author: Daniels, J.

text:
    In the Matter of the Application of Isaac B. Newcomb et al., to set aside an Election of Directors.

      (Supreme Court,

      Special Term,

      Filed November, 1891.)

    1. Constitutional law—Corfobation election.
    The provisions of § 5, tit. 4, chap. 18, part 1, of the Revised Statutes, providing for a summary proceeding to set aside a corporate election, are-, not unconstitutional.

      2. Railboads—Election of dihectobs—Vacancies.
    The directors of a railroad company can supply a vacancy in the board-, only where it is caused by death, resignation, removal or refusal to-serve, and not where it is caused by a failure to elect.
    3. Same—Eligibility.
    Persons who become stockholders within thirty days before the election, cannot be elected directors, and votes cast for such persons are inoperative.

      4. Same—Right to vote.
    An option for the sale of his stock, although the shares are deposited pursuant to it, or a conditional sale thereof, does not divest the stockholder of his title to the stock or deprive him of the right to vote on it,
    5. Same.
    At an election of directors twelve received a majority of the votes, of whom four were ineligible, and,there was a tie as to the other. The inspectors returned with the statement, but made no report, and an adjournment was taken. On the adjourned day the election proceeded, resulting in a. majority for thirteen persons, including eight of -those receiving a majority on the preceding day, and excluding the four ineligible persons. Held, that the proceedings on the first day were incomplete and that the election-on the latter day was regular.
    ■ Proceeding to set aside an election of directors of the Allegheny & Kinzua Railroad Company.

      C. Walter Artz and Frank Sullivan Smith, for petitioners; Charles S. Cary, Frank Rumsey and George L. Roberts, for resp’ts.
   Daniels, J.

The annual election of the Allegheny & Kinzua Railroad Company was required to be held for the year 1891 on the 10th day of February, at the village of Clean. And on that day the owners of nearly all the stock of the company, either personally or by proxy, appeared at the office of the company to conduct an election for thirteen directors for the ensuing year. And that number of persons was voted for. But as to one of the-candidates the vote was a tie between himself and two others. But as to the twelve, a majority vote was given for those claimed on behalf of the applicants to have been thereby elected directors, of the company. This, however, was denied by the persons claiming to be the owners of the majority of the stock. And without any announcement or declaration of the result by the inspectors of the election, a motion was made for an adjournment until eight o’clock in the evening of the day on which the election was held. An amendment to that motion was proposed and carried, by which the adjournment was ordered until the 14th day of February, 1891, at one o’clock in the afternoon. And at, or soon after that time, an election was held by which it is'claimed that thirteen directors of the company were regularly elected and entered upon the discharge of the duties of their respective offices. The legality of this election has been denied on behalf of the moving parties, consisting of seven persons claiming to have become directors of the company under the election of the 10th of February. And they have moved, under the provisions of the statute, to set aside the election of the 14th of February because of this alleged illegality. The provisions of the statute upon this subject, creating and providing for a summary proceeding to set aside a corporate election, are contained, as they are applicable to this proceeding, in § 5, tit. 4, chap. 18, part 1 of the Revised Statutes. And it has been objected on the part of the respondents that this section of the statute, so far as it may deprive the parties of a trial by jury, was enacted in violation of the constitution of this state and of the United States. The only provision which it is assumed to conflict with in the constitution of the United States is that contained in article 7 of the first amendments made to the constitution, which declares that in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. But it is sufficient to answer this part of the objection that the provisions contained in these amendments are applicable alone to the legislation of Congress and in no way apply to that of the states. And this is particularly so as to this amendment of the constitution. Spies v. Illinois, 123 U. S., 131, 166.

And the objection that the enactment conflicts with the constitution of New York is equally unfounded. The provision with which this conflict is supposed to have been created is contained in § 2 of article 1 of the constitution of 1846. And that provides, as the preceding constitutions of the state did, that the trial by jury in all cases in which it has been heretofore used shall remain inviolate forever. But this provision of the constitution has no application to the proceeding created and regulated by this section of the statute, which was enacted in the Laws of 1825, 451, § 9. As it has been made a part of the Revised Statutes, proceedings have been taken and maintained under it without the slightest objection that it stood in the least degree in conflict with the constitution. And its authority was invoked and enforced certainly over fifty years ago. Matter of Long Island R. R. Co., 19 Wend., 37; People v. Tioga Common Pleas, id., 73.

And in considering other statutes of a similar character, so far as they provided for the disposition of legal controversies by summary proceedings, it has been held that the statutes enacted prior to the adoption of the constitution in 1846 do not create any conflict of this description. Sands v. Kimbark, 27 N. Y., 147. And the notice required to be given was due process of law. Kennard v. Louisiana, 92 U. S., 480; Foster v. Kansas, 112 id., 201. There is, therefore, no foundation in either respect for this objection to stand upon. The question as to the validity of the-election held on the 14th of February is consequently presented for decision by this proceeding.

Bach of the elections in controversy was held under the authority of § 5 of the act of 1850 relating to railroad corporations. 2 R. S., 6th ed., 520, § 5. In the election held on the 10th of February, 1891, a majority of the votes were given for twelve persons. And at the election held on the 14th of February, 1891, eight of the same persons received a majority of all the votes of the shareholders of the company. And from that circumstance it results that the election of the 14th of February, to that extent, certainly, cannot be set aside. If the election on the 10th of February was regular, then these eight persons were elected at that election, and formally electing them again on the 14th certainly did not have the effect of invalidating their title to the office of directors.

After the close of the election held on the 10th of February, the persons claiming to be elected as directors appointed Theodore C. Woodbury to the office of the thirteenth director, which was-in no manner supplied in form by the election. This they evidently had no authority to do, for the reason that the first article of the by-laws of the corporation permitted the remaining directors to supply a vacancy in the board only in cases where it was caused by death, resignation, removal, or refusal to serve, which did not include the case of this thirteenth director. But it is not important specially to consider this subject, for the reason that the-same person was elected a director of the company in the election of the 14th of February. And that is sufficient to maintain the-right of nine of the directors held at that election to the offices-for which the votes of a majority of the stockholders were given for them, leaving but four of the directors whose election could be in any respect brought in controversy or affected in the least degree by this proceeding.

In the election on the 10th of February, Rockwell, Blair, Hastings and Wilson, received a majority of the votes given for directors at that meeting of the stockholders. In their favor the-votes of a minority of the shareholders were cumulated under the authority of the constitution and laws of Pennsylania. These were asserted to be applicable to this company for the reason that it was created by a consolidation of a New York and Pennsylvania Railroad Company. But while the articles of association creating this consolidation and the by-laws of the company, as well as the act of 1850, to which reference has already been made, declared that each stockholder should have but one vote for each share of stock, it still is not necessary to consider the question whether the laws and constitution of the state of Pennsylvania, so far as they contain this provision, were applicable to this consolidated company,, for the reason that it appears that Spencer S. Bullís and Mills WBarse, who controlled the majority of the stock of the company, voted in favor of these four persons for directors. And by those votes these persons could have been elected to the office of directors independently of the cumulated voting in their favor, if they were eligible for the office of directors, and the election was not only legally held, but in fact completed. The two persons owning the majority of these shares and voting for these four persons, however, state that they did so upon the assurance of Mr. Wilson, the secretary of the company, that they were shareholders in the company and entitled to vote at the election. While it now appears that these four persons became shareholders for the first time on the 31st of January, 1891, ten days only prior to the holding of the election. And § 5 of the act of 1850 required that the persons voting at an election for directors of the company should own the shares voted upon thirty days previous to the election. And then the statute proceeded to forbid any person being elected to the office of a director “ unless he shall be a stockholder owning stock absolutely in his own right, and qualified to vote for directors at the election at which he shall be chosen.” This was a distinct prohibition applicable to these four persons, by which they were not only rendered ineligible, but their election was positively forbidden. And there is certainly good reason for inferring the intention of the legislature to have been in this enactment to render the votes inoperative which should be given for persons whose election was in this manner prohibited. In Rex v. Sanchar, 2 Show., 67, the statute declared the election then in controversy to be void. And it was held that the corporation was entitled to elect another person to the óffice for which the individual had been elected in violation of the statute, without resorting to any proceeding whatever to remove him from that office. And this seems to be an authority in favor of the construction already suggested for this provision of the statute.

It' is true that in Rex v. Bridge, 1 M. & S., 76, the incumbent was ineligible by reason of his not having taken the sacrament within the time prescribed by law, which fact was considered to be insufficient to render the election void. And Chase v. Tuttle, 55 Conn., 455, sustains this view. But the statute of this” state has been so framed as apparently to require a stricter construction. And to hold that the person voted for in violation of its provision may still be a' de facto director, would seem to be a substantial repeal of so much of the statute. For it has directed that no person shall be a director unless he is qualified in the manner mentioned in the act. And the court has no authority apparently to declare that he shall be a director in violation of this provision. And if this statute rendering these four persons ineligible to the office of director is to be construed and applied in this manner, then these four persons were not elected, and there was no obstacle in the-way of electing four others, as that was done, in their place by the election of the 14th of February.

To maintain the election held on the 10th of February, it has been stated in the petition, which is the foundation of this proceeding, and in affidavits produced, that the three inspectors of election reported in favor of the election of the twelve persons claimed to have been elected by the petition. But this fact has been controverted by the answer of the respondents. And they have stated the fact to be that after the votes had been given, the three inspectors retired into an adjacent room, and finally returned with the statement which they had made of the votes, and which has been produced upon the hearing of this application, and then informed the shareholders that there was a tie in the vote of the twelfth director. And that brought the attention of the persons present to the names of the individuals who had been voted for as directors. And it was asserted then that the vote had been in violation of an understanding or agreement arrived at with the parties representing the minority of the stockholders as to the persons who should be elected directors of the company for the coming year. On the part of the petitioner’s it has been asserted that when the inspectors of the election returned they reported in favor of the election of the twelve persons voted for by the stockholders who were identified with the moving parties, and that these persons were stated to have been elected the directors of the company. But this has been positively denied on behalf of the respondents, their statement being that when this condition of the vote was exhibited they objected to it and declined to proceed farther until counsel could be consulted, and for that reason proposed to adjourn until eight o’clock in the evening of that day, when, conformably to the amendment already mentioned, the meeting was adjourned until the 14th of February. Upon this subject. the three inspectors of the election were examined in the reference ordered in the case of Byrne v. Bullis, and their evidence has been presented for consideration in the disposition of this motion. Two of them have made affidavits. And from the affidavits, and the testimony of the three inspectors, it appears that no report concerning the election was made or subscribed by them at the time when they returned and exhibited the condition of the votes to the shareholders. And that before they made any report, or subscribed the statement containing an account of the votes, this motion was made to adjourn and the adjournment had been carried, and that it was at the instance of Mr. Rockwell after that had been done that they subscribed the statement made by them of the votes which had been given. Over this statement is written in apparently a different handwriting these words: The following is a report of the vote cast on ballot for directors.” But their testimony is that this was not written upon the paper at the time they subscribed it at the instance of Mr. Rockwell. And that it was not returned by them as a report to any officer or stockholder of the company, but was left lying upon the table where they subscribed it as a mere statement, and from which it seems to have been taken by the secretary of the company and afterwards passed over by him to Mr. Barse. These facts, as they are authenticated by the testimony of the three inspectors, very clearly show that no completed election took place on the 10th of February, 1891, but that they were in doubt as to what should be done by themselves, and therefore returned with this statement which they exhibited to the assembled shareholders. If they had reported that the persons receiving the majority votes had in fact been elected, and this adjournment had not been previously ordered, then a different question would be presented on this part of the case. But they did. not do that. The most they did was to return their statement to-the meeting for further consideration. And the result of that consideration was an adjournment of the meeting until the 14th of February.

This left the election in an incomplete condition. The votes, it is true, had been cast upon which the inspectors might have declared the result. But they wholly failed to do that, and with the acquiescence of the shareholders took no further action for the purpose of consummating the election. In this respect, as well asín others, the facts are presented differently from those which were made to appear upon the motion for the continuance of the injunction in the' case of Byrne v. Bullis. And what was there said concerning this election has no application to this-proceeding. For instead of an election being completed, as was-then shown to be the fact, the election of the 10th of February was not completed, and no final action was taken upon it by the inspectors before the meeting was adjourned. And the object of that adjournment probably was, as it has been stated in the affidavits of the respondents, Barse and Bullis, to bring the election up for further consideration and action on the 14th of February. And under these circumstances it was a subject open for further consideration of the shareholders at the time to which their meeting was in this manner adjourned. On that day a formal vote was taken by some of the parties to adjourn the meeting. But-this does not appear to have had such a measure of concurrence as would render that action legal and valid. But shortly after the hour of one o’clock, or certainly not later than two o’clock of the 14th of February the formal election did take place, resulting in the majority of votes being given for the thirteen persons who were then declared to be elected directors. And that was the first authoritative declaration that was made,- as the result of either election, that any persons had been elected as directors of the company. In this election, Bartlett, Cary, Widenfeldt and Byrne are the four persons who appear to have been elected in place of Rockwell, Blair, Hastings and Wilson. And their eligibility to the office of directors of the company has in no manner been successfully impeached. But so far as the proceedings appear to have been taken, and under the authority of this adjournment, they seem to have been regular and in compliance with the by-laws, as well as the articles of consolidation and the statute defining the qualifications of the voters. And their election cannot legally be set aside to instal ineligible persons in their places, when the statute has forbidden their election at all.

It has, however, been stated that the respondents Bullis and Barse, by whose votes this ticket was elected, had parted with their stock, and therefore were not in a condition to use it as the authority for the votes given by them at the election. This objection is made upon the effect of chapter 510 of the Laws of 1880, which by its second section declares it shall not be lawful for any person to vote, or to issue a proxy to any other person or persons to vote, at any meeting of stockholders, or bondholders, or of stockholders and bondholders of any railroad corporation in this state for the election of directors, or for any other purpose, upon any stock or bonds, where the certificates for said stock or the said bonds shall not be in the possession or under the control of the person in whose behalf the vote is to- be given, and such last mentioned person shall have ceased to retain the title to the stock represented by such certificates, or said bonds, as owner in his own right, or in his capacity of executor, etc. To deprive the stockholder of the right to vote, this section of the statute requires the existence of two facts: First, that the stock shall not be in the possession or under the control of the person in whose behalf the vote is given, and second, that such person shall have ceased to retain the title to the stock represented by the certificates ; while the proof given to affect the right of these persons to vote has failed to establish the fact that they had ceased to retain the title of the stock upon which their votes were given. For by the agreement made by the respondents Bullis and Barse no more than an option was given Newcomb & Co. for the purchase of these shares within the period of two years from the date of the agreement, which was made on the 13th of March, 1890. And that option, although the shares were deposited pursuant to it to be held subject to the option, did not divest the persons giving the option of their title to the shares. And so much seems to have been considered in making the agreement itself. For by subd. 4 of article 1 it was provided that the said parties should at all times retain the right to vote these shares at all meetings of the stockholders of the company.

It was also objected that the respondent Barse had parted with his interest in the shares in favor of the respondents Bullis and McNeil. And it does appear that an agreement was entered into by which the respondent Barse was to sell and dispose of his interest in these shares of stock. But it is positively stated by both the respondents Bullis and Barse that it was agreed that the title and control of the shares should remain in Barse until Bullis and McNeil should pay certain moneys and perform certain obligations which they had not yet done. And that the title to the stock, therefore, continued to remain in Barse. This statement seems to have presented the facts as they were in reference to the sale of the interest of the respondent Barse in, the majority of the shares of the company. And the facts were súch as under the statute not to deprive him, of the right to vote, as he did, upon the shares at each of these elections.

An injunction was issued in the suit of Byrne against the railroad company and the owners of the majority of these shares, forbidding an election to be held on the 14th of February. And it is stated generally in the affidavits that this injunction was served prior to the time when that election was held. And if that fact had been established by the affidavits, as it was in another proceeding, there may have been sufficient ground for setting aside this election as being held in violation of the restraint ■of the injunction. But those affidavits have not been made a part of the proof in this proceeding. Neither has it been shown that the injunction was in fact served upon either of the persons interested in the majority of these shares in such a manner as to deprive the election of its legal effect It has been stated generally that the injunction was served, and was duly served. But those are mere inferences from facts which have not been made to appear as they should be to work a result of this description. If the injunction had been served in such a manner as to deprive these persons of the right to proceed with the election, the particulars required to be observed in making a legal service of the order should have been shown by the affidavits. But that has not been done. And on the part of the respondents it is denied that any such service of the injunction had been made. And there is no reason, accordingly, in this part of the case which will justify the setting aside of this election as being held in violation of the injunction. But as the facts have now been exhibited, the election of the 14th of February appears to have been regular, and the motion to set it aside will accordingly be denied. But inasmuch as the effort of each party has been to overreach the other, the denial will be without costs.


source: Caselaw Access Project

author: Andrews, J.

license: Public Domain

text:
    The People ex rel. Henry Day v. The Tax Commissioners.

      (Supreme Court, Chambers, New York County,

      Filed November 30, 1891.)

    Taxes—Personal property.
    Personal property, forming part of a trust fund, which is actually deposited outside of this state is not rendered liable to taxation here, either on the ground that it was not in the possession or physical control of the non-resident trustees, or because the meetings of the trustees were held in New York city, or the property consisted of securities representing investments made on property in this state.
    Proceedings to vacate assessment upon personal property.

      Lord, Day & Lord, for relator; William H, Clark, counsel to the corporation.
   Andrews, J.

Assuming that Mr. Day was a resident of New York city in January, 1891, the Revised Statutes, as amended by chap. 176 of the Laws of 1851, did not authorize the assessment in question because the securities deposited in Newark, New Jersey, could not be regarded, for the purpose of taxation, as “ within this state,” nor were they in the “possession,” or under “the control ” of Mr. Day. 2 R. S., 8th ed., pp. 1082 and 1084; People v. Commissioners, 23 N. Y., 230; People v. Smith, 88 id., 576; People v. Coleman, 119 id., 137; 28 St. Rep., 937. In the last mentioned case, Peckham, J., who delivered the opinion of the court, said: It is substantially conceded, and it is, in any event, very plain, that prior to the act, chap. 392 of the Laws of 1883, the assessment in question could not be sustained.” And speaking of the right in which a trustee holds property, and of the statute which, in certain cases, authorizes the assessment of such property, he said: “ He (a trustee) has the legal title, and he-is to be assessed for it when it is within the state, but this is by express provision of statute, and such provision is not mentioned in the case of a trustee whose trust property is outside the state,, and not in his possession.” Nor (upon the same assumption as to. the residence of Mr. Day) was the assessment authorized by said chap. 392 of the Laws of 1883, because, as interpreted by the court of appeals, that statute refers to those debts only which aro “ solely ” due or owing to residents of this state, and does not, in/ any case, include debts due or owing to “trustees.”

In the Barrow case, above referred to, two of the trustees resided in this state, but the securities assessed were in the possession of a third trustee, who resided in New Jersey. Judge Peck-ham, in his opinion, which was concurred in by all the judges except Bari, J., absent, said: “Does the act of 1883 meet such a case ? We think not. It is not a debt due and owing to persons; residing within this state, for it is one "which is due or owing to them in connection with another, who is a joint owner, and who is. not a resident within this state, and such other has .possession of the securities. The statute means that the debt must be one" which is solely due or owing to residents of this state. * * * Nor do we think that the statute means to include as owners persons who were trustees only, and thus assess them for the property not held by them and not within this state. Generally a man is not spoken of as the owner of property who merely holds it as a trustee and in a representative capacity.”

It is claimed by the counsel to the corporation that the case at bar can be distinguished from the Barrow case, first, because while the securities were physically without the state of New York, they were not in the custody or possession or physical control of either of the non-resident trustees, or at the house, or even within the same town or city with such non-resident trustees; secondly, because the meetings held by the trustees in the discharge of their duties under the trust were held in the city of New York; and thirdly, because the bonds and mortgages held by the trustees represented investments made on property situated within the state of New York.

Upon principle, I do not think that either of the facts above mentioned constitute a ground upon which this case can be distinguished from the Barrow case. The securities were in the state of New Jersey, and Mr. Day alone not only had no control over them, but he could not even have access to them without the presence of one of the non-resident trustees; while on the other hand the two latter, jointly, though not severally, did have such control and right of access. Our statutes authorize the assessment of such personal property only as is “ within the state,” anil trustees can be assessed for such personal property only as is in their “possession ” or under their “ control,” and as the securities were neither “ within the state ” nor in the “ possession ” nor under the “ control ” of Mr. Day, he could not be assessed for them.

The fact that the trustees meet and take action in relation to their trust in the city of New York is immaterial. Our statutes contain no provisions making personal property situated without the state liable to taxation in case its custodians meet and transact business relating to their trust within the state; nor does the fact that the bonds are secured by mortgages upon real property situated in this state make either bonds or mortgages liable to taxation here.

It is true such property has the protection and benefits given by the state to all real property within its .limits, but the property itself is liable to be, and doubtless is, taxed here. The bonds .and mortgages themselves are in New Jersey, and the debts secured by such bonds and mortgages are not due or owing to Mr. Day alone, but to him jointly with the other trustees, who are non-residents. Moreover, such bonds and mortgages are not merely evidences of debt, but are themselves property. In the case of The People ex rel. Jefferson v. Smith, supra, Earl, J., who delivered the opinion of the court, said: It is clear from the statutes referred to, and the authorities cited, and from the understanding of business men in commercial transactions, as well as of jurists and legislators, that mortgages, bonds, bills and notes have for many purposes come to be regarded as property, and not as the mere evidence of debts, and' that they may thus have a situs at the place where they are found, like other visible, tangible chattels.”

Bonds, secured by mortgages upon real property located in ■other states, are taxable here when the bonds and mortgages themselves are within this state, and if the laws of New Jersey are like our own, the securities in question are liable to be taxed there.

The fact that the property taxed did not have the protection of our laws was not the only consideration which influenced the court of appeals to make the decisions which it did in the Hoyt, Jefferson and Darrow cases, above cited. That court has uniformly held that ambiguous statutes of our own state relating to taxation ought not to be construed to cover personal property situated in other states, and thus render it liable to be taxed more than once.

In the Darrow case it was said: The contention of the counsel for the tax commissioners would render property liable to double, or even treble, or still greater taxation, if the laws of other states were like ours, and there were three or more trustees living in as many different states. The statute, as it is, may lead to injustice in the double taxation of personal property; once to its absolute owner in this state, and again in the hands of his agents in the shape of securities in their custody and control in other states. It is not for courts to widen the possible injustice which may be perpetrated under a statute by giving it a construction not only not called for by its language, but forced and unnatural under the circumstances. It is unnecessary to go over the argument arising from an examination of the whole law of assessment for the purpose of showing that the cons traction adopted by ns is the correct one. We think that-it plainly appears that the construction adopted by the learned general term may lead to such a perversion of justice that no-court ought to adopt it unless constrained by the plainest language of the statute. We are of the opinion that such is not the-language of this one.”

The observations last above quoted were made in reference to-the said act, chap. 392 of the Laws of 1883, but they are equally applicable to the provisions of the Revised Statutes, above cited,, which relate to the taxation of personal property “ within the state ” and in the “ possession ” or under the “ control ” of trustees. And, so far as that act itself may have been supposed to furnish, authority for the assessment in question, the- fact that the bonds, are secured by mortgages upon real property situated in this state-is wholly immaterial, because, as above stated, the court of appeals-has decided that the term “ owners,” as used in that statute, does not include “ trustees,” and that the statute means that the- “ debt must be one which is solely due or owing to residents of this state.” Mr. Day was assessed as a trustee, and the debt cannot, in any view of the case, be considered as due or owing “ solely ” to him, and therefore the statute can have no possible-, application to the case.

I am of the opinion that the asséssment involved in each of the-proceedings brought on behalf of legatees under the will of Mrs. Eliza M. Morgan should be vacated and set aside, irrespective of the question whether Mr. Day is or is not a resident of this state. That question is not free from difficulty, but as he and his family habitually live in this city during the winter months, and were so-living here on the second Monday of January, 1891, and as it is-conceded that of the estate held under the trusts created by the will of the late Edwin D. Morgan there was within this state and city on that date personal property of the value of $54,652, I think that the assessment should not be wholly vacated, but should be reduced to that amount


author: Per Curiam.

text:
    Louisa Robertson, Resp’t, v. The New Hampshire Insurance Company of Manchester, App’lt.

      (Superior Court of Buffalo,

      General Term,

      Filed December 30, 1891.)

    Insurance (Fire)—Waiver oe conditions oe policy.
    Where the insurer’s agent takes part in the adjustment of a loss with the representatives of other companies, examines the books and determines the amount of loss and damage, the delay in calling for an examination of the assured and his books and for an appraisal by appraisers appointed by the parties warrants the submission to the jury of the question of waiver of those conditions of the policy.
    Appeal from judgment in favor of plaintiff, entered on verdict, of jury.
    Action on policy of fire insurance.

      Lewis & Moot, for resp’t; L. M. Ames, for app’lt
   Per Curiam.

The appeal in this case and in the case against, the Insurance Company of Pennsylvania involve substantially same questions. The principal ground of error, alleged by the appellants is, that the court should have granted the defendant’s motion for a nonsuit, and decided as a matter of law that the conditions contained in the policy had not been waived. There is some evidence from which the jury might find that the companies by their duly authorized agent intended to and did waive the conditions of the policy which authorized the company to call for an examination of the plaintiff and of her books, and for the appraisal of the property by appraisers selected by the parties. The loss resulted from a fire which spread- over quite an extensive territory and destroyed a large amount of property, and originated a block or more away from the plaintiff’s place of business.

It is not claimed, nor does the evidence warrant it, that the plaintiff in any way contributed to the loss, or by her conduct neglected to do all that was necessary and proper to preserve the property or such portion of it as was saved from the fire, nor was it claimed on the trial that the plaintiff did not sustain the amount of loss for which the verdict was obtained. The defendants’ agent took part in the adjustment of the loss, with the representatives of other companies, and examined the books and determined the amount of loss and the damage to the property saved, and practically agreed upon the discount which should be made on the stock of goods. Under these circumstances we think the delay on the part of the defendants in calling for the examinations authorized by the policies warranted the submission of the question of waiver to the jury, and as they have found against the defendants on that proposition the verdict should not be disturbed. The judgment must be affirmed, with costs. 11

Beckwith, Oh. J., and Titus, J., concur; Hatch, J., did not sil


text:
    The People ex rel. James Burns and Annie Burns, App’lts, v. Jacob Bloedel, Resp’t.

      (Superior Court of Buffalo,

      General Term,

      Filed December 30, 1891.)

    1. Evidence—Judicial notice.
    The court will take judicial notice of the fact that the city of Buffalo is in Erie county, and of who was the county judge thereof at a specified time.
    2. Pabent and child—Adoption.
    The statute in relation to the adoption of children does not require the county judge to witness hy his signature the consent of the parties adopting the child; it is sufficient if the order recites that the parties appeared before him and that they signed the necessary consents.
    Appeal from order in habeas corpus proceedings in favor of defendant

      G. E. GuddebacJc, for app’lts; Henry W. Brendel, for resp’t
   Per Curiam.

This appeal presents questions arising on the sufficiency of the proceedings taken by the county judge for the adoption of the bastard child of Annie Burns, by the respondent, under chapter 830 of the Laws of 1873. On the lith day of April, 1883, the relator Annie Burns, by name of Annie Fondry, appeared before the county judge and consented in writing that s?id child might be adopted by Jacob Bloedel, and the same was witnessed and acknowledged by William W. Hammond, who subscribes himself county judge of ¡Erie county. On the same day Jacob Bloedel and Nancy A. Bloedel, his wife, each consented in writing to the adoption of said child, and said Jacob Bloedel entered into an agreement under seal, as provided by chapter 830 of the Laws of 1873, that said child should be treated in all respects as his own lawful child. Thereupon and on the same day the county judge made an order reciting the proceedings and directing that the said child “ should thereafter be treated in all respects as the child of Jacob Bloedel and wife, and shall hereafter be known and called by the name of Henry George Bloedel.” This order was signed by William W. Hammond, as county judge of Brie county, and attested by J. B. Ewell, clerk. The relators instituted proceedings by habeas corpus to recover the child from the respondent, who in his return to the writ set up the proceedings had before the county judge and claimed the child by virtue thereof. The relators demurred to said return, and the judge at special term held the papers sufficient. The relators now claim that the record does not show that Bloedel, the person adopting the child, resided in the county of Brie, the county of the official before whom he appeared. We think that fact does sufficiently appear. The agreement of Jacob Bloedel states that he is “ of the city of Buffalo,” and the court will take notice that the city of Buffalo is in the county of Brie, and that William W. Hammond was, at the time, county judge of said county.

He further claims that the record does not show that Jacob Bloedel and Nancy Ann Bloedel signed the consent of adoption, or agreement to*adopt, in the presence of the county judge. We do not think it is necessary under the statute that the county judge should sign the consent of the parties adopting the child; but if it is done before him it will be sufficient compliance with the statute. The order made by the county judge recites that the child and Jacob Bloedel and Nancy A. Bloedel, his wife, having this day appeared before the undersigned county judge of Brie county, and the parties having signed the necessary consents,” etc., we think this shows what the statute requires to be shown, that the wife appeared before the county j udge and signed the consent, and the fact that the judge does not witness the signature by subscribing his name thereunder is cured and sufficiently attested by the recitation in the order which is signed by him; especially is this so in view of the fact that there is nothing in the statute requiring the county judge to witness by his signature the consent of the parties adopting the child.

We are also of the opinion upon the authority of The People ex rel. Wehle v. Weissenbach, et al., 60 N.Y., 385, that the omission of the county judge to sign the certificate of Bloedel cannot be availed of by relator, she having given her consent, which the county judge did witness by his signature.

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

Beckwith, Ch. J., and Titus, J., concur; Hatch, J., did not sit.


author: Hatch, J.

text:
    In the Matter of the Application of William F. Wright for the removal of I. H. Radford from certain Premises.

      (Superior Court of Buffalo,

      General Term,

      Filed December 30, 1891.)

    1. Summary proceedings—Tenant holding over—Answer.
    An answer in proceedings to remove a tenant as holding over which consists of a general denial and an allegation that a new lease was made and the rent thereunder has been paid, is sufficient to raise an issue.
    2. Same.
    A person residing upon the premises, upon whom the precept was served, and who states under oath that she was in possession, may serve a verified answer in such proceeding, even though she be the tenant’s wife, left in possession during her husband’s absence.
    Appeal from an order awarding possession, of certain premises to the landlord, made by the municipal court of Buffalo, in summary proceedings instituted to remove a tenant for holding over after the expiration of his term.

      Platt & W heeler, for landlord; A. J. Sigman, for tenant.
   Hatch, J.

In this proceeding a precept was issued upon a regularly verified petition alleging the expiration of the term,- and was served upon Anna Radford, she being a person residing upon, and in the occupation of the premises at the time of such, service. Upon the return of the precept the tenant appeared before the judge by attorney and tendered an answer, verified by the said Anna Radford, which recited, among other things, that she was the person in possession of the premises, and for her answer to the petition she denied each and every allegation contained therein, except as admitted. It then alleged that a lease-was made with the plaintiff for a specified term, and upon the expiration of such term another lease for a specified term was made which had not yet expired, and that the rent due thereunder had been paid.

The answer was objected to by the petitioner upon the ground that it was not sufficient the court so held, refused the answer, and entered an order awarding the petitioner possession of the premises with costs of the proceeding. This order has been executed and petitioner placed in possession of the premises. The answer tendered was sufficient to raise an issue. The petition alleged a letting of the premises from July 1, 1890, to August 28, 1890, and the expiration of the term on said 28th day of August The answer, both by denial and affirmative allegation, placed that fact in issue, for the general denial was not qualified as to the expiration of the term, while the affirmative allegations set up the leases under which the premises had been and were then held. The form of denial is in compliance with the Code, § 2244, People v. Cowles, 42 Barb., 96.

And if the affirmative allegations are to be treated as anything more than an allegation of facts to support the denial it could still be sustained as raising an issue upon a material allegation of the petition, for, if true, it showed that the term had not yet expired. Provost v. Donohue, 21 St. Rep., 897; Becker v. Church, 42 Hun, 258; 5 St. Rep., 97; The People v. Howlett, 76 N. Y., 574.

The answer, therefore, as an allegation of fact to raise an issue is sufficient. This, as the record shows, was all the question raised below, but counsel in their brief state that the theory upon which the answer was rejected was that the person tendering the answer had no standing in court to serve one, as she was not in possession of the premises at the time. This was based upon the assumption, as gathered from the brief, that the person answering was the wife of the party proceeded against, and that in law she could have no possession independent of her husband. It is to be noticed that the record gives no information as to the relation of the party proceeded against and the person tendering the answer, if any there be. The proof of service of the precept shows that Anna Radford was a person of about twenty-five years of age, who resided upon the premises and was the person served with the precept, and the answer asserts that she was in possession of them. With the question of relationship eliminated we are to consider whether or no she had standing to protect any right.

The Code provides, § 2244, that a written answer verified in like manner as a verified answer in an action in the supreme court may be filed with the judge who issued the precept by “ the person to whom it is directed, or his landlord, or any person in possession, or claiming possession of the premises.” Possession may be either actual or constructive; it is actual when the party has the immediate occupancy; it is constructive when he has only the right to immediate occupancy. One is an actual existence; the other exists in contemplation of law. Brown v. Volkening, 64 N. Y., 76.

The party in fact served was a person who resided upon the premises; she states under oath that she was in possession; thus an actual occupancy is established. This I think places her within the category of those persons which the Code has said may serve the answer and raise the issue to be tried. Nor do I think the result should be different if it be conceded that Anna Radford was the wife of the tenant. She still continues to be a person; the Code does not limit the authority conferred to any particular class of persons; it only requires that they shall have the interest therein stated. It nowhere provides that the party shall have the legal right to continue or be in possession; the naked possession or claim to it is sufficient It is quite apparent that the legal right may rest in one person, and the present possession in another, as where the lessee places the actual possession in an agent, while he holds the legal right to enter. It would scarcely be claimed that if the agent were served with process under such circumstances, that he could not appear and defend, based upon the legal right of his principal, and his right to possession thereunder. How is the principle changed when the wife is left in possession of the dwelling during her husband’s absence ? This is a summary remedy; great injustice under it may be done.

In the present case the precept was issued, served and made returnable the same day. binder such circumstances it would be a harsh construction which would prevent the wife, left in the occupancy of a house, from asserting a legal right which the lessee possessed by showing that she was in possession and entitled to it by virtue of the legal right Such result should not be reached unless it be a necessary one, and I am unable to find the right denied. It therefore follows that the order should be reversed, with costs. As the term claimed by the tenant has expired, restitution of the premises should not be ordered, but the tenant is left to enforce such remedy as the law permits.

Beckwith, Oh. J., and Titus, J., concur.


text:
    Barbara Startz, Adm’rx, Resp’t., v. The Pennsylvania & N. Y. Canal & Railroad Co. et al., App’lts.

      (Saperior Court of Buffalo,

      General Term,

      Filed December 30, 1891.)

    1. Negligence—Contbibutoiiy.
    Plaintiff’s intestate was killed while driving a load of furniture across the tracks of the Brie R. R. Co., by an engine of the other defendant. He was walking by the side of the wagon so that his vision to the east was obstructed by it. As he approached the crossing the gates were up, and the wagon preceding him passed in safety. When he reached the crossing the opposite gate was lowered, but on his side it was up, but was then lowered so as to strike the rear end of his load. The engine which caused the injury approached rapidly from the east without giving the statutory signals. Held, that it could not be said as matter of law that deceased was guilty of contributory, negligence, and that that question was propel ly submitted to the jury.
    2. Same—Railroads.
    The evidence showing that the injury was produced by the concurrent negligence of both defendants, the case was properly submitted and the verdict properly rendered as against both.
    Appeal from a judgment entered upon the verdict of a jury, against both defendants, and from an order denying a motion for a new trial made upon a case and exceptions.

      Frank Brundage, for app’lt, P. & 1ST. Y. C. & R. R. Co.; Geo. F. Brownell, for app’lt, 1ST. Y., L. E. & W. R. R. Co.; George W. Cothran, for resp’t.
   Hatch, J.

It is" claimed that Joseph Startz was killed by concurrent acts of negligence, committed by the defendants, under such circumstances as authorized the jury to find that both were liable, and that he was, at the time, free from any negligence which contributed thereto. Upon the trial it was conceded by all parties that the defendants were only liable for the neglect of duty of its own agents and servants which proved to have been the proximate cause of the injury. Both defendants, however, stand upon common ground with respect to the contributing negligence of the deceased, and as this question must be solved in favor of the plaintiff, in order to support the judgment and order appealed from, it first engages our attention.

From the evidence it appears that deceased was, on the 5 th or 6th day of March, 1888, engaged in moving a load of furniture, with a horse attached to a wagon; that such employment necessitoted the crossing the tracks of the Erie railroad which intersect Smith street in the city of Buffalo. The point on Smith street where deceased crossed is occupied by two main lines of tracks, and by five switch or junction tracks, which form a connection with the main tracks, and also with several long switch tracks, it being in fact a part of the Erie Railroad’s yard system. The width, from the northerly rail of the first track to the southerly rail of the last track, is about eighty-eight feet. At this point upon Smith street the Erie Railroad have erected gates, raised and lowered by means of a crank, and which also strikes, automatically, a gong as the gates rise and descend. The northerly gate is located four feet from the first track, which is five feet wide, and the intervening space about eight feet, when the west bound track, so-called, is reached; this is the most northerly main track, and its first rail is seventeen feet from the gate. The southerly gate is located south of the most southerly track about the same distance therefrom as the northerly gate.

These gates have been so erected and operated, as a protection to the road and public for many years. The view from Smith street', as the tracks are approached, is obstructed until a point six feet from the first track is reached, where a view to Seneca street, a distance of about 310 feet, would be obtained. Upon the day in question deceased approached the crossing from the north, from four to six hundred feet in the rear of a team attached to a sleigh, also loaded with furniture, and which he was following. This team passed over in safety. When deceased reached the northerly gates they were raised. He was at that time on the right hand side of his wagon upon the ground, walking near the forward wheels; the wagon box and load projected above his head and effectually shut off any view to the east. His head was covered by a cap pulled down, and he was proceeding at the rate of from two to two and one-half miles an hour. He had driven the horse across- the west bound track and the wagon was upon it, when an engine, operated by the Pennsylvania road, it having leased the right of operating its trains upon the Erie’s tracks, backed at a rapid rate of speed upon the track, struck the .wagon at about its forward wheels and killed deceased instantly. The evidence with respect to the condition of the gates when the deceased passed under them, and of the signal given by the flagman stationed at the crossing and who operated the gates, was conflicting. Thives, who drove the sleigh followed by deceased, states, on his direct examination: “ Saw him when he came upon the Erie crossing; the gates were open ; I saw them close down; they were behind him; that left him on the tracks and the gates behind him closed; I was looking right at him when he entered on the crossing.” On cross-examination he said: “I was noticing at the time the gates commenced to come down on the side he came from; I paid particular attention to that, and noticed it as quickly as he got on the track; the gates commenced to come down before he got on the first track and came down on his box; on the top of the box ; I was then 600 feet away; I could tell exactly the place where they were coming down; at the time the gates first commenced to come down the horse was under the gates and Startz was back of the gate, a little behind, right alongside his wheel.” Julia Boas testified that the wagon was just back of her, about fifteen feet, as she crosse’d the track on foot; that she saw no flagman and paid no attention to the gates.

On cross-examination she stated the gates were up as she passed them. Peter Pfeiffer states that he saw the wagon going on the tracks; that the gates then looked as if they were in motion coming down, but were not down, standing at an angle. Eva Foote testified that when she entered upon the crossing the gates were up; no gateman there; that the horse and wagon was about the length of the wagon back. Peter Coleman testified that he saw deceased and the engine; that as the engine approached the crossing the gateman was letting down the gates, but could not get them down, as they would come down between the horse and wagon: that the gateman called upon deceased to stop; lie was then on the first track, but paid no attention, drove right along and was struck. Timothy Cary' testified that he was the gateman on the south side; that he commenced to lower his gates when the gateman at Seneca street lowered his; the latter gate was situated about 310 feet further east; that his gates were down when he first noticed the horse and wagon, heard the gateman call to hold on, but did not notice the gates. Thomas Sheehan testified that he saw the gates lowering down, but did not see the horse and wagon when they were lowered down; heard the gateman, Ryan, call to hold on. The gates could be lowered very quickly; in a few seconds’ time.

The jury were authorized to find that the engine, which struck deceased, approached the crossing at a rate of speed approximating twenty miles an hour, without sounding either bell or whistle. The court submitted to the jury the question as to whether the act of deceased in entering upon the crossing and his conduct thereafter was negligent: The charge was quite as favorable to defendants, in this respect, as they were entitled. It seems quite clear that the jury would be„ authorized to find that when deceased reached the gates they were up; that the gateman was absent from his post; under such condition there was conveyed to deceased a notice, upon which to some extent at least he might rely, that it was safe for him to proceed. How far such condition relieved him from active vigilance so that his subsequent acts can be characterized as negligent is the question,

In Palmer v. N. Y. C. & II. R. R. R. Co., 112 N.Y., 234; 20 St. Rep., 904, the court said “ it is obvious that an open gate was a direct and explicit assurance to the traveler that neither train nor engine was rendering the way dangerous; that none was passing. A closed gate was an obstruction preventing access to the road; an open gate was equally positive in the implication to be derived from it that the way was safe. Rothing less could be implied, and no other conclusion could be drawn from that circumstance.” This doctrine is again reiterated and applied in Oldenburg v. N.Y. C. & H. R. R. R. Co., 124 N. Y., 418; 36 St. Rep., 402.

The same rule has also been adopted by the supreme court, Fitzgerald v. Long Island R. R. Co., 10 St. Rep., 433; Phillips v. N. Y. C. & H. R. R. R. Co., 25 id., 91.

In the latter case the court says : “ Such gates when properly and judiciously managed are obviously well calculated to afford the traveling public great protection when approaching railroad crossings. But if negligently manipulated, it can be readily perceived that, so far from giving the needed notice of the approach of a train of cars, the lowering of the gates at the moment a team enters upon the crossing would be likely to increase rather than diminish the danger, as the device under such management, would be likely to become a trap, as it seems to have been upon the occasion in question.” This language, in the view the jury took of the evidence, is quite an appropriate characterization of the present case. Lindeman v. N. Y. C. & H. R. R. R. Co., 3 St. Rep., 731.

In Maine the same rule has been adopted. Hooper v. B. & M. R. R. Co., 81 Me., 260; State v. B. & M. R. R. Co., 80 id., 430.

In England an open gate is an intimation that it is safe for the traveler to pass. Wanless v. North Eastern R. R. Co., L. R., 6 Q. B., 481; Stapley v. London, etc., R. R. Co., Law R., 1 Ex., 21.

It is, however, claimed that even though such conditions may authorize the person to rely, to a certain extent, upon such assurance, yet that it does not dispense with the exercise of his faculties, or relieve him from the obligation of looking and listening for the approach of danger, when by so doing he could avoid it. The same objection was argued in the Palmer case, supra, and the learned court then said, in reply, that if the fact was proved that lie did not look, coupled with the open gates, and the absence of signals, both of which are here present, it would not enable the court to say as matter of law that negligence was established. Id., 243, 244.

In Glushing v. Sharp, 96 N. Y., 676, the testimony showed that the traveler looked about thirty feet from the railroad track, at a point where there was some obstruction; that he did not again look while passing the thirty feet, although, by so doing, he could have seen the train approaching, and it was held that whether he was negligent or not was a question for the jury. The court observed.that: “ The raising of the gate was a substantial assurance to him of safety; * * * that any prudent man would not be influenced by it is against all human experience,” and that such fact could not be ignored in measuring plaintiff’s conduct.

Within these rules we think this recovery can be upheld. The jury were authorized to find that the gates were raised at the time when the horse passed them. It can safely be assumed that deceased had observed their condition, and it would hardly be required that he should keep his eyes upon them to see whether they would be lowered after he had passed ; he was near the forward wheel of the wagon, walking upon the right side ; it was his duty to exercise vigilance in protecting himself from danger from the west as from the east; from the east side of the wagon he could not see the track to the west nor to the east until he passed the flag shanty, while on the west side he would have a clear view of the tracks westward and could observe. Negligence can scarcely be predicated, therefore, from the fact that he was on the opposite side from where danger did in fact come. If the gates were let down before his wagon passed entirely under them, it cannot be said, as matter of law, that he was negligent in not observing them; they were above him; they did not strike the horse; they could not strike him, as he was lower than the box •of the wagon. It does not appear that the arms came in contact with the wagon box so as to attract his attention from that. It is •said that the lowering of the arms sounded a gong to which he should have given heed. If the arms did not entirely descend it is impossible to say how many times the gong struck; there is no ■evidence as to how far the sound of it would reach. Deceased was beside his wagon, which must have made some noise, and he occupied a position where it would have the most effect upon him; others say they did not hear it, but that does not prove that it was making no noise; on the contrary, it is opposed to reason that it did not make some, and all that it did make was immediately audible to his ear. Other noises were doubtless louder to the witnesses.

It is said that the flagman shouted; that may well be, but it does not establish that deceased heard him, or that his failure to hear him was negligent. The whole transaction was the work •of a few seconds of time. Deceased was between the gates, when the rear of ■ his wagon was at the gates his horse must have been upon the west-bound track, as the distance was but seventeen feet, while his horse and wagon occupied eighteen feet; he then had the assurance of safety from the absence of the gate-man and the raised gates; if upon the other side of his wagon, he could not have made an observation until within nineteen feet ■of the west-bound track; he, therefore, continued upon the west side, where he could and did obtain a clear view of the track in that direction, and it is not strained to say that he relied upon the assurance of the gates as to the other side. If he listened, and there is no certain evidence that he did not, could he have heard the engine approaching which gave no blast of whistle or sound of bell? If he looked and saw the engine with the tender towards him, could he have told on the instant that it was approaching, and he must act instantly in order to save himself from injury ? Should he stop and go to his horse’s head and make an observation ? This, as the evidence tends to show, would have brought him directly in the track of the engine, as he was then clear of the gates, while it would have given him but little assurance of ■safety when he had returned to his position and started again, if no train or engine was then there, as the circumstances might have changed. Should he drive fast or slow, turn or stand still ? Who shall say ? He was in a known place of danger, and was required to do something; that we can now see what he should have done and escaped injury does not aid us, as prudent persons do not always do what is shown to be the best thing to do from after developments. All these considerations drive my mind to the conclusion that what he did do falls within the province of a jury to determine, whether it be such an act as ordinary prudence-would dictate under similar circumstances. It is farther said that he looked ahead, and therefore must have seen the gates-down upon the south side, which gave him notice of the approaching train. It was eighty-eight feet across the tracks; the testimony shows that the gates on the south side were down as he entered upon the tracks; he may have thought that they would be raised, as the others were 'up, as he crossed. This view was-held sufficient, in a similar case, to answer a charge of negligence, by the supreme court. Haywood v. N. Y. C. & H. R. R. R. Co., 35 St. Rep., 748.

Upon the whole case we think the question of plaintiff’s contributory negligence was properly submitted to the jury. Both defendants claim to be relieved from any negligence which proximatély caused the injury. We think the case was properly submitted to the jury as to each defendant. .The claim of the Erie road is that negligence can only be predicated upon a failure to-let down the gates in time to prevent deceased from going upon the track; that they in fact let down the gates at the point where their duty required them, in the progress of the engine upon the track; and that it was the negligent running of the engine, or the, omission of signals, which in fact caused the injury. We do not. think this contention is sustained by the evidence. The gateman on the southerly side, as before observed, had his gates down before or at about the time when the gates on the northerly side began to lower; he states that in the proper management of the gates he began to lower when the gates at the Seneca street crossing, some 310 feet easterly of Smith street, were lowered, as they gave him notice that trains were about to pass over ; he also says that there was a better view from the northerly side. When the gates at Seneca street were lowered, the trains must be some distance east of that street, and thus the distance to Smith street, over which the trains traveled, was materially increased. It is at once apparent that if, in the present case, the gates had been lowered when the engine was east of Seneca street or when the gates on the southerly side were lowered, deceased could not have gone upon the track. Had that happenedno injury would have resulted,thus such act became the proximate cause of the accident. Whether the gates were lowered at the usual and ordinary place occupied by the approaching engine, and whether such distance was a proper distance to insure safety to the road and public, we think were questions of fact and properly submitted to the jury. As to the Pennsylvania road the proof is sufficient to warrant the-jury in finding that no signals were given as the engine approached the crossing. Greany v. Long Island R. R. Co., 101 N. Y., 419.

The proof is overwhelming that the engine was run at a high rate of speed, and in violation of the ordinance of the city. The evidence also tends to establish that the engine continued to use-steam up to the moment of striking the wagon; that had there-been a vigilant outlook by the persons in charge of the engine the-wagon could have been discovered in time to have stopped before-coming in collision with it. This evidence warranted the court in submitting to the jury the question of negligence as to this defendant, and is sufficient to support the verdict thereon. We reach the conclusion, therefore, that the evidence shows the injury to have been produced by the concurrent negligence of both defendants, and that the verdict was properly rendered against both. Chapman v. N. H. R. Co., 19 N. Y., 341; Barrett v. Third Avenue R. R. Co., 45 id., 628.

Examination has been had of the exceptions taken upon the trial and no error is found to the substantial prejudice of either defendant. We therefore arrive at the determination that the judgment and order appealed from should be affirmed as to both defendants, with costs.

Beckwith, Ch. J., concurs; Titus, J., did not sit


author: Pryor, J.

text:
    William H. Schmohl, Resp’t, v. Giuseppe Fusco, Impl’d, App’lt.

      (New York Common Pleas,

      General Term,

      Filed January 4, 1892.)

    1. Appeal—Dismissal—Joint debtors.
    Where, pending an appeal from an order refusing leave to serve a supplemental answer setting up the recovery of judgment against the defendant’s joint contractor, said judgment is vacated, the case stands as though no judgment had been rendered, and the appeal should be dismissed.

      2. Same—Discretionary order.
    Such order of the city court of New York, denying motion for leave to serve a supplementary answer because it was “not in furtherance of justice, but was an effort to defeat it,” is a discretionary one and not appeal-able to the common pleas.
    Appeal from order of the general term of the city court, dismissing appeal from an order at special term. Action against copartners on a firm liability. Defendant Fusco appeared and answered. Defendant Adam demurred to the complaint for insufficiency in substance, and the demurrer being overruled, judgment was entered against him. Thereupon defendant Fusco applied for leave to serve a supplemental answer pleading this judgment against his co-contractor in bar of the action against him. The motion was denied, and an appeal to the general term was dismissed. Before notice of that appeal the judgment against Adam was vacated.

      Louis 0. Van Boren, for app’lt; Bdward T. Bartlett, for resp’t

       Affirming 37 St. Rep., 687.

   Pryor, J.

For two separate and sufficient reasons the order ■on appeal must be affirmed.

I. On the vacatur of the judgment against Adam, the case stood as if such judgment had never been rendered; and the liability of Fusco continued with all original remedies for its enforcement Sinclair v. Hollister, 41 St. Rep., 349. Hence, the proposed supplemental answer would have offered no defense to the action in favor of Fusco, and its disallowance, therefore, is ah inevitable and unimpeachable conclusion.

II. Leave to serve the supplemental answer may have been denied in the exercise of judicial discretion, Fleischmann v. Bennett, 79 N. Y., 579; Wakefield v. The Company, 13 Daly, 349; and “ upon appeal from an order which may have been matter of discretion, the appellant must show that it was made upon a ground that did not authorize the court to exercise any discretion.” Cushman v. Brundrett, 50 N. Y., 296; McKenna v. Bolger, 94 id., 641; Mills v. Hildreth, 81 id., 91. Indeed, it appears by the opinion below that the application was refused expressly because it “ was not in furtherance of justice, but was an effort to defeat, it.” The adjudication in Sinclair v. Hollister, supra, decided by us at the November term, is conclusive against the appeal.

Order affirmed, with costs.

Daly, Oh. J., concurs.


author: Bookstaver, J.

text:
    Moses P. Crasto et al., Resp’ts, v. James Carlew, App’lt.

      (New York Common Pleas,

      General Term,

      Filed January 4, 1892.)

    Brokebs—Commissions—Chabg-e.
    In an action for broker’s commissions the employment and sale of the-property was admitted, the only issue being whether plaintiffs were the procuring cause of sale. The evidence tended to show that one of them had acted for the purchaser throughout the transaction and received half commissions from him. The court charged “that an agent cannot , act for both parties in the same transaction unless that fact were known to both,” and refused to charge that the plaintiff’s “solicitation to represent the seller is not prejudicial,” but left the question to the jury. Held, no error.
    Appeal from a judgment rendered in the district court of the city of New York for the ninth judicial district.

      Wayland F. Benjamin, for resp’ts; Beltz & Large, for app’lt.
   Bookstaver, J.

This action was brought to recover brokers’ commissions upon the sale of a house, and was tried before the justice and a jury. The employment of the plaintiffs and the sale in question were admitted by the answer, and the only question at issue upon the trial was whether or not the plaintiffs were the' procuring cause of sale. No exception to the admission or the exclusion of evidence was argued upon the appeal, nor was there any exception taken to the judge’s charge; and the sole question to be considered upon this appeal is whether or not the court erred in refusing to charge the following request: “ That Mr. Tracy’s solicitation to represent the seller is not prejudicial.”

The appellant contends that the justice was not warranted in charging as he did, “ that an agent cannot act for both parties in the same transaction unless that fact were known to both,” it being irrelevant to the issues to be determined by the jury, and that his-request to charge was designed to counteract the charge of the justice in that respect. But an inspection of the testimony shows that Mr. Tracy throughout the transaction had been acting for the purchaser and that he had paid him half commissions. It will therefore be. seen that the charge was entirely proper under the circumstances, and that the justice very properly refused to charge as requested, but left that question to the jury.

The judgment should therefore be affirmed, with costs.

Bisohoef, J., concurs.


author: Daly, Ch. J.

text:
    The Harlem River Bank, Resp’t, v. Carrie Meyer, Impl’d, App’lt.

      (New York Common Pleas,

      General Term,

      Filed January 4, 1892.)

    Married women—Accommodation endorsement for husband.
    An action cannot be maintained upon the accommodation endorsement by a married woman of her husband’s demand note by one who has received the same from the husband for his antecedent debt without giving up any security or any legal rights. In such case there is no extension of time.
    Appeal by defendant Carrie Meyer from the judgment of the general term of the city court affirming a judgment entered in favor of plaintiff. The action was upon a promissory note as follows, the maker and endorser being husband and wife:
    “ $1,250. “ Hew York, July 1, 1890.
    “ On demand I promise to pay to the order of myself twelve hundred and fifty dollars at Harlem Eiver Bank. Value received.
    “Albert A. Meyer.”
    The note was endorsed: “ Albert A. Meyer,
    “ Carrie Meyer,
    “ waiving demand and protest”

      M. H. Regenshurger and Stephen H. Olin, for app’lt; Donald McLean, for resp’t
   Daly, Ch. J.

The note which is sued upon was drawn by the husband of appellant to his own order, endorsed by him and after-wards by her without consideration, and was then delivered by him to the plaintiff, the Harlem Eiver Bank, to which he was then indebted in the sum of about $1,200. He says he gave it to the bank for that indebtedness; to cover the balance he owed the bank.

As Mrs. Meyer received no consideration for her endorsement, and as no agreement or arrangement between her and her husband respecting the use of the note was valid or enforceable, Laws of 1884, chap. 381; Hendricks v. Isaacs, 117 N. Y., 411; 27 St. Rep., 449, her contract as endorser must have its incipiency with some third person for a valuable consideration before it can be enforced against her. If the bank had discounted the note for her husband, and he had received the proceeds, she might have been liable as contracting directly with the bank, Bowery Nat. Bank v. Sniffen, 54 Hun, 394; 27 St. Rep., 10, and so if the bank, on the faith of her endorsement, had released the indebtedness of the husband, or agreed to receive the note in discharge of such indebtedness, or had parted with some value for it, she might have been liable; but merely receiving it for an antecedent debt, as in this case, without giving up any security, nor any legal rights, nor giving an extension of time, does not constitute the bank a holder for value. Fisher v. Sharpe, 5 Daly, 214, and cases cited ; Comstock v. Hier, 73 N. Y., 273. This note was payable on demand, so there is no presumption that in taking it for the antecedent debt the right to collect such debt was suspended for a single day; and there was no proof of an agreement on the part of the bank to release or discharge the debt, or that any security was parted with. As the endorsement of Mrs. Meyer was enforceable only by virtue of a contract with the bank, or with some person other than her husband, and no such contract is shown, nor any consideration for the transfer of the note, it follows that the action cannot be maintained. The cases in which accommodation •endorsers have been held liable to holders taking the paper for •antecedent debts proceed upon the enforcement of the agreement between the endorser and the maker for the use of the endorsement by the latter for his own benefit; but, as we have seen, no su’ch arrangement or agreement between husband and wife is valid and enforceable; the person receiving the wife’s note or endorsement for an antecedent debt of the husband being bound to show some original agreement between the wife and himself, or some •other third person, founded upon a valuable consideration.

Judgment reversed, and a new trial ordered, with costs to abide the event.

Bischoff, J., concurs.


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    William Bayrhoff, Resp’t, v. Adolph Rohde, App’lt.

      (New York Common Pleas,

      General Term,

      Filed January 4, 1892.)

    Mistake—Reformation of written instrument.
    Defendant purchased a drug store of plaintiff, for which he paid by giving forty-eight notes secured by a chattel mortgage. No provision for payment of interest was made therein. In an action to reform the notes and mortgage by inserting such provision plaintiff claimed that under the original agreement the notes were to bear interest. This was denied by defendant, although he admitted that he had a conversation with plaintiff in regard to interest, but claimed it was after the notes were given. It •appeared that plaintiff purchased a drug store at the same time for which he gave his note, with interest; that defendant continued to pay interest on the notes for two years, and ceased to do so when his business fell off, when he requested a waiver of present payment of interest, promising to pay it later, but subsequently claimed that he was not required to pay interest. Held, that these facts, with proof of circumstances attending the execution of the papers accounting for the omission of the words “with interest,” made out a case of mutual mistake arid justified a judgment reforming the notes and mortgage.
    Appeal from a judgment of the equity term of this court.

      John Fennell, for resp’t; Wm. D. Landray, for app’lt.
   Bookstaver, J.

This action was brought to reform a chattel mortgage and forty-eight promissorj'- notes secured by it, by adding the words, “with interest.” The sole question to be determined on this appeal is whether the original agreement between the parties was that the notes were to bear interest or not, and if "they were, was the provision for interest left out of the writings through mutual. mistake. There is no claim on the part of the •defendant that he was induced to give the notes through any fraud or misrepresentation. Indeed there could not well have been. The notes were given by him to the plaintiff on the sale by the latter to the former of a drug store at Mo. 177 Allen street, this city. The defendant was well acquainted with the drug business; he had been in this store for more than two and one-half months, first as clerk, and then as general manager for the plaintiff, before he purchased it. He paid absolutely nothing for the business except the notes in controversy, and they were to be paid out of the profits.

There is no conflict of evidence as to the terms of the sale or that notes were to be given in payment. The defendant admits that at the time he purchased he had no means to pay with; that he expected to pay out of what hé could make by continuing the business. It is also conceded that at the time of the sale plaintiff had purchased another drug store on Third avenue, for which he had paid $3,300 cash, and had given his note for $3,000 more which bore six per cent interest. The plaintiff testifies that he told defendant these facts, and that he was paying interest on his notes- and would expect the defendant to pay him interest on his, so that the interest he would receive would about cover the interest he had to pay. He also testifies that he told the defendant that if he could at any time give him cash it would save interest to both; according to this testimony, defendant fully understood he was to pay interest. Indeed, defendant does not deny that there was a. conversation about interest, and his version as to what was said does not materially differ from plaintiff’s, except that he claimed that this conversation did not take place until after the chattel mortgage and notes were executed and delivered; so the real conflict as to the interest is narrowed down to the time when it took place, whether before or after the notes were given. The testimony of defendant’s wife can scarcely be regarded as corroborating her husband. It is admitted all around she was not present when the bargain was made. Her testimony does not materially differ from either the plaintiff’s or her husband’s; only it is noticeable that, in several phrases, she repeats her husband’s expressions-with parrotlike precision. It is also noticeable that both testify that the defendant brought up the question of interest himself. Why should he have done this if there had been no agreement about it? It is also apparent from the testimony that plaintiff' treated defendant with much liberality in the transaction. The-price agreed upon was $2,500. The plaintiff had before the sale received from defendant about $100 as his profits in the business, while the latter was managing it for him; this he allowed on the purchase of the store and took forty-eight notes of even date for fifty dollars each, payable at- intervals of one month. Even on the first of these he took less than its face, being about thirty-seven dollars; the amount defendant then had on hand as plaintiff’s profits when the transaction was closed.

Thereafter the defendant, of his own accord, for the space of nearly two years, computed the interest on each noteas it fell due and sent principal and interest to plaintiff and received back the notes so paid. In June 1888, the sale having been made about August 1, 1886, the defendant’s business having fallen off, he asked the plaintiff as a favor to waive the immediate payment of the interest, promising to pay such interest when the principal sum had been paid. To this the latter assented. Under such circumstances notes Nos. 24 to 27 were paid, without interest, and an endorsement was put on each of these notes showing that the interest remained unpaid, and defendant accepted receipts showing that the principal of the notes had been paid but that the interest remained due, and these notes plaintiff kept with defendant’s consent, although all the preceding notes had been surrendered when principal and interest had been paid.

The first intimation defendant gave the plaintiff that he did not regard himself liable to pay interest was not until the 14th of November, 1888, nearly two years and a half after the transaction, and then it was not in a personal interview to talk over the matter, as would seem a natural way, but by the following rather extraordinary letter.

“ Esteemed Mr. Bayrhoff,
“ On your next visit to collect note due, have the goodness to bring with you that note, as well as the four notes-already paid, and deliver them to me. As I pay in full the sum for which the text and amount of the notes read, there lies in the receipts heretofore given to me by you with the words, “ Received on account” a contradiction. The note made out by me is the legal proof of my indebtedness, and as soon as I pay in full the sum mentioned in the text I am entitled also, according to the laws of this state, to unconditional possession thereof.
“ Respectfully,
“A. G. Rohde.”

Not a word is said in it about any misrepresentation, nothing about his paying interest for two whole years under a misunderstanding of the law or of the agreement between the parties, but he bases his refusal to pay interest solely on the ground that by the text of the notes he was not required to do so. The letter shows that he must have very fully and clearly understood his legal liability in the premises during all the two years he had been paying interest, or that he had received a sudden illumination from some outside source. If the former was the case, then the inference is irresistible that he paid interest because he' had agreed to; if the latter, then it strongly leads to the inference he must at the same time have learned of the necessity of fixing the conversation about interest at a time subsequent to the execution of the notes. Either supposition tends strongly to show the plaintiff has testified to the correct version of the transaction.

The circumstances under which the papers were drawn by the attorney, and the subsequent execution of them by the parties, sufficiently account for the omission to insert the words “ with interest ” at the time. W¿ are well aware that before a written contract can be amended or altered the proof of the mistake should be clear and convincing, for the written contract, executed by the one party and accepted by the other, affords strong evidence that it speaks the agreement and intention of the parties. But in this case the interpretation which the parties themselves gave to the contract and under which they acted for two years and more, the repeated promises of the defendant to pay interest in the end, and the other facts before pointed out, in our judgment, outweigh the inference from the written instruments and we are of the opinion that the learned judge who tried this case was fully justified in rendering the judgment he did, and that it should be affirmed, with costs.

Daly, Oh: J., concurs.


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    William A. May, Resp’t, v. John H. Meierdierck, App’lt.

      (New York Common Pleas,

      General Term,

      Filed January 4, 1892.)

    Appeal—Weight op evidence.
    In an action to recover for building an iron awning in front of a saloon, the evidence was conflicting and evenly balanced as far as credibility and interest of witnesses was concerned. It was claimed that the inducement for defendant to put up the awning was not sufficient to lead him to agree to do it, but plaintiff's testimony showed that there were others who were willing to do it to get the saloonkeeper’s trade, which defendant was desirous of keeping. Held, that on such evenly balanced testimony the judgment of the justice would not be disturbed.
    Appeal from a judgment rendered in the district court of the city of Mew York for the eleventh judicial district

      McMahon & Mabbett, for resp’t; Hudspeth & Golly er, for app’lt.
   Bookstaver, J.

This action was brought by the plaintiff to recover of the defendant the sum of $175, with interest, for work, labor and services rendered and materials furnished in constructing a corrugated iron awning to a building on the southeast corner of Fifty-seventh street and Eleventh avenue, in the city of Mew York. The plaintiff is a builder of awnings, the defendant is a brewer, and one William F. Maas was the owner of the saloon where the awning in question was erected.

The appellant does not contend that there was not evidence in this case sufficient to warrant the justice in finding a verdict for the plaintiff, but claims that the evidence offered on his part so greatly preponderated that this court on a review of the whole testimony should reverse the judgment

We have carefully examined the evidence and find it very conflicting and evenly balanced as far as credibility and the interest of the witnesses were concerned. It is strongly urged that the inducement for the defendant to' put up the awning was not sufficient to lead him to agree to do it; but on the other hand it is shown that there were other parties who were willing to do it provided Maas would have given them his trade, which the defendant was desirous of keeping.

Where there is a conflict of evidence, this court will not interfere with the finding of the justice below, unless the evidence be of such convincing character as to lead to the conclusion that the justice must have been influenced by prejudice, partiality or passion, or has manifestly neglected through mistake to deliberate upon the whole testimony. Dempsey v. Paige, 4 E. D. Smith, 218; Donohue v. Henry, id., 164.

We cannot say on such evenly balanced testimony that the justice erred, in the conclusion to which he arrived, or was influenced by prejudice, partiality or passion.

Therefore, in our opinion, the judgment should be affirmed, with costs.

Bischoff, J., concurs.


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    Augustin Walsh, App’lt, v. Michael Curley, Resp’t.

      (New York Common Pleas,

      General Term,

      Filed January 4, 1892.)

    1. Principal and agent—Relationship dabs not create that relation.
    A son, merely as such, has no authority to act as agent for and thus hind his father.
    2. Same.
    In an action to recover the proceeds'of'a carriage sold for plaintiff by defendant, the latter counterclaimed for repairs and storage. Plaintiff had not ordered the repairs, but defendant claimed that plaintiff’s son had done so, and that he supposed he had authority to do so. Held, that, as there was no proof of the son’s authority to act as agent for his father, it was error to allow anything for these repairs.
    Appeal from a judgment rendered in the district court of the city of New York for the seventh judicial district.

      Michael J. Scanlan, for app’lt; Goodhart & Phillips, for resp’t.
   Bookstaver, J.

In April, 1890, the plaintiff sent to defendant, who was a carriage builder in the city of New York, a phaeton to be sold, fixing the price which he was to "receive for the same at $125 net. About a month later, plaintiff sent defendant another wagon to be sold. ’It was admitted on the trial that" the phaeton had been sold for $125. The wagon was not sold, and was taken away by the. plaintiff because it had not been. Before the action was commenced a settlement was repeatedly asked for by the plaintiff, and the defendant finally rendered him a bill charging $119.70 for repairs to the two wagons and storage, showing a balance in plaintiff’s favor of $5.30 only.

If we admit all of the defendant’s evidence to be exactly as stated by him, we do not think he is entitled to his bill for repairs. He admits the plaintiff did not order the repairs personally, and that he had no conversation with him on the subject at any time; and it is apparent from the evidence that the repairs, if ordered by anyone, were ordered by the son of the plaintiff. There is no. proof that this son was authorized by his father to negotiate for repairs or to order them. The defendant himself testifies that he-could not say whether the plaintiff ever authorized his son to direct the repairs, and that he took it for granted that a man’s son had authority, or he would not have come: in other words, that, he made no inquiry as to the son’s authority. The son denies giving the order for the repairs. Under these circumstances we think there was a failure to establish an agency on the part' of the son to act for his father.

It has been repeatedly decided that mere relationship does not confer authority to act as agent. In Le Count v. Greenley, 6 St. Rep., 91, it was held that a father could not be presumed to have ■authority to act for a daughter. In Mich v. ¡Smith, 82 1ST. Y., 627, it was held that a son, merely as such, did not have authority to .act for his father. In Hutchinson v. BrooTc, 15 Daly, 486; 29 St. Rep., 317, it was held by this court that a husband who was acting as general agent for his wife in the management of the feed business could not bind her for the repairs to his stable.

It was, therefore, error for the justice to allow anything for these repairs, and for this reason the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event. On such new trial it may be more satisfactorily established that the defendant was entitled to storage for the wagon 'that was taken away so that he should be allowed it, and, on the other hand, it may appear that the defendant neglected his duty in regard to the sale of the second wagon, and would be entitled to no storage.

Bischoff, J., concurs.


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    Lloyd S. Bryce, Resp’t, v. Charles S. Clark, App’lt.

      (New York Common Pleas,

      General Term,

      Filed January 4, 1892.)

    Principal and agent—Ratification.
    Plaintiff published advertisements of defendant in pursuance of a contract made with an agent whose authority was denied. A statement of his claim was sent to defendant, who did not take any action thereon until after two more advertisements were published. Held, that it was his duty under these circumstances to immediately notify plaintiff to discontinue the advertisement, and that he was properly held liable for the last two publications.
    Appeal from a judgment rendered in the district court of the city of New York for the sixth judicial district

      Alexander & Ash, for resp’t; M. F. McGoldrich, for app’lt.
   Per Curiam.

This action was brought ■ to recover for advertising done fo.r the Harvard Publishing Co. upon an order signed si Harvard Publishing Co., W. Campbell Phelan, Manager.”

It is always the duty of the plaintiff claiming to have a contract with the defendant made through an agent to inform himself whether the agent had the power to make the contract relied upon. In this case the testimony left that question in doubt, so that it was within the province of the court to determine whether there was such an agency or not. We do-not think the evidence warrants us in disturbing its conclusion.

But it further appears that the defendant and his manager received a statement of plaintiff’s claim, which indicated that he thought a contract had been made with defendant. Under such circumstances, it was his duty to immediately notify the plaintiff to discontinue the advertisement. Instead of this, it was allowed to appear in two subsequent numbers of the plaintiff’s periodical, and the justice very properly rendered judgment for those two insertions, and the judgment will, therefore, be affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.