text:
    THE NATIONAL THREAD CO., Appellant, v. THE MANSFIELD SILK AND THREAD CO. and FANNY JACOBS, Respondents.
    Complaint—When dismissal op, error.
    Appeal from judgment entered in favor of the Mansfield Silk and Thread Co. on dismissal of the complaint, and in favor of defendant Jacobs on verdict.

      S. B. Fairchild, for appellant; J. H. V. Arnold, for respondent.
   Davis, P. J.

A careful examination of the evidence in this case seems to leave no doubt that the defendant, Fanny Jacobs, received, and has in her possession, a considerable amount of money belonging to the plaintiff, which she has neglected and refused to pay over to plaintiff on demand. A portion of the money received by her seems to have been paid to the credit of the Mansfield Silk and Thread Co., and it appears was presently in part, or wholly, drawn out and placed to her own credit. Indeed, it is doubtful whether there is, in reality, any such lawful corporation as the Mansfield Silk and Thread Company; but if there be, it has manifestly been used by the defendant Jacobs as an instrument, to enable her to control and keep moneys which in reality belonged to the plaintiff: There was, on this subject, much conflict of evidence, but the conflict arose between her own testimony and that of several witnesses on behalf of the plaintiff. The verdict is against the weight of evidence, and it ought for that reason to have been set aside. There were some errors committed in the course of the trial in the rejection of evidence.

One of the witnesses was asked: “ Will you please state what became of the stock-of Mr. Jacobs, that was in his store at the time of his death? ” This was objected to, on the ground that it was not rebutting evidence, the objection was sustained and an exception taken. It was rebutting evidence, and should, properly have been received as rebutting the testimony of Mrs Jacobs, in respect of her management and disposition of the property and affairs of her husband after his deceas.e.. What would have developed does not appear, and the answers might have tended to show what the plaintiffs claim, to wit: that the property was made over to the alleged corporation; and Mrs. Jacobs had testified that the property was converted into cash, and the bills paid with it; and that the corporation did not get any of the property that Mr. Jacobs left at the time of his death, and did not sell any of the property belonging to her husband ■at the time of his death.

The motion for new trial, both upon the exceptions taken and on the ground that the verdict was against the weight of evidence, should have been granted. Assuming the Mansfield Silk and Thread Co. to be a corporation, there was evidence tending to show that money belonging to the plaintiff, collected and received by Mrs. Jacobs, was placed to the credit of that company, and soon after drawn out by her and placed to her own credit, under circumstances sufficient to have gone to the jury upon the question whether that company, which seems to have been represented and managed by Mrs. Jacobs for her own purposes, was not properly chargeable for the moneys paid in to its account in the bank by her, as a means of enabling her to get possession of it for her own use.

„ We think the exception was well taken, therefore, to the decision of the court granting the motion to dismiss the complaint as to the alleged corporation.

There should be a new trial, therefore, as to both defendants, with costs to abide event.

Brady, J., concurs.


source: Caselaw Access Project

author: Dykman, J.

license: Public Domain

text:
    SECOND DEPARTMENT, GENERAL TERM.
    Filed December 14, 1886.
    SADIE TILLEY, Appellant, v. WILLIAM W. GOODRICH, Impleaded, etc., Respondent.
    Creditors’ action—To reach funds in hands of trustees.
    Appeal by plaintiff from a portion of a judgment rendered at special term.

      James W. Auburn, for appellant; Goodrich, Beady & Goodrich, for respondent.
   Dykman, J.

This was an action by a judgment creditor to reach a fund in the hands of the defendant, and held in trust by him.

She has been awarded judgment for the whole amount of money remaining in the hands of the defendant after its diminution by the deduction of certain costs and expenses which he was allowed to charge against the fund.

The case depends upon a peculiar state of facts, but we think it was well disposed of by the special term,, and this judgment should be affirmed with costs to be paid out of the fund.


text:
    PEOPLE ex rel. THOMAS DEVERELL, Appellant, v. MUSICAL UNION, Respondent.
    Re argument—When motion for will be denied.

      W. Wickham, Smith, for respondent; King & Clemint, for appellants.

       See same case on former argument, 1 N. Y. State Rep., 770.

   Dykman, J.

This is a motion for a reargument, proceeding upon no theory -of mistake or misapprehension, or oversight of a contradictory authority, but upon the ground of error in the decision, while therefore the claim of error may be just, it yet presents no legal reason for a reargument. Four judges of the supreme court in this department have concluded that the relator should be relieved and now on re-examintion of the case on this motion we discover mo new light. If we are in error, we are hopelessly so, for we cannot perceive it.

The motion should be denied, with ten dollars costs.


text:
    FIRST NATIONAL BANK OF INDIANAPOLIS, Respondent, v. ALPHONSO W. BLY, as Receiver of Middletown National Bank Impleaded, Appellant.
    Receiver—When should not be charged with costs.
    Appeal from judgment and order made at the Orange special term.

      William Vannamee, for appellant; Daniel Fin, for respondent.
   Dykman, J.

The respondent has moved for a re-argument of the appeal in this action, although the judgment in its favor was affirmed in so far as it afforded all the relief desired and was only modified by striking out the costs and allowance against the receiver of the defendant.

The modification was made after full deliberation, and was not the result of an oversight or misconception of the subject.

We found an officer of the law guiltless of everything but a neglect to surrender the property which came to his hand in the performance of his duty •and the exercise of his legal functions, who had been charged with costs for that refusal, and we concluded that the discretion of the court had been unwisely exercised in the imposition of such costs.

A re-examination of the subject serves only to confirm and strengthen us in our original determination, and we find no cause or necessity for a re-argument.

The motion should be denied, with ten dollars costs and disbursements.


text:
    MOSHER A. SOUTHERLAND, Respondent, v. GEORGE W. MEAD, Appellant.
    Attachment—For contempt—Motion for—Denial of conditionally.
    Appeal by defendant from an order made at Kings county special term denying a motion to punish him for contempt, upon his appearing for examination in supplementary proceedings upon a day named, and in default that an attachment issue.

      John F. Coffin, for appellant; John C. Dennison, for respondent.
   Dykman, J.

There was a motion for an attachment for contempt against the defendant, and it was denied and now the defendant has appealed from the order. It is true that the denial was conditional, but the appeal is from the entire order, and not from that portion imposing the condition.

The order was favorable to the defendant in any view, and there is no merit in the appeal.

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


text:
    HENRY T. PRATT, Appellant, v. WILLIAM R. ROSE, Impleaded Respondent.
    Conspiracy to defraud—Action for damages.
    Appeal from judgments entered upon dismissal of plaintiff’s complaint, and from an order denying a new trial.

      Thomas J. Bitch, Jr., for appellant; Gibson Putzel, for respondent.
   Dykman, J.

This is an action for the recovery of damages resulting to the assignors of the plaintiff from a fraudulent conspiracy to cheat and defraud, made and carried out by the defendant.

The action was here before on an appeal from a judgment entered in favor of the defendant upon a dismissal of the complaint, on the ground of its failure to state a cause of action.

That judgment was reversed and a new trial has been now had, and the complaint has been dismissed upon the merits, by reason of the failure of proof to substantiate the plaintiff’s case.

An examination of the case discloses a failure of proof sufficient to sustain the cause of action set up in the complaint, and the same was therefore’ oroperly dismissed.

The judgment should be affirmed, with costs.


author: Pratt, J.

text:
    JOHN WHITE, Appellant, v. JAMES BOICE and Another, Impleaded. Respondents.
    Stay of proceedings.
    Appeal by plaintiff from an order made at special term, staying defendants proceedings, to enforce their judgment in this action, pending plaintiff’s appeal from that judgment, and denying plaintiff’s motion to “ stay proceedings of the said defendants, their agents, servants, employees or other representatives, and upon the part of the sheriff of the city and county of New York upon the judgment entered in the superior court, in the action of the Maryland Coal Company against John White.”

      Charles W. Brooks, for appellant; Marsh, Wilson & Wallis, for respondents.
   Pratt, J.

While the judgment of special term was in force, there were substantial difficulties in the way of granting such a motion as is here made by the plaintiff.

The order appealed from went as far as it well could in protecting the rights of plaintiff.

The order must therefore be affirmed, but without costs, and without prejudice to any application plaintiff may make for like relief upon the settlement of the order, made upon the appeal from the judgment.

Order affirmed, without costs.


text:
    JOSEPH N. PALMER, Respondent, v. THE PENNSYLVANIA COMPANY, Appellant.
    Negligence—Question of fact—Verdict sustained.
    Appeal from a judgment in favor of plaintiff, entered upon a verdict rendered at the Dutchess circuit, and from order denying motion for a new trial.

      B. F. Wilkinson, for appellant; Grant B. Taylor and F. B. JJ>ren, for respondent.
   Pratt, J.

There are no exceptions that need to be discussed. The only question in the case is one of fact, whether the defendant was guilty of negligence.

The jury have found that such negligence existed; and while it may not have been gross, it is impossible to say that the jury had not fair grounds for the-verdict they rendered. The damages were not excessive.

Judgment affirmed, with costs.

Barnard, J., not sitting.


text:
    MARY AMELIA ROSS, Appellant, v. JOHN DUFFY, as Sheriff of Westchester County, Respondent.
    Action for escape—When Service of summons should not be set-aside.
    Appeal from an order made at special term, annulling, quashing and setting-aside the service of the summons.

      Luiuor & Switts, for appellants, Glose & Bobertson, for respondents.
   Pratt, J.

It must be conceded that by the escape of Levinnes aprima faciecause of action arose against the sheriff.

The facts upon which this motion is made are to some extent in dispute. Whether or not they afford a defense to the action is a question that requires, no little consideration.

The most appropriate way to ascertain the facts, and determine the consequences which flow from them, is by the systematic methods of a regular trial.

The defendant’s answer will state the facts upon which he relies more satisfactorily than the affidavits before us, and should a demurrer be interposed to-the answer, the resulting discussion might be very useful.

The order should be reversed, and the cause proceed in the usual manner. Order reversed, with ten dollars costs and disbursements.


text:
    IMPORTERS’ AND TRADERS’ NATIONAL BANK et al., Respondents, v. CLARENCE PERINE et al., Appellants.
    Allowance—When motion for should be denied.
    Appeal from order of special term denying defendants’ motion for an extra allowance.

      Holt & Butler, for appellants; Blumensieil & Hirsch, for respondents.
   Pratt, J.

The moving affidavit of appellant does not show that the case was difficult and extraordinary, but on the contrary, only two witnesses were examined, and the only question of fact was whether Christine Ferine had loaned money to her husband, and the amount.

We think the justice at special term used his discretion very much in favor of defendant in granting him taxable costs and disbursements.

The reason given for the decision at special term may not be tenable, but the order was clearly right.

Order affirmed, with ten dollars costs and disbursements.

Barnard, P. J., concurs; Dykman, J., not sitting.


text:
    EDWARD VAN ORDEN et al., Respondents, v. CHARLES S. SCHLIER, et al., Appellants.
    Foreclosure of contract relating to land.
    Appeal from a judgment entered upon the decision of the court after a trial at Suffolk county special term.

      I. Newton Williams, for appellants; Z>. G. Harriman and B. F. Tracy, for respondents.
   Dykman, J.

This is an action for the foreclosure of a contract, and the plaintiffs have been awarded a judgment for the relief demanded in the complaint from which the defendant Schlier has appealed.

The findings of fact are in favor of the plaintiffs and strongly against the appellant, and we find them all well supported by the evidence.

The motion to dismiss the complaint was properly denied and there are no errors of law disclosed by the record.

The judgment should be affirmed, with costs.


author: Barnard, P. J.

text:
    SUSAN W. BRYAN, Appellant, v. ABRAM VIELE, Impleaded with CORNELIA VIELE, his wife, Respondent.
    Amendment of complaint—Appeal—Cannot both amend—Complaint AND APPEAL FROM ORDER MAKING SUCH AMENDMENT NECESSARY.

      Wingate & Cullen, for appellant; Elias H. Peters, for respondent.
   Barnard, P. J.

The amended pleading was a substitute for the original one, and when it was put in under the order sustaining the demurrer to it, and by force of the leave contained in the order, the defendant lost all right to appeal from the order sustaining the demurrer. He accepted the benefit of the order, and he cannot, in this case, both amend the complaint and appeal from the order, making such an amendment necessary.

The motion to dismiss the appeal should therefore, be granted, with ten dollars costs.

Pratt and Dykman, JJ., concur.


text:
    YONKERS GAS-LIGHT COMPANY, Respondent, v. ALLEN YOUNG, Appellant.
    Complaint—Amended answer—Demurrer to.
    Appeal from an order sustaining a demurrer, and the judgment entered thereon.

      E.. R. Keyes, for respondent; Allen Taylor, in person, and Close & Robertson, for appellant.
   Pratt, J.

The answer set up a good defense to the plaintiff’s complaint. The drawing.and acceptance of the order constituted an assignment of the sum expressed therein; and when the plaintiff' accepted said order and promised to pay the amount, it became liable. By demurring, the plaintiff admits that the money was due on the contract on the 5tli of September, 1885, and that there was no notice not to pay to Taylor until after that date.

Neither does the form of the order furnish any reason why the plaintiff should refuse to pay the defendant Taylor. It is plain what was the intention of the parties, and the order will be construed in accordance therewith It was drawn upon the plaintiff through its president, and assigned the fund due Young upon his contract with the company to the amount stated therein.

We hold that the facts stated and admitted by the demurrer are sufiicient to entitle the defendant to judgment.

Judgment reversed, and judgment absolute ordered for defendant Taylor against plaintiff for. $107 interest and costs.


text:
    PEOPLE OF THE STATE OF NEW YORK, Appellant, v. RALPH R. PEARSALL, Respondent. SAME, Appellant, v. JAMES A. THORN, Respondent. SAME, Appellant, v. JAMES TITUS, Respondent. SAME, Appellant, v. JOHN G. CLARK, Respondent.
    Adulteration of milk.
    Appeals from four judgments entered upon verdicts in favor of the several defendants, rendered at the Westchester county circuit.

      Risley, Quinn & Ferry, for appellant; Benjamin W. Downing, for respondent, Pearsall; David H. Hunt, for respondent, Thorn; William J. Youngs, for respondent, Titus; Close & Robertson, for respondent, Clark.
   Dykman, J.

The people of the state of New York commenced four actions in the supreme court against the four different defendants above named, for the recovery of a penalty of $100 against each of them, for the violation of chapter 183 of the laws of 1885, and the acts supplementary thereto.

These statutes inhibit the sale of impure or unwholesome milk, and milk is to be declared adulterated if shown to contain water above a certain percentum, or milk solids, or fat below a specified per centum.

These causes were all tried at the circuit before a jury, and the verdict was in favor of the defendant in each case. The plaintiff has appealed from the judgment and order denying a new trial in all the cases.

The cases as they come here are all similar in one respect. While the course of the trials was such that the causes were submitted to the jury on questions of fact, the validity and constitutionality of the law was fully sustained by the trial judges. The cases therefore present no question on that subject. Even the question of guilty knowledge is not involved.

The defense in all the cases was a denial, and after the plaintiff had introduced proof which brought the case up to the standard prescribed by the statute, the defendant introduced proof tending to establish his defense, and then the disputed questions of fact were submitted to the juries in charges by no means favorable to the defendants, and which fully vindicated and upheld the law

It is not deemed requisite to examine the peculiarities of each case; as the appeal comes to us, there is small scope for the interference of an appellate court.

Under the full operation and control of the law, the juries have, in each case, found the defendants free from its violation. The evidence on the part of the defendants in all the cases, is amply sufficient to sustain the verdicts, and as it must now be held true, it stands as their vindication.

The exceptions taken by the plaintiff during the trial, and also to the charge and the refusal to charge as requested, have all been examined and found free from error.

The judgments should all be affirmed, with costs.

Pratt and Bartlett, JJ., concur.


author: Dyxman, J.

text:
    CHARLES H. MEAD and THOMAS TAFT, Respondents, v. WALTER C. TUCKERMAN, Appellant.
    Referee’s Fees—Taxation—Stipulation regarding.
    Appeal from an order made at the Orange county special term, denying a motion for a retaxation of costs.

      Mvarts, Southmayd & Choate, for appellant.

      DiU & Chandler, for respondents.
   Dyxman, J.

This is an appeal from an order denying a motion made by the defendant for a retaxation of the costs. The question involved relates to the fees of the referee before whom the cause was tried.

The stipulation of the counsel for the compensation of the referee prescribes a certain sum for every hearing, and the misunderstanding originates in the interpretation of that term. The charges of the referee are made on the theory that an adjournment was a hearing within the meaning of the stipulation, and there are three affidavits to prove that such was the construction it received by all the lawyers during the 'progress of the trial.

The proof seems to be sufficient to justify the charges of the referee,' and the order should be affirmed, with ten dollars costs and disbursements.

Barnard and Pratt, JJ., concur.


text:
    PETER RILEY, Respondent, v. PHENIX INSURANCE COMPANY Appellant.
    Insurance (fire)—Unoccupied premises.
   Pratt, J.

Under the charge of the court the jury must have found either that the defendants insured the place as an unoccupied house, in which case they are clearly bound to pay the loss; or that at the time notice was given of the house last becoming vacant, the agent waived the right to forfeit the policy and consented to carry the risk.

The testimony would justify either conclusion, and in either case the plaintiff was entitled to a verdict.

There is no preponderance of evidence in favor of the defendants. On the contrary, it seems established that the house was vacant when insured, and that it remained vacant for a year, which strongly sustains plaintiff’s claim that the house was insured as vacant property.

Both parties agree that plaintiff was to get a tenant when he could, but it can well be claimed on the evidence, that he assumed no obligation to find a tenant, and that the insuarnce should, in either event, be valid and binding.

We do not think the language of the parties at the time notice was last given, should be subjected to a strict construction. -

The agent had once before insured the house for five years; the present policy was for three years; it had twice been vacant during the last policy and no forfeiture declared, and the whole case supports the theory of the plaintiff that the validity of the policy was not by either party supposed to depend on the house being occupied.

Judgment affirmed with costs.

Baenabd, P. J., not sitting.


author: Baenabd, P. J. Pratt, J.

text:
    JOHN F. CLARK, Appellant, v. MARY A. CLARK, Respondent.
    Alimony—When and what amount allowed.
   Baenabd, P. J.

The defendant has two minor children to provide for.. The plaintiff is worth some $50,000, and has an income of about $2,00c a year. The defendant and her children live in the house which plaintiff had left before he brought this-suit for a limited divorce. It is not unreasonable to allow the ■ defendant twelve dollars a week and the house rent, pending the trial. The. case can be tried on the merits always within thirty days from the date of the issue. The issue was made in July, 1886. The present order is temporary, and rests upon the duty of a husband to support his wife and children until neis legally relieved from it. When the case is tried, the order made will be based upon the facts as' finally proven'. The rent of the house is moderate, 1 and the house is the same as the parties occupied while they lived together. The remaining part of the order appealed from denied a motion to strike out all irrelevant or scandalous matter contained in said petition ” for alimony and expenses. The motion papers do not specify what part of the petition is to be deemed irrelevant or scandalous. There are parts of the petition which do not affect the issue, but they all bear upon it as tending to show a reason for the alleged conduct of the husband.

The order should be affirmed, with costs.

Pratt, J.

The alimony granted by the court below is but little more than plaintiff voluntarily offered to pay on condition that the cause be referred for trial.

It does not satisfactorily appear that he is unable to pay the sum granted, and unless the defendant seeks to delay the trial, the order appealed from should be allowed to stand.

Order affirmed.


text:
    LOUIS H. DICKERSON, Plaintiff, v. LA SEVALSON GORDON, Defendant.
    Re-abgument—Appeal—When motion denied.
   Dykman, J.

This action is for the recovery of a lawyer’s bill for profes-. sional services and incidental disbursements. It was tried by a referee, who allowed a portion of the claim only, and on appeal from the judgment we reached the conclusion that the testimony furnished a justification for the finding of the referee.

Now a motion is made for permission to appeal to the court of appeals, and for a re-argument in this court, and we discover no reason in favor of either motion.

There has been no oversight or misapprehension in this court, and there is no principle of law involved which is not well understood.

The motion should be denied, with ten dollars costs and disbursements.


text:
    THOMAS M. KING and Others, Plaintiffs, v. KEON BARNES and Others, Defendants.
    Corporation—Partners in real estate—Statute of frauds—Proper PARTIES.
   Pratt, J.

By the agreement between Barnes and the plaintiff to become jointly interested in the purchase of land, the cost of which was to be borne equally between them, they became partners in the undertaking, and their mutual rights and liabilities will be determined upon the principles of the partnership relation.

The court below was right, in overruling the objections founded upon the statute of frauds.

The corporation was organized, not for the purpose of disturbing the obligations of the partnership relation, but to conveniently carry them out. It was an instrumentality cr atcd to be the custodian of the property and interests of the associates. It has, for that purpose, a separate and distinct personality.

The property purchased by the money advanced by some of the members of • the partnership, has been vested in the corporation whose obligations have been created as security for the adances.

No full and complete settlement of the controversy can be had, except by the decree of the court binding the corporation. It was, therefore, error to dismiss the complaint as to the corporation.

As a matter of convenience, though perhaps not essential parties, the defendants, Post, Carpenter, Disosway and Guión, were jjroper parties to the action.

So long as they continue officers of the corporation, it may be necessary for the court to control their action by its orders; and their presence upon the record should be continued for that purpose.

We think the complaint was sufficiently broad to enable the plaintiffs to avail themselves of all the facts brought out upon the trial, and that the court should proceed in this action to settle all the rights of the parties.

Whether or not some of the causes of action are technical'.y vested in the corporation, we do not consider necessary to discuss. The corporation, and the parties beneficially interested, were properly before the cou.t, which will, upon the accounting, see that justice is done to all. As the con roi of the corporation is shown to be in the hands of parties hostile to its real owners, the reasons why the matters in dispute should be determined now, are so much the more apparent.

The parties aggrieved by Barnes’ retention of $12,500 of the money raised to purchase the Duncan property were his associates, and the questions arising from that transaction should be determined by this action. That item will be adjusted in the accounting that will be had, and such money as may be in his hands, not properly accounted for, will be a lien upon the shares of stock which come to him under the decree. If delivered to him before the accounting is had, the cc tificates should be so indorsed as to bear upon their face notice that they are subject to the result of the accounting.

We find no just- ground for the findings at special term, that all the associates are not equally liable for the moneys paid for the Barton property. That money, as well as the $183,000 secured by mortgage, was advanced for the benefit of the joint undertaking; all should contribute equally to the repayment of the sums advanced.

The 7,000 shares wrongfully issued, should be canceled.

While we do not regard the amendment of the complaint as essential, it can do no harm, and the plaintiff is permitted to make such amendment as he may be advised, to make the complaint conform to the facts proved It is clear that the interest of ail parties requires the controversy to be settled in this action.

In the main the order on reversal, as proposed by plaintiffs, is correct.

The provision proposed to sell the stock of parties in default, is not seen to .be necessary, and should be omitted.

The order should be settled on two days’ notice.


text:
    JULIA FOY, an Infant, Respondent, v. WILLIAM BUCHANAN and Another, Appellant.
    Negligence—Contributory negligence—What is.
   Pratt, J.

It was abundantly proven that during the many months the plaintiff worked in defendant’s factory, notices were conspicuously posted that machinery was in no case to be cleaned while in motion. It was also shown that at proper times the machinery was stopped to allow the necessary cleaning to take place. These facts, taken in connection with the manifest intelligence of the plaintiff, make it entirely clear that she could not have been ignorant of the peril she incurred when she undertook to clean the machinery around the revolving wheels.

It may well be that proper care on the part of the defendants would have prompted that the wheels should be enclosed. Had the plaintiff, without fault, slipped and fallen upon the wheels, it may well be that the employers would be held guilty of negligence. But deliberately undertaking to clean machinery in motion, which she could have stopped .at will, is an act the negligence of which must have been apparent to her mind, and the legal consequence cannot be avoided.

There was no evidence that the irregular and furtive practice of other girls, to clean moving machinery, had the sanction of the employers.

We think the contributory negligence of the plaintiff requires the reversal of the judgment.


text:
    WILLIAM NELSON, Appellant, v. EDWARD GRIDLEY, Respondent.
    Trespass—Title to land—Adverse possession—Sufficiency of evidence as TO.
   Pratt, J.

This is an action for trespass, involving the title to land.

The plaintiff holds under a deed describing his land by courses and distances, and the alleged trespass did not take place upon the land described in his deed, but upon adjoining land which the plaintiff claimed to own by adverse possession, and by practical location by the parties.

At the close of the testimony, the court directed a verdict for the defendant. We think this direction was proper. There was no evidence sufficient to justify a jury in finding that the plaintiff owned the land where the alleged trespass occurred.

It was clear that the evidence did not make out adverse possession under the statute, as it was never inclosed by a fence or actually cultivated and improved. Paragraphs 872 and 368, Code of Civ. Pro.; Pope v. Hammer, 74 N. Y., 240.

Fencing one, or even both ends of the strip down to the water, was not such an inclosure as the law required to establish adverse possession. Yates v. Van de Bogert, 56 N. Y., 526; Luke v. Carley, 24 Wend., 251.

It was incumbent upon the plaintiff to prove a hostile possession of the land in question, exclusive of any other right; this he utterly failed to do. On the other hand, it appeared that his grantor only assumed to include in the deed precisely what had been originally conveyed, which did not include the land in question. The fact that the original deed from Gridley reserved the right to flow to extent of three feet is not material, as it does not clearly appear but that flowing to that height might interfere with the land described in the deed. Even if it did not, it was competent for the grantor to make such a reservation for purposes of his own. In no sense could such a reservation extend to the boundaries as described in the deed. Neither do the facts of the case constitute a practical location of the line as claimed by the plaintiff. There was never any dispute or question as to the line, no doubt as to the meaning of the deeds, and no actual going upon.the land and locating of the lines.

We have examined the exceptions taken upon the trial, and find none sufficient to warrant a reversal of the judgment.

The motion for a new trial was properly denied. It is immaterial what was the intention of Gridley, since he plainly expressed in his deed the land conveyed.

The judgment and order must be affirmed, with costs.


text:
    ABRAHAM SANGER, Jr., and Another, Appellants, v. LEANDER WATERBURY and Others, Respondents.
   Pratt, J.

A careful examination of the case and the authorities cited have failed to disclose any error. The judge who tried the case filed a carefully-prepared opinion, which meets fully the issue involved, and renders discussion now unnecessary.

We think the case must be affirmed upon the opinion below, with costs.


text:
    PEOPLE ex rel. NEW YORK, WEST SHORE AND BUFFALO R. R. CO., Appellants, v. TOOHEY et al., Assessors of the City of Newburgh, Respondents.
    Taxes and assessments—Valuation op railroad property.
    Appeal from an order of the special term, dismissing a writ of certiorari to review the action of the defendants in valuing the property of the relator.
   Dykman, J.

In 1884 the assessors of Newburgh valued the property of the West Shore Railway in that city at $489,275. The company sued out a writ of certiorari, and reviewed the action of the assessors at the special term. The proceedings of the assessors were affirmed, and the company now appeals from the order dismissing the writ.

Into the foreground of the argument is put the inability of the railway company to earn its running expenses, its insolvency, and a valuation of $20,000,000 for the whole 425 miles of road,' based on its selling value in the open market.

From this the argument is urged that the part of the railway in Newburgh should be assessed for taxation as part of the whole, and ratably with the value of the entire route.

There is no process by which the assessors of Newburgh, in 1884, could have fixed the value of the West Shore Railway. It was the moot question of the day in railroad circles, and many of the best informed students of the questions were convinced it had no value save for a sale to its more powerful rival, whose inducement to purchase could only come from the desire to end the relentless cutting of rates. It was thought to be only a question of time and price, but no one could do more than guess at either. We think, therefore, that the situation of the relator’s company made it impracticable tor the Newburgh assessors to consider the value of the whole route, or value the two miles in that city ratably with the whole.

The assessors could assess the property only with reference to its intrinsic value.

The first cost of the right of way through Newburgh was $513,122.57 and a million of dollars were spent in improvements. The assessors valued the completed route at $386,775. Very conclusive evidence of eiror should be presented, to authorize a reversal of a valuation which seems very liberal to the relator. The experts vary, and do not convince us they are right.

The freight yard is assessed at $100,000. Twenty years ago it was bought for $100,000, and $15,000 was expended in improvements. The Mutual Life Insurance Company loaned $100,000 on mortgage on the property but had to foreclose, and, at the sale, the price was $98,500. The purchaser at the foreclosure sale sold to the West Shore Company at $110,000, which we assume to be a very full price at that time; but a very large part of the property was then under water, and has since been filled in and made fast land, and available for commercial uses. We feel confident we are far within the limits of fact, in saying the value was increased more than half by this process. _ One of the witnesses for the relator valued the yard at $150,000, while Mr. Bigler placed it at $300,000; McCroskery at $250,000; Mr. Gibb at $400,000. We are well satisfied the assessors have dealt fairly in valuing the freight yard at $100,000.

We are not as well satisfied with the valuation of the three acres called gravel bank at $3,500, but the evidence of error is not strong enough to lead us to substitute our judgment for the assessors’ and the special term, both of which have intimate personal knowledge of the property.

The order dismissing the writ should be affirmed, with costs.


text:
    SAMUEL T. LUDLOW et al., Respondents, v. GEORGE W. MEAD, Appellant.
    Practice—Correction op order nunc pro tune.
    Appeal from an order made at special term allowing defendant to make a -certain order, previously granted, conform to the affidavit on which said order was granted.
   Pratt, J.

is an appeal from an order made at a special term. The motion made on the part of the appellant, was to vacate an order made Febru•ary 27, 1886, or to make the same conform to the affidavit and notice of motion on which such order was granted.

The appellant’s motion was denied, and leave was granted by the court at special term to file an additional affidavit mine pro tune, setting forth a different state of facts from that swm'n to in the original affidavit.

The original application was for leave to issue execution on a judgment specified in the notice of motion.

The moving affidavit recites that on the “first day of October, 1878.”

No notice was given to defendant Mead of an application for leave to issue -execution on any judgment of October fifth, 1878

The plaintiff simply made a mistake in his affidavit as to the date of his judgment. The defendant does not claim to have been misled, or in any manner prejudiced by the mistake, and we think it was clearly within the power of the court to permit the plaintiff to make the correction. Had the defendant appeared on the return day of the first motion, and made the objection that there was no such judgment, it would have undoubtedly been corrected upon the spot; and the fact that plaintiff had made the mistake, may account for "his non-appearance. Technically the order ought to have conformed to the affidavit, but no injustice, so far as appears, was done to defendant. It is absurd to say that because the plaintiff made a mistake in a date he has lost his Judgment. Costs being in the discretion of the court, the defendant has in no "manner been prejudiced by the action of the court.

Barnard and Dykman, JJ., concur.


text:
    MARY MEEGAN, Respondent, v. WILLIAM HARDENBROOK, Appellant.
    Trespass—Damage to real property.
    Appeal from a judgment of the county court of Queens county, entered upon a verdict in favor of plaintiff, in an action for damages to real property.
   Dykman, J.

This was an action for damage to real property, tried origimally in a court of á justice of the peace before a jury, where a verdict was ren■dered for the plaintiff for forty dollars. It was again tried in the county court of Queen’s county before a jury, on appeal to that court, and there the plaintiff obtained a verdict for fifty dollars. From that judgment the defendant has appealed to this court.

The injury was doubtless committed under a misapprehension respecting the boundary line between the lots of the plaintiff and defendant, but that im;o ■cent intention does not excuse the wrong, the result to the plaintiff has been the same, and the defendant must answer for the consequences. He sent a person to clear the lots and remove the structures therefrom under the belief that they were upon his land, but a subsequent survey demonstrated his error, .and he was thus left an inexcusable trespasser.

In respect to the corn crib, the jury has found the defendant responsible for -the acts of his son, and the verdict cannot be disturbed in that respect.

The judgment should be affirmed with cost.

Pratt and Dykman, JJ., concur.


author: Hardin, P. J. Martin, J.

text:
    Walter H. Cornell et al., App’lts, v. The Skaneateles Railroad Co., Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    Negligence—Railroads.
    Defendant’s road was built upon a highway. Plaintiff, in order to avoid • an approaching train, endeavored to cross the track by a private crossing, when his horse’s hoof was caught by a projecting spike and a hole in the planking and held until the train struck the horse and broke its leg, in consequence of which it had to be killed. Held, that a verdict in favor of plaintiffs was properly set aside.
    Appeal from order setting aside verdict in favor of plaintiffs and granting a new trial.
    Action for injuries to plaintiffs’ horse, which resulted in his having to be killed. Defendant’s road is built upon a highway, and at the place of the accident there is a private crossing across' the tracks which was built for the accommodation of an adjoining owner, and which led nowhere except into his yard. One of the planks was three inches from the rail and considerably worn, and a railroad spike had become loosened and projected above the surface of the tie. Plaintiffs, in order to avoid an approaching train, endeavored to cross the track, when the horse’s hoof became caught by the spike and plank and held until the train struck and injured him so that he was obliged to be killed.

      F. E. Stone and Baldwin & Kennedy, for app’lts; George Barrow, for resp’t.
   Hardin, P. J.

Upon the trial the court charged the jury: “ There can be no charge for negligence supported against a party who is claimed to be culpable, unless that party has violated some duty which he owed the injured party by the careless act complained of. This was not a place for the public to cross that , railroad track. It was not constructed by anybody for the public to cross there. If it was built for any purpose it was for the convenience of MePeak, to get out into his own yard; and a party' who passed over it, not having any business to do with McPeaks or being called there for any legitimate purpose, naturally would do so at his peril; and he would assume all the responsibilities incident to that passage, and resting upon the question of its defective structure. Such is the natural suggestion which arises from that proposition. But I have concluded to leave (it) to you, gentlemen, the question of the defendant’s negligence, and the question whether there was any duty owing by the defendant to the plaintiff in reference to this particular matter, which would charge it with carelessness towards him. There is no evidence that these planks were laid by the defendant, the railroad company. There is no evidence showing who laid them. There is evidence showing that they were laid for the convenience of McPeak to get out and in; and there is evidence to show that people who drove over this narrow space used these planks or this planking to get across upon the western side of the track and into McPeak’s yard in case they were unfortunate in meeting an engine coming down. How, as this was not a place for the public to cross, and as it was not a part and portion of the highway at that point, what obligation rested upon the defendant, which he owed to the plaintiffs, and which it was bound to discharge, which it omitted to do ? Was the defendant guilty of carelessness because the plank was laid three inches from the rail? Was it guilty of negligence because a spike was started upon the rail there, at a point where it did not invite the public to cross, and where they had no right to cross except upon their own responsibility, and at their own hazard ? Was that an act of carelessness on the part of the defendant to do either of these things ? If it was, and if it owed this obligation to the public, not to McPeak, but to the public generally, to see the crossing was well made, securely made, and that extraordinary care was used for the purpose of preventing any possible accident there, then, gentlemen of the jury, you will have arrived at the conclusion that this company, the defendant, was guilty of negligence because it did not put down these planks, or see that they were put down in better shape.” In the course of the opinion delivered by the learned trial judge in granting the motion, he says: “ Upon the evidence I do not think defendant owed plaintiffs any active duty or vigilance. The place where they attempted to cross defendant’s road was not a public highway, but a private entrance from the highway, if a highway existed at that point, as contended by the plaintiffs, into McPeak’s yard for his personal convenience and benefit.” Again, he adds in the opinion, viz.: “ The plaintiffs in attempting to enter his yard were not there on business with him, but appropriated this private crossing for their own convenience, and to avoid an approaching train of defendant’s rightfully passing on the road. They were not there by defendant’s invitation, nor upon its business, but for their own convenience simply.” In Maize v. N.Y. C. R. R. Co., 1 Hun, 420, Miller, P. J., in a case involving the same principle and- question, says: “The fact that persons were in the practice of passing at the place named did not of itself confer any right upon the plaintiff, or impose any additional duty upon defendant. If such a theory could be permitted .to prevail, railroad corporations might be subjected to serious liabilities without their knowledge or consent by the acts of individuals assuming to establish rights which are entirely unauthorized. I do not understand that they owe any duty, even to the owner of a private way through which they pass, which called upon them to .exercise care i.i running their trains.” Upon the evidence found in the appeal book we think the trial court was not warranted in allowing the jury to guess that it was the defendant’s duty to keep the place where'the accident occurred in a better state of repair. We agree with the learned trial judge in his conclusion that a new trial should be ordered. We therefore sustain his order.

Order affirmed, with costs.

Merwin, J , concurs in the result.

Martin, J.

The special term was of the opinion that if the defendant owed the plaintiffs the duty of maintaining the crossing where the accident occurred in a safe condition for use, the verdict was justified by the evidence, but held that it did not. The learned presiding justice, in his opinion, seems to assume that the only question in the case is whether the defendant owed the plaintiff any such duty, and holds with the special term that no such duty rested with the defendant. In this conclusion I cannot concur.

The defendant’s railroad was laid in a public highway. It is true the railroad company purchased the interest of the plank road company therein. But it was not closed as a highway, but kept open, used by the public and worked as such by the persons living along the same. The plaintiff’s servant and team were, therefore, properly there, and not trespassers in passing over it. But it is said that the injury occurred while the servant and team were crossing the railroad attempting to reach a place of safety while the train should pass, and, hence, they were trespassers. I cannot think so. They were still in the highway, and it seems to me that the danger was such as to fully justify the servant in crossing at this point to escape it, and that he was not a trespasser in doing so.

In Spooner v. D., L. & W. R. R. Co. (115 N. Y., 22 ; 23 N. Y. State Rep., 554), where the plaintiff came to the defendant’s track to see a train pass, found some small children playing about the rails, told them to get off the track, and, they not heeding her, she stepped upon it to make them get out of the way, and her foot was caught between the plank and rail, and she was injured by an approaching train, it was held that she was not a trespasser, and not chargeable with negligence in thus going upon the track. See also Eckert v. L. I. R. R. Co., 43 N. Y., 502.

In Rexter v. Starin (73 N. Y., 602), it was held that it is the duty, as well as the right, of a person whose property is endangered by the negligence of another, to do what he can to save and protect it, and, therefore, if while exercising such care he is injured, the person guilty of negligence is liable.

I think the principle of those cases should be applied here. The defendant had laid its railroad along a public highway, which was kept open, used and worked as such. At the point where the injury occurred it was narrow, with a deep ditch on one side, and the railroad upon the other. It was dangerous to a person driving along it, especially if driving a team that was afraid of the cars. The plaintiff’s team, was afraid of the cars, and his servant sought to reach a place of safety by attempting to cross the track over this crossing on to the premises of an adjoining owner. That under the circumstances it was proper for him to do so, and that in so doing he was properly using the crossing at that point and was not a trespasser, so that the defendant owed him no duty, seems to me quite clear.

If the order in this case can be sustained, I think it must be sustained on the ground that the proof showed conclusively that the cause of the accident was the projection of a spike above the surface of the tie into which it was driven, and that there was no evidence to justify a jury in finding that the defendant had either actual or constructive notice of its projection, and no evidence to justify it in finding that there was any defect in the original construction of the crossing that caused the injury icomplained of.


author: Martin, J. Hardin, P. J.

text:
    Emily Tompkins, Adm’rx, Resp’t, v. The City of Oswego, App'lt.

      Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    1. Municipal corporations—Negligence—Defective streets.
    Plaintiffs intestate, a man sixy-three years of age, was killed by falling over a defective railing into the canal, where he was drowned. It appeared that the street ran along the canal and twenty feet therefrom; that the street inclined toward the fence, and on the other side of it the ground descended precipitously to the canal. All that remained of the fence was the lower rail about twelve inches from the ground. The ground was wet and slippery on the evening of the accident. Held, that the evidence was sufficient to justify the submission of the question of defendant’s negligence to the jury.
    2. Same-Contributory negligence—Intoxication.
    The mere fact that the deceased was intoxicated at the time of the accident is not alone sufficient to establish contributory negligence, but is at most a circumstance for the consideration of the jury, and a charge that it is for them to determine whether the intoxication contributed to the injury is proper.
    3. Same—Notice.
    The requirement as to notice contained in § 15 of chap. 127, Laws 1877, relates only to sidewalks and crosswalks, and not to other defects in the street.
    Appeal from a judgment entered in Oswego county October 9, 1890, on the verdict of a jury, and from an order denying the defendant’s motion for a new trial made on the minutes of the trial judge.
    The action was to recover damages for the alleged negligence of the defendant in not properly maintaining a fence or guard railing along the side of West First street, in the city of Oswego. The plaintiff claims that by reason of the defendant’s omission to maintain such fence or railing, the plaintiff’s intestate met with the accident which caused his death. At the point where the accident occurred, a canal, known as the Yarick canal, runs parallel with West First street, on the east side thereof, and is about twenty or thirty feet from the fence or railing on the east side of the street. Just east of the fence the ground declines precipitously some twenty-five or thirty feet to the canal.1 Over this precipice' the plaintiff’s intestate fell, and was drowned. A fence or guard railing had been erected along the side of the street, but was out of repair at the point where the accident occurred, the upper and middle rails being gone, leaving only the bottom rail, over which the decedent fell. This rail was about twelve inches above the ground. The evidence tended to show that this fence was erected by the defendant. The surface of the ground in the street was uneven and descended towards the fence. There was nothing at the point where the accident happened to protect a person from falling into the canal except the lower rail. The precipice was an abrupt one. The street near the fence had for years been used by the public, both by travelers on foot and by teams. On the evening of the accident the ground was wet and slippery, and there had been a slight fall of snow. The decedent was a man about sixty-three years of age, was able to work and support his family, earning about $500 a year.
    On the trial when the plaintiff rested, the defendant moved for a nonsuit on the grounds: “ 1. That contributory negligence on the part of the deceased had been shown by the plaintiff’s evidence; and, 2. That no notice of the defect complained of had been given to the defendant as required by its charter.” At the close of the whole' evidence the motion was renewed upon the same grounds and the additional grounds: First. That no liability as against the city had been established; and, second, that contributory negligence on the part of the plaintiff’s intestate had been shown. Both motions were denied, and the defendant excepted. On the rendition of the verdict the defendant moved to set it aside and for a new trial on the minutes, which motion was denied.

      Thomas H. King, for app’lt; Lester & Smith, for resp’t.
   Martin, J.

A municipal corporation is bound to exercise ordinary care and diligence to see that its streets are kept and maintained in a condition rendering them reasonably safe for travelers to pass over them. This duty extends to the entire width of the street, including the sidewalks, and to persons on foot as well as teams. Whether the defendant was guilty of an omission to perform this duty is one of the questions in this case. The court submitted to the jury the question whether the defendant was negligent in omitting to repair and properly maintain the railing which was erected along the side of the street where the accident occurred, so as to protect travelers from the danger of falling off the embankment along which the street ran. This railing had been out of repair some months, and the question whether the defendant had constructive notice of that fact was left to the jury. We think the evidence was sufficient to justify the court in submitting the question of the defendant’s negligence to the jury. Fitzgerald v. City of Binghamton, 40 Hun, 332; affirmed 111 N. Y., 686 ; 19 N. Y. State Rep., 931; Ivory v. Town of Deerpark. 116 N. Y., 476; 27 N. Y. State Rep., 643; Jewhurst v. City of Syracuse, 108 N. Y., 303; 13 N. Y. State Rep., 623.

We are also of the opinion that whether the plaintiff’s intestate was free from contributory negligence was, under the evidence, a question for the jury and properly submitted to it. There was considerable evidence introduced by the defendant which tended to show that the decedent was intoxicated at the time of the accident, and that such intoxication did, or might have, contributed to or caused the accident which resulted in his death. On the other hand, the plaintiff introduced the evidence of persons who were present when the accident occurred, as to how and under what circumstances it happened, which tended to show an absence of contributory negligence.

If it were admitted that the decedent was intoxicated at the time, that fact alone would not establish contributory negligence on his part. It would be at most a circumstance for the consideration of the jury in connection with the other facts in the case. If the jury had found that the decedent was intoxicated, and that such intoxication contributed to the accident, it might have barred a recovery. Lynch v. Mayor of New York, 47 Hun, 524; 15 N. Y. State Rep., 103 ; Fitzgerald v. City of Binghamton, 40 Hun, 332, 336; affirmed 111 N. Y., 686; 19 N. Y. State Rep., 931. But the jury having found upon all the evidence that the decedent was free from contributory negligence, we think its verdict should be upheld.

We find no error in the refusal of the court to non-suit the plaintiff because she failed to prove that the defendant had actual notice of the defect complained of. The contention of the defendant is, that § 15 of chapter 127, Laws 1877, is applicable, and hence, that such notice was necessary to a recovery by the plaintiff. That statute provides that the defendant shall not be liable for any injury sustained by a person in consequence of any sidewalk or cross-walk being out of repair, unsafe, dangerous, obstructed by snow, ice, or otherwise, unless actual notice of such condition shall have been given to the common council, the board of public works, or the superintendent of public works, at least forty-eight hours previous to such injury. The trial court held that that statute was not applicable - to this case. It will be observed that the statute relates only to side-walks and cross-walks and does not relate to other defects in the street We think the court properly held that the statute was not applicable.

On the trial the court charged: “It was the duty of the defendant to protect the public under the circumstances of the case and in the light of surrounding circumstances from danger by the exercise of ordinary care and prudence to guard against it. ” It also charged: “ The burden (of showing intoxication) rests upon the defendant. The question of the effect of intoxication is to be viewed in the light of all the circumstances surrounding the accident” The defendant’s counsel then said : “ On the last proposition we think that the burden is upon the plaintiff to show the absence of negligence on the part of the plaintiff’s intestate.” To which the court replied: “The burden upon them is to show that the deceased was guilty of no act of negligence that caused or contributed to the injury. They have attempted to show that.

Having attempted to show that and you having shown his intoxication, it is for the jury to say whether that intoxication caused or contributed to the injury, and, if so, then he is not free from contributory negligence on his part.” To this portion of the charge the defendant .excepted. We do not think the exception well taken. When the whole charge is considered together, it was quite as favorable to the defendant as it was entitled, and the jury could have been in no way misled thereby to the prejudice of the defendant.

We have examined the several rulings of the court on the admission and rejection of evidence to which our attention has been called in the appellant’s brief, but have found none that would justify a reversal or that require discussion.

We think the case was properly submitted to the jury; that the evidence was sufficient to sustain the verdict; that there were no exceptions that require a reversal, and, therefore, that the judgment and order should be affirmed.

Judgment and order affirmed, with costs.

Merwin, J., concurs.

Hardin, P. J.

I concur in the foregoing. I think the doctrine laid down by the court in Maxim v. The Town of Champion, 50 Hun, 88; 23 N. Y. State Rep., 949, applies. That case was affirmed 119 N. Y., 626; 28 N. Y. State Rep., 978. According to the verdict, the defendant neglected a duty resting upon it, and by reason thereof the injury was sustained, and the verdict should be sustained.


author: Hardin, P. J.

text:
    Hiram Gilmore, App’lt, v. The City of Utica et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    1. Municipal corporation—Street assessment eor paving—Street RAILROAD.
    The city of Utica, under chap. 436, Laws 1887, levied two-thirds of an assessment for repaving a street upon the abutting owners, and one-third upon the city at large. Held, that this did not violate the provision of the charter which gave the common council the right to require a street railroad company occupying the street to repave the space between its rails and two feet on each side.
    3. Same—Mistakes in assessment.
    Where the city has the statutory power to cause a street to be repaved, and incidentally the power to do such things as were necessary to carry out the statutory power conferred, its errors or mistakes in exercising such power and discretion are not fatal, in the absence of fraud and bad faith.
    8. Same—Notice—Publication.
    Where the charter required the publication of notices of the filing of plans and specifications of the work in the official paper for three alternate days, it will be a sufficient notice where it was published correctly in one paper and in another was published four times, but one of the days immediately followed another.
    4. Same.
    While the specifications gave large discretion and power to the city surveyor. the assessment will not be disturbed on that account, where the common council accepted the work and necessarily approved and ratified the action of the city surveyor.

      Appeal by the plaintiff from a judgment entered in Oneida county clerk’s office on the 25th of November, 1890, upon a decision of the issues made by a special term held in that county. Plaintiff is a taxpayer in the city of Utica and the owner of property fronting on Genesee street, which street was repaved by the defendant, The Warren Scharf Asphalt Paving Company, in pursuance of a contract awarded to it by the common council. After the contract was completed, the company and the city surveyor reported the completion of the same to the common council and the reports were accepted, and the common council directed an assesssment to be made by the proper officials, and the plaintiff’s property was assessed $1,410.40, the assessment roll mentioning that he had 179 feet fronting on the street liable to be assessed for such repavement and the expenses thereof. The city and its officers were prosecuting proceedings for the purpose of enforcement of such assessment, and the plaintiff brought this action seeking to have the assessment declared void and an injunction prohibiting the collection of the assessment.
    The special term found: “ That subsequently and at a meeting of said common council, held October 12, 1888, said work was reported by the said city surveyor completed by the said Warren Scharf Asphalt Paving Company, and was accepted as performed, and the bill of the said paving company presented, amounting to $101,358.87. That subsequently and at a meeting of said common council, held November 16, 1888, the bill for said work, amounting to $101,358.87, was allowed. That at said meeting of November 16, 1888, the whole expense of said work, including the expense of surveying, advertising and preparing the assessment list, was duly determined by said common council to be the sum of $102,854.71; ” also, “that in determining the expense of the work, the common council of the city of Utica did not improperly include anything for catch basins, man-holes, crosswalks, paving adjacent streets or surveying or assistance in making the assessment by the city surveyor, or work upon fountain on said Genesee street.” The special term found, as conclusions of law, viz.: “ (1) That the said assessment is valid and legal in all respects, and the defendant, the city of Utica, is entitled to enforce and collect the same. (2) That the plaintiff is not entitled to an injunction as asked for in the complaint. (3) That the complaint herein should be and hereby is dismissed, with costs and disbursements, to be taxed both in favor of the city of Utica and the Warren Scharf Asphalt Paving Company, and that judgment should be rendered for the defendants, and is hereby ordered in accordance with these findings of fact and conclusions of law.” Judgment on the findings was entered on the 28th of November, 1890. Exceptions were filed to the findings and certain additional findings were made, and a stipulation was given amending the case nunc pro tune and allowing exceptions thereto, which additional findings and exceptions and the stipulation signed by the respective parties were made a part of the case before the same was submitted to this court.

      W. A. Matteson and P. C. J. De Angelis, for app’lt; W. E. Lewis,

      for Paving Company, resp’t; A. M. Beardslee, for the city of Utica, resp’t
   Hardin, P. J.

Appellant’s learned counsel in their points state, viz.: “ We insist that it was unjust and inequitable for the common council to subject the owners of property fronting on the street repaved, or the taxpayers at large, to the payment of the expense of that portion of the repavement in question between the street railroad tracks and in the space two feet in width outside the outer rails. (2) Said assessment is illegal and void, because it was made to include the expense of said repavement between the tracks and for two feet outside the outside rails of the tracks of the street railroad, operated by the Utica Belt Line Railroad Company. (3) Said assessment is illegal and void because it was made to include the expense of the repavement between the rails and in the space two feet outside the rails of the additional track laid in said street at the time of said repavement” We think these points have been disposed of adverse to the appellant by the decision made by the court of appeals when this case was before it on a former appeal. (See 121 N. Y., 561; 31 N. Y. State Rep., 880.) In that decision it was held: “The private owners of property fronting on a street in said city have no vested right or claim de jure that a railroad company lawfully operating its road in the street shall repave or bear the expense of repaving any portion of it. Accordingly, held, that said provision of the charter was not violated by the assessment upon the property benefited of two-thirds of the whole expense of repaving a street on which a street railroad was operated, without requiring the railroad company to pay or bear any portion of the expense.”

In People v. Gilon, 37 N. Y. State Rep., 17, the court of appeals referred to their decision made in this case and follow and approve of the same, and further held that “ street railroads are not, as a matter of course, benefited by repavement of the. streets through which they are laid, and if they are not so in fact, they cannot be assessed with the expense of such improvements.”

Again, there is no finding of fraud, collusion, corruption or bad faith on the part of the common council, and in Talcott v. City of Buffalo, 34 N. Y. State Rep., 871, it was held by the court of appeals that “A taxpayer cannot maintain an action to restrain the governing body in a city from official action, within its power and discretion, without a charge of fraud, collusion, corruption or bad faith; ” and^ that the statutes giving the taxpayer an action for waste and injury “ were not intended to subject the official action of boards, officers or municipal bodies acting within the limits of their jurisdiction and discretion, but which some taxpayer might conceive to be unwise, improvident or based on errors of judgment, to the supervision of the judicial tribunal.” This court has already had occasion to cite and follow that case in disposing of Sweet v. City of Syracuse, decided at the last term of this court, 38 N. Y. State Rep., 607. The city had the statutory power to cause the street to be repaved, and incidentally the power to do such things as were necessary to carry out the statutory power conferred. Schanck v. The Mayor, 69 N. Y., 444. In exercising such power and discretion, its errors or mistakes are not fatal, nor do they give the taxpayer a right to challenge them upon a collateral action in the absence of fraud and bad faith. The burden of establishing the invalidity of the tax was upon the plaintiff, as there is no presumption that the municipal authorities act illegally or that the conditions precedent to their action have not been performed. Tingue v. Village of Port Chester et al., 101 N. Y., 294; 1 N. Y. State Rep., 9.

(2) It is insisted in behalf of the appellant that the assessment was illegal and void because the common council passed a resolution April 6, 1888, before the plans and specifications for said work were prepared and filed. It seems that on the 16th of March, 1888, the common council adopted a resolution evidencing its determination to repave Genesee street from the northerly line of Eagle street southerly to the city line, and in that resolution directed its clerk “ to give the requisite legal notice that at a meeting to be held Friday, April 6th, it will determine the kind of pavement to be laid." It is alleged in plaintiff’s complaint “ That on March 16, 1888, the daily newspapers known as the Utica Morning Herald and the Utica Daily Observer were, and ever since have been, the official papers of said city of Utica, printed daily. That said notice was published in said papers by the clerk of said city. That on the 6th day of April, 1888, at a meeting of the common council, the following resolution was passed:

Resolved, That the clerk is hereby directed to publish the requisite notice for proposals for paving Genesee street from the northerly line of Eagle street to the southerly line of the city with Trinidad asphalt pavement, sheet surface, according to plans and specifications to be prepared by the city surveyor."

A notice was published in the Utica Morning Herald, one of the official newspapers; “ it was published three times three alternate days." It appears no action was taken under the publication of the first notice. Thereafter the clerk caused the requisite notice to be published for a meeting to be held on the 25th of May, 1888 ; that notice was published in the Utica Daily Observer on the 19th, 21st, 22d, 23rd, 24th and 25th days of May, and in the Utica Morning Herald on the 19th, 22d, 23rd and 24th days of May. The plans and specifications for the proposed repavement were filed with the city clerk on or before May 18th, and on the 25th of May the proposals which had been made were opened and considered by the common council and apparently the board on that day determined that the bid of Fowler & Baxter was most favorable; however, on a subsequent day, to wit: the 28th of Mav.the resolution approving Fowler & Baxter’s bid was rescinded, and one declaring the Warren Scharf Asphalt Paving Company’s proposal reasonable, was adopted. At this last mentioned meeting an ordinance was passed providing for the pavement and the contract was .awarded to the Warren Scharf Company.

By chapter 426 of the Laws of 1887, the charter of the city was amended, and § 99 of the charter as amended by that act expressly confers power upon the common council to cause any street to be paved or repaved; and in the section it is provided as follows: “ prior to the passage of any ordinance for such purpose it shall cause a plan and accurate specification of the work proposed to be constructed to be prepared and filed with the city clerk.”

On the 19th of May the city clerk issued a notice stating that applications were pending before the common council upon which final action would be taken on May 25th, for the construction of the following improvements, to-wit: For the paving of Gene-see street from the northerly line of Eagle street to the southerly line of the city, to be paved with Trinidad asphalt pavement, and to be completed on or before September 1, 1888. * * * The above work to be done according to plans and specifications on file with the city clerk and to be assessed in accordance with the provisions of the city charter. Sealed proposals with bond to do said work will be received by the mayor until Friday evening, May 2oth, at seven o’clock.”

According to the testimony of McQuade, the city clerk, the notice “ was published in the Observer, May 19, 21, 23, 24 and 25.” The same witness testifies that the original plans for said work were filed in his office May 11, 1888, and that the specifications for said work were filed in his office on the 18th of May, 1888. We think within the provisions of the section already alluded to “ a plan and accurate specification of the work proposed to be constructed ” was prepared and filed with the city clerk. Such filing was “ prior to the passage of any ordinance ” for the paving of the street, as the ordinance was not passed until the 28th of May. The statute then provides that after the filing, the common council shall cause to be published in the official newspapers for three alternate days a notice of the filing of said plans and specifications, and that on a certain day, at least six days from the first publication thereof the common council will act in relation to its construction. We are of' the opinion that a sufficient notice to answer the requirements of the statute was given and that the publication thereof was a substantial compliance with the statute, and that therefore the common council had jurisdiction to receive the proposals for constructing the work and to pass an ordinance for such purpose and to let the contract, and that the letting of the contract was within the power and discretion of the common council. We think the notice given was sufficient to obtain'the object in view.

In People v. Lacombe, 99 N. Y., 49, it was said: “A strict and literal interpretation is riot always to be adhered to, and where a case is brought within the intention of the makers of the statute it is within the statute, although by a technical interpretation it is not within its letter. It is the spirit and purpose of a statute which are to be regarded in its interpretation; and if these find fair expression in the statute, it should be so construed as to carry out the legislative intent, even although such construction is contrary to the literal meaning of some provisions of the statute. A reasonable construction should be adopted in all cases where there is a doubt or uncertainty in regard 'to the intention of the law makers.” Strictly construed, §'99 of the charter only requires notice to be published in one official paper on the alternate days mentioned in the statute. Such a publication was had, and although the notice was published in the Utica Morning Herald and apparently by some oversight one of the alternate days was omitted, we think such omission does not invalidate the proceedings.

The specifications reserved to the city surveyor and his assistant considerable power and discretion, and much criticism is made in respect thereto by the appellant. It was provided in the specifications : “ The city surveyor may overrule his assistant and inspectors, and make any changes in the plans or nature of the construction of the work required to properly execute the designs of construction, and any extra compensation must be agreed upon in writing beforehand, or left to his decision. The city surveyor may change these specifications when he considers such changes necessary to their true meaning and intent. Such change to take effect when the contractor is notified of the change or changes in writing by the city surveyor.” While these specifications gave large discretion and power to the city surveyor, which, as the work progressed, he had occasion to and did exercise, we think the assessment cannot be disturbed by reason thereof. When the report of the city surveyor of the completion of the work was made, and when the contractor stated its claim for the construction and presented the same to the council, and the council accepted the work, it necessarily approved and ratified the action of the city surveyor. In Hitchcock v. Galveston, 96 U. S., 848, it was said : “It is true the council could not delegate all the power conferred upon it by the legislature, but, like every other corporation, it could do its ministerial work by agents.”

Although there are some “other questions arising in the case,” they were considered by the first special term at which this case was tried, and on the review of the conclusion there reached we said they were “ quite satisfactorily ” considered and disposed of, when this case was before us on the former appeal. See close of opinion, 55 Hun, 521; 29 N. Y. State Rep., 781.

We think the judgment should be sustained.

Judgment affirmed, with one bill of costs to the respondents.

Martin and Merwin, JJ., concur.


author: Tennant, S. Martin, J.

text:
    In the Matter of the Estate of Georg Clarke, Dec'd.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    1. Besidence—Change op.
    Declarations of a change of residence, or of intent to do so, are not sufficient to show such change; there must also be proof of facts showing an actual change.
    2. Same.
    Deceased requested to be taken to a town in an adjoining county, took with him only a traveling bag, staid at a hotel there over night, stating that he wished to take up his residence there and to make the hotel his

      home, and returned the next morning. Held, not sufficient to show a change of residence.
    3. Executors and administrators—Appointment—Assets.
    Deceased made an assignment for creditors, but remained possessed of personal property which was exempt from execution. At the time of his death proceedings were pending to set the assignment aside. Held, that he had property at the time of his decease,, and that the appointment of an administrator was proper.
    4. Same—Costs.
    Where the application for the appointment of an administrator is opposed by another creditor who is in the employ of the assignee and is represented by the assignee’s attorney, the surrogate is justified in finding that the contest is not in good faith, but in the interest of the assignee for the purpose of delay, and the costs are properly chargeable against the contestant.
    Appeal from a decree of the surrogate’s court of Otsego county appointing the respondent, Ichabod McIntosh, administrator of the goods, chattels and credits of George Clarke, deceased, and awarding the petitioner his costs and disbursements against the appellant and contestant, Daniel R. Bennett, after the filing of his answer in such proceeding.
   The following is the opinion.of the surrogate:

Tennant, S.

George Clarke died intestate at the village of Richfield Springs, Otsego county, on the 9th day of July, 1889, leaving him. surviving a widow, several children and other next of kin, and upwards of 230 creditors.

On the 26th day of September, 1889, a petition was filed by Ichabod C. McIntosh, a creditor of the decedent, for the appointment of an administrator. A citation was issued directed to the widow and next of kin of the decedent, returnable on the 8th day of October, 1889, on’whieh day none of the next of kin appeared, but D. F. Searle appeared specially for J. I. Sayles, a creditor, and E. M. Harris also appeared specially for E. L. Hinckley, a creditor, and objected to the proceedings upon the ground that all of the persons having a prior or equal right to letters of administration with the petitioner had not been cited. The surrogate thereupon held that all of the creditors of the decedent should be cited and brought in and made parties to the proceeding, and issued a supplemental citation to said creditors for that purpose. The proceedings were thereupon adjourned from time to time until the 7th day of May, 1890, in order to enable the petitioner to obtain service of the supplemental citation upon the necessary parties. When all of the proper parties had been finally served, and proofs of such service had been filed, the only person who then appeared in the proceeding was Daniel R. Bennett, a creditor, who interposed an answer to the petition. The main question raised by the answer, and as to which a large amount of evidence was given on the trial, is whether the decedent, at the time of his death, was a resident of the county of Otsego, it being claimed by the petitioner that he then was a resident of the town of Springfield, Otsego county, while, on the other hand, it is insisted that he was a resident of Warren, Herkimer county.

If the decedent, at the time of his death, was a resident of the town of Warren, Herkimer county, confessedly, this court has no jurisdiction to grant letters of administration upon his estate. Code, § 2476, subd. 1.

The following principles, applicable to the inquiry, appear to be fundamental and recognized by legal writers upon the subject and by the courts. The term “ residence ” simply means a settled and fixed abode, of a character indicating permanency, at least for an indefinite time. It signifies his permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning. The domicil or residence of origin is presumed to continue until a new one is acquired. The burden of proof unquestionably lies on the party who asserts the change. To effect a change of residence there must be not only an intention to abandon the former residence and to acquire another as his sole settled and fixed place of abode, but also the fact of an actual change must be established. In other words, the fact and the intent must concur. Lord Cranworth, in Aikman v. Aikman, 3 McQueen, 877, very concisely stated the rule to be that the “change must be anima etfacto." Therefore, it is said that direct expressions of intention may be worth little as evidence even of the intent, because acts are usually more cogent evidence of it than mere declarations. Thomas, J., in Cole v. Cheshire, 1 Gray, 444, said that “ the intent is manifested by what he does and by what he omits to do or to say.” And so Rapallo, J., in Dupuy v. Wurtz, 53 N. Y., 562, said: “ Acts are regarded as more important than declarations, and written declarations are usually more reliable than oral ones.” Dupuy v. Wurtz, 53 N. Y., 556: Abbott’s Trial Ev., 102 to 109; 5 Am. & Eng. Ency. of Law, 857 to 881, notes and cases there cited.

It is undisputed that the decedent was born at Hyde Hall, in the town of Springfield, Otsego county, sixty-seven years ago, and that Hyde Hall was his home and residence from his birth until the alleged change in December, 1888. The contestant having the onus to establish that he changed his residence from Springfield, and that he had acquired a new residence in Warren, Herkimer county, has entirely failed to prove such change of residence within the rules above stated. It is true, the declarations of Mr. Clarke have been proven to the effect that he intended to change his residence, and that he had changed his residence, first, in December, 1887, to Rome, next, in February or March, 1888, from Rome to Fonda, and finally May 7, 1888, from Fonda to Warren, Herkimer county. But a careful examination of the evidence demonstrates, I think, quite conclusively that Mr. Clarke had no such Iona fide intention. It fails to show that he did actually change his "residence. The fact of change is not proven. If he really intended to change his residence in the manner indicated by his declarations, his acts then, and ever since, were entirely at war with the idea of such change. For instance, near the evening of May 7, 1888, he directed his servant to take him from Hyde Hall, where he was, to Warren, a little hamlet about three miles distant. The servant did so. He took with him only a traveling bag. Reaching the hotel at Warren, he directed his servant to come after him the next morning. To the proprietor of the hotel he stated that he wished to take up his residence in Warren and to make the hotel his home. He was assigned a room and remained at the hotel over night, and obtained his breakfast the following morning. After breakfast, his servant having come after him, he packed his hand bag that he had taken with him and departed, and never returned to the hotel. He never resided in Warren in point of fact, and his stay there only during the one night above referred to was not unlike that of the temporary sojourn of any traveller. The weight of evidence, I think, is decidedly on the side that Mr. Clarke retained his residence at Hyde Hall down to the time of his death, as he had all through his life. As late as April 27, 1889, less than two months and a half before his death, he joined with his wife in the conveyances of two parcels of real estate, and then signed and acknowledged two deeds. In both of these deeds he describes and recites his residence as “ of the town of Springfield, Otsego county, H. Y.”

I conclude, therefore, that the decedent’s residence, at the time of his death, was in the town of Springfield, Otsego county, and that it is my duty to award letters of administration upon his estate, unless some other reason exists.

It is claimed by the contestant that the court should not appoint an administrator of the decedent’s estate, because he alleges that the deceased did not own any property at the time of his death.

On the 14th day of April, 1887, the decedent executed a general assignment of his property, excepting such property as is exempt by law from levy and sale under execution, to George Barnard, for the alleged benefit of his creditors.

Mr. Clarke still remained the owner of a span of horses and some other articles of personal property, which were exempt from levy and sale under execution, notwithstanding said general assignment. In his lifetime two actions were brought in the supreme court against Clarke and Barnard, the assignee, to set aside the said general assignment as fraudulent and void. Both of said actions were pending undetermined at the time of the decedent’s death and are still pending.

The case, therefore, is eminently one requiring an administrator to be appointed. The actions pending in the supreme court to set aside the assignment can not be prosecuted any farther until an administrator is appointed and substituted as a party defendant therein in place of the decedent. The very numerous creditors of the decedent ought surely to be afforded the opportunity to prosecute their claims, which they can not do unless an. administrator is appointed. Besides, the decedent did own some property when he died, which should be administered.

Upon the trial one of the attorneys of the contestant, who also is one of the attorneys of Mr. Barnard, the defendant’s assignee, and one of the attorneys for the defendants in said action to set aside the assignment, at the request of, and in behalf of the assignee, made a tender to the attorneys for the petitioner of the sum of $6.50. The tender was refused, and then it was deposited with the surrogate, who still has the same in his possession. This tender was made during the progress of the trial, after the petitioner had incurred large expense and counsel fees in and about the commencement of the proceedings, including the publication of the citation and the service thereof on more than two hundred and thirty parties. There was no tender made of such costs and expenses.

I have been unable to find any authority, in law, for the making of a tender in a proceeding like this, and under the circumstances presented by the evidence, so as to give it the effect of defeating the proceedings altogether. However that may be, it must be true that the tender as here made of simply the amount of the petitioner’s claim, without tendering also the costs and expenses incurred, must be entirely nugatory and inoperative.

The Code provides, that in the cases where it can be done at all, a tender after suit must include the costs of the action to the time of the tender. Code, § 731.

The citation in this matter required the next of kin and creditors to appear and show cause “ why a decree should not be made and entered, granting letters of administration of the goods, chattels and credits of George Clarke, late of the town of Springfield, Otsego county, N. Y, deceased, to Ichabod C. McIntosh, a creditor of said deceased,” etc. It is doubtful that the surrogate has any authority to appoint an administrator except a “ party to the special proceeding, who appears to be entitled thereto.” Code, § 2666.

Of all of the numerous parties cited to show cause why the petitioner, Ichabod C. McIntosh, should not be appointed administrator of the estate, none of them have interposed any valid objection to his competency to act as such administrator, nor is there any proof before me that he is legally incompetent to so act. The presumption is, that he would discharge his official duty, as he is bound to do by the oath he is required to take and file with the surrogate. Should hereafter he be guilty of dereliction of that duty, ample remedy exists to any party who may be aggrieved thereby.

An order should therefore be entered appointing Ichabod C. McIntosh administrator of the goods, chattels and credits of George Clarke, deceased, and upon his executing and filing with the surrogate a bond in the penal sum of $500 in the form required by law, with two sufficient sureties to be approved by the surrogate, letters of administration should be issued to him.

The costs and expenses of this proceeding before the filing of the answer should be paid to the petitioner out of and from the estate of the decedent. This is just, because if no answer had been interposed and no contest had been made, the same proceedings would necessarily have had to be taken and the same expense incurred that were taken and incurred.

But the costs and disbursements of the petitioner, after the answer was filed, to be taxed on notice, should be charged upon, and paid by the contestant, Daniel B. Bennett, personally. He appears in this proceeding by the same attorneys who represent the assignee named in the assignment, and who represent the defendants in the actions now pending to set aside said assignment as fraudulent and void. He was in the employ of Mr. Clarke for several years before he executed the assignment, and since that time has been employed by the assignee, and he is now in his employ. Though • a creditor himself of the deceased, for some reason he has stubbornly opposed the appointment of an administrator of this estate. I am well satisfied that his contest has not been in good faith, but in the interest of the assignee for the purposes of delay. Therefore, it is right that he should be charged personally with the costs and expenses of such contest, as above stated.

Sayles, Searle & Sayles, for app’lt; Carlton B. Pierce, for resp’t.

Martin, J.

The principal, and substantially the only, grounds upon which the contestant and appellant claimed that letters of administration should not be granted upon the estate of the decedent were: 1. That the intestate was not, at the time of his death, a resident of the county of Otsego; and 2, that at that time he had no property or estate.

We have carefully examined the proof in this case, and regard it as sufficient to justify the findings of the learned surrogate, both that the intestate was such resident and had property at the time of his decease.

We are also of the opinion that the proof and proceedings in the case fully justified the surrogate in finding that the appellant did not act in good faith in contesting the granting of letters of administration to the respondent, and that "the court properly imposed upon the appellant the payment of the costs and dis-. bursements accruing after answer by him.

Any further or more extended discussion of these questions is rendered unnecessary by the clear and comprehensive opinion delivered by the learned surrogate in the court below.

We have examined the various rulings of the surrogate to which our attention has been called in the brief of the appellant, but have found none that were prejudicial to the appellant, and, hence, that would justify a reversal of the decree herein, or that requires special consideration.

Decree affirmed, with costs.

Hardin, P, J., and Merwin, J., concur.