author: Finch, J.

text:
    Agnes Butler, Resp’t, v. James A. Townsend et al., App’lts.

      (Court of Appeals,

      Filed March 20, 1891.)

    1. Master and servant—Negligence.
    Plaintiffs intestate, while at work for defendants in caulking a ship, standing upon a staging, was precipitated therefrom by the breaking of a defective plank and killed. The staging was erected by "another class of caulkers known as “lumpers,” hired by defendants under a separate contract with the foreman, one Kennovan. Held, that the “lumpers” were not servants of defendants, but independent contractors, entirely under the control of Kennovan, and that defendants were not liable.'
    3. Same.
    The trial court held that the lumpers were servants of defendants from the fact that the latter directed their own foreman “to look after the safety of the scaffold,” Held, that even on that theory defendants were not liable, as the duty violated related not to the place of work, but to an appliance or instrumentality used, and the negligence of the lumpers existing and continuing when the decedent was employed was that of his fellow , servants, even though in some sense it had an earlier origin.
    (Huger, Oh. J., Andrews and O’Brien, JJ., dissent.)
    Appeal from judgment of the supreme court, general term, second department, affirming judgment for plaintiff.

      Eseh Cowen, for app’lts ; Charles M. Stafford, for resp’t

       Reversing 33 N. Y. State Rep., 1055.

   Finch, J.

The evidence in this case shows that the process of repairing the exterior hull of a vessel placed in a drydock for that purpose requires the skill and labor of at least two classes of workmen, known in the business as “ lumpers ” and “ caulkers.” The duty of the former is said to be to erect the staging around the vessel, grave the vessel, and put on the felting, if necessary, and run the metal; and when this work is done, that of the caulkers follows. The lumpers consist of eight or more men known as the “ lump gang,” one of whom acts as their foreman. There were two of these “gangs” in Brooklyn, and one or the other of them was always employed in doing that kind of work. The foreman or “boss ” of the lump gang at the scene of the accident was Kennovan. He testifies that he made a contract with the defendants to do the lumper’s work upon the vessel, which included the erection of the staging, for four cents a sheet of the metal run on. He said “ it is the understanding with us men that we made a contract with the defendants to do this lumping work you have spoken of. After we had performed that work we entered upon the duties of a caulker.” He added that for those duties he was paid caulkers’ wages by the day. His contract as a “ lumper ” he further described thus: “ My contract with Townsend and Edgett was to erect the scaffold and to grave the vessel, put on the felt and run the metal. That included the whole thing, and I received for that four cents for every sheet that went on the ship. That was for the whole gang, as I contracted for the whole gang. That is my usual custom. In this particular case I agreed to put up a good scaffold.”

Under this agreement, which is in no respect disputed, it is clear that Kennovan and his associates, while performing their contract, were independent of the control of the defendants and not subject to their orders. Kennovan could Mre or discharge his men, dictate who should work on the job and who should not, and assign to each his place and specific duties. 'The defendants could do neither. Their rights were under the contract which they had made, and that committed the whole lumper’s work to Kennovan and his associates, who, while performing their contract, could employ or discharge whom they pleased, and subject to no orders or directions of the defendants.

These lumpers erected the staging. A single plank was defective and broke with the weight of the men upon it, one of whom, not belonging to the lump gang, was fatally injured and for his death this action has been brought.

I think, upon the evidence given, that the lumpers who erected the staging, while employed by the defendants, were not in a legal sense their servants. One may be employed without being a servant, and have an employer who is, nevertheless, not the master. King v. N. Y. Central R. R. Co., 66 N. Y., 181. The relation exists where the employer selects the workman, may remove or discharge him for misconduct, and may order not only what work shall be done, but the mode and manner of performance. Blake v. Ferris, 5 N. Y., 48; Town of Pierrepont v. Loveless, 72 id., 214, 215; Wood on Master and Servant, § 314. That test applied to the relation between Kennovan and the defendants shows that the lumpers were independent contractors and not servants. There were two such gangs, each under a foreman, or “boss,” who contracted for and controlled their skilled labor. The foreman admitted or excluded men, diminished or increased their number, and assigned them their places and tasks. The defendants could make requests or give advice, but could issue no effective orders as to the mode and manner of doing .the work. They owed the separate workmen no separate wages, and no wages as such. Their liability was to Kennovan for a contract price. How much of that was payable to each member of the gang the defendants could not know or in any manner determine. The ground upon which the trial court held that the lumpers were servants of the defendants appears to have been that the defendants directed their own foreman to “look after the safety of the scaffold.” By the contract Kennovan was to build a good one. That the defendants kept a watch and an oversight over the contractors to see that they properly fulfilled their contract, does not affect, still less change, the actual relation of the parties. Slater v. Mersereau, 64 N. Y., 138.

The case, therefore, is governed by the doctrine of Devlin v. Smith, 89 N. Y., 470, where it was held that one who put his own servants upon a scaffold for the construction of which he had contracted with a skilful and experienced builder, was not liable for an injury resulting from negligence in its construction; that he was at liberty to accept it without inspection, and was not in fault for putting his own workmen upon it. Here the staging was erected by skilled and experienced workmen who always did that work in the dockyard, who contracted to put up a good scaffold, and who were to test it by first using it and exposing their own lives upon it. It was not negligence for the defendants to accept it as perfect and expect their own servants to use it.

It is true that the plank for the staging under the customary rule were to be and were furnished by the defendants, but the evidence shows that an abundant supply of sound and suitable material was so furnished, and that the particular plank which broke had been examined and condemned and marked as unsafe, and that the sole negligence which occasioned the injury was a careless selection of that plank by the lumpers, for which the defendants were not responsible.

No liability, therefore, was established against them.

But even on the theory adopted by the trial court, that the lumpers were servants of the defendants and not independent contractors, the case was sent to the jury on a wrong principle. The theory adopted was that the defendants owed to the caulkers the duty of providing for them a reasonably safe place in which to do their work ; that whoever was chosen by the master to perform that duty became his agent, with whose negligence he was chargeable ; that the lumpers were such agents, and that they having been negligent in putting an unsound plank into the staging, the case stood as if the master had done it himself personally, and so became responsible for the consequent injury. It was a mistake to assume, as the duty violated, that of providing a safe place for the work of the servants. The staging was not, in the sense of the rule, the place in which the work was to be done, but an appliance or instrumentality by means of, or through the .aid of which the caulkers were to do their work.

The distinction is sometimes very important; for a place, in its broad sense, is never safe in which an accident happens, and an accident always happens in some place, and so the master might almost become an insurer. Properly enough an existing mine, or a railroad track crossing a cattle-guard, or the rooms in a factory have been deemed “ places ” for work which the master was bound to make safe by the exercise of reasonable care; but a platform upon which the servant was directed to stand, we have treated, not as' a place, but as an instrument or appliance of his work, Benzing v. Steinway, 101 N. Y., 547, and so of an elevator upon which the servant rode in the performance of his labor. Stringham v. Hilton, 111 N. Y., 188; 19 N. Y. State Rep., 621. In one sense the place of an engineer’s work is on his locomotive, but a defect in that is a defect in the machine which the master has supplied and not in the place of labor which he has furnished. The staging in the present case was as much an appliance or instrumentality as if it had been a ladder on some round of which the workman was required to stand in order to do his work, and we shall, at least, avoid possible confusion if we confine our attention to the exact duty which the master violated, if he violated any.

Assuming then that the lumpers were servants of the defendants, acting under the direction and orders of their foreman, they were also the fellow servants of the caulkers. Both were working at the same time under a common master, upon the same vessel and engaged in the same general employment. That to some extent their trades were different and one might not be skilled in the work of the other is immaterial where all were working upon the hull of the vessel, for one general purpose, to accomplish one common result and under one common control. Svenson v. Atlantic St. Co., 57 N. Y., 108. Their labor was more closely and clearly related to the general purpose than that of a car repairer, a head brakeman, and a yard master, who were held in a given instance to have been fellow servants. Besel v. N. Y. Central, 70 N. Y., 171. Now the evidence in this case demonstrates that as between the master and his servants it was the duty of the servants and not of the master to erect the staging. That was the uniform rule and unbroken custom which everybody understood and upon which everybody acted. It was a detail of the servant’s work, and a duty of the operatives which they and not the master were bound to perform. The duty of the latter was to furnish the horses and the plank, and of the former to construct the staging for their own convenience and use. It was as much a part of their work as to put on the sheets of metal which the master supplied. Indeed, the learned trial judge admitted all this when he charged the jury that the defendants were not bound to personally inspect and select the planks which were used. Of course the master was not liable to the servant for an injury due to the neglect of fellow servants. But the trial court held that the decedent and the lumpers were not fellow servants, and apparently upon the theory that the special and peculiar work of the lumpers was done before the work of the decedent commenced, and so the parties were not fellow servants when the negligent act of selection occurred. That is not a"t all established by the evidence, but is immaterial even if it be true, for the accident happened while the parties were fellow servants, and through the negligence of one who was a fellow servant, and not through any negligence of the master. It was the presence and the negligent use of the defective plank in the staging from which the injury came, and that was chargeable to the servants, who not only put it there, but left it there for the common use of all. A detail of the servants’ work cannot be transformed into a master’s duty by reference to the dates of employment. The new servant takes the risk of any existing negligence of his fellow servants as well as that which may thereafter occur. It may possibly be that if the lumpers had been discharged and ceased to be servants at all, and the defendants hiring others had furnished the erected and completed staging for their use, a different question would have arisen, perhaps involving some new duty of the master. But nothing of that kind occurred. Caulkers and lumpers, at the time of the accident, were working together upon the same vessel, for the same general purpose and under the common master when the negligence became operative which caused the injury. Tracing it back to an earlier origin is of no consequence unless thereby some new duty.of the master has been brought into existence.

The trial court, therefore, erred in the theory upon which the case was sent to the jury, even if the lumpers were not independent contractors. The duty violated, if any, related not to the place of work, but to an appliance or instrumentality used; the lumpers and caulkers were fellow-servants, and the negligence of the former, existing and continuing when the decedent was employed, was that of his fellow-servants, even though in some sense it had an earlier origin. The exceptions taken cover the errors .suggested and bring out clearly the fact that no question of personal negligence on the part of the master was submitted to the jury, but only one of imputed negligence, for which he was declared responsible.

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

Earl, Peokham and Gray, JJ., concur; Rtjg-er, Oh. J., Andrews and O’Brien, JJ., dissent.


source: Caselaw Access Project

author: Gray, J.

license: Public Domain

text:
    Philo L. Mills et al., Pl’ffs, v. J. Foster Parkhurst, Assignee, et al., Def’ts.

      (Court of Appeals,

      Filed March 20, 1891.)

    1. Assignment for creditors—Action to set aside—Not an election NOT TO SHARE IN DISTRIBUTION OF ESTATE.
    Where creditors, having made proof of their claims before an assignee, afterwards bring an action to set aside the assignment as fraudulent, in which they are eventually defeated, it does not constitute an election of remedies which will preclude them from afterwards sharing in the assigned estate.

      % Same.
    The assignment contained preferences, but appellants were not named as preferred. Held, that, although entitled to share in the distribution of the estate, they could not claim preference as being individual creditors of the debtor, as their claim was clearly excepted by the terms of the deed of assignment.
    Appeal from judgment of supreme court, general term, first department, affirming judgment sustaining exceptions of creditors to the allowance of appellants’ claims.
    The appellants, being creditors of Henry W. Ferine, an insolvent debtor, upon judgments against him, brought an action to set aside an assignment made by Ferine for the benefit of his creditors as fraudulent, in which they were eventually defeated. Before the action was commenced they had made proof of their claims before the assignee. The deed of assignment provided for certain preferences in payments from the assigned estate; but these appellants were not among the creditors preferred. The present action was brought on behalf of the creditors to compel the assignee to account and for a distribution of the assets in his hands. A reference was therein ordered to a referee to ascertain and to report the amount due each of the creditors who should come in under the order and seek the benefit of this action. Appellants appeared by counsel before the referee; but protesting and giving notice that they waived no rights or remedies theretofore exercised, or that might thereafter be insisted upon. At that time an appeal was pending to this court from the judgment in their action, which upheld the validity of the assignment, and objections were made by other creditors to the allowance by the referee of the appellants’ claims, upon the ground that they were proceeding in hostility to the assignment in prosecuting their other action. The referee, however, allowed the claims, on the theory that by appearing and’ refusing to withdraw their claims, there was an election to participate in the accounting. Upon the coming in of the referee’s report, the court at special term sustained the exceptions of the creditors to the allowance of the appellants’ claims, on the ground stated, and the court at general term affirmed that decision. From the judgment of affirmance the appellants have appealed to this court.

      Benjamin S. Harmon, for app’lts; Humphrey McMaster, for ■ resp’t.

       Reversing in part 30 N. Y. State Rep., 138.

   Gray, J.

The first of the two questions which were presented relates to the right of the appellants to come in and share in the distribution of the assigned estate, and the argument against their right is that in bringing and prosecuting the action to set aside the assignment as fraudulent, they had thereby elected to repudiate the assignment.

The doctrine of election, which has been thus far successfully invoked in support of the argument, does not seem to be applicable to such a case and no authority is found warranting its application. The learned justices, who considered the question at the special and general terms, were influenced in their conclusions by the supposition that these appellants were pursuing two remedies upon their claims against their debtor Ferine and that though direct authority might be wanting upon precisely such a case, yet analogy with adjudged cases, which hold that inconsistent remedies may not be availed of, or concurrently pursued, required the application of the doctrine of election in this instance. If the definition of the legal position taken by these appellants was correctly assumed below,- we should have nothing to sáy and could not add to their opinion. But we cannot agree with them in their view of the situation of the parties. The elements required to make out a case of election were wanting. The doctrine of election, usually predicated of inconsistent remedies, consists in holding the party, to whom several courses were open for obtaining relief, to his first election where subsequently he attempts to .avail himself of some further and other remedy not consistent with but contradictory of his previous attitude and action upon his claim. The basis for the application of the doctrine is in the proposition that where there is, by law or by contract, a choice between two remedies, which proceed upon opposite and irreconcilable claims of right, the one taken' must exclude and bar the prosecution of the other. An extended citation of authorities illustrating the principle, in cases of breaches of contract, or of a duty imposed by the law, would be unprofitable here; because of many recent decisions of this court and because not needed in the present discussion. Where parties are under some contract, or the case is one of a deed or of a will, an election is-deemed to be made where there has been an acceptance of a benefit under the one or the other, and the party benefited will not be heard to raise the question of validity, nor to insist upon some other but inconsistent legal rights, however well founded. So it is conceivable that the rule may be so extended as to apply to the case where a creditor comes in under an assignment by his debtor for the benefit of creditors, in such way and with such attitude as should preclude him from thereafter assailing its validity.. But how can the converse of the proposition be sustained ?

The assignment by an insolvent debtor is involuntary as to creditors in the application of his assets to their claims and, it may be, unequal as well as unjust as to some, and it is of no effect if fraudulently made, within the meaning of the law. Shall the creditor, for- endeavoring to set it aside on legal grounds, if unsuccessful, be held incapable of receiving his share of the debtor’s assets ? Such a rule could not be based upon equitable principles. It would come so near to lending aid and encouragement to attempts at fraudulent assignments as to render its adoption impossible.

The assignment is not, like a gift of property upon conditions/ open to the acceptance or rejection of the donee. It is a payment by the assignor of his debts after his own plan. The deed of assignment is in no sense a contract between the debtor and his creditors and it does not depend for its validity in law upon their assent. It is a means or mode which the statute permits to be adopted by an insolvent debtor for the distribution of his estate among his creditors and so long as he has acted without fraud, in fact or in law, and has complied with the prescriptions, of the act his conveyance to an assignee, for the purposes stated therein, will stand and be effective. If the distribution is to be made unequally among the creditors and some are preferred to others in payment, the assignment is not viewed by the courts-with any favor, and is only tolerated and upheld when all conditions are met for the prevention of fraud. Nichols v. McEwen, 17 N. Y., 22. The debtor’s proceeding sets at naught-whatever elements of superiority the non-preferred creditor’s claim may possess ; as it may nullify the results of any diligent effort on his part to secure his debt. It compels him to submit to inequality in payment and to take his pro rata share of the estate unless he-discovers and can establish its invalidity. But if he believes himself possessed of proof invalidating the assignment he is not debarred from attacking it and endeavoring to set it aside. He is then but insisting upon his general right to be paid his-judgment in the order of its priority, and on what principle should his endeavor in that direction prevent him from proving and establishing his right, in any event, to his share in the assigned estate, which the assignee must be deemed to be holding in trust for him and all other creditors under the debtor’s deed ? The creditor may not feel any more hostility to the debtor’s proposed distribution of his estate when he sues to annul it than he did before. The bringing of the suit is merely the hostility on his part pronounced in legal proceedings. The learned justice delivering the opinion at the general term conceded that where an action to set aside the assignment had been brought and was unsuccessful and terminated, an election would not be held to have taken place. How does the mere pendency of the action affect and change the situation ? What is the attitude of the parties ? The debtor has "transferred his estate to another upon the trust that he distribute it in the manner provided in the deed, to and among his creditors. The assignee is a trustee, whose duty it is to make that distribution. A creditor’s only alternative, if he is not contented to take what would thus come to him, is to endeavor to set aside the deed of assignment, if he deems himself possessed of the requisite evidence of its invalidity at law. If tliere is any election for him to make, it can only be with respect to what remedies may be available to him in order to right himself upon his judgment against the assignor and to avoid the assignment.

We think, therefore, that this was not a case of election of remedies, and that, in endeavoring to set aside the deed of assignment, in order to render their judgments effective, the appellants were testing and contesting the legality and validity of their debtor’s act and disputing its binding force upon them, as they had a legal right to do and which was a course that recognized the debtor’s deed but alleged the existence of grounds for holding it voidable and, therefore, not compulsory upon the creditor. It in no wise militated against the right of the appellants, if defeated upon that issue, to share in the assigned estate on the basis of distribution provided in the debtor’s deed to his assignee.

The second question argued was whether the appellants, if entitled to share in the distribution of the assigned estate, could claim preference in payment under the assignment as being individual creditors of Ferine. With respect to that question, we agree with the decision of the court below denying that right. The indebtedness represented by their claims was clearly excepted by the terms of the deed of assignment, and they could only claim to share ratably with other creditors after the payments previously directed.

So much of the judgment appealed from as affirmed the judgment disallowing the right of these appellants to share in the distribution of the funds in the assignor’s hands should be reversed, and these appellants adjudged entitled to share with other creditors not preferred in the assignment.

Costs to the appellants to be paid out of the estate in the assignee’s hands.

All concur.


author: Brady, J.

text:
    In the Matter of the Application of the Department of Public Parks, Relating to the Opening of One Hundred and Sixtieth Street.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1891.)

    Municipal cobfobations—Assessments—Evidence op dedication.
    In proceedings to open a street a nomine 1 award was made to one B. outlie ground that his land had been dedicated to use as a street. On liis objection on motion to confirm, after evidence as to dedication had been taken, the report was referred back with directions to make him a substantial award, the court holding that there was no dedication, and the. order referring it back was affirmed by general term. On motion of certain taxpayers, who were liable to be assessed, permission was given them to present to the commissioners evidence that B/s land had been dedicated to public use. Feld, that the former order related to the facts as they then appeared, having no prospective effect or application, and leaving the subject of dedication to such further examination as might be made of' it by the commissioners, and that the order in question was properly made, and was no encroachment on the decision of the general term.

    Appeal from an order made by Mr. Justice Andrews,, dated the 4th day of April, 1890, granting the prayer of the petitioners Alfred Roe and others to be permitted to submit and present to the commissioners of estimate and assessment their objections herein, and to prove in support of the same “ that the land required for the said street between Kingsbridge Road and Tenth avenue had been dedicated to public use, and to present testimony in support thereof, and that the said commissioners of estimate and assessment be .permitted and directed to receive and consider such testimony, and that such testimony may be offered, in respect to the said objections and dedication, and that the said commissioners make and present to the court such report as in. view: of the objections and testimony so presented may be just, and proper.”
    The application was opposed upon the ground that an order-had heretofore been made in these proceedings referring the matter back to the commissioners of estimate and assessment for the specific purpose only of taking proof as to the value of the land of one Buckley. Úpon a motion to confirm a prior report of the commissioners herein an- order had been made at special term by Mr. Justice Donohue, referring the matter back to the commissioners for the sole and specific purpose of making substantial awards to the objector, William H Buckley, the owner of the land within the lines of the street sought to be acquired in this proceeding, which the petitioners claim had been dedicated by the-said Buckley or his predecessors in interest to public use; and said order on appeal therefrom had been affirmed by the general term of this court
    It appears from the papers that proceedings had been taken by the city to acquire the title to the land in question. That in the preliminary abstract of the commissioners only nominal awards had been made for Mr. Buckley’s land. Mr. Buckley appeared before the commissioners and filed objections to said report, claiming that he was entitled to a substantial award. Testimony was taken before the commissioners upon the question of the dedication of the land belonging to Mr. Buckley.
    Parties who would be assessed in said proceedings to a considerable amount in case a substantial award was made, and who were then assessed, as it appeared by the proposed abstract of the commissioners, appeared and contested the right of Mr. Buckley to this substantial award.
    They were represented upon that proceeding by Mr. James A. Deering, who now makes this application on behalf of the petitioners herein, Alfred Boe and others.
    All the proof which was submitted to the commissioners, tending to show a dedication of Mr. Buckley’s land, was furnished and produced by Mr. Deering on behalf of his clients, and was presented to the court upon the motion for the confirmation of the commissioners’ report.
    Upon the hearing of the motion for the confirmation of said report, the same being opposed on behalf of Mr. Buckley, it was held by Mr. Justice Donohue that there had been no dedication of the land by Mr. Buckley or his grantors, and the report was referred back to the commissioners with directions to make a substantial award to Mr Buckley for his land. (See affidavit of John C. Shaw and order of Mr. Justice Donohue.)
    An appeal was taken from this order by the city, and the same was affirmed on appeal. The opinion will be found reported in 48 Hun, page 488; 16 H. Y. State Bep., 6.
    The commissioners thereupon met for the purpose of determining the amount to be awarded to Mr. Buckley for the land in question and made a substantial award amounting to $11,750, and thereupon filed their abstract and assessed the property within the area of assessment a sufficient amount to pay for the said award' and the expenses of the proceedings. Objection being made by Mr. Buckley to this award, it was subsequently raised to $17,750 by the commissioners. Thereupon they filed a further report and gave notice that they had completed their new or amended .estimate and assessment, a copy of which notice is annexed to the petition of the petitioners herein.
    The petitioners, Boe and others, thereupon presented this petition, and the order was made thereon from which the present appeal was taken.

      John G. Shaw, for app’lt; James A. Deering, for resp’ts.
   Brady, J.

It was stated upon the argument herein, and not denied, that, although this appeal was in progress, yet in pursuance of the order from which it was taken the commissioners had received the objections of the property owners and heard the testimony as to dedication, that the proofs had been submitted, and that the entire matter was before them for decision.

The matter was sent back to the commissioners by an order of the special term, Justice Donohue presiding, and, as we have seen, for the purpose of making substantial awards to the respondent William F. Buckley, and upon the proposition that there had been no dedication by him of a strip of land referred to as One Hundred and Sixtieth street, which it was proposed to take in this proceeding. That question was considered elaborately at the general . term upon an appeal from that order (see opinion of Presiding Justice Yan Brunt on the appeal, 48 Hun, 488; 16 N. Y. State Rep.. 6), and the result was that the order was affirmed; that is to say, the matter was sent back to the commissioners that they might make substantial awards to the respondent William F. Buckley for the property which he owned that the city desired and which had not been dedicated by him.- The application to the special term was for liberty to introduce evidence on the question of dedication resting upon the facts stated in the appeal, and to which reference has been made. The learned justice in the court below was impressed by what he considered the restriction caused by the decision of the general term,, but thought that inasmuch as the order did not expressly authorize the commissioners to receive the objections and testimony offered by the petitioners it was questionable whether it was not a bar to the receipt of the same, thinking that if that view prevailed the petitioners could only obtain relief by a modification of the order of the general term, if that tribunal thought fit to make it, but that in view of the constitutional and statutory right of the petitioner to be heard, before he could be lawfully compelled to pay an assessment, it was doubtful whether the court had the power to make an order which would deprive him of the right to have his objection and testimony received, upon a further consideration of the matter by the commissioners.

It was thought by the learned justice that under these circumstances there was some force in the argument that although the order did not expressly authorize the commissioners to receive such objections and testimony, it did not prevent their doing so.

It cannot be questioned that there is merit in the application, for the reason that if the dedication can be established it would be unjust to make the petitioner or any persons assessed pay for the value of the land supposed to be owned by Mr. Buckley.

The reasonable view of the decision of the general term, in contemplation of the provisions of the consolidation act of 1882, § 986, would be that the decision made related entirely to the facts as they then appeared, having no prospective effect or application ; and leaving the subject of dedication to such further examination as might be made of it by the commissioners in the exercise of their duty. Technically it may' be said with great propriety that the making of a substantial award to the respondent Buckley would necessarily involve an examination as to his title to the premises for which it should be made, and especially in reference to § 890 of the consolidation act, which provides that after hearing any matter which may be alleged against the same the court shall either confirm the report or refer the same to the commissioners for revisal and correction, or to new commissioners to be appointed by the court, to reconsider the subject matter thereof. It is contended, it is true, that the words “ for revisal and correction,” indicate that the reference back to the commissioners was to be for the purpose or to the extent only to which the court directs and orders that the report be revised and corrected. But the whole object of sending reports in kindred proceedings back to commissioners is to secure the rights of all parties, even although it involve a re- or further examination of the facts and circumstances naturally, necessarily and legally involved.

For these reasons it is thought that the order from which the appeal has been taken, made as it was in justice and proper as it was ex debito justitia, was no encroachment upon the decision of the general term, was justly made and should be affirmed.

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


author: Daniels, J.

text:
    Albert Scott, Resp’t, v. The General Park, North & East River R. R. Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1891.)

    Negligence—Charge—Decision on former appeal.
    Where the general term on a former appeal reversed the judgment on the ground of an improper ruling, but held that but for the denial of the instruction requested the verdict coul 1 not be disturbed, it is proper for the court on the second trial, upon the same evidence, to refuse a request to charge that the damages should be no more than nominal.
    Appeal from a judgment entered on the verdict of a jury, and from an order denying a new trial.

      Oharles V. Yates, for app’lt; Hyland & Zabriskie, for resp’t.
   Daniels, J.

This action was previously before this general term, on an appeal from another judgment recovered on a verdict for $500, which is the amount of the second verdict. The facts do not appear to have been changed by the evidence now before the court from what the evidence before tended to prove them. But because of what was then considered an improper ruling by the court at the trial, the first judgment was reversed and a new trial ordered. The case as it was then considered and determined is reported in 53 Hun, 414; 24 N. Y. State Rep., 754. As it is now presented there is no ruling on any legal point that can now be made the subject of complaint. The court was asked to instruct the jury that the damages should be no more than nominal. But that could not be done under the opinion adopted by the majority of the general term when the new trial was ordered. For it was thereby held that the verdict could not be disturbed were it not for the denial of the instruction requested, if the evidence of the plairftiff was true, which was for the jury to decide.

As a general proposition the directly conflicting testimony of parties ought to be controlled by that of a reputable, intelligent arid disinterested witness. And there was such a witness who heard and saw what took place between the driver, whose act is complained of, and the plaintiff. Safety in the administration of the law would be most certainly promoted by requiring that evidence to be followed by the jury, when the testimony of the parties themselves is such as to neutralize that of each other. The evideuce given by the other witness was such as if that should be followed would not sustain so large a verdict as the jury has rendered, but would require another trial of the action to be had. But under what was said in the preceding disposition of this case, that cannot now be had. While the plaintiff probably provoked the injury of which he has complained, as the case was for the juiy, the result of their deliberations must be allowed to stand. The judgment and order should, therefore, be affirmed.

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


text:
    George Munro, Resp’t, v. Frank Tousey, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1891.)

    1. Trademark—Eights or publisher—Injunction.
    Where a publisher originates a nom deplume in connection with a series of publications, and employs a writer to write books in such series under such name, the name constitutes a trade mark in which the publisher has a property right which the court will protect by injunction against other publishers using such name in their publications.
    2. Same.
    Such right of the publisher is not affected by the fact that the writer, in another action, has procured an injunction against the use of such name by other parties, as the judgment therein was not res adjudícala of the publisher’s claim, and the writer had a distinct interest in preventing the use of the name.
    3. Same—Laches.
    The doctrine of laches will not apply to such a case, where it does not appear that plaintiff knew of defendant’s infringements and acquiesced in them.
    4 Same.
    An injunction will lie against a defendant, although he has made an assignment and has not the title to the infringing publications, where it appears that he is still the manager of the assigned estate on a salary, and the business is conducted under his supervision and for his benefit directly or indirectly.
    Appeal from a judgment of the special term.
    Wm. H. Townley, for app’lt; Boyer Foster, for resp’t.
   Brady, J.

The plaintiff objects to the defendant’s use of the word “ Sleuth ” in connection with the publication of certain works of fiction, claiming that it was and has been since 1872 his property, and was employed by him in connection with his publication of numerous works of fiction, and most profitably. The defendant, while impliedly admitting by his acts that ownership, challenges the plaintiff’s title. He assumes that by the proofs it is established that a writer of fiction named Halsey owned the' pseudonym “ Old Sleuth,” and from that erroneous view of the effect of them builds up theories that cannot be sustained. The proofs show that the nom de plume mentioned was selected by the plaintiff, under which Halsey should write for him, created it for that purpose, and whatever limited interest Halsey had sprang from his use of the name under these circumstances. His employment began certainly when he wrote under the pseudonym of Tony Pastor, in 1873, and continues down to the present time, some of his stories having been republished in the “Fireside Companion,” “ Old Sleuth Library,” and “ Seaside Library,” serials owned and issued by the plaintiff. The defendant’s counsel arguendo says the plaintiff, failing to prove the agreement, did not put Halsey upon the stand as a witness to remove any doubt on that subject, and he invokes the omission as prejudicial to the plaintiff’s case. The fallacy of this, aside from the error in asserting that there was no proof of ownership, is apparent when the fact is arrayed that it was the plaintiff and not Halsey who created the nom de plume, and who required Halsey to use it in preparing the works of fiction which the plaintiff meant to employ in his business. And, again, if' Halsey could prove his ownership of the pseudonym, why did not the defendant call him to disprove the plaintiff’s alleged title?

It is true that in an action brought by him against a person other than the plaintiff, Halsey succeeded in preventing the use of the name, but the judgment rendered in that action was in no respect- res adjudicata of the plaintiff’s claim. Aside from that the author Halsey had a distinct interest in preventing another from using a name under which he was writing and establishing a reputation which would be recognized although the plaintiff herein in fact owned it His agreement to produce the fictions for the plaintiff involved and necessitated the use of it, and it was to him, therefore, a valuable right which no one else possessed for aught that appears on the record. However this may be the plaintiff’s ownership of it was not successfully combatted, and when the defendant’s use of it was complained of he at once promised the plaintiff to desist and did=so for a time at least. The case seems to present a familiar phase of piracy in the pursuit of gain, a willingness to appropriate what has been made valuable by the forethought of another, and enjoy thus all the benefit that might be derived from his shrewdness, ingenuity or capacity. The fact that Halsey, assuming it to have -been so proved, wrote stories under the name mentioned for others than the plaintiff does not in any way affect the issue, even if the plaintiff consented to it or did not object. He did object and does to the defendant’s use of the pseudonym and asserts his ownership. The defendant, therefore, has no standing upon the proposition that the evidence does not show the plaintiff’s ownership of the nom de plume in question. The learned justice in the court below so found, and the review of this conclusion furnishes no ground for disturbing it.

This result applies to all the publications mentioned in the findings, inasmuch as the wprd “Sleuth” has been employed in all, although in some more conspicuously than others. It matters not whether the soubriquet be “ Old Sleuth” or “Young Sleuth,” the designation adopted by the plaintiff of the word “ Sleuth ” made it his property, and it was improperly used by the defendant therefore.

The defendant can gain nothing from the supposed laches of the plaintiff in asserting his rights. It appears that in 1883 the plaintiff was informed that the defendant had ceased to imitate his titles, and that shortly after that time his establishment was destroyed by fire, an event soon after followed the defendant’s insolvency. The plaintiff was not bound to be constantly on the qui vive searching after the defendant’s illegal acts. The doctrine of laches would not apply unless the plaintiff knew of the infringements and acquiesced in them, Sawyer v. Kellogg, 9 Fed. Rep., 601, 602, and there is no proof of these elements in the record. The defendant was not induced in any way by the plaintiff to make any expenditures or to continue the publications which he made. At least he was only passive and failed to object to the defendants doing what he did. N. Y. Rubber Co. v. Rothery, 107 N. Y, 310, 315, 316; 12 N. Y. State Rep., 53. Where the statute of limitations has not run, and there is no estoppel or acquiescence, a court of equity will not deny relief on the ground of laches. Platt v. Platt, 58 N. Y., 646.

The defendant made an assignment on the 14th March, 1885; and it is claimed that since then he has had no interest in the business, but it appears that he was employed to superintend it and did so, receiving a salary of $5,000 for his services. It is claimed also in furtherance of this proposition that his assignee, Stillman R. Walker, had the legal title to the property since the time of his assignment, including the nom de plume and titles that have been used, but it appears that the publications complained of were embraced in his assignment, and that the business has been continued under the defendant’s supervision, he determining what publications should be made. The profits were devoted to the payment of his compensation and to the diminution of his- indebtedness, and thus he received all the benefit of their use either directly or indirectly. He enabled the assignee to- employ the objectionable publications by assigning them, and, as it appears, for his own advantage. He must take the consequences. He is the chief wrongdoer. Besides, it has been held that in torts of misfeasance, like the violation of a trade-mark, agents and servants are personally liable to the injured party, Estes v. Worthington et al., 30 Fed. Rep., 465; see Phelps v. Wait, 30 N. Y., 78. Here the defendant as agent was subordinated as such by his own act of assignment. No reason appears for interfering with the judgment and it should be affirmed, with costs.

Daniels, J., concurs.


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    George Munro, Resp’t, v. Frank Tousey, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1891.

    Costs—Unnecessary action.
    Where two actions for injunction are brought when only one was necessary, and the same evidence to some extent are taken in both, costs should be awarded to plaintiff only in one action.
    Appeal from a judgment of the special term.

      W. H. Townley, for app’lt; Roger Foster, for resp’t.
   Brady, J.

The disposition of this appeal is controlled by the judgment pronounced in action No. 1 between the parties hereto and herewith decided. The questions involved are kindred and the evidence as well, the only suggestion requiring consideration being whether the defendant should be required to pay the costs which were awarded against him. There is no doubt that the publications complained of here could have been embraced in action Ho. 1 between the parties and already alluded to. Both actions are on the equity .side and the costs, therefore, discretionary. There appears not upon the record any reason why the two causes should not have been joined in the other action, and for this reason the costs should not have been awarded to the plaintiff. At law each publication was a cause of action, doubtless, but if prosecuted -even in that mode the separate actions might, nevertheless, be consolidated, but this method of procedure in equity is not indispensable as to the question of costs, in regard to which the plaintiff takes the peril of facts and circumstances affecting it.

It appears, and it has some bearing on the subject, that some evidence relating to this action was taken in the other, and thus, to some extent at least, they proceeded pari passu together. A multiplicity of actions is not favored in equity, and if indulged in that circumstance must have an important influence upon the allowance, or disallowance, of costs as a matter of discretion. This action being one which was not required to redress the plaintiff’s wrongs, and, therefore, unnecessary, the plaintiff should have been compelled to pay his own costs. It was, under the circumstances, sufficient punishment to him to oblige the defendant to pay his own costs in addition to the costs in the other action. The judgment should, therefore, be modified by reversing it as to costs awarded against the defendant, and affirmed as to the balance, without costs to either party.

Ordered accordingly.

Van Brunt, P. J.“ and Daniels, J., concur.


author: Van Brunt, P. J.

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    William H. Townsend, Resp’t, v. Robert Allen, Jr., Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1891.)

    1. Teust deed—Validity.
    The mere fact that at the time of the execution of a trust deed one of the trustees has the property in his hands, and that confidential relations exist between him and the grantor, will not invalidate the deed, where its provisions are not unnatural and it does not appear that the grantees are to be greatly benefited thereby; and where the grantor for many years acquiesced in it and reaffirmed it by his will.
    3. Same—Convenience of settloe.
    A valid trust may be created for the convenience of the settlor.
    3. Same—Revocation.
    A deed of property in trust to pay to the grantor a sum sufficient for his support from the income, and if necessary a portion of the principal, and at his death transfer the residue of the fund to his next of kin, cannot be held to be a deed of contingency and revoked by his will where the existence of the deed and a belief in its efficacy are distinctly manifested in the will.
    4. Same—Conflict of laws.
    Where the grantor resided in New Jersey at the time of executing the deed, and continued to reside there until his death, the deed is to be construed in accordance with the law of New Jersey, and a provision as to accumulations void under the laws of this state, but valid under those of New Jersey, upheld.
    .fpeal from judgment entered on referee’s report.
    The following is the opinion of the referee:
    In April, 1863, William McOoon, being a resident of the state of New Jersey, executed and delivered a certain trust-deed to three persons, viz., his brother Cornelius McOoon, Benjamin B. Sherman and William H. Townsend, who is the plaintiff- in this action. All three of the trustees above named were, at the date of such trust-deed, residents of the state of New York. That instrument set forth that said William McCoon was, on the day it bears date, the owner of a large amount of personal property, consisting of certain specified stocks and bonds, and that, as it would be irksome and inconvenient for him to have the care and management of such property, he had resolved to transfer, assign, and set over the same to the trustees in such instrument named. And accordingly, by such trust-deed, the settlor assigned such property to his trustees, to have and to hold the same to and for the objects, intents and purposes following, that is to say: To manage the fund to the best advantage according to their judgment and discretion, to collect all dividends, interest, and income arising therefrom, and, after supplying the settlor out of such income, if such income should be sufficient, with whatever money might be required by him for his maintenance and support, to invest the surplus in such securities as in their judgment might seem proper, to keep such securities, or, in their discretion, to sell the same, and, after sale, to reinvest the proceeds. For the purpose of carrying out the provisions of the foregoing instrument the grantor appointed his said trustees, and the survivor or survivors of them, his true and lawful attorneys in fact, to do all such acts as might be necessary in the premises. The deed further provided that the assignment of the property which it conveyed, and the power which it conferred, were made and granted on the express condition that said trustees would, at all times, during the natural life of the grantor, well and faithfully manage the trust fund to the best of their ability, and would, during the natural life of the grantor, furnish and pay over to him out of the income of the said property, from time to time, such sums of money as might be needed for his reasonable support and maintenance, and would, if the income should not be sufficient for that purpose, make up and supply the deficiency out of the capital of the property assigned, and would, upon his death, transfer all of the fund that should remain in their hands to and among such persons as would be entitled to the same as next of kin of the grantor, “ according to the directions of the statute of distributions of the state of New York.”
    The property whose disposition was ordered by the instrument above described had been inherited by William McOoon from his father and his mother. From the time of their death it had been in the hands of his brother Cornelius, one of the persons named as trustee in the above described deed. He had managed the same and paid over the income, as desired, to his brother William.
    After the execution of the deed Cornelius continued to manage ■the property for some two years. Then, on account of his ill health, he transferred the same to this plaintiff. The plaintiff continued to collect the income and to apply the same to the use of William McCoon until the latter’s death, on December 27, 1877. It appears in evidence that William continued to reside in the .•state of New Jersey from the time he executed the trust agreement until he died. "He left an instrument purporting to be his last will and testament, which has since been admitted to probate as such in the proper court of the state of New Jersey. By that will he gave to Rachel Trafford, wife of John Trafford, “ the sum •of $5,000 out of the moneys or property I heired or am entitled to out of or from the estates of my deceased sisters, Amelia Mc■Coon and Phcebe McCoon,” and to his nephews, Edwin S. Townsend and Frank W. Townsend, “ $5,000 apiece out of the moneys ■or property I heiréd or am entitled to, or may be entitled to out of •or from the estates of my deceased sisters; ” and to Margaret T. Trafford $500 “ out of the moneys or property I heired or am entitled to, or may be entitled to, out of or from the estates of my said deceased sisters.” All the residue of his property he gave by his will to Edwin S. Townsend, Frank W. Townsend and Rachel Trafford, to be divided between them share and share alike.
    At the time of his death the persons who constituted, according "to the statute of distributions of the state of New York, his next of kin were: (1.) Mary A. McCoon, his sister; (2.) Annie A Waterbury, Caroline A. Gunther and James H. McCoon, children of his deceased brother, Cornelius; (3.) Edwin S. Townsend and Frank W. Townsend, two of the residuary legatees under the will afore.said, children of his deceased sister, who was the wife of the plaintiff in this action. Upon this state of facts rival contentions have .arisen. On the one side.-it is claimed that, under the provisions of the trust deed, the fund here in question should be distributed among William McCoon’s next of kin. In opposition it is insisted : First, that the trust agreement itself is invalid and inoperative, and that, accordingly, all the property of which it undertakes to dispose must be distributed according to the directions of the settlor’s will; and second, that even though the agreement' is not invalid in toto, so much of the fund here accounted for as represents accumulations of income must be held to have been suffered to accumulate pursuant to an unlawful direction of the ■settlor of the trust, and must be distributed, therefore, as part of his residuary estate, in accordance with the directions of his will.
    It_ appears that the property transferred by the deed of 1863 •consisted entirely of personalty. In view of that fact, and of the further facts that,- at the time of the execution of such deed, William McCoon was a resident of the state of Hew Jersey, and continued to be a resident of that state uninterruptedly until his •death, I hold that the validity and effect of the disputed instrument must be determined in accordance with Hew Jersey laws. 'The circumstances that .Cornelius McCoon had in his hands, at "the time the trust deed was executed, the property to which it relates,-and had, for a considerable period theretofore, managed and controlled the same for the use and benefit of his brother William, and the other circumstances which are referred to in the brief of counsel for one of William’s executors, as supporting his claim that the evidence establishes such relation between the settlor and his brother as to create a presumption, not rebutted and overthrown by opposing evidence, that the transfer to Cornelius was fraudulent and void, are not, in my judgment, sufficient to warrant the findings in that regard for which such counsel contends. There is no evidence tending to show that the making and execution of the trust agreement were induced by any influence exerted by Cornelius. Any benefit that Cornelius could have derived from the agreement was contingent upon his surviving his brother, and, even in that event, he would have taken under the trust agreement no more than the statute of distributions would have awarded to him in case his brother had died intestate. William McCoon continued to recognize the validity and effectiveness of the trust deed for more than twenty years after Cornelius gave up the control and management of the fund, and the language which he used in his will, executed about four years after that control and management had been surrendered, strongly tends to show that he then considered that the property which he had derived from his father and his mother was no longer subject, to his disposition. If the construction of the trust deed were dependent upon the laws of New York, it may be that its direc-tion regarding the disposition of surplus income would be invalid’ as directing an unlawful accumulation; but as such direction is-not prohibited by the laws of New Jersey, I hold that the income accumulated must follow the principal fund, and be distributed by the trustee to William McCoon’s next of kin, as determined by the New York statute of distributions.

      J. B. Tresidder, for app’lt; T. De Witt, G. B. Bonney and William Man, for resp’t.
   Van Brunt, P. J.

In view of the complete statement of facts contained in the referee’s opinion, it is not necessary to state the same in detail here, and we might very well rest our decision upon the opinion of the referee, were it not, perhaps, proper to note one or two objections which are urged with great persistency upon the-part of the appellant.

It is claimed that the deed in question was void because of the fiduciary relations which existed between one of the trustees and the grantor in the trust deed. This might be true were the provisions of the trust deed unnatural, considering the relation of the parties to the same, or had there been any evidence from the nature of the instrument that the grantees therein were to be greatly benefited thereby.

We find from the evidence in the case that the grantor in the deed recognized its existence for twenty-four years after its execution, and, by a will made shortly before his death, clearly had in mind the existence of this instrument, and in no way intended to dispute its validity. The grantor of the deed having so long-acquiesced in its existence, having by his will reaffirmed its validity by the peculiar nature of the provisions of the will showing that he had the trust deed in mind, and that he knew that he had thereunder disposed of the estate of which it treated, how can his personal representatives be now permitted to undo that which the testator supposed he had effectually done, and defeat the very purpose which he had in mind at the time of making his will ? It .seems to us under these circumstances, with not the slightest particle of proof attacking the good faith of the trustees in this matter, it would be carrying the doctrine of presumption to a most dangerous extent to hold that a trust deed so long recognized, acquiesced in and reaffirmed should be set aside simply upon presumption.

And it is urged further that the agreement does not create a "valid trust for the next of kin because it was made for the personal convenience of the settlor. We are not aware that the personal convenience of the settlor does not form a good consider.ation for the creation of a valid trust. If any authority were needed for the purpose of showing that a valid trust may be created for the convenience of a settlor, it is found in § 2468 of the Code, where the right of a party to convey property in trust to his own benefit is expressly recognized, where it provides that the article in reference to special proceedings shall not apply to any money, thing in action or other property held in trust for a judgment debtor where a trust has been created by or the fund so held in trust has proceeded from a person other than the judgment debtor; -a clear recognition of the right of a party to convey trust property, the beneficiary use of which may be in himself. The instrument in question conveys the property to his trustees, and although he appoints them his attorneys in fact, it is simply for the purpose of aiding them in the execution of this trust and gives direction for the disposition of the property upon the termination of the trust by the death of the settlor.

The claim that no estate vested in the next of kin, that the instrument was simply a deed of contingency, and the direction therein contained testamentary and was revoked by his will, is entirely unsupported by the language of the instrument, and by the fact that in the will of the settlor the existence of this deed and a belief in the efficacy of its provisions is distinctly manifested.

The objection that the deed contains a direction for the accumulation of personal property in contravention of the statute is one of greater weight. It may be doubtful whether the provisions of this deed can be treated as a direction for the accumulation of income. By its provisions the settlor is to have all the money required for his support which the estate may produce, and if necessary such part of the principal as may be required.

To be sure there is no provision for the payment over to the settlor of any excess of income which he might not require for his support, but as he is the judge by the terms of the deed as to the amount which he shall require, and the provision in regard to reinvestment only applies to that which he shall not draw, there does not seem to be any contravention of the statute in the provisions of the deed.

Furthermore, the settlor at the time of the execution of this deed was a resident of New Jersey. It would appear that he lived, there until his death; his will was probated in that state, and the executor here contesting is the executor appointed under that-will by the probate court of Monmouth county, New Jersey..

The distribution of the personal property is made according to-the laws of the domicil of its .owner, and although this property was actually situate within the state of New York, yet its legal status was at the domicil of its owner in the state of New Jersey. Such being the condition, it would seem that the laws of the state of New Jersey should govern in respect to the validity of the provisions of this deed, and not the laws of the state of New York; and it is conceded that under no circumstances are the-provisions of the deed in respect to the accumulation of income in contravention of the laws of the state of New Jersey.

The judgment appealed from should be affirmed,-with one bill of costs.

Daniels, J., concurs.


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    Henry A. Taylor et al., Adm’rs, Resp’ts, v. Thomas S. Blair et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    Stocks—Agreement to repurchase.
    To induce plaintiff's intestate to purchase certain stocks, defendants, agreed that if at the end of a year he desired to sell the same, they would huy them for the amount paid, with interest. Held, that proof of an actual tender of the stock on the day fixed hy the agreement to defendants at their places of residence, or their place of business if that would he sufficient, was a condition precedent to a recovery under such agreement. The fact that defendants resided out of the state does not excuse a tender of the stock, where the intestate was aware of such non-residence.
    Appeal from a judgment recovered on a verdict directed by the court.
    N. P. Nash, for app’lts ; Louis Gf. Waehner, for resp’ts.
   Daniels, J.

The verdict was direc'ted for the amount held to-be payable on a contract entered into' by the defendants with the-intestate. He bad subscribed for 500 shares of the capital stock of the Blair Iron & Steel Company, and paid upon his subscription the sum of $10,000, included with interest in the verdict.. To induce him to purchase these shares the defendants subscribed and delivered to him this contract:

“ Whereas, Christopher Meyer has purchased 600 shares of the stock of the Blair Iron & Steel Company, sold by A. S. Diven, trustee of said company, at the price of fifty dollars per share.
“ Now, we, the undersigned, in consideration of one dollar to-us in hand paid, the receipt whereof is hereby acknowledged, do hereby agree that if, at the end of one year from this date, the said Meyer shall desire to sell the said shares at the price paid for the same by him, we will purchase the same, and pay to him the-amount paid by him on the same, with interest at the rate of seven per cent per annum.
“ New York, April 4, 1873.
“ Thomas S. Blair,
“ Thomas Struthers. ”
And on the 7th of March, 1874, under his authority, a copy of this letter:
“ New York, March 7, 1874.
Mr. Thomas S. Blair and Mr. T. Struthers :
“Gentlemen—Your agreement, dated April 4, 1873, to purchase from me six hundred shares of the stock of the Blair Iron & Steel Company at the price I paid for the same, with interest at seven per cent, will expire April 4, 1874.
“ I hereby notify you that I desire to sell the said shares under this agreement, and will be ready to receive the amount at any time you will name prior to April 4,1874.
“ Yours, very truly,
“ Christopher Meter,
“by AG. T., Jr.”
was delivered to each of the defendants. And on the 4th of April, 1874, the day upon which the agreement was to be performed, the defendant Struthers wrote to the intestate a letter, so far as its contents are in the least degree material to this controversy, in which he stated :
“ I was sorry to learn through notice by Mr. Taylor from you that you felt disposed to place yourself in position to sever your connection with The Blair Iron & Steel Company by parting with your stock. I hope you have not resolved absolutely on taking that step. I thought I had by encouraging you to subscribe for that stock done a good thing for an esteemed friend, and I think so still. Mr. Foster says he did not understand you to assign any reason for not paying the call on stock about which he spoke to you, except the severe loss you had sustained in the bank disaster. I hope, however, the force of that reason has passed, and that your financial position is again right. I felt confident that your ample means would soon raise you above that trouble.”

The Blair Iron & Steel Company had an office in the city of New York, which, when they were there, was stated by the intestate in evidence given by him upon a proceeding trial to have been the headquarters of these defendants, one of whom was the president of the company and the other one of its trustees. The intestate employed the witnesses, Henry A. Taylor and Albert G. Thorp, to act for him in and about the performance of the agreement delivered to him by the defendants. For this purpose they endeavored to find the defendants at the office of the company, but failed to meet them after the 7th of March, 1874. The witness Thorp was at the office on the 4th of April, 1874, and inquired for the defendants, but had no papers with him by which he could transfer the shares, neither was any offer made by him to the person found in charge of the office, in the absence of the defendants, to transfer the stock to them on the payment of the $10,000 and interest. And no offer to. that effect was anywhere made until sometime in September succeeding the expiration of the year mentioned in the agreement. At the time designated in it for its performance there was consequently no offer or tender made on behalf of the intestate, who was then living, to perform on his part by transferring or offering a transfer of the shares to the defendants.

, The complaint did allege that, at the end o"f one year from the said 4th day of April, 1873, the plaintiff did desire to sell the said shares at the price paid for the same by him, and duly notified the said defendants of such, his desire, and requested the said defendants to accept and receive the said shares and pay to him the amount paid on the same by him; but the said defendants neglected and refused, and still do wholly neglect and refuse so to do.

And the position has been taken on behalf of the plaintiffs that the defendants have not denied that they had been requested on the 4th of April, 1874, to accept and receive the shares and pay the plaintiff the amount paid on the same by him. But this is clearly a mistake, for by their answer they have denied: that the plaintiff at the end of one year from said 4th day of April, 1873, duly or otherwise, notified them of his desire to sell the said shares at the price paid for them by him, or requested them to accept and receive said shares and pay him the price paid for the same by him. ’

And that they neglected or refused to accept and receive the said shares, or pay to the plaintiff the price paid for the same by him, except for the reasons above set forth and the reasons hereinafter set forth in the second, third and fourth defenses of this the defendant’s answer.

These denials, as they were not afterward changed, completely put in issue the averment on the part of the plaintiffs that the defendants had been requested to accept and receive the shares and pay the amount which had been paid by the intestate upon them. And before a recovery could be had in the action, it was incumbent upon the plaintiffs to prove that, on the 4th of April, 1874, they offered or tendered a transfer of these shares to the defendants. That was a condition precedent, according to the terms of the agreement, upon which the right to recover this money depended.

This subject and the authorities bearing upon it were very minutely considered in Lester v. Jewett, 1 Kernan, 453, where it was held that an averment and proof of tender or offer to sell and transfer the-.stock to the party there contracting to purchase it at the expiration of the time, was essential to maintain the right of the other party'to recover upon such a contract And this has been followed in National Oleo, etc., Co. v. Jackson, 21 N. Y. State Rep., 458; Rutty v. Consolidated, etc., Co., 52 Hun, 493; 24 N. Y. State Rep., 640, and Pope v. Terre Haute, etc., Co., 107 N. Y., 61; 11 N. Y. State Rep., 209.

The plaintiffs have endeavored to relieve themselves from the obligation of complying with, this rule by reason of the fact that the defendants were absent from the state of New York at the time fixed for the final performance of the agreement. And so they were, but the proof establishes the fact that they resided in the state of Pennsylvania at the time when the agreement was entered into, and that the intestate was aware of the fact that they did reside in that state. And accordingly he was bound either to apply to them for the performance of the agreement at their places of residence, or at least; if that- would have been sufficient, to make the offer or tender required by the law at their office or place of business in the city of New York. But in each respect there was an entire failure on his part, for no tender or offer of the shares was made at the office nor to the defendants personally.

In the case of Hale v. Patton, 60 N. Y., 233, the court held that the defendant was not bound to follow the plaintiff out of the state to pay interest which became due upon a mortgage in order to prevent the principal from becoming due because of a default in payment of the interest for the period of thirty days. But there the plaintiff was a resident of the state, and had absented himself from it at the time when the interest matured. And all that the court held was that readiness under these circumstances on the part of the debtor to pay the interest when it became due was sufficient to avoid the principal from becoming due on account of a default of payment. The case contains nothing relieving the intestate from making a tender or offer of these shares either to the defendants personally at their places of residence in the state of Pennsylvania, or at least at their office in the city of New York.

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

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


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    In the Matter of the Petition of Thomas C. Martin.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    MAndamus—Appeal.
    The propriety of an order granting a writ of mandamus will not be considered by the appellate court where it appears that such writ has been isáued and obeyed, as any ruling thereon would have no practical effect.
    Appeal from order granting writ of mandamus requiring the William J. Johnston Company to allow an examination of its books. The following is the opinion at special term:
    Lawrence, J.—The answering affidavit to the application on the part of the relator for leave “to examine and inspect, and to take extracts from the records and books of account of the William J. Johnston Company, limited, and the book kept by said corporation containing the names of all persons who were, or since the incorporation of said company have been, stockholders of such corporation, and showing their place of residence, the number of shares of stock held by them respectively, and the time that they respectively became the owners of such shares, and the amount actually paid thereon,” etc., I do not regard as satisfactory. The seventeenth section of chapter 611 of the Laws of 1875, being “An act to provide for the organization and regulation of certain business corporations,” makes it the duty of such corporation to keep a book containing the information which is desired by the relator in this case, said book to be kept by the treasurer or clerk thereof, which book, the statute provides, “ shall, during the usual business hours of the day, on every day except Sundays and legal holidays, be open for the inspection of stockholders and creditors of the corporation, and their personal representatives, at the principal business office of such corporation; and any and every such stockholder, creditor or representative shall have a right to make extracts from such book. The section then goes on to provide that every officer or agent of any such corporation who shall neglect to make any proper entry in such book, or shall refuse or neglect to exhibit or allow the same to be inspected, and extracts to be taken therefrom, shall be deemed guilty of a misdemeanor; ” and it imposes upon the corporation for every such neglect or refusal a penalty of fifty dollars, and all the damages arising therefrom. In this ease the petitioner positively alleges that he is the owner of over fifteen shares of the capital stock of the corporation, and he also shows that a proper demand was made upon the treasurer of such corporation, during the usual business hours, and on a day not excepted by the statute, for permission to examine the stock subscription book, etc., which was refused. On this state of facts the right of the petitioner to such inspection would appear to be clear, but it is urged on the part of the respondent that the resisting affidavits show that the petitioner is not a stockholder, and that, therefore, he is not entitled to the relief which he seeks. The paragraph of Mr. Johnston’s affidavit, read on behalf of the respondent, under which this contention is made, is as follows: “ He is advised by his counsel, and he charges the fact to be, that said Thomas Oommerford Martin is not the holder or owner of over fifteen shares of the capital stock of said corporation, or the holder or owner of any shares of such capital stock, admitting, however, as is therein alleged, or as may be purported to be alleged, that the said Martin is the holder of a certificate for over fifteen shares of said capital stock, namely, of a certificate for twenty shares, averring in this behalf, however, that the said Martin is not entitled to the possession of said certificate of stock.” I regard this denial as evasive, and as not controverting the positive allegation in the petitioner’s affidavit as to his ownership of stock; and, without discussing the question further, I think that the views expressed by me in the case of People v. Patón, 20 Abb. N. C., 195, oblige me to grant this application.

      B. Gr. Ingersoll, for app’lt; Arthur H. Hasten, for resp’t.
   Brady, J.

It was conceded upon the argument that the writ bad been issued and obeyed, and for that reason it is not deemed necessary to discuss the propriety of the decision, as any ruling thereupon would have no practical effect.

The appeal should be dismissed, without costs.

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


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    Herman Stein et al., App’lts, v. Charles F. Levy, Impl’d, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    Injunction—Reference to ascertain damages.
    An injunction was procured by attaching creditors to restrain the sheriff from selling property of the attachment debtor under an execution against him, and the other defendants from receiving or collecting any of his goods or chattels, which injunction was afterwards set aside. Held, that an order of reference to ascertain the damages sustained by the judgment creditor, made without notice to the judgment debtor and sheriff, was irregular; and that the failure of plaintiffs to raise the objection on the hearing did not rectify the proceeding, as the right to raise it is not restricted to them, but inheres in the other persons who were in no way represented by them.
    Appeal from an order directing a referee to ascertain and report the damages sustained by the respondent by reason of an injunction issued in this action.

      Benno Loewy, for app’lts; Fromme Bros., for resp’t.
   Daniels, J.

The injunction order restrained the sheriff from selling property levied upon under an execution issued to him in favor of the respondent, against the defendant, Julius A. Levy, and from paying over any of the proceeds thereof realized by him, and also restrained the other two' defendants, from collecting or receiving any of the goods, assets, or choses in action of the defendant, Julius A. Levy.

It was issued at the instance of the plaintiffs as attaching creditors of the last named defendant. And this court, on an appeal from an order denying the application to vacate it, reversed that order, and set aside the injunction.

A motion was thereupon made, on behalf of the defendant Charles F. Levy, who was the plaintiff in the action in which the .execution had been issued, for the order from which the appeal has been taken.

It is entirely apparent from the papers used on the motion that it was made solely for the benefit of Charles F. Levy, and in no sense to include or for' the benefit of the sheriff or of the defendant, Julius A. Levy, and neither of these persons had any notice of the motion, although the undertaking given to obtain the injunction was for their indemnity as well as that of the respondent^ Charles °F; Levy. This was an irregular proceeding, which, by its completion, might deprive the other two defendants of all right to indemnity by means of the undertaking, or subject the sureties to other demands, which it is the policy of the law to prevent.

The fact that the other defendants in the action may not have equal claims to protection with the moving party, or may present no claim whatever, will not relieve the proceeding from the effect of this objection. For without first giving them an opportunity to be heard in their own behalf, it cannot appear that they are not entitled, for any cause, to be represented in the hearing intended to be secured. It is for them to conclude for themselves whether they will claim indemnity under the undertaking. And where the proceeding is animated by an adverse view, as this is, notice of it should be first given to them, enabling them to take such steps as may be requisite for their own protection. It is the only mode by which adverse or contesting claims can regularly be determined. And that has not been followed in this case.

The failure of the plaintiffs to raise this objection on the hearing of the motion does not rectify the proceeding. For the right to raise it is not restricted to them. It is the right inhering in these two other persons, in no way represented by the plaintiffs, which it is the duty of .the court to preserve. And the plaintiffs had no such relation tb them as permitted them, if they had been so disposed, to surrender it

This order being irregular should be reversed, with ten dollars costs and the disbursements on the appeal, and the motion denied, but with liberty to renew it on service of corrected papers on the other parties interested in the proceedings.

Yah Brunt, P. J., and Beady, J., concur.


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    In the Matter of the Application of August C. Schwager for a Writ of Mandamus.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    1. Appeal—When will hot be cohsedered.
    When the condition of any legal proceeding is such that no benefit whatever can be derived by the appellant from a decision, the appellate court will decline its consideration.
    2. Same—Costs.
    Where the court, at the time of the decision of an application, could afford the applicant no relief, even if his position was legally entitled to he sustained, the application should he dismissed without costs.
    Appeal by August 0. Schwager from an order denying his application for a writ of peremptory mandamus.

      Henry R. Beehnan and Lewis L. Delafield, for app’lt; Charles Blandy, for resp’t.

       Modifying 33 N. Y. State Rep., 715.

   Daniels, J.

The appellant, being a candidate for the office of alderman, in the nineteenth assembly district in the city of New York, applied to the board of police commissioners to prepare, print, and distribute through the district two sets of ballots containing his name as an aldermanic candidate to be voted at the election in November, in the year 1890. They conceded the right to have the name placed on one set of the ballots, but beyond that denied it.

To secure compliance with his application to place the name upon two sets of the ballots, he applied upon notice for a peremptory mandamus. This application was denied by an order made on the 10th day of November, which was after the election bad taken place, and on or about the 14th of November he took this appeal from the order. It is plain, therefore, that no practical effect can now by any possibility be promoted by considering the merits of the petitioner’s application to the commissioners.

The time has expired within which any possible advantage can be obtained by the appellant. If the court should be of the opinion, upon an examination of the provisions of the statute, that the applicant should have had his name printed upon two sets of ballots, not the slightest benefit could be derived by him from the decision. And when that appears to be the condition of any legal proceeding, it is the settled practice to decline its consideration. The continued pressure upon the time of this court is too great to permit any part of it to be devoted to the solution of merely speculative controversies. And the authorities are decidedly against that use of it. Hyatt v. Dusenbury, 8 N. Y. State Rep., 713; People v. Grace, 16 id., 1011; People v. Board, etc., of Cohoes, 11. N. Y. Sup., 296; 33 N. Y. State Rep., 30; People v. Squire, 110 N. Y., 666; 18 N. Y. State Rep., 528.

The fact that costs have been awarded against the applicant will not avoid the effect of this principle. As the court could, at the time of the decision, afford him no relief, even if his position was legally entitled to be sustained, the application should have been dismissed, without costs. And the order may very well be so far modified as to now give that direction. The order should, therefore, be changed to that effect. And as so modified the order should be affirmed, without costs.

Yam Brumt, P. J„ and Brady, J., concur.


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    In the Matter of John A. Holmes.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    1. Execution—Decedent’s estate—Fbaudulent conveyance—Code Civ. Pbo., § 1380.
    The amendment of 1890 to § 1380 of the Code does not apply in cases of alleged fraudulent conveyances by a decedent, unless such alleged conveyance has been declared fraudulent; but until it has been declared fraudulent leave of court is necessary in order that the judgment creditor may issue execution.
    2. Same—Judgment—Lien.
    Section 1380 was not intended to limit the length of the lien of a judgment provided by § 1251, but, on the contrary, to extend the same under certain circumstances beyond the period of ten years.
    3. Same—Appeal—Objection not taken below.
    While an objection that the proceeding was initiated by petition instead of by affidavit would have been fatal if taken in the court below, yet where it was not so taken, the failure to do so is a waiver of the irregularity.
    ' Appeal from order denying motion for leave to issue execution to enforce a judgment.

      Thomas J. Keighan, for app’lt; D. Thornton, for resp’t
   Van Brunt, P. J.

On the 26th of October, 1880, the petitioner and his brothers, William J. and Albert W. Holmes, obtained a judgment against one James Boyle, and the petitioner is the sole owner of the judgment which remains wholly unpaid and unsatisfied. The judgment debtor died in or about January, 1881, and this application is made for leave to issue execution upon said judgment. This motion was denied upon the ground that by the amendment cf § 1380 of the Code made .in 1890, it is provided that the section shall not apply to real estate which had been conveyed or might thereafter be conveyed by the deceased judgment debtor during his lifetime when such conveyance is made in fraud of his creditors or any of them( and from the order denying the motion this appeal is taken.

We think the learned judge erred in his application of the amendment referred to.

It is true that in the case at bar it is alleged that the judgment debtor had, in 1873, conveyed certain premises in fraud of his creditors, but the amendment did not apply to-such a case, unless the alleged conveyance had been declared fraudulent, and then judgment creditors might issue their execution as matters of course without application to the court. But until the fraudulent conveyance had been declared fraudulent, leave of the court was necessary in order that the judgment creditor might issue execution. And it is sought to issue the execution in the present case in order to lay the foundation, the necessary foundation, for the maintenance of a creditor’s action to set aside this alleged fraudulent conveyance if such conveyance exists. After such suit has been brought, and such conveyance has been declared fraudulent, then the amendment of § 1380 applies, and leave of the court is not necessary to issue an execution to reach the real estate as to which the fraudulent conveyance has been set aside.

It is urged that the judgment recovered against the deceased could not be a lien against this real estate because more than three years and six months have expired since the decedent’s death. We think this is an erroneous interpretation of the provisions of § 1380, and that it was in no way intended to limit the length of the lien provided by § 1251, but on the contrary to extend the same under certain circumstances beyond the period of ten years provided by the latter section.

There is another point taken, and that is that by § 1381 it is provided that the proof before the court shall be made by affidavit, whereas this proceeding is initiated by petition and there is no affidavit before the court. If this objection had been taken in the court below we think it would have been fatal to the proceeding; but as it does not appear to have been then taken, we think that the question of the irregularity of the initiation of the proceedings was waived.

Upon the whole case, therefore, we think that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted.

Brady and Daniels, JJ., concur.


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    Briggs Priestley et al., Resp’ts, v. Samuel Adams et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    Trade-mark—Injunction.
    Plaintiffs manufactured goods known and sold by tlie name of “Priestley Silk-warp Henrietta.” Defendants sold an inferior grade of goods at lower prices by the name of “ Priestley’s Henriettas,” which a person in their employment represented to be of Priestley manufacture. Held, that although defendants denied that such sales were made by their authority, the presumption would be that the sales would not have been made with this positive assurance without their approval; that such sales and representations were a fraud on the purchasers and plaintiffs, and that plaintiffs were entitled to an injunction restraining such sales.
    Appeal from an order enjoining and restraining the defendants, during the pendency of this action, from advertising, selling or offering for sale any goods as Priestley’s which are not manufactured by the plaintiffs.

      Kneeland, Stewart & Epstein, for app’lts; W. J. Owrtis and Alfred Jaretslci, for resp’ts.
   Daniels, J.

The plaintiffs are manufacturers at Bradford, in England, of a class of goods marked and sold in the city of New York and elsewhere as Priestley’s Silk Warp Henrietta, These goods had become favorably known and extensively dealt in by dealers in the city of New York, and appear to have been of a desirable quality and style of manufacture.

Proof by affidavits was made, showing that the defendants had advertised goods for sale as Priestley’s Henriettas at a much lower than their selling prices, and had sold at their store in the city of New York goods represented to be those of Priestley’s manufacture, which in truth were not of that make or description. They were detected in their sales by two persons commissioned to buy the Priestley goods, in May and September, 1890. They were remonstrated with after each sale, but denied that such sales had been made under their authority. But from the affidavits it may be assumed to have been proved that sales were made in this manner, of goods represented to be the Priestley manufacture, but which, in fact, were not so, by a person in their employment. And it is quite improbable that he would have made the sales with this positive assurance if that had not been permitted and sanctioned by the defendants themselves. The business was theirs and the profits in this manner obtained were theirs, and it is not to be supposed that persons employed by them would have made use of this device without their approval.

But while the plaintiffs identified and accompanied their goods with the name of Priestley’s Silk Warp Henrietta, as the defendant did not add that name and phrase to these sold by them, but went no further than to advertise and represent them as Priestley’s Henrietta, it has been contended in their behalf that this was not sufficient to entitle the plaintiffs to an injunction, restraining that use of this name. And a dicta to that effect has been found in the opinion upon which the case of Enoch Morgan's Sons' Co. v. Troxell, 89 N. Y., 292, was decided. But it certainly is a fraud not only on the purchasers, but also on the manufacturer, to advertise and sell goods as his which are of a different manufacture, and of an inferior, and different quality. And as the deception is one which it must be impractical either to prevent or compensate by an action for damages, a proper case for the interposition of a court of equity will be presented. And so it has already been considered, and in other instances held by the courts. In Wotherspoon v. Currie, L. R., 5 Eng. & Irish Appeals, 508, it was held that a name may become the trade mark of the party, and that others infringing his right to its exclusive use as a distinguishing mark of his manufacture may be restrained from continuing to do that by an injunction. And in Jay v. Ladler, L. R., 40 Ch. Div., 649, it was held that this restraint could be applied to prevent the advertisement of the. goods of one person as those of the manufacture of another. The same principle will sustain the injunction as the courts have invariably applied to prevent the simulated violation of a trade mark. It rests substantially upon the same facts. For there is presented the same injury to the exclusive right of the manufacturer, and the same deception and fraud upon the public in the one case as there is in the other. And that was unqualifiedly acknowledged in the decision of the case of McLean v. Fleming, 96 U. S., 245, 254. And to the same general import is the case of Devlin v. Devlin, 69 N. Y., 212.

The right of the plaintiffs to the injunction includes the entire foundation of their action. As the case is now presented, a presumptive ground for it has been disclosed. It may turn out differently at the trial, when the evidence shall be obtained unqualifiedly from the witnesses. But that possibility will not justify a disturbance of this order. And injustice in any view will be best prevented by continuing the injunction until the proofs of the parties can be presented in that manner. The order should accordingly be affirmed, with ten dollars costs and the disbursements on the appeal.

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