text:
    HENRY R. PIERSON, as Receiver of the WIDOWS AND ORPHANS’ BENEFIT LIFE INSURANCE COMPANY, Appellant, v. ANDREW W. MORGAN, Respondent.

      Right to revive an action — Code of Oivil Procedure, sec. 757 — the motion may he made hy the personal representatives of a deceased defendant.

    The privilege of having an action brought by a sole plaintiff against a sole defendant revived after the death of either, conferred by section 757 of the Code of Civil Procedure, is not confined to the plaintiff, and the motion therefor may be made by the personal representatives of the deceased defendant. Livermore v. Bavnbridge (49 N. Y., 125) explained and followed.
    Appeal from an order directing the plaintiff to cause the action to be revived, or in default thereof that the administratrix of the deceased defendant be substituted and simultaneously the action be dismissed, with costs and allowance.

      Raphael J. Moses, Jr., for the appellant.

      P. Harwood Vernon, for the respondent.
   Per Curiam:

The case of Livermore v. Bainbridge (49 N. Y., 125) is an express authority that under section 121 of the Code of Procedure the personal representatives of a deceased defendant could not have an action revived, unless the deceased defendant had acquired some right by some interlocutory judgment therein or had become an actor in the proceedings by the presentation of a counter-claim, and this conclusion was based upon the wording of this section, which permitted the revivor, within one year, to be upon motion, or after-wards upon supplemental complaint. It was deemed by the court that the reference to a revivor by supplemental complaint assumed that the plaintiff or his representative is the moving party referred to.

In the Code of Civil Procedure, however, these words are omitted from section 757 as such section now stands, and they were probably omitted because of the construction which had been placed upon them in connection with this matter of revivor, as there would seem to be no good reason why the representatives of a deceased defendant should not have the privilege of having an action revived so that it might proceed to judgment instead of that right being vested wholly in a plaintiff.

We think that, in view of the present language of the Code, the case cited is an authority in favor of the order appealed from, and such a construction seems to be evidently in accordance with the language of the section. The provision as to allowance does not seem to have been an improper exercise of discretion. The plaintiff may continue the litigation if he so desires, and if not he should be required to. pay the usual terms as a condition of being permitted to retire.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Present Yan Brunt, P. J., Brady and Daniels, J. J.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Van Brunt, P. J.:

license: Public Domain

text:
    JOHN PARKER and ROBERT GRAHAM, as Executors, etc., of JAMES LINDEN, Deceased, Appellants, v MARIA LINDEN, Respondent, MARK LYTHGOE and Others, Appellants.
    Wül— construction of— when a testator will he held to home converted his real estate into personalty.

    By Ms will one James Linden, who died on June 10,1885, leaving no issue, gave to one Maria Craig, alias Maria Linden, the respondent herein, one dollar, and authorized and empowered his executors to defend any claim which she might make against his estate, and declared that the said Maria was not his lawful wife. After making certain specific legacies he gave to his half-brothers, ■ William Lego, Mark Lego, and his half-sister, .lane Lego, of Liverpool, England, all the rest, residue and remainder of his estate, both real and per- . sonal, to bo received by them share and share alike. By the sixth clause he ordered that after his just debts and bequests were paid his real estate be sold at public auction under the direction of a referee appointed by an order of the Supreme Court, who should execute to the purchasers deeds of the premises, and deposit the net proceeds of the sale in the Supreme Court, to be invested . under the direction of the court in the same manner as money belonging to non-residents, according to the rules and practice of the Supreme Court in such cases, for the use and benefit of the said half-brothers and sister.

      The widow having recovered a judgment establishing her right to dower in the real estate, and certain legatees, including William and Jane Lego, having died in the lifetime of the testator, the executors brought this action for the construction of the will.

      Meld, that it was the intention of the testator to convert his real estate into personalty.
    That the respondent Maria, as widow of the testator, was entitled to receive one-half of the lapsed legacies and one-half of the two-thirds of the residuary estate intended for William and Jane, and to $2,000 in addition thereto.
    Appeal from a judgment, entered in tbis action brought to obtain a judicial construction of the will of one James Linden.
    One James Linden, residing in the city of New York, died on the 10th day -.of June, 1885, leaving no issue and a last will and testament made, executed and published on the 9th day of November, 1879, which will was duly admitted to probate by the surrogate of the city and county of New York, as a will of real and personal estate, on the 25th of August, 1885. By this will the testator gave to one Maria Craig, alias Maria Linden, the respondent herein, one dollar, and authorized and empowered his executors to defend any claim which she might make against his estate, and declared that the said Maria was no lawful wife of the testator.
    After providing for some special legacies, the fourth clause of the will reads as follows: Fourth. After all my just debts and the money hereinbefore given and bequeathed, and the work ordered to be done and the gold watch delivered, then I give and bequeath to my half brothers, William Lego, Mark Lego, and my half sister, Jane Lego, now or late of Liverpool, England, all the rest, residue and remainder of my estate, both real and personal, of what nature or kind soever, to be received by them share and share alike, or in equal parts.
    By the sixth clause of the will, the testator provided as follows: Sixth. I order, after all my just debts and bequeaths are fully paid and discharged, that my real estate be sold at public auction, under the direction of a referee appointed by the order of the Supreme Court; that said referee execute to the purchaser or purchasers a deed of the premises sold ; the proceeds of the sale, after deducting his fees and expenses of sale, said referee shall deposit in the Supreme Court, to be invested under the direction of said court in the same manner as money belonging to non-residents, according to the rules and practice of the Supreme Court in such cases, for the use and benefit of William, Mark and Jane Lego, as before directed, subject to the further order of the court.
    The respondent, Maria Linden, or Maria Craig, as she is called in the will, brought an action to have her dower assigned in the . real estate of J ames Linden, deceased, as his widow, which resulted in a judgment declaring her to be the widow and assigning her dower in the real estate left by said James Linden. In consequence of the deaths of various of the legatees, and uncertainties as to the rights of the parties under the -will, the executors therein named commenced this action for the construction of the will, and the pourt adjudged, amongst other things, that the respondent Maria Linden was entitled to receive, as widow of J ames Linden, one-half of the lapsed legacies and one-half of two-thirds of the residuary estate intended for William and Jane Lego, and to $2,000 in ■ addition thereto, the said William and Jane having died in the lifetime of the testator. From this judgment this appeal is taken.

      Henry Brewster, for plaintiffs, appellants.

      B. Vanderhoven, for certain of the defendants, appellants.

      E. 8. HecJc, for the respondent.
   Van Brunt, P. J.:

The question involved in this appeal is whether the testator intended to convert his real estate into personalty by the provisions of his will.

It is urged that this construction cannot be placed upon the will because it is manifest that James Linden did not intend to convert the real estate into personalty for the benefit of Maria Linden. That he did not so intend is certainly manifest by the language of the will; and that he did not suppose that such would be the result arising from the provisions under the will that the real estate should be converted into personalty is equally apparent. But the question of the intention of the testator is whether he intended to convert his real estate into personalty. An examination of the will and a consideration of the circumstances under which the legatees were placed seems to show conclusively that such was the intention of the testator. It is true that in the fourth clause of the will the testator makes a devise of the rest, residue and remainder of his estate, both real and personal, to his two half-brothers and his half-sister, absolutely. But it is to be remembered that the testator knew that these half-brothers and half-sister, being aliens, British subjects, could not take real estate by devise. It was this knowledge which undoubtedly caused the insertion in the will of the sixth paragraph, whereby he directed that all his real estate should be sold at public auction under the direction of a referee appointed by an order of the Supreme Court, and that the proceeds of sale should be deposited in the Supreme Court and invested under the direction of said court in the same manner as moneys belonging to non-residents. It seems to be clear that the testator intended that his estate should be converted into personalty in order that his alien brothers and sister might take. He seems to have been aware of the fact that he could not devise to them the realty, and that they could not take the realty as such. Hence, for the purpose of obviating this difficulty he provided for a conversion of the real estate into personalty and a deposit of the money in court for the use and benefit of his brothers and sister. If all his brothers and sister had died, and thus the necessity for conversion of the real estate into personalty had ceased to exist, perhaps this direction would have fallen and the real estate would have descended as realty. But although the learned judge who tried the case at ihe Special Term has found that one brother and sister have died and their legacies have lapsed, there is still a survivor, and it is necessary that the power of sale contained in the will should be carried into effect, so that he may receive his one-third share in money, he not being so situated that he can take the same as realty. The conversion of the estate, therefore, into personalty as was contemplated by the testator is absolutely necessary to the carrying out of the provisions of the will; and there, therefore, was a conversion of the real estate into personalty immediately upon the death of the testator, as was intended by him, and such residue must be distributed as personalty.

It is claimed, however, that the widow cannot claim dower in the . real estate and also participate in the personalty, the proceeds of the real estate under the statute of distributions. The answer to this proposition seems to be that the widow would have been entitled to her dower in this real estate had the testator sold it in his lifetime and left the proceeds in his will as personalty. And if the testator could not deprive the widow of her dower in the real estate by a sale before his death, he could not deprive her of dower in the real estate by directing the conversion of such real estate into personalty after his death. In both cases the widow, so far as the testator died intestate as to his personal estate, would be entitled to her share of the personal estate, and she would also have been entitled to dower in the real estate out of the sale of which this personalty arose.

It would appear, therefore, that the judgment of the court below was correct, and should be affirmed with costs.

Beady and Daniels, J.J., concurred.

J udgment affirmed with costs.


author: Bartlett, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN A. McCALL, Jr., Appellant, v. GEORGE W. GILBERT, Respondent.

      What acts can be done by agents of a foreign insurance company without procuring . a certificate under the act of 1853, chapter 466,' section 23, as emended by chapter 555 0/1875.
    In this action, brought to recover penalties imposed by section 23 of chapter 466 of 1853, as amended by chapter 555 of 1875, upon agents acting for foreign insurance companies, without procuring from the superintendent of the insurance department a certificate of authority stating that the company has complied with all the requirements of the act, it was alleged in the complaint that the defendant, at the city of New York, without procuring the statutory certificate, unlawfully acted for the City Fire Insurance Company of Pittsburgh, .organized under the laws of the State of Pennsylvania, and not incorporated under the laws of this State, in the transaction of the business of fire insurance on property located in New York, “in that he did * * * adjust a certain loss or indebtedness of the said City Fire Insurance Company,” on a policy of insurance on property in the city of New York, and that ,-in making such adjustment the defendant was acting by the direction of and under the employment of the said fire insurance company as its agent for that purpose.”

      Held, that a demurrer, interposed by the defendant on the ground that the facts stated did not constitute a cause of action, should be sustained.
    That in adjusting the loss the agent was not “transacting the business of fire or inland navigation insurance in this State,” as these words were used in the said section.
    That the adjustment of a loss is merely a means of ascertaining the amount of an admitted indebtedness, and that the legislature did not intend to prohibit such adjustments by uncertificated agents of fire insurance companies of other States and foreign countries, where there appeared to be nothing unlawful in the contract out of which the indebtedness had arisen.
    . Appeal by the plaintiff from a judgment entered upon an order sustaining a demurrer intei’posed to the complaint.

      Raphael J. Moses, Jr., for the appellant.

      Thomas .Darlington, for the respondent.
   Bartlett, J.:

This appeal presents the question whether an uncertifieated agent of a fire insurance company which is not incorporated under the laws of this State, can legally adjust a loss here under a policy of that company on property in the city of New York.

Section 23 of chapter 466 of the Laws of 1853, as amended by chapter 555 of the Laws of 1875, provides that it shall not be lawful for any fire insurance company incorporated under the laws of any other State or any foreign government, directly or indirectly, to take risks or transact any business of insurance in this State unless possessed of the capital required of similar companies here. Other important requirements are also imposed by the statute An attorney in this State must be appointed upon whom process of law may be served. A copy of the charter or deed of settlement, a statement containing many particulars concerning the condition of the company, and a copy of its last annual report must be filed in the office of the superintendent of the insurance department. A deposit must be made with that officer, by foreign corporations for the benefit and security of policyholders residing in this country. Then we come to the prohibition concerning agents (Session Laws of 1875, p. 625) which is in these words: “ Nor shall it be lawful for any agent or agents to act for any company or companies referred to in this section, directly or indirectly, in taking risks or transacting the business of fire or inland navigation insurance in this State, without procuring from the Superintendent of the Insurance Department a certificate of authority stating that such company has complied with all the requisitions of this act which apply to such companies, and the name of the attorney appointed to act for the company.”

Under the statute a penalty is recoverable from any agent who violates this provision, and the present action is brought to recover a number of such penalties.

The complaint charges that the defendant, at the city of New York, without procuring the statutory certificate, unlawfully acted for the City Fire Insurance Company, of Pittsburgh, which is organized under the laws of the State of Pennsylvania, and not incorporated under the laws of this State, in the transaction of the business of fire insurance on property located in New York, in that he did * * * adjust a certain loss or indebtedness of the said City Fire Insurance Company ” on a policy of insurance on property in the city of New York; and that “in making such adjustment the defendant was acting by the direction of and under the employment of the said fire insurance company as its agent for that purpose.”

The defendant demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action, and his demurrer was sustained at Special Term. This decision was right unless the adjustment of a loss is “ transacting the business of fire or inland navigation insurance, ” within the meaning of the statute. We do not think these words were used with the intent to prevent the fire insurance companies of other States or foreign countries from employing agents to take the necessary steps to pay their debts here. The complaint speaks of the subject of the adjustment as “ a certain loss or indebtedness.” A liability has accrued against the Pennsylvania corporation arising out of insurance on New York property. There is nothing to show that the contract of insurance was not made under such circumstances as to be perfectly legal. The policy may have been issued in Pennsylvania to citizens of that State on property situated in New York. If lawfully issued there, the insurers would be liable here. (Hope Mutual Life Ins. Co. v. Perkins, 38 N. Y., 404, 408.) Being under an obligation, therefore, to pay something, the company employed an agent to ascertain how much it ought to pay, by investigating, the extent of the loss in the locality where it occurred. It does not seem to us that the statutory prohibition was aimed at such acts as this. The purpose of the statute is an important consideration in passing-upon the question presented hero. It was designed to afford our own citizens security in dealing with the fire insurance companies of other States and foreign countries, which were allowed to be represented in this State by agents who effected insurance in their behalf. Foreign insurance corporations, were not to be permitted to come here into our own territory and solicit business and take risks, unless they would submit to certain conditions imposed for the benefit of those who might deal with them. If they make legal contracts elsewhere, however, relating to property in this State, it is not an advantage but an injury to the New York property owner to prohibit them from fulfilling such contracts here. Indeed there might be some question how far the power of the legislature extends in this direction. So that if we consider the evident object sought to be attained by the statute it would seem that the adjustment of a loss and indebtedness is not within the purview of the prohibition, which was intended not as a protection to New York insurance companies against outside competition, but as a safeguard to those seeking insurance in outside companies represented within the State.

¥e are referred to an opinion written by the attorney-general in 1882, in which he advised the superintendent of the insurance department that the provision of the statute, relating to uncertificated agents, covered the adjustment of a loss “ to the extent that the act is designed as an evasion of the statutory prohibition.” This qualification deprives the opinion of its principal force as an argument in the present case, for the complaint here contains nothing as to the intent of the defendant. Mr. Russell says that the adjustment of a loss is as much a part of the business of insurance as the soliciting of insurances. In one sense this is true, just as it would be to say that the payment of its debts is as much a part of the business of an insurance company as the issuing of policies. The adjustment of a loss is merely a means of ascertaining the amount of an admitted indebtedness, and we do not think the legislature has prohibited such adjustments by uncertificated agents of fire insurance companies of other States and foreign countries, where there appears to be nothing unlawful in the contract out of which the indebtedness has arisen.

It is also suggested that this construction gives effect only to the prohibition against “ taking risks,” and none to that contained in the words “or transacting the business of fire and inland navigation insurance in this State.” As to this point, it is sufficient to say, that in addition to taking risks, the business of insurance involves many other matters to which the foregoing clause may apply, without reference to the adjustment of losses.

The judgment appealed from should be affirmed with costs.

Lawrence, J., concurred.

Judgment affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ELIZABETH VAN RIPER, Respondent, v. THE HOUSE OF THE GOOD SHEPHERD, Appellant. (In the Matter of the Custody of FLORENCE VAN RIPER.)

      Commitment of mgr ant children.— what facts must be proved to authorise an arrest or commitment. — Penal Code, sec. 291.
    In response to a writ of habeas corpus, the appellant returned a commitment stating that upon the allegation, under oath, of one Stocking, it had been proved to the satisfaction of a magistrate that Florence Van Riper, the child of the relator, was actually and apparently under the age of sixteen years, viz., fourteen years old; that on October 5, 1886, she was found improperly exposed and neglected and wandering in Union Square Park, in the city of New York, without any proper guardianship; that the said child was found in the company of one Mary Ryan, who was a reputed prostitute, in violation of the Code and laws aforesaid. A traverse to the return was filed, alleging among other things, that the child was not destitute of means of support, but was at that time living in the house of her parents, who had a comfortable home for her in Hoboken; that she did not know that the said Ryan was a reputed prostitute, but she herself was a religious girl and good and virtuous, and that she was preparing to return to her said home, and childlike was merely enjoying, for the moment, the pleasant surroundings of Union Square.

      Held, that a demurrer interposed to the traverse on the ground that it conceded that the child was detained under a commitment, which was a final judgment of a court of competent jurisdiction, was properly overruled, as the commitment, when considered in connection with the admissions made by the demurrer to the traverse, failed to set out facts sufficient to justify the detention of the child.
    That the charge that she was improperly exposed and neglected did not warrant her arrest, as it was not alleged that she had been so exposed or neglected by her parents or other persons having her in charge.
    That the charge that she was wandering in the park without any proper guardianship did not bring her within the description of children “ not having any home or other place of abode or proper guardianship ” within the meaning of these words as used in subdivision 2 of section 291 of the Penal Code.
    That the fact that the child was found in the company of a reputed prostitute, under the circumstances stated in the traverse, did not authorize her arrest as having been found ‘ ‘ frequenting or being in the company of reputed thieves or prostitutes ” as these words are used in subdivision 4 of section 291 of the Penal Code.
    Appeal form an order made at Special Term discharging the relator’s child from custody.

      John B. Pine, for the appellant.

      Dennis McMahon, for the respondent.
   Bartlett, J.:

The relator’s child, Florence Yan Eiper, was arrested, brought before a magistrate in the city and county of New York, and committed to the institution known as the New York Catholic Protectory, under section 291 of the Penal Code.

The commitment states that the child was brought before the magistrate “upon the allegation under oath of Henry E. Stocking, that she, the said child Florence Yan Riper, “on the 5th day of October, 1886, at the city and county aforesaid, was found improperly exposed and neglected and wandering in the public park in said city, to wit, in Union Square Park in said city, without any proper guardianship; that the said child was found in the company of one Mary Eyan, who is a reputed prostitute, in violation of the provisions of the Penal Code of the State of New York, and the acts amendatory thereof.”

The commitment further recites that it has been proven to the satisfaction of the magistrate that the material allegations and matters set forth and charged in the complaint are true, and that the child was actually and apparently under the age of sixteen years, being fourteen years old, and “ was found improperly exposed and neglected, and wandering in the public park, to wit, in Union Square Park in said city without any proper guardianship; that the said child was found in the company of one Mary Ryan, who is a reputed prostitute, in violation of the Code and laws aforesaid.”

In response to the writs of habeas corpus and certiorari sued out by the mother in this proceeding, the New York Catholic Protectory returned this commitment as its authority for the detention of the girl. The relator filed a traverse to the return, alleging, among other things, that the father of the child, in whose house she was then residing, received no notice of the proceeding, and was not present at the examination; that the child “ was not destitute of means of support, but was, at the time, living in the house of her parents, who had a comfortable home for her at that time in Hoboken in the State of New Jersey, nor did the said Florence Van Riper know that the said Mary Ryan was a reputed prostitute, but she herself was a religious girl and good and virtuous;” and that the said Florence Van Riper, when found, “was preparing to return to her said home, and, childlike, was merely enjoying for the moment the pleasant surroundings of said Union Square.” To this traverse a demurrer was interposed on the ground that it conceded that the child was detained under a commitment which was the final judgment of a court of competent jurisdiction. The matter was brought to a hearing at Special Term upon the return, traverse and demurrer, and the learned justice before whom the cause was heard discharged the child from custody because it was admitted by the demurrer that her father, with whom she lived and under whose guardianship she was, had no notice of the proceeding which deprived him of his child. As to this point the appellant contends that inasmuch as the mother was present at the examination (as is recited in the commitment and not denied in the traverse) no further notice was required.

Apart from any question of notice, however, we are of the opinion that the commitment considered in view of the admissions made by the demurrer to the traverse, fails to set out facts sufficient to justify the detention of the child. It charges that she was improperly exposed and neglected. This did not warrant her arrest unless she had been so exposed or neglected by her parents or other person or persons having her in charge, and there is no allegation to this effect. (Penal Code, § 291, subd. 2.)

It charges that she was wandering in the park without any proper guardianship. This did not bring her within the description of children “ not having any home or other place of abode or proper guardianship.” (Penal Code, § 291, subd. 2.) The guardianship contemplated by section 291 of the Penal Code is not the mere temporary supervision of a companion in the street. The statute was not designed to provide for the arrest and commitment to a charitable institution of every young child who should happen to get into the street or park without a suitable custodian. It is only the lack of that guardianship which corresponds to the lack of parental care generally which falls within the intent of the clause we have quoted.

Finally, the commitment charges that the child was found in the company of Mary Ryan, a reputed prostitute.

The Penal Code authorizes the arrest of any child actually or apparently under the age of sixteen years who is found “ frequenting or being in the company of reputed thieves or prostitutes.” (Sec. 291, subd. 4.)

The facts in this case, as admitted by the demurrer to the traverse are, that on a single occasion, this child, while in a much frequented public park, and about to return to the comfortable home in which she lived with her parents, was found in the company of a reputed prostitute, of whose character she was ignorant, being herself a good and virtuous girl.

It may be difficult accurately to define just what conduct on the part of a child amounts to being in the company of reputed prostitutes ” within the meaning of subdivision 4 of section 291 of the Penal Code. That it means something more, however, than appears in the case of this girl, we entertain no doubt. A construction which would make it include her conduct on this occasion, would render the child of the worthiest citizen, who happened to lose her way in the public streets, and sought guidance from the first woman she met, liable to arrest and incarceration, if the person from whom she asked information and who accompanied her a block or two to show her the way, chanced to be known to a police officer as a reputed prostitute.

The relator.'s child was properly discharged from custody, and the order appealed from should be affirmed, with costs.

Macomber, J., concurred.

Order affirmed, with costs.


author: Per Curiam :

text:
    JAMES M. SMITH, as Executor of CHARLES B. RANSOM, Deceased, Respondent, v. GEORGE W. LAIRD, Appellant, Impleaded with WILLIAM F. KIDDER.

      Bight to amend a pleading under section 543 of the Code of Civil Procedure — an answer cannot he substituted, for a demurrer.

    Or March 1, 1887, before the time to answer or demur had expired, the defendants served a demurer. Thereafter, and on March seventeenth, they withdrew the demurrer and served an answer, which was returned by the plaintiff.

      Held, that an order denying a motion to compel the plaintiff to accept the answer should be affirmed.

      Frank v. Bush (3 Civil Pro. R, 350), and People v. Whitwell (63 How., 383) not followed; Bobertson v. Bennett (1 Abb. H. C., 476); Seneca County Bank v. Ccvrlinghouse (4 How., 174); Fry v. Bennett (3 Bosw., 300); BurrallY. Moore (5 Duer, 654) and Sands v. Calkins (30 How., 1) distinguished.
    Appeal from an order made at Special Term denying defendant’s motion to compel the plaintiffs attorney to accept the defendants’ answer.
    The summons and complaint was served upon defendants on January 20, 1887. On February 9, 1887, the defendants’ time to answer or demur was extended twenty days from said date. On March first the defendants interposed a demurrer. Within twenty days thereafter, to wit, on the seventeenth day of March, the defendants withdrew the demurrer and served an answer which was returned by the plaintiff’s attorney. Thereupon a motion was made by defendants to compel the plaintiff to accept said answer, which motion was denied.

      8. J. Goldsmith, for the appellant, Laird.

      W. H. Newmcm, for respondent.
   Per Curiam :

Section 542 of the Code of Civil Procedure provides that within twenty days after the pleading or the answer or demurrer thereto is served, or at any time beiore the period for answering it expires, the pleading may be once amended by the party, of course. We should not have thought it necessary to do anything more than to call attention to the explicit language of the Code to determine this appeal were it not for the decisions in the cases of Frank v. Bush (2 Civil Pro. R., 250) and People v. Whitwell (62 How., 383).

An examination of the opinion of the court in the case of Frank v. Bush shows that the decision was based upon the* supposed authorities of Robertson v. Bennett (1 Abb. New Cas., 476); Seneca County Bank v. Garlinghouse (4 How., 174); Fry v. Bennett (3 Bosw., 200); Burrall v. Moore (5 Duer, 654), and Sands v. Calkins (30 How., 1).

In neither of those cases was the question then before the court adjudicated upon. No such question was raised in the case oí Robertson v. Bennett, because the amended pleading had been received without objection. In the case of the Seneca County Bank v. Garlinghouse, the question involved was as to the right to serve an amended complaint after the service of an amended answer. In the case of Fry v. Bennett, the only question determined was as to whether the supplemental pleading takes the place of the original pleading; and in Burrall v. Moore (5 Duer, 654) the only question was as to the right of the party to amend an answer. In Sands v. Calkins, it was held that an amended answer takes the place of and supersedes the original answer. In the case of People v. Whitwell, the learned judge bases his decision upon the case of Robertson v. Bennett above referred to. As has been seen, none of the cases cited as authorities for this ruling adjudicated upon the question involved. Hnless there was a well settled line of decisions establishing the practice, we do not think the plain language of the statute should be disregarded.

The order should be affirmed, with ten dollars costs and disbursements.

Present — Yan Brunt, P. J., Brady and Daniels, JJ.

Order affirmed, with ten dollars costs and disbursements.


text:
    THOMAS W. PEARSALL, Respondent, v. THE WESTERN UNION TELEGRAPH COMPANY, Appellant.

      Brror m transmitting a telegram — the sender is not bound by rules of which he has no knowledge — a stockholder of a corporation is not changeable with knowledge of rules adopted by its directors.

    On July 31, 1884, some person in behalf of the plaintiff delivered to a telegraph operator at a station of the Long Island Railroad, without prepayment, a message for transmission to New York, addressed to “ T. W. Pearsall & Co.,’: directing the purchase of 1,000 shares of Western Union Telegraph stock. The message, which was written not upon the partly printed blanks of the company but upon an ordinary sheet of note paper, was delivered at the office of T. W. Pearsall & Co., in an envelope addressed simply “T. W. Pearsall.” As no one in the office was authorized to open a message thus addressed, it remained unopened until the plaintiff’s return, on the next day, when he bought the stock at a higher price than he would have been compelled to pay for it on the day when the message was sent.
    The defendant offered evidence tending to show that it had established reasonable rules and regulations to guard against mistakes, requiring the sender of a message to have it repeated, and also offered, but was not allowed, to show that this regulation was printed upon its ordinary message blanks.

      Held, that the evidence was properly excluded, as the message was not written upon one of the blanks, and the plaintiff testified that he had never read the printed matter on such blanks, nor had he any knowledge of the terms and conditions specified thereon.
    That the fact that he was familiar with the general appearance of the blanks, and that bundles of them lay in his office, and that he had been in the habit of using them, did not estop him from denying any knowledge of the notice or its contents.

      Breesev. United States Telegraph Company 148 N. Y., 132); Western Union Telegraph Company v. Buchanan (36 Ind., 429) distinguished.
    The defendant, claiming that the plaintiff, as a stockholder of the company, was chargeable with notice of the rules of the company, offered, but was not allowed, to prove the minutes of a meeting of directors, held in 1856, reciting the adoption of certain rules as to the liability of the defendant for mistakes or delays in messages.

      Held, that the evidence was properly excluded, for several reasons, viz.:
    That the rules to which the minutes referred had been superseded by new ones.
    That knowledge of the existence of the rules could not be imputed to the plaintiff merely because he was a stockholder.
    While the owner of shares in an incorporated company is, under some circumstances, chargeable with a knowledge of the contents of its books, he is not, simply as a stockholder, hound to know the rules and regulations which the directors may prescribe for the transaction of the business of the company with the public generally, merely because such rules and regulations appear recorded on the minute books of the corporation.
    Appeal by the defendant from a judgment entered upon the verdict of a jury at circuit, and from an order denying a motion for a new trial made upon the minutes.

      Burton H. Harrison, for the appellant

      Thomas G. Shearman, for the respondent.
   Bartlett, J.:

This is an action to recover damages for the alleged negligence of the defendant in failing accurately to transmit a telegraphic message from Great Neck, Long Island, to the city of New York. On July 31, 1884, some person in behalf of the plaintiff, delivered to a telegraph operator at the station of. the Long Island Railroad at Great Neck, without prepayment, a message for transmission to New York, in the following words :

Geeat Nece, L. I., July 31«i.
T W. Pearsall & Co., Mill’s Building, New York city.
11 Buy one thousand Western Union Telegraph.
“ T. W. PEARSALL.”

This message was written, not upon one of the partly printed blanks of the Western Union Telegraph Company, but on an ordinary sheet of note paper with no conditions whatever printed thereon. It was delivered at the office of T. W. Pearsall & Co., in New York, where the company’s charge of twenty-five cents was paid, on the morning of the same day But the words “ & Co.” in the address were omitted, and the telegram was inclosed in an envelope addressed simply to T. W Pearsall.” No person in the office of the firm possessed authority to open a message thus addressed to the plaintiff personally. Consequently the telegram remained unopened until Mr. Pearsall’s arrival in the city on the foilowing day. In the meantime, the price of Western Union Telegraph Company stock, to which the message related, had advanced; and the plaintiff, who bought the stock shortly after his arrival in New York, had to pay more for it than his firm would have been obliged to pay on the day when the message was sent. He brings this suit to recover the amount represented by the advance in price.

It is contended, in behalf of the defendant, that the telegraph operator at Great Neck was not the agent of the Western Union Telegraph Company, and, therefore, that the corporation is not liable for any negligence on his part. This operator worked in the depot for his father, who was the station agent of the Long Island Railroad Company, which maintained a telegraph office there, used principally for reporting the movements of trains. There was a sign of the Western Union Telegraph Company at the station, however, and this operator took all the business that was offered at that place for that company. The contract between the defendant and the railroad corporation provided that at all telegraph stations on the line of the railroad, the railroad employees acting as agents of the telegraph company, should receive, transmit and deliver such commercial or paid messages as might be offered at the tariff rates of the telegraph company, and should pay over to the telegraph company the receipts derived from such business. This was a commercial message, paid for at the place to which it was sent. Although the boy who undertook to transmit it was not directly in the employ of the railroad company, the functions which he performed for his father in reference to the business of the railroad, and the services which he was permitted to perform as a telegraph operator, not only for the railroad, but for the telegraph company, can leave no doubt that he acted as the agent of the defendant in receiving and sending the plaintiff’s message, so as to make the defendant responsible for any omission of duty with reference thereto on his part.

The defendant offered evidence tending to show that it had established reasonable rules and regulations to guard against mistakes in the transmission of telegraphic messages, which required the sender of a message to have it repeated; that is, telegraphed back to the office whence it came for purposes of comparison. It also offered evidence showing that notice of this regulation was printed upon its ordinary message blanks, but counsel was not allowed to read this notice to the jury. In view of the nncontradicted testimony of the plaintiff, it was immaterial. The message in question was not written upon one of the ordinary blanks of the defendant, nor bad the plaintiff ever read the printed matter on such blanks, nor had he any knowledge of the terms and conditions specified thereon. Under these circumstances, it is difficult to see on what principle he could be held to have assented to the regulation in regard to unrepeated messages, or how he could be bound thereby. It is true he was familiar with the general appearance of the blanks and had been for many years, and had frequently sent messages written on such blanks. Bundles of them lay in his office for use, and he had been in the habit of taking blanks from among these and of writing and sending messages on them himself. These facts, however, do not estop him from denying any knowledge of the notice or its contents. In Breese v. United States Telegraph Company (48 N. Y., 132), the principle of estoppel was applied because the sender of the message, after abundant time and opportunity to read the printed matter on the company’s blanks in his possession, wrote the telegram on one of those blanks. Hence, says Earl, C., in that case, when the messsage was thus written and brought to the office of the company its agent had the right to assume and believe that the sender accepted the terms, and assented to and understood the agreement limiting liability for unrepeated messages. But nothing of the sort occurred in the present case. The message was written on a sheet of common white paper and was thus accepted for transmission. If the plaintiff is to be held bound by the regulations of the defendant company just as much as though he had written this message on one of its blanks, it can only be upon proof that he knew what those regulations were. This is the extent to which the opinion goes in the case of the Western Union Telegraph Company v. Buchanan (35 Ind., 429). But the plaintiff testifies positively that he had no knowledge of these regulations, and we think a finding in opposition to his testimony on this subject, notwithstanding the opportunity he had to read the printed matter on the blanks, would have been so manifestly against evidence as to require the court to set aside the verdict.

It is insisted, however, that the plaintiff must be deemed to have known the rules of the defendant as to unrepeated messages, because he was a shareholder in the Western Union Telegraph Company. On this theory, the minutes of a meeting of the directors of the company, held in 1856, were offered in evidence, reciting the adoption of certain rules as to the liability of the defendant for mistakes or delays in messages. These minutes were properly excluded, for several reasons. In the first place, the rules to which they refer appear to have been superseded by new ones promulgated in 1884. Then there is no evidence whatever that the plaintiff actually knew of their contents, and no such knowledge can be imputed to him merely because he was a stockholder. While the owner of shares in an incorporated company is, under some circumstances, chargeable with a knowledge of the contents of its books, he is not, simply as a stockholder, bound to know the rules and regulations which the directors may prescribe for the transaction of the business of the company with the public generally, merely because such rules and regulations appear recorded on the minute books of the corporation. No case is cited by the learned counsel for the appellant which sustains his position on this point.

The appellant also complains because the court charged the jury that the misdirection of the message, and the delivery, addressed to T. W. Pearsall at the office of his firm, when it should have been addressed to T. W. Pearsall & Co., was of itself primafacie evidence of negligence. This instruction is sustained by authority. In Rittenhouse v. Independent Line of Telegraph (44 N. Y., 265) it is said: The defendant was liable on the ground of negligence in the transmission of the message, and the negligence is proved by showing that it did not transmit the message in the form in which it was delivered to it. The burden was upon it to show that the mistake happened without its fault.” Indeed, if any other rule prevailed, it would be exceedingly difficult ever to enforce the liability of a telegraph company for negligence of this character, the entire line and apparatus being so exclusively within its own control, as to render it almost impossible for an outsider to obtain any information as to the causes which led to the mistake.

There is no force in the suggestion that the plaintiff himself was negligent in the manner in which he sent the message. The measure of damages adopted by the trial court seems to have been correct. The refusal to charge that there was no evidence of gross negligence or willful misconduct on the part of the defendant, was not error. The jury had been carefully instructed in the main body of the charge that the defendant was liable only for ordinary care, and that the fact of a misdirection and misdelivery being proved, and not denied, there was a prima facie case of want of ordinary care. Nothing was said about gross negligence by the court, or by anybody but the defendant’s counsel, until this request was made, and then the court simply refused to charge it. The case as presented to the jury, involved no question of gross negligence or willful misconduct, and there was no occasion to give any instruction on the. subject, one way or the other.

The judgment and order denying the motion for a new trial should be affirmed with costs.

.YaNBeunt, P. J., and LawkeNce, J., concurred.

Judgment and order affirmed with costs.


author: Lawrence, J.:

text:
    THE MANHATTAN SAVINGS INSTITUTION, Respondent, v. THE TOWN OF EAST CHESTER, Appellant.

      Loss of negotiable town bonds — the town may oe compelled to pay the amount due, upon receiving a proper bond of indemnity.

    Upon tlie trial of this action it appeared that the plaintiff had purchased certain bonds, payable to bearer, duly issued by the defendant, the town of East Chester, through commissioners appointed and acting under an act of the legislature; that from the time at which the purchase was made the bonds remained in the pasession of the plaintiff down to the 27th day of October, 1878, on which day the vaults of the banking house of the plaintiff were burglariously entered and the said bonds, with the coupons attached, were stolen therefrom, without the consent, knowledge or permission of the plaintiff, or any of its officers or clerks; that the plaintiff had not sold or assigned the said bonds, but still remained the absolute owner thereof; that the interest coupons attached to said bonds falling due on or before July 1, 1878, had been paid by the defendant, but that none of the interest falling due since that time had been paid, nor had the principal of five of the bonds which became due on July 1. 1883, been paid; that sufficient funds had been raised by taxation to pay the said bonds and coupons, and that the same was now in the hands of the supervisor, who had refused to pay the past due bonds and interest to the plaintiff, although the latter was ready and had offered to furnish said town a satisfactory bond of indemnity upon receiving the said amount.

      Held, that a judgment directing the defendant to pay to the plaintiff the amount due upon the said bonds so held by it within ten days after the service upon its attorney of a bond of indemnity executed by the plaintiff, with sufficient sureties, in a penal sum therein stated, and that, upon its appearing that such a bond had been served, and that no part of the money directed to be paid had been paid, the plaintiff should have judgment absolute against the defendant, should be affirmed.
    That it was not proper to include in the amount of such judgment the principal of certain of the bonds which did not fall due until after the action had been commenced.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The complaint, after setting forth that the plaintiff is a domestic corporation created under the laws of this State, and that the defendant is a town of this State situated in the county of Westchester, alleges that by an act of the legislature entitled “ An act to authorize the towns of Yonkers and East Chester in the county of Westchester to make, extend and improve the several highways in said towns, passed April 22, 1869, as amended by a certain other act passed April 22, 1870. ” George W. McLean and six other persons were appointed commissioners with power to lay out and widen, make and grade the roads in the towns of East Chester and Yonkers in said act described and to perform the several acts and duties in said act prescribed. That said commissioners were required before entering upon their duties to take and subscribe an oath to faithfully and impartially exercise the duties of said office until the said road should be completed and delivered, and it was further therein and thereby directed and enacted that such sums of money as might be necessary to carry out said improvements should be raised by the issue of the bonds of the said several towns upon the requisition of the commissioners by the supervisor and town clerk of said towns, and should be signed by them and countersigned by such one of said commissioners as should be by said commissioners designated for that purpose. That such bonds should bear an interest of seven per cent, payable semi-annually and should be drawn so as to become due in sums not less than $3,000 in any one year, and that they should be in sums not less than $500, and registered in the office of the clerk of the town by which they should be issued, and that said commissioners should receive said bonds and convert them into money at not less than the par value thereof; and it was further provided that it should be the duty of the board of supervisors of the county of Westchester to levy and assess upon tbe taxable property in tbe respective towns in which said road should be laid out a sum or sums sufficient to pay the principal and interest of the bonds as the same should become ,due.
    It is further averred that the commissioners, having taken and subscribed the oath required by the act, entered upon and continued in the performance of their duties, and that pursuant to a requisition duly made by the said commissioners, the defendant, the town of East Chester, on or about the 15th day of April, 1871, made its fifty several bonds bearing date on said day, and numbered from twenty-seven to seventy-six inclusive, in and by each of which bonds it acknowledged that it was indebted to the plaintiff, or bearer in the sum of $1,000, payable at the office of the United States Trust Company, in the city of New York, with interest at the rate of seven per cent, payable semi-annually, and that in and by each bond the defendant declared that it was issued pursuant to the provisions of the acts of the legislature hereinbefore mentioned 3 that each of said bonds was signed by William P. Esterbrook, then supervisor, and R. W. Foster, then clerk of said town, and was countersigned by Edward DeWitt, a commissioner designated for that purpose by the said commissioners. After alleging that to each of said bonds, coupons were annexed duly signed, etc., it is further averred that each of said bonds was registered in the office of the clerk of the town of East Chester and that said bonds so signed and countersigned and registered were issued and delivered to said commissioners, by whom they were, on or about the 2d day of May, 1871, sold and delivered to this plaintiff, and that this plaintiff paid to said commissioners therefor, the sum of $50,155.56, being the par value thereof, including the interest which had accrued thereon from the 15th day of April, 1871, the date of said bonds to the 2d of May, 1871, the date of said purchase.
    It is further averred that after the purchase of said bonds and delivery of the same to the plaintiff, and from the time of said purchase and delivery the plaintiff continued in possession of the same down to the 27th of October, 1878, on which day the vaults of the banking house oí plaintiff were burglariously entered, and the said bonds, with the coupons attached, stolen therefrom without the consent, knowledge or permission of the plaintiff or any of its officers or clerks. That the plaintiff has not sold or assigned the said bonds or coupons, but still remains tbe absolute owner thereof. That the interest coupons attached to said bonds falling due on or before the 1st of July, 1878, had been paid by the defendant, but that none of the interest upon said bonds falling due since that time has been paid-. That on the 1st day of July, 1883, five of said bonds, namely, Nos. 27 to 31, both inclusive, became due and payable, but the same have not been paid. That the supervisors of the county of Westchester have, from time to time, since the said bonds were issued, levied and assessed upon the taxable property, of the defendant, sums of money sufficient to pay the said past due bonds and interest, and that such sums are now in the hands of the supervisor of the town ready to be applied to the payment of said bonds and interest.
    It is further averred that on the 2d of July, 1883, plaintiff caused a notice to be served upon the supervisor of said town, whereby he was notified that said bonds had been stolen on the 27th day of October, 1878, and had not been recovered by the plaintiff ; that the plaintiff was advised that the said town is bound upon being indemnified to pay the said past due bonds and interest; that the plaintiff was ready and offered to furnish said town a satisfactory bond of indemnity upon receiving payment of said bonds and interest, and asking the said supervisor whether he was ready to pay the same upon receiving such bond, and that the said supervisor replied that he could not pay the said bonds or interest, unless the bonds themselves and the interest coupons past due were delivered up to him. Judgment was therefore demanded fox the full amount of said bonds Nos. 27 to 37 inclusive, which fell due July 1, 1883, with interest from July 1, 1878, and also the interest on said bonds Nos. 32 to 76, both inclusive, amounting to $45,000, from the said 1st day of July, 1878, upon the execution and delivery of the bond of indemnity.
    The defendant in its answer states that it has no knowledge or information sufficient to form a belief as'to the truth of the allegations contained in the complaint relating to the plaintiff’s being a corporation, to the acts of the legislature, and to the burglary committed at the plaintiff’s bank. It admits that it is one of the towns of the State, and further “ that the bonds of the town of East Chester, which are numbered, and of the dates and amounts set forth in the fourth subdivision of the complaint, with coupons attached thereto as stated in said complaint, were made, signed and countersigned as therein mentioned, and purported to have been issued in accordance with the terms of said acts of the legislature, but it avers that the defendant has not knowledge or information sufficient to form a belief whether or not the said commissioners therein named took the oath of office, or performed the duties required by said act, or whether said bonds were issued in accordance with the terms thereof.” It also avers that it has no knowledge whether said bonds, etc., were issued and delivered to the said commissioners, and by them sold to the plaintiff for the sum mentioned in the complaint, or for any sum whatever.
    The allegations of the complaint relating to the payment of the interest upon the bonds up to the 1st of July, 1878, as to the number of the bonds which became due on the 1st of July, 1883, and as to the amount levied and assessed upon the taxable property of the defendant by the supervisors of the county of "Westchester, and as to the notice alleged to have been served by the plaintiff upon the supervisor of said town, are all admitted.
    Upon the trial of the action the court at Special Term rendered judgment in favor of the plaintiff, directing the defendant to pay the sum of $39,675 within ten days after the service upon its attorney of a bond of the plaintiff, with sufficient surety in the penal sum of $80,000, and upon its appearing that such bond had been served, and that no part of the money directed to be paid had been paid by the defendant, it was ordered that the plaintiff have judgment absolute against the defendant for the aforesaid sum. From that judgment an appeal has been taken to the General Term of this court.

      Charles C. Bigelow and Jacob F. Miller, for appellant.

      Augustus S. Hutchins, for the respondent.
   Lawrence, J.:

While it is true that where towns are authorized to issue bonds under special statute, to pay the expenses of improvements, the holders of the bonds must show that the requirements of the law have been complied with, we think in this case that the plaintiff made a prima facie case, and as the defendant offered no evidence to show that the statute had not been complied with, we do not think that the first and second points argued by the appellant’s counsel can be sustained. (See Cagwin v. The Town of Hancock, 84 N. Y., 532, and other cases cited as to the liabilities of towns).

The plaintiff proved the taking of the oath by the commissioners and by McLean, one of the commissioners, that they entered upon the discharge of the duties prescribed by the act, and that the Midland avenue road was one of the roads and boulevards built by them, and that bonds were issued by the town on requisitions from the commissioners for the improvement of that avenue, and that all the commissioners acted. As has been stated, the defendant in its answer admits that the bonds set forth in the complaint were made, signed and countersigned, as therein mentioned. It seems to us that this admission, taken in connection with the proof offered by the plaintiff at the trial, in the absence of anything tending to throw suspicion upon the fairness and honesty of the transaction, makes out a prima facie case that the bonds were duly and properly issued. The criticism which is made by the appellant’s counsel, that the proof shows that the work was not wholly completed when the commission was legislated out of the office, we do not regard as sound, because section nineteen of the act of 1869 seems to contemplate that the bonds shall be issued from time to time as the work progresses and that the commissioners were not obliged to wait until the entire completion of the work before they could draw a requisition for the issuing of a bond by the supervisor and town clerk. McLean’s testimony establishes that those bonds were for that work, and, as has been said before, in the absence of any evidence to show bad faith, we must assume, with McLean’s evidence before us, that the commissioners acted in good faith, and that the bonds were issued for work which had already been done, or which was being done in accordance with a contract properly entered into by the commissioners. The'evidence establishes beyond all question that the plaintiff’ fairly purchased the bonds referred to and paid the par value therefor, and all the interest which had accrued thereon between the date of the bonds and the sale of them to the plaintiff. We do not understand that it is beyond the power of a court of equity to give relief in cases of this character upon a proper bond of indemnity being furnished. The bonds in question being payable to bearer were negotiable, and independently of any statute courts of equity, upon the loss of sucb securities, upon a proper Done! o± indemnity being tendered to the debtor, decree relief to the holder of such securities. (See 1 Story’s Eq. Jur., §§ 82, 86, and cases cited; see, also, The People ex rel. The Manhattan Savings Institution v. Otis, 24 Hun., 524, and cases cited by Gilbert, J.)

The decision in that case, which was subsequently affirmed by the Court of Appeals (90 N. Y., p. 48), is not adverse to the plaintiff’s position here. There an act of the legislature was passed for the relief of the plaintiff, which, after providing that the city of Yonkers could'issue duplicate bonds, went on to provide that the city, after the delivery to the bank of the duplicate bonds therein provided for, should be discharged from all liability on the original bonds to all persons purchasing the same after due publication of the notice prescribed by the act, and gave a right of action against the bank upon the bond of indemnity to the lawful owner of such bonds, in place of the liability of the original obligor. (See Laws 1880, chap. 59, § 2). The court held that that provision was unconstitutional, as the effect was to destroy the negotiable quality of ’the bonds, and to impair the obligation of contracts, and also because it deprived a person of property without due process of law. The case is not an authority for the position that the remedy of the plaintiff is by application to the legislature. (See opinion of Gilbert, J., 24 Hun, pp. 522 and 523).

We see no reason why a town cannot be as fully protected by a bond of indemity as an individual, nor any reason why, if a proper case is made out, a court of equity should not exercise the power herein before referred to. (See 1 R. S. [7th ed.], p. 840, §§ 1, 2, 3 and 8.)

We do not regard the case of Lorillard v. The Town of Monroe, (11 N. Y., 392,) as promulgating any doctrine adverse to the views above expressed. It is claimed by the appellant’s counsel that -the court would be, in effect, making a new contract for the town of East Chester if the judgment below is sustained. We da. not accede to this proposition. The contract was made at the time the bonds were issued in conformity with the statute, and when-' the plaintiff paid its money to the commissioners for the benefit of the town. The object of this action is to enforce the liability thus incurred on the part of the town, and at the same time to protect tbe town by the same safeguards as would be provided in the case of an individual.

There is one point, however, made by the appellant, which we think inust be sustained. The action was brought to recover the sum of $5,000, the amount of the principal of five bonds numbered from 27 to 31, inclusive, which became due and payable on the 1st of July, 1883, with interest thereon, and also the interest upon the remaining forty-five bonds from the 1st day of July, 1878. The action was commenced on or about the 13th of July, 1883, and the court awarded judgment not only for the principal of the bonds which were due on that day, but also for the principal of five other bonds which fell due on the 1st day of July, 1885. The complaint was not amended, and it will thus be seen that the plaintiff was allowed to recover upon a cause of action other than that stated in the complaint. We do not understand the cases cited by the respondent as obviating this difficulty. Those cases were cases in which it was held that if a fact had been assumed on the trial it might be assumed at all future stages of the action, and that for the purpose of upholding the judgment proof could be given on the argument of the appeal; and that the court may treat the pleadings as having been amended in conformity with the proofs, in any respect, in which the court ought clearly to allow an amendment at Special Term. This case does not fall, it seems to us, within that class of cases. It was not assumed at the trial that this action was brought to recover any other principal sum than the $5,000 due upon the bonds which became due before the commencement of the action, and there is nothing in the admission made at folio 54 of the case, upon which the plaintiff relies, which indicates that either party supposed that the principal sum of the five bonds which became due in 1885 could be a subject of recovery.

It was agreed by the counsel on the trial, “that the numbers and description of the bonds and time of payment of principié and interest as stated in the complaint be considered as the bonds that were stolen.” There was no agreement to amend the complnint, to the effect that the plaintiff might claim to recover the sum of $5,000, for the five bonds which became due about two years after the action was commenced. (See Barnes v. Quigley, 59 N. Y., 265; Reeder v. Sayre, 70 id., 180, 190; Robertson v. Robertson, 9 Daly, 44, 57; Sheldon v. Adams, 18 Abb. Pr. 405.)

Tbe judgment below must, therefore, be reduced by deducting from the amount thereof the principal sum of the five bonds which fell due on the 1st of July, 1885.

The amount of the bond of indemnity must also be proportionately reduced, and with such modification the judgment will be affirmed, with costs.

Yan Brunt, P. J., and Bartlett, J., concurred.

Jndgment modified as directed in opinion and affirmed as modified, with costs.


text:
    THE CHESEBROUGH MANUFACTURING COMPANY, Plaintiff, v. MICHAEL COLEMAN and Others, Commissioners of Taxes, etc., Defendants.

      Personal property'of a numufactwring corporation — is liable to taxation in the place na/med in the certificate of incorporation —1848, chap. 40.
    The personal property of a corporation, organized under chapter 140 of 1848, is liable to taxation at the place named in the certificate of incorporation as that at which the operations of the company are to he carried on.

      Western Transportation Company v. Bcheu. (19 N. Y., 408); Oswego Starch Factory, v. Dolloway (21 id., 449) followed.
    Submission of a controversy upon an agreed statement of facts under sections 1279 and 1280 of the Code of Civil Proceedure.

      Coudert Bros., for the plaintiff.

      E. Henry Lacomb, Corporation Counsel, and Almet F. Jenhs, Corporation Counsel, of Brooklyn, for defendants.
   Lawrence, J.:

This case comes before the court upon submission.

The Chesebrough Manufacturing Company, the plaintiff, is a corporation duly organized under chapter 40 of the Laws of 1848, and the acts amendatory thereof, for the purpose of manufacturing vaseline or other products of petroleum. The certificate of incorporation oí the said plaintiff was filed with the clerk of the city and county of New York and in the office of the secretary of state of the state of New York, on the 13th day of November, 1874. The said certificate contained the following recital “and we do further certify that the operations of the said corporation shall be carried on in the city of New York.” The certificate is signed by three persons who were the original corporators. The plaintiff was assessed for taxation on its personal property for the years 1878 and 1879, both in the city of New York and in the city of Brooklyn, and both cities claim the taxes for said years. It is to determine the .respective rights of the two cities in the premises that this case is now submitted. The question before the court is in which of the twro cities, Brooklyn or New York, were the operations of the plaintiff carried on during the years 1878 and 1879, within the meaning of the law.

It appears that in 1878 and 1879 the financial business of the plaintiff was largely transacted in Brooklyn, but that the directors held meetings in New York city, and that deposits were made with the Chemical National Bank in said city — that some checks were signed there and the mail received there.

It is provided by statute “ that the real estate of all incorporated companies liable to taxation shall be assessed in the town or ward in which the same shall lie, in the same manner as the real estate of individuals. All the personal estate of every incorporated company liable to taxation on its capital shall be assessed in the town or ward where the principal office or place for transacting the financial concerns of the company shall be, or if such company have no principal office or place for transacting its financial concerns, then in the town or ward where the operations of such company shall be carried on.” (See R. S., pt. 1 chap. 13 tit. 2, art. 1 [1 R. S., 389] § 6.)

As has been stated by the certificate of incorporation, it was declared that the operations of the said corporation shall be carried on in the city of New York. It seems to us that under the provisions of the act of 1848 and the acts amendatory thereof, the certificate is conclusive evidence that the legal residence of the plaintiffs was in New York city. (See act of 1848 §§ 1, 9, 11.) No subsequent certificate seems to have been filed designating any other place than the city of New York, in. which the plaintiffs should carry on their business. (See Laws of 1853, chap. 333; Laws of 1857, chap. 29, §§ 2 and 3; Laws of 1861, chap. 170.) In the case of the Western Transportation Company v. Scheu (19 N. Y., 408), it was held that, the act for the incorporation of companies to navigate the lakes and rivers (chap. 232 of the Laws of 1854) requiring the designation in their organic certificate of the city or town and county in which the principal office for managing the affairs of such company is to be situated, the certificate is conclusive as to the location therein designated, as that of the principal office of the company. In that case the court said: “ The only question then is in regard to the effect as evidence of the statement in the certificate. There are some considerations which seem to me decisive of this question. Unless the legislature intended that the certificate should be conclusive as to the location of the principal office, it is difficult to see any adequate motive for requiring the statement to be made. It is in no manner essential to the existence of a corporation that the place of its principal office should be fixed or even that it should have any such office. "We can, however, see obvious reasons why it is expedient that corporations should be deemed to have a location for certain purposes, among which is that of taxation, and that this should be definite and certain and not subject to fluctuation or doubt. * * * To avoid disputes upon the subject was, I apprehend, one motive for requiring the location to be fixed by the certificate. It is not important that a corporation should be taxed where it does the greatest amount of its business, but it is important that the place where it is liable to be taxed should be known.” (See, also, Oswego Starch Factory v. Dolloway, 21 N. Y., 449.)

In that case the corporation was organized under the general act of 1848, and it was held that the location for the purposes of taxation of a manufacturing corporation, is the place designated in its certificate as that where the operations of the company are to be carried on. It was also held that it is immaterial that the principal office or place for transacting the financial concerns of the company is located in a different town. (See, also, case of the Union Steamboat Co. v. The City of Buffalo, 82 N. Y., 351.)

These cases seem to conclusively establish that the plaintiff having declared by its certificate of incorporation that the operations of the said corporations shall be carried on in the city of New York; its liability to taxation was in the city of New York. The second section of chapter 170 of the Laws of 1861 is not in point, for the reason that it is expressly admitted in the submission that the duplicate certificates thereby provided for were never filed, either in the city of New York or in the city of Brooklyn. We think the contention of the counsel for the city of New York, that in the absence of the duplicate certificates mentioned in that act, the assessors could safely assume that the original certificate controlled is correct.

For these reasons we are of the opinion that judgment should be given for the defendants, the commissioners of taxes and assessments of the city of New York.

Yan Brunt, P. J.. and Bartlett, J., concurred.

Judgment ordered’ for defendants.


author: Bartlett, J.

text:
    TRACY COIT and Others, Executors, etc., of PENELOPE M. COIT, Deceased, Plaintiffs, v. ROSEWELL G. ROLSTON and Another, Surviving Executors, etc., of CORNELIA MINTURN, Deceased, Defendants. MARY M. COLLINS, Plaintiff, v. SAME.

      Legacies — when held to vest at the death of the testatrix under a direction to pay at a futwre time.

    A testatrix gave and bequeathed to her executors all the rest of her estate, both real and personal, to hold in trust to pay the entire net income thereof, semi-annually, to her brother during his natural life, “and on the death of my said brother John C. Minturn to pay to my cousin, Penelope Ooit, widow, the sum of $5,000 ; to pay to my cousin, Niobe M. Abbott, the sum of $5,000.” Then followed other bequests to other persons and corporations.

      Held, that the legacies to Penelope Ooit and Mobe M. Abbott vested in them at the time of the death of the testatrix, and that as they died during the life of John C. Minturn, their representatives were entitled to receive the legacies.
    Controversies submitted under section 1279 of the Code of Civil Procedure.

      FranMin Paddoelc, for the plaintiffs, Tracy Coit, et al.

      Irving Paris, for the plaintiffs, Mary M. Collins, et al.

      B. F. Lee, for defendants.
   Bartlett, J.

The defendants, who are the surviving executors and trustees under the will of Cornelia Minturn, deceased, stand indifferent in this litigation, while the two sets of plaintiffs represent conflicting interests.

Both controversies can most conveniently oe considered together. Cornelia Minturn died on September 29, 1882, leaving a last will and testament in which, after making certain specific bequests, the testatrix provided as follows:

“Eighth. I give, devise and bequeath unto my said executors all the rest of my estate, both real and personal, of whatever kind or description and wheresoever situate, to hold the same together with the share in the estate of my father hereinbefore mentioned, in trust for the uses and purposes following, viz.: To pay the entire net income thereof semi-annually to my brother, John C. Minturn, during his natural life.
“And on the death of my said brother, John C. Minturn, to pay to my cousin, Penelope Coit (widow), the sum of five thousand ($5,000) dollars; to pay to my cousin, Niobe M. Abbott, the sum of five thousand ($5,000) dollars.”

There follow a number of similar bequests to other persons and to corporations, and then' the eighth subdivision of the will continues :

“In case enough money shall not be realized by my said executors to enable them to pay in full the legacies mentioned in this eighth item of my will, I direct that all said legacies shall abate rateably in proportion to the respective amounts thereof.
“ And if after paying all of said legacies in full, there shall be any residue in the hands of my executors, I direct them to pay such residue to such of the following nieces of mine as shall survive me, viz.: Mary M. Collins, Ellen Collins, Margaret Collins, Caroline M. Verdi, Rebecca-M. Smith, Elizabeth Minturn, Mary Minturn and Mary O’Rourke, share and share alike.”

Penelope Coit and Niobe M. Abbot died before John C. Minturn, who died on. October 10, 1886.

The principal question presented for determination is whether the legacies to Penelope Coit and Niobe M. Abbott became vested upon the death of the testatrix, or were merely contingent, so that they lapsed by reason of the death of the legatees before the life tenant.

The residuary legatees, who are the plaintiffs in the Collins case, invoked the rule that where there is no gift but by a direction to executors or trustees to pay or divide upon the happening of an event at a future time, the legacy will not vest until then ( Warner v. Durant, 76 N. Y., 133). This rule, however, is not without qualifications. It applies only,” says Judge Pinch in Smith v. Edwards (88 N. Y., 92, 105), where beyond the direction for future distribution, there are no words and no provisions which import a present or vested gift, or indicate such an intent. It does not control where the language of the will, while not expressly saying £ I give and bequeath ’ does yet plainly import a present gift intended to vest immediately without reference to the clause of distribution.” And the rule is subject to the still further limitation that although there be no other gift than is indicated by the direction to pay or distribute in the future, yet if the enjoyment of the gift is postponed to accommodate the estate or to enable it to meet any other burden first imposed upon it, this is regarded as a decisive circumstance in favor of the immediate vesting of the legacy. The illustration given by Mr. Jarman on this point has received the approval of courts of the highest authority. ££ If land be devised to A for life, remainder to B in fee, charged with a legacy to C, payable at the death of A, the legacy will vest instanter, and, consequently if C die before the day of payment, his representatives will be entitled; the raising of the money being evidently deferred until the decease of A in order that he may in the meantime enjoy the land free from the-burthen.” (1 Jar. on Wills, 5th Am. ed., 835.) And in Packham v. Gregory (4 Hare, 396), the doctrine on this subject is stated to be that if upon the whole will it appears that the future gift is only postponed to let in some other interest, or as the court has commonly expressed it, for the benefit of the estate, the interest is vested notwithstanding the enjoyment is postponed. This rule was applied, and this decision of Yice-Chancellor Wigram was cited with .approval, by the Court of Appeals in Loder v. Hatfield ( 71 N. Y., 92, 100). Applying it to the will now under consideration, we find that the gifts to Penelope M. Coit and Niobe M. Abbott involved no condition, or contingency, or uncertainty as to who should take; that the testatrix manifested no intention that futurity should attach to the substance of the gifts ; and that the gifts were evidently postponed in payment solely in order that John C. Minturn might enjoy a life estate in the property from which they were to be derived. This was “ for the benefit of the estate ” within the meaning of the authorities, and the legacies were therefore vested.

In behalf of the residuary legatees, it is insisted that the legacies could not vest until the death of John C. Minturn, because the testatrix left the estate, real and personal, to her executors to hold, and pay him the net income thereof during his life, and on his death to pay the several legacies out of money to be realised by such executors. The argument is that the fund out of which the legacies were to be paid was not come into existence until the decease of the life tenant. There would be force in this contention if the property from which the legacies were to proceed was real estate, as in the leading cases cited by the residuary legatees on this point. ( Vincent v. Newhouse, 83 N. Y., 505; Delaney v. McCormack, 88 id., 174; and Shipman v. Rollins, 98 id., 311.) Here, however, according to the will, the estate of the testatrix was both personal and real, and there is nothing to show that the personalty has not always been amply sufficient to pay the legacies whenever they should be payable. The presumption is that it has always been sufficient, if any presumption is to be indulged in on the subject, and is necessary to sustain the conclusion that the legacies are vested; for the courts strongly incline to adopt that view which favors vesting, if they can do so without disregarding the plain provisions of the will. (See Smith v. Edwards, 88 N. Y., 92, 109.)

There must be judgment for the plaintiffs in the Coit suit and for the defendants in the Collins suit.

Brady and Daniels, J. J., concurred.

Judgment for plaintiff in the Coit suit and for the defendant in the Collins suit.


author: Per Curiam:

text:
       THE PEOPLE OF THE STATE OF NEW YORK ex rel. WALTER DEL MAR v. THE ST. LOUIS AND SAN FRANCISCO RAILWAY COMPANY.

      Fm'eign corporation — proceedings to compel it to permit an examination of its transfer books — a reference to take proofs may be ordered,.

    Upon Hie hearing of a motion for a writ of peremtory mandamus compelling the transfer agents of a foreign corporation to allow the relators, stockholders of the company, to inspect the transfer books and list of stockholders of said company, the court may, when desiring fuller information before proceeding, order a reference to take proof of the facts and circumstances alleged in the affidavits presented by the respondents, and direct that the persons making the same appear before the referee for examination.
    Appeal from an order made at Special Term, upon the return of an order requiring the St. Louis and San Francisco Railway-Company, and other persons, to show cause why a peremptory writ of mandamus should not issue against said corporation and persons, directing them to allow the relator to inspect the transfer books, and list of stockholders of said company.
    The order directed that it be referred to a referee to take proof of the facts and circumstances alleged in the affidavits used upon behalf of respondents, and requiring the persons making them to appear before the referee for that purpose and be examined.

      John K Burrill, for the respondent.

      John B. Dos Bassos, for the relators.

      Decided, April, 1887.

   Per Curiam:

The transfer agent of any corporation existing beyond the jurisdiction of this State is required at all reasonable times during the usual business hours to exhibit to any stockholder when required the transfer book of such corporation and also a list of the stockholders thereof, if in his power to do so.

It does not appear herein that the transfer agent of the corporation proceeded against has not the power to exhibit the book and list mentioned.

In a proceeding of this character which is expressly provided for by the Code, § 2070, we have no doubt of the right of the court without regard to the provisions of the Code to order a reference to take proofs on matters upon which is desired fuller information before proceeding. (See Dwight v. St John, 25, N. Y., 205.)

This citation is made only because it. recognizes a power which has never been challenged in any case to which our attention has been called herein or heretofore.

The object of the reference was to make more certain and reliable the unsatisfactory denials contained in the answering affidavits, and thus to secure such information as would enable the court better to understand and dispose of the motion.

It may be that upon the coming in of the referee’s report of the evidence taken before him that there will be no dispute as to any material question of fact, in which case the learned judge presiding might consider himself'bound to grant the writ, or to deny it if any material fact was put in issue.

Motion for stay denied with ten dollars costs to abide event of motion.

Present — Yan Brunt, P. J., and Brady, J.

So ordered.


author: Per Curiam.

text:
    ARIES P. BROOKE and Others, Respondents, v. B. F. SAYLOR and Others, Defendants. WALTER T. BRADLEY, Appellant, v. THE SAME, Defendants.

      Service qfmanmonsiy publication — effect of omitting to name the defendants to be so served in the order directing ~$ve publication.

    Appeal from an order denying a motion to vacate an attachment.
    The first of the above entitled actions was brought to recover the sum of $101.50 from the defendants for goods sold and delivered. A warrant of attachment against the property of the defendant firm was issued November 30, 1886. Service of summons and complaint was made December 2, 1886, upon B. E. Springer, one of the firm, as and for service upon the firm pursuant to an order for publication. The attachment of Bradley was not obtained until December 20, 1886, and the attachment of the senior attaching creditor was not attacked by him until January 31, 1887, when he procured an order to show cause. The order for publication was defective in that the name of the defendants to whom the copy of the summons and complaint was to be sent were not stated, this clause of the order reading as follows: “ And it is further ordered and directed that on or before the day of the first publication, as aforesaid, if service be made by publication, the plaintiffs deposit in the post office in New York city a copy of the summons and complaint hereto annexed and of this order, contained in a securely closed post-paid wrapper, and addressed to at Boyersford, Pennsylvania.”
    The court at General Term said: “We think the order of publication objected to in this case was, in form and substance, a substantial compliance with section 440 of the Code. Although the name of the defendants was omitted, yet the direction was, to serve the summons and complaint by publication, and that a deposit be made of those papers and of the order in. a securely closed postpaid wrapper, and addressed at Royersford, Pennsylvania, thus clearly indicating that it was to be addressed to the defendants, upon whom, and upon whom only, it was necessary to serve a copy of the papers, and who, in an earlier portion of the order, are stated to reside or to do business in or about the place named. A substantial compliance with the requirements of the Code is all that is necessary to give validity to a proceeding under the section mentioned. (See Green v. Squires, 20 Hun, 15; Weil w. Martin, 24 id., 645.) The case of Ritten v. Griffith (16 Hun, 454), though it may seem to be in conflict with the view expressed, is not, for the reason that in that case the order simply directed that the summons, with a copy of the complaint and order, should be served upon the defendant personally without the State, and it was for that reason held to be void. There was an entire omission of compliance with all the provisions of the Code with regard to publication and the service by publication as required by section 440. The option of service by publication or by personal delivery was not preserved by that order, and not alluded to in any way, and it was defective in a very important element therefore; but as we have already seen in the case at bar, constructively the service by publication was so directed that there can be no mistake whatever in the construction or interpretation of the order in regard to it. But although we deem it our duty to afBrm the order, we think the respondent should not have costs because of the negligence of the attorney.”

      A. W. Otis, for the appellant.

      O. S. Glark, for the respondent.
   Opinion

Per Curiam.

Present — Van Brunt, P. J., Brady and Daniels, JJ.

Order affirmed, without costs.


text:
    ALFRED BEINHAUER, Appellant, v. AMELIA A. GLEASON, Respondent, Impleaded, etc.

      Judgment — not complete until the costs we towed and entered at the foot of the decree — the time to appeal does not begin to run until this is done.

    Appeal from an order of tlie Special Term denying plaintiff’s motion to vacate an ex parte order, extending defendant ■ Gleason’s time to make a case on appeal and exceptions, and fixing the amount of the defendant’s undertaking that she will not commit waste while in the possession of certain premises and to secure payment of deficiency, pursuant to the provisions of section 1331 of the Code of Civil Procedure.
    The court at General Term said: “ The case of Thurber v. Chambers (60 N. Y. 29), determined that a judgment is not complete until the costs are taxed and entered at the foot of the decree, and consequently the time to appeal did not run until the service of a copy of that decree as provided by the act after it is complete.
    “ If the party desired to avail themselves of the judgment and to make it necessary that the notice of appeal should be served within thirty days after the entry, he should have served notice of waiver of costs, with service of a copy of the decree as it then stood.
    “The order should be affirmed, with ten dollars costs and disbursements. ”

      P. L. Wilson, for the appellant.

      W. Sutphen, for the respondent.
   Opinion

Per Curiam.

Present — Van Brunt, P. «L, Beadt and Daniels, JJ.

Order affirmed, with ten dollars costs and disbursements.


author: Potter, J.

text:
    SIMON BELGARD, Respondent, v. THOMAS McLAUGHLIN and Others, Appellants.

      Evidence in a creditor’s suit — admissibility of a transcript of a judgment, recovered in a Justices’ Court and docketed in the county clerk’s office, as evidence of the jurisdiction of the Justices’ Court over the defendant.

    Appeal from a judgment entered at Special Term in an action brought by a judgment creditor of defendant, Thomas J. McLaughlin, to set aside an alleged fraudulent transfer of real estate situate in the city of New York, and known as No. 511 "West Twenty-ninth street, made by him to Margaret Stoker and by her to Susan McLaughlin, the wife of defendant Thomas.
    The defendants contend that the judgment was not properly proved.
    The judgment was recovered on or about the 23d day of July, 1885, in one of the district courts of the city of New York for the sum of $187.37 upon a promissory note made by the defendant Thomas McLaughlin on the 30th day of January, 1885. A transcript of such judgment was filed and the judgment was. docketed in the office of the clerk of the city and county of New York and an execution was issued thereupon by such clerk to the sheriff of said city and county, and by him returned unsatisfied before the commencement of the action.
    Upon the trial plaintiffs offered in evidence the transcript of the judgment. The defendants objected upon the ground that the transcript was not evidence of the judgment.
    The court at General Term said: “ If it be assumed that the judgment had, not been proved and that there was a necessity for its further proof as to all or some of the defendants, we are inclined to think the transcript from the District Court, followed by the filing and docketing of the same in the county clerk’s office, would be legitimate evidence of the existence of a judgment of the Court of Common Pleas and of the authority to issue the execution by the clerk of that court. (Code of Civil Pro., §§ 3017, 3022, 3220, in relation to courts, justices of the peace and justice’s courts of cities.) The case of Dickinson v. Smith (25 Barb., 102, 106), cited by appellant’s counsel, is decisive of this question. In that case the plaintiff sought to prove his title to lands against the defendant, the former owner of the lands, under a judgment rendered by a justice of the peace, a transcript of which was filed, the judgment docketed in the office of the clerk of the county and a sale of the lands by the sheriff under an execution issued by the clerk upon such judgment. The court, in the opinion in that case, held that a certified copy of the transcript and docket were properly received in evidence and that it was not necessary that the transcript, or other evidence, should show the proceedings before the justice to give jurisdiction to render a valid judgment in order to authorize it to be filed and docketed; that the judgment, when docketed, became a judgment of the county court; that it is not necessary to show the jurisdiction of the justice in order to establish the validity of such judgment; they become judgments by virtue of the statute, etc. This case was cited, with approval, in Stephens v. Santee (51 Barb., 542). This proof was properly received and raised a presumption of jurisdiction of the justice over the person of the defendant and of the validity of the judgment. The defendant was allowed to testify that the summons was not served upon him so few as he knew, but the person who is alleged to have made the service testified positively that he served the summons upon the defendant, and this positive testimony, together with the surrounding circumstances and the presumption above mentioned, conclusively establish the fact that the defendant was served with the summons in the action in which the judgment was rendered.” -

      John Ha/rdy, for the appellants Margaret Stoker and Susan McLaughlin.

      Marshall P. Stafford, for the respondent.
   Opinion by

Potter, J.

Van Brunt, P. J., and Lawrence, L, concurred.

Judgment modified as directed in opinion, and affirmed as modified, with costs.