author: Barker, J.

text:
    THE DAVIS SEWING MACHINE COMPANY OF WATERTOWN, NEW YORK, Respondent, v. WILLIAM J. BEST, as Receiver, etc., Appellant.

      Trust company — in what securities it may invest its capital and trust funds — it can only buy such as the statute authorizes —when it may enforce a security which it was not arutiiorized to buy.

    Appeal from a judgment in favor of the plaintiff,'in an action of replevin tried at the Jefferson Circuit, before the court without a jury.
    Tlie action was broiight to recover ten notes, of $1,000 each, issued by the plaintiff. The notes were negotiable in form, the- names of the payees being left blank. ' They had been delivered to Mr. Wins-low, the president of the Davis Sewing Machine Company, the plaintiff, to be by him negotiated. Mr. Winslow, who was also the president of the Security Bank, delivered the notes (together with ten others also issued by the plaintiff and then owned by the bank) to the National Trust Company of the city of New York, of which the defendant is the receiver, as collateral security to a loan of $10,000, made by the trust company to the bank. No note or obligation of the bank to secure this loan was taken by the trust company. Five thousand dollars of the loan was subsequently paid by the bank, and the ten notes owned by the bank were then upon its request surrendered to it. The plaintiff sought to recover the notes in question upon the ground that Mr. Winslow had no authority to pledge them as he had done, they having been delivered to him solely for the purpose of sale.
    The court at General Term, after a full consideration of the evidence and the findings, were of the. opinion that it had not been found that the trust company had any knowledge of the wrongful acts or want of title of Mr. Winslow or the bank, when it took the notes, and that it did not appear but what they were, when deli vered to Mr. Winslow, completed instruments, ready for delivery to a purchaser. It also held that the making of the loan by the trust company to the bank was not a violation of the laws of the State prohibiting unauthorized banking.
    Judge Barker tlieu considered the right of the trust company to purchase the notes as follows:
    “ I will now consider the charter which created the corporation ■making the loan, for the purpose of ascertaining whether it violated any of its provisions. Many of the powers conferred upon this company are exceptional, and require careful examination in determining the question as to the legality of the hypothecation. The act of incorporation- is chapter 460, Laws of 1867, and by section 2 power is given to receive moneys in trust, and to accumulate the same at such rate of interest as may be obtained or agreed upon, and to allow such interest upon the trust fund as may be stipulated for, not exceeding the legal rate. To accept and execute all such trusts of every description not inconsistent with the laws of this State, as may be committed to it by any person or persons whatsoever,, or by any corporation, or by order of the Supreme Court, or by a surrogate, or by any of the courts of record in this State. To take arid accept by grant, assignment, transfer, devise or bequest, and- hold any real or personal estate on trusts created in accordance with the laws of this State, and execute such legal trusts in regard to the same on such terms as may be declared, established, of agreed upon in regard thereto. To accept from and execute trusts from married women in respect to their separate property, whether real or personal, and act as agents for them in the management of such property. Power and privilege is granted to the corporation to act as guardian of the estate of any infant when appointed by any court of this .State having jurisdiction to make the appointment, and every court in which moneys may be paid by parties, or be brought by order or judgment, may by order direct the same to be deposited with the said company. On any sum of money not less than $100 which shall be collected and received by the said company in its capacity as guardian, receiver or depository of moneys in court an interest shall be allowed by the said company of not less than three per cent annually, which rate of interest shall continue until the moneys so received shall be duly expended or distributed.
    “ There is a provision, that when the corporation is named as guardian, or made the depository by an order of court, no bond or collateral security shall be required from the company, and in case of dissolution the debts due from the company as guardian, receiver or depository of moneys in court shall have a preference. The capital stock of the company was fixed at one million dollars, with power to increase the same, and such capital when paid in was required to be invested in bonds and mortgages on unincumbered rea. estate worth double the amount loaned thereon, or in the stocks of the United States or of this State, or in stocks and bonds of the incorporated cities of this State, authorized to be issued by the legislature or in such real estate as may be required for the use of the company in the erection of a suitable building in which to carry on its business. (See amendment of sec. 7, chap. 276, Laws of 1870.)
    “ By consulting the entire act it will be observed that the paid in capital, the moneys received as trustees, and the fund received by it as guardian or by order of court, are regarded and treated aa separate and distinct funds. By the original act moneys not received in trust or paid in to the company as guardian or by order of court, could be loaned on personal property without requiring any collaterals. An amendment to section 18 was made in 1872, chapter 725, which provides for investing all moneys received by the company, not including its capital stock, and the entire section reads as follows :
    “The trustees shall have a discretionary power of loaning or otherwise investing the moneys received by them, in public stocks of the United States or of any State, or the bonds or stock of any incorporated city or county in this State authorized by law, or interest paying bonds or dividend paying stock of any corporation or company, or on bonds and mortgages on unincumbered real estate within the State of New York, worth double the amount loaned thereon. Said company shall not invest in such dividend paying stocks to an amount exceeding fifty thousand dollars in any one corporation or company. In making loans secured by dividend paying stocks of any corporation or company, such stocks shall not be taken as collateral at a less margin than twenty per cent ot the market value thereof at the time of making such loan.
    • “ It is clear, from a reference to the provisions of the charter, that the corporation was authorized to loan its capital and all the funds which were deposited with it from the sources and for the purposes mentioned in the act. Without this power its business of receiving and paying interest upon deposits, executing trusts, and managing the assets of married women, could not be carried on.
    “No serious question is made, as I comprehend the argument of the distinguished counsel for the respondent, that the loan itself as distinguished from the security taken was invalid. The loan is separate from the security taken and may be legal and collectible from the borrower, although the security received be illegal and void. ( Utica Ins. Go. v. Scott, 19 Johns., 1; Robvnsón v. Bland, 2 Burr., 1077; Utica Ins. Go. v. Kip, 8 Cow., 20; Pratt et al. v. Short et al., 79 N. Y., 437.)
    “ The mode of investment of the funds deposited with the company is prescribed in the eighteenth section, and as there is a specification of the particular securities in which it shall be lawful for the corporation to invest the same, operates by implication to restrain and prohibit investment in any securities other than .those particularly specified. This rule of construction was given in Pratt v. Short (siyyrai), where the charter of a corporation then under consideration contained similar provisions. (See, also, N. Y. Firemen’s- Ins. Co. v. Fly, 2 Cow., 678.) As the seal of the respondent corporation was not attached to the instruments they are not bonds. The word bond ex vi termini, signifying a sealed instrument. (Bouvier’s Law Dictionary.)
    This brings us to the question whether the security given by the Security Bank at the time of making- the loan can be enforced for the benefit of the depositors, whose funds came under the control and management of the trust company, notwithstanding the prohibition. The proposition is to be discussed and considered the same as if the Security Bank was the true owner of the notes. If the pledge made to tbe trust company as a security for its loan can be upheld as available as a security against any claim which the Security Bank as borrower could urge against the validity of tlie transaction, then the respondent cannot in. justice or equity interfere or set up a title good as between it and the Security Bank for the reason already considered, it having by its own voluntary act bestowed upon the Security Bank an apparent title to the notes. As between the parties now before the court, the respondent corporation is to be regarded as a maker of negotiable instruments liable in any event to pay the same.
    “ That corporation cannot be heard upon the question of its title, until after it has been determined that the defendant as receiver cannot make 'the notes available as a security and as a means to replace the loan made by the trust company. There is no declaration in the charter that a security taken in violation of its provisions shall be void and unavailable to the company or those whose interests it represents, nor is there any mention that such securities may be enforced notwithstanding the prohibition. In the absence of such provisions the intention of the legislature on the subject is to be ascertained, from all the provisions of the charter. In a sense every act prohibited by law is illegal, but there is no general rule of law, that every prohibited act is so far invalid that it may not be enforced in courts of justice. If the legislature prohibits an act and imposes a penalty upon the wrong-doer, then the penalty is usually regarded as the punishment, and the contract forbidden may be enforced by those interested in its performance. When the statute is silent and contains nothing from which the contrary can be properly inferred, contracts in contravention of its provisions are void. With a view of ascertaining the purpose of the legislature, all the provisions of the statute in question, must be examined to discover whether it was intended to prevent courts of justice from enforcing contracts in relation to the act prohibited. {Gold Mmmg Oo. V. National Banjc, 96 U. S. R., 640 ; O'Hare v. Second National Banlc of Titusville, 77 Pa., 96.)
    “ In the enactment creating the trust company a corporation, the legislature made it a trustee in name and in fact of the funds which might be deposited with it. It was constituted the lawful custodian of funds subject to the ordér of the several courts of this State, when properly designated for that purpose; it was also authorized to act as guardian for infants on receiving a judicial appointment. The office which this corporation was authorized to perform; the character of the funds,, committed to its control and management are such, that it may be fairly and reasonably believed, that the legislature did not intend to make void and unavailable pledges and securities taken by it, which were not. in strict conformity to the terms of its charter. That ■ the restraints imposed as to making loans, were intended as a rule for the government of the corporation, and if the restrictions provided were not adhered to, then, notwithstanding the prohibition, the same were enforceable for the purpose of securing a repayment of the money loaned.
    “ It is my opinion that the legislature did not intend that an excess of loan beyond the proportionate value of property as specified in the act, or the taking of a class of securities prohibited should be regarded as void, and thus enable the borrower to withdraw the security from the hands of the-corporation without paying the loan, and thereby destroying the ability of the company to pay its creditors. {National Bcmk v. Matthews, 98IJ. S. R., 621; Crocker v. Whitney, ,103 id., 99; Gold Mining Co. v. National Bank, supra.) This case is distinguishable from Pratt v. Short {supra), for in that case it was held, that the act of the corporation, in discounting the note sued upon, was in violation of the statute prohibiting unauthorized banking, which declares that all contracts in violation of its provisions are void.
    “ The case óf the Bank of Salina v. Al/oord (31 N. Y., 473), may also be distinguished from the case in hand as the plaintiff there was a banking corporation proper, organized under and .subject to the banking laws then in force. It was the general policy of that system of laws to confine all loans and discounts by banks within the limits provided by the act, and to hold all loans and contracts contrary to the provisions of the same void.”
    Judgment appealed from should be reversed, new trial granted, with costs to abide the event. .

      A. J. Vanderpoel and Pelos McCwrdy, for the appellant.

      Frcmcis Kernam,, for the respondent.
   Opinion by

Barker, J.

Present — Smith, P. J., Hardin and Barker, jj.

Judgment reversed, and new trial ordered, costs to abide event-


source: Caselaw Access Project

author: Hardin, J.;

license: Public Domain

text:
    ALVA U. WILLIS, Respondent, v. JOB A. STAPELS and CICERO D. DAVIS, Appellant.

      Injunction — not granted to restrain the illegal incorpor'ation of a village.

    Appeal from an order denying a motion to vacate a temporary injunction, restraining the holding of an election to promote the organization of the village of Elba.

      In the Matter of the Village of Elba {supra, p. 548), it was decided by this General Term that the proóeedings taken for the incorporation of the village were irregular and illegal.
    The court at General Term said: “ His (the plaintiff’s) remedy for any injury which may come to him by reason of those proceedings may be redressed by the usual modes of the law, or under the statute under which the defendants’ sought to take their proceedings. (1 R. S. [7th ed.], 884, 886.) . The defendants’ under the proceedings taken to organize the village will not injure the plaintiff’s property beyond legal redress. We do not see in the papers used upon the motion a proper case for an injunction. '{People ew> rel. Ei/ngsla/nd v. Clark, 70 N. Y., 518 ; People v. Oa/rpenter, 24 id., 86; 1 R. S. [7th ed.], 886; Clinton Institute v. Eletoher, 55 How., 431.) We think the order refusing to dissolve the injunction should be reversed, with ten dollars costs and disbursements, and the injunction dissolved with ten dollars costs.”

      William C. Watson and George Bowen, for the appellants.

      M. H. Peck, Jr., for the respondents.
   Opinion by

Hardin, J.;

Smith, P. J., and Barker, J., concurred.

Order denying motion to dissolve injunction reversed, with ten dollars costs and disbursements, and injunction dissolved, with ten dollars costs.


author: Smith, P. J".;

text:
    MARY DOYLE, Appellant, v. THE RECORDER PRINTING COMPANY OF FAYETTEVILLE, NEW YORK, Respondent.

      Staying proceedings until costs of a former action are paid — how the identity of the two actions may he established.

    Appeal from an order of the Oswego Special' Term staying the plaintiff’s proceedings in this action, until the defendant’s costs in a former action, commenced by the same plaintiff, are paid.
    The former action having been dismissed before service of a complaint therein a cpiestion arose upon the motion, which resulted in the order from which this appeal is taken, whether the two suits were brought upon the same identical cause of action. The complaint in the present action is for an alleged libel published in June, 1882. The first action was begun subsequently to such publication, and the plaintiff .claims in the affidavits read by her in opposition to the motion that such suit was not brought to recover damages for the alleged libel, but was brought to procure-an injunction restraining the defendant from libelling the plaintiff.
    The court at General Term said: “ The judge at Special Term seems to have believed the declarations of the plaintiff’s attorney on that point, as sworn to in the moving affidavits, to the effect that the two actions were for the same cause, rather than the averments in the opposing affidavits as to the cause of action in the first suit, and we see no reason to disturb his conclusion in that respect. The appellant’s counsel has called our attention to the recent case of Phelps v. Gee (29 Iiun, 202). That case does not aid the appellant for the reason that the only question decided by it does not appear to have been raised in the present case at Special Term. The appeal papers do not show that any objection was made to the nature of the evidence by which the defendant sought to show the cause of action for which the first suit was brought, and the objection éannot be raised for the first time on appeal. The claim of the plaintiff’s attorney that the motion should have been denied for the reason that no demand had been made for the payment of tlie costs in the former action, and no execution had been issued to collect the'samé, and that the defendant was guilty of laches in not making the motion at the first opportunity, cannot be maintained.”

      S. J. Billington, for the appellant.

      A. W. Wiliam, for the respondent.
   Opinion by

Smith, P. J".;

Hardin and Barker, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Hardin P. J.;

text:
    WILLIAM G. ELLSWORTH, Respondent, v. LEANDER S. PHELPS, Appellant.
    ' Chattel mortgage — agreement that the mortgagor may sell the mortgaged articles and apply the proceeds upon the debt — a subsequent judgment creditor is entitled to have an account of the sales so made stated, and to hare the amount thereof applied to reduce the mortgage debt.

    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.
    The action was brought to recover damages for the conversion of goods, in a store occupied' by Paige, in Eorrestville. The defendant 'justified the taking of the goods under an execution issued upon a judgment recovered by Sweet & Go. against Henry Paige for $1,668.65. The execution was issued to the defendant, as sheriff, and received by him on the 7th of August, 1877. Hnder it he subsequently levied upon and sold the goods.
    The plaintiff loaned Paige $1,200 in June, 1876, and took his notes therefor. On the 22d of September, 1876, Paige gave plaintiff a chattel mortgage on his stock of boots and shoes in his store to secure the $1,200, conditioned to pay $1,200 and interest from June 15, 1876, two years thereafter. Subsequently and on the 11th of May, 1877, Paige executed another chattel mortgage to secure $1,400, being for money loaned, supposed to be the same loan mentioned in the notes and mortgage already referred to. The time of payment named therein was June 8,-1879. Both these mortgages were accompanied with an agreement between the mortgagor and mortgagee, as to the management of the mortgaged property; Among other things it stipulated viz., that so long as the party pi the second part shall permit, the party of the first part is at liberty to sell any or all of said goods for cash as the agent of the party of the second part and pay ..the proceeds to the' said party of the second part who will apply the same on said mortgage, and it is expressly agreed that the said party of the first part shall have no right to sell except as above provided.” The mortgagor remained in possession of the stock, selling therefrom and using the proceeds, the same as before the execution of the mortgages; No accounting was had of the sales, and the same have not been ascertained and applied upon -the mortgages.
    The court at General Term said: “ Under such an agreement the sales should • be accounted for, and their amount credited and applied upon the mortgage debt. It was held in Oonkling v. Shelley (28 N. Y., .360) that the sales made, and proceeds received by the mortgagor under such an agreement, should be applied in payment and satisfaction of the mortgage; whether the money is ever actually paid over to the mortgagor of not.” Emott, J., said, on page 363, viz.: ‘ Such an agreement, made the mortgagors agents' of the mortgagees. Their possession and their sales were in effect those of the mortgagees; It was as if the latter had taken possession and placed a third person in charge as agent to sell and account to them. They could not have escaped- from crediting on their indebtedness the proceeds of sales made by such an agent, because he had fraudulently or dishonestly misapplied or employed the money.’ * * All that remains after satisfying the mortgage belongs to the mortgagor and is subject to the executions and must be applied upon the judgments in the sheriff’s hands.’ The doctrine is not disturbed in Brackett v. Ha/rvey (91 N. Y., 215).
    “ Without passing at the present time upon the evidence tending to show that the mortgages were in fact fraudulent, under the rule in Boutha/rd v. Benner (72 N. Y., 424), and in Gity Bank v. Wesibwry (16 Hun, 459). We are of the opinion that the defendant was entitled to have an account stated of the sales and proceeds of the mortgaged property arising after the date of the last mortgage, and whatever it amounted to, applied in satisfaction of the mortgage debt, and whatever it amounted to, operated as a satisfaction of the mortgages as far as they stand in the way of the creditor represented by the defendant.” * * *

      H. O. Day, for the appellant.

      Morris do Russell, for the respondent.
   Opinion by

Hardin P. J.;

Barker, J. concurred ; Dwight, J., not sitting.

Judgment reversed and new trial ordered before another referee, costs to abide the event.


text:
    James B. Haynes, Respondent, v. James H. Rudd, Appellant.

   Motion for leave to appeal to the Court of Appeals granted.


text:
    Doctor F. Jackson, Respondent, v. Anthony H. Kasseal, Appellant.

   Motion for leave to appeal to the Court of Appeals denied.


text:
    Charles G. Allen, Respondent, v. David Chapman, Appellant.

   Motion for leave to appeal to the Court of Appeals denied.


text:
    Joseph Esmond and another, Appellants, v. Moses L. Abbott, Respondent.

   Motion to dismiss appeal denied, with ten dollars costs.


text:
    Jay A. Pulver, Appellant, v. James Benton, Respondent.
   Motion to dismiss appeal denied, with ten dollars costs.


text:
    Josephine Sahler v. Jennie L. Williams, Executrix.
   Motion to correct order denied, without costs.

Smith, P. J., not sitting.


text:
    Jesse Briggs v. The New York Central and Hudson River Railroad Company, and two other cases in favor of other plaintiffs against the same defendant.
   —Motion for leave to appeal to the Court of Appeals or for reargument denied in each case, without costs.

Smith, P. J., not sitting.


text:
    Harvey S. Bedell, as Assignee, v. William H. Barnes.
   Motion for leave to appeal to the Court of Appeals denied.


text:
    Madison Cooper, Respondent, v. Thomas R. Langdon, Appellant.

   Motion foi; leave to appeal to the Court of Appeals denied.


text:
    The People of the State of New York v. Merchants’ Bank.
   Motion for leave to receiver to pay counsel fees, etc., granted. •


text:
    Nora Cowell, by Guardian, Respondent, v. Seth Day, Appellant.
   Judgment reversed and new trial ordered, costs to abide event. Opinion by

Barker, J.


author: Hardin, J.

text:
    Calvin Russell, Respondent, v. John C. Scheetz and others, Appellants.

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

Hardin, J.


text:
    Newell H. Winslow, as Receiver, Appellant, v. John D. Otis, Respondent.

   Judgment of County Court reversed and that of the Justice affirmed. Opinion by

Hardin, J.


author: Barker, J.;

text:
    The National Park Bank of New York, Appellant, v. Leman B. Hotchkiss and others, Respondents. Same v. Same.
   Judgment in each case affirmed, with bill of costs in one case only, and disbursements in both. Opinion by

Barker, J.;

Smith, P. J., takes no part in the decision.


author: Smith, P. J.;

text:
    Alice Douglas, Respondent, v. Joseph L. Haberstro, as Sheriff, etc., Appellant.

   Judgment affirmed. Opinion by

Smith, P. J.;

Barker, J., not sitting.


text:
    Laura A. Bond, Appellant, v. Emeline Collins and another, Respondent.

   Judgment affirmed. Opinion by

Barker, J.


text:
    In the Matter of the Application of the New York, West Shore and Buffalo Railway Company, to Acquire Title to Certain Real Estate of William H. Watson.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Hardin, J.;

Barker, J., dissenting.


text:
    Henry H. Lyman, Appellant, v. John W. P. Allen and others, Respondents.

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

Barker, J.


author: Smith, P. J.

text:
    Francis E. Erwin, Appellant, v. Artemus B. Hurd and others, Respondents.

   Order appealed from affirmed, with ten dollars eosts and disbursements. Opinion by

Smith, P. J.


text:
    The Rochester Hydraulic Motor Company, Appellant, v. George Ellwanger and others, Respondents.

   Order of Special Term reversed, report set aside, and a new hearing ordered before another referee, with ten dollars costs and disbursements.

Opinion by

Barker, J.


text:
    William C. Matthews, Respondent, v. Edwin C. Baker, Appellant.

   Judgment affirmed. Opinion by

Hardin, J.


text:
    Edward B. Lord, Administrator, etc., and others, Respondents, v. William Tiffany, Appellant, Impleaded, etc.

   Judgment affirmed, with costs. Opinion by

Barker, J.


text:
    In the Matter of the Application of Augustus Howland for an Order requiring Martin S. Cuykendall, as Receiver, etc., to refund certain Moneys.
   Order reversed, without costs, and without prejudice to any subsequent proceeding or suit. (In the Matter of Douglass v. Cuykendall, as Receiver, etc., followed.)


author: "Barker, J.

text:
    Albert Wilkinson, as Executor, etc., Appellant, v. Byron E. Champlin, Respondent.

   Judgmeht reversed and new trial ordered, eosts to abide event. Opinion by

"Barker, J.


author: Smith, P, J.

text:
    Edward W. Scowden and another, Respondents, v. Urson P. Markham, Appellant.

   Judgment and order affirmed. Opinion by

Smith, P, J.


text:
    Althea Horr, Respondent, v. Leonard Seaton, Appellant.
   Order dismissing appeal reversed, with ten dollars costs and disbursements, and order refusing amendment reversed. Opinion by

Hardin, J.


text:
    Mary C. Langley, Respondent v. Richard Wadsworth, Executor, etc., Appellant.

   Order affirmed. Opinion .by

Smith, P. J.;

Barker, J., not sitting.


text:
    William E. Story, Respondent, v. Cuba State Bank, Appellant.

   Judgment reversed, and new trial ordered before another referee, costs to abide event. Opinion by

Smith, P. J.


text:
    James E. Thompson, as Executor, etc., Plaintiff, v. Truman A. Proctor, Defendant.

   Judgment for plaintiff, pursuant to opinion. Opinion by

Smith, P. J.


author: Hardin, J,

text:
    Mary Flannery, Appellant, v. Henry James and another, Respondents.

   Order affirmed, with ten dollars costs and the disbursements of each respondent. Opinion by

Hardin, J,


text:
    In the Matter of the Disposition of the Real Estate of Anthony Wasser, Deceased, for the Payment of his Debts.
   Decree of surrogate affirmed, with costs. Opinion by

Smith, P. J.


text:
    In the Matter of the Claim of Michael M. Pomeroy, Appellant, v. The State of New York, Respondent.

   Decision of the State board of audit affirmed, without costs.


text:
    In the Matter of the Application of Henry M. Knapp, for an Order Requiring Martin S. Cuykendall, as Receiver, etc., to Refund Money, etc.
   Order reversed, without costs and without prejudice to any subsequent suit.

Macomber, J., not sitting.


text:
    In the Matter of the Application of Stephen Kimball.
   The same in all respects.


text:
    In the Matter of the Application of Amos Douglass.
   The same in all respects.


author: Daniels, J.,

text:
    The Town of Cherry Creek, Respondent, v. Philip Decker, Appellant, Impleaded, etc.

   Order affirmed, with ten dollars costs and disbursements, on opinion of

Daniels, J.,

at Special Term.


author: Hardin, P. J.

text:
    William H. Abell and another, Respondents, v. The New York, Lackawanna and Western Railway Company, Appellant.

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

Hardin, P. J.


author: Dwight, J.

text:
    Jonathan E. Robinson and another, as Executors, Respondents, v. Ephriam A. Smith and another, Appellants, Impleaded, etc.
   Judgment affirmed, with costs. Opinion by

Dwight, J.


text:
    John W. Davis v. The Chautauqua Lake Sunday School Assembly.
   New trial ordered, costs to abide event. Opinion by

Hardin, J.


author: Barker, J.,

text:
    Douglass Boardman, as Surviving Executor, etc., Respondent, v. Edward Evans and another Appellants.

   Judgment affirmed on opinion of

Barker, J.,

at Special Term ;

Barker, J., not sitting.


author: Per Curiam.

text:
    Emily M. Goodrich, Respondent, v. George W. Goodrich and others, Appellants.

   Order affirmed, with costs. Opinion

Per Curiam.


text:
    Wilson L. Gordon, Respondent, v. Jacob Skillman, Appellant.
   Order affirmed, with ten dollars costs and disbursements., Opinion by

Dwight, J.


text:
    Dwight B. Dewey and others, Respondent, v. J. Barton Finn and another, Appellants.

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

Hardin, J.


text:
    Hiland A. Weed, as Administrator, Appellant, v. Alonzo Hornby and another, Respondents.

   Judgment reversed and new trial ordered before another referee, with costs to abide event. Opinion by

Dwight, J.


author: Hardin, J.,

text:
    Julia A. Griswold and another, as Administrators, etc., Respondents, v. Wesley Mispaw, Appellant.

   —Judgment reversed and a new trial ordered before another referee, with costs to abide event. Opinion by

Hardin, J.,

Barker, J., not voting.


author: Judge Gardner as referee.

text:
    John W. Stebbins, as Assignee, etc., Appellant, v. The Howe Machine Company, Respondent.

   Judgment affirmed on the opinion of the late

Judge Gardner as referee.

Dwight, J., not sitting.


text:
    George W. Nichols and another, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

   Judgment affirmed. Opinion by

Barker, J.;

Dwight, J., not sitting.


text:
    Abraham Stern and others, Appellants, v. The Florence Sewing Machine Company, Respondent.

   Motion for leave to appeal to the Court of Appeals denied.


text:
    In the Matter of the Application of the New York, Lackawanna and Western Railway Company, to Acquire the Lands of Solomon Scheu and others.
   Reargument ordered.


text:
    James Gibbs Ross, Respondent, v. Rinaldo H. Stillwell, Appellant.

   Order affirmed, with ten dollars costs and disbursements.


text:
    William L. Beardsley, Appellant, v. Alexander R. Chisolm, Respondent.

   Order affirmed, with ten dollars costs and disbursements.


author: Davis, P. J.:

text:
    CHARLES M. WUNDERLICH and HENRIETTA WUNDERLICH, his wife, Respondents, v. LOUIS REIS, KAROLINE REIS and LOUIS ROOS, Appellants, Impleaded with WILLIAM WIPFLER.

      Renewal of lease — when the liens existing against the old lease may he enforced against the new one — a mortgagee of the leasehold interest is entitled to the benefit of the renewal.

    June 19, 1860, W. B. Astor leased certain premises in the city of New York to one Hertfelder for the term of twenty years and two months. The lease contained no covenant of renewal, hut authorized the lessee to remove any building upon the premises provided it were entirely removed ten days before the expiration of the lease. Hertfelder erected a building upon the lot, and thereafter, in 1873, the lease was assigned to William Wipfler and Elizabeth, his wife, who on the same day gave a bond and mortgage thereon to secure a portion of the purchase money,' which were subsequently assigned to the plaintiffs. January 14, 1880, the trustees of Astor, who was dead, gave a new lease of the premises to Wipfler and his wife, who at that time still owned the old lease and were in possession of the premises. March' 17, 1880, Wipfler and wife assigned the old lease subject to mortgages, including that of the plaintiff, to Jacob Muller, who on April 9, 1880, assigned the same subject to the same mortgage, to the defendant, Caroline Reis.
    It appeared that the lease by the trustees was given because the, lessees were the owners of the former lease and in possession thereunder, and had the right under its terms to remove the building from the lot, and that under such circumstances there existed a usage established by Astor and practiced by the trustees to grant new leases.

      Held, that the plaintiffs, as mortgagees, were entitled to the benefit of the new lease, and that their mortgage should be declared a lien thereon.
    Appeal from a judgment of foreclosure, in favor of the plaintiffs, entered upon the trial of this action by the court at Special Term.

      Jacob A. Gross, for the appellants.

      August G. Hassey, for the respondents.
   Davis, P. J.:

On the 19th of June, 1860, the late William B. Astor, being the owner of certain premises in the city of New York, executed to one George Hertfelder a lease thereof for the term of twenty years and two months, from the first day of March, 1860. The lessee thereafter erected a five story brick building on the premises, which building is still remaining on the lot, and is worth from six to ten thousand dollars. On February 1,1867, the lease and building were assigned in due form to one Christian Rado, who, on the 6th of February, 1872, sold and assigned the said lease and property to William Wipfier and Elizabeth, his wife, who on the same day executed to said Christian Rado the bond and mortgage sought to be foreclosed in this action, which were given to secure a part of the consideration or purchase-money expressed in the assignment by Rado to them,

On March 3, 1873, the said Christian Rado assigned the said bond and mortgage to the plaintiffs, who still hold and own the same; and thei’e is due and unpaid thereon the sum of $3,500 and interest. Mr. Astor died prior to January 14, 1880, and by his will duly probated, the fee of said leased premises was vested in the trustees appointed by said will who are devisees thereof for the purposes of the trusts created by said will. On the 14th of January, 1880, the said trustees executed and delivered to the defendants, William Wipfier and Elizabeth, his wife, a lease of the same lot, demised by the above mentioned lease of Mr. Astor.

The lease by the said trustees was executed and delivered to said Wipfier and wife while they were owners and holders of the lease firstly described and in possession of the leasehold premises. On the 17th of March, 1880, Wipfier and wife made an assignment of the lease made by said Astor, subject to mortgages, amounting in the aggregate to $9,000, to one Jacob Muller; and on the 9th day of April, 1880, the said Muller made an assignment of said lease subject to the same mortgages to the defendant Caroline Reis. The lease by the trustees to Wipfier and wife does not appear to have been assigned. The original lease did not contain any covenant of renewal. It contained, however, a covenant that the lessee “ shall be at liberty to remove the building standing on said lot at the end of the term hereby demised provided the same shall be entirely removed ten days before the expiration of this lease and not otherwise. ”

The contention of the defendants is that the mortgage sought to be foreclosed is not a lien on the leasehold created by the lease from the trustees of Astor’s estate.

It sufficiently appears in the case that the lease by the trustees was given because the lessees were the owners of the former lease and in possession of the premises thereunder, and of the building standing thereon, with a right to remove the same, in accordance with the provisions of the lease. These rights were expressly subject to the mortgage. ' It was the custom or usage of Mr. Astor to give new leases under such circumstances to owners and occupants ■uuder the former lease, and the trustees have continued that usage. There can be no doubt but that the new lease was obtained by the lessees by reason of their relation to and their rights under the old one. The principle governing the case was enunciated by Chancellor Kent in Holdridge v. Gillespie (2 Johns. Ch., 30), where a lease held as security by a third party was surrendered by the lessee and a new lease taken for a new term. It was held that a new lease inured to the benefit of the pledgee.

And in Slee v. The Manhattan Company (1 Paige, 18) the Chancellor held that when a mortgagee obtains a renewal of a lease or other advantage, in consequence of his situation as such mortgagee, the mortgagor coming in to redeem is entitled to the benefit thereof. That case establishes that if the trustees had executed a lease to the present plaintiffs because they were holders of the mortgage now in suit, the present defendants would be entitled to redeem the mortgf ge and take the new leasehold estate.

In Phyfe v. Wardell (5 Paige, 279) it was held that where it was the usage to renew to a tenant who held under a lease without covenant of renewal, equity would take cognizance of the vendible interest in an imperfect right of renewal and regard a subsequent lease as a renewal of the former one, to protect equities; and the Chancellor laid down this general rule: If a person who has a particular or special interest in a lease, obtains a renewal thereof from the circumstance of his being in possession as tenant, or from having such particular interest, the renewed lease is in equity considered a mere continuance of the original lease, subject to the additional charges upon the renewal, for the purpose of protecting the equitable rights of all parties who had any interest, legal or equitable, in the old lease.” ■ And see Gibbes v. Jenkins (3 Sandf. Ch., 131), Phyfe v. Wardell, and Gibbes v. Jenkins ; which cases are cited with approval in Mitchell v. Reed (61 N. Y., 123), where Earl, Commissioner, says that the principle governing the cases “ springs from the fact that the party obtained the new lease from the position he occupied, being in possession and having the good will which accompanies that, or being connected with the old lease in some way, and thus enabled to take an inequitable advantage of other parties, also interested, to whom he owed some duty.”

We think the principle of these cases is applicable to and controlling of the case before us. The authorities cited by the counsel for the appellant are distinguishable in principle and do not disturb the equitable rules established in the cases above cited.

From the facts appearing in the case it is doubtful whether the parties who appeal have any interest in the controversy. It does not appear that they are assignees of the new lease or of anything more than the rights and interest of Wipfler and wife in the original lease. They seem to make some claim as such assignees, to the new lease, but the assignment to them of the old lease was expressly subject to the plaintiff’s mortgage, and if they are able to work out an equitable title to the new lease on the basis of that assignment, their equity is certainly by the assignment itself charged with the lien of the mortgage.

We think the judgment right. It should be affirmed, with costs.

Brady and Daniels, JJ., concurred.

Judgment affirmed, with costs.


text:
    SARAH SOLOMON, as Administratrix, etc., of JOSEPH SOLOMON, Deceased, Respondent, v. THE MANHATTAN RAILWAY COMPANY, Appellant.

      Negligence — to attempt to board a moving train on the elevated railroad is contributory negligence.

    One of tlie defendant’s trains on its elevated railway had reached and was about leaving the Chatham Square station on Second Avenue, on the evening of December ninth, when the deceased with other persons hastened from another train to get on board ; as they came running up for that purpose, the gate on the platform of the car was closed and the train started to leave the station. It was moving, but slowly, when two persons, running in advance of the deceased, pushed open the closed gate and boarded the car. The deceased also attempted to get on, but at that moment the conductor, while the deceased, having one foot on the platform, was stepping on the car, again closed the gate; that ■ foot was caught by the gate so that the deceased was carried along a short distance by the moving car until struck by a projecting water pipe on the station building, by which he was knocked from the car upon the track below and fatally injured.

      Held, that he was guilty of contributory negligence in attempting to get on a moving train ; and that such contributory negligence prevented his administrators from maintaining an action to recover the damages occasioned by his death.
    That even if the conductor was guilty of negligence in closing the gate, when he saw that the deceased persisted in attempting to get on the train, yet as this negligence could not have happened but for the prior negligent act of the deceased it did not authorize a recovery, there being no claim that the defendant was guilty of any willful wrong, or took advantage of the deceased’s negligent exposure of his foot, to entrap and purposely injure him.
    Appeal from a judgment in favor of tbe plaintiff, entered on tbe verdict of a jury, and from an order denying a motion for a new trial, made upon tbe minutes of the justice before whom tbe action was tried.

      JR. E. Eeyo, for the appellant.

      Geo: Putnam Smith, for tbe respondent.
   Davis, P. J.:

This action was brought to recover damages for injuries resulting in death, received by plaintiff’s intestate while attempting to get on board a train of the appellant.. There is no controversy in the evidence as to the fact that the train was in motion when the deceased attempted to get on board. He, with several other persons, had come up on the Third avenue cars from the City Hall station to the Chatham Square station, and were hastening to catch the train on the Second Avenue road, at that junction. To do this they were to ascend one flight of stairs and descend another, beside passing some little distance on the platforms. The Second Avenue train was coming up as the passengers left the other train, and it appears they ran over the stairs with the intention of catching the train then at the station. Some of them succeeded ; but the evidence shows that as deceased ran down the stairs, with two persons in advance of him, the gate of the Second Avenue car was closed, and the train started. The two persons in advance pushed open the gate and got on board the moving train; the deceased attempted to get on board, but at the same moment the conductor again closed the gate, and the foot of the deceased was caught by the gate so that he was carried along several feet till, at the end of the platform, he was struck by the iron water pipes descending from the roof of the station and knocked from the car, and received such injuries that his death resulted therefrom. The incident occurred on the evening of the 9th of December, 1881, at seven o’clock and two minutes. Another train was due at the station in four minutes. There was no occasion for great haste or urgency on the part of the deceased, except that his son, who was going home at the same time, had succeeded in boarding the train. The learned judge who tried the case, seemed, as appears by his charge, to have been under the impression that there was a controversy as to the fact whether the train was moving when the deceased attempted to board it, for he said to the jury: “ To attempt to board a train while in motion would be an act of negligence. It has been so held by the court; but the plaintiff claims that when the intestate attempted to board the train it was not in motion; that the gate was open, and as he put one foot upon it the gate was shut and he was thrust out. The defendant has given an entirely different version of the affair, and it is for you to say which theory of the case you will adopt in rendering a verdict.” The judge had already charged that the jury must “ be satisfied that the person who was killed was without fault or negligence, or if there was the least fault or negligence on his part which contributed to the injury, even though the defendant’s agents were guilty of negligence, the plaintiff cannot recover.”

This was a correct statement of the law as settled in this State ly numerous. authorities. It is also well settled that an attempt to board a railway train while the cars are in motion is.contributory negligence, if injury results from such attempt; and that no recovery can be had for the injury. (Phillips v. Rensselaer, etc., R. R. Co., 49 N. Y., 177; Burrows v. Erie R. R. Co., 63 N. Y., 556.)

There being no controversy in the case on the question whether or not the train was in motion to leave the station, when the deceased attempted to board it, it seems manifest that the learned judge gave to the jury an issue not really in the case, when he stated to them the claims of the respectiv'e parties; and the other portions of the charge show that he must have been under a misapprehension as to the evidence, or he would have directed a verdict for the defendants.

The cars were certainly in motion, in the act and for the purpose of leaving the station, when the deceased made his attempt to get on board; the only controversy was whether the gate was open at that moment, and whether the conductor’s act of closing the gate defeated the attempt and caused the injury.

It would be our duty to order a new trial because of the submission of an unsupported issue to the jury; but the case presents a question of law which should not be evaded. That question is whether upon the whole case it was not the duty of the .court to have directed a verdict for the defendant. The case which the evidence presents is this: The defendant’s Second Avenue train on the elevated railway had reached and was about leaving the Chat-ham Square station; the deceased with other persons were hastening from another train to get on board; but as they, came running up for that purpose the gate on the platform of the car was closed and the train started to leave the station. It was moving, but slowly, when two persons running in advance of the deceased pushed open the closed gate and boarded the car; the deceased also attempted to get on, but at that moment the conductor again closed the gate while the deceased was stepping on the car having one foot on the platform ; that foot was caught by the gate so that the deceased was carried along a short distance by the moving car until struck by a projecting pipe of the station by which he was knocked from the car upon the track below and fatally injured.

On this state of facts it is apparent that there was no negligence on the part of the defendants in the closing of the gate at first, and starting the train. The deceased and others, though running to catch the train, were too late to do so before the gate was closed and the train started. When they saw that state of things their duty was to stop and wait for the next train, only five minutes later. To attempt to force open the gate and get on the moving train was not only a violation of the rules of the railroad company, but gross negligence on the part of the persons who succeeded in doing it. Up to that point there was no ground for charging the defendant with.negligence; and at that point the conductor’s duty was to close the gate and prevent other persons from exposing themselves to the special danger that attends the boarding of a moving train on that class of railroáds. When he attempted to perform that duty the deceased was attempting to get on board. The deceased could not fail to know that the cars were moving, but he doubtless supposed he could safely board them. Still there was manifest risk in his act, and it was therefore clearly a negligent act. Concede that if the conductor saw his persistence in attempting to get on board, it was negligence to close the gate to prevent its success; yet that negligence could not have happened but for the negligent act of 'the deceased in endeavoring to board a moving train. It required in any view a concurring negligence to produce the conditions which led to the injury. Which of the two was most negligent is an unimportant inquiry, because it is apparent that the injury would not and could not have happened but for some concurring negligence of both. However great the negligence might have been on the part of the conductor, yet if the negligence of the deceased contributed in any degree it is fatal to a recovery. (Wild v. The Hudson R. R. R. Co., 24 N. Y., 430; Owen v. The Hudson R. R. R. Co., 35 id., 516.) It is not claimed that the defendant was guilty of any willful wrong, as that it took advantage of the negligent exposure of defendant’s foot to be caught by the gate, to entrap and purposely injure him. The catching of the foot was doubtless an incidental accident which would not have occurred in many similar cases, yet which, in this case, happened to occur because of the deceased’s attempt to do what he ought not to have done, to get on a train after it had started from the station. It is impossible not to see that, whatever negligence there was in this ease chargeable to the defendant, there was also mutual and contributory negligence, without which no injury would have happened to the deceased. But for his persistence in attempting to get on board a moving train, no improper or negligent act of the conductor in shutting the gate would have injured him; or, in other words, the negligence of the deceased put him in a position where the negligence of the defendant’s servant produced the injury which resulted in the fatal injury

While the elevated railroads are to be held to strict responsibilities, it cannot be too strongly impressed upon the minds of all persons who make daily use of the elevated railway trains that their duty to' themselves, as well as to the railway company, is to obey the reasonable rule of law and of good sense that forbids all attempts to board a moving train. The act is none the less dangerous because it is often done with impunity. When the train is in motion, whether the platform gates are closed or not, more or less risk of danger always accompanies an attempt to get on board the cars.

The law must hold the taking of that risk by a j>asseuger to be negligence, because it is an imprudent exposure to danger of serious injury. To accomplish “ rapid transit,” á great and now indispensable convenience to an active and busy population, the trains must not only be frequent and travel speedily, but must stop and start quickly, otherwise great frequency of trains would be impracticable. They who find a train already moving away from a station and think the few minutes before the next train of more value than safety from danger, must understand that in law they take life and limb into their own keeping when they violate the reasonable rule that charges the risk of negligent exposure upon themselves. The law is thus established by the highest courts and our simple duty is to respect and apply it. The court in this case should haye directed the verdict for the defendant.

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

Daniels, J., concurred; Brady, J., concurred in the result.

Judgment reversed, new trial granted, costs to abide event.


author: Daniels, J.:

text:
    JENNIE C. A. WEED and Others, Plaintiffs and Appellants, v. NAOMI C. PAINE and Others, Defendants and Appellants.

      Costs and allowances —powrn' of the court to provide for the compensation of a special guardian — additional allowances — when they may be made to each side — restriction as to the amount thereof— Code of Civil Procedure, secs. 3253, 3254.
    The power oí the court to award to the guardian of an infant, to be paid out of the subject matter of the action, such a compensation as appears to be reasonable for the services he has performed, is inherent in it and does not depend upon the provisions of the Code of Civil Procedure, nor is it to be included in or limited by the sum of $2,000 fixed by section 3251 of the said Code as the limit of allowance.
    Where the parties on each side of an action prove to be successful, and each becomes entitled to recover costs separately, the court has power, under section 3253 of the Code of Civil Procedure, to award additional allowances to each, provided that the amount so awarded to each side does not exceed $2,000, or $4,000 in the aggregate.

      Qucere, as to whether an action of partition is one in which such an allowance may be made to each side.

      It seems, that it might be made where a sale is had, but not where an actual partition is made.
    Appeal by both parties from an order made at a Special Term, making and denying additional allowances of costs.

      John 8. Davenport, for the plaintiffs.

      Albert J. Jenk and EUal F. Rail, for the defendants.
   Daniels, J.:

The action was for the partition of real estate owned by Hanford Smith in his lifetime, and upon its final determination an additional allowance of costs to the extent of two thousand dollars was made and distributed between the parties to the action, including the compensation of the guardian ad litem.

The court declined to increase the aggregate amount of the allowance upon the supposition that it could in no event exceed the sum of two thousand dollars, and that the guardian’s compensation should also be included within that sum.

The compensation made to a guardian ad litem in equitable actions was not, however, dependent upon this, or any similar provision of the Code. For before its enactment it was the practice of the Court of Chancery to compensate the guardian for the services performed by him in the protection of the infant’s interests, by allowing him-to recover costs not exceeding the taxable items prescribed for the services performed. (Union Insurance Company v. Van Rensselaer, 4 Paige 85, 87; Gott v. Cook, 7 id., 523, 544.)

And under this inherent and well established authority of the court the rule has been prescribed and followed, of awarding to the guardian, to be paid out of the subject matter of the action, such a compensation as appears to be reasonable for the services he in fact performs. And Bule 50 of the present rules of all the courts of record of the State in express language embodies and sanctions the continued application of the same principle. The authority has not been derived from and is not included within the provisions of the Code relating to additional allowances, and for that reason the compensation to be made to the guardian ad litem should be considered as independent of and forming no part of the amount mentioned in the Code.

By the language of section 3253 of the Code, the most general authority is given to the courts to make additional allowances by way of costs in actions for the partition of real property. And this general language is subjected to no other restriction than that contained in the succeeding section, and that restriction is, that all the sums awarded t.o the plaintiff, or to a party, or two or more parties on the same side, cannot exceed in the aggregate two thousand dollars. The ordinary effect of this section would be to limit allowances in an action to this sum of two thousand dollars. For the cases are not common in which each of the adverse parties to-the action may become entitled to costs and when they are not the allowance must necessarily be confined to the successful party. But when parties who may be adversely related to the action are each successful and for that reason become entitled to costs, there this-restraint can have no application. For it has been expressly confined to the party or parties on the same side in the action, and by that phraseology it must have been intended to include only the party or parties sustaining the same relation • to the controversy either as-plaintiff or defendant. The language cannot consistently be construed so as to give it any greater legal significance.

.When, therefore, the parties on each side of the action may prove to be successful, and on that account each entitled to recover costs separately, this provision does not stand in the way of the court, in the exercise of the preceding general authority, in its power over this subject of allowances further than that they shall not exceed $2,000 to the parties on each side of the action. It does not, in other words, prevent the court from exercising the same authority in behalf of the parties on each side of the litigation, so that an allowance may now be made in a proper case to the plaintiff or plaintiffs in an action, and also to the defendant or defendants, provided that they shall not exceed $2,000 on a side, or $4,000 in the aggregate.

In determining this point it becomes unnecessary to recur to the provisions contained in the preceding Code, for the language which has been now employed to express the legislative 'intention is reasonably plain and free from ambiguity, and it supports this and no other fair construction.

Whether an action for the partition of real estate may be included within this authority, to the extent of permitting an allowance to the parties on each side, is not a matter now required to be determined. If actual partition of the property is made, that may be the subject of serious doubt. (Code, § 1559). While if a sale of the property is made then the right would seem to be reasonably free from doubt. (Code, § 1519.) But as the right to the allowances was not considered when the order was made, but only the extent of the authority of the court over the subject, this doubt is not required to be solved on this occasion. All that can now be determined is that the provisions relating to allowances do not limit them to the sum of $2,000, when they may be made to one or more plaintiffs, and also to one or more defendants in the action.

The order should be reversed, but without costs.

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

Order reversed, without costs.


author: Brady, J. Daniels, J.: Davis. P. J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JAMES LANE, Appellant.

      New trial in criminal cases — when granted on the ground of newly discovered evidence— Oode of Oriminal Procedure, sec. 465.
    Upon the trial oí the appellant for robbery in the first degree, he was examined in his own behalf and denied positively the commission of the offense, or any participation in it, and claimed to have been at the time of its commission at the residence of his sister at a christening; his testimony as to the latter fact being corroborated by that of several other witnesses called by him. Two police officers called by the people testified to the general bad reputation of the appellant; and one of the officers testified that he wpuld not believe the prisoner under oath. No witnesses as to his good character were called by the appellant.
    After his conviction he moved for a new trial, under section 465 of the Code of Criminal Procedure, upon affidavits of persons who were present at or in the vicinity of the robbery at the time it was committed, and who stated positively that the appellant was not one of those engaged in it, and also upon affidavits showing the good character of the appellant. One of the latter affiants stated that he was in court during the trial expecting to be called as a witness as to tbe character of the defendant, but was not examined for some reason which he. did not understand.-

      PL'eld, that although the evidence as to the occurrence itself was cumulative ana furnished no ground for granting a new trial, the evidence as to the appellant’s good character was not, and that the court erred in not granting the motion. (Davts, P. J., dissenting.)
    Appeal from a judgment of ccnvietion of robbery iu tbe first degree and from an order denying a motion for new trial under section 465 of tbe Oode of Oriminal Procedure.

      George M. Curtis, for tbe appellant.

      John MoKeon, for tbe respondent.
   Brady, J.

Tbe appellant was convicted of robbery in tbe first degree. Hpon tbe trial be was examined on bis own bebalf and denied positively tbe commission of the offense or any participation in it, and proved an alibi. Several witnesses called on bis bebalf also testified that, at tbe time of tbe commission of tbe robbery, be was at bis sister’s residence, where be himself stated be was, and where he went to attend the festivities consequent upon a christening. In rebuttal^ the people called a police officer, who testified that he knew the general reputation of the defendant, that it was bad, and that he would not believe him under oath. The officer also testified as to the bad character of one of the witnesses examined on behalf of the appellant. Captain Petty was also called as a witness in reference to the reputation of the prisoner, and said it was bad. No other witnesses were examined on that subject by the people. No witnesses were called on behalf of the appellant in respect to his good character. After conviction a motion was made for a new trial under section 465 of the Code of Criminal Procedure, upon affidavits of persons who were present, or in the vicinity, at the time the robbery was committed , and who were positive in stating that the appellant was not one of those engaged in it, as they distinctly saw all who were; and affidavits also showirg the good character of the prisoner, who, it may be here observed, is but twenty-one years of age.

It appears from the affidavit of one of the affiants, that he was in court during the trial, expecting to be called as a witness as to the character of the defendant, but was not examined for some reason which he does not understand. Section 465 of the Code of Criminal Procedure, to which reference has already been made, provides, by its seventh subdivision, that a new trial may be granted when it is made to appear by affidavit that upon another trial the defendant can produce evidence such as, if before received, would probably have changed the verdict, if such evidence has been discovered since the trial, is not cumulative, and the failure to produce it on the trial was not due to want of diligence. The evidence as to the occurrence itself must be regarded as cumulative and, therefore, not one of the elements indicated. The element of good character, however, as to which there was no evidence given on behalf of the appellant, was not cumulative. (See Huebner v. Rosevelt, 1 Daly, 111.)

This court held, in the case of Clute v. Emmerick (12 Hun, 504), that the error of a counsel in admitting a paper to be immaterial worked an injustice and therefore a new trial should be granted. Hence, there are two features of this case which commend themselves to the consideration of the court, the omission of counsel to call witnesses as to good character and the probable effect of such proof in answer to the evidence given by two witnesses connected with tbe police department. The section of the Code provides for a case where a defendant could produce evidence such as, if before received, would probably have changed the verdict. It may be said with very great propriety that, considering the youth of the prisoner, his positive denial of the accusation against him and the evidence relating to the alibi, if he had superadded to that, evidence of good character given by persons of respectability, such proof would probably have changed the verdict. Assuming the counsel to have known of the presence of the witnesses for that purpose, and that he omitted to call them, such omission should not act to the prejudice of the appellant.

Motions of this character are addressed to the discretion of the court, and each application must therefore depend upon its distinct characteristics and cannot be said to furnish a precedent. It is not intended, by the view which is taken of the application made to the court below, to encourage applications of this nature, or to establish as a general rule that the omission of counsel to call witnesses upon a vital point in the case shall find favor in applications for a new trial. "When, however, it is the conviction of the court of review that injustice has arisen from the incidents of the trial, and the application for a new trial is brought within the provisions of the Code (supra), a new trial will be granted without hesitation.

The learned recorder fully considered the motion and delivered an elaborate opinion; but the effect of the proof of good character, in response to the evidence on that subject given by the people, does not seem to have received particular consideration.

It is thought, for these reasons, that the administration of justice demands a new trial.

Ordered accordingly.

Daniels, J.:

I agree to the conclusion of Mr. Justice Brady that there ought to be another trial of the indictment against the defendant. Upon the whole case as it is now presented, but which may be very mate; rially changed on the oral examination of the witnesses, there is serious ground for doubt as to his guilt. That will be either removed or confirmed, by another trial; and under the circumstances justice requires that it should be ordered, for the doubt can be removed in no other way.

Davis. P. J.

(dissenting):

I cannot concur in the views expressed by my brothers. It is, I think, a very dangerous rule to hold that verdicts In criminal cases may be set aside and new trials ordered on the affidavit of the convicted defendant that, on a'new trial, he will be able to produce witnesses of his own good character to contradict witnesses called on the trial to impeach his credibility by showing him to be a man of bad general character.

When the defendant made himself a witness on his own behalf, he, of course, opened the door for the people to attack his credibility by showing his general bad reputation or character. This was a collateral issue, and not one, in my opinion, within the intent and meaning of the 165th section of the Code of Criminal Procedure. To so construe that section as to embrace it, will be a most dangerous inovation in the law governing criminal trials, and will virtually, in eveiy case where the defendant, as a witness, is impeached, or his witnesses are impeached, require that a new trial be ordered on affidavits that witnesses to sustain his or their character can be produced on a new trial.

The new testimony on such a question is cumulative, because it relates to a question on which an issue was necessarily presented and tried, and on which witnesses were examined. The defendant was not surprised, for he had a witness in court on that very issue who, for some unexplained reason, was not called. The reason was doubtless a good one, as explanation .would be likely to show. I have carefully read the learned recorder’s opinion on the motion, and think the reasons he assigns for denying the motion to be correct, and that they ought to be controlling.

I therefore dissent from the conclusions of my brethren, and concur in those of the recorder.

New trial ordered.


author: Beady, J.:

text:
    JAMES McNULTY, Appellant, v. JOHN B. SOLLEY, Respondent.

      Arbitration — a submission to arbitration effects a discontinuance of the action.

    During the pendency of this action the parties thereto signed a written agreement by which they agreed to leave all their differences to three arbitrators therein named, and that their decision should be final. The agreement was not acknowledged but was signed by the parties and three witnesses.

      Meld, that the agreement, operated as a discontinuance of the action, and that the fact that one of the arbitrators refused to act and that one of the parties refused to appear before the arbitrators, did not prevent it from having that effect.
    Appeal from an order directing a discontinuance of this action.

      James M. Smith, for the appellant.

      A. Cardoso, for the respondent.
   Beady, J.:

This is an action of slander, and appears to have been once tried and once partially tried. The complaint was once dismissed, and upon the subsequent investigation and before it was concluded, a juror was permitted to be withdrawn on account of the illness of the counsel for the plaintiff. Subsequently the parties signed a paper as follows:

“We, the undersigned, hereby agree to leave our differences to the above named parties, Shether, Connett and Silverman, as arbitrators, whose decision shall be final.

(Signed) JAS. McNULTY.

JOHN B. SOLLEY.

“ The within document was signed in our presence.

(Signed) J. D. E. HERSEY.

N. B. DAY.

FRANK A. ELLIS.”

In May, 1888, the plaintiff was directed to show cause why an order should not be made declaring the action discontinued, and why such other or further order or relief should not be made in the premises.

Tbe facts already stated as characterizing the litigation, are set out in the affidavit of the plaintiff. It was admitted by him that on the 27th of April, 1883, he and the defendant met for the peaceful settlement of certain differences, at which meeting the witnesses whose names are subscribed to the agreement of arbitration, were present and formed themselves into a committee. It was then suggested and advised that the paper already mentioned should be signed. The plaintiff averred that since the signing of the paper no action whatever had been taken by either of the persons named in the paper, they having been selected without their knowledge or previous consent, and that one of them, Mr. Shether, declared he would not act; and he further alleged that he was ready and willing to comply with the terms of the agreement. • And the plaintiff also presented for the consideration of the court an affidavit showing that a person called upon the defendant asking him to name a time when he would meet the committee, and substantially that he had failed to do so. This was denied by the defendant, who said that what he did say was that he could not attend upon the days named because of his business, but further, that if he could attend on one of the days named, he would send word.

The submission to arbitration was therefore admitted. It is supposed by the appellant that the willingness of all the parties to act is an implied condition precedent to the taking effect of the agreement, and that the refusal of the arbitrators to act leaves the parties in statu quo ¡ and further, that the agreement is defective, as a binding agreement, because it waé not acknowledged as required by the Code. Both of these propositions are valueless. Whatever may be the effect of the refusal of the arbitrators to act in an arbitration where there is no pending action at law, and whatever may be the effects of the provisions of the Code upon an arbitration made with reference to them, these effects do not control the question presented by this appeal.

The provisions of the Code, however (sec. 2366), evidently contemplate a submission to arbitration of any controversy existing between persons at the time of the submission, which might be the subject of an action. The cases bearing upon the question of the effect of a submission to arbitration of differences when an action is pending, have not declared that any particular form of acknowledgment is indispensable. It is enough that the parties have in writing agreed to a submission to arbitrators. In this case such an agreement is admitted to have been made. The effect of such an instrument has been declared in a number of adjudicated cases. It is to discontinue the action. And this seems to be the effect, even if the submission was void. (Keep v. Keep, 17 Hun, 152, where the cases are collated ; see, also, Barrett v. Western, 66 Barb., 205.)

Justice Marcy, in Larkin v. Robbins (2 Wend., 505), said that the general position is that a submission of a cause pending in court is a discontinuance of the suit, that the reason the submission operates as a discontinuance is not because the subject of the suit is ■otherwise disposed of than by the decision of the court in which it was prosecuted, but because the parties have selected another tribunal for the trial of it. And again: “ The distinction that the plaintiff in error makes between a submission never acted on by the arbitrators, and one which has been followed by an award or hearing by the arbitrators, does not appear to have been recognized by the court, nor do I see any good reason for making such distinction. * * * It is this agreement which withdraws the cause from the court and effects the discontinuance of the action.” And it was also said by the learned justice that the point evidently, for the consideration of the court, was whether the mere submission of a cause to arbitration, the arbitrators never taking, or consenting to take, upon themselves the burden of the submission, operated as a discontinuance of the suit pending in court. As justly observed by the counsel for the respondent, the refusal or omission of either party to attend before the arbitrators would not alter the consent, inasmuch as upon proper notice the arbitrators could proceed in the absence of the defaulting party. It thus appears that upon the eases bearing on the subject the mere submission to arbitration operates as a discontinuance of the action, and the order appealed from could not be reversed without, in effect, reversing these decisions.

It follows that the order should be affirmed.

Order affirmed.


author:
      Brady, J.:
      Daniels, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. THE NATIONAL TRUST COMPANY OF THE CITY OF NEW YORK, Respondent. In the Matter of the Appointment of a Receiver for the NATIONAL TRUST COMPANY OF THE CITY OF NEW YORK.

      Practice — one justice of the Supreme Court cannot review the decision of another, accept as to provisional remedies and, the cases arising under section 772 of the Code of Civil Procedure.

    December 14,1877, W. J. Best was appointed the receiver of an insolvent moneyed corporation upon the petition of certain of its stockholders, made under the provisions of the Revised Statutes relating thereto. In April, 1879, a judgment dissolving the corporation was entered, in an action brought by the attorney-general for that purpose, and Best was again appointed receiver and directed to transfer to himself, as such, the property which he held as receiver in the former proceeding. In August, 1878, an order had been made in the first proceeding passing his accounts up to June 29, 1878, and allowing him certain commissions. In August, 1879, another order was made in the same proceeding passing his accounts to date and allowing commissions computed at the rate of five per cent on receipts and disbursements.
    In July, 1882, proceedings were instituted in the second action by the attorney-general to compel an accounting. The attorney-general, upon discovering in these proceedings the said orders so allowing the receiver commissions, moved, in June, 1883, at a Special Term not held by the justice by whom such orders were made, to have the said orders set aside, vacated or resettled, and to have the fees of the receiver fixed at the same rates as those allowed to executors and administrators.
    The motion was denied upon the ground that the justice presiding could not review the action of another justice of the same court.

      Held, that the motion was properly denied for that reason, and that the order should be affirmed, but with leave to the attorney-general to renew his application at a court held by the justice under whose authority the former orders were made.
    Appeal from order of the Special Term,, denying ■ a motion to vacate and set aside, or to resettle, certain orders allowing the receiver compensation.

      John G. Keeler, deputy attorney-general, for the appellant.

      Francis N. Bangs, for the respondent.
   Brady, J.:

The National Trust Company of the city of New York was a moneyed corporation, organized under chapter 460 of the Laws of 1867. On the 14th of December, 1877, an order was made, under the provisions of the Revised Statutes relating to the subject, upon the petition of certain stockholders of the corporation, enjoining it from transacting any further business, and appointing William J. Best receiver for the purpose of winding up its affairs. The receiver «qualified at once and entered upon his trust, and converted into cash the assets, which consisted chiefly of marketable securities. Within ■a period of about six months after thus qualifying, these securities had been reduced to cash and the depositing creditors paid their .accounts in full. The corporation had not been dissolved, however, under these proceedings, and consequently, in March, 1879, the attorney-general began an action against the corporation to accomplish that result. In April, following, judgment was rendered to that effect, and Best was appointed receiver, and directed to transfer to himself, as such, the property which he held as receiver in the former proceeding. This he did.

In August, 1878, an order was made in the first proceeding passing the accounts of the receiver from the time of his appointment until the 29th of June, 1878; and it appeared that during that period he had collected from all sources $1,734,642.44, and had disbursed $1,548,400.98. Upon the coming in of the report he was allowed as a commission three per cent on the sum first named, or $52,039.27; and an allowance of $10,000 was also made to his counsel for services. This order was made at Special Term and is dated the 7th of August, 1878, and is predicated of the report ■of the referee who was appointed to take proof of all the facts and -circumstances stated in the report of the receiver, and to examine and pass upon his accounts and to report thereon to this court. On the 7th of August, 1879, a further order was made in the first proceeding at the Special Term, in which it was recited that the receiver having given notice to all persons in anywise interested in the National Trust Company of the city of New York, as required by law, of his intention to present and render to this court, at a Special Term thereof to be held in the county court-house, in the city of New York, on the 9th of June, 1879, at ten o’clock in the forenoon of that day, a full and accurate account, under oath, of all his proceedings as receiver; and having rendered to the court, pursuant to the statute in such case made and provided, and of sucli notice, a full and accurate account, under oath, of all his proceedings ; and the same having been filed with the cleric of the county on the 12th of June, 1879, an order was thereupon on that day made and entered, pursuant to the provisions of the statute, referring the account so filed to John S. Lawrence and "William. A. Boyd, of the city of New York, counselors at law, who were by the order-appointed referees to examine the account and to hear and examine the proofs, vouchers and documents offered for and against it, and to report thereon to this court; and to take proof of the claims-presented to the receiver for costs and counsel fees mentioned in the schedule of the account, and to report to this court as to whether the same were proper and reasonable charges against the funds in the hands of the receiver; and that the said John S. Lawrence and William A. Boyd having made their report to the court, dated the 30th of July, 1879, and which was filed with the clerk of the county, and by which it appeared, amongst .other things, that the referees had examined the account of the receiver so filed and the proofs, vouchers and documents offered for and against the same, and that the receiver,, as such, had in his hands the sum of $186,241.46. The receiver was by this order allowed two percent upon the sum of $1,734,642.44, and five per cent upon the sum of $41,478.69, which had been received in addition to the sum heretofore stated, and which commissions aggregated in all the sum of $89,506.65.

It appears further that in July, 1882, an accounting of the affairs of the receivership was begun by the present attorney-general. On the accounting the receiver asked to be credited with $36,766.73 paid' to himself for commissions under the order of August 7, 1879. The attorney-general believing that the receiver was entitled for receiving and disbursing the sum received by him to no greater amounts than those allowed by law to executors and administrators, and that such commission was the only sum with which the receiver could be asked to be credited, made a motion at the Special Term on the first Monday of August, 1882, to resettle the orders of August 7, 1879, so that the fees adjudged to the receiver should not be more than those allowed by law to executors and administrators. It appears that this motion never was decided, and in December, 1882, the attorney-general withdrew it, having ascertained in the meantime that by an order made August 7, 1878, the sum of $52,039.27 had been allowed to the receiver for commissions. It also appears that the accounting set in motion by the attorney-general had not been closed and that the referee had not made his report at that time, whereupon a motion was immediately made by the attorney-general for leave to intervene in a stockholder’s proceeding and to set aside and vacate or resettle the orders of August 7, 1878, and August 7, 1879, and for an order fixing the receiver’s fees at the same amount as those allowed by law to executors and administrators. The motion was returnable on the first Tuesday of January, 1883, and it was not heard until the twenty-third of that month. Before the motion was heard the referee had made his report, but it had not been confirmed. The motion was denied for the reason that the justice presiding could not review, as he stated, the action of another justice of this court. Upon this last order the appeal is taken to this court by the attorney-general.

As the object was to reduce the amount of commissions which had been allowed, the application was one to resettle a judgment; and it was not made until nearly three years had elapsed from the-time of its entry. No fraud or irregularity in obtaining the judgment was alleged.

There can be no doubt of the jurisdiction of the learned justice who presided when the orders were made, to entertain the proceeding before him, and to make the allowance for commissions; and assuming the sum allowed to be erroneous, as it may be, for the. purposes of this appeal, the application should have been made to him to resettle or vacate the order, or an appeal taken for the purpose of reviewing the propriety of the order made. The learned justice at the Special Term therefore very properly determined that an application to vacate or resettle the order or judgment in refer-, ence to the commissions, should have been made to the learned justice presiding at the time the orders or judgments were made, if that course were the one which the attorney-general thought best, under the circumstances, to adopt.

To entertain applications of this character would lead to inextricable confusion, and would in effect be asking one judge presiding at the Special Term to review the decisions of another, a practice which for a time prevailed to some extent, it may be, in the history of the jurisprudence of the State, but which was attended with serious, if' not disastrous, consequences.

It is not necessary to consider whether the attorney-general has any remedy by way of appeal from the order confirming the report of the referee on the last accounting, nor is it necessary to determine whether he has any interest in the proceeding. It must be assumed that the learned justice who presided when the orders and judgments were’made, of which the complaint is predicated, would, on his attention being called to the propositions, make such changes as are demanded by the application of the proper rules of law. And as there seems to have been some error in the amount of the commissions awarded, the .better disposition of this matter is to remit it to the'Special Term, to be brought on before the learned justice presiding when the orders of August 7, 1878, and August 7, 1879, were directed, for him to make such disposition of the application as, .under the circumstances, he shall deem best. The proceedings herein have been set out in detail, so that the necessity of observing and enforcing the rule which prohibits one justice from reversing the order of one of his brethren made in the same tribunal, may be made apparent. The application of the attorney-general before any judge to accomplish the object designed is not warranted upon the decision in the case of Kamp v. Kamp (59 N. Y., 212) in which the court said: The application in the case before us is not to reverse the judgment and decision of the court making the orders, or to reconsider the merits of the controversy, but to arrest the proceedings for enforcing a void judgment.”

The complaint made in that case was that the order which was the subject of consideration, was made without any jurisdiction, and the court sustained the objection. Nor is the application warranted by anything decided in the case of the Attorney-General v. The North America Life Insurance Company (89 N. Y., 94).

For these reasons the order suggested should be made.

Daniels, J.:

It may be assumed in tbe decision of this appeal that the orders which it was the object of the motion to reponsider, were erroneously or inadvertently made, for the allowances made by them to the receiver exceeded the rate prescribed by the statute for his commissions. But the orders by which the commissions were allowed, were not directed by the justice who presided in the court at the time when the motion resulting in the present order was made. Those orders were made at another term of the court, held by another justice, and upon what was then deemed to be a full consideration of the merits of the respective applications-.

The court, as it was then constituted, had jurisdiction to hear and decide the applications, and if the orders were erroneously made, the remedy provided for their correction has been that of an appeal to the General Term by section 1347 of the Code of Civil Procedure.

But while that is the general course of proceeding prescribed for reviewing orders affecting substantial rights, it is not to be regarded as exclusive. Por, in addition to the appeal so provided for, the party entitled to complain of the order may still move to vacate or obtain its reconsideration. (People ex rel. Day v. Bergen, 53 N. Y., 405, 410.)

But an application of that nature made before a court presided over by another justice than the one directing the orders, is practically an appeal from one co-ordinate court to another, and that has not been provided for in the system of practice now prevailing in and governing the courts of this State. The only class of cases in which, by the Code, one justice of the court is authorized to vacate or modify the orders made by another, is that provided in section 772 of the Code of Civil Procedure, and those relating to provisional remedies. Under that section an order, not being a provisional remedy, but made by a justice of the court without notice, may be vacated by the court, although the justice presiding may be another and different person from the one making the order. With this exception, and those included as orders known as provisional remedies, no authority has been, expressly or by any clear implication, given to one justice presiding in court to vacate or reconsider the orders made by another, and the omission to provide such authority is a circumstance, indicating it to have been the intention of the legislature that it should not be exercised. And pursuant to that general policy, the power which previously existed of allowing one justice at Special Term to review trials had before another at the circuit has been so far qualified that a motion for a new trial must now be heard before the justice presiding at the trial, if he is living and his term of office has not expired, unless he specially directs it to be heard before another judge of the same court. (Code of Civil Pro., § 1002.)

In its theory the policy of the Code has been to prevent one judge from- reconsidering and reviewing the orders which upon motion may have been heard and decided in a court held by another. And that policy has been ordinarily observed and carried into effect by the determinations of the courts themselves before the enactment even of the present Code; and the rule has been very generally adopted and observed where the order complained of has not been obtained by collusion, or there is not an absence of jurisdiction in the tribunal directing it, in either of which cases it may be disregarded, to require the application for its reconsideration, when that is not to be made by a direct appeal from it, to be made in a court held by the same justice originally directing the order. And the only exceptions made to this rule have been to provide for cases where the justice giving the direction may himself have died or ceased to be a member of the court, and orders taken without notice or by default. In those events, as the observance of the rule would be impracticable for the purpose of securing what may be just and right, the application for a reconsideration of the order may then be made before a court held by another justice.

This rule has been very uniformly adhered to, to avoid the unseemly conflict which would otherwise necessarily arise between courts possessing co-ordinate authority, and a departure from its observance has only been sanctioned in the exceptional cases which have already been referred to. ( Wilson v. Barney, 5 Hun, 257; Dinkelspiel v. Levy, 12 id., 130.)

Upon this subject it has been justly said that “ it would be a very unwise administration of justice and lead to much vexatious litigation if a judge holding one Special Term could upon a mere motion set aside the decision and judgment of another judge at Special Term, upon allegations that the latter had erred as to any of the questions submitted for his determination. (Fisher v. Hepburn, 48. N. Y., 41, 53.)

This is without doubt a concise and accurate statement of the rule prevailing in the courts upon this subject, and the application which has now been brought up by appeal was clearly within the principle of this determination. It was further sanctioned in Kamp v. Kamp (59 N. Y., 212), where it was said, in the course of the opinion, that the case just referred to “ gives the true reason why it is not fit that one judge should sit in review of the decisions and judgments of another judge of the same court; and that reason rests not so much on a want of power to correct what has been mistakenly done, as the confusion and vexatious litigation that would be likely to arise from so unwise a course in the administration of justice.” (Id., 217.)

It will be seen that these observations are very just and discreet, when the effect of a different practice is considered. For if one judge at a term of court held by him may reconsider the orders or judgments directed by a preceding judge at another court, his own orders or judgments would be liable to re-examination by still another judge, and the investigation could not often be limited to the intervention of a third tribunal. For it might, with the same propriety, be continued from time to time as long as any other differently constituted tribunal could be found that would be willing to take up and examine the case.

The principle or practice.which would allow that course of proceeding would necessarily bring the courts as well as their authority into disrepute, and deservedly deprive them of the confidence and respect of the public.

Where the preceding order may have resulted from a default without any actual decision of the court directing it, the principle, of course, would not be applicable. (Thompson v. Erie Railway Company, 9 Abb. [N. S.], 233.)

But the application which was made in this case was not dependent upon such an order. Neither was either of the contingencies, or qualifications already considered, applicable to the case. For the justice under whose authority the orders were made is still presiding in the same court, and no obstacle whatever stands in the way of an application to him to reconsider the orders because of this erroneous excess of authority included within their direction. And no doubt at all can be entertained, when the subject shall be brought to his attention, that the proper correction in the allowances of the receivers commissions will at once be made. But if any error or mistake should by any possibility then intervene, the remedy has been clearly prescribed by the provisions of the Code, and that is by way of appeal from the order.

The order in this case should be affirmed, but without costs, and with liberty to the attorney-general to renew his application at a court held by the justice under whose authority the orders to be considered were made.

Present — Beady and Daniels, JJ.; Davis, P. J., taking no part.

Order affirmed, without costs, and with liberty to the attorney-general to renew the application. 1