author: Putnam, J.

text:
    Catharine Roach, as Administratrix, etc., Resp’t, v. City of Ogdensburg, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed September 27, 1894.)

    Municipal corporation—Streets—Plan of construction.
    A city is not liable for injuries caused by a defect in the plan adopted for laying a sidewalk.
    Appeal from a judment entered on á verdict in favor of plaintiff, and from an order denying a motion for á new trial on the merits.

      Louis Hasbrouck (Charles A. Kellogg and Thomas Sprait, of counsel), for app’lt; Malby & Lucey, for resp’t.
   Putnam, J.

The evidence pronounced by the parties oh the trial was such that the jury could have found that the defect in the street, which caused the death of plaintiff’s intestate, existed in consequence of the neglect of defendant’s officers to make proper repairs thereon, or that the accident to ,th'e deceased occurred at the crosswalk on Ford and State streets, -in the city of Ogdensburg, and was caused by the error or mistake of the common council of the defendant in the plan of the work. Such being the case, we think the trial court erred in declining to instruct the jury that, if they should find that the death of Roach was owing to the latter cause, the plaintiff could not recover, ánd in charging as follows: “ It is claimed by the defendant in this action that that crosswalk was so constructed under a resolution of the common council of the city of Ogdensburg, and that, it having been so constructed, -if they made a mistake in the plan, the city is not liable for it. A mistake in the plan of the work, of itself, would be no defense to this action ; but if it was simply a mistake of judgment on their part, and they had adopted one of two plans, either of which, at the time they adopted it, would seem to a reasonable, cáreful, prudeiit man to be a proper plan to be used under the circumstances under which it was used, and it after-, wards turned out that they had made a mistake of judgment on their part, and that they had not adopted the best plan, they would not be liable. That would simply'be an error of judgment. If they exercised their judgment as reasonably careful and prudent men, charged with the duty of maintaining safe highways, would ordinarily do under the circumstances, the city cannot be made liable if it turns afterwards that, although they hád exercised their best judgment, they had not adopted the best plan. They were only bound to use such judgment as a reasonably prudent and careful man would exercise under the circumstances. * * * If they adopted a plan that was obviously dangeróus, and that any man of ordinary prudence ought to know wag dárigeróús, then the city is liable, though it was adopted by resolution of the common council. * * * If it was a dangerous place, and one which any man of ordinary prudence, in charge of a street, or who looked at it, would pronounce dangerous, it makes no difference how it got there. If it was there, and they had notice of it, that is sufficient, and' the city would be chargeable with negligence in maintaining it there.”

The effect of this charge was to instruct the jury that the corporation was liable for the accident that caused the death of plaintiff’s intestate, although occurring by reason of the defect of the plan of the crosswalk adopted by the common council of defendant, if such plan was not one that .should be adopted by reasonably prudent and careful men. In other wolds, the court submitted to the jury the question as to the propriety of the plan of the crosswalk made by defendant.. It instructed thetri, not ás held in the authorities, that the city was not liable for the accident that caused the death of Roach if it occurred by reason of a defect in the plan of the sidewalk adopted by the city, but that it was not liable if such death was caused by a defect in the crosswalk, and the plan thereof adopted by the common council was such as reasonable and careful men would approve. If this instruction to the jury by the trial court was correct, it is obvious that in every similar case against a muriicipal corporation it would be proper to submit to the jury the propriety of the plan adopted by its common council. In every case where there was a defective plan the jury could determine that it wás one which reasonably careful and prudent men w;ould not adopt. We think the authorities do not sustain such a doctrine. In Urquhart v. City of Ogdensburg, 91 N. Y. 67, it appeared that the accident which caused the injury to plaintiff for -which the action was brought, was owing to a defect in the plan adopted by the city in laying the sidewalk. The court of appeals held that the trial judge erred in refusing to charge “ that the defendant cannot be held liable for any fault in the plan of the work, and hence was not liable for the steepness of the slope or incline from the platform to the curbstone.” The court of appeals also held that the trial judge erred in denying defendant’s motion for a non suit. The plan adopted in the case cited appeared to be dangerous, but, instead of determining that it should have been submitted to the jury to find whether it was such a plan as a reasonable and careful person should adopt, the court of appeals held that, the dangerous slope in the street which caused the injury appearing to have been made pursuant to the plan of defendant’s common council, a nonsuit should have been granted. I am not aware that the case above cited has been doubted or overruled. See Urquhart v. City of Ogdensburg, 97 N. Y. 238; Garrett v. Trustees of Village of Canandaigua, 135 id. 436-443; 48 St. Rep. 462; Betts v. Village of Gloversville, 29 St. Rep. 331; 8 N. Y. Supp. 795.

The correct doctrine applicable to this case is ably stated in Carr v. Northern Liberties, 34 Pa. St. 324-329 (when the question of the liability of a municipal corporation for an injury resulting from a defective plan adopted by its common council was under consideration), as follows: “Municipal corporations have often been held liable for carelessness in the exercise of their functions ; but if we do undertake to correct the evil in such a case as this, 'on the ground of carelessness, we do not see how to escape from the necessity of submitting the propriety of all acts of grading and draining in our towns to the decision of juries, for even discretionary acts may be charged to have been ignorantly or carelessly resolved upon. Any street may be complained of, as being too steep or too level; gutters, as being too-deep or too shallow, or as being pitched in a wrong direction; and there may be evidence that these things were carelessly resolved upon, and then a tribunal that is foreign to the municipal system will be allowed to intervene,, and control the town officers. And the end is not yet; for, if a regulation be altered to suit the views of one jury, the alteration may give rise to another case, in which the new regulation will be likewise condemned. This theory is so vicious that it cannot possibly be admitted.”

The above case was cited with approval and the same doctrine stated by Cooley, Ch. J., in City of Detroit v. Beckman, 34 Mich. 125-128; and the last named case was followed by the same judge in City of Lansing v. Toolan, 37 Mich. 152, referred to and followed in Urquhart v. City of Ogdensburg, 91 N. Y. 71.

■ For the reasons above stated, we conclude that the judgment should be reversed, and a new trial granted ; costs to abide the event.

Mayham, P. J., concurs; Herrick, J., concurs in the result.


source: Caselaw Access Project

author: Ingraham, J.

license: Public Domain

text:
    United States Trust Company, as Trustee, etc., Pl’ff, v. James Drake Black et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed October 3, 1894.)

    1. Trial—Decision of general term.
    A decision of the general term as to the construction of a will, though not res adjudicata in a subsequent action between different parties, is an expression of opinion which the special term will follow.

      2. Will—Construction.
    Where a will referred to several successive residuary estates, the last one mentioned in connection with which residuary legatees are named, was held to be the final residue of the estate.

      Edward W. Sheldon, for pl’ff; George H. Balkam, for def’ts James Drake Black and Benjamin Drake (guardian ad litem for residuary legatees); Stephen 0. Lockwood, for def’ts Lawrence Atterbury and others; E. N. d? T. M. Taft,'William H. Harris, John H. Mann, Anthony B. Dyett, Williams & Ashley, Cephas Brainerd, Herbert Barry, and Fairfax Harrison, for def’t corporations.
   Ingraham, J.

By the -will of Mary Hopeton Drake she directed that certain real estate be sold, and the proceeds paid to the plaintiff as trustee to pay the income to one Evans during his life, and that upon his death without leaving issue the principal of said trust fund should form a part of her residuary estate, and “be disposed of as the same is hereinafter disposed of.’’ Evans having died, the plaintiff applies to the court for directions as to the disposition to be made of this trust fund, and the question to be determined is, to whom is this trust fund now to be paid ? The question as to the proper construction of this will has already been presented to this court, and it has been held by the general term (see Wetmore v. St. Luke’s Hospital, 56 Hun, 318; 31 St. Rep. 334), that this Evans trust fund was to go to the four infants who were named in the codicil as the general residuary legatees, after the payment of all specific legacies. Thus the presiding justice, delivering the opinion of that court] says : “ This brings us to the other question involved, and that relates to the fund which the testatrix has bequeathed in trust during the lives of James F. Evans, Esther M. Behin, and Emily Hancock, and which, upon the death of the life tenant, is to fall into and be disposed of as part of her residuary estate. The question necessarily presented here is, what residuary estate did the testatrix intend ? There seem to be in this will three residuary estates. The first one mentioned is in the seventh clause, the next one is in the commencement of the eighth clause, and in the same clause, at the end thereof, we find the final residuary clause.”

It is claimed that this decision is not an adjudication binding on the parties to this action, as all of those interested were not parties to that action, and the language used by the presiding justice is criticised by some of the parties to this suit. It is very clear, however, what was intended. Of course, there can be but one residuary fund in an estate. That residuary fund is the fund left after the payment of all specific legacies; and the four infants named in the codicil are, strictly speaking, the residuary legatees. It is true that the testatrix, after making certain specific legacies, calls what is left of her estate “ all the rest, residue, and remainder of my estate, both real and personal; ” but it is simply so called for the purpose of giving to the executors a power of sale to provide a fund from which certain legacies are to be paid. Thus the will first provides for the payment of certain legacies, and then provides that the executors shall sell the rest, residue, and remainder of the estate, and pay certain other legacies; and in the eighth clause of the will certain other legacies are directed to be paid after the payment of the legacies mentioned in the seventh clause, which are first to be paid out of the proceeds of the residuary estate; and then comes the final residuary clause, for the first time designating the residuary legatees, and what is to be given to the residuary legatees is described by the testatrix as “all the rest and residue of my said residuary estate not herein otherwise disposed of.” There is thus created what has been termed by the court of appeals a “ residuum of a residuum; ” and while this, strictly speaking, may imply a contradiction, the phrase not inaptly expresses just what was intended by the testatrix in this case. The question here is, which of these three classes of persons is entitled to what the testatrix calls “ the rest, residue, and remainder ” of her estate? Or, in other words, to whom did she intend the trust fund should go after the termination of the life estate? That question is answered by the opinion of the presiding justice above referred to; and, whether or not that case is a binding adjudication upon all parties to this action, it is an expression of opinion of the appellate court, which I am bound to follow. In stating the conclusion at which the court had arrived it is said: “ This consideration seems to us to make it plain that the residuary estate to which she referred, and in which she applies these funds at the termination of the life estate, was the final residue which was given to the four infants above mentioned.”

The question is not itself free from difficulty, which arises from the fact that the testatrix undoubtedly thought that her estate would be sufficient to pay all these specific legacies and leave a residue to the four infants, and that the contingency of there not being sufficient to pay all these specific legacies without the aid of the principal of these trust funds was not considered by her. It may be said that she evidently intended that these specific legacies provided for by the seventh and eighth clauses of the will should be paid before any of the residuary estate was paid to the four infants under the final residuary clause. But, on the other hand, it was the evident intention of the testatrix that the legacies under the seventh and eighth clauses should be paid after making provision for the other specific -legacies, which included the payment to the trustee of these trust funds; and that, when she directed that the trust funds after the termination of the life estate—which might last for many years—should become part of her residuary estate, and be disposed of as the same was therein-after to be disposed of, she intended that it should go to those to whom she had given the residuary estate as such, and not to those to whom she had given specific legacies. The general term, however, having expressly decided that these four infants, under the codicil, are entitled to these trust funds, I have nothing to do but to follow their decision.

The jurisdiction of the court to entertain such an action as this is undoubted; and as it appears that the executor is now a defaulter, and has absconded, it will be hardly proper to direct that this fund be paid to him. There can be no difficulty in directing the payment by the plaintiff directly to those ultimately entitled to the fund.

Judgment is therefore ordered accordingly, with eosts.


author:
Mayham, P. J.
      Putnam, J.
      Herrick, J.

text:
    In the Matter of Sarah M. Ryalls, as Administratrix, etc.

      (Supreme Court, General Term, Third Department,

      Filed September 27, 1894.)

    1. Executors, etc.—Accounting.
    The burden of showing the amount of property remaining in the life tenant’s hands at his death, who had an absolute power of disposal, on accounting by his administrator, is on those who seek to subcharge the account.
    2. Same.
    Evidence of the receipt of money by an executor before his death is not sufficient to charge his administratrix therewith.
    Reargument.
   Mayham, P. J.

I see no reason for changing the conclusion reached in this case when it was before us on the former argument, as reported in 74 Hun, 205; 56 St. Rep. 291.

1. The liability of William H. Ryalls, as executor of the will of-his mother, Elizabeth Haney, could only be determined by an examination of her will. The provisions of that will were therefore before the court for a j udicial determination, for the purpose of ascertaining whether his estate was chargeable with all of her estate which came into his hands, or with so much of the same only as remained in his hands at the time of his death. By the terms of the will he was permitted to use the estate for his own benefit, and the amount not so used was bequeathed to the contestants.

2. The burden was on the contestants of showing by competent proof the amount of the estate of Elizabeth Ilaney remaining in Ids hands at the time of his death, and his administratrix was chargeable in this accounting for that amount only; and the contestants failed to show the sum left over at the time of his death.

Wo still adhere to our views as expressed on the former hearing in reference to the error committed by the surrogate in the receipt of improper evidence offered by contestants, and received by the surrogate under the exceptions of the appellant; also to our views expressed as to the effect of the proof tending to show the amount of property owned by Elizabeth Haney some years previous to her death, and hold that that proof did not cast upon the appellant the onus of proving the negative proposition,—that she did not die the owner and possessor of that amount, or that that amount did not come to the hands of her executor. We therefore reiterate our former conclusion that the surrogate’s decree is erroneous, and must be set aside, and a new trial or hearing be had before the surrogate, under § 2587 of the Code of Civil Procedure, with cost of this appeal against the contestants, to be paid out of their shares of the estate of Elizabeth Haney, bequeathed to them in and by her will.

Putnam, J.

(concurring).—It is apparent from the findings of the surrogate that he placed no reliance on the testimony of the witness Mary Hunter as to the admission of William H. Ryalls that “ he had. already realized $15,000 ” from the estate of Elizabeth Haney, deceased. Had he credited the statement of that witness, his findings of fact would have been different from those actually made. I think the surrogate was justified in disbelieving the statement of the witness. All the other testimony in the case tends to show that she was mistaken. The surrogate, therefore, in finding that Elizabeth Haney, at 'the time of her death, was possessed of $8,392.47 of property which came to the hands of William H. Ryalls as her executor, must have based such finding principally upon the testimony of William P. Lighthall the agent of said Elizabeth Haney, showing the payment to her of. the sums mentioned in LighthaH’s account during the four or five years prior to her death. The surrogate assumed that the sums of money so paid to Mrs. Haney by Lighthall during the time in question, or the proceeds thereof, remained in her possession at the time of her death, and were received by Ryalls as her executor; and that the evidence of the receipt by Haney from Lighthall of the property in question, and the presumption that said property continued in her possession at the time of her death, called on the administratrix of William H. Ryalls to account therefor. I think that the surrogate, in so holding, erred, for the reasons stated by Mayham, P. J., in Re Ryalls, 74 Hun, 205; 56 St. Rep. 291.

It is to be presumed from the evidence in the case that Mrs. Haney deposited the greater portion of the various sums received by her from Lighthall in the Union Savings Bank at Saratoga Springs. All the sums so deposited by her, except a small balance, were drawn out by her, during her lifetime, by checks. No proof was given on the trial below that the money so drawn out by Mrs.Haney from the Union Savings Bank ever came into the possession of William H. Ryalls, or the proceeds thereof. No evidence was given whatever as to the disposition of the greater'part of the money so drawn by Mrs. Haney from said bank. I think it was mere speculation to assume that Ryalls received the money so drawn out by deceased, sin the absence of all proof showing that it came into his hands. In the absence of other evidence showing that the property in question was received by Ryalls, I think the surrogate should have charged his estate only with the amount admitted by William H. Ryalls in his account made and filed in 1881, together with the value of the stock of the Provident Loan Company. For the reasons above stated, and also on account óf the reception in evidence by the surrogate of the memorandum referred to in the opinion of Mayham, P. J. (74 Hun, 209; 56 St. Rep. 291), I think there should be a new trial before the surrogate. I have not considered the question as to whether the will of Elizabeth Haney, deceased, gave to her son a mere life estate in the property in question, or the use of such property, with a right to expend the principal thereof. In the view I have taken of the case, it is unnecessary to pass upon that question.

Herrick, J.

(concurring).—I do not think that, under the provisions ot the will of Elizabeth Haney, her executor and devisee, William H. Ryalls. was entitled to use any portion of the principal of the estate, so as to diminish its amount. It seems to me that all he was entitled to was the use and enjoyment thereof by the receipt of its rent, income and profits during his lifetime.

Upon the other questions discussed I concur with my associates, and concur in reversing the 'decree of the surrogate, and directing a new trial.


author: Herrick, J. Mayham, P. J.

text:
    The People ex rel. John I. Platt, Resp’t, v. Frank Rice et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed September 27, 1894.)

    1. Contempt—Order for mandamus—Stipulation not to issue.
    The disobedience of an order directing a mandamus to issue is a contempt, though not issued, where its issuance was prevented by a stipulation of the parties.
    2. Same—Appeal.
    The doing of the prohibited act between the decision on appeal from the order and the filing of the remittitur, is a contempt.
    3. Same—Nature of offense.
    Where the. moving papers set forth the facts in the case, the question whether the alleged contempt is a civil or a criminal ohe, is for the court to determine. )

      4. Evidence—Judicial notice.
    The general term of the supreme court will take’] udicial notice of an order of the supreme court in the same proceeding.
    Proceeding to punish for contempt of court for disobeying a mandamus.

      J. Newton Fiero, for app’lts; Leavitt, Wood & Keith (Edwin R. Leavitt, of cpunsel), for resp’ts.
   Herrick, J.

This is an appeal from an order of the special term adjudging the appellants guilty of contempt of court in disobeying an order of the supreme court theretofore issued, and fining them the amount of the relators’ costs and expenses. This case has heretofore been before this court (74 Hun, 179; 56 St. Rep. 546), upon an appeal from an order refusing to grant an order to show cause why the defendants should not be punished for contempt Most of the material facts and the law relating thereto were discussed by this court in rendering its decision upon such appeal, and it is unnecessary to repeat them here. The defendants made answer to the special term to the charges brought against them, and the special term has held that the facts show disobedience by the defendants to the order of the court, and adjudged them guilty of contempt; and I see nothing in the facts set forth in the case upon appeal that would warrant us in arriving at a different conclusion upon the facts than has the special term, unless it should be to hold that the defendants willfully and knowingly violated the order in question.

The appellants take exception to the findings of the special term, in this: that it holds the defendants guilty of civil contempt only, whereas the relators move against the defendants as for a .criminal contempt. I do not think this contention of tbe appellants is well founded. The moving papers of the relators purport to set forth the alleged facts in the case, and ask the court to punish them for an alleged contempt, without defining its character. It was for the court to determine, upon the facts,- the nature of the offense committed; and, even if the relators had demanded the punishment of the defendants as for criminal contempt, that would not necessarily confine the court to the form of relief or punishment demanded; neither does it afford ground for relief to the appellants if the court found that they were guilty of a lesser offense than the relators claim. The question really is, have the appellants been guilty of any form of contempt, civil or criminal? I do not think that the answer of the defendants places them in any different situation from that in which they appeared when this case was last before us, except, possibly, the charge that they have willfully disobeyed tbe order of the court. As before stated, the general'questions, both of law and of fact, arising herein, weré discussed upon the former appeal, and it is unnecessary to repeat such discussion here. But there are some questions raised that, perhaps, were not disposed of at that time, which i't is well to consider here.

The appellants contend that no mandamus was actually issued in this case, and that, therefore, they cannot be punished for not complying with its terms. I do not think that the appellants are in position to raise any -such questions in this case. We have been cited to' authorities bearing upon the appellants’ contention in that behalf, but I do not think they are pertinent to the case now before us. Former decisions of this and other courts are valuable, and should be respected as guides .to onr action, but they are not precedents to be followed, unless either tbe facts or principles involved in them are similar to those of the case in which they are cited. None of the cases cited have any similarity to the case now here. In this case the order of the court directing the issuance of a mandamus was granted, and there and then a stipulation was entered into b.y the counsel for the parties tbat an appeal be immediately taken ; that the canvass of votes for senator in the district in question be suspended until the decision.of the court of appeals upon sucb appeal, provided such decision should be made prior to December 30, 1891; and tbat the certificate of the result of the election should be made and issued by the appellants in accordance with tbe decision of the court of appeals. It appears that the decision of the court of appeals was rendered about 2 o’clock in tbe afternoon of tbe 29th of December, and that tbe canvass of votes was made by tlie appellants during the evening of the said 29th day of December. It will thus be seen tbat the defendants, by their own act, in entering into the stipulation, rendered unnecessary, and indeed prevented, the issuance of the writ of mandamus originally; and, by their precipitation in canvassing tbe votes on the evening of the same day of the decision of the court of appeals, they, performed the prohibited act before a remittitur from the court of appeals could be issued, and an order of the supreme court making the judgment of the supreme Court, and the issuing of a formal writ of mandamus thereupon would ordinarily, in the orderly and decent practice of the law, be accomplished. Under such circumstances, it does not seem to me that the defendants can be permitted to shield themselves from punishment by the fact that a formal written document, which is issued to enforce the order and decision of the court, has not been issued, they knowing at the time what, the decision and order of the court is. It is the disobedience of the order of the court which constitutes the contempt, not the failure to recognize the instrument by which it is enforced. In this case the order was that the returns in question should not be canvassed.

Again, the appellants assert that they should not be punished because no order was in fact served upon them, as before stated in relation to the nonissuauce of the formal writ of mandamus. It was rendered unnecessary by the stipulation entered into by them. It is admitted that the appellants had knowledge of the order, and of its terms and conditions. “ín administering the law in respect to the violation of injunctions, the court of chancery never lost sight of the principle that it was the disobedience to the order of the court which constituted the contempt; and therefore, although it required of the party availing himself of its order a substantial compliance with the rules of practice upon the subject, it would not usually allow the effect of its orders to be wholly lost when the party sought to be bound by the order had actual knowledge or notice of its existence, although there might have occurred some slip in the formal method of bringing it home to him.” People ex rel. Davis v. Sturtevant, 9 N. Y. 263-278. “This court has upheld proceedings of the supreme court punishing parties for contempt and violation of an injunction who had knowledge of it, though not served.” Daly v. Amberg, 126 N. Y. 490-496; 38 St. Rep. 513, and cases cited. See, also, Rochester, H. & L. R. Co. v. New York, L. E. & W. R. Co., 48 Hun, 190; 15 St. Rep. 686; Gage v. Denbow, 49 Hun, 42; 17 St. Rep. 575. In Hull v. Thomas. 3 Edw. Ch. 236, the defendant was held guilty of contempt where the court had issued an order for an injunction, although the order was not entered or the process served. It is true that these cases I have referred to are all cases of violations of injunctions, but I can see no difference in principle between the violation of an injunction, or of an order for an injunction, and the violation of an order for a writ of mandamus. The principle is the same. It is the order of the court that has been disobeyed, and it has been.brought equally into contempt, whether that order be for an injunction, mandamus, writ of prohibition, or any other writ or order which the court has power to grant or issue.

The appellants also contend that they cannot be punished because, at the time of the canvass of the votes, the proceeding in which the order had been issued was not in the supreme court, but was in the court of appeals, the remittitur not having been then filed, making the judgment of the court of appeals the judgment of the supreme court, and that, therefore, their action was not a violation of the order of the supreme court. Except for the prominence of the parties and their counsel who urge this, I should hardly be inclined to spend time upon it. The proposition that, by appealing to the court of appeals, the person appealing may in the interval that elapses between the decision of that court and the transmission of its decision to the supreme court, and the entering of an order making such judgment the judgment of the latter court, do the act which was prohibited by the supreme court, and such prohibition affirmed by the court of appeals, answers itself. To countenance such a proceeding would, be a travesty of justice. The order of the supreme court still exists, although it be taken to the court of appeals. The power of the court to enforce it is simply suspended pending the appeal. The party against whom it issued is not relieved from its mandate, although not enforceable against him until after being passed upon by the court of appeals.

Again, the appellants urge that there is nothing in the record to show that, at the time the proceedings were taken to punish them for contempt, the principal proceedings were not still in the court of appeals, and that, therefore, there were no proceedings pending in the supreme court. Upon the argument there were produced before us a certified copy order of a special term of the supreme court, held by the presiding justice of this court, on the 30th day of December, 1891, making the judgment of the court of appeals in this matter the judgment of the supreme court. Such certified copy order, we think, this court had power to receive, for the purpose, if necessary, of sustaining the order appealed from. Day v. Town of New Lots, 107 N. Y. 148; 11 St. Rep. 361, and cases cited. And, in addition to that, it seems to me that the court at special term, as also this court, can take judicial knowledge of an order made by the supreme court in the same proceeding. The order appealed from should be affirmed, with ten dollars costs and printing and other disbursements of this appeal.

Putnam, J., concurs.

Mayham, P. J.

(dissenting).—Some of the questions argued on this appeal were considered and disposed of by this court on appeals taken from the orders of Justices Edwards and Barnard, refusing to grant orders requiring the appellants herein to show cause why they should not be punished as for contempt for alleged disobedience of the order of the special term of December 7, 1891, reported in 74 Hun, 179; 56 St. Rep. 546. The facts set out in the answering papers on this motion were not before the court on that appeal, and, so far as they vary the situation as then presented, they are entitled to be considered in the determination of this appeal.

The order of the special term of December 7th was based largely, if not entirely, upon the fact that the returns of the county canvassers of Dutchess county, then before the state canvassers, were signed by John Mylod, as secretary of the board of county canvassers, • and not signed by the county clerk of Dutchess county, and such returns the order directed the canvassers to disregard, but, instead thereof, they consider only such returns from the county of Dutchess as may hereafter be filed containing the signature of the county clerk, and issued under the seal of said county clerk. A careful examination of that order .and of the facts upon which it was based, seems clearly to indicate that the ground upon which that order was made was that the certificate was signed by Mylod, and not' by the county clerk. That ground of objection to those returns was entirely removed by the decision of the court of appeals; and, when so removed, the reason for disregarding the Mylod returns contained in the order went with it. upon that question, Peckham, J., in discussing the question of the sufficiency of the Mylod returns, says: “We think, under all the facts, the steps taken to certify and authenticate the statements were valid, and the proceedings by which they were sent to and received by the secretary of state and other state officers were sufficient to entitle them to be filed and considered by the board of state canvassers as the properly certified result of the canvass by the board of county canvassers.”

And he concluded by saying: “We think, as a result, that the order for the writ, and the writ itself, should be modified by striking out the provisions requiring the return to be certified by and to come from the county clerk of Dutchess county, and issued under his seal; and, as so modified, the order is affirmed.”

Here, then, we have the decision of the court of appeals, holding that the Mylod returns, “received by the secretary of state and other state officers, were sufficient to entitle them to be filed and considered by'the board of state canvassers.” It is true that the order required the state canvassers to disregard the Mylod returns. But what became of that requirement in the order after the explicit determination of the court of appeals ? It may be said that that question was answered by this court when the case was before it on a previous appeal; but an examination of the record shows that many important facts wefe presented' to the court on the hearing of this motion, on the part of the appellants, which were not before the court on the application for an order to show cause, for a refusal to grant which the former appeal was brought, which may well be considered in determining whether or not the appellants contumaciously violated the order of December 7th, as the same was modified by the decision of the court of appeals. Manifestly, the prohibitory part of that order, which required the disregard by the canvassers of any return not signed by the county clerk, was removed by the decision of the court of appeals modifying the order, and allowing returns not signed by the clerk to be counted. That left only the mandatory part of the order in force, which required the canvassers to consider such returns of the county of Dutchess as might thereafter be filed in pursuance of the statute or an order of the court, and to certify and declare the persons appearing upon such subsequently filed returns to have received rhe greatest number of votes. This mandatory part of the order for mandamus, as will be seen by an examination of the papers of the appellants used on this motion, had nothing upon which to operate. No returns from the county of Dutchess were thereafter received and filed in pursuance of the statute or any order of the court. On the contrary, the clerk of Dutchess county was by a valid and unreversed order of the court forbidden and restrained from filing, or attempting to file, any further returns with the board of state canvassers. The effect of the several orders which prevented the filing of any other or further returns was not considered on the former appeal, and they were not at that time before the court, but were first used and presented to the court on the hearing of the' application to punish the appellants, as for a contempt of court. .The first was an order made by Mr. Justice Eursman, dated December 14, 1891, directing the county canvassers of Dutchess county to show cause before the special term to be held in the city of Brooklyn, on the 19th day of December, why an order should not be made granting a stay, and, among other things, why an order should not be made directing the county clerk of Dutchess county to refrain from sending a certified copy of the statement of votes cast for the office of senator; and the order concludes in these words: “In the meantime, let all proceedings under and by virtue of said order be stayed, and the said county clerk of Dutchess county is hereby ordered not to transmit any copy of said statement hereinbefore mentioned until the further order of this court.”

The motion directed to be made pursuant to this order to show cause seems to have been denied by Justice Cullen, holding the Brooklyn special term, on the 19th day of December, and either the order vacated or motion denied; and, on the 21st of December, an order of the special term, sitting in the first district, was granted, which was followed by two successive orders granted in the third department, of which the following are copies:

“At a special term of the supreme court of the state of New York held in and for the city and county of New York at the courthouse in the city of New York, on the 21st day of December, 1891.

“ Present: Hon. George L. Ingraham.

“ The People ex rel. Edward B. Osborne agst. The Board of Supervisors of the county of Dutchess, sitting as a board of county canvassers.

“ On reading and filing the affidavit of Delos McCurdy, the order made by Mr. Justice,Cullen, December 19, 1891, and all the papers and proceedings herein, it is ordered that the defendants, the board of county canvassers of Dutchess county, show cause before the special term in Kings county, at the courthouse in Brooklyn, on the 23d day of December, 1891, at 10 o’clock A. M., why the said order made by Mr. Justice Cullen on December 19, 1891, and entered in the clerk’s office of the county of Dutchess on the 21st day of December, 1891, should not be vacated and set aside; and in the meantime, and until the hearing and determination of said order, let all proceedings on the part of the defendants and of the county clerk of county of Dutchess by stayed, and said county clerk refrain from sending forward to the board of state canvassers the statement of the said board of county canvassers referred to* therein. Service on or before the 22d day December, 1891, shall be sufficient.

“ George L. Ingraham, Justice Supreme Court. “New York, December 21st, 1891."

“ Supreme Court, Albany county.

“The People ex rel. Edward B. Osborne agst. The Board of State Canvassers of the state of New York, and Frank Rice, secretary of state; Edward Wemple, comptroller; Charles F. Tabor, attorney general; Elliot Danforth, Treasurer, and John Bogart, state engineer and surveyor, as members thereof, and each of them, and Storm Emans, county clerk of Dutchess county.

“ On reading and filing the affidavit of Edward B. Osborne and •a stipulation made and entered into by Matthew Hale, of counsel in the proceeding, for a writ of mandamus against the. board of state canvassers of the state of New York, together with the printed case on appeal from the order granting a writ of mandamus made on the 7th day of December, 1891, by which it appears that a return was made, and filed by the county board of canvassers of Dutchess county with the board of state canvassers of the state of New York, in and by which it appears that Edward B. Osborne, the relator herein, received a majority of votes cast for senator in the fifteenth senatorial district in the county of Dutchess, as shown by said'return, and that a stipulation was made and entered into by and on behalf of the relators representing the interests of the persons opposed to the election of Edward B. Osborne as senator, in and by which it was agreed that the proceedings of the state board of canvassers relating to the canvass of votes for senator in the said fifteenth district should be suspended until the decision of the court of appeal upon such appeal, provided such decision should be made prior to December 80, 1891, and further providing that such canvass should be completed and the certificates of the result of election should be made and issued by the state board of canvassers, in accordance with the decision of' the court of appeals in the cases specified in the stipulation, the proceedings relative to the election of the said Osborne being one of said cases so submitted; and it further appearing that there has been a pretended copy of another return offered to be filed with the board of state canvassers, and that the county clerk of Dutchess county has in his possession another return made by the board of canvassers of Dutchess county, which is sought to be offered to be filed with the state board of canvassers, in violation.of such stipulation: Now, on motion of J. Newton Fiero, of counsel for Edward B. Osborne, relator, it is ordered that the board of state canvassers of the state of New York and Storm Emans, county clerk of Dutchess county, show cause at a special term of this court to be held at the courthouse in the city of Albany, on the 29th day of December, at 11 o’clock A. M., why a writ of peremptory mandamus should uot issue out of and under the seal of this court,■ commanding and' requiring the said board of state canvassers to canvass the return of the board of county canvassers of the county of Dutchess, filed with it, on or.aboutf the 23d day of November, in case the court of appeals shall reverse the order appealed from heretofore set forth, and declare the result of the election for senator in the fifteenth senatorial district in -accordance herewith, and that Storm Emans, county clerk of Dutchess county, retain in his possession any other return made by such county canvassers, and refrain from filing, or attempting to file, the same with the state canvassers, or any member thereof, it appearing that by reason of the fact the canvass must be completed by the 30th day of December, that notice of eight days cannot be given to such board, and that shorter notice is necessary; and in the meantime let the said Storm Emans, county clerk, his agents or servants, be stayed from filing, or attempting to file, said return with such state board of canvassers, or any of them, and he is hereby forbidden from parting with the same, or allowing it to be removed from his custody or control.

“Stephen L. Mayham, Justice Supreme Court.”

The proof shows that this order was made on the 23d day of December, 1891.

“At a special term of the supreme court held in and for the state of New York at the city hall in the city of Albany, on the 30th day of December, 1891.

“Present: Hon. Stephen L. Mayham.

“The People ex rel. Edward B. Osborne agst. The Board of State Canvassers of the state of New York, and Frank Rice, secretary of state; Edward Wemple, comptroller; Charles F. Tabor, attorney general; Elliot Danforth, treasurer, and John Bogart, state engineer and surveyor, as members thereof, and each of them, and Storm Emans, county clerk of Dutchess county.

“An order to show cause having been heretofore made returnable in this matter at a term of this court appointed to be held at the city hall in the city of Albany, on the 29th day of December, 1891, at 11 o’clock A. M., among other thing, why a writ of peremptory mandamus should not issue out of, and under the seal of, this court, commanding and requiring Storm Emans, defendant herein, county clerk of Dutchess county, why he should not retain in his possession any other return made by the county canvassers of Dutchess county than that heretofore filed, and refrain from filing, or attempting to file, the same with the board of state canvassers, or any member thereof, and the matter having been adjourned until this day, now, on motion of J. Newton Fiero, counsel for relator, Hon. Isaac H, Maynard, deputy attorney general, appearing on behalf of the board of state canvassers of the state of New York, making no objection thereto, it is ordered that a peremptory writ of mandamus issue out of, and under the seal of, this court, directed to Storm Emans, county clerk of Dutchess county, commanding and requiring ,him to retain in. his possession any return made by the board of county canvassers of Dutchess county other than that filed with the board of state canvassers, and refrain from filing, or attempting to file, any return now in his possession with the board of state' canvassers, or any member thereof.

“ Stephen L. Mayham, Justice Supreme Court.”

On the 29th day of December, the court of appeals handed down their decison on the appeal from the order of the general term, affirming in part the order of the special term of December 7th; and after the promulgation of the opinion of the court of appeals, on the same day, the appellants proceeded to canvass the Mylod returns, they being the only returns of the county canvassers of the county of Dutchess at that time on file in the secretary of state's office. *No appeal seems to have been taken from orders above set out, or either of them, nor does it appear that either of said orders has been set aside or modified. With these orders in full force, and witli affidavits used by the appellants in opposition to this motion, the case seems materially changed on. this appeal from the manner in which it appeared on the former appeal.

The answer in this case to the moving papers on this motion consisted of a sworn statement, verified by the oath of each of the state canvassers, who are the appellants herein, by a separate affidavit of verification, which, in the most comprehensive way and in detail, denies every allegation of fact set out in the moving papers tending to show any conspiracy on the part of the appellants, or any contumacious violation of the order of the special term of this court, unless the canvassing of the Mylod returns without the certificate of the county clerk of Dutchess county was such violation ; and the answer expressly sets up that, according to 'the interpretation of appellants and that of the attorney general, the opinion and decison of the court of appeals did not prevent or prohibit the canvass of the Mylod returns; and in canvassing the Mylod returns, which were the only returns presented to them as state canvassers, they, and each of them, acted in the utmost good faith in the discharge of a public duty, and interpreted the stipulation, opinion, and decision according to their best judgment, after a careful examination and consideration of the whole matter; and they deny any disrespect to the court or its order, or any intention to disobey or disregard such order.

The question argued on this appeal by the attorney for the appellant to the effect that this court had not obtained jurisdiction of this matter by the filing of a remittitur from the court of appeals, making the judgment of that court the judgment of the supreme court, need not be considered here, as a majority of this cpurt held adversely to that contention on a former appeal. Nor need we consider here the effect of the stipulation by which the validity of the Mylod returns was submitted to and considered in the court of appeals. We are brought directly to consider the right, under all the circumstances of this case, to punish these defendants for an alleged contempt of an order of the special term for a mandamus, which was modified on appeal, and upon which no mandamus ever issued. These appellants, acting as public officers, were, on the handing down of the decision of the court of appeals, in the afternoon of December 29th, and on the verge of the expiration of their official terms, called upon, first, to interpret that decision and opinion, and promptly to act in the discharge of their official statutory duty in canvassing the returns and declaring the result of that election, according to their best judgment, guided by the statutes, the orders and decisions of the court, honestly and in good faith. The proof of this motion shows that they (fid. That proof which appears by their return does not appear to be contradicted or challenged by any proof in the case, as most of the allegations of the relator are on information and belief, and the court, granting the order appealed from, finds that the alleged disobedience to the order of December 7th was not willful. Under such circumstances, I do not see how the appellants can be adjudged guilty of a contempt of court.

The determination of this question involves grave and substantial rights, and cannot be disposed of as a matter of sentiment. High public officials, charged with the performance of important public duties, are involved in this cáse; and, while no position can give to an official immunity for violation of his public official duty, still, when called upon, in the discharge of that duty, to exercise judgment, he should not be held amenable to the summary process of the court, in a proceeding to punish him for contempt, without the most positive and convincing proof of his contumacious disregard of an order of the court which has in clear and unmistakable terms directed his action in a given case. In the case at bar the order of the special term of Decembér 7th had been modified by the court of appeals before the performance by the appellants of the act which is alleged as a contempt, so that that order, as it was originally made, was not in force; nor had any order embodying the decision of the court of appeals been'made and served upon the appellants at that time. There was, therefore, at the time of canvassing the returns of Dutchess county by the appellants, no order of the court operating upon the state canvassers, directing their action, and consequently no order was violated by them. Before a party can be adjudged guilty of a contempt for the violation of a writ or order of the court, it must be made to appear that the writ or order with the violation of which they were charged was served upon such party, or that, with the knowledge of the existence of such writ or order, he intentionally evaded or avoided the service of the same upon him. In the case at bar no writ of mandamus ever issued, and consequently none was ever served. As we have seen, the order of the special term had been modified, and no modified order was made or served on the appellants at the time of making the canvass. í’he making of the canvass, therefore, was not a violation of any existing writ or order of the court. The canvass was made on the 80th December, 1891, and on the 29th of that month the court of appeals directed as follows : “ It is ordered and adj udged that the order of the special term herein dated December 7, 1891, and the order of the general term affirming the same, and the same writ itself, be modified by striking out the provisions requiring a return to be certified, to come from the county clerk of Dutchess county, and issued under his seal; and that the said order, as appealed from, as so modified, be affirmed, without cost.”

The case does not show, nor is it contended, that any order modifying the original order or writ was ever served on the appellants, or either of them ; and yet it must be conceded that the only order authorized in the case at the time of making the canvass was the modified order, as spScified and directed in the order of the court of appeals. The rule is universal and elementary that personal service of the original process claimed to be disobeyed is necessary to bring the party in contempt. Jones v. Marsh, 4 Term R. 464; Hollingsworth v. Duane, 1 Wall. Sr. 141; Fed. Cas. No. 6,617; Oswald Contempt, 104; Knight v. Carey, 1 Cow. 39; Ex parte Wallis, 6 Cow. 581; Holcomb v. Jackson, 2 Edw. Ch. 620; Bank v. Kibbe, 7 Cow. 424. It is true that article 3 of title 6 of chapter 8 of the Code of Civil Procedure prescribes the method of serving papers in an action, and authorizes, in most cases, service of a copy on the attorney of the party to be served; but § 802, in that article, excepts papers to bring a party into contempt, leaving that class of papers to be served as the practice heretofore existed.

In Sandford v. Sandford, 40 Hun, 540; 2 St. Rep. 133, it was held that a party cannot be regarded guilty of a contempt for failing to comply with the directions contained in an order until a copy thereof has been served upon him. In McCaulay v. Palmer, 40 Hun, 39, it was held that, in the absence of proof showing a service of the order upon the defendant personally, he could not be adjudged guilty of contempt for not complying with it. In that case, Daniel, J., in delivering the opinion of the court, says: “To bring a party into contempt, it is the practice of the court to require the order which he is charged with violating to be served personally upon him. This is to be done by delivering to him a copy of the order, and at the same time exhibiting to him the original. The consequences of a contempt are serious and often severe in the punishment pronounced by the court, and, before a party can be subjected to them, a strict compliance with the practice has been required to be observed. The object of the rule is to furnish the individual himself with an ample opportunity to understand the charge made against him, and prepare to meet it as best he may. If is a sound and salutary rule for the protection of the party, the observance of which cannot be dispensed with, and it has accordingly been held by the general term, in this department, that the order the party may be charged with violating must be served personally upon him before proceedings can be successfully instituted and carried on to punish him for the contempt arising out of its disobedience.”

And the judge cites, in support of his opinion, Mayer v. Noll, 56 How. Pr. 214.

But it is insisted by the relator that the appellants were guilty of a contempt in violating the order of December 7th, and that the order was served, by the delivery of. a copy to each of the appellants. But the difficulty with that contention is that the order had no mandate addressed to the appellants. It only directed the issuance of a writ, which was to contain certain commands and conditions, and .that writ was never issued or served on the appellants. The service of the order, while it was proper to give the appellants notice of the proceedings, and thus entitle them to appeal or move to vacate, did not per se operate as a mandamus, or contain any direction or command enforceable against them, except through the operation of the writ, which it authorized. Arn> Other construction would be giving to an order for a mandamus all the effect of the writ itself,' and render the issuance of the Writ unnecessary and nugatory. No such practice could obtain, because to a writ of mandamus there must be a return, as required by §§ 2073 and 2074 of the Code of Civil Procedure, aud 'no return could be made to an order for a writ. ' No writ having been issued in this case, there can be no contempt for a violation of the order, for the reason that the order only commands the defendants through the medium of the writ. Before a party can be adjudged guilty of a contempt, he must be served with the writ, and have the opportunity, under § 2075 of the Code, to make any of the motions indicated in that section, or make, or refuse to make, a return to the same; and it is upon that return or refusal, or upon his refusal or neglect to obey the command of the writ, that he may be punished as for a contempt. The same is true of the modified order under the decision of the court of appeals. That decision required a modification of the order and of the writ.’ In that case, as in the original order of the special term of December 7th, no writ was ever issued or served; but as the modified order which was directed to be made under the decision of the court of appeals superseded the original order, which it modified, so the .writ which was directed to issue under the original order was directed to be modified in accordance with that decision, and superseded the writ directed to be issued by the original order. Hence the defendants could only be punished for disobedience to the command of the writ directed to be issued under the modified order, and that writ never issued. It. was expressly held in U S. v. Kendall, 5 Cranch, C. C. 385, Fed. Cas. No. 15,517, that: “Upon the affirmance by the supreme court of the United States of the judgment of the circuit court awarding a peremptory mandamus, and upon the receipt of the mandate by the supreme court commanding that such further proceedings be had in the court below as, according to the right and justice and the laws of the United States, ought to be had, the court will not issue an attachment against the defendant for contempt in not obeying the former peremptory writ of mandamus, which was suspended by the writ of error, and will issue an alias writ of peremptory mandamus."

The principal involved in the decision, the syllabus of which is quoted above, covers this case, although this case is much stronger for the appellant than that. In that case it does not appear that the judgment or order appealed from was modified on appeal; but it establishes the proposition that the decision on appeal supersedes the order appealed from, and that the liability of the party to be punished for contempt arises out of, and must depend upon, the order or decision of the appellate court.

But it is said that the defendants are estopped by their stipulation, voluntarily entered into, from availing themselves of the position that no writ of mandamus was issued, either under the order of the special term or the modified order directed by the court of appeals. I cannot agree with that contention. I find nothing in that stipulation which renders these appellants amenable to punishment for an alleged violation of a mandate of a writ never issued, or of an order for the issuance of such a writ. The entering into a stipulation before the writ was issued cannot take place of the writ, especially when the stipulation made no provision for the issuance of such writ.

It is insisted by the learned.counsel for the appellants that this is an application to punish criminal contempt for a willful disobedience of an order of the court, and that, when the special term reached a conclusion that the alleged disobedience was not willful, the application should have been dismissed. It is quite apparent that the proceedings instituted for the punishment of the defendants for an alleged violation of the order of the court was for a criminal contempt, under § 8 of the Code of Civil Procedure, the punishment for which is provided for in § 9 of the Code. That it was a proceeding under §§ 8 and 9, above referred to, is manifest, not only from the petition and proof, but from the notice of motion upon which the proceedings were had at the special ■ term, which notice is as follows:

“ Supreme Court.

“ The People ex rel. John I. Platt and Another agst. Frank Rice el al.

“ Please take notice that hereto annexed is a copy of an order entered herein at the general term of this court, and filed in the office of the clerk of Albany county, on December 21, 1893 ; and also hereto annexed are copies of the affidavits therein mentioned, the originals of which affidavits were filed in the office of the clerk of said oounty, as mentioned in the said order of the general term, on the day therein stated. You will further take notice that upon your failure to show cause, as required by the said order of the general term herein, a motion upon said affidavits will then and there be made,' to wit: At a special term of this court, to be held in the county court house in the city of Hudson, in the county of Columbia, on the 13th day of January, 1894, at the opening of the court on that day, or as soon thereafter as counsel can be heard, for an order adjudging you, and each of you, respectively, a sentence of thirty days’ imprisonment in the county jail of Albany county, and a fine of $250, or such other sentence or fine as to the court may seem proper. “Yours, etc.,

“Leavitt, Wood & Keith,

“Aitys. for the Delator.

“Dated December 27th, 1893.

“ To Messrs. Frank Bice, Edward Wemple, Chas. F. Tabor, Elliot Danforth, John Bogart.”

No claim for personal relief to the relator is made in this action or proceeding. The relator makes the application only as a citizen, having a common interest with all other citizens having no personal claim to, or pecuniary interest in, the office of state senator, which was the subject leading up to this controversjn The punishment sought to be inflicted by the notice of motion was that prescribed in § 9 for offenses committed under the provisions of § 8 of the Code of Civil Procedure, which is a fine running to the people, and imprisonment, as a punishment for an alleged offense against the people, and not one under § 14 of the Code, for indemnity to the party in a civil action, when the rights and remedies of the party are impaired or prejudiced, in any of the cases mentioned in that section. But it is answered to this contention that the notice of motion and papers set forth the facts, and that it was for the court to determine whether the facts justified in finding either a civil or criminal contempt. This, it seems to me, is too latitudinous a construction of the power of the court in a summary proceeding of this character, involving the property, character and liberty of defendants, especially when the court is acting under statutory authority. The party brought into court to answer in a proceeding of this character should be apprised of the character of the charge made against him, not only, but should be tried only upon the charge made against him, and required to defend only against such charge. The courts of this state have repeatedly recognized the distinction between civil and criminal contempts.

In People v. Cowles, 4 Keyes, 45, Woodruff, J., in delivering the opinion of the court of appeals, says: “ The distinction between a commitment upon a precept issued for disobedience of an order for the payment of a sum of money and a commitment upon a conviction of misconduct, punishable by fine and imprisonment, is very clearly indicated in the statute, and has been repeatedly declared by the courts. The proceedings are unlike, and the proceedings and penalties imposed different. The pro-, cess in the former case [civil] is strictly and purely remedial; in the latter [criminal] it is punitive, and in most instances purely so.”

In People ex rel. Negus v. Dwyer, 90 N. Y. 406, Finch, J., in discussing the question of contempt, says: “The Bevised Statutes distinguished and the Code of Civil Procedure preserves the distinction between criminal contempt and proceedings for contempt in the civil cases.”

The court in this case holds that a willful violation of an order is a criminal contempt. In this case, as has been observed, the charge in the complaint and notice of motion is of a willful contempt.

The same distinction between civil and criminal contempts is recognized in People ex rel. Munsell v. Court of Oyer and Terminer, 101 N. Y. 245, wherein Judge Pinch, in an elaborate opinion, points out the distinction in the proceedings, object and method of enforcement of and punishing civil and criminal contempts.

In King v. Barnes, 113 N. Y. 480; 23 St. Rep. 263, Pinch, J., again, in discussing the difference between criminal and civil con-tempts, says: “It is true, as we have elsewhere said, that the main line of distinction between criminal and civil contempts is that one is an offense against public justice, the penalty of which is essentially punitive, while the other is an invasion of private rights, the penalty for which is redress or compensation to the suitor. But we also pointed out this distinction, while marked and obvious, was not complete and perfect, since behind criminal contempts often stood some trace of private rights, and in civil contempts was occasionally to be found the element of punishment, merely as distinguished from the bare enforcement of a remedy.”

It seems quite clear from the opinion of the court of appeals in this case, when the same was before it on a former appeal, that that court treated the relators as representing the general public, and not any private person or private right. People ex rel. Daley v. Rice, 129 N.Y. 449; 41 St. Rep. 932. I am therefore clearly of the opinion that these proceedings must be regarded as for a criminal contempt, which can only be sustained upon the theory and proof that the defendants willfully violated the order of the court, and that the learned judge at special term, on reaching the conclusion that the defendants had not willfully disobeyed the order of the court, should have dismissed the proceedings, and that it was error to compel the defendants to indemnify tlie complainant as a private citizen for his costs; and that that conclusion is not changed by the recital in the order that the defendants’ conduct was calculated to, and actually did, defeat, impair, and prejudice the rights and remedies of the relators, and it cannot convert this into a proceeding to punish for a civil contempt Clearly, if the court had imposed a fine under the notice of motion, such as is asked for in that notice, tire relators had no claim personally against the defendants, on which it could have been applied under the provisions of § 14 of the Code of Civil Procedure. It was against a criminal contempt, therefore, that the appellants were asked to defend, and their successful defense of that entitled them to a denial of the motion.

In Sherwin v. People, 100 N. Y. 358, Miller, J., in discussing the question of contempt, uses this language: “ It should be averred and made to appear, that the willful disobedience alleged was, within the terms of the statute, a direct, clear disobedience of the process or order of the court.”

In People v. Gilmore, 26 Hun, 1, it was held that, to warrant a punishment as for a criminal contempt, the mandate, process, or order must have been lawfully issued.

In Sherwin v. People, supra, the court quotes with approbation the following language: “A solid and obvious distinction exists between contempts, strictly such, and those offenses which go by that name, but which are punished as such only for the purpose of enforcing some civil remedy.”

Without pursuing the question involved in this appeal further, I am satisfied that, within the views herein expressed, the learned judge at special term erred in granting the motion, and that the order appealed from should be reversed, with costs.


author: Per Curiam.

text:
    The People ex rel. Western Electric Company, App’lt, v. Frank Campbell, as Comptroller, etc., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed September 27, 1894.)

    1. Taxes—Corporation—Foreign.
    A foreign corporation, which, sells goods manufactured by it in this state, is taxable here.
    2. Same—Review—Burden.
    The burden of proof is on the relator in a proceeding to review an assessment as excessive.
    Certiorari to review the decision of the comptroller, on the application of the relator for a revision and resettlement of certain taxes.

      Cary & Whitridge (Edwin T. Bice, of counsel), for relator ; T. H. Hancock,, Atty. Gen., and John W. Hogan, Hep. Atty. Gen., for resp’t.
   Per Curiam.

The papers show that the business of the relator carried on in this state during the years 1889, 1890, 1891, and 1892, was not wholly that of manufacturing. It clearly appeal's that besides its manufacturing business it was engaged in selling in New York city goods manufactured by it out of the state, and articles not of its oiyn manufacture. • Hence, as we have already held in another case, the relator was liable to the tax, under the provisions of chapter 542 of the Laws of 1880, as amended by the Laws of 1881, 1885, and 1889.

The only question, then, to be considered in this case is whether the tax imposed by the comptroller was excessive. The burden was on the relator to show the error of the comptroller; if any, in imposing the tax of which it complains. People ex rel. Am. C. & D. Co. v. Wemple, 129 N. Y. 558, 565, 566; 42 St. Rep. 400; People ex rel. Osgood v. Commissioners, 99 N. Y. 154; Laws 1889, chap. 463. We have examined the affidavits, papers, and evidence submitted to the comptroller on the motion for a revision, and, without attempting to discuss the question of fact involved, are unable to hold that the evidence so submitted made it apparent that the determination of the comptroller as to the amount of capital stock of the relator employed in this state during the years above mentioned was erroneous. The determination of the comptroller affirmed, and the writ of certiorari quashed, with costs.


text:
    John T. Barnard, as Temporary Administrator, etc., Resp’t, v. Susan E. Hall et al., Impleaded, etc., App’lts.

      (Court of Appeals,

      Filed October 16, 1894.)

    Costs—Extra allowance.
    Where the complaint in an equity action was dismissed on trial, but on appeal the judgment was reversed, the order of general term affirmed by court of appeals and judgment absolute ordered for plaintiff, the special term has power, upon filing the remittitur, to .award costs and an extra allowance.
    Appeal from order of the general term of the supreme court in the second judicial department, which affirmed an order of special term directing judgment in favor of plaintiff to be entered upon a remittitur of the court of appeals.

      Boothby & Warren, for app’lts; B. B. Barnum and George G. Barnard, for resp’t.

      Affirming 59 St. Rep. 883.

   Per Curiam.

The action was brought by plaintiff’s intestate to reform a certain trust deed relating to her property and upon her death, it was continued by plaintiff. At the special term the trial resulted in a dismissal of the complaint; but, upon appeal, the general term reversed the judgment in favor of the defendant and ordered a new trial, with costs to abide the event. From their order the defendants appealed to this court, where the judgment was affirmed, and, under the stipulation of the defendants, judgment absolute was ordered by this court for the plaintiff, with costs. Barnard v. Gantz, 140 N. Y. 255; 55 St. Rep. 541. After filing our remittitur, the plaintiff moved for entry of judgment thereon and for an extra allowance of five per cent. An order was entered, which, after making the judgment of this court the judgment of the supreme court, proceeded specifically to order the relief to which the plaintiff was entitled under our decision, and, further, granted “ an extra allowance of $1,100, in addition to costs which are to be hereafter taxed by the clerk," etc. The defendants and appellants insist that the special term had no right to order .costs, or an extra allowance, and that in so ordering and in formulating the equitable relief, which the plaintiff should have, the court below has gone beyond and has not conformed exactly to, the order of this court. Under our order, the costs awarded were the costs in this court only; but, as the action was one where costs were in the discretion of the court, it was proper for the court below to award them in ordering the final judgment for the plaintiff, with which our decision entitled him to. The discretion, with which the court is invested by the statute, could competently be exercised then. Nor was the granting of the extra allowance an erroneous exercise of power. The terms of our order did not preclude the court below from awarding the costs or the allowance. It' was within its discretion to award them, upon the new trial resulting successfully to the plaintiff if it had heen had, and under the course taken by the defendants, upon the recovery by the plaintiff of an order for an absolute judgment, the court still had the power to determine the questions of costs and of allowance. The amount of the allowance was in the discretion of the court and there has been no abuse in its exercise. As to the specific equitable relief granted by the court below, in its order for judgment, we think it was in conformity with our decision and correctly carried it into effect.

The order appealed from should be affirmed, with costs.

All concur. Order affirmed. .


author: Bartlett, J.

text:
    Michael Bowen, Resp’t, v. Michael Sweeney at al. Impleaded, etc., App’lts.

      (Court of Appeals,

      Filed October 16, 1894.)

    1. Trial—Jury—Partition.
    In an action for partition, the issues are triable by a jury as matter of right.

      2. Same.
    Though, in such case, the court directs one or more questions of fact to be tried at circuit, the facts found by the jury are binding upon the special term.
    8. Same.
    Such trial is not by the court without a jury, within the meaning of § 1001 of the Code.
    Appeal from order of the general term of the supreme court in the first judicial department, which dismissed a motion by defendants for a new trial,

      William H. Arnoux and Francis 0. Devlin, for app’lt; 'Flamen B. Gaudier, for resp’t.
   Bartlett, J.

This is an appeal from an order of the general term of the first department dismissing appellant’s motion for a new trial. This is an action for partition, and it was ordered that the issues of fact be sent to the circuit, and certain questions were framed for the jury to answer. Trial was had, and the jury 'answered the questions propounded. Upon the written consent of all the parties it was directed#that the further hearing of the action be proceeded with before the' court at special term. Thereupon the action came on for further hearing at special, term; the court made findings of fact and conclusions of law, including in the former the findings of the jury, and an interlocutory judgment was entered thereon. The appellants then moved at general term, upon the pleadings, verdict, findings and other papers and proceedings, for a new trial. The general term dismissed the motion upon the ground that the court had no jurisdiction to entertain the same.

The sole question presented in this appeal is whether the appel lánts were entitled to make the motion under § 1001 of the Code of Civil Procedure. '

The material portion of the section reads as follows : “ Where the decision or report rendered upon the trial of an issue of- fact by the court without a jury, or by a referee, directs an interlocutory judgment to be entered ; and further proceedings must be taken before the court, or a judge thereof, or a referee, before a final j udgment can be entered; a motion for a new trial upon one or more exceptions may be made at the general term after the entry of the interlocutory judgment, and before the commencement of the hearing directed therein. * * * ”

Does this record disclose the trial of an issue of fact by the court without a jury ? This being an action for partition the issues were triable by a jury as matter of right. Code, § 1544. In an ordinary equitable action, where the issues are not triable by a jury, the court may, upon its own motion, direct one or more questions of fact to be tried at the circuit, but it can disregard the findings of the jury, and proceed with the cause as if its aid had not been invoked. Acker v. Leland, 109 N. Y. 11; 14 St. Rep. 23.

In the case at bar the court was vested with no such discretion, and the facts found by the jury were binding upon the special term. Jones v. Jones, 120 N. Y. 599; 31 St. Rep. 940.

We are of opinion that the trial in this case was not by the court without a jury, within the meaning of § 1001 of. the Code of Civil Procedure, and that the order appealed from is right and should be affirmed.

The order should be affirmed, with costs.

All concur. Order affirmed.


author: Gray, J.

text:
    John S. Cronin, App’lt, v. Johanna C. Crooks, Resp't.

      (Court of Appeals,

      Filed October 16, 1894.)

    Attchmbnt—Warrant.
    An alternative statement of the grounds for an attachment in the warrant is fatally defective.
    Appeal from order of the general term of the supreme court in the third judicial department, which affirmed an order of special term vacating a warrant of attachment.

      J. K. Long, for app’lt; Frank S. Black, for resp’t.

      Affirming, 57 St. Rep. 475.

   Gray, J.

The warrant of attachment, which was granted in this action, was based upon an affidavit which set forth a certain disposition made by the defendant of her property; which deponent-alleged to have been fraudulent, and whereby she had assigned and disposed of her property with intent to defraud her creditors and to hinder, etc., the plaintiff; in the collection of his demand against her. Without considering the sufficiency of the affidavit, we think it very clear that the warrant was defective. The warrant recited that the defendant “ has assigned and disposed of, or is about to assign or dispose of her property.” The provisions of § 641 of the Code of Civil Procedure were not complied with. They provide, among other things, that the warrant “ must briefly recite the ground of the attachment.” This warrant stated no ground; for to state in the alternative, is to state neither the one nor the other fact. Such an alternative statement of grounds results in a mutual, exclusion.

The general terms of the first and fifth departments have construed the section of the Uode in the same way as has the general term below, Johnson v. Buckel, 65 Hun, 601; 48 St. Rep. 924; Hale v. Prote, 75 Hun, 13; 57 St. Rep. 224; Dintruff v. Tuthill, 43 St. Rep. 704, and we think the construction, which has been thus generally given, is right. Our review of this order is justified by the insertion in it of the grounds for the affirmance. A question of law only' was raised, as to the power of the court to grant such a warrant.

The order should be affirmed, with costs.

All concur. • Order affirmed.


author: O’Brien, J.

text:
    Leocadie A. V. Cassagne, App’lt, and Resp’t, v. James A. Marvin et al., as Trustee, etc., App’lts and Resp’ts.

      (Court of Appeals,

      Filed October 9, 1894.)

    Corporation—Stock—Transfer.
    The directors of a corporation cannot resist the application of a stockholder to transfer his stock, by setting up a claim that the corporation, by reason of a„ suit brought by him, was obliged* to pay out large sums for counsel fees and expenses in the litigation, which were not covered by the taxable costs.
    Cross-appeals from a judgment of the general term of the supreme court in the third judicial department, entered upon an order, which affirmed a judgment in favor of defendants entered upon a decision of the court on trial at special term.

      Matthew Hale, for pl’fif; 0. 0. Lester, for defts.

       Reversing 51 St. Rep. 466.

   O’Brien, J.

In the year 1875 a mortgage of half a million dollars upon the United States Hotel at Saratoga, given to secure negotiable bonds to that amount then held by various parties, was in process of foreclosure. Judgment was entered in the action and the property was advertised for sale by a referee for .the 1st day of May, 1875. On the fifteenth day of April, preceding the day appointed for the sale, certain holders of the bonds, in order to prevent a sacrifice of the property, and for the purpose of protecting each other, entered into an agreement in writing with the defendants, who also held bonds, whereby the bondholders signing the instrument constituted the defendants trustees for the protection of their interest in the property. The defendants were thereby authorized as such trustees to purchase the property under the decree and to hold the legal title thereto as absolute owners, and to- sell and convey and incumber the same by mortgage, lease or otherwise. In' case the property was purchased by the trustees thé bondholders subscribing the instrument promised and agreed with the trustees and each other that they would accept and receive the property so purchased, subject to certain chattel mortgages on the personalty in payment and satisfaction of their shares of the purchase price, and they released tbe trustees and tbe referee from all other and further payment. The subscribers also agreed to advance to the trustees sufficient funds to pay off and discharge certain liens upon the property, not extinguished by the judgment, and the interest in the proceeds of the sale of such bondholders as refused to become parties to the agreement. The trustees themselves were holders of bonds, and they were permitted by the agreement, which was not to take effect till holders of bonds to'the amount of $400,000 had executed it, to have all the rights in the property, in proportion to their interests, as the others. In pursuance of the agreement, the defendants purchased the property at the referee’s sale and took a conveyance ,of the same. Afterwards, and on the 10th of May, 1875, the persons who had executed the above described instrument, including the trustees, signed another paper ratifying and-confirming the trust expressed in the former writing, expressly admitting the validity of the trust and waiving all matters and things that could impeach or invalidate the same. By virtue of these instruments the defendants entered upon the care and management of said property and have ever since continued to act in that capacity. The trustees, under an arrangement with the persons interested in the property held by them, adopted the practice of issuing to each of them a certificate, transferable in form which, upon its face, expressed the interest which the person to whom it was delivered had in the property. In November, 1875, the defendants issued to one Eugenia Boche a certificate, No. 55 of the series, in which it was stated that she was entitled to a beneficial interest in the United States Hotel property at Saratoga, the legal title of which was held by them, amounting to $997, upon the basis that the interest of all the beneficiaries amounted to $454,505, subject to a mortgage lien of $260,000, and that she was entitled to share pro rata with the other beneficiaries in the net rents and profits and entitled to her proportionate share of the proceeds in case of a sale. There was a printed form on the back of this certificate for the purpose of enabling the holder to transfer the same in the manner in common use with respect to certificates of stock, and a note appended to the effect that a purchaser might receive a new certificate upon the return of this to the trustees properly assigned. Mrs. Boche was one of the subscribers to the agreement under which the defendants entered into the control and management of the property, and similar certificates were issued by the defendants to the other parties to these agreements for the purpose of showing their respective interests in the property. On November 24, 1883, Eugenia Boche assigned in due form this certificate to the plaintiff, using for that purpose the printed blank above described, and the plaintiff thereupon requested the defendants to transfer the same upon their books and to issue to the plaintiff a new certificate upon its surrender, and the defendants, after some correspondence, refused to comply with this request. ‘ The plaintiff agreed to pay a valuable and full consideration for the certificate and more than the face value stated thereon, believing,that the defendants would transfer the same on the books and issue a new certificate therefor. Some time in the year 1883 Eugenia Roche commenced an action against the trustees defendants to recover a dividend of $79.76, payable on'the certificate held by her, as her share of the rents and profits of the property for the previous year. On a trial it was found that defendants had paid the dividend to her agent, and judgment was entered in the action for the defendants, with costs, which were taxed and adjusted at $69.72, January 17, 1884. These costs were paid by the unsuccessful plaintiff in the action. An appeal was taken from this judgment to the general term, and it was there affirmed, with $81.62 costs, May 27, 1885. It has been found by the trial court that the defendants incurred expenses in defending this action, over and above the costs taxed in their favor, in the sum of $254.48, and fpr defending the appeal, over and above costs, in the sum of $209.60; and they insist that the certificate or interest held by the plaintiff and involved in the litigation is chargeable with such expense. The purpose of this action was to compel the defendants to transfer the interest represented by certificate No. 55, standing on defendants’ book in the name of Eugenia Roche, to the plaintiff, who succeeded to her title by the transfer of the certificate onNovember 24,1883, and to issue a new certificate in the name of the plaintiff. The defense, as I understand it, rests upon two propositions: (1) That the trust attempted to be created by the instruments referred to is inoperative and in valid. (2) That the expenses of the litigation between the original owner of the certificate and the defendants, over and above the costs paid, together with the costs of the appeal which are unpaid, are in equity a lien or charge upon the interest represented by the certificate which the defendants are entitled to have paid before transferring the interest on the books or issuing a new certificate. There is no finding that the transfer'to the plaintiff of November 24, 1883, was in fraud of any claim which the defendants then had against the original holders of the certificate, or which was in-process of ripening into a judgment, and we must, therefore, assume that on that day the plaintiff, by the execution of the assignment of the certificate, and by the acknowledgment and delivery to her of the same, became vested with the title to that share of the property represented thereby. The certificate was the evidence of the interest which the holder had in the property, and its transfer and delivery by the holder to the plaintiff in the manner prescribed by the trustees transferred the interest in the property. For the purpose of collecting the dividends and to facilitate the sale of the several interests in the market a transfer upon the books and a new certificate might be necessary. In the absence of some sufficient reason or excuse, it was the duty of the defendants to sanction the transfer by recording the same on the books and issuing a new certificate to the. party to whom the interest had been transferred. This was a duty and obligation which the defendants owed to the bondholders or persons who became severally the beneficial owners of the property which the defendants had in their charge. It was necessarily involved in the relations between the trustees and owners created by the written instru-' ments and the course of business adopted and acted upon by all. The plaintiff agreed to purchase the certificate from the original owner on condition that she could procure a new one in her own name. The correspondence with the defendants was such as to induce her to believe that there would be no difficulty on that point, and then she paid for the certificate a sum considerably larger than its face value. Subsequently the trustees concluded to refuse to make the transfer unless the expenses of the litigation were paid. We do not think that the demand of the plaintiff can be successfully defended upon this ground. When Mrs. Roche paid the judgment for costs awarded against her she discharged all legal obligations which the defendants had against her or which they could enforce in any way against her property. In the absence of fraud she had the right to transfer her interest to the plaintiff on the 24th of November. After that date the defendants’ duty to make the transfer and issue the new certificate was to the plaintiff. Coneededly, they had no claim of any kind against her, and whatever their claim against Mrs. Roche might be in law or equity it did not attach to or pass with the certificate. While it may not be necessary now to decide the question, it seems to me that the ex1 penses of the litigation beyond the costs which the defeated party was adjudged to pay were chargeable to the fund or property in the defendants’ hands, and not to the share of the person who instituted the unsuccessful suit. If a stockholder brings an action against the corporation and fails, the payment by him of the judgment for costs puts him in the same relations to it that he had occupied before. The directors could not resist his application to transfer his stock by setting up a claim that the corporation, by reason of the suit, was obliged to pay out large sums for counsel fees and expenses in the litigation which were not covered by the taxable costs.

• Nor do we think that it is necessary in this case to determine the nature or character of the trust. It may or may not be a technical statutory trust, but that question does not concern the defendants in the discharge of the obligations and duties which they owe to the certificate holders. It is not material to inquire where the legal title to the property is, whether in the trustees or the bondholders. The defendants are in possession of the property and in receipt of the rents and profits concededly for the benefit of the parties holding the certificates. They occupy towards them fiduciary relations. One of the obligations which they have voluntarily assumed is that they will do certain things to facilitate the transfer from one to another of the certificates which they issued in order to show what interest the holders had respectively in the property and in order to enable themselves to properly perform the duty of management and care which includes the distribution and payment to the parties in interest of the rents and profits in the form of dividends. This duty and obligation the defendants do not deny. They admit in the broadest terms that they hold the property and are administering it for the benefit of such bondholders as signed the agreement and to whom the original certificates were issued, or their assignees. This was the view taken of the case by the court' below.

So that, whatever view may be taken in regard to the precise legal relations that the defendants bear to the purchased property now held by them, it cannot be denied that by their written agreement and the practical .construction given to it by their own acts, and the course of business adopted by them in the performance of the duties which they assumed, they were under an equitable duty and obligation to furnish to the beneficiaries the certificate containing the evidence of their right. The trustees in the care and management of the property had for many years regularly paid to the original holders of the bonds, or their assignees, dividends from the net rents and profits, and thus their several interests had become the subject of purchase and sale in the market, and the duties of the defendants, from the course of business that had been established under the written instruments, could not well be performed, in the sense that they were understood by all the parties, without instituting methods for the transfer of these interests on the defendants’ books and to such parties as became the owners of the shares from time to time. This manner of transacting the business, if not fairly to be implied from the agreement, was adopted immediately after the defendants entered into the possession and management of the property, and adhered to for many years, so that now it can fairly be said to be-a duty imposed upon the defendants under the written instruments. In short, the relations, duties and obligations existing between the trustees and beneficiaries at the time of the commencement of this action were analogous to those that exist between the stockholders of a corporation and its directors and officers. The learned trial judge, in his disposition of the case felt constrained to follow the general term on a former appeal, Cassagne v. Marvin, 16 St. Rep. 327, but at the same time he recognized the fact that the plaintiff in November, 1883, became the owner in good faith, and for a valuable consideration, of the share of Mrs. Eoche, and that she purchased it in reliance not only upon the established course of business adopted by the defendants themselves, but also upon what was understood as a promise on the part of one of the trustees to make the transfer in the manner required. Finally, the learned counsel for the defendants insists that the complaint in this action is so framed as to give the action the form of one against trustees of an express trust to enforce the specific performance of a duty enjoined upon them as such, and the trust being void under the statute the action must fail. This result, we think, does not follow from the premises assumed. Whether the legal title is now in the trustees or the holders of the certificates the defendants owe certain duties of a fiduciary nature to them which a court of equity may properly enforce. It may be true that the plaintiff brought this action upon the theory that the trust was valid, but all the facts are alleged and found, and if. they entitle the plaintiff to any relief the fact that she proceeded upon some erroneous legal theory applied to the facts will not defeat her right to such relief as the facts may warrant, if it is consistent with the complaint and embraced within the issue. Code, § 1207. The defendants do not deny or repudiate any of their obligations as expressed in the writings or created by the course of business. They simply claim that this particular certificate holder, on account of what had occurred before she purchased it and subsequently, is not entitled to have the transfer made upon the books or to a new certificate.

As we think that this position is untenable for the reasons stated, the judgment must be reversed and a new trial granted, costs to abide the event.

All concur, except Andrews, Ch. J., not sitting, and Finch, J., not voting. Judgment reversed.