text:
    The People ex rel. Kate Stanley, Resp’ts, v. George W. Van Sielen, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 2, 1887.)

    1. Schools—Colored schools in. the city op New Yory—Laws 1884, chap. 248
    In pursuance of the Laws of 1884, chapter 248, the colored schools of New York city became ward schools subject to the control and management of the school officers in the ward in which they are located, and open for the education of pupils without regard to race or color. The change contemplated is one only of jurisdiction and exclusiveness, the dis- . tinction of color being abolished. The teachers employed in these colored schools after the passage of this act can be removed only in the manner provided by law.

      2. Mandamus—When proper—School teachers.
    When an officer, a school teacher, is removed from an office which is legally held and from which he is illegally discharged, a writ of mandamus is the proper remedy in trying to overcome the removal as such a result cannot be obtained by action.

      Appeal from an order granting peremptory writ of mandamus.

      B. 6r. Beardslee, for app’lt; N. J. Waterbury, for resp’ts.
   Brady, J.

Prior to the passage of the act of the legislature on May 5', 1884 (chap. 248) the relator was an assistant teacher in colored school No. 4, which was located in the Sixteenth ward. She was appointed by the board of - education which then had sole jurisdiction of the school and which was therefore not subject to the by-laws and regulations applicable to ward schools. The act mentioned changed the status of this school as appears from its provisions which are as follows:

“ Section 1. The colored schools in the city of New York, now existing and in operation, shall hereafter be classed and known and be continued as ward schools and primaries, with their present teachers, unless such teachers are removed in the manner provided by law; and such schools shall be under the control and management of the school officers of the respective wards in which they are located in the same manner and to the same extent as other ward schools, and shall be open for the education of pupils for whom admission is sought, without regard to race or color.

“ § 2. All acts or parts of acts inconsistent with the provisions of this act are hereby repealed.

“ § 3. This act shall take effect immediately.’

In pursuance of this law No. 4 became a ward school, designated No. 81 and subject to the control and management of the school officers in the ward in which it is located, and opened for the education of pupils without regard to race or color. The relator was not removed in the manner provided by law, but shut out by a circuitous mode deemed justifiable and necessary under the act as understood by the authorities in power. It was that inasmuch as under the by-laws of the board of education the relator could not be employed as an assistant teacher in the grammar department of the school after the passage of the act, there being then in that department two teachers who were senior to her in rank, and the average attendance of pupils not justifying another teacher according to such by-laws, she could not longer be continued as a teacher.

If this circumlocution be sustained then the act is overridden in as much as the relator and others of her class were by it continued in office until removed in the manner provided by law. This is not a removal in the mode suggested and it is not pretended that it was. Whether there would be employment for the teachers embraced in the provisions of the act in the schools thus changed in status, does not seem to have been doubted. Indeed it is quite apparent that the change contemplated was one only of jurisdiction and exclusiveness, the distinction of color being abolished. In other words the schools were to be kept intact in organization but placed under the control of ward school officers to which pupils of all races and color should be admitted and taught. But if this were not the design of the act and the school eo nomine was to be transposed and transformed the intention was clearly expressed to retain the teachers unless removed in the manner provided by law and this provision necessarily repealed any by-law of the board of education or any rule of government or modus operandi by which the school officers without the removal required, could dispense with the services of the teacher. It does not make the least difference in the effect of the statute that there was no class for the relator according to existing rules inasmuch as the pupils could if necessary be-distributed and more classes created.

But this is not a question of classes, but of power to dispense with services continued by law. We are dealing now with a statute which is mandatory, and not subject to whim, caprice or prejudice. The act declares not only that colored schools shall be classed and known and continued as ward schools and primaries, but with their present teachers, unless removed. It is thus said to the ward school officers, these schools are to be transformed and placed under your control, but with their present teachers, and the direction is so plain that he who runs may read and read correctly. This feature shows, as already suggested, that the design of the legislature was only to change and not to destroy existing elements. We must, therefore, look through the record to see whether there be any other reason why the relator should be deprived of her position. We find none. The relator sought employment, it is true, as an additional teacher, and accepted payment as such, but this did not involve or amount to a resignation or create an estoppel. She could properly seek other employment, the only effect being to diminish her claim against the city by deducting the sum received as compensation. It was declared and established by the case of The People ex rel., Gilchrist v. Murray (73 N. Y., 535), in no way inconsistent with her claim, that while excluded from her position she should seek other employment. The views of the learned justice in the court below, on this subject, are sustained. This is not a proceeding to collect the salary that may be due the relator. It is to require the respondents to recognize her and permit her to perform her duty as a teacher. She prefers to perform that labor and there is no reason valid in law why she should not be permitted to do so. The statute has declared that she might do so. She is not seeking here to establish her title therefore to an office or position, but overcome her removal from which it is conceded she legally held and from which it appears she was illegally discharged. If, after her recognitian, she should seek payment, her right to a similar remedy might form the basis of dispute. Doubtless she could maintain an action now to recover her salary, but she prefers to invoke the authority by which she may be reinstated and allowed to do her duty. The attainment of this result may be accomplished without action. As said by the learned justice in the court below, as this court has already decided it to be the duty of the respondents to recognize the relator and to permit her to perform her duty as a teacher, People ex rel., Ray v. Davenport (Lawrence, J.), a writ of mandamus is the proper remedy, as such result cannot be obtained by action. For these reasons the order appealed from should be affirmed with ten dollars costs and disbursements of the appeal.

Daniels and Bartlett, JJ., concur.


source: Caselaw Access Project

author: Daniels, J.

license: Public Domain

text:
    David W. Bruce et al., Trustees, Respt’s, v. Uriah Welch, Appl’t.

      (Supreme Court, General Term, First Department,

      Filed March 2, 1887.)

    1. Lease -Action for rent—Counter-claim.
    Where in a lease there is an agreement that the lessees may remove property of the nature of fixtures, and on the expiration of the lease are prevented from doing so by the lessor or his agents, in an action for rent, the value of this property may be pleaded as a valid counter-claim.
    3. Agency.
    It is for the jury to determine in a disputed case whether or not persons acting for another have authority so to do.
    Appeal from a judgment recovered on a verdict directed by the court.

      Charles E. Miller, for app’lt; William Man, for resp’ts.
   Daniels, J.

The verdict was recovered for the amount of rent due upon a lease, executed by the plaintiffs to a special partnership, in which the defendant was the general partner. The lease extended for two years, from the 1st of May, 1878. Before it expired it was renewed and continued in force for the further period of one year, and before the expiration of that year it was again extended to the 1st of May, 1884. At the time when it expired, the rent for which the verdict was recovered was unpaid.

But the defendant resisted his liability to pay it upon the non-performance of a clause in the lease, by which it was “agreed that the said parties of the second part shall be allowed to remove the marble mantels and grates, provided the injury or damage by such removal shall be repaired and made good by them, the said parties of the second part.” They alleged by way of counter-claim that they had not been permitted- or allowed to remove the mantels, either before or after the expiration of the term, and evidence was given upon the trial showing that they had been prevented by the boarding up of the corridors, or avenues, to the demised premises, from taking away and removing these mantels. The court at the trial held that the evidence did not establish the defense, and therefore directed a verdict for the plaintiffs.

In support of this ruling the objection has been taken which was not urged upon the trial, that the answer was not sufficient to present it. But in that respect the counsel is in error; for it does allege that the mantels and grates had been placed in the rooms of the building, which were occupied and used as part of the St. Nicholas Hotel, and that the plaintiffs had violated the stipulation and agreement allowing their removal from the building, and that when the defendant attempted and wished to remove the same before and immediately after the expiration of the lease, he was prevented and not allowed, and still was prevented from removing the mantels and grates from the building, and that they were worth the sum of thirteen hundred dollars. It is true that the answer is not very pointed or direct, but at the same time it contains all that was necessary for the presentation and proof of this defense.

In support of it, the evidence given by and on behalf of the defendant proved that the halls or corridors of the building were boarded up on the lower side in such a manner as to prevent access to the rooms in which these mantles had been placed, and there was no avenue to them from the street. These halls or corridors were closed before the 1st of May, 1884, and while the defendant clearly had the right to remove the mantels and grates under this clause of the lease. And it appeared from the evidence of Henry Miller, who was in the employment of the plaintiffs under their agent, James W. Jackson, that the halls were closed in this manner by his direction, but not under any direct authority derived by him for that purpose, either from the plaintiffs or their agent, James W. Jackson, He, however, was a person who was in the general employment of Jackson at work for the estate, and may, from his testimony, be considered to have been authorized to do what he did under the circumstances as they appeared to him. His testimony was: “I had the orders to go there after the building was vacated, after the first of May, and to close it up; I went there before; I found they wem taking things out of the parlor floor and tearing the building to pieces, and I set these doors up temporarily to prevent them from stealing what was on the other side of the building; I did not notify Mr. Jackson of that; I never said a word about it; we boarded that up on the twenty-eighth of April; I was in the general employ of Mr. Jackson to do the work of the estate; I worked without his instructions oftentimes; he said nothing about it; I made no report at all about it.”

But these temporary doors were all removed again on the the twenty-ninth of April, and for only a short period of time, therefore, prevented ingress into the rooms by the defendant. But so far as it did so, as the work was done by a person in the employment of the plaintiffs for their benefit under their managing agent, and knowledge of the removal of the doors does not seem to have been received by the defendant, they may very well be held responsible for the obstruction mentioned by him. Mr. Jackson, the agent, himself testified that he gave no orders to anybody to go there before the first of May; that he generally employed Mr. Miller as one of the carpenters of the estate, and Mr. Demerest was another person employed by him, and he supposed that both went to the building after the first of May; that he did not send them before the first of May, nor give any instructions whatever in regard to it. But as to the time when Mr. Jackson gave directions he may very well have been mistaken, or he may have given them in such a manner as not to be clearly apprehended by the persons who received the instructions who were at work about the building.

There is certainly a fair probability or ground for agreement, that the other persons who closed up the halls did so "under the authority and employment of Mr. Jackson, and that he was mistaken in his evidence as to the time when that employment or authority took place. One of the persons who was at work closing up the halls, when interrogated upon the subject and made acquainted with the impropriety of what he was doing, stated that it was done under instructions from Mr. Lorillard’s representative, whose name he thought was Jackson; and it appeared from the evidence of Jackson that he was the agent not only for the portion of the building in which these mantels were located, but also for that adjoining it under the charge of the Lorrillard’s estate. Whether this statement was strictly admissible in evidence it is not necessary now to determine, as it was received without objection on the trial, and it was rendered applicable to the case by the testimony of Jackson himself, proving the existence of this general agency. There was fair ground for argument that this work of closing the halls was done under the authority of the agent of the plaintiffs, and that he, in view of what the men there employed were doing, was mistaken as to the time and the directions given to the persons so employed. Whether this argument could be sufficiently maintained by the probabilities of the case was for the jury and not for the court to decide. They might, in consideration of the work which was being done, and of the fact that it inured to the benefit of the owners of the building, by depriving the defendant of the ability to remove the mantels, have concluded, if the question had been submitted to them, that the work, notwithstanding the statements of Jackson, was in fact done under his authority, and that the defendant had been precluded in that manner from availing himself of the advantage agreed to be secured to him by this clause in the lease. The evidence presented an appropriate case for the decision of the jury, and the judgment should be reversed and a new trial ordered, with costs to abide the event.

Brady and Bartlett, JJ., concur.


author: Van Brunt, P. J.

text:
    The Mayor, Aldermen and Commonalty of the City of New York, Resp’ts, v. Daniel D. Coyle, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 2, 1887.)

    1. Corporations—Contracts ultra vires are prohibited by law.
    If a contract be ultra vires, or if all the preliminary statutory requirements have not been complied with, yet if it be executed, a recovery may be had for what is due by its terms. There is a great distinction between such contracts and those which the law prohibits.
    2. Practice—Motion to dismiss—Subsequent evidence.
    The rule is well established that, even if a ground of dismissal is well taken at the time the motion is made and denied, yet if subsequent evidence removes such ground, the exception taken is not available.
    3. Contract—Evidence oe agreement to pay rent.
    The giving of security to pay rent, and the payment of the same for years, is more than sufficient to establish prima facie a contract to pay the same.
    On the 25th of April, 1865, the plaintiffs made a lease for the term of ten years from May 1, 1865, to one Daniel Darrow of Pier No. 7, East River, at an annual rent of $5,000, payable quarterly.'
    In October, 1868, the defendant took an assignment of - the lease with the consent of the comptroller of the city, and entered into possession.
    This action was brought to recover $1,250 rent due May 1, 1875, and $1,250 rent due May 1, 1875.
    The defendant testified that there was an understanding with the comptroller at the time of the assignment, that he should have the pier for $3,000 a year, and that he paid at that rate until August 1, 1870, when rent at the rate of $5,000 a year was paid down to and including November 1, 1874.
    The receipts given during the time rent was paid by the defendant at the rate of $3,000 a year, were for the full amount of rent, viz: $5,000 a year, and were followed by a memorandum that an allowance had been made by the comptroller, so that the rent actually paid was only $3,000 a year.
    The defendant claims to have paid the full rent under protest, and the receipts contained a memorandum that the protest was on account of a claim for allowance in consequence of the condition of the pier.
    The plaintiffs offered in evidence a bond whereby for and in consideration of the transfer of the lease in question to the defendant, the obligors in the bond became sureties for the punctual payment of the rent and the performance of the covenants in the agreement mentioned.
    A motion to dismiss the complaint was made upon the ground that no valid lease or consent to the assignment had been shown, that the assignment established no privity of contract between plaintiff and defendant, which was denied, and exception taken. The case was then submitted to the jury under the charge of the learned court to the effect that if the jury believed that the comptroller at the time of the assignment of the lease made an agreement that the rent should be reduced from $5,000 to $3,000 the defendant was entitled to a verdict.
    The jury having returned a verdict for the plaintiff from the judgment thereupon entered, and from an order denying a.motion for a new trial, this appeal is taken.

      William C. Toull, of counsel for def’t and app’lt; John J. lownsend, Jr., of counsel for pl’ffs and resp’ts.
   Van Brunt, P. J.

The grounds upon which the appellant seeks a reversal herein seem to be as follows:

First. That no valid lease was proven from the plaintiffs to Darrow, and that it was error to refuse to allow the defendant to prove that the advertisements required by law were not made prior to the execution of the lease to Darrow.

Second. That the defendant did not go into possession of the pier under the léase to Darrow, or as assignee of that lease.

Third. That even if the defendant had as assignee of Darrow entered into possession of the premises, still the assignment from Darrow to the defendant created no privity of contract between the defendant and plaintiff, and

Fourth. That the verdict was against the evidence, the defendant’s testimony as to the agreement with the comptroller being uncontradicted.

The defendant concedes that if the lease was simply ultra vires, the same having become an executed contract, the fact that it was ultra vires would be no defense; but claims however that although the lease was not ultra vires the plaintiffs, yet because all the requirements of the statute in respect to the manner of execution of leases were not complied with, the lease was void and illegal, and no recovery could be had thereon, even though the other party may have received all the benefits therefrom.

In other words, if the corporation having no power at all to make the lease, had made one in form, a recovery could be had thereon when it becomes an executed contract, but having the power no recovery can be had because a strict compliance with the procedure provided by statute has not been shown, even though the contract has become an executed contract.

If this contention is true, then the greater the violation of the law in the attempted making of a contract the greater the power to enforce.

The authorities cited, do not sustain this proposition.

In the cases of The New York Trust and Loan Company v. Kelmer (12 Hun, 35); Pratt v. Eaton (18 id., 293); Madison Avenue Baptist Church v. Oliver Street Baptist Church (73 N. Y., 82); the decisions were based upon the fact that the transactions forming the basis of the actions were expressly forbidden by the Laws of the state.

The court says in the latter case, that corporations may incur obligations by contract ultra vires. But contracts which they are prohibited from making whether executory or executed, cannot be held valid.”

“ They may sometimes be estopped from asserting the invalidity of such contracts, and thus be practically bound by them; but that is not because the contracts are valid, but because it would be a fraud upon the other party to assert their invalidity.”

There is thus made a broad distinction between a contract which is prohibited, and one which is ultra vires, or merely irregular because the preliminary statutory regulations have not been complied with, and one expressly prohibited by statute.

It may be true that all the statutory requirements may not have been complied with in the making of the lease at bar, yet the act of making the lease not being prohibited by statute, and the defendant having enjoyed all the benefits of the lease, he is now prohibited from raising the defense of irregularity under the rule established by the cases cited by the defendant.

The claim that the defendant did not go into possession of the pier under the lease to Harrow, or as assignee of that lease, is disposed of by the pleadings and the verdict of the jury.

The pleadings admit that the defendant went into' the possession of the pier, and the verdict of the jury was that there was no agreement made by the comptroller at the time of the assignment, that the rent should be reduced from $5,000 to $3,000, and this verdict was not against the evidence in the case. It is true that there was no oral testimony contradicting the story of the defendant, but the documentary evidence seems to be inconsistent with the existence of such an agreement.

The bond of the sureties executed upon behalf of the defendant, the receipts given after the alleged agreement, all for the full rent, containing, however, an allowance by the comptroller, and last but not least, the ground upon which the protest was based at the time full rent was demanded, such ground being, not that the city had agreed to take less, but that less should be paid because of the condition of the pier.

These circumstances fully justified the jury in coming to the conclusion that the defendant was mistaken in supposing that any agreement reducing the rent was entered into between the defendant and the comptroller.

It is, however, claimed that there was no privity of contract between the defendant and the plaintiff arising out of the assignment of the lease by Darrow to the defendant, the right to collect wharfage being simply an incorporeal hereditament. It is necessary to determine this question in this case, because an express contract can be deduced from the evidence.

That the defendant agreed to pay the rent, is evidenced by the fact of his having given security to do so and by the fact that he has paid such rent for years, and this evidence is more than sufficient to establish prima facie a contract between the defendant and the plaintiffs. Such contract being established, it is entirely immaterial whether or not the assignment created any privity of contract.

It is true that some of the evidence was not introduced until after a motion to dismiss upon this ground had been made and denied, but the rule is well established that even if a ground of dismissal is well taken at the time the motion is made and denied, yet if subsequent evidence removes such ground, the exception taken is not available.

Upon the whole case, therefore, it does not appear that any error has been committed, and the judgment must be affirmed, with costs.

Daniels and Bartlett, JJ., concur.


text:
    Henry D. Lapaugh, App’lt, v. James Wilson, Adm’r, etc., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 2, 1887.)

    1. Judgment-roll—Amendment of.
    On an exporte application by the attorney, whose affidavits do not show his authority so to act, the court has no power to allow the judgment-roll to be amended, and annexed and filed with it an affidavit of the genuineness of certain signatures, proving the admission of the service of the summons.
    2. Attorney—Termination of authority.
    The death of a party terminates the authority of the attorney so to act.
    Appeal by John Townshend from an order denying a motion to vacate an ex parte order allowing proof to be supplied to a judgment-roll of the service of the summons in the action.

      John Townshend, in person; John Andrews, for resp’t.
   Daniels, J.

The action was commenced in September, 1852; a judgment by default was taken in it on the 20th or October, 1852. By the judgment-roll admission appeared to have been endorsed on the summons, and signed by James Wilson, administrator, and Sarah J. Finley, administratrix, - admitting service of the summons to be made upon them on the 18th of September, 1852; but in the record no proof was made that these names were subscribed by the defendants in the action. To supply this proof an application without notice was made to the court by John Andrews, the attorney in the suit, on the Jth of January, 1884. And on this application an order was entered allowing him to annex and file with the judgment-roll an affidavit of the genuineness of these signatures. And under this order such an affidavit was filed and made a part of the judgment-roll. The appellant claims to have acquired interests in property which were liable to be injuriously affected by this amendment of the judgment-roll, which was allowed to be made as of the day on which the judgment was entered, and to avoid that he moved on notice for an order vacating the ex parte order, and from the order denying that motion this appeal has been taken.

At the time when the application was made for the ex parte order, the title to certain real estate in form affected by the lien of the judgment, had come in contest in the courts, and the order to amend the roll was obtained to sustain the title claimed adversely to that of the appellant. Before the application was made for the ex parte order the plaintiff had departed this life, and that, without reference to the long lapse of time between the entry of the judgment and the making of the application, terminated the authority of the attorney. He had, after that, no legal power to represent him in this application, as he did in applying for and obtaining the ex parte order. This subject was considered, and the principle mentioned was supported by the decision made in Putnam v. Van Buren (7 How., 31), and in Austin v. Monroe (4 Lansing, 67), and Amore v. La Mothe (5 Abb. N. C., 146), where it was held to be the law that the decease of the client necessarily terminates the authority of the attorney.

Besides that, he did not profess in his affidavits to be authorized by any person to make the application, but made it upon the statement that he was the attorney for the plaintiff in the action, not that he still continued "to be at the time when the application was made. That he could not state to be the fact, inasmuch as the plaintiff had previously departed this life:

As the application was supported to vacate the order, it accordingly should have been granted, for, on the motion of the attorney, the court had no power to allow this defect in the judgment roll to be applied. The order should be reversed, with the usual costs and disbursements, and an order entered vacating the ex parte order.

Bartlett, J., concurs.


text:
    In the Matter of the Petition of Francis Willard Brewer, that his Accountings as Trustee be passed and for other Relief.

      (Supreme Court, General Term, First Department,

      Filed March 2, 1887.)

    1. Trustees—Married woman’s act—Laws 1849, chap. 875, § 3—Applica-tion TO THE COURT FOR DIRECTION, WHEN PROPER.
    A deed conveying land to one to be held in trust by him and to collect the rents, profits, etc., for the benefit of a married woman during her life and to convey the premises to such persons as she may direct by her will or in case of intestacy a failure of appointment upon the death of the beneficiary to her heirs-at-law is a trust deed under Laws 1849, chapter 375, section 3. The authority to make a conveyance to her on her petition and the certificate of the judge is delegated wholly and exclusively to the trustee, and it is for him to determine whether or not he would make the conveyance. He is not bound to assign any reason for his refusal. It might be entirely arbitrary, but when made it is conclusive upon the beneficiary. The law does not permit a trustee to institute proceedings in equity—to ask the advice or direction of the court, where the power had been wholly and plainly confided to him and rests exclusively in his direction as to what he should do. The rule is contrary in cases of doubt as to what the law is and what his conduct ought to be under it. In such a case the trustee is entitled to instruction and direction from the court.
    3. Same—Action of ejectment—Duty of trustee.
    A trustee vested with authority to allow or not, as he sees fit, the beneficiary to occupy the premises for his benefit, may possess himself of the same because the beneficiary allows taxes to remain unpaid or for any other reason. If the benfieiary refuse to surrender the possession of the property, his remedy for its recovery is by an action of ejectment. The law expects the trustee to exercise his judgment, intelligence and experience for the benefit of the estate and to protect it from useless and unnec- • essary legal proceedings and expense.
    Appeal by Mary Elizabeth Penniman from an order confirming the report of a referee and containing further directions concerning the administration of a trust in real estate, and from an order directing a reference to take proof of and report the expenses incurred in the proceeding which resulted in the first order.

      Joseph H. Choate and Jesse K. Furlong, for app’lt; W. H. L.' Lee, for petitioner and resp’t.
   Daniels, J.

The appellant is the daughter of the late Gardner Brewer. She intermarried with George H. Penniman, the son of James F. Penniman, deceased. He conveyed to Gardner Brewer a lot of land with a dwelling house thereon known as 536 Fifth avenue, in trust for the support and maintenance of the appellant during her fife. While this trustee was living she was permitted to occupy the premises with her husband and children, and in that manner to enjoy the benefit and advantage of the trust estate. At his decease he left a will appointing the petitioner, who was his nephew, the trustee of the trust created in this estate. That appointment was made pursuant to authority provided for that purpose in the trust deed, and it was afterwards ratified and confirmed upon an application to the court, and the petitioner afterwards permitted the beneficiary to occupy and enjoy the property as that had been done by her during the lifetime of her father. This use and occupancy of the property continued to the month of January, 1884, when the petition was presented which was the foundation of this proceeding. By this petition the trustee asked for the passing of his accounts and for instructions as to what it was proper for him to do in the management of the trust, and as to his duty concerning the possession of the trust estate, and for other relief. The petition was answered by the beneficiary, and a reference was ordered to a referee to take proof concerning the allegations contained in the petition, and to report as to what should be done upon the petitioner’s application. Proof at very considerable length was taken before the referee under this order, and a report made by him, with a statement of the facts he deemed to have been proved, upon which the order was made from which the first appeal was brought.

On the hearing before the referee, as well as before the court, it was insisted in behalf of the beneficiary that upon the facts appearing by the evidence the petitioner had no ground for his application. That, however, was overruled, and the same objections have been urged to support the appeal. And as to the first part of the petitioner’s applications the objections were well founded; for, as he had paid out nothing in the administration of his trust and had received none of the proceeds of the property, there was no foundation for any accounting between himself and the beneficiary. The application accordingly resolved itself into one for the advice and direction of the court as to what he should do with the trust estate, and whether he should convey it over to the beneficiary under a certificate obtained by her from a justice of this court pursuant to section 2 of chapter 375 of the Laws of 1849. She had applied to him for such a conveyance, but he had not agreed to the propriety of the application, or consented in any form to the conveyance of the property to her. And as this statute was framed it was entirely and clearly optional with him whether he would comply with the certificate and request, even if the statute should be held to include a trust of this description, for the statute has imposed no duty or obligation upon the trustee, but it has merely permitted him tti convey the property when the case may be within the statute and the certificate of a justice of the court has been obtained. The language of the act is, that the trustee may convey to such married woman, by deed or otherwise, all or any portion of such property or the rents, issues or profit thereof, for her sole and separate use and benefit. It is as plainly permissive as language could well express its intention to be, and there was accordingly no reason or necessity for an application on his part to the court to know what his duty was in the premises. The statute provided for no such proceeding, but it delegated the authority wholly and exclusively to himself, and it was for him to determine whether he would malee the conveyance or not. He was not bound to assign any reason for his refusal. It might be entirely arbitrary, but when made it was conclusive upon the beneficiary. There was no cause, therefore, for him to ask the court what he should do under the circumstances presented, for it was not for the court to decide, but the decision was to be made wholly by himself. And the law does not permit a trustee to institute proceedings in equity to ask the advice or direction of the court where the power has been wholly and plainly confided to the trustee, and it rests exclusively in his discretion as to what he should or should not do. The rule, on the contrary, is that it is in cases of doubt as to what the law is, and what their conduct ought to be under it, that trustees are entitled to instruction and direction from the court. 2 Perry on Trusts (2d ed.), §§ 476, 928. There must be at least some obscurity or doubt in the case, which the trustee himself may not safely or correctly solve, to entitle him to apply to the court for directions. As much as that is required by this legal principle, and also by the cases of Petition of Baptist Church, etc., 51 N. H., 424; Methodist Episcopal Society v. Heirs of Harryman, 54 id., 444; 2 Pomeroy Eq. Jur., § 1064; Hill on Trustees (3d Am. ed.), 812, 813; Woodruffs. Cook, 47 Barb., 304, 310.

By the trust deed, the consideration for which was in a large part paid by the father of the beneficiary, the property was conveyed to the trustees to receive the rents, profits and income thereof, and apply the same, after paying all assessments, taxes, insurance and repairs upon said premises, to the use of Mary Elizabeth Penniman, wife of George H. Penniman, merchant, of the city of New York, during her natural life, or until the above described and granted premises shall be sold and conveyed, as hereinafter provided for, and upon the death of the said Mary Elizabeth Penniman, to grant and convey the said premises to such person or persons, and in such manner as she shall by her last will and testament, or appointment in the nature of a will executed in the presence of two or more witnesses, direct and appoint, and in default of such will or appointment, to grant and convey said premises, upon the death of the said Mary Elizabeth Penniman, to her heirs at law. And it was under this deed that the trust was to be administered. It was entirely plain in its directions and created a trust as that was provided for by the statute of this state. And by the trust so created the trustee was empowered and it was made his duty to receive the rents, profits and income of the estate and apply them, after paying assessments, taxes, insurance and repairs, to the use of the beneficiary during her natural fife, or until the premises should be sold and conveyed pursuant to authority contained after-wards in the deed for that purpose. There was no ambiguity as to the language describing the office, functions and authority of the trustee. And under the trust as it was created he could himself rent the property, receive and dispose of the rents as that was directed, or permit the beneficiary to enjoy such rents by having the occupancy and use of the property itself. Whether he would do the latter, however, was wholly optional on his part, as much so as it was under the statute before referred to, whether he would convey the property upon the certificate of the judge, and in that manner allow the beneficiary to enjoy its rents, issues and profits. If he did not elect to permit her to have the use and enjoyment of the property in this manner he had the unqualified authority to take possession of the property himself and rent it, and out of the rents administer and execute the trust. There was no' obscurity in the language employed for the creation of the trust, or to define the duties and authority of the trustee. And there was accordingly no ground for doubt and no necessity for applying to the court for directions to be given to him concerning the execution of the trust, but it was for himself, and not for the court, to decide what he would do with the property for the purpose of realizing and applying its proceeds in the execution of the trust. No case of doubt was presented and no occasion disclosed, creating the least necessity or propriety, for this application to be made to the court.

In justification of it, it was stated that the beneficiary had allowed the taxes to remain unpaid for the years 1880, 1881, 1883, and the Croton water rates for the year 1881, and that she had neglected and refused to pass over to him the receipts and vouchers which she had obtained upon preceding payments. But these facts created no necessity for the application made by him, for the trustee for any cause or without any cause, had the authority under the deed to possess himself of the property and administer the trust as that was directed in the deed. If he became dissatisfied with her possession and management of the property, he could at once dispossess her and take that management and control in has own hands. It was not requisite that he should have any advice or assistance from the court upon this subject, but it was for himself to decide under the circumstances what he would do, and to govern his action according to his conclusions. As to the vouchers received by the beneficiary for the payments made by her, there, seems to be no ground upon which he could legally claim the delivery. They were her vouchers for what she had paid to relieve the property from liens and charges, not what had been paid in any manner by the action or instrumentality of the trustee. And there seems, therefore, to be no reason why she should have been required to surrender these vouchers to the petitioner.

That his conduct in instituting this proceeding was unjustifiable, appears further from the fact stated in Ms petition that he had consulted and secured the advice of counsel. And upon so plain a case as this was in all its features there could be no risk or hazard whatever in even a timid trustee acting upon that advice so far as it followed the plain language of the statute, and that employed in the creation and declaration of the trust. And if it failed to follow that language then, as an intelligent, experienced man, the trustee himself was entirely competent to determine upon what he should do by consulting the deed itself and considering the language of the statute relating to her application to him for a conveyance of the title. This he appears to have done when he was applied to for a portion of the principal of another trust created by the will of the father of the beneficiary. This in like manner confided the propriety of complying with her request for a portion of the principal to the judgment of the trustee. And in the exercise of that judgment he declined very judiciously, as the facts are made to appear, to advance any portion of the capital of the trust to the beneficiary, or to invest a further amount of it in the speculative enterprise which she desired to join. There was no more difficulty in exercising his judgment and following its dictates in the one case than there was in the other, and no more reason to apply through the intervention of an expensive and complicated proceeding to the court for its advice or direction.

If the petitioner concluded to possess himself of the trust estate and administer the trust himself, either because the beneficiary had allowed the taxes and water rents to remain unpaid, or for any other reason, he was invested with the complete right to do so. And if she declined to surrender the possession of the property to him his remedy for its recovery was not by the petition presented to the court in this proceeding, but by an action of ejectment. For this object the petition was entirely abortive, and the facts proved upon the hearing before the referee, did not entitle the petitioner under the rule defining the jurisdiction of courts of equity in this respect, to institute and maintain this proceeding at the expense of this estate. For whatever expense may attend it, it was the expectation and purpose to charge that upon the rents and profits of this estate. And to make that charge effectual was the object of the second application made to the court and the order of reference entered in pursuance of it. The expenses attending the proceeding directly and indirectly are stated in an account accompanying the petition, amounting to the sum of $1,491.94 and that it is proposed shall now be charged upon and paid out of the rents and profits of this property. The expense has been incurred for no benefit whatever to the estate, or to the trustee himself, except possibly what he may have incurred to counsel for advice given to him concerning his authority over the trust estate and which does not specifically appear in this account. Whatever that may be will become the subject of a settlement hereafter to be made concerning his administration of the trust. It is not necessarily connected with this proceeding, the object of which is to charge the expenses of the useless investigation which has taken place upon the proceeds of this property. The law expects as the testator undoubtedly did, and the court in making this selection of a trustee, that he would exercise his judgment, intelligence and experience for the benefit of the estate and to protect it from useless and unnecessary legal proceedings and expenses. That was his duty, and whatever he might do in the discharge of that duty would be favorably considered by the courts.

But to allow a trustee to institute and carry on at a large expense what appeared to be unnecessary and useless proceedings, is more than the courts have been disposed to permit even in the great indulgence extended to persons acting in these capacities. The trustee may very well have become annoyed, and perhaps exasperated by the conduct and letters of the beneficiary, but at the same time he should not have permitted this feeling to have swayed or affected his judgment, or induced legal proceedings on his part for which there was neither necessity nor propriety. To a certain extent she may have been equally in fault with himself. She should not have permitted the taxes and water-rents to have run in arrear, but they should have been promptly paid as they matured. And whatever information the trustee desired to obtain from her and she was able to communicate should have been readily furnished to him, so that he could have seen at once the maimer in which the trust estate was being managed, and that it was safely preserved for the children who would become entitled to it in remainder. That she failed to give, and perhaps under all the circumstances, although the proceeding was not authorized, the best that can be done with it will be to modify the first order directing the referee’s report to be confirmed without costs to either party so far as it is declarative of his right of possession and sustains his refusal to convey the property to her, and reversing the order from which the second appeal has been taken, with costs.

Bartlett, J., concurs.


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    The Mayor, etc., Resp’ts, v. The Eighth Avenue Railroad Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 8, 1887.)

    Railroads—Eighth avenue horse car railroad—Payment oe license pee—Laws 1884, chap. 478, § 2.
    The passage of the act entitled, “Act to require the Eighth Avenue Railroad Company to extend its railroad route in the city of New York, and to regulate the use and operation of the railroad of said company.” Chapter 478, Laws 1884, providing for the use, maintenance and operation of its railroad, subject only to the provisions of the general railroad act of this state, etc., does not relieve the company, from the payment of the license fees due to the city under the original agreement, which was subquently, in all respects, ratified and confirmed by the legislature, by ■chapter 140, Laws of 1854. If such should be held to be the construction of tnis law, then it is unconstitutional, on the grounds, first, being a local act, it fails to express the subject of its enactment in its title, as required by section 16, article 3 of the constitution of the state; second, by reason of subdivision 1, section 10, article 1 of the constitution of the United States, which prohibits the states from passing any law impairing the obligation, of a contract.
    Appeal from a judgment recovered on the verdict of a. jury, and from an order denying a motion for a new trial.

      John M. Scribner, for app’lt; E. Henry Lacombe, for resp’ts.
   Daniels, J.

The verdict was directed by the court for license fees prescribed and charged for the running and use-of street cars on the defendant’s railroad in the city of New York,, and for interest thereon. Before the company was formed, an agreement was made between two of its promoters and others, with the city authorities by which liberty was given to the associates to construct and maintain a street railroad from Chambers street and West Broadway to the Harlem river. The road was first to be laid to a point at or near Fifty-first street, and after that to be continued to. the Harlem river, whenever required by the common council of the city. By the agreement which was then entered into the associates agreed to comply with the direction of the street commissioner and of the common council in the building of the railroad, the running of cars thereon, and in any other manner connected with the regulation of the railroad. And as a part of the terms upon which the agreement was made it was resolved that each of the passenger cars to be used on the road should be annually licensed by the mayor, and there should be paid annually for such license such sum as the common council might, afterwards determine. The railroad was in part constructed under this agreement after the incorporation of the defendant and it had secured the rights and privileges which, it provided for. And the common council by ordinance-prescribed a license fee of twenty-five dollars-annually for each one horse car, and fifty dollars annually for each of the other cars used and run by the company upon the railroad. These license fees were paid by the defendant until the year 1874, but after that it refused to make any further payments claiming to have been exonerated from the obligation, by section 2 of chapter 478 of the Laws of 1874. By this section it was declared that when the extension required by this act shall be completed, and put in operation, said company shall use, maintain and operate its railroad, during the term for which said company was incorporated, upon and along the several streets and avenues in the city of New York, upon and over which its railroad is now in use and operation, and upon and over such extension, subject only to the provisions of the general railroad act of this state, with its amendments, which shall be applicable to the railroad and extension hereby granted, except as herein provided.

The preceding section of the act required a change in the terminus of the road from that mentioned in the agreement under which the franchise had in form at least, been conceded by the authorities of the city. It was not very extended and may very well have been as it probably was prompted by the motion to improve the franchise and railway of the company. But because of this directed change and the language employed in the second section of the act, the defendant insists that it has become exonerated from the obligation mentioned in the agreement under which the railroad, as it was previously operated, had been constructed, from the payment of the license fees.

At the time when the agreement was made, the city did not possess the legal right to provide for the construction and operation of the railroad, but. by chapter 140 of the Laws of 1854, the agreement was ratified and confirmed by the legislature. At the time of the passage of the act the railway had in part been constructed, and where that had been done, it was provided by its third section, that the grants, licenses and resolutions previously referred to were thereby confirmed. And as this was one of the grants accompanied by resolutions within the language of the statute this confirmation included this agreement. From that time certainly the railroad company under the agreement and concessions made by the city, had the right to construct, maintain and operate its railroad. And the rights and privileges secured to it were in no manner abridged by the act of 1874, but so far as it was declaratory that right was maintained and continued. There was no reason arising out of the antecedent circumstances, or the change made by the act of 1874, for relieving the defendant from the payment of these license fees. Neither does its obligation to pay appear to have employed or engaged the attention of the legislature in the consideration or passage of the act of 1874. And it cannot fairly be inferred from the declaration that the company should use, maintain and operate its railroad during the term for which it had been incorporated, subject only to the provisions of the general railroad act of the state, with its amendments which was made applicable to the railroad and the extension at that time granted, that it was designed thereby to relieve the company from the payment of these license fees.

The theory of the act is that it had granted the right to construct an extension of the road to the company, and out of that grant there could be no reason for inferring that the legislature intended that the company should no longer pay the license fees to which it had become subjected under the agreement made with the city and confirmed by the act of 1854. The provisions of the general railroad act of the state, with their amendments, which were made applicable by the act of 1874 to this company, contained no enactment or direction whatever upon this subject, neither in the way of creating or of relieving street railway companies from these obligations. What the legislature seems to have intended by this section of the act was to subject the use and operation of the defendant’s road to the provisions of the general railroad law, and they relate to its management, the duties of the officers to report, etc., and are in no way in conflict with the duty’ to pay the license fees in this manner imposed upon the company. The act was probably framed and passed at the instance of the company itself, and the manner in which this section was drawn betrays at least a suspicion that it was designed by means of its obscurity to obtain an advantage over the city which could not be expected to be secured through clear and unambiguous terms. And that this provision was incorporated with the hope that through its application escape from this liability might be attained. And this suspicion is to some extent certainly confirmed by the immediate refusal of the company to pay the license fees accruing after the year in which this act became a law. But obscure and ambiguous language employed in this manner cannot, under well settled legal principles applicable to it, be so construed, for it is to be taken most strongly against the company to whom the right to make the extension was granted, and at whose instance the act was probably passed. Dermott v. State, 99 N. Y., 101.

Beyond that, this being a lqcal act, it was required by section 16 of art. 3 of the constitution of the state to express the subject of its enactment in its title. But the title to this act neither mentions nor refers to any subject indicating it to have been the "intention of the legislature to discharge the railroad company from the payment of the license fees. By its title it has been denominated an “act to require the Eighth Avenue Railroad Company to extend its railroad route in the city of New York, and to regulate the use and operation of the railroad of said company.”

If it had been intended through anything contained in the act to abrogate the right of the city to demand payment of these license fees after its passage, it is fair to assume that something either in the title, or the law itself, would leave clearly disclosed that intention. But nothing of that kind was either attempted or accomplished. What was done was to declare that the railroad company should be afterwards in the use and operation of its road subjected only to the provisions of the general law of the state with its amendments. And by that mere declaration it could not have been the design of the .legislature to relieve the company from the payment of the license fees. If such a design had existed it is to be expected that it would have been expressed either in the title or the act itself, in terms that could leave no reasonable ground whatever concerning the fact.

But if the act by any possibility could be so construed as to supersede the liability of the company to pay the license fees, it would be inoperative, for it had become hable to make such payments by the contract under which it acquired the right to construct and operate the principal part and residue of its road and over which its cars have been and are drawn and operated. It was one of the stipulations entered into and inducing this concession and from the time of its confirmation and ratification by the act of 1854 it has clearly been binding and effectual upon the railroad company. And after having become so, the legislature was prevented by the constitution of the United States, subd. 1 of section 10, of article 1 of which prohibits the states from passing any law impairing the obligation of a contract, from relieving the company of the obligation to perform this part of its contract. The case was rightly disposed of at the trial and both the judgment and the order should be affirmed.

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


text:
    Simon Goldsmith, Resp’t, v. Charles Glatz, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 2, 1887.)

    Pleading—Complaint—Demurrer—Colorable claim.
    Where the complaint shows that the defendant discharged the plaintiff for reasons known to he false and which if true necessarily worked an injury to the plaintiff, it is immaterial whether the words were or were not slanderous if they were false and calculated to and did work an injury to the plaintiff; they gave him a colorable claim which will he sufficient on demurrer.
    Appeal from judgment overruling defendant’s demurrer to plaintiffs’s complaint.

      Andrew Gilhooly, for app’lt; Charles H. Machín, for resp’t.
   Van Brunt, P. J.

The learned counsel for the appellant has shown undoubtedly great industry in coloring cases which in his opinion tended to support his theory of the case, but seems to have been strangely affected with blindness, otherwise he could not have made the confident assertions contained in his brief that many of the serious propositions contained in the opinion of the learned justice who passed upon this demurrer, were either sustained by no authority or were unwarranted, or have no legal meaning as every proposition to which these criticisms were attached was supported by adjudications of the court of appeals.

The learned justice in his opinion says that the claim need not be valid either in law or equity, though it must not be entirely without foundation.

The learned counsel for the appellant in his brief asserts that there is no foundation for this proposition in any previous decision, nor in any treatise.

In the case of White v. Hoyt (73 N. Y., 514), the court say in discussing the question of the validity of a promise to pay a doubtful claim “we cannot say that” the claim of the plaintiff “was entirely without foundation, so that it would not serve as a consideration for the promise alleged. It is not necessary to uphold a promise based upon the surrender or composition and compromise of a claim that it was a valid claim, one that could be enforced at law,” which seems to be a very plain authority in support of the proposition laid down by the learned justice.

The promise in the case at bar, the justice says, was founded upon a claim having at least a probable foundation.

The learned counsel finds this a misty and cloudy expression, and as the word doubtful is not used, it is characterized as unwarranted.

The learned justice seems again to be sustained in his view that there is more than one word which can be used in stating the proposition communicated by him by the case of White v. Hoyt (supra), in which the court say:

‘ ‘ The plaintiff would have had a colorable claim to his lien for a general balance, and it is not necessary to determine whether it would have been certainly sustained at law.”

“ Colorable claim” seems to be no less misty and cloudy than “claim founded upon a probable foundation.”

The learned Justice having said that the plaintiff’s claim had a color of right and justice, and that it had sufficient legal foundation to support the promise, the learned counsel asserts that the word “color,” as here used, has no legal meaning, and yet we find by the passage above stated that the court of appeals make use of the same expression in stating the same legal proposition, and we may infer that they must have supposed that the word in question had some legal meaning or it would not have been used.

But Mr. Chitty, in his work on Contracts, in discussing the very question involved in this appeal, seems to have fallen into the same looseness of language which is so severely criticised by the learned counsel for the appellant, when speaking of the propositions enunciated by the learned justice in the court below. Mr. Chitty says (Vol. 4, 45):

“And there can be no doubt that the resignation of a colorable claim conflicting with that of another person, and the settlement of a dispute between the parties, without suit, constitute a good consideration.”

It would therefore appear that the learned justice had very good authority for the use of this word, which has no legal meaning, as claimed by the counsel for the appellant.

The complaint was sufficiently certain to show that the defendant had discharged the plaintiff, assigning therefor a reason which he knew to be false, and which, if true, necessarily worked an injury to the plaintiff, because of the rules and regulations iff the association to which the defendant belonged, and to the members of which the plaintiff had to look for his future employment.

It is entirely immaterial whether the words were or were not slanderous, if they were false and calculated to work an injury to the plaintiff, and did work such injury^ in consequence of the peculiar situation of the parties in their business relations, they certainly gave the plaintiff a color-able claim for redress against the defendant.

Such facts are set out in the complaint, and by the demurrer are admitted to be true.

The judgment appealed from must be affirmed, with •costs.

Potter and Lawrence, JJ., concur.


author: Bartlett, J.

text:
    Joseph W. Hawxhurst, Appl’t, v. The Mayor, Aldermen and Commonalty of the City of New York, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 8, 1887.)

    1. Negligence—Liability of the city for negligence of a contractor—Notice.
    It is error to charge the jury that in order to fix upon the city the liability for the negligence of a contractor employed in repairing a bridge, that there must be notice, either expressed or implied, of the negligence. The rule requiring notice does not apply to such a case. Following Brusso v. City of Buffalo, 90 N. Y., 679.
    3. New York—City of—Duty to repair williams bridge—Laws 1880, chap. 163.
    By chapter 163, Laws of 1880, the duty of building and maintaining Williams bridge and keeping it in repair, is imposed upon the city and county of New York and the county of Westchester. The statute requires both municipalities to build, maintain and keep in repair the public bridges over that stream. The duty thus imposed relates to the whole of each structure, so far as the public are concerned, and carries with it the authority to do whatever is necessary to the proper discharge of that duty. Distinguishing Carpenter v. City of Cohoes, 81 N. Y., 21.
    Appeal from judgment upon a verdict in favor of the -defendants at circuit.

      W. S. Allerton, for app’lt; D. J. Dean, for resp’ts.
   Bartlett, J.

The plaintiff brought this action to recover damages for personal injuries sustained by falling into the Bronx River, on the Westchester side of that stream, at Williams Bridge, on the evening of December 24, 1881. By chapter 163 of the Laws of 1880, the duty of _ building _ and maintaining Williams Bridge and keeping it in repair is imposed upon the city and county of New York, and the county of Westchester. At the time of the accident the bridge was being rebuilt by a contractor under the employment of both municipalities. The plaintiff, who was ignorant of this fact, attempted to cross in the darkness and sustained the injuries for Which he seeks compensation in the present suit. The principal question litigated on the trial was whether or not a sufficient barrier existed to guard against the danger which was occasioned by the work of reconstruction. That the Westchester approach to the bridge was barricaded to some extent is undisputed, but as to what extent, the testimony is conflicting. The jury found a verdict for the defendant, and the only exceptions presented by this appeal relate to the charge of the court in respect to notice to the city of the negligence of the contractor in guarding the approach to the bridge.

At the request of counsel for the defendants the trial judge charged the jury that the city had- a right to presume in the absence of notice that the contractor had properly guarded the approach to the bridge, and was not liable, without either express or constructive notice, for the negligence of the contractor; and, also, that to hold the city liable in the absence of actual or express notice to the city authorities, it must appear that the neglect on the part of the contractor had continued for so long a period that the authorities could fairly be charged, under the circumstances, with notice of the condition of affairs.

The plaintiff contends that the charge in this respect was erroneous, and that, under the circumstances, disclosed in this case, no notice to the municipal corporation of the dangerous condition of the highway, by reason of the absence of sufficient guards, was necessary to establish the liability of the defendants. Unquestionably, it was the duty of the defendants, together with the county of Westchester, to maintain the bridge in a condition which should be safe for public traffic. The very nature of the improvement, which they undertook to make, involved danger to persons lawfully on the highway, who might approach the bridge at night and attempt to .cross it. In causing this improvement to be made, therefor, the city of New York and the county of Westchester were bound to see that proper safeguard's were provided while the work was going on, so as to afford reasonable protection to the public. It has repeatedly been held in this state that a municipal corporation is not relieved from its obligation in this respect because it has employed a contractor to do the work. Storrs v. City of Utica, 17 N. Y., 104; Dressell v. City of Kingston, 32 Hun, 533; Brusso v. City of Buffalo, 90 N. Y., 679. In the case last cited, which was an action on accomit of injuries sustained by falling into an excavation made at the instance of the public authorities in a city street, it was argued that, before the city could be made liable, it must be shown that it had notice of the dangerous condition of the street. The court of appeals held that the rule requiring notice did not apply to such a case, and it is urged here that the portion of the charge to which reference has been made is in direct conflict with this decision. We think it is. The defendants, however, endeavor to sustain the correctness of the charge in respect to notice, by referring to a number of cases which hold that, where sufficient barriers have .been placed about an excavation in a public street, the municipal corporation is not responsible, in the absence of notice, for the unlawful removal of such barriers by third persons. But there is no suggestion in the record in the case at bar that any portion of the barrier at Williams Bridge had thus been removed. Reliance is also placed upon a decision of the general term, in this department, in Reed v. The Mayor (31 Hun, 313), to the effect that an ordinance requiring the removal of snow and ice from sidewalks entitled the city to expect that • the duty would be performed by the owners or occupants of the adjacent property; and it is argued that the covenant of the contractor in this case, to place sufficient guards upon the roadway, defines his duty towards the city, just as the duty of the property owner was defined by the ordinance in regard to ice, so that the defendants could properly rely upon the expectation that the contract or would erect all requisite barriers. ' As to this argument, it is sufficient to say that although what purports to be a provision from the contract providing for the erection of proper guards by the contractor, is set out in the respondents’ brief, the contract itself nowhere appears in the record, and does not seem to have been offered in evidence. It is therefore unnecessary to pass upon the effect of such a covenant, even if the contract contains one.

The case was carefully and correctly tried, with the exception of the erroneous instructions which have been considered in respect to the necessity of notice of the absence of suitable barriers as a condition precedent to a recovery against the city. We are not able to say that error on so important a point may not have misled the jury. For this reason a new trial must be directed, unless the defendants are right in their assertion that they are relieved from all liability whatever, because the accident happened within the territorial limits of the county of Westchester, on a public highway whereon the city of New York had no authority to place barriers. The position of the city is that its obligation to erect barriers when they are necessary, is limited to the New York end of the bridge, while Westchester county alone can lawfully put them up at the extremity on the other side of the Bronx river. This position is not tenable. The statute requires both municipalities to build, maintain and keep in repair the public bridges over that stream. The duty thus imposed relates to the whole of each structure, so far as the public are concerned, and carries with it the authority to do whatever is necessary to the proper discharge of that duty. In a case like the present, the erection of a suitable barricade was essential, and both municipalities, or either, if the other neglected to act with it, might rightfully put up the barriers wherever they were needed to afford reasonable protection to the public.

Furthermore, the record leaves no doubt that such barrier as was erected in the present case, was put up by a contractor jointly employed by both. The case is not like that of Carpenter v. City of Cohoes (81 N. Y., 21), where the bridge belonged to the state, and the city was charged by law with no duty in respect to it. Even here it was held that the roadway which constituted the approach to the bridge was constructively a part of the bridge itself, and there is no reason why the Westchester approach to Williams Bridge should not be regarded in the same light, so far as the obligation to provide, suitable barriers is concerned. See also Hayes v. N. Y. C. and H. R. R. R. Co., 9 Hun, 63.

In Theall v. Yonkers (21 Hun, 265), the injury was sustained on the East Chester end of a bridge between East Chester and Yonkers, maintained by both the town and the city, and the court declared that, by reason of the place where the accident happened, the city was not liable. The expression of this opinion, however, does not seem to have been necessary to the decision; and, furthermore, it is apparently based. upon the view that under the general statute relating to bridges between towns (Laws 1841, chap. 225) the duty of each town to maintain the bridge does not extend beyond its own limits.

We construe the special statute applicable to this case differently.

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

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


text:
    Fannie Bean, Appl’t, v. George W. Carleton et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 8, 1887.)

    1. Evidence—Admission of paroi evidence to modify a written contract.
    Though the contract be in writing, yet if it clearly indicates an omission to state an important element of such an agreement, the omission may be supplied by oral testimony.

      2. Practice—Dismissal of complaint—Conflict of evidence.
    The case should be allowed to go to the jury even though there is a preponderance of evidence in favor of one of the parties.
    Appeal from judgment for defendants dismissing the complaint, and from order denying a motion for a new trial.

      Alfred B. Cruikshank, for app’lt; Edmund Coffin, Jr., for resp’ts.
   Bartlett, J.

The dismissal of the complaint at the close of the testimony on both sides, cannot be sustained on the ground that the evidence preponderated in favor of the defendants. The case should have' gone to the jury unless the written agreement between the parties relative to the publication of the plaintiff’s book was so clearly intended to express their whole contract as to preclude the the introduction of oral evidence to prove other stipulations not included within its terms. It is necessary, therefore, to inquire whether this paper shows upon its face an intent and design to express the entire agreement between the plaintiff and the defendants.

The contract bears date December 7, 1877, and relates to the publication, by G. W. Oarleton & Co., of a novel by Miss Fannie Bean, entitled “Doctor Mortimer’s Patient.” It provides that, at the commencement of the work, the author shall advance to the publishers $900, the receipt of which is acknowledged, and that “Carleton & Co. shall publish said book and repay to said Bean the said $900 as soon as the sale of the said book reaches 2,000 copies, but not pay any portion back until 2,000 are sold.” It furthermore provides that on all sold over and above the first 2,000 Oarleton & Go. shall pay Miss Bean, as copyright, the sum of twenty cents each; that editorial copies given away are to be exempt from copyright; that settlements and payments are to be made semi-annually on application; and finally that “said 2,000 copies are to be sold inside of one year from February 1, 1878, otherwise said advance of $900 is not to be refunded.” Then follow the signatures of the parties and a memorandum in these words: “0. & Co. agree to have 100 copies ready by January 20, 1878.”

The plaintiff brought her action, not upon this written contract, but upon an alleged oral agreement on the part of the defendants, made on or about the same date, forthwith to print, bind and publish 2,000 copies of her book and to place and keep all of them on sale'in New York and the other principal cities of the United States, and to promote the sale by all reasonable and usual means, according to the custom of first-class booksellers and publishers generally, and also to send out at least 100 copies to editors and proprietors of newspapers. For the breach of this contract she claimed damages in the sum of $2,500. The defendants pleaded the written contract as the only agreement into which they had entered and averred that they had duly performed it. Upon the trial the court received evidence tending to show an oral agreement as to matters not embraced in the written contract, but held that as to these matters the preponderance of proof was with the defendants and therefore dismissed the complaint.

An examination of the written contract clearly indicates an omission to state at least one important element of such an agreement. Nothing definite appears as to the time within which the publisher was to print the 2,000 copies of the author’s book mentioned therein, or as to the size of each edition, if more than one was contemplated, or the rapidity with which the editions were to follow one another. The plaintiff claims that the defendants agreed to print the 2,000 copies forthwith. The defendant Carleton testifies that he understood his firm were to print whatever they thought advisable for the first edition, in order to test the market and seé whether the book would sell, and when they had sold nearly all of that edition they were to print another, and so on. The written contract affords little or no light on this subject, and can hardly be said to give any more support to the statement of one party than to that of the other. Hence the writing does not purport to cover the whole contract and the omission may be supplied by oral testimony. See Eighmie v. Taylor, 98 N. Y., on pages 296; 297.

The trial court was right in admitting such testimony, but should have allowed the jury to pass upon it.

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

Brady and Daniels, JJ., concur.


text:
    John A. Balestier, Receiver, etc., Resp’t, v. The Metropolitan National Bank of New York et al., Appl’ts.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    1. Practice—Payment of money into court—Insolvency.
    A party will not be obliged, by reason of insolvency, to pay into court money in relation to which an action is pending.
    2. Attachment—Grounds for—Insolvency.
    The laws of this state do not authorize an attachment against the property of a resident debtor, simply by reason of his insolvency.
    Appeal from an order directing the defendant’s bank to pay 81,400 into court.

      Fisher A. Baker, for app’lts; William H. Secor, for resp’t.
   Bartlett, J.

The plaintiff, as receiver of the property and effects of Thomas C. Clark, sues the Metropolitan National Bank to recover $1,100, being a portion of $5,000 in possession of the bank, and alleged to be the property of the said Clark. The bank denies, by its answer, that the said sum of $5,000, or any part thereof, is his property, or was his property at the time of the beginning of the action, and alleges, on the contrary, that the money is its own. Upon an affidavit that the defendant bank is insolvent, which statement is denied in its behalf, the plaintiff has obtained an order at special term requiring the bank forthwith to pay into court the sum of $1,400 to the credit of this action, and to abide the event thereof. Of this amount, the sum of $1,100 appears to be on account of the plaintiff’s claim, and $300 for costs, interest and expenses.

We have been referred to no principle or authority upon which such an order can be sustained. Even assuming it to be true that the defendant bank is insolvent, the laws of this state do not authorize an attachment against the property of a resident debtor simply by reason of his insolvency, and the practical effect of this order is the same as that of an attachment. To sanction the practice of thus directing defendants to pay money into court, under the circumstances disclosed in this case, would be to introduce a new method of legal procedure into the jurisprudence of this state.

The order appealed from should be reversed, with costs and disbursements.

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


text:
    The Attorney General, App’lt, v. The Continental Life Insurance Company, Resp’t

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    Contracts—When contracts made for the benefit of third parties ARE ENFORCEABLE BY THEM.
    The rights and obligations under an agreement should be limited to the contracting parties, unless it appears to have been entered into in whole or in part for the benefit of the person or persons claiming to come under its stipulations. Where by the terms of an agreement one company assumes the liabilities of another, on condition that the parties having claims against the latter, which claims constitute the assumed liabilities, perform certain acts, the performance of these acts is necessary before the claimants can obtain the benefit of the original agreement.
    Motion for the reargument of appeals by John G. Simmons and others from orders denying their application for leave to file their claims with the receiver in this action, and declining to direct him to make payments thereon out of the assets of the Continental Life Insurance Company.

      Raphael J. Moses, Jr., for appl’ts; Edward H. Hobbs, for receiver.
   Daniels, J.

The applications of these claimants have already been fully considered on their appeals and determined against them, hut it has been urged in support of the motion for a reargument that a portion of the agreement between the Empire Mutual Life Insurance Company and the Continental Life Insurance Company relating to the policies of the applicants, was overlooked. But such was not the fact, for the agreement was considered, as it was designed to have been an agreement on the part of the Continental Life Insurance Company to re-insure the outstanding life insurance risks issued by the Empire Mutual Life Insurance Company and thereby to assume the payments thereof. And that was what the Continental Life Insurance Company agreed to do by the contract which has been made the foundation of this proceeding. The policies of the applicants were issued by the Empire Mutual Life Insurance Company, and they did not avail themselves of this right of re-insurance provided for by the agreement, but they elected to and continued to hold their policies as demands against the Empire Mutual Life Insurance Company which had issued them. And for that reason, and the additional circumstance that they had _ participated so far as that ■ could be done in the distribution of the assets of that company, it was held" that they should not now be permitted to present their claims against the assets of the Continental Life Insurance Company. It is true that by the agreement the latter company agreed to assume and guarantee the payment of all and singular the outstanding policies issued by the Empire Mutual Life Insurance Company, but this was to be done only by the re-insurance which it obligated itself to make. The agreement made by the Continental Company was, “to re-insure all risks insured by the pohcies of the Empire now outstanding and in force * * • * and to assume and guarantee the payment of all and singular such pohcies, upon the covenants, terms and conditions therein contained,” the design being to assume the liability of the Empire Company upon such policies, but this obligation was to be performed wholly by the means of reinsurances. That is still more evident from other portions of the agreement. As one of its inducements, it was stated that the Empire Company was desirous of reinsuring its outstanding life insurance risks. And it was further stated that “The Empire hereby agrees to pay for the reinsurance provided for in the first section of this contract the sum equal to the valuation of said policies at the rate of six per cent ” And also “to pay the amount ascertained to be the valuation of pohcies to be re-insured under the second section of this contract in the same manner,” as was provided in the preceding section. This was to be done by assigning, delivering and setting over to the Continental Company the loans, notes and deferred premiums of policy holders which were hens upon „the pohcies to be re-insured, so far as they would reach, to pay for such reinsurance. And by in hke manner assigning and delivering cash, bonds and mortgages, or other securities of a nature to be satisfactory to the Continental Company, for the balance not covered by such loans, notes and deferred premiums. "What the Continental Company was to do was referred to throughout the agreement as the re-insurance of the risks of the Empire Mutual Life Insurance Company, and it was by that re-insurance that it was intended it should assume and guarantee the payment of the pohcies of the Empire Mutual Life Insurance Company. This was the view taken of the agreement in the decision which has already been announced. And as the claimants did not elect to accept this re-insurance, but continued to hold their pohcies as obligations against, the Empire Mutual Life Insurance Company, it was considered that they sustained no such relation to the assets of the Continental Life Insurance Company as would entitle them to payment of any part of their claims out of such assets. And no good reason is perceived for doubting the correctness of this decision.

The agreement itself was between these two insurance companies. The Empire Mutual Life Insurance Company designed to discontinue its business, and to transfer its assets over to the Continental Life Insurance Company, which was to assume its outstanding policies by re-insuring their risks. This of course could be in no otherwise effected so as to relieve the Empire Mutual Insurance Company from its liability than by the persons holding its policies accepting their reinsurance from the continental Life Insurance Company. If the applicants had done.that then they would have been in a situation to present their claims against the receiver for payment out of the assets of the Continental Life Insurance Company, enhanced and increased as they then would be, by those of the Empire Mutual Life Insurance Company. But that the applicants elected not to do. They, on the contrary, continued to hold their policies as the obligations of the Empire Mutual Life Insurance Company, and out of the assets of that company, for which the same receiver had been appointed, they received payment upon their claims to the amount of about seventy-eight per cent.

The assets still remaining undistributed by the receiver are those only of the Continental Life Insurance Company, and out of them the receiver will be able to pay upon the demands existing against that company, from five to ten per cent further dividends. The holders of these demands have already received but twenty-three per cent of their claims, so that in no event can they possibly secure from the receiver more than thirty-three per cent. If the applicants therefore, should be permitted to maintain their claims as demands against the Continental Life Insurance Company, they would be allowed so far to diminish the payments its own creditors will otherwise .receive, while by the assertion of their demands as claims against the Empire Mutual Life Insurance Company, which they in fact were, they have prevented these creditors from participating in the assets of that company, which were to have been received by the Continental Life Insurance company as a part of the consideration for the stipulated reinsurance. This would be conspicuously unjust, and it was no part of ' the object, of the contract entered into to promote such injustice. It was as it was drawn and executed an agreement solely between the two Insurance companies, and what the Continental Life Insurance Company undertook to do was to relieve the Empire Mutual Life Insurance Company from liability upon its policies and to assume and guarantee their payment by re.-insuring all its risks. That wras the evident design of the agreement. And the stipula- ’ tians entered into were appropriate for the promotion of that end and of no other object. But if they could be more broadly construed, as the agreement was whoEy entered into for the benefit of the Empire Mutual Life insurance Company and to protect it from liability upon its policies, these applicants would be at liberty to avail themselves of its obligations in no other way than that which was contemplated and expressed, and that was by means of re-insurances. The authorities bearing upon the right of one party to avail himself of an agreement entered into exclusively between others were collected and considered in Edick v. Green (38 Hun, 202), and the result was declared to be that the rights and obligations under the agreement should be limited to the contracting parties, unless it appeared to have been entered into in whole or in part, for the benefit of the person, or persons, claiming to come in under its stipulations. This was also held to be the rule in Simson v. Brown, 68 N. Y., 355.

And whatever may be the construction which should be given to this agreement in other respects, and it was between these two companies, and not designed to create an obligation in favor of either of the applicants otherwise than by an actual contract of re-insurance, they cannot be considered entitled to its benefits as long as they have failed to accept such re-insurance, and asserted their rights unqualifiedly against the Empire Mutual Life Insurance Company and its assets in the hands of the receiver. It would be inequitable and unjust in the extreme, after exhausting those assets and preventing the creditors of the Continental Life Insurance Company from participating in them, as they would if the agreement had been carried out, to permit these claimants to diminish, by a participation in this final dividend, the small amount still remaining applicable to the claims of the creditors of the Continental Life Insurance Company. There is no principle governing this case requiring that injustice to be done, and the motion for the* reargument of these appeals should be denied, with costs.

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


author: Brady, J.

text:
    Thomas Harton, Resp’t, v. Abraham H. Carrick, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    1. Fraud—Evidence of—Representations—Insolvency
    The report of a mercantile agency as to the standing of a person, which report was based upon a conversation of one of its agents with the person, will not be evidence of fraudulent representations, when their report consists of the opinion of the agency and not of the interview itself. The omission of a debtor to disclose his insolvency, even if it is known to exist, is not of itself sufficient to avoid the sale on the ground of fraud. There must be an intent to obtain possession of goods without paying for them or the absence of any reasonable hope or expectation of being able to pay for them
    3. Practice—Setting aside the verdict.
    The preponderance of evidence should be such as to justify the conviction of a clear and palpable error on the part of the jury, to warrant the setting aside of a verdict.

      Appeal from order setting aside verdict in favor of defendant and granting a new trial.

      B. M. Morgan, for app’lt; James Dunne, for resp’t.
   Brady, J.

This was an action of claim and delivery founded upon alleged frauds by which the defendant Car-rick obtained from the plaintiff certain goods, wares and merchandise. The fraud seems to have been presented in two aspects for the consideration of the jury: First, upon the defendants various and fraudulent statements; and Secondly, upon the proposition that the purchase was made at a time when the defendant Garrick, was not in such a condition financially, that he had any reasonable right to expect he would be able to pay for the goods.

In reference to the first, the only evidence of representations is that given by the witness Dun, a reporter for the Mercantile Agency of R. G. Dun & Co., of this city, who called on Garrick on November 9th, 1883. and asked him if he could make any statement in reference to his financial condition, to which the response was given, that he could not, but would do so in January, when he took his annual inventory, whereupon the witness then said to him, “ Mr. Garrick, the trade would estimate your means at $15,000 to $20,000. Is that about right?” To which the defendant replied, “Yes, as near as I can get at it it is about right.” The salesman of the plaintiff made no inquiries of Garrick in reference to his responsibility, merely having taken the order which he solicited, Garrick having neither spoken to nor sought him for the purpose of making the purchase. The plaintiff, when the order for the goods came in, and prior to their delivery, sent to the agency already mentioned and received , a statement, the only material part of which bearing upon the question before us is as follows: “In the meantime he is thought worth $15,000 to $18,000, and will be sold his wants. ”

This statement it will be perceived was not of what_ he said or of what he thought, but what was thought of him, by whom does not appear; and it was not therefore calculated to excite confidence in his financial condition, but rather to excite suspicion. It would naturally suggest the inquiry by whom it was so thought, and demand further investigation. If it had recorded the interview as detailed by the witness it would indicate an acquiescence by the defendant Garrick in the estimate suggested, which might furnish some reason for extending the credit desired; It must be borne in mind that the defendant did not solicit the purchase and denied positively that he had made the statement, although he admitted that the witness Dun, might have-said in the conversation referred to, what the trade thought of him and rated him, but he denies positively that he told the witness that that was so (meaning the estimate) and refused to make any statement. He also stated positively that he intended to pay for the goods when he obtained them, and never thought anything of being insolvent when he bought the goods, expecting to continue (to use his own language) “right along in the business” and also stating that prior to the purchase he had regularly paid his merchandise debts as they became due.

Upon the testimony thus given, the question of the honesty of the purchase was submitted to the jury in both of the aspects considered, namely, the fraudulent representations and the dishonesty of the purchase. The jury found for the defendant, and the learned judge set aside the verdict upon the ground that it was against the weight of evidence. The preponderance of evidence should be such as to justify the conviction of a clear and palpable error on the part of the jury. This rule was conceded on the trial, and on the briefs submitted on the part of the respondent.

It conclusively appears that the plaintiff was not advised that the defendant, Garrick, made any statement in reference to the amount at which he was rated. There was nothing in the note found in the office of the agency which conveyed to him such intelligence. What was there thought does not appear to have been predicated of anything said by the defendant, Garrick, himself. The omission of a debt, or to disclose his insolvency, even if it is known to exist, is not of itself sufficient to avoid the sale on the ground of fraud. There must be an intent to obtain possession of goods without paying for them, or.the absence of any reasonable hope or expectation of being able to pay for them.

The issues involved in this action were peculiarly within the province of the jury, and a close consideration of the case has led us to the Conclusion that the verdict should'not have been- disturbed, and, therefore, that the order appealed from should be reversed with costs.

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