text:
    Alice Nearing, Resp’t, v. Frank Van Fleet, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

      1. Breach of promise—Corroboration of plaintiff.
    Evidence of admissions of the defendant that he called frequently on plaintiff and took her riding, with testimony as to the attentions he paid her and that she received no other male company during the time, is sufficient to corroborate the testimony of the plaintiff in an action for breach of promise.

      2. Same—Damages.
    A verdict lor §5,000 in an action for breach, of promise and seduction is not excessive.
    3. Same—Postponement.
    The fact that plaintiff consented to wait two years does not relieve the defendant from his promise to marry.
    4. Same—Variance.
    Where the complaint alleges that the promise was made in August, but the evidence shows that marriage was talked of on several occasions, it is not a material variance if it was made the last of July or first of September, and it is not error for the court to refuse to charge that if the jury believed that it was not made in August they must find for defendant.
    Appeal from judgment'in favor of plaintiff, entered upon verdict for $5,000, and from order denying motion for a new trial.

      Lewis E. Carr, for app’lt; William H. Crane, for resp’t.
   Pratt, J.

This is an appeal from a judgment entered upon a verdict, and also from an order denying a motion for a new trial.

The action is for damage for a breach of promise of marriage alleged to have been made during the month of August, 1888, aggravated by an alleged seduction.

The first point made by the appellant is that there was not sufficient corroboration of the plaintiff to warrant the submission of the case to the jury. We do not see the case in that light. There was evidence of his own admissions that he frequently called on her and took her out riding, also evidence of others as to the attentions he paid her, and that during all the time she received no other male company. Again, the declaration of defendant to the doctor who attended the plaintiff shows a knowledge upon the part of the defendant not consistent with his testimony upon the trial.

The defendant seems to feel aggrieved because there was no witness except the plaintiff heard him make the promise of marriage. We do not think it unusual or strange that the engagement was not made in the presence of third parties.

The conduct of the parties was not only consistent with such an assumption, but furnishes a high degree of proof of such fact.

It is difficult to see how, upon the proof, the jury could have reached any other conclusion.

The damages were not excessive. In fact a much larger sum might have been justly awarded.

It seems there were several promises made to marry. One in the fall of 1888, just prior to the seduction of the plaintiff, and again some time after the miscarriage. Now because the plaintiff consented to wait two years, that did not relieve the defendant from his promise to marry, but it was a mere postponement of the wedding day, and it is not that contract that is sued upon.

Neither do we think the exception to the refusal of the judge to charge that if the jury believed the contract was not made in August, 1888, they must find for the defendant, was error.

It is true the allegation in the complaint was that the promise was made in August, but the exact time was not material; but the conclusive answer to the proposition is that there was evidence that marriage had been spoken of on several occasions, and if it was made the last of July or the first of September, it was not a material variance.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


source: Caselaw Access Project

author: Pratt, J.

license: Public Domain

text:
    Anna Megrue, Resp’t, v. The United Life & Accident Insurance Association, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    1. Insurance (Lies)—Trial.
    It is not error to try an action upon a policy of life insurance at circuit with a jury where an affirmative equitable defense is pleaded.

      2. Same—Evidence.
    Where the policy and admissions in the answer and on the trial make out & prima fade case, it is not error for the court to refuse to require the plaintiff to put the application for insurance in evidence.
    Appeal from judgment in favor of plaintiff, entered upon a verdict, and from order denying motion for a new trial.

      Harry Wilber, for app’lt; James C. Bergen, for resp’t.
   Pratt, J.

This is an appeal from a judgment entered upon a verdict of a jury, and from an order denying'a new trial upon the minutes.

The action was upon a life insurance policy, and the defense was an affirmative one based upon allegations that the deceased made false answers in his application for insurance.

The issues submitted to the jury were three in number, viz.: 1st. Whether the application for insurance was made December 31, 1889, or on January 9, 1890. 2d. Was the deceased’s answer to question No. 7 in his application a true answer, and, 3d. Did the deceased make a true answer to the question: “ Have you ever had any serious illness, local disease or personal injury.”

It is apparent, and the court so instructed the jury, that if they found in the affirmative upon the first question, i. e., that the application was made on December 31, 1889, there was no occasion to consider the second question, as it was conceded that at that time there had been no refusal by any other company to issue a policy upon any application made by the deceased.

Upon the first question there was much evidence taken, and it was of a highly contradictory character. We think as the matter stood the court properly submitted the case to the jury, and that their verdict must stand.

The main issue was upon the third question, to wit, the physical condition of the insured at the time the insurance was effected.

The defendant assumed the affirmative upon the issue that the deceased falsely answered the question as follows: Have you ever had any serious illness, local disease or personal injury ? ” Upon this issue much evidence was taken, and we cannot say there was any such preponderance of testimony as to require the court to take it away from the jury, and it is entirely clear that the verdict is sustained by the evidence.

But the defendant claims that inasmuch as an affirmative equitable defense was pleaded it was error to try the cause at circuit with a jury.

One answer to this proposition is that it was tried at circuit without objection, and another is that a judge in an equity case can seek the verdict of a jury to inform his conscience.

Another ground of error is that the plaintiff did not put in evidence the application for insurance made by the deceased. The policy and the admissions in the answer and upon the trial made out a prima facie, case, and it was in the discretion of the judge whether to require the plaintiff to put in the application or not

The defendant was not prejudiced by his refusal to so order.

It was pre-eminently a case for a jury to determine, as it involved disputed questions of fact, and conflicting testimony, and the credibility of witnesses. There was evidence to support the contentions of both parties. Under such circumstances the verdict must stand.

We have examined all the exceptions, and find no error sufficient to warrant a reversal of the judgment or the granting of a new trial.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


author: Dykman, J. Pratt, J.

text:
    The Board of Health of the City of Yonkers, Resp’t, v. John Copcutt, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    1. Nuisance.
    A person who maintains a dam which is a nuisance is not relieved from responsibility for its condition by the fact that others besides himself contributed to it, nor is he excused by the fact that others guilty of creating or maintaining a nuisance have not been prosecuted.
    2. Same—Board of health of Yonkers.
    The board of health of the city of Yonkers has power under the charter to ordain that whatever is dangerous to human life or health, or renders the air, food, water or drink unwholesome are nuisances, and that whoever has aided in creating or contributing to the same, or who may support, continue or retain any of them shall be deemed guilty of a violation of the ordinance, and to enforce the same in an action for a penalty.
    3. Same—Orders.
    An action cannot be maintained to enforce a penalty for disobedience of a resolution requiring the abatement of a nuisance, passed without notice to the parties to be affected thereby.
    4 Same—Prevention.
    The board of health has power to prohibit the rebuilding of a dam which will create a nuisance; it is not necessary for it to wait until it is rebuilt and then adjudge it a nuisance.
    Appeal from judgment in favor of plaintiff, entered upon the decision of the court at special term after a trial without a jury.

      Action to recover three penalties of $100 each for violation of the sanitary code of the city of Yonkers.
   The following is the opinion of the court below:

Dykman, J.

The testimony in this action discloses the existence of an intolerable nuisance in the city of Yonkers.

In the heart of that city of 80,000 inhabitants, environed by dwellings in close proximity to its shore, the defendant in this action has for many years maintained a mill pond, whose bed is covered to the depth of seven feet with foul sediment impregnated with offscourings and putrid substances, covered at times with polluted water, and at times bare, giving off noxious, offensive and sickening odors, which endangered the lives and health of the people.

This action is brought to secure the abolition of the nuisance, and it will be a reproach to the law if its object, cannot be accomplished.

While it is true that the complaint contains counts upon bylaws for the recovery of penalties, yet the great and paramount object of the action is as already stated.

It may be observed, however, that by-laws of corporations and boards, made under authority of the legislature in conformity to the power delegated, have the same force as legislative enactments. McDermott v. Board of Police, 25 Barb., 635. Their history is briefly this: Where the Danes acquired possession of a shire in England, the township was often called a “ by,” and as they enacted laws of their own they were called by-laws, or town laws.

In modern times the term is employed to denote the private laws of corporations or other boards or bodies.

As the powers of the board of health are derived and limited, it is important to ascertain at the outsej whether the plaintiff is acting within the scope of its authority.

Section 1 of title 9 of the charter of the city of Yonkers, which was passed in May, 1881, provided for the organization of a board of health.

Section 2 authorizes the board, among other things, to suppress, abate and remove any public nuisance detrimental to the public health, to ordain a sanitary code and all ordinances necessary to carry into effect the powers of the board, and to enforce observance of its sanitary code and by-laws by the imposition of penalties for their violation, and to maintain actions in any court of competent jurisdiction, in the name of the board of health of the city, to recover such penalties and to restrain by injunctions such violations, or both.

In addition to the powers expressly granted therein, the board is to have and exercise all the powers then and at any time thereafter conferred upon boards of health in cities by any general law.

By the provisions of sub-division 4 of § 3 of chapter 270, of the Laws of 1885, passed in May, 1885, which is an act for the preservation of the public health, the several boards of health then organized in any city, village or town in this state, except Hew York, Brooklyn and. Buffalo, was clothed were power, and it was made their duty, to order the suppression and removal of nuisances and conditions detrimental to life and health, found to exist within the limits of its jurisdiction.

Sub-division 9 of § 3 is as follows : “ To impose penalties for the violation of or non-compliance with their orders and regulations, and to maintain actions in any court of competent jurisdiction to collect such penalties not exceeding $100 in any one case, or to restrain by injunction such violations, or otherwise to enforce-such orders and regulations.”

These provisions, therefore, supplement the city charter act, and with it confer the most ample power in all cases where necessity requires action and the subject falls within the jurisdiction of the-board of health.

The power to maintain actions for penalties, and to restrain by injunction the violation of ordinances, is sufficiently comprehensive to justify this action, and the same facts which establish a violation of the by-laws and the sanitary code will justify a permanent injunction.

It has already been said that the evidence is sufficient to establish the existence of an insufferable nuisance upon the land of the defendant, which is maintained by him. It is equally plain that the nuisance is detrimental to public health, and requires heroic-treatment.

Unlike the case of a business which is a nuisance, and which may be suppressed by the discontinuance of the cause without the destruction of the property, the nuisance in this case inheres-in the property.

The pond itself is the nuisance, and the abolition of the one is essential to the abatement of the other. The evil is radical and cannot be eradicated.without the discontinuance of the pond.

Actions of this kind, of which similar relief is administered, are by no means infrequent, and are based upon the maxim which requires all persons to so use their own property as not to injure others.

The maxim embodies both a legal and ethical principle of universal applicability. It lies at the foundation of the police power of the state which is exerted to prohibit any use of property in a densely populated community which is a nuisance detrimental to public health. It is sufficient to justify the destruction as well as the regulation of the use of property dangerous to health and life.

All property is held upon the condition that its use shall not be detrimental to the public. The private interests in individual rights of the defendant, like those of all other persons, are not absolute, and must yield to the public welfare.

Actions of this character, in favor of private individuals who have sustained peculiar injuries from nuisances, are not infrequent in this state, and the courts have gone far in the administration of complete relief.

Adams v. Popham, 76 N. Y., 410, was an action to restrain a nuisance, and was quite similar to this, except that the case was less aggravating.

R. E. Prime and Calvin Frost, for appl’t; James M. Hunt, for resp’t.

The facts were these: The defendant had constructed a dam across a small stream of water running through his own land, and then created a pond of water near the dwelling-house of the plaintiff. As the water collected it became stagnant, the bed of the pond was covered with sediment, and from the sides thereof, as they became bare and exposed to the sun, there arose noxious and poisonous effluvia and malaria, which tainted and poisoned the atmosphere. Such exhalation reached the dwelling-house of the plaintiff, rendering it dangerous to life and health.

The family of the plaintiff was made sick thereby, and she sustained special injury from the nuisance. The trial court rendered & judgment for the plaintiff, perpetually enjoining the defendant from maintaining or continuing the dam and pond.

That the defendant be enjoined to remove all obstructions of the running of the water in the stream, so that the water might run in the same manner it did before any dam was made thereon ; and, further, that the defendant be restrained from maintaining the pond by means of a dam or otherwise, or doing any act whereby the stream should be prevented from flowing as it was wont to do.

That judgment was affirmed both by the general term and the court of appeals, and in the latter court it was said: “ The person may enjoy his own property in any lawful manner, but may not do so to the injury of others.” Such are the principles and such the authoi’ity upon which my decision is based. Other authorities there are, but their citation is deemed unnecessary.

They are all in unison. Slaughter houses, fat boileries, and all similar nuisances have been driven back before the advance of population, and the courts have been ever ready to compel them to recede. The individual consequences have frequently been severe.

They will be so here, and that knowledge has induced an unusually careful consideration of this case. Yet it presents a great evil for which the law has a remedy that must be administered. nuisance detrimental to life and health must not be permitted in a great city.

Judgment must be rendered in favor of the plaintiff for the relief demanded in the complaint. That will abolish one pond; but there will be no complete relief until the entire chain of ponds is abolished, and the stream permitted to flow in its natural course, without a place for the secretion and accumulation of deleterious or noxious matter.

Pratt, J.

This is an appeal by defendant from a judgment of the Westchester special term after a trial before a judge without a jury.

The action was brought by the board of health, directly pursuant to § 2 of title 9 of chap. 184, of the Laws of 1881, to enforce obedience to its requirements.

Several important questions are raised by this appeal, but the facts are not open to much discussion as there is no certificate that the cause contains all the evidence, and we must, therefore, assume that the findings are supported by the proofs.

¡Neither is it necessary to discuss the principles upon which the judgment is founded, as that subject was fully discussed in the opinion rendered at the special term.

But even assuming that the appeal book contains all the testimony, it is established to a reasonable certainty that the pond in question was an intolerable nuisance and dangerous to life and health, and the fact that others beside the defendant contributed to it, and even the city of Yonkers itself, by discharging sewer matter into it, does not relieve the defendant from responsibility for its condition, for it was his act in maintaining the dam that kept the foul substance confined in the pond.

Heither is it any excuse for the defendant that others guilty of creating or maintaining a nuisance have not been prosecuted.

The first cause of action is for a penalty under § 82 of the sanitary code of the city of Yonkers. Chapter 184, of the Laws of 1881, § 2, title 9, provided as follows: “ And the board of health is hereby and empowered to establish, etc., * * * regulations as may be necessary to carry into effect the powers of said board, and to enforce observance of its sanitary code * * * by imposing penalties, etc."

Pursuant to the power thus conferred the board of health duly adopted and published a sanitary code, in § 82 of which it was provided “ whatever is dangerous to human life or to health * * * and whatever renders the air or food and water or drink unwholesome are declared to be nuisances and to be illegal and every person having aided in creating or contributing to the same or who may support, continue or retain any of them, shall be deemed guilty of a violation of this section.”

And § 97 of the sanitary code provides for the penalty for a violation of § 82, or any other section of the code, as follows :

“ Every person violating any of the provisions of this sanitary code, or any ordinance, by-law, rule, order, resolution or regulation of the board of health of the city of Yonkers, shall, for each and every offense, forfeit and pay a penalty of $100, which penalty shall be recovered, with costs, in an action brought by said board of health, in its name in any court of competent jurisdiction. Such violation is also liable to be restrained by injunction."

The proof made out a clear case of maintaining a nuisance under § 2, title 9, of chapter 184 of the Laws of 1881, and of violating § 82 of the sanitary code, and the defendant was properly held liable to the plaintiff for such violation in the sum of one hundred dollars ($100) and costs, and the court properly restrained and prohibited the defendant from continuing to maintain his pond in the Hepperhan river or stream, upon the ground that such pond is, necessarily, a nuisance. This was a part of the relief sought for by the complaint.

It should be observed that § 2, title 9, of chapter 184 of the Laws of 1881, contains, also, the following provisions in regard to the power of the board of health of the. city of Yonkers.

“ In addition to the powers herein expressly granted, to have and exercise all the powers now or at any time hereafter conferred upon boards of health in cities by any general law."

The plaintiff has, therefore, all the powers that were under discussion in the case of Gould v. City of Rochester, 105 N. Y., 46; 6 St. Rep. 503.

Under this decision of the court of appeals, plaintiff had full power to ordain the section of the sanitary code now under consideration, and also to enforce the same in such an action as the present.

The proof showed that the only effectual way to abate the nuisance was to destroy the dam and enjoin the rebuilding of any obstruction to the running current of the water.

The second cause of action is for disobeying directions of the board of health in regard to removing the dam and clearing out. the pond, etc.

It is to be observed in regard to this cause of action that the defendant had no notice of the proposed action of the board, of health; he only had notice of the resolution directing him to» remove the dam after it was passed.

Again, at this time the board did not adjudge the dam to be & nuisance or the cause of any nuisance.

We think an action .cannot be maintained to enforce a penalty for a disobedience of such a resolution passed without notice to the parties to be affected thereby. People v. Wood, 62 Hun, 131; 41 St. Rep., 812.

The remedy of the board of health was to abate and remove the nuisance, if one existed, and charge the expense upon the owner of the land not to order him to do it and impose a penalty for failure to do so.

It will not do to say that the facts proved upon the trial of the case justified a judgment upon this count in the complaint, as the defendant was on trial for a violation of this specific ordinance, and if the ordinance was insufficient, the defendant must be acquitted of the charge under it.

The finding, therefore, under the second cause of action must be reversed.

The answer of the defendant, by not denying it, admits that the resolution which proved the basis of the third cause of action was duly served upon him, and he conceded that it had been violated and disobeyed.

It is objected on the part of the defendant that the board had no power to prohibit the rebuilding of the dam and thereby prevent a nuisance, but that the board must wait until it was rebuilt and then adjudge it a nuisance.

It might as well be said that the board could not prohibit a load of cholera infected clothing from corning into the city, but must wait- its arrival before taking measures to abate the nuisance. It was simply a means taken to prevent the increase or renewal of what had already been adjudged a nuisance dangerous to life and health.

We think the resolution was reasonable and proper and within the powers conferred on the board of health.

The judgment should be affirmed as to the first and third causes of “action, and reversed as to the second; also affirmed as ito the injunction.

We find no exceptions disclosing error sufficient to reverse the judgment.

Judgment affirmed as to the first and third causes of action and ¡reversed as to the second, without costs to either party on this appeal.

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


author: Dykman, J.

text:
    The People ex rel. John Copcutt v. The Board of Health of the City of Yonkers.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    IToxkebs—Boabd op health.
    Notwithstanding the passage of chap. 54, Laws 1893, increasing the number of supervisors in the city of Yonkers, the organization and constitution of the board of health remains as it was under the charter of 1881, composed of six members only.
    Certiorari to review the action of the board of health of the city of Yonkers in enacting an ordinance declaring certain dams and water ponds of relator to be nuisances.
    At the time of the passage of the resolution the mayor, the president of the board of police, the health officer and the president of the common council were present, and all voted for the resolution. The president of the board of water commissioners was absent from the state, and no one was present as “ the supervisor.”
    The opinion referred to in the following opinion is the special term opinion in the preceding case.

      R. E. & A. J. Prime & Burns, for relator; James M. Hunt, for resp’ts.
   Dykman, J.

This is a proceeding by certiorari to review the action of the board of health of the city of Yonkers in enacting the ordinance of April 5, 1893, by which certain dams and water ponds of the relator were declared to be nuisances, detrimental to the public health, and directed to be suppressed and abated.

The proceedings are challenged for irregularity. It is the claim of the relator that the board of health was not legally constituted at the time of the passage of the resolution of April, 1893.

In the case of the People v. Parker, 117 N. Y., 86; 26 St. Rep., 698, it was decided that the function of a certiorari is to review the judicial action of inferior officers and tribunals. It assumes their existence and the fact of official proceeding, but draws in question the legality of such action. It brings up the record, and is heard and decided upon the return, which is taken as conclusive, People v. Fire Commissioners, 73 N. Y., 437, and that states that the resolution was adopted. Independent of this rule of law, however, the objection is baseless. The board of health of the city of Yonkers was created by the city charter. Section 1 of title 9 of chapter 184 of the Laws of 1881. The first part of that section is this: “ The mayor, the supervisor', the president of the common council, the president of the board of water commissioners, the president of the board of police, and the health officer, shall constitute the board of health of the city of Yonkers.” That made six members of the board, and four of those six were present at the time of the action which is under review. The point made by the relator is based upon chapter 64 of the Laws of 1892. That act amended two sections of the charter of the city of Yonkers. Prior to the passage of the act of 1892 there had been four wards in that city. The act of 1892, by § 1, created a fifth ward. By § 2 that act provided for the election of two aldermen from each ward, including the new fifth ward. Section three provided for election districts, and § 4 provided, among other things, for the election of a supervisor from each of the five wards of the city, and the claim of the relator is, that each of those supervisors are members of the board of health of the city.

Prior to the passage of the act of 1892 there had been but one supervisor for the entire city, and that supervisor was a city officer, and not a ward officer.

The act of 1892, which is an amendment to the city charter, only amended § 1 of title 1, and § 1 of title 2 of the city charter.

It did not attempt to amend § 1 of title 9 which prescribes the constitution of the board of health, and the officers which shall constitute the same.

Our conclusion, therefore, is that the organization and constitution of the board of health remains as it was under the charter act of 1881, composed of six members only.

Neither did the act of 1892 amend § 16 of title 3 of the charter, which is as follows : “ The supervisor shall be a member of the board of supervisors of the county of Westchester, and shall have the powers and discharge for the city the duties of supervisors of towns, except as otherwise provided in this act. He shall receive the compensation allowed by law in like manner as supervisors of towns in said county.” With this § 16 standing unamended it is very clear under § 1 of title 9 of the charter that the board of health of the city of Yonkers was at the time of the passage of the ordinance under view composed of not more than six members.

Upon the merits the case is plainly with the defendant. Although the proceedings under review related to the fifth and sixth water power, yet it was agreed that the testimony taken in an action tried at the special term between these same parties, in W estchester county, should be considered in evidence in this proceeding, and that in connection with the testimony returned by the board shows that all the ponds are foul receptacles of filth and putrefaction.

They are foul and polluted to an extent which is shocking to the sense and dangerous to health and life. They have received the condemnation of the local and state boards of health, and the court has held them to be dangerous public nuisances.

The claim of the relator that the ponds have ceased to be offensive or dangerous since the large mills ceased to drain therein, in the summer of 1892, is unsupported by testimony or reason.

It is true some witnesses so testified in the trial at special term, but their testimony was very unsatisfactory, and in some cases suspicious, and it was completely overthrown by the • general weight of evidence. Moreover it became quite plain that the alkalies and other chemicals which were emptied into the ponds from the factories tended rather to correct the impurities than to aggravate them.

The views expressed in the opinion delivered at the special term and printed in this record are applicable to this case, and may be considered as adopted here without repetition.

The proceedings of the board of health should be affirmed, with costs.

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


text:
    The Port Richmond & Prohibition Park Electric Railway Co., App’lt, v. The Staten Island Rapid Transit Elevated Railroad Co., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Railroad—Crossings.
    The general railroad act applies to the crossing of a steam railroad by an electric road, and if a satisfactory arrangement cannot be made by agreement, application must be made thereunder.
    Appeal from judgment dismissing the complaint.
    Action to procure an injunction requiring defendant to remove the obstruction of a certain gate to the operation of plaintiff’s electric road, and to restrain it from interfering with plaintiff’s road, cars, trolley and wires. The court below made the following findings of fact and law :
    I. The plaintiff is a domestic corporation duly organized and existing under and by virtue of the laws of the state of New York, and is operating an electric surface railroad on a part of the shore road, in the village of Port Richmond, New York.
    IT. The defendant is a domestic corporation duly organized and existing under and by virtue of the laws of the state of New York, and for many years last past has been and is now operating a locomotive steam railroad which passes through said village.
    III. The route of the plaintiff’s railroad crosses the track of the defendant’s railroad on the shore road in said village.
    IY. For a long time prior to the organization of the plaintiff and the construction of the plaintiff’s railroad on the shore road, the defendant had been crossing the shore road on grade, and had protected its said crossing by a “ Copeland ” gate having four arms, two on each side of the tracks, operated by one crank; the four arms being connected by an endless chain which crosses the shore road on each side of the tracks fifteen feet eleven inches above the shore road when the gate is open.
    Y. The plaintiff operates its railroad by means of a trolley overhead wire.
    YI. The plaintiff cannot string its trolley wire across the defendant’s tracks and operate its cars across said tracks by the trolley system so long as defendant’s “ Copeland ” gate is in use. The stringing of said wire and the operation of the plaintiff’s railroad by the trolley system are impossible unless the chain of said gate be broken, and the breaking of said chain renders said gate useless.
    YII. About the end of June, 1892, the plaintiff opened a negotiation with the defendant to obtain an agreement from the defendant giving it the right to string its wire and cross the defendant’s tracks. While this negotiation was pending and before the terms and conditions of crossing had been fixed, the plaintiff requested the defendant to disconnect the chain of its gate and permit the plaintiff’s wire to be strung and its cars to be operated across the defendant’s tracks temporarily pending the settlement of the terms and conditions of crossing. The defendant complied with said request in or about the month of June, and the plaintiff operated its cars across the defendant’s tracks by the trolley overhead system between about July 3d and November 27, 1892, under said temporary permission granted by the defendant. The defendant’s gate during that period was useless in consequence of the breaking of the chain. After the plaintiff had strung its wires and had begun to operate its cars across the defendant’s tracks through the courtesy of the defendant, it broke off the said negotiation and no agreement of any kind has ever been made between the parties to this action with reference to the terms and conditions of crossing.
    YUI. On November 27, 1892, the defendant again connected its gate chain and since that time the plaintiff has been unable to operate its cars across the defendant’s tracks by means of the trolley system.
    IX. No application has been made to the court by the plaintiff for the appointment of commissioners as provided in § 12 of the railroad law.
    X. The defendant’s “ Copeland ” gate is a lawful gate. It is not a nuisance and no complaint has ever been made of it except by the plaintiff.
    XI. The only railroad gate that can be operated at the crossing in question without interfering with the plaintiff’s trolley wire and the operation of the plaintiff’s cars across the defendant’s tracks would be a gate operated by means of an underground system of level's.
    XII. While such a gate as that described in the last preceding paragraph is not unknown, it is seldom used.
    XIII. That the Staten Island Belt Line Railroad Company is a domestic corporation duly organized and existing under and by virtue of the laws of the state of New York, and is duly authorized by law to operate its street surface railroad, among other streets, on the shore road in the village of Port Richmond, New York.
    XIV. That this plaintiff is duly authorized by law to build, operate and maintain its street surface electric railroad along the shore road in said village, and between the 3d day of July, 1892, and the 18th day of November, 1892, ran its cars without molestation by means of the trolley or overhead system of electric power between Bergen Point ferry in said village of Port Richmond, along said shore road and Jewett avenue, to Prohibition park in the village of New Brighton.
    XV. That on the 14th day of June, 1892, by an order duly entered, the board of railroad commissioners of the state of New York did approve the adoption of the overhead single trolley electric system by the plaintiff as a motive power.
    XVI. That said Staten Island Belt Line Railroad Company is now in the hands of a receiver, duly appointed, qualified, and acting as such; that said receiver did on the 18th day of March, 1892, by an order of this court duly made and entered, obtain the permission of the court to grant its permission to the plaintiff to construct, operate and maintain its electric railroad along and upon the tracks and roadbed of the said Staten Island Belt Line Railroad Company on the shore road from Bergen Point ferry in said village to said Jewett avenue, and said belt line railroad therein selected electricity as a motive power to be used concurrently with other motive powers (except locomotive steam power) along said streets in the village of Port Richmond.
    XVII. That thereupon said receiver duly entered into an agreement with this plaintiff, dated March 19, 1892, wherein, acting under the directions and instructions contained in said order, said receiver duly leased to this plaintiff by an instrument in writing duly signed, executed, acknowledged and delivered, its certain tracks and roadbed (to be used conjointly with said Staten Island Belt Line Railroad Company) lying on the shore road between Richmond avenue and Jewett avenue in said village; •and said belt line railroad company therein selected electricity as a motive power to be used along that part of said street therein leased.
    XVIII. That the plaintiff’s street surface electric railroad crosses the defendant’s system railroad on said shore road in said village.
    XIX That in the month of June, 1892, this plaintiff strung its electric wires and on the third day of July, 1892, began the running of its cars across the defendant’s road at said crossing without molestation or dissent.
    XX. That the defendant has maintained at said crossing a body of men for the purpose of resisting the crossing of the plaintiff’s cars and to prevent plaintiff from removing the obstruction of said gate.
    And, as conclusions of law,
    I. That the defendant’s gate was and is a lawful structure.
    IL That the plaintiff could not lawfully string its wires and operate its cars across the defendant's tracks without either agreeing with the defendant upon the terms and conditions of crossing, or having the same fixed by commissioners appointed by the court pursuant to § 12 of the railroad law.
    III. That the plaintiff obtained no permanent right of crossing the defendant’s tracks by reason of the temporary permission to cross the same granted by the defendant in the latter part of June, 1892, and that the defendant's act in the reconnecting its gate chain in November, 1892, was proper and legal.
    IY. That the plaintiff had made no case for the interference on its behalf of a court of equity.
    Y. That the complaint should be dismissed with costs.

      Alexander S. Bacon, for app’lt; Tracy, Boardman & Platt, for resp’t.
   Pratt, J.

We think the seventh finding of fact is sustained by the evidence. From that it follows that no agreement was reached between the companies as to the crossing.

If-plaintiff cannot make a satisfactory arrangement, it must apply under thé railroad act, which we believe to be applicable.

Judgment affirmed, with costs.

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


author: Gildersleeve, J.

text:
    Prosper Monnet et al., Pl’ffs, v. Henry Merz, Def't.

      (New York Superior Court, Special Term,

      Filed July 10, 1893.)

    1. Costs—Extra allowance.
    Only one extra allowance can be made in a case, although additional labor and trouble are thereafter caused by numerous appeals.
    2. Same.
    After the court of appeals, on appeal from an order granting a new trial, has rendered judgment absolute, the court below should not grant an allowance.

      (Eldridge v. Strenz, 39 Supr. Ct., 295, followed.)
    Motion for extra allowance.

      Arnoux, Ritch & Woodford, for pl’ffs; Man & Man, for def’ts.
   Gildersleeve, J.

This action .was commenced to recover the sum of about-$18,000, the balance of account between the parties herein. It was sent to a referee for trial. The referee reported in favor of the plaintiff in the sum of $12,276.29. After the filing of the referee’s report, and before the entry of judgment, the plaintiffs moved for an additional allowance, and the court allowed them the sum of $300. Judgment was entered on the referee’s report, and from that judgment the defendant appealed to the general term. The judgment was affirmed at the general term, and from the judgment of affirmance the defendant appealed to the court of appeals. The court of appeals modified the judgment by deducting $1,125, with interest from March 9, 1893, and, as modified, affirmed the same, without costs. After this decision by the court of appeals the plaintiffs appealed to the general term from so much of the judgment entered on the report of the referee as failed to adjudge that plaintiffs were entitled to recover the further sum of $6,126.09. The defendant’s attorneys returned the plaintiffs’ appeal papers on the ground that they were served too late, and afterwards made a motion at general term to dismiss plaintiffs’ appeal on that ground. The general term denied the motion, and from the order of the general term, denying the motion, defendant appealed to the court of appeals, which affirmed the order of the general term, with costs. Plaintiffs’ appeal from the original judgment entered on the report of the referee was argued before the general term, and a decision was handed down in the plaintiffs’ favor, reversing that part of the judgment of the referee appealed from, and ordering a new trial, with costs to abide the event, and that the order of reference be vacated. The case was placed upon the calendar for trial, but before the trial could bs had the defendant gave the usual stipulation, and appealed directly from the order of reversal of the general term to the court of appeals. The court of appeals affirmed the order of reversal of the general term, and directed judgment absolute in favor of the plaintiffs. The plaintiffs now move for another extra allowance, on the ground of the inadequacy of the first allowance, i. e., $300, and on account of the additional labor devolved upon them by the numerous appeals.

It is the well-settled practice that only one additional allowance can be made in a case, no matter how many times the case may be tried. Flynn v. Equitable Life Assur. Society, 18 Hun, 212; Bank of Mobile v. Phoenix Ins. Co., 8 Civil Proc., 212; Trust Co. v. Whiton, 17 Hun, 593. The allowance is given for the trial of the action, not for the appeals. In this case there has been but one trial, though many appeals have been taken. This is practically a motion to increase the allowance already granted by the special term, or, in other words, it is an application to one judge at special term to review the action of another judge at special term. This I must decline to do. The learned judge at special term gave such allowance as he thought proper, Morss v. Hasbrouck, 13 W. Dig., 393, in view of the labor and trouble incurred upon the trial of the action; and the additional labor and trouble caused by the numerous appeals cannot be made the basis of extra allowance. Wolfe v. Van Nostrand, 2 N. Y., 570. In any view, I am of opinion that this motion is controlled by the doctrine laid down by the general term of this court in the case of Eldridge v. Strenz, 39 N. Y. Supr. Ct., 295, where it was held that after the court of appeals, on appeal from an order granting a new trial, has rendered a judgment absolute, the court below should not grant an allowance. To be sure, this doctrine seems to be at variance with that laid down by the supreme court, general term, first department, in the case of Parrott v. Sawyer, 26 Hun, 466; but the doctrine held by this court is in accordance with that laid down by the court of appeals in the case of McGregor v. Buell, 40 N. Y., 153, where it was held that it is not proper for the supreme court, on the return of a remittitur, to add any new and independent direction to the judgment of the court of appeals, beyond what may be required to carry that judgment into effect, and that the supreme court cannot add to the judgment contained in the remittitur a new or further judgment, even for costs of the appeal of that court. This case in 40 N. Y. is not quite in point, but it tends to confirm the doctrine laid down by the general term of this court in the case of Eldridge v. Strenz, supra. The motion for another extra allowance must be denied, with ten dollars costs.


text:
    George Betz, Pl’ff, v. Peter Buckel et al., Def’ts.

      (New York Superior Court, Special Term,

      Filed July 10, 1893.)

    Contempt—Order directing purchaser on foreclosure to pay deficiency ON RESALE.
    An order directing a purchaser at a foreclosure sale to pay the deficiency arising on a resale caused by his default cannot be enforced by proceedings for contempt. Such case is not within sub. 3 of § 14 of the Code, as an execution may be issued under § 779.
    Motion" for an order directing the defendant, Charles Johnson, to pay the deficiency arising on a r.esale of property in foreclosure caused by his default to complete' his purchase thereof, and in default thereof that he be punished as for contempt of court.

      Abraham L. Jacobs, for pl’ff; Henry Daily, for def’t.
   Gildersleeve, J.

By decree of this court in proceedings to foreclose a mortgage, certain real estate in this city was offered for sale, under the direction of a referee duly appointed, in the month of November last; and the property was struck down to Challes Johnson, one of the defendants in the foreclosure proceedings, which were entitled as above, who had been unsuccessful in an alleged defense which he had interposed therein. Johnson signed the terms of sale prepared by the referee, but failed to comply therewith by paying ten per cent, of the purchase price. On motion duly made in this court, upon the argument of which Johnson was heard, an order was made directing that the premises in question be resold, under the same terms of sale as were subscribed to by Johnson when the premises were struck off to him, and that Johnson be held liable for, and pay over to the referee, for and on account of the plaintiff, the amount of any deficiency that there might be between the sum for which the said premises were struck off to him upon the first sale, and that for which they might be purchased on the resale. It was further ordered that said Johnson pay the costs and expenses incurred on the resale of said premises. On May 15, 1893, the report of the referee of the resale was duly filed, whereby it appeared that the deficiency between the amount bid by Johnson upon the first sale of said property, and the amount realized upon the second sale thereof, was $15,500, and that the expenses of such resale amounted to_$222.45. The motion now under consideration is for an order directing Johnson to pay the said sum of $15,722.45, together with interest thereon from May 16, 1892, and in default thereof that he be punished as for a contempt of court.

Johnson seems to have had due notice of all the steps in the proceedings that have led to the result above indicated, which proceedings seem to have been entirely regular, and the plaintiff is clearly entitled to a decree of this court directing Johnson to pay to him the above sum. It appears, however, that Johnson is utterly insolvent, and that such a decree will be of little value to the plaintiff. Anticipating Johnson’s default, plaintiff asks that in the event thereof Johnson be punished as for a contempt of court. In my opinion Johnson’s failure to pay the above sum, when ordered by this court forthwith to do so, will not place him in a contempt for which he can be summarily punished by an order of this court. We must look to the Code for authority to enforce the order by punishment as for a contempt. Contempts that are punishable civilly are set forth in § 14 of the Code of Civil Procedure. If the case at bar falls within the section in question, it must come within the provisions of subdivision 3 or subdivision 8. We are not advised by counsel, nor have we been able, upon a somewhat hurried examination, to ascertain that punishment for contempt has been “ usually adopted and practiced ” in this court to enforce the remedy which the plaintiff here seeks, and we must, therefore, hold that the application is not within subdivision 8 of that section. Subdivision 3 is as follows: “A party to the action or special proceeding, an attorney, counselor or other person, for the non-payment of a sum of money ordered or adjudged by the court to be paid, in a case where, by law, execution cannot be awarded for the collection of such sum, or for any other disobedience to a lawful mandate of the court.”

The case at bar is not within this subdivision, for the reason that it is not “a case where, by law, execution cannot be awarded for the collection of such sum.” For by § 779 it is provided as follows: “Where costs of a motion, or any other sum of money, directed by an order to be paid, are not paid within the time fixed for that purpose by the order, or, if no time is so fixed, within ten days after the service of a copy of the order, an execution against the personal property, only, of the party required to pay the same may be issued by any party or person to whom the said costs or sum of money is made payable by said order. * * * But nothing herein contained shall be so construed as to relieve a party or person from punishment as for a contempt of court for disobedience to an order in any case where the remedy of enforcement by such proceedings now exists.”

I can find no provision of the Code which authorizes the court to enforce the payment of this money by Johnson to the plaintiff by punishing Johnson as for a contempt. Section 16 of the Code provides as follows: “ Except in a case where it is • otherwise specially prescribed by law, a person shall not be arrested or imprisoned for disobedience to a judgment or order requiring the payment of money due upon a contract, express or implied, or as damages for hon-performance of a contract.”

The sum which the plaintiff is seeking to collect from Johnson is nothing more than damages arising from the non-performance of Johnson’s contract. Contracts for sale, such as Johnson subscribed to in this action, owing to the large number of transactions in real estate in this city, and to the large amount of property that is sold at auction, are entered into daily, and are very numerous. If it is to be held that, for the failure to pay damages arising from a breach of such contract, judgment debtors are to be punished as for a contempt of court, it would, it seems to me, be a some-' what serious impediment to real estate transactions, and deter many desirous of purchasing real estate from entering the market. I cannot declare such to be the law until I am shown authority therefor. This the counsel did not do upon the argument, nor does it appear in their briefs. I believe the remedy of the plaintiff to be such as I have indicated. The application to punish defendant Johnson as for a contempt of court must be denied, without costs.


text:
    Frank Jordan, Pl’ff, v. Harlem P. Hess, Def't.

      (New York Superior Court, Special Term,

      Filed July 13, 1893.)

    Costs—Extra allowance.
    An additional allowance cannot he awarded to a party in whose favor no costs can he taxed.
    Motion for new trial, and motions by both parties for an extra allowance.

      S. B. Paul, for pl’ff; Richards & Brown, for def't.
   Gildersleeve, J.

I disposed of the questions of law as they arose upon the trial of this action according to my best judgment. The arguments of counsel upon the motion fora new trial did not convince me that the rulings made should be changed. I, however, reserved decision that 1 might carefully examine the evidence bearing upon the third cause of action set up in the complaint. The jury found in favor of plaintiff on this cause of action, and, as I recollected the evidence, it seemed to me doubtful if the evidence would sustain the finding. In my opinion, proper rules of law were laid down for the guidance of the jury in disposing of the issues arising under that cause of action. From reading so much of the evidence as is now before me, I am convinced that it was clearly within the province of the jury to find on questions of fact, arising under this issue, either for plaintiff or for defendant. Since they have found for plaintiff, upon sufficient evidence, the court should not disturb the verdict. The motion for a new trial must be denied. Defendant’s motion for an additional allowance must also be denied. I can find no authority for granting an additional allowance to a party who is not entitled to costs. An additional allowance cannot be awarded to a party in whose favor no costs can be taxed. Couch v. Millard, 41 Hun, 212; 4 St. Rep., 167. The plaintiff may have an additional allowance of five per cent, on the amount recovered.


author: Parker, J.

text:
    Catharine Altrock, Pl’ff, v. Arabella Vandenburgh et al., Def’ts.

      (Supreme Court, Rensselaer Circuit,

      Filed March, 1893.)

    1. Will—Rule op construction.
    A will should be so construed as to carry out the testator’s intention unless some positive rule contravenes.

      2. Same—Illegal suspension of power of alienation.
    A codicil which devises real estate to the three children of testator during the life of each and successively to the survivor or survivors, and upon the death df all to their children, is void as suspending the power of alienation for more than two lives in being.
    3. Same—Effect of invalid codicil on a valid will.
    A codicil that does not contain an express revocation, does not operate to revoke the terms of the will, unless such codicil is itself valid and can be carried into effect.
    Action for partition of real property, involving the construction of testator’s will and the determination of the effect of an invalid codicil upon a prior valid testamentary disposition.

      John McShea and Frank S. Black, for pl’ff; R. A. Parmenter, T. J. Van Alstyne, John P. Albertson and M. I. Townsend, for various def’ts.
   Parker, J.

April 23d, 1872, John W. Yandenburgh made his will. At that time he had a wife and two children, Catherine Link and William J. Yandenburgh. His estate consisted of real and personal property of about equal value. By his will he gave substantially all his personal property to his daughter and his real estate to his son and his son’s children, subject to an annuity to his widow for life, thus in effect making a nearly equal division of his property between his two children or their descendants. After the will was made the son died and the testator then made a codicil reciting that fact and purporting to devise his real estate to the three children of his son for the life of each, and successively to the survivor and survivors, and upon the death of all of them, then to their children.

This provision is void, for it suspends the power of alienation for more than two lives in being. After his death the will and codicil were duly admitted to probate, and in due course his personal estate was by the executor turned over to his daughter, the children and widow of testator’s deceased son entering into and retaining possession of the real estate. Subsequently an action of partition was begun by the plaintiff, a daughter of William J. Yandenburgh, deceased, in which action it was asserted by some of the defendants that while the attempted disposition of the real estate by the codicil was void, nevertheless it operated to revoke the devise of the real estate made by the will and therefore as to it the testator died intestate, thus vesting in his daughter, Catherine Link, an undivided one-half interest thereof.

The action was tried and judgment rendered therein, but it was subsequently opened in order to make another person claiming some interest in the premises a defendant. Hence this re-triaj. The justice before whom the case was first tried reached the conclusion that the provision relating to the real estate was revoked by the codicil reluctantly, because it was clear to him that such a determination results in defeating the manifest intention of the testator.

It is with some hesitation that this court takes the position that it will not follow the prior determination. It is so clear that the adoption of a construction of the will and codicil taken together which results in intestacy as to real estate, thus giving to the daughter’s family one-half of the property which he intended for that of his son, is so manifestly against testator’s wishes that the court should strictly inquire whether it is commanded by authority to so declare before yielding to the contention of the advocate for such a construction.

The will and codicil must of course be taken together and construed as one instrument, and it is a fundamental rule of construction that the intention of the testator as manifested by the whole instrument must be first ascertained, and then such a construction given as will permit such intention to prevail unless in contravention of some fixed legal rule.

Now it seems to be apparent from both the will and the codicil that it was the intention of the testator that the children of William, or their heirs at William’s death, should have the real estate. By the will he provided that his son, subject to the annuity before mentioned, should have the income thereof during his life, and after his death the fee to go to the children of his son or their heirs.

The son dying, the testator then made the codicil by which he gave the income to the children of his son" during their lives, or the survivor of them, and upon the death of all of them, then to their children.

It is apparent, therefore, that the purpose of the testator as manifested both by the will and the codicil was that his son and his descendants in some form should receive the benefit of this real estate. It is nowhere contemplated that his daughter Catherine was to "receive any benefit from it as against them.

It must of course be conceded that if the codicil had in terms revoked the devise contained in the will, the fact that an attempted devise of such property by the same instrument was void, would not operate to restore the devise revoked.

But that is not the question presented by this instrument. The codicil does not in express language revoke the devise in the will. It recites “inasmuch as I devised my farm to my son William for the term of his natural life, with remainder over, now instead thereof I do devise my said farm,” etc.

Now, if this attempted devise was valid, it would operate as a revocation of the will in such respect, because inconsistent with it, and expressly intended to take the place of it. But it is not valid, and it would be strange indeed if a wholly inoperative attempted disposition should nevertheless have the effect of destroying a prior valid devise, especially when, as in this case, it is apparent that the testator did not wish to die intestate as to his real estate, and that if he had known he could not lawfully make the disposition last attempted, he would have been content with the first

No authority has been brought to my notice which seems to require such a holding. On the contrary, the reasoning of Judge Finch, speaking for a unanimous court in Austin's case, 117 N. Y., 577-597; 28 St. Rep., 834, seems to clearly justify the conclusion that a void disposition, although inconsistent and repugnant to a prior one, does not operate to destroy it

In that case the remainder of a testator’s estate was given to his children and grandchildren in such shares as his wife should by her will direct and appoint. By her will she duly exercised the power of appointment. Subsequently one of the appointees died. Then she undertook by a codicil to designate which of the appointees should receive the share which the will provided should go to the deceased child. This provision of the codicil was held to be inoperative and void.

A comparison of the main features of the two cases will make clear the applicability of the discussion of the Austin case to the one under consideration.

In that case the testator possessed and by will legally exercised the power of appointment. In this one, testator could, and by will did devise his real estate.

The testatrix in Austin's case possessed the power to revoke, by codicil, the appointment made by the will and to make a new and valid appointment therein.

The testator Yandenburgh also had the power to revoke, by codicil, the devise contained in the will and to make a new devise therein.

In Austin’s case the testatrix intended to revoke the appointment as to Charles Austin’s share and reappoint as to it. And in this case the testator intended to substitute the devise made by the-codicil for that provided by the will.

In each case the disposition attempted to be made by the codicil is void and of no effect.

And in each case the question is squarely presented, whether these void attempted dispositions are nevertheless effective to revoke the dispositions they were intended to replace.

In Austin’s case it was held not. Judge Finch saying : “And thus the conviction is strengthened that Mrs. Austin did, fully and completely and lawfully, execute by her will the appointment authorized by her husband, unless the further objection of the appellants is sound—that her codicil appointing the share of Charles to the Oakes children operated as a revocation of the devise over, ' although itself null and void.

“That proposition strikes me as both unreasonable and illogical. The appellants are required to argue, as they do argue, that the appointment of Mrs. Austin’s codicil was absolutely null and void, because it transcended the authority conferred; and not only that, but was so vicious and bad that it dragged down with it the other-appointments which did not exceed the power, and yet was good enough and had force enough to revoke and annul, without words of revocation, an appointment complete and lawful and fully within the scope of the power conferred. * * * There are no words to that purport, or which declare that intention, and so it rests alone upon an implication born of the alleged repugnancy of the two provisions ; but are they necessarily repugnant ? Theu would be if the devise to the Oakes children was good; but are they if it is bad f Can nothing be repugnant to something and turn that something into nothing?

“ Suppose Mrs Austin had written out in full the thought which was in her mind when she executed the codicil; she would have said: I prefer to' give the share of Charles to the Oakes children, if I can ; that is my preference, and I give it to them if I may do so according to law; and then suppose that it should turn out that she could not lawfully make the change; does it follow, in that event, that she meant to revoke the valid appointment ? * * * That preference was wholly subordinate to the execution of her power, and no violence is done to her intention if, that failing, the disposition of her will is suffered to stand; for I deem it beyond a reasonable doubt, that if she had known what we now know, that an appointment to the daughter’s children was not within her authority, she never would have made it, but would have suffered the disposition of her will to remain.”

It seems to be clear that the reasoning in the Austin case is not only applicable, but controlling in this one.


author: Titus, Ch. J. Hatch, J. (dissenting).

text:
    Charles J. Close, Pl’ff, v. Charles P. Brady, Def’t.

      (Superior Court of Buffalo, General Term,

      Filed July 14, 1893.)

    1. Corporations—Liability of stockholders for debts.
    One who has disposed of his stock in a corporation is not liable under § 57 of chap. 564, Laws 1890, on a note executed by the corporation while he was a stockholder, but which was not negotiated until after he had ceased to be such.
    2. Same.
    It is immaterial in such case that the note bears date as of the time of its execution, and that the plaintiff is a Iona fide purchaser thereof.
    :8. Same—Estoppel.
    The fact that the defendant signed the note as treasurer of the corporation does not estop him from denying his liability as a stockholder by showing the true time of the creation of the debt and that at such time he was not a stockholder.
    (Hatch, J., dissents.)
    Motioh for new trial on exceptions ordered heard in the first instance at general term, after finding for defendant .

      Simon Fleischmann, for pl’ff; Shire, Van Peyma & Jellinek, for def’t.
   Titus, Ch. J.

This is a motion for a new trial on exceptions ordered to be heard in the first instance at the general term. The facts in the case are undisputed. The American Bit & Brace Company was organized under the act to authorize the formation •of corporations for manufacturing and other purposes, being chapter 40 of the Laws of 1848. The capital stock of the company has never been paid in, nor has any certificate thereof been made and recorded, as required by § 11 of that act Prom the 2d day •of January, 1892, until the 28th dhy of January, the defendant was the holder of fifty-six shares of the capital- stock of the company, of the par value of $100 each share, and was during that time secretary and treasurer of the company. On the 28th day of January, 1892, the defendant sold fifty-five shares of his stock, and the same were on that day transferred on the books of the -company to the purchaser, and one share was sold by him, and transferred on the books of the company, on the 20th day of February, 1892. On the 2d day of January, 1892, the company made two promissory notes, for four and eight months respectively, of $5,000 each, payable to the order of the company. The notes were signed by the treasurer, and countersigned by the president, Mr. Preston, and delivered to him, as the agent of the company, for negotiation and sale. On February 27th the company sold and delivered these notes to Gertrude E. Lee, for full value, who transferred the same to the plaintiff, for value, before maturity! The two notes were subsequently renewed, and the amount of them put in one note of $10,200, which included accrued interest. From January 2d to February 27th, when they were sold to Mrs. Lee, the notes remained in possession of the company, unsold and undelivered. On the trial the court, on these facts, directed a verdict for the defendant. The only question raised is, is the defendant, under the statute, as stockholder, liable for the debt created, and for which these notes were given ? The theory of the counsel for the plaintiff, so far as I am able to gather from his brief, is that the stockholders are liable to the creditors the same as partners, and that as one partner may bind another, after the dissolution of the firm, by the firm’s paper, if the payee is not chargeable with notice of dissolution of partnership, and is a Iona fide holder, so, here, the plaintiff being a bona fide holder, without notice that the defendant had parted with his stock, he is liable as a partner would be under such circumstances.

It may be assumed, as intimated in some of the cases, that ■stockholders are liable as partners, but in the cases examined it is ■expressly held that such liability is limited by statute. But where the statute has created or continued the liability against the stockholders, and limited it, as is done by the act of 1848, it becomes •immaterial whether they are liable as partners or not The question of their liability is to be determined by the statute itself, as construed by the courts; and, as the statute expressly fixes that liability, it would seem only necessary to make reference to it. By § 57 of chap. 564 of the Laws of 1890, which is substantially a re-enactment of § 10 of the act of 1848, it is provided ■that: “ Stockholders shall, jointly and severally, be personally liable to the creditors, to an amount equal to the amount of stock held by them, for all debts and contracts made by the corporation, until the whole amount of its capital stock shall have been paid in, and a certificate thereof signed and filed.”

The language of the statute seems to be clear enough to justify the court, without further authority, in holding that, before the stockholder can be charged with the debts of the corporation, it must appear that he was such stockholder at the" time the debt was created. The question has frequently been before the courts •under the act of 1848, as well as other of the corporation laws, zand the cases are quite uniform in holding to this construction of the statute. The citation of a few will be sufficient to show the line of reasoning of the courts, and the rules adopted. Moss v. Oakley, 2 Hill, 265; Johnson v. Underhill, 52 N. Y., 203; Tucker v. Gilman, 121 id., 189; 30 St. Rep., 689. The construction given by the courts, in these cases, to this statute, fixes the liability of the stockholders who were such at the time of the creation of the-debt; and as the defendant was not a stockholder when the note-was negotiated, and the debt created, he is not chargeable with the payment of these notes, unless it is by some legal fiction which will make the statute ineffective. It is the claim of the plaintiff’» counsel that the plaintiff is the bona fide holder of the notes, for value, before maturity, and no defense can be interposed by the defendant. The defendant is not the maker of the noté. Hi» position, at most, is that of surety for the corporation, by reason of its failure to complete its organization. I do not think the rulé is applicable to the facts as they appear in the case. Before he can be charged as a stockholder, he must have been such when the debt was created. Moss v. Oakley, supra. In order to charge the defendant, it was incumbent upon the plaintiff to show his relation to the company. The note itself does not show him personally to be the maker of it. Therefore it requires proof or evidence* that he is a stockholder before any claim can be made against him. It seems to me that the plaintiff’s legal status, as bona fide holder of the note, does not affect the right of the defendant, under such circumstances, to avail himself of the defense authorized by the statute, to enable him to show that he was not a stockholder when the debt was created, and consequently not liable. Bond v. Appleton, 8 Mass., 472. The application of such a rule would put. it out of the power of one who had ever been a stockholder in a. corporation to set up the defense which the statute inferentially gives him in an action of this character, no matter when the debt was created. Nor do I think the position of the counsel tenable when he claims that the defendant is estopped from defending-against his liability as a stockholder because he was treasurer of the corporation at the time the note bears date, and as such signed it. The fact that he was treasurer adds nothing to his statutory liability. His act in signing the note was that of agent. He did. not act in his individual capacity, and so that fact alone cannot be urged to create an individual liability against him. It seems to me that the fact that he was not a stockholder when the debt was incurred—when the notes were sold and delivered to Mrs. Lee— must control the decision of this case. The notes while in the hands of the company created no debt against it. They were without legal force or inception. No consideration had been given for the making of the notes, and it was not until the money was received, and the notes delivered by the corporation, that there-was an indebtedness created against it. Powell v. Waters, 8 Cow., 687. This is not disputed, but it is claimed that, when they were delivered to. Mrs. Lee, they took effect from their date, and that a> different date than that specified in the notes cannot be shown. If the action was against the corporation, that would be the rule,, but, as a stockholder, the defendant is a stranger to the note. The-plaintiff is seeking to charge such a one with the payment of the -corporation debt, and it does not seem to me that that rule is applicable to such a case, but that the defendant is at liberty to show the true time of the' creation of the debt, and that at such time he was not a stockholder of the corporation. If I am correct in this position, the case was properly disposed of at the trial term. The -exceptions, therefore, to the ruling of the trial court should be -overruled, and judgment ordered for the defendant, with costs.

Hatch, J. (dissenting).

I am unable to agree with the reasoning and conclusion of the learned chief judge in this case, for the following reasons:

When it appeared that the whole amount of capital stock of the company had not been paid in, and that no certificate stating the amount of the capital stock, as fixed, or any part thereof, had been paid in, was ever made, filed or recorded, as required by law, it followed, as matter of law, that, for all debts and liabilities created by the company, the stockholders, and each of them, became, jointly and severally, personally liable to the creditors of the corporation in an amount equal to the amount of stock held by each, of them respectively. This liability is not the creation of the statute. It rests for its basic ground upon contract, which contract was that if the stock was not paid in, and the certificate filed, then the stockholder would be liable for the debt, as a result of his connection with the company. Corning v. McCullough, 1 N. Y., 58, 76; Rogers v. Decker, 131 N. Y., 492; 43 St. Rep., 781. The only effect of the statute, in such case, is to define and limit the contract, or, in other words, fix the liability. Story v. Furman, 25 N. Y., 223. It becomes and is a part of the contract Cochran v. Wiechers, 119 N. Y., 402; 29 St. Rep., 388. This result is only true of stockholders who are such at the time when the debt is contracted, but such fact is conclusively evidenced when the stockholder’s name appears upon the books of the corporation as a stockholder, even though he may have parted with title to his stock. Johnson v. Underhill, 52 N. Y., 203. These rules have an important bearing upon the present contention. When the notes in suit were executed there is no dispute but that -defendant was a stockholder appearing upon the books of the corporation, and not only was he a stockholder, but an officer. Thus, in a double sense, was proof of his ownership of stock established. His name appeared upon the books as such, and his office guaranteed the fact, as such officer was required to be a stockholder. The notes were not in fact delivered upon the day of their execution and date, January 2, 1892, but remained in the custody of the corporation’s officers until February 27,1892, when they were sold for cash, and thereafter, before maturity, transferred to plaintiff, who became, and. is, a Iona fide holder thereof. Defendant continued in ownership of his stock until January 28, 1892, when he sold fifty-five shares, and on 20th February following sold one share. This constituted his entire holding at the time the notes were executed. The transfers were made in good faith, and entered upon the books of the company. It is thus clear that, when the notes were dated and executed, defendant was a stockholder, and when delivered he was not. The trial court admitted evidence, over defendant’s objection and exception, showing when the notes were in fact delivered to the purchaser. It is true, as contended for by defendant, that until delivery of the notes no debt existed, but it does not follow from such fact that defendant is thereby relieved from liability. It is doubtless true that when the purchaser of these notes took them she was chargeable with notice of the date of inception; and consequently, in her hands, no liability existed against defendant in her favor. But plaintiff’s position is not hers. He was and is a bona fide holder for value, and as such is entitled to every benefit which attaches to such person under the law governing commercial paper; and, as we have seen, defendant’s liability resting upon contract, he is subject to such rule. When plaintiff took this paper he was without information respecting the time of its actual delivery, beyond what appeared upon the paper itself. This disclosed that it was made and executed, and presumptively delivered, upon the 2d day of January, and such was the character of the contract which he had a right to suppose existed. Such was the character of the contract he purchased. And I know of no rule of law which will permit a person chargeable with the creation of such an instrument to thereafter, for the purpose of escaping liability, change either the form of the contract itself, or the extrinsic fact of its inception, when, from its face, the law presumes the date of such inception. That this presumption arose has been decided. In Powell v. Waters, 8 Cow., 687, it is said : “ A note has no binding force or legal inception, nor constitutes any contract, until delivered, and in the hands of a bona fide holder. It acquires the form of a contract from the delivery, and not, ab initio, from the execution of it. But when delivered it takes effect from its date, and, for all substantial purposes, becomes a binding contract upon the maker, aL initio.”

That the date of the instrument is presumptively the date of its delivery is decided in Cowing v. Altman, 71 N. Y., 435. It is true in that case proof was permitted to show the actual date of delivery, but this proof was to enable a bona fide holder to recover upon it; a very different proposition from allowing proof of like character to defeat an instrument in all respects perfect in the hands of a bona fide holder. See, also, Sanford v. Mickles, 4 Johns., 224; Northampton Nat. Bank v. Kidder, 106 N. Y., 221; 8 St. Rep., 621. In the latter case, recovery was permitted, in the hands of a bona fide holder, upon negotiable paper stolen from the maker. In Kinyon v. Wohlford, 17 Minn., 239 (Gil., 215), proof of nondelivery of the paper was attempted to be shown. The court refused it, as against a bona fide holder. Upon the face of the notes, in the present case, there was nothing to put plaintiff upon inquiry. When he received them, if he had made inquiry to find who was responsible, and gone to the books of the company, he would have found, looking at the date of the notes, that defendant was a stockholder at that time, and not only a stockholder, but an officer. If he had pursued his inquiries, he would have found that defendant had disposed of his stock, and also ceased to be an officer, but this would convey nothing to plaintiff’s mind affecting the security. It would simply show that defendant was not then a stockholder, but that he was upon the date of the notes, and consequently liable as such, in accordance with the terms of the contract. It might well be that such examination would disclose that defendant, in fact, was the only person of responsibility behind the notes. Could it then be said, with justice, that defendant could show a different time of delivery, to defeat the notes, when plaintiff purchased upon his sole responsibility, and prima facie the instruments showed he was then liable as a stockholder ? A rule that would work such result ought not to be tolerated, and I find no case or principle which upholds it. The fact that the notes were consolidated in one note after defendant in fact ceased to be a stockholder does not change the result. No new indebtedness was thereby created. Payment of the original note was simply extended. Iron Co. v. Walker, 76 N. Y., 521. The defendant having signed the notes as an officer of the company, thereby, as we have seen, certified to the fact that at the time he was a stockholder. This was a fact upon which a purchaser might safely rely. As defendant, by his act, misled, or may have misled, the plaintiff, upon plain principles he should not now be heard in denial of a fact to plaintiff's prejudice. Moss v. Averell, 10 N. Y., 459 ; Brown v. Torrey, 42 N. Y. Supr., 1; Perkins v. Hatch, 4 Hun, 137. I see no distinction, in principle, between the enforcement of the doctrine of estoppel, where the irregularity of incorporation is sought to be shown, or the invalidity of a corporate act for lack of power, and where the officer, possessing the power, seeks to defeat the liability arising from its exercise by proof of facts extrinsic of what the contract purports upon its face to be. If these views are correct, it follows that the exceptions should be sustained, and the motion for a new trial granted; costs to abide event.

Exceptions overruled and judgment ordered for defendant, with costs.