text:
    Agnes Jones, Appellant and Respondent, v. John Jones, Respondent and Appellant.

      Divorce —the lam of England does not apply in New York — « decree of separation can be revoked only by the court —the court’s consideration of a question not before the court.

    The ecclesiastical law of England relative to divorce was never adopted in the State of New York, and the statutes of that State relating to the subject are original regulations.
    The only method by which a judgment for a separation forever, or for a limited period, can be revoked, is that prescribed by section 1767 of the Code of Civil Procedure, and it can only he done by the court.
    The fact that after a decree of separation was granted the parties lived together as husband and wife does not operate to revoke the decree.
    Where the question of collecting unpaid alimony is not before the court it has no power to make any order affecting the rights of the parties in that respect.
    Appeal by the defendant, John Jones, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of August, 1895, as directs him to continue paying alimony from August 1, 1895, under a decree of separation entered in this action on the 6th day of June, 1890, and from each and every ])art of said order, except in so far as it denies the motion of the plaintiff to punish the defendant for contempt of court in having failed to pay alimony under the said decree from the date of the entry thereof to the time of the making of the motion to punish tlie defendant for contempt.
    Also, an appeal by the plaintiff, Agnes Jones, from so much of said order as prohibits said plaintiff from taking any proceedings against said defendant as for contempt of court to collect or secure the payment of the back alimony granted to the plaintiff under said decree.

      Albert Day, for the plaintiff.

      Ralph II. Raphael, for the defendant.
   Parker, J.:

Both parties appeal from the order under review, which is the •outcome of a motion on the part of the plaintiff to punish the defendant for contempt of court in refusing to pay alimony awarded by a judgment adjudging that tlie plaintiff and defendant be separated from bed and board forever.

The judgment was granted and entered in this county on the 6th day of June, 1890, and the defendant never made any payment thereunder to the plaintiff. From the affidavits submitted on the motion it appeared that the plaintiff, shortly after its entry, went to the defendant’s home in New Jersey and lived there for a considerable length of time. The defendant claims that his wife freely returned to him and asked to be taken back, while she asserts that she was induced to go to his home in New Jersey by a letter received from the defendant, in which he asked her to call and receive payment of the alimony due to her under the decree. That upon her calling, he kneeled down and begged her tó return to him. After a time, it seems, they found themselves unable to get on together, and the husband then instituted proceedings in New Jersey for a separation, which resulted in the dismissal of his petition. The learned judge at Special Term was of the opinion that, inasmuch as the husband had actually provided for his wife and children during some considerable portion of the time, and was compelled to pay to her costs and alimony in- the proceeding instituted. by him in the courts of New Jersey, considered in connection with the fact that he is a man without means, ought to be accepted by the court as a sufficient reason for refusing to punish him for contempt, because of his failure to pay, in addition, the sum awarded by the decree.

Our examination of the affidavits induces us to approve of the manner in which the Special Term exercised its discretion. The defendant, however, insisted that the legal effect of the return of the plaintiff to the defendant’s home, followed as it was by their living together for quite a period of time, was to annul the decree of separation, and hence plaintiff’s motion should be denied on the ground that there was no decree in existence upon which to base the motion. The court held the decree to be still in force, and that plaintiff should be paid alimony after August 1, 1895, in accordance with its provisions. From so much of the order as recognizes the judgment of sejaaration to be in full force and effect, the defendant appeals. The question presented by such appeal, therefore, is whether the fact that the parties lived together as husband and wife after tbe entry of the decree operated to revoke it % Section 1767 of the Code of Civil Procedure provides that: “Upon the joint application of the parties, accompanied with satisfactory evidence of their reconciliation, a judgment for a separation forever, or for a limited period, rendered as prescribed in this article, may be revoked at any time, by the court which rendered it, subject to such regulations and restrictions as the court thinks fit to impose.” This provision was taken from the Revised Statutes and was first enacted in 1828 (2 R. S. p. 147, § 56). Prior to that time there was no statute in this State on that subject.

The defendant’s contention is, that the ecclesiastical law of England, so far as it related to the subject of divorce, became a part of its. common law, and, therefore, was, by the Constitution of 1777, made a part of the law of this State, subject, nevertheless, to such alterations as the Legislature should make. Hence, at the time of the enactment of the statute to which we have referred, it was the law of this State that subsequent cohabitation and reconciliation avoided and rendered of no effect a decree of separation, as the statute in terms was not exclusive. His further contention is that the remedy provided by the statute,was cumulative with the one already existing at common law.

This general question came before Chancellor Sandford in 1825 in the case of Burtis v. Burtis (Hopk. Ch. 557), which was an action to annul a marriage contract on the ground of the impotency of the husband, which was not at that time authorized by the statutes of the State. The plaintiff’s contention was, as is the defendant’s here, that such was the law of England, and that it had become part of the law of this State.

The learned chancellor reached the conclusion that the law of England concerning divorce was never adopted in this State; that our statutes concerning divorce are original regulations which do not adopt or introduce the ecclesiastical law of England. In the course of his argument he asserted that from the time when New York became a province of England down to the time of its becoming a State, there were but four divorces, and these were granted by Governor Lovelace, one in 1670 and the other three in 1672; that the colony never had a court possessing jurisdiction of matrimonial causes, or power to grant divorces, and that its Legislature never enacted a statute denning the causes of divorce or authorizing divorce, and reasoning. from these and other facts considered he reached the conclusion that the law of England concerning divorce and matrimonial causes was never adopted in fact or in practice and never became the law of the colony. As the Constitution of 1777 provided that such parts of the common law of England and of the statute law of England and Great Britain and of the acts of the Legislature of the colony of New York as together did form the law of the said colony * * * shall be and'continue the law of this State, subject to such alterations and provisions as the Legislature of this State shall, from time to time, make concerning the same,” his conclusion necessarily followed that the law of England concerning divorce and matrimonial actions does not form a part of the law of this State.

This case, so far as we have been able to ascertain, has never been criticised by the courts, and it was followed in Campbell v. Crampton (18 Blatchf. C. C. 150, 160).

In .Barrere v. Barrere (4 Johns. Ch. 187) Chancellor Kent, in an action for a separation, carefully considered for what period and upon what terms and conditions a separation should be decreed.

The necessity for its consideration was predicated upon the provisions of the statute which authorized the chancellor to decree a separation forever, or for a limited time,” or to make such other decree ” as the case may require. And the importance of a right disposition of it, not only from the standpoint of the parties directly involved, but also from that of the public, which is always treated as a third party in matrimonial actions, was carefully considered as aids to that wisest possible conclusion at which he aimed. He referred to the practice in such cases in England, France and Holland, making special note of the fact that while the decree of divorce a mensa et thoro in England is said to be either for a time or without limitation of time, yet, by the form of the decree the separation is only until a reconciliation. He followed the discussion of the authorities upon the practice in such cases in the several countries to which we have referred, with the following observations : “ Hy inference from this review is that, by the canon law of England, and of the nations on the continent, where the canon law prevails, a time for reconciliation is left open to the parties upon these qualified divorces from bed and board, and the indulgence is founded in sound policy and dictated by benevolence. The question then arises, whether the decree ought not to pursue the formula given in Oughton (Oughton’s Ordum Judicorum, tit. 215, § 4), and declare a separation until the parties shall be reconciled to each other; I assume that I have competent power to make such a decree under the statute, for the statute authorizes the Chancellor to decree a separation forever,’ or ‘ for a limited time,’ or to make ‘ such other decree ’ as the case may require. But such a general decree seems to be of too loose a.texture and to be destitute of the requisite sanction. It separates the parties until they are reconciled, and leaves that event open to dispute. * * * I prefer that the sentence shall be binding and effectual, until the parties shall have applied to the court, and received upon just grounds a judicial recognition of the certainty and sincerity of their reconciliation.” He directed that the decree to be entered should provide “That the plaintiff and defendant be separated from bed and board forever, provided, however, that the parties may at any time hereafter, by their joint and mutually free and voluntary act, apply to the court for leave to be discharged from this decretal order.” This decree which the learned chancellor made as a just exercise of the power conferred upon him by the statute, seems to have so favorably impressed the Legislature that nine years thereafter they incorporated the practice adopted by him into a statute, and it has continued to be the law of this State ever since.

We think that costs should not have been allowed to the plaintiff, nor should the concluding paragraph of the order have been inserted, which reads as follows : And without prejudice to proceedings to collect or secure the back alimony, by proceeding other than with the contempt proceeding.” That question was not before the court, and it was powerless, therefore, to make any order affecting the rights of the parties in that respect.

The order should be accordingly modified, and as so modified affirmed, without costs.

YaN BeuNt, P. J., concurred.

Order modified as directed in opinion and as modified affirmed, without costs.


source: Caselaw Access Project

author: Parxer, J.:

license: Public Domain

text:
    James Bradley, as Administrator, etc., of James Bradley, Jr., Deceased, Respondent, v. Second Avenue Railroad Company, Appellant.

      Negligence —a, driver suddenly applying the brake to a ca/r — a passenger riding, unnecessarily upon a front platform is guilty of contributory negligence.

    Upon the trial of an action brought to recover damages resulting from the death of the plaintiffs intestate, caused by the alleged negligence of the defendant, a street railway corporation, it appeared that the deceased, although there was ample room for him inside the car, went upon the front platform in the night, during a snow storm and when the tracks were slippery, and remained there of his own volition until a sudden jerk of the car caused him to fall off.
    The only evidence in support of the plaintiffs contention, that the accident was caused by the negligence of the cardriver in improperly applying the brake, was contained in the testimony of a witness to the effect that, at a point near where the accident occurred, the car gave a jerk, as if the driver of the car had put the brake on and then let the brake out, and that the car gave a good jerk, and that after that he saw the deceased going over the dashboard. He further described the jerk by saying that it was just as if there was a rock or something on the car track.
    Upon appeal from a judgment in favor of the plaintiff,

      Held, that the evidence was not sufficient to justify the jury in finding that the driver was guilty of negligence in applying the brake so suddenly as to cause the fall of the deceased ;
    That, as the deceased, without any necessity for so doing, left an absolutely safe place in the car to go to a more hazardous one upon the front platform, upon a dark and stormy night, when the tracks were slippery and sudden stoppages of the car were likely to occur, he was not shown to have been free from contributory negligence.
    Appeal by the defendant, the Second Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of June, 1895, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on, the 11th day of June, 1895, denying the defendant’s motion for a new trial made upon the minutes.

      Payson Merrill, for the appellant.

      Sumner P. Stiles and Frcmcis L. Wellman, for the respondent.
   Parxer, J.:

On the evening of January 28, 1895, plaintiffs intestate boarded one of defendant’s cars on Second avenne near Twenty-seventh street.

Although there was ample room for him on the inside of the car, he went out upon the front platform, and there remained standing until the car reached Sixty-third street, when he fell off, was run over, and received such injuries that he died about a week later. The theory of the plaintiff upon the trial was that the defendant was guilty of negligence causing the injury, in that the driver, without necessity for it, so suddenly applied the brake as to cause the car to give a violent jerk, which had the effect of hurling plaintiff’s intestate over the dashboard. The only evidence in support of this position was given by the witness Carroll, who testified that he was riding in the car, and that just about Sixty-third street this here driver, it was just as if he put the brake on and then he let the brake ■ out, and the car gave a good jerk; what I would call a good one anyhow; and after that I seen this man going over the dashboard j I seen him myself.”

While the witness says he saw the intestate going over the dashboard, he does not testify that he saw the driver apply the brake, but asserts instead that the jerk which he experienced seemed to him as if the driver had put the brake on and then let it off. Again he describes the jerk in the following language: “ It was just as if there was a rock or something on the car track, or anything like that.” We do not think this evidence was sufficient to authorize the jury to find that the defendant’s servant was guilty of negligence in applying the brake so suddenly and sharply as to cause plaintiff’s intestate to be hurled from his position on the platform. We are also of the opinion that the plaintiff failed to sustain the burden resting upon him of proving that plaintiff’s intestate was free from contributory negligence within the judnciple established by the following cases: Clark v. Eighth Ave. R. R. Co. (36 N. Y. 135); Hayes v. Forty-second St., etc., R. R. Co. (97 id. 259) : Connolly v. Knickerbocker Ice Co. (114 id. 108); Coleman v. Second Ave. R. R. Co. (Id. 612); Cassidy v. Atlantic Ave. R. R. Co. (9 Misc. Rep. 275).

This is not a case where plaintiff’s intestate, by reason of the crowding of the car, was obliged to go upon the front plátform. On the contrary, it conclusively appears that there was plenty of room on the inside of the ear. No one was standing up in the car, and ie could have had a seat had he chosen to take one.

Instead, he passed out upon the front platform, a place obviously more dangerous at any time than the inside of the car, but especially so on this occasion, in view of the slippery condition of the tracks, the storm and the darkness, which made it probable that sudden stoppages of the car would occur. It was a cold night, the thermometer being only twenty degrees above zero; the tracks were icy •and slippery, and it was snowing steadily during all of the time that he was upon the car.

To the situation we have described, the language of the court in Coleman v. Second Avenue R. R. Co. (supra) applies: The seats in railway cars are provided for the passengers to occupy. If, without reasonable cause, they leave the car or place themselves on the outside of it when in motion, they assume the hazards of so doing.”

But in that case the plaintiff offered as an excuse that the seat which he occupied became so crowded as to render it uncomfortable for him to remain in it, and so he stepped down upon the step, which ran lengthwise of the car, for the purpose of going forward to take another seat, and while doing so was injured, and it was held that from his evidence the conclusion was permitted that lie had reasonable cause for leaving his seat to obtain another. And, continued the court, “it is upon that assumption that he may be relieved from the charge of contributory negligence.” If in this case the car had been crowded so that it became necessary for plaintiff’s intestate to go upon the platform, that fact might have presented an excuse which would have made it a question for the jury whether he was free from contributory negligence. But the facts show no excuse whatever. He left an absolutely safe place to go into one more hazardous at all times, but especially so on the occasion in question. And it was necessary for plaintiff to prove something more than this act of carelessness in order to authorize a jury to find that the plaintiff had sustained the burden resting upon him of showing that his intestate was free from contributory negligence.

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

VaN Bettett, P. J., and Follett, J., concurred.

•Judgment reversed, new trial ordered, with costs to appellant to abide event.


author: PARKER, J.:

text:
    Percival R. Irving and Others, Respondents, v. Walter Irving, Appellant.

      Compulsory reference — when a cause of action, not referable on its face, may be referred because of an issue raised by the answer.

    Although the cause of action alleged in a complaint appears upon its face to he non-referable, yet, if the defense interposed to it shows that the trial of the issue thus presented will necessarily involve a long account, a compulsory reference may be ordered.
    Upon the trial of an action brought upon a promissory note by the payees against the maker, the answer, in its first defense, alleged that the note was without consideration, and then denied that any sum was due and owing from the defendant.
    The second defense, which alleged neither a counterclaim nor a set-off, set forth, upon the question of consideration, certain stock transactions between the parties, out of which, as it is alleged, a false account against the defendant was created, for which he was induced to give the note in suit.

      Meld, that although the cause of action alleged in the complaint appeared on its face to be non-referable, yet as upon the trial of the action the plaintiffs (since the answer denied that the note was given for value) would be compelled to give proof in regard to the stock transactions which were the consideration of the note, and as this would necessarily involve the examination of a long account, a compulsory reference of the action was justified.
    Appeal by the defendant, Walter Irving, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of June, 1895, directing a reference of the action.

      »'Edward Mitchell., for the ajipellant.

      Benjamin W. Cw'dozo, for the respondents.
   PARKER, J.:

This action, is on a promissory note of which the plaintiffs are the payees, and the defendant the maker. The complaint, in addition to setting np a copy of the note, alleges that the note was made and delivered for value, and that the amount thereof is due from the defendant.

The answer contains several separate defenses, the first of which reads : This defendant denies that the promissory note mentioned in the second paragraph of the said complaint was made for value. He alleges that it was without any consideration.” And this is followed with a denial that any sum is due and owing from the defendant.”

The second defense is of new matter, but does not allege a counterclaim or set-off. It contains a narrative statement of the facts showing certain stock transactions of the parties, out of which was created a false account against the defendant, for which he was induced to give the note in suit. In addition to giving a statement of all the circumstances under which the note was made, it renewed the allegations in the first defense, that the note was without any legal or valuable consideration, and that the defendant is not justly indebted to the plaintiffs in any sum whatever.

Undoubtedly the appellant is right in his contention that the answer gainsaid the plaintiffs’ cause of action. Although the defendant does not deny the making of the note, he does not thereby admit the plaintiffs’ cause of action, for he specifically denies the allegation in the complaint that it was made for value, and alleges that it was wholly without consideration.

And the plaintiffs have not a cause of action if such be the fact. The appellant, starting with the proposition to which we have given assent, insists that Steck v. Colorado Fuel & Iron Company (142 N. Y. 236) requires a reversal of the order. In that case the cause of action stated in the complaint was not referable without consent, and it was put in issue by the answer, which also set up a counterclaim consisting of a long account, and it was held that the order of reference granted on motion of plaintiff, against the objection of defendant, was error.

This case is quite different. The long account which persuaded the learned judge at Special Term to grant the order of reference will be involved in tlie issue as to whether the note was given without consideration. But it was said in Steele’s case, that when the cause of action alleged in the complaint is not referable, and the same is put in issue, the action cannot be made referable by any thing which the defendant may set up in his answer. The language employed by the court was broad enough, it will be seen, to fully sustain the appellant’s contention.

But in Steak? s case, as well as in the several cases cited by the court, the counterclaim was a distinct and independent cause of action, and the fact that it involved a long account did not make it an element in the proof of the plaintiff’s cause of action.

The question sharply presented to the court, was, whether the fact that the trial of the counterclaim might involve an examination of a long account would justify a compulsory reference of the issues, where the plaintiff’s cause of action was controverted and non-referable ? Necessarily, therefore, the question involved in this case was not brought to the attention of the court, and the language employed by it was not chosen with reference to this situation.

The ground of the decision was, that as the Constitution declared that trial by jury should remain inviolate forever, in every instance where it had theretofore existed, and as at the date of the adoption of the Constitution, the law of pleading would not permit an assertion of a counterclaim, unless the defendant should admit the truth of the plaintiff’s allegations, it followed under the practice theretofore in vogue, that there could not have been a counterclaim when plaintiff’s cause of action was gainsaid; hence, the necessity for the examination of an account, in connection with a counterclaim, could not support a compulsory reference of the issues, unless plaintiff’s cause of action was admitted, or was itself referable in its nature.

And as such was the law at the time of the adoption of the Constitution in 1717, it follows that in such cases its guaranty of trial by jury requires that the words “ on either side ” in the section of the Code referring to compulsory references (§ 1013), be construed with this implied limitation. But in reaching such conclusion the courts have from time to time used more comprehensive language than was required to assert that a cause cannot be compulsorily referred when a non-referable cause of action is put in issue, by an answer, which, at the same time sets up a counterclaim involving a long account, and have said that plaintiff’s right to a jury trial in such cases “ cannot be taken away or destroyed by anything which the defendant may set up in his answer.” (Steck v. C. F. & I. Co., 142 N. Y. 251.)

The courts have not said, nor have they intended to be understood as saying, that the answer could not be looked at in any case for the purpose of determining whether the action be referable.

Of necessity it must be examined for that purpose. The cause of action set up in a complaint may, upon its face, involve a long account, but it is not referable unless the items of the account are put in issue.

And this can only be determined by an examination of the answer. So, we apprehend, if the cause of action set up in a complaint appears on its face to be non-referable, yet if the defense interposed to such cause of action shows that the trial of that isssue will necessarily involve a long account, a compulsory reference may be ordered.

It is true that under these pleadings all the plaintiffs will be required to do upon the trial will be to produce the note and compute the interest, in order to establish a prima faeie case. But that fact in no wise tends to prove that a long account is not involved.

It relates to the order of proof solely. Upon the plaintiffs rest the burden of proving a valuable consideration.

The production of the note, by the presumption of the law, accomplishes that result in the first instance, yet, when the defendant has offered evidence in rebuttal of this presumption, the burden rests upon the plaintiffs of sustaining, by further proof, the allegation of value. And when the tribunal which is to pass upon the evidence approaches its consideration, it does so with the rule of law in mind and controlling its action, that the burden of establishing the consideration rested upon the plaintiff throughout the trial, and that from all the evidence it must appear that lie has met that burden in order to entitle him to recover. (Farmers’ Loan & Trust Co. v. Siefke, 144 N. Y. 354-359.)

The issues presented by these pleadings must be tried, in order that the plaintiffs may sustain tlie cause of action alleged in their complaint. It appears that while the action is not brought upon an account, the trial of such issues will necessarily directly involve the examination of a long account. And, that being so, we think the cause is referable.

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

VaN BkuNT, P. J., and O’ÜRiEN, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    Edith Mason Faxon, Respondent, v. John Mason, Appellant; John Oscar Ball, Respondent.

      Assignment for tliebmefit of creditors — successful action to set it aside — the assignor cannot attach an order affecting only the receiver — who may object to counsel fees of assignee — assignor to be heard. '
    In an action brought to set aside a general assignment for the benefit of creditors-made by the defendant, the assignor, to which action the assignee was also a party, the plaintiff succeeded, and the court after judgment made an order directing a receiver, appointed in the matcer, to make certain payments; the order also contained a provision that in case the receiver failed to make any of the payments after personal demand a warrant of commitment should issue pursuant to section 2268 of the Code of Civil Procedure.

      Held, that the assignor was not affected by this provision of the order, and could not attack it although the receiver might have done so.

      Senible, that where the plaintiff, in an action to set aside an assignment as fraudulent and void as against creditors, has been successful the assignee is not entitled to be allowed disbursements incurred by him for counsel fees after the action was brought to set aside the assignment, if the plaintiff objects, but the assignor, whose acts have been adjudged fraudulent, cannot prevent his innocent assignee from recouping such payments incurred by him in good faith and in the performance of his duty under the assignment.
    The assignor is, however, entitled to have all of the estate assigned used to reduce the plaintiff’s judgment, and is, therefore, entitled to be heard upon the question of the amount paid by the assignee for counsel fees, and to insist that it shall be reasonable and shall rest upon proper proof of the value of the services rendered.
    Appeal by the defendant, John Mason, from an order of the Supreme Court, made at the New York Special Term on the 24th day of June, 1895, and entered in the office of the clerk of the county of New York directing the receiver in this action to make certain payments therein specified.

      Franklin Bien, for the appellant.

      Howcord A. Ta/ylor, for plaintiff, respondent.

      Henry A. Forster, for respondent Ball.
   PARKER, J.:

The appellant Mason made a general assignment for the benefit of his creditors to the defendant Ball June 21, 1892.

Subsequently this action was brought to set aside the assignment on the ground that it was fraudulent and void as against creditors, and it resulted in a judgment in favor of the plaintiff, by whiclx judgment a receiver was appointed, to whom the assignee Ball was directed to pay over the moneys in his hands, amounting to $26,234.35.

Thereafter such judgment was affirmed by the General Term of this court, and later the plaintiff moved the court that the receiver’ pay over to her the moneys in his hands. The motion resulted in an order that the receiver retain his commissions and disbursements, which were fixed at the sum of $1,348.81; that he pay to the assignee or his attorneys the sum of $3,000 ; and that he pay over the balance, amounting to $22,239.46, to the plaintiff.

From that order the defendant Mason, who was the assignor in the assignment which was set aside by the judgment, alone appeals. He objects to so much of the order as provides “ That in case any of the payments be not made as herein directed after personal demand, a warrant of commitment issue, pursuant to section 2268 of the Code of Civil Procedure.” We cannot see that he is in a-position to attack this provision of .the order, for he is not affected by it in any way. The receiver, against whom this part of the-order was directed, would, undoubtedly, have had the right to call it in question, and to have insisted that, before the court could make any adjudication whatever in the matter of contempt, a demand should be made upon him to pay over the money directed by the order of the court to be paid. But the receiver does not appeal, and, as none of the other parties are aggrieved, they have no standing to call it in question.

The appellant’s next objection is that, the assignment having been set aside, the assignee was not entitled to the disbursements incurred for counsel fees made by him after the action was brought to set aside the general assignment, and, therefore, that part of the order directing the payment of $3,000 to the assignee or his attorneys was error.

This position the plaintiff could, perhaps, have successfully taken, in view of the authorities which hold that a successful creditor, in an action to set aside an assignment on the ground of fraud, obtains a lien on the whole fund in the assignee’s hands, which is superior to the assignee’s claim for compensation. (Dorney v. Thacher, 76 Hun, 361; Dexter v. Adler, Id. 439; Mayer v. Hazard, 49 id. 222.)

But the plaintiff, instead of making objection, consented to it, and the question which the appellant presents, therefore, is whether the fraudulent assignor can effectually insist that his innocent assignee shall be deprived of disbursements incurred, in good faith, in the performance of his duty under the assignment.

This question must be answered in the negative, for while the assignment may be fraudulent and void as against creditors, it is good as against the assignor, and the good-faith assignee, who accepts and undertakes the execution of the trust created by the assignment, is entitled to protection as against the assignor.

"Whether there was sufficient evidence before the court to justify that portion of the order which fixed the amount of his disbursements at $3,000 constitutes the remaining question.

The position of the respondent Ball that, because the plaintiff would have been entitled to receive under her judgment such portion of the amount as should not have been awarded to the assignee, therefore, her consent deprived the assignor, Mason, of any standing to make objection, is not well taken.

Mason was entitled to have every dollar used in reduction of the plaintiff’s judgment which was properly applicable thereto, to the end that his liability thereon should be, to such extent, reduced.

His claim of right to resist an improper allowance to the assignee for disbursements is, therefore, well grounded. As a basis for an adjudication by the court upon the question of disbursements, there was presented the affidavit of the assignee, Ball, giving a detailed account of tlie progress of the litigation to which he was a party, together with the affidavit of one of his attorneys, reciting the character and extent of the work performed by them as counsel to the assignee, the value of their services, and the amount which they had received from the assignee on account.

The assignor, Mason, appeared by his attorney, who also filed an affidavit made by himself, but he did not therein question the value of the services of the counsel for the assignee.

Nor does it appear from this record that any evidence whatever was offered by Mason or his attorney challenging the affidavit of Ball’s counsel as to value. In view, therefore, of the evidence before the court on the motion touching the subject of compensation of counsel, it was fully justified in fixing the amount at $3,000.

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

Yak Brunt, P. J., and O’BkieN, L, concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Parker, J.:

text:
    United States Cordage Company, Respondent, v. William Wall’s Son’s Rope Company, Frank T. Wall, Edwin R. Brinkerhoff and William F. Wall, Appellants.
    Contract— a covenant not to engage in the same business, valid.

    A covenant not to engage in the same business,' made by a vendor in connection ■with a sale oí his business and its good will, is valid and eniorcible.
    In an action brought to restrain the defendants from using or displaying the names of “William Wall’s Sons,” or “ William Wall’s Sons Rope Company,” it appeared that before July 15, 1887, William Wall’s Sons had established a reputation as manufacturers of cordage, and that about that day with three other similar firms it established the National Cordage Company, to which company the firms leased their plants, and arranged to take back sub-leases thereof, and in consideration of so doing, caused the whole capital stock of the cordage company to be issued to themselves; of this company Frank T. Wall, the active partner of William Wall’s Sons, became a director and vice-president.
    In August, 1890, a plan was devised to issue a large amount of preferred stock, and to divide a still larger amount of common stock among the owners, based upon the alleged necessity of purchasing the fees of the leased property, and of procuring assignments from the several owners of the good will of their business, and also covenants not to engage in the cordage business except for the National Cordage Company; and, in accordance with this scheme, the directors appointed a committee on August 25, 1890, of which Frank T. Wall was a member, and which made a report in favor of the project, which was duly adopted, and the design was carried out, William Wall’s Sons being paid a large sum in cash and preferred stock, while the common stock was turned over to the stockholders.
    It also appeared that on August 21, 1890, Frank T. Wall, on behalf of his firm, had executed an agreement which recited that William Wall’s Sons were about to convey to the National Cordage Company their mill property, etc., “ together with the good will of the said business of said parties of the first part, and the exclusive right of the use of their name therein, and the exclusive right to all of their trade marks and labels as heretofore owned by them, for use or, in fact, used in connection with said business; ” but that no formal transfer was in fact executed by William Wall’s Sons in accordance with the resolution or the agreement although they accepted the consideration. This agreement further provided that “the said William Wall’s Sons would not engage in the manufacture or sale of cordage within the limits of the United States except as an employee of the National Cordage Company.”
    It further appeared that in May, 1893, the National Cordage Company passed into the hands of receivers, who obtained from the firm of William Wall’s Sons a deed of the real estate on which their mill was situated; that there was a reorganization, resulting in a new corporation called the United States Cordage Company, to which was transferred all the property and property rights of the National Cordage Company, including the good will of the business of William Wall’s Sons, and the right to use the firm name.
    Frank T. Wall and certain others subsequently undertook to use the name of William Wall’s Sons, organized a corporation known as William Wall’s Sons Hope Company, opened an office in New York city and sent out circulars to their old customers soliciting business.

      Held, that under the agreement of August 21, 1890, Frank T. Wall had bound himself not to engage in the manufacture or sale of cordage within the limits of the United States except as an employee of the National Cordage Company; that such a covenant was valid and enforcible and entitled the United States Cordage Company to an injunction;
    That, independently of this agreement, the other proceedings by resolution of the board of directors, resulting in the purchase of the fees and good will and the procuring of covenants upon the part of the former part owners of cordage works not to engage in that business, the participation of Frank T. Wall in those matters, and the acceptance by his firm of the consideration offered and paid, imposed an obligation upon him and his partners not to engage in the cordage business except for the National Cordage Company.
    It appeared that two of the persons enjoined were only nominal partners in the firm of William Wall’s Sons as at present constituted, being merely executors of a deceased partner in the former firm.

      JELeld, that as it did not appeal' that they had derived any benefit from the transaction between the present firm of “William Wall’s Sons and the National Cordage Company, the inj unction should be modified in such a manner as not to apply to them.
    Appeal by tbe defendants, William Wall’s Son’s Rope Company and Frank T. Wall, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of July, 1895, granting an injunction pendente lite.

    Also, an appeal by the defendants, Edwin R. Brinkerhoff and William F. Wall, from so much of said order as enjoins and restrains them from in any manner soliciting business from the customers formerly of William Wall’s Sons.

      Adrian Id. Joline, for the appellants.

      John L. Gadwalader, for the respondent.
   Parker, J.:

The order under review enjoins the defendants, during the pendency of this action, “ from using or displaying the name William Wall’s Sons, either separately or conjunctively with any other words, and from using the name ‘William Wall Son’s Rope Company,’ or either of such names upon any signs, cards, bill heads or letter heads or otherwise, or from in any way holding themselves out as successors to the firm of William Wall’s Sons, and from in any manner solicting business from the customers formerly of William Wall’s Sons.”

In support of the motion for an injunction pendente lite the plaintiff caused it to appear, by its motion papers, that prior to July 15, 1881, William Wall’s Sons had established a reputation as manufacturers of cordage, and on or about that day such firm, with three other firms engaged in the same business, established the National Cordage Company, a New Jersey corporation, with a capital of $1,500,000, and caused leases of their several plants to be made to such company for ninety-nine years, and at the same time arranged to take back sub-leases for thirty-three years each, with two renewals of the several leased plants, and in consideration of these leases caused the entire capital stock to be issued to themselves. After tlie execution of the leases the temporary directors resigned, and representatives of these four concerns became directors, and entered into the management of the joint business as they had before managed their separate businesses in concert, Frank T. Wall, the active partner of William Wall’s Sons, becoming a director and vice-president. In August, 1890, the same individuals continuing in the management, a plan was devised to get out a large amount of preferred stock, and to divide a still larger amount of common stock among themselves.

The foundation for this issue of stock was the alleged necessity of the purchase by the company of the fees of the four properties which had been leased for ninety-nine years, and the procuring of assignments from the several owners of the mills of the good will of the business of the firms and corporations owning them, together with covenants not to engage in the cordage business except for the company. In pursuance of this scheme the directors, on August 25, 1890, appointed a committee, of which Frank T. Wall was a member, “ to make a careful valuation of the assets of the company looking to an increase of the capital stock.” The committee reported that the capital stock should be increased to the extent of $13,500,000, $5,000,000 of the stock to be preferred and $8,500,000 to be common stock. The preferred stock to be offered to the public for sale, the proceeds to be devoted to the acquisition of the fees of the four leased properties, and. the company, as a part consideration for the proceeds of the preferred stock, to receive the assignments from the several owners “ of the good will of their business, their trade marks and also covenants not to manufacture except at the instance and for the benefit of the National Cordage Company.” The common stock to be divided among themselves as stockholders as representing undivided profits. Frank T. Wall, the active member of the firm of William Wall’s Sons, offered the resolutions at the stockholders’ meeting accepting the recommendations of the directors to devote the proceeds of the 50,000 shares of preferred stock to the purchase of the fees, together with an assignment of the good will of the respective businesses, trade marks and labels, with a covenant not to go into business except with the National Cordage Company.

The scheme was subsequently carried out so far as the company was concerned; the preferred stock was offered to the public and subscribed for, and the proceeds devoted in accordance with the recommendations of the directors and the resolutions of acceptance by the stockholders. The price paid to "William Wall’s Sons in cash and preferred stock was $970,579.40. The common stock, amounting to $8,500,000, was turned over to the stockholders. Prior to the passage of the resolutions by the directors and stockholders, to which we have referred, and on August twenty-first, Frank T. Wall, on behalf of his firm, executed an agreement which recited that William Wall’s Sons were about to convey their mill property with the tools, etc., together with the good will of the said business of said parties of the first part, and the exclusive right of the use of their name therein, and the exclusive right tq ail of their trade marks and labels as heretofore owned by them, for use or in fact used in connection with said business.” After the adoption of the resolutions no formal transfer was executed by William Wall’s Sons in accordance with the resolutions or otherwise although the consideration therefor was accepted by them.

In May, 1893, the National Cordage Company passed Into the hands of receivers, who in due course demanded and obtained from the firm of William Wall’s Sons a deed of the real estate on which the mill property was situated. Subsequently there was an organization of a new corporation bearing the name 'of the United States Cordage Company, and to it was transferred all of the property and property rights of the National Cordage Company, including the good will of the business of WilliamWall’s Sons and the right to use the firm name. By this transfer the new corporation succeeded to all the property, property rights and interests of the original corporation, and acquired all of the benefits arising from and growing out of the contracts to which we have referred. Frank T. Wall, William F. Wall and Edwin E. Brinkerlioff, notwithstanding these facts, made preparations to engage in the business of manufacturing and selling cordage, and to facilitate the sale of the goods, undertook to make such use of the name William Wall’s Sons, as would enable them to derive substantial benefit from the good will which had been established in that name. To that end they organized a corporation known as William Wall’s Sons Eope Company, under the laws of the State of New Jersey. At their office on South street a large sign bore the name of William Wall’s Sons, and they made use of other signs to the same effect. Circulars were issued addressed to their old customers inviting custom, in which reference was made to the old firm of William Wall’s Sons and signed William Wall’s Sons Rope Company. From these facts it is apparent that there is no room to question so much of the order as enjoins the defendants during the pendency of this action from using in any manner whatever the name William Wall’s Sons in connection with the manufacture and sale of cordage. The appellant Frank T. Wall, insisting that the only rights secured by the National Cordage Company were under and by virtue of the so-called agreement of August 21, 1890, urges that he is at liberty to engage in the cordage business under his own name, and to solicit custom of any person or persons whomsoever. By that agreement he claims that the good will of William Wall’s Sons was transferred and nothing more, and that in the absence of an express statement to the contrary the vendor of a name and good will of a business may lawfully establish the same business, and invite all the world, including the old customers of the vendor, to come there and purchase of him, provided he does not lead any one to believe that the articles that he offers for sale are manufactured by the vendee, or that he is the successor to the business of the old firm, or that the vendee is not carrying on the business formerly carried on by the old firm. (Marcus Ward & Co. v. Ward, 40 N. Y. St. Repr. 792.)

But since the Diamond Match Company Case (106 N. Y. 473) it has been the law of the State that a covenant not to engage in. business made by a vendor, in connection with a sale of his business and good will, is valid and enforcible.

The agreement of August twenty-first contains a covenant that the parties of the first part shall not directly or indirectly engage in the manufacture or sale of cordage and binding twine within the limits of the United States, except as an employee of the party of the second part, and except upon certain conditions precedent in the agreement specified, which it does not appear the parties have performed or attempted to perform.

And it seems a reasonable construction to place upon that agreement to hold that the covenant included Frank T. Wall, individually, as well as the firm of William Wall’s Sons, of which he was the only active member. But, independently of this agreement, which, as we have said, was executed prior to the recommendations of the board of directors and the stockholders to purchase the fees of the property and the good will, it would seem that the National Cordage Company became the owner of the property and good will of the business of William Wall’s Sons, and they became bound not .to engage in a similar business, except as employees of the company. The recommendation of the directors made pursuant to a report of a committee, of which Frank T. Wall was a member, was that the proceeds of the preferred stock should be devoted to procuring the fees of the properties and obtaining the good will of their business, trade marks and covenants not to engage in business except for the National Cordage Company. This recommendation of the directors was adopted by the stockholders by a resolution offered by Frank T. Wall. This proposition was accepted by the owners of the several properties, and they received therefor the full consideration.

The making of the propositions, their acceptance and the payment of the money, the parties apparently regarded as binding upon them without a formal written agreement, and so it was, if that was their understanding and intention. We discover nothing in the present record to lead us to think that it was not so intended, and that being the case, it would seem that Frank T. Wall bound himself not to engage in the cordage and binding twine business, except as an employee of the National Cordage Company. It was claimed upon the argument that it does not appear from the record that Brinkerhoff and William F. Wall bound themselves not to engage in the cordage business under their own names, nor from soliciting business from customers formerly of William Wall’s Sons.

This position seems to us well founded. The eighth clause of the complaint alleges that, in the year 1888, the iirm of William Wall’s Sons was dissolved by the death of Michael W. Wall, and thereupon a new partnership was formed, consisting of Frank T. Wall and Eliza A. Wall as general partners, William F. Wall and Edwin R. Brinkerhoff as trustees under the last will and testament of Michael W. AVall, as nominal partners. It does not appear that either Brinkerhoff or William F. Wall derived the slightest benefit from the transactions between William Wall’s Sons and the National Cordage Company, or that they had any connection whatever with the business other than as trustees under the will of Michael "W. Wall. That being so, we can discover no ground upon which to base an injunction restraining them from engaging in the business under their own names, or from soliciting business from the customers of the old firm of William Wall’s Sons.

The order should be modified by adding at the end thereof the following: But so much of the order as enjoins the defendants from in any manner soliciting business of customers formerly of William Wall’s Sons,” shall not apply to Edwin R. Brinkerhoff and William E. Wall. As thus modified, the order should be affirmed.

Van Brunt, P. J., and Eollett, J., concurred.

Order modified as directed in opinion and affirmed as modified, without costs.


text:
    Francis Higgins, as Receiver of The North River Bank in the City of New York, Plaintiff, v. Charles C. Worthington, Defendant.

      Dissolution of a corporation — title of the receiver to its assets, when acquired — an offset arising before suit begun is good as against the receiver — allegation of insolvency.

    The title of a receiver, appointed in an action brought by the People to procure the dissolution of a corporation, to the corporate assets relates back to the commencement of the action, and the effect of the judgment of dissolution is to-determine that the corporation was insolvent when the action was begun.
    Where a person is debtor to a banking corporation, and on the day before an action is begun for a dissolution of the corporation, he becomes the assignee for value of certain deposit accounts standing upon the books of the bank, he is entitled to have their amounts set of£ in full against his indebtedness to the bank.
    A statement “that at the time of the commencement of said action (meaning the present action) the said North River Bank was insolvent, having suspended its banking business on or about the 12th day of November, 1890,” is not a statement that the bank was insolvent upon the day named, or that it was insolvent, at any time before the action was commenced.
    Motion by tbe defendant, Charles C. Worthington, for a new trial upon a case containing exceptions, ordered to be heard at the General Term in the first instance, upon the verdict of a jury in. favor of tbe plaintiff, rendered by direction of tbe court after a trial at tbe New York Circuit on tbe 22d day of May, 1895.

      Durnin <& Tates, for tbe plaintiff.

      Paul R. Towne, for tbe defendant.
   PARKER, J.:

November 12, 1890, tbe North River Bank suspended its banking business. Six days later, and on tbe eighteenth day of November, an action was commenced in tbe Supreme Court, by tbe People of the State of New York as plaintiff against tbe North River Bank as defendant, to procure tbe dissolution of such corporation. Such proceedings were thereafter bad as resulted in a judgment of dissolution on tbe 25th day of March, 1891, tbe plaintiff Higgins being appointed permanent receiver.

Subsequently be duly qualified as such and entered upon the discharge of his duties.

The North River Bank, on tbe day it suspended its banking business, held certain notes upon which this defendant was liable as indorser, and be bad a small deposit to his credit in tbe bank, which, concededly, he is entitled to have offset against the claim which the bank has against him on the notes.

On the seventeenth of November, the day preceding the commencement of the action by the Attorney-General for the dissolution of the corporation, he became the assignee, for value, of certain deposit accounts standing on the books of said bank to the credit of the respective owners, amounting to $5,115.26. 'This sum he also claimed the right to have offset in full against his indebtedness to the bank on the notes, and he made demand of the receiver accordingly.

It is conceded that, if the defendant had taken the assignment of the accounts on or subsequent to the date of the commencement of the action, he would not be entitled to the offset, for not only does the title of the receiver to the assets of the corporation relate back to the date of the commencement of the action, but the effect of the judgment of dissolution is to determine that the North River Bank was insolvent when the suit was begun.

In the Matter of Berry (26 Barb. 55) it was held that the effect of the statute authorizing proceedings against insolvent corporations is to take away the franchise of the corporation and its powers of action immediately upon the petition for a receiver being filed, if the prayer of the petition be finally granted. And it would seem that if the bank was insolvent in fact when it closed its doors and suspended payment, after which defendant obtained an assignment of the accounts, they cannot be set off by him against the demand of the bank. (Diven v. Phelps, 34 Barb. 224.)

But it was necessary for the plaintiff to prove that the bank was insolvent at the time of the assignment of the accounts. This was-not accomplished by the judgment of dissolution, for that only related back to the eighteenth of November. ,

The only other evidence in the record bearing upon the question of insolvency is to be found in the third clause of the agreed statement of facts, and it reads as follows: “ That at the time of the commencement of said action the said North River Bank was insolvent, having suspended its banking business on or about the 12th day of November, 1890.” This statement of insolvency, it will be observed, is carefully confined to the date of the commencement of the action, a date subsequent to the assignment of the accounts to the defendant.

We may conjecture that the bank was insolvent on the day that it suspended its banking business, and that the defendant purchased these accounts with knowledge that such was the fact, but we are certainly not at liberty to treat this as a fact in view of the stipulation.

The exceptions should be sustained and a new trial granted, with costs to the defendant to abide the event.

Van Brunt, P. J\, and Follett, J., concurred.

Exceptions sustained, new trial granted, costs to defendant to abide event.


author: Parker, J.: O’Brien, J.:

text:
    Robert M. Curtiss, Respondent, v. John C. Mott, Appellant.

      Beal estate broker — when commissions are earned — misstatement by the owner to the broker as to the rents, defeating the sale.

    A broker who is merely authorized to make a sale of property at a price named, is not entitled to commissions unless he secures a purchaser who is ready and willing to take the property upon the terms fixed by the owner.
    Upon the trial of an action brought by a real estate broker to recover commissions, it appeared that the broker undertook to sell the defendant’s property at a fixed price; that he produced a purchaser who would have bought it on the defendant’s terms, provided the monthly rentals at the time of the proposed sale had been equal to those represented to the purchaser by the broker, whose information in respect thereto was derived from a statement of the defendant that the monthly rentals were §510, whereas at the time when the purchaser was willing to take the property the monthly rentals were only §488, because of which fact the purchaser refused to complete his purchase.

      Held, that the broker was not entitled to commissions.
    O’Brien, J., dissenting.

      Quaere, whether the broker would have a right of action against the owner for his misrepresentations as to 1he amount of the rentals.
    Appeal by the defendant, John C. Mott, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the. county of New York on the 14th day of March, 1895, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order bearing date the Ith day of March, 1895, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

      Lemuel Skidmore, for the appellant.

      George J. Kilgen and John Li. Tresidder, for the respondent.
   Parker, J.:

We do not see how this judgment can stand, although it may well be that in this particular instance it works substantial justice.

The plaintiff as broker undertook to sell the defendant’s property at a fixed price, at a rate of commission agreed upon. Under the authorities of this state it was necessary for him, in order to earn his commissions, to produce a purchaser who should be ready and willing to purchase the property upon the would-be seller’s terms. This he did not do, but instead he brought a man who would have bought it at the seller’s terms provided the monthly rentals at the time had been equal to those represented to him by the broker. Now, if the broker had obtained the information as to the amount of the rentals from any other source than that of the intended vendor, it would not be pretended that he could recover commissions.

But the jury have found, and, therefore, it must be taken to be true, that Mott, in respose to an inquiry of him by the broker, stated the. monthly rentals to have been $510, whereas they were in fact $488. The property had rented at the larger figure, but at the time of the inquiry of the broker, as well as at the time when Mr. Phillips, the prospective purchaser, concluded to take the property at Mr. Mott’s figures if it' was rented at $510 per month, it was in fact renting at $488 per month. In the disposition of the case by the trial court it was assumed that it made no difference whether the representations were mistakenly made and in good faith, or with full knowledge of their untruth, the position taken being that the representations made to the broker about his property formed a part of the seller’s contract with him, and, if any of such representations prove not to be true, and solely by reason thereof the broker fails to bring about a sale upon the terms of the seller, then the broker has performed his part of the contract, and is entitled to commissions as if the sale had actually taken place. Undoubtedly the owner of property wishing to sell could make such an agreement with a broker, in which event he would be bound by it, but it has never been understood, nor has it been held by the courts, so far as we have observed, that a broker who is merely authorized to make a sale of property at a price named is entitled to receive his commissions unless he secures a purchaser who is ready and willing to take the property upon the terms fixed by the owner. The legal effect of the ordinary and usual broker’s contract, such as this one, has been so long settled by the courts, and has become so thoroughly understood by men of business, that the courts should not lightly permit other conditions to be imported into it.

French v. Brush-Swan Electric Light Co. (39 N. Y. St. Repr. 515) supports the position we have taken, that the plaintiff has not performed his contract, and that being so, he is not entitled to recover commissions which can only be based upon its performance.

"Whether in a proper action this plaintiff could recover damages, because ■ of misrepresentations which prevented performance of his contract, we need not consider, as that question is not before us.

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

Van Brunt, P. J., concurred.

O’Brien, J.:

I dissent, flunking the judgment should be affirmed.

Judgment reversed, new trial ordered, costs to appellant to abide event.


author: Van Brunt, P, J. Barrett, J.

text:
    Nathan Fernbacher, Respondent, v. Theodore Roosevelt and Others, Police Commissioners of the City of New York, Appellants.

      Ballot law ■— its object — emblems — how State nominations must be made — right of a local faction to use the parrty emblem — Secretary of State the sole source of information as to State nominations —filing certificate with police commissioners of no effect — order of precedence upon tlie ballot — failure to file an objection to a nomination — the right of a citizen to redress, not affected thereby.

    It is tlie intention of tlie new Ballot Law (Chap. 810 of 1895) to spread before the voter the names of the various persons for whom he is called upon to vote, and he is allowed to vote a straight party ticket or a straight independent ticket or an eclectic ticket, as he sees fit.
    The devices or emblems were resorted to in order to enable the illiterate voter to attain these ends.
    It is the intention of the law that there shall be a single column for a single party and a single device at the head of that column, so that the voter who desires to vote a straight ticket may vote the ticket under that column.
    The certificates of nomination relative to State offices, and the emblem which ia to head the ticket nominated, must be filed with the Secretary of State.
    Where a convention of a party has been regularly called, has made its nominanations and has sent its certificate, containing the device or emblem of the party, to the Secretary of State, that device or emblem controls and must head the nominations of that party for State offices.
    Where there are several factions of a party in one county the State convention decides which faction is regular, and because of such decision as to its regularity tliat one faction becomes entitled to the sole use of the.parly emblem for its local candidates.
    Where an independent party, or a faction, or an individual, claims the right to . be upon the State ticket, it or he must make the nomination in the manner prescribed by the statutes, and file his certificate with the Secretary of State, who> is the sole source of information to the county officers as to the persons who have been put in nomination for State offices.
    Where a local faction files a certificate with the board of police commissioners relative to local nominations, with a notice that it has indorsed certain State nominations, this is not a compliance with the statute, and does not constitute a legal nomination of any person, upon their behalf, for a State office.
    The form of the ballot is to be designated by the Secretary of State, and, as he is to certify the nominations in the order in which he has received them, police commissioners cannot ignore his certificate as to precedence and adopt an order of their own.
    Although no written objection to a certificate of nomination has been filed in the office in which the certificate was filed within three days after the filing of the certificate, as may be done under section 65 of chapter 810 of the Laws of 1895, any citizen may, under the provisions of section 56 of that act, apply to the Supreme Court, or other proper authority, to review the determination and acts of police commissioners in regard to a certificate of nomination which has been filed.
    A citizen is presumably a voter, and as the statute has provided that upon the complaint of any citizen the court shall redress any wrong which may have been committed, whether as against himself or against any one else, the court is bound to entertain a complaint made by him relative to a violation of the Ballot Law.
    Appeal by Tlieodore Roosevelt and others, commissioners of police, constituting the board of police commissioners of the city of New York, from the following order of the Supreme Court, made at the New York Special Term and entered in the office of -the clerk of the county of New York on the 29th day of October, 1895 :
    “It is ordered, That the Board of Police Commissioners of the City of New York be and they are hereby restrained and enjoined from printing the names of the candidates for' State offices to be voted for by the electors of the entire State at the next general election and nominated by the Democratic party at its State convention held at Syracuse on the 25th day of September, 1895, in any column upon the official ballot tb be used at said election in the City and County of New York, under the name or emblem of ‘New York State Democracy,’ to wit, a ‘rooster,’ or in any column in which are printed the names of the candidates for local offices nommated by said ‘New York State Democracy,’ and to be voted for only by the electors of the City and County of New York at such election; and it is further
    “ Ordered, That the Board of -Police Commissioners be and they are hereby enjoined and restrained from printing on the .official ballot any candidates of the said ‘New York State Democracy,’ under said title and emblem, in any column in precedence of columns wherein are candidates for State offices' of political parties certified by the Secretary of State; and it is further
    “ Ordered, That the said Board of Police Commissioners of the City of New York arrange and print on the said official ballot the names of candidates for State offices to be voted for by the electors of the entire State under the emblems or devices and as arranged in the order certified to them by the said Secretary of State on October 21, 1895, and not otherwise; and it is further
    “ Ordered, That the said Board of Police Commissioners and the several Commissioners thereof above named, and their agents or representatives, are hereby restrained and enjoined from issuing,, circulating, distributing or delivering for use at the next election any official ballot printed in a manner enjoined by this order.”
    The proceeding was instituted by a petition which set forth, among other tilings, that certain persons in the city and county of New York, calling themselves the “New York State Democracy,”' claim to be a political party, with the right to make nominations for offices to be filled by the voters of the entire State at the next election.
    That said New York State Democracy filed with the board of police commissioners of said city, on or about the 10th day of October, 1895, what purports to be a party certificate of nomination of candidates for offices to be filled in the county of New York (a copy of this paper was hereto annexed and made a part of the petition) ;• that said body claims the right to have the names of said alleged candidates printed upon the official ballot to be voted at the next general election under the names of the candidates who were nominated by the Democratic State convention, held at Syracuse on the 24th day of September, 1895, for offices to be filled and voted for by the electors of the entire State, said Democratic State convention being the regularly constituted party authority of said Democratic party.

      That said persons, styling themselves the “ New York State Democracy,” also claimed the right to have said candidates’ names printed upon said official ballot under a device or emblem chosen by them, and known and designated as a “ Rooster.” That, heretofore, and on the 16th day of October, 1895, the said claims of the New York State Democracy were considered and determined and declared by said board of police in the favor of said New York State Democracy.
    The petition further showed that said body, calling itself the New York State Democracy, did not, under the said title, or any other title or name, hold any State convention or primary, at which party nominations were made of a candidate or candidates to be voted for by the electors of the entire State at the next general election, nor were any primaries of such party called or held at any time throughout the State for the purpose of selecting delegates to constitute a State convention of the said New York State Democracy, nor had any committee of any party convention of said New York State Democracy been authorized to make nominations for State offices; and no device or emblem to designate and distinguish the candidates of said New York State Democracy had been adopted or selected by or at any State convention of said New York State Democracy, nor were any independent nominations made by petition or otherwise by said New York State Democracy as required by law.
    That no certificate of nomination of candidates to be voted for by the electors of the entire State, nor device or emblem to designate and distinguish the candidates of said New York State Democracy, has ever been filed with the Secretary of State of this State, as required by sections 56 and 57 of the Election Law of this State (as amended in chapter 810 of the Laws of 1895), nor had the Secretary of State certified to the board of police commissioners of the city of New York the names of any candidates nominated by the said New York State Democracy, either as party or independent nominations, nor certified as aforesaid any device or emblem •chosen to represent and distinguish the candidates of said New York State Democracy..
    That the Secretary of State had certified to the board of police the names, residences and places of business of each candidate nominated in the certificates filed with him for State offices for whom the voters of the city and county of New York may vote ; also, the titles of the offices for which candidates were nominated, specifying the name of the party or organization set forth in such certificate and giving a few simile of the emblem or device chosen to represent and distinguish the candidates of the' political party or independent body making such nominations. That the name of the political organization known as the New York State Democracy, or the emblem said to have been adopted by it, did not appear on the return so certified to the board of police as aforesaid.
    That the Secretary of State has also directed in what order and precedence the tickets or lists of the candidates of the various parties for State offices should be printed and in what columns the same should appear, and had directed what devices or emblems and party names should head such tickets or lists, and had in all respects complied with the provisions of law in such case made and provided. That said board of police were about to arrange said ballot to be printed by it in a manner and form contrary to the directions of the Secretary of State, in whom was vested in the first instance the sole power of arranging and constructing said ballot; to which certificate the petitioner begged leave to refer upon the argument of the motion.
    That at the Democratic State convention, held at Syracuse on. September 25, 1895, the delegates of the Democratic organization in the county of New York known as the “Tammany Hall organization ” were declared by said convention to be qualified to represent the electors of the Democratic party in the city and county of New York, and were recognized by the said State convention as the only regular Democratic party in said city and county, and that, at. the said State convention, the said Democratic party selected a star as its sole device or emblem, and duly filed a certificate thereof with the Secretary of State.
    That at said last-named State convention certain persons claiming to be representatives of the said New York State Democracy applied to be admitted to said convention, and that thereupon said Democratic convention, on September 25, 1895, declared as follows:
    “ Hesdlved, That the sitting members from the county of New York, being the delegation representing the Tammany Hall organization, are regular, and are entitled to seats in this convention ; and said organization is entitled to recognition in the future conventions as regular, and its delegates are to be placed upon the preliminary and other rolls thereof; and, in the appointment of inspectors of election, the use of the party emblem, and in every way in which the question of party organization may arise, said Tammany Hall organization shall be recognized and seated as the regular organization of the party in New York county; but in the interests of harmony at this time the committee recommend, subject to the aforesaid conditions, that the sitting delegates, as well as the delegates known as the State Democracy, be admitted to the convention, with one-fifth of a vote to each State Democracy delegate, and four-fifths of a vote to each Tammany Hall delegate.”
    That said New York State Democracy thereupon declined to accept the determination and terms of said resolution and took no part whatever at any time in any of the councils, deliberations or proceedings of the said Democratic State convention, held as aforesaid.
    That thereafter, at what purported to be a meeting of the executive committee or controlling body of said New York State Democracy in the county of New York, held on September 27, 1895, a report wras made by its chairman, Charles S. Fairchild, in which the action of their representatives at the said State convention, in declining to accede to the aforesaid resolution of the State convention of the Democratic party, was in all respects approved, and was subsequently also approved at a so-called county convention of said New York State Democracy, held at Cooper Union, in the city of New York, October 7, 1895. That upon the submission to said -executive committee of the said New York State Democracy of the report aforesaid, and its approval by said executive committee of the New York State Democracy in the city of New York, the following resolution by said executive committee was adopted: ,
    “ Whereas, It is necessary under the present Election Law that the Democratic candidates for state offices shall be nominated by petition in order that their names be printed on the official ballots under the name and emblem of the New York State Democracy and in the same column as the local, candidates nominated by said New York State Democracy.

      “ Resolved, That the sub-committee be and hereby is directed to take necessary measures to nominate by petition the candidates for State offices nominated by the Democratic State convention at Syracuse, and cause said certificates to be filed as required by law.
    “ Resolved, That upon all certificates of nomination by the New York State Democracy there be printed the picture of a rooster, which is hereby adopted as the emblem or device of said New York State Democracy.”
    That at no time has the said New York State Democracy been recognized as part of the regular Democratic organization of this State or county by the State committee of said Democratic party, or by the State convention of said Democratic party.
    That no previous application has been made in the premises, and that in consequences of the imminence of the printing of the ballots under the direction of the said board of police commissioners, and the proximity of the election, an order to show cause with notice of less than eight days is asked for.
    The petitioner prayed that an order might be issued by the court, returnable at an early day, to review the determination and acts of the board of police commissioners of the city of New York, in respect to the matters set forth in the petition and that any and all certificates of the New York State Democracy purporting-to nominate or indorse nominations made by other parties of candidates to be voted for by the electors of the entire State should be declared null and void and without effect, and that the board of police commissioners be enjoined and restrained from printing the names of candidates of the Democratic party for offices to be filled by the ■ voters of the entire State upon the official ballot under the name or title of the New York State Democracy as well as enjoined and restrained from printing the said device of the rooster over the names of said candidates upon said official ballot, and for such other and further relief as the circumstances of the case may warrant.

      Braméis M. Scott, for the appellants.

      Asa, Bird Gardi/ner, David Leventritt and BLenry D. Hotch-Tciss, for the respondent.

      Wallace Macfcórlame and George Walton Green, for the New York State Democracy.
   Van Brunt, P, J.

(orally) :

Necessarily, owing to tlie brief time that we have had for the consideration of the question which was presented on the argument this morning, what we can say in reference to the conclusion at which we have arrived must be of a somewhat desultory character, and we can only briefly outline the views to which we have all come upon an examination of the act before us. (Chap. 810 of the Laws of 1895.)

There seems to have been at the foundation of this legislation a scheme that there should be some intelligent action upon the part of each and every voter, and it seems to have been attempted to enable such voter to exercise such intelligent action in as simple a manner as jxissible. As a consequence, the provision of the law was that there should be spread before the voter the names of the various persons for whom he was called upon to vote. He was to be allowed to vote a straight party ticket; he was to be allowed to vote a straight independent ticket; or he was to be allowed to vote an eclectic ticket, as he might see fit. And it would seem that the tendencies of the law had been to bring that possibility within the reach of each individual voter, and that, as was suggested by the counsel for the appellants, the idea of devices or emblems was resorted to for the purpose of enabling the illiterate voter to attain that end. It was for the protection of the illiterate voter that the emblem was resorted to, and to enable him to exercise his will, as far as he might be able to do, to vote for the candidates whom he might select. This idea is also evidenced by the fact that there is a provision in the act which limits each party to a single device.

The provision in regard to the form of the ballot is: “ Every ballot intended for the use of electors, printed in accordance with the provisions of this act, shall contain a party device for each party represented on the ticket. * * * There shall be provided at each polling place, at each election, but one form of ballot for all the candidates for public office, and every ballot shall contain the names of all the candidates whose nomination for airy office specified in the ballot have been duly made and not withdrawn in accordance herewith, together with the title of the office, arranged in tickets or lists under the respective party or political or other designation certified. * * * The arrangement of the ballot shall in general conform as nearly as practicable to the plan hereinafter given. The tickets or lists of candidates of the various parties shall be printed in parallel columns headed by the chosen devices, and the party name or other designation in such order as the Secretary of State may direct, precedence, however, being given to the party which polled the highest number of votes for the head of the ticket in the next preceding general election, and so on. The number of such columns shall exceed by one the number of sets of candidates to be voted for at the polling place for which the ballot is provided, nominated by different certificates of nomination, except as otherwise provided in this section.”

Throughout this section there seems to be a recognition of the idea that there should be a single column for a single party, and a single device at the head of that column, so that the voter who desires to vote a straight ticket may vote the ticket under that device. "We find, also, when we come to the provisions of the law, in respect to the filing of certificates of nomination, the same idea to prevail. The certificates of nomination in regard to State offices shall be filed with the Secretary of State. The nominating authority shall file with the Secretary of. State an emblem which is to head the ticket; and if such an emblem is not filed, then the Secretary of State may select such an emblem; iand the emblems or devices so chosen, when filed as aforesaid, shall be used to designate and distinguish all the candidates of the same political party or independent body.

There would seem to be, therefore, an intention upon the part of the Legislature that each party should be represented by a single emblem. That being the condition of the law, it seems necessarily to follow that where a convention of a party lias- been regularly called, has made its nominations, has sent its certificate to the Secretary of State containing the emblem of that party, that device controls and must head the nominations of that party.

There is a further provision of the statute which authorizes independent nominations to be made. It determines how those nominations shall be made — what shall be done — what shall be filed with the Secretary of State as the evidence of such nomination, and what the Secretary of State shall do in the case of such nomination. But those nominations are designated as independent nominations. They do not come under the head of the regular party nomination whose convention lias chosen the device under which the nominations of that .convention are to be presented to the people. Undoubtedly, an independent party may nominate the same individuals, but they must nominate them as an independent party, place them under their device, and list them under their ticket.

Such being the condition of the law, it would seem that it was necessary, in order for any independent organization or any person claiming the right for the presentation of a State ticket upon any ballot to be printed, that they must make the nominations in a manner conformable to the statute and file a certificate with the Secretary of State. Then the Secretary of State certifies the nomination to the county officers — in this county, the police commissioners, in other counties, the county clerk — and from them the county officers get the information or knowledge as to the candidates for State offices which have been put in nomination by the conventions or in the independent manner prescribed by the statute. In the case at bar this procedure has not been followed; it appears that in all the other independent nominations it has been followed. The nominations were made either by convention or by certificate, filed with the Secretary of State. The Secretary of State lias certified these nominations to the board of police commissioners, and the board of police commissioners get their knowledge as to these nominations from that certificate, and there is no means by which they can be afforded any legal knowledge whatever as to those nominations, except from the certificate of the Secretary of State.

As far as the State Democracy is concerned, it does not seem to have made any nominations for State offices. It is true it has filed a certificate with the board of police commissioners as to-its local nominations with a notice that it has indorsed certain .State nominations.- But they have not made any nominations in the manner prescribed by the statute or filed any certificate with the ■Secretary of State. Neither has the Secretary of State certified to the board of police commissioners (from whom alone the police commissioners can get knowledge in regard to any State nominations) as to the fact of this faction having made any nominations for ■State offices whatever.

That brings us to a consideration of the question in regard to the action of the board of police commissioners in reference to the form of the ballot. The statute provides that, as nearly as practicable, the ballot shall be printed in the form designated by the Secretary of State. And the Secretary of State has certified the nominations in the order in which they have been received by him, and in which they were entitled by the provisions of the law to be put upon tlie ballot. The police commissioners have ignored that certificate. There is no practical difficulty in the way of having one column here and one there, but they have absolutely ignored that certificate and adopted an order of their own. We cannot find any authority in the law for that. They have no discretion except where it is impossible to follow out the order designated by the Secretary of State.

There is much more that might be said in reference to this matter, and Mr. Justice Barrett will say a few words in regard to the decision of Mr. Justice Cullen, distinguishing the condition of the law which exists at the present time from that which existed in 1894. It is proper, however, that I should call attention to the claim that is made that the respondent had no standing in court. As we understand it, that is founded upon the provisions of section 65 of the act of 1895 (Chap. 810), which provides that a written objection to any certificate of nomination may be filed in the office in which the certificate is filed within three days after the filing of the certificate. It might be said, in the first instance, that as far as these State offices were concerned, there has been no certificate of nomination filed and, consequently, there was no necessity of any written objection. But even if there had been an attempt to file a certificate, the provisions of section 65 were not exclusive. It depended upon what action the police commissioners took upon that certificate of nomination as to whether there was any necessity of intervention or not’. Then, by the provisions of section 56 it is provided that “the Supreme Court, or auy justice thereof within the judicial district, or any county judge within his county, shall have summary jurisdiction, upon complaint of any citizen, to review-the determination and acts of such-officer.” Now, it is, further objected that the respondent here has not shown any interest in this suit,'and that courts are not trying moot questions. He is a citizen; consequently, presumably, a voter. He has an interest, if it were necessary, in having the law carried out in respect to the manner in which the election should be conducted. But that is not necessary. The statute has provided, that upon the complaint of any citizen the court shall redress any wrong which may have been committed whether as against himself or anybody else. This might be said to be analogous to the right conferred upon a taxpayer under certain circumstances. A taxpayer’s interest is infinitesimal. If he is aggrieved by some particular action of the corporation or its officers it is to so small an extent that the court would not take notice of it as an individual grievance, and never did until the taxpayer was given by authority of law the right to intervene. So, here, the citizen is given the right to intervene, and the court is bound to entertain his complaint if any be made to it.

The order should be affirmed.

Barrett, J.

(orally):

I concur, and will state briefly the grounds of my concurrence.

The key to the solution of the main question here presented is the legislative intention with regard to the new device of a party emblem. Clearly, no State party can have more than one emblem. If that be so, and it is unquestioned, no State party can secure additional emblems through the accident of local dissensions. The State party’s emblem runs through the whole State and covers the candidates nominated by its State convention. The policy of the law was to make the ballot clear and to keep it within reasonable proportions by limiting each party to one emblem in one column on a single ballot. If the appellants’ contention be correct, emblems may be multiplied indefinitely in each- county. The true construction of the act is, that no local division of a State party can vary the emblem adopted by its State convention. Here the attempt necessarily is to vary that emblem.

The State Democracy shows that it is: a component part of the Democratic party. That being so, it is bound by the party device. The party authorities of the State Democracy cannot alter its device or substitute another for it. Probably they would not have attempted to do so if they could use it as the means of combining the State ticket with their own local ticket. Practically they cannot do this because of the action of the State convention; and because they cannot do so they claim the right to vote for the party candidates at large under an emblem other than that chosen by the Democratic State convention. Now, plainly this cannot be. If it were p>ermitted it would destroy the whole system of single State party emblems and single State party columns. The members of the State Democracy are not deprived of their right to vote for the party candidates. They cannot do so quite as conveniently as those who vote a straight ticket; but, to illustrate from the facts before us, they can vote the “ star ” generally, and their own candidates specially, or they can vote their own emblem generally and the State candidates specially. Their grievance is that they cannot vote a single straight ticket for all the party candidates with their own emblem. But that grievance results from the division in the party, and from the recognition of their adversary by the State convention. It is thus inseparable from their attitude. "We may assume that each local faction stands equally as a component part of the party. That very assumption shows that both factions are bound by the State party emblem, and that neither of them can adopt another emblem — • I mean another emblem under which to vote the Democratic State party ticket.

It comes back to the original proposition that the State party can have but one emblem, and that, so far as the candidates of the State party are concerned, that emblem is controlling upon all the local factions within the party. Each local faction can have its own emblem only for its own local candidates. Such is clearly the meaning of the words “ the names of its candidates” in section 56 of the act of 1895 (Oliap. 810). But for its State candidates it can have no emblem save that chosen by the State convention. Where there are several factions of the same party in the county, the State convention decides which faction shall have the advantage of regularity. Because of that regularity one faction becomes entitled to the sole use of the party emblem for its local candidates. Whatever disadvantage results to the opposite faction results from its lack of regularity. It is inevitable to the situation in which it is placed. It must suffer this disadvantage rather than secure an advantage at the expense of the homogeneity of the system planned by the Legislature. The party authorities of the State .Democracy could have avoided this inconvenience by resorting to the statute as to independent nominations. In that case they might have had a straight ticket consisting of these very State candidates and their own local candidates under one independent emblem. But as they did not make either a party nomination (and they could not have done so without becoming a new party) or independent nominations, as, in fact, they rely upon their position as an integral part of the Democratic party, they cannot place the State candidates of their party under any emblem save that chosen by their State party convention. It seems to me that that is entirely clear.

My attention has been called to thesopinion of Mr. Justice Cullen in The Matter of Madden (not yet reported). I would entirely agree with this learned justice if the law were the same as that which was considered in The Matter of Mitchell (81 Hun, 401). But, as we have seen, the act of 1895 is a radical departure from the previous ballot law. The crucial change in the present system is not only the substitution of a single ballot for all the candidates, as observed by Mr. Justice Cullen, but the provision for a single emblem for each party, under which- — -and under which alone — the party ticket as such can be voted. It is true that the voter can now vote for that ticket in a variety of other ways and under other party emblems or under independent nomination emblems. But if he desires to vote for that ticket as such — that is, for the straight party ticket in the State — he must vote for it under that party’s lawfully chosen emblem.

My conclusion is that, throughout the length and breadth of the State, the ticket of each party for State officers must be in a single column, and must be headed by such party’s chosen emblem. No local division of such party, regular or irregular, can, in its locality, .choose for the party at largo another or different emblem, nor, certainly, can any county clerk or board. Each local division can undoubtedly choose an independent emblem for its local candidates — meaning, of course, its local candidates as distinguished from its State candidates. For the latter it cannot choose an independent emblem. Its State candidates are the candidates of the party at large, and the choice of an emblem for that party is vested by law exclusively in the State convention. It follows that the board of police erred in giving to the Democratic party, as it has, an additional column on its proposed ballot and an additional emblem. It also erred in varying the precedence given to the various party columns, according to law, by the Secretary of State.

Fos these reasons I concur that this order should be affirmed.

O’Brien, J., concurred.

Order affirmed.