author: Braky, J.:

text:
    CHARLES A. HARRINGTON, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.

      Contract tofwmish materials — words “more or less” in — meaming of.

    On tlie 28th. of October, 1873, the plaintiff entered into an agreement with the defendant, whereby he agreed to deliver “2,000 cubic yards of sand * * * more or less,” the contract to be duly completed and performed on Ms part by October 1, 1874. In pursuance of requisitions duly made by defendant’s engineer, all bearing date prior to October 1, 1874, materials were delivered thereunder largely in excess of the quantities therein specified. A portion of the materials were delivered after October 1, 1874, but no objection to the reception thereof was made by the defendant either on the ground of delay or as being in excess of the amounts prescribed in the contract.-
    In an action brought by the plaintiff to recover the contract-price of the materials delivered in pursuance of the contract, the defendant insisted that no recovery could be had for the materials furnished in excess of the quantities specified in the contract. Held, that the quantities specified were estimates only, and could he increased by requisitions duly made by the defendant’s officers, and that such requisition having been made, and materials delivered, in pursuance thereof, to and accepted by the defendant, it was liable for the price thereof.
    Appeal from a judgment in favor of the plaintiff entered upon a verdict directed by the court.
    This action was commenced to recover the sum of $5,380 for material furnished by plaintiff to defendant.
    The complaint contains two causes of action: The first for material furnished the department of docks; the second, for material famished the department of public works. No question arises on the second cause of action.
    It was not disputed that all the materials were furnished to, received and used by, the defendant, and were worth the prices charged. By the provisions of the contract the plaintiff agreed to furnish riprap, .broken stone and sand, “ quantities estimated as follows:
    “ 2,000 cubic yards sand, ~)
    “ 3,000 cubic yards broken stone, [-more or less.”
    “ 5,000 cubic yards riprap, J '
    The contract was dated October 28, 1873, and contained an agreement on .the pail of the plaintiff that all the material called for should be famished by him, and the contract completed on his part by the 1st day of October, 1874.
    Prior to October 1, 1874, plaintiff had furnished and defendant had received more than the quantities above named. On September 29, 1874, requisitions were issued for materials, which were delivered after October first. Such materials were received and used by the department of docks without any objections on account of the delay. Defendant paid for all materials so furnished up to and. including those famished December 26, 1874, but refused to pay for those furnished after that date, on the ground that the quantities were in excess of, and consequently outside of, the contract, and also on the ground that, although ordered before, they were not delivered until after the period fixed for their delivery, viz., October 1, 1874.

      A. J. Reqwier, for the appellant.
    It is well settled that the words “more or less,” when contained in a contract of sale or deed, simply import that the quantity is not restricted to the exact number or amount specified, but that the vendor or grantor is to be allowed a certain moderate and reasonable latitude in the performance, or for small errors of survey and variations of instruments. (Benjamin on Sales, 604, § 691; Brady v. Henion, 8 Bosw., 536, 537; Gross v. Fglim,, 2 Barn. & Adol., 106; Thomas v. Perry, 1 •Peters’ C. C. R., 58; Quesnel v. Woodlief, 2 Hen. & Munf. [Va.], 173, n; Gentry v. Hamilton, 3 Ired. [N. C.], Eq., 376; Hoffmam, v. Johnson, 1 Bland [Md.], 109; Gutts v. Hung, 5 Me. [5 Grreenl.], 482 ; Blarney v. Iiice, 20 Pick., 63 ; Phipps v. Ta/rpley, 24 Miss., 599 ;• Sulli/oam, v. Ferguson, 40 Mo., 89 ; Shipp v. Swam,, 2 Bibb. [Ky.], 82.) An.d that whether the quantity proved, under a written contract, is excessive or not, is a question of law for the court alone. ('Gabot v. Wrnslow, 1 Allen, 546.) Such excessive deliveries not having been made under said contract, and there being no allegation or pretense of the same having been made under any other like one in form, and such form being indispensably essential to a recovery under section 91 of chapter 335 of the charter act of 1873 (Laws of 1873, p. 508), it necessarily resulted that no recovery could be had against the defendants on the first cause of action alleged. (.McDonald v. The Mayor, 4 N. Y. S. O. [T. & O.], 178; Bonmcm v. The Sarnie, 33 N. Y., 292; Smith v. Same, 10 id., 538.)

      Griggs <£t Signor, for the respondent.
    The words “ more or less ” and “ quantities estimated ” show that only an estimate of the quantities was intended, and that the parties were not to be bound by the quantities named. (Guillim, v. Damiell, 2 C., M. & R., 61; McOormellv. Mu/rphy, 21 ~W. R., 609; Ooekerell v. Aucompte, 2 C. B. [N. S.], 440; Hamemeyers v. Oummirngham, 35 Barb., 515.) For a review of cases where this expression has been used in transfers of real estate, see Bellanap v. Seeley (14 N. Y., 144,151). The defendant could, through its contracting officers, waive the provisions requiring plaintiff to deliver the material before October 1, 1874, and receive them afterward. (People v. Village of Vonlcers, 39 Barb., 266.)
   Braky, J.:

The specifications forming a part of the contract between the parties hereto contained the following statement:

“ Quantities estimated are as follows : 2,000 cubic yards of sand; 3,000 cubic yards of broken stone, for concrete; 5,000 cubic ya'rds of riprap stone, for foundation, more or less.” By tbe contract, tbe plaintiff was to furnish “ all the sand and broken stone, of tbe quabty and quantity, in tbe manner and under tbe conditions specified. And it was further agreed by tbe plaintiff and tbe defendants, tbat tbe debvery of tbe material should be commenced at such time and carried on in such quantities, and debvered at such points as should be directed by tbe engineer.”

It was also provided tbat if tbe plaintiff failed to deliver, tbe defendants should have tbe power to purchase such quantity of material as might be necessary to fulfill tbe contract, or such part as tbe engineer might deem necessary.

It wib be perceived tbat tbe quantities named in the- specifications are estimates only, and might be enlarged by tbe proper requisitions ; they were, in fact, increased beyond tbe estimate, and tbe bills for them paid without objection. • They were stih increased, and tbe plaintiff, yielding to tbe case under tbe contract, debvered upon tbe requisitions made, which it is conceded were ab regular. Tbe property thus obtained from tbe plaintiff, was used for tbe objects contemplated by tbe contract, when it was entered into, and there is, therefore, no charge of fraud or cobusion.

Tbe case finds no elucidation from adjudication on tbe subject of what is embraced within tbe words “ more or less,” because tbe defendants enlarged their signification, both by tbe acts of their officers, and tbe satisfaction of such acts which resulted from tbe payment for tbe quantities in excess, debvered, and tbe plaintiff assented. There was no dispute.

Tbe quantity, as suggested, was an estimate only; and, clearly, tbe plaintiff would be bound, under tbe contract, to dehver ab tbat was necessary to fulfbl bis contract, or such part thereof as tbe engineer might deem neeessary.

Tbe contract provided for disputes as fobows : To prevent ab disputes and btigation, it is further agreed by and between tbe parties to this contract, tbat tbe said engineer shah in ab cases determine tbe amount *or tbe quantity of material which is to be paid for under this contract;' and be sbab determine ab questions as to tbe quabty and dimensions of tbe same; and be sbab in ab cases decide every question .which may arise relative to the execution of this contract on. the part of said contractor; and his estimates and decision shall be final and conclusive.

And for the various quantities delivered the plaintiff had the certificate of the engineer, and that of the commissioners of the department of docks and of the department of public works, in reference to these additional quantities lawfully employed in the service of the city. The defendants, acting on the proposition that the plaintiff was called ‘upon to deliver under the contract, made through the departments the requisitions upon him, and they were complied with. The plaintiff did not dispute this interpretation; and now the property having been delivered, received and appropriated under a binding contract, still in esse it was supposed, the defendants seek, by a narrow construction of the words “more or less,” to avoid payment for the materials thus obtained and used.

We know of no principle which prevents the delivery of materials under the words “more or less” which the parties regard within its operation. If the contract were between individuals there could be no dispute about it.

The same rule must apply to the defendants in the absence of fraud, and in the presence of the fact that the property delivered was in fact used by them.

The doctrine of ultra vires does not apply, because there was a contract under which the property was demanded and delivered. The terms of the contract made the agents of the defendants the arbiters as to the quantities to be delivered, and protected them in all respects against a failure on the part of the plaintiff to deliver, and further, against all disputes, by arranging the manner, if any arose, in which they should be settled.

It cannot be said that there was no contract in relation to the property delivered. It is said, however, that the contract had expired by its own terms, but this does not appear. It was general in its character. It called for certain materials for general use aud in quasi estimated quantities, but contemplated the delivery of more than the estimate, and more in fact was required by the defendants. The delivery under the contract must be regarded therefore as advan-' tageous to the city as to prices, and as the property was necessary for the requirements of the city, for such we must assume it to have been, it cannot be said that the contract expired by its own limitation.

The defendants extended it, and the plaintiff acquiesced. In the absence of fraud, we think tbis construction of tbe dealings under tbe contract is just and fab’ and fully warranted by tbe application of tbe rights and obhgations of tbe parties to the contract, all its covenants and conditions being duly considered. Tbis case is not controlled by tbe decision in McDonald v. The Mayor (4 N. T. S. C. [T. & C.], 178), or Bigler v. The Mayor (6 Hun, 239), or by tbe decision of tbis court in Bigler v. The Mayor, when last before tbis court. In tbe former case there was no existing contract; indeed no contract bad been executed or made in reference to tbe materials debvered, and in tbe latter case tbe claim was for a balance due for lumber and timber debvered to tbe department of docks, and iu which tbe defense set up was not only that tbe materials debvered were not in conformity to tbe contract, but were of an inferior qnabty; and further, that tbe plaintiff fraudulently caused them to be certified to be such as were cabed for by tbe contract. Tbe honesty of tbe claim herein is not assailed. It is not shown or asserted that tbe materials were not such as were contemplated, nor is it denied that they were used by tbe city.

Tbe demand seems to be justly due on tbe facts disclosed, and should be paid.

Judgment affirmed, with costs.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Brady, J.:

license: Public Domain

text:
    In the Matter of ANDREW L. ROBERTS, an Insolvent and Imprisoned Debtor, Applying to be Discharged from his Imprisonment.

      Application for discharge of insolvent — Bes adjudicóla.

    Where, upon an application made by an insolvent debtor for a discharge, it appears that a similar application has already been made to one of the judges of the Court of Common Pleas of the city of New York, and having been fully heard, has heen decided against him upon the merits, held, that the matter should he regarded as res adjudieata, and the application denied.

      Appear from an order denying the application of an insolvent debtor for a discharge under part 2, chapter 5, title 1, article 5 of the Revised Statutes.

      Yedder Yam Dyck, for the appellant.

      R. 0. Elliott, for the respondent.
    Act of 1854 (Laws of 1854, p. 592, chap. 270) provides for appeal to the General Term from any judgment or order in any special proceedings. (.Matter of Imimgston, 34 N. Y., 557.) Certiorari will issue to remove to the Supreme Court for examination and review. (2 R. S., 49, 50, § 47; Laws of 1874, chap. 280, § 17; Cara/ner v. Commissioners, etc., 10 How. Pr., 181; People ex rel. Lowis v. J. F. Daly, 4 Hun, 641; Morewood v. Hollister, 6 N. Y., 309.) That the principle of res adguclicata applies in these cases. (Demarest v. Dap, 32 N. Y., 281; White v. Coatsworth, 6 id., 137; Yonkers amd N. Y. F. I. Co. v. Dishop, 1 Daly, 449; Powers v. Witty, 42 How. Pr., 352; People ex rel. Lodowick v. Ahim, 4 Hill, 606.) The same principle applies in cases of habeas corpus. (.Merceim v. People, 25 Wend., 64; People v. Bwrtnett, 13 Abb. Pr., 8; People v. Kelley, 1 id. [N. S.], 432; Matter of Rosenberg, 10 id., 450; Matter of Thomas, id., 114.) If the debtor can make a sec'ond application after being defeated in the first, there can be no limit to the applications, and the creditor may better abandon his claim at once than think of opposing a discharge.
   Brady, J.:

Several preliminary objections were presented at the hearing herein, many of which are not sustained by the proofs. It was shown, however, without objection, and remained without answer, that the petitioner presented a similar application to one of the judges of the Court of Common Pleas, which was fully heard and decided against him on the merits, and which decision remained in all respects undisturbed. The respondent invokes thereupon the doctrine of res adgudicata, and, if it be applicablé, the order appealed from' must be affirmed.

The authorities are to the effect that if the same proceeding be renewed, whether it be in the form of an action or summary or special proceeding, which has been once adjudicated upon the merits, such result is a bar to any further proceeding .of a similar character. Demarest v. Darg, 32 N. Y. Rep., 281; White v. Coatsworth, 6 id., 137; Yonkers and New York Fire Insurance Co. v. Bishop, 1 Daly, 449; Powers v. Witty, 42 How. P. R., 352; People ex rel. Lodowick v. Akim, 4 Hill, 606.)

The principle stated is a complete answer to the proceeding. It would not be in harmony with the doctrine of res adyudieata to permit such applications to be renewed as soon as decided against the' insolvent, and thus continued from one judge to another, ad i/nfiwit/wm. The insolvent on such applications is given full opportunity to expose his case fully to the judicial mind, and the insolvent herein seems to have had such a freedom in the Court of Common Pleas.

The order appealed from must be affirmed, with ten dollars costs and the disbursements of the appeal.

Davis, P. J., and Daniels, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Daniels, J.:

text:
    THE PEOPLE ex rel. JOHN T. HANEMAN v. THE BOARD OF TAX COMMISSIONERS OF THE CITY AND COUNTY OF NEW YORK, Respondent.

      Assessment for taxation — what property subject to — extent of the State authority over regulation cf commerce with foreign States — duties on imports and exports.

    Upon an application by tbe relator to procure a review of an assessment of Ms personal estate made by the respondent, he set forth that Ms personal estate amounted to about $125,000, which was “continuously employed in the business of exporting cotton from the United States to foreign countries.” Such employment consisting in purchasing cotton in different States and exporting the same, and that as much as “$115,000 was continuously invested in cotton of the growth of the United States, which had been cleared at a customhouse, and was on sMpboard in course of exportation to some foreign State or country.”

      Held, (1) that the imposition of a tax upon the relator’s capital in said business was not a violation of article 1, section 8, subdivision 3 of the United States Constitution, declaring that congress shall have power to regulate commerce with foreign nations and among the several States.

      (2) That it was not a violation of article 1, section 10, subdivision 2, prohibiting any State, without the consent of congress, from laying any impost or duties on imports or exports; and,
    (8) That it was hot a violation of article 1, section 9, subdivision 5, providing that no tax or duty shall be laid on articles exported from any State.
    Certiorari to review an assessment of the relator’s personal property made by tbe respondent.

      H. Charles filman, for tbe relator.

      J. A. Beall, for the respondent.
   Daniels, J.:

' Tbe relator bas been assessed tbe sum of $60,000 for personal estate owned by him. He applied to tbe commissioners to vacate tbe assessment, for tbe reason tbat bis personal estate, amounting in tbe aggregate to tbe sum of $125,000, with tbe exception of tbe sum of $5,500, consisted of money continuously employed in tbe business of exporting cotton from tbe United States of America to foreign countries, through tbe customs department of tbe United States aforesaid; and tbat said employment consists in purchasing and paying for tbe cotton in different States of said United States, and actually exported by deponent in said business, and for tbe payment of tbe expenses of shipping tbe same as such exports.” And it was further stated, tbat as much of bis capital “ as $115,000 is continuously invested in cotton of tbe growth of tbe-United States, which bas been cleared at a custom-house, and is on ship-board in ' course of exportation to some foreign State or country.” For these reasons, as they were set forth by the relator, it was claimed on bis behalf tbat tbe assessment violated three provisions of tbe Constitution of tbe United States. Tbe first of these provisions is tbat which bas declared tbat congress shall have power to regulate commerce with foreign nations and among tbe several States, and with tbe Indian tribes.” Tbe second provides tbat “ no tax or duty shall be laid on articles exported from any State; ” and tbe third tbat “ no State shall, without tbe consent of congress, lay any imposts or duties on imports or exports,” etc. (Const. U. S., art. 1, § 8, sub. 8; § 9, sub. 5; § 10, sub. '2.)

The imposition of a tax upon capital can in no proper sense be affirmed to be a regulation of commerce. That has already been so frequently examined and uniformly declared as to render a particular discussion of the subject entirely needless. The authorities, very clearly, have determined that point against the relator in the present case. (People ex rel. Pac. M. S. Co. v. Comrs. of Taxes, 48 Barb., 157; S. C., 58 N. Y., 242 ; Lott v. Mobile Trade Co., 43 Ala., 578; Howell v. State, 3 Gill, 14; Reading R. R. Co. v. Pennsylvania, 15 Wall., 284.)

In the decision of the last case it was said that a tax upon any article of personal property that may become a subject of commerce, or upon any instrument of commerce, affects commerce itself. If the tax be upon the instrument, such as a stage coach, a railroad car, or a canal or steamboat, its tendency is to increase the cost of transportation, still it is not a tax upon transportation or upon commerce, and it has never been seriously doubted that such a tax may be laid.” (Id., 294.)

The principal reliance of the learned counsel for the relator was not placed upon this provision for the purpose of sustaining the invalidity of the tax in question, but his chief dependence was upon the other two prohibitions of the federal Constitution. It was very strenuously insisted that the tax contravened the provisions declaring that no tax or duty shall be laid on articles exported from any State, and no State, without the consent of congress, shall lay any imposts or duties on imports or exports. No direct authority has been cited maintaining the position which has been taken, that the tax designed to be imposed upon the relator is a tax, duty or impost upon exports. But a principle which will sustain it has been claimed to be deducible from the authorities, in which it has been very justly held that State taxes laid directly or indirectly upon imports were invalid, because they were forbidden by these provisions of the Constitution. The first* and the most notable of these cases is that of Brown v. State of Maryland (12 Wheat., 419); but the tax or impost in that case was, in terms, laid upon the business of the importer of foreign merchandise. The law required him to take out and pay for a license from the authorities of the State, in order to permit him to carry on and transact the busines1# of an importer, and that it was held the State had no power to do,. because it was tbe same thing in effect as a tax upon the imports themselves. And this case would be comprehended by the principle there maintained, if a tax had been imposed upon the relator because of his business as an exporter of cotton. The case of The People v. Moring (3 Abb. Ct of Ap., 539) was held to be controlled by that authority, because the sales -by brokers of foreign wines and ardent spirits, and all goods, wares, merchandise and effects imported from any place beyond the Cape of Good Hope, and all other goods, wares, merchandise and effects which were the production of any foreign country, were subjected to duties, payable into the treasury of the State for its use. (Id., 550.) The tax was not distinguished in its nature and effect from that condemned by the preceding authority. It acted directly upon the business of the importer, and it was therefore held to be nothing less than a tax upon the imports which might become the subjects of the sales designed to be regulated and controlled by the State laid.

The case of Almy v. State of California (24 How. [U. S.], 169) was decided under a law of a similar character enacted by the State of California. It, in terms, imposed a stamp tax on bills of lading for the transportation from any point or place in that State to any point or place without the State, of gold or silver coin, in whole or in part, or gold dust, or gold or silver, in bars or other form. (Id., 112), For that reason, it constituted a tax upon exports, and the law providing for it was held to contravene the provisions of the Constitution of the United States which have been already cited. The case of Low v. Austm (13 Wall., 29) was a direct attempt to impose a tax upon the imports themselves, and very much, as a matter of course, was held to share the fortune of the preceding controversies upon the same subject. The State law was held to be invalid, and the tax for that reason was set aside.

Each of these cases is clearly distinguishable from the one now before this court; for the ta3g imposed, held to be invalid, was either upon the articles themselves, or directly upon the business of the importer. For that reason, it involved either a direct or indirect attempt to violate the prohibitions of the Hnited States Constitution; but in the present instance nothing of that kind was attempted or intended. No assessment was made upon, or of the property purchased and exported by the relator, nor upon the business in which he was engaged. If that had been designed, the property he purchased or, the business he carried on would, in terms, have been made the subject of the assessment; but, instead of doing that, not the remotest allusion was made in the commissioners’ proceedings to either. It was his capital, as distinguished from what it might be invested in or from the business he transacted by means of it, which was made the object of the assessment; and that in no case has been held to be exonerated from State taxation by any thing contained in the federal Constitution. The assessment was made upon it simply as so much personal estate, without reference to the advantages which might .accrue to the relator by any means selected by him for its profitable employment. That use of it was not proposed to be assessed or taxed. It was regarded, as it was in fact, as so much property owned by him, and for that reason liable to taxation. In that respect, he was considered, for the purpose of taxation, in the same position as all the other inhabitants of the State owning personal property. And he was assessed simply as its owner, and neither directly nor indirectly because of the uses he might make of it. This money of which his estate consisted was not an export, and not intended for exportation. It was the property he purchased with it that acquired that character, when it was placed upon its journey to some foreign country; and that it was no part of the proceedings complained of to interfere with or restrain. The assessment was made because the relator was the owner of the money, and not because he might by means of it become the owner of commercial commodities for exportation. His liberty, or ability, profitably, to use it was in no manner infringed, but he was left entirely free in that respect.

Taxation upon capital used in commercial pursuits is by no means a novelty under the laws of the State. And where it has been restricted to that, it has not yet been considered a tax upon exports, even when the capital has been used and employed in business of that description. The principle which has been invoked to shield the relator, if it should be sustained, is one of a widely extended character. And it • has been so often infringed in the business operations of the country as hourly to have generated legal controversies, if, in fact, it had been deemed to have been sanctioned by these provisions of the Constitution, They would not have failed to result in- legal proceedings, if this principle had any foundation whatever for its support. But actions of this description have not been instituted on.tliat account; and they can have been omitted only because a tax imposed upon capital was considered distinguishable from one upon the articles in which it might be invested by its owner for foreign exportations. The agricultural and mineral products of the country have, to a very large extent, been purchased and moved by the investment and- employment of the taxed capital of the exporter; and the imports made have been purchased and imported in a similar manner; and the rights of neither have been deemed to be infringed or violated, because the capital employed had been taxed as so much property belonging to its owner. If the relator can succeed, then it must follow that every person whose' capital is wholly or partially employed in foreign commerce will be entitled to be relieved to a corresponding extent from taxation. And the same principle will practically comprehend the trade carried on between the States. No more serious blow could be given to the powers of the State to tax the property owned by its citizens; for, so far as it should not be employed in mere local traffic, it would all necessarily escape taxation. That would' include all products shipped to foreign countries, or transported from one State into another, and all the importations made from abroad. So great an exemption as that has not been made by any thing contained in the Constitution of the United States. It has merely exonerated the articles themselves which may be exported or imported, but not the capital by means of which the title to them may have been acquired. The capital is one degree beyond the final limits of the prohibition that has been made upon this subject. The owner is protected in his title to it by the laws of the State in which he resides, and for that reason he becomes liable to taxation on account of it. That principle includes all property existing under the laws and sovereignty of the State. It was acknowledged in the justly memorable case of McCulloch v. State of Marryland (4 Wheat., 316), where it was held that the State might rightly tax the property owned within its limits by the United States Bank, while it could not the corporate functions of the corporation itself, because it was one of the fiscal agencies of the general government. It was there declared that the people of a State give to their government a right of taxing themselves and their property, and as the exigencies of government cannot be limited, they prescribe no limits to the exercise of this right.” (Id., 428.) And the “ sovereignty of a State extends to every tiling which exists by its own authority, or is introduced by its permission.” And “ all subjects over which the sovereign power of a State extends are objects of taxation.” (Id., 429.) These general principles, maintaining the power of State taxation, were also sanctioned by the case of Gibbons v. Ogden (9 Wheat., 2). Waring v. The Mayor (8 Wall., 110), Parvear v. Commonwealth (5 id., 475), and Howell v. The State (3 Gill, 14) sustain the same position.

No authority has been found which would justify the court in extending exemptions from the power of State taxation, so far as to relieve the relator from the effects of the assessment made upon his capital in this instance, while the fair import of the terms used in the Constitution, and the construction given to them by the authorities in which they have been -considered and applied, forbid such an extension of their legal effect. As already suggested, the assessment has been made merely upon capital, and not upon the exports purchased and moved by its instrumentality; and for that reason it was sanctioned by the authority of which the several States have been left in the free exercise and enjoyment. No other reason was urged before the commissioners or this court why the assessment made should be vacated, and as those already considered will justify no such result, it follows that the proceedings brought up by the writ should be affirmed, with costs.

Davis, P. J., and Beady, J., concurred.

Proceedings affirmed, with costs.


text:
    CHARLES G. WATERBURY, Respondent, v. JOHN A. BOUKER, Impleaded with THE MAYOR, Etc., and others, Appellant.
    Injunction— damages — order of refen'ence to ascertain — right of pojrt/y enjoined, to.

    The plaintiff procured a temporary injunction restraining the defendant from proceeding with certain work. Upon the return of an order to show cause, the court refused to continue the injunction, and directed that the action he discontinued, without costs. Subsequently defendant moved for a reference to ascertain the damages sustained hy the injunction, which motion was denied. Held, that this was error, and that the reference should have been granted.
    Appeal from an order denying a motion by tbe defendant Bouker for a reference, under section 222 of the Code, to ascertain tbe damages sustained by him by reason of an injunction wbicb was granted in tbis action.
    Tbis action was brought by tbe plaintiff in part to restrain the defendants from interfering with or preventing tbe plaintiff from doing certain public work in tbe city of New York, and to restrain tbe defendants from doing or attempting to do any of such work.
    On tbe 10th day of March, 1876, on tbe complaint in tbe action, Mr. Justice Donohue made an injunction order restraining tbe defendants, according to tbe prayer of tbe said complaint.
    Tbe plaintiff gave tbe usual undertaking on injunction with surety, wbicb contained a provision for tbe ascertainment of damages by a reference or otherwise, as tbe court shall direct.
    Upon tbe return of tbe order to show cause contained in tbe said injunction order, and on tbe 29th day of March, 1876, tbe defendant moved upon bis answer to vacate tbe injunction.
    Tbe court reserved its decision on tbe motion until tbe 7th day of December, 1876, when it “ordered that tbe motion to continue said injunction be denied and tbe temporary injunction be and hereby is vacated, but with leave to tbe plaintiff to discontinue tbis action, without costs, and tbe plaintiff so electing in open court, it is further ordered that tbis action be and tbe same hereby is discontinued, without costs to either party as against tbe other.”
    Tbe defendant Bouker thereupon, on an affidavit and order to show cause, made a motion for a reference to ascertain the damages sustained by him by reason of the injunction order, which motion was denied.

      Edward 3. Hobbs, for the appellant Bouker.

      Albert Cardozo, for the respondent.
   Daniels, J.:

It was held in this case that the plaintiff was not entitled to a continuance of the injunction, which was issued to restrain the performance of certain public work by the defendant, and leave was thereupon given the plaintiff, on his motion, to discontinue the action without costs. An order was entered for that purpose, and upon the usual affidavit a motion was made on behalf of the defendant for a reference to ascertain the damages sustained by him in consequence of the injunction. That is the usual course of proceeding under the circumstances presented. By the orders made denying the continuance of the injunction and discontinuing the action, it did. finally appear.that the plaintiff was not entitled to the injunction he had obtained. (Hope v. Acker, 7 Abb., 308; Carpenter v. Wright, 4 Bosw., 655; Pacific Mail Steamship Co. v. Leuling, 7 Abb. [N. S.], 37; Park v. Musgrave, 13 S. C. N. Y., [6 Hun], 223.) The proceedings in the action were completely ended, and in that respect the case differs from Weeks v. Southwick (12 How., 170), where the referee directed the complaint to be dismissed, but no judgment to that effect had been entered in the action. A reference after the final determination against the right of the plaintiff to the injunction is very much a matter of course, for the purpose of ascertaining the defendant’s damages. (Dunkin, v. Lawrence, 1 Barb. [S, C.], 447; Coates v. Coates, 1 Duer, 664, and Park v. Musgrave, supra). A denial of it in this case would be an inconvenient precedent in the way of the success of future applications of the same nature. If it should be sustained in this case it could be with the same propriety in all others, which would not faff to result in serious embarrassment to parties improperly restrained and enjoined.

In the present crowded condition of the Circuit calendars, a reference is by far the easiest and most expeditious course for ascertaining the defendant’s damages; and it has usually been quite uniformly adopted for that purpose in this class of cases. The defendant showed that he had sustained damages by reason of the restraint imposed upon him. He was not deprived of his right to recover them by the denial of costs, and justice requires that he should be allowed to pursue the ordinary course in establishing their extent. That practice has been provided for by the Code (§ 222), and it was sanctioned by the course of proceeding followed in the late Court of Chancery. The plaintiff showed no good reason why the defendant should not be allowed to avail himself of its benefits in this case.

The order should be reversed with ten dollars costs, and the reference ordered which was applied for. The order will direct reference to Hon. Daniel P. Ingraham.

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

Order reversed, with ten dollars costs. Reference ordered to Hon. Daniel P. Ingraham.


text:
    THE BREWERS AND MALTSTERS’ INSURANCE COMPANY and others, Respondents, v. JOHN R. DAVENPORT and WILLIAM R. WALKER, Assignees in Bankruptcy, etc., Appellants.

      Bomdcrv/ptcy■ — effect of adjudication on attachment — Action of interpleader' — of assignee. in barihn'uptcy with creditor of ba/nlcr'upt — jm-isdiction of State courts over.

    One Davenport, having commenced an action against a corporation created in the State of Missouri, procured an attachment to be issued therein, on the 15th of September, 1873, under which a debt due from the plaintiff to the said corporation was attached. On the 3d of November, 1873, Davenport recovered judgment in the said action and issued execution thereon. On the second of October a petition in bankruptcy was filed against the'corporation in Missouri, and on the eighth of November it was duly declared bankrupt.
    Davenport and the assignee in bankruptcy each claiming the money, the plaintiff brought this action, praying that the court would decide which of the two were entitled to receive the same. Held, that as the attachment was issued within four months of the filing of the petition, it was annulled by the subsequent adjudication, and that the assignee was entitled to the money.

      Held, further, that this was not an action to recover assets belonging to the estate of the bankrupt within the meaning' of the amendment of the bankruptcy act of 1874, depriving the State courts of jurisdiction over such action, but was brought to secure a decision binding on the contesting claimants, declaring to which of them the debt could lawfully be paid, and that this court had jurisdiction over the same.
    Appeal by tbe defendant William R. Walker, as assignee in bankruptcy, from a judgment entered on the report of a referee in favor of tbe defendant John R. Davenport.

      WilUam E. 8Uger, for tbe appellant.

      JR. E. JDeyo, for tbe respondent.
   Daniels, J.:

Tbe plaintiffs in this action were and are three insurance corporations, associated together under tbe name of tbe Inland Insurance Union. They were indebted in the sum of $935 to tbe North Missouri Insurance Company,' which was a corporation created by and. existing in tbe State of Missotu’i. Tbe latter' company was indebted to tbe defendant John R. Davenport, who, on tbe 15th of September, 1873, in an action then commenced by him for tbe recovery of bis debt, by a warrant of attachment issued in that action, seized and attached tbe debt owing from tbe plaintiffs to that company. While that action was pending, and on tbe 2d day of October, 1873, a petition in bankruptcy was filed with tbe clerk of tbe United States District Court for tbe eastern district of Missouri against tbe North Missouri Insurance Company. After tbe commencement of that proceeding, and on tbe 3d day of November, 1873, tbe defendant Davenport recovered and entered judgment in tbe action commenced by him, and execution was at tbe same time issued upon it to tbe sheriff of tbe county of New York. On tbe 8th of November, 1873, which was five days after tbe defendant Davenport recovered bis judgment and issued execution upon it, tbe North Missoiui Insurance Company was declared a bankrupt, in tbe proceeding instituted by tbe petition filed on tbe second day of tbe preceding October. Tbe defendant William R. Walker was regularly appointed assignee of tbe bankrupt, and on tbe 23d of March, 1874, an assignment was executed to him by a register in bankruptcy residing in the eastern district of Missouri, by which all the real and personal estate of the bankrupt, including all the property of whatever kind possessed by, or in which it was interested, or entitled to have, on the day when the petition was filed, was assigned to him. Under and by force of that assignment the assignee claimed the moneys owing from the plaintiffs to the bankrupt. A portion was also claimed by another defendant, who finally practically abandoned the claim made by him; and the entire debt was also claimed by the defendant Davenport under his attachment, the judgment recovered by him, and the execution issued upon it. The plaintiffs commenced this action thereupon to secure the determination of this court upon the rights of the adverse claimants, and the money has been placed in its custody for payment to the party appearing to be entitled to receive it. The referee held that it was legally payable to the creditor under the attachment and the judgment, and from that determination the assignee in the bankruptcy proceedings has taken the present appeal. The correctness of the decision which has been thus brought in question depends upon the construction which should be given to the provision contained in the bankrupt law, declaring the effect of the assignment made under its authority. That seems to be the same now that it was before the revision of the United States statutes, and it was enacted in the following terms: “As soon as an assignee is appointed and qualified, the judge, or where there is no opposing interest, the register, shall, by an instrument under his hand, assign and convey to the assignee all the estate, real and personal, of the bankrupt, with all his deeds, books and papers relating thereto, and such assignment shall relate back to the commencement of the proceedings in bankruptcy, and by operation of law shall vest the title to all such property and estate, both real and personal, in the assignee, although the same is then attached on mesne process as the property of the debtor, and shall dissolve any such attachment made within four months next preceding the commencement of the bankruptcy proceedings.” (U. S. Rev. Stats., 980, § 5044.) To be avoided by means of this provision of the statute, it was held, upon the trial, that the property seized must be held under the attachment at the time of the execution of the assignment in bankruptcy. But tbat, it is evident, would wholly defeat the operation of the provision made by this section, declaring that the assignment shall relate back to the commencement of the proceedings in bankruptcy. The object of the provision was to render it effectual as of that time, and the succeeding reference relates to the same period. The time of the commencement of the proceedings is the plain antecedent of the following phrase; and it is property then held by attachment on mesne process that was designed to be discharged from such process and vested in the assignee. That was the time, as it was plainly mentioned, at which the assignment was to transfer all the property of the bankrupt, and to render that effectual, the dissolution of the attachment at that time existing was a clear necessity. This construction has been given to this section of the statute in a number of instances, and it has been uniformly held that the assignment took effect upon the bankrupt’s property by way of relation, as of the time when the proceedings had been commenced by the filing of the petition. That would not be done if the provision upon this subject could be defeated by the recovery of a judgment in the meantime; and fo’r that reason these authorities in principle are directly in conflict with the position on which this case was disposed of by the referee. (Pennington v. Lowenstein, 1 Bankruptcy Reg. R., 570 [1st ed., p. 157] ; Matter of Housberger, 2 id., 92 [1st ed., p. 33] ; Miller v. Bowles, 58 N. Y., 253.) The cases of Miller v. O'Brien (9 Bankruptcy Reg. R., 26) and Dickerson v. Spauldang (14 S. C. N. Y. [7 Hun], 288,) are more nearly in point, ■ and they seem to dispose of the case now before the court. .

The recovery of the judgment made no change in the rights of the parties to the property, because it was held by force of the attachment alone, when the proceedings in bankruptcy Vere commenced, and that was dissolved by the assignment as soon as it was delivered.. Neither the judgment nor the execution could be a lien upon the property, because it was not capable of being the subject of levy and sale. Being a mere indebtedness, it was incapable of manual delivery, and could only be attached by the delivery of a copy of the attachment with the prescribed notice to the debtor; and if not voluntarily paid after judgment, it could only be recovered by an action prosecuted for that purpose. (Code, 232, 235, 237, subds. 1, 238.)

Tbe money never found, its way into tbe bands of tbe attaching creditor, and be lost bis right to recover it when bis attachment was dissolved by tbe relation and effect of tbe assignment. Tbe mere recovery of a judgment after tbe filing of tbe petition cannot be held to improve tbe condition of tbe creditor. A judgment preceding that event stands upon a different principle, and. when unaffected by bad faith may be enforced against tbe property of tbe bankrupt. (Wilson r. City Bank, 17 Wall., 473.)

It has been claimed on tbe part of tbe respondent that tbe act of 18Y4, amending tbe bankrupt act, has deprived tbe State courts of all jurisdiction over contests of this nature. But to bold that, would not entitle tbe respondent to tbe money in dispute, for tbe proceedings which are shown to have been bad have deprived him of tbe right to demand and. receive tbe proceeds of tbe debt be bad attached. Tbe court was certainly competent to decide that portion of tbe controversy, notwithstanding the change which has been made by this amendment of tbe law.

But this was not an action for tbe recovery of tbe assets of tbe bankrupt, and for that reason not within tbe inhibiting language of tbe amendment. It was prosecuted for tbe purpose of procuring a judgment of this court, declaring to whom of tbe conflicting claimants tbe money placed in its custody by tbe plaintiffs should be paid. Tbe action was not for tbe collection of tbe assets of tbe estate, within tbe terms used for that purpose in tbe bankrupt law, but merely to secure a direction binding on tbe contesting claimants, declaring to whom the debt could be lawfully paid; and it is only when it may be prosecuted to collect tbe assets of tbe bankrupt that tbe recent amendment has conferred exclusive jurisdiction upon tbe District Courts of tbe United States. But without infringing upon its terms tbe debtor is still at liberty to apply to this court for its determination as to tbe proper party to receive a debt wholly created and arising under tbe laws of tbe State. Tbe plaintiffs bad a certain sum of money to pay to some person, and desired to place it under tbe control of tbe court, to be paid to tbe person appearing entitled to receive it, and in that way to relieve themselves from all responsibility on account of it. They neither claimed to collect nor contest any thing, but simply to be allowed to place tbe fund where tbe person actually entitled to have it could receive it. Tbe case, for these reasons, was entirely different from that of Olcott v. Maclean, previously argued and already considered; and it is within the reasoning upon which the jurisdiction of the State court was affirmed in the case of Cook v. Whipple (55 N. Y., 150). It belonged to a class of cases over which the general jurisdiction of this court extended, independently of the bankrupt law; and. its powers in that respect have not been in terms or by implication contracted by any thing contained in the amendments of 1874. (U. S. Rev. Stats., 969, § 4972; Laws of congress 1874, chap. 390, § 2.)

Upon the facts found by the referee, the respondent Davenport was not entitled to the money which .the plaintiffs had paid into court as the proceeds of the debt owing by them to the bankrupt; and as the proceedings and assignment deprived him of that right, it necessarily followed that the judgment should have directed that the assignee was the proper person to whom payment could be lawfully made. His receipt of it will fully exonerate the plaintiffs, and the determination • made against the claim of the defendant Davenport will be forever conclusive against his title. The judgment should, therefore, be reversed and judgment to the effect already indicated entered upon the report of the referee.

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

Judgment reversed and judgment ordered on the report of the referee, as directed in opinion.

       See post, page 277.


text:
    In the Matter of the Petition of CATHARINE A. DURKIN to Vacate an Assessment, etc.

      Vacating cm assessment in New York —faüwre of city authorities to designate ‘ ‘ corporation papen'” ■— duty of darks of common cbuneil, as to publication.

    Where, upon an application to vacate an assessment in the city of New York, it appeared that, at the time of the passage of the ordinance directing the work to be performed, there were no newspapers lawfully designated by the city authorities in which to publish municipal proceedings, though the law required that such designation should be made, held, that as the law required the clerks of the hoards of aldermen to publish such resolutions and ordinances, they could, in case the city authorities neglected to designate any corporation papers, publish the same in any newspaper published in the said city.
    Appeal by tbe mayor, etc., of tbe city of New" York from an order vacating an assessment for tbe expenses of repaving Thirty-third street with Belgian pavement, from Sixth to Tenth avenues.

      J. A. Beall, for tbe appellant. „

      Irvmg Wcurd, for tbe respondent.
   Daniels, J.:

Tbe first assessment was made in 1852, for paving, resetting curb and gutter and flagging stones, between Sixth and Seventh avenues, and it was shown- to have been paid in April, 1852. Tbe last assessment was for tbe expense of paving tbe street with Belgian pave-. ment, from Sixth to Tenth avenues. Tbe resolution directing tbe work was passed by tbe board of assistant aldermen on tbe 14th of June, 1870, and. by tbe board of aldermen on tbe twenty-third of August following; and it was approved by tbe mayor on tbe twenty-sixth of that month. At that túne tbe designation of newspapers for tbe publication of municipal notices, under tbe act of 1867, bad ceased to be operative, and no effectual designation bad been made under tbe act of 1868. Bor these reasons, publication of this ordinance was not required in either of tbe newspapers employed under tbe act of 1867; or which might have been, but were not employed under tbe act of 1868. Consequently, proof of tbe failure to publish in tbe newspapers employed in 1867 did not render tbe ordinance or resolution providing for tbe second pavement invalid.

But it was claimed that tbe failure to publish notice of tbe proceedings in tbe newspapers required to be designated by section 1 of chapter 383 of tbe Laws of 1870, must be attended with that result. Tbe evidence proved that no designation of newspapers bad been made, as that section of tbe statute required it to be done, when this ordinance or resolution was introduced and acted upon by tbe boards of aldermen and assistant aldermen, and was approved by tbe mayor. Bor that reason, publication in such newspapers was an actual impossibility, and yet publication bad been positively required by a preceding act. That could not be complied with in any way if publication in newspapers designated by the city authorities was what the law was designed to require, for there were no such newspapers in existence. The designation made under the act of 1867 had expired. That which was attempted under the act of 1868 was never effectually completed, and none whatever had been made under the act of 1870. And still, by a preceding law, it had been made the duty of the clerks of the respective boards of aldermen to make the publication. When that duty was created there were no corporation papers whatever designated, in which municipal proceedings could be or were required to be published. And as the clerks had been subjected to the duty of making publication of the resolutions and ordinances, they could not be absolved from a failure to discharge it by reason of that circumstance. The result of this state of things was that they could lawfully publish them in any newspaper published in the city. That would comply with what the act of 1870 declared it to be the duty of the clerks to do. (Yol. 1, Laws of 1870, 369, chap. 137, § 20.)

This state of things continued until chapter 383 of 1870 went into effect, which provided that newspapers should be designated, and that these proceedings should be published in them. But as that could not be done until the designation should be made, and the duty to make publication was an absolute one, the clerks were at liberty to continue it in the same way that it could be done by them before chapter 383 went into effect. The failure to perform the duty, providing that a designation of newspapers should be made, did not discharge the clerks from the performance of that which had been positively imposdd upon them, and for those reasons it is not to be presumed, without evidence, that no such publication as was required was made of the ordinance or resolution providing for this improvement. That was the conclusion arrived at in the Case of Peugnet (12 S. C. N. Y. [5 Hun], 434), under circumstances similar to those shown in support of this application. And the Case of Levy (11 id., 501), relied upon by the petitioner’s counsel, is entirely consistent with this result; for it appeared there that no publication of the ordinance or resolution had been made. The want of publication was not established in this case, and as that was the only irregularity relied upon, the case of the petitioner was not made out. The order appealed from should be reversed, and a rehearing of tbe case directed, with tbe usual costs to tbe appellants to abide tbe event.

Davis, P. J., concurred.

Present — Davis, P. J., Bradt and Daniels, JIT.

Order reversed, rebearing ordered, ten dollars costs to appellants, to abide event.


author: Daniels, J.

text:
    CATHARINE E. COLLINS, Respondent, v. CHARLES E. COLLINS, Appellant.

      Alimony — what mnownt allowed — Appeal.

    Upon an application by a wife for a divorce, tbe court will not, as a rule, award to her, for alimony, more than one-third of her husband’s entire estate.
    Although, upon an application for temporary alimony the court may, when but a short time intervenes between the application therefor and the order granting the same, direct that it be paid from the time the application was made, yet when the interval is a long one, e. g., seven years, during which time the wife has succeeded in supporting herself, alimony should only be allowed from the date of the order.
    Upon an appeal from order granting temporary alimony in an action for a divorce, the G-eneral Term has power to modify the order by reducing the amount allowed thereby.
    Appeal from au order allowing plaintiff temporary alimony, and directing defendant to advance to ber counsel tbe sum of $250.
    A motion was made in this action, in J une, 1869, for an allowance for plaintiff’s support and tbe expenses of this action. Tbe matter was referred to a referee, and in August, 1875, a report was made that tbe application should be denied. On tbe report tbe following order was made:

      “ It is ordered that tbe plaintiff be allowed sixty dollars per month alimony, to date from tbe service of tbe papers dn tbe motion for abmony, and that tbe defendant forthwith pay over to tbe plaintiff the amount of such alimony now due, and continue tbe payment hereafter of said sum of sixty dollars per month, from month to month, until the further order of this court.
    “And it is further ordered, that the defendant forthwith pay over to the plaintiff’s counsel the sum of two hundred and fifty dollars, as counsel fees.”

      Cephas Brcomerd, for the appellant.

      John McKeon, for the respondent.
   Daniels, J.

The parties, with Charles S. Dewing, as trustee for the plaintiff, entered into articles of separation on the 4th day of September, 1868 The defendant then paid over, for her sole use and benefit, the sum of $5,000 in cash, and conveyed three lots of land in San Francisco to her trastee for her separate use; and he thereupon conveyed them to her. By the articles subscribed, this money and land were to be received by her in full satisfaction of all further claims upon the defendant or against his estate. Soon after that, but at what particular time does not appear, this action was commenced against the defendant for a divorce, because of adultery. The complaint was verified on the 27th of March, 1869, and the action, for that reason, may be presumed to have been commenced near that date. About the same time notice of the motion was given, upon the final hearing of which the order appealed from was made. On the 30th of June, 1869, a reference in it was directed for the purpose of ascertaining a proper sum to be paid for alimony and counsel fee, during the pendency of the action. The hearing was commenced in July, 1869, and proceeded from time to time to the year 1875, and on the eleventh of August of that year the referee made his report. He held that the articles of separation were legally binding upon the plaintiff; that the three lots of land conveyed were worth $4,500; and that they and the money paid formed a suitable provision for the plaintiff’s support. By the tenor of the report, it appears that the defendant was not a person of large property, and that he had an imbecile sister dependent upon him. An examination was made of his books, during the progress of the hearing before the referee, from which the plaintiff’s counsel insisted it had been made to appear that the defendant was possessed of what might be deemed a reasonable competency; but that cannot be fairly deduced from the evidence on which the application was finally heard and determined. It is most probable that all his estate would not exceed the sum of from twenty-five to thirty thousand dollars; and.it is by no means certain from the evidence that it will equal either of those amounts. The probability is quite decided that the plaintiff received what was the equivalent of about one-third of the defendant’s property. He had been in business in this city and in California, but the expenses of the business in both places were very large, and they rendered it unremunerative. The oral evidence was clear that the business proved a losing one, and the boohs do not satisfactorily show its condition to have been different. It did not appear that the defendant owned other property, except the three lots and a policy of insurance upon his life, surrendered to the company for less than $3,000, its estimated value at the time.

It seems quite probable that the amount received by the plaintiff was very near, if not quite, one-third of the defendant’s entire estate; and ordinarily the courts do not feel at liberty to go beyond that for the purpose of providing support and maintenance for the defendant’s wife in actions of this nature; though cases have arisen where the decree has given the wife half of the husband’s estate. That, however, is not usual, and has not been considered entirely proper, because her legal interest in his property at his decease is, under ordinary circumstances, limited to one-third of his personal estate and dower in the realty owned by him.

For these reasons, apparently, the referee concluded that no further provision should be made for her during the pendency of this action. The motion was brought on for final hearing in 1876, and in June of that year an order was made directing the defendant to pay over to the plaintiff for her support, the sum of sixty dollars a month, from the time the motion papers were served until the further order of the court, and $250 as counsel fees. At that time these monthly installments aggregated a sum exceeding $5,000, and with the money previously paid and the property conveyed, probably equaled one-half of the defendant’s entire estate. This was more than would ordinarily be secured by a final decree ; and if the order should be. maintained it would be likely to render any further proceedings on behalf of the plaintiff for the determination of the action undesirable ; which is a result that it is not the policy of the law to promote. Alimony, during the pendency of the action, is not provided for that purpose; hence it has been limited to a mere support of the wife during the pendency of the suit prosecuted by her, .and a sufficient sum to enable her to bring her cause on for trial. The object of the law is to place her in a condition for testing the truth of her complaint, and vindicating her rights as against her husband; and when the allowance so far exceeds what may be necessary for that purpose as to become oppressive upon the husband, it. has a direct tendency to exclude him from a hearing before the courts. It is a practical condemnation of him without a hearing upon the allegations of guilt, and for that reason not consistent with an impartial administration of the law. While the wife is required to be provided for, the husband is not to be so far impoverished as to render him incapable of presenting what may prove to be an entirely justifiable defense.

The learned justice who finally heard and decided the motion probably did not have his attention directed to the length of the intervening period which had elapsed since the service of the motion papers. Ordinarily, that will not exceed a few weeks, or months at farthest; and there will then be no impropriety in giving the allowance a corresponding direction. But in this case the time exceeded seven years, and for that reason it rendered the payment required by the order, greater than the exigencies of the case could, in any view of them, require. The plaintiff has supported herself through these intervening years, and if she has become dependent again upon the property of her husband, the allowance should not exceed what her present necessities may require. The object is not to make provision for the past, but to maintain and support her until, with the observance of reasonable expedition, her action can be tried and determined.

The defendant’s counsel has strenuously objected to any allowance, because he has denied the validity of the marriage; but the necessity of her position is as much entitled to be relieved, when that may be an attribute of her legal controversy with her alleged husband, as it has been held to be when it arises wholly out of the charge of his marital guilt. The controlling fact is, that the wife has become engaged in a legal controversy -with, her alleged husband, which her own financial condition will not enable her to properly present for determination; and to relieve her from that embarrassment, the defendant has usually been required to supply her deficiencies. The reason of the rule renders it as applicable to a controversy presenting the legal validity of her marriage, as to one limited to her vindication against the consequences of her husband’s misconduct. The agreement for then separation, if properly entered into, did not preclude her from prosecuting the defendant for a divorce, if she afterwards discovered that he had been guilty of adultery. That was a contingency not contemplated when the articles were executed. The law secured that right to her, even if she had legally bound herself to live separate and apart from him. In the present case she has gone further than to assert the existence of that cause of action. She has added to that the averment of the invalidity of the articles themselves; and she has the right to establish the truth of that allegation, if she shall be able to do so, for the purpose of claiming' further relief than that already obtained l y means of them, from the defendant’s property. And to enable her to maintain that, as well as the other positions taken by her, he may be required to relieve her temporary wants until that can be accomplished by a trial to be had in the action.

The case was one requiring that the defendant should provide for the plaintiff’s present necessities; but that can be done without obliging him to submit to the terms mentioned in the order. If her necessities had been pressing, it is not probable that this long delay would have been allowed to intervene between the service of notice and the final hearing of the motion. That of itself presents presumptive evidence that she has not been long dependent upon further pecuniary relief from her alleged husband; and in view of that circumstance and those the evidence tended to establish, the allowance should be simply prospective from the time when the order was made. That will not be unjust to the defendant, because he may bring the cause on for trial and terminate the demand made upon him by an early vindication of his innocence, if that shall prove to be the truth.

There is no foundation for the objection that the order is not one which can be reduced in its amount upon an appeal. The ease of De Llamosas v. Llamosas (62 N. Y., 618) bolds no snob doctrine. Wbat was said in its decision applied only to tbe power of tbe Court of Appeals. In tbe General Term all orders affecting substantial rights are tbe subject of review (Hanover Ins. Co. v. Tomlinson, 58 N. Y., 215), and an order directing tbe payment of money bas been beld to be of that description. (People v. N. Y. Cen. R. R. Co., 29 N. Y., 418.)

Tbe order made in tbis case should be so far modified as to limit tbe monthly payments to tbe time succeeding tbe date when it was made. As to tbe counsel fees, no change is required in them amount, and as modified tbe order should be affirmed, without costs to either party.

Order to be settled by Daniels, J., on two days’ notice.

Davis, P. J., concurred.

Present — Davis, P. J., Brady and Daniels, JJ.

Order modified as in opinion directed, and affirmed as modified, without costs; order to be settled by Daniels, J., on two days’ notice.


text:
    GEORGE M. OLCOTT, Assignee, etc., Respondent v. JOHN MACLEAN and others, Appellants.

      Assignee in hcmhruptcy — action to recover assets of bariloru/pt— m what court it must he brought — jurisdiction of State court — of United States District Oornt— when exclusive — § 2 of cha/p. 890 of act of congress of 1874.
    By section 2 of chapter 390 of the act of congress of 1874, providing “that the court having charge of the estate of any bankrupt may direct that any of the legal assets or debts of the bankrupt * •* * shall, when such debt does not exceed $500, be collected in the courts of the State where such bankrupt resides,” the United States District Court is vested with exclusive jurisdiction over all actions brought by an assignee to recover propertyalleged to have been transferred by the bankrupt in violation of section 5128 of the United States Kevised Statutes, where the value of such property is greater than $500.
    Although prior to the passage of the act of 1874 the State court had concurrent jurisdiction with the United States District Court over such actions, yet hy the passage thereof such jurisdiction was withdrawn from it, even as to actions theretofore commenced and then pending therein.
    Appeal from a judgment in favor of the plaintiff recovered on the verdict of a jury for $1,320.63, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      George A. Blade, for the appellants.
    By the enactment of the Revised Statutes of the United States on June 22, 1874, the jurisdiction of the United States courts became “ exclusive ” over actions of this character. (Vide R. S. of U. S., § 711, subd. 6, p. 134; § 4972, p. 969; act of congress, 1874, .chap. 390, § 2.) The pendency of this action at the time the act of June 22, 1874, was passed is no reason to except it. (Butler v. Palmer, 1 Hill, 330; Matter of Palmer, 40 N. Y., 561; Frost v. Sotchleiss, 1 Abb. New Oas., 27.) The eases in which the courts of this State have considered the effect of the “ exclusive jurisdiction ” granted to the United States courts by act of congress are not very numerous. They are, as to consuls: Drnis v. Padea/rd (6 Wend., 327); Drnis v. Padea/rd (10 id., 50); Davis v. Pochard (6 Peters, 41); Da/ois v. Pochard (7 id., 276); Da/ois v. Padeard (8 id., 314); Vdlarimo v. Thompson (7 N. Y., 576). As to States: Delafield v. State of Indiana (26 Wend., 215; 2 Hill, 159). As to postmasters: Sail v. Felton (1 N. Y., 544; 12 How. [U. S.], 284). As to admiralty: In re Josephine (39 N. Y., 25); Broolemam, v. SarrdU (43 id., 555); Broolemam, v. Samill (46 id., 636; Vose v. Godecroft (44 id., 415). As to infringement of patents: Dudley v. Mayhew (3 N. Y., 9). As to pilotage: Cisco v. Roberts (36 N. Y., 35); Com. of Pilots v. Pacific M. S S. Go. (52 id., 609); Senderson v. Spofford (59 id., 131). In all these cases the power of congress to create the remedy or right and confine its exercise to its own courts is recognized. (lathrop, Assignee, v. Dralee, 13 Bank. Reg., 472.) Having no jurisdiction, the judgment must be reversed absolutely, and with costs. (Ayres v. West. R. R. Go., 45 N. Y., 260; 49 id., 660; McMahon v. Mut. Benefit Ins. Go., 3 Bosw., 644.)

      WülÁam P. Chambers, for the respondent.
   Daniels, J.:

The verdict in this case was rendered for the value of certain goods received by the defendants from James S. Aspinwall. The same goods had been sold by the defendants and shipped by them, at London, to him in New York. The shipment was made on the last day of October, 1872, and he received the goods in November following. The 5th or 6th of December, 1872, he suspended payment, and did not afterwards resume. He was insolvent at that time, and on the 27th day of January, 1873, petitioned for the benefit of the bankrupt law. Before doing that, and on the tenth day of the month preceding, he delivered to the defendants’ agent, at New York, an instrument in writing, by which he stated that he held part of the goods in store for account of the defendants. And on the 7th day of January, 1873, in compliance with orders drawn upon him by the defendants’ agent, he delivered to such agent those goods and others shipped with them by the defendants. The plaintiff was appointed assignee in the bankruptcy proceedings on the 25th of February, 1873. And after demanding these goods from the defendants, he commenced this action for the recovery of their . value. An attachment was issued and the property attached under it. The defendants thereupon appeared by attorney in the action. It is not necessary to examine into the merits of the objection urged, that the attachment was an irregular proceeding, for that point cannot properly be made in the present state of this action. The appearance itself gave the court jurisdiction over the persons of the defendants, and it is too late now to object that it was irregularly secured. (Brown v. Nichols, 42 N. Y., 26.)

When the goods were received by Aspinwall, as they appear to have been in November, he became their absolute owner. His title was complete, and nothing was done by him to divest it until after he had become insolvent and suspended payment. For that reason, it was insisted by the plaintiff that the return of the goods to the defendants’ agent was in fraud of the bankrupt act, and entitled him to a recovery of their value as the assignee. , Their value was shown to have exceeded the sum of $1,300, and, for that reason, it was objected that the change made in the law in 1874 deprived this court of jurisdiction over the controversy. When it was commenced in 1873, it was settled by authority that this court had jurisdiction over such au action brought by an assignee in bankruptcy. (Cook v. Whipple, 55 N. Y., 150.) But during its pendency, and before the trial, the law defining the powers of the United States District Courts over the collection of the assets of the bankrupt was amended by the addition of the proviso: “ That the court having charge of the estate of any bankrupt may direct that any of the legal assets or debts of the bankrupt., as contradistinguished from equitable demands, shall, when such debt does not exceed $500, be collected in the courts of the State where such bankrupt resides, having jurisdiction of claims of such nature and amount.” (Laws of 1871,178, § 2.)

The cause of action relied upon for a recovery in this case arose out of an alleged violation of the provision of the bankrupt law, declaring, as it has been amended, “that if any person, being-insolvent or in contemplation of insolvency, within four months before the filing of the petition by or against him, with a view to give a preference to any creditor or person having a claim against him, or who is under any liability for him, procures or suffers any part of his property to be attached, sequestered or seized on execution, or makes any payment, pledge, assignment, transfer or conveyance of any part of his property, either directly or indirectly, absolutely or conditionally, the person receiving such payment, pledge, assignment, transfer or conveyance, or to be benefited thereby, or by such attachment, having reasonable cause to believe such person is insolvent, and knowing that such attachment, payment, pledge, assignment or conveyance is made in fraud of the provisions of this title, the same shall be void, and the assignee may recover the property, or the value of it, from the person so receiving it, or so to be benefited.” (U. S.Devised Statutes, 996, § 5128; Laws of Cong, of 1874:, p. 180, § 11, sub. 1.)

It was literally, therefore, a case arising under the laws of the United States that this action was brought. upon; and for that reason, the exclusive jurisdiction of the United States courts could be constitutionally extended over it by act of congress. (U. S. Const., art. 3, § 2, sub. 1.) And it appears that it was the intention of the amendment enacted in 1874:, and already mentioned, to accomplish that result; for by providing that actions for the collection of debts, not exceeding in amount the sum of $500, might be allowed to be prosecuted in courts of tbe State where the bankrupt resides, having jurisdiction of claims of such nature and amount, it was designed that it should be understood that the State courts should be limited and restricted to that class of cases arising under the provisions of the bankrupt law. Enumerating the cases that might be prosecuted in such courts, excluded all others not included by the import of the terms made use of. That is a well-settled rule of construction, and it has been long applied to the interpretation of statutory provisions. By the terms made use of, ■a negative is implied and understood beyond the power actually declared. As the section of the act has been amended, it now provides that the jurisdiction of the District Courts of the United States, as courts of bankruptcy, shall extend, -among other enumerated cases, to those for the collection of all the assets of the bankrupt, except actions for the recovery of debts not exceeding $500, which may be directed by the District Court to be collected in the courts of the State where the bankrupt resides, having jurisdiction of claims of that nature. (U. S. Devised Statutes, 969, Eirst Session; Laws of 1874, 178, § 2.)

Beyond the limits of that exception, the jurisdiction of the District Courts has been made exclusive of the courts of the State. That is the import of the terms made use of, and it is also the effect of the construction placed upon such provisions of statutory law. (Dudley v. Mayhew, 3 Comst., 9, 15, 18.)

This change in the law deprived the State courts of all other authority than that mentioned in it, over actions of this description as soon as the provision went into effect, and that was long before this action was tried. There was nothing in the saving provisions of the Devised Statutes which prevented it from including pending actions. They simply restrained the effect of the repealing clauses contained in the revision then made. (U. S. D. S., p. 2, § 13; p. 1091, § 5597.)

That is entirely evident from the last section of the statutes, for it declares that all acts passed since the 1st day of December, 1873, are to have full effect, as if they were passed after the enactment of the revision as subsequent statutes, and as repealing any portion of the revision inconsistent therewith. (Id., 1092.) And the force of that general provision has not been restrained by any thing con-tamed in the preceding thirteenth section, for that simply saves the liability of the party, and not the proceedings taken to enforce it; besides, this was not the repeal of any existing law. It had not before been provided that the courts of the State should entertain jurisdiction over actions of this description; but 'the exclusive powers of the district courts had not been so far extended as to deprive the State courts of their powers in this respect, and for that reason, it was held that actions of this description could be prosecuted before them. It was because congress had not acted at all upon the subject that their jurisdiction remained unaffected. That omission was supplied by the amendment of 1874, and its effect was at once to abridge the powers of this court to such an extent as to deprive it of all authority over the present action from the time that amendment became operative as the law. The law in this respect is similar to a change considered by the court in Insurance Company v. Ritchie (5 Wall., 541), where an act passed in 1866 declared that a preceding act passed in 1833 should not apply to such a case. And the chief justice, in his opinion upon the effect produced by the subsequent act, said: “ This is equivalent to a repeal of an act giving jurisdiction of a pending suit. It is an express prohibition of the exercise of the jurisdiction conferred by the act of 1833 in cases arising under the internal revenue laws. It is clear that when the jurisdiction of a cause depends upon a statute, the repeal of a statute takes away the jurisdiction. And it is equally clear that where a jurisdiction conferred by statute is prohibited by a subsequent statute, the prohibition is so far a repeal of the statute conferring the jurisdiction.” (Id., 544.) The same principle was also maintained in the case of The Assessor v. Osbornes (9 id., 567). It was there held that the repeal of a statute withdrew the jurisdiction it conferred upon the courts; and where it contains no saving clause, “ all pending actions fell, as the jurisdiction depended entirely upon the acts of congress.” (Id., 575.) That was the effect of the amendment made in 1874. It -withdrew from the courts of the State the authority over these cases, which had previously been maintained only because congress had not directly or indirectly prohibited it, and confined the jurisdiction from that time to the district courts, except when actions, by their permission, should be brought for the recovery of debts owing to the bankrupt, not exceeding in amount tbe sum of $500. This was not a demand of that limited nature, and, consequently, not within even this exceptional authority.

As the power of this court to hear and determine this case has been withdrawn, it is unnecessary to examine any of the other objections to the recovery on the part of the defendants. They do not seem to be tenable, because all the property was neither transferred nor delivered by the -bankrupt before the seventh day of January; but their further consideration should be dispensed with, because of the present want of power in the court to decide them in this case.

The judgment should be reversed and the complaint dismissed, but as that has become necessary because of the legislation which took effect during the pendency of the action, it should be without costs.

I'avis, P. J., and Beady, J., concurred.

Judgment reversed and complaint dismissed, without costs.


text:
    THE PEOPLE ex rel. ELLEN M. DOUBLEDAY, Appellant, v. JOHN KELLY, Comptroller of the City of New York, Respondent.
    - Redemption from tm sales in the city of New York — chap. 374 of 1876.
    Chapter 374 oí 1876, providing that, at any time within one year after the passage of the act, any person might pay to the comptroller of the city of New York the am mint of any tax' upon property belonging to such person theretofore imposed and then remaining unpaid, together with interest at seven per cent per annum, for the time that such tax was imposed, only applied to cases in which the taxes had not as yet been paid to the public authorities,, and did not provide for the redemption of property previously sold for the non-payment of taxes, the time to redeem which had not as yet expired.
    Appeal from an order denying amotion that a writ of peremptory mandamus issue out of the Supreme Court, directed to, and commanding Andrew H. Green, as comptroller of the city of New York, to receive from the relator herein the sum of $794.50 with interest thereon at the rate of seven per cent per annum, from the 17th day of September, 1869, to tbe time of tbe payment; and tbe further sum of $900, with interest tbereon at tbe rate of seven per cent per annum, from the 19th day of September, 1870, to the time of payment, and upon such payment to make and deliver to relator a receipt therefor and to forthwith cancel the record of the taxés for the year 1869 and the year 1870, imposed upon the property of the relator, which was more particularly described in her affidavit.

      James A. Deering, for the appellant.
    Assuming that the tax sale was valid, yet the taxes in question were “now remaining unpaid.” Within the definition of the word “payment,” as used in the tax law and the act of 1876, a tax remains unpaid until actually paid by the owner of the land, and the record of the tax and sale has been canceled by the proper officer. (Williams v. Townsend, 31 N. Y., 411; Fitsrpalrick v. Flagg, 5 Abb. Pr., 213; Laws 1853, chap. 579, § 16.)

      J. A. Beall, for the respondent.
    The taxes have been paid and the comptroller has no authority to receive them a second time. (Hilliard on Taxation, 484, § 2; Blackwell on Tax Titles, 646-650.) If the act of 1876 invalidates sales for taxes and leases made and delivered in pursuance of such sales, then the act impairs the obligation of contracts, and is void as in conflict with subdivision 1 of section 10, article 1 of the Constitution of the United States. (Dike-man v. Dikeman, 11 Paige Oh., 484; Bruce v. Selvwyler, 4 Grilm. [9 Ell.], 274-278; Nelson v. Bouni/ree, 23 Wise, 368, 371; Dolan v. Trelevan, 31 id., 151; Adams v. Beale, 19 Iowa, 61; Blackwell on Tax Titles, 299, 300.)
   Daniels, J.:

The applicant owned real estate upon Walker street, in the city of New York, which, on the 9th of March, 1874, was sold for the non-payment of the taxes imposed upon it by the board of supervisors of the county for the years 1869 and 1870.

The property was purchased at the sale made, by William H. Ely. He advanced to the authorities the amount due for the taxes, with interest upon it to the time of the sale; and the measures provided by chapter 381 of the Laws of 1871 were taken for the purpose of completing and. perfecting his title to the property; but before the time had expired for a redemption from the sale by the owner she offered to pay the taxes to the comptroller, with seven per cent' interest.

That was much less than the amount required to redeem the property from the sale by the terms of the act referred to, and no claim has been made that its provisions upon this subject have been complied with. That act directed that sales should be made after a certain period had elapsed after the imposition of taxes upon real estate, and it prescribed the notices and the mode of proceeding which should be followed to render them effectual.

It also provided the manner in which the owner might redeem, or in case no redemption should be made, the proceeding by which the title of the purchaser would become absolute. - By virtue of those provisions the money paid for the purpose of redeeming the property sold was required to be paid and received for the benefit of the purchaser. The authority of the clerk of arrears was substantially an agency to receive the amount mentioned in the certificate of sale, with fourteen per cent interest for the benefit of the purchaser. (Laws of 18Y1, vol. 1,. p. Y44, chap. 381.) As to the city and county, the taxes were paid by the advance made by the purchaser ■ under the terms of the sale.

There was from that time nothing further due to any person other than the purchaser, and if redemption were made, the money used to make it became his property. The payment was designed to operate upon his title and to extinguish his interest under the sale. The business was wholly between him and the owner, through the intervention of the clerk of arrears.'

But without offering to comply with what had been prescribed for this purpose by the act of 18Y1, the owner of the property applied directly to the comptroller to receive the amount of the taxes, with seven per cent interest, under chapter 2Y4 of the Laws of 18Y6. That provided that any person might, 'within one year after its enactment, pay any taxes previously laid and imposed, and then remaining unpaid, with seven per cent interest, and that the comptroller should make and deliver a receipt therefor, and cancel the record of the tax.

That payment was to satisfy the tax, the interest upon it, and any penalty which might otherwise have been claimed by reason of default in making it. (Laws of 1876, chap. 274.)

The comptroller declined to receive the money, and the writ of mandamus was applied for to compel him to do so, and to discharge the taxes; and it was denied, because the case made was not within the provision contained in the statute.

This act was only intended to apply to cases where the tax remained unpaid to the public authorities.

It did not provide for a redemption of the property after a sale for non-payment had been made. A different proceeding had been prescribed for that purpose, and no design was in any form evinced to repeal or supersede the provisions which had been previously made upon that subject. Both statutes may very well and very consistently be maintained together; and where that proves to be the case, a preceding act is not repealed by implication by force of another afterwards enacted.

The act of 1876 was in no sense an act for the redemption of property sold for the non-payment of taxes, but it was simply an act to allow payment to be made where nothing had transpired preventing that from being done, upon terms which were more favorable than had otherwise been prescribed; and it was applicable only to cases in which no sale had been made. There the business remained between the owner and the public. The rights or interests of no purchaser intervened, and none were accordingly considered or provided for by the terms of the act. It related to payments which could properly be received by the comptroller, and the omission to provide that the money should be received or held for the use of a purchaser, is cogent evidence that payment before a sale was alone contemplated by the act.

If that had not been the intent, provision would have been made for defraying expenses incurred in advertising and selling the property, and for the extinguishment of the rights of the purchaser. By the terms of the act under which the sale took place he became entitled to fourteen per cent interest on the money advanced by him, in case his title should be defeated by a redemption. That rate of interest had accrued in this instance since the 9th of March, 1874, and for more than two years before the applicant offered to pay the taxes under the act of 1876.

This act evinced no intention to deprive the purchaser of that interest, and no provision was made by it or by any other act for its payment, in any other way than by the owners’ redemption of the property sold. It could not have been the purpose to deprive the purchaser of the rate of interest he became entitled to as one of the authorized regulations of the sale. That would not have been attempted without some expression of the design. And yet the act of 1876 had declared nothing whatever upon the subject. It merely provided for a payment, and not for a redemption, and must have been intended to be applicable only to cases in which payment only would be proper, and all that might be necessary to extinguish the tax. All that by the terms of the act could be effected by the payment allowed, was the extinguishment of the lien and the discharge and satisfaction of the tax.

No extinguishment of the rights of the purchaser was provided for, as a consequence to be secured by payment. But if a case involving such rights had been intended to be provided for, they certainly would not have been wholly neglected, as they have been by the terms of this act. If the act can be properly construed to include cases of sales upon which the taxes have already 'been received, then there would seem to be the same reason for extending it to those in which the time for redemption had been lost by lapse of time.

The power which could, by such an enactment, deprive the purchaser of .his interest, would seem to be equally as potent over his title. The terms of the act could as well be held to include the one as the other. But such an act would not be a constitutional exercise of legislative authority, because of its interference with vested individual rights. No such difficulty would be found in the way, however, as long as the demand still remained in the hands of the public authorities. •

There it would be a proper subject of legislation without possible injury to any one. And that, it is to be presumed, was what was intended to be affected by the act of 1876. It was to allow payment to be made, where nothiug beyond that was needed, to relieve the property of the party paying. And, accordingly, it made provision for payment, but none whatever for redemption. It was claimed that the proceedings which had been taken were not regular, and for that reason the writ ought to have been issued. But this act has not provided for the trial of that allegation in this way. It has provided for the right and effect of payment alone, when that can be properly made. Beyond that the provision made by it has not been extended. "What it secured was the privilege of paying an unsatisfied tax. That did not exist in this case, so far as the city or county was concerned. For to that extent the money had previously been received from the purchaser at the sale, and he and not the city was entitled to whatever should be received to defeat his interest.

If the taxes had not been lawfully laid, and were not legalized by the act under which the sale was made, then they formed no charge upon the- applicants property. But if they were properly laid, or were rendered regular by that act, then, as the sale itself was advertised and made as the act of 1871 required it to be done, the applicant could not relieve her property from the effect of the sale, by merely proposing to pay according to the provisions of the act of 1876.

If the proceedings were void for want of conformity to the law, then the writ was not necessary for the vindication of the applicant’s rights. But if they were valid, that of itself was a good reason for denying the application. In neither view was the case a proper one for interference by means of the writ of mandamus. The order should, therefore, be affirmed, with the usual costs and disbursements.

Beady, J., concurred. Davis, P. J., not sitting.

Order affirmed, with ten dollars costs and disbursements.