text:
    Margaret Walsh, App’lt, v. City of Buffalo, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Statute—Repeal.
    In determining whether the legislative intent is to supersede or repeal by implication certain provisions of a statute by a later one, the object to be attained by the statute is to be taken into consideration, to ascertain whether the purpose of the earlier is comprehended within the provisions of the later statute on the same subject.
    2. Municipal corporations—Notice of intention to sue.
    Chapter 572 of 1886 was not repealed by chapter 105 of 1891, and notice of intention to sue the city of Buffalo, served on the corporation counsel, must state the time and place at which the injuries were received.
    8. Same—Sufficient notice.
    Where such notice is accompanied with a copy of such statement filed with the city clerk, the two papers are to be read together to make a complete notice.
    Appeal from a judgment of nonsuit.
    Perkins & Welch, for app’lt; Frank 0. Laughlin, for resp’t.
   BRADLEY, J.

—The purpose of the action was to recover damages for personal injury of the plaintiff alleged to have been occasioned bv the negligence of the defendant. Her injury was caused by a fall while walking on a sidewalk of a street in the city of Buffalo, on or about February 4,1894. The facts that the injury sustained by her was attributable to the negligence of the defendant, and that she was free from contributory negligence, were conceded at the trial. The only question presented there was whether the plaintiff had filed with the corporation counsel the requisite preliminary notice of intention to commence the action. The city charter provides that:

“ The common council shall audit all claims against the city. Unliquidated claims shall be filed with the city clerk. * * * and if for damages for wrong or injury, when, 'where and how occasioned, and shall be accompanied by an affidavit that the claim and the items of specification thereof are in all respects just and correct, and that ho payments have been made and that no set-off exists, except those stated.” Laws 1891, c. 105, § 15.

The plaintiff’s claim upon which this action is founded, made in the form required by the statute, and duly verified in her affidavit, was served upon the city clerk of the defendant on April 21, 1894.

The city charter also provides that s

“No action or proceeding to recover or enforce any claim against the city shall be brought until the expiration of forty days after the claim has been filed with the city clerk for presentation to the common council for audit in the manner and form aforesaid, and no action shall be maintained against the city for personal injury, unless notice of intention to commence such action shall have been' filed with the corporation counsel within six months after such°cause of action shall have accrued. * ® * All actions brought against the city to recover damages for personal injuries caused by negligence must be commenced within one year from the time of receiving the injuries.” Laws 1891, c. 105, § 16.

This chapter 105 of Laws of 1891 is entitled “ An act to revise the charter of the city of Buffalo.” It contains a provision that “ all acts and parts of acts inconsistent with this act are hereby repealed.” Id. §507.

Prior to this act, and in 1886, a general act was passed, entitled “ An act in relation to certain actions against municipal .corporations.” It provided that:

No action against the mayor, aldermen and commonalty of any city in this state having fifty thousand- inhabitants * * * or over for damages for personal injuries alleged to have been sustained by reason of the negligence of such mayor, aldermen and commonalty, or of any department, board, officer, agent or employee of said .corporation, shall be maintained unless the same shall be commenced within one year after the cause of action therefor shall have accrued, nor unless notice of the intention to commence such action and of the time and place at which the injuries were, received shall have been filed with the counsel of the corporation, or other proper law officer, thereof, within six months after such cause of action shall have accrued.” Laws 1886, c. 572.

This act was applicable to the city of Buffalo. Curry v. City of Buffalo, 135 N. Y. 366 ; 48 St. Rep. 482. At the time of its passage, there was no existing statute requiring the service of a preliminary notice of intention to sue the city of Buffalo, but there were provisions substantially the same in other respects as those of sections 15, 16, c. 105, Laws 1891, in the charter as amended by section 8, c. 479, Laws 1886, which, with the provisions of the general act before mentioned, constituted the requirement to furnish statement of claim to the common council, and notice of intent to sue tó the corporation counsel. Those were the only provisions on the subject until the passage of the revised charter of 1891, which provided for the filing of both the statement of claim and notice of intention to sue, as conditions precedent to the right to maintain an action for damages arising from alleged negligence of the city. The provisions there for. notice of intention to commence action does not direct that the notice contain a reference to the time and place at which the injuries were received, as does the provisions of the general act of 1886.

The plaintiff, in filing the statement with the city clerk and the .notice of intention with the corporation counsel, evidently proceeded upon the direction in the revised charter. The notice was as follows °

“To the Corporation Counsel, Buffalo, N. Y—Sir: You will please take notice that the undersigned, Margaret Walsh, intends to commence an action against the city of Buffalo to recover damages for personal injuries sustained by her by reason of the facts set forth in a statement of claim filed by the said Margaret Walsh with the city clerk of the city of Buffalo on the 21st day of April, 1894.

“Dated Buffalo, N. Y., May 14, 1894.

“Yours, &c., Margaret Walsh, by Perkins and Welch, Her A ttys.”

Admission of the corporation counsel of service on May 14,1894, was indorsed on the notice.

In determining whether the legislative intent is to supersede or repeal by implication certain provisions of a statute by a later one, the object to be attained by a statute is to be taken into consideration’, to ascertain whether the purpose of the ealier is comprehended within the provisions of the later statute on the same subject. The design of that referred "to was to give information to tlie city of the nature and causé of the injury, and the time and place when and where and how it was occasioned, as well as notice of intention to sue; and one of the purposes of the act of 1886 evidently was to give the information within six months, to enable the city authorities, at a time as early as that, to proceed to investigate • the matter of the claim. The requisite preliminary statement which a claimant is required by the revised charter to tile with the city clerk must set forth all the facts in respect to an injury required to appear in the notice of intention prescribed by the act of 1886. If the revised city charter had required the claimant to file the statement with the city clerk within six months after the alleged injury, I should have been inclined to view that it was intended to prescribe the only rule on the subject in that city; and therefore, that by the provisions of the revised charter, those of chapter 572 of the Daws of 1886 were, by-implication, repealed so far as applicable to the city of Buffalo. But the difficulty is that the limitation of time within which information is given may be important to the city, and the claimant is not required to file the preliminary statement with the city clerk until more than ten months after the occurrence of the injury complained of. While the provision of the" city charter is to the effect merely that a notice of intention to commence the action be filed with the corporation counsel within six months, that of the act of 1886 also requires that the notice give the further information before mentioned. The two statutes, before, seem to be in pari materia and must tie taken together in their application to that city. The notice called for by the act of 1886 embraces all" that is requisite to comply with the provision of the later one on the subject, so that only one notice to the corporation counsel is necessary.

It, however, is urged on the part of the plaintiff that she did comply" with the statute on the subject of notice, by serving on the corporation counsel, not only the notice before mentioned, but also a copy of the statement of claim filed with' the city clerk. This, as has been observed, contained a statement of all the facts essential to the notice of intention provided for by chapter 572 of the Laws of 1886. " The plaintiff’s counsel offered to prove that on the 21st day óf April, 1894, he served upon the corporation counsel a copy of the claim filed with the city clerk, and exception was taken to the exclusion of the evidence. This, with the notice served in May following, if they .sufficiently advised the corporation counsel of their relation to each other, would furnish a notice to him of all the facts essential to a notice of intention to sue, and together would seem to have been sufficient. The substance, and not form merely, should control the effect. There would be less doubt about it if the notice served had expressly referred to the statement of claim which had been served upon him. But, in its terms, reference was made to that filed with the city clerk on April 21, 1894. This, it would seem," by relation, called the attention of the corporation counsel to the statement of claim which was served on him that day,* if it was a copy of that then filed. The purpose of the statute on the subject of notice, etc., was not intended'to deny remedy to persons, or to embarrass them in seeking it, for injuries suffered by negligence of municipal corporations, but to guard the latter so far as practicable against imposition, by making early preliminary notice and information essential, and thus .enable the city authorities to then, with more facility than at a later day, inquire into the merits of asserted claims.

Although the question may not be entirely free from doubt, I am inclined to think that the exclusion of the evidence so offered was error, and for that reason the judgment should be reversed, and a new trial granted; costs to abide the event

All concur.


source: Caselaw Access Project

author: PRATT, J.

license: Public Domain

text:
    A. Smith & Sons Carpet Company, Resp’t, v. Skinner, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 27, 1895.)

    1. Injunction—Pendente lite.
    Where, in an action to compel defendant to assign to plaintiffs a certain patent, the moving affidavit shows the patent to belong, in equity, to plaintiffs, while the defendant holds the paper title, and that defendant refuses to assign the patent to plaintiffs, an injunction pendente lile against defendant’s transferring the patent to third persons is prtiper.
    2. Evidence—Judicial notice.
    .The court will take judicial notice of the course of business that the patent Ho. 543,659 is an issue of later"date than Ho. 186,374.
    Appeal from an order enjoining defendant, pendente lite, from transfering ‘the patent to third persons.
    R. E. & A. J. Prime, for apy’lt; John F. Braman, for resp’t.
   PRATT, J.

—The special term places this case on the proper ground. The patent, No. 543,659; is shown by moving affidavits to belong, in equity, to plaintiffs, while the paper'title is held by defendant. He refuses to assign, and upon these facts an injunction, pendente lite, against his transferring the patent to strangers is a matter of course. Strict proof that defendant 'threatens to sell is not required. ■ From the fact that defendant unjustly refuses to assign to plaintiffs, the court may well infer an intent to use the patent unlawfully.

It is objected that it is not specifically shown when the discovery covered by patent No. 534,659 was made, and therefore, it may have been made before 1874, when the contract was executed upon which plaintiffs’ rights depend. It is shown to be for an improvement on patent No. 186,374, issued in 1877. The court will take judicial notice of the course of business in the patent office, and that No. 543,659 is an issue of the later date than No. 186,374. We think the appeal without merit.

Order appealed from affirmed, with costs.

All concur.


author: BROWN, P. J.

text:
    Myra L. Wood, as Executrix, etc., App’lt, v. Emma Richardson, as Executrix, etc., et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 27, 1895.)

    Appeal—Waived.
    One who receives the benefit of an order waives the right to appeal therefrom. So held, where an order allowing a party to intervene provides that, if he fails to serve an answer within a certain time, the plaintiff may enter judgment, but, if an answer is served, the entry of judgment shall be stayed until the action is tried, and, before serving his answer the intervener shall pay plaintiff ten dollars costs.
    Appeal from an order allowing Joseph B. Richardson an others to intervene.
    E. B. Merrill, for app’lt ; Booraem, Hamilton, Beckett & Ransom, M. C. Milnor, John McDonald, and Rollins & McGrath, for resp'ts.
   BROWN, P. J.

—Thir action was commenced by the appellant against Emma Richardson and William T. Washburn, respectively executrix and executor of the last will and testament of Benjamin Richardson, deceased. On the 8th day of October, 1895, upon the petition of Joseph B. Richardson and five other persons, being the next-of kinOof said Benjamin Richardson, deceased, an order was made at the special term allowing said petitioners to intervene in the action, and to serve answers to the complaint within twenty days from the entry and service of the order. In case said answers were not served, plaintiff was to be allowed to enter judgment against the executors without further notice, and in case such answers were served, plaintiff was stayed from entering judgment against said executors until the termination of the trial of the action. The final provision of the order was as follows: “It is further ordered that the petitioners pay to the plaintiff or her attorney $10, costs of his motion, on or before the service of the answer to the complaint herein.”

Within the time specified in the order, the petitioners served their answers on the plaintiff’s attorney and paid to him the costs, which were accepted and have been retained by him. Thereafter the plaintiff appealed from the order, and the respondents have moved, upon the .foregoing facts, to dismiss the appeal.

We are of the opinion that the award of costs was conditional, and not absolute. They were to be paid on or before the service of the answers. If the answers were not served, the respondents were under no obligation to pay them; and in the absence of the service or the answers, payment pould not have been enforced by the-appellant. The appellant, having, therefore, accepted and retained the costs, cannot appeal from the order. One who receives the benefit of an order waives the right to appeal. Radway v. Graham, 4 Abb. Prac. 468 ; Lewis v. Insurance Co., 15 id. 140. The case before us differs from that of Farmers’ Loan & Trust Co. v. Bankers’ & Merchants’ Tel. Co., 109 N. Y 342; 15 St. Rep. 516, in' that, in that case, the award of costs was absolute, and the appellant’s right to them was perfect.

The motion must be granted, with $10 costs.

All concur.


text:
    The People ex rel. Patrick McCanna, App’lt, v. Board of Commissioners of Charities and Corrections of Kings County, Resp’t.

      (Supreme Court, Appellate Division, Second Department,

      Filed January 26, 1896.)

    1. Municipal corporators—Officer—Removal.
    The provision of- chapter 129 of 1893 that the incumbent of an office should not be removed, except for cause, and after a trial, does not prevent the commissioners from abolishing the office, and the good faith of the board in so doing; cannot he questioned on certiorari as against their return.
    2. Certiorari—Office of.
    The office of a writ of eertiorceri is to correct errors of a judicial character made by inferior courts and special tribunals exercising judicial powers.
    Certiorari to review the action of the board of commissioners of charaties and corrections of the county of Kings, in abolishing the office of chief engineer of said board.
    William J. Kelly, for relator ; John A. Quintard, for resp’t.
   BROWN, P. J.

—The relator seeks by this proceeding to review the acts of the respondent in abolishing the office of chief engineer of the board of commissioners of charities and corrections of the county of Kings, and removing him therefrom, without charges being preferred against him, or a trial had. It appears that the relator was appointed chief engineer of said board of commissioners on January 1, 1890, and held such position continuously until October 1,1895, when he was discharged. In 1893 the legislature enacted a law entitled “An act relating to the chief engineer having charge of the county buildings in counties of this state having upwards~of 700,000 inhabitants.” Laws of 1893, ch. 127. This act prescribed various duties to be performed by the chief engineer therein named, “wherever he had been appointed under existing laws,” and provided that “said chief engineer shall hold office during good behavior and shall not be removed except for cause, after the preferring of charges, upon notice and a trial thereof before the said commissioners or other officers." The city and county of New York was excepted from the operation of this act, and it was therefore operative only in Kings county, and the only individual affected by it was the relator. The return to the writ sets forth that by a resolution of said board of commissioners adopted at a regular meeting held September 4, 1895, the office of chief engineer was, on and after October 1, 1895, abolished, for the reason that on said date the care of the insane in the county of Kings was to be assumed by the state, and said commissioners would thereafter be relieved from the care of the asylums at Flatbush and Kings Park, and the services of a chief engineer would no longer be necessary. I do not understand the learned counsel for the relator to contend that the respondent could not in good faith abolish the position of chief engineer. His argument appears to rest upon the proposition that the provisions of the statute that the chief engineer could be removed only for cause, upon charges preferred, and after a trial, rendered the decision of the commissioners that the office was unnecessary, and should be abolished, subject to review by the court. We are of the opinion that this position is unsound. The statute of 1893 did not create a public office. Neither, in terms, did it create the position of chief .engineer. It prescribed the duties of the person, who at the time of the passage of the act was fulfilling such a position, and protected him from discharge, except for cause, and after a trial upon charges preferred. There is nothing in the act which prohibits the commissioners from abolishing the position, nor is there any ground for implication that such was the purpose of the legislature. Tho provision that, the incumbent of the office should not be removed, except for cause, and after a trial, did not prevent the commissioners from abolishing the office. Phillips v. Mayor, etc., 88 N. Y. 245 ; Langdon v. Mayor, etc., 92 id. 427. Under ■chapter 234, section 4, Laws 1880, the creation and abolishment of the office lay wholly in the discretion of the commissioners, and the power thus conferred is not taken away by the act of 1893. The question of the good faith of the commissioners in abolishing the office is not before us for review. Upon that question the relator is concluded by the return. People v. Commissioners, 106 N. Y. 64. The office of a writ of certiorari is to correct errors of a judicial character made by inferior courts and special tribunals exercising judicial powers. It will not lie to review acts resting wholly in discretion, or mere ministerial acts. There was nothing judicial in the act abolishing the office of chief engineer. The power to perform that act rested in the discretion of the commissioners, and for its exercise in good faith the relator has no legal ground of complaint.

The writ must be quashed, with §10 costs and disbursements.

All concur.


author: BRADLEY, J. LEWIS, J.

text:
    Isaac E. Dean as President, etc., App’lt, v. William H. Gilbert et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    J5qtji ty —Complaint—Amendment.
    A complaint, describing the plaintiff as president of a certain company, may be amended by striking out the name of such person and the words “ as president of,” where the company is, in fact, a corporation.
    Appeal from an order, denying a motion to amend the complaint by striking out the words, “ Isaac E. Dean, as president of,” and thus reducing the name of plaintiff to that of the Ontario Improvement and Gas Company, Limited.
    Walter L. Sessions, for app’lt ; Bootey, Fowler & Weeks, for resp’ts.
   BRADLEY, J.

—By the complaint it is alleged that the plaintiff is an association organized under the laws of the state of Mew York, doing business, etc. The Ontario Improvement & Gas Company, Limited, is a corporation, and, as such, it is the party in which the alleged right of action exists. The motion to amend the complaint was denied upon the ground of want of power to grant it, and in support of the order are cited Davis v. Mayor, etc., 14 N. Y. 506 ; Bassett v. Fish, 75 id. 303 ; New York State Monitor, etc., Ass’n v. Remington Agricultural Works, 89 id. 22. The view here here taken is that the rule applied in those cases does not necessarily require the disposition made of the motion in the present case. In the Davis Case the party plaintiff introduced by the amendment was entirely distinct from and had no apparent relation to the original plaintiffs; and that case was determined by the court upon another ground, which was that the resolution or ordinance of the common council of the city upon which the alleged cause of action was founded was void. In the Bassett Case the amendment which was improperly allowed to the complaint substituted the name of a corporation for the names' of 'individuals who were originally the parties defendant; and the reason there given for the conclusion that the amendment was not sustained was that the court. had no “jurisdiction of the person of the corporation. It has not been brought into court.” And the same may be said of the Mew York State Monitor, etc., Ass’n Case. There the purpose of thé amendment sought and denied was to strike out the name of the defendant, and insert the names of individuals as defendants.

In the present case the action is apparently brought for the benefit of the Ontario Improvement and Gas Company, which is there described as an association organized pursuant to statute. It seems to have been erroneously described in the complaint as'an association, as it was a corporation. The allowance of the amendment sought could be treated as a correction of the name of the plaintiff rather than the substitution of an entirely distinct and different party from that named and referred to by allegations of the complaint. Then the motion for the amendment is not to make any change in the defendants. It is simply to continue the action against them in the name of the plaintiff corporation as a party beneficially interested, and in the complaint described as an association. There seems to be no apparent reason why it is not in the power of the court to permit such an amendment. Code Civ. Proc. § 723 ; Risley v. Wightman, 13 Hun, 163 ; Tighe v. Pope, 16 id. 180 ; In re Soule. 46 id. 661 ; 12 St. Rep. 692 ; Heckemann v. Young, 18 Abb. N. C. 196. In Evoy v. Society, 21 N. Y. Supp. 641, the court, in this judicial department, held that an amend'ment to the summons and complaint was properly allowed which permitted the names of the persons constituting a voluntary association to be substituted for the original defendant as a corporation. The court there remarked that the action appeared to have been brought against the right body of persons, but under the wrong name. It is true that the order in that case directed service upoh the persons substituted as defendants by the amendment; but this did not qualify the rule of amendability applied by the court in that case. In the one at bar the amendment sought relates to the plaintiff. The defendants remain the same. It is not seen that they could be surprised to their prejudice by allowing of the amendment which treated the party apparently beneficially interested as plaintiff in the action as a corporation, rather than as an association organized pursuant to the statute; and therefore it was within the power of the court to grant the amendment.

The order appealed from should be reversed, and plaintiff’s motion granted, on payment to the defendants of $10 costs, and without costs of this appeal to either party.

WARD and ADAMS, JJ., concur. ,

LEWIS, J.

(dissenting). —This action was brought by Isaac E. Dean, as president of the Ontario Improvement & Gas Company, Limited. It is alleged in the complaint that the plaintiff is an association organized under the laws of the state of Hew York, and that Isaac E. Dean is its president, and brings this action as such, for the benefit of said plaintiff association. The action was upon an account for goods sold to the defendants as copartners. The defendants, by their answer, denied the sale and delivery of the"goods to them by the plaintiff, and further denied that the plaintiff was an association organized under the laws of the state of Hew York, and alleged that the plaintiff had not legal capacity to sue or maintain an action as president of the Ontario Improvement & Gas Company, Limited, for the benefit of said company, for the reason that said company was not an unincorporated association consisting of seven or more persons. It appearing upon the trial of the action that the Ontario Improvement & Gas Company, Limited, was not an unincorporated association, but that it was a corporation incorporated under the laws of the state of Hew York, the trial court held that the plaintiff could not maintain the action. By permission pf the court, the plaintiff withdrew a juror, and thereupon applied to the special term for an order substituting in the place and stead of the plaintiff a corporation by the name of Ontario,Improvement & Gas Company, Limited. The-motion was denied, and the plaintiff appealed.

While a joint-stock company or association and a corporation may have some attributes alike, there is an inherent difference between them! The former is an association of individuals who have united their interests in a joint business. Usually, as-a matter of. convenience, a name is chosen in which to carry on the business. Such associations, in their main features, are simply partnerships. The individual rights and liabilities of the members or associates" are neither lost nor merged in the association. Certain rights and privileges have been conferred upon such associations by statute, and obligations have been in like manner imposed upon them. When composed of seven or more persons,, actions in their behalf may be maintained in the name of the president or treasurer. Code Civ. Proc. § 1919. Actions by corporations are maintained in their corporate name, and not in the name of the president or treasurer. The identity of the stockholders is merged in the corporation. There does not seem to be any more propriety in substituting a corporation in the place of the plaintiff than there would be in substituting one corporation for another. Had this been a case of misnomer of the plaintiff simply, there would have been no difficulty in the way of the court granting the plaintiff’s application. That is what was held in the case of Bank v. Magee, 20 N. Y. 355. There the cause of action belonged to-Charles Cook, a private banker. The action was commenced in the name of the Bank of Havana. That was the name Mr. Cook had assumed in which to do bis banking business. It was held that an order permitting the substitution of Mr. Cook’s real name in place of the assumed business name was properly allowed. Had it appeared that the Bank óf Havana was a corporation, and owned the claim, and the action had been brought in the name of Charles Cook, a different question would have been presented. It has been frequently held that the addition of the word “ executor,” or “ administrator," to the name of the plaintiff was immaterial, the addition being merely a description of the person.

The question of the right of the plaintiff to maintain the action was properly raised by the defendants’ answer. The cases of Davis v. Mayor, etc., 14 N. Y. 506-526, and Bassett v. Fish, 75 id. 303, are authorities sustaining trie special term order.

The order appealed from should be affirmed, with $10 costs and disbursements.


author: BARTLETT, J.

text:
    Ella Carrey, Pl’ff, v. Samuel Spencer et al., Def’ts.

      (Supreme Court, Kings Special Term,

      Filed December, 1895.)

      1. Constitutional law—Interstate commerce.
    Chapter 52 of Tennessee laws of 1891, so far as it applies to a passenger journeying from one state to another upon an interstate railroad line, is clearly an invasion of the powers conferred upon congress by the commerce clause of the Constitution.

      2. Receivers—Liability.
    Receivers, appointed by a United States court in another state, may be sued in the courts oí New York, where permission was granted to sue them here by the court appointing them.
    Action by Ella Carrey against Samuel Spencer, Henry Fine!;, and Charles M. McGhee, as receivers of the East Tennesse, V irginia & Georgia Bailroad Company,
   BARTLETT, J.

—The plaintiff is a colored woman. In December, 1892, she~purchased a ticket from the Pennsylvania Bailroad Company lentitling her to a first-class passage over the route of that company and connecting lines, from New. York to Knoxville, Tenn. One of those connecting lines was the East Tennessee, Virginia & Georgia Bailroad, then being operated by the defendants, as receivers, under an order of the circuit court of the United States for'the Eastern district of Tennessee. When the train arrived at or near the boundary of that state, Mrs. Carrey and her three children were compelled, in the middle of the night, to leave the first-class car in which they had traveled from Lynchburg, Va., and to make the remainder of the journey to Knoxville in what is known as a “ jim crow car.” This is a car divided into two portions by means of a partition; one portion of the car being intended for white persons, and the other for colored persons. Mrs. Carrey testifies that she was put into the part where smoking was permitted ; that there were no other women there, the only occupants being white and black men; and the car was filthy and dirty. That this was not such transportation as she had the right to demand under her ticket, is too plain for argument. It is equally plain to my mind, from the evidence, that she was forcibly constrained to change from the first-class to the jim crow car, in .which she had to travel about three hours and a-half before reaching her destination. The defendants seek to justify the action of the conductor in requiring her to make the change by reference to an act of the Tennessee legislature passed in 1891, being chapter 52 of the Acts of that year. This statute is entitled “ An act to promote the comfort of' passengers on railroad trains by requiring separate accommodations for the white and colored races.” It provides, in substance, that all railroads in Tennessee, except street railroads, shall furnish equal but separate accommodations for the white and colored races, either by providing two or more passenger cars for each passenger train, or by dividing the passenger cars by a partition, so as to secure separate accommodations. Conductors are empowered and required to assign passengers to the car or portion of a car intended for the race to which such passengers belong, and may refuse to carry them if they decline to obey the direction. Finally, it is made a misdemeanor for any corporation or conductor to fail to carry out the provisions of the act. Such legislation as this has been _ upheld where it applies only to railroad trains running from one point to another within the limits of the state by which the law is enacted. In its application, however, to a passenger journeying from one state to another upon an interstate railroad line, it is clearly an invasion of the powers conferred upon congress by the commerce clause of the constitution. Louisville, N. O. & T. Ry. Co. v. State, 133 U. S. 587 ; Hall v. De Cuir, 95 id. 485. The plaintiff was an interstate passenger, and the defendants, by authorizing the Pennsylvania Railroad Company to sell the ticket which entitled her to a first-class passage over their line, recognized her as such. ' They' violated their obligation to furnish her with the stipulated transportation by compelling her to travel in a car which cannot be regarded as first-class, in any admissible interpretation of that term. The Tennessee statute affords no legal justification for their course in this respect, and the plaintiff is entitled to recover damages, if receivers are liable in the courts of this state. I think they are thus liable, in view of the fact that the court by which the receivers were appointed has expressly granted leave to the plaintiff to sue them here.

Judgment for the plaintiff in the sum .of $500 damages, with costs.


author: BEEKMAN, J.

text:
    In the Matter of a Proceeding under a Writ of Habeas Corpus to Secure the Discharge of Thomas F. Ryan et al.

      (Supreme Court, New York Special Term,

      Filed December, 1895.)

    1. 'Extradiction—Procedure.
    Where the papers upon which the governor acts in issuing his warrant are before the court, it must appear therefrom that the prisoner' is duly charged with the commission of a crime in the demanding state.
    8. Same.
    It must also appear upon the face of the papers, either by affirmative allegations or by necessary inference from the nature of the offense charged, that the prisoner was in the demanding state at the time when the offense charged against him was committed.
    3. Same—Identity.
    In such case, when evidence to establish the identity is complete, the-court must dismiss the writ of habeas corpus and remand the prisoner.
    4. Same—Merits.
    The court has no right, upon a question of extradition, to consider the? charge upon its merits, or to undertake, in any way whatsoever, to determine whether it is, or is not, well founded.
    Proceeding under a writ, of habeas corpus to secure the discharge of "the relators, Thomas F. Ryan aad James Thompson, in custody under a warrant issued by the governor of the state of New York for their extradition to the state of Massachusetts.
    John R. Fellows, Dist. Atty., and Forbes J. Hennessey, Asst. Atty., for people ; M. Meyer, for relators.
   BEEKMAN, J.

—A writ of habeas corpus having been issued in this matter, and a return having been made, evidence has been taken before a referee; and upon the proofs a motion is now made for the discharge of the relators, who 'are in custody under a warrant issued by the governor of the state of New York for their extradition to the state of Massachusetts, where they are charged, in proceedings which have been taken before a magistrate of that state, with the commission of felony. Briefly stated, the charge is that on the night of October 81,1895, at Webster, in the county of Worcester, in the state of Massachusetts, the relators stole certain property, including certain coupon bonds, described as “Three Webster Water Lien Coupons Bonds.” It further ap?ears that the relators, both of whom reside in the city of New "ork, within a short time after the theft, were in possession of the bonds in question, and attempted to sell them. It is claimed upon their part that the bonds were received bv the relator Ryan, who was a bartender, from a woman called “ Maggie,” and that he undertook to dispose of them on her account; that for the purpose of doing so he asked the co-operation of the relator Thompson; and that the broker to whom the bonds were delivered for the purpose of sale, suspecting that they might be the property which had been stolen, communicated with the authorities at Webster. The result of tin's was that the bonds were identified as the stolen property, the proceedings above mentioned were instituted against the relators, a warrant for their apprehension was issued by a justice of the peace, and a requisition based upon the record thus-made was forwarded by the governor of the state of Massachusetts to the governor of this state, together with a certified copy of the record, upon which a warrant of extradition has been issued, a copy of which record is before me.

Section 827 of the Code of Criminal Procedure regulates the proceedings in such cases, and requires that the prisoner arrested under the warrant of the governor shall be taken before a judge of the supreme court or of any superior city court, or the presiding judge of a court of sessions, who shall inform the prisoner of the-cause of his arrest and the nature of the process, and instruct him that if he claims not to be the particular person mentioned in the-indictment, affidavit, or warrant annexed thereto, or in the warrant issued by the governor thereon, he shall have a writ of hebeascorpus upon filing an affidavit to that effect, and that if, after a summary hearing, as speedily as may be consistent with justice, the prisoner shall be found to be the person indicted or informed against, and mentioned in the papers above referred to. then the court or judge shall order and direct the officer intrusted with the execution of the warrant of the governor to deliver the prisoner into the custody of the agent-designated in the requisition and the warrant issued thereon as the agent of the state from which the requisition has proceeded; otherwise, he shall be discharged from custody by the court or judge. According to the letter of the statute, at least, the only question which the court can determine is the question of the identity of the prisoner .with the person against whom the charge has been made, or with the person named in the warrant of the, governor; and I think that, with one exception, this construction is also in accordance with the spirit of the statute, and the legislative intent which led to its enactment. It has been held that, if the papers upon which the governor issued his warrant are before the court, it has the power to determine whether or not they charge the prisoner with the commission of a crime, and that, if it appear upon such examination that the commission of a criminal offense in the state demanding the extradition is not sufficiently charged, .the court has power to discharge the prisoner upon habeas corpus, notwithstanding the warrant of the governor. People v. Brady, 56 N. Y. 182 ; People v. Pinkerton, 77 N. Y. 245. It would also seem that it must appear upon the papers that the prisoner is a fugitive from justice, in the sense that he was either .present in the state at the time of the Commission of the offense charged, or that the crime alleged is of such a character as necessiarily to imply the presence of the prisoner within the state at the time it was committed. This excludes a certain class of crimes which may be committed by persons who are not at the time within the state whose laws have been infringed. To be a fugitive from justice, and therefore subject to extradition, it must appear by proof or necessary inference that the prisoner was within the state at the time of the commission of the crime with which he is charged. If the papers upon which thé governor's warrant is, issued tend to show that the case is one coming within this definition, I do not think that the court has any power to try the question, on habeas corpus, whether the prisoners were or were not, at the time the offense was committed, within the demanding state. In the case at bar a large amount of proof has been taken tending strongly to show that the relators were not in the state of Massachusetts, but in this state, at tip time when the bonds in question were stolen: But all of this is really matter of defense to the charge. Upon the trial of the charge in the state of Massachusetts, the commonwealth must make out its case by proving the commission of the. theft in question by the relators; and the ground upon which they now seek to be discharged in this state is really the defense of an alibi, which should properly be made and proven upon such trial. It never .could have been intended by the legislature, nor is it, I think, a matter of constitutional right with the relators, that such a question as this should be tried and determined in such proceedings as these. It has been repeatedly held that the court has no right, upon a question of' extradition, to consider the charge upon its merits, or to undertake, in any way whatsoever, to determine whether it is well founded or not. In re Clark, 9 Wend. 212. At page 221, Chief Justice Savage, in giving the opinion of the court, says ;

“ But whether he is guilty or not is not the question to be decided here. It is whether he has been properly charged with guilt," according to the constitution and the act of congress. The "prisoner does not. deny any of the facts set forth in the warrant upon, which he has been arrested. It is not denied that the governor of Rhode Island has demanded him as a fugitive from justice. ■ It is not denied that an affidavit charging him with criminality was presented to the governor of Hew York, nor is it denied that the governor of Rhode Island has certified that the affidavit was properly authentieatéd. These are the material facts.”

I think, therefore, that the law applicable to such cases is: (1) Where the papers upon which the governor acted in issuing his warrant are before the court, it must appear therefrom that the prisoner is duly charged with the commission 01 a crime in the demanding state. (2) It must also appear upon the face of the. papers, either by affirmative allegation or by necessary inference from the nature of the offense charged, that the prisoner was in the demanding state at the tune when the offense charged against him was committed, for it is under such circumstances only that he can be held to be a fugitive from justice. (3) The prisoner must also be identified as the person against whom the charge was made, and for whose arrest the warrant of the governor has been issued

The question of identity, then, is substantially the only question o\ fact open to challenge by the prisoner. Whatever other' questions may be raised are questions of law upon a construction of the record by the court. In the case at bar the evidence of identity is" complete. It is beyond dispute that the relators are the persons against whom the Massachusetts warrant has been issued, for whom the governor of that state has made requisition, and who are named in the warrant of the governor of this state, and found by him to be fugitives from justice. That being the case, under, the view of the law which I have taken, the only course open for me is to dismiss the writ, and remand the prisoners to the custody of the officers having them in charge. It may very well be that this will involve great hardship, as the evidence certainly tends to show, as 1 have said, that they were within the state of New York at the time of the alleged offense. But I cannot allow this consideration to affect the disposition of the matter which I believe to be strictly in accordance with law. It cannot be doubted, however, that in the state of Massachusetts they will receive a perfectly fair trial, and their rights will be adequately protected.

Writ dismissed, and prisoners remanded


author: Adams, J.

text:
    Clara G. Whitney, Pl’ff, v. W. Wallace Whitney, Def’t.

      (Supreme Court, Monroe Special Term,

      Filed November, 1895.)

    Husband and wive—Contract for separation.
    Chapter 594 of 1892 does not authorize the making of & contract between husband and wife by which, in consideration of their separation, the husband agrees to pay the wife an allowance.
    Action by Clara Gr. Whitney against W. Wallace Whitney, her husband, to recover foi breach of a contract to pay the plaintiff * weekly allowance on condition that the parties should “live separate and apart fron. each other the same as if they were -unmarried.” Defendant demurs to the complaint,
    C. D. Kiehl, for pl’ff ; Edward Webster, for def’t,
   Adams, J.

— At common law executory contracts between husband and wife were absolutely void, and no instance of their enforcement by the courts can be found among the reported cases in this state or in England. It is true that courts of equity have upheld what are termed “deeds of separation,” by which, through the medium of some third party, acting as a trustee,' provision is made by a husband for the support of his wife, although in doing so they have taken occasion to say that such contracts are at variance with the policy of the law, and it was remarked by Lord Chief Justice Denman, in Jones v. Waite, 5 Bing. N. C. 341, that “ many oi the judges gave effect to them for any purpose * * * with reluctance, and would have paused if the question had been new.” It will be observed, also, that even a court of equity will not interfere to enforce an agreement of this character which is founded upon no other consideration than a mere voluntary separation of the parties; while in a court of law, until a comparatively-recent period, no effect could be given to it, whatever might have been the consideration. Beach v. Beach, 2 Hill, 260; Griffin v Banks, 37 N. Y. 621

It is insisted, however, that the common-law rule has been so far modified by statutory enactment that a contract like the one sued upon may now be entered into by husband and wife, and that, when thus entered into, it will be enforced by the courts. That the tendency of legislation in this state for the past fifty years has been to remove the common-law restrictions which hampered a married woman in the enjoyment of her property and personal rights is a fact well known by every one; and in order that she might be placed in the exact position of a feme sole, the legislature has recently enacted that she may contract with her husband or any other person to the same extent, with like effect, and in the same form as if unmarried ” Laws 1892, c. 594. It is difficult to see how less than this could be accorded married women in view of preceding legislation, but it will be noticed that, in this removal of the “ last barrier,” the legislature was careful to limit its action to such rights and liabilities as are strictly iegal m their nature, and therefore we find embodied in the act in question this provision ;

“But nothing herein contained shall be construed to authorize the husband and wife to enter Into any contract-by which the marriage relation shall be altered or dissolved, or to relieve the husband from his liability to support his wife ”

Now, the contract which lies at the foundation of this action is one which very materially alters the marital relations of the parties. By its terms the husband and wife have voluntarily separated, and are hereafterto live as strangers to each other. In consideration of this practical dissolution of the marriage tie, the husband agrees to pay the wife a certain sum weekly, and, he failing to fulfill the obligation thus assumed, she comes into a court of law and invokes its aid in the enforcement of the contract. Can anything more subversive of social order, sound public policy, or good morals be" imagined? To give to the act of 1892 the construction, contended for would tend to disintegrate society and resolve marriage into the merest farce. This court is unwilling to believe that any such anomalous condition of affairs was within the contemplation of the legislature, and therefore it must hold that plaintiff’s action cannot b@ maintained.


author: BEACH, J.

text:
    Charlotte W. Gregan, by Guardian, etc., Pl’ff, v. Charles J. Buchanan et al., as Executors, etc., Def’ts.

      (Supreme Court, New York Special Term,

      Filed January 18, 1896.)

    1. Trust—Purchase by trustee. e

    A purchase, made by a trustee of trust property for his own interest, fe not void ah initio, but voidable at the election of cestui que trust.

    8. Same.
    Such liability on the part of the trustee may cease from acquiescence, lapse of time, or express act of the cestui que trust„
    S. Same—Release.
    In case of a release from a cestue que trust to Ms trustee, the trustee must show that the party dealt at arm’s length, and that the cestui que trust had full information.

      1. Adverse possession—Disability. •
    Where adverse possession had been taken and the owner dies, leaving an infant heir, the disability of infancy does not interrupt the running of the statute, regulating acquirement of title by adverse possession, where began in the life time of her father.
    Action by Charlotte W. Gregan, an infant, by guardian ad litem, against Charles J. Buchanan and another, as executors.
    N. A. Lawlor, for pl’ff ; Daniel Seymour, for def’ts.
   BEACH, J.

—In cases involving the acts of persons long dead, - it is well for the court to primarily consider the evidence, with the intent of deducing therefrom the relation of such parties in their lifetime, and the acts and circumstances surrounding the transactions between them, for the purpose of more clearly understanding and appreciating their actions. While this course may not of itself enable the court to render judgment, it still serves to throw, light upon the subject-matter involved, and so guides to correct conclusions.

The action is brought to set aside certain conveyances of realty, both fee and leasehold,.situate on the northwesterly corner of Forty-Second street and Seventh avenue, in this city. Prior to the year 1868 the title was in Thomas Gregan, who died intestate and insolvent on January 4,1868, leaving, him surviving, a widow and one son, Edward T. Gregan. The defendant’s testator, John McB. Davidson, was appointed and qualified as administrator of his estate, and as guardian of the person and estate of the son, in January of same year. At the decease of Thomas Gregan, the premises held by him in fee were incumbered by mortgages assumed and executed by him, with taxes and more or less interest ' moneys overdue and unpaid. On March 26, 1867, in Gregan’s lifetime, The Albany City Fire Insurance Company brought suit to foreclose a mortgage held by it on the easterly fifty feet- of the premises held in fee, the payment whereof was guarantied by John Me B. Davidson, and Gregan was personally served with process. In course of regular judicial proceeding, the premises were sold under judgment of foreclosure at public auction on February 7, 1868, to Henry D. Felter, who took title thereto by referee’s deed on March 30, 1868. The said Felter and wife, by deed dated March 31, 1868, conveyed said premises to John McB. Davidson. In April, 1868, after Gregan’s death, James Munson brought suit, against those interested, to foreclose a purchase-money mortgage executed by Gregan, resting on the westerly ninteen feet of the premises held in fee. Under a judgment of foreclosure, regularly rendered and entered in the action, the premises were sold at public auction in July, 1868, by a referee, to John H. White, to whom a deed was given dated August 13, 1868. On November 16,1868, John H. White conveyed the premises to John McB. Davidson. In August, 1869, Davidson, as administrator of Gregan, filed his petition in this court, praying a sale of the leasehold premises at public auction, alleging therein facts warranting such relief. An order thereon was entered September 15, 1869, directing a sale thereof by a referee appointed, which sale was had October 18, 1869, when tire premises were sold to John H. White. The referee’s report was thereafter confirmed by this court. In March, 1870, upon petition to the surrogate’s court by said Davidson, as administrator asking leave to settle an action affecting said premises then pending in the superior court, and praying an approval of the sale ©f the leasehold, such proceedings were had that on March 28,1870, an order was made by said surrogate’s court approving the settlement of the action and sale. By assignment dated December 30, 1869, the referee on the sale and Davidson, as administrator, assigned and set over the lease of said premises to John H. White, who by deed dated April 16, 1874, conveyed the said lease to Davidson. The conveyances to Davidson above recited, and the proceedings producing them, are attacked by plaintiff, and their annulment and an accounting prayed, upon the grounds of actual fraud and conspiracy by and through which Davidson’s title was acquired, and also that he, then being a trustee was thereby prohibited from taking the title, and the conveyances are void for that reason. The plaintiff in this action is the only child of Edward T. Gregan, the only son of Thomas Gregan. He died in the.city of New York, January 11, 1877, leaving a widow and the plaintiff him surviving. He was insolvent.

It may be advisable to here refer to.the facts proven in the record tending to show the relationship which would seem to have existed between Thomas Gregan and John McB. Davidson, when the former held the title to and possession of the premises. On May 24, 1867, after the foreclosure suit was brought by the Albany Qity Fire Insurance Company against Thomas Gregan and others, Thomas Gregan conveyed the premises in fee to Davidson, and a collateral agreement was executed between them, This deed was recorded June 7, 1867. On May 24, 1887, Thomas Gregan also executed and delivered to Davidson his bond and a mortgage upon the leasehold for $10,000 which was recorded June 7, 1867. The 'collateral agreement in substance provided that the deed of the premises held in fee, the bond and mortgage on leasehold for $10,000, and a certain chattel mortgage for $5,000, given by Gregan to Davidson, were all given as collateral security for indorsements made by Davidson, at Gregan’s request, of certain promissory notes made by Gregan, payable at Union National Bank of Albany. It appears that Thomas Gregan never paid any of said notes. In 1875 Davidson accounted as administrator of Thomas Gregan, in the surrogate’s court; and by the decree rendered and entered May 25, 1875, Davidson is shown to have then been a creditor of Gregan for a principal sum of over $50,000, and a holder of judgments obtained against Thomas Gregan, and assigned to Davidson, in the former’s lifetime, amounting to over $7,000. It is clearly inferable from these facts that the relations between Davidson and Gregan were friendly,—the former possessed of financial means, the latter financially embarrassed, and Davidson aiding him by loans of large amounts of money. This relationship and assistance must have existed for some years before Thomas Gregan’s death, January 4, 1868. The estate of Gregan was insolvent, and I am of opinion that Davidson, in acquiring title to the realty, was moved only by the desire to obtain, after lapse of more or less time, payment, in part at least, of Gregan’s large indebtedness to him. These facts and deductions militate strongly against averments charging actual fraud and and conspiracy with others to defraud the widow and son of the man whom he had long befriended.

I do not find in the record any proof of fraud practiced by Davidson in the course of the foreclosure suits and the proceedings for sale of the leasehold. In the latter the allowances were excessive, but the court had power to make them, and their grants do not in any degree tend to establish actual fraud. The court had undoubted jurisdiction in the proceedings, and, although counsel for plaintiff declares the orders to be void, he fails to support the assertion by giving specific reasons in fact, or citing authorities to support the contention. There is no evidence in the case to show but what the properties on public judicial sales brought their full value. On the part of defendants, the evidence of Harnett supports the conclusion that all they were then worth was realized. It seems undisputed and indisputable that Thomas Gregan, at his death, was insolvent. The counsel for plaintiff fervently depicts the position of the ward, Edward T. Gregan. From the testimony, the position of Davidson seems to have been one of difficulty. He was the administrator of an insolvent’s estate, himself the holder of large claims, and under large liabilities as guarantor of the bond and mortgage held by the insurance company in process of foreclosure, as indorser of the series of notes covered by the collateral agreement, and holder by assignment of judgments recovered against the intestate in his lifetime, amounting to about $7,000. There is no proof of payment directly by Davidson 'of any part of the bids on foreclosure sales of the premises held in fee, except an entry in an attorney’s register that a balance of the purchase money of the westerly nineteen feet was paid by Davidson’s checks. For the sake of brevity in the consideration of legal questions raised by the proofs, it maybe well* to suppose that the bids at the two foreclosure sales of the sixty-nine feet were paid with money furnished by the administrator Davidson, who thereafter took the title.

The primary inquiry is whether the conveyances to him were void or voidable by his ward, Edward T. Grregan, after becoming of age. The rule is definitely fixed. Purchase made by a trustee of trust property, for his own interest, is not void ab initio, but voidable at the election of the cestui que trust. Dodge v. Stephens, 94 N. Y. 209; Munson v. Syracuse, G. & C. R. Co., 103 id. 58; 3 St. Rep. 31; Barr v. N. Y., L. E. & W. R. Co., 125 N. Y. 263 ; 34 St. Rep. 743. While such purchase is so voidable, the liability to such result does not rest indefinitely upon the trustee. It may cease from acquiescence, lapse of time, or express act of the cestui que trust. Johnson v. Bennett, 39 Barb. 237; Kahn v. Chapin, 84 Hun, 541, 66 St. Rep. 311; Harrington v. Bank, 101 N. Y. 257. For an application of these principles, it is needful to briefly consider some facts clearly appearing by the proof. -Davidson acquired title to and possession of the premises held in fee in the year. 1868, and to the leasehold in 1869. It is conclusively established that the parents of Edward T. Grregan were married in this state August 13, 1849, and that he was baptized in the same parish on or about May 15, 1850 ; that in the formal paper of his enlistment in the militia of this state, verified by his signature and oath, in June, 1870, he gave his age as twenty-one years. He was married-in this city April 7, 1872, and then certified his age as-twenty-two years. The entry in his family Bible,' made by himself, shown since to have been changed, stated the date of his birth as May 12, 1850. He therefore became of age May 12, 1871. He died January 11, 1877. The record fails to show any action whatever by him in the way of exercising his right to avoid the title during the five years between his majority and death. On the contrary, it appears that by deed dated April 15, 1872, and delivered three days thereafter, Edward T. Grregan, the cestui que trust, conveveyed to Davidson all his right, title, and interest to the premises held in fee. It is true Davidson had not then accounted as guardian, but there is lack of proof that the conveyance was procured by any fraudulent act or misrepresentation. Grregan was then about twenty-two years old, and to his death, over four years thereafter, never questioned the validity of the grant. In the absence of fraud, this conveyance is unassailable.

The counsel for plaintiff argues that the trust relation of guardian and ward was subsisting, Davidson not having accounted as guardian. The contention, in my opinion, is not tenable, but, if so, the deed was not questioned by the grantor to the time of his death, nearly five years after its execution and delivery. He was bound, if the fiduciary relation did exist, to disaffirm within a reasonable time, and the period between its execution and his death, I think, should be so held. “ In all cases where actual fraud is not made out, but the imputation rests upon conjecture, after the seal of death has closed the lips of those whose character is assailed, and lapse of time has impaired the recollection-of transactions and obscured their details, the welfare of society demands the rigid enforcement of the rule of diligence in prosecuting whatever remedy may ever have existed in favor of the person interested.” Hammond v. Hopkins, 143 U. S. 224; Johnson v. Bennett, 39 Barb. 237; other authorities cited above; and Beardsley v. Hotchkiss, 96 N. Y. 201. The title to the fee was thus given, validated, and confirmed.

It is also shown that in March, 1875, Davidson, as administrator, filed his petition for final accounting as such with the surrogate’s court of this county; 'that citations issued and were personally served on those interested, and on Edward T. Gregan, March 4, 1875, returnable March 22, 1875. Such accounting was regularly had, and a decree entered passing and allowing the accounts May 25,- 1875. It is too late now, after the lapse of twenty years, to impeach its force and validity by questioning the items of the account or showing errors therein, which, if allowed, would not have prevented the result or in any way affect the position of one in whose behalf the objections are raised. The account filed by the administrator included proceeds of sale of the leasehold, had under the order of this court, which sale was approved by the surrogate’s court. On March 29, 1875, some weeks after the service upon him of the citation and subsequent to the return day, Edward T. Gregan executed and delivered to Davidson, under his hand and seal, a general release, and especially discharging Davidson from all claims and demands which he then had or might be entitled to against Davidson individually or as administrator or as guardian. The case of Bolton v. Gardner, 3 Paige, 273, involved a question of pleading; the learned chancellor stating the rule that, as to a release from a cestui que trust to his trustee, 'the trustee most show that the parties dealt at arm’s length, the cestui que trust having full information. I think that requirement is met by the fact that, at execution of the instrument, Edward T. Gregen had passed his majority four years before. The administrator had then filed his accounts, and Gregan had been personally cited to appear, and the return day had passed. These facts constitute a dealing at arm’s length. There are no limitations by recital in the release, but an extension of the general terms, as between the individual parties, to matters between them existing from Davidson having been administrator and guardian. Being unimpeached by any proof of fraud in its procurement, its stands as a full answer to any attack upon the sale of the leasehold premises. Kirchner v. New H. S. Machine Co., 135 N. Y. 182; 48 St. Rep. 24_ .

_ The proceedings for the sale of this plaintiff’s interest in said premises were based on the petition of her mother and herself, verified October 25, 1890. This document is most full in way of particular statement, setting forth, upon information and belief, that the infant was owner and seised in fee of, or had an interest in, the premises. The court was placed in full possession of all the facts, and under them it was in no sense a fictitious sale, or resorted to merely for the purpose of divesting the infant of title, and placing it in some other person. I do not think the proceeding is void under the case of Weinstock v. Levison, 37 St. Rep. 561. The sale there was fictitious; the court not advised of the facts or purpose of the proceeding, which was resorted to with the sole design of divesting the infant of title. In the proceeding here involved, it is stated to be for the infant’s benefit; her claimed title or interest, set forth ; - so that the court was fully informed. It cannot be possible for her to assail it because of her want of title or interest in this action, which is brought to establish the same title or interest alleged in her petition. I think she is'bound by the result. Dodge v. Stevens, 105 N. Y. 589 , 8 St. Rep. 671.

In view of the conclusions - reached upon other questions, further discussion is needless, but it may be well to consider briefly the question of adverse possession. By the deeds from Felter and wife, Davidson acquired title to the premises in fee in 1868. He and the defendants have since then been in open and notorious-possession, receiving the rents, issues, and profits, and making improvements. There is no fraud shown in the foreclosure proceedings or the procurement of those conveyances. The deed from Edward T. Gregan to Davidson was executed and delivered April 15, 1872, and he became of age about May 12, 1871. The statute began to run in May, 1871 and the title assured in May, 1891. This action was brought in November, 1893, over two years beyond the twenty years succeeding Gregan’s majority. It is true that he died January 11,1877, leaving plaintiff his only heir at law, she being then and to the bringing of this action, under the disability of infancy. This disability did not interrupt the running of the statute, it having began in the lifetime of her father. Fleming v. Griswold, 3 Hill, 85. Were this otherwise, it is plain that successive disabilities might render the statute ineffective.

A decree is ordered for the defendants, with costs. '


author: WARD, J.

text:
    Robert L. Howery, Pl’ff, v. Lake Shore and Michigan Southern Railway Company, Def’t.

      (Supreme Court, Erie Special Term,

      Filed January 20, 1896.)

    Appeal—-Dismissal.
    A trial court has no power to dismiss an appeal after it has been perfected ; but the disposition of the appeal itself, whether it is to be dismissed or retained, is a matter exclusively for the appellate court to deter- ' mine.
    Motion by plaintiff for an order discontinuing his appeal from the court of appeals.

      George W. Cothran, for pl’ff ; Maurice C. Spratt, for def’t
   WARD, J.

—This action was brought in the superior court of Buffalo in 1894. Issue was joined, and the case was tried. The plaintiff recovered a verdict of $4,000. The general term of the superior court of Buffalo reversed the judgment, and ordered a new trial. 34 N. Y. Supp. 1089. From that order the plaintiff appealed to the court of appeals, giving the proper security to perfect such appeal, and the return to the appeal was filed with the clerk of the court of appeals September, 1895. The defendant objects that the supreme court has no power to grant this motion, and contends that the power to dismiss appeal alone rests with the court of appeals. By section 1295 of the Code of Civil Procedure, it is provided 'that after an appeal is taken to another court the name of the appellate court must be substituted for that of the court below, in the title of the action or special proceeding. By section 1326 of this Code the appeal is perfected when the proper undertaking is given. In Adams v. Fox, 27 N. Y. 640, there was a motion to dismiss the appeal after service of the notice of appeal, but the return of the subordinate court had not been filed. The court (Denio, J.), says:

“It is objected that this motion cannot be entertained, because the return has not been filed, and it is urged that until this is done this court is not possessed of the case. But we think, when a notice of appeal has been served, and the proper undertaking perfected, the case is so far removed from the subordinate court that we can entertain any application which the case, in its then condition, may render necessary.”

And the appeal was dismissed.

In Parks V. Murray, 109 N. Y. 646 ; 14 St. Rep. 919, there was • a motion to dismiss the appeal. It was founded upon the omission to comply with an order of the supreme court, made December 19, 1887, directing the appellant to file a new undertaking. Such order was made after the plaintiff .had perfected his appeal to the court of appeals. The court says :

“The Code provides explicity that when those acts are done the appeal is perfected. Section 1326. Thenceforward the jurisdiction of this court attaches, and the authority’of the supreme corirt, except as specially preserved, ends. * * * In this case the motion should have been made before us, and not in the supreme court.”

And the court refused to dismiss the appeal.

In Peterson v. Swan, 119 N. Y. 662 ; 30 St. Rep. 208, there was a motion in the court of appeals to remit the return to" the court below for amendment, and the court says: -

“It has been frequently held by this court that although a copy of the record has been filed with the clerk, pursuant to the notice of appeal, yet the court below so far retains jurisdiction of the case as to enable it to make such amendment to the record as it. shall deem proper, and to order that the amendment shall be duly certified to us and filed with our clerk. When thus filed, we regard it as part of the original return, and proceed to hear the case as thus prepared.”

The court held that the motion to remit was unnecessary, as the court below had power to amend the record, and therefore the motion was denied.

In People ex rel. Hoffman v. Board of Education, 141 N. Y. 86 ; 56 St. Rep. 560, there was a motion for an order directing the former attorneys of the relator to deliver to her present attorney certain papers. Appeal had been duly perfected, in that action, to the court of appeals. Objection was made that the motion should have been made in the court below. That objection was sustained, and the court says:

“Upon an appeal to this court the record itself is not transmitted, and the case, for all general purposes, still remains in the court of original jurisdiction. A transcript only of the record is sent here. In all matters pertaining to the appeal itself, and to the proper hearing thereof, this court has jurisdiction, and also in regard to all applicatians which by the statute may be made to this court after the taking of an appeal; but as to all other applications the case is regarded as still pending in the court of original jurisdiction, and such applications should be made to that court.”

In Henry v. Allen, 147 N. Y. 346 ; 70 St. Rep. —, the appellant moved for an order directing that the return be transmitted to the supreme court, and that the case be remanded, without prejudice, to the appeal to the court of appeals, for the purpose of enabling him to move for a new trial in the court below on the ground of newly-discovered evidence. The court says:

“We deny this motion, for the reason that the pendency of this appeal is no bar to a motion in the court below for a new trial. We have heretofore pointed out that upon an appeal to this court the record itself is not transmitted to us, but a transcript thereof, and the case, for all general purposes, still remains in the court of original jurisdiction;” citing People v. Board of Education, supra, and quoting what is quoted above from that case.

It must be said that the decisions above quoted in the court of appeals leave the law in some confusion, which that court alone has the power to dispel. The scheme of the Code seems to be that when an action is appealed to the appellate court, and that appeal is perfected, all matters relating to the appeal itself, and its disposition, come under the control of the appellate court, and this is reasonable. A subordinate court can supply a defective record in the appellate court, and, as stated in the last case cited, can proceed with a motion for a new trial notwithstanding the appeal; but as to the disposition of the appeal itself, whether it is to be dismissed or retained by the appellate court, that is a matter exclusively for the appellate court to determine.

It follows from these views that the motion to dismiss must be denied, but I think no costs of the motion should be imposed.


text:
    Joel S. Mason et al., as Executors, etc., Plt’ff, v. John Dawson et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed January, 1896.)

    1. Partnership—Receiver.
    The court will not interfere and deprive the surviving partners of their right to wind up affairs of the copartnership by the appointment of a receiver, unless it clearly appears that they are not properly performing their duties in this regard.

      % Same—Surviving partner—Firm name.
    In the case of a dissolution of a copartnership by the death of one of the ; partners, it it the legislative intent that the right to the continued use of the old firm name should pass to and he controlled by the survivors.
    Motion by plaintiffs for the appointment of a receiver pendente lite,
    Leeds, Patrick & Ironside, for pl’ffs ; John F. Clarke, def’ts.
   BEEKMAN, J.

—This action is brought by the executors of a deceased partner against the surviving members of the firm of J. W. Mason & Co. for an accounting, and the appointment of á receiver to wind up the affairs of the copartnership. A motion is now- made for the appointment of a receiver pendente lite. It is provided by the articles of copartnership that:

“In the event of the death of either of the partners, the business shall be closed by the surviving partners as soon as possible, but without prejudice to its" interest, of which the surviving partner or partners shall be the judges; but the executors, administrators, and assigns of the deceased member shall have access to all the books and papers of the concern, and shall have the right to require and. receive written statements every three months as to the condition of the business, but the time of closing the business shall not extend beyond one year from the death of the partner without the written consent of all of the surviving partners, together with the consent of the executors, administrators, and assigns of the deceased partner.”

It will thus be seen that the defendants were entitled, not only as a matter of law, independent of any agreement, but also by virtue of an express provision contained in the articles, to wind up the affiairs of the copartnership. Unless, therefore, it clearly appears that the surviving partners are not properly performing „ their duty in this regard, the court will not interfere, and deprive them of their right by appointing a receiver. The remedy is a drastic one, and experience seems also to show that the administration of business affairs through such an agency is frequently attended by large expense and unfavorable results. I do not think that the facts on which the application is made are sufficient to justify me in granting the application. There is no charge of fraud against the surviving partners; nor is there any specific proof that -they are wasting the assets of the concern; nor is there ¿ny allegation that they are insolvent, or would be unable to respond for any liability incurred by them in respect to their management of the copartnership affairs. While there is some suggestion of a lack of readiness to comply with the requirements ot the copartnership articles, in rendering accounts to the executors-of the deceased partner, the proof is not sufficient to justify me in finding- that there has been a violation of that .duty. It is also-true that more than one year has expired since the death of Mr. Mason, and the business has not yet been closed as required by the articles. But the proof tends to show that the defendants, in this respect, acted in good faith, believing that the interests of all concérned would be greatly prejudiced by a close observance-of this requirement. In this respect the defendants may have been remiss, but as they have since expressed their intention to close out the business forthwith, and to realize upon its assets, I do not, think that this circumstance, of itself, calls for the appointment of-a receiver. In fact, an examination of the affidavits presented by both sides clearly shows that the only substantial dispute between-the plaintiffs and defendants arises out of the claim made by the-plaintiffs—which the defendants deny—that, in settling the assets- and good will of the partnership, the right to a continued use of the copartnership name should be transferred with the good .will. The defendants insist, that, as surviving partners, they alone are-entitled to continue the use of the old copartnership name. I£ the-plaintiffs are right in their contention, I think a sufficient reason for the appointment of a receiver would exist, but I find myself unable to adopt the view which they'have taken. The firm name-of “John W. Mason & Co.” was not a trade-mark, and the cases dealing with the transferability of names when used for such a purpose are therefore inapplicable. The weight of authority seems, to support the view that the right to continue the use of the co-partnership name is one which vests exclusively in the surviving-partners. Caswell v. Hazard, 121 N. Y. 484 ; 31 St. Rep. 576 ; Blake v. Barnes, 12 N. Y. Supp. 69. The statute authorizing the continued use of the copartnership name was rendered necessary by the pre-existing statutory provision forbidding the use of a name in a copartnership title which was not that of one of the partners. The prohibition, therefore, continues in force, except in so far 'as it has been so modified; and that modification extends, only to cases of firms having business relations with foreign countries, or which have transacted business in the state for a period of three years or upwards, where the business shall be continued by some or any 5f the partners, their assigns or appointees. In cases of a dissolution by the death of one of the partners, I. think it is quite plain that it was the legislative intent that the right to the continued use of the old firm name should pass to- and be controlled by the survivors. In the case of Blake v. Barnes, supra, this same name was quite elaborately discussed by Mr.)Justice.Barrett, who came to the conclusion “that, while the-good will is conoededly an assent, the right to continue the business under the old firm name belongs to 'the surviving partners.”

While I am of the opinion, as I have said, that the facts upon which this application is based are not sufficient to justify the appointment of a re'ceiver, I think that the plaintiffs are entitled to have the affairs of the partnership immediately wound up, its assets disposed of, and a distribution made. I am therefore disposed, in denying the motion, to grant leave to renew the same upon additional ’ proofs, should there be any unreasonable delay in the motion. .

Orderly accordingly.


author: PER CURIAM.

text:
    Martha Keery, App’lt, v. John F Dimon et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    1. Wills—Lost—Action to establish.
    To entitle a plaintiff to succeed in an action to establish a lost will, he must prove that the will was in existence at the time of the testator’s death, or was fraudulently destroyed in his lifetime; and, second, this fact must be clearly and distinctly proved by at least two credible witnesses.

      2. Same—Witnesses.
    In such case, to accept the testimony of one to whom the property would go by the will, as that of a credible witness to the contents of the will, would be to overthrow one of the safe guards that the law has established for the prevention of claims of this kind; based upon the testimony of those interested in enforcing the claim.
    3. Same.
    The testimony, in this case, was held to fall short of what is necessary to establish-a lost will.
    4. Witness—Section 829 of the code.
    In such case, the testimony of the plaintiff as to the exhibition to her of the will by the deceased, and her reading it in his presence, if not in viola-of the letter, is in violation of the spirit of the provisions of section 829 of the Code.
    Appeal from a judgment dismissing the complaint on the merits.
    Theodore H. Friend (Wheeler H. Peckham, of counsel), for app’lt ; William R Wilder, for resp’t Charles L. Dimon, individually and as administrator ; Abner C. Thomas, for resp’t Jacob S. Dimon ; Anderson, Howland & Murray (Henry H. Anderson, of counsel), for resp’ts Charlotte H. Dyer and John F. Dimon ; Miller & Miller (J. F. Miller, of counsel), for resp’t Mary H. Bell ; James B. Ludlow, for resp’t Frederic D. Philips.
   PER CURIAM.

—Judgment affirmed, with costs, on opinion of special term.

The opinion of Mr. ‘Justice Ingraham, at special term, is as follows:

The plaintiff in this action seeks to divert all of the property of the deceased from his relatives, and appropriate it to her own . use, by establishing a will which is not produced, and which is alleged to have been executed within a few days of the 30th of September, 1884; - and the last time there is any satisfactory evidence that this will was in existence was about May 20, 1885, when Mr. Morgan swears he took it out of his drawer, and put it in a safe that he h'ad purchased about that time. It is true that Mr. Morgan says he subsequently saw the envelope it which he alleges that he placed this will in his safe, and says he thinks he saw it there as late as 1892; but he is not positive about it, and, as he had then no particular object in looking for the will, I do think that such recollection is satisfactory evidence of its existence at that time. After the death of the alleged testator, the will disappeared, and all attempts to trace it have proved fruitless. There were two subscribing witnesses to the will. One was Mr. Morgan, who drew it; and the other Roy W. ^ Smyth, who was then a clerk in the employ of Mr Morgan. ' Smyth was not produced as a witness, as has since disappeared, and his whereabouts could not be ascertained. The only other person that ever saw this will was the plaintiff, who testified that on the 12th day of July, 1884, the alleged testator being present, she read the will. And it-is upon the testimony of Mr. Morgan and the plaintiff that it is sought to prove the contents of this paper. To entitle the plaintiff to succeed in this action, plaintiff must prove that the will was in existence at the time of the testator’s death, or was fraudulently destroyed in his lifetime; and second, its provisions must be clearly and distinctly proved by at least two credible witnesses. I think the plaintiff has failed in establishing either of these propositions. I have no doubt of the correctness, in the main of Mr. Morgan’s story, — that he drew a will, substantially the same as testified to by him, in 1884; that he delivered it to the testator; that it was subsequently returned to him for safe-keeping; and that he did keep it in his possession for some time. All this, however, comes far short of proving that the will was either in existence at the time of the death of the testator, in 1893, or that it had been fraudulently destroyed during the lifetime of the testator. During this period Mr. Morgan has held several important public offices. He had a partner who appears to have been intimate with the alleged testator, and the testator was many times in his office. It is much moré probable that, during one of the many visits of the alleged testator, he obtained possession of the will, either from Mr. Morgan, and that, circumstance escaped Mr. Morgan’s recollection, or from Mr. Morgan’s partner in his absence. At any rate, the testimony is not clear that this instrument remained in Mr. Morgan’s possession, and its disappearance is certainly most remarkable, if it was not given to the alleged testator. Mr. Morgan’s testimony as to the declarations of the testator would tend to show that he thought the will was in Mr. Morgan’s possession; but he seems to have, been a peculiar individual, and 1 do not tl-nnk that statements of that kind should be considered as establishing by clear proof the existence of the will on the death of the testator, or its fraudulent destruction prior to that time; and his declarations are very seriously weakened by the production of the obliterated will.

It seems that on or about the 23d day of October, 1891, the testator went into the safe-deposit company, in which he hired a vault, and there wrote out a will, which was, in substance, a copy of the one that Mr. Morgan drew for him, in that he left all his property to the plaintiff; and appointed her executrix. Just why the testator should have prepared this will himself, if he supposed that a will substantially the same purport was in Mr. Morgan’s possession, ready to be produced at his death, is not clear. The-fact of his executing such instrument, under the circumstances, would" tend strongly to show that the prior will drawn by Mr. Morgan, and which was executed in 1884, was then in his posses-, sion, or had béen, some time prior to that, destroyed; and the subsequent obliteration of the signatures upon that will would tend to show that, at the time the obliterations were made, he had changed his mind as to the disposition he should make of his property. The testator could have,had no possible motive in destroying this will, if he had supposed the prior will was in existence, and ready to be proven in case of his' death. The execution in October, 1891, and the subsequent obliteration of this last will, seems to me most conclusive evidence that the testator did not then understand that a prior will was in existence, giving the property to the plaintiff.

But the statute also requires that the provisions of a will should be clearly and distinctly proved by at least two credible witnesses. I have no doubt as to the credibility of Mr. Morgan, but the plaintiff in the action stands in an entirely different position. It is somewhat doubtful whether her testimony is not open to the objection that it is in violation of the prohibition contained in section 829 of the Code. The exhibition to her of the will by the deceased, and her reading it in his presence, might well be part of a personal transaction between them ; and if not in violation of the letter, it certainly is in violation of the spirit, of this provision of the Code, which seeks to prevent a person claiming a part of the estate of a dead man from establishing the facts necessary to sustain his claim by his own testimony.. The plaintiff is the sole person interested in the establishment of this wil-1^ by it she will receive a large sum of money; and it would be extremely unsafe to allow a person standing in that position to testify to facts necessaay to entitle her to a judgment against the estate, when the lips of the testator are closed by death, and hence unahle to contradict or qualify the statements that she has made. The statute requires that the contents of the will shall be proved by two credible witnesses; and to accept the testimony of one to whom the property would go by the will, as that of a credible witness to the contents of the will, would overthrow one of the safeguards that the law has established for the prevention of claims of this kind, based upon the testimony of those interested in enforcing the claim. I have examined the cases-cited by the counsel for the plaintiff, but none of them is applicable to the qhestion presented here, except the case of Schultz v. Schultz, 35 N. Y. 653. That case goes a long way towards establishing the sufficiency of the proof as to the existence of this will at the time of the testator’s death. In that case, however, the will was executed less than two years prior to the time of the testator’s death. It was thus comparatively a short time before the testator’s death that the will was in possession of the custodian, and the court states that there is not a scintilla of evidence or circumstances to show that the testator ever had possession of the will after its execution and delivery to the custodian. In this case, however, the long time that elapsed between the time of the delivery of the will to Mr. Morgan and the death of the testator, the absence of any satisfactory proof of the existence of the will from the time it was delivered to Mr. Morgan to the time of tlm testator’s death, and the fact that the testator, made another will, making substantially the- same disposition of the property, which he subsequently destroyed, all tend to casta doubt upon the fact that the will was in existence at the time of the testator’s death, and there is positively no evidence that it was ever fraudulently destroyed.. I do not think the court is justified in diverting a large sum of money from those legally entitled to it, by allowing a lost will tó be proved, except upon the clearest and most satisfactory evidence of the existence of the will at the time of the testator’s death. And the testimony in this case falls short of what I consider necessary to establish such a will. There should therefore be judgment for the defendants, with costs.