text:
    John Dunbar Wright et al., Resp'ts, v. New York Elevated Railroad Company et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 18, 1894.)

    1. Railboads— Elevated—Damages.
    A finding that the rental value of abutting premises was diminished by the operation of an elevated railroad in the street, was held not to be sustained by the evidence.
    2. Same—Judgment.
    Where some of the plaintiffs are infants and no provision has been made for the conveyance of their interests, a judgment, enjoining the operation of the road unless the company pays a certain sum on receiving a conveyance of plaintiffs' easements, is inequitable.
    Appeal from a judgment awarding an amount for trespass on the street easements appurtenant to plaintiffs’ premises, and restraining the operation of the road unless the company pays a designated sum for conveyance of easements taken and impaired.
    Davies, Short & Townsend, for app’lts; George Zábriskie, for resp’t.
   Follett, J.

The plaintiffs are simply abutting owners, having no title to, or interest in, the bed of the street, nor any private rights therein, except such as are incident to a lot abutting on a public street. The defendants insist that there is no evidence tending to sustain the finding (thirteenth) that the trespasses committed'by the defendant's before the trial damaged the plaintiffs to the amount of $300 per year, and they also insist that, if there is any evidence tending to sustain this finding, it is altogether against the weight of evidence. The measure or rule for ascertaining the amount which abutting owners are entitled to recover for trespasses committed by the elevated roads on street easements has been held in many cases to be the diminished rental value of the abutting premises caused by the trespasses. The'amount of rent received before the trespasses were committed, and while they were being committed, is competent and persuasive evidence upon the issue of the amount of damages sustained, but the difference between these sums is not conclusive proof of the extent of the injury sustained. It may be that, during the time when the acts complained of were committed, the premises were not rented, or they may have been let for a nominal sum, or for a'sum much more, or much less, than their actual rental value. The real issue is not how much less the abutting owner has actually received for the rent of the premises, but it is, how much has the rental value of the property been diminished by the trespasses? In determining this question the benefits, if any, to the premises, occasioned by the construction and operation of the road, must be taken into account. In the case at bar the plaintiffs’ premises have been continually leased to the Hale Chair Company for 25 or SO years before the trial of this action, and were occupied by that corporation as a chair store. During the 15 years immediately preceding the trial—1878 to 189S—the corporation (the lessee) paid an-annual rental of $1,200 to $1,400. Hrom 1878 to 1881 the annual rental was $1,200. • The rent for "1882 is not stated, except it appears that it was not less than $1,200, nor more than $1,400. Since 1882 the rent has been $1,400 per year. So it appears that the plaintiffs have not received a less rent since the road was put in operation than before. The learned counsel for the defendants urges that this is proof that the plaintiffs were not injured by the trespasses complained of, and that at most they are entitled to but nominal damages. We do not think that this conclusion necessarily follows from the evidence. It may be that, had the road not been built and operated-in front of the plaintiffs’ premises, their rental value would have been more than $1,400 per year. One of the occupants of the premises testified that they were annoyed by the dust, cinders and smoke that came from the road, and that the light was interrupted by the structure and by the moving trains; but aside from this evidence we find none in the record which shows, or tends to show, how much the real rental value of these premises was diminished between January 9, 1885, and June 6, 1893, by the trespasses of the defendants. No witness testified that the rental value of these premises was diminished by the operation of the road, and we think the thirteenth finding is contrary to the weight of the evidence.

The judgment provides that an injunction restraining the operation of the road shall issue within sixty days after the entry of the judgment, unless the defendants pay $6,000 on receiving a conveyance from the plaintiffs of the easements. It is true that the defendants are not bound to pay the sum fixed, but may acquire the property by condemnation; yet this provision should be formulated and founded upon equitable principles. American Bank Note Co. v. New York El. R. Co., 129 N. Y. 252; 41 St. Rep. 531; Blumenthal v. N. Y. El. Railroad Co., 60 N. Y. Super. Ct. 95; 42 St. Rep. 683. One-fourth of the title is held by infants, which cannot be conveyed except by a special guardian, duly authorized by the court in a special proceeding instituted for that purpose. This provision, in its -present form, is inequitable. It might have been provided that an injunction issue unless the defendants pay the sum fixed on being tendered a valid conveyance of the title within the time mentioned, dr that an injunction issue unless the defendants acquired the title by condemnation within the time mentioned.

The point is urged that the plaintiffs are not entitled to recover more than three-fourths of the damages which accrued prior to May 6, 1889,—the date of the death of Mrs. Coolidge; but it was not taken on the trial, and need not be considered, as it will undoubtedly be obviated on the retrial.

The judgment should be reversed, and a new trial granted, with costs to the appellants to abide the event.

All concur.


source: Caselaw Access Project

author: Parker, J.

license: Public Domain

text:
    Andrew J. Delaney, as Administrator, etc., Resp’t, v. Pennsylvania Railroad Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 18, 1894.)

    Wharf—Liability of lessee.
    "Where a wharf, in the possession of a lessee from the city of New York, extends out from a public street, and there is nothing to indicate the character of such possession, or that it is intended to" exclude the public therefrom, such lessee is liable to any one who goes thereon for injuries caused by its dangerous condition.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying á motion for a new trial.

      Henry Galbraith Ward, for app’lt; Denis A. Spellissy, for resp’t.
   Parker, J.

The judgment appealed from awards to the plaintiff $3,500 for damages sustained by reason of the negligent acts of the defendant, resulting in the death of plaintiff’s intestate. In the early evening of October 4, 1891, the plaintiff’s intestate, a boy about eight years of age, came upon a dock which the defendant had leased from the city of Hew York, accompanied by his father and mother and three younger brothers and sisters. They resided in the immediate neighborhood, and their little outing was for the purpose of getting exercise and fresh air. Defendant’s dock, upon which they passed from Thirteenth avenue, had the appearance of a platform built out from such avenue. Eeaching the string piece, which was the usual heighth, they sat down. A few moments later deceased walked away from them, and, after going a short distance, he fell through an unguarded hole in the platform, about eighteen inches wide, and was drowned. This hole was a space between the platform and a bridge which was being so constructed as to rise and fall with the tide; the purpose of the bridge being to permit ingress and egress for passengers and teams from defendant’s ferryboats to the dock. The defendant had been at work for some time in preparing the dock for ferriage purposes, and the work was so far incomplete that the usual guard on the bridge and platform, intended to prevent persons from falling into the the aperture between them, had not yet been erected. On the night in question this hole had been left unguarded and unlighted, and without any sign to indicate to people passing upon the dock that there was danger of falling through into the water. Eespecting defendant's negligence, therefore, the question upon the trial mainly was and now is, whether it owed to plaintiff’s intestate any duty whatever. If it did owe to him, as one of the public, a duty to warn him of the danger of going upon this platform, then the court rightly denied defendant’s motion to dismiss the complaint. Respondent’s view of the case is that this dock was a public street or highway of the city, which the defendant, by its contract with the municipality, had agreed to take care of and keep in repair; and for its failure to do so it became obligated to respond in damages to a person injured, in precisely the same way, and upon the same principle, as the city would be compelled to respond for an injury happening to a person in one of its public streets, occasioned by the neglect of the city authorities. In support of this contention he cites Taylor v. Atlantic Mut. Ins. Co., 37 N. Y. 284, in which it is said : These wharves and piers are streets of the city of New York, for the free passage of all citizens, and are so declared by statute.” This rule has' been asserted many times in leases, so called, did not pretend to give the lessee an exclusive possession, but sold and assigned the wharfage which should accrue during the time covered by the lease, Radway v. Briggs, 37 N. Y. 256; Clancy v. Bryne, 56 N. Y. 129; Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, 134 N. Y. 461 ; 47 St. Rep. 472. Indeed, the authority of the dock commissioners to confer an exclusive private right in and to a public wharf or pier, such as would permit its inclosure, and the erection of structures thereon, was denied, even after the passage of chapter 435 of the Laws of 1883. An attempt of the dock department to grant a license setting aside a pier was characterized as an unwarrantable assumption of power. But in People v. Baltimore & Ohio Railroad Co., 117 N. Y. 150; 27 St. Rep. 153,—an action brought to restrain the erection of a shed upon a pier,—it was held that the dock department had the power to give to its licensee exclusive possession, and the authority to cover the pier by the erection of structures exclusive and permanent in their character. The contract between the city and this defendant provides that it shall have possession of the property, and by it the defendant became fully vested with the right to erect thereon, at its own cost, such structures as it should deem necessary, in order to enable it to enjoy to the fullest extent the benefit which should accrue from the use which it contemplated making of the property. Undoubtedly it had the right to keep the public off of the property while making the repairs and improvements in which it was engaged at the the time of the happening of the accident, but it took no steps to inform the public of the character of its possession, or of its intention to exclude them from coming upon the property.

Appellant contends that, inasmuch as the commissioners had authority to vest in it exclusive possession and liad contracted to do so for the term mentioned in the agreement, plaintiff’s intestate was a trespasser in coming upon the property, and therefore defendant owed him no duty ; that the most favorable view of the relations of plaintiff’s intestate towards this property and the defendant was that he was a mere licensee. Therefore it urges that that the case is within- the rule of Murphy v. City of Brooklyn, 98 N. Y. 642; Id., 118 N. Y. 575; 29 St. Rep. 858, and Sterger v. Van Siclen, 132 N. Y. 499; 44 St. Rep. 863. Were it not for the Well-understood character of the user which the public are accustomed to enjoy of property similarly situated, and its close connection with the public streets between which und it there were no barriers whatever, appellant’s contention would have much force. While defendant had the right to exclusive possession, it has proved no act, so far as the record discloses, which was intended to inform the public that this dock constituted an exception to the general rule which accords to the people the right to go upon them as upon any other of the highways and public places of the city. That such is the general rule is asserted in Gluck v. Ridgewood Ice Co., 31 St. Rep. 99 ; 9 N. Y. Supp. 254; affirmed, 125 N. Y. 728; 35 St. Rep. 995; and Oceanic Steam Rav. Co v. Compania Transatlantica Espanola, supra. In view of the existence of such rule and the generally understood fact that from the easterly part of Thirteenth avenue out to the waters of the Hudson the public are at liberty to pass to and fro; that it is the duty of the occupants of the piers and wharves to keep them in repair for the public safety ; and that, in the event of a failure to do so,- which results in injury without the fault of the injured, there will accrue to the injured a right to compensation, —it would seem that it was the duty of the defendant to warn the public that the dock and wharves which it was in possession of and repairing, constituted an exception to the general rule. The general rule is, as asserted in Murphy v. City of Brooklyn, supra, that an owner has a right to make such use of his premises as he ideases, without being liable for injuries sustained by one who goes upon them. The principal exception to this rule is where the injured party goes upon the land by the invitation, expressed or implied, of the owner. To this general rule there is a still further exception, of which Beck v. Carter, 68 N. Y. 283, furnishes an illustration. In that case the owner made an excavation upon his own land, but so near the boundary of an alley along which people were accustomed to travel as to render it dangerous to the public. The excavation was only ten feet from the line of the alley, and one dark night the plaintiff, intending to pass over the alley, fell into the excavation, and was injured. In that case another fact received consideration by the court, and that was that some time prior to the accident the excavation had been covered with boards, which for some reason had been removed. It was held that the circumstances imposed a duty upon defendant to protect the excavation, and because of .his failure to perform his duty in that respect he became liable for the injuries sustained. In Jewhurst v. City of Syracuse. 108 N. Y. 303; 18 St. Rep. 623, a judgment was sustained which awarded damages against the city for injuries received by plaintiff outside the limits of the public highway. It was put upon the ground that, inasmuch as there was no visible boundary to the line of the street, and its appearance was such as to induce the belief of any one passing that he was within the line thereof, the injured party might recover if for any reason it was dangerous to travel, and the city had had notice thereof. In the opinion, of the court, the case of Hayden v. Attleborough, 7 Gray, 338, was commented.on and approved. In that case the limits of the highway were not indicated by any visible object, and there was nothing to inform a person driving thereon in the evening that the course he was pursuing was not within the way intended for public travel, and the defendant was held liable for an injury caused to the plaintiff by being thrown from a wagon out into a cellar, which had been dug two years before, although the cellar was outside of the limits of the road,-and the plaintiff at the time of the accident was outside of such limits. On appeal, complaint was unsuccessfully made of the charge of the court which stated “that, if the line of the highway was not indicated by any visible objects, such as fences, banks of earth, or other objects, and if there was nothing to show the plaintiff, in the evening, that the route she was pursuing was not within the way intended for public travel, and if within the general course and direction of the travel where travelers were accustomed to pass along the said highway, the cellar was so situated within the limits of the highway as to render the traveling there dangerous, or without the limits of the located way, but so near as to render the traveling there dangerous in the condition in which it was at the time of the accident, *, * * and there was nothing to indicate to travelers their approach to the cellar until too late * * then, after proper notice, the town would be liable. The point determined by the cases cited, as we apprehend it, is that, where the property of an individual or corporation is so situated with reference to the public highway, even though it does not form a part of it, as renders it possible that a person using ordinary care and caution may come upon it, and thereby suffer injury because of its dangerous condition the municipality will be chargeable with the damages resulting. In Alger v. City of Lowell, 3 Allen, 402, the court said: “The true test, on the contrary, is not whether the dangerous place is outside of the. way, or whether some small strip of ground not included in the way must be traversed in reaching the danger, but whether there is such risk of the traveler, using ordinary care, in passing along the street, being thrown or falling into the dangerous place, that a railing is requisite to make the way itself safe and convenient."

This case was cited with approval in Hayes v. Railroad Co., 111 U. S. 228. In the latter case, as in Jewhursi's Case, the municipality, it is true, were hold liable for injuries sustained upon premises adjacent to the highway; but in Beck v. Carter the owner of the property upon which the pitfall was situated was held liable. In each case liability was predicated on the ground that the situation of the property and the circumstances surrounding the user of the highway by the public was such as to make it a duty to employ some reasonable effort to save people from harm. In this case the public were accustomed, and it was their privilege, to use at pleasure Thirteenth avenue, and many of the wharves along its highways. The right to the possession of this particular wharf had become vested in the defendant, it is true, by contract entered into between it and the authorities of the city ; but of that fact the public naturally could not have had. knowledge. There was nothing to indicate to the people going upon it that they had not the same right, and could, not use it with the same impunity, as any of the other wharves in that vicinity and along that avenue. That being so, within the principle of the authorities already referred to, it was clearly the duty of the defendant to take some precautions to warn the public against coming upon the property. As the evidence tended to show that the defendant did not take any precautionary steps whatever in that direction, the court properly denied the motion for a nonsuit. Our attention is called to two exceptions taken to the charge of the court, but we shall not discuss them, for, • if the views so far expressed are correct, they do not call for a reversal of the judgment. The judgment should be affirmed, with costs.


author: Follett, J.

text:
    Antonio Bernardi, App’lt, v. New York Central and Hudson River Railroad Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 18, 1894.)

    1. Master and servant—Appliances—Delegation.
    The duty to furnish safe appliances cannot be delegated.
    2. Same—Explosion.
    The care, which the master is required to exercise to prevent an explosion. should be commensurate to the liability of the article to explode and the danger to be apprehended from an explosion.
    3. Same—Question of fact.
    The evidence was held sufficient to warrant the submission of the question to the jury, whether the master furnished safe means for transporting dynamite.
    Appeal from a judgment dismissing the complaint.

      Arthur Furber, for app’lt; D. W. Tears, for resp’t.
   Follett, J.

This action was brought to recover damages for personal injuries caused by an explosion of dynamite on one of defendant’s cars near Tarry town of the 19th of May, 1891. The cause of action alleged in the complaint is that the defendant negligently loaded and carried on a car in its train, near the locomotive, a large quantity of some highly-explosive material, which was wholly unprotected, and, by reason thereof, exploded, causing the injuries complained of. It is not alleged that the defendant neglected to furnish a suitable car for the transportation of this explosive, or that it neglected to prescribe and enforce some particularly necessary rule regulating the time and mode of transporting it. However, the record does not show that any question was raised over the sufficiency of the complaint to permit a recovery for the defendant’s neglect to discharge duties which a master owes to his employes. The defendant, by its answer, admits that an explosion of blasting material occurred on one of its cars on the date alleged, while being drawn by a locomotive over its road, but denies that it was negligent, and alleges that the accident was caused by the negligence of the plaintiff’s competent fellow servants, and by his own negligence, or by the concurrent negligence of the plaintiff and of his fellow servants. When the plaintiff rested, the defendant moved that the complaint be dismissed on four grounds: (1) That no cause of action had been made out; (2) that no negligence on the part of the defendant had been shown; (3) that the negligence, if any, was that of the plaintiff's fellow servants; (4) that the plaintiff had not shown that he was free from contributory negligence. The motion was granted. The plaintiff excepted, and also requested that the case be submitted to the jury on the issues of fact presented by the evidence, which was denied, and an exception taken.

It is well settled that there are certain duties which a master • owes to his employes, and among them is the duty to exercise proper care to furnish suitable machinery for doing the work in which employes are engaged. It was the duty of this defendant to exercise due care to provide proper cars and means for transporting this powerful explosive over its road, and it cannot escape liability for damages caused by the failure to exercise such care by delegating its (the master’s) duties to an employe of inferior grade, who happened to be a co-laborer with the person injured. This rule is settled by Flike v. B. & A. Railroad Co., 53 N. Y. 549 ; Crispin v. Babbitt, 81 N. Y. 516 ; Benzing v. Steinway, 101 N. Y. 547; Hough v. Railway Co., 100 U. S. 213; Wilson v. Merry, L. R. 1 H. L. 326,—and does not need to be elaborated.

This brings us to the question whether the evidence was sufficient to have authorized the jury to have found that the defendant neglected to provide a safe car for transporting this explosive. The nature of the explosive was described by the manufacturer, who was called as a witness and testified: “ Nitroglycerin is the basis of it [Ajax powder], -with other things as an absorbent. Its commercial name is dynamite. It is put up in cartridges. I think these cartridges were eight inch long by about one and one-quarter in diameter. The cartridges are made of paper submerged in paraffine, and then filled with this dynamite, and the ends closed up. It is a very explosive substance. It is discharged by a cap. Heat will sometimes discharge it, and sometimes not. Concussion discharges it. The explosion of the cap is a concussion, and it is exploded by a cap. We do not allow smoking around where dynamite is kept. We prohibit it. We prohibit men carrying matches, and all that sort of thing, ~We prohibit anything that is apt to ignite from being around where dynamite is. Q. (the court). Would it [dynamite] explode from contact with live sparks—coal sparks? A. No; I.think not. If dynamite got on fire, it might explode from the heat of the fire after a time; at first it would burn. We have had explosions in our works; that is, they have had the powder burn up, and the people got away without having an explosion. The powder was in cartridges. I cannot say what degree of heat you can apply to cartridges before they will explode. We have known a whole car load to burn up without exploding—twenty thousand pounds. That would be where there was plenty of space in the open air; but if you should confine it in this room, and set it afire, where it would not get plenty of air, the oxygen would soon be exhausted, and it would go up. It would explode. And, if there were detonators or caps there, they would explode by the heat of the fire, and they would explode the dynamite if they were in direct contact with it This Ajax powder was harder to explode than nine-tenths of the powder we made. It was made especially for the New York Central & Hudson Eiver Eailroad Go., under instructions from them to have it made with as great care as possible.”

Such was the character of the explosive used as described by the person who made it for the defendant. At the time of the accident, the defendant was, and for some months before had been, engaged in constructing a third track between Spuyten Duyvil and Sing Sing, and in the work it used the explosive .above described, which Was manufactured for its use. For some months before the accident, the plaintiff had been employed by-defendant on its tracks, but his work had no connection with blasting or with the employes engaged in that work, or in running the work train. Prior to May 19, 1891, about thirty workmen had been engaged in blasting and removing rock at Dudley’s Grove, which is about seven miles south of Tarry town. At this place there was a powder shanty, in which dynamite was stored, which was near the track, but how near does not appear. These employes, known as “Finnegan’s Gang,” on the morning of May 19th, began work just south of the village of Tarry town, and between six and seven miles north of Dudley’s Grove. After working two or three hours, they were directed to get on board the work train, consisting of a locomotive and one open flat car, on which they were carried to Dudlej-’s Grove, where they loaded upon this flat car the dynamite stored in the powder shanty, together with the tools and materials which they had used at that place. The undisputed evidence is that between 20 and 30 boxes of dynamite cartridges were loaded on the car. Every one of the boxes was about 12 by 24 inches in size, containing cartridges 8 inches long, by about 1J inches in diameter. There were also 23 or 24 packages of caps, detonators, or exploders, which were used for exploding the cartridges. These exploders were loaded on the front end of the car, on top of the dynamite, some of them being covered and others not. After the car was loaded, the workmen got on to it, and the train started for Tarry-town. Two witnesses, who were uncontradicted, described what occurred on the trip: “ The car went about three miles and a half before anything particular happened. Then the powder took fire, and they exploded. I saw what caused the powder to take fire. The particles of coal coming from the smokestack of the engine lighted the powder, and caused the explosion of the other boxes. * * * I saw the sparks fly from the engine, and light upon parts of the load upon the car. They all put the collars of their jackets up to prevent the sparks from striking them. The particles of coal fell all over the load. I was riding about in the middle of the car. The front part, near the engine, took fire.”

Another witness testified: “ The explosion took place a quarter of a mile before getting to Tarry town. Just before the explosion, I saw particles of coal coming from the smokestack of the engine, and they burned our clothes. Particles of coal fell upon our coats, and. one of my companions told me it was burning his coat, and he was just taking it off when the explosion took place. I did not see any fire upon the car before the explosion. I did not see any sparks from the engine fall on the boxes. (Plaintiff’s counsel, addressing defendant’s counsel): Will you admit that the explosion took place from the sparks of the engine? A. I have not any doubt that the explosion took place after the sparks came from the engine and lit upon the contents-of the car. I am not prepared to dispute that, and there is no use piling up evidence of that fact.”

From this evidence the jury might have well found that the explosion was caused by the sparks from the locomotive, and they might have found that the defendant did not exercise due care to furnish safe means for the transportation of the explosive. It cannot be held upon the evidence, as matter of law, that this plaintiff contracted to incur the risks incident to the transportation of this-quantity of dynamite over the road on which he was employed, in, the manner.described; and if it shall be found as a fact that the-car used was unsafe and unfit for the transportation of this explosive, and that the defendant negligently permitted it to be used for that purpose, the plaintiff will be entitled to a verdict. The-care and diligence required of a master to furnish safe machinery and materials for the service in which they are used depend on the exigency of the case and the dangers incident to the business. It is apparent, we think, to all, that employees and inhabitants on the line óf the railroad, and passengers on its trains, would be exposed to great perils bv the explosion of such a quantity of dyno-” mite; and the care which defendant was required to exercise to-prevent such an occurrence should have been commensurate to-the liability of the article to explode and the dangers to be apprehended from an explosion. Upon principle and authority, it was-a master’s duty—the defendant’s duty—to exercise great care in furnishing safe means for the transportation of this explosive; and, under the evidence, it was a question of fact whether it used such care on that occasion. There is no evidence that the plaintiff in any way contributed to the accident or its results by any act or omission of his own. The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.


author: DykmAN, J.

text:
    In the Matter of the Taxation to the Estate of Nicholas Balleis, Deceased, under the Transfer Tax Act.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Tax—Transfer—Corporations.
    Foreign religious corporations are not exempt from the transfer tax.
    Appeal from an order assessing the transfer tax.

      John B. Kuhn, for app’lts; James W. Bidgway and Bobert B„. Bach, for resp’t.
   DykmAN, J.

This is an appeal from an order of the surrogate of Kings county imposing a tax upon the transfer of certain property under the will of Nicholas Bailéis, deceased. By his last will and testament the deceased gave the residue of his property, excepting his library and certain vestments and furniture, to the college and schools of St. Vincent’s abbey, Westmoreland county, Pa., and to the college and schools of St. Mary’s abbey, in Newark, N. J., to be divided among them in equal parts. He gave his library, furniture, and vestments to the Benedictines of Newark. The surrogate decided that the act in relation to transfers of property, chapter 399, Laws 1892, did not extend the privilege of exemption therein allowed to certain religious corporations to corporations other than those created by the laws of this state; and that the legacies to the appellants were subject to the tax. The Order of St. Benedict and the Benedictine Society have appealed, and we assume that they are the legatees, although the names are not precisely the same as those given in the surrogate’s findings. The will itself is not in the printed record. The question is whether the legacies are exempted from the operation of the act relating to taxable aransfers of property, and the language of the statute under which such exemption is claimed is this: “ But any property heretofore or hereafter devised or bequeathed to any religious corporation shall be exempted from and not subject to the provisions of this act.”

The legatees are foreign religious corporations, but the order is based upon the theory that foreign corporations are subject to the provisions of the act in question. The exemption clause is conceived in clear and precise terms, and requires no interpretation, and, if it was allowed the full force of its signification, the legacies in question would fall within its operation, and be exempted from the tax. We feel bound, however, by the decision of the court of appeals in Re Prime, 136 N. Y. 347; 49 St. Rep. 658, to hold that the legacies are subject to the tax. It was said in the opinion in that, case, which was unanimous, as follows: 11 We are of opinion that a statute of a state granting powers and privileges to corporations must, in the absence of plain indications to the contrary, be held to apply only to corporations created by the state, and over which it ha-: the power of visitation and control.”

The order appealed from should be affirmed, with costs and disbursements. All concur.


author: Pratt, J.

text:
    Samuel M. Barnett, App’lt, v. Charles Scribner et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Reference—Compulsory.
    An examination of accounts is involved in an action for procuring subscriptions to a publication under a contract that plaintiff should be paid only where the subscriber accepts six volumes.
    Appeal from an order of reference.

      George H. Fletcher, for app’lt; Crane & Lockwood, for resp’ts.
   Pratt, J.

This is an appeal from an order of reference made at circuit during the trial, and after the examination of the plaintiff as its witnliSA It is plain from an examination of the pleadings that, to prove both the complaint and the answer, it will be necessary to examine accounts, if all the matters between the parties are to be examined. I think it plain there is but very little merit in the claim made by the plaintiff. Strictly speaking, it is a claim for damages for failure of the defendant to give the plaintiff a list of the names of subscribers furnished by plaintiff to defendant, who refused to take the volumes in question. Any damage over six cents, for such a claim, must necessarily be purely speculative. The plaintiff says, by not'having the list, he lost the opportunity to go to the delinquent subscribers, and get them to change their minds and accept the books , but what certainty- or proof is vouchsafed that he could effect such change, or what proof can be given upon a trial that one cent of loss can be sustained by failure to secure the lists ? The motive or inability of such subscribers, which caused them to refuse to receive the books, are matters entirely beyond the knowledge of the plaintiff, or his power to remedy. The suit is therefore purely uncertain and speculative.

The parties, however, seem to regard this suit as one for a balance due the plaintiff for services under a contract, and the claim for damages for not furnishing a list is mere padding. In this view of the case, a reference was proper. Chambers v. Appleton, 11 Wkly. Dig. 524; 84 N. Y. 649. The plaintiff desires to recover the contract price of all the subscribers he turned in to die defendant, but the contract was that he was to be 'paid only for such as accepted six volumes of a set of the work. These are all matters involving the examination of accounts. If, upon the trial, the plaintiff had been taken at his word,— that this was a suit alone for breach of the contract to furnish lists,— the complaint ought to have been dismissed for failure to show wherein he was damaged for breach of contract.

Order affirmed, with costs and disbursements.


author: Mayham, P. J. Putnam, J. (concurring).

text:
    Jennie L. M. Woods, Resp’t, v. Charles Reiss, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 26, 1894.

    Pleading—Answer—Defenses.
    A general denial and an affirmative defense may be set up in the same answer.
    Appeal from a judgment in favor of plaintiff.

      Benjamin Patterson, for app’lt; Franldin M. Danaher, for resp’t.
   Mayham, P. J.

This action was commenced to foreclose a mortgage which the plaintiff in her complaint alleged one Graham Martin executed and delivered to Dudley Olcott, president of the Mechanics’ & Farmers’ Bank, to secure the payment at maturity of all notes, checks, drafts, bills of exchange, and commercial paper drawn, made, indorsed, or accepted by Graham Martin, and which have been, or may hereafter be, discounted by the Mechanics’ & Farmers’ Bank of Albany. The complaint also alleged that the mortgagor, Graham Martin, after the making of the mortgage, became indebted to the Mechanics & Farmers’ Bank, on paper of the character mentioned in the same, which he failed to pay, and on which the bank recovered judgments,—one for $1,041.58, and one for $3,026.99,— neither of which had been paid, and that Olcott, as president of such bank, duly assigned the mortgage, and all the obligations which it was intended to secure, to the plaintiff, and that Graham Martin has failed to pay the same. The complaint also alleges that the defendant Reiss, and several others, have or claim to have some interest in or lien upon the mortgaged premises, or some part thereof, which accrued subsequent to the lien of the mortgage.

To this complaint the defendant Reiss interposed an answer, in which he undertook to set up several separate defenses: (1) A general denial. (2) Alleges that, at the time Graham Martin became indebted to the Mechanics & Farmers’ Bank on notes, checks drafts, and indorsements discounted by such bank, the defendant Reiss had a lien on the real estate mortgaged by virtue of his judgment against Martin ; and that, at the time of the execution of the mortgage, there was nothing due from Martin to the bank. (3) That all the papers referred to in the mortgage, on which Martin was indebted to the bank, were paid, and that the bank suffered no loss thereby. (4) That the bank recovered judgments against Martin in his lifetime for the alleged debts secured by the mortgage, but that no executions, as required by statute, were issued upon such judgments; and that the executions alleged to have been issued in the actions specified in the complaint were null and void, in that they failed to contain the indorsement required by § 1433 of the Code. (5) That the execution specified in the complaint did not contain an indorsement directing the sheriff not to levy it upon the mortgaged property, as prescribed by § 1433, Id. (6) That the judgments alleged in paragraphs 3 and 4 of the complaint have been paid and satisfied. The answer demanded judgment that the complaint be dismissed, with costs. Upon these pleadings the plaintiff moved at special term to strike out the general denial, unless the defendant elected to strike out the other defenses, which were claimed to be inconsistent with the denial therein, or that the other defenses in the answer be stricken out as inconsistent with the first defense; and the defendant having failed or neglected to elect by which defense he would abide, the court on such motion struck out the denial in the answer, with costs, and from that order the defendant appeals.

The first subdivision of this answer, and one that was stricken out on this motion, put in issue every material allegation of the complaint, and cast upon the plaintiff the burden of proving that her mortgage was a valid and subsisting lien as against this defendant, or against any lien which he might establish against the premises covered by the plaintiff’s mortgage. Ordinarily, a general denial in an answer would seem to be inconsistent with any allegation in avoidance of the fact set out in the complaint, because, if the existence of such facts are denied, and the facts themselves do not exist, no result could flow from them, and any attempt to avoid them would seem to be unnécessary and illogical, because it would by implication seem to admit that which was untrue for the purpose of avoiding the consequence of the falsehood. But I fail to see that the other portions of the answer are so inconsistent with the denial as to justify the striking out of that defense, even if we assume that inconsistent defenses, separately stated in the answer, may be stricken out, which is doubted. This defendant is made a party solely on the ground that he has, or claims to have, some interest in or lien upon the mortgaged premises accruing subsequently to the lien of the mortgage, and, after the denial in his answer, he alleges that his lien on the mortgaged premises existed-under a judgment against the mortgagor prior to the attaching of the lien under the mortgage and that the claims for which the mortgage was given had been paid. The other defenses set up were that the mortgagee had recovered judgments on its claim in an action at law for the demand,'and that no valid execution had been issued for the collection of the same, and returned unsatisfied, so as to authorize this foreclosure action. I am inclined to the opinion that the defendant had a right to interpose these defenses under the provisions of § 507 of the Code of Civil Procedure. It is true that these defenses were not numbered, as required by that section, but no objection on that ground was raised on the motion, and we are not called upon to consider the effect of that omission here. The defenses interposed, if proper, went to the entire complaint, and it was not therefore necessary to refer to the cause of action to which it was intended to refer, as required by that section. Crasto v. White, 52 Hun, 473 ; 23 St. Rep. 535. But we are of the opinion that, under the provisions of § 507 of the Code, the defendant was permitted to interpose as many defenses as he has, and, while a denial is not technically an affirmative defense, it may under that section bo interposed with affirmative defenses, and that it was error to strike it out on the ground that it was inconsistent with the other affirmative defenses interposed in this action. In Goodwin v. Wertheimer, 99 N. Y. 154, the court say: “ A defendant may put his defense upon distinct and even inconsistent grounds.” In Bruce v. Burr, 67 N. Y. 240, where the defense of warranty of the solvency of the maker of a note, and also the defense of fraud of the maker in giving the note, were interposed, it was urged that the defenses were inconsistent, and that a rescission for the fraud could not therefore be properly claimed, the court (Church, C. J.), saying:. “The Code (§ 150) allows a defendant to put in as many defenses or counterclaims as he may have, and the objection of inconsistency between them is not available.” That section is in the same language as § 507 of the Code of Civil Procedure. In Societa Italiana Di Beneficenza v. Sulzer, 138 N. Y. 472; 52 St. Rep. 904, O’Brien, J., says: “ It is possible that an error was committed in compelling the defendant to elect which defense she would stand upon, and requiring her to abandon the other.” But he holds that the defense stricken out was immaterial, as it did not set up a valid counterclaim. It cannot be said in this case that the defense of a general denial which was stricken out on this motion was immaterial.

The order should be reversed, with $10 costs and printing disbursements, and motion denied, with $10 costs.

Putnam, J. (concurring).

I am not clear that an answer should be allowed which denies the execution of the mortgage on which the action is brought, and the notes it was given to secure, and at the same time alleges payment of such notes; which denies the recovery of judgments on such notes, and at the same time alleges that no execution as prescribed by statute had been issued upon such judgments; and also alleges payment thereof. These defenses seem to be entirely and necessarily inconsistent. But the general denial contained in the answer put in issue the allegations in the complaint that Graham Martin died intestate at the city of Albany; that he was insolvent; that Mary Graham died intestate in the city of Albany, leaving, her surviving, plaintiff, her only heir at law and next of kin'; also the assignment by Dudley ■Olcott, individually and as president of the Mechanics’ & Farmers’ Bank of Albany, of the mortgage in suit, and the notes it was given to secure to said bank, and the assignment by the latter to the plaintiff. Such denials were not inconsistent with the other allegations in the answer. It appears that at the special term the -defendant was directed to elect as between the general denial and the other defenses asserted in the answer, and, failing to do so, the first clause of the answer was stricken out. The effect of the ■order from which the appeal is taken was to strike out the denial ■of the assignments and other denials above referred to, not inconsistent with the other allegations in the answer, and, on the issues made by which defendant had a right to a trial by a court or jury, .assuming that plaintiff was entitled to some relief, the order, I think, should not have stricken out the first clause of the answer .absolutely, but only so far as it denied the execution of the mortgage and notes, or it should have provided that defendant might, amend the same by excepting from his denial the execution of the mortgage and notes.

For this reason, I concur in the result reached .by Presiding .Justice Mayham.

Herrick, J., not acting.


author: Mayham, P. J.

text:
    William Francisco, Resp’t, v. Troy and Lansingburgh Railroad Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 26, 1894.)

    1. Carriers—Passenger—Riding on platform.
    Where a passenger, riding on the platform of a motor car, is thrown off while the car is rounding a curve at a high rate of speed, the company is not liable unless the rate of speed is unusual, improper or dangerous.

      2. Same—Contributory.
    It is contributory negligence to ride on the steps of a motor car.
    Appeal from a judgment entered on a verdict in favor of plaintiff.

      Thomas S. Fagan, for app’lt; Isaiah Fellows, Jr., for resp’t.
   Mayham, P. J.

There are two grounds upon which the defendant asks a reversal of this judgment independently of the exceptions taken to rulings as to the receipt of evidence and to the judge’s charge: First, that the plaintiff failed to prove that the defendant was guilty of negligence; second, that the plaintiff entirely failed to prove that he was free from contributory negligence. Upon the first proposition, as to evidence of the defendant’s negligence, it seems, that the only ground upon which the plaintiff seeks to establish the negligence of the defendant is the allegation that the motor car was run at too high rate of speed in rounding the curves in the track, and that the rate of speed was negligence per sc. Upon this branch of the case, resting, as it does, alone upon the rate of speed as proved, in the absence of any evidence that such a rate of speed was negligence, we do not think that the jury should have been left to speculate. There was no duty resting upon the defendant to warn passengers of the approach of the motor to a curve in the track. There is no proof that the curve in the track was a dangerous or improper one fo.r this class of railroads, or that there was any defect in the car or track which rendered it dangerous, so far as disclosed by the evidence or urged by the plaintiff. All that appears to be claimed by the plaintiff was the high rate of speed at which the motor was run at the time of the accident. The car was not derailed or capsized, and it would seem that, under such circumstances, to authorize a jury to find the defendant guilty of negligence, there should be some evidence that the rate of speed was unusual, improper, or dangerous. " Any other rule would allow a jury to speculate as to the duty of a railroad company as to the rate of speed at which they might run within the danger line, and capriciously fix that rate without evidence. There would be no hardship or improper burden imposed upon the plaintiff claiming damages under such circumstances to require him to prove by competent and experienced witnesses the maximum rate of speed which can be attained by these motor cars without hazard to passengers, and in establishing the negligence of the defendant to prove that that safe maximum was exceeded in a given case; and we think in this case the plaintiff was called upon to furnish such proof, and thus relieve the jury from entering the domain of conjecture or speculation. That question was distinctly raised by the defendant’s motion to dismiss the complaint at the conclusion of the plaintiff’s case, and also at the conclusion of all the testimony; and we are inclined to think that the denial of the defendant’s motion was error.

Nor do we think the evidence in this case shows that the plaintiff was free from contributory negiligence. He knew the condition of this road, and the existence of curves in the .track, was habitually a passenger on the same, and must and should have known that the swaying of a car in passing around the curve was liable to affect the equilibrium of persons standing in the car or on the platform. He knew, or should have known, that the inside of the car was an entirely safe position for a passenger from an accident such as happened to him. He was voluntarily upon the platform, a place not provided by the defendant for the accommodation of passengers, when there was an abundance of room in the body of the car to seat all the passengers on that train. It is true that the plaintiff swears that the conductor gave the plaintiff permission to go to the platform to smoke, but he gave him no permission to stand on the steps of the platform. Nor do we think that the defendant assumed any additional risk by permitting the plaintiff to stand on the front platform of the car. The rule is quite universal on railroads not to permit passengers to smoke in cars adapted to all classes of passengers, and, while there is no evidence upon this subject, it is reasonable to infer that the permission of the conductor to the plaintiff to smoke on the platform was in reference to that rule or custom. If the plaintiff had been willing to forego his desire to smoke, there was abundance of sitting room for him in the body of the car, where, for his own personal safety, it was his duty to locate.

In Clark v. Eighth Ave. Railroad Co., 86 N. Y. 138, GrROVER, J., in discussing this question, says: “It is the duty of the passenger, on going on board of a car, to place himself in a safe position therein, if he is able to obtain such position; and it is no excuse for him to place himself in an unsafe one that the person in charge of the car knows that he is unsafe, and does not drive him therefrom, when the unsafety is known to the passenger. That the riding upon the steps of a street car is less safe than a seat inside requires no proof. It is obviously so.”

It is true that in Nolan v. Brooklyn C. & N. Railroad Co., 87 N. Y. 63, it was held not to be negligence per se to ride on the platform of a car; but in that case the court recognizes a difference between riding on the steps of a car or on the platform, and clearly, by implication, holds it negligence per se.

In Chave v. N. Y. & H. Railroad Co., 15 St. Rep. 966; 1 N. Y. Supp. 264, it was held that a boy eléven years old, and therefore sui juris, was guilty of contributory negligence for riding on the steps of a car while there was room enough to ride on the platform. We think, therefore, that the learned trial judge erred in refusing to charge, as requested by the defendant’s counsel in his thirteenth and fourteenth requests to charge: “(13) That if the jury find that the plaintiff was riding, at the time of the accident, on the steps of the front platform, then plaintiff was guilty of contributory negligence, and the verdict should be for defendant. The Court: I decline to charge that, or further than as I have. (14) That there is nothing going to show that fifteen or sixteen miles an hour is a negligent rate of speed. The Court: I decline to charge that, but the jury may take the rate of speed into consideration as a circumstance in determining whether there was not negligence on the part of defendant.”

There was proper exception to these refusals. .Again, the absence of contributory negligence cannot be presumed ; it must be proved, Weston v. City of Troy, 139 N. Y. 281; 54 St. Rep. 493; and the verdict must stand (not upon conjecture, however plausible) if the plaintiff cannot furnish requisite evidence to sustain the affirmative burden cast upon him by the law. Babcock v. Fitchburg Railroad Co., 140 N. Y. 311; 55 St. Rep. 640. The rate of speed at which this motor, at the time of the accident, was running, as we have seen, is one of the principal grounds of the plaintiff’s charge of negligence by the defendant. The admissibility of the evidence offered by the plaintiff is a matter of vital importance. Plaintiff offered the evidence of the opinions of witnesses not shown to have had any special experience in determining the rate of speed at which the motor was running at the time of the injury. This kind of evidence was objected to by the defendant on the ground that the witnesses were not shown competent to give opinions on that subject. In overruling these objections, or some of them, we think the court erred. Opinions of witnesses, not experts, are ordinarily inadmissible. This rule applies to all questions where the facts are susceptible of actual statement. Where they are not, and resort must.be had to opinions, such opinions can only be given in evidence by experts. Applying this rule to the case at bar, the rate of speed, which is not actually measured, can be given only by the opinions of. witnesses; and such opinions only are allowable when given by persons peculiarly skilled on the question upon which they are called to give evidence. Rice, Ev. pp. 326, 327. Tested by the above rule, we think the opinions asked for and received ought to have been excluded. The judgment, for the above reasons, should be reversed.

Judgment reversed, and a new trial granted ; costs to abide the event.

Putnam, J., concurs; Herrick, J., concurs in result.


author: Mayham. P. J.

text:
    Jennie M. Wood, Resp’t, v. American Fire Insurance Company of Philadelphia, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 26, 1894.)

    1. Insurance—Fire—Title—Presumption.
    Property, in the possession of the insured, will be presumed to have been his property, unless there is proof to the contrary.
    2. Same—Assignment of interest.
    A policy issued in name of firm does not misstate interest of the insured, though one partner had assigned his interest to his copartner.
    3. Same—Agent—Waiver.
    Where the agent of the company knew the facts claimed to be a breach of a precedent condition, such condition is waived.
    •4. Same—Change of interest—Sale under execution.
    A sale of insured property under execution is not a change of the insured’s interest, within the meaning of the policy, until the expiration of the redemption period.

      Appeal from a judgment in favor of plaintiff.

      Skedden & Booth (L. L. Shedden, of counsel), for app’lt; Weeds, Smith & Conway (T. F. Conway, of counsel), for resp’t.
   Mayham. P. J.

The action in this case was prosecuted by the assignee of an insurance policy issued by the defendant to a firm known and designated as Wood Bros. The defendant, by its answer, and on the trial, relied upon various grounds of defense, and urged the same on this appeal as grounds for a reversal of this judgment.

The first is that the - assignment of the cause of action to the plaintiff is insufficient. We see no valid objection to the validity of this assignment. It was in writing, contained a sufficient description of the matter assigned, was made after the loss, stated a valuable consideration, and was executed by all of the survivors of the firm.

The second objection—that the insured had no title to the insured property—seems equally untenable. The insured property which was destroyed by the fire, and was covered by the policy, was in possession of the firm, and appears to have belonged to it; and no question upon the proof was made as to the validity of the title of the insured, and the defendant, in issuing its policy, treated it as the property of the Wood Bros. In the absence of proof, this court, on appeal, cannot assume want of ownership in the assured for the purpose of avoiding the policy. In McMaster v. Ins. Co. of N. Am., 55 N. Y. 232, Folger, J., says: “The currents of decisions run to this; that the courts will not be astute to find ways to work the forfeiture of a contract of insurance.”

Applying this rule of construction, we cannot hold that the Wood Bros, had not, at the time of this insurance, the title to the property insured. The assured is not bound, in the first instance, before a recovery can be had for a loss, to prove title as he would be required to do in an action of ejectment. Possession of the property at the time of taking the policy is enough, in the absence ■of an affirmative defense of want of title, and proof sustaining such defense. It was alleged in the answer, and proved on the trial, that one of the copartners, at the time of the issuance of the policy, had made a general assignment of all his property for the benefit of creditors, and that the assignee had sold his interest at public auction ; but it also appeared affirmatively that no actual dissolution of the copartnership had been effected, and that the firm continued to transact its copartnership business down to the time of the fire which destroyed the insured property.

It is insisted by the defendant that, the interest of one member of the firm having passed to his assignee, the interest of the Wood Bros, is not truly stated in the policy, and that such misstatement annuls it. If this were an individual policy, taken in the name of the assignor after such assignment, such misstatement would doubtless avoid the policy. But the insolvency of a member of a firm, or his assignment, does not, we think, per se dissolve the firm, except as to future events; and, as between the copartners, as to third parties the partnership is not by such transfer or insolvency ipso facto dissolved, where the partnership still continues to trans ict business. Taft v. Buffum, 14 Pick. 322; Sistare v. Cushing, 4 Hun, 506. It remains the property of the firm until a dissolution in fact occurs, and accounting is had, and the firm obligations are paid, when tho assignee of the individual member of the firm would be entitled only to the assignor’s share of the surplus. In Menagh v. Whitwell, 52 N. Y. 158, RAPALLO, J., says: “ The corpus of the effects is joint property, and neither partner separately has anything in that corpus; but the interest of each is only his share of what remains after the partnership debts are paid, and accounts are taken.”

Within this principle it is doubtful whether the fee of the firm’s real property did not remain in the firm after the assignment of the individual partner for the purposes of the partnership. If the title remained in the firm after this individual assignment, it cannot be claimed that the existence of that assignment was a breach of warranty of title of the premises in Wood Bros. The same may be said, we think, as to the other assignment by individual partners, and the appointment of a receiver as to one not setup in the answer, but proved upon the trial. They did not divest the firm of title, and the defendant issued its policy to the firm, and not to the individual members thereof. The provisions of the policy as ot the title referred to its quality, and the the title, being in the firm, was not in any way affected by the assignment of individual members. American Artistic Gold Stamp. Co. v. Glens Falls Ins. Co, 48 St. Rep. 653 ; 20 N. Y. Supp. 646. But if it can be held that the assignment or transfer by individual members of a firm of their individual interests affects the title of the firm, so that it cannot be said to be the owner in fee, still, as the real condition of the member of this firm who had assigned was known to the agent of the defendant who took this application and issued this policy, it cannot be claimed that this transfer constituted a breach of warranty of title as to his company. The knowledge on the part of the agent who transacted the business was the knowledge of the company, and was a waiver of the warranty claimed to be broken. Berry v. Am. Central Ins. Co., 30 St. Rep. 53 ; 8 N. Y. Supp. 762. See, also, Broadhead v. Lycoming Ins. Co., 14 Hun, 425 ; 23 Hun, 397. A waiver, after the issuing of the policy, must be in accordance with its terms, but at or before its inception will be ])resumed, if the agent had knowledge at that time of the facts claimed to be a defense. If a company issues a policy and accepts a premium with knowledge of the facts on the part of the agent, it will not be permitted to set up such facts to avoid the policy in case of loss. To permit the defendant to attack the validity of the policy on account of those facts would be to impute to it a fraud in receiving the premium and issuing a policy in the first instance, which it knew to be void. Haight v. Continental Ins. Co., 92 N. Y. 51, 55; Van Schoick v. Niagara F. Ins. Co., 68 N. Y. 434-441; Woodruff v. Imperial F. Ins. Co., 83 N. Y. 133-141; Richmond v. Niagara F. Ins. Co., 79 N. Y. 230; Whited v. Germania Ins. Co., 76 N. Y. 415.

The evidence does not disclose any affirmative assertion of title, or any concealment of any fact from the company at the time of effecting the insurance, or that the insured was asked by the company to make any statement in reference to its title. In Cross v. Nat. F. Ins. Co., 132 N. Y. 136; 43 St. Rep. 482, the court say: “ The party applying for insurance is not bound to disclose the nature or extent of his interest to the insurer unless requested.”

The Wood Bros., at the time the insurance was effected, had an insurable interest in the property. That interest they sought to protect by this policy. There is no claim that this policy was procured by fraud, and the loss far exceeds the amount of insurance, and the happening of the event insured against would result in pecuniary loss to the assured. Cone v. Niagara F. Ins. Co., 60 N. Y. 619; Herkimer v. Rice, 27 N. Y. 163. Under such circumstances, while the court should not overlook any clear violation of the contract, it should not seize upon imaginary or doubtful pretexts for the purpose of forfeiting the policy. After the making of this policy a judgment was recovered against the Wood Bros., to whom it was issued, on which an execution was issuedj and the premises on which the building covered by this policy stood were sold, and a sheriff’s certificate of sale executed to the purchaser; but before the time of redemption under such sale had expired the insured building was burned. The defendant now insists that by the terms of the policy this judgment, execution, sale, and sheriff’s certificate rendered the policy void. The exact provision of this policy upon that point is not contained in the case, but is partially stated in both the brief of the plaintiff and that of the defendant, from which it appears that to invalidate the insurance by judgment the interest, title, or possession of the subject of the. insurance must be changed. This was not effected by the judgment or proceedings under it. The judgment debtor was still entitled to. the possession of the insured property. Section 1440 of the Code of Civil Procedure provides as follows: “ The right and title of a judgment debtor * * * is not divested by the sale until the expiration of the period within which it can be redeemed.

We must, I think, therefore, treat this judgment and sale under it, so long as the right to redeem exists, as inoperative as against the terms of the policy, and the right of the insured or their assignee as unaffected by the same. The right and title of the assured under that section were changed at the time that the liability for this loss attached. In Cone v. Niagara F. Ins. Co., 60 N. Y. 619, the policy contained this provision: “Any interest in the property insured, not absolute, or that is less than a perfect title, or if a building is insured that is on leased ground, the same must be specifically represented to the company, and expressed in this policy in writing; otherwise this policy shall be void.”

In discussing the effect of a sale under execution of the property insured under this policy the court uses this, language: “ Palmer (the owner) has this interest certainly until the last day of the fifteen months for judgment creditors to redeem. * * * It is apparent that Palmer retained the legal title to the premises until the expiration of the fifteen months; as this did not expire ■until after the fire his title continued until after the fire; and he, till after that event, had a pecuniary interest in the premises, which was affected by their destruction by fire within the indemnity of insurance.

This and kindred cases seem to settle the doctrine that the right of the insured is not affected by a judgment and sale until after the expiration of the fifteen months allowed for redemption. Baley v. Homestead F. Ins. Co., 80 N. Y. 21; Green v. Homestead F. Ins. Co., 82 N. Y. 517; Colt v. Phœnix Ins. Co., 54 N. Y. 595; Walradt v. Phœnix Ins. Co., 136 N. Y. 375; 49 St. Rep. 666.

We have carefully examined the numerous exceptions taken by the learned - counsel for the defendant to' the findings and refusals of the learned judge to find, and see no error for which this judgment should be reversed. Judgment affirmed, with costs.

Putnam, J., concurs; Herrick, J., concurs in result.


author: Per Curiam.

text:
    James Shaw, as Trustee, etc., Resp’t, v. Saranac Horse-Nail Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 26, 1894.)

    Corporations—Mortgage bonds—Trustees.
    When mortgage bonds in the hands of trustees of the corporation will be postponed to those outstanding in the hands of a third person who is a purchaser for value.
    Appeal from an order modifying the report of a referee, and, as modified, confirming the same.
    The opinion of Mr. Justice Russell at special term is as follows:
    The point to be decided arises out of the claim of diffeient bondholders to the money arising upon the foreclosure of the mortgage upon which this action was brought. The method by which these proceeds were realized was practically a plan for the marshaling of the remaining assets of the company for distribution to the proper persons. The administrators of S. F. Vilas, deceased, claim to hold bonds secured by the mortgage, amounting, with interest, to the sum of $23,558.23. Mrs. Foote and others, opponents of the Vilas claim, concededly hold bonds secured by the mortgage, amounting, with interest, to $8,496.25. The proceeds of sale amount to $12,030.58, and the question to be decided .is whether that-sum shall be paid pro rata to all of the persons claiming to be bondholders,' after deducting the trustee’s costs of a previous litigation and his commissions. The Saranac Horse-Nail Company was a corporation organized under the full liability act (chapter 611, Laws 1875), by which it is provided that all the stockholders shall be severally individually liable to the creditors of the company for all debts and liabilities, and may be joined as defendants in any action against the company, but no execution shall be issued against a stockholder individually until alter execution against the company has been returned unsatisfied. Section 34. Section 25 also provides that no stockholder shall be liable personally for debts not to be paid within two years from the time they are contracted. S. F. Vilas, deceased, and Andrew Williams, through whom the administrators of Vilas claim, were stockholders in the Saranac Horse-Nail -Company, Williams being its president. The other bondholders were not stockholders in that company. The bonds were authorized in the year 1883 upon a resolution of the company as follows: “ That the president and secretary be and they are hereby authorized to execute a mortgage on the property of company to George W. Watson, as trustee, to secure the sum of thirty thousand dollars, in coupon bonds of the company to be issued by them for the purpose of raising money to pay the floating debts of the company, etc. Resolved, that the Hon. Andrew Williams be authorized to negotiate the $30,000 bonds this day authorized to be issued, at a price not less than par and accrued interest.” The first of the bonds to mature was not payable until the year 1886, so that the stockholders were not liable upon the debt created by the issuing of these bonds, but were liable upon other outstanding obligations of the company, consisting of notes owing the two banks of which Vilas and Williams were presidents, and the Keeseville Bank. Mr. Williams sold of these bonds at once $6,500 to Mrs. Foote and the other claimants, and later to Mrs. Town $2,000, which last-mentioned bonds Mr. Vilas obtained from Mrs. Town. Later still, Williams sold $1,000 worth to William Farrell, which he afterwards took from Farrell, and subsequently transferred to the administrators of Vilas upon the arrangement hereinafter referred to. Williams afterwards sold to Stephen Moffitt $1,000 of the bonds, which he also transferred to the administrators of Vilas upon the arrangement referred to, and, a year later, Williams sold Mrs. Ellis $3,000 worth, which the administrators of Vilas took from Mrs. Ellis upon the said arrangement. The remaining bonds, instead of being sold by Williams, were pledged by him to various banks, including two banks of which Williams and Vilas were presidents, as security for past-due or maturing notes of the company. About the 18Lh of May, 1886, it having been discovered that the Saranac Company was insolvent, an agreement was made between Williams and the Vilas administrators which recognized the insolvency of the company, the liability of the stockholders, and agreed to pay the debts of the company,— one-third by Williams, and the other two-thirds by Vilas’ administrators, the parties taking assignments of all evidences of debt for the purpose of contribution from the other stockholders. And it was also agreed that the mortgage should be foreclosed, and the proceeds, with all moneys realized from the personal property, applied to the satisfaction of the debts. It will thus be seen that this agreement provided that the remaining property of the company should be applied to the payment of the debts of the company, and that those debts which were paid by Williams and Vilas’ administrators were to be held only for the purpose of contribution, so that, impliedly, Williams and Vilas’ administrators did not intend to hold the evidences of debts collected by them for any other purpose than that of contribution from the other stockholders. The provision that, if Williams and Vilas’ administrators purchased the property, it was to beheld by them in the proportion of one-third to Williams and two-thirds to the estate of Vilas, does not conflict with this presumption, for the agreement itself presupposes the entire debts of the company were to be paid, so that there would be no other claim-, ants to that property except the two parties immediately interested. But that agreement was not carried out in full. About $10,000 of the debts of the company, including the bonds to Mrs. Foote and others, were not paid, owing to the insolvency of Williams, and his liability to complete the agreement,
    Under these circumstances, who has the superior equity to the proceeds realized from the foreclosure of the mortgage given to secure the bonds? Mrs. Foote, and the other claimants who paid money on a direct and plain purchase, were confessedly holders for value, whose obligations would have been paid had the agreement between Williams and the administrators of Vilas been carried into effect. This is the cáse also with the other bonds sold by Williams, and not pledged to the banks, had they remained in the hands of the original holders. With the exception, however, of the bonds of Mrs. Town purchased by Vilas in his lifetime, the remaining bonds came into the hands of Wilas’ administrators in carrying out the arrangements by which those bonds were to be retired, except as they might be held for the purpose of contribution by the other stockholders. A few of the bonds were paid by Williams, as he expresses it in his testimony, before the arrangement of May, 1886, because the holders wanted the money, and these bonds formed a part of the number transferred to the Vilas administrators in execution of that arrangement of May, 1886. I am inclined to believe that, in executing the agreement, it was impracticable for the Vilas administrators to turn their payments of obligations into a purchase of an equity in the proceeds of funds realized by the foreclosure of the mortgage which was given to secure the bonds. The interest received by the administrators of Vilas from the transfer by Williams to them to secure his obligation for the sum of $3,300 were also in pursuance of this arrangement, and at the time, it appears to me, it was not intended that these bonds should be held as live obligations, coequal and coexisting with the bonds held by the outside parties. Williams and Vilas’ administrators, upon entering into the agreement of May 18, 1886, contemplated the entire payment of the $90,000 of obligations of the company, and, with that view, had no thought or intention of holding any securities as against the other bondholders, who had purchased bonds in good faith for value. Assuming that the evidence justifies the conclusion that at that time Williams and Vilas’ administrators held some bonds which had been issued to Mrs. Town and others for value, the agreement of May, 1886, spoke with reference to those bonds taken up or to be taken up by the two contracting parties.
    There is another reason why the bonds not sold outright by Williams are not valid obligations in the hands of the Vilas administrators. The resolutions under which Williams acted were plainly for the purpose of raising money to pay the debts of the company, and his power to sell was limited to a sale at not less than par. The power conferred is to be j udged by the intent of the resolution. The limit upon the price, and the provision that the bonds are for the purpose of paying the debts of the company, leave no room for argument. Hypothecation of bonds in such a case does not advance one step towards the payment of debts of the company, and does incur the risk of the passage of them at a price far less than par, for a sale upon pledge would be to the highest bidder without regard to the limit of the resolution, provided the original pledge was valid. Of course, it may be that, independently of any resolution empowering Williams to sell, the possession of apparently fully executed bonds by the president of a company would give the implied power to bona fide purchasers for value to take them irrespective of the limitations upon that apparent power. But the banks parted with nothing of value, nor does it áppear from the evidence, so far as I can discover, that the pledging of the bonds was simultaneous with the extension of credit. However that may be, Williams and Vilas were arranging the placing of the bonds of the company in such a manner as to wholly or partly free themselves from the obligations upon which they were personally liable, and it was their duty to see that those bonds were not diverted from the plain purpose for which they were issued. They cannot, nor can either of them, claim to be bona fide holders of bonds, which claim they could not successfully maintain had the bonds been issued directly to them, they having taken up the securi ties for w hich they were to be pledged; nor can they acquire a good title, because the bonds were originally diverted from -their purpose into the hands of an innocent holder by their own action, and thereafter taking upon themselves the obligation for which those bonds were improperly pledged. I am satislied from the evidence, and all of the inferences to be drawn from the acts of all the parties, that Williams and Vilas were familiar with the disposition of the bonds, and the purpose for which they were given, and that therefore they cannot, as to those bonds, by any series of circumstances stand as bona fide holders for value of that portion which was pledged for the payment of the antecedent debts on which Williams and Vilas were personally liable, even if the agreement of May, 1886, had not made them voluntarily obligated to pay the debts of the company. These views, upon the effect of the stockholders’ liabilities, the agreement of May, 1886, and the effect of the resolution upon which the bonds were issued, lead to the subordination of the claims of the Vilas administrators to the proceeds as against Mrs. Foote and the other bona fide holders. I see no reason why Mr. Vilas, although a stockholder of the company, could not lawfully purchase and hold the bonds of the company if the purchase was uncomplicated with other modifying circumstances. The report will be modified by striking out the provisions for a pro rata disposition of the proceeds, and by inserting a direction that the bonds of Mrs. Foote, Miss Parker, Eyan, and Mrs. Purdy be first paid out of the proceeds. Otherwise the report is confirmed.

      Beckwith & Botsford (<7. II. Beckwith, of counsel), for app’lt; Weeds, Smith & Conway (T'. F. Conway, of counsel), for resp’t.
   Per Curiam.

We have carefully examined the evidence in this appeal, the report of the referee, the opinion of the learned judge at special term, and the order made by the special term, and think the order should be affirmed on the opinion of the judge at-special term. The order affirmed, with costs and printing disbursements.

All concur.


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    American Society for Prevention of Cruelty to Animals, Pl’ff, v. City of Gloversville, Def't.

      (Supreme Court, General Term, Third Department,

      Filed May 26, 1894.)

    1. Cruelty to animals—Fines—To whom payable.
    Section 668 of the Penal Code is not repealed, either expressly or by implication, by the charter of the city of Gloversville.
    2. Same.
    Fines imposed and collected for violations of the Penal Code relating to cruelty to animals are payable to the Society for the Prevention of Cruelty to Animals.
    Controversy submitted on an agreed statement of facts.

      Horace Bussell (Jabish Holmes, Jr., of counsel), for pl’ff; Edgar A. Spencer, for deft.
   Mayham, P. J.

The stipulation of facts submitted on this action shows that the plaintiff is a domestic corporation, organized, under the laws of this state, to prevent cruelty to animals, under chapter 469 of the Laws of 1866, with some of its powers and duties regulated and defined in chapter 375 of the Laws of 1867, chapter 12 of the Laws of 1874, § 668 of the Penal Code, and chapter 490 of the Laws of 1888. The defendant is a municipal corporation organized under the provisions of chapter 55 of the Laws of 1890. On the 21st of August, 1891, a fine of five dollars was imposed upon, and collected of, one Lewis Messer, by the recorder of the city of Gloversville,—the defendant; and on the 29th of October of the same year a fine of eight dollars was imposed" by the same magistrate on, and collected from, Thomas Hughes. Both fines were imposed and collected for violations of the Penal Code relating to cruelty to animals. The proceedings in which both these fines were collected, were instituted and prosecuted by the plaintiff, and when the fines were recovered by the magistrate they were, respectively, demanded of him by the plaintiff, and by him refused ; and the monev collected was paid by the magistrate to the city chamberlain of the defendant, who credited it to the police fund of the defendant. After such payment the plaintiff presented a duly verified claim for such money to the common council of the defendant, which refused, and still refuses, to pay the same to the plaintiff. Upon these facts the opinion and decision of this court is asked, The plaintiff claims the money under the provisions of § 668 of the Penal Code, which is as follows: “ All fines, penalties or forfeitures imposed or collected for a violation of the provisions of this title, or of any act for the prevention of cruelty to animals now in force or hereafter passed must be paid on demand to the American Society for the Prevention of Cruelty to animals, except where the prosecution shall be instituted or conducted by a society for the prevention of cruelty to animals, duly incorporated under the general laws of this state, in which case such fine, penalty or forfeiture must be paid on demand to such society.”

This provision of the Penal Code, unless the same has been, in express terms, repealed or modified by some subsequent act of the legislature, seems to be controlling. But is is insisted that the provision of the Penal Code above quoted antedates that of the act incorporating the city of Gloversville, and as the charter of that city contains in itself ample authority to deal with all violations of law, of this character, it amounts, in effect, to a repeal, so far as that city is concerned, of this provision of the Penal Code; and, in support of that contention, we are referred to § 10 of title 9 of chapter 55 of the Laws of 1890. That section requires the recorder to make and file a monthly statement of all fines and penalties imposed and collected by him, and to pay the same over to the chamberlain. While this provision, in the absence of any qualifying provision of law,-authorizes and supports the contention of the defendant, it does not amount to an express repeal of the provisions of § 668 of the Penal Code. At most, it would be but a repeal by implication. But such repeal is expressly forbidden by the last section of the Penal Code. Section 728 of that Code provides as follows: “No provision of this Code or any part thereof, shall be deemed repealed, altered or amended by the passage of any subsequent statute inconsistent therewith, unless some statute shall explicitly refer thereto, and directly repeal, alter or amend this Code accordingly.”

With this positive provision of law upon this express subject, we do not see how we can hold that the city of Gloversville is entitled to these penalties, or can claim to hold the same against the express provision of the statute, which says that such penalties “ must be paid on demand to the American Society for the Prevention of Cruelty to Animals.” That provision relates to these prosecutions anywhere in the state, and must, in the absence of any express provision of statute to the contrary, be deemed to apply to the city of Gloversville. The case of Tillage of Gloversville v. Howell, 70 N. Y. 287, is not an authority against this conclusion.

With the policy of this law, discussed by the learned counsel for the defendant, we have nothing to do. His argument may be sound, if addressed to the legislature, upon that subject, but we are only called upon to declare what the law is. As the plaintiff was entitled to his money on demand from the magistrate, when it was in his hands, we see no reason why the plaintiff should not, after demand by the plaintiff of it, be entitled to recover it in an action. Let the judgment be entered in favor of the plaintiff against the defendant, with costs.

All concur.


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    The People, Resp’t, v. Michael Pillion, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 26, 1894.)

    1. Criminal law—Information—Insufficient.
    An information, charging a person with the violation of a given section of the Code, which section sets forth a number of offenses, is not sufficient.
    2. Same.
    When an information in the language of a statute is insufficient.
    Appeal from a judgment of conviction for unlawful voting.

      J. Murray Eoiuns, for app’lt; James W. Eaton, Dist. Atty., for the People.
   Per Curiam.

This is an appeal by the defendant from a judgment of conviction by the court of special sessions of the city of Albany, for a violation of § 41k of the Penal Code of the state of New York. The evidence in the case is not brought before us on this appeal. It appears from, the record that the defendant had been brought before one of the police magistrates of the city of Albany, and the case against him was sent to the court of special sessions for trial, and before the taking of any testimony, a motion was made to dismiss the information, and to discharge the defendant, for the reason “that the information did not state facts sufficient to constitute a crime.” This motion was denied. A motion was then made to dismiss the information, and for the discharge of the defendant, for the reason “ that the court did not have-jurisdiction of the offense, the same being ah infamous crime,” which motion was also denied, and to which denials exceptions were taken by the defendant. The information against the defendant is as follows :

“ City and County of Albany—ss,: Michael F. Cantwell, being duly sworn, deposes and says that he resides in No. 816 Broadway, Albany; that one John Doe, alias Michael Finnerty, at the city of Albany, in the county of Albany, aforesaid, on the 10th day of April, 1894, did wrongfully, unlawfully, wickedly, willfully, maliciously, and knowingly violate section 41k of the Penal Code of the state of New York, as amended, in that he did, at the charter election being held in and for said city of Albany, that day vote at the polling place of the first district of the Eighth ward of said city under the name of Michael Finnerty, of 866 Broadway, without being qualified therefor.

“Michael F. Cantwell.

Taken, subscribed, and sworn to before me this 10th day of April, 1894.

“ Peter A. Stephens,

“ Police Justice, Justice of the Peace.”

We think the court of special sessions was in error in denying the motion to dismiss the information and discharge the defendant. An information in the court of special sessions performs the same office that an indictment does in courts of record; and while, as has been heretofore held by this court, such informations—“ Are not expected to be drawn with the technical accuracy that an indictment should be, yet * * * taking the place, as they do, of indictments in superior courts, they should state with sufficient accuracy the crime charged, that the defendant may know the exact offense which it is claimed he has committed.” People v. Olmsted, 74 Hun, 323; 56 St. Rep. 311.

It has been held that: “ An indictment for a statutory offense, especially when the offense is a misdemeanor, charging the facts constituting the crime in the words of the statute, and containing averments as to time, place, person, and other circumstances to identify the particular transaction, is good, as a pleading, and justifies putting the defendant on trial.” People v. West, 106 N. Y. 293; 8 St. Rep. 713.

It is also held that an indictment must charge the crime, and also state the act constituting the crime. People v. Dumar, 106 N. Y. 502-509; 11 St. Rep. 19.

It is said that: “ The principal reason requiring a specific statement of the act is the right which the accused has to be informed of the precise accusation which he is required to defend.” People v. Stark, 136 N. Y. 538-541; 49 St. Rep. 899.

These requirements are essential. However awkwardly or inartifieially done, if the information charges a crime known to the law, and states acts done by the accused which constitute such crime, it will be held sufficient. The information in this case does not comply with either of the requirements specified, and seems to have been drawn by one utterly unacquainted with the principles of pleading. The crime charged is that John Doe, alias Michael Finnerty, did wrongfully, etc., “ violate § 4lk of the Penal Code of the state of Hew York, as amended.” At the time set forth, in the information, § 41k, Penal Code, consisted of 18 subdivisions, and many of such subdivisions specified several distinct and separate crimes. The charge should be for the commission of some distinct and specific crime. Charging a person with the violation of a given section of the Code, which section sets forth a number of offenses, is not sufficient. After attempting in the manner indicated, to charge the commission of a crime, the information then proceeds to set forth a violation of the fifth subdivision of § 41k, which subdivision defines and sets forth a distinct and separate crime, which is the subject of a distinct and separate charge. An allegation in the words of such subdivision is not the statement of an act which constitutes the crime charged, but is, in itself, the charging of a specific crime, which must be supplemented by a statement or specification of acts done which constitute such crime. The charge, or rather attempted charge, of a. violation of said subdivision, is insufficiently made, in so far as it attempts to charge a crime, and nowhere in the information are there any acts or facts constituting the offense defined in subdivision 5 alleged.

There are other, and still graver, reasons for reversing the judgment of conviction in this case, which, however, we do not think the public interests require to be stated at this time, the reasons already given being sufficient to dispose of the case. The court of special sessions had power and authority to pass upon the sufficiency of the information, and, the information being insufficient to cause the defendant to be placed upon trial, the motion to dismiss and discharge the defendant should have been granted,—“ For it seemeth to me unreasonable to send a prisoner, ánd not, withal, to signify the crimes laid against him.”

The judgment of conviction is reversed, and the defendant discharged.

All concur.


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    City of Schenectady, App’lt, v. Catharine A. Furman et al., Resp’ts.

      (Supreme Court, General Term,, Third Department,

      Filed May 26, 1894.)

    1. Municipal corporation—Order to dredge stream—Notice.
    An order, made on due notice, requiring landoWner to dredge a stream cannot be modified without notibe to landowner of the proposed modification.
    2. Same.
    The fact that the landowner requested a modification, does not estop him from objecting to the modification as made.
    Appeal from a judgment dismissing the complaint.

      S. W. Jacksdn, for app’lt; Robert J. Landon, for resp’ts.
   Per Curiam.

This case was before this court at a former term on an appeal from a judgment in favor of the plaintiff, which was reversed, and a new trial ordered by this court. Matter of City of Schenectady, 61 Hun, 171; 89 St. Rep. 975. Some of the questions raised and discussed on that appeal, and which were ruled adversely to the contention of the plaintiff and appellant, appear apparently in the same form on this appeal. The facts upon which the common council assumed jurisdiction and authority to do work for which the defendant is sought to be charged in this action appear substantially the same in both trials and on both appeals. If these facts, as proved on the former trial, did-not confer jurisdiction on the common council of the plaintiff to do the work for which the defendant is sought to be charged in this action, then the same jurisdictional defect exists on the second trial. On the 16th of April, 1889, the' common council passed a resolution declaring that there were obstructions and deposits in Mill creek, designating the grade and width of the same, and, declaring that as the natural and normal channel and grade of the creek, directing the owner to dredge the creek to the channel so designated. A notice of this resolution was published five days, and on the 23d day of April the same was confirmed. On the 7th day of May thereafter the common council amended the resolution so confirmed, without any additional notice, upon the request of the defendant, but not in his presence, and it does not appear that he dictated the extent of reducing the amount of work required in the resolution confirmed on the 16th of April. There was no proof on thé first trial that this modification of the first resolution was made after the request of the defendant, and it is now insisted that the request was a waiver of any notice required by § 61 of the charter, and that the defendant is estopped, on this trial, by that request. Within the decision of the general term on the former appeal we cannot agree with the plaintiff in that contention. In discussing the effect of this modification made on the.7th of May, Learned, J., says: “It will be seen that the resolution of July 9th directed the superintendent to do this work under the resolution of April 16th, April 23d, and May 7th. The superintendent testified that he did the work under the resolutions as amended. It does not lie with the plaintiff to say, therefore, that the amendatory resolution of May 7th was of no effect. The plaintiff held it as valid, and the work was done accordingly. How, § 61, above mentioned, is explicit on this point. After the common council has passed a resolution of this kind, it must give five days’ notice, and, at the time and place mentioned in the notice, shall hear all parties interested, and after such hearing consider the ordinance, and may confirm, modify, or rescind. Ho such ordinance or resolution shall create any duty or obligation until it shall be confirmed or modified as aforesaid. The common council did, on the 23d day of April, confirm that resolution. They then, on the 7th da'y of May, amended it without notice to the party interested. This they had no right to do. All their subsequent action was based upon that amendment. They did not cause the alleged obstruction and deposit to be removed according to the resolution of April 23d, but according to that of May 7th. There is no force in saying that the resolution of May 7th diminished the amount to be removed. The parties interested ■ had a right to be heard as to the matter. They might have good reason for desiring that the resolution of April 23d be carried out. The plaintiff cannot argue that the defendant was not injured by the change. The notice of five days was jurisdictional; and, when the common council had acted, they could not change the resolution; at least, not without again giving the required notice.”

This was once determined by this department to be the law of .this case, and we cannot now, without overruling a former determination of this court, adopt a different rule. Hor do we see any reason to question the soundness of the views expressed by Justice Learned, above quoted. When the common council had •once acted upon a notice which, under the statute, conferred jurisdiction upon them to act in a given manner, their powers were spent, and they could not again resume them without again giving the statutory notice to those over whose person or property they can acquire jurisdiction only in the way pointed out by statute. Nor can we hold that the defendant is estopped by the request made for a modification. He was not informed of the maimer or extent of the proposed modification, or of the time when the common council would meet to act on the same. He objected to the modification as made, and gave notice to the superintendent that he would not pay for the same before the work was done. If we are right in our construction of the previous determination of this court, then the plaintiff is met at the threshold of this case by an insuperable objection to a recovery, and the consideration of the other questions in the case is unnecessary.

Judgment affirmed, with costs.

All concur.