text:
    MARGARET DALEY, as Administratrix, etc., Respondent, v. BERNHARD SCHAAF and FRANK SCHAAF, Appellants.

      Negligence — liability of a master to a servant injured by the negligence of a fellow-servant — when the servant may rely upon the assurance of the master, that he is safe from all danger.

   Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

The intestate, Thomas Daley, was employed by the defendants on a building in course of construction in Canal street in the city of New York. He was in company with three others who were engaged to carry bricks from the street to their station on the first floor, and to deposit them on an elevator used to convey them to the fourth floor of the building, where the bricklayers were engaged. The machine or elevator was situate in a cavity called the well-hole, and which was designed ultimately to contain the stairway. The elevator was operated, it would seem, by means of an old fashioned drum and rope and by horse power, and there was some Claim upon the trial that it was defective, and some evidence given upon the subject. It appears from the evidence introduced by plaintiff, that the deceased went to his work as usual about seven o’clock on the morning of the accident, in company with one Conlon, Qilmartin and Feeney; that after working for about half an hour several bricks fell from above, when, as' the witness Conlon states, “ we sung out to them above to be careful.” Some time thereafter, Conlon and another of-the workmen undertook to lay two planks upon the beams over their heads, for the purpose, as Conlon stated, cf securing themselves. After one of the planks had been laid, and while Conlon was endeavoring to lay a second, one of the defendants interfered and ordered the men to desist, and the plank which Conlon was endeavoring to lay was taken back. The witness further testified: “ Mr. Schaaf (meaning the defendant) made us take it down; he said we did not need it, it was all secure above ; he said there was no danger.” Upon this the deceased and his companions continued their work, and shortly thereafter several bricks fell from the upper story, one of which struck .the deceased. There were no floors laid in the building, but the usual scaffolding or flooring was laid on the fourth floor of beams, surrounding the well-hole of an elevator which was used for hoisting hods of brick from the ground floor to the fourth floor, where they were taken by the hod-carriers at work and carried to the bricklayers, It furthermore appeared by the testimony of Conlon that at the time when the deceased was struck he was not under the place where it had; been contemplated to lay the planks. It was intended to lay the-planks on the side that the witness and Feeney were Working upon; the decedent’s duties were on the other side of the elevator, twelve or fourteen feet away, and lie was standing under the scaffolding, and in the safest place, when he was struck. No explanation was-attempted on,plaintiff’s part of how the bricks happened to fall, nor from whence they fell, except that it did clearly appear that none of the bricks fell through the well-hole or space in which the-elevator was run. ■

The uncontradicted evidence on the part of the defendants showed that a hod-carrier, a fellow servant of the deceased, on the-fourth floor, attempted to take a hod of bricks from the elevator whilst it was in motion, contrary to the express instruction of the-defendants; that this caused him to stagger, and that the bricks were thereby thrown upon the flooring or scaffolding, and a portion went over the platform, one of which fell on the decedent, causing-his death.

The court at General Term said: “The deceased was advised that all was secure above and that there was no danger, and continued, with the.others similarly employed, to do his duty. The defendant who spoke was the employer a¿nd the boss mason, and the deceased had a right to rely upon his superior knowledge of the condition of the building and the machine and its use, and to have regarded the falling of the brick, which prompted the, effort to protect himself with the others, as an accident not in any way connected with the use of the machine for the purpose for which it was employed The statement of the defendant was: e It is secure above- and there .is no danger.’

“ The principles enunciated in Marsh v. Chickering (25 Hun, 495), Laning v. New York Central Railroad, Company (49 N. Y., 521) and Hawley v. Northern Central Railway Company (82 N. Y., 372) are applicable and sustain the judgment entered in this case.

“ The question of contributory negligence was submitted to the jury herein under a proper charge, to which no exception was taken, and these authorities establish that, under circumstances kindred to those stated forming the gravamen of the plaintiff’s claim, the question of contributory negligeiice is one for the jury. In the cases of Hawley and Marsh (supra) there was a promise that the danger, - which was understood by the employe, would be removed by proper repairs. In the case of Hawley the court said :

“ ‘While the plaintiff knew that the road was somewhat out of repair and he incurred some danger in running his engine, it does not appear conclusively that he knew how-badly it was out of repair, or that the danger was imminent or very great; ’ and further : ‘We must assume that the officers of' the defendant, who had charge of the road and must have known its condition, deemed it safe, and the plaintiff had a right to rely somewhat upon their judgment.’ In that case the plaintiff was an engineer.

“ This case is stronger for the plaintiff than those referred to, because there was a danger which was to be removed and which was not done, and the workman continued, nevertheless, to do the work notwithstanding the hazard incurred. And in this case, although the danger manifested itself, yet after the risk had been exposed and the men were setting about to secure themselves, the employer required them to desist, and for the reason assigned by him, as we have seen, that all was secure above and there was no danger. It does not affect the rule that the injury was received at a place other than that at which the men attempted to put the protecting planks. It is impossible to say what other protection could have been used, or what other precautions taken, had it not been for the assurance that there was no danger. And it would be very extraordinary for the courts to declare, after an assurance given to an employe by the employer like that which was given to the deceased, that he should be held unaccountable if there was in fact danger and an injury was sustained in consequence without fault on the part of the employe. If there had been no such declaration made the rule to be applied to the facts might be very different. When there is apparent danger in the calling <jr employment, and notwithstanding the exhibition of it by tbe facts and circumstances the employer assures the employe that there is no danger, and an injury results, the most liberal rule that the employer can expect is to have the question of contributory negligence submitted to the jury, which was done in this case. They found against him, and thereby proclaimed that the deceased was not guilty of negligence in doing what he did. * * *

L. O. WaeJmer, for the appellants.

George H. Hart, for the respondent.

As already suggested, they had a right to rely upon the statement madé by the defendant, and more particularly as it was given at a time when they were engaged in the effort to make themselves more secure from the danger which seemed to threaten them; and as they were thus lulled into a sense of security by the statement of the defendant already mentioned, that everything was secure above and there was no danger. And it is to be noted here that the falling of the bricks, by which the intestate was killed, took place in about ten minutes after the declaration given by the defendant, which has been frequently referred to. It cannot avail the defendant either that'the falling of the .bricks was caused by the carelessness of a fellow-servant. They were engaged in different localities about the building, and a declaration that everything was secure above and there was no danger, would embrace not only the competency of the persons employed by whose negligence an accident might occur, but amounted in effect to a guarantee against such negligence.

Whatever may be the rules of law governing the relations of master and servant, strictly construed with reference to the adjudged cases, none of them have gone so far as to hold the master free from responsibility where the work undertaken is apparently dangerous, but as to which he gives assurances to his workmen that there is no danger. Under such circumstances he assumes the risk, and. not the workmen. If that is not the law, it ought to be.”

For these reasons the judgment should be affirmed.

Opinion by Brady, P. J.; Daniels, J., concurred.

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

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    MORGAN L. HARRIS, Respondent, v. ALFRED L. SIMONSON, and Others, Executors, etc., of SAMUEL WOOD, Deceased, Appellants.

      Lobbying — claims for services rendered in procuring the passage of laws — what must be shown before the court will allow them to be enforced,.

   Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury, and from ah order made at a Special Term denying a motion for a new trial.

The verdict was recovered for what was claimed to have been the value of personal services rendered by the plaintiff under the employment of Samuel Wood, the testator, in and about procuring the passage of an act of the legislature, known as chapter 176, Laws of 1875, for the incorporation of musical colleges, etc. It was not claimed that the plaintiff was employed by the defendant’s testator personally, but that he had been employed, under his authority, by the witness William Elmer.

The court at General Term said: “ Claims for services of the nature of those alleged to have been performed require to be carefully, cautiously, and minutely examined, in order to avoid the judicial sanction of demands arising out of the exercise.of improper and vicious influences over members of the legislature. Some portion of the services relied upon in support of the claim made consisted in direct appeals to individual members of the legislature. They were not of the character which has been sanctioned, permitting recoveries in cases of this nature, for they were not clearly made to appear, to consist of mere information or arguments tending to expedite the proper passage of the act. Such information and arguments aré more appropriately directed publicly to the committee, as such, having the bill in charge, or to the body considering the propriety of its enactments. The prevailing principles of law have been very cautiously adopted upon this subject, for the purpose of avoiding the effect of sanctioning direct or indirect influences brought to bear upon members of a legislative body, to secure the passage of an act required to be officially considered by them; and for that reason it has been held that ‘ legislators should act with a single eye to the true interest of the whole people, and courts of justice can give no countenance to the use of means which may subject them to be misled, by pertinacious importunity and indirect influences of interested and unscrupulous agents or solicitors; and - public policy and sound morality did therefore imperatively require that courts should put the stamp of their disapprobation on every act, and pronounce void every act, the ultimate or probable tendency of which would be to sully the purity or mislead the judgments of those to whom the high trust of legislation is confided.’ ' (Marshall v. Baltimore, etc., R. R. Co., 16 How. [U. S.], 314, 334-5; Rose v. Truax, 21 Barb., 361; Brown v. Brown, 34 id., 533; Mills v. Mills, 40 N. Y., 543.)

E. SeheneJc, for the appellants.

George Putnam Smith, for the respondent.

“ To warrant a recovery in such a case as this the evidence should be required to establish the fact, with reasonable clearness, that the services alleged-to have been performed were such as the law will sanction in aiding and promoting legislative action. It is not definitely intended to be held that the services for which the recovery was permitted were not of this description; but the evidence, as it was given, certainly affords room for suspicion that, to some extent at least, they were not such as the law will approve. "Without therefore determining this point, it is sufficient to say that because of the exclusion of the answers proposed to be obtained from the witness Elmer, and of the receipt given by him to Wood in his lifetime, the judgment and the order in the case should be reversed and a new trial ordered, with costs to the appellant to abide the event.”

Opinion by Daniels, J.; Brady, P. J., concurred.

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

Judgment and order reversed, new trial ordered, costs to appellants, to abide event.


author: Daniels, J.:

text:
    ERNEST GREENFIELD, Individually and as Trustee, Plaintiff, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Defendant.

      Attorney — lien of, on papers, for his fees — power of the court to compel the client to pay the amount due to him,.

    Appeal from an order of the Special Term overruling exceptions to 'the report of a referee, and ordering certain moneys to be paid over by the appellant’.
    The plaintiff and the Produce Bank, for and on whose behalf these actions were prosecuted, petitioned the court for an order substituting other attorneys in the place of their attorney, L. Liflin Kellogg, and for an order-that he turn over and deliver to the attorneys, so substituted in his place and stead, all of the papers in his hands pertaining to such actions.
    A dispute arose as to the amount of compensation Kellogg was entitled to for the services already performed by him. The petitioners having made and'filed a bond conditioned for the payment of any sum that should be found due him, the court, upon application of the petitioners, ordered that the question of the compensation which Kellogg was entitled to receive from the petitioners, or either of them, for the services rendered by him and the disbursements made, be referred to Henry H. Anderson, Esq., to hear and determine the same, and to report thereon as to what amount is due, and from which of the petitioners the amount should be paid. The court further, in substance, ordered that he surrender up and deliver all the papers in his hands pertaining to such actions, and that the other attorneys be substituted in his place.
    The referee so appointed, after hearing the parties and taking the testimony submitted by them, found, as a fact, that Kellogg was employed by the Produce Bank; that it agreed to pay him whatever his services were fairly and reasonably worth, and that such services were worth the sum of $8,727.22 ; that his disbursements amounted to the sum of fifty dollars and forty-four cents, making a total of $8,777.66, which sum should be paid to him by the Produce Bank.
    The Special Term overruled the exceptions filed to the referee’s report and confirmed it; it further ordered and adjudged that Kellogg should recover the amount so found due and owing by the referee from the Produce Bank, and that he have execution therefor.
    Upon the appeal' it was claimed that in such a proceeding as this it was not competent for the court to order the payment of money, and that a judgment for the payment of money be entered or docketed, and that an execution issue thereon, as had been done in and by the order appealed from.
    With reference to this question, the court at General -Term said-: “ In respect to the question whether the court had power to order the bank to pay over the money and to direct execution to issue as upon a judgment therefor, we think, under the circumstances, the power existed. The proceedings were commenced by petition filed on behalf of the bank. It was addressed to the equitable power of the court seeking to.compel an attorney to surrender the possession of papers, etc., in his hands, and upon which he had á lien for his compensation, and distinctly offering to pay to said attorney all sums and amounts to which he might in any proceedings be adjudged to be entitled for his professional services and disbursements. It was accompanied by a bond given for the purpose of obtaining an immediate delivery, without the delay incidentally necessary to ascertain such amount. The court directed the surrender of all the papers upon which the lien rested, and directed a reference to hear and determine the question of compensation, and a trial, formal in its character, was had- before such referee. On the coming in of the report and its confirmation the court undoubtedly had power to compel a compliance with its own order, by directing the payment of the money to the'attorney which had been ascertained to be his due, and might enforce that order, under General Rule 27 of the court, by the entry of a judgment and the issuing of an execution as directed by the order appealed from, or it might have proceeded to enforce the order by proceedings in the nature of contempt. It certainly is not prejudicial to the bank that the court adopted the milder form, and it was not necessary, we think, to require the attorney to proceed with the action upon the bond although that course might doubtless have been taken.”

      Strong <& Cadwallader, for Ernest Greenfield, the Produce Bank and others, appellants.

      George W. Van Slyck, for L. Liflin Kellogg, the respondent.
   Daniels, J.:

I agree to this opinion, and merely add an authority appearing to sustain the conclusion that a formal judgment and execution to carry into effect the final order made were proper. The facts are not the same, but the principle maintained seems to be broad enough, to include this as well as the case to which it has been applied. The authority referred to is that of Austin v. Rawdon (42 N.Y. 155), and it sanctions the application of the only adequate remedy for enforcing an order which the court seems to have had the undoubted power to make in the case.”

Opinion by Davis, P. J., and Daniels, J.; Brady, P. J., con-« curred with- Davis, P. J.

Order.affirmed, with ten dollars costs and disbursements.


text:
    William B. Brittingham, Apppellant, v. John W. Brittingham, Respondent.

   Order affirmed, with ten dollars costs and disbursements. Opinions by Davis, P. J., Brady and Daniels, JJ.


text:
    William R. Travers, Respondent, v. John McB. Davidson, Appellant.

   J udgment modified as directed in opinion. Opinion by Daniels, J.


text:
    Thomas A. R. Webster, Plaintiff in Error, v. The People of the State of New York, Defendants in Error.

   Judgment affirmed. Opinion by Daniels, J.


text:
    George W. Millar and William D. May, Respondents, v. Enoch W. Page, Appellant, Impleaded, etc.

   Order reversed, without costs. Opinion by Brady, J., and Davis, P. J.


text:
    In the Matter of Estate of Edmund Lyons, Deceased.

   Order affirmed, with ten dollars costs and disbursements. Opinion by Davis, P. J.


text:
    In the Matter of Albert Schnitzler.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Davis, P. J.


text:
    William Fullerton and others, Appellants, v. The National Burglar and Theft Insurance Company and others, Respondents.

   Judgment affirmed, without costs. _ Opinions by Brady, J., and Davis, P. J.


text:
    Nicholas Murray, Respondent, v. Theodore L. Minier, Appellant.

   Order reversed, with costs of appeal and of motion to abide event. Opinion by Davis, P. J.


text:
    Frederick Frelinghuysen, as Receiver, etc., Respondent, v. Theodore F. Baldwin, Appellant.

   Order reversed, with ten dollars costs and disbursements. Opinion by Daniels, J.


text:
    In the Matter of the Estate of Samuel J. Seaman, Deceased.

   Order affirmed, with ten dollars costs and disbursements. Opinion by Daniels, J.


text:
    The Manneck Manufacturing Company, Respondent, v. Emile A. J. Manneck, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Daniels, J.


text:
    David Beir, Respondent, v. Louis Ash and others, Appellants.

   Order reversed, with ten dollars costs and disbursements. Opinions by Daniels and Brady, JJ.


text:
    James E. Byrne, Respondent, v. The New York Brick and Cement Company, Appellant.

   Order reversed and motion denied, with ten dollars costs and disbursements. Opinion by Daniels, J..


text:
    Gustav Lauter, Respondent, v. Joseph L. Berg and others, Appellants.

   Order reversed, with ten' dollars costs and disbursements to abide event. Opinion by Brady, J.


text:
    The Irving National Bank, Respondent, v. Jay L. Adams, Appellant.

   Order affirmed, with ten dollars costs and disbursements. Opinion by Daniels, J.


text:
    The Mayor, Aldermen and Commonalty of the City of New York, Respondent, v. The Broadway and Seventh Avenue Railroad Company, Appellant.

   Judgment affirmed. Opinion by Daniels, J.


text:
    Pearce Barnes, as Receiver, etc., Respondent, v. Joseph D. Jones and others, Appellants.

   Order affirmed, with ten dollars costs and disbursements. Opinion by Daniels, J.


text:
    Edward Hincken, Executor, etc., Respondent, v. Edward D. James, Appellant, Impleaded, etc.

   Judgment reversed, so far as it directs judgment for deficiency, with costs to the appellant. Opinion by Davis, P. J.


text:
    John Murphy, Appellant, v. The People of the State of New York, Respondent.

   Judgment reversed, new trial ordered. Opinion by Davis, P. J.


text:
    Samuel Colville, Respondent, v. Thomas B. MacDonough, Appellant.

   Order affirmed, with ten dollars costs and disbursements. Opinion by Brady, J.


text:
    James Linden, Respondent, v. The Mayor, etc., of the City of New York, Appellants.

   Judgment reversed, new trial ordered, costs to appellant to. abide event. Opinion by Daniels, J.


text:
    In the Matter of Charles R. Purdy and Caroline S. Shannon, Executors, etc., of Ann Lohman, Deceased, Respondents, v. Orlando L. Stewart, Appellant.

   Order reversed, with ten dollars costs and disbursements, and without prejudice to further proceedings. Opinion by Davis, P. J.


text:
    Stafford P. Cruikshank, Respondent, v. Willett Bronson, Apellant.

   Order affirmed, with ten dollars costs and disbursements. Opinion by Daniels, J.


text:
    Henry R. Cassels and others, Respondents, v. Daniel C. Fisk and others, Appellants.

   Order affirmed, with ten dollars costs and disbursements. Opinion by Daniels, J.


text:
    The People of the State of New York, v. Pasquale Majone, Appellant.

   Judgment affirmed. Opinion by Daniels, J.


text:
    Daniel W. Arnold, Appellant, v. Isaac J. Oliver and others, Respondents.

   Order affirmed, with ten dollars costs and disbursements. Opinion by Daniels, J.


text:
    Edwin J. Dunning, Appellant, v. Peter Bowe, Respondent.

   Order affirmed, costs to abide the event. Opinion by Brady, J.


text:
    In the Matter of Ferdinand S. Hahn, an Attorney.
   Order entered disbarring respondent. Opinion by Brady, J.


text:
    George Chalmers, Appellant, v. Mary E. Strong, as Executrix of Latham Cornell Strong, Deceased, Respondent.

   Judgment reversed, new trial ordered, costs to abide event. Opinion by Brady, J.


text:
    John H. Bonn, Appellant, v. Ernest Steiger, Respondent.
   Judgment affirmed, with costs. Opinion by Davis, P. J.


text:
    Ezekiel T. Bell, Plaintiff, v. Edward L. Merrifield, Defendant.

   Ordered, that the plaintiff be at liberty to procure a resettlement of the case in the particulars mentioned in the affidavits upon which this notice is made, and that the case be afterwards reheard by the General Term upon payment by the appellant to the respondent of all the costs and disbursements of the respondent since the entry of judgment to be taxed, and also ten dollars costs of opposing motion. In ease of failure to pay such costs within the time provided by the rules, the motion depied, with ten dollars costs. Order to be settled by Mr. Justice Brady.


author: Westbrook, J.—

text:
    DANIEL McDERMOTT, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Negligence — duty of a mib'oad company to its lessees and the members of their families, while they are crossing its tracks in order to enter and leave their houses belonging to the company.

    The defendant, a railroad company, owned certain dwelling houses in the city of Albany, one of which it rented to its employe Patrick Carroll, who had occupied it for many years. There was no way of entering or leaving the houses except by passing across the tracks of the defendant’s road, and no particular way or place had been designated for so doing. On a dark night the plaintiff, who boarded with Carroll, left tbe house to go to a distant part of the city; he passed down on the south side of the track, until he reached a point where the walking became bad, when he attempted to cross the tracks, in order to reach a good walk upon their north side. While crossing he was struck by the corner of a tender which; it was alleged, was going to Albany backwards, without any cars and without displaying any light, or ringing its bell or sounding its whistle, or giving any warning of its approach.

      Held, that under the circumstances of the case the occupants had a right of Way across the tracks for the purpose of entering and leaving their houses, and that the defendant was bound to use reasonable care in running its trains over the place where the injury occurred.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe verdict of a jury, and from an order denying a motion for a new trial, made upon tlie minutes of the justice before whom the action was tried.

      Samuel Ha/nd, for the appellant.

      H. G. Moak, for the respondent.
   Westbrook, J.—

The appeal, which is from a judgment rendered upo'n a verdict recovered by the plaintiff against the defendant for personal injuries at the Albany Circuit of $5,500, presents this question : Did the defendant owe to the persqns occupying its dwellings as tenants, and to those making a part of their families, and who were compelled to use its tracks in egress and ingress from such dwellings, any active duty of care in the running of its trains ?

The defendant owned certain dwellings within the limits of the city of Albany, one of which was occupied by Patrick Carroll, and had been so occupied for sixteen, years. The plaintiff, William McDermott, was boarding with him at the time of the accident, and had been so boarding with him for four or five years. Carroll paid rent to the defendant, and both Carroll and McDermott had been in the employ of the defendant as track hands.

There was no way from the house in which Carroll and McDermott resided, except over the railroad track of the defendant, and no particular way had been pointed out as the way to be used.

On the night he was injured, the plaintiff started from Carroll’s house to see a brother who, though a resident of Oswego county, was then visiting a sister in Jefferson street, in the city of Albany. He passed, as he alleged, down on the south side of defendant’s railroad tracks until he reached a point where the walking became bad, when he, undertook to cross the defendant’s tracks, using all due care, in order to reach a good walk upon the other side. In crossing he was struck by the corner of a tender going to Albany.” His injuries were' very serious and permanent. The engine, the tender of which struck him, was backing towards Albany, and was drawing no cars. It was claimed that the night was dark; that the engine displayed no light, rang no bell and sounded no whistle, and gave no warning of its approach.

The charge was unexceptionable, as to the care which the plaintiff was bound to exercise, but it is claimed that the judge erred in charging, 1st. That as the defendant had built the house in which plaintiff boarded, and rented it to Carroll, and had also built and rented other houses at the same place; that these facts gave to the occupants of these houses a right of way, for ingress and egress from such houses, over its lands; that, as no particular way had been selected or pointed out by the defendant as the one to be used, the plaintiff could choose his way, but he was bound to exercise care and prudence in so doing and not expose himself to unnecessary danger. 2d. That the defendant was bound to use reasonable care in running its trains over the place where the injury occurred.

That the lessor of property owes to its lessee a right of way, for ingress or egress to and from the property hired, would seem to be too clear to admit of any doubt. While the defendant in this case could have pointed out a way to be used by the occupants of its dwelling, it is also clear that when it did not exercise that privilege it could not, after the occurrence of the accident, defeat a recovery by insisting that such ingress and egress was to be at a particular point never before claimed. Unless the defendant selected the way, each occupant would, as in fact was done, select that which was most convenient and safe to be used, and such selection was lawful and proper. Of the legal rights of the occupants of its dwellings, the defendant is presumed to have been informed, and therefore it knew, that at the point where the injury occurred there was liable to be a human being. Without any elaboration it seems to be clear that the defendant does owe to human beings, who it knows have a right to be, and are liable to be, upon its tracks when it is operating its trains, the duty of “ reasonable care.” To hold otherwise would be to decide that a party may be willfully careless in doing an act which he knows may put another in jeopardy. This, we think, has never been held, and the contrary principle was decided in Driscoll v. Newark and Nosendale Lime and Cement Company (37 N. Y., 637). That case holds that a party may be liable for a lawful act done apon his own property, if so done as to jeopard the safety of others whom he may have reason to believe are upon his premises at the time the act is done. That principle controls this case. The defendant was running trains where it knew persons might lawfully be, and it is just and humane to exact, not great or unusual, but reasonable care ” by it in the prosecution of its business at that point.

"We see no error in the charge as made, nor in refusing the requests to charge, and the judgment must be affirmed.

Present — Learned, P. J., Bookes and Westbrook, JJ.

Judgment and order affirmed, with costs.


author: Boaedman, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ALLEN BENEDICT, v. CHARLES M. DENNISON, WILLIAM L. BOSTWICK and WILLIAM J. MORGAN, Canal Appraisers, Respondents.

      Gertiorcm'i — writ of, cannot issue while an appeal is pending — Code of Civil Procedure, sec. 2122, sub. 2 — Claim against the State — only enforceable in the particular manner specified in the statute.

    The Canal Appraisers having denied a claim for damages made by the relator, on the ground that not having been filed within the time prescribed, it was barred by the statute, an appeal was taken by him to the Canal Board, as authorized by chapter 868 of 1829. Two days after such appeal was taken, a writ of certicrrari to review the action of the Canal Appraisers was procured. Held, that in any event the writ could not issue while the appeal taken by the relator was pending and undecided.
    That under subdivision 2 of section 2122 of the Code of Civil Procedure, the writ could not issue in any case, as the determination of the Canal Appraisers could be adequately reviewed by the appeal given by the act of 1829.

      Semble, that as the relator sought to recover damages from the State, caused by the use of his property for public purposes, it might well be doubted whether the damages could be recovered in any other way than that provided by the legislature; that is, by the action of the Canal Appraisers, as modified by an appeal to the Canal Board, the decision of which is declared to be final.
    Motion to compel the Canal Appraisers to make a return to a writ of cerüora/ri, theretofore is.sued to ¡the said Canal Appraisers, to review their decision denying a claim for damages made by the relator.

      Levi H. Brown, for the relator.

      Bradley Winslow, for the respondent.
   Boaedman, J.:

On the 23d of February, 1882, the Canal Appraisers of the State of New York made an award or decision, denying the relator the damages he claimed, upon the ground that the claim for such damages was barred by the statutes, it not having been filed within the time prescribed by law. It was further held and decided that such claim was not revived by virtue of the Laws of 1870.

From this decision an appeal was duly taken and perfected on the 20th day of June, 1882, to the Canal Board of the State of New York, under chapter 368, Laws of 1829. (3 B. S. [Edm. ed.], 147.) Two days after such appeal the present writ of certiorari was served upon Mr. Morgan, chairman of the Board of Canal Appraisers.'

The defendants now claim that the writ of certiorari was improperly issued for two reasons, viz.:

First. That the relator elected his remedy when he appealed to the Canal Board, and that the remedy by certiorari, if such remedy exists, cannot at the same time be employed.

Second. That the remedy by writ of certioran is not applicable to the present case.

Ye think the defendants are right in both positions. The appeal to the Canal Board was first taken and, at least, so long as that appeal is pending the writ of certiorari should not issue. (People ex rel. Van Allen v. Perry, 16 Hun, 461.) It is inconsistent with a proper administration of law, that two independant tribunals should at the same time have the power to dispose of a case on appeal or by review, with the possibility that the decisions might be in hostility to each other.

Again, the writ cannot issue under the Code (§ 2122 sub. 2), “ where the determination can be adequately reviewed by an appeal to a court or to some other body or officer.” An appeal is given in the present case to the Canal Board by chapter 368 of the Laws of 1829. Upon such appeal the Canal Board may reverse or modify, increase or diminish, the award of the Canal Appraisers, and it may grant a rehearing in the nature of a new trial before the Appraisers. (Id., and Laws 1849, chap. 352, § 4, as amended by chap. 836, Laws of 1866, § 8.) The utmost authority for an adequate review of the determination is there given. The plain language of the Code says the writ cannot be issued ” in such case. Such prohibition was intended by the revisers, as appears by their note to article 7, chapter 16 and note to section 1987 (now § 2122), made by the commissioners in their first draft of report. The commissioners say (p. 962): “ In order to confine the remedy by certiorari to the latter cases ” (where no appeal is given), “ and those where it is expressly conferred hy statute, it is only necessary to provide as we have done in section -1987; that a certiorari cannot issue except by special provision of law in any case where an adequate review can be obtained by appeal.” They also cite as illustrative of their action : Storm v. Odell (2 Wend., 287) and Easton v. Calendar (11 id., 90) ; see, also, In re Mount Morris Square (2 Hill, 14); People ex rel. Noble v. Comrs. of Pilots (37 Barb., 126).

The effort of the relator is to recover damages from the State of New York caused by the use of relator’s property for the public benefit. It may well be doubted whether damages,'may be recovered in any other way than is provided by the legislature, that is, by the action of the Canal Appraisers, as modified by an appeal to the Canal Board, which in its decision is declared to be final. The State has authorized itself to be made liable in no other way. It may not be sued or impleaded in court except by its own consent, and when in court it cannot be treated as an individual (People v. Denison, 59 How. 157; S. C., 84 N. Y., 272), nor subjected to the ordinary rules and practice of the courts except by virtue of legislative authority. It may well be doubted then, whether the courts can seize jurisdiction of such cases as this and decide against the State in the absence of special authority, simply because it may do so in the case of other and inferior courts or tribunals.

It will not be necessary to decide this point, since on the other ■grounds named we think this certiorari could not legally have been issued.

The motion to require the Canal Appraisers to make a return to said writ is therefore denied, with ten dollars costs against the relator personally.

Learned, P. J., and Bockes, J., concurred.

Motion to compel return denied, with ten dollars costs.


author: Learned, P. J.: Westbrook, J.

text:
    SIMEON SMITH, as Executor of the Last Will and Testament of MARGERY BURCH, Deceased, Plaintiff, v. WILLIAM D. BURCH, Defendant.

      Will — Construction of words “ ready money" in.

    Between January 14 and December 8, 1880, the defendant, pursuant to authority conferred upon him by his wife in 1879, collected the sum of $490.25, being the amount of a legacy which she had become entitled to receive in 1878. From some time prior to January 1, 1880, and up to the time of her death in September, 1881, the wife was incompetent to transact her ordinary business, and unfit to exercise any control over her property, by reason of unsoundness of mind. All the money received by the husband was, with other moneys belonging to him, expended in defraying household expenses and procuring nurses and medical attendance for his wife. In 1877, the wife made a will which contained, among others, the following provision: “I further give and bequeath to my beloved husband all the ready money I may have, either in bank or elsewhere, at my decease, before any of the foregoing legacies or bequests shall be paid.”
    In an action by the executor of the wife to recover the 'amount so collected and expended by the husband:

      Held, that it was not “ready money” in “bank or elsewhere,” within the meaning of those words as used in the will, and that the plaintiff was entitled to judgment. (Westbrook^ J., dissenting.)
    Controversy submitted upon an agreed statement of facts, in pursuance of section 1279 of the Code of Civil Procedure.
    The plaintiff, as the executor of the defendant’s wife, sought to recover certain moneys collected by the defendant, as the agent of his wife, for a legacy to which she had become entitled. The defendant claimed to be entitled to the amount so collected as “ ready money ” within the meaning of that term, as used in the following clause of the testatrix’s will: “I further give and bequeath to my beloved husband all the ready money I may have, either in bank or elsewhere, at my decease, before any of the foregoing legacies or bequests shall be paid.”
    Further facts are stated in the opinion of Westbrook, J.

      Smith Brothers, for the plaintiff.

      George B. JDmis, for the defendant.
   Learned, P. J.:

The only question is, what is the meaning of the words, all the ready money I may have either in bank or elsewhere- at my decease ? ” The words plainly include all bank deposits. (Parker v. Marchant, 1 Y. & C. Ch., 290.) They also include all cash, that is, specie and currency which the testatrix had at her death. Such money, either in the bank or in the possession of the testatrix, in the form of specie and currency, is the money which she had “ ready ” for use. And such, as I think, is the meaning of the words, “ ready money,” viz., the money kept on hand in bank or in the possession of the testatrix, and intended principally for her daily expenses and use.

Even the words, money of which I may die -possessed,” without the epithet “ ready, ” have been held to be limited to cash in the house, to money at bankers and to ready money at call! (Byrom v. Brandreth, Law R., 16 Eq., 475; see, also, Collins v. Collins, Law R., 12 Eq., 455.)

The matter in question arose in this way: The testatrix became entitled to a legacy in 1878. In 1879 she authorized her husband to collect it, which he'did prior to December 8, 1880. Before the time when he in fact collected any of the legacy the testatrix had become mentally incapable of transacting any business. The husband used this money, and other money of his own, in his household expenses and in medical attendance, etc., for the testatrix. None of the money remained on hand at her death. She made her will in 1877 and died in 1881.

Thus the legacy was not ready money, or money at all, when she made her will. If it remained uninvested by her husband, or was. used by him in his household, and other expenses after it had been received, this was not by her consent, as she was incapable of acting. Had she been capable of acting, and had she then allowed the money to lie in her husband’s possession, using it from time to time as “ ready money,” there would have been more force in the argument that her actions had showed that this ought to pass by the bequest. But no argument can be drawn from the use made by the husband of which she was not cognizant. "We have then simply the case of a legacy collected by an agent and never paid over. I do not think that that is “ ready money.” It is bnt a debt for money collected in a fiduciary capacity.

And X think the plaintiff should have judgment.

Westbrook, J.

(dissenting):

This is an action submitted to the court upon an agreed case. The question to be determined is, whether a sum of money which the plaintiff claims the defendant owed to his wife (Margery Burch) at the time of her death was or was not bequeathed to him by the will of such deceased wife ? The facts are as follows:

The clause in the will upon which the controversy arises reads thus: “ I further give and bequeath to my beloved husband all the ready money I may have, either in bank or elsewhere, at my decease, before any of the foregoing legacies or bequests shall be paid.”

In the year 1878 Margery Burch, the deceased wife, became entitled to a legacy of $450 by the will of Jane Stevenson- deceased. The estate was ample to pay the legacy, but there was a delay in its payment caused by the financial embaiTassment of George McChain, the executor. Mrs. Burch then authorized her husband, the defendant, “ to eolleet said sum of money, from said McChain, for her.”

Between the 14th of January 1880, and December eighth of the same year, the defendant collected said legacy from said McChain, for his wife, Mrs. Burch, the total amount collected being $490.25.

For some time prior to the 1st day of January, 1880, and up to the time of her death, September' 26, 1881, Mrs. Burch was incompetent to transact her ordinary business and unfit to exercise any control over her property, by reason of some bodily and mental infirmities and unsoundness of mind.

About as fast as said sum of money was collected by the defendant between the 14th of January, 1880, and the 8th of December, 1880, aforesaid, the same was used, with other moneys of the defendant,,in defraying his household expenses and in procuring nurses and medical attendance for his sick wife, so that upon her death, September 26, 1881, no portion of said money realized by the defendant from said McChain on said legacy due Mrs. Burch, was on hand, but the same had been paid oiit and disbursed as aforesaid, and the same has never been paid to Mrs. Burch by the defendant, nor to her representatives.

It is not pretended but wliat the plaintiff has ample funds in his hands with which to pay all debts existing against the estate of Margery Burch at her death, and the plaintiff makes no qlaim to ■said sum of $490.25, because of any deficiency of funds in his hands to pay said debts. On the other hand it is conceded that the 'defendant during all this time has been able to provide suitably for his family out of his-own property.”

The above are all the facts which the agreed case discloses to •enable the court to settle the controversy submitted. There is therefore no evidence whatever to show that there was any sum due to the deceased, other than this,' to which the phrase in the will, “ready money * * * in bank or elsewhere,” would be .applicable.

If the words “ready money,” had stood alone, and there had been no language in- the will defining their meaning, we should have no difficulty in interpreting them. They would then have referred only to such ready cash as was in the actual possession of the testatrix at the time of her death. But they do not stand alone, and are coupled with the words “ in bank or elsewhere,” so that we know-she intended to give to her husband not simply “ready money” — cash actually in her possession — but money which was subject to call by reason of its being “ in bank or elsewhere,” or in other words money deposited, and not loaned.

The money too, as is evident from the expression without attention being specially called to the point, bequeathed, was not only that which was deposited “ in bank,” but also that which was deposited “ elsewhere,” so that to carry out the evident intention of the bequest money must be found “ elsewhere ” than “ in bank ” to pass to the defendant. None other than that which was in the husband’s hands has been found. It seems, therefore, clear that the money ■due from the husband to the deceased passed by the will, because, 1st. It was not a loan, but was, as it had been collected “ from said McChain, for her,” subject to immediate call, like money in bank j and, 2d. As to carry out the bequest money must be found “ elsewhere ” than in “ bank,” and none other than this has been so found, this money must be that which the will styles and calls “ ready money * * * elsewhere ” than “ in bank.”

It is no answer to this argument that the defendant had actually expended the moneys in controversy for the benefit of the deceased at the time of her death. If the bank in which a deposit had been made had been, at the time of the death, unable to promptly make payment, that would not have altered the bequest. The will is to be interpreted by the legal status which the parties holding the money occupied to the deceased in regard thereto, and not by the ability of the party to reproduce the original money deposited, or even to meet a demand of immediate payment. If by the terms of the contract, between the deceased and the person holding the money, it was in his hands for her, then it passed under the will, not because it was pure and simple “ ready money ” — cash — on hand, but because it was money belonging to the testatrix at the time of her death in bank, or elsewhere.” It is not pretended that there was any “ ready money,” i. e., actual cash in the possession of the testatrix at the time of her death, nor was any, as such, actually bequeathed. The term ready money ” was used in no such sense, but referred, as already stated, to deposits “ in bank or elsewhere,” and such deposits passed by the will, and the ability of the party holding the deposit to make a prompt response, does not alter the language of the will.

As the money which the plaintiff seeks to obtain from the defendant, was not actually “ in ” the defendants hands at the time of the death of the testatrix, because he had expended it largely “ in procuring nurses and medical attendance for his sick wife,” and the same is not needed to pay debts, but in law is presumed to be still “ in ” his hands, both law and equity will be done by holding, that there is no sum of money owing by the defendant to the plaintiff, but that the-amount claimed was bequeathed to the former by the will.

For the reasons given defendant is entitled to judgment, with . costs.

Present — Learned, P. J., Bookes and Westbrook, JJ.

Judgment ordered for plaintiff.


author: Westbrook, J.:

text:
    In the Matter of the Application for Letters of Administration upon the Estate of THOMAS BORROWDALE, Deceased.

      Marriage of divorced wife during the lifetime of her husband — Sec. 6 of 2 JR. S., 139, declaring the effect of a ina/i'riage by one whose husband or wife has been absent and unheard from for five yeans, only applies where the relation of husband and wife still exists. ,
    Section 6 of 2 Revised Statutes, 139, providing that “if any person whose husband or wife shall have absented himself or herself for the space of five successive years, without being known to such person to be living during that time, shall marry during the lifetime of such absent husband or wife, the marriage shall be void only from the time that its nullity shall be pronounced by a court of competent authority ” has no application to the case of persons who having previously been husband and wife have been divorced, and have consequently .ceased to be such any longer.
    Where a husband has procured a judgment divorcing him from his wife and ' forbidding her to marry again, a marriage contracted by her, even under the circumstances prescribed in the statute, is void, and its invalidity may be asserted by the héirs-at-law and next of kin of the second husband after his death.
    Appeal from a decree of tlie surrogate of the county of Cortland, appointing Anna Borrowdale and James M. Smith administratrix and administrator of the estate of Thomas Borrowdale, deceased.

      0. IT. Kellogg and J. Coivrtney, Jr., for Anna Borrowdale, respondent.

      Duell c& Benedict, for Joseph Borrowdale, appellant.
   Westbrook, J.:

On July 29, 1881, the surrogate of Cortland county issued letters of administration upon the estate of Thomas Borrowdale, deceased, to Anna Borrowdale, as the widow of said Thomas Borrowdale, deceased, and refused them to Joseph Borrowdale, a brother of the deceased. Joseph appeals from such decree upon the ground that Anna was not the widow. There is no dispute as to the facts, and they are these :

In the year 1861, Anna Borrowdale, the alleged widow, was legally married to one Abraham Simmons, at Vernon Centre, in the State of New York. On July 25, 1866, by the order of this court a decree and judgment were entered in an action brought by said Abraham Simmons against his then wife, the said Anna, dissolving and annulling the marriage on account of the adultery of the wife, which judgment contained the usual order foi’bidding Anna to marry again during the lifetime of said Simmons.

Anna Borrowdale was married in this State to the deceased, Thomas Borrowdale, January 26, 1876. . Her former husbaud, Abraham Simmons, was then living, and was still living at the time' of the proceedings before the surrogate, and was examined as a witness thereon.

Anna testified that when she contracted the marriage with Borrowdale she believed Simmons dead, as she had not heard from him in seven years. The surrogate decided that as the marriage of Anna with the deceased Borrowdale was contracted in good faith, after an absence of Simmons for seven years unheard from, that the> marriage with Borrowdale was not void and could only be annulled during the lifetime of both the parties to said marriage, but cannot be assailed by his heirs-at-law after his decease.”

This decision was clearly wrong because the decree of divorce, and the statute (2 R. S. [Edm. ed.], 152, § 49; 3 R. S. [7 ed.], 2334-5; Code of Civil Procedure, § 1761) alike forbade the marriage of Anna with Borrowdale, until the actual death of her former husband. Even the right to remarry under certain circumstances by permission of the court granting the divorce, conferred by chapter 321 of the Laws of 1879, was not preserved under the Code. (Sec. 1761 of Code and Mr. Throop’s note.)

The provisions of the Revised Statutes (2 R. S. [Edm; ed.], 144-5 ; 3 R. S. [7th ed.], 2332), declaring that “ if any person whose husband' or wife, shall have absented himself or herself for the space of five-successive years, without being known to such person to be living during that time, shall marry during the lifetime of such absent husband or wife, the marriage shall be void only from the time that its nullity shall be pronounced by a court of competent authority,” has no application to this case. Simmons and Anna had ceased to be husband and wife, when the latter married Borrowdale, and the section quoted only applies in a case of absence of either “ husband or wife.” This is apparant from the language of the section, for the expression “ husband or wife ” is used twice therein, thus clearly indicating that its provisions only apply when that relationship exists.

The decree of the surrogate granting letters of administration to Anna, because she was the widow of the deceased was erroneous, and the refusal to grant them to J oseph Borrowdale, the brother of the deceased was also wrong.

The decree entered must be reversed with costs 'as against Anna, and the proceedings remitted to the surrogate of Cortland county with directions to issue the letters to the appellant Joseph Borrowdale.

Present — Learned, P. J., Bookes and Westbrook, JJ.

So ordered.


text:
    THE ÆTNA INSURANCE COMPANY, Respondent, v. JAMES M. SHULER, Appellant.

      Execution against the person — in what ease it may issue, when no order of a/rrest , has been previously granted— Code of Oivil Proeedu/re, sees. 549, 550, 1487.
    An execution can be issued against the person, without a previous order, of arrest, only in a case where the complaint must and does state a cause of action covered by section 549 of the Code of Oivil Procedure, and not in a case in which, while the complaint does show a cause for an arrest, such allegations are not necessary to the cause of action alleged, although the plaintiff would be entitled to an order of arrest upon showing, by affidavits, the facts extrinsic to the cause of action, as required by section 550.
    Appeal from an order made at a Special Term, denying a motion to vacate an execution issued against the person of the defendant.

      Z. S. Westbrook, for the appellant.

      A. Pard, for the respondent.
   Westbrook, J.:

The appellant appeals to this court from an order of - the Special Term, denying a motion to vacate an execution issued against his person, under which he was held in custody by the sheriff of Montgomery county.

There had been no order of arrest before judgment, and if the execution can be upheld, it must be upon the ground that it issued to enforce a judgment obtained in an action in which, to justify its issue, no previous order of arrest was necessary.

The cause of action stated in the complaint was, that the defendant, as the agent of the plaintiff at Amsterdam, N. Y., had by its authority and as its agent, during the month of January, 1881, received and collected for it, as premiums upon policies of insurance, the sum of seventy-three dollars and twenty-four cents, which he had failed to pay over to the plaintiff, and had appropriated to his own use.

Section 1487 of the Code of Civil Procedure provides that an execution against the person may issue “ 1. Where the plaintiff’s right to arrest the defendant depends upon the nature of the action. 2. In any other ease, where an order of arrest has been granted and exeeuted'in the action, and, if it was executed against the judgment-debtor, where it has not been vacated.”

Section 549 of the Code provides for those cases in wliich an order of arrest may.be made depending upon the cause of action as stated in the complaint. (See section and Throop’s note thereto.)

Among the causes of action therein specified is one for “ the wrongful taking, detention or conversion of personal property.” Section 550 of the Code specifies the cases in which the order of arrest issues upon facts not necessary to be averred in the complaint. (See that section and Mr. Throop’s note thereto.)

Among the cases therein enumerated is “an action-to recover for money received * * * by an officer or agent of a corporation * * * in the course of, his employment.”

The execution was sustained at Special Term upon the ground that the cause of action stated in the complaint was one in trover, and therefore embraced in section 549 of the Code. This was a mistake. (Wood v. Henry, 40 N. Y., 124; Conaughty v. Nichols, 42 id., 83; Greenhree v. Rosenstock. 61 id., 583; and many others.) It was simply an action covered by the exact language of section 550, to wit, one action to recover moneys received by an agent of a corporation in the regular course of his employment. The fact that the plaintiff asked for a judgment as for conversion of the money, did not alter nor change the facts. It was still not an action of trover, wbicb. is only maintainable wben tbe party suing is wrongfully deprived of the possession of tbe particular chattel, wbicb is the subject of tbe controversy. When a person occupies towards a corporation, wbicb employs bim, tbe position which tbe present defendant is alleged to bave sustained towards tbe plaintiff, it is not bis duty to return the identical money collected, but to remit tbe same sum either according to specific instructions of tbe principal, or in tbe usual mode of making remittances. If, therefore, this action bad been tried according to tbe rules governing an action of trover, it would bave failed, because tbe action did not depend upon the fact that the agent had not remitted tbe identical money collected, and it could bave been defeated by showing that tbe same amount in money bad been tendered and refused. It is true that tbe plaintiff has averred in bis complaint facts, which if true, would bave entitled bim to an order of arrest before judgment, and an execution .against tbe person to enforce such judgment after its recovery, but all these facts were not necessarily a part of the complaint, as tbe cases referred to above decide. If that pleading bad simply alleged the reception of money by tbe defendant for tbe use of tbe plaintiff, which be bad failed to pay, tbe cause of action would bave been perfect, and his right to the order of arrest clear, upon proof of the facts by affidavit attending its collection. If tbe provisions of section 1487 of ■ tbe Coffe are borne in mind this case presents no difficulty. The execution against tbe person without a previous order of arrest, issues only in a case in wbicb tbe complaint must and does state a cause of action covered by section 549, and not in a case in wbicb a plaintiff may so complain as to show no cause for an arrest, and yet be entitled to one upon showing by affidavit facts extrinsic to tbe complaint as required by section 550.

As then the complaint in this action, whilst averring facts wbicb if true entitled tbe plaintiff to an order of arrest, did not necessarily contain them, and therefore tbe right to arrest tbe defendant ” did not depend upon the nature of tbe action, ” but upon facts wbicb could have been shown by affidavit, and were not necessary to be stated in tbe complaint; and also because such facts as averred establish no cause of action in trover, it follows, that tbe execution against ,tbe ■ person of tbe defendant, wbicb issued without a previous order of arrest, must be set aside, with ten dollars costs, and the order of the Special Term, which refused that relief must be reversed, with ten dollars costs and lawful disbursements.

Learned, P. J., concurred; Bocees, Jt, not acting.

Order reversed, with ten dollars costs and printing disbursements, and motion granted, with ten dollars costs.


author: "Westbrook, J.:

text:
    THE METROPOLITAN NATIONAL BANK OF NEW YORK, Respondent, v. JOHN H. HALE, Appellant, Impleaded, etc.
    ' Evidence — inspection of books kept by a witness — right of a pa/rty to examine them, in order to test the accuracy of the statements of the witness.

    In an action by tbe second indorser of a note against the makers, tbe defense was, that tbe note had been discounted for tbe payee by one McGeorge, at a usurious rate of interest. The plaintiff claimed that McGeorge was simply the broker of tbe defendants, and that the notes bad no inception in bis hands. McGeorge was called as a witness by tbe defendants and testified that be never discounted or owned tbe notes, and that be had sold them as tbe agent of tbe defendants, under an agreement by which be was to receive nine and one. quarter per cent as commission. His books were produced upon the trial, but tbe court refused to allow the defendants’ counsel to inspect them, or to compel tbe witness to examine them for the purpose of refreshing bis memory as to tbe transaction as to which be bad testified.

      Eeld, that this was error.
    That the defendants were entitled to know tbe.contents of the books, for tbe purpose of examining McGeorge as to them and ascertaining whether be would adhere to tbe evidence given by him, if be found it to be contradicted by tbe records which be himself bad made of tbe transaction.

      Semble, that as tbe books showed the real transaction between McGeorge and tbe defendants, they might be admitted as evidence in tbe action.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe verdict of a jury, and from an order denying a motion for a new trial, made upon tbe minutes of tbe justice before wbom tbe action was tried.

      Edgcvr A. Spencer, for tbe appellant.

      J. M. Carroll, for tbe respondent. ■
   "Westbrook, J.:

This action was brought upon four promissory notes made by J. H. Hale & Co., and payable to the order of John H. Bishop, at the “office of J. B. McGeorge, 20 Broad street, New York.”

Bishop did not defend, but Hale did. The cause was tried' at the Fulton Circuit, November 16, 1881, and the plaintiff had a' verdict for the amount of the four notes with interest, and from the judgment entered upon the verdict the defendant Hale appeals.

On the trial no defense was made to the note first given, but it was claimed as to the others that they had been discounted for the defendant by J. B. McGeorge at a usurious rate of interest, who. after he had discounted them sold them to the plaintiff.

The claim of the plaintiff was that McGeorge was simply the broker, or agent of the defendant in making the sale, and that the notes had had no inception in his hands.

McGeorge was called as a witness by the defendant, and testified that he had never been the owner of the notes, had never discounted them, but that he had acted simply as the defendant’s broker in selling them under an agreement that he “ should render an account of sales at' nine per cent, and one quarter of one per cent commission,”' which he had done.

The books of account of McGeorge, which he claimed showed the true history of the transactions between himself and the defendant, were in court, but the court refused the defendant’s counsel the inspection of such books, refused to direct the witness to inspect them for the purpose of refreshing his recollection of the transactions to which he had testified, and in fact excluded all inspection and all reference to their contents.

It is unnecessary to decide whether the books of account of McGeorge were or were not evidence in this action. Possibly, as they showed the real transaction between McGeorge and the defendant, they might have been. (Van Keuren v. Corkins, 66 N. Y., 77.) This, however, is not decided. It is clear, however, that in an action and defense of this character, the defendant was entitled to know what the books contained, if not for the purpose of making them evidence, then at least for the purpose of examining McGeorge in-regard to them, and thus to ascertain whether if the evidence he gave was contradicted by the records of the transactions kept by himself, he would still adhere to his, original statement that he acted simply as the broker of the defendant, and had never himself discounted the notes and purchased them. A party calling a witness, while forbidden to impeach him, may still show him to be mistaken. He is not bound to accept as unqualifiedly true the first answer which a witness gives, especially when such witness is against him in feeling and interest, as was the case in this instance; lie is not foreclosed from further inquiry, but may conduct the examination as he would a cross-examination.

It is said, however, that there is no proof that the books would have contradicted McGeorge. That is true, and it is also true that there was no evidence that they would not. The error consisted in stopping the inquiry. The defendant was compelled to accept McGeorge’s statement, and to be content with that. If the books had corroborated McGeorge, the examination would probably have ended; if they did not, it was clearly the right of the defendant to ask McGeorge to explain, and ascertain whether he would not modify the evidence he had given. From this he was foreclosed, and the mistake was in not permitting an examination, which might have thrown great light upon the transactions involved.

"We think there was error in the rulings to which we have referred,- and that a new trial should be granted with costs to abide event.

Learned, P. J., concurred in the result.

Present — Learned, P. J., Bocees and Westbrook, JJ.

Judgment and "order reversed, new trial granted, costs to abide event.


author: Learned, P. J. :

text:
    JOHN HILLER by ALMYRON HILLER, his Guardian, Respondent, v. THE VILLAGE OF SHARON SPRINGS, Appellant.

      Evidence — exhibition of the plaintiff’s injured limb to the jury in an action for damages — the condition of the limb at the time of the tidal may he proved — Liability of a village for neglect to repair the sidewalks therein — when it will he deemed to have ■ - accepted a sidewalk constructed by a pndvate person.

    In an action to recover damages for injuries to tlie plaintiff’s leg, alleged to have been occasioned by the defendant’s negligence, it is not error for the court to allow the plaintiff to'exhibit his leg to the jury.
    Evidence as to the condition of the leg at the time of the trial may also be given.
    Although, under the general act providing for the incorporation of villages (sub. 25, § 8, title 8, of chap. 291 of 1870), it is for the trustees to determine where, ' when and how wide’sidewalks shall be constructed, and whether they shall be ‘ paved, planked or flagged, and an individual cannot, by constructing a side- .■ walk in front of his premises, compel the trustees to accept it or keep it in repair; yet, where an individual voluntarily constructs a sidewalk, not merely . for his own benefit, but also for that of the public, the trustees may, by acquiescence in his act for a sufficient length of time, or by other acts, show their acceptance of the sidewalk, and thus become bound to keep it in repair, and render the villageTiable to anyone who may be injured by their failure so to do.
    No distinct act. of adoption or acceptance of, the sidewalk need be shown, nor any positive recognition of it.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried. The action was brought to recover damages alleged to have been sustained by the plaintiff by falling upon the sidewalk in one of the streets of the village of Sharon Springs, opposite to the residence of one Henry Voorhees.

      8. L. & F. M. Mayham, for the appellant.

      W. G. Lamont, for the respondent.
   Learned, P. J. :

The first objection of the defendants is that the court should not have permitted the plaintiff to exhibit to the jury this injured leg. To do this was no violation of the principle (as the defendant claims it was) that a jury must not decide a case on their private knowledge. That principle only excludes evidence which is not produced before them on the trial. But if the plaintiffs leg was injured, there is no more certain and unquestionable way of proving that fact to a jury, than by showing "them the leg itself. It is proper evidence. There is no objection to it merely because it may excite the sympathy of the jury.

So, too, there is no ground for the objection to the proof of the condition of the leg at the time' of the trial. In actions like this the damages to be given depend greatly on the permanence of the injury.

Another exception' is to the refusal to permit the defendant to prove that Voorhees, the owner, built the sidewalk at his own expense. It is not necessary to consider this, because the fact was afterwards abundantly proved by the testimony of Voorhees and was not disputed.

The exception that it was not shown that the place where the accident happened was within the corporate limits cannot be heard on this appeal. The evidence of Voorhees was enough to establish the fact in the absence of contradictory proof, and the whole trial proceeded on the assumption that the accident did occur within the corporate limits. The answer substantially admits this.

Whether or not the plaintiff was himself negligent, was in a very careful and judicious manner left to the jury to decide. There is no reason to review their decision.

Some questions were raised by the motion for a nonsuit, viz., that there was no proof of notice of the defect to the officers; that time enough had not elapsed to make a constructive notice; that there was no proof that the defendant constructed or directed to be constructed the sidewalk.

It is not claimed that the defendants had actual notice. But it is claimed that the imperfection in the sidewalk had existed long enough to authorize the jury to find constructive notice. This question was submitted to the jury. It depended partly on the testimony of Hutchinson, who lived next to the Voorhees property. He testified to seeing the hole the summer before the plaintiff was hurt. It is true he called that time the summer of 1878, and the accident was in January, 1878. But it was a question for the jury whether he was in error as to the year, or as to relative time. Others liad seen the hole before the accident. And we think that the court could not properly have withheld that question from the jury. •

It is strongly urged by the defendant, that it was under no liability in regard to this sidewalk, on the ground that it had never constructed the sidewalk, or directed its construction or assumed care of it.

This presents the most important of the questions in the case. Of course, as the defendant did not construct the plank sidewalk, it can be liable only for some negligence, that is, for some neglect of duty in respect thereto. The duty of the defendant in this respect depends on the general act. Chapter 291, Laws 1870, title 3, section 3, subdivision 25, authorizes the trustees to regulate and prescribe the width of sidewalks, to pave, flag or plank sidewalks. Section 4 authorizes them to compel the owners or occupants of lands, in front of which a sidewalk is to be made or repaired, to make such improvements, and. also authorizes the trustees to determine and prescribe the manner, the materials and the quality thereof.

These things, then, are in the discretion of the trustees. It is for them to determine how wide a sidewalk shall be, and how it is to be paved, planked or flagged. No action, therefore, lies against them merely for not paving, planking or flagging. (2 Dill. Mun. Corp., § 949 [753]; Saulsbury v. Ithaca, 31 Sup. Ct., N. Y. [24 Hun], 12; Hines v. Lockport, 50 N. Y., 236.)

Nor can the mere act of an individual, in putting down on a sidewalk plank or flagstones, compel the village to adopt as its own, such an improvement; otherwise the discretion vested in the trustees as to the width of sidewalks and the material of which they should be constructed might.be taken away.

On the other hand, however, it is the plain duty of the trustees to keep the roads in good repair. (Tit. 3, § 3, sub. 25.) And this must include the duty of keeping in repair the sidewalks as well ■ as the middle of the streets.

If an individual voluntarily puts down a sidewalk the village may, by acquiescence in the act for a sniBcient length of time, and by other acts, accept the sidewalk, and with it the village must take the obligation to. keep it in repair. In Saulsbury v. Ithaca, above cited, it was claimed to be the absolute duty of the village to build sidewalks wherever it ■ had streets. And this, it was held, was incorrect. Nor can.it be Said that whenever a street is opened in any part of a city or village, no matter how unfrequented, \i an occupant lays down stones or planks along the side of his property the city or village at once becomes liable to keep them in repair. In country roads there are usually no sidewalks; and evidently it must be left to the judgment of the municipal authorities to say where sidewalks are needed, and how wide they should be. But if an occupant has constructed a suitable sidewalk not for his own use merely, but for the public, and if, for many years, the public have used it, then the municipal authorities may be considered to have practically adopted it.

It must be a question whether, under the circumstance of each case, the city or village has, by lapse of time and by acquiescence, accepted the structure as its .own. (Requa v. Rochester, 45 N. Y., 134; Heacock v. Sherman, 14 Wend., 61; Dygert v. Schenck, 23 Wend., 450.) If it has so accepted it, then the same duty of keeping in repair exists as if the structure had been made by the direction of the city or village. An examination of the peculiar facts of the case last cited will show that, even if that question had been considered by the referee, he might have found that there had been no acceptance.

In applying the rule thus stated to the present case we have to see whether any question was properly raised by the defendant on the trial, in the ruling on which there was error. When the plaintiff rested, the defendant moved for a nonsnit on the ground (among others) that there was no proof that the defendant had in any way adopted, this., sidewalk. At the close the motion was renewed on the same grounds. No exception was taken to the charge. Now the evident view of the defendant was that there had been no distinct act of adoption or acceptance of this sidewalk, and no positive recognition of it. But as we have seen this is not necessary. And there was some evidence from which the, jury might have found that acquiescence in the structure, which would have made the defendant liable for negligence in failing to keep it in repair, after notice. If the defendant had desired to raise the question, the learned justice should have been asked to snbmit to the jury the question whether there had been, under the circumstances, such acquiescence that the defendant was to be held to have accepted the sidewalk. This was not done. ■ And, therefore, there was no error in the refusal to nonsuit or to grant a new trial.

Present — Learned, P. J., Bookes and Westbrook, JJ.

Judgment and order affirmed, with costs.


author: Learned, P. J.:

text:
    JACOB H. CLUTE, as Trustee of the Estate of JOHN GOULD, Deceased, Appellant, v. MARY L. GOULD and Others, Respondents.

      Commissions — when they are to be allowed on each of several distinct trusts — they are to be charged upon the income — Bight of a trustee to the taxable costs of an action brought by him — his right to receive a portion thereof from the attorney employed by him.

    A testator by Ms will, after providing for the payment of debts and making certain specific legacies, devised and bequeathed $30,000 to his executor in trust, to invest and collect the interest and income thereof, and pay over the same to the testator's widow so long as she lived unmarried'; he then directed his executor to divide all the rest and residue of his estate into five equal parts, and devised and bequeathed each one of said parts separately to his executor to be held in trust for one of the five children of the testator, as therein provided. He appointed one Savage guardian and trustee of Ms children, -and executor of his will. The testator died in 1874, and in April, 1878, Savage was removed for misconduct. April nineteenth the plaintiff was appointed trustee, and in June, 1878, he was appointed administrator with the will annexed. Upon an accounting by the plaintiff:

      Held, that the plaintiff was entitled to commissions as trustee upon each of the six distinct trusts held by him, even though there had been no actual division of the estate into separate funds.
    That the commissions upon the income received for and paid over to the widow, should be paid from it, and not from the general estate.
    That no commissions should be allowed upon principal paid in and reinvested.
    Several actions to foreclose mortgages belonging to the estate were brought by the trustees. In two of these the property was bought upon the sale by third persons, who paid the full amount due, including all costs. In another the property was bought in by the estate. In one of the two cases, first mentioned, the attorney for the trustee paid him $100, and in the other $200, from his costs. In the last case he paid him $100 therefrom. It was not shown that any bargain had been made between the trustee or his attorney, nor was it claimed that it was not. wise to foreclose the mortgages.

      Held, that the trustee was improperly chaiged. by the surrogate with the amounts paid in the two cases in which the costs were paid by strangers, but was properly charged with the amount of the payment made from the costs which were paid by the estate.
    Appeal from a portion of a decree made by tlie surrogate of Albany county, upon a voluntary intermediate accounting of tbe plaintiff, as trustee under the will cf John Gould, deceased.
    John Gould died in 1874, leaving a last will and testament, which was admitted to probate by the surrogate of Albany county, December 14, 1874. The testator, after making provision for the payment of debts and funeral expenses, and after a bequest of specific articles of personal property and of the sum of’$1,000 to the executor named in the will, and a further bequest of certain other ai’ticles of personal property to his five children, share and share alike, gave, devised and bequeathed to his executor the sum of $30,000, in trust, to invest the same on bond and mortgage and to pay the interest and income thereof to his widow, Mary L. Gould, one of the respondents. He directed his executor to divide the residue of his property, real and personal, over and above the said $30,000, into five equal parts, and devised and bequeathed each of said parts separately to his executor in trust to invest the same on bond arid mortgage, collect the interest and income of each portion, and out of the same to pay for the education and the proper and reasonable support and maintenance of the said five children, one portion being set apart for each until said children should arrive respectively at the age, in case of males, of twenty-one years, in case of females, of twenty-five years, and to invest for each child^ respectively whatever balance of interest and income might remain of each child’s portion, after paying for his support, education and maintenance, on bond and mortgage, and pay over the accumulations of such portion to such child after his arriving at the age aforesaid.
    The will named Edward Savage guardian and trustee of the children and their estates and executor of the will. Subsequently Savage was removed for misconduct, and on the 19th of April, 1878, the appellant was appointed trustee. Soon after, in June, he was appointed administrator with the will annexed, and the respondent, Mary L. Gould, was appointed general guardian.

      The questions raised by the appeal relate solely to the commissions and • compensation of the 'appellant,'as trustee and administrator, etc.

      Alma H..Tremmn, for the appellant.

      J. C. Winslow, for Mary L. Gould, general guardian, respondent.
   Learned, P. J.:

The first question is whether the trustee is. entitled to compute his commissions on each separate trust. The respondents insist that this is a case where the trust is inseparable from the executorship and that commissions can be given only in one capacity, and that too upon the aggregate.

Mr. Clute was appointed trustee by the Supreme Court in May, 1878, and administrator with the will annexed, by the surrogate, in June, 1878. He was therefore trustee before he was administrator. This fact indicates a separation of the trusts from the executorship. (See Hall v. Hall, 78 N. Y., 535.) And again on the case as presented it does not appear that he has done any acts as administrator or claimed commissions as such. Mr. Gould died in 1874, and the executor had had time enough to perform the duties specially appropriate to that office before Mr. Clute was appointed trustee. "We think then that under this will the funds may be considered as held by Mr. Clute as trustee. And so the surrogate treats him in the decree. -

As such trustee he holds six distinct trusts. If each trust were held by a'separate trustee, of course each trustee would be entitled to his commissions on the income received by him. So it should be, though the trusts are held by one trustee. This is not like the case of an executor. (Betts v. Betts 4 Abb. N. C., 322.) There could not be several executors, each managing one part of an estate •and having no control over the residue. But here the trusts and the cestuis que trust are distinct. And this is so, although there has been no actual division of the funds into several parcels. We think therefore that the trustee was entitled to compute his commissions on the income of each of the trusts separately.,

Second. The will did not give an annuity to Mrs. Gould. It' gave a certain sum to the' trustee to be held in trust to invest and to pay her the income. All the rest of the property, after certain special legacies, was to be divided into five parts, each to be held on a trust. In such a case the commissions on the income are to be paid out of the income and not from the general estate. (Whitson v. Whitson, 53 N. Y., 479.)

Third. There are three interns of $500, $3,568 and $3,900, which it is admitted represent a change of investment from indebtedness on mortgage to the property covered by the mortgage; the property having been foreclosed and bid in by the trustee. No commissions are allowable on such reinvestment, and they were properly disallowed. (Matter of Kellogg, 7 Paige, 265.)

Fourth. The trustee brought several foreclosure suits upon mortgages belonging to the estate. Mr. Tremain acted as the attorney. There was no express arrangement as to the amount which he should charge for services. In two of these cases persons other than the trustee bought the property for the full amount, including costs, and the attorney paid Mr. Olute in the one case $100, and in the other case $200. In another case where the estate bought in the property upon foreclosure, the attorney paid Mr. Clute $100 from the amount allowed him for costs, and paid therefor by the estate. In cases other than the three above specified, being cases where the property was bought in by the estate, the trustee paid the attorney the amount allowed as costs.

The surrogate charged Mr. Clute with the $400 thus received and interest.

Of the eleven foreclosures, four were commenced by the previous trustee. No allegation is made that it was not wise to foreclose the other mortgages. Whether Mr. Clute • ought to have made a bargain with the attorney prior to bringing the suits as to compensation would depend probably on facts as to which we find no proof; that is, for instance, whether such a bargain could have been made with a reputable attorney, etc. Without any proof on that point certainly the neglect to make such a bargain is no ground for blame.

In regard to the money received in the two cases where the property was bought by other persons, it is true that by the old Code (§ 303) costs were said to be allowed to the prevailing party. That precise language seems to be omitted in the Code of Civil Procedure. (Sec. 66.) Still now the compensation of the attorney is governed by agreement. And he has a lien on the cause of action. (Same section.) Now although the taxable costs are no conclusive proof of the amount payable for the attorney’s services, yet it is familiar to every one that, when the recovery and costs have been collected, the amount of the costs, at least, if not some greater sum, is taken as the attorney’s compensation. The costs are intended to pay, at least in part, for the expenses of the litigation. They are not intended to increase the client’s recovery. No one considers that, in any ordinary case, the client has any beneficial interest in the taxable costs, even if the legal title may be in him. When these two foreclosures had been carried through, and the estate had recovered the debt, in the absence of any agreement to the contrary, it is safe to say that the attorney’s Compensation would at least be the taxable costs.

Now, it is true, as the respondents insist, that a trustee is not to make a profit from the estate, and cannot be allowed a counsel fee. But in the present case there is no evidence that the payments by Mr. Tremain to Mr. Clute were anything but voluntary gifts. And even if we assume, from the situation of the parties, an implied understanding, still the difficulty remains that no profit was made out of the estate. That is to say, the taxable costs recovered out of the property did not in any true sense belong to the estate. In the case of Collier v. Munn (41 N. Y., 143), cited by the respondents in support of their views, it is said, at page 147, that a receiver, to which officer the court likens an executor, is not entitled to counsel fees in suits prosecuted by himself as attorney and counsel. But “the costs legally taxable by statute he is entitled to.” So that, according to the doctrine of that case, Mr. Clute might himself have brought the foreclosure suits and retained to himself the taxable ■ costs actually recovered out of the avails of the ¿ale; the property having sold for enough to'pay recovery and co8(s. The same idea is indicated in Matter of Niagara Bank (6 Paige, 213). There is a wide difference between a trustee’s charging the estate for legal services rendered to it, and his recovery out of some other person payment for such services without any loss to the estate.

I have examined the text-books and the cases cited by the respondents on this point. I find none where it is held that, if a trustee acts as attorney and collects taxable costs out of the opposite party, lie may not retain them, when the claim belonging to the trust estate has been fully paid. “ The rule really is that no one who has a duty to perform shall place himself in a situation to have his interest conflicting with that duty.” (Broughton v. Broughton, 5 DeG., M. & G., 160.) Of course such a transaction may give occasion to suspicion. If proof were to be given that, on any such understanding, the trustee had employed an incompetent attorney, or had foreclosed mortgages which should not have been foreclosed, another question would arise. But nothing of that kind appears here.

In regard to the other case, where the estate bought in the property, the money for that case came from the estate. What, under the circumstances, would be a fair compensation to the attorney for his services might be doubtful. The estate failing to collect the debt was obliged to compensate the attorney, and if Mr. Clute was to share in the compensation, then the estate was obliged to compensate him. The money was practically paid by Mr. Clute as trustee to himself individually. We think that this was properly charged by the surrogate.. What Mr. Tremain accepted for his services is all which the estate was bound to pay.

These are the only respects in which the decree of the surrogate is appealed from. It should be modified in the respects stated, viz.: 1. Commissions should be computed on the income of the six trusts separately. 2. The commissions on Mrs. Gould’s income should be deducted therefrom, and the trustee should not be charged with the seventy dollars commissions. 3. The trustee should not be charged with the $100 and the $200 paid him by Mr. Tremain, or the interest thereon in the eases where the property was bought by third persons.

The trustee should have costs of this appeal against Mary L. Gould legatee and general guardian.

Present — Learned, P. J., Bookes and Westbrook, JJ.

Decree modified: (1) commissions allowed trustee on six trusts separately; (2) commissions on Mrs. Gould’s income to be deducted therefrom and not charged against trustee; (3) trustee not to be charged with $100 and $200 paid him by Tremain or interest thereon; trustee to have costs of appeal against Mrs. Gould, legatee and general guardian.


author: Learned, P, J.:

text:
    IRA E. SHELDON, Appellant, v. WILLIAM VAIL, Respondent.

      /Religious corporation —power of the trustees of a free church, to determine where persons shall sit — when t/tey may foi'cibly remove a person from his seat.

    The trustees of a free church have the right to control and designate the places where persons shall sit, and in the absence of any proof that by usage or otherwise, a person has acquired the right to occupya special seat, they or any one of them may, after requesting him to leave the seat he is occupying and take another, forcibly remove him therefrom.
    It is sufficient, in such a case, to show that the act of a trustee in so removing a person was sanctioned by the board of trustees; either by previous authority or subsequent adoption.
    Appeal from a judgment in favor of the defendant, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The action was for an assault and battery alleged to have been committed by the defendant, in attempting to remove the plaintiff from a seat in the Baptist church of Broadalbin.
    The defendant sought to compel the plaintiff to leave the seat he was occupying and take a seat further back in the chufch. Such aotion wás taken because it was claimed that the plaintiff had at other times disturbed the religious services by making grimaces at the pastor and by other disorderly behavior.

      John M. Gardner, for the appellant.

      J. M. Carroll, for the respondent.
   Learned, P, J.:

The word church has in many religious denominations, including that to which these parties belonged, three meanings, 1. The edifice. 2. The society organized under the statute. 3. The body of “ church members,” or communicants. This last body has no corporate existence, and has, as such, no control over the edifice and other property. The edifice and the property belong to the incorporation and are controlled by the trustees. The “church members,” as individuals, generally are a part of the corporate body and have the right to vote for trustees. But this right belongs to them as attendants on the public worship, and contributors; not as “ church members.”

The act of the body of “ church members ” in “ withdrawing the hand of fellowship ” from the plaintiff (probably equivalent to excommunicating him) had no effect on his right, whatever that might be, to attend divine worship, and no effect on his right, if any he had, to a seat in the edifice.

Next, the plaintiff was not at the time of his removal by defendant, acting in a disorderly manner; and could not be lawfully removed for any such cause.

Then the question remains, could the trustees by their authority remove him from the seat he was occupying. It appears that this was a free church. From this it must follow that there was no renting of seats. No proof is given as to the conditions upon which any person was allowed to occupy any particular seat, or any seat at all. Undoubtedly the habit of the plaintiff of sitting in the seat where he was at the time in question might be considered a license, so that he could not be removed without being first requested to go from that seat. But such a request was made by the defendant, who was one of the trustees. And it was only after refusal by the plaintiff that force was used.

The plaintiffs counsel admits that an usher or doorkeeper would have authority in regard to unrented pews, if his authority were reasonably exercised. We think it must be that the trustees would have a right to control the places where persons should sit; in the absence of any proof that, by usage or otherwise, rights were acquired to special seats. It does not affirmatively appear that the plaintiff was a contributor to. the expenses of the corporation, so as to entitle him to a vote. But however that may be, we think that to establish a right to remain in that seat, against the request of the trustees that he should remove, something more, should have been shown than was shown in this case.

The plaintiff, however, insists that there was no valid action by the trustees us a board, in this matter. We are not ready to say that, in such a matter as this, a formal vote at a regular meeting would be necessary. It is plain that the act of the defendant had in fact the approval of all the board. It was the result of a consultation of four trustees ou one occasion immediately after a meeting either of the church or the society. This meeting of the church or society was called by. notices for two weeks from the pulpit. One witness says it wa§ a meeting of the church and society and trustees. And action was then taken instructing the trustees to request the plaintiff to take another seat. Then there was another meeting of the trustees called on notice at Wetherbee’s shop. It is true that one trustee was not present. He says that he had gone out of-town. Notice might have been served on him in his absence. All the other trustees were present. The plaintiff urges that this meeting was not showii to be before the time in question. But from the testimony as to what took place, it would seem that it must have been before. At any rate it showed that the act of the defendant was sanctioned by the trustees either by previous authority or subsequent adoption.

Without therefore deciding-that the action of' the church members ” had deprived the plaintiff 'of any rights in respect to occupation of a seat, we think that he failed to prove that he had any right to the seat he was .occupying, and that the trustees could require him to move therefrom.

Judgment and order should be affirmed, with costs.

Present — Learned, P. J., Boardman and Bookes, JJ.

Judgment and order affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK v. THE ROCKAWAY BEACH IMPROVEMENT COMPANY, (Limited).

      Moira allowance — it cannot be granted unless the value of the subject-matter involved be shown— in an action to dissolve a corporation it must be baaed on the value of the corporate franchise.

    This action was brought to dissolve a corporation, to restrain it from exercising its franchises and to procure the appointment of a receiver. An answer, put in by the defendant, was subsequently withdrawn, and judgment was taken against it by default.

      Upon an appeal from an order granting an extra allowance:

      Held, that as the subject-matter involved was the existence of the franchise any allowance must be based upon its value, and that as no proof was given to show that the franchise had any value, the court erred in granting an extra allowance.
    Appeal from an order made at a Special Term, granting an extra allowance.

      ■John L. Cadwalader, for certain creditors and stockholders, appellants.

      Jno. C. Keeler, deputy attorney-general, for the respondent.
   Learned, P. J.:

The order granting an extra allowance recites that it was made on notice served upon, among others, Mr. Cadwalader, attorney for divers creditors and stockholders. . So far as he was attorney for creditors and stockholders we think he had a right to appeal from an order made on notice to him; and we cannot dismiss the appeal.

The action was brought to dissolve the defendant, a corporation ; to restrain it from exercising its functions and to appoint a receiver. An answer was put in and withdrawn, and judgment was taken for want of an answer.

There was no sum recovered or claimed. What was the value of the subject-matter involved? (Code Civ. Pro., § 3253.) The matter involved was not the property of the corporation. No one disputed their title to that. All that was involved was the existence of the franchise. (O. and L. C. R. R. v. V. and C. R. R., 63 N. Y., 177; People v. N. Y. amd S. I. Ferry Co., 68 id., 72.) There is no proof that the franchise had any value. And therefore there was nothing upon which the extra allowance of $500 could be calculated. The allowance must have assumed that the franchise was worth $100,000. Nothing shows that it was worth one cent.

The order should be reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs.

Present — Learned, P. J., and Bocees, J.; Westbrook, J., not sitting.

Order reversed, with ten dollars costs and printing disbursements, and motion denied with ten dollars costs.