author: Brown, P. J.: Pratt, J.

text:
    Jane Weir, Respondent, v. Ætna Insurance Company, Appellant.
    Kridence— claim of loss under a■ fire insurance policy — defense of frarncl — a preponderance of evidence sxvfficieni.

    Upon the trial of an notion brought to recover the damages resulting from a loss by fire under a policy of insurance issued by the defendant upon the plaintiff's stock and fixtures, the answer alleged, among other things, that the fire which caused the loss originated through the act, design or procurement of the plaintiff, and evidence was offered which tended to show that such was, the fact. The court declined to charge the jury, as requested by defendant’s counsel, that in order to sustain the defense the insurance company was not required to prove the commission of the. offense beyond all reasonable doubt, as would be required in a criminal proceeding, but that it was the duty of the jury to find for the party in whose favor the evidence preponderated.
    Previous to the making of this request the court had charged the jury generally, that if the plaintiff had been guilt}' of any fraud whatever in regard to her claim of loss under the policy, or had set fire to the property, or incited or permitted another to do it, she could not recover, but the jury was not instructed as to the burden of proof nor as to the kind of testimony which it was essential for the defendant to produce in order to establish the defense.

      Held, that the defendant was entitled to have the jury instructed on the point presented by the request, and that the refusal of the court to charge as requested was erroneous.
    Pratt, J., dissenting.
    Appeal by the defendant, the ./Etna Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 6th day of March, 1895, upon the verdict of a jury rendered after a trial at the Westchester Circuit, and also from an order entered in said clerk’s office on the 7th day of March, 1895, denying the defendant’s motion for a new trial made upon the minutes.

      JBenno Loawy, for the appellant.

      C. H. c& J. A. Young do Terry, for the respondent.
   Brown, P. J.:

This action was brought to recover upon a policy of lire insurance issued by the defendant upon the plaintiff’s stock and fixtures in a store occupied by her at New Rochelle. Among other defenses the answer alleged that the fire which caused the loss originated through the act, design or procurement of the plaintiff, and the evidence offered to establish this defense was sufficient to have permitted the jury to find that the lire was the result of the act or procurement of the plaintiff.

The defendant’s counsel requested the court to charge the jury that to sustain the defense of willful burning, the company was not required to prove commission of the offense beyond all reasonable doubt, as required in a criminal proceeding, but that it was the duty of the jury to find for the party in whose favor the evidence preponderated. This request was refused, and the defendant took an exception.

Prior to the making of the request, the court had charged the jury as follows:

“ And I say to you, gentlemen, that if, under the evidence in this case, you are satisfied that this woman has made a false claim, has been gnilty of fraud, lias exaggerated her claim, lias sworn falsely as to the value of the property, she cannot recover.

“ Now, she must not set fire to this property herself, even though it was full of goods, and there was no other, fraud about it. You see at once that there could be no living in a society where a person assured could set fire to the property and then go to the insurance company and get money for it. That would not do. But it is provided in the policy that any fraud vitiates it; and I say to you that it is a fraud of the most extensive, far-reaching description for a woman to set fire to her own property. If this plaintiff set fire to-this property, if she incited or permitted another to do it, beyond her immediate knowledge, she cannot recover one cent, no matter what her injury was.”

The request correctly stated the law (People v. Briggs, 114 N. Y. 56), and as the jury, had not been instructed as to the burden of proof, nor as to the quality and degree of testimony which it was-essential for the defendant to produce in order to establish the defense of willful burning, we are of the opinion that it was entitled to have the jury instructed as requested.

The court’s refusal to charge this request was, therefore, an error, for which the judgment must be reversed and a new trial granted, with costs to abide the event.

Dykman, J., concurred.

Pratt, J.

(dissenting):

Both parties appointed appraisers and a time was set for their meeting. Plaintiff’s appraiser attended and waited a reasonable time.. "When defendant’s appraiser appeared later in the day, it is conceded by all parties that he did nothing towards appointing a future meeting, and one Avitness testifies that when his attention was called to that matter he said, “ His time Avas too precious.” He made an estimate of loss in compauy Avitli plaintiff and made an agreement to settle, Avhich defendant repudiated.

On these facts the Circuit judge left it to the jury to say Avhether the defendant had Avaived its'right to a joint appraisal. The jury found such a waiver, we think, correctly.

"We think the jury Avas right in finding that the company had1 waived its right to replace the goods. More than six weeks had elapsed after the service of the proofs of loss before plaintiff disposed of the goods. Plaintiff could not be held to wait indefinitely for defendant to replace such goods or give notice of an intention to do so.

An objection is now urged to the admission in evidence of the proofs of loss. They were produced by the company upon notice, and defendant’s counsel insisted that having thus procured and examined them, plaintiff was bound to put them in evidence. Plaintiff consented and the court ordered them put in evidence. Later, defendant claimed that such admission was error. If so, it was not one of which defendant could complain. No motion was made to strike out the proofs of loss. Moreover, an examination of the record shows that the only use made of the proofs of loss was as a memorandum by wliich to refresh the memory of the witnesses by whom the proofs of loss were prepared, for which purpose they were competent. (Howard v. McDonough, 77 N. Y. 592.)

The amount of the verdict is no greater than was warranted hy the evidence.

Tire judgment should be affirmed, with costs.

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


source: Caselaw Access Project

license: Public Domain

text:
    Paul Halpin, Appellant, v. The Mutual Brewing Company and Others, Respondents. Edward Duffy, as Receiver of The Mutual Brewing Company, Appellant.

      Receiver — action against directors of a corporation for ivaste — nature of the action— the assets are not to he distributed nor the corporation dissolved — the receiver may be discharged or a creditor may be allowed to enforce his claim.

    Wliere the complaint in an action alleges waste of corporate assets, wrongdoing and mismanagement upon the part of three of the directors of a corporation and of others confederating with them, and seeks an accounting from such directors and a restraint of the alienation of the corporate property, a receiver of the property of the corporation may be appointed before trial, and the receivership may be continued after the trial to carry the judgment into effect.

      An action of this character, authorized by sections 1781 and 1782 of the Code of Civil Procedure, does not contemplate the distribution of the corporate assets among creditors nor a dissolution of the corporation.
    In an action of this character it appeared that, before the case was decided, the offending directors had retired from office; there was nothing to show that the corporation was insolvent, and no attempt had been made by the receiver to provide for the payment of creditors. The entry of judgment in the action had been delayed fifteen months, apparently with a view to effecting some settlement of the claims of creditors of the corporation.

      Held, that it was unnecessary to continue the receivership;
    That the receiver should be authorized to pay, from the corporate funds, certain mortgages held by a creditor against the corporation, and also certain judgments in favor of other persons, and that it should be provided that, if he did not make such payments within sixty days, the mortgagee might foreclose and the several sheriffs holding executions upon the judgments might proceed to collect them.
    Pratt, J., dissenting from so much of the opinion as sanctions the levy of executions upon property in the hands of the receiver.
    Appeal by the plaintiff, Paul Ilalpin, and by Edward Duffy, as receiver of The Mutual Brewing Company, from an order of the Supremo Court, made at the Kings County Special Term and entered in the office of the cleric of the county of Queens on the 17th day of July, 1895, permitting the receiver of The Mutual Brewing Company to pay out of the corporate funds in his possession the amount of certain mortgages held by one C. F. Tietjeu, as trustee, etc., and also certain judgments in favor of the West Side Bank and one Samuel K. Nester, and providing that if such payments were not made within sixty days the said mortgages might be foreclosed, and the sheriff of Queens county and the sheriff of New York county might proceed upon executions theretofore issued on such judgments.
    The Mutual Brewing Company is a domestic corporation carrying on the business of brewing and selling beer.
    In December, 1891, it executed a mortgage upon a portion of its real estate, and a mortgage upon a large part of its chattel property. Both instruments were in form to secure the payment to John W. B. Dobler, as trustee, the sum of $50,000, of -which $23,000 was to be paid to John N- Hayward and $27,000 to T. D. Coleman & Brother. Mr. Dobler having died, Christian P. Tietjen was, by order of the court, substituted as trustee in liis stead on December 8, 1892.

      Paul llalpin, a director and stockholder of the Mutual Brewing Company, commenced the present action in June, 1893.
    The gravamen of the complaint is fraudulent and malfeasant acts of three of the plaintiff’s co-directors of that company, by reason of which, among other things, it was charged that the mortgages securing the $50,000, as above described, were fraudulent; and the prayer for relief, among other things, asked that the chattel mortgage be canceled. The findings of the trial court, and the decree based thereon, declared the mortgages invalid to the extent of $27,000.
    Dennis Coleman, Louis W. Duesing and George S. Mitchell in June, 1893, had obtained judgments against the Mutual Brewing Company approximating $28,000, and the complaint alleged that the malfeasant directors had wrongfully permitted the said Coleman, Duesing and Mitchell to recover such judgments, for the purpose of destroying the credit of the Mutual Brewing Company, and giving such creditors a preference over other creditors of the company, and also alleging that by reason of their fraudulent acts large sums of money had been diverted from the company; and the prayer for relief, among other things, asked that those directors be compelled to account for the moneys they had appropriated to their own use, and that they repay the same to the company.
    The complaint also charged that the Mutual Brewing Company was insolvent and unable to pay its debts, and a part of the relief asked for was a dissolution of the company; also, that the judgments be set aside and canceled, and that the malfeasant directors be restrained from acting as directors of the company,' and from interfering with its property; it also prayed for an injunction and the appointment of a receiver.
    The decree, as entered, based upon the findings and conclusions of Mr. Justice Gaynor, directed that the judgments of Dennis Coleman, Duesing and Mitchell should be canceled, and also decreed that Matthew Coleman, the president and a director of the Mutual Brewing Company, should pay to the receiver $56,986.56, and that Michael T. Coleman and Frederick Eder, directors of said company, should pay the sum of $23,949.27.
    In June, 1893, and at the time of the commencement of the action, the court at Special Term, Mr. Justice Pratt presiding, granted an order appointing Edward Duffy as receiver of the property of the Mutual Brewing Company, and granted an injunction restraining the malfeasant directors and all the creditors from interfering with the property of the company, and also restraining Mr. Tietjen, as trustee, from foreclosing the. chattel mortgage held by him. The receiver was, by the order appointing him, authorized to conduct and carry on the business and incur liability therefor, and by the judgment entered July, 1895, he was directed to continue to conduct and carry on the business. It was alleged in the receiver’s affidavit that at the time of the commencement of the action the sheriff was in possession of the property of the Mutual Brewing Company under executions issued upon the judgments allowed to bo recovered in favor of Dennis Coleman, Duesing and Mitchell, and was also in possession of the property under executions of other creditors who had recovered judgments and whose judgments were not challanged. The order appointing the receiver restrained the sheriff from proceeding under these executions. Mr. Tietjen, as trustee, was named as a party defendant. The respondents, the West Side Bank and Samuel K. Nester, were not named as parties defendant, nor are they now parties to the action.
    They, being creditors of the Mutual Brewing Company, in August, 1893, applied to Mr. Justice Dykman, by petition, alleging that the injunction was granted without notice to them, and that Mr. Justice Pratt was absent from the State, for an order permitting them to prosecute the Mutual Brewing Company upon the indebtedness represented in promissory notes of the company, and thereafter orders were granted to the bank and to Mr. Nester, permitting them to commence action against the Mutual Brewing Company for the purpose of obtaining an adjudication upon the validity of the securities held by them respectively, and such order permitted judgment to be entered in their favor, and executions to be issued thereon, but the sheriff was not to levy upon the property; copies of these orders, and the petitions upon which they were granted, were served upon the counsel for the plaintiff and the receiver. Under these orders the West Side Bank duly obtained fifteen judgments against the Mutual Brewing Company in the City Court of New York, amounting to $19,091.91; and Samuel K. Nester obtained three judgments amounting to $3,830.95.

      In January, 1894, tlie trial of the action was had before Mr. Justice Gaynor ; the findings of fact and conclusions of law thereunder were filed on March 10, 1894. No proceedings were had on the part of the plaintiff toward entering the decree thereon until July, 1895.
    The findings at Special Term, as well as the decree, continued the appointment of the receiver until further order of the court; and also continued the injunction against proceedings by creditors, without leave first having been obtained from the court upon notice to the receiver. This decree, however, containing the latter clause^ was not entered until after the granting of the orders of May 20, 1895, jJormitting the respondents to take the proceedings which are the ’subject of this appeal. But the decree did provide that any of the parties might apply at the foot of the judgment for such other or further order as might be nécessary.
    On May 20, 1895, and after the whole sum payable under said mortgages had become due, and some fourteen months after the findings made upon the trial, which adjudicated that the mortgages were valid to the extent of $23,000 had been filed, Mr. Tietjen, as ti’ustee, applied to the court for leave to commence an action for the foreclosure of said mortgages. At the same time the West Side Bank and Samuel K. Nester also applied to the court for leave to issue executions upon their several judgments against the Mutual Brewing Company, and on May 20, 1895, orders were granted permitting Mr. Tietjen to commence foreclosure of the mortgages held by him, and (by separate orders) permitting the West Side Bank and Samuel K. Nester to issue executions upon their several judgments, and directing the receiver to pay such judgments out of the funds in his hands as receiver, or to permit the sheriff to levy upon the property of the company in his, the receiver’s, hands, for the purpose of satisfying such executions.
    It appeared upon the argument to vacate the orders of May 20,, 1895, that at the annual stockholders’ meeting of the brewing company, held for the years 1894 and 1895, persons other than the alleged malfeasant directors had been elected as directors of the company. The order appealed from did not in terms vacate the orders of May 20, 1895, but ordered that all proceedings by Tietjen upon the foreclosure of the mortgages should be stayed for sixty days from the date of the entry and filing of the order, and permanently thereafter, should the amount due thereon be paid; and also directed that proceedings upon the executions in favor of the bank and Mr. Nester should also be stayed for sixty days; and the order permitted the receiver to pay the amount due upon the mortgages and the amount of the judgments out of the funds of the company in his hands, providing that unless the amounts so permitted to be paid were paid within sixty days, then the sheriffs were to proceed under the executions.
    Upon the entry of the last-described orders in the office of the clerk of Queens county, the chattel mortgage was delivered to the sheriff of Queens county, with directions to foreclose the same, and executions were issued to such sheriff upon all the judgments held by the "West Side Bank and Mr. Nester.
    The plaintiff and the receiver (no one else joining therein) applied to Judge Gaynor, upon notice to the other parties to the suit, to vacate the orders of May 20, 1895, permitting the foreclosure proceedings, and also permitting the executions to be issued. This application was made upon the ground that such orders were improvidently granted, and without notice to the Attorney-General. And it was alleged in the receiver’s affidavit that the receiver under the order was conducting and carrying on the business and had incurred liabilities authorized thereby, which he expected to pay out of the assets in his hands, and that he was in possession of the property vested with title and carrying on the business in pursuance of said order. The motion papers did not ask to have the executions vacated and set aside.
    The hearing upon this application was had on June 8, 1895, and at such hearing the plaintiff’s proposed decree was presented to the judge for entry. The decision upon the application was announced and the decree signed on July 13, 1895, but the order upon such application, from which this appeal was taken, was not signed until July 17, 1895.

      Benjamin Yates for the appellants.

      G. J. G. Hall, for the respondents.
   Brown, P. J.:

The point made by the appellants, that the original orders authorizing the receiver to pay the judgments in favor of the West Side Bank and Mr. Nester and the mortgage held by Mr. Tietjen as trustee were granted ex parte, needs no consideration, for the reason that the order appealed from was made after the hearing of a motion to vacate said ex parte orders, upon which motion all parties entitled to notice were heard and the facts were fully presented to and considered by the court. That motion was treated as an original application, and the order made thereon is the one from which the appeal now before us was taken.

We are of the opinion that the order is fully warranted by the facts of the case.

The counsel for the appellants has directed his main argument to the justification of the appointment of the receiver and to the demonstration of the proposition that the distribution of the corporate property among the creditors can also be made in this action. It is a sufficient answer to the latter proposition that no attempt has been made in this action by the plaintiff or the receiver to provide for the payment of the creditors. Although the decision in this action was filed in March, 1894, the judgment was not entered until the order appealed from was made, and during this period of fifteen months the creditors were restrained from maintaining proceedings to compel payment of their claims, while the business was being conducted by the receiver. It is very evident from the moving affidavit that this delay wras for the purpose of endeavoring to effect some settlement of the claims of creditors. But such a purpose affords no justification for the continuance of a ¡receivership or of an injunction against creditors prosecuting their just claims. If it was the purpose of the directors that the corporate property should have been distributed among its creditors they could at any time have applied for a voluntary dissolution of the corporation. The validity or propriety of the appointment of the receiver is not assailed. It was authorized before the trial of the action by section 1810 of the Code of Civil Procedure, and was properly continued after the trial to carry the judgment into effect. (Code Civ. Proc. § 713.)

But the action did not contemplate a distribution o'f the corporate assets among the creditors of the corporation, nor a dissolution of the corporation.

It was authorized -'under sections 1781 and 1782 of the Code of Civil Procedure. The complaint alleged waste of corporate assets and wrongdoing and mismanagement on the part of three of the directors and others confederating with them, and sought an accounting from said directors and a restraint of the alienation of the corporate property.

Before the case was decided the offending directors had retired from office and others had been elected in their places, and the judgment affords all the relief that the corporation can have against its offending officers..

There is no finding in the decision that the corporation is insolvent, and no adjudication of that fact, and there is no statement to that effect in the affidavit of the receiver.

Under this condition of affairs it is difficult to see why the receivership should be continued. The object of the action has been accomplished. Creditors should now be permitted to assert their claims and pursue such remedies as the law affords them.

The case of Duncan v. The Treadwell Co. (82 Hun, 376) is quite like the case before us, and sustains the order appealed from.

It should be affirmed, with ten dollars costs and disbursements.

IDykman, J., concurred.

Pratt, J.

(dissenting):

This action was brought under sections 1781 and 1782 of the Code of Civil Procedure, and the appointment of a receiver was, therefore, within the power of the court. (Code Civ. Proc. § 1810.)

Under section 1806 of said Code, the court has power to restrain the creditors of a corporation from maintaining actions to compel payment of their claims which may lead to inequitable results, and under section 1807 it may require the creditors to present their claims for adjustment, and may distribute the assets of the corporation.

That the action is not brought to dissolve the corporation does not determine that its property may not be sold and the proceeds thereof be distributed. (Code Civ. Proc. §§ 1I84-1Y93. See, also, People v. Ballard, 134 N. Y. 269; Osgood v. Maguire, 61 id. 524.)

As the court has the power to distribute the corporate property equitably, and has already interfered by injunction to prevent its appropriation by certain of its execution creditors, we think it should continue that course and restrain the other execution creditors. As the orders now stand, certain creditors who recovered judgments and executions in due course of law are restrained from enforcing-their claims. Other creditors, no more meritorious, and whose judgments are subsequent, have been allowed to issue and levy executions on the property in the receiver’s hands. We do not think this-orderly or equitable. In effect it works a preference and probable, full payment of the claims of certain creditors, while others equally meritorious are in effect postponed and incur the risk of remaining-entirely unpaid.

Property in the hands of a receiver is in the custody of the law,, and it is not easy to see why another officer of the court should be called in to dispose of it. A question somewhat similar is discussed in White v. Frankel (33 N. Y. Supp. 1), and a conclusion reached that the possession of the receiver should be maintained. The reasoning of that case is applicable here. We think that, so far as the order appealed from sanctions the levy of executions upon property in the hands of the receiver, it should be modified.

Whether the foreclosure of such part of the chattel mortgage as. was found valid shall be allowed to proceed is a different question, and, after some hesitation, we think that, so far as the order appealed from allows its enforcement, it should be affirmed.

Order affirmed,* with ten dollars costs and disbursements.


author: Dykman, J.:

text:
    South Brooklyn Saw Mill Company, Respondent, v. Richard Cronin and Others, Appellants.

      Contract to collect a MU — evidence as to the party to whom the credit is given.

    In an action brought to recover for goods sold and delivered to the defendants, the answer admitted the claim, but set up a counterclaim for the use of a pile driver. One of the defendants testified that Mr. Buckley, who was acting for the plaintiff, said to him: “ ‘I have got quite a big job down there for you to hire a pile driver.’ * * * Says I, ‘Who is it for?’ He said, ‘McBean.’ * * * Says I, ‘lam told that this man is a great blower — so I heard, and Buckley,’ says I, ‘I will collect the bill from you;’ and Mr. Buckley says, ‘I am all right, we are good for the bill,’ and so I give it to Mr. Buckley.”

      Held, that the true construction of the testimony was that the pile driver was let to McBean, and that Buckley was to collect the bill;
    That the arrangement imposed no liability upon the plaintiff, and constituted no counterclaim in favor of the defendants.
    Appeal by tlie defendants, Richard Cronin and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of April, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Circuit, and also from an order denying the defendants’ motion for a new trial made upon the minutes.

      James O. Church, for the appellants.

      Hyland <& Zabrishie, for the respondent.
   Dykman, J.:

This is an appeal from a judgment and an order denying a motion for a new trial made upon the minutes of the court.

The action was for the recovery of $101, with interest, for goods sold and delivered by the plaintiff to the defendants. The answer admitted the claim of the plaintiff, and set up a counterclaim of ninety-six dollars for the use of a pile driver, and the counterclaim was controverted by the plaintiff.

The testimony of one of the defendants upon that subject was that Mr. Buckley, who was acting for the plaintiff, said to him: “‘I have got quite a big job down there,’ he says, ‘for you to hire a pile driver,’ and I told him $10.00 a day; says I, £ Wlio is it for ? ’ He said, £ McBean, a fellow by the name of McBean.’ Says I, ‘ I am told that this man is a great blower — so I heard, and Buckley,’ says I, £ I will collect the bill from yon,’ and Mr. Buckley says, £ I am all right, we are good for the bill,’ and so I give it to Mr. Buckley.”

The true construction of that testimony is that the pile driver was hired to McBean, and that Buckley was to collect the bill for the defendants.

That arrangement imposed no liability upon the plaintiff, and constituted no counterclaim in favor of the defendants.

The verdict was properly directed for the plaintiff, and the judgment and order denying the motion for a new trial should be affirmed, with costs.

Brown, P. J., and Pratt, J., concuried.

Judgment affirmed, with costs.


author: Dykman, J. :

text:
    Elizabeth Baldwin, Appellant, v. William Henry Smith, Individually and as Executor, etc., of Jacob Baldwin, Deceased, Respondent, Impleaded with Others.

      Bes adjudicada■ — a decree of a surrogate is a bar to a subsequent action involving the same questions.

    Where a surrogate has jurisdiction of the parties and of the subject-matter, his decree has the same force and effect as the judgment of any other competent court, and is a bar to any subsequent action involving questions which were raised in the proceeding which was terminated by the decree.
    The complaint in an action brought against one Smith, individually and as executor of Jacob Baldwin, deceased, and against other persons interested in his estate, asked as relief that the defendant executor account for all the property which had come into his hands as such executor, and also for the proceeds of the sale of certain real estate made by him under a power of sale contained in the will of the testator, together with the rents and profits of the land sold. It appeared that on the 5th day of December, 1894, the executor filed a petition in the proper Surrogate’s Court praying for a judicial settlement of his accounts, and that the citation in the matter was personally served upon the plaintiff, who appeared and filed objections to the account, setting up in substance ihe same claims which she subsequently made in the action brought by her. A. decree was entered overruling her objections and adjudging that she had no interest in the estate of Jacob Baldwin. In the meantime, and after the commencement of the proceedings for final settlement, and after the citation had been served upon the plaintiffs, she commenced the present action; the defendant, by his amended answer, denied all the allegations of fraud and also pleaded in bar the decree of the Surrogate’s Court, to which latter defense the plaintiff demurred.

      Held, that the decree of the surrogate was a bar to the action brought' by the plaintiff, being a previous adjudication of the questions involved therein.
    Appear by-the plaintiff, Elizabeth Baldwin, from an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 11th day of April, 1895, overruling the demurrer of the plaintiff to so much of the answer of the defendant, William Ilenry Smith, individually and as executor, etc., as is contained in the first paragraph thereof, which sets up as a bar to the action a decree of the surrogate of Queens county made on an accounting by the said defendant in his representative capacity.

      Ma-nxfield Compton, for the appellant.

      Albert IF. ¡Seaman, for the respondent.
   Dykman, J. :

This is an appeal from an order overruling the demurrer of the plaintiff to a part of the answer of the defendant Smith. The action is brought against the defendant Smith as executor, and against certain other persons interested in-the estate of Jacob Baldwin, deceased.

The plaintiff demands in her prayer for relief that the defendant Smith, as executor, account for all the property which came into his hands as such executor, both real and personal, and also for the proceeds of the sale of real estate sold by him under the power of sale contained in the will of the testator, together with the rents and profits of the land so sold. The facts are briefly these:

On the 5th day of December, 1891, the executor filed a petition in the Surrogate’s Court of Queens county praying for a judicial settlement of his accounts as executor and for a final discharge.

A citation was issued upon such petition, returnable on the 31st day of January, 1895, and directed among others to the plaintiff, and it was returned with proof of personal service upon her.

On the return of the citation, on the 31st day of January, 1895, the plaintiff appeared by counsel and filed objections to the account, by which objections the same claims were made as are now set up in the complaint, and such proceedings were had that on the 28th of' February, 1895, a decree was entered by which it was adjudged that the plaintiff had no interest in the estate of the deceased, and the decree also overruled all the objections filed by the plaintiff.

In the meantime, and after the commencement of the proceedings for final settlement, and after the citation had been personally served upon the plaintiff, she commenced this action by the service of a summons and complaint.

The defendant Smith by his amended answer denied all the allegations of fraud, and in addition to such defense he interposed a decree of the Surrogate’s Court, made in the proceedings for final settlement, as a bar to the further ptrosecution of this action.

To that defense the plaintiff demurred as insufficient in law. The issue of law raised by the demurrer was argued at the Special Term, and was decided in favor of the defendant Smith, and the order overruling the demurrer was entered from which this appeal is taken.

It is admitted by the demurrer that the plaintiff was one of the parties before the surrogate, represented by counsel, who introduced objections to the account of the defendant Smith as executor and against whose interest the decree was entered. The surrogate had jurisdiction of the pai’ties and of the subject-matter, and his decree had the same force and effect as the judgment of any other competent court. (Garlock v. Vandevort, 128 N. Y. 377)

The decree of the surrogate, therefore, constituted a bar to this action as being a previous adjudication of the questions involved therein, but the order is not appealable, and the appeal must be dismissed, with ten dollars costs and disbursements, to be paid by the plaintiff personally.

BbowN, P. J., and Pbatt, J., concurred.

Appeal dismissed, with costs.


author: DyicmaN, J.:

text:
    The People of the State of New York ex rel. Philip E. Miller, Relator, v. Frederick W. Wurster, Commissioner of the Fire Department of the City of Brooklyn, Respondent.

      Brooklyn — discharge of a fireman — sickness is an excuse for an absence from duty — certiorari — how fa/r additional papers will be considered on the hearing.

    Where a writ of certiorari has been issued to review the determination of an officer of a city and the return fails to meet all the facts contained in the writ and in the papers on which it was granted, the hearing and decision of the case must he upon the return, the writ, and the papers upon which it was granted.
    Where a fireman of the city of Brooklyn procures such a writ to review his dismissal from the fire department and the respondent to the writ, the commissioner of the fire department, annexes to his return the record of the relator as a member of the department 'during the whole time of his service, which the relator had had no opportunity to explairi, the court will consider this record only so far as it tends to show that matters, other than the charges in question and the proceedings on the trial of the relator, were permitted by the respondent to influence his judgment and the decision which he reached.
    Under the provisions of section 9 of title 13 of chapter 583 of the Laws of 1888, as amended by section 2 of chapter 371 of the Laws of 1889, absence from duty without leave of a fireman belonging to the Brooklyn fire department and employed upon the force for extinguishing fires is not an. offense which will justify his removal.
    Such a fireman can only be removed from his position after he has been found guilty of misconduct or of neglect of duty or after he has been adjudged incapable of performing his duty.
    A voluntary intentional absence from duty may be deemed a neglect of duty, but an involuntary absence caused by sickness or by an injury is excusable.
    Certiorari issued out of tlie Supreme Court and attested on the 25th day of January, 1895, directed to Frederick W. Wurster, commissioner of the fire department of the city of Brooklyn, commanding him to certify and return to the office of the clerk of the •county of Kings as amply as the same remain before him the appointment of Philip E. Miller as a member of the fire department of the city of Brooklyn, and all the proceedings had touching the removal and dismissal of said Miller from said fire department, the charges preferred against him on December 31,1894, and January 1 and 3, 1895, together with all the testimony taken at the hearing on said charges and all statements made at said hearing by said Miller in order that the same might be reviewed by the court.

      Edward F. O'Dwyer, for the relator.

      II. O. Wood, for the respondent.
   DyicmaN, J.:

Under section 2138 of the Oode of Civil Procedure the hearing and decision of this case is to be upon the return and the writ and the papers upon which such writ was granted, because the return fails to meet all the facts contained in the writ and the papers upon which such writ was granted. The facts which appear from such papers are these: On the 9th day of December, 1890, the relator was appointed a fireman in the fire department of the city of Brooklyn, and was employed on the force for the extinguishment of fires.

He continued to hold that office until the 8th day of January, 1895. On the 3d day of January, 1895, he was charged with intoxication on the evening of January 2, 1895. lie was also charged with absence without leave on December 30 and 31, 1894, and January 2 and 3, 1895.

On the hearing before the respondent the relator admitted Ids absence from his company’s quarters at the times alleged, but he says in his petition, and the statement is recited in the writ, that he stated to the respondent that his absences were caused by reason of his sickness and inability to perform duty during the times specified in the charges.

The facts constituting the canse of such involuntary absences are fully set forth in the petition of the relator upon which the writ was obtained, and they are sudden and severe sicknesses. '

The respondent has annexed to his return the record of the relatólas a member of the fire department from the time of his appointment in December, 1890, but it was not given in evidence upon the trial, and the relator was offered no opportunity to explain it.

It will not, therefore, be considered on this hearing, exceptt as it has a tendency to show that matters other than the charges against the relator, above referred to, and the proceedings on his trial were permitted to influence the respondent in forming his judgment. It is alleged in the petition upon which the writ was granted that the relator was not intoxicated on tlie night of January 2, 1895, as charged, and that the several absences without leave were involuntary and were caused solely by the sickness of the relator. The return is silent as to these allegations, and on this hearing they must be considered and taken as a correct and truthful statement of the facts.

The nature of the complaint with which the relator was afflicted, and his several attempts to procure the necessary medical aid from the surgeon of the department, to which he was entitled as a member, are fully set forth in the petition, and, if not true, it was within the power of the respondent to prove their falsity. An examination of the testimony shows that the relator was not guilty of the charge of intoxication, and that question will require no further consideration. The return of the record of the relator suggests its possible use against, him, and that use was erroneous. No opportunity was afforded him to explain or answer the record which was made up without his knowledge, and its use against him was palpably unjust. Under the statute (Laws of 18S8, chap. 583, tit. 13, § 9), as it was amended by section 2 of chapter 311 of the Laws of 1889, absence without, leave is not an offense for which a member of the department employed on the force for extinguishing fires can be removed. Such a member can only be removed after having been found guilty of misconduct or neglect of duty, or after having been adjudged incapable of performing his duty. Moreover, the plea of guilty of being absent without leave, accompanied with an explanation of the cause which necessitated the same, was insufficient to justify the removal of the relator. While a voluntary intentional absence might be deemed a neglect of duty, and sufficient as a specification under such a general charge, an involuntary absence necessitated by an injury, or a sudden attack of sickness, is excusable and merits no> punishment.

These proceedings are criminal in their nature.. The penalties are severe, and it would contravene the humanity of our laws to inflict punishment for the involuntary act mentioned. If the dismissal of this relator is legal and valid, then a foreman who receives a severe injury in the performance of his duty, which incapacitates him physically and confines him to his house, may be removed for such absence; but the law will not tolerate such a result. The •oifenses must be voluntary and intentional. The dismissal of tlie relator was illegal and unjust, and the proceedings should be reversed, and he should be reinstated in his position and pay, with fifty dollars costs and disbursements.

BbowN, P. J., and Pratt, J., concurred.

Determination reversed and proceedings dismissed, and relator reinstated in his position, with fifty dollars costs and disbursements.


author: DyKMAN, J.:

text:
    The Bank of Port Jefferson, Appellant and Respondent, v. Charles T. Darling and Thomas S. Mount, as Executors of the Last Will and Testament of Jeremiah Darling, Deceased, Respondents and Appellants.

      Bills and notes— defacto banking corporation— one dealing with it cannot object to its incorporation — when the payee can hold thesecond indorser — sufficient notice of protest in the case of a deceased indorser — counterclaims — costs against the estate of a deceased indorser, refused.

    "Where a corporation has done all the acts requisite to its organization as a Stale hank, except the filing in a clerk’s office within one year of an affidavit of the payment of the whole of its capital stock (the filing not being made by statute a prerequisite to its exercise of corporate power), and commences and continues tlie usual business of banking, it is a corporation defacto, and no persons who have contracted obligations with it can be permitted to attack it because of any defects in its organization, affecting its capacity to bring an action against them upon such obligations.
    Objections of this character can only be made upon behalf of the sovereign power of tlie State, and cannot be raised by private persons to avoid a just liability.
    Where a promissory note is made payable to a bank and a person, indorses it for the purpose of giving the maker credit with the bank, such person or his estate becomes liable to the bank, notwithstanding the fact that his apparent liability is only that of a second indorser.
    Upon tlie trial of an action brought to recover upon a promissory note made by one Gould, payable to the order of the plaintiff, and indorsed by one Jeremiah Darling, since deceased, in order to give the maker credit with the payee, it appeared that the note became due on the 5th day of February, 1894, and was on that day duly protested against the maker; Darling died on the 18th day of January, 1894, and letters testamentary were issued to the defendants as executors on the 13th day of February, 1894. It further appeared that, at the time of the protest, two notices were sent by the notary who protested the note, one addressed to “J. Darling” and tlie other to “the estate of J. Darling," both being inclosed in an envelope and directed to the “ estate of J. Darling, Stony Brook, L. I.,” which was the place of his residence at the time-of his death, but these notices were not received by the defendants. On the-15th day of February, 1894, the cashier of the plaintiff called upon the defendant Charles T. Darling, and, after ascertaining that he was one of the executors, left with him a notice of the protest of the note.

      Held, that the notice of protest was sufficient, and that reasonable diligence had been shown ;
    That it was not improper to direct the notice to the estate of the indorser, as no-other direction would have been more likely to bring the notice to his family. It appeared that when the note became due the maker Gould had a general deposit balance in the bank of $128.78, which the plaintiff on the 15th day off February, 1894, applied to the payment of notes indorsed or made by Gould which fell due after February 14, 1894. The referee to whom the plaintiff’s, claim was referred deducted such sum from the amount of the recovery.

      Held, that the plaintiff was entitled to recover in full;
    That under the circumstances the plaintiff was not entitled to costs.
    Appeal by the defendants, Charles T. Darling and another, as-executors, etc., of Jeremiah Darling, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of' the clerk of the county of Suffolk on the 8th day of April, 1895,. upon the report of a referee.
    Also, an appeal by the plaintiff, The Bank of Port Jefferson, from so-much of said judgment as refused to award to the plaintiff the sum of $123.J8, and also from an order of the Supreme Court, made at. the Kings County Special Term and entered in the clerk’s office of the county of Suffolk on the 19th day of March, 1895, denying the plaintiff’s application for costs and an extra allowance.

      Thos. J. Hitch, Jr., for the plaintiff.

      Thomas Young, for the defendants.
   DyKMAN, J.:

The plaintiff in this action presented a claim to the defendants, based upon a promissory note of which the following is a copy :

$2,900. v Poet Jeevis, New Yobe, Jan. 2, 1894.

“ Thirty days after date I promise to pay to the order of Bank of Port Jefferson, Twenty Nine Hundred Dollars at the Bank of Port Jefferson. Yalue received.

“WILLIAM O. GOULD.”

Before the note was delivered to the plaintiff, it was indorsed by the defendants’ testator, Jeremiah Darling, for the purpose of giving the maker credit with the bank. Darling died on the 18th day of January, 1891, and letters testamentary were issued to the defendants as his executors on the 12th day of February, 1894. The note fell due on the 5th day of February, 1894, and was protested for non-payment on that day, of which the maker was duly notified.

The notices of protest were drawn up by the notary who protested the note and were addressed, one to J. Darling, and one to the estate of J. Darling.

Both notices were inclosed in an envelope, and directed to the estate of J. Darling, Stony Brook, Long Island, his place of residence before he died.

The president of the bank had knowledge of the death of the indorser, but. failed upon inquiry to ascertain whether he left any will or had any personal representatives. The notices of protest were not received by the defendants. On the 15th day of February, 1894, the cashier of the bank called upon Charles T. Darling, one of the executors, and after ascertaining that he was one of the ■executors, left with him a notice of the protest of the note. When the note became due, the maker, Gould, had a general deposit balance in the bank of $123.78, and on February 14, 1894, he deposited $302.40 in such bank without any special direction as to the application thereof.

On the 15th day of February, 1894, the bank applied both of these sums to the payment of notes indorsed or made by Gould, which fell due after February 14, 1894, and checks of Gould drawn by him after such date.

The claim was rejected by the executors and referred to a referee for a determination under the statute. The referee decided in favor of the plaintiff, but deducted the sum of $123.78 from the claim and directed judgment for $2,776.22, with interest. Costs were denied to the plaintiff by the court, and the plaintiff lias appealed from the order, denying his application for costs and for an extra allowance, and also from so much of the judgment as fails to allow the plaintiff the $123.78 applied by it to the payment of other paper made or indorsed by Gould. The defendants have appealed from the judgment.

The first question presented by the defendants has reference to the corporate existence and capacity of the plaintiff, the contention being that the banlc has ceased to exist.

The facts upon which this contention is based are these: In the year 1889 all acts requisite and essential to the organization of a State bank were done by it, except the filing in the Suffolk county clerk’s office within the year of an affidavit of the payment of the whole of its capital stock as required by the statute. Such an affidavit was filed with the Superintendent of Banking on the 18th day of July, 1889, and thereupon the bank commenced business, and has continued to do the usual business of banking, such as receiving deposits of money, discounting notes and bills, and making collections.

The bank had many transactions with both Gould and Darling besides the one involved in this case. It was a defacto corporation, and neither the defendants nor any other persons, who have contracted obligations with it, can be permitted to attack it because of any defect in its organization in order to affect its capacity to sue thereon. Such objections are only available on behalf of the sovereign power of the State, and cannot be raised by private persons to avoid a just liability. (McFarlan v. Triton Ins. Co., 4 Den. 392; Angell & Ames on Corp. § 80; Bill v. Fourth Great Western Turnpike Co., 14 Johns. 416.)

The filing of the affidavit in the office of the county clerk of Suffolk county is not made a prerequisite to the assumption and exercise of corporate powers.

The statute itself contemplates such exercise for a whole year before such filing is required. The defendants cannot, therefore, escape liability upon that ground.

The next question has reference to the peculiar form of the note. It is made payable to the bank, and upon the face of the paper itself the presumption would arise that Darling intended only to assume the liability of a second indorser.

For the purpose of overcoming that presumption the plaintiff proved, and the referee found, that before the delivery of the note to the bank the testator of the defendants indorsed the same for the purpose of giving credit to the maker, Gould, with the bank, and that thereafter the bank discounted the note. The defendants’ testator, therefore, became liable to the bank as first indorser of the note.

The defendants further insist that no sufficient notice of protest of the note was given. The facts upon which the question depends for determination have been recited. The demand of payment was sufficient, and no personal notice of the non-payment could have been given, because the indorser was dead. The notice was sent to his place of residence, and although in such cases notice is required to be left at the domicile of the deceased, we are not prepared to hold the notice given in the case to be insufficient. Stony Brook was the domicile of the deceased indorser, and notice was sent there. True, it was directed to his estate, but no other direction would be more likely to bring it to his family. His executors were not known to the bank, and as soon as they were ascertained they were notified.

The law never requires impossibilities. Reasonable diligence is all that is required. No evil lias resulted from the course pursued, and the law does not exact every possible exertion which might have been made to effect notice of the dishonor of the paper.

In the case of Willis v. Green (5 Hill, 232), which was much like this case, it was said in the opinion: “ If the notice relied on for that purpose had been sent to the proper place no doubt it would have been sufficient, under the circumstances of this case, though directed to Johnson after his death.” (Stewart v. Eden, 2 Caines, 121; Merchant's Bank v. Birch, 17 Johns. 25.)

Upon reason and authority the notice must be deemed sufficient. In relation to the appeal of the plaintiff, our conclusion is that the sum of $123.78 was improperly deducted from the amount due, and the judgment must be modified by the addition of that sum to the amount thereof. Costs were properly refused to the plaintiff.

The judgment is to be modified in accordance with this opinion, and, as so modified, it is affirmed, with costs.

Brown, P. J., and Pratt, J., concurred.

Judgmentlnodified by increasing the amount of plaintiff’s recovery to $2,900, with interest from February 5, 1894, and, as so modified, affirmed, with costs.


text:
    The People of the State of New York ex rel. Roswell W. Keene, Respondent, v. The Board of Supervisors of the County of Kings and The Board of Supervisors of the County of Queens, Appellants.

      Bridge — over a tidal stream dividing two counties ■ — if it constitutes pa/rt of a highway its construction will be compelled.

    The duty imposed by section 68 of chapter 686 of the Laws of 1893 upon the boards of supervisors of two counties to construct a bridge, which is part of a public highway, over 'a navigable tide water stream, the boundary line between the counties, is a mandatory one: and a peremptory writ of mandamus will issue to compel the boards of supervisors of such counties to construct such bridge, at the joint expense of the two counties, within one year from the time when the writ issues.
    Appeal by the defendants, The Board of Supervisors of the County of Kings and The Board of Supervisors of the County of Queens, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 24th day of July, 1895, directing the issuance of a peremptory writ of mandamus commanding the defendants to construct a bridge across Newtown creek at Maspetli avenue, at the joint expense of the two counties, within one year from the issuance of the writ.

      Roswell W. Keene, respondent, in person.

      George F. Elliott and Franeis H. Ycm Yechten, for the appellants.
   Dykman, J.:

This is an appeal by the defendants from a final order directing the issuance of a peremptory writ of mandamus commanding the defendants to construct a bridge across Newtown creek at Maspetli avenue, at the joint expense of the two counties, within one year from the issuance of the writ.

The proceeding was instituted to compel the construction and maintenance of a drawbridge across Newtown creek at Maspetli avenue. That creek is a tide water navigable stream at that point, and forms the boundary line between the counties of Kings and Queens. There was formerly a bridge at that point which was long since destroyed.

The case was carried to the Court of Appeals upon a demurrer to the alternative writ of mandamus heretofore issued in the proceeding, and it was there held that the facts alleged in the writ were sufficient to show that Maspeth avenue was a public highway and that the bridge constituted a part of the same. The provision of the statute,which controls the case is as follows : “ But when such bridge shall span any portion of the navigable tide-waters of this State, forming at the point of crossing the boundary line between two counties, such expense shall be a joint and equal charge on the two counties in which the bridge is situated, and the board of supervisors in each of such counties shall apportion such expense among the several towns and cities in their respective counties.” (§ 68 of chap. 686 of the Laws of 1892.)

It was said by the Court of Appeals in that case that the duty imposed by the statute (Chap. 686 of the Laws of 1892, § 68) upon the boards of supervisors of the two counties is plainly demonstrative and mandatory and not discretionary; that, being a power conferred for the benefit of the public, it is imperative. (People ex rel. Keene v. Supervisors, 142 N. Y. 277; People ex rel. Otsego County Bank v. Supervisors, 51 id. 401.)

The case has now been tried and the following facts have been specifically found by the jury by direction of the court :

First. That the relator is a citizen and freeholder of the State.

Second. That Maspeth avenue is a public highway, extending from a point near Maspeth Hotel to a point near Busliwiclc Church, as it was laid out in 1836.

Third. That Maspetli avenue did cross Newtown creek.

Fourth. That Newtown creek is the boundary line between Kings and Queens counties.

Thereupon application was made upon such findings and the other papers in the case for a peremptory writ of mandamus, and an order for its issuance was made. "We concur with the trial judge in respect to the public character of Maspeth avenue. It has been a public highway for half a century. That character has adhered to it through all its transmutations and changes.

The order should be affirmed, with costs.

Pkatt, J., concurred; Bbown, P. J., not sitting.

Order affirmed, with costs.


text:
    John Perry, Respondent, v. John C. Rogers, Appellant.

      Master and servant — the duty of the master to furnish a safe place cannot he delegated — risks assumed hy the servant — rocks falling from a cliff upon a servant two days after a Mast.

    The care which the law demands from the master cannot he delegated to a servant, so as to exonerate the master from responsibility to a servant who has sustained injuries by reason of its not having been exercised.
    A servant assumes only the risks ordinarily incident to the employment, arising from causes which are open and obvious or which are announced to him in advance. He does not assume the risk of the master’s negligence, and the master is negligent if he fails to discover insecurities or dangers which could be detected by the exercise of reasonable care.
    Upon the trial of an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendant, a contractor engaged in the work of opening a road, it appeared that the road ran along the edge of the Ilarlem river, on the banks of which were high rocíes, extending nearly to the water, which it became necessary to blast; that this work was done by commencing at the top of the cliff, boring holes in the rock, and throwing oil a section of the face of the cliff by exploding powder in the drill holes; that the explosion would leave a “bench” lower down, covered with broken fragments of rock which had to he removed; that the plaintiff, a laborer, was ordered to clear off such a “bench,” when a large rock fell upon him from above and injured him.
    The defendant’s theory was that the rock slid upon tlie plaintiff while he was attempting to remove it with his bar, while the plaintiff offered evidence tending to show that the stone had been broken off from a drill hole, that there was a hole drilled down by the stone, half of which left on the stone was burned by powder, bis evidence permitting tbe conclusion that the stone had been detached or loosened by a blast which had taken place two or three days before the accident. The court, in its charge, fairly stated both views of the case to the jury.

      Held, that a verdict for the plaintiff would not he disturbed.
    Appeal by tbe defendant, John C. Rogers, from a judgment of ■tlie Supreme Court in favor of tlie plaintiff, entered in the office of tlie clerk of the county of Queens on tlie 25th day of April, 1895, upon tlie verdict of a jury rendered after a trial at the Queens County Circuit, and also from an order entered in said clerk’s office ■on tlie 13tli day of May, 1895, denying the defendant’s motion for ■ a new trial made upon the minutes.

      William A. Jones, Jr., for the appellant.

      F. W. Gatlin, for the respondent.
   DyKMAN, J.:

Tlie municipal autliorities of the city of New York were constructing a road called a speedway along the side of the Harlem river, and the defendant, was the contractor who was doing the work.

On the banks of the river were high and precipitous rocks, which extended nearly to the river’s brink, and it became necessary to rend these rocks by the explosion of gunpowder or dynamite.

That was done by commencing at the top of the cliff and boring large holes in tlie rock and throwing off a section of the face of such cliff by exploding powder in the drill holes. That explosion would leave what was called a bench lower down, which would be covered with broken fragments of rock. Such fragments were removed after each explosion to make a clean surface for new drill holes. The plaintiff was in the employ of the defendant upon this work as a common laborer, and on the 19th day of July, 1894, he was ordered to go with two other laborers upon one of the benches, which was about forty feet above the place where he was at work, and clear off the bench. While in the performance of that duty a large rock fell upon him, and so crushed his foot that it became necessary to amputate the same above his ankle, and this suit is for the recovery of the damages which he has sustained from that injury.

The evidence of the plaintiff and his witnesses was that the place from which the rock fell was about seven or eight feet above the bench where the plaintiff was working.

"While there was testimony on the part of the defendant tending to show that the rock slid upon the plaintiff while he was attempting to remove the same with his bar, both theories were submitted to the jury, as we shall hereafter see.

The case was tried at the Circuit before a jury, and a verdict rendered in favor of the plaintiff for §5,000.

The defendant has appealed from the judgment and from the order denying the motion for a new trial made upon the minutes of the court.

A fair opportunity to avoid harm is sufficient to impose upon a person tlie consequences of his conduct, if, when judged by common experience, he is blameful for his act.

It may now be assumed that the stone which fell upon the plaintiff bad been detached and loosened by a blast two or three days prior to the injury.

Ordinary knowledge and experience teach us that an inspection and examination of the rock which fell upon the plaintiff would have detected the insecurity and danger of the place where the plaintiff was set at work. The evidence adduced by the plaintiff tended to show that there were the marks of a drill on the stone, and that the same liad been broken off from a drill hole; that there was a hole drilled down by the stone; that half the hole was left on the stone which was burned by the powder. The menacing position of the stone was, therefore, easy of discovery.

Turning now to the rules of law applicable to persons who sustain the relation of master and servant, we find it to be the duty of the former to use reasonable care to" provide adequate and suitable implements for the use of the latter, and a safe and proper place for the prosecution of his labor. He was bound to make the reasonable inspection that a man of ordinary prudence would make.

He was bound to foresee whatever a prudent, intelligent man would have foreseen. “A prudent man foreseeth evil and hideth himself.”

Negligence arises from an imputed or presumed foresight. In fact negligence may be said to be the want of foresight. The circumstances which make men liable for their acts or omissions must be determined by experience; that is, whether the circumstances under which an act is done are sufficient to sustain a charge of negligence must be determined by the common experience of mankind.

The care which the law demands from the master cannot be delegated to a servant so as to exonerate the master from responsibility to a servant who has sustained injury by reason of its non-exercise. (Pantzar v. The Tilly Foster Iron Mining Company, 99 N. Y. 372; Corcoran v. Holbrook, 59 id. 517.)

Yery different are the duties which the law imposes upon the servant. 'While he accepts the risks and hazards of the service in which he voluntarily engages, and must contribute the exercise of his faculties, he may assume that the master has performed his duty, and used all reasonable diligence to make the place where he labors safe and secure.

He assumes only tlie risks' wbicb are ordinarily incident to the employment, from causes which are open and obvious, or.which are announced to him in advance. He does not assume the risk of the master’s negligence, and the master is negligent if he fails to discover insecurities and danger which could be discovered or detected by the exercise of reasonable care.

The theory of the defendant was met by the charge of the trial judge in this way : “ If this stone had been detached so that it fell upon the bench, and if this plaintiff, in prying stones that were supporting it, became injured, he cannot recover, because it is an accident then which resulted from the nature of the employment itself. If the plaintif, in removing stone from the bench, so conducts his work that the stone that supports another falls upon his foot and crushes it, that is his lookout, but if it falls six or eight feet from the side of the hill above, and if a careful and prudent examination by the master would have revealed that danger, and he did not make the examination or have it made, then that is another question. It is a question between the master and the servant as to whether the master did what he ought to have done for the protection of the servant. * * * Because the plaintiff owes vigilance, he owes the exercise of his faculties to prevent the injury, and if an ordinary prudent man should have seen and anticipated this danger, the plaintiff was bound to anticipate it, and even if you find that the defendant was guilty of negligence, if you find that the plaintiff was guilty of negligence the action is gone. No action will lie, in a case where the plaintiff contributes in any degree to the injury resulting.”

The verdict of the jury rendered under that charge closes all the avenues of escape against the defendant, and renders interference by the appellate court impossible.

It follows from the foregoing that the motion to dismiss the complaint was properly denied, and if the exception to the charge is to be considered after the explanation of the judge, it presents no error.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

BeowN, P. J., and Pkatt, J"., concurred.

Judgment and order affirmed, with costs.


author: DykmaN, J.:

text:
    Daniel Mahoney, Respondent, v. James McWalters and Others, Appellants; Patrick E. Matthews, Respondent.

      Fraudulent conveyance — by a mortgage given by an owner to a contractor’s wife — rights of sub-contractors — notice of trial by one defendant to his co-defendant — ■ necessary where the former seeks relief against his co-defendant.

    In an action brought to set aside a bond and mortgage executed by the defendant Reddington and his wife to the defendant Mary McWalters, it appeared that Reddington employed the defendant James McWalters to erect a building upon his premises for 56,000, of which he paid §2,000 in cash1; that James McWalters agreed to take the bond and mortgage in question for the balance of §4,000 remaining unpaid; that a mortgage was executed for that amount by James McWalters’ direction to his wife, Mary McWalters, and that upon its execution James McWalters gave to Reddington a receipt in full. It further appeared that several sub-contractors under McWalters were unpaid, and that the mortgage was prior to any liens which they had filed, or were entitled to file against the property.

      Held, that the execution of the bond and_ mortgage was in fraud of the rights of such sub-contractors, and should be set aside.
    One of the lienors was the Ulster Blue Stone Company, made a defendant in the action, and it appeared that no 'party to the action except the plaintiff had served this defendant with a notice of the trial of the action.

      Held, that none of the defendants were in a position to move to amend the judgment so that it should declare the lien of the Ulster Blue Stone Company to be canceled.
    Appeal bj the defendants Janies McWalters and others from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of Queens on the 8th day of June, 1895, upon the decision of the court rendered after a trial at the Queens County Special. Term; also an appeal by the defendants John C. Orr and others-from the said judgment, except so far as the same gives them judgment for $849.72 and interest, and establishes their lien for that sum; also an appeal by the defendant Michael Reddington from an order of the Supreme Court, made at the Dutchess County Special Term and entered in the office of the clerk of the county of Queens on the 3d day of August, 1895, denying a motion made by the defendants McWalters and Reddington to amend such judgment, so as to provide for the dismissal of the claim of the Ulster Blue Stone Company and for the cancellation of its lien upon the premises affected by this action; and separately from so much of said order as awards costs to the plaintiff.

      Oha/rles L. Pashley, for the appellants Reddington and McWalters.

      Michael J. /Scanlan, for the appellants Fitzpatrick and McCauley.

      Alfred JB. Oruikshemh, for the appellants John O. Orr & Co.

      Iíóbert J. Mahon, for the plaintiff, respondent.

      A. M. <& G. Gcvrd, for the respondent P. E. Mathews.
   DykmaN, J.:

This is an appeal from a judgment entered upon a decision of the court after a tidal at the Special Term, setting aside a bond and mortgage executed by the defendant Reddington and wife to the defendant Mary McWalters. The facts are these: The defendant Reddington is the owner of the premises on the corner of Washington and Vernon avenues in Long Island City.

In the spring of 1894 he employed the defendant James McWalters to erect a building on those premises at the agreed price of $6,000. During the progress of the work he paid McWalters $2,000 in cash.

In order to raise the other $4,000 he made application to the firm of John L. Reher & Sons for a loan for that amount to be secured by his bond and mortgage covering the said premises.

That application was rejected, and thereafter McWalters agreed to take a mortgage on the premises for $4,000 in satisfaction of the balance due him on the contract. By McWalters’ direction this mortgage was executed to his wife, Mary McWalters, on the 26th day of September, 1894, and a receipt in full was given to Reddington by McWalters.

The plaintiff is a sub-contractor who did the plastering on the building under the contract with McWalters, and claims the sum of $521 to be still due him for his work. The defendant Mathews is a sub-contractor and has filed a lien for $252.42 against the premises. The defendants John C. Orr & Co. had furnished McWalters with material which he used in the erection of this building, amounting to $849.12.

The mortgage of Reddington was given and received in payment of the balance remaining unpaid upon the contract for building his house, and the insertion of the name of Mary McWalters was by the direction of James McWalters, the creditor, and he thereupon satisfied his claim.

That transaction would have been valid as between the parties if the rights of creditors had not intervened, but it operated as a fraud upon other creditors, and as to them it was void. It put $4,000 of the property of Reddington beyond the reach of his creditors, and it placed the mortgage beyond the reach of the creditors of McWalters, of whom the plaintiff is one.

McWalters had built a house for Reddington at a cost of $6,000; the plaintiff did the plastering, and Mathews and Orr & Co. furnished materials for the house. They were all creditors of McWalters and were also entitled to acquire liens upon the property, and the postponement of them and their subordination to the mortgage was a fraud upon their rights, and the wrong was aggravated by placing the mortgage itself heyond their reach. Under such circumstances the mortgage was inequitable and could not be permitted to stand in the way of the creditors. Its destruction let in the liens in their regular order and justice was wrought out.

There is also an appeal from an order denying a motion to amend the judgment entered in the action so as to provide for the cancellation of the'lien of the Ulster Blue Stone Company, one of the defendants in the action. Neither the appellant nor any party to the action except the plaintiff served notice of trial upon the stone company.

He was not, therefore, in a position to make any move against that company upon the trial. The plaintiff made none and asks nothing now except to have the judgment stand as entered. There is no authority for the cancellation of a lien in this way, and the motion was properly denied.

The judgment must be affirmed, with costs, and the order must be affirmed, with ten dollars costs and disbursements.

BeowN, P. J., and Beatt, J., concurred.

Judgment affirmed, with costs; order affirmed, with ten dollars costs and disbursements.


author: .DyemaN, J.:

text:
    Ernest F. Bliss, Jr., and Albert E. Bliss, Respondents, v. Frank C. Raynor, Appellant, Impleaded with William S. Raynor.

      Property exempt from execution — insurance upon exempt property — waiver of the exemption.

    The court will not order money, which, is due a defendant from an insurance company, because of a loss by fire, under a policy of insurance covering property exempt from execution, to be paid to a receiver of the judgment debtor, appointed in proceedings supplementary to execution.
    The fact that the judgment debtor at one time expressed a willingness that this disposition should be made of the moneys in question is immaterial, where it appears that he changed his mind before an application was made by the creditor for an order to that effect.
    Appeal by the defendant, Frank O. Raynor, from an order of the County Court of Suffolk county, entered in the office of the clerk of the county of Suffolk on the 26th day of April, 1895, directing the New York Underwriters’ Agency and the Norwich Union Fire Insurance Company forthwith to pay to one Ernest W. Tooker, receiver of the property of Frank O. Raynor, the amount due from said companies, over and above one-half the amount due upon a judgment recovered in favor of one Henry Sayre against said Frank C. Raynor and William S. Raynor, and also from an order entered in said clerk’s office on the 15th day of June, 1895, denying said defendant’s motion to vacate such order, and vacating the stay of proceedings granted thereunder.

      Timothy M. Qriffing, for the appellant.

      Walter H. Jaycox, for the respondents.
   .DyemaN, J.:

This is an appeal from an order of the County Court of Suffolk county requiring two insurance companies to pay to the receiver of the property of the defendant, the amount due from each company over and above one-lialf of the amount due upon a judgment in favor of one Henry Sayre against said Frank C. Raynor and William S. Raynor, and also from an order of the County Court denying the application of the appellant to vacate and set aside the first-mentioned order.

The sole question involved is whether the sum of $144.90, due the defendant, Frank O. Raynor, from two insurance companies upon an insurance of exempt property, shall be paid to the receiver in supplementary proceedings in this action or to the judgment debtor. The pretense for the payment of the money to the receiver is that the judgment debtor once expressed his willingness to have it so applied.

A sufficient answer to that position is that the appellant has repented and now claims his legal rights, and no one has been or will be injured by the change.

The exemption from seizure and sale of certain property of a householder is a humane provision in favor of families, and it is the duty of the courts to enforce its execution.

The family of the judgment debtor is entitled to the protection and benefit of this benign statute, and these orders defeat that intention.

The orders should be reversed, with ten dollars costs and disbursements, and the money in question be directed to be paid to Frank C. Raynor.

Beowjst, P. J., and Peatt, J., concurred.

Orders reversed, with ten dollars costs and disbursements, and money directed to be paid to Frank C. Raynox*.


author: DyKmaN, J.:

text:
    Andrew J. Nutting, Respondent, v. The Kings County Elevated Railway Company, Appellant.

      Railroad corporations — contract with, in relation to damages for easements taken— its attorney cannot bind a corpora/Hon — proof required to establish the contract— setting aside verdicts against corporations.

    The law imposes upon the plaintiff the burden of establishing his cause of action by a preponderance of proof, and whore he asserts an agreement he must sustain his position with reasonable certainty by evidence which justifies the court and jury in deciding in his favor.
    An attorney who is acting for a corporation has no power as such to make a contract which can be enforced against the corporation.
    A person who deals with the agent of a corporation is bound to know the extent of the authority of the agent of the corporation, and if he sues upon an offer or promise made by such agent be is bound to show that the agent was either authorized to make such offer or promise or that the acts of the agent were acquiesced in or ratified by the corporation.
    There is no reason why there should exist in the appellate court any hesitation in reversing a judgment based upon the verdict of a jury in an action against a corporation.
    Appeal by the defendant, The Kings County Elevated Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 13th day of March, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 13th day of March, 1895, denying the defendant’s motion for a new trial made upon the minutes.

      Delos Me Curdy, for the appellant.

      Edward M. Cront, for the respondent.
   DyKmaN, J.:

This action is for the recovery of the sum of $9,000 which, it is claimed, the defendant agreed- to pay. the .plaintiff, for his consent to the construction and operation of its railroad in front of his premises in Eulton street in the city of Brooklyn, and for the postponement of an argument in the Court of Appeals. There is no allegation in the complaint and no proof in the evidence of the value of the easements taken or impaired by the acts of the defendant or of the damage resulting from the construction and operation of the defendant’s railroad. The action is not based upon an impairment of the easements appurtenant to the plaintiff’s property, but is founded solely upon an agreement of the defendant to pay the plaintiff the sum of $9,000. 'While it may be true that the consent of the plaintiff to the construction of the road operated as an irrevocable license and an abandonment by him of the easements appurtenant to his property, and that he was entitled to payment therefor, that fact does not affect the case as it is now presented.

The plaintiff did not abandon his claim for damages, and is entitled to compensation for the consequential injury resulting to his property from the acts of the defendant if any injury has resulted therefrom. But the damages must be liquidated and fixed in some legal mode. He might have sued the company for Ms damage, but he has not done so. He has brought a suit for the recovery of $9,000, based upon a special agreement to pay him that sum.

The cause was tried at the Circuit before a juiy, and at the close of the testimony the trial judge submitted this question to the jury: “ I want you to answer this question: Did the defendant agree with the plaintiff that it would pay him $9,000 in settlement for its right of way in front of his property in Fulton street, and for his damages from the construction and operation of its road, if he would consent to the adjournment of his appeal in the condemnation proceedings until such time as the appeal in the Union Elevated case was reached. If so, you will mark ‘Yes’ on that paper; if not, you will mark ‘ No.’ ”

There was an exception taken by the defendant to this manner of submitting the case to the jury, but the jury retired and returned with the word “yes” written on the paper. Thereupon the justice directed the jury to find a verdict for the plaintiff agains.t the defendant for $9,000, with interest from November 27, 1888. The verdict was then directed against the defendant for $12,400. To the direction of the verdict an exception was taken, and a motion was made for a new trial upon the minutes, which was denied.

The special finding of the jury is that the defendant agreed to pay the $9,000 in settlement for the right of way in front of the property of the plaintiff, and for his’ damages resulting from the construction and operation of the railroad, provided he would consent to the adjournment of his appeal (meaning doubtless the argument of the appeal) in the condemnation proceedings.

Upon the appeal from the order denying the motion for a new trial on the minutes of the court, we must examine the testimony to find whether it was sufficient to justify the direction of the verdict.

The law imposed upon the plaintiff the burden of establishing the cause of action set up in his complaint by a preponderance of proof. Having affirmed the existence of the agreement, he was required to sustain his position with reasonable certainty by evidence which would justify the court and jury in deciding in his favor. We will see if he did. But two witnesses gave testimony respecting the agreement, the plaintiff and his lawyer. The latter said nothing about the agreement, except that Judge Shea gave him a letter and told him to meet Judge Russell, and tell him the agreement that had been made. Of course that proved nothing, and the sole support of the verdict must be sought in the testimony of the plaintiff, to which we will now turn. He states his ownership of the property, the construction of the railroad in front of it, and that he signed a written consent therefor, and such consent was read in evidence. It left unaffected the plaintiff’s right to and the extent of his compensation. He next stated what he said to the person who solicited his signature, whose name he did not know. He said, “I inquired if they were paying any of the Fulton street property owners. He said they were not. I said, I am willing to sign, but if they pay any of the others, I want the railroad company to pay me the same. He said they certainly would.” Subsequently he had a conversation with Mr. Goodwin, the vice-president of the railroad company, in which he (the plaintiff) stated to him that the railroad company had paid others, and named persons who had been paid ten per cent on the assessed valuation of their property, and asked that it should pay him.

He said that Goodwin stated that one of the two directors were in Europe, but that at their first meeting the plaintiff’s case would be brought up, and he could rest assured that they would treat him fairly and right. That was in 1887.

He testified that he saw Goodwin some time after, and that the very same thing was said then; that they were to get together, and finally that the plaintiff had better see Judge Shea; that he had the matter of the settlement with the property owners along Fulton street in his hands. He says he went to see Shea a few days thereafter, and told him that he was going to Europe; that they had put him off from time to time; that Goodwin had promised him that they would treat him right.

Fie says Shea said: I understand all that. Now you can go right along to Europe, and you will be paid the same as we paid the other Fulton street property owners; as much' as we have paid the others we will pay you. I asked him about ten per cent of the valuation, and he said ten per cent was the highest they had been paying.

Then he went to Europe, and on his return he saw Goodwin again; he said they had no money; that “We will sweep up here, and if there is anything left we are going to do something for you.” He says be then commenced a suit to enjoin the road. That was in .December, 1887. The plaintiff further testified that in the latter part of 1888 he went with his attorney to a law office in New York city, and had a conversation with Judge Shea, who told him that he was ready to settle the plaintiff’s case and any others; that he wanted to have the argument in the condemnation proceedings in the Court of Appeals postponed. This is the plaintiff’s language :

“ The case was coming on at Albany, and it came up at the same time the Union Elevated railroad case was to come up, and I was to be paid, no matter how my case went, as much as anybody on Eniton street had been paid. That was his argument all through. I was to receive as much as anybody on Fulton street had been paid. The rate per cent was named. Ten per cent of the assessed valuation of my property. I told him how much the assessed valuation of my property was, to wit, $90,000. He said he would pay .me $9,000, ten per cent on that. I said that anything my attorney assented to I would do.”

That completed the testimony of the plaintiff on his direct examination, and it was not varied upon his cross-examination, except so as to make it somewhat doubtful whether the $9,000 spoken of was for the adjournment or the damages. We shall assume in the further consideration of the case that it was for the latter, and that will obviate the necessity of an examination of that question, and do the plaintiff no injustice. There is nothing in the testimony which tends toward the formation of an agreement with the plaintiff down to the second interview between him and his counsel with Judge Shea in the latter part of the year 1888. Let us see. The unknown man who procured the plaintiff’s signature to the consent before referred to said that the company would pay the plaintiff if it paid any others. That was a promise. Who made it? There is no .proof either of his identity or his status.

Can liability be imposed upon a corporation in that way ? The admission of the testimony was plainly erroneous unless the authority of the person to make the statement was to be thereafter shown, and as that was not proven the testimony can have no effect in the action.

In the first conversation with Goodwin he said nothing of importance except that the company would treat the plaintiff fairly. In the second conversation he referred the plaintiff to Judge Shea, who said nothing about payment, except that ten per cent was the highest the company had paid. In the second conversation with Goodwin he said that if there were anything left they were going to do something for the plaintiff. In the second conversation with Shea, in the presence of the lawyer of the plaintiff, Shea said he would pay the plaintiff $9,-000, and the plaintiff then said, anything his attorney assented to he would, and his attorney gave no consent. That testimony fails to prove an agreement.

At most all Judge Shea said constituted only an offer which was not accepted, and in his cross-examination the plaintiff gave the reason why he did not accept the offer. He said: Judge Shea agreed to give ten per cent, the same as the others. I was going to try and find out if there was anybody who got twenty per cent; if there was, I wanted twenty per cent. He was going to give me as much as anybody else.” The plaintiff did not intend to close with Judge Shea at that time. He intended to ascertain if any one had gotten twenty per cent, and if there were he wanted the same. Yet he never saw Judge Shea thereafter, and never accepted his offer in any way, and he did not find that any one had received twenty per cent or ten per cent.

It does not appear that any one was paid anything. Even between Judge Shea and the plaintiff, therefore, their minds never met. No arrangement between them ever received the assent of both parties, and that essential requisite to a valid contract is entirely wanting in this case.

Moreover, there is no proof of authority vested in Judge Shea to make any agreement that would be binding upon the company. He was a lawyer, and acted as such for the defendant, but in that capacity he had no power to make contracts, and the plaintiff failed to show that he sustained any relation to the company that authorized him to make or accept any proposition which could be enforced against the company. Neither was there any proof that the company ever acquiesced in or ratified any act done or promise made by Shea in this or any other matter. There is no evidence in the case to show any action by the company in relation to the plaintiff or his property, and it cannot be made responsible without proof of corporate action of some sort, and the absence of any such action is an insurmountable obstacle in the pathway of the plaintiff. The plaintiff could not rest upon the simple offer or promise of Shea. He was bound to know the extent of his authority (Jemison v. Citizens' Savings Bank, 122 N. Y. 140; Wilson v. Kings County Elavated Railroad Co., 114 id. 487); nay, more; he was bound to prove his authority (Martin v. Farnsworth, 49 N. Y. 555), or a ratification of his acts by the company, and he made no effort to do either. Plainly, therefore, the testimony failed to prove an agreement by the defendant, and the verdict is entirely destitute of support.

We are requested to spare this verdict because it is the second one that has been rendered in favor of the plaintiff in this action, and there are cases where such a plea has been respected.

In fact, judges have said that they interfere with the.verdicts of juries with hesitation, but such reluctance is the product of education and not of reason.

A respect amounting almost to veneration for trial by jury has been inculcated upon the minds of lawyers and judges. It has been the theme of unbounded panegyric and exalted encomium. It has been termed the palladium of civil rights. Judge Blackstone bestowed upon it an extravagant eulogium. But in his own country, throughout the reigns of Queen Elizabeth and her predecessor and successor on the throne, the juries rarely withstood the crown lawyers and the partisan judges.

The historian Ilume says: There scarcely occurs an instance during these reigns that the sovereign or the ministers were ever disappointed in the issue of the prosecution.” Instead of standing between the crown and the accused, the juror “ sought his own safety in the surrender of his victim.”

In this country the experience in criminal prosecutions has been the converse, and verdicts of acquittal have been the theme of just criticism.

Modern times have witnessed an unwonted increase in the number of actions for negligence against corporations, and experience and observation teach us that those suits are instituted in reliance upon the disposition of juries to find verdicts against corporate bodies. That disposition is the weak point in the jury system, and with the knowledge of its existence the appellate courts are called upon to scrutinize vei’dicts which are destitute of support in. the evidence, or which are against the preponderance of proof, even though they are the second of their kind. Appellate tribunals cannot abdicate their functions; the law lias clothed them with the power of review, ■and it should be exercised with freedom.

Like all human tribunals, a jury is liable to err. Jurors take no notes of testimony; they rely upon their memory, and their conclusions are usually reached in a few hours. Misconception is liable to ensue from a want of time for deliberation.

In actions against corporations the verdicts of jui’ies are often unsatisfactory, and plainly the result of misconception, prejudice or partiality.

We see no reason why the review of a judgment based upon the verdict of a jury should be approached or conducted with hesitation.

The power vested in this court is unlimited, and what has been said is sufficient to show that it should be fearlessly exercised. There is little danger that a judgment will be reversed by an appellate court, upon a question of fact, where it is supported by evidence, whether it be based upon the verdict of a jury or the decision of any other tribunal.

A careful examination of this case under the control of the usual respect entertained for the verdict of a jury leads us to the conclusion that the verdict is unsupported by the evidence, and the judgment and order denying the motion for a new trial should be reversed and a new trial granted, with costs to abide the event.

Pratt, J., concurred; Brown, P. J., not sitting.

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


text:
    In the Matter of the Grading, Construction and Improvement of Fifth Avenue from Sixty-fifth Street to the City Line of Brooklyn in the Town of New Utrecht. Henry Martin and Others, Commissioners, Respondents; Charles C. Goodrich and William H. Langley, as Executors, etc., of William C. Langley, Deceased, and Henry C. Hopkins, as Executor of Henry A. Kent, Deceased, Appellants.

      Grading commissioners, appointed by the board of supervisors for a town, are not town officers — finality of an award.

    Where commissioners have been duly appointed to grade a street and no misconduct or misapprehension is charged upon them, and no claim is made that they adopted any illegal rule or principle in making their assessment, an appellate court will refuse to interfere upon mere questions of amount, unless the sums awarded by the commissioners are so inadequate or so large as to be palpably unjust.
    Commissioners appointed pursuant to chapter 289 of the Laws of 1892, by a resolution of the board of supervisors of the county of Kings, to open, drain and grade streets in a town of that county, are not town officers and cannot be properly denominated town officers. The proceedings under the statute are special.
    Appeal by the contestants, Charles C. Goodrich and another, as executors, etc., of William C. Langley, deceased, and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office- of the clerk of the county of Kings on the 29th day of May, 1895, confirming the report of the commissioners theretofore appointed in the above-entitled proceeding.

      II. IS. HuVba/rd, for the appellants.

      James G. Ohureh, for the respondents.
   Dykman, J.:

This is an appeal from an order affirming the report of grading commissioners, and the controlling facts are these:

By a resolution of the board of supervisors of the county of Kings, passed September 13, 1893, in pursuance of the authority of subdivision 9 of section 1 of chapter 482 of the Laws of 1815, as amended by chapter 289 of the Laws of 1892, provision was made for the opening and grading of Fifth avenue in the town of New Utrecht.

Commissioners were appointed and the street was opened. Thereupon grading commissioners were appointed.

When the presentation of their report for confirmation took place objections were made thereto by the appellants, whose respective testators were the owners of property within tire assessment district.

The objections were overruled and the report confirmed, and from the order of confirmation tire contestants have appealed to this court.

The objections are, first, in relation to the amount of the assessment.

Second. As to the legality of opening a portion of the avenue ; and,

Third. That the commissioners have been legislated out of office.

No misconduct or misapprehension is charged upon the part of the commissioners, and there is no claim that they adopted any illegal rule or principle in making their assessments.

Under such circumstances appellate tribunals refuse to interfere upon mere questions of amount, unless the sums awarded are so inadequate or so large as to be palpably unjust. No such case is presented by this record.

The second objection requires no consideration. It is plainly frivolous.

The third objection presents no error. These proceedings are special, and the commissioners appointed therein are not town officers, and cannot bo properly denominated town officers.

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

Brown, P. J., and Pratt, J., concurred.

Order affirmed, with ten dollars costs and disbursements.