author: Patterson, J.: Yan Brunt, P. J.:

text:
    GERARD BEEKMAN and Another, as Trustees of JAMES W. BEEKMAN, Deceased, and as Individuals, Plaintiffs, v. ABRAHAM VAN DOLSEN, Defendant.

      Permissive loaste — it involves negligence — a tenant for years — the measure of his duty.

    The trustees of an estate leased certain dock property to one Van Dolsen for a term of years, by a lease -winch provided that the lessee would, at the expiration of the term, surrender the premises in as good condition as reasonable use and wear would permit, damages by the elements excepted, and would not demand compensation for improvements made by him, but contained no covenant to repair. At the date of the lease, December 1,1880, it was known by the parties thereto that under a claim of legislative authority the dock department of the city of New York contemplated a change of the bulk-head line, which would involve the partial destruction of the retaining wall, bulk-head and dock.
    In December, 1880, the dock department undertook to make these changes, whereupon, on December 18, 1880, Van Dolsen applied to the United States Circuit Court and obtained against the city of New York and the members of the dock department an ad interim injunction restraining the performance of the work.
    In an action brought against Van Dolsen, to recover, among other things, damages for permissive waste because of such partial destruction of the retaining wall, bulk-head and dock upon the leased premises,
    Held, that he was not liable.
    That before an action for permissive waste can be maintained against a tenant for years it must appear that he was negligent in permitting the waste.
    That all that was required of Van Dolsen, in any view, was to be diligent to prevent dilapidation of the premises, and that by promptly proceeding in the United States Circuit Court he had discharged his duty.
    Exceptions of the defendant Abraham Yan Dolsen, directed to be heard in the first instance at General Term, the plaintiffs having recovered, by direction of the court, a verdict for $11,186.82, after a trial at the New York Circuit before the court and a jury.

      WilUam Mitchell, for tlie plaintiffs.

      OcM'lisle Norwood., for the defendant.
   Patterson, J.:

This cause is before us on exceptions ordered to be heard in the first instance at the General Term. There are four causes of action set forth in the complaint. At the trial the third was virtually withdrawn from consideration, but as to the others a verdict was directed in favor of the plaintiffs, and the amount of the verdict was arrived at after deducting a counter-claim admitted to be properly chargeable against the plaintiffs.

The first cause of action was for rent accrued under a lease. As we look at the record it is clear the defendant was liable for that rent. His covenant is plain. While it is true that two other instruments were executed contemporaneously (the difference of a day in their respective dates is not material, as it is perfectly clear they formed part of one transaction) with the lease, and we may consider them together, it is apparent that the defendant not only covenanted in form, but that he intended to be liable for the rent of the dock property, and that he understood and knew that he was to be a princijial, and not an agent. Whatever caused his introduction to the matter, whether it was. to find in him a plaintiff who could bring a suit in the United States Circuit' Court or any other reason, when he did make his covenant he became bound by it and was directly liable to the lessors for the performance of all the terms and requirements of the lease incumbent upon the lessee, except so far as they may have been modified by the provisions of the other instruments; but nothing contained in those other instruments relieved him from the payment of rent.

The principal question involved in the discussion before us arises out of the second cause of action set forth in the complaint. The facts, so far as they are material, relating to it may be briefly stated. The premises in question, consisting of certain dock property on the East river front of the city of New York, between. Eorty-nintli and Fifty-first streets, were leased on the 1st day of December, 1880, by the plaintiffs, as trustees of the estate of James W. Beekman, deceased, to the defendant for a term of years, and that term was to and did begin about twenty days before tlie date of the lease. One of its provisions was that the defendant “ at the expiration of the said term will quit and surrender the premises hereby demised in as good state and condition as reasonable use and wear thereof will permit, damage by the elements excepted, without demanding compensation for any improvements on said premises made by said party of the second part.” From the beginning of the term the premises were in the actual possession of third persons, w'ho should, for all the purposes of this case, be considered as under-tenants of the defendant, and that is the most favorable aspect in which they can be regarded relatively to the plaintiffs. While the defendant was thus in possession of the locus in quo, by his sub-tenants occupancy, very serious damage was inflicted upon the property by the dock department of the city of New York. It consisted of the partial destruction of a retaining wall, bulk-head and dock. This act of aggression by the dock department followed very closely upon the execution of the lease, and the testimony before us leaves no doubt whatever that the intention of the commissioners of the dock department to commit what is called the waste to these premises was well known to the plaintiffs before the lease to the defendant was made; and it is proven beyond the possibility of controversy that immediately the lease was executed and delivered, the defendant brought a suit in equity in the United States Circuit Court to restrain the action of the dock department, and that Mr. Justice Blatohford issued a temporary injunction restraining the commissioners from acting.

The theory upon which this second cause of action proceeds is; that the demised premises being in the possession of the defendant, and he having covenanted to surrender them at the expiration of the term in as good condition as when he took possession, reasonable use and wear and tear aiid damages by the elements excepted, he is liable for the destruction of or detriment to the premises before alluded to, whether committed by himself or by others. In other words, it is sought to hold him liable for }3ermissive or negligent waste, and it is claimed by the plaintiffs’ counsel that adjudications of courts of authority in this State sustain the contention now made. We must consider the whole case on the terms of the lease between ’ the plaintiffs and the defendant. There is no covenant in. that lease that the defendant shall make repairs, and the law will not imply one. It is not at all clear that a tenant for years is liable for permissive waste under any view of the law, although it seems to have been assumed by the courts of this State that such is the case (Robinson v. Wheeler, 25 N. Y., 252; Austin v. Hudson R. R. R., Id., 334); but it has long been a contested question in the English courts, as is shown by the cases cited by Mr. Yool in his essay on Waste (p. 10). But we will assume that an action on the case against a tenant for years for permissive waste may be brought in this State with all th¿ results that would flow therefrom, and yet we would not be justified in deciding that such an action may be maintained upon the facts of this present action. Waste, in its simplest definition, is whatever does a lasting damage to the freehold or inheritance. It is either voluntary or permissive, and the diétinction is so clear that authorities need not be cited. Permissive waste implies negligence, which may consist either of acquiescence in or assent to the acts of strangers or failure to prevent such acts or to do that which is incumbent upon the party in possession as matter of good husbandry. But the very essence .of liability for permissive waste must be negligence. In 1 Cruise’s Digest (title 3, chap. 2, p. 129) it is said that permissive waste is a matter of omission only, and (at page 146) where the party in possession staffers a stranger to commit the injurious act he shall be charged with it, for it is presumed in law he may withstand it, and the law gives to every man his proper action, the lessor against the lessee and the latter his action against the trespasser who committed the waste. This was not originally so at common law, but was derived from the provisions of the Statutes of Marlbridge (52 Hen. 3, chap. 24); and Gloucester (6 Edw. 1, chap. 5).

But to constitute this particular kind of waste there must have been neglect, omission, sufferance or permission of the tenant. The presumption referred to is not conclusive. It may be rebutted by proof. The most ordinary kind of permissive waste is suffering buildings to fall into decay from neglect. If the defendant in an action brought under such circumstances should prove that he exercised all diligence and fully discharged his duty to his landlord, he would be relieved from liability. It has recently been held in this State that what constitutes waste is a question of fact for the jury (Eysaman v. Small, 15 N. Y. Supp., 288); and it seems to be assumed there that all that was required from the party in possession was to be diligent to prevent dilapidation of the premises. That appears to us to be the true measure of duty in cases of this kmd. Nothing of affirmative wrong is alleged against the defendant. He committed no act of waste, nor did he suffer any to be done by -want of diligence. On the contrary, he interposed to prevent it and did all that the most careful and prudent man could have done under the circumstances to prevent damage being done to the property. A reference to a few dates and facts will demonstrate this. The lease in question was executed on the 1st day of December 1880. The term was for two years from the eleventh day of the preceding November. Long prior to that date proceedings had been taken by the department of docks of the city of New York, under a claim of legislative authority to do so, to change the water front of the East river, including the premises in question. They were pending when this lease was made, and resulted in a contract on the 4th of December, 1880, between the commissioners and one Kinsley -whereby the change referred to was to be operated. The commissioners undertook to execute the change alluded to, and then the situation was such that the' tenant in possession was bound to be diligent in resisting the contemplated ■ encroachment or trespass on the demised premises. That is exactly what he did. On the 18th day of December, 1880, he applied to Judge Blatohford, of the United States Circuit Court, and obtained an ad interim injunction against the city of New York and the members of the board of dock commissioners. "What more could he have done ? He invoked the aid of the court to prevent the wrong, and that was all that could be required of him.

Mr. Gibbons, in his treatise on Dilapidations, says, on the authority of Coke: “ It may be inferred that the tenant is liable only for such acts of waste by a stranger as do not exceed a civil trespass, and which he might have reasonably resisted.” If he has done all he could do to resist the acts of a department of a municipal government, acting under actual or colorable authority of law, he has striven to protect the property, and has neither permitted the trespass nor negligently suffered it; and as the recourse against him would only be in an action of trespass on the case, and the gravamen of that action being either permission or negligence as applied to these facts, the plaintiff could not recover. The defendant was not in fault. There is not a case to be found in this State where the defendant was held liable for permissive or negligent waste when he resorted to all proper and lawful means to prevent a stranger or intruder from doing damage to the reversion, and we certainly will not extend the rule of liability in a case of this kind.

The learned judge in the court below directed the jury to find a general verdict for the plaintiff for $11,186.82, which was the result of a diminution of $12,586.82, less $1,400 on a counter-claim. As this balance was made up, we think the direction was erroneous, and that the exceptions should be sustained and a new trial ordered, with costs to abide the event.

O’Brien, J., concurred.

Yan Brunt, P. J.:

I concur in this opinion so far as it relates to liability for waste, and in result arrived-at.

Exceptions sustained and new trial ordered, with costs to abide the event.


source: Caselaw Access Project

author: O’Brien, J.:

license: Public Domain

text:
    LUDWIG BAUMANN, Respondent, v. ELIZABETH MOSELEY, as Administratrix of JOSEPH B. ADAMSON, Appellant.

      Executors ancl administrators — a claim referred under the statute — review of the rulings on evidence and the findings — motion for a new trial upon a case and exceptions — must he made within a reasonable time — a referee’s report as to a sale of chattels.

    A disputed claim against an estate was referred, under 2 Revised Statutes (88, 89, §§ 86, 87), and the referee made a report in favor of the plaintiff, which, though opposed by the defendant, was confirmed, and. judgment was entered thereon uponlMarch 6, 1891.
    The defendant appealed from the judgment and from the order of confirmation, but afterwards, on December 7, 1891, made a motion in the first instance at Special Term, upon a case and exceptions, to set aside the report and for a new trial.

      This motion was denied, and from that order the defendant appealed.

      Held, that where a party desired to review the rulings upon evidence, and the question whether the evidence sustained the findings of fact, the proper method was to make a motion for a new trial upon a case and exceptions.
    That such a motion might be made in a proceeding of this kind within a reasonable time after judgment.
    That, upon the facts of this case, a delay from March to December was not unreasonable.

      Semble, that a referee’s report must be consistent in its legal propositions.
    That, in the case of a sale of several chattels by a'single contract, a report should not be sustained which, in effect, holds that the title had passed as 'to a part of the chattels, and that as to another part it had not passed.
    Appeal by tlie defendant Elizabeth Moseley, as administratrix of Joseph B. Adamson, deceased, from an order, entered in the office of the clerk of the county of New York on the 18th day of December, 1891, denying a motion made by the defendant to sot aside the referee’s report in this proceeding and for a new trial.

      II. I. Hr ant, for the appellant.

      George Ilahn, for the respondent.
   O’Brien, J.:

This was a special proceeding upon a disputed claim against the estate of Adamson, deceased, which was .referred, pursuant to the statute, and tried before a referee. The latter reported in favor of the plaintiff as to a certain portion of the claim presented, which report, though opposed by the defendant, was confirmed, and judgment entered thereon on March 6, 1891. From this judgment, and the order confirming the referee’s report, the defendant appealed to the General Term of this court. Thereafter, concluding that the better practice required that a motion should be made at Special Term, upon a case and exceptions, to set aside the report and for a new trial, the defendant made such motion on December J, 1891, which was denied, and from such order of denial this appeal is taken.

As the question of practice thus presented is an important one, we will, at the outset, consider the contention made by the respondent, that the procedure adopted here of appealing from the order denying a motion for a new trial is not the correct practice; and even though it be so considered, that the motion upon the case and exceptions was made too late, not having been made within thirty days, within which time the right to appeal from the judgment would have expired, and that, therefore, upon this ground alone, apart from the merits, the appeal should be dismissed.

As to the proper practice considerable confusion exists, and it is not our purpose to endeavor to reconcile the decisions which have been made relative thereto. But it becomes our duty rather, after an examination,'to adopt the rules’for which the stronger reasons and authorities can be found.

In Eighmie v. Strong (49 Hun, 18) it is said: “It is the customary and usual practice for the prevailing party to move at Special Term for a confirmation of the report. The motion being based upon the report, the only questions brought up for review are the regularity of the proceedings, and whether the conclusions of law are sustained by the findings of fact appearing in the report. The rulings made upon the hearing in the admission and rejection of evidence and questions as to whether the evidence sustains and justifies the findings of fact can only be brought up upon a case containing exceptions. It is the usual and customary practice for the defeated party to move upon a case containing exceptions for a new trial at the same time that the motion is made for a confirmation of the referee’s report, so as to have all of the questions determined in the one motion, and this is, doubtless, the better practice. But we think the motion for new trial upon a case and exceptions may be made after the referee’s report has been confirmed. Such has been the approved practice of our court, and we see no- reason why it should be changed.”

This view as to the proper practice is supported by numerous and well-considered authorities, and inasmuch as we approve of the practice as laid down in Eighmie v. Strong, it is unnecessary for us to discuss them. The most singular feature in connection with the entire practice is the failure of any of the cases to point out the authority in law, or by statute, for the practice of requiring that, where it is sought to review upon appeal rulings made upon the hearing as to the admission or rejection of evidence, or as to whether the evidence sustained the findings of fact, a motion for a new trial upon a case and exceptions must always be made in the first instance at the Special Term. As already stated, authorities can be found for an appeal directly from the judgment; and in Hatch v. Stewart (42 Hun, 164), it is questioned whether the practice is not to appeal from the order of confirmation, and not from the judgment.

In Smith v. Velie (60 N. Y., 106), which is the only case to which •our attention has been called in which the Court of Appeals has considered the question, that court was seemingly of the opinion that, where a disputed claim against the estate of a deceased person is referred pursuant to the statute, to preserve the right to review upon an appeal from the judgment entered upon the report of a referee the aggrieved party must move at Special Term upon a case, or otherwise, to set aside the report, or for a new trial, or must appear and oppose its confirmation and take the proper exceptions.

As already stated, the Code contains no provisions regulating the practice, and resort must be had to a solution made from what, under the authorities, would seem to be the practice most sanctioned and approved by the courts.

The absence of any provision of law as to the time within which a motion upon a case and exceptions must be made presents another difficulty arising on this appeal. The usual course is for the defeated party to move on a case and exceptions for a new trial at the time of the hearing of the motion for the confirmation of the report, and, if necessary, the hearing of the motion would be suspended to ■enable a case and exceptions to be made and prepared for the hearing. But such a motion may be made after the confirmation of the report, and after judgment has been entered. The question remains, how long after ?

In this case the time to appeal from the judgment expired April, 6, 1891, while the notice of motion for a new trial was not served until November 27,' 1891. Motions of this character in actions are controlled by section 1002 of the Code, which provides that they cannot be made unless notice therefor be given before the expiration of the time within which an appeal can be taken from the judgment. By section 1351 such time is limited to thirty days after service upon the attorney for the appellant of a copy of the judgment. Therefore, in actions, a motion upon a case and exceptions must be made within thirty days after notice of entry of judgment.

This section (1002), it has been held, refers entirely to motions in actions, and has no application to special proceedings. (Denise v. Denise, 41 Hun, 9.) That case is also authority for the proposition that appeals from orders and judgments entered in spiecial proceedings are regulated by sections 1356 and 1357 of the Code, and not by section 1316 thereof.

Section 1359, which fixes the limitation of time within which an appeal is to be taken as provided by sections 1356 and 1357, which control appeals from orders or judgments in special proceedings, provides that an appeal “ must be taken within thirty days after service of a copy of the final order from which it is taken, with a written notice of the entry thereof upon the appellant.”

Where, therefore, a motion is made for a new trial upon a case and exceptions and an order is entered thereon, the limitation of time to appeal is controlled by section 1359. But I have been unable to find any provision of the Code or any authority which determines when the motion itself must be made.

In the absence of authority or Code provision, we take it that the rule to be applied would require that such motion should be made within a reasonable time, and what is a reasonable time would necessarily depend upon the circumstances of the case. If we are, correct in this view, we cannot say, upon the facts disclosed by this record, that the appellant unreasonably delayed making the motion, and having, within the time prescribed, taken his appeal from the order denying thq same, and having originally appeared upon the motion to confirm the report and opposed the same, and having-taken an appeal from the judgment entered thereon, we think that the merits of the appeal are before us for consideration.

So 'much of the facts as are necessary to dispose of the appeal may be briefly stated. The appellant, who is a furniture dealer, a few days prior, to May 1, 1888, undertook to furnish a flat for the defendant’s intestate, and delivered at the flat a portion of the goods between the 30th of April and the 5th of May, 1888, of the value of $1,100. The defendant’s intestate, Adamson, died on the 3d of May, 1888, and notwithstanding this fact the plaintiff continued to deliver furniture on that and the two following days. Upon Adamson’s death the landlord evicted his widow and took jiossession of the flat. The plaintiff having concluded, after inquiry, that the intestate’s estate was insolvent, stopped the delivery of further goods and tried to recover possession of the goods already delivered, finally paying the landlord for the privilege of going into the premises and taking the goods. Tlie plaintiff took possession of the flat on May 7, 1888, and removed goods from time to time from May 10th to August 2, 1888. After such goods as were in the flat were taken away by plaintiff he claims to have discovered that certain furniture which had been delivered at the flat had either been lost or stolen while in the possession of the defendant’s intestate.

The position then assumed by the plaintiff, and the claim sought to he enforced against the estate of the deceased, are thus set forth in the opinion of the referee:

While the furniture was being placed in the apartments the purchaser died intestate. The plaintiff thereupon went to the flat and took possession of and removed all the goods that he could find. Most of the goods so removed he apjiraised and sold to a secondhand dealer at a loss, it is asserted, as compared with the contract-price, of $439.92. Besides this, $407.21 in value of the furniture had been stolen or taken from the flat, and the plaintiff was not able to recover possession of it. Plaintiff also performed work for Adamson about the same time of the value of thirty dollars and twenty-five cents, and also paid the landlord of the flat sixty dollars, being the amount of one month’s rent of the flat, to enable the plaintiff to get possession of the goods without the trouble of a replevin. He also spent ten dollars and fifty cents in taking down poles and removing the goods. He now seeks to recover these various amounts from the administratrix of the intestate. * * *
“ His conduct seems to have been founded upon the mistaken theory that his contract relations with Adamson were all abrogated by the death of the latter. The administratrix has not chosen to resist the rescission of the contracts, or to counter-claim damages, but has allowed the plaintiff to abrogate them as far as he was able so to do.
“ I, therefore, feel constrained to disallow the claims of $439.92; of $10.50 and of $60.00, and find that the plaintiff is entitled to judgment for $407.21 and $30.25, with interest from November 21, 1S89, besides costs.”

It is impossible to reconcile the conclusions thus reached by the learned referee as to the goods that were retaken, and as to the goods alleged to have been lost or stolen. '

As to the former, he held that the statute of frauds applied, and as to the latter, that it did not. In other words, as the statute required either a writing or part payment or delivery, and as no claim was made that there was any contract in writing, or that any money had been paid, it was necessary, in order to make title in the intestate of the property alleged to have been lost or stolen, that there should be an unconditioned delivery. Whether we regard the arrangement between the parties as a sale for “ spot cash,” which condition was waived, or a sale on credit, the test in many of the cases, as stated in Benjamin on Sales (§ 187), for determining whether there has been an actual receipt by the purchaser, has been to inquire whether the vendor has lost his lien. “As long as the seller preserves his control over the goods, so as to retain his lien, he prevents the vendee from accepting and receiving them as his own within the meaning of the statute.”

To justify a retaking, the learned referee was obliged to hold that plaintiff had not lost his lien, that he had a right to rescind, and that the title had not passed, and yet to permit a recovery for articles lost or stolen he was compelled to hold that-there was a complete delivery to satisfy the statute of frauds, and that title had passed, and that the vendor had lost his lien.

The contract of sale, whether entire or divisible, conditional or absolute as to its terms, was the same as affecting all the property, and as to so much of it as reached the flat, either the title passed or it did not. And it should be noticed that some of the property retaken, and some lost or stolen, were part of the same shipment or delivery, thus showing that there is no difference as respects terms of sale or title between the property retaken and the property lost or stolen.

The referee, as stated, in effect held that, as to property retaken, the title did not pass and the vendor had a right to rescind, but for the property lost or stolen the title did pass and the vendor could recover the value thereof.

If the goods never became Adamson’s property, and he was merely a bailee, then, for the property lost or stolen, he would only be liable on proof of negligence.

If the title passed, then the retaking was unlawful and legally indefensible. Bor even if we assume a license in favor of the vendor to retake the thing sold if not paid for, this would not be available against the administratrix. (Howes v. Ball, 7 B. & C., 484; Benjamin on Sales, § 188.)

The referee found that no claim for damages or loss, in connection with the reclaimed or retaken goods, could be allowed, thus recognizing the entirety of the contract and the effect of rescission thereof as regards these goods.

What reason exists in law or arises upon the facts to justify the application of any different rule to the goods not retaken ? As already said, the goods were all sold and delivered under one and the same contract, the same in terms, if not an entire contract; and what was true as to one part of it was true as to each and every part.

We are aware, as contended by respondent, that, in law, upon the failure of a purchaser to perform a contract for the sale of personal property, the vendor may hold the property for the purchaser, and recover the entire purchase-money, or he may sell it and recover the difference between the contract-price and that realized upon the sale, or he may retain the property as his own and recover the difference between the contract-price and the market-price. All these relate to the remedy of the vendor as against a vendee who refuses to perform, and where the contract shows a sale to the vendee. No authority, however, can be found for allowing a vendor, who under the same terms of sale (even if the contract is not entire) at different times delivers property, to claim that the title to some of the property has passed, and to other articles that it has not passed. We do not think it necessary to discuss the subject further. Rights of parties and their obligations must be determined with some regard to consistency in principle. The inconsistent position of the referee, regardless of the other questions involved, requires that the judgment should be reversed and a new trial ordered, with costs to appellant to abide event.

Yan Brunt, P. J., and Patterson, J., concurred in the result.

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


text:
    ANN E. WYNKOOP, Appellant, v. MARY S. VAN BEUREN and Others, Respondents.

      Damages — what is a “ final decision” that a plaintiff is not entitled to an injunction— the discontinuance of an action— Coda of Civil Procedure, secs. 620, 623.
    In an action brought to enjoin the defendants from injuring' a party-wail the plaintiff obtained a preliminary injunction and gave an undertaking providing for the recovery of damages to be paid to the defendant, “if the court finally decides that the plaintiff was not entitled ” to'the injunction The injunction was subsequently dissolved.
    The defendants answered, the case was put on the calendar but was never tried. Finally the plaintiff obtained leave to discontinue on payment of costs, the application being opposed by the defendants. An order was then made sending the matter to a referee to determine the damages which the defendants had suffered by reason of the injunction.
    Upon an appeal from this order:

      Held, that the court had jurisdiction to grant it.
    That as the application to discontinue was opposed by the defendants the decision upon that question was equivalent to a final determination that the plaintiff was not entitled to the injunction, and that thereupon the sureties upon the undertaking became liable to the defendants.
    Appeal by the plaintiff Aim E. Wynkoop from so much of an order, entered in the office of the cleric of the county of New York on the 22d day of January, 1892, as granted a motion to appoint a referee to ascertain the damages which the defendants had suffered by an injunction in the action, and from so much of said order as appointed a referee for that purpose and directed him to make a report.

      (7. JB. Alexander, for the appellant.

      William Mitchell, for the respondents.
   O’Brien, J.:

This action is brought to enjoin the defendants from injuring, disturbing or undermining a party-wall. Upon obtaining a preliminary injunction herein, plaintiff gave an undertaking conditioned upon the payment of such damages, not exceeding the sum of $1,000, which the defendants might sustain by reason of the injunction, “if the court finally decides that the plaintiff was not entitled thereto, such damages to be ascertained and determined by the court or by a referee.” This preliminary injunction was subsequently •dissolved; although the defendants answered, and the case was on the day calendar, it was never tried; but, on October 7, 1891, the plaintiff made a motion for leave to discontinue without the pay: ment of costs, which motion was opposed by the defendants, and was finally granted upon payment of costs. After the order of ■discontinuance was entered, the motion was made to ascertain and ■determine the damages sustained by the defendants by reason of the injunction, and an order was made thereon sending the same to ■a referee, from which order this appeal is taken.

The principle point made by the appellant is that, as a matter of law, there not having been an actual final decision against the plaintiff’s right to an injunction, that the court had no jurisdiction to order a reference to ascertain the damages sustained by the •defendants by reason of the injunction. In support of this contention reliance is placed on the cases of Palmer v. Foley (71 N. Y., 111); Johnson v. Elwood (82 id., 362); Neugent v. Swan (61 How. Pr., 40, 42); Hall v. Sexton (19 N. Y. St. Rep., 677).

In the first case cited it will be found, upon examination, that the court’s decision was placed upon the ground that no damages could be recovered because the action had been settled and discontinued by an amicable and voluntary agreement between the parties, and that virtually they had fixed their own damages. "Without, however, commenting upon and distinguishing the other cases relied upon by appellant, we must regard this question as settled in view of the decisions in, the case of Amberg v. Kramer (8 N. Y. Supp., 821), and Parker v. New York Commercial Telegraph Company (3 N. Y. St. Rep., 174), and particularly the case of the Pacific Mail Steamship Company v. Toel (85 N. Y., 646). These are all authorities which sustain the view that the discontinuance of the action by plaintiff, upon a motion which is opposed by defendants, is equivalent to a final determination that the plaintiff was not entitled to the injunction so as to make the sureties upon the undertaking given upon the injunction liable.

We are, therefore, of the opinion that the order appealed from should be affirmed, with costs.

Van Brunt, P. J"., and In&raham, J., concurred.

■Order affirmed, with costs.


author: Yan Brunt, P. J.:

text:
    ALBERTO H. CAFFEE, Plaintiff, v. WILLIAM OTTMAN and Another, as Executors of JACOB OTTMAN, Deceased, Defendants.

      Sales — acceptance of goods — when they are accepted under am, agents assurance to indemnify against defects.

    Jacob Ottman, by his confidential employee, Bonnier, made an executory contract to manufacture playing cards for one Callee, according to certain designs, and thereafter died. Substantially all the business was transacted by Bonnier. When the cards, the defects in which were apparent, were delivered CafEee objected that they did not comply with the contract. Bonnier pressed CafEee to accept the cards and sell them, and promised to make good any loss resulting from the defects therein, in accordance with which request CafEee received the cards and sold a quantity of them.
    Upon the trial of an action against Ottman’s executors to recover damages for a breach of contract the court, after evidence of the statements of Bonnier had been given, struck out the testimony.

      Held, that this was error.
    That Ottman was bound by the statements of Bonnier.
    That Callee had a right to show that his receipt .and acceptance of the cards were predicated upon the promises of Bonnier that he should not suffer loss by those acts.
    Exceptions of the plaintiff Alberto Ii. CafEee, directed to be beard in tbe first instance at General Term, tbe complaint having been dismissed after a trial at tbe New Tort Circuit before tbe court and a jury.

      I. I). Warren, for tbe plaintiff.

      A. O. Fox, for tbe defendants.
   Yan Brunt, P. J.:

Tin's action was brought' against an executor to recover damages for an alleged breach of an executory written contract, entered into by bis testator and tbe plaintiff to manufacture certain merchandise; tbe plaintiff alleging that tbe deceased failed to keep bis contract in every respect, and that be bad suffered damages to a large amount, for which he prayed judgment.

Tbe defense relied upon seems to have been that tbe plaintiff by receiving tbe cards, offering them for sale and selling large quantities of them, accepted them, and no cause for damages for the alleged defects, which were confessedly visible on inspection, survived the acceptance, and this seems to have been the ground on which the ruling of the court below was based.

It appears that all the conversations in reference to this contract were had with one Bonnier, an employee of the deceased, and it is claimed by the plaintiff that whatever receipt of the goods there might, in fact have been, resulted from an arrangement entered into between Bonnier, claiming to represent the deceased, and the plaintiff, which did not amount to an acceptance of the goods.

The evidence of what took place between Bonnier and the plaintiff was excluded, and hence the goods having been received and partially sold by the plaintiff, the court held that there had been an acceptance under the contract, and their palpable failure to comply with the contract formed no basis for this action.

We think this was error. The plaintiff had a right to show the facts and circumstances under which he received the goods in question. As already stated, all the conversations in reference to this contract were had with Bonnier. In fact, Bonnier was held out to plaintiff as the confidential employee of the defendant. It was to him that the plan upon which this merchandise was to be manufactured was divulged by the plaintiff, and it was according to such divulged plan that the contract was to proceed.

Upon the tender of the goods and the examination of the same the plaintiff declared to Bonnier that the goods did not come up to the contract, specifying the defects, and Bonnier replied that he didn’t know that they did not come up to the contract, but added “ Don’t hold us too closely to that; ” that he knew a party who would take them all off the plaintiff’s hands at once, and that he would sell every one of them for him and get another order for more cards. and that the plaintiff told him he would have nothing to do with it as it stood; and that Bonnier pressed the plaintiff because his name was printed upon the merchandise, and they could not sell it or offer the same for sale, and promised that they would make another lot for the plaintiff.

It was under these circumstances that the cards were accepted, as far as they were accepted and offered for sale, Bonnier stating that all their expenses they would see him paid, and whatever money was paid out they would see them paid back and return, besides, his profit. It is true that this latter testimony was stricken out. But it is to be considered upon the question as to whether the motion to dismiss was properly granted.

We think it was error to strike out testimony of this character. It is apparent from the evidence that Bonnier was the alter ego of the deceased, that he had charge of this business, and whatever representations he made to the plaintiff in order to get him to take possession of the goods was competent upon the question whether he had received them without objection so as to deprive him of his right to claim damages for the breach of lps contract.

It certainly would be establishing a harsh rule to hold, when an employee is presented to a contracting party with the apparent authority to take charge of a negotiation, and proceeds with it to the very end, that the principal, when he is sought to be charged with the acts of the employee, should be allowed to say “You must prove express authority from me for the employee to bind me.” In all departments of mercantile business employees occupying particular positions are presumed to have the authority to do all that is customarily done in those positions; and it is the application of this rule to the relations of Bonnier to the deceased that makes his declarations and acts evidence. If the defendant was alive, he could not testify to any transaction he had had with the plaintiff. He seems to have been by upon one or two conversations, but nothing was said to him or by him. The whole business was transacted by Bonnier by and with his authority, and such business was not terminated until the acceptance of these cards by the plaintiff. Any complaint which the plaintiff had to make in respect to the goods would be, under the circumstances, naturally made to Bonnier, as he was the only person with whom he had any dealing, and he naturally supposed, when he refused to receive these cards, any statements made to induce acceptance were made with authority.

We think, therefore, that the motion for a new trial should be granted, with costs to plaintiff to abide the final event.

O’Brien and Patterson, JJ., concurred.

Motion for a new trial granted, with costs to plaintiff to abide the final event.


author: Per Curiam :

text:
    RICHARD A. SPRINGS, as Receiver of the I. HERMAN MANUFACTURING COMPANY, Respondent, v. THE BOWERY NATIONAL BANK, Appellant.

      Corporations — proof necessai'y to show jurisdiction to appoint a receiver — -Laws of 1883, chap. 378, sec. 1.
    Tlie complaint in an action alleged that the plaintiff was appointed receiver of a corporation by an order of the Supreme Court, which order the answer alleged that the court had never acquired jurisdiction to make. Upon the trial the plaintiff put in evidence the order which had been duly filed.

      Held, that the proof was insufficient,
    That it was necessary to prove the commencement of the action in which the receiver was appointed, and that the court obtained jurisdiction of the corporation, in the manner provided in section 1 of chapter 378 of the Laws of 1883, the act conferring upon the Supreme Court authority to appoint receivers of domestic corporations.
    Appeal by the defendant, the Bowery National Bank, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 1st day of December, 1891, upon a recovery by the plaintiff, after a trial before the court without a jury at the New York Circuit.

      J. JR. Mtm'vin, for the appellant.

      W. W. Jenks, for the respondent.
   Per Curiam :

The complaint alleged that, by an order of the Supreme Court, made at a Special Term thereof, held on the 16th of December, 1890, before Justice George P. Andrews, the plaintiff was duly appointed receiver of the property and effects of the I. Herman Manufacturing Company. The defendant, in answering this allegation, alleged, on information and belief, that the court in which said action was brought never acquired jurisdiction of said corporation or liad power or jurisdiction to render or make any judgment or order therein, or to make the order appointing the receiver mentioned in. said complaint, and that said order and the judgment rendered in said action were without jurisdiction and void.

The plaintiff, to support tliis allegation of the complaint, put in evidence the order appointing the plaintiff receiver, made in the action of Walter Kenzie v. Herman Manufacturing Company, and filed December 16, 1890. We find no evidence of any action commenced in which this order was entered, or that the court by service of process ever acquired any jurisdiction over the corporation. And we think that, in the face of this denial of the answer, the order was not sufficient to prove the appointment of the plaintiff as receiver of the corporation.

By section 1 of chapter 378 of the Laws of 1883 authority is conferred upon the Supreme Court to appoint receivers of domestic corporations, and it is there provided that any order appointing a receiver, otherwise made, shall be void.” And it was necessary to prove the commencement of an action, and that the court obtained jurisdiction over the corporation as provided in that section of the statute before cited, to sustain the allegation that the plaintiff was duly appointed receiver.

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

Present — Yan Brunt, P. J., O’Brien and Ingraham, ,JJ.

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


author: Van Brunt, P. J.:

text:
    AMERICAN BANK-NOTE COMPANY, Respondent, v. THE METROPOLITAN ELEVATED RAILWAY COMPANY and Another, Appellants.

      JSlemted railways of New York city — no recovery against, in a real estate action, for damages to personal property — improper testimony — a former recovery against one of two defendants.

    In an action against the Metropolitan Elevated Railway Company of the city of New York and its lessee, to enjoin them from the further operation of their road unless they paid for easements in the street taken by them to the damage of the owner of the fee, a bank-note company, in which it appeared that the latter company needed for its business good light and air and freedom from dust, the bank-note company was allowed to recover for damages to its machinery, plates, paper and processes arising from interference with the light, and from deposits of cinders.

      Held, that, in an action of such a character, no damages to personal property could be recovered.
    That if any such damages could be recovered it must be in an action not relating solely to real property.
    That where improper testimony, in the form of the opinions of witnesses, had been admitted, the error was not cured by a finding that the trial court rejected all such testimony, except where the opinion was a matter of personal experience and knowledge.
    That it was impossible for the appellate court to determine from such a finding what testimony was deemed by the trial court to be a matter lying within the personal experience and knowledge of the expert.
    That the fact that the plaintiff had recovered against the lessee company for damages done to a portion of its building fronting on another street, was not a bar to the present action.
    Appeal by the defendants, the Metropolitan Elevated Railroad Company and the Manhattan Railway Company, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 2d day of September, 1890, in favor of the plaintiff for damages and costs, and granting a permanent injunction, unless within thirty days the defendants purchased plaintiff’s easements in certain real property for $40,000, which judgment was recovered after a trial at the New York Special Term before the court without a jury.

      E. G. James, for the appellants.

      W. 3. Peekham, for the respondent.
   Van Brunt, P. J.:

We think that this judgment must be reversed because of errors-in the admission of evidence, and also because of error in reference to an allowance for damages to personal property.

This action was brought to enjoin the operation of the elevated railroads, unless they should pay for easements which had been taken by them in the street in front of the plaintiff’s premises, and by which the said premises had been depreciated in value.

The plaintiff’s corporate business is that of bank-note engraving and printing, which business is one requiring good air and light, free from dust and other impurities of a like character. The plaintiff gave evidence tending to show the value of the machinery, fixed and unfixed, wliicli was contained in the part of tlie building covered by the suit in question, and of damages to machinery, plates, paper, processes, and business thereof, arising from interference with the light by the erection of the defendant’s structure, and also arising from the cinders coming from the engines used in operating the defendant’s road. The learned court gave judgment in this action for such damages to the personal property of the plaintiffs. This, we think, was error. No damages of this class can be recovered in an action, such as tfie one at bar, as incidental thereto. This action, as has already been stated, is to restrain the funning of the road unless they paid the value of the easements taken, which value is to be ascertained by determining the depreciation of the plaintiff’s premises caused by reason of the erection and ojieration of the road.

As incident to such an action, past damages in the shape of diminution in rental or usable value of the premises occasioned by this continuing trespass, have been allowed. But in no case has the court gone so far as to hold that damages to personal property might be recovered in an action of this description. The action in question is one relating entirely to the realty, and has no reference to any question as to personal property; and if any damages have been sustained by personal property, which the plaintiffs can recover against the defendants, it must be by an action of a different nature.

Error seems also to have been committed upon the part of the learned court in allowing evidence .of the opinion of witnesses in respect to the amount of damage done by the operation of defendant’s railroad. Yarious witnesses were allowed to give their estimates as to the annual damages arising from the various causes which were mentioned as interfering with the plaintiff’s business. The effect of the admission of such testimony seems to have been realized by the learned court in a finding which was to the effect that the testimony of plaintiff’s experts is disregarded and excluded as to all matters of opinion except where the opinion is a matter of personal experience and personal knowledge of the expert as shown by prior and later testimony.

But this finding by no means cured the error. It is impossible for the appellate court to determine how much of this objectionable testimony was considered by the court, and how much it considered to be matters of personal experience as shown by later and prior testimony, and how much was not so fortified. The only way in which evidence can be removed from the record is to strike it therefrom, so that the appellate court may know what is intended to be excluded, and not leave it entirely to inference.

The claim is made that a recovery by this plaintiff for damage to another portion of the building erected upon these premises by an elevated railroad running upon another street is a bar to a recovery in this action. ¥e do not think that any such claim can prevail. These roads were erected by different corporations, and although one of the defendants, the Manhattan Company, has become the lessee of both roads, and is a defendant in both actions, yet the ultimate rights of the parties are different. Notwithstanding the lease, their ulterior remedies, if they should fail in obtaining satisfaction from the Manhattan Company, would be against each of the other companies separately; and in respect thereto they would have no community of interest, and it would have been improper to have joined them in the same action.

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

O’Brien and Patterson, JJ., concurred.

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


author: Per Curiam:

text:
    HORACE C. SYLVESTER and Others, Respondents, v. JOHN F. CROHAN and Another, Appellants.

      Bills and notes — the half-holiday law — when a sight draft may he presented for payment — what is a domestic bill of exchange — Laws of 1887, chap. 289, sec. 1.
    The firm of Crohan & Dooner, of Savannah, Ga., in July, 1891, drew a sight draft on Abraham Backer of New York city, to the order of Sylvester Bell & Co., also of New York city, which the latter firm received on Friday, July 81, 1891, and deposited at once in bank. On Saturday the bank presented it to Backer, between ten and half-past ten in the morning. He requested that it be presented again on Monda3^. This was done, payment was refused and the draft was protested.

      Held, that under section. 1 of chapter 289 of the Laws of 1887, relative to the effect upon commercial paper of the half-holiday law, the demand of the drawer and protest were properly made on Monday.
    That as the draft was payable in New York, and drawn in favor of a resident of that State, it was a New York draft and was governed by its laws.
    Appeal by the defendants, John F. Crohan and "William II. Dooner, Jr., from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the éth day of January, 1892, upon a decision in favor of the plaintiffs after a trial before the court without a jury at the New York Circuit.
    The action was brought to recover the amount due upon a draft which had been forwarded by the defendants to pay their note held by the plaintiffs, Sylvester Bell & Co.

      Goldsmith & Doherty, for the appellants.

      John O. Green, for the respondents.
   Per Curiam:

This action was brought to recover on a sight draft made by the defendants to the order of the plaintiffs, and drawn upon one Abraham Backer. The defense was that the payment of the draft was lost by the laches of the plaintiffs, and thereby the defend" ants became discharged from liability thereon. The draft being drawn in favor of a resident here and made payable here, the rights of the parties are to be governed by the laws of this State. In determining them resort must be had to the construction to be given to the statutes of the State with reference to the time within which a draft may be presented for payment, and if refused thereafter protested.

The court found that the plaintiff received said-draft through the mails on Friday, July 31, 1891, at eleven o’clock in the forenoon and without presenting it to the drawee, Abraham Backer, on the same day and hour deposited it to their credit in the Importers and Traders’ National Bank of New York; that a messenger of said bank presented said draft to said Abraham Backer for payment on Saturday, August 1, 1891, between ten and half-past ten o’clock in the forenoon, and was directed to leave notice and present again on Monday; and that said draft wras presented for payment to said drawee on Monday, August 3, 1891, and payment thereof was then demanded and refused, whereupon said draft was then and there protested for non-payment, and on the same day the usual notice of protest was mailed to defendants at Savannah, Georgia.

By section 1 of chapter 289 of the Law's of 1887, every Saturday, from twelve o’clock at noon until twelve o’clock at midnight, is designated a half holiday; and for all purposes whatever, as regards the presenting for payment or acceptance and protesting and giving-notice of the dishonor of bills of exchange, bank checks and promissory notes, might after the passage of the act be treated and considered as the first day of the week, commonly called Sunday, and as public holidays or half-holidays; and all such bills, checks or notes, otherwise presentable for acceptance or payment on any of said days shall be deemed to be payable, or to be presentable for acceptance or payment on the secular or business day next succeeding- such holiday; but in case of a half-holiday, shall be presentable for acceptance or payment at or before twelve o’clock, noon, of that day. Provided, however, that for the purpose of protesting, or otherwise holding liable any party to any bill of exchange, check or promissory note which shall not have been paid before twelve o’clock, noon, on any such half-holiday, the demand of acceptance or payment thereof may be made and notice of protest or dishonor thereof may be given on the next succeeding secular day.

We think that this case falls within these provisions. The plaintiff was bound to present the note for payment on the day succeeding the day on which it was received. It was presented for payment on Saturday and not paid, and by the provisions of the statute the plaintiff had until the next succeeding secular or business day upon which to present a formal demand and protest, and give notice thereof to the drawer; and this provision having been complied with, we think the drawer was properly held.

The judgment should, therefore, be affirmed, with costs.

Present — Van Brunt, P. J., O’Brien and Ingraham, JJ.

Judgment affirmed, with costs.


author: Pee Cueiam :

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. HORACE M. LOWER, Respondent, v. TIMOTHY J. DONOVAN, Inspector of Election, Appellant, Impleaded with Others, Defendants.

      Mandamus — election laws — construction of chapter 130 of the Laws of 1842 — rule as to a mandamus in the first dist/riat — sealing a writ on a general election day — Laws of 1842, chap. 130, secs. 4, 5.
    Upon tlie general election day in November, 1891, a justice of tlie Supreme Court, upon the application of an elector, granted an order requiring the inspectors of a New York city election district to show cause'before him, “ at a Special Term * * * to be held at chambers, in the County Court House,” why a peremptory writ of mandamus should not issue commanding the inspectors to allow the elector to vote. The order was served, and upon the return thereof a peremptory writ, having the usual seal and attestation, was issued. This was disregarded.
    Upon an appeal from an order punishing the inspectors for contempt:

      IMd, that section 4 of chapter 130 of the Laws of 1842, providing that no civil process shall be served upon an elector entitled to vote, on the day on which the election shall be had, did not apply, the writ in this case being intended only for the protection of the elector.
    That section 5 of said act, providing that no court shall be open or transact any business in any city or town upon such an election day, had no application to the power of a judge to act.
    That, under section 770 of the Code of Civil Procedure, in the first judicial district, an application for a mandamus being a motion, and the issuance of the writ being an order, may properly be made to and by a judge out of court, and need not be made at Special Term.
    That this procedure was not changed by section 2068 of the Code of Civil Procedure. That the words “ at a Special Term ” were surplusage, and that the intention of the judge clearly was to have the order to show cause returnable at chambers. That the writ was not void, because it was sealed upon a day when it was provided by law that the county clerk’s office should be closed.
    That where a judge had power to issue a writ which required the seal of a particular officer, he had also power to make the writ effectual by having it properly sealed and attested by the clerk.
    Appeal by the defendant Timothy J. Donovan, who was chairman of the board of inspectors of election in the seventh election district of thé second assembly district, in the city of New York, at the election of November, 1891, from an order, entered in the office of the clerk of the county of New York on the 24th day of December, 1891, adjudging him to be guilty of contempt and ordering that he be punished by fine and imprisonment.
   Pee Cueiam :

At the election on the 3d day of November, 1891, the appellant was the chairman of the inspectors of election in the seventh election district of the second assembly district. On that day an order to show cause was granted by a justice of this court, returnable at a later hour of that day, why a peremptory writ of mandamus should not issue commanding the inspectors to allow the relator to vote. This order was served, and upon the return, the appellant not appearing, a peremptory writ was granted. Notwithstanding the service of the peremptory writ, the appellant subsequently refused to permit the relator to vote, and he relies on this appeal upon several grounds in justification of his willful disobedience of the order referred to.

The question now before the court is, not as to whether, if contested, the writ of ma/ndamus would or would not have been granted. The writ was granted, allowed by the justice, signed by him and by the county cleric, duly served and willfully disobeyed.

There is, therefore, but one question which needs our consideration, and that is, whether the writ itself is void. And to show this the appellant relies upon two grounds:

First. The statute which provides that no civil process, or proceeding in the nature of civil process, shall be served on an elector entitled to vote in any city or town on the day on which such election shall be had. (Chap. 130, Laws of 1842, title 1; Banks’ R. S. [6th ed.], vol. 1, p. 427.)

Second. Section 5 of the same statute, which provides that no court shall be opened or transact any business in any city or town on the day on which such election shall be held therein, unless it be for the purpose of receiving a verdict or discharging a jury. * * * But this section shall not prevent the exercise of jurisdiction of any magistrate when it shall be necessary in criminal cases to preserve the peace or to arrest offenders.

In reference to the first section (§ 4, supra), it need only be said that that does not apply to a process or proceeding directed against a board, or a chairman thereof, having public duties to perform, such as was the position occupied by the appellant in the case at bar, but was intended to preserve the rights of an elector, and is expressly referred to as such in the title, section 4 being “Privileges of Electors.”

As to section 5, under which it is insisted by the appellant that there is no power in the court or a justice of the Sujireme Court to grant or issue a mandamus on any day on which a general election is held in this State. The answer to that proposition is, that section 5 does not affect the power of a judge at all. It merely prescribes that no court shall be opened or transact business in any city or town on the day of such election, unless for the purpose of receiving a verdict, etc. It merely relates to the sessions of courts, and to the organization of courts on election day, and does not interfere with the power of judges to grant remedies that they have the right to grant irrespective of that statute.

By express provision of the Code (§ 770), in the first judicial district, a motion, which elsewhere must be made in court, may be made to a judge out of court, except for a new trial on the merits. Section 768 defines what a motion is, viz.: An application for an order is a motion. Section 767 defines what an order is, viz.: A direction of a court or judge made, as prescribed in this act, in an action or special proceeding, unless it is a judgment, is an order.

Therefore, the application for a mcmdamus is a motion, and the issuing of the mandamus is an order under the definition of the Code.

But it may be said that section 2068 takes the application for a mandamus out of the general provision of section 770 before referred to, which is, that, except where sjjecial provision is otherwise made in this article, a writ of mandamus can be granted only at a Special Term of the court. The exception in regard to the special provision, it is to be observed, is an exception in favor of an application to the General Term under certain given circumstances. Therefore, it is apparent that anywhere, except in the first judicial district, an application for a mandamus must be made at a Special Term. But it is clear that it was not the intention of the legislature to restrict or to vary the practice in reference to applications which may be made out of court in the first judicial district, and in this particular instance to restrict the power of the judge. It was the policy of the legislature to give the judges in the first judicial district all the powers of a court without the formality of being in court. Hence the provision that a motion, which elsewhere must be made in court, may be entertained by a judge out of court in the first judicial district. It seems, therefore, to follow that the provisions of the statute respecting the holding of courts have no application to an order which maybe made by a judge in the first judicial district out of court.

It may be said, however, that the order to show cause, which was issued and which formed the foundation for the allowance of the mandamus, was made returnable at a Special Term of the court.

The language of the order required the respondent to “show cause before me, at a Special Term thereof to be held at Chambers at the County Court House.” It is apparent that the use of the words “ Special Term ” was surplusage, for the reason that the order is returnable before the magistrate or judge who granted the order, and before him individually. It was evidently not intended to be made before the court, because the court is the same whether held by one judge or another. Therefore, the order to show cause was returnable before the judge, and the mandamus was issued by the judge, and the prohibition heretofore spoken of clearly does not apply.

It is, however, insisted that the writ is void because the county clerk had- no authority to seal the writ, it being provided that the county clerk’s office shall be closed on that day. This is true as to ordinary business to be done in the office of the county clerk; but where a judge has the power to issue a writ which requires the seal of a particular officer, he certainly has the power to make it ■effectual by procuring it to be properly sealed and attested by the clerk. It is to be observed that nothing is said in regard to the county clerk not acting as clerk, but simply that the county clerk’s office shall be closed.

Having examined the questions presented, we find no reason for disturbing the conclusion reached by the judge below, and the order should, therefore, be affirmed, with ten dollars costs and disbursements.

Present — Van Brunt, P. X, O’Brien and Patterson, XT.

Order affirmed, with ten dollars-costs and disbursements.


author: Patterson, J.:

text:
    MARY A. DICKINSON, Respondent, v. ALBERT E. DICKINSON, Appellant.

      Divorce — as towhat jurisdictional fact, put in issue by the answer, the plaintiff can~ not testify ■ — • Code of Oivil Procedure, sees. 831, 1756, sub. 3.
    In an action for a divorce upon tlie ground of adultery brought by a wife against lier husband, it became necessary, under section 1756, subdivision 3 of the Code of Civil Procedure, for the plaintiff to allege and to prove that she was a resident of this State when the offense was committed by the husband, and also when the action was brought, as these jurisdictional allegations as to residence were put in issue by the answer.
    Upon the trial the plaintiff was allowed to prove her residence under both branches of the question.

      Held, that this was improper.
    That where jurisdictional facts are put in issue the plaintiff can testify only to the fact of marriage and to disprove a charge of adultery against herself.
    Appeal by the defendant Albert E. Dickinson from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 30th day of April, 1891, granting the .plaintiff a judgment of absolute divorce after a trial before the court at the New York Special Term.

      Stimson c& Williams, for the appellant.

      Stoclclcvrt c& Hart, for the respondent.
   Patterson, J.:

This judgment must be reversed for error in the admission of testimony. The action was for divorce, the plaintiff suing on an allegation of adultery on the part of the defendant. It appeared in evidence that the defendant had procured a decree of divorce against the plaintiff in Illinois. After procuring the decree referred to, the defendant married again, and the adultery charged is his cohabitation with the woman to whom he claims to have been so married. The present plaintiff, basing her action upon that alleged adultery, was called as a witness on her own behalf. She had set up in her complaint the jurisdictional facts required in actions of this character. She averred that the plaintiff and defendant had been actual inhabitants of the State of New York, and that “this plaintiff for eight years last past has been, and now is, an actual inhabitant of the city, county and State of New York.” The action was commenced in June, 1889. The adultery charged is alleged to have been committed at various times since the 15th day of August, 1887. The answer denies the residence of the plaintiff and puts it in issue, both as to the time of the alleged commission of the acts of adultery charged upon the defendant, and at the time of the institution of this action. The plaintiff was allowed to testify, under objection and exception, as to her residence in both aspects in which that subject became material on the trial.

" The qualifications of a husband or wife to bring an action for divorce in this State, and the grounds upon which a decree may be pronounced, are matters of positive legislation. That was expressly decided in Erkenbrach v. Erkenbrach (96 N. Y., 456). As to the right to sue, it is regulated by the Code of Civil Procedure. "When, as in the present case, there is sought a divorce a vvnoulo, on the ground of adultery, it is provided by section 1756 of that Code that the plaintiff, when the parties were not both residents of the State when the offense was committed, and where they were not married in this State, and the offense was not committed in this jurisdiction while the injured party was a resident therein (and such is this case), the plaintiff must have been a resident of this State when the offense was committed and also when the action was brought. As lying at the very foundation of the suit, therefore, it was necessary to establish two jurisdictional facts, and they were distinctly put in issue. The general averment of the complaint that the plaintiff had resided in the State of New York for eight years before the commencement of her present action, covers both requirements as a matter of pleading, but when the record is critically examined we cannot find any sufficient proof of that allegation aside from the plaintiff’s own testimony. There were three other witnesses called on that subject, viz., Albert S. Dickinson, Henry P. Huling and Mary Hoberts, but it is quite clear that their testimony is utterly inconclusive on the subject; and if there had been no other testimony than theirs it would not have been an erroneous finding of fact had the learned judge determined that when the acts of adultery complained of were committed the plaintiff resided in New Jersey, and not in New York.

The only real testimony as to residence at the time last referred to is that of the plaintiff herself; and it seems too plain for argument that under section 831 of the Code of Civil Procedure she was incompetent to testify to anything involved in her right to a. decree, except as to marriage and to disprove any charge of adultery against herself. Jurisdictional facts must be proven as well as-merits when they are put in issue, and there was clear error in allowing the plaintiff to testify as to those facts. The inhibition of the statute applied, and we cannot say that it was not that very testimony which induced the learned judge at the Special Term to-find that the plaintiff had that legal status, which was a prerequisité to her maintaining her action in the courts of this State. She had formerly brought a suit in New Jersey for the same relief, and on the same state of facts, and on the testimony there adduced it was-decided that she was not a resident of that State, but of New Tort. She had sworn in that suit that she lived in New Jersey, and not in New Tort, when the alleged acts of adultery were committed by the defendant. Precisely in what aspect of the proof in the Court of Chancery in New Jersey that conclusion was reached we do not know. It may have been a question of credibility, but that the court in that State found she did not reside there is no reason why, on this record, we should find that she did reside here. On the state of the proof, and in view of the plaintiff being allowed to testify to her residence as she did, we think the judgment should be reversed and a new trial ordered, with costs to abide the event.

Van Brunt, P. J., and O’Brien, J., concurred.

Judgment reversed and new trial ordered, with costs to abide the event.


author: Yan Brunt, P. J. :

text:
    CHARLES E. GARDNER, Respondent, v. THE C. B. KEOGH MANUFACTURING COMPANY, Appellant, Impleaded with Others, Defendants.

      Fraudulent conveyances — transfers of corporate stock — when the transferees are not necessary pa/t'ties — rights of stockholders.

    A judgment-creditor of tlie individual members of afirm brought an action against the members of the firm, and against a corporation to which the firm had transferred its property, to set aside the transfer, the complaint alleging that the transfer was made to defraud the firm creditors, and that, to that end, the .individual defendants had sold and delivered a large amount of the stock of the corporation at an inadequate price to persons who were not bona fide creditors of the firm, and whose claims were much less in amount than the value of the stock transferred to them.
    A demurrer was interposed to the complaint upon the ground of a defect of parties. Held, that the persons to whom the stock of the corporation was transferred were not necessary or proper parties to the action.
    That the object of the action was not to reach the stock in their hands, but the firm property.
    That stockholders, as such, do not own the property of a corporation.
    That the allegation was only made to show the fraudulent acts of the individual defendants, and was probably unnecessary.
    Appeal by the defendant, the O. B. Keogh Manufacturing Company, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 1st day of June, 1891, overruling a demurrer to the complaint, and from an order, dated on the 27th day of May, 1891, upon which order the judgment was entered.

      E. J. Myers, for the appellant.

      E. Kent, for the respondent.
   Yan Brunt, P. J. :

This action was brought by a judgment-creditor of the individual defendants composing the firm of C. B. Keogh & Co., against such individual defendants and the O. B. Keogh Manufacturing Company, to set aside as fraudulent a transfer or conveyance of certain property belonging to said firm made by said firm to the defendant the C. B. Keogh Manufacturing Company. The defendant corporation interposed a demurrer upon the ground that it appeared upon the face of the complaint that there was a defect of }iarties defendant.

The complaint alleges, among other things, that the property in question was transferred to the corporation, and was accepted by the corporation with intent to hinder, delay and defraud the just creditors of the firm of C. B. Keogh & Co.

It then further alleges that the individual defendants, in pursuance of the scheme or plan aforesaid, transferred and delivered a large amount of the capital stock in said corporation to divers persons who were not, and are not, Iona fide creditors of said firm, and whose claims and demands against said firm .were much less in amount than the value of said stock so delivered; and that said transfer or delivery were made in pursuance of said scheme and with intent to hinder, delay and defraud said creditors, and particularly the plaintiff. It is urged that because of this allegation the persons to whom this stock was delivered are necessary parties to this action because it is claimed their holdings are assailed as being fraudulent.

If this were true, and if the plaintiffs were desirous of reaching the stock in question, the claim would be well founded. But it appears upon an inspection of the complaint that the plaintiff is not at all interested in or desirous of securing any part of the stock of the defendant company; and that all that this allegation was intended to aver was fraudulent practices upon the part of the individual defendants in connection with their dealings with the corporation. The allegation in question was probably entirely Unnecessai-y. All that the plaintiff seeks to recover is property the ostensible title to which is in the defendant corporation; and he alleges a fraudulent scheme between the individual defendants and the corporation, and then, for the further purpose of characterizing the fraudulent character of the action of the individual defendants, he alleges that they transferred the stock they received from the corporation to persons without an adequate consideration.

All the relief demanded is in respect to the property transferred by the individual defendants to the corporation. Stockholders, as such, do not own the property of a corporation, and are not necessary parties in an action brought to affect the title to property held by the corporation. Hence the stockholders were not necessary parties to the action, nor was the allegation contained in the complaint necessary in order that proof of fraudulent acts upon the part of the defendants might be offered.

¥e are of opinion, therefore, that the demurrer was rightly overruled and the judgment should be affirmed, with costs, with leave, however, to the defendant to answer on paying the costs of the demurrer upon this appeal and the costs of the court below, within twenty days after entry of order hereon.

O’Brien and Patterson, JJ., concurred.

Judgment affirmed, with costs, with leave to the defendant to answer on paying the costs of the demurrer upon this appeal and the costs of the court below, within twenty days after entry of order hereon.


text:
    JOHN E. BLACKMAN, Appellant, v. CHARLES RILEY, Respondent.

      Deeds — proof of execution in 1759.
    A deed, executed in 1759, which was not acknowledged hy the grantor or proved hy the subscribing witnesses, had attached to it an affidavit of the scrivener that he saw the grantor execute the deed, and that he saw the witnesses sign it in the presence of the grantor. This affidavit was taken before one Smith, described as one of his majesty’s counsel for the Province of New York. There was a further certificate by Smith that the affiant had made the affidavit before him that he had examined the deed and allowed it to be recorded and take effect as the law required.

      Held, that the proof of the execution of the deed was insufficient to allow it to be recorded or to be read in evidence.
    The requisites in 1759 of a sufficient proof of the execution of a deed, stated.
    Appeal by the plaintiff, John E. Blackman, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 2d day of September, 1891, dismissing the complaint upon the merits, with costs, after a trial before a referee.

      E. Haldane, for the appellant.

      H. H. Anderson, for the respondent.
   Yan Brunt, P. J.:

This action was brought to recover possession of a parcel of land on the north-east corner of Fifty-third street and Broadway, in the city of New York. It was, prior to 1869, in the Bloomingdale road, which was discontinued and closed as a street by proceedings taken in that year; and shortly thereafter one Adolph Rusch, through whom the defendant claims title, went into possession of the same, it abutting upon land belonging to him, and the said Rusch and his grantees have ever since remained in possession of the same, and the defendant is now in such possession. The plaintiffs claim of title to the premises in question depends upon an alleged deed dated the 23d of April, 1759, executed by Cornelius Cosine to his son, Cornelius Cosine, Jr., and Balin Johnson Cosine. This deed was attempted to be proved by the production of a record from the office of the register of the county of New York, and also by a certified copy of such record.

It appears from the records of conveyances in said register’s office, and from a certified copy from such records, that on the 10th of December, 1761, in Liber 30 of Conveyances, there was recorded a paper which purported to have been executed by said Cornelius Cosine. This instrument purported to have been signed, sealed and delivered in the presence of two subscribing witnesses, and the only proof of its execution was an affidavit attached thereto as follows:

“City ok New York, ss.:
“.Thomas Clement, of the city of New York, scrivener, maketh oath that he wrote the within instrument as a clerk, and was present and saw the within-named Cornelius Cosine, Senr., sign, seal and deliver the within instrument as his act and deed for the uses therein mentioned; and that he saw at the same time the within-named Nathaniel Holmes and Henry Green sign their names as witnesses thereto in the presence of the said Cornelius Cosine, and also of this deponent, and further this deponent saith not.
“ THOS. CLEMENT.
“ Sworn the 9th day of Decern-) her, 1761, before me, J
“ Ym. Smith.”

Tlien follows a certificate, signed by said Smith, as follows.:

“ Be it remembered that on the ninth day of December, in the year of our Lord one thousand seven hundred and sixty-one, personally appeared before me William Smith, Esq., one of his Majesty’s Council for the Province of New York, the above-named Thomas Clement, of the city of New York, scrivener, and made the affidavit above mentioned, and I having perused the within written instrument, and finding therein no erasures or interlineations, do allow the same to be recorded and to take effect as the law requires.
“WM. SMITH.”

The referee excluded this record upon the gi’ound that the deed of which it purported to be a copy had never been executed so as to entitle it to be recorded, and such record to be admitted in evidence.

The only statute which appears to have been in existence in respect to the effect of the record of deeds, conveyances and writings relating to the title or property in lands at the time of the date and record of the alleged deed in question, seems to be section é of an act passed by the governor, council and assembly of the Colony óf New York on the 30th of October, 1710, which section reads'as follows: “ That all and every deed or deeds, conveyance or convey- ■ anees and writings relating to the title or property of any lands, messuages, tenements or hereditaments within this colony which have been already or shall be hereafter executed, being duly acknowledged and recorded in the secretary’s office of the said colony or in the county records where such lands are situate and being; such deed or writing so recorded or transcript thereof, shall be good and effectual evidence in any court of record within this colony to all intents and purposes as if the original deed or deeds, conveyance or conveyances and writings was or were produced and proved in court.”

The language of this section seems to refer entirely to instruments whose execution had been directly acknowledged by the grantor; but it would appear that by judicial extension the section was made to apply to conveyances yhich had been duly recorded, whether their execution by the grantors had been proved or acknowledged. (Hunt v. Johnson, 19 N. Y., 279; Van Cortlandt v. Tozer, 17 Wend., 338.)

The question then raised is as to how, at the time of the alleged execution of this instrument, a deed could be proved so as to entitle it to record. It has been stated in the case of Doe v. Roe(1 Johns. Cas., 402), although, the question was not properly up for adjudication, that a certified copy of this alleged record was neither a record nor a copy of a deed. It is urged, upon the part of-the appellant, that this adjudication, however, cannot prevail in consequence of what subsequently transpired in the litigations between the parties upon the question of the title to this property.

But we think that a decision of the question involved need not be based upon any such authority, as the fact that the execution of conveyances could only be established by acknowledgment of the grantors or proof made by one of the subscribing witnesses before certain officers, seems to be recognized by legislation and decision. On the 16th of February, 1771, an act was passed to confirm certain ancient conveyances, and directing the manner of proving deeds to be recorded. It must be borne in mind that up to this time there had been' no legislation, except the act above referred to of 1710, giving any effect to the record of a deed. The act of 1771 commenced with the following preamble:

“ Whereas, it has been an ancient practice in this colony to record deeds concerning real estates, upon the previous acknowledgment of the grantors or proof made by one of the subscribing witnesses of the execution of the instruments before a member of his Majesty’s Council, a Judge of the Supreme or County Court, or a Master in Chancery, and sometimes before a Justice of the Peace, * * the purchasers whereof, and those holding under them, ought to be secured, both in law and equity, against the respective grantors, their heirs and assigns.”

And the fourth section of the act reads as follows: “ That no conveyance of lands, executed after the publication hereof, shall be recorded in any of the public offices, unless the same be duly acknowledged by the grantor, or proved by one of the subscribing witnesses; and if the grantor and witnesses be dead, without proof of the handwriting of the grantor or grantors, or one of the witnesses, before one of his Majesty’s Council, a Judge of the Supreme Court, a Master in Chancery, or one of the judges of the inferior court, other than Mayor’s Courts, for the county where the lands granted • lay, who are hereby declared to have lawful authority to take the same in the manner which hath been anciently and constantly used; a certificate of which acknowledgment or proof is to be indorsed on the deed of conveyance.”

It will be seen, upon a consideration of this preamble, that the only ancient practice in the colony referred to was that of recording deeds upon the previous acknowledgment of the grantors, or proof made by one of the subscribing witnesses to the execution of the instrument before certain officers, and that in the opinion of the legislative body it would seem there was no legislative authority up to this time, even for the record of such instruments, undoubtedly referring to those which were proved and not directly acknowledged, because the stated purpose of the legislation was to secure persons holding under such deeds against any claim which the grantors under such deeds, or their heirs or assigns, might make.

This view is reinforced by the observations of the chancellor in Van, Cortlandt v. Tozer (20 Wend., 428), in which he remarked as follows: Although the act of 1110 speaks only of deeds duly acknowledged, the recital in the act of 1111 shows that the practical construction of the former act had been to allow deeds to be recorded which had been duly proved by a subscribing witness as well as those which had been actually acknowledged by the grantor in person.

It certainly could not have been the practice to permit deeds of real estate to be offered in evidence upon slighter proof than obtained in respect to other sealed instruments, and the rule in respect to the necessity of the production of the subscribing witness, where there was one to a sealed instrument, in order that it might be received in evidence, is spoken of in decisions made as early as 1808 as a long settled and familiar rule.

In the case of Fox v. Reil (3 Johns., 477) it was held in 1808 that where there is a subscribing witness to a bond, proof of confession by the obligor is not sufficient, but the witness must be produced, or in case he is dead or out of the State, his handwriting must be proved, Chief Justice Kent stating the rule to be as follows: “ Here we are certainly concluded by an ancient and uniform rule, that when the defendant has not acknowledged his deed before a competent public officer, or has not expressly agreed to admit it in evidence upon the trial, but has put himself upon his plea of non est factum, the plaintiff must produce the subscribing witness and give the defendant the benefit of an investigation of the circumstances attending the execution of the deed.”

The same rule was applied in the case of Henry v. Bishop (2 Wend., 576), where it was attempted to prove the execution of a sealed instrument by the testimony of a person who was present at the execution of the paper, and saw the other witness sign it, but did not subscribe his own name as a witness until the case had been called for trial.

It is true that this decision was made as late as the year 1827, but still it recognizes the rule which was stated by Chief Justice Kent in 1808 to' have long prevailed.

It cannot be that a record of an instrument can be admitted in evidence where the execution of the instrument upon the face of the record appears to have been proved in a manner, which, if the original instrument had been produced, would have excluded it from evidence. And the fact that this was the method in which the execution of sealed instruments could be proved is recognized by the act of February 26, 1788 (chap. 44), which is as follows:

“All and every deed and deeds, conveyance and conveyances and writings whatsoever relating to the title or property of any messuages, lands, tenements or hereditaments within this State heretofore executed, or hereafter to be executed, being duly acknowledged by the party or parties executing the same, or duly proved by one or more of the subscribing witnesses to the execution thereof, and recorded * * * in the office of the clerk of the county in which such lands are situated, shall and may be read as evidence in any court in this State, without further or other proof of the execution thereof, and the record thereof, or a transcript of the same, shall and may be given and received in evidence.”

On the 29th of January, 1811, an act (chap. 1) was passed, the first section of which is in the following words : “ The record of any conveyance relating to any lands or tenements within this State, executed previous to the 4th of July, in the year 1776, and acknowledged or proven according to law, and recorded in the office of the clerk of any of the counties within the late Colony of New York, or a sworn copy of such record, shall be evidence in any court of law or equity in the same manner as the original conveyance would be if produced and proven.” This language was substantially incorporated in the revision of the laws of the State of New York, made in 1813 (chap. 97, § 6). “A copy of such record, certified by any such clerk ” being substituted for the words “A sworn copy of such record.”

It is suggested by the learned counsel for the appellant that the change of language in the act of 1813 from that contained in the statute of 1788 was unnecessary, if the act of 1813 only authorizes proof by subscribing witnesses. But it will be observed that the act of 1811, which was incorporated in the act of 1813, was passed for an entirely different purpose than that suggested. It was for the purpose of validating the record of deeds of lands which had not been recorded in the office of the clerk of the county in which such lands were situated; which seems to have been a practice which had grown up, and which was not distinctly recognized by any of the statutes theretofore passed.

But even if this were not so, the legislation cannot be held to have authorized the introduction in evidence of the record of instruments, which, if the instruments themselves had been produced, proven in the manner specified in the record, they could not have been offered in evidence. The language of - the statute is, “proven according to law,” and the most liberal interpretation of this language could only extend it to the case of instruments which had been proven according to a usage which, by its long continuance, had obtained the sanctity of law.

None of the cases cited by the learned counsel for the appellant seem to militate against the views hereinbefore expressed. In the case of Jackson ex. dem. Hardenberg v. Schoonmaker (2 Johns. Rep., 230), decided in 1807, the validity of the deed was established by an acknowledgment before a proper officer by one of the grantors, all of whom were trustees, and he the only survivor.

In the case of Jackson ex dem. Woodruff v. Gilchrist (15 Johns., 89), the deed was duly acknowledged, but the grantor being a feme covert, it was claimed to be void because the certificate did not contain a statement that a private examination of the wife had been made; and it was held in favor of a party who had been long in possession, that as at the time the acknowledgment was taken, there was no act requiring the fact of this private examination to be stated in the certificate of acknowledgment, it might be presumed to have been made after such a lapse of time.

Attention is called to the language of the chancellor in the case of Van Cortlandt v. Toser (20 end., 428). But it will be observed that that language was used in respect to a deed which had been proved by a subscribing witness, and thus, under the ordinary rules of evidence, entitled to be received.

Our attention has been called to no adjudication in respect to the admission of copies of the records of deeds which can form any basis for the receipt in evidence of the record in question. The discussion has chiefly arisen upon the question whether, prior to certain dates, the records of deeds proven by subscribing witnesses could be received in evidence; and throughout the discussion it seems to have been conceded that the rule was imperative that a deed or instrument under seal to be received in evidence must be acknowledged by at least one of the parties to the instrument, the others being dead, or proven by a subscribing witness. And in more than one case has it been held that the evidence of a party who claims to have been standing by, at the time of the execution of the instrument, was not sufficient to prove the same without proof of the death of, or inability to procure, the subscribing witness.

It seems to us, therefore, upon an examination of the statutes and decisions interpreting the practice and usages existing at the time of the execution of the deed in question, although such practice was exceedingly loose and varied, that the title of a party in possession should never be disturbed by the introduction of the record of an instrument which has not been proved in the manner apparently recognized by the practice prevailing at the time of its execution.

The judgment should be affirmed, with costs.

Patterson, J., concurred; O’Brien, J., concurred in the result.

Judgment affirmed, with costs.