that the above application and this declaration shall form the basis of the contract between the "above named persons and the said The Mutual Life Insurance Company of New York.”

It is to be observed that in the policy the amount is payable “to the said assured, his executors, administrators or assigns.” The question is, does the term “ assured ” refer to George A. Cyrenius, who is recited to have paid the consideration, or to Alvin Cyrenius, whose life was the subject of the insurance. In determining this question the application may properly be referred to. That was executed by both Alvin and George A., and on its face stated that it was the basis and a part of the contract. It is referred to in the policy as furnishing in part the consideration. The policy is stated to be issued upon the faith of the statements and declarations made in the application. Both are part of one transaction, and are to be read together in determining its character and effect.

Beading the policy and application together, it appears that George A. Cyrenius was the applicant for the insurance, and was the person for whose benefit it was to be effected. The policy recites that the money consideration is received from him, and in the complaint it is alleged that he paid it. Such being the case, according to the doctrine laid down in Smith v. Ætna Life Ins. Co., 5 Lans., 545, the assured would be deemed to be George A. Cyrenius. A similar view is taken in Conn. Mut. Life Ins. Co. v. Lucas, 108 U. S., 498.

But it is suggested that the policy was received by Alvin Cyrenius as a policy insuring himself for his own benefit and so held up to his death. And the jury have so found. The business in regard to the policy with the agent of the company at Oswego was transacted by George A. The policy when issued was delivered by the agent to George A. The latter testifies that when he received the policy he delivered it to his father; that his father furnished the money for the payment of the first premium, and the larger portion of the subsequent premiums that were paid in 1874, 1875 and 1876. He does not, however, testify that there was any arrangement by which the name of the beneciary should be changed, or by which the policy should be transferred to the father. On the contrary, George-A, on the 18th of June, 1874, signed an order to the defendant to apply the dividend on the premium due at that date, which was an act for the owner of the policy to do, and the dividend was so applied. On the 10th of August, 1874, he assigned the policy with warranty of title to his brother Frederick H. Cyrenius, and of this assignment the company was notified. On the 18th of June, 1875, Frederick H. gave an order to the defendant to apply the dividend on the premium due at that date, and it was so applied.

The case of Bickerton v. Jaques, 28 Hun., 119, does not apply, as there has been no attempt to change the beneficiary. As to that case it may be said that the same court in Ferdon v. Canfield, 39 Hun, 575. after referring to the Bickerton case, say in substance that the better rule is that the assured, that is, the persons to whom payment under the policy were to be made, are entitled to the benefit of the insurance as a vested right secured by the policy.

The fact that the father furnished the money for the first premium and the greater part of the other premium is entirely inconsistent with the idea that George A. was the beneficiary. The delivery of the'policy by George to his father in the absence of any evidence showing any intent to transfer the title is not sufficient to show that George A. parted with his rights. Ho assignment is alleged in the complaint.

There is, it seems to me, an entire failure on the part of the plaintiff to show that Alvin Cyrenius or his estate is the owner of the policy or of any right of action under it! The question was raised by the defendant on its motion for a nonsuit and exception duly taken. The execution is I think a good one.

In this view of the case it is not important to consider the question as to the extension of time of payment of the premium due June 18, 1876. The case shows that another action is pending for the same claim brought by Frederick H. Cyrenius individually as to the assignee of George A. Cyrenius.

Merwijst, J., concurs.

Hardin, P. J.

When this case was before us on a former appeal there' was a division in the court. A majority of the court seemed to be of the opinion that Alvin Cyrenius was not the owner of the policy and that his estate was not entitled to recover thereon. In the course of the opinion then delivered by me it was suggested that the evidence given upon the trial was sufficient to warrant a finding that Greorge A. had given the policy to his father, Alvin Cyrenius, and therefore, the action could be maintained by the administrator of Alvin Cyrenius; and that view was stated among others for dissenting from the opinion of a majority of the court then delivered. The evidence in the case now before us does not seem to warrant the conclusion that Greorge A. had transferred his title and interest in the policy to his father, and the judgment recovered by the plaintiff cannot be sustained on that aspect of the case. It seems that the conclusion reached in the foregoing opinion of Merwin, J., is in accordance with the views entertained by a majority of the court upon the former appeal upon the question discussed. Upon the reasoning given in the foregoing opinion, as well as upon the authorities cited therein, and bacause of the force of the decision made upon the former appeal by a majority of the court on that occasion, I deem it seemly that I should concur in the reversal of the judgment now before the court.

Judgment and order reversed upon the exceptions and a new trial granted, costs to abide the event.


author: Merwin, J.

text:
    The Village of Watkins, Resp’t, v. Henry L. Hillerman, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    Villages—Ordinances—Publication of.
    The charter of an incorporated village provided that every ordinance imposing any penalty or forfeiture for the violation of its provisions “ shall take effect at such time after the passage and publication thereof as shall be therein provided, and shall be published at least two weeks successively in all the public newspapers printed and published in said village;” such an ordinance was passed which contained no provision as to the time when it should take effect, except that it "shall take effect immediately after the legal publication thereof,” and no direction as to the length of time it should be published, or when, although it was published by order of the clerk of the board in all of the village newspapers, three or more successive weeks. Held, that the ordinance never became operative, as the provisions did not comply with the requirements of the charter, and moreover, because an improper discretion as to fixing time of publication was left with the clerk of the board.
    Appeal from a judgment entered in Schuyler county on the 24th January, 1893, in favor of the plaintiff against the defendant for the sum of fifty-five dollars damages, besides costs, upon the decision of the court upon a trial at the Schuyler circuit, before a court without a jury.

      O. P. Hurd, for app’lt; C. M. Woodward and W. T. Bishop, for resp’t.
   Merwin, J.

On the 24th February, 1891, the board of trustees of the plaintiff, under power given by the charter of the village, chap. 125 of the Laws of 1861, as amended by chap. 114 of the Laws of 1869, passed an ordinance in regard to fire limits. After specifying such limits, and the manner in which buildings might be constructed therein, it provided as follows:

“ Any violation of this ordinance, or of any of its requirements, shall subject the party or parties offending or violating the same to a penalty oí $25 for each and every violation thereof, and the further penalty of $10' for every 24 hours such violation shall be continued.
“ The foregoing ordinance shall take effect immediately after the legal publication thereof."

In the complaint it is alleged that on or about the 1st day of June, 1891, the defendant constructed a wooden building in violation of such ordinance, and has since maintained the same to the time of the commencement of this action, on or about December '21, 1891. The recovery is for one penalty of twenty-five dollars and three penalties of ten dollars each.

On the trial the defendant, among other things, claimed, and claims here, that the ordinance was inoperative and void, because, 1. The board of trustees did not direct the publication of the ordinance for any particular time, or at all. 2. The board of trustees did not fix or prescribe any particular time after the adoption of the ordinance and the publication of the same for the ordinance to take effect as required by the act incorporating the village.

In the charter, § 8 of title 4, it was provided that every ordinance imposing any penalty or forfeiture for the violation of its provisions “ shall take effect at such time after the passage and publication thereof as shall be therein provided, and shall be published at least two weeks successively in all the public newspapers printed and published in said village.”

There was in the ordinance no provision as to the time when it should take effect except the last clause of the ordinance as above quoted. There was no direction by the board of trustees as to the length of time the ordinance should be published or as to when it should be published and the board did not determine what should be a legal publication of the ordinance. It appears that there were three weekly newspapers in the village, and that the clerk of the board within a day or two after the 24th February, 1891, gave a copy of the ordinance to each of the newspapers and directed each of them to publish it three weeks. In one of the newspapers it was published for six successive weeks, commencing on the 26th February and ending on the 2d April, 1891; in another, it was published for five successive weeks commencing on 26th February, 1891, and ending on the 26th March, 1891; in the other, it was published for three successive weeks, commencing on the 14th March, 1891, and ending on March 28, 1891.

We are of the opinion that the provision in the ordinance as to the time it should take effect did not comply with the requirement of the statute. No definite time was fixed.

It was also the duty of the board to fix the time, not less than two weeks, during which the ordinance should be published. This involved the exercise of the discretion of the board as to what would be reasonably necessary and appropriate under the circumstances of the case, and this discretion could not properly be delegated to the clerk.

For these reasons we are of the opinion that the ordinance never became operative, and therefore did not furnish a basis for the present action. It follows that the judgment must be reversed.

Judgment reversed and new trial ordered, with costs, to abide the event.

Hardin, P. J., and Martin, J., concur.


text:
    In the Matter of the Petition of Thomas H. Stryker et al., Trustee for the dissolution of the New York Locomotive Works.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    OOBPOBATIOMS—PbEFEBENCB OF WAGES—WHO ABE HOT EMPLOYES.
    One who was clerk and bookkeeper at a salary of $100 per month, of a corporation which thereafter went into the hands of - a receiver, does not come within the provisions of chap. 376, Laws of 1885, regarding the preference of wages due “ employes, operatives and laborers;” nor does one who was employed as draftsman in the office of the company at a salary of 8125 per month; nor one who was employed as superintendent or foreman, at a monthly salary, although he sometimes performed manual labor along with the ordinary workmen.
    Appeal by George D. Little, Thomas W. Hodgson, Richard Williams, William B. Leming, J. E. Stebbins and H. M. C. Skinner from an order of the Jefferson special term made June 23, 1893, and entered in Oneida county, July 3, 1893.
    The respondents, Thomas H. Stryker and Edward Comstock, as receivers of the corporation, The New York Locomotive Works, applied by petition to the court for instructions as to whether or not the claims of the appellants, with some others, should be paid by the receivers, out of the funds in their hands, as preferred claims and be treated as claims for wages. By the order appealed from, the receivers were directed not to pay as preferred claims and not to treat as claims for wages the claims mentioned in the petition or any of them.
    The petition was verified and, after a statement of a claim by the treasurer of filie corporation, it stated as follows as to the claims of the appellants : “ George D. Little was a clerk and
    bookkeeper in the office of said corporation, and under the said treasurer, at a salary of $100 per month, and there was due him on the said 13th day of January, 1892, $120, being for his services to that time.
    “ H. M. C. Skinner was superintendent of the said corporation, during 1891, at a salary of $125 per monthh, and there was due him for his services $225 on the said 13th day of January, 1892.
    “ J. E. Stebbins was a draftsman, employed in the office of said corporation, at a salary of $125 per month, and there was due him for his services on the said 13th day of January, 1892, $162.50.
    “ T. W. Hodgson was foreman of the boiler shop of the said corporation, at a salary $225 per month, and was employed during the year 1891, and up to the said 13th day of January, 1892, and there was due him at that time, for his services, $325.
    “ R. Williams was also foreman in the said corporation, at a salary of $125 per month, during the year 1891, and there was due him for services on the said 13th day of January, 1892,. $225.
    “ All of the foregoing persons gave their entire time, attention and services to the various departments of the said corporation in which they were employed.
    “ Petitioners further state that another claim by W. B. Deming, of New York city, for $145, being amount of a draft sent by him to Brazil, to pay the expenses of an agent or employe of the said corporation, named Smith, returning from Brazil, and this draft was received by Smith, and the money obtained thereon ; that during that period the petition herein for the dissolution of said corporation was filed, and owing to the length of time necessary for mail communication the said Deming was not able to stop the said draft, and as the proceeds thereof were used by the said Smith to pay his way home, said Deming claims that your petitioners should pay him the amount in full.”
    On the part of the claimants, an affidavit of George D. Little was presented in which he states, “ that his services consisted in keeping a set of books of account, and acting as a clerk in the office of the corporation. That none of the matters pertaining to the management of the corporation was entrusted to deponent’s judgment or discretion, and all of the work performed by him was done under the management and orders of the officers of said-corporation. That deponent’s work was toilsome and laborious, and was routine work, varying but little in its character from day to day. That deponent was required to work from 8 o’clock a. m. until 5 o’clock P. m. on each day; that deponent was hired, and received the sum of $100 per month, which was paid to him under his contract of hiring at the end of each month for his-wages.
    “ That H. M. 0. Skinner, named in said petition, was employed as a foreman over the boiler, casting, erecting and finishing departments of said locomotive works. That it was the duty of said Skinner to direct the work of the men employed in said several departments, and that he often performed manual labor,, working with and assisting the mechanics and workmen of said departments in the performance of their duties. That he was required to work from 7 o’clock A. sr. to 6 o’clock p. m. of each day, and was hired and paid monthly the wages of $125 per month.
    “ That Richard Williams, named in said petition, was employed as a foreman ; that his duties were of the same nature as-the said H. M. C. Skinner for said corporation. That he worked with and assisted the mechanics, workmen and laborers, and performed ordinary manual labor with them, and the same class of work which is usually required of mechanics in machine shops.
    ' That he was required to work from 7 a. m. to 6 P. M. of each day, and his wages were $125 per month, which was paid to him monthly, and that he was hired by the month.
    “That Thomas W. Hodgson was employed by said corporation as a foreman in the boiler shop. That in addition to superintending the work of the men employed, said Hodgson assisted, and worked with the said mechanics and workmen, performing the same ordinary manual work which is usually required of mechanics in machine shops ; that he was hired and paid the sum of $225 per month for his wages, which was paid to him monthly, and that he worked the same hours each day as the said Skinner and Williams aforesaid.
    “ That the said J. E. Stebbins was employed by the month in tiie drafting room of said corporation at the monthly wages of $125 per month, which was due him each month. That he was required to work from 8 o’clock in the morning until 6 o’clock at night. That he performed his work under the orders of the several foremen of said corporation, and that his work was of the same character which draftsmen are ordinarily required to do in mechanical work.
    “ That deponent, together with each of the employes named aforesaid, were required to and did perform for said corporation menial or manual service and work, and the same class of ordinary labor that operatives, mechanics, laborers and workmen usually perform in machine shops and manufactories in the state of New York when employed by the day, week or month.
    “ That on or about June 15, 1891, said corporation, by its officers and agents, made a contract with one John H. Smith, by the terms of which said Smith was hired to go to Brazil, having in charge locomotives shipped to that place by said corporation. That as part of his duties he was to assist in the mechanical work of erecting and putting in order the machinery of said locomotives on their arrival at their destination. That said Smith was to receive for his wages the sum of $5.00 per day for each day that he was absent on said trip; that there is now due and unpaid on said contract of hiring the sum of $145 for 29 days work, which said corporation and its receivers have not paid.”
    An affidavit of William B. Deming was produced, in which he stated that he was one of the firm of Deming & Ridgeway : “ that on or about October 15. 1891, one John H. Smith was in the employment of the New York Locomotive Works, of Rome, N". Y., as a laborer or mechanic, and was engaged in manual labor in erecting locomotives of said corporation in Brazil. That while said Smith was so employed he represented to Deming & Ridge-way that he was in need of funds; that Deming & Ridgeway thereupon, and in February, 1892, purchased of said Smith a debt, claim or demand for his said services, due or to become due against said corporation, for the sum of $145. That deponent is now the owner and holder of said claim, no part of which has been paid.

      Chas. Carmichael, for app’lts; N. E. Kernan, for resp’ts.
   Merwin, J.

The appellants claim that they are within the provisions of chap. 376 of the Laws of 1885, which provides that “ When a receiver of a corporation created or organized under the laws of this state and doing business therein, other than insurance and moneyed corporations, shall be appointed, the wages of the employes, operatives and laborers thereof shall be preferred to every other debt or claim against such corporation, and shall be paid by the receiver from the moneys of such corporation which shall first come to. his hands.”

The case of Short v. Medbury, 29 Hun, 39, is cited as controlling in appellants’ favor. That was an action against a stockholder of the Rochester Frear Stone Company to enforce that provision of the statute. Sec. 18 of chap. 40 of the Laws of 1848, which provides that the stockholders of the corporation shall be liable “ for all debts that may be due and owing to all their laborers, servants and apprentices, for services performed for such corporation.” Curtis, the assignor of the plaintiff, applied to the company for a situation, and was told that one would be given to him if he would procure a loan of $3,000 for the company. This he did, and began to work for the corporation at a salary of $1,000 a year, payable monthly or as he wanted his pay. He acted as foreman, .took part in the manual labor required to manufacture the stone, kept the time of the men, solicited orders, collected bills, and did whatever was required of him by the secretary of the company, who acted as its general superintendent. It was held that Curtis was a laborer or servant within the meaning of the act, and it was said that “he rendered manual service of the same kind as that performed by the other laborers in the employ of the company, and it seems to have been one of his principal duties and not a mere incident to his position.”

The same statute was under consideration in the case of Wakefield v. Fargo, 90 N. Y., 213, which was decided shortly before the Short case but probably not then published, as it is not referred to in that case. In the Wakefield case it is said (p. 217-218): “ It is plain we think, that the services referred to are menial or manual services—that he who performs them must be of a class whose members usually look to the reward of a day’s labor or service, for immediate or present support, from whom the company does not expect credit, and to whom its future ability to pay is of no consequence; one who is responsible for no independent action, but who does a day’s work, or a stated job under the direction of a superior. Gordon v. Jennings, L. R., 9 Q. B. D., 45; Dean v. DeWolf, 16 Hun, 186; aff’d, 82 N. Y., 626. * * * To the language of the act must be applied the rule common in the construction of statutes, that when two or more words of analogous meaning are coupled together, they are understood to be used in their cognate sense, express the same relations, and give color and expression to each other. Therefore, although the word “servant ” is general, it must be limited hy the more specific ones, “ laborer and apprentice ” with which it is associated, and be held to comprehend only persons performing the same kind of service that is due from the others.”

In People v. Remington, 45 Hun, 331; 10 St. Rep., 310, which involved the consideration of the statute of 1885, it was held that the superintendent of the company employed at an annual salary, and an attorney to whom, the company was indebted for professional services were not “ employes, operatives or laborers," or their earnings “ wages,” within the meaning of the statute. In the opinion in that case, which upon this subject was concurred in by all the members of the court, the meaning of the expression, “ the wages of the employes, operatives and laborers,” and the authorities upon the subject were fully considered, and it was said that “ this like many similar statutes in this and other countries, was designed to secure the prompt payment of the wages of persons who, as a class, are dependent upon their earnings for the support of themselves and their families, and it was not designed to give a preference to the salaries and compensation due to the officers and employes of corporations occupying superior positions of trust and profit.” Force was given to fhe use of the term 81 wages,” it being said that it has a less extensive meaning and embraces a smaller class of credits than “ earnings.” The case of South & North Ala. R. R. Co. v. Falkner, 49 Ala., 115, was cited in which it was said that the term wages ” in its application to laborers and employes “ certainly conveys the idea of a subordinate occupation which is not very remunerative, one of not much independent responsibility but rather subject to immediate supervision.”

The Bemington case was affirmed by the court of appeals upon the opinion delivered at the general term. 109 N. Y., 631. In People ex rel. Satterlee v. Board of Police, 75 N. Y., 41, it is said by Judge Miller that “ employes ” are usually considered as embracing laborers and servants, and those occupying inferior positions.

The case of Brown v. A. B. C. Fence Co., 52 Hun, 151; 23 St. Rep., 515, is cited as sustaining the appellants’ position. There a person employed to assist the general manager of a corporation in keeping its books and to clean the office and show room of the corporation, and to assist in putting together, taking apart and shipping wire wicket fence and weaving machines, at the salary or wages of forty dollars a month, payable in four instalments of ten dollars each, was held to be an employe within the act of 1885. This does not, I think, reach the present case.

Having in view the use in the statute of the term “ wages,” and the rule of construction, indicated in the case of Wakefield v. Fargo, as to the kind of service designed to be covered by the terms “ employes, operators and laborers,” and the princijdes laid down in the Wakefield and the Bemington cases, with the apparent approval of the full court in each case, it should, I think, be here held that the claims of the appellants are not within the statute.

The appellant Little was a clerk and bookkeeper in the office of the corporation at a salary of $100 a month, payable under his contract of hiring at the end of each month. Stebbins was a draftsman employed in the office of the corporation at a salary of $125 a month, payable monthly. These are not of the grade of workmen designed to be protected by the act, and the fact that they took their orders from the officers or foreman of the corporation does not materially change the situation.

Skinner was superintendent of the corporation.' This is stated in the - petition, and is not denied in the affidavit of Mr. Little, which states that he was employed as a foreman over the boiler, casting, erecting and finishing departments, and it was his duty to direct the work of the men employed in said several departments. Williams was employed as a foreman, and his duties were of the same nature as those of Skinner. Bach had a salary or wages of $125 a month, payable monthly.

Hodgson was foreman of the boiler shop at a salary of $225 a month payable monthly. The statute does not reach this grade and kind of employment and the fact that these men sometimes performed manual labor along with the ordinary workman or alone does not change materially the situation. It is very clear that they were not hired for that purpose. The inference is plain whatever they did in that line was incidental to their general employment. In this respect the case differs from the case of Short v. Medbury, above cited.

The claim of Deming, as stated in the petition of the receivers was not at all for services but for money loaned to one Smith one of the employes of the corporation, and as such there was no basis for preference. Deming in his affidavit states that in February 1892 he purchased of Smith a claim that he had against the corporation for services in the amount of $145. He does not state that he presented this claim to the receivers. There is no affidavit of Smith on the subject. Assuming however that Deming represents the claim of Smith and that the facts as to it are as stated in the affidavit of Little, the claim for preference is not made out. Little states that on June 15, 1891, the corporation made a contract with Smith ,by which Smith was hired to go to Brazil having in charge locomotives shipped to that place; that as a part of his duties he was to assist in the mechanical work of erecting and putting in order the machinery of the locomotives on their arrival; that he was to receive for his wages five dollars a day for each day that he was absent on his trip and that there is now due and unpaid on the contract of hiring $145 for twenty-nine days’ work. The affidavit of Little is dated April 22, 1898. It does not state what time the claim accrued, nor do"es it state what the duties óf Smith were. It gives a part but whether or not this was incidental to his main duties does not appear.

The foregoing suggestions lead to an affirmance of the order.

Order affirmed.

Hardin, P. J., and Martin, J., concur.