author: Barrett, J.:

text:
    ELIZA A. GREEN, Plaintiff and Respondent, v. RICHARD SQUIRES and others, Defendants. WILLIAM C. LESSTER, Appellant.

      Order for service of smmnons by publication — when sufficient — Code of Civil Procedure, § 440.
    Ia an action for the foreclosure of a mortgage the plaintiff made the unknown devisees, under a supposed will of the deceased mortgagor, parties defendant, and applied for an order directing the service of the summons upon them by publication. The plaintiff’s affidavit showed that he had been unable to ascertain whether the mortgagor devised the premises by any last will, for which reason the devisees under such will, if any, were unknown to the plaintiff, and were made parties defendant. The order, after referring to the affidavit and directing the service of the summons by publication, proceeded, “ and it satisfactorily appearing to me that the plaintiff cannot, with reasonable diligence, ascertain a place or places where the defendants * * * would probably receive matter transmitted through the post-office, the deposit of. any papers therein, directed to said defendants, is dispensed with.”

      Held, that the order was sufficient, and that it was not necessary that the order should state that it satisfactorily appeared to the justice “ by the affidavits on which the order was granted.” that the plaintiff could not ascertain the residence of the unknown devisees.

      It is sufficient if the order directing- the publication designate hyname two papers ’ in which the publication shall be made; it is not necessary that the order ; should state that those so designated are most likely to give notice to the defendants.
    Appeal by W. C. Lesster from an order compelling him to complete his purchase on a foreclosure sale.
    This action was brought to foreclose a mortgage upon lands in the city of New York. Mary Jane Squires, the mortgagor, died seized of the mortgaged premises, February 10, 1878.
    She left her surviving, her husband, Richard Squires, and a daughter, Mary E. McKinley, wife of Charles McKinley, all of whom resided at Oil City, Pennsylvania, and who are defandants hi this action.
    Plaintiff was unable to ascertain whether or not the deceased devised these premises by will, and accordingly, to meet the possibility of such devise, made as parties defendant “the devi-sees of Mary Jane Squires, deceased, who are unknown to this plaintiff.”
    Plaintiff applied, upon affidavits, for an order directing service of the summons by publication; an order was made, its provisions were complied with, and a decree of foreclosure and sale' was entered August 29, 1878 ; a sale was had under the decree; the appellant, Lesster, became the purchaser, and upon examination rejected the title, upon written notice to the plaintiff’s attorneys and to the referee.
    A motion was made to compel him to take title notwithstanding his objections, and upon the hearing the court passed upon such of the objections as affected the regularity of the judgment, and made an order compelling him to take title, from which order this appeal is taken.
    It was provided in the order, among other things, “that service' of the summons in the above entitled action upon the defendants, Richard Squifes, Mary E. McKinley, Charles McKinley, her husband, and the devisees of Mary Jane Squires, deceased, who are unknown to the plaintiff, be made by publication thereof, with the notice required by law, in two newspapers, to wit: the State paper, published in the city of Albany, called the Argus, and in the New York Register, published in the city of New York, once a week for six successive weeks, or at the option of the plaintiff by service of the summons and of the complaint and of this order (with the notice required, by law) upon said defendants personally without the State. * * *

    “And it satisfactorily appearing to me that the plaintiff cannot, with reasonable diligence, ascertain a place or places where the defendants, the devisees of Mary Jane Squires, deceased, who are unknown to the plaintiff, would probably receive matter transmitted through the post-office, the deposit of any papers therein, directed to said defendants is dispensed with. •
    “ C, DONOHUE, J.”

      Geo. jE. Horne, for the appellant.

      Tlieo. Arnold, for the respondent.
   Barrett, J.:

This was an action to foreclose a mortgage. The mortgagor died seized of the premises (apparently intestate), and her heir at law was made a party defendant. The plaintiff, for greater security, made “ the unknown devisees ” under a supposed will parties defendant, and proceeded against them by publication. The action went to judgment and sale, but the purchaser declined to complete, on the ground that the order of publication was void. He contends that the order irregularly dispensed with deposit of the papers in the post-office addressed to these unknown devisees. His point is, that section 440 of the New Code requires a statement that the judge was satisfied by the affidavits on which the order was granted that the plaintiff could not with reasonable diligence ascertain the place or places where the defendants would probably receive mail matter. The order in question states that it so satisfactorily appears to the judge, but the words “ by affidavits,” etc., are omitted in that immediate connection. The entire order, however, is granted upon two affidavits which are recited, and which sufficiently prove the required fact. These affidavits show that the plaintiff has been unable to ascertain whether the mortgagor devised the premises by any last will and testament, for which reason the devisees, who are unknown, were made parties. The order also recites that the affidavits satisfactorily prove that the devisees are unknown, and that neither their names nor residence can be ascertained. From this it satisfactorily appeared that the plaintiff could not very well ascertain the place where mail matter would reach the unlcnown. The order to dispense with the deposit being made upon those affidavits, the proper facts did satisfactorily appear therefrom. An order which recites that it is made upon certain affidavits followed by the words “it satisfactorily appearing to me,” etc., is the equivalent of the statutory form of expression. The wording is substantially a statement that the judge, being satisfied by the affidavits, etc., dispenses with 'the deposit. The point is a very small one, and need not be dwelt upon further. At the same time we do not blame the purchaser for wishing the support of a judicial ruling.

The other point is equally untenable. The order requires the publication to be made in the State paper and in the Daily Register. That is a substantial compliance with the provision that the publication must be in two newspapers “ designated in the order as most likely to give notice to the defendant.” The law requiring the summons to be published in the State paper (the parties being unknown) and the Daily Register, necessarily declares that those official newspapers are most likely to give the required notice. Obedience to the law is a designation in the order of the newspapers most likely, etc.

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

Davis, P. J., concurred.

Present — Davis, P. J., and BaeRett, J.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

license: Public Domain

text:
    WILLIAM H. CATLIN, Respondent, Impleaded with MARIAN G. CATLIN, v. THE ADIRONDACK COMPANY, Appellant.

      Action against a common earner for loss of baggage — when in tort, and not on contract — Execution against the 'person, to collect costs from the plaintiff Code of Civil Procedure, §§ 549, 1487.
    "Where, in an action against a common carrier to recover the value of articles taken from a passenger’s "baggage while in the' possession of the carriel-, it appears from the complaint that the action is founded, not upon contract, but upon the breach of the carrier’s legal duty) the action is in tort and for an injury to property within section 549 of tho Code of Civil Procedure, and the defendant corporation, if it recover a judgment for costs therein, may, under subdivision 1 of section 1487 of the said Code, issue an execution against -the person of the plaintiff for the collection thereof.
    Appeal from an order of tbe Special Term vacating an execution for costs, issued against tbe person of tbe plaintiff. No order of arrest bad been issued in tbe action. Tbe defendant having prevailed, an execution against tbe plaintiff’s person was issued under section 1487, subd. 1 of tbe Code of Civil Procedure, tbe defendant claiming that if it bad been a natural person “ tbe nature of tbe action ” would bave entitled tbe plaintiff to an execution against tbe person. As tbe question depends upon tbe complaint it is given in extenso, as follows:
    The plaintiffs in tbe above entitled action complain of tbe defendant above-named, and allege :
    “That at tbe several times hereinafter mentioned the defendant was a corporation duly created and existing under tbe laws of tbe State of New York, and engaged in carrying goods for hire.
    “That on or about tbe 22d day of November, 1878, tbe plaintiffs debvered to and left in tbe possession of tbe defendant, at tbe station of Hadley, in Saratoga county, N. Y., thrée tranks to be conveyed as freight to Rye, Westchester county, N. Y.
    “That tbe defendant undertook and became responsible to tbe plaintiffs for tbe due and safe transport of said trunks to their, said destination.
    “That said trunks were undtdy delayed in transportation, to tbe great annoyance and inconvenience of tbe plaintiffs, and were not delivered at their said destination, at Rye, till on or about the 9th day of December, 1872, having thus been about eighteen days in a transportation that should not have occupied more than four or five days at the very most.
    “That after said trunks had been received by the plaintiffs at their destination aforesaid, and the charges for their transportation duly paid, it was found that each and every one of said three trunks had been broken open since their delivery to the defendant, and while said defendant was responsible to the plaintiffs for their safety, and numerous articles, of the aggregate value of $400, unlawfully taken therefrom.”
    Wherefore the plaintiffs demand judgment against the defendant for the sum of $400, with interest from the 9th day of December, 1872, besides the costs of this action.

      A. Pond, for the appellant.
    An action on the case against common carriers for property lost through their negligence is an action for tort and not on contract, and is for “ an injury to property,” within section 179 of the Old Code, and also subdivision 2 of section 549 of the Code of Civil Procedure; and hence, the execution in question for costs against plaintiff’s person was properly issued, notwithstanding an order of arrest had never been granted in the action. (1 Chit. PL, 138; Temporary Act, Laws 1876, chap. 449, § 2, sub. 9; Duncan v. Paten, 6 Hun, 1, 2, 3; Peelerv. Olarlc, 18 Abb., 154; Warrenv. Western Trans. Co., 3 Rob., 705; Suydam v. Smith, 7 Hill, 182; McDuffie v. Beddoe, 7 id., 578, 582; Angelí L. of Car., § 429; Flynn v. Hudson B. B. B. Co., 6 How. Pr., 308; Carroll v. Staten Isl. B. B., 58 N. Y., 126, 134; Bank of Orange v. Brown, 3 Wen., 158; affirmed, 9 id., 114; Coggs v. Bernard, 2 Ld. Ray., 909; Atlantic Mut. Ins. Co. v. Loon, 48 Bar., 27, 29; Warner v. Western Trans. Co., 3 Robt., 705; Hoffman v. Sparling, 12 Hun, 83.)

      Marshall P. Stafford, for the respondent.
   Barrett, J.:

The gist of this action is misfeasance, to wit: the breach of the carrier’s legal duty. It is grounded in tort. (Cregin v. Brook lyn Crosstown R. R. Co., 75 N. Y., 192.) Some confusion has crept into the cases, growing out of the old forms of action. For instance, it ivas optional under the old system to bring assumpsit or case. The former was nominally ex contractu, the latter ex delicto. But the substance was the same. True, the pleader might aver an express promise and its breach.

Then the action was ex contractu in substance as well as form, for the promise was the gist.

He could also maintain assumpsit on the implied promise raised by the duty. There, however, the duty, not the promise, was the gist. The promise was inferred from the duty, not the duty from the promise. The duty was not, in fact, a matter of inference, but was imposed by the custom of the realm, that is, by the common law.

These forms of .action being abolished, we must look to the principle upon which the plaintiff bases his claim. He avers no express promise No contract of any kind is set up. He says the defendants “ undertook and became responsible for the due and safe transport of the trunks,” but that is merely a statenlent of the defendants’ common law liability. (Coggs v. Bernard, 2 Ld. Raym., 909.)

The word “ undertook,” in this connection, cannot be said to import a consideration, nor can it fairly be paraphrased into such an expression as “promised or agreed for a reasonable reward.” Indeed, this is conceded by the respondent, who repeatedly insists that the action rests upon the common law liability of the carrier. His error lies in the deduction that such liability rests upon contract.

The learned justice at Special Term placed his judgment upon the use of the word “undertook,” the fact of the payment of the charges and the failure to allege “ the custom of the realm, the loss by conversion,” etc. But it was never either necessary or proper to aver a general custom (1 Chitty PL, 217), because it is part of the law of the land.

The allegation of conversion was essential, only when there was a count in trover. The payment of the charges is not averred as a distinctive fact, but incidentally as fixing the period when the plaintiff discovered his loss. Note the language: “That after said trunks bad been received by tbe plaintiff at tbeir destination aforesaid, and the charges for their transportation duly paid, it was found,” etc.

Upon the whole, we are entirely satisfied that the complaint is founded, not upon contract, but ''upon the breach of the carrier’s legal duty. “A breach of this duty,” said Dallas, Ch. J., in Bretherton v. Wood (3 Brod. & Bing., 54), “ is a breach of the law, and for this breach an action lies founded on the common law, which action wants not the aid of a contract to support it.” (See too the remarles of Anduews, J., quoting and approving the above, in Carroll v. The Staten Island R. R. Co., 58 N. Y., 134 ; also Bank of Orange v. Brown, 3 Wend., 158 ; Atlantic Mutual Ins. Co. v. McLoon, 48 Barb., 27 ; The People v. Willett, 26 id., 81 ; 1 Chitty Pl., 138.)

In The Atlantic Mutual Ins. Co. v. McLoon (ubi supra), the court went so far as to vacate an attachment in such a case, upon the specific ground that it was not an action on contract.'

Even if the question were in doubt, the plaintiff under the case of Miller v. Scherder (2 Comst., 268), would, it seems, have to take the consequences of his ambiguity. “If the plaintiff chooses,” said ShaNKLANd, J., “ to combine in the same action tort and breach of contract, and fails in both, ho should be held to have conferred upon the defendant the most beneficial remedy for recovery of the costs which either cause of action will confer if it had constituted the sole cause.” And again : “ If they desire to escape the perils of imprisonment, in case of defeat, they can and should declare upon contract alone, and without ambiguity, so that the defendants can have the benefit of the exemption conferred by the statute upon them.”

As to the remaining question, we agree with the plaintiffs that there are many torts for which an arrest will not lie. Was the action then for an “injury to property” within section 549 of the New Code ? We think this' question must be answered in the affirmative, on the authority of Duncan v. Katen (6 Hun, 1; affirmed, 64 N. Y., 625). Within this case, the property was the right to have, use and enjoy the thing. Consequently, the entire loss of the thing was an injury to property, viz. : to the right to have, use and enjoy it.

There is nothing in the point that the defendant could not actually be arrested, because it is a corporation. It is the nature of the action, not the incident of the person which governs. Nor is the question affected by the character of the summons. (Chambers v. Lewis, 11 Abb. P. R., 210.)

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to vacate denied, with ten dollars costs.

Davis, P. J., concurred.

Present, Davis, P. J., and Baeeett, J.

Order reversed, with ten dollars costs and disbursements.


text:
    HENRY MORRISON as Survivor, Etc., Appellant, v. JOSEPH AGATE, Respondent.

      Additional allowance — when a case is difficult and extrawdinary so as to justify it — Code, § 309.
    The action was brought to recover §15,000 damages claimed to have arisen from a malicious interference by the defendant, with the enjoyment and occupation of valuable premises, held by the plaintiff under a long lease; it being alleged that the defendant so disturbed the plaintiff’s tenants and undertenants that the latter were obliged to abandon the premises, whereby the plaintiff lost his - tenants and rents, and the premises became greatly injured, and the unexpired term of the plaintiff’s lease valueless.
    The complaint having been dismissed at the circuit, held, that the action was a difficult and extraordinary one within section 309. of the Code, and that an additional allowance of §250 was properly made.
    Appeal from an order made at Special Term granting defendant an extra allowance of $250.
    The complaint alleged that on the 3d day of March, 1866, by an instrument in writing, under seal, executed by the defendant and Eugene Mendez, the defendant granted, demised and leased to said Eugene Mendez the whole of the building and premises known as Nos. 645 and 647 Broadway, in the city of New York, with the privilege of using the stairs of No. 647 Broadway for the purpose of carrying in and out ashes, coal, and so forth, for the term of ten years, from the 1st day of May, 1866, of which said building and premises said defendant was, at the time, and ever since has been the owner.
    That subsequently the said lease was assigned to the plaintiffs.
    “That afterwards, on or about the 24th day of October, 1870, and on divers other days and times until and during the month of May, 1871, whilst the said plaintiffs were in the lawful possession of said premises, the said defendant continuously during the period hereinbefore mentioned, well knowing they, said plaintiffs, held and enjoyed the said premises as assignees of the aforesaid lessee, but contriving wrongfully, and maliciously intending to injure said plaintiffs and to obtain the control of the said premises for the unexpired term thereof, and to deprive the plaintiffs of the advantage, enjoyment or occupation thereof, disturbed the said plaintiffs, then tenants of the said premises and the sub-tenants or under-tenants of the plaintiffs’ tenants ; that by mere force of such disturbance the said tenants were obliged by the defendant to abandon the premises, by reason of which disturbance the plaintiffs lost their tenants, their rent, and the premises became greatly injured for the Want of occupation, whereby the unexpired term of the said plaintiffs in said lease became and was valueless to the said plaintiffs, and whereby the said plaintiffs were put to great trouble, damage, expense, outlays and injury, and whereby the plaintiffs were compelled to and did abandon their right, to said premises and their unexpired term to the said lease as the assignees of the said lessee.”
    The complaint was dismissed at the trial.

      A. JR. Dyett, for the appellant.

      O. Bainbridge Smith, for the respondent.
   Barrett, J.:

It was said in Bryan v. Durrie (6 Abb. [N. C.], 140), that “ whether an action should be so regarded (as difficult and extraordinary, within the meaning of the Code of Procedure), rests substantially in. the judgment and discretion of the judge to whom the application is made, and the determination of the question usually involves so many considerations which are addressed to the discretion of the judge, that the Appellate Court rarely interferes.”

Ve may add that the court does not encourage appeals upon mere matters of discretion,, and it will only interfere when the discretion seems to have been abused, or in a plain case of its unwise exercise.

The present action was clearly both difficult and extraordinary, within the meaning of the Code. It was an action in which’ damages to the amount of- $15,000 were claimed for a malicious interference with the plaintiff’s enjoyment and occupation of valuable premises held under a long lease. It was charged that the defendant so disturbed the tenants and under-tenants that the latter were obliged to abandon the premises, and that the plaintiff lost his tenants and his rents, and that the premises became greatly injured for want of occupation, whereby the unexpired term became and was valueless. If such an action -is not to be treated as difficult and extraordinary, then the statute as to allowances becomes practically valueless. It is certainly within the principle of Moulton v. Beecher (11 Hun, 192), which was an action for malicious prosecution. Nor should we overlook the prevailing practice in daily application for many years by the learned justices of this department, sitting at circuits and special terms. By them the statute has always been liberally construed, and a fair allowance in important and substantial litigations has been treated, even by the defeated party, as almost a matter of course.

As to the amount we are of opinion that the allowance granted by Mr. Justice YaN BruNT, in the present case, was reasonable- and moderate, and that his discretion was properly exercised.

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

Davis, P. J., concurred.

PresentDavis, P. J., Beady and Baeebtt, JJ.

Order affirmed, with ten dollars costs and disbursements.


author: Barrett, J. :

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. HENRY G. STEBBINS and others, Plaintiffs, v. RICHARD M. HOE and others, Defendants.

      jRapid transit act — eltap. 606 of 1875 — the commissioners appointed under can organize but a single eoiporation.

    Commissioners appointed under tlie rapid transit act (chap. 606 of 1875), to determine upon the necessity of a steam railway, and to fix and determine “the route or routes for such steam railway or railways,” have .power to organize hut a single corporation to operate all the railways whose construction they may authorize. They cannot organize a separate corporation to operate each of such railways.
    CoNteoveesy submitted upon agreed facts under section 1279 of the Code of Civil Procedure.
    In the month of March, 1879, pursuant to the provisions of the rapid transit act (chap. 606 of 1875), application in due form was made to the mayor of the city of New York, by fifty reputable house-holders and taxpayers of the city and comity of New York, for the appointment of five commissioners.
    Within thirty days after the presentation of the said application, the mayor duly appointed as such commissioners Messrs. Henry F. Spaulding, Benjamin G. Arnold, Henry G. Stobbins, Lewis G. Morris, and Samuel R. Filley, five of the relators in this proceeding.
    The said commissioners duly qualified as such according to the provisions of the act, and within the time limited therefor met and organized themselves as a board, with appropriate officers, and by resolution duly adopted determined that there was a necessity in the city and county of New York for a steam railway or railways, for the transportation of passengers, etc., in addition to any theretofore authorized or then existing.
    They also, within the time for that purpose limited by the said act, by resolution duly adopted, fixed and determined certain routes of a steam railway or railways in the city of New York, as follows :
    First. A route to be designated as the Harlem River, Kings-bridge and Riverdale Route.

      Second. A route to be designated as the Central Route.
    Third. A route to be designated as the East Side Route.
    Fourth. A route to be ■ designated as the Jerome Avenue Branch.
    Fifth. A route to be designated as the Fordham Avenue Branch.
    Sixth. A route to be designated as the Hunt’s Point Route.
    Seventh. A route to be designated as the Westchester Branch.
    Eighth. A route for crossing the-Harlem river.
    Having, by due public notice, invited the submission of plans for the construction and operation of the railway or railways, the routes for which they had so determined, the said commissioners, on the 9th of July, 1879, at their office in the city of New York, met and decided upon the-plans for the construction of such railways, and fixed and determined the time within which the several railways should be constructed and ready for operation, and also fixed and determined the amount of the capital stock of a company to be known by the name of the West Side and Yonkers Railway Company, to be formed for the purpose of constructing, maintaining and operating the railway or railways embraced in route number 1, as fixed and determined by them, and the number of shares into which such capital stock skoidd be divided, etc. They also took the necessary steps to organize the. said company which, immediately after it was so created, entered upon the construction of the railway embraced in the said route, designated by the said commissioners as the Harlem River, Kings-bridge and Riverdale route, and which is described in its articles of association.
    After the said commissioners had fixed and determined the amount of the capital stock of the said West Side and Yonkers Railway Company, they further proceeded to fix and determine the amount of the capital stock of another company for the purpose of constructing, maintaining, and operating the railway or railways embraced in the routes determined by them, and designated respectively as the Central Route, the East Side Route, etc., said company to be known as the Suburban Rapid Transit Company, and proceeded to fix and determine the number of shares into which such capital stock should be divided, and the percentage thereof to be paid in cash. They also proposed to, and did prepare articles of association for the said proposed company, to be called the Suburban Rapid Transit Company, and caused a book of subscription to such capital stock of the company to be opened pursuant to notice.
    Some subscriptions were made to the capital stock of the said proposed Suburban Rapid Transit Company, but the whole capital stock was not subscribed, nor was an amount of such capital stock, proportioned to the part of such railway or railways directed by said commissioners to be first constructed, subscribed; nor were subscriptions made thereto by as many as twenty-five persons. Among the persons who so subscribed was George II. Foster, one of the relators in this proceeding. • The book of subscription for the capital stock for the proposed Suburban Rapid Transit Company still remains open.
    In this state of facts, the question having arisen as to whether or not the said board of commissioners had, by the organization of the "West Side and Yonkers Railway Company, exhausted their powers under the said act to organize a corporation, parties who Wtíre desirous of having the system of railways, which had been found by the said board to be necessary, completed, and who would otherwise have subscribed for the stock of a company duly organized to construct such railways, were deterred, by doubts as to the legality of the proceedings of the said relators, from making such subscriptions.
    Thereupon, on the 31st of July, 1879, a new application by fifty householders and taxpayers for the appointment of commissioners, was duly presented to the mayor of the city of New York, from which it appeared that there was need in the city and county of a steam railway or railways. All the proposed railways embraced in the said application were wholly within the limits of the city and county of New York.
    Within thirty days after the presentation to him of said application, the said mayor, pursuant to the provisions of the said act, duly appointed the defendants commissioners under the same, with full power and authority to do and provide all that commissioners under the act are directed to do and provide by the terms thereof.
    The certificate of the appointment of said commissioners was duly executed and filed, and, within the time limited by the act for that purpose, the defendants respectively took and subscribed the necessary oath, and in all respects duly qualified as commissioners thereunder.
    The defendants also, within the times in said act for said purposes respectively limited, met and organized as a board, and, by resolution, determined that there was a necessity in the city and county of New York for a steam railway or railways in addition to any then existing. They also, within the time limited by the act for that purpose, fixed and determined upon certain routes of steam railway in the city of New York, which are particularly set forth in the case.
    These routes, so fixed and determined by the defendants, embraced in whole or in part ,the same routes fixed and determined under the same designation by the board of commissioners who appear as relators in this proceeding, and which were embraced in the articles of association prepared by the said relators for a corporation to be known as the Suburban Rapid Transit Company — the same company for subscription to the stock of which a book had been opened under the direction of the relators, and to the stock of which the relator, George H. Foster, had become a subscriber. The relators, deeming this action a usurpation of, and intrusion into, and an unlawful exercise of a public office, and of a franchise within this State, which should be restrained by the judgment of this court, called upon the attorney-general to intervene,'pursuant to the provisions of section 432 of the Code.
    There being no dispute about the facts, instead of an action being brought by the attorney-general pursuant to the provisions of section 432 of the Old Code, it was agreed that a case should bo made for submission to the court, pursuant to the provisions of section 1279 of the Code of Civil Procedure, and under that arrangement the present submission was made.
    The question presented was, briefly, whether, according to the true intent and .meaning of chapter 606 of the Laws of 1875, a board of commissioners appointed under that act are limited to the organization of one corporation for the purpose of constructing, maintaining and operating a railway or railways upon the routes which they have fixed and determined; this being the claim of the defendants; or, whether a board of commissioners organized under said act, according to its true intent and meaning, have power to organize as many companies as they may think proper for the purpose of constructing, maintaining and operating a railway or railways upon the routes which they have fixed and determined ; this being the claim of the relators.

      Hamilton Ward (attorney-general) and George H. Foster and Samuel E. Lyon, for the plaintiffs.

      William I). Shipman and Joseph Larocque, for the defendants.
   Barrett, J. :

This case presents a very important question as to the powers of commissioners, appointed under what is commonly known as the rapid transit act. (Laws of 1875, chap. 606.)

Under that act the commissioners, having first decided as to the necessity for steam transit in a particular locality, are required to fix and determine “ the route or routes for such steam railway or railways.”

The plaintiffs claim that these commissioners have the power to organize as many corporations as railways, while the defendants insist that they are limited to the formation of a single corporation. The latter contention is certainly supported by the letter of the act. The question is as to the intention.

There will probably be no difference of opinion as to the rules of construction. The real intention, to be gleaned from the entire statute considered with reference to its reason and object, must always prevail over the literal sense of particular terms. To apply the words of Chief Justice Church in the Matter of the Gilbert Elevated Railway Co. (70 N. Y., 371), the court should, “ in furtherance of justice, adjudicate in favor of a practical Tather than a literal construction of language at the same time it is not the province of the court to correct legislative errors and omissions ; nor even supposed excesses, if they are within its constitutional power. Where, then, the language used is explicit, the court must seek the intention in the words of the act.

The phraseology employed in the present instance plainly imports the uniting in a single corporation of all the railways determined lición by tbo commissioners. When referring to corporate creation, it is the definite article and singular number which are used. The first allusion to a company is in the sixth section. It is in these words: “The said commissioners shall also, within the like period of ninety days after their organization, fix and determine the amount of the capital stock of the company to be formed for the purpose of constructing, maintaining and operating such railway or railways.”

Here we have “ the company,” in the singular, “ the railways,” in the plural; not a company, not the company or companies.

From thence onward the same language is repeatedly employed. It pervades the entire act, with occasionally some expressive additions, evincing a spirit and intent quite in harmony with the letter. Of these we may profitably give a few examples. Thus, in section eight, we find this language : “Whenever the whole capital stock of such company, or an amount of such capital stock proportional to the part of such railway or railways directed by said commissioners to be first constructed, shall have been subscribed ;” and again : “A majority in number and amount of said subscribers may elect persons * * * who shall be directors for one year of the corporation formed for the purpose of constructing and operating said railway or railways.”

So, in section 9, an affidavit is required from the directors that “ it is intended in good faith to construct, maintain and operate the railway or railways in such articles of association mentioned ; ” also, the filing of a certificate “in the office of the clerk of the county where such railway or railways shall be located.”

Further on, when we come to the grant of power, it is said (§ 26, sub. 5) that every corporation formed under the act may “construct, maintain, operate and use, in accordance with the plan adopted by said commissioners, a railway or railways upon the route or routes and to the points decided upon, and may secure the necessary foundations and erect the columns, piers and other structures which may be required to secure safety and stability in the construction and maintenance of the railways constructed upon the plan adopted by the said commissioners and for operating the same."

All this, and particularly what we have quoted from the ninth section, contemplates the embracing in the company's articles of association, of as many railways as the commissioners have “fixed and determined upon.”

But what is quite as significant is the direction of the commissioners in the thirty-seventh section, “ within one month after such corporation shall have been formed,” to transfer and deliver to it “ all plans, specifications, drawings, maps, books and papers in their possession.” Also to pay over to the treasurer all money collected (from original subscribers to the stock), after deducting therefrom the necessary expenses incurred by said commissioners, and the amount due or to acame to them for their salaries

These salaries are fixed by the thirty-eighth section at ten dollars per day to each commissioner, “for each day of actual service, to be paid by such corporation.”

These provisions certainly color the preceding sections, and deepen the conviction that but a single corporation was designed.

It is true, looking at it from the opposite standpoint, that the plans, specifications, etc., appertaining to each railway might be turned over to each appropriate corporation ; but what authority, it may be asked, have the commissioners to apportion their expenses and per diem, especially those incurred before even the incipient steps on the subject of corporate creation ?

The plaintiffs refer in support of their construction to the occasional use of such expressions as “any company,” and “ every corporation ” formed under the act; also, to the variation at times, especially when defining the power of such corporation, from the term “ railway or railways ” to the simple word “ railroad.” As to the latter, we think it quite clear that when the word railroad is used, it is in its ordinary meaning, that is, as generally applied to the great roads running through States. Not so, however, as to the word “ railway or railways ;” the latter, when we consider the limited localities, and the general scope of the projects, seem to have been used rather as an extension or amplification of the words “ route or routes,” and not as characterizing distinct and independent railroads. Any break in the connection between the routes is thus provided for beyond question. For instance, parallel lines on neighboring avenues may or may not be connected by tracks laid upon side streets. When such connection is specified as part of the plan, it comes within the expression, “ the route cf a railway,” but when the parallel tracks are not intended to and do not connect, there may be said to be either two separate railways or two routes of one. The same reasoning implies to entirely independent routes, the difference being only in degree.

Thus the “ railroad ” is, in substance, the corporation working out the entire scheme of rapid transit. The “ railroad” covers all the routes, all the tracks, all the railways ; in fact, the totality of corporate rights and possessions.

The other expressions, “any company,” “ every corporation,” etc., throw no light upon the precise question now before us. Many corporations may, of course, be formed under the act. There may be one in every county in the State. There may even be more than one, as we shall see hereafter, in any one county. These expressions undoubtedly have reference to any company properly organized in any county. To that and nothing else.

Having thus looked at the statute in its length and breadth we find nothing to justify the plaintiff’s contention. There is, on the other hand, convincing proof of the correctness of the opposite view, not only in the plain language employed but in the complete and harmonious scheme which runs through the entire act. In this connection it may be well to consider the object of this legislation. The plaintiffs concede, what is undoubtedly the fact, that its chief purpose was to supply the city of New York with steam transit. The general railroad law was not adapted to secure this, much desired end, and an entirely new system had to be planned.

The reason is obvious. The general railroad law was for the entire State. It could be set in motion, without consulting, localities, by any twenty-five persons who chose to comply with its provisions. This would have been oppressive, unsuitable and indeed practically impossible of execution in limited and densely settled localities. The new system aimed at securing the desired end in a suitable and proper manner. It professed to throw many safeguards around the right of the public. In theory, at least, rapid transit is supposed to originate with the citizens themselves, for the law can only be set in motion by fifty reputable householders and tax-payers. Upon their application the commissioners are appointed by local authority. Nothing further can be done unless these cor mhssioners determine that steam transit is needed. If they so determine they have exclusive power to locate the routes, to decide upon the plan and time of construction, to determine the maximum rates of fare, the hours during which special cars shall be run at reduced rates, and finally to organize “ the company.” Up to this point the promoters of the enterprise have no statutory voice.

It will b.e observed that the entire programme must be settled upon and completed before the company is organized. After such organization the commissioners can fix no fresh route or routes, nor determine that any other railway is necessary. The intention here is clear and specific. It is to have all the present needs of any one locality debated, mapped out and satisfied, not by continuous acts but by one great, single and final exercise of judgment.

That the commissioners are thus limited is made additionally plain by the provision in the thirty-ninth section, that their terms of office expire “ with the performance of their functions as herein prescribed.” If continuous acts were authorized their tenure of office would necessarily be indefinite. Thus we have a' scheme provided for one complete and comprehensive plan, covering all the ground and to be executed by a single corporate enterprise.

If the plan prove inadequate as a means of present relief, or if future need demand fresh action, the remedy is simple. The citizens, by a fresh application may again put the machinery of the act in motion. “ Whenever it shall appear # * * that there is need of a steam railway in any county,” are the first words of the first section. It is the people, not the commissioners, who may proceed by continuous acts.

There is one further consideration which has been urgently pressed upon us and that is, that the law, as thus interpreted, would seem to exclude competition and sanction monopoly. Although our duty, as we have seen, is merely to ascertain and declare the legislative intent, yet we have given the argument on this head much reflection. It has, however, failed to convince us that the act, as we feel bound to construe it, is amenable to the plaintiff’s criticism.

Where there are several routes, as to some of which there is a reasonable assurance of success and profit, while others in that regard are dubious, it would seem to be wise policy to include them all in one enterprise, compelling the construction and completion of all by the promoters, under some serious penalty. Subdividing the companies would insure the rapid completion of the better line while the doubtful route, equally necessary perhaps to a smaller class, would probably languish.

This very consideration seems to have been in the legislative mind, and it is covered by the seventh section, which gives the commissioners power to provide in the company’s articles of association, “ for the release and forfeiture, of all rights and franchises acquired by such corporation in case such railway or railways shall not be completed within the time and upon the conditions therein provided.”

We cannot agree to the construction placed upon this language by the learned counsel for the plaintiffs. It is contrary to the rules of interpretation for which they have contended throughout. To say that a corporation, which has been granted two or more lines,' may, on the due and timely construction of one only, escape the penalty by pleading the completion of a railway, indicates that the letter of the section has alone been observed. We do not think that such a construction is even within the letter. The alternative — railway or railways —is plainly used to provide for either contingency ; that is, if but a single railway is authorized by the articles that must be completed under the penalty. If railways are so authorized, they must be completed under the penalty. Were this construction not within the letter, it certainly is within the spirit of the section.

. The object was to compel conformity to the articles of association, as prepared by the commissioners, and to insure prompt construction of all the lines embraced therein. We have no doubt of the power of the commissioners in such a case to make ample provisions in the articles for a general forfeiture in a case of failure to complete each and every line granted to the corporation.

The result of an exceeding careful review of the entire subject is that the relator’s power was exhausted upon the organization of the West Side and Yonkers Railway Company, and that the defendants, appointed as commissioners under tbe second application, are alone authorized to form “ tbe company ” in question. There must, therefore, be judgment for the defendants.

Davis, P. J., and Beady, J., concurred.

Judgment ordered for defendants.


text:
    In the Matter of the Claim of WILLIAM H. FLANDROW, Appellant, an Alleged Creditor of TUNIS VAN BRUNT, Deceased.

      Attachment of a judgment — swvice of warrant — when it must be made on the debtor himself — Code, § 235.
    March 1,1867, the Marine Bank of Chicago recovered a judgment, in the Supreme Court of this State, against T. Van Brunt, of the city of New York, who died December 29, 1867. Thereafter an action was commenced in this State by one Hammond against the said Marine Bank, in which an attachment was issued on June 20, 1869, under which the said judgment was attempted to be levied on, by serving a certified copy of the warrant upon one of the attorneys who represented the said Van Brunt in the action brought against him by the said bank. No copy of the attachment was served upon any of the legal representatives of Van Brunt’s estate.

      Held, that the attorney was not “ an individual holding ” the said judgment, within the meaning of section 235 of the Old Code; that it could only be attached by service upon the debtor, as therein provided, and that as no such service was made the said judgment was never legally attached.
    Appeal from an order made by the surrogate of the county of New York, denying William H. Flandrow’s petition for the payment of his alleged claim against the estate of Tunis Van Brunt, deceased.
    The claim of the petitioner is based upon a judgment recov- • ered by the Marine Bank of Chicago against the said deceased for $6,858.12, on the 1st day of March, 1867, and of which judgment petitioner claims to be the owner.
    The facts upon which the plaintiff claims title to such judgment are as follows:
    On the 20th day of January, 1869, Henry B. Hammond commenced an action in this - court against said Marine Bank, which, was a foreign corporation, created by and under the laws of the State of Illinois. The summons and complaint in said action ■were served by publication. The defendant did not appear and judgment by default was entered November 2,1870, for $1,282.62. Execution thereon was issued and returned unsatisfied, and- upon Hammond’s petition and other affidavits an order was made May 24, 1871, directing the sheriff to sell at auction, under said execution, the judgment against Van Brunt, which it was claimed had been levied upon by him under an attachment issued in said action on January 26, 1869, and the said sheriff, under said order, sold the said judgment to said Hammond for $1,372.36, and he subsequently assigned the same to George M. Vanderlip, who assigned the same to the petitioner.
    The petitioner’s title to said judgment depends upon the question whether the attachment issued in the action of Hammond against the bank was so levied upon the bank’s interest in the judgment against said Van Brunt, as to subject said last mentioned judgment to the jurisdiction of the court.
    It was levied upon by serving a copy of the warrant of attachment upon one of the attorneys who had appeared for Van Brunt in the action brought by the Marine Bank. The service being made upon him 11 as the individual holding said judgment as the plaintiff’s attorney.” At the time of such service the said attorney gave a paper certifying that he then had the said judgment under his control, as a member of the firm, who had appeared for the plaintiff. For other litigations as to this same controversy see 11 Hun, 379, and 49 N. Y., 160.

      Theodore TJ. Tomlinson, for the appellant.

      John Tl. Burrill, for the administrator, respondent.
   Barrett, J.:

The single question presented by this appeal is whether the judgment recovered by the Chicago Bank against Van Brunt was legally attached in the suit of Hoffman against that bank. W e are of opinion that it was not, for the reason that a certified copy of the attachment was never left with the debtor, nor even with an “individual holding” the property as required by section 235 of the Old Code. It was not left with the debtor, for Van Brunt was dead when the attachment was issued, and it was not served upon any representative of his estate.

As to the other branch of the section, it might be sufficient to say that the judgment was owned by the foreign bank, and was not “held” by any individual within this State. Service was made, it seems, upon the attorney who acted for the bank in the legal proceedings which resulted in the judgment, but that service was clearly inoperative. The attorney did not “ hold ” the judgment within the meaning of section 235 of the Old Code. The judgment was not the kind of property contemplated by the phrases “ other property incapable of manual delivery,” and “ the individual holding such property,” which are to be found in the section in question. The notes upon which it was recovered undoubtedly came within this expression, and if the attachment had been served upon the attorney while he held these notes, and was prosecuting them to judgment, it might probably have been sufficient. (Russell v. Ruckman, 3 E. D. Smith, 419; Clarke v. Goodridge, 41 N. Y., 210.) But when the notes were merged in the judgment, the status was changed. The judgment, though undoubtedly a chose in action, was simply a debt due by Van Brunt to the bank, and as such could only be attached by service on the debtor. (Clark v. Warren, 7 Lans., 180.)

The language is “debts” and “other property incapable of manual delivery.” The service is to be upon the debtor or individual holding such property ; that is, holding, “not debts.” but “ other property incapable of manual delivery.” This is the true construction of the section. It distinguishes between “ debts ” which are not evidenced by a note or other written obligation, and “property incapable of manual delivery,” such as bonds, goods under pledge, and even debts so evidenced. In the one case the attachment must be served upon the debtor; in the other upon the individual actually having the bonds, goods or tangible evidence of the debt in his possession. Here there was no such individual, nor could there very well be, as the evidence of the debt was a record. A stronger case would be that of an attorney who bad possession of bis client’s books containing entries evidencing an open account duo by a customer. Yet it could scarcely be claimed that sucb attorney held the debt, witbin tbe meaning of tbis section.

The decree of tbe surrogate was right and must be affirmed, with costs.

Beady, J., concurred.

Present — Davis, P. J., Baeeett and Beady, JJ.

Decree affirmed.


author: INGALLS, J.: Davis, P. J.: Brady, J.

text:
    THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant, v. THE STANDARD OIL COMPANY, Respondent.

      Contract for transportation of oil — -when a carrier is hound to unload the goods, to entitle him to freight — effect of a clame placing the goods at the risk of the shipper.

    A contract, by which the plaintiff agreed to transport oil for the defendant, provided that the plaintiff should at its own expense load the oil and transport it over its road to Athens “ and thence by barges to the warehouse of the party of the first part (the defendant) at Hunter’s Point,” and that it should provide suitable covered cars, and haul the same over its road “ and cause the same to be unloaded and returned without delay.” The defendant agreed to pay “ on ■ the delivery ” of the oil. The barge was destroyed while lying at a dock of the defendant’s warehouse by a fire which originated on a tank boat used by the defendant.

      Held, that the plaintiff was required by the contract to unload the oil from the barges at the defendant’s warehouse, and that it could not recover freight for the oil therein, which had not yet been’ unloaded therefrom.
    By the contract the defendant agreed “ to assume all risks and loss of its property by fire when in the charge or custody of the party of the second part, whether said property is being moved upon cars or barges, or is stored or awaiting transportation at any point.”

      Held, that this clause was only intended to relieve the plaintiff from its common law liability for the destruction of the oil by fire, and did not entitle it to recover freight for oil destroyed before actual delivery. (Brady, J., dissenting.)

      Appeal by tbe plaintiff from a judgment, entered upon the report of a referee.
    The action was brought to recover an amount alleged to' be due to the plaintiff for transporting oil belonging to the defendant, in pursuance of a contract entered into between the parties hereto. The oil had been transported by the plaintiff from Buffalo to Hunter’s Point, and was destroyed by fire while in a barge lying at the dock of the defendant’s warehouse. The fire originated on a tank boat in the use of the defendant. The defendant claimed that the plaintiff was not entitled to recover freight thereon because the oil had not been actually unloaded from the barge.

      William A. Beach, for the appellant.

      George A. Blade, for the respondent.
   INGALLS, J.:

There is practically but one question of importance in this case, which is whether the plaintiff had earned, and was entitled to recover, for the transportation of the oil which was destroyed in the barge. And the determination of such question depends upon whether or not, in view of the facts, the oil had been delivered by the plaintiff to the defendant previous to its destruction. The ■contract provides, in regard to the obligation assumed by the plaintiff to transport the said oil, as follows, viz. :

“ Fourth. The party of the second part agrees to transport said product of said refineries not to exceed, however, the quantity specified in article one, and at their own expense to load the same and transport it over their respective railroads, as follows: ‘ During the season of navigation on the Hudson river to Athens, and thence by barges to the warehouse of the party of the first part at Hunter’s Point, Long Island City, Long Island, and during closed navigation on the Hudson river, át the warehouse of the party of the first part at Sixty-fifth street, New York city, contiguous to the tracks of the party of the second part, and deliver the same in good order and condition, except as provided in articles two and three.’
“ Fifth. The New York Central and Hudson River Railroad Company agrees that it will (on or before the 1st day of June, 1873) furnish 700 suitable covered cars to be used continuously in the execution of this contract, aud haul said cars, as also those furnished by the Lake Shore and Michigan Southern Railway Company in full trains over its road with promptness and uniformity of movement, and cause the same to he unloaded and returned without delay upon their arrival at place of destination, during the months of April and May.” The contract provides further in regard to the obligation of the defendant, as follows : “ The party of the first part agrees to pay to the party of the second part on the delivery of said products” etc.

The barge containing the oil lay alongside the dock about sixty feet distant from the defendant's warehouse. At the edge of the dock an incline plane was so adjusted that a barrel of oil placed upon it from the barge would roll by force of gravitation into such warehouse. When the fire occurred, the oil was in process of removal from the barge to the warehouse. The plaintiff was allowed by the referee compensation for transporting all the oil which had been removed from the barge previous to the fire. The right of the plaintiff to demand compensation depended upon the performance of the contract, which, as we interpret it in the light of the surrounding circumstances, obligated the plaintiff to remove the oil from the barge before compensation could be considered earned. So the referee- held, and examination and reflection satisfies us that he was correct. W e perceive nothing in the case which would justify a conclusion that strict performance on the part of the plaintiff has been waived or excused by the defendant. The simple fact that the defendant paid men who were engaged in unloading barges in 1873, which were laded with oil, would not justify an inference that the defendant was under obligation to unload the oil in question. The case contains the following .admission : “ It is admitted that none of the oil was taken off the barges by defendant’s employes, although 159 barrels and sixty empties were taken off the barge Barnes and put into the store house of defendant before the fire occurred.”

We have examined the various exceptions taken to the rulings of the referee and discover no error which could have prejudiced the plaintiff’s case, or which calls for the reversal of the judgment. We refer to the following cases bearing upon the question of the delivery of the oil. (The West. Trans. Co. v. Hoyt, 69 N. Y., 234; Brittan v. Barnaby, 21 How. [U. S.], 532; De Mott v. Laraway, 14 Wend., 225; Miller v. Steam Navigation Co., 10 N. Y., 431.)

The judgment must be affirmed.

Davis, P. J.:

I concur with my brother Ingalls in the conclusions he has reached on the several questions discussed by him. But my brother' Brady is of opinion that the provision of the contract' relative to the destruction of the defendant’s ‘ property by fire requires a different view to be taken of the liability of the defend-, ant for freight or property so destroyed. That question not having been considered by Ingalls, J., I feel bound to add a suggestion in reference to it. The provision is as follows : ‘ ‘ The party of the first part agrees to assume all' risks and loss of its property by fire when in the charge or custody of the party of the second part, whether said property is being moved upon cars or barges, or is stored or awaiting transportation at any point.”

This provision was inserted obviously, on account of the inflammable nature of the property, to relieve the plaintiff in case of fire from its common law liability as a carrier. Beyond that object I think it is without scope or purpose. But its language seems clearly to show that it had no reference to the freight earned or to be earned by plaintiff. Such freight is in no sense “ the property of the defendant,” nor can it become so by any accident of fire or otherwise.

The defendant assumes the loss of u its property” by fire, plainly meaning the oil and things connected therewith for the transportation of which the contract provides. The construction given by Brady, J., of this provision, would make the defendant liable for the freight earned or unearned on all property destroyed by fire while “ in transitu ” at any stage of its transit quite independently of any question of delivery. The suggestion is completely answered by simply observing that the provision in question relates only to the defendant's property, and that the freight earned or to be earned is at all times the plaintiff’s prop erty. The only intention of the contract in this respect is to provide that hi case of destruction by fire the loss of defendant’s own property should fall on defendant, leaving plaintiff only to bear the loss of the freight which might otherwise be earned by the completion of the contract.

I think the judgment should be affirmed.

Brady, J.

(dissenting).

The right of the plaintiff to recover for all the oil carried depended upon the delivery of it as required by the contract relating to its carriage. By the agreement it was, during the season of navigation, to be transported to the warehouse of the defendant at Hunter’s Point, and delivered in good order and condition, and the defendant was to pay on delivery. The contract also provided that the defendant was to assume all'risks and loss, of its property by fire when in charge or custody of the plaintiff, whether it was being moved upon cars or barges, or stored or waiting transportation. The barges used by the plaintiff arrived at the dock of the defendant at Hunter’s Point, and some of the oil in barrels was passed into the warehouse when a fire occurred which originated in a tank in the employment of the defendant, and the fire consumed the barges and the oil which was on board of them. It will be perceived from this statement that the plaintiff was prevented from passing the oil into the defendant’s warehouse by a fire which had its origin on the defendant’s premises at the place for unloading and delivery and apparently connected therewith, and that the plaintiff, for aught that appears, was not guilty either of negligence or delay. Whether the fire arose from the want of care on the part of the defendant does not appear, and does not seem to have been in issue. This case thus presented seems to result necessarily in the proposition that the freight should be considered to have been earned. The defendant assumed all risks and loss by fire, and the amount of freight was one of the items of risk under the peculiar circumstances of this case. The plaintiff having reached the defendant’s dock with the oil, and having begun its delivery, did all that could be done when the fire intervened, and should not, therefore, in justice be held to have lost the freight because it did not do what it was then impossible to do, namely, to pass tbe oil into the warehouse. The oil was destroyed at the defendant’s dock, and by reason of an incident originating on its premises, and it is a fair interpretation of the contract, as an entirety, therefore that the payment of the freight was one of the losses embraced by the agreement to be borne by the defendant.

It could not have been contemplated by the contracting parties that under such circumstances the freight was not to be paid. For these reasons, thus briefly stated, I do not concur with my brethren.

Judgment affirmed.


text:
    JAMES M. MOORE AND RAYMOND JENKINS, Appellants, v. MICHAEL McMAHON, Respondent.

      The Cow"b cannot release a defendant held under an execution, because of Ms inability to endure imprisonment — Code, § 302 — is only applicable to one confined for a contempt — to what diseases it is applicable.

    The court has no power to release a defendant held under an execution against Ms person, because of his inability to endure the imprisonment.
    Section 302 of the Code authorizing- the release of a person committed for a contempt, in case of his inability “ to endure the imprisonment,” is not applicable to one who is suffering from a malarial fever, but only to one suffering from a disease in the nature of a slow wasting, a steady diminution of the vital forces, tending, unless arrested by sunlight, open air-, proper exercise, or the enjoyment of freedom, to a complete destruction of Ms constitution, and, as a not remote consequence, death.
    Appeal from an order discharging the defendant from custody under an execution against the person, in consequence of his ill health.
    The affidavit presented by the defendant showed, among other things, “that he is totally without the means to pay the debt for which he was arrested and is confined in prison, and has no property of any kind whatever, having lost all his means by unsuccessful business ; that he is unable to perform the act of payment of the said debt for which he was arrested, and is unable to endure the imprisonment, as his health is being injured by close confinement.

      “ Wherefore, he prays the mercy of the court that he may be discharged from imprisonment on such terms as may be just.”
    ' The following certificate was also used upon the motion :
    “New York CouNty Jail, September 1, 1879.
    “This is to certify that I have examined Michael McMahon, a prisoner, confined in this jail, and find him suffering with malarial fever, and further incarceration is detrimental to his health.”
    “ THOMAS F. O’BRIEN, M. D.,

    “ Physician to the Jail.”

      George WiTlcox, for the appellants.

      George ¡S. WilJcs, for the respondent.
   Barrett, J.:

There is no inherent power in the court to release a defendant merely as a matter of grace or mercy. There was none at common law. It is said that where there is no statutory power the party can only be released by special act of the Legislature. (4 Wait’s Pr., 195, citing Van Wezel v. Van Wezel, 3 Paige, 38.) There would seem to be no authority to release a prisoner held under an execution against the person because of his inability to endure his imprisonment. The Code, section 302, refers specifically to con-tempts in proceedings supplementary to execution, or under the act to abolish imprisonment for debt. The only method provided by law for the release of a defendant charged in execution is that specified in the Revised Statutes. (2 R. S., 31.)

We may add that, even if there were power, no case whatever was made for its exercise. All that the physician says is that the prisoner has a malarial fever and that incarceration is detrimental to his health. Confinement usually is detrimental to health, and malarial fevers, whether suffered in or out of jail, are undoubtedly severe.

But that is not what is meant, even in section 302, by inability to endure the imprisonment. The statute contemplates something in the nature of a slow wasting, a steady diminution of the vital forces, tending, unless arrested by sunlight, open air, proper exercise and the enjoyment of freedom, to a complete destruction of the constitution, and, as a not remote consequence, death.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Davis, P. J., concurred.

Present — Davis, P. J., and Barrett, J.

Order reversed, with ten dollars costs' and disbursements; motion denied, with ten dollars costs; order to be settled by Barrett, J.


text:
    THOMAS CANAVAN, Appellant, v. JOHN McANDREW AND PHILIP H. COYNE, Respondents.

      Supplementary proceedings — second examination not allowed imiless good cause be shown.

    A judgment creditor is not permitted to harrass his debtor by successive examinations in supplementary proceedings; after he has once fully examined him, a second order will not be granted, unless some good reason be given therefor, even though the second application be founded upon another judgment held by the same creditor against the same debtor.
    Appeal from an order vacating an order requiring the defendant to appear and be examined in supplementary proceedings.
    On the 15th of May, 1879, plaintiff recovered a judgment in this court against the defendants, to be enforced against the joint property of both, and the separate property of McAndrew. Execution was duly issued to the sheriff of New York, where McAndrew resided, and returned nulla bona. Upon affidavits properly framed an order was made for the examination of McAn-drew before Justice Donohue, and another for the examination of Frederick H. Gibbens, treasurer of the D. and L. Railroad Company, an alleged debtor to the judgment debtor. The orders were duly served, with copies of the affidavits on which they were granted, and at the time appointed the parties appeared in person and by counsel. No objection was made to the affidavits or orders, but McAndrew’s counsel made an affidavit that in March, 1879, prior to the recovery of this judgment, “upon a judgment different from the one in this case, but being for an installment of rent due under a lease, and the judgment in this case being for another installment of rent due under the same lease, McAndrew had been examined at length.”
    Gibbens made an affidavit that “ the company owed McAndrew nothing; that there were no open accounts between them, and had not been since November, 1878, when the accounts were closed, and that he too had been previously examined on other judgments recovered by plaintiff.”
    Upon these affidavits, on motion of the counsel, the judge at chambers set aside both orders, and dismissed the proceedings.
    It did not appear that the former proceedings alluded to were still alive, or that a receiver had been appointed.

      George O. Genet, for the appellant.

      Hamilton Odell, for the respondents.
   Barrett, J.:

A judgment creditor is not permitted to harass his debtor by successive examinations in supplementary proceedings. He is entitled to examine the defendant as fully as may be once. After that it becomes a question of sound discretion. It is well settled that a second order will not be granted, as a matter of course. To secure it properly the affidavit should disclose the first proceeding, and give some good reason for again invoking the powers of the judge, such as subsequently acquired property, or the like.

In the case at bar nothing of the kind was attempted to be shown, either affirmatively or in answer to the motion to vacate. Indeed, the plaintiff seemed to recognize the rule but sought to evade it, by applying on another judgment of his against the same defendant. This will not do. The spirit and intent, rather than the letter of the statute, must govern. If the plaintiff’s position be correct he has an absolute right to examine the defendant on every judgment he may obtain, no matter how numerous they may be. This would result in making the statute a means of oppression and could not be tolerated. The fair rule is freely to grant the right, not as attaching specially to the two or more judgments, but as the privilege of the particular plaintiff. (See Irwin v. Chambers, 8 Jones & Spencer, 432.) Mr. Justice Lawrence was right, in exercising his discretion, to vacate the proceedings, and the order appealed from must be affirmed, with ten dollars costs and disbursements.

Davis, P. J., concurred.

Present — Davis, P.. J., and Baurett, J.

Order affirmed, with ten dollars costs and disbursements.


text:
    ALBERT BRISBANE, Respondent, v. GEORGE BRISBANE, Appellant.

      Plaintiff may examine the defendant, to obtain facts necessary to frame the complaint— Code of Civil Procedure, § 870.
    Under section 870 of the Code of Civil Procedure the plaintiff is entitled to examine the defendant for the purpose of obtaining facts necessary to enable him to frame his complaint.
    Upon an application for an order requiring the defendant to appear and be examined, to enable the plaintiff to obtain facts necessary to enable him to frame his complaint, the affidavit need not state that the plaintiff intends to use the deposition upon the trial of the action.
    Appeal from order made by the county judge of Genesee county, denying the defendant’s motion to dismiss an order. for his examination as a party before trial, which order was granted to enable the plaintiff to frame his complaint.

      Corlett & Hatch, for the appellant.

      John G. Milburn, for the respondent.'
   Barrett, J. :

It was held in Glenney v. Stedwell (64 N. Y., 120), under the Code of Procedure, that the plaintiff had the privilege of examining the defendant for the purpose of obtaining facts necessary to’ enable him to frame his complaint. We think it quite clear that this right is preserved by the Code of Civil Procedure. The expression in section 391 of the Old Code, “at any time before the trial," which in the case cited was deemed to cover an examination before, as well as after issue, is also to be found in section 870 of the New Code. The provisions of the Old Code were a substitute for a bill of discovery, through which one’s adversary was compelled to disclose information in his possession, essential to the proper preparation of the pleading. This, valuable means of relief, as was held in Glenney v. Stedwell, could only be taken away by clear and unmistakable legislation. No such intention was found in the Old Code itself, nor in the report of the commissioners, and the expression quoted was deemed amply sufficient to support the retention of the power. The same direction of thought applies to the New Code. “ The commissioners Avho reported the-Code of (Civil) Procedure" to quote And apply Mr. Justice Folger’s opinion in the Glenney Case, “ and the Legislature which enacted it, found the Supreme Court in possession of this jurisdiction.”

There is no suggestion óf a purpose to limit existing means of relief. On the contrary, we not only find the expression which had already conserved the uses of a bill of discovery, but, in section 872, subdivision 4. a still broader phrase than any in the Old Code. The affidavit, according to this subdivision, must state “ that the testimony of the person to be examined is material and necessary for the party making such application, or the prosecution or defence of such action.” Further, the commissioners, in their preliminary note to this general subject, express no other intention, save that of consolidating the existing provisions of law. All else has reference to form and detail.

It is claimed that, even if this construction be correct, the affidavit should not have been limited to the purpose of obtaining facts necessary to enable the plaintiff to frame .his complaint. There is nothing in this point. It is idle to say that the plaintiff may have a general examination before issue, which can legitimately be used to frame his complaint, but that in his affidavit ho must express the need or intention of reading the deposition in evidence upon the trial. This point could as well have been urged under the Old Code, which is also suggestive throughout of the use of depositions taken thereunder as evidence upon the trial. There is nothing in the entire system of taking depositions under the New Code (§§ 870-886) to support this point, nor to take the case out of the principle of Glenney v. Stedwell. The cases in the Superior Court, to which our attention has been called (Matter of Bryan, 3 Abb. New Cases, 289; Patterson v. Sanford, 8 N. Y. Wkly. Dig., 121), are not in point. In the former the attempt was to examine a witness, not a party; in the latter the examination sought was to obtain testimony after issue.

For these reasons the order appealed from must be affirmed, with ten dollars costs and disbursements.

Davis, P. J., concurred.

Present — Davis; P. J., and Barrett, J.

Order affirmed, with ten dollars costs and disbursements.


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    WILLIAM A. COIT, Appellant, v. FREEMAN CAMPBELL, Surviving Partner, etc., and COURTLANDT PALMER, Respondents.

      Sight to. revive action — Code, section 757, as amended, by chapter 542 of 1879 — is only applicable to the case of a sole plaintiff or defendant— Turn far the court is bound, to act thereunder without regard to the laches of the applicant.

    Section 757 of the Code of Civil Procedure, as amended by chapter 542 of 1879, providing that “in case of the death of a sole plaintiff or a sole defendant, if the cause of action survives or continues the court must, upon a motion, allow or compel the action to he continued by or against his representatives or successors in interest,” is only applicable to the case where there is a sole plaintiff or sole defendant.
    The words sole defendant ” cannot be construed as meaning “ all defendants.”

      Quaere, as to how far the court is bound under said section, as so amended, to allow a continuance of the action in all cases, no matter how great the laches of which the applicant has been guilty ?

      Appjeal from an order of the Special Term denying a motion for leave to continue this action against the executors of Court-landt Palmer, deceased.

      .Nathaniel Cothren, for the appellant.

      J. L. Gadwaladev, for the respondents.
   Barrett, J.:

This action was in the nature of a creditor’s bill. The defendant Campbell was the survivor of the judgment debtors.

The defendant Palmer was sought to be charged as a trustee in possession (of certain real estate) for the benefit of the judgment debtors. The suit was commenced as far back as September, 1866. Palmer’s answer was served in December of that year, and the case was noticed for trial and placed upon the calendar. Since then nothing has been done. Campbell died on the 10th day of May, 1874; Palmer on the fifth of June in the same year. The first step taken by the plaintiff was in January, 1879, when he moved to continue against the surviving executors of Palmer and the surviving administrator of Campbell. This motion was heard by Mr. Justice DoNOI-iue on the 1st of March, 1879, and denied, for the reason that the laches, both before and after Palmer’s death, was entirely unexplained. Leave to renew was granted upon such explanation being made. The renewal took place in September, 1879, before Mr. Justice Westbrook, and the motion was again denied, for the reason that even upon the additional affidavits the laches was still unexcused. The present, appeal is from the latter order.

If the last motion be treated strictly as a renewal it was properly deified, for the reason assigned by Mr. Justice Westbrook, namely: That sufficient grounds were not shown why steps had not been taken in the cause prior to the death of Courtlandt Palmer, and why no motion had been made since his death.

. We have gone through the deposition and affidavits, and are quite satisfied that there was gross and unexcusod laches, both before and after Mr. Palmer’s death.

It is urged, however, that this should be treated not as a renewal, but as an original motion. The plaintiff’s contention is based upon the change in the law which took place intermediate the first and second hearing. In. March, when Mr. Justice DoNoi-iue denied the original motion, section 757 of the New Code read as follows :

“In case of the death of a sole plaintiff or defendant, if the cause of action survives or continues, the court must, upon a supplemental summons and complaint, or, in its discretion, upon a motion, if made within one year after the decedent’s death in a proper case’ allow'or compel the action to be continued by or against his representative or successor in interest.”

The argument upon this is that as the plaintiff exhibited no supplemental complaint the denial of the motion followed, for the reason that it ivas not made within the year. This view of the matter we take to be sound.

Now, before the second motion was made the section was amended so as to read as follows :

“In case of the death of a sole’plaintiff, or a sole defendant, if the cause of action survives or continues, the court must, upon a motion, allow or compel the action to be continued by or against his representative or successor in interest.”

Here it will be observed everything about a,supplemental complaint, or limit "as to time, or discretion has been stricken out. We again agree with the plaintiff that this goes to the remedy merely, and that he may take advantage of the amendment.

The difficulty, however, is the entire inapplicability of the section. Palmer ivas not a sole defendant. There were in fact two. Palmer died first, leaving Campbell in. It is impossible to construe the section as the plaintiff would have us. We cannot say that a sole defendant means all the defendants without doing violence to plain language. There was no such difficulty under the Old Code, ‘which reads, “in case of the death of a party” (§ 121). We must assume that the change from the expression “a party” to “a sole plaintiff or defendant” was made advisedly.

The plaintiff is in error in supposing that he is without remedy. He is only without the remedy by motion. Legislation is not required to enable him to file a supplemental complaint in the nature of a bill of revivor. We do not mean to intimate, however, that he is likely, upon the present facts, to attain any great success in such a proceeding.

As to whether, in the case of’ a sole plaintiff or defendant, the court is bound, no matter how great the laches, to allow a continuance we need not now determine ; but we may say that just and well settled rules are not to be lightly disturbed, certainly not unless the legislation is plain and unmistakable. When the question necessarily arises it will have to be determined whether the intention was to sweep away all. such wholesome rules as were laid down, for instance in Beach v. Reynolds (53 N. Y., 1), or whether the compulsory expression is not really limited to the phrase “ upon a motion,” thus leaving the equity rules but compelling the court to apply them at all times upon motion, without driving the party to a supplemental complaint.

It is to be hoped, however, before the exigency arises this point may be rendered entirely clear by fresh legislation. The order of the Special Term was right and should be affirmed, with ten dollars costs and disbursements.

Davis, P. J., and Brady, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


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    ASCHER HECHT, Respondent, v. SILVAIN LEVY, Appellant.

      A-irest for fraud in contracting a debt — the facts establishing the fraud must be alleged in the complaint— Code of Civil Procedure, §§ 549, 550, 557 and 558, as amended by chap. 542 of 1879.
    Tinder sections 549, 550, 557 and 558 of the Code of Civil Procedure, as amended by chapter 542 of 1879., in order to subject a defendant in an action upon contract, express or implied, to arrest for fraud in contracting' or incurring the liability sought to be enforced, the facts showing such fraud on his part must be alleged in the complaint.
    The validity of an order of arrest is to be determined by the law existing at the ■ time of the arrest of the defendant thereunder, and not by that existing at the time the order was issued.

      Appeal from an order of the Special Term denying a motion to vacate an order of arrest, wbicli motion was founded upon tbe papers o*n which the order was granted.
    The defendant in this action was arrested on the 20th day of September, 1879, pursuant to an order of arrest granted by lion. Chaiiles DoNOHue, on September 19, 1877. The order accompanying the summons and complaint was, in September, 1877, delivered to the sheriff of the city and county of New York, for service. The defendant could not be found, having absented himself from this State, and the order of arrest was not executed until his return to this State, some time in September, 1879.
    The order of arrest was founded upon the plaintiff's affidavit, the complaint being in assumpsit for goods sold.

      Melville II. Begenshurger, for the appellant.

      Morris Goodhart, for the respondent.
   Barrett, J. :

The amendments of 1879 of sections 549, 550, 557 and 558 of the New Code were undoubtedly in view of the decision in the Bowery National Bank v. Duryee (74 N. Y., 491). It is now quite clear, under these amendments, that where the defendant has been guilty of fraud in contracting or incurring a liability, it must be so alleged in the complaint, and if not so alleged, the order of arrest must be vacated. These amendments were in full force when the action was commenced and the plaintiff should have been governed thereby. It is true that he obtained his order of arrest long before the passage of the amendments, but the defendant’s rights cannot be affected by that incident. Those rights depend upon the legal status when the hand of the law was laid upon him.

Further, the affidavit is entirely defective. The demand is a stale one, accounted for, it is true, by the absence of the defendant. The goods were sold as far back as 1869, and the plaintiff says he then “ learned” of the falsity of the representations. His informant’s name is not given, nor any reason why an affidavit was not procured. The statement that the defendant was insolvent, and knew himself to be insolvent, would have been well enough in a complaint. It is an averment of fact, unsupported by evidence, and in the present connection has reference plainly to what the plaintiff had “ learned.”

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion to vacate granted, with ten dollars costs.

Davis, 'P. J., and Beady, J., concurred.

Order reversed, with ten dollars costs and disbursements; motion granted, with ten dollars costs.