author: Yeoman, J.

text:
    Matilda Schneider, Pl’ff, v. The City of Rochester, Def’t.

      (Supreme Court, Monroe Special Term,

      Filed May, 1894.)

    Condemnation pkoceedings—Compensation.
    Section 7, art. 1 of the state Constitution means that but one jury or one commission, conducted so as that it reaches its results by proper methods, is to fix the rights of the parties in regard to the compensation for land taken for a public use.
    Motion for injunction.

      Elbridge L. Adams and Waldo G. Morse, for pl’ff; C. D. Kiehel, for def’t.
   Yeoman, J.

The defendant instituted proceedings under its charter to condemn a piece of land for street purposes. Commissioners were appointed to assess the damages, which they assessed at $40,000. The report of the commissioners was presented to the common council, and the committee appointed a time for hearing objections to its confirmation. At the time appointed no one made objection ; but a motion was made by a member of the common council that the report be set aside, and the city attorney be instructed to procure the appointment of another commission. At that'time this plaintiff, by her counsel, demanded that the common council either confirm the report or abandon the proceedings. The motion, however, was carried, and the city attorney is proceeding to procure the appointment of a new commission in that proceeding. The injunction is asked to restrain the city and its attorney from so doing.

The plaintiff takes the position that such proceeding is unauthorized. The city justifies its course under § 179 of its charter, Laws 1880, chap. 14, which provides: “Upon the filing of such report" the said common council shall assign a time for hearing objections to the confirmation thereof, and at the time assigned shall hear the allegations of all persons interested, and may take proof in relation thereto from time to time, and shall confirm the said report, or may set the same aside and refer the matter to the same or to new commissioners to be appointed by the said. court as before, who shall thereupon proceed as hereinbefore provided. But the common council may set aside said report and abandon said improvement at any time before the final confirmation of the assessment roll hereafter mentioned.”

The plaintiff does not question the right of the city to take the land by condemnation proceedings, but claims (1) that this section, properly construed, does not give the common council of the city power to set aside a report solely upon the ground that the amount of damages is greater than it wishes to pay for the land, and then procure the appointment of another commission in the same proceedings to again assess the damages; and (2) that if this section does mean that the common council has such power, then that the section is unconstitutional and void. The plaintiff contends that this section gives power to the common council to set aside the report and have a new commission appointed only , when the owner objects to the report. Its terms seem hardly to bear such a construction, and it would be without real purpose if they did, for, surely, if the owner desires the report vacated and the common council acquiesce, the statute would not be needed to permit them to carry out the desire of both.

The court should not hastily or without careful deliberation declare a statute unconstitutional. “A law which has received the sanction of the legislature and the approval of the executive should only be held void as repugnant to the constitution when the repugnancy is clearly demonstrated. There should be no reasonable doubt of the unconstitutionality of a statute before it should be annulled by judicial action.” People ex rel. Bolton v. Albertson, 55 N. Y. 54. Neither should a court shrink from the grave responsibility of declaring a statute unconstitutional when it has reached that conclusion, for upon its faithfulness depends the protection of person and property. The constitution of the state provides (Art. 1, § 6): “No person shall be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation.” And also (Art. 1, § 7): “ When private property shall be taken for an public use, the compensation to be made therefor, when such compensation is not made by the state, shall be ascertained by a jury or by not léss than three commissioners appointed by a court of record, as shall be prescribed by law.”

The plaintiff urges that under this provision of the chapter the city cannot take this property without “just compensation,” and that it is now attempting to do so. It is, perhaps, fair to presume that no matter how many successive commissions the city may procure the appointment of to fix the value of this property which it desires to take by force from the plaintiff, it will not be able to get the property without paying a substantial sum for it. - The fact that it will pay something for the property does not, however, give it a right to take it; to acquire that right it must make just compensation. It is obvious that just compensation would be in this case the value of the land taken. How is the value to be ascertained? It cannot be reach with absolute certainty. It is a matter of judgment, and men will differ greatly in their judgment concerning it. Therefore, the only means of reaching a just valuation is to provide some just means ■of fixing this valuation. This the constitution has sought to do. It says that the compensation shall be ascertained by a jury or by not less than three commissioners. This does hot declare in terms that a party may not have, at his election, three commissioners appointed as many times in succession as he may choose, in order that he may finally find a commission that will fix upon an amount with which he is satisfied. If the language of the constitution were of doubtful construction, could any one suppose that ■the men who framed it thought any such result possible ? Such a one-sided proceeding, in determining the right of parties, shocks the sense of justice.

There is not a small boy on the street that would not protest •against and defend himself against the application of any such principle of inequity when applied where his rights came in question. The language of the Constitution is, however, plain. It means that one' jury or one commission, conducted so that it reaches its results by proper methods, is to fix the rights of the parties in this regard. I am not aware that this question has heretofore been before the courts of this state. It has, however, been discussed in Rogers v. City of St. Charles, 3 Mo. App. 41, in which the court says: “We cannot perceive what possible advantage can arise from the constitutional declaration that private property shall not be taken for public use without just compensation, if the state or any of its deputies, exercising the right of eminent domain, may cause as many inquests as it pleases of the value of the property to be condemned, and set aside as many of them as it sees fit, until one is found sufficiently small to suit its notions of ■a just compensation, and then to declare it to be so. Of course this permits one of the parties to a controversy to determine a judicial question in his own favor, and compel the other party to submit to the decision. We cannot conceive of a grosser solecism, nor of one more at war with the institutions and laws of Missouri. * * * To allow the state or any deputy.of the-state to pronounce a particular piece of property necessary or unnecessary according to the terms on which it may be possible to acquire it; to enable the state or any corporation to be the sole judge of the due correspondence between the property and its variously estimated value; to cause a thousand estimates to be made and to have the unrestricted right of rejecting, Mies quo ties, every estimate which did not suit its views, would be thought an extravagant idea of arbitrary power if it were imagined in a satire."

The motion should be granted, with $10 costs.


source: Caselaw Access Project

author: Barrett, J.

license: Public Domain

text:
    The People, Pl’ff, v. Erastus Wiman, Def't.

      (Supreme Court, Chambers, Kings County,

      Filed July, 1894.)

    1. Forgery—Check—Indorsement. "
    Upon the trial of an indictment for forging the name of the indorser -to a check made payable to his order, criminal intent in making the indorsement is a relevant issue, properly determinable only by the jury.
    2. Same—Certificate of reasonable doubt.
    Where, in such case, the jury may have been confused with regard to the question of criminal intent, it presents a reasonable doubt sufficient to warrant the granting of such certificate.
    Application for a certificate of reasonable doubt.

      B. F. Tracy, for def’t; J. D. Lindsay, for People.
   Barrett, J.

The defendant was indicted for forging the name of one Bullinger as the indorser of a check for $5,000, made by B. Gr. Dun & Co., and payable to his, Bullinger’s order.

The question submitted to the jury was whether the defendant indorsed the name of Bullinger upon this check with intent to defraud Dun or his partners. All questions as to whether the indorsement was made with intent to defraud Bullinger, or to deiraud Wiman’s own bank, were substantially excluded from the consideration of the jury. This becomes apparent when wo consider that the court charged the following propositions:

First “That the deposit of the check by the defendant in the Central National Bank was not an uttering of the check with intent to defraud Bullinger, provided that the jury find' that defendant had reason to believe, and honestly did believe, that Bullinger could not be subjected to any pecuniary loss or injury by the use of his name.”

Second. “ If the jury find that at the time Wiman deposited the check with the Central National Bank he had reason to believe, and did believe, that it would be paid by the Chemical Bank, as it was, in fact, paid by such bank, the act of depositing the check in the Central National Bank did not constitute an uttering of a forged check with intent to defraud the Central National Bank within the meaning of § 521 of the Penal Code.”

The premise of fact in each of these propositions was undisputed. That is, the defendant had good reason to believe, and undoubtedly did believe, that the check would be paid by the Chemical Bank in. due course. There was no question whatever in his mind, or as matter of fact, with regard to the solvency of E. G. Dun & Co., or with regard to the satisfactory balance to their credit in the Chemical Bank. For the same reason, the defendant was also justified in the belief that Bullinger could not be subjected to pecuniary loss, and that the Central National Bank would not have to look to him as indorser upon the check.

Thus the case was put to the jury upon the single question ■which pervaded the trial—namely, the intent to defraud E. G. Dun & Co. Unless, therefore, the unauthorized indorsement of the check was made with intent to defraud E. G. Dun & Co., the defendant, as indeed the court repeatedly charged, was entitled to an acquittal: It was essential to show, not only that the drawing of the check was with intent to defraud the firm, but that the act of indorsing BuIIinger’s name thereon was with that intent. The defendant was, in fact authorized to draw firm checks, and an abuse of that authority—even if otherwise criminal—could not constitute forgery. It might well be a fraud upon the firm, but such fraud would not, of itself, create the crime of forgery. To constitute forgery the fraud must be applicable, not solely to the drawing of the check, but to the unauthorized indorsement. The criminal intent must have relation to the latter, not merely to the ■former. For example, if, after making the check with fraudulent purpose or thereby effecting a misappropriation of Dun & Co.’s moneys, the defendant had secured what he had a right to believe was BuIIinger’s authority to indorse it, it would not have been forgesy, although such authority was not in fact given. As, for instance, if the defendant had sent a confidential agent to request such authority, and such agent had falsely reported that it had been obtained. There, if the facts justified an honest belief that the authority had been given, it would not be forgery, though such authority were really wanting. Why ? Because of the absence of criminal intent with regard to the signature. Under such circumstances the criminal intent to misappropriate Dun & Co.’s moneys would, not suffice to constitute forgery of the indorsement.

It would seem to follow that the intent with which the indorsement was made was a relevant issue, and that the defendant could only be convicted in case the jury were satisfied of the defendant's criminal intent in that regard. There were thus two issues. First, was the writing of Bullinger’s name upon the back of the check (though unauthorized by Bullinger), under all the circumstances, criminal ? Second, was such writing, if criminal, made with intent to defraud E. Gf. Dun & Co. ?

The court recognized the relevancy and importance of this first issue. This proposition was distinctly charged: “If the jury shall find that Wiman believed that, under the rules of law applicable to commercial paper, he had legal authority to use the name of a person as payee to whom it was not intended that the check should be paid, and to indorse such name on the back of the check, such indorsement is not forgery.”

This proposition was .charged after the case had been summed up and after the learned judge had concluded his colloquial charge. Yet the learned judge declined to permit the defendant’s counsel, in his summing mp, to discuss the facts and circumstances upon which the proposition was predicated.

At this point in his argument counsel was interrupted by the court, whereupon he stated that the argument with regard to which the interruption occurred was for the purpose of leading up to a proposition, which he called his second proposition, and which he intended to ask the court to charge. He then specified this second proposition, which was in these words: “ I shall ask your Honor to charge the jury that if the defendant believed that, under the rules of commercial law, he had legal authority to make this check and indorse it as he did, the crime is not forgery.”

The court then observed: '■'•That I shall refuse.” And counsel excepted.

The learned counsel then proceeded as follows: “ Then, gentlemen, if his Honor goes to that length, it does render this discussion on my part unnecessary, because I was laying down what I believed to be the general rule of commercial law, which was understood to prevail in all commercial circles, for the purpose of establishing the second proposition; that, whether Mr. Wiman was right or Wrong in that as a legal proposition, still if he believed he was right, and made his indorsement in the belief of his legal authority so to do, then there was no criminal intent, and he could not be convicted of forgery. Now, I understand his Honor to say that he will not charge this proposition, and, therefore, I pass to the next proposition.”

It is apparent that the learned judge ultimately receded from the position thus taken. This, however, was but a moment before the retirement of the jury, and was not accompanied by a distinct withdrawal of the ruling made during the summing up, nor by a suggestion that the case might be reopened and counsel permitted to resume his address at the point where he was checked.

The propositions differed slightly in form, but not at all in substance. There was no doubt, upon the evidence, that the defendant never intended to deliver or pay the check to Bullinger. What he intended was, by the use of such a check, to conceal, temporarily, from his partners the fact of his overdraft.

In the one proposition the words used were: “Legal authority to indorse it as he did.” But what is that save legal authority to indorse the name of a person to whom it was -not intended that .the check should he paid, as expressed in the other proposition ? There was no authority, as matter of fact, to sign Bullinger’s name. Whether there was a criminal intent in so signing depended upon the belief embraced within each of the two propositions. If the learned judge was right in his latest expression of opinion, then there would seem to be at least a reasonable doubt as to the correctness of the position taken upon the summing up. If, however, he was right in his original position, then there would seem to be an equally reasonable doubt as to whether the jury may not have been confused by the subsequent charge and left in uncertainty as to the rule which should guide them in the consideration of this branch of the case.

This doubt is accentuated by the fact that, notwithstanding the final charge as to the effect of Wiman’s belief, etc., the learned judge explicitly withdrew the question of criminal intent from the jury.

This latter ruling is also the subject of an independent assignment of error.

The record shows that the ruling on this head was advisedly made.

After the incident already referred to, counsel for the defendant proceeded as follows: “ If I am to argue this question on the assumption that he (Wiman) had no legal right to do that (that is, to indorse the check as he did), that no belief on his part that he had a legal right to do it protects him, then there rémains for me only one or two other questions—that of criminal intent and of an intent to defraud. May I ask your Honor, at this stage, how you will charge on the subject of criminal intent? ”

To this inquiry the court responded as follows: “Intent to defraud, the statute says. I shall charge that the jury must find that there was intent to defraud—nothing about criminal intent. Intent to defraud, to take some property that did not belong to him.”

This was subsequently emphasized when counsel for the defendant requested the court to charge, in terms, that “unless the jury find that the acts charged were committed with criminal intent, the defendant is entitled to an acquittal."

To this request the court responded in these words : “ I charge you, unless the act was committed with intent to defraud, as 1 explained it to you, the defendant is entitled to an acquittal. I refuse to charge as requested."

This refusal is complained of in a double aspect. In the first place, it entirely withdrew from the consideration of the jury the question as to whether the signature of Bullinger was written with a criminal intent. Thus it was consistent with the ruling which was made during the summing up, and it was seemingly inconsistent with the subsequent charge as to the effect of Wiman’s belief. For what he believed was material only upon the question of criminal intent. If that belief bore legitimately upon his guilt or innocence, it was because it bore upon his intent. When, therefore, the court refused to charge that the defendant was entitled to an acquittal unless his acts were committed with criminal intent, it attributed criminality as matter of law to the unauthorized act of signing Bullingers name.

It was equivalent to saying that, so far as the signature was concerned, the jury could consider nothing save the fact that it was made by Wiman without Bullinger’s authority. But it will scarcely be denied that the jury should also have considered the surrounding circumstances. Indeed, áccording to the view of the learned judge at the close of the case, they should also have considered Wiman’s belief as to his right to use the name of the payee at the time, under the circumstances and in the manner he did. Wiman testified that when he indorsed Bullinger’s name on the back of the check he had no intention of defrauding anybody ; that he had no intention of defrauding Dun & Go., at that lime by that act; that he used Bullinger’s name as payee of the checlc so as not to appear to draw directly in his own name, and because he did not want to make his account in the office appear large.

Ho matter what we may think of this testimony, no matter-how clear the criminal intent may appear from all the facts — nay, from even undisputed facts — still the question was for the jury.

In the second place, the question of criminal intent was treated as something above and beyond the statutory intent to defraud, which additional something was not essential to the finding of guilt.

In this connection it will be observed that while refusing to charge as requested with regard to criminal intent, the learned judge did charge that unless the act was committed with intent to defraud as already explained to the jury, the defendant was entitled to an acquittal. The difficulty here was twofold. First. The intent to defraud which had previously been explained to the jury had no relation to the mere act of signing; that is, to the independent intent with which Wiman used the name of the payee. The explanation related solely to the fraud committed upon Dun & Go. by the transfer of moneys from their bank to that of the defendant. Second. Even with regard to the latter fact, it distinguished between an intent to defraud and a criminal intent.

The learned judge did not refuse to charge as requested, because the intent to defraud, under Lhis definition, amounted to criminal intent. That they were not understood to be synonymous was plainly indicated. He charged the necessity of finding an intent to defraud, and in the same connection explicitly refused to charge the necessity of finding a criminal intent. This was evidently because he deemed the latter unnecessary and the former alone crucial. For, as we have seen, he had previously made the same distinction in his observations to counsel: ulntent to defraud, the statate says nothing about criminal intent."

It may be said that the statutory “intent to defraud” is the criminal intent requisite to sustain a conviction. If this be so, it should have been applied to the act of signing as well as to the object to be attained. And the jury should have been informed that the proposition as to criminal intent was covered by the charge as to the intent to defraud, and was, therefore, refused only because it was repetitious. In place of this the jury was led to believe that the intent to defraud, as explained to them, was the only question for their determination; that that intent was something different from the criminal intent which the counsel for the defendant had embraced within his proposition, and that such criminal intent was not a prerequisite to guilt.

Again I feel constrained to say that at all events there seems to be at least a reasonable doubt as to whether the jury may not have been confused with regard to the question of criminal intent, and may not have been left in uncertainty upon that head.

I need scarcely add that it is extremely well settled in this state, that criminal intent is essential to a finding of guilt, and that however clear and convincing the testimony may be on that head, it is still a question for the jury. The People v. Flack, 125 N. Y. 324; 34 St. Rep. 722; The People v. Powell, 63 N. Y. 88; Stokes v. The People, 53 N. Y. 164; Duffy v. The People, 26 N. Y. 593.

In The People v. Flack, supra, the court of appeals held, reversing a judgment of my own, that however clear the proof, and however incontrovertible the inference of a criminal intention, the question may never be ruled as one of law, but should always be submitted to the jury. This too was a case of misdemeanor, while the present case is one of felony. It was also held that the presumption that a person intends the ordinary consequences of his acts is, as applied to criminal cases, not a presumption of law, but merely a rule to aid the jury in reaching a conclusion upon a question of fact, citing Filkins v. The People, 69 N. Y. 101.

In other words, the criminal intent is an essential ingredient in the indictment, is traversable, and the defendant may testify as to his intent. Thus criminal intent is always a question of fact to be submitted to the jury.

There are other assignments of error which present interesting, if not serious, questions. It will not, however, be necessary to consider them, as upon the two points which have been discussed I deem it my duty to grant a certificate of reasonable doubt.


author: Ingraham, J.

text:
    The People ex rel. The Commercial Mutual Insurance Company, App’lt, v. Michael Coleman et al., as Commissioners, etc., Resp’ts.

      (Supreme Court, New York Special Term,

      Filed June, 1894.)

    Certiorari—Assessment.
    When a certiorari is taken under chap. 269 of 1880 to review an assessment made for the purposes of taxation, the objection that the whole assessment is invalid, because the property of the corporation is not taxable, cannot be raised where the petition does not specify anything except over valuation.
    The allegation in the petition upon which the writ of certiorari was granted, and upon which the relator relied, was: “ That, prior to the first day of May, 1886, the said corporation petitioner duly protested, claimed, insisted and demanded from said commissioners of taxes and assessments that all the personal property and bank shares of the said corporation was, on the second Monday of January, 1886, by the laws of the state of Hew York, exempted, and now is exempt, from assessment or taxation.”
    Further on, however, in the petition appeared the following allegation : “ And your petitioner shows that the said assessment is upon the said valuation of personal property and bank shares, for the purpose of taxation, and said assessment is illegal, invalid and void and erroneous, .and that your petitioner will be injured by such illegal and erroneous assessment, and your petitioner specifies the following grounds of illegality and error.”
    Under this, nothing was specified except over-valuation.
    The motion to quash was based upon the ground that there was no specification in the petition which would enable the relator to benefit by chapter 269 of the Laws of 1880.

      Brownell & Lathrop (Esek Cowen and Silas B. Brownell, of counsel), for relator; William H. Clarke, counsel to the Corporation (James M. Ward, of counsel), for resp’ts.
   Ingraham, J.

The only authority the court has to review this assessment in this proceeding is that contained in chapter 269, Laws of 1880, and any judgment of the court in this proceeding must be as provided for in this act.

The first section of this act provides for the issuing of a writ of certiorari, and it is to be allowed by the supreme court, on a petition duly verified by the person or corporation assessed and claiming to be aggrieved; when the petitioner shall set forth that the assessment is illegal, specifying the ground of the alleged illegality, or is erroneous by reason of over-valuation, or is unequal, in that the assessment has been at a higher proportionate valuation than -other real or personal property, etc.

This section provides for what the petition shall contain ; bu| it specifies three grounds upon which the court is authorized to grant the writ; it must appear by the petition either that the -assessment is illegal, specifying the grounds of the illegality, or erroneous by reason of over-valuation, or is unequal in that the assessment has been at a higher proportionate valuation, etc.

How, this writ was granted upon such a petition. 'That petition alleged the proceeding of the tax commissioners; it alleged the proceedings of the relators before the tax commissioners. But all of that had nothing to do with the requirement of th,e petition as to obtaining a writ. Having alleged those two things—the action of the commissioners and their own action—it then goes on to make the allegation that this section requires, that the assessment upon the alleged valuation of personal property is illegal, invalid and void and erroneous, and it then specified the ground of the illegality and error.

Now, it seems to me that the allegation must be held to be an attempt of the pleader to comply with this section of the statute, as this section says the petition must state the .grounds of the illegality or error, by reason of over-valuation, or inequality by reason of a higher proportionate valuation.

On that a return is made, and under the statute it is upon the writ and the return that presents the question to be determined. The question is whether or not on the writ and the return, and on further evidence where there is a disputed fact, the court can say that any of the reasons alleged in the petition for the granting of the writ are well founded. For when it comes to say what the court shall do the act says that, if it shall appear by the return to said writ that the assessment complained of is illegal, erroneous or unequal for any of the reasons alleged in the petition, the court shall have the power, etc. It is only when it appears that for one of the reasons alleged in the petition the assessment is either erroneous, illegal or unequal that the court has the power to act.

Now, the recitation in the petition that the petitioner made certain claims to the tax commissioners does not comply at all with the requirements of the statute.

Suppose there were no grounds stated in the petition at all, and the petition simply stated that they appeared before the tax commissioners and claimed that those taxes were illegal, because the commissioners had no power to make the assessments, and therefore asked for the writ, it is very clear the court had no power to grant the writ on that statement. When it goes further and states the ground on which they rely in the application, it seems to me the clear and plain intent of the statute was that the power of the court to order the said assessment to be stricken out or corrected dependedenti rely upon it appearing that the grounds stated in the-petition were well founded.

You say that is a conclusion of law. That is so in a pleading, but in these petitions it is different.

The object is to compel the man who presents these petitions to state a conclusion of law, the reason why the assessment is illegal. It does not say the facts showing the illegality are to be pleaded, but it says the reason, the ground of the illegality. He-is not to state the facts showing' the ground, but he is to state the ground itself, and that necessarily includes a statement of a conclusion or reason.

This is a statutory proceeding, provided for by the statute; the court has the power given it in this proceeding by statute, and it seems to me it should be confined strictly to the statutory power that is given.

The case of the People v. Equitable Gaslight Co., 6 N. Y. Cr. 189, does not, it seems to me, raise this question at all. There the petitioner alleged that there was an overvaluation, a valuation based upon a wrong principle, that the court remedied. ^ Here, you claim, there is no power to tax at all. On this petition the the court has no power to adj udicate on that question; all it can adjudicate is whether there was an over valuation.

So I think this motion to quash the writ should be granted.

There is no request to take testimony as to these other specifications, as I understand?

Mr. Oowen—We are ready to give testimony upon those points; but your Honor having decided the petition is defective—

The Court—I do not decide the petition is defective. I say the petition is perfectly good on those other points.

Mr. Co wen—W e don’t present anything on those points.

The Court—You simply raise here the right of the court, under these allegations in the petition, to determine that the whole assessment was invalid, because the property of the corporation was not taxable.

Mr. Cowen—That is it.

The Court—I hold that you cannot raise that question upon this petition.


author: Stover, J.

text:
    Henry P. Talmadge et al., as Trustees, etc., Pl’ffs, v. George W. Seaman et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed June, 1894.)

    Tax—Transfer—Application.
    Subdivision 3, § 1 of the Transfer Act of 1892, relates to the convey anee alone, and is intended to cover a case where the conveyance may have been made prior to the act, and yet the beneficial interest, whether in possession or expectancy, should attach after the passage of the act.

      Lord, Day & Lord (Lucius H. Beers, of counsel), for pl’ffs; Edgar J. Levey, for def’t Ashbel P Fitch, comptroller.
   Stover, J.

The only issue of the trial of this action was as to the liability of the estate, included in the residuary trusts created by the will of John B. Seaman, for the transfer tax, under chapter 399 of the Laws of 1892.

The provisions of the will creating the residuary trust in question, are as follows:

“ 6. All the rest, residue and remainder of my estate, real and personal, I give, devise and bequeath to my executors hereinafter named in trust to apply and pay over the income of one equal undivided half part thereof to my said adopted daughter and niece, Elizabeth Seaman, during her natural life; and upon her decease, I give, devise and bequeath said equal undivided one-half part of my estate so held in trust for my said adopted daughter and niece to the children of my nephew, George A. Seaman, living at the time of her death, share and share alike.
“ 7. I direct and order my said executors, hereinafter named, to apply and pay over the income of the other equal undivided half part of my estate so held in trust by them to my said adopted son and nephew, George A. Seaman, during his natural life; iipon his decease, I give, devise and bequeath the said equal undivided half of my estate so held in trust for my said adopted son and nephew, George A. Seaman, living at the time of his death, share and share alike.”

The will was made on January 26th, 1876; the testator died October 12th, 1876, and the will was admitted to probate on the twenty-ninth day of December, 1876. At the time of the making of the will, and at the time of the death of the testator, Elizabeth Seaman and George A. Seaman, who had a life interest, were both living. The four children of George A. Seaman, who are defendants in this action, and who weie entitled to the property upon the determination of the life interest, were also living at the time of the making of the will, and at the time of the death of the testator. The two persons having the life interest died in January, 1893. This action is brought by the trustees under the will for an accounting, and appointment of new trustees for the residuary estate, and the comptroller of the city of New York is made a party for the purpose of having a determination as to the liability of the trustees for the transfer tax. If the transfer would have been taxable under the law of 1892, if it bad been in force at the time the will took effect, then it is not taxable now.

Chapter 399 of the Laws of 1892 provides : “ A tax shall be and is hereby imposed upon the transfer of any property, real or personal, of the value of $500 or over, or of any interest therein, or income therefrom, in trust or otherwise, to persons or corporations not exempt by law from taxation on real or personal property, in the following cases.” Then follow the provisions of the statute taxing transfers by will and those made in contemplation of death, except “ when the property or any beneficial interest therein passes by any such transfer, to or for the use of any father, mother, husband, wife, child, brother, sister, wife or widow of a son or the husband of a daughter, or any child or children adopted as such in conformity with the laws of this state, etc.”

By subdivision 3 of § 1 such tax also is imposed; “ When any " such person or corporation becomes beneficially entitled, in possession or expectancy, to any property, or the income thereof by any such transfer, whether made before or after the passage of this act.” This latter clause, I think, relates to the conveyance alone, and is meant to cover a case where the conveyance may have been made prior to the act, and yet the beneficial interest, whether in possession or expectancy, should attach after the passage of the act of 1892. In other words, where, by the terms of the instrument itself, no taxable estate, either in possession or expectancy, attached until after the passage of the act of 1892, and not to a ■ case where the transfer was made prior to the passage of the act, although the happening of the event or the contingency upon which the estate actually vested in possession took place after the passage of the act of 1892. This may be illustrated by the Curtis Case. ■ »

In the Matter of Curtis, 58 St. Rep. 348, decided by the court of appeals in April, 1894, it was impossible to assess the tax upon the property, because a portion of the property was not subject to the tax, inasmuch as it went primarily to the children of the testatrix, viz., the daughters; and, of course, that portion of the estate was not subject to the tax; therefore, it could not be determined what interest was to be assessed. But, in the case under discussion, there is no question that the will transferred the estate to a class of persons not within the exception of the statute, and hence, for the purposes of taxation, it is quite immaterial who the persons are that took the beneficial interest, so long as that interest is vested absolutely and without contingency in a class of persons who are not within the exemption of the statute. The transfer is to collateral relatives; who they may be, for the purposes of taxation under the statute, is immaterial. The trustee holds for the class, or for whoever may be eventually entitled to it, and is personally liable, under the statute, for the tax.

The plaintiff is entitled to an adjudication that the estate is not liable to taxation.


author: McAdam, J.

text:
    James McIntyre, Pl’ff, v. Helen McIntyre, Def’t. Helen Stowell, Pl’ff, v. John M. Stowell, Def’t.

      (New York Superior Court, Special Term,

      Filed June 1, 1894.)

    Divorce—Decree—Fraud and collusion—Duty of court.
    Where a clear case of fraud and collusion in procuring a decree of divorce is presented, it is the duty of the court to set aside such decree, together with all other proceedings had in the action, leaving the guilty parties to take whatever consequences flow from their wrong.
    Application affecting both actions.

      H. W. Leonard and T. A. Atchison, for pl’ff in first-entitled suit; Harriman & Fessenden, for John M. Stowell in both suits; Howe & Hummel, for Helen Stowell in the suit last-above entitled.
   McAdam, J.

On December 28,1892, Helen Stowell filed a bill in this court against John M. Stowell for absolute divorce, on the ground of adultery, committed by the defendant with a woman named Ida Levy, at 106 Eighth avenue, in the city of Hew York, a house in which the said Helen and John M. Stowell resided at the time.

It appears by the complaint that the Stowells were married May 28, 1874, at St. Joseph, Michigan; that for more than five years prior to the filing of the bill they were residents of the state of Hew York; that the issue of the marriage was one daughter, Ada J. Stowell, then aged seventeen years. The complaint charges that the adulteries were committed between April and September, 1892 ; that they were committed without the consent, connivance, privity or procurement of plaintiff, and that she had not cohabited with the defendant since she discovered them.

Ho answer was interposed, and on March 10, 1893, a decree was made in favor of Helen Stowell against her husband, dissolving the marriage.

IJpon the trial of that case Ada J. Stowell, the daughter, was the principal witness. She testified that on September 30, 1892, she went upstairs from the kitchen and saw her father and Ida Levy on the bed together; that her father had his clothing off and that Mrs. Levy had her clothes loosened; that this occurred at about a quarter to nine or nine o’clock in the evening, and that she informed her mother of it subsequently.

About ten days after the entry of this decree the said Helen Stowell married James McIntyre, the plaintiff in the action first-above entitled. McIntyre filed his bill for divorce May 7, 1894, alleging that since March, 1894, Helen McIntyre (formerly Stowell) was living in open adultery with John M. Stowell, her former husband, at No. 1038 Park avenue, in the city of Hobo-ken, New Jersey. No defense was interposed, and the action came on for trial June 13, 1894.

It was proved on the trial of that action that Mrs. McIntyre was residing with her daughter at No. 1038 Park avenue, Hoboken, New Jersey; that the former husband frequently visited the house, having a night-key thereto, and that on one or more occasions he remained in the house all night; that Mrs. McIntyre and Stowell were arrested at Hoboken under a warrant issued by George F. Seymour, a justice of that city, charging them with living in open adultery, in violation of the laws of New Jersey. No examination has yet been held in that criminal proceeding, which is still pending.

Immediately after the testimony was taken in McIntyre v. McIntyre, Mr. Stowell, the co-respondent, applied to the court for leave to intervene, upon the ground that he was innocent of the charges made against him by McIntyre, and that McIntyre’s application was collusive. Before determining this application the court concluded to inquire into the merits, and for that purpose several witnesses were examined. Mr. Stowell testified that the charges made by McIntyre against him were false and untrue; that, although he had a night-key to the house in which Mrs. McIntyre resided at Hoboken, he obtained it from his daughter for the purpose of visiting her; and that since the divorce obtained by the wife from him he had never had connection with her. He also testified that he never had connection with Ida Levy, the person named as co-respondent in the suit brought by his wife against him; that he was asleep in his bed; that he was awakened, and when he looked around he discovered his wife and Mrs. Levy in his room; that the wife made no outcry, used no terms of censure, found no fault with Mrs. Levy’s presence beyond saying that she went a little too far, or something of that sort. He further testified that some conversation was had between him and his wife about a divorce; that he told her that if she thought more of McIntyre than she did of him, and could put herself in a position to be his (McIntyre’s) wife, without injuring her daughter, she might do so as soon as she pleased; that he had already made up his mind that he would never live with her again, and that if she could put herself in a position to become McIntyre’s wife legally he (Stowell) would not interpose any objection.

It also appeared that Stowell had paid his wife no alimony and no counsel fee; that McIntyre had paid the expenses of obtaining the divorce granted to Mrs. Stowell. Indeed, the testimony of Stowell clearly demonstrates that Mrs. Levy was brought into his bedroom by Mrs. Stowell in furtherance of this design, and for the purpose of furnishing apparent grounds for the divorce. Mr. Stowell also testified that the daughter, who testified against him in the suit brought by his wife, was not in the room at the time he awoke, or, what amounts substantially to the same thing, that he did not see tier there ; so that the story of the daughter finding the father va. flagrante delicto and then telling her mother was evidently untrue.

It is also passing strange that in the suit of Stowell v. Stowell the daughter testified for the mother against the father, and in McIntyre v. McIntyre she testified for the father in order to prevent McIntyre from obtaining a divorce; the relations between the father and daughter during the entire time being of the most friendly character.

That the suit of Stowell v. Stowell was commenced and prosecuted with the sole design of obtaining; a decree against Stowell so that Mrs. Stowell might marry McIntyre is apparent, and that Stowell was privy to this fraudulent combination is also clear.

Collusion in the matrimonial law is an agreement between husband and wife, for one of them to commit, or to appear to commit, or to be represented in court as having committed, a breach of matrimonial duty for the purpose of enabling the other to obtain the legal remedy of divorce as for a real injury. Where the act complained of as a ground for the divorce has in truth not been done, collusion is a real or attempted fraud upon the court. 2 Bishop on Marriage and Divorce, § 28.

There are three parties to every application for divorce. Hot only the parties to the record, but the public, also, have an interest in marriage and its dissolution. Ib., § 230.

Growing out of this twofold interest, we have the doctrine, running through all matrimonial suits, and bringing into subserviency all other law on the subject, that the proceeding, though upon its face a controversy between the parties of record only, is in fact, a triangular suit, sui generis, the government, or public, occupying the position of a third party, without counsel, it being the duty of the court to protect its interests. Ib., § 230.

Connivance destroys all claim to remedy by way of divorce; and is founded on the obvious principle that no man has a right to relief from a court for an injury which he was chiefly instrumental in effecting himself. Myers v. Myers, 41 Barb., at p. 120.

Another strong feature in the case is, that up to, and for two days after, the time when the papers were served in the suit of Mrs. Stowell against her husband she was living with him. This circumstance, with the other before mentioned, and the significant fact of the marriage to McIntyre almost immediately after the divorce was procured, show that it was part of a conspiracy in which all the parties united that Mrs. Stowell should obtain a divorce for the sole purpose of marrying McIntyre, who had visited the house of Mr. and Mrs. Stowell for some time prior to the bringing of that suit. A clearer case of fraud and collusion could hardly be presented.

For these reasons it becomes the duty of the court, representing the state, to set aside the decree obtained by Mrs. Stoweli, together with all other proceedings had in the action, and an order to that éffect will be entered.

As to the McIntyre Case, the proofs clearly show that, under the guise of paying alimony to the wife, McIntyre gave her one thousand dollars, and that this payment resulted in an agreement on the part of the wife that she would not defend the suit, and the proposed defense thereof was abandoned.

Without giving in detail the particulars of this collusion, it is sufficient to say that McIntyre’s application for divorce niust be deided upon the ground of collusion—a course which makes it unnecessary to consider the other proofs it the case.

Whether these people should be proceeded against criminally is a question for subsequent consideration. It is sufficient for present purposes to say that such practices cannot be tolerated, but must receive the most severe condemnation.

The position this decision may leave the parties in is a question with which the court lias nothing whatever to do. It must pronounce against fraud, collusion and imposition at all times and under all circumstances, leaving the guilty parties to take whatever consequences flow from their wrong.

The examination of the different witnesses must remain on file, and the orders directed to be entered are founded upon such testimony and upon the judgment roll in the case of Stowell v. Stowell, which will be found in volume 114 of the Divorce Eecords of the court.


author: Bischoff, J.

text:
    Emanuel Myerson, Resp’t, v. William H. Woolverton, as President, etc., App’lt.

      (New York Common Pleas, General Term,

      Filed June, 1894.)

    Carriers—Connecting—Presumption.
    Where goods are successively carried, while in transit, by different carriers, the presumption is that they were delivered to the last carrier in as good condition as they were received by the original carrier.
    Appeal from a judgment of the district court in the city of New York for the ninth judicial district, rendered by the justice, without a jury, in favor of the plaintiff. Action to recover for the loss of baggage by reason of negligence.

      J. E. Russell, for app’lt; Richard H. Mitchell, for resp’t.
   Bischoff, J.

The action was brought to recover the value of certain articles, alleged to have been lost from the plaintiff’s valise when in the custody of the New York Transfer Company, an association of which the defendant was president, under a contract for the transportation of the said piece of baggage from the terminus of the Pennsylvania Eailroad Company to the plaintiff’s place of residence in the city of New York.

Plaintiff proved the delivery of the valise and contents, intact, to the railroad company, at Portland, Oregon; that the baggage cheek, issued to him by the railroad company for the same, wag delivered to the defendant’s agent; that he, the plaintiff, had not seen the valise during the interval between his delivery of it to the railroad company and the defendant's delivery of the same to him; that, when so delivered, it was found to be cut open and part of its contents discovered to have been abstracted. One of the defendant’s witnesses testified the valise was received from the railroad company “in good order;” that otherwise it would not have been accepted for transfer by the defendant’s company. It appeared, however, that the “ good order ” merely implied a sufficient state of repair to enable the baggage to be handled without actual loss of its contents, and the plaintiffs testimony showed that the valise in question was sufficiently strapped to have come within such requirements when delivered to him, although the lock had been broken and the side slit opBn with a knife. The justice below found in favor of the plaintiff for the value of the articles thus lost, and upon this appeal the sole question presented is whether or not a sufficient cause of action was proven—that is, whether or not it was incumbent upon the plaintiff to show that the Valise was in good condition, and, with its contents, intact, when delivered to the defendant’s company. From the opinion of the justice, which accompanies his return upon this appeal, it appears that the judgment was based upon the authority of Smith v. N. Y. C. & H. R. R. R. Co., 43 Barb. 225, affirmed 41 N. Y. 620; and the ground taken was, we think, proper.

In the case cited it was held that where goods are delivered for transportation to a carrier whose line connects with that of another carrier, by which connecting carrier the goods must be transported to reach the intended destination, in order to recover against the latter for injury to the goods in transit, a plaintiff need not show that they were actually delivered by the first to the second carrier in good condition; but, upon proving that they were delivered intact in the first instance, the plaintiff throws upon the defendant the burden of showing that such goods were, in fact, transferred to him by the first carrier in the condition in which they were by him finally delivered to the plaintiff. The decision proceeds upon the well established theory that if the subject matter of a negative averment lies peculiarly within the knowledge of a certain party to the issue, the averment is taken as true unless disproved by that party. Fleming v. People, 27 N. Y. 329, 334; Harris et al. v. White, 81 id., 532, 547; Wennerstrom v. Kelly, 57 St. Rep. 522; Seaman v. Koehler, 122 N. Y. 646; 33 St. Rep. 729 ; Wylde v. North R. Co., 53 N. Y. 156. An „examination of the authority considered discloses that the contractual connection of the carriers’ lines was not a factor in the ratio decidendi. In view of the fact that the plaintiff here surrendered his baggage check to the defendant’s company upon the train prior to his arrival, or to the arrival of his baggage, at his destination, and thus parted with his means of control over it as against the first carrier, consistently with his agreement with the defendant’s company, it must be held that the rule laid down in Smith v. N. Y. C. & H. R. R. R. Co., supra, applies to this case as in the case of any “connecting” carrier.

It was here shown that the plaintiff’s valise was delivered to

the railroad company, at the commencement of the journey, in good and secure condition, and with its contents intact. Thus it was for the defendant’s company to prove that the valise was not so delivered to it, and this it failed to do, the proof given tending rather to stregthen than weaken the presumption raised by the plaintiff’s testimony.

For further support of the rule that, where goods are successively carried, while in transit, by different carriers, the presumption is that they were delivered to the latter carrier in as good a condition as they were received by the earlier carrier. See Schriver v. Sioux City & St. Paul R. R. Co., 31 Am. R. 353; Laughlin v. Chicago & N. W. R. Co., 9 id. 493; Beard v. Illinois C. R. Co., 79 Iowa, 518; Dixon v. R. & D. etc., Co., 74 N. C. 538; Halliday v. St. Louis, etc., Co., 41 Am. Rep. 309; Lindley v. R. R. Co., 88 N. C. 547.

Upon the evidence the recovery was authorized; the judgment, therefore, must be affirmed, with costs.

Bookstaver, P. J., and Pryor, J., concur.


author: Ward, J.

text:
    In the Matter of the Application of Oscar C. Wood for an Hotel or Innkeeper’s License. Oscar C. Wood, Relator, App’lt, v. The Board of Commissioners of Excise of the Town of Randolph, in Cattaraugus County, Resp’t.

      (Supreme Court, Erie Special Term,

      Filed July, 1894.)

    1. Costs—Special proceedings.
    Costs in special proceedings, instituted in, or taken upon appeal to, a court of record, where the costs are not specially regulated by § 3240 of Code, may be awarded to any party, in the discretion of the court, at the rates allowed for similar services in an action.
    2, Same—Public officer.
    The additional allowance of costs given to a public officer, under § 3258 of Code, extends to costs of an appeal.
    Motion for an order directing the clerk of Cattaraugus county to re-tax the respondents’ bill of costs presented to him for taxation arising on appeal to the general term from the special term and to disallow the following items therein :
    “Appeal to general term before argument..............$20.00
    Appeal to general term for argument.................40.00
    Increased costs as per Code 0. P. 3258 ............... 30.00”

      W. H. Henderson, for motion; Crowley & Reilly, opposed.
   Ward, J.

Upon the return of a writ of certiorari directed to the board of excise commissioners of the town of Randolph, Cattaraugus county, obtained upon the relation of Oscar C.Wood, who desired an hotel license requiring them to show cause why such a license should not have been granted, the commissioners having refused to grant such license and having returned such reasons to the court as satisfied it that the commissioners had not arbitrarialy denied or denied without good and valid reasons to grant such license, the court made an order sustaining the action of the commissioners and dismissed the writ and all proceedings founded thereon, but without costs to either party. From this order fhe relator, Wood, appealed to the general term of this court, and the general term affirmed the order of the special term in this language “Ordered that the said order be, and the same is hereby wholly affirmed with costs.” The respondents presented their bill of costs to the clerk of Cattaraugus county who taxed the same, including the items above specified, of which the relator complains. The learned counsel for the relator insists that as the first two items, viz: $20.00 before argument, and $40.00 for argument at general term they should • not be allowed and that the only costs the respondents can recover are ten dollars motion costs. This is a special proceeding, and the respondents are not entitled to costs unless by order of the court under § 8240 of the Code Civ. Pro. which provides that costs in special proceedings instituted in a court of record, or upon appeal in special proceedings regulated by this act (the Code) may be awarded to any party in the discretion of the court at the rates allowed for similar services in an action etc. The rates allowed for similar services in an action are specified in subdivision 4, of § 3251 to be the amounts allowed for the services specified. The general term awarded costs to the respondents which means the costs of the appeal and constitutes a direction by the court under § 3240 that the respondent recover costs as in an action. The Matter of the Application of the Rensselaer & Saratoga R. R. Co. v. Davis, 55 N. Y. 145. That case was decided under the act of 1854, chap. 270, of which § 3240 is a substantial transcript. The Matter of the Petition of the Protestant Episcopal Public School to Vacate an Assessment, 86 N. Y. 396. The People ex rel. Oak Hill Cemetery Association v. Pratt, 19 N. Y. Supp. 565. In the last two cases the court simply awarded costs as in this general term order and they were held to mean, costs the same as costs in an action. It is clear therefore, that the respondent should recover these items. A more difficult question arises as the allowance of the third item, viz : Increased costs as per Code Civ. Pro. § 3258, $30.00. By this section when a defendant in a final order made in a special proceeding instituted by a state writ is entitled to recover costs as provided in § 3251, he is entitled to recover in addition thereto one-half thereof when the defendant is a public officer, and the special proceeding was brought against him by reason of an act done by him by virtue of his. office or an alleged omission by him to do an act (as in this case) which it was his official duty to perform: The section is made also to apply to costs in actions. The counsel for the relator insists that these additional costs could not be taxed by the clerk because there was before him no certificate entitling respondents to these additional costs as required by§ 3248. That section provides “ where upon the' trial of an action, the title to real property comes in question or any fact appears whereby either party becomes entitled to costs or to the increased costs specified in § 3258 of this act, the judge presiding at the trial or the referee must upon the application of the party to be benefited thereby either before or after the verdict, report -or decision is rendered, make a certificate stating the fact. Such certificate is-the only competent evidence as to the matter before the taxing officer.” This section only applies to actions and where a certificate is necessary to inform the court of the facts which entitle the successful party in a trial before a judge or referee to the additional costs, and can' have no application to a special proceedings where the costs are discretionary and first awarded by the general term.

The taxing officer would not be enlightened by a certificate from the special term judge who dismissed the proceedings without costs, if such a certificate could be obtained, but he stands upon the fiat of the general term commanding that the .respondents should recover costs in the proceeding. Nor is the additional allowance given to public officers by § 3258 limited to costs incurred in courts of original jurisdiction. It extends as well to costs of an appeal where they are in favor of a defendant who is a public officer in an action or special proceeding brought against him by reason of an alleged act by virtue of his office or an omission by him to act. Burkle v. Luce, 1 N. Y. 239 ; Porter v. Cobb, 25 Hun, 184. The question as to where the respondent should not have first applied to the court by motion to direct the clerk to make this allowance was not raised upon this motion, but the right of the clerk to tax the item, if taxable at all, without direction of the court, seem to have been conceded, and while there are some cases holding that such a motion is necessary. Stewart v. Metropolitan Board of Health, 32 How. Pr. 3; affirmed, 34 How. 31; Mack v. McCullock, 2 How. Pr. 127. The general term of this eighth district held the contrary in Wheelock v. Hotchkiss, 18 How. Pr. 468. The conclusions I have reach as to this item is that the respondents are entitled to the additional costs, and the clerk was, therefore, justified in taxing it. The motion for retaxation is denied, but as the questions are somewhat novel, it will be without costs.


text:
    Frank D. Perry et al., Pl’ffs, v. The Lehigh Valley Railway Company, Def’t.

      (Supreme Court, Genesee Special Term,

      Filed August 6, 1894.)

    1. RAILBOADS—POWEBS.
    Where there is no limitation in the deed, upon the exercise by the company of the powers conferred by statute, none is to be presumed or implied and in legal effect.
    2. Same—Covenant.
    In such case, there is no breach of the covenant in the deed for which the company is liable.
    3. Same.
    The consideration received by a land owner In conveying a right of way to a railroad company is presumed to be in payment of all damages which may result to the grantor by reason of the use of the conveyed premises for purposes of a railroad.

      4. Same.
    Damages, once fixed either by agreement of the parties or by special proceedings, cover all future damages or claims therefor.
    Defendant demurrs to complaint alleging that it does not state facts constituting a cause of action.

      Myron H. Peck, Jr., for pl’ffs; Herbert P. Bissell, for def't.
   Ward, J.

The complaint in this action alleges the due incorporation of the Buffalo & Geneva Bailway Company in February, 1889, for the purpose of constructing a railroad from the village of Geneva, in the county of Ontario, to the city of Buffalo and Suspension Bridge. That the said railroad passed through the county of Genesee; that a survey had been made of the route of the proposed road, and a map, survey and profile thereof were duly filed and the ten thousand dollars for every mile of the - proposed road were in good faith subscribed to the capital stock of the company and 10 per cent, thereon paid in; that the plaintiffs were the owners of about one hundred and fifty acres of land situated in the town of Batavia, Genesee county, and used for agricultural purposes, and about two miles from Batavia, having a large and expensive dwelling-house and suitable farm buildings thereon and of great value; that the line of the said railroad passed through said farm in an easterly and westerly direction, leaving fifty acres with the buildings upon one side of the railroad route and one hundred acres on the other side.

That at the request of the said company, and for the purposes of the said railroad, these plaintiffs did, on or about the 20th of March, 1890, convey by warranty deed to said company a right of way through the said farm of the plaintiffs in which the name of the grantee was stated to be “Buffalo & Geneva Bailway Company,” a railroad corporation, and in which deed was contained the following covenant or condition, immediately following the description of the said right of way so conveyed, “ the party of the second part hereto agrees to make and maintain an under crossing at the present lane line on said premises with flare wings at least fourteen feet wide, eleven and one-half feet high in the clear without changing the established grade of the railway, and the same to be paved for sixteen feet from the rails,” and that such deed with the said condition and provision for an under crossing was the result of a compromise agreement between the plaintiffs in this action and the said Buffalo & Geneva Bailway Company by which the said right of way was acquired by said company for a much less sum than it could otherwise have been obtained.

The complaint further alleges that on the 21st day of June, 1890, the said railway company was consolidated with the Geneva & Van Ettenville Bailway Company and Lehigh Valley Company into one corporation, called the Lehigh Valley Company (this defendant), and thereby the defendant became fully vested with all the property and franchises of the several railroad companies, together with the rights of way acquired by them, and that the defendants thereafter constructed and completed the railroad for which the Buffalo & Geneva Railroad Company was incorporated to construct, and at the commencement of this action was engaged in operating the said railroad; that in the month of July, 1892, the defendant constructed a branch railroad from the north side of . the Canandaigua branch of the New York Central & Hudson River Railroad, thence easterly ascending a steep grade to the tracks of the defendant on the right of way obtained from the plaintiffs and connecting with such tracks at a point about twenty-five feet westerly from the plaintiffs’ under crossing for the purpose of transferring freight and passenger trains from the defendant’s railroad to the Central and furnishing a connection with defendant’s road with other railroads; and that the defendant established a station just east of the said crossing, and switches on each side of the defendant's main track just cast of said crossing for the purpose of transferring cars from the main line of defendant’s road to said switches, and then to other trains and other points beyond, and the freight and passenger trains are run over said branch to and from the main track of the defendant’s railroad and over the said under crossing; that at the time said deed was given, it was intended by the parties that such crossing was to be used as free as possible from obstructions from passing trains; there was no necessity for the location of the depot and switches and railroad connections at the place where they were located, but could have been located elsewhere as well, and that they were so constructed with full knowledge of such intention by the defendant.

The complaint further alleges that by reason of the construction of such branch tracks and running of passenger and other trains thereon, transferring and switching said cars over said under crossing, that the same is rendered of much less value than otherwise it would have been had it remained as contemplated by the parties; that in the operation of the railroad by the defendant as at present operated, the engines and cars are caused to stand at, near and upon the said under crossing, in the shifting of the same to and upon the said switches and to and upon said branch tracks and to approach the said under crossing from the west with great noise and confusion, and the emission of smoke and fire from the engines in ascending the said grade, and to stop at said station for orders and thereby to stand upon and near the said crossing, hindering anti delaying the plaintiffs in passing to and fro upon their said farms and underneath the said crossing; that by reason of the said facts the plaintiffs have sustained damage in the sum of $7,-500 for which they demand a judgment.

There is no allegation in the complaint but what the under crossing was constructed and had been maintained by the defendant precisely as covenanted in the plaintiffs’ deed.

This is a plain legal action for damages. No equitable relief is asked. The substance of the plaintiffs’ grievance is that when the right of way was granted and before the construction of the railroad, it was not in the contemplation of the parties that a branch track would be constructed, depot and switches erected within a short distance of the expected crossing, so that the crossing might be more exposed to the annoyance, noise, smoke and fire attendant upon such construction, and the switching, operating and moving engines and cars thereat; that while the defendants had the right thus to do as a part of their railroad business, it was not necessary to do it at that particular point, but that point was selected at the mere convenience of the defendants, and they should have selected some other point on their railroad that would not have disturbed theplaintiffs in the enjoyment of their crossing.

The question now is, whether the plaintiffs can maintain this action for damages assuming all these allegations to be true, which must be done in the disposition of this demurrer.

By § 66 of the General Bail road Act, the defendant is entitled “to take and hold such voluntary grants of real estate and other properties as shall be made to it to aid in the construction, maintenance and accommodation of its railroad.” * * * “to purchase, hold and use all such real estate and other property, as may be necessary for the construction and maintenance of its railroad, and the stations and other accommodations necessary to accomplish the objects of its incorporation.”

“ To intersect, join and unite its railroad with any other road before constructed at any point on its route and upon the ground of such other railroad company, with the necessary turn-outs, sidings and switches, and other conveniences in furtherance of the objects of its connections. ”

The powers here enumerated are absolutely necessary for railroads to possess in carrying out the purposes of their incorporation. The law has defined the use to which the defendant could put the real estate granted by the plaintiffs to it, and as there was no limitation in the deed upon the exercise of these statutory-powers by the defendant with reference to the estate conveyed, none is to be presumed or implied, and in legal effect, it was the understanding of the parties that the defendant might construct depots, switches, railroad connections, sidings or do any other act they were authorized to do, on any part of their railroad, upon the premises conveyed.

The only obligation imposed upon the defendant was to create and maintain an under crossing specified in the deed. There was no limitation upon the use of the land above the crossing or contiguous to it; and as long as the defendant made only such use of it as the statute permits, there is no breach of the covenant in the deed, nor is it liable for damages.

It is conceded that the under crossing was fully maintained so that the plaintiffs could pass and repass from one portion to the other without interference or hindrance.

The complaint is, that in the ordinary operation of the defendant at that point, the passage at all times was not free from difficulty on account of the presence overhead of the defendant’s cars and engines, and the noise and other disturbances caused thereby, but the grant was before the railroad was in fact constructed, the extent of traffic ascertained; its future necessities understood, or what particular use aside from the mere passage of trains over the contemplated railroad, was to be made of any portion of the road, and, therefore, it cannot be said in reason that any particular use of the track was not in the contemplation of the parties at that time. To attempt to limit the effect of this conveyance by vague understandings or impressions such as are alleged in the complaint would be impossible and absurd.

The complaint recites that this conveyance was for a valuable consideration. The consideration received by a land owner in conveying a right of way to a railroad company is presumed to be in payment of all damages which may result to the grantor by reason of the use of the premises conveyed for the purposes of a railroad, the same as though damages had been assessed under the condemnation act or special proceedings for that purpose. Damages once fixed' either by agreement of the parties or by special proceedings cover all future damages or claims therefor; that is to say, new damages cannot be recovered at each change of management or of increase of trains, or increased use of the premises conveyed, provided such use does not exceed the legitimate use of such property for railroad purposes, nor can future damages be predicated upon inconveniences and annoyances, as the overlooking of the premises and obstruction of views, increased competition resulting from the railroad, a larger number of residents or visitors attracted to the locality by means of it and interfering with the owner’s privacy, nor inconveniences not involving any immediate physical injury, such as smoke, vibrations, and noise caused by passing trains.

Pierce on Railroads, pages 216 and 217 and cases there cited.

And see as bearing upon the questions here considered Mills on Eminent Domain, §§ 110 and 216 ; Lewis on Eminent Domain, § 565 ; Dearborn v. Boston R. R. Co., 24 N. H. Rep. 179 and 186; Hollins v. Demorest, 129 N. Y. 676; 42 St. Rep. 394.

And among elements of damage to be regarded when damages are assessed or agreed upon, is that of crossing from one part of the divided premises to the other, and the interruption of facilities and communications of business attached to the estate. Pierce on Railroads, page 216, and cases there cited.

The demurrer most be sustained with costs, with leave to the plaintiffs to serve an amended complaint if they shall be so advised upon payment of such costs and within twenty days after the service upon them of the order sustaining the demurrer and the interlocutory judgment thereon.


author: Bischoff, J

text:
    The American Writing Machine Company, App’lt, v. Elbert E. Bushnell, Resp’t.

      (New York Common Pleas, General Term,

      Filed August 1, 1894.)

    1. Sale—Warranty.
    No particular words are required to constitute a warranty of quality.
    2. Same—Question of fact.
    Whether or not the words used are to be viewed as a warranty, is a question of fact.
    3. Same—Rescission.
    For a breach of such warranty, the vendee may avoid liability for the price by rescission of the sale and return of the goods.

      4. Appeal—Evidence.
    Evidence, received without objection, is to be considered in determining the issues.
    Appeal from a judgment of the district court in the city of New York for the first judicial district, rendered by the justice without a jury, in favor of the defendant. Action for goods sold and delivered, the defense relied upon breach of warranty.

      Charles C. Miller, for app’lt; L. M. Simpson, for resp’t.
   Bischoff, J

No exceptions to rulings upon the trial were taken by appellent and the argument for a reversal is based entirely upon the facts. The sole issue was as to whether or not there had been a breach of warranty upon the sale of the typewriting machine in question to the defendant, and the justice’s finding that there were such a breach is to be supported upon the evidence. The sale and delivery of the goods were admitted and it was upon the affirmative defense noted that trial was had. It appears that in the course of bargaining, after defendant had refused to purchase at the price set by plaintiff, attention was called by the latter’s agent to the fact that the machine was of a certain numerical designation which imported to the trade and to these parties, who were versed in matters pertaining to the construction of type writing machines, a greater value to the machine than would a lesser figure, and this because the machines numbered the higher were the later of manufacture and therefore embodied certain valuable improvements of recent date. Defendant thereupon completed the purchase. From the evidence given by defendant it appears that the machine was not as represented in this regard, being in fact of an early date of manufacture and bearing a number which had been altered. That the representation as to this question of trade designation was material in inducing the sale, and that it was in fact erroneous, appears from the evidence received, and the judgment finds ample support upon the record. There is no force in the contention that the evidence given with reference to the falsity of the representation was not the best evidence, because dealing merely with the construction of the machine and not expressly with the alteration of the number, this evidence having been received without objection is to be considered in determining the issues. Crane v. Powell, 139 N. Y. 379, 384; 54 St. Rep. 659. The effect of this evidence was to establish the fact that in purchasing the defendant had been misled by a material representation the falsity of which was, according to the testimony, by no means obvious to the purchaser and which was of a nature entitling the defendant to rescind the sale upon his discovery of the true state of facts. There is no question to be raised as to the diligence with which defendant acted in electing to rescind. No particular words are required to constitute a warranty of quality. Any distinct assertion in that regard made by the seller as an inducement to purchase, and relied on by the buyer, may be properly the ground for finding such a warranty. Hawkins v. Pemberton, 51 N. Y. 198; Wilbur v. Cartwright, 44 Barb. 536; Warren v. Van Pelt, 4 E. D. Smith,

Bookstaver, J., concurs.

202 ; Blakeman v Mackay, 1 Hilt. 266; Chapman v. March, 19 Johns. 290. Whether or not the words used are to be viewed as a warranty is a question of fact, Blakeman v. Mackay, supra; Rogers v. Ackerman, 22 Barb. 134; Whitney v. Sutton, 10 Wend. 412; and that for a breach of the warranty the purchaser may avoid liability for the price by rescission of the sale and return of the goods is clear beyond dispute. Norton v. Dreyfuss, 106 N. Y. 90 ; 8 St. Rep. 570. We are well content to support the justice’s finding upon the' evidence. Judgment affirmed with costs.


text:
    Louis Biel, Resp’t, v. Edward H. Horner, App’lt.

      (New York Common Pleas, General Term,

      Filed August 1, 1894.)

    Conversion—When does not lie.
    Where merely the fact that an exchange of bonds for the certificate took place and that a return of the bonds was subsequently demanded and refused, is shown, an action for conversion does not lie, in the absence of any claim of misrepresentation inducing the exchange.
    Appeal from a judgment of the district court in the city of' New York for the fourth judicial district, rendered by the justice without a jury, in favor of the plaintiff. Action for conversion of certain bonds.

      John L. Lindsay, for app’lt; August P. Wagener, for resp’t.
   Bischoff, J.

It appears that the plaintiff’s assignor surrendered the bonds in suit to an agent of defendant, receiving in return a certificate by the terms of which certain securities were to be delivered to the former upon payment of instalments aggregating $300. It is to be gathered from the testimony of the plaintiff’s assignor that the bonds so surrendered were understood to be received in part payment of the total number of instalments, and it is admitted that no further payments were made by the said assignor upon the certificate. This action was brought for the conversion of the bonds surrendered as above, and judgment was rendered in favor of the plaintiff. While it would appear from the evidence relative to the nature of these instruments that they came within the rule of Kohn v. Koehler, 96 N. Y. 862, and therefore were not to be viewed as lottery tickets, yet it is unnecessary to decide the point since the judgment cannot be sustained upon the pleadings and proof. G-ranting that the individual to whom the bonds were delivered was the agent of defendant, the evidence fails to establish the fact that the possession, retention or disposal of the chattels, thus attributable, w»as in any way tortious. Plaintiff’s assignor voluntarily parted with the bonds, receiving in return the certificate as above noted. No evidence is given as to any attempt upon her part to obtain the benefits contemplated by the transaction, with a resulting failure, there is no claim that misrepresentations in any way led to the exchange of her securities for the certificate received, and we have merely the fact that the transaction took place, and that a return of the bonds was subsequently demanded and refused. No remedy lies upon such a state of facts in an action for conversion. Errors appear in rulings on the trial, but in view of the conclusion reached by us upon the facts, it is unnecessary to discuss them. Judgment reversed and new trial ordered with costs to appellant to abide the event. Bookstaver, J., concurs.


author: Per Curiam.

text:
    William Buttman, Resp’t, v. Alfred W. Dennett, App’lt.

      (New York Common Pleas, General Term,

      Filed August 1, 1894.)

    Bailment—Restaurant keeper.
    A restaurant keeper, in whose custody wraps and other articles of wearing apparel have been temporarily placed for safe keeping, is liable as a bailee.
    Appeal from a judgment of the district court in the city of Hew York for the first judicial district.

      W. S. Burt, for app’lt; L. S. Wheeler, for resp’t.
   Per Curiam.

We think that a restaurant keeper in whose custody wraps and other articles of wearing apparel have been temporarily placed for safe keeping, is liable as a bailee under the rule laid down in Bunnell v. Stern, 122 N.Y. 539; 34 St. Rep. 218, and Bird v. Everard, 53 St. Rep. 210; and that the judgment must therefore be affirmed, with costs.


text:
    Bernard Campbell, App’lt, v. Union Railway Company of New York City, Resp’t.

      (New York Common Pleas, General Term,

      Filed August 1, 1894.)

    Negligence—Grossing track.
    It is the duty of a person, before attempting to drive across the line of a railroad, to look for the approach of trains.
    Appeal from a judgment of the district court in the city of Hew York for the tenth judicial district rendered in favor of defendant for the dismissal of plaintiff’s complaint. Action for injury to property by reason of negligence.

      C. C. Clarke, for app’lt; Breen & Cohalan, for resp’t.
   Bischoff, J.

There is no merit in this appeal. Plaintiff utterly failed to show any negligence upon the part of the defendant, and, moreover, his own testimony established the fact that he failed of that duty which the law imposed upon him when attempting to drive his horse across the line of defendant’s railroad. It was his duty to look for the approach of cars before crossing the track, Burke v. N. Y. C. & H. R. R. R. Co., 73 Hun, 32 ; 57 St. Rep. 7, and it appears from his own statement, brought out most clearly on cross-examination, that he omitted so to do. ‘ Moreover, had he looked, as it was his duty to do, he would have observed the approaching car, and contributory negligence is to be imputed to him by reason of his failure to so observe, Burke v. N. Y. C. & H. R. R. R. Co., supra, the evidence showing that the car could readily have been seen, in view of the condition of the track and of- the highway. The car was provided with a light according to plaintiff's own testimony, and that of the police officer, Leary, a witness for plaintiff, the o.nly evidence upon the subject, and from which it appears that the light was easily discernible. There was no question upon which 'the jury could be called upon to pass, and the dismissal of the complaint was obviously proper. Discussion of the few exceptions taken upon the trial is unnecessary to demonstrate their futility.

Judgment affirmed, with costs.


author: Bookstaver, J.

text:
    The Central Park Baptist Church, Resp’t, v. C. Venton Patterson et al., App’lts.

      (New York Common Pleas, General Term,

      Filed August 1, 1894.)

    1. Forcible entry—What necessary.
    The gist of an action for forcible entry and detainer is a peaceable possession by the plaintiff, under color of right, and a forceable disturbance of that possession by the defendant.
    2. Same.
    The regularity of the methods, whereby this peaceable possession was obtained, does not affect the question.
    8. Same.
    An actual occupancy by, and removal of, the plaintiff at the time of the entry is not essential to support these proceedings.
    Appeal from a final order restoring the petitioner to the possession of real property, made by the justice of the district court in the city of New York for the seventh judicial district in a proceeding for forcible entry and detainer.

      Herbert H. Gibbs, for app’lts; J. C. Julius Langbein, for resp’t.
   Bookstaver, J.

A dissension having arisen between the members of the church controlled by the plaintiff, a religious corporation, over the advisability of dismissing the pastor in charge, the minority, including the pastor, left the premises at a certain meeting of the church and the keys of the building were by the sexton placed in the hands of the petitioner herein in accordance with the resolutions' of the majority, it being then further resolved that the pastor be dismissed and the church building remain closed, under control of petitioner, pending the selection of a successor. In accordance with such resolutions, petitioner closed the building, placing new locks thereon and retained possession of the keys. On the Sunday next ensuing, the defendants, with a following of the dissentient members to the number of one hundred persons, entered the building, by removing the locks, and maintained devotional exercises. This proceeding was then instituted for forcible entry, and the trial resulted favorably to the plaintiff.

The chief point raised by appellant’s counsel related to the question whether or not the proceeding was maintainable under the verified petition of Fraser, alleged to be chairman of the board of trustees of the corporation owning the church into which the forcible entry is claimed to have been made, but no discussion of this question in our judgment is necessary, for by the terms of § 2235 of the Code of Giv. Pro. the petition may be made by an agent of the party in possession of the premises and it appears from the evidence that the majority of the members claiming to represent the corporation had placed the petitioner in possession and had constituted him the custodian of the building, as agent, and this agency we think sufficient to enable him to maintain this proceeding. The question of title to the premises is in no way open for discussion in this proceeding. The gist of it being a peaceable possession by the plaintiff, under color of right, and a forcible disturbance of that possession by the defendant. Kelly v. Sheehy, 60 How. Pr. 439, and see 18 Am. Dec. 139, note. Whether or not the individuals in possession actually represented the corporation, or had power to constitute the petitioner the custodian of the church edifice is immaterial. They had possession of the building, that possession was peaceable and the individual in whose name this petition was made was by these parties given power to act in the premises. The regularity of the methods whereby this peaceable possession was obtained, does not affect the question, Cain v. Flood, 21 Civ. Pro. 116; 38 St. Rep. 196; 14 N. Y. Supp. 776, and an actual occupancy by and removal of the petitioner at the time of the entry is not essential to support these proceedings. People v. Field, 52 Barb. 198. The remaining question raised is whether or not the entry was “ forcible ” within the meaning of the statute, Code Civ. Pro., § 2233, it being claimed that the defendant’s actions were orderly and that no breach of the peace occurred. The undisputed facts admit only of an affirmative answer. While the mere removing of locks from the doors of a building by an individual for the purpose of obtaining ingress, may not be sufficient to constitute a forcible entry as distinguished from a simple trespass, yet in this case the “multitude of people ” which the statute contemplates were associated with the defendants in their acts when entering upon the premises, and the alternative of a “strong hand” is not necessarily looked for in support of the proceedings, Code, § 2^33. The statute with regard to these proceedings was enacted with a view of maintaining the peace, 18 Am. Dec. 139, note, and a case of mere trespass has been held not to call for the special redress here afforded in a case where the peace is not disturbed nor endangered by the act. But where the entry is made by a multitude, as was the case here, “ the peace ” is in less danger of being broken in the aspect of a direct personal encounter than would be the case if the entry were made by an individual alone. In fact, the greater the multitude the greater the “ peace ” would be in this respect and it is against an entry under terrorizing conditions that the statute is aimed. The mere fact that the defendants found it expedient to solicit protection from the police upon this occasion and secure the presence of a number of officers, is most significant in disproving tne theory that the entry was not made nor intended to be made with force as against the plaintiff. It was not the province of the police to place the defendants in possession of the premises, and their presence in aid of the undertaking had the effect of but increased the force of the multitude. The exceptions taken by appellants upon the trial are not made the basis of reliance on this appeal, and nothing further is found in the case which would call for consideration.

The finhl order is affirmed, with costs. Giegerich, J., concurs.


text:
    Garrett D. Clark, App’lt, v. Amelia Smith, Resp’t.

      (New York Common Pleas, General Term,

      Filed August 1, 1894.)

    Appeal—Verdict.
    Where the justice was not influenced by prejudice or passion, and the judgment is not against the evidence or the weight of evidence, a verdict, upon conflicting evidence will stand.
    Appeal by plaintiff from a judgment of the district court in the city of New Yqrk for the third judicial district, rendered by the justice sitting without a jury. Action for two months’ rent, claimed to be due under a written lease.

      S. V. R. Cooper, for app’lt; Thomas P. Rush, for resp’t.
   Bookstaver, J.

This appeal presents only questions of fact. There was a direct conflict upon the one vital point in issue, namely: whether the plaintiff accepted the surrender of the premises ; and we are not able to say that the judgment is, against the evidence, or the weight of evidence, nor does it appear that the justice was influenced by prejudice or passion. Mead v. Pope, 7 Misc. Rep. 181; 57 St. Rep. 535.

The judgment must be affirmed with costs.

Bischoff, J., concurs.


text:
    Abraham Cohn, App’lt, v. Annie Heusner, Resp’t.

      (New York Common Pleas, General Team,

      Filed August 1, 1894.)

    1. Appeal—Facts.
    In the absence of a palpable perversion of justice, the appellate court will not interfere with the determination of the court below upon the facts.

      2. Attorney and client—Duty.
    An attorney is under no duty to dissuade his client from entering upon a contemplated business venture, and assumes no responsibility "for lpss which may result therefrom.
    Appeal from a judgment of the district court in the city of New York for the seventh judicial district, rendered by the justice without a jury, in favor of the defendant. Action to recover for professional services as attorney at law or solicitor alleged to have been rendered by plaintiff’s assignor upon defendant’s retainer; the defense being a general denial.

      Louis Cohn, for app’lt; Henry Steinert, for resp’t.
   Bischoff, J.

The judgment appealed from was rendered upon a sharp conflict of evidence which involved the question whether the services, for which recovery was sought in this action were induced by the defendant or by her husband. The plaintiff’s assignor testified to the defendant's direct request for the services," while the defendant with equal positiveness denied that any such request was made, and, furthermore, the defendant’s husband, called as a witness for defendant, testified in effect that the services were rendered upon his retainer and upon his promise to pay therefore. This conflict it was the special province of the justice below to determine, and with such determination upon the facts, in this case favorably to the defendant, the appellate court is not to interfere in the absence of a palpable perversion of justice. In part the services in suit consisted of the investigation of the vendor’s title to a certain steamboat purchased by the defendant's husband, and the preparation of a mortgage of such property to the defendant, she having advanced her husband part of the purchase money. With a view of demonstrating the worthlessness of the services rendered by plaintiff’s assignor the defendant was permitted, against the objection and exception of the plaintiff’s counsel, upon cross-examination of the plaintiff’s witness Oohn, to elicit the fact that she had sustained a loss of $8,000 by reason of her investment in this mortgage, there being no pretense that the loss was occasioned by neglect or want of skill on the part of the plaintiff’s assignor in the performance of the services above particularized, and it being conceded that the loss was wholly owing to the precarious character of the security, the Federal laws giving preference to the payment of claims out of the proceeds of the sales of vessels to such liabilities as were incurred in navigation. A solicitor, or attorney-at-law, is under no duty to dis ■ suade his client from entering upon a contemplated business venture. Having concern for the latter’s prosperity, the former may tender his advice in that regard, but if he fails so to do he is not chargeable with neglect. The special skill which the solicitor, or attorney, engages himself to exert in his client’s behalf is such as is peculiar to his profession, but the relation of solicitor or attorney and client imposes upon the former no duty as to an exercise of sagacity in business ventures .superior to that of the latter. An attorney-at-law, or solicitor, therefore, who has not assumed personally to invest his client’s moneys, and who is called upon only to lend his professional aid for the purpose of carrying his client’s proposed venture into effect, bv investigation of the title to-the property or security constituting the subject matter of the proposed investment, and the preparation of the necessary legal documents, assumes no responsibility for loss which may come from the client’s ill-venture. Weeks on Attorneys, §§ 304, 311. Hence the attorney or solicitor is not chargeable with neglect or want of skill, because he has failed to advise his client against the venture, nor can the fact of the loss in any degree affect the value of the farmer’s services.

For the error pointed out, the judgment must be reversed and a new trial ordered, with costs to" appellant to abide the event.

Bookstaver, J., concurs.