text:
    In the Matter of the Application of Elizabeth Nolan, as Administratrix, etc., of William Nolan, Deceased, Appellant, for Leave to Take and Perpetuate the Testimony of Joseph Payette, Respondent.

      TSxamination of a proposed party, before the commencement of an action, to ascertain the propter parties to be made defendants.

    The administratrix of a workman who had been killed by an accident in a mine in which he was employed, applied for an order to examine, before the commencement of a proposed action against the owners or operators of the mine to . recover the damages resulting from the death of her intestate, the person who had employed the deceased, and who controlled and directed the work at the time of the accident, which was alleged to have been caused by the negligence of such person as one of the owners or operators, in order to enable the administratrix to ascertain who were the owners or operators of the mine, so as to determine the proper parties to be made defendants in framing her complaint.
    It was stated in the opposing affidavit of the person sought to be examined that he was the superintendent of the mine at the time of the accident.

      Reid, that the superintendent of the mine presumably knew who his employers were and who were engaged in operating the mine; that he would be a proper defendant in the proposed action and was, therefore, a proper person to examine as a party; and, hence, that an order for his examination so limited as to elicit only information as to who would be proper parties defendant was properly granted.
    Appeal by Elizabeth Nolan, as administratrix, etc., of William Nolan, deceased, from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of Clinton county on the 2tth day of October, 1892, vacating an order of a justice of the Supreme Court for the examination of Joseph Payette, as a witness before the commencement of an action.

      Wallace T. Foote, for the appellant.

      Thornes F. Oonway, for the respondent.
   Herrick, J.:

Elizabeth Nolan is the widow and administratrix of William Nolan, who was killed'while employed and at work in and about an iron mine, known as the Nelson Bush mine. Elizabeth Nolan made an application to a justice of this court for the examination, before the commencement of an action, of Joseph Payette, alleging that her husband, William Nolan, was employed by the said Payette, and while at work in the mine controlled and operated under the direction of the said Payette, Payette negligently, carelessly and unskillfnlly conducted the business of mining in said mine, where Nolan was employed. That the mine became, by reason of Payette’s negligence and carelessness, unsafe and dangerous for the workmen employed therein, particularly to the deponent’s intestate, but of which danger said intestate had no notice or knowledge, and that by reason of the negligence and carelessness of Payette in conducting the business of mining, said William Nolan was, without any fault or want of care on his part, killed, by reason of which the deponent has sustained pecuniary loss and damages to the amount of $5,000.

She further alleges in her affidavit, upon information and belief, that one James Yance and one John M. Glidden were interested in common with said Payette, as owners, lessees or otherwise, in the said mine, or in the product thereof. That the sources of deponent’s information and grounds of her belief are common repute in and around the neighborhood of the said mine, and from conversations had with the intestate prior to his death, and with others who then worked and are now working in said mine and in other mines in the neighborhood, wherein mining operations were directed by the said Payette.

That she has no other sources of information, except the testimony of Payette, as to the interest of Payette, Glidden and Yance .in or to said mine, or as to whether they were in partnership in the operation of said mine. That Yance and Glidden reside in West Yirginia. That she has employed attorneys of this court to bring action against said Payette and other parties interested in the said mine, if any there be, to recover the damages sustained by her by the death of her husband.

That the testimony and examination of Payette is necessary and material for her for the prosecution of such proposed action, as she is advised by her counsel, and to enable her to frame her complaint in such action, and afford her an opportunity to discover the facts in relation to the ownership of said mine, and the control and operation thereof at the time of the death of the intestate, so that she may make the necessary allegations pertinent to the ownership of the mine, or to the possession and. operation thereof, and to prove the facts material and necessary to be proved upon the trial.

That the discovery sought is necessary to ascertain the extent of the interests of the said Payette, Glidden and Vance in the said mine, or as to what those interests are, or as to whether said mine is operated by them as partners, or as to whether the said mine is operated by Payette as sole owner or lessee, or as to whether or not Payette, Glidden and Vance are partners in the ownership of the mine, or in the products thereof, or whether there are other interested parties in said mine.

That such facts are within the personal knowledge of said Payette, and not within the knowledge of the deponent.

Upon such affidavit an order was granted for the examination of Joseph Payette. In the order such examination was limited to the determination of what interests the said Joseph Payette had in the mine at the time stated, and what interest Glidden and Vance had in said mine, if any, and whether the said mine was operated by them and Payette as partners, or whether there are other parties interested in said mine.

That after the granting of such order the said Payette, upon his own affidavit and that of his counsel, applied to a Special Term of this court for an order to vacate the order providing for the examination of Payette.

That in his affidavit Payette stated and alleged that there were other persons killed and injured in the same accident by which Nolan lost his life; that the same attorneys who represent the applicant in this case had been retained by the representatives of all the parties killed or injured in said accident to prosecute their alleged . claims.

That an action has been commenced by such attorneys in behalf of one of such parties against the Arnold Ore Company; that an answer has been interposed in such action, among other things alleging that such mine was not operated by the Arnold Ore Company at the time of the accident, but was operated by one John M. Glidden. That in that action an order was made requiring Payette to appear and be examined as to the affairs of the said Arnold Ore Company, which order was thereafter vacated and set aside.

He further alleges that he has no interest in the mine or its products, and no ownership or title therein at the time of the accident; that his only interest is simply that of a superintendent of the mining operations therein conducted. He further alleges that he “ has no personal knowledge as to what interest either John M. (Hidden or James Yance, or either of them, has in said mine, or had at the time stated.”

That at no time prior to the service of the affidavit and order upon him in this proceeding had he been in any way informed by Elizabeth Nolan, or anybody representing her, that she had, claimed or pretended to have any cause of action against him by reason of said accident. That she had never made any demand upon him for a settlement of the same, or in any way claimed that he was in anywise liable for said accident. He also alleges in his affidavit that he believes the order was procured in bad faith and for the purpose of annoying him and accomplishing in another way what was sought by the order that was vacated in the other action. .

The Special Term upon such application vacated the order for the examination of Payette, and from that order the applicant, Elizabeth Nolan, appeals to this court.

That a person intending to bring an action may examine the proposed adverse parties before a trial, has been decided in Merchants’ Nat. Bank v. Sheehan (101 N. Y. 176).

The appellant in this case states in her affidavit the cause of action, and that she has employed attorneys to prosecute it; that she desires this examination for the purpose, among other things, of preparing the complaint in such proposed action. That a person is entitled to an examination to discover the facts claimed by him to be necessary to enable him to frame his complaint has been decided in Glenney v. Stedwell (64 N. Y. 120); Fatman v. Fatman (45 N. Y. St. Repr. 859); Raymond v. Brooks (59 How. Pr. 383); Hutchinson v. Lawrence (29 Hun, 450).

This examination is not sought for the purpose of ascertaining whether the applicant has a cause of action, but to ascertain who the cause of action is against.

It sufficiently appears, I think, from the affidavits, that there is some doubt as to who are the owners or operators of the mine where the accident happened.

It appears from the respondent’s affidavit that another action, founded upon the same accident, has been commenced by another party, appearing by the same attorneys who represent the appellant in these proceedings, and that an answer has .been interposed denying that the defendant in that action operated the mine at the time of the accident, and alleging that it was operated by one John M. Glidden, one of the very persons that the appellant alleges in her affidavit, she is informed and believes, was interested in operating the mine in connection with another or others; so that it appears from the respondent’s own affidavit that a question has arisen as to who operated the mine at the time of the accident, and was responsible for any negligence in such operation.

That it is necessary to enable the appellant to frame her complaint to ascertain who are the proper defendants, who were the owners or operators of the mine at the time of the accident, I do not think can be questioned. The allegation as to who were the owners or operators of the mine is a most necessary and important part of the complaint, and it seems to me that appellant is entitled to an examination to discover such necessary facts. (Sweeney v. Sturgis, 24 Hun, 162.)

The respondent Payette is a very proper person to examine for that purpose ; he is the one who employed the intestate ; he was, according to his own affidavit, the superintendent of the mine at the time of the accident, and presumably he knows who his employers were, and who were engaged in operating the mine ; he would be a proper person as defendant in the proposed action, and, therefore, a proper person to examine as a party.

His sworn denial of his ability to furnish the information sought is not sufficient to defeat the application, even where that denial is broad enough to cover any or all knowledge upon the subject. (Davis v. Stanford, 37 Hun, 531-533; Olney v. Hatcliff, 37 id. 286.)

But in this case the respondent does not say that he has no personal knowledge as to whether Glidden or Yance had any interest in the mine at the time stated; his denial is in this language: “ The deponent has no personal knowledge as to what interest either John M. Glidden or James Yance, etc.,” which is not inconsistent with his having personal knowledge that they had some interest in operating the mine, or were copartners therein.

Tbe order for tbe examination was so limited in its scope that it could not be used for fishing purposes; it was confined to tbe eliciting of information as to wbo were operating said mine at tbe time of tbe accident,, and would, therefore, be proper parties defendant.

It seems to me, therefore, that tbe order for the examination was properly granted, and that tbe order of tbe Special Term vacating tbe same, should be reversed, with costs of motion, together with ten dollars costs of this appeal, and printing and other disbursements.

Mayham, P. J., and PutNam, J., concurred.

Order reversed, with costs of motion, and ten dollars costs of appeal and printing disbursements.


source: Caselaw Access Project

author: Herrick, J.:

license: Public Domain

text:
    Abraham Veeder, Appellant, v. Abram Relyea, Respondent.

      Bight of way by prescription — knowledge of claim of right — mutual grant.

    There are two ways of establishing a right of way by prescription or user ; one, by use, combined with actual knowledge on the part of the owner whose land is being used, that the party using his land claims a right to so use it; and the other, by a use so open and notorious, that knowledge of a claim of right wall be presumed.
    When, in an action of trespass upon land, the defendant alleges, in justification, and gives evidence tending to prove a right of way in himself over the plaintiffs land by prescription and adverse use, evidence on the part of the plaintiff, disproving actual knowledge of any claim of right by the defendant, is competent and material.
    Evidence that each of two contiguous land owners had been accustomed to use a portion of the other’s land for passage, and that each had subsequently forbid, den the other to use his land, does not, of itself, raise a presumption of an original mutual grant which will take from the jury the determination of the question whether there was such a grant.
    Appeal by tbe plaintiff, Abrabam Yeeder, from a judgment of tbe Supreme Court in favor of tbe defendant, entered in the office of tbe clerk of Albany county on tbe 2'Tth day of May, 1892, upon tbe verdict of a jury rendered at tbe Albany'Circuit, and from an order denying tbe plaintiff’s motion for a new trial, made upon tbe minutes.

      Robert J. Lcmdon, for tbe appellant.

      J. H. Glute, for the respondent.
   Herrick, J.:

Tbis is an appeal by tbe plaintiff from a judgment entered upon tbe verdict of the jury in favor of tbe defendant.

The action was brought by tbe plaintiff against tbe defendant for an alleged trespass committed by tbe defendant upon plaintiff’s land and private road, breaking tbe lock and entering through tbe gate' of tbe plaintiff, and in and upon tbe land and private road of tbe plaintiff and damaging it.

Upon tbe trial tbe plaintiff limited bis claim for damages to tbe trespass committed upon tbe road and no other place.

Tbe defendant in bis answer denied the trespass and alleged that the private road mentioned by tbe plaintiff in bis complaint, was a private road belonging to, and in possession of, the defendant as a right of way from a public highway, and alleged that be bad been in possession and occupation of tbe same for over thirty years, and that bis grantor had bad uninterrupted possession, occupation and use thereof for some years before the plaintiff purchased tbe property from bis, the defendant’s, grantor.

TJpon tbe trial the plaintiff proved title in himself to tbe premises in question, and the defendant attempted to prove tbe use and occupation by himself and bis grantor of said private road, and attempted to establish a right of way in himself by user.

After tbe close of tbe defendant’s case, evidence having been given in bis behalf tending to show that be had for a long series of years been accustomed to traverse tbe land of the plaintiff over tbe private road in question, or in tbe immediate vicinity thereof, tbe plaintiff in rebuttal was recalled as a witness in bis own behalf, and asked the following questions :

“ Q. Since Abram Relyea moved onto bis farm in 1858, have ' you up to tbe time of tbe commencement of tbe present trouble, known that be claimed a right of way over your land ?
“ Q. From 1858 down to tbe commencement of tbis trouble, did you know that Abram Relyea when he crossed your land, crossed under a claim of right to cross ?
“Q. From tbe use made of your lands by Abram Relyea in passing from tbe rear farm to the highway, and from your use of bis lands in order to get to your back lot, bow did you understand tbe way to be used ?
u Q. Did you believe and .understand that Abram Relyea’s use of your road during tbe time you used Ms lands was a matter of mutual convenience ? ”

Objections were made to each of them on the part of the defendant, and the objections sustained and the evidence ruled out.

The evidence introduced by the defendant had been to prove a right of way in himself over the land of the plaintiff by prescription 'and adverse use; there is no claim or pretense of any grant. To make title by prescription or adverse user, the use and possession must be under a claim of title. (Trustees of East Hampton v. Kirk, 68 N. Y. 459-465.)

This claim of right or title must be with the knowledge of the person against whom it is made; it must not be a use or occupation, clandestine or by stealth, and unknown to the servient owner. (Ward v. Warren, 82 N. Y. 265.)

It may be established by showing actual knowledge on the part of the person against whom the adverse user is claimed, that the person using the land claims he has a right or title to use it, or by a visible, open and notorious use, so visible and notorious that knowledge of such use or claim by the servient owner will be presumed. (Treadwell v. Inslee, 120 N. Y. 458-465.)

Thus it will be seen that there are two ways of establishing a right of way or use by prescription or user, one by use combined with actual knowledge on the part of the owner whose land is being used, that the one using Ms land claims a right to so use it, and the other by use so open and notorious that knowledge of a claim of right will be presumed.

It follows, it seems to me, that evidence in negation of either one or‘both of these ways of acquiring the right by use, is perfectly competent and material; evidence disproving actual.knowledge of any claim of right compels the party to rely upon the other way to establish his claim ; that is, that-the user was so visible, open and notorious that the law would presume knowledge; where a party has actual knowledge of the . claim, much less evidence would be necessary to establish a right by user than when it appears that as a matter of fact he did not have actual knowledge of the claim wMch the person made who was using his land.

Eor that reason I think the learned trial justice erred in sustaining the objections to the questions herein set forth.

It appeal’s in the case that the private road so called reached to the defendant’s premises, and that the plaintiff was accustomed to cross the defendant’s premises for a short distance to reach a back lot belonging to him, so that they mutually used each other’s land.

Sometime in the year 1877 the defendant, through his attorney, forbid the plaintiff the use of his land, and thereafter plaintiff notified the defendant that he must not use his land.

The only evidence of any grant, mutual or otherwise, is the fact that each used a portion of the other’s land. Just where it was used, or whether the same line of travel had always been used by them, seems to be in some doubt; there is a conflict in the evidence in relation thereto.

In submitting the case to the jury, the court-charged, among other things, the following: “ There being no direct evidence of an agreement under which the user commenced, there is nothing to rebut the presumption of a mutual grant.”

This in substance is a direction to the jury that the evidence raised the presumption that there was a mutual grant, and that there was no evidence in the case to the contrary, and substantially took from the jury all consideration of the evidence, and did not leave them at liberty to determine from the evidence whether there was or was not a mutual grant, but was practically a decision by the court, that as a matter of law upon the evidence presented, “ There was a mutual grant of a right of way.” This I think was error. Whether there was or was not such a grant was a question of fact to be determined from all the evidence in the case; the notice given by each of the parties to the other was evidence to be taken into consideration by the jury as to how the parties themselves understood the matter.

Eor the errors indicated the judgment should be reversed and a new trial granted, costs to abide the event.

Mayham, P. J., and Putnam, J., concurred.

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


text:
    Daniel H. Deyoe, Appellant, v. William Ewen and Others, Respondents.

      Sheriff and deputy — agreement for division of fees.

    An agreement made between a sheriff and Ms deputy for a division between them of fees earned and received by the deputy not due or belonging to the sheriff as such (such as fees received by the deputy in criminal proceedings for services which are not performed necessarily by a sheriff or deputy sheriff as such, but which may be performed by any peace officer), is contrary to public policy, and a bond given to secure payment thereof by the deputy to the sheriff in accordance with the agreement, is void.
    Appeal by the plaintiff, Daniel H. Deyoe, from a judgment of the Supreme Court in favor of the defendants, upon the merits,, entered in the office of the clerk of Saratoga county on the 27th day of March, 1893, upon a decision of the court granting a non-suit, and dismissing the complaint, rendered after a trial by the. court without a jury, at the Saratoga Circuit.

      Edgar T. Braelcett, for the appellant. _,,.;

      T. F. Hamilton, for the respondents.
   Herrick, J.:

The plaintiff in this action is the sheriff of Saratoga county; the defendant Ewen is the deputy sheriff appointed by him, and the other defendants are sureties upon Ewen’s bond.

The bond given provides for a division of the fees received and earned by the defendant Ewen, both civil and criminal, one-third to the plaintiff and two-thirds to the defendant Ewen, except for per diem attendance upon court, and also his fee for summoning jurors,, all of which is to be received by the plaintiff.

It appears that the defendant Ewen earned fees in criminal cases, aggregating the sum of $777.78, which sum was paid to him before the commencement of this action. He failed to pay any portion of it to the plaintiff, who thereupon commenced an action against the defendant upon said bond for one-third of the fees received by said Ewen.

Upon the trial, a judgment of nonsuit against the plaintiff was rendered, from which judgment an appeal was taken to this court.

A determination of who the fees belong to, in the first instance, determines the validity of the bond, upon which the action is brought.

Where the sheriff is entitled to fees or emoluments, an agreement for a division of them is valid.

The reason why the principal may take a stipulation for a part of his fees or profits is because the whole belongs to him.” (Mott v. Robbins et al., 1 Hill, 21; Becker v. Ten Eyck, 6 Paige, 68.)

But where the fees belong to the deputy, a division of them with his principal is regarded as a purchase of the office or appointment, and an agreement for such division is, therefore, invalid. (Tappan v. Brown, 9 Wend. 179; Becker v. Ten Eyck, 6 Paige, 68-73.)

The only finding by the court of fees earned and received by the defendant Ewen, but undivided with the plaintiff, is of fees in criminal proceedings, a very large proportion of which appears, from the evidence, to have been for the arrest of persona charged with crime.

Such services are not performed necessarily by the sheriff or deputy sheriff, as such; they may be performed by any peace officer. Section 154 of the Code of Criminal Procedure defines a peace officer to be the sheriff, under sheriff or deputy, or a constable, marshal, police constable or policeman of a city, town or village.

While it is true that in this particular case Ewen was a peace' officer because, and only because, he was a dejraty sheriff, yet the fees received by him in the criminal proceedings were received by him in payment of duties discharged as a peace officer; they were not sheriff’s fees, as such, but could have been earned by a marshal, constable or a policeman; therefore, in making the agreement for a division of them the plaintiff was not “ only reserving a part of his own and giving away the rest to another,” but was taking to himself what in the first instance was due to another.

The bond itself recognizes that Ewen might perform services and receive fees that could be performed and received by another person than a sheriff or deputy sheriff, and provides that anything that is done by Ewen that can be done by a deputy sheriff shall be done by him in that capacity, and that he should divide the fees therefor.

It appears to me, therefore, that this agreement provides for the division of fees and emoluments not due or belonging to the sheriff as such, and is, therefore, contrary to public policy, and that the bond and agreement therefor is void.

The judgment should be affirmed, with costs.

Mayham, P. J.,. and Putnam, J., concurred.

Judgment affirmed, with costs.


author: Herrick, J.: Cady, County J.:

text:
    Eugene Gardner, Appellant, v. Edward Christian, George Baker and George W. Vedder, Respondents.

      Incorporation of villages — questioning the validity of the proceedings.

    The validity of tlie proceedings incorporating a village under the statute (Chap. 291 of the Laws of 1870) cannot be attacked by means of an action brought to recover damages for the alleged conversion of property levied upon by the village collector to satisfy a village tax.
    The summary method, provided by the statute, of determining the regularity and validity of proceedings had thereunder for the incorporation of a village, is exclusive of any other proceeding.
    Appeal by the plaintiff, Eugene Gardner, from a judgment of the County Court of Columbia county in favor of the defendants, entered in the office of the clerk of that county on the 27th day of March, 1893, reversing, upon appeal, a judgment of a justice of the peace in favor of the plaintiff.
    The action was brought to recover the value of two barrels of flour, property of the plaintiff, alleged to have been converted by the defendants. The property had been seized and sold by the defendant Edward Christian, as collector of the village of Philmont, under a village tax roll and warrant issued by the other defendants .as the president and clerk, respectively, of the village.

      John P. Gadman, for the appellant.

      A. Franh B. Ohace, for the respondents.
   Herrick, J.:

I do not think the validity of the proceedings incorporating a viL lage can be attacked in the manner attempted in this action. The statute providing for the incorporation of villages (Chap. 291, Laws of 1810), provides a summary way of determining the regularity and validity of such proceedings; the remedy thus provided, I think, is exclusive; additional force is given to the ordinary rule in such cases by section 2 of title 8 of the said law, which provides that certificates of the inspectors of election, or a certified copy of the same, with the seal of office of the county clerk, shall be final and conclusive proof of the incorporation of such village, and the regularity thereof, in all courts and places, and in all actions and proceedings,, except in case of an appeal from the election, as provided for in such statute. •

I see no occasion for an opinion, inasmuch as the learned county judge has made a very careful review of the case, and the conclusion at which he arrives seems to me to be correct.

The judgment of the County Court should be affirmed, with costs.

Mayham, P. J., concurred.

Judgment of County Court affirmed, with costs.

The opinion of the county judge is as follows:

Cady, County J.:

This is an appeal by the defendants from a judgment rendered against them, and in favor of the plaintiff, by Jacob A. Hallenbeck, Esq., a justice of the peace of the town of Greenport, Columbia county, on the 10th day of February, 1893, for twelve dollars and eighty-nine cents damages and costs.

The action involves the question whether an attempt made during the year 1892 by some of the residents of certain territory in the town of Claverack, in Columbia county, to incorporate a village to be called Philmont, resulted in its legal incorporation, or failed of reaching that result.

That question is an important one, for reasons that are so apparent that they need not be enumerated here. A formal incorporation of the village has been had. Tillage officers have been elected; an assessment of real and personal property within the municipal boundaries, for municipal purposes, has been laid, and out of an effort made by the authorities to enforce the collection of a village tax, based upon such assessment, this action has arisen.

The name of the plaintiff appeared upon the assessment roll. He was assessed for real estate valued at $2,800, upon which the amount of tax levied was $5.04. This tax he declined or neglected to pay. Thereupon, the defendant Edward Christian, claiming to be the collector of the village, and acting under a warrant signed by the defendant Baker, as president, and countersigned by the defendant Tedder, as clerk of the village, respectively, did, on the 23d day of November, 1892, levy upon and carry away fronf the premises of the plaintiff, without the latter’s assent and authority, and against his will, two barrels of flour belonging to the plaintiff, of the alleged value of eleven dollars. The actual value of the flour is immaterial. It has some value, and that is enough for the purposes of the case.

Christian made the levy for the purpose of satisfying the tax against the plaintiff, who thereupon brought this action, upon the ground that the taking of the flour was an unlawful conversion of his property, and he had judgment below sustaining his contention.

That judgment I must reverse, and the reason for doing so seems very clear to me. The plaintiff claims in effect that the defendants were not protected in their conduct by the sanctity of any official character, for they were not officers of the village of Philmont, because there was no village of Philmont, and the reason he assigns for there having been no incorporation is that the notice of the election to determine whether there shall be an incorporation, provided for by section 7 of title 1 of chapter 291 of the Laws of 1870, as amended by chapter 194 of 1892, was not signed by twenty of the electors resident within the bounds of said proposed village, who shall be liable to be assessed for the ordinary and extraordinary expenditures of said village.”

Evidence was produced by the plaintiff upon the trial and received that tended to show that several of the electors who signed the notice of election which was posted and published on May 30, 1892, were not liable to be so assessed, and I shall regard that fact as having been established by the proof.

No other instance of disobedience to the requirements of the statute in incorporating the village is urged by the plaintiff, and it was, indeed, expressly admitted upon the trial, by a series of admissions appearing upon the return, that in all other respects the procedure of the incorporation was legal.

The plaintiff’s counsel insists that the signing of the notice by at least twenty assessable electors of the territory in question was essential to confer jurisdiction upon the resident electors of that territory to hold any election at all for the purpose of deciding whether there should be an incorporation. I am rather inclined to the view of the defendants’ counsel that the cardinal jurisdictional basis for the incorporation of villages is the existence of the minimum resident population provided for by section 1 of title 1 of chapter 291 of the Laws of 1870, as amended by chapter 116 of 1891, and that the subsequent provisions of the statute are provisions of machinery and procedure.

That minimum of population must exist or there can be no village. No proceedings, no matter how scrupulously conducted, could create a village out of a less number of inhabitants. It is not contended here that the requisite number of inhabitants did not exist upon the territory now embraced in the village of Philmont when the proceedings for incorporation were instituted. Therefore, a village could be incorporated if the proceedings for its creation were regularly conducted.

All the steps in the process actually taken are admitted to have been formally correct save the call for the election. That call was a part of the election process. If not signed by at least twenty assessable inhabitants it was an irregular and objectionable call, and an election based.upon it was an irregular and objectionable election. A certificate showing the result of the election that was actually held was made by the proper authorities and properly filed in the county clerk’s office.

Now, assuming that the election thus called, held and certified was irregular and objectionable because the call for it was faulty in the particular insisted upon, still an ample and summary method of correction existed. Section 11 of title 1 of the act of 1870, as amended by section 2 of chapter 59 of the Laws of 1878, provided that: “ Within ten days after such filing ” (of the certificate of the election in the county clerk’s office), any elector qualified to vote at such election may appeal to the county judge of the county in which such territory shall be located * * * specifying the irregularities in and objections to such election.” The county judge must thereupon, within a specified time, decide as to u the legality or illegality of Sucli election; ” and “ if tlie county judge shall decide such election to have been illegal, he shall forthwith, on rendering his decision, make an order and file the same in the county clerk’s office * * * directing another election to be held to determine the question of the incorporation of such territory.” (§ 13 of the act of 1870, as amended by § 4, chap. 59, Laws of 1878.) The call for this second election so ordered need not be signed by at least twenty assessable residents of the territory, but “ shall be held on notice of such election signed by some one or more of the persons designated as inspectors of election for the previous election as to incorporation, etc.” (Ibid.)

The fact that the second election, which shall be final for two years if against incorporation, and from which no appeal can be taken in any event, may be thus held upon a call signed by one inspector of election, seems to me to indicate that the Legislature regarded the call for the election as only an auxiliary part of the machinery.

I have no doubt that the fact that the requisite number of assessable resident electors had failed to sign the notice of the election would constitute such an irregularity in the election and such an objection to it as would require the county judge, upon the appeal to him provided for by the act, to order a new election.

I am equally clear, however, in my conviction, that such an in’egularity and such an objection can only be presented and heard upon such an appeal, and cannot be used as the basis for an action like the one before me.

The whole statute taken together indicates an intention on the part of the Legislature to establish a method for promptly and readily disposing of all questions relating to the regularity of the election, before an easily accessible tribunal vested with exclusive jurisdiction for that purpose. I do not think that those questions can be litigated in any other way nor in any other court. Plain, public policy suggests that they shall be decided upon and finally disposed of before a formal incorporation shall take place. Otherwise they might be raised long after the defacto incorporation had been made, long after it had apparently been acquiesced in, and after important vested interests had been created upon the strength of a public belief in the regularity of the election of the village.

The requirement of the statute, that the appeal shall be taken to the county judge within ten days after the filing of the certificate of the election, is not unreasonable. Knowledge of the election proceedings is then fresh in the minds of all concerned, and the whole subject then possesses such a vital interest as would lead to energetic .prosecution and defense and tend to enforce a careful and patient review.

These views of the legislative intent are made convincing to me by the provisions of section 2, title 8, chapter 291 of the Laws of 1810, which are as follows :

“ The certificate of the inspectors of election presiding at the first or second election at which the question of incorporating the village was decided affirmatively, or a copy of the same, certified by the county clerk of the county in whose office it shall be filed and recorded, with his seal of office, shall be final and conclusive proof of the incorporation of such village and the regularity thereof, in all courts and places, and in all actions and proceedings, except in case of an appeal from the election as hereinbefore provided.”

From the controlling effect of this enactment no way of escape has been pointed out to me that appears to be legally feasible. There can be no question that the Legislature possessed ample power both to make the appeal to the county judge an exclusive remedy for the correction of irregularities in the election, and to make the certificate of the first or second election “ final and conclusive proof of the incorporation of such village and the regularity thereof in all courts and places, and in all actions and proceedings, except in case of cm appeal from the election as hereinbefore provided.” An appeal to the county judge was never taken to review the election for the incorporation of Philmont.

The certificate of election was duly made and filed in the county clerk’s office, and a properly authenticated copy of that certificate was received in evidence by the justice on the trial in the court below and appears in the return. That constituted final and conclusive proof of the incorporation of Philmont and of the regularity thereof. The justice should have been controlled by it in rendering his judgment. He disregarded the mandate of the Legislature in failing to accord to the evidence its statutory effect, and in order to reach the conclusion- embodied in his judgment he must have necessarily decided that Philmont is not a duly incorporated village. This was error, and the judgment appealed from was plainly against tlie weight of the evidence.

Plaintiff admitted that all proceedings for the assessment, levy and collection of the tax against the plaintiff, including the sale of the property, were had in accordance with the forms and requirements of the statutes for incorporated villages, and only claimed that the same were void by reason of the irregularity and invalidity of the notice of election claimed by him to exist, and not otherwise. A similar admission was made as to the appointment and qualification of the defendant Christian, who made the seizure of the goods. I have regarded the fact that several of the electors who signed the notice of election were not liable to assessment as having been established in order to give to the plaintiff the utmost benefit of his proof upon that subject. It is contended by the defendants that such was not the fact, and that these electors were liable to assessment within the purview of the act.

It is not necessary for me to decide the question thus arising in view of the grounds upon which I have disposed of the case, and I have not undertaken to do so.

Judgment reversed, with costs.

       In The People ex rel. Kingsland et al. v. Clark et al. (70 N. Y. 518), which was an “ action commenced to restrain certain persons from proceeding to incorporate the village of North Tarry town under the general act of the Legislature authorizing the incorporation of villages (Chap. 291, Laws of 1870),” and in which judgment was demanded that certain acts intended to lead to the incorporation of the village be declared null and void, the Court of Appeals say, per Curiam: “ The Heneral Term might, perhaps, have reversed the judgment and directed the proper parties to be brought in, but it is not the province of this court to do so. Besides, as matters now stand, a legal action in the nature of quo warranto is an appropriate, if not the only remedy.” No question relating to the form of the action was raised before me on the argument. While the result in this case would not have been changed if the above authority had been brought to my attention, it is due to the profession that it be alluded to. J. R. C., County Judge.


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    The People of the State of New York and The Superintendent of Insurance, Plaintiffs, v. The Reliance Marine Insurance Company (Limited), Defendant.

      Foreign mafi'ine insurance companies — taxation upon premiums paid for reinsurance — exemption.

    A foreign marine insurance company, transacting business in the State of New York, is not exempted by chapter 276 of the Laws of 1885, from taxation upon premiums paid by it for reinsurance; that act, as appears by the provisions of chapter 489 of the Laws of 1879, of wiiich it is amendatory, was intended to apply to fire insurance companies only.
    A foreign marine insurance company transacting business in the State of New York, is entitled by virtue of section 22 of chapter 690 of the Laws of 1892, which act applies to all corporations authorized by law to make insurance, to exemption from taxation upon premiums paid by it for reinsurance in companies authorized to issue policies in this State after October 1, 1892, the date at which that act took effect; but the act is not retroactive, and does not relate to premiums paid for reinsurance prior to that date.
    Submission of a controversy on an agreed statement of facts under section 1279 of tlie Code of Civil Procedure.

      Simon W. Dosendale, Attorney-General, and John W. Hogan, Deputy Attorney-General, for the plaintiff.

      W. W. MaóFarlcmd, for the defendant.
   Herrick, J.:

This is a submission of a controversy pursuant to section 1279 of the Code of Civil Procedure.

The defendant is a marine insurance company incorporated under the laws of Great Britain and Ireland, for the purpose of carrying on 'the business of marine insurance; it has a branch office in the city of New York, where it carries on such business under and pursuant to the laws of the State of New York.

For the year ending December 31, 1892, the premiums received by it, or agreed to be paid to it, upon insurances effected or procured in this State against marine losses and risks, was the sum of $193,570.17.

During the same year the defendant reinsured part of the risks taken for said premiums in domestic and foreign insurance corporations, authorized to issue policies in this State; the total amount of the premiums paid by it for such reinsurance was the sum of $48,482.88.

The amount paid for such reinsurance before the 1st day of October, 1892, was $43,207.40; the amount paid after the 1st day of October, 1892, was $5,275.48.

The net amount of premiums received by the defendant after deducting the amount paid for such reinsurance was the sum of $145,087.29.

The defendant has paid to the superintendent of insurance the tax of two per cent on such net amount, after deducting therefrom all other taxes paid the State, but refuses to pay a tax of two per cent on the sum of $48,482.88, the amount paid by it for reinsurance.

The plaintiff claims that the defendant is liable to pay the tax on the premiums received by it without any deductions for premiums paid for reinsurance.

It is conceded that the defendant is liable to pay the tax of two per cent upon all the premiums received by it upon insurance procured in this State, unless there is some exception, reservation or exemption in some of the statutes relative thereto.

Any rebate, deduction or exemption from taxation will not be presumed, but must be found plainly expressed in the statute. (The People v. Commissioners of Taxes of New York, 95 N. Y. 554.)

The defendant in its claim for exemption relies upon chapter 276 of the Laws of 1885, and section 22 of chapter 690 of the Laws of 1892. Chapter 276 of the Laws of 1885 provides that: “No credit of any kind shall be allowed or given either as a reduction of taxes or liabilities, to any company transacting business in this State for reinsurances made in companies not authorized to issue policies herein, and it shall be the duty of the Superintendent of the Insurance Department to require schedules of reinsurances to be fled by each company at the time of making its annual statement to said department.”

The plain inference from this is that where reinsurance is made in corporations authorized to issue policies in this State, credit shall be given and allowed either as a reduction of taxes or liabilities; and that I understand has been the construction placed upon it by the insurance department of the State.

But the question arises as to whether corporations such as the defendant in this case come within the provisions of that act. Chapter 276 of the Laws of 1885 is an amendment of chapter 489 of the Laws of 1879, and must be construed as a part of that act.

The intention of the Legislature must be sought by joining .the amendment with the act to which it is an addition, and considering the whole but as one act. (The Matter of the Hudson City Savings Inst., 5 Hun, 612.) Interpreting the act of 1885 in that manner, I cannot see that it applies to foreign marine insurance companies.

The title of the act refers to fire insurance companies, and those only, and the different sections of the act refer to fire insurance companies. .The sections preceding the one amended by the act of 1885, refer exclusively to fire insurance companies; and it is evident in considering the act as a whole, that it wp,s intended to apply to fire insurance companies only. The defendant, I conclude, therefore, is not exempted by the act of 1885 from paying taxes upon premiums of reinsurance made by it.

Chapter 690 of the Laws of 1892, it is provided shall take effect October 1, 1892. (See § 293.)

By section 1, the provisions of that law are applicable to all corporations authorized by law to make insurance. The law, therefore, applies to the defendant.

Section 22 of the act of 1892, contains, in substance, a re-enactment of the provisions of chapter 276 of the Laws of 1885, and by virtue thereof, I think the defendant is entitled to exemption from taxation upon the amount paid by it for premiums for reinsurance paid after the 1st day of October, 1892. But the act cannot be held to relate to premiums paid for reinsurance prior to October 1, 1892.

There is nothing in the act to show that the Legislature intended that it should be retroactive, and in the absence of any such expressed intent, it must be construed as referring to the future only. (Matter of the D. & H. C. Co., 129 N. Y. 105.)

I am of the opinion, therefore, that the defendant, for the purposes of taxation, is entitled to have deducted from the gross amount of the premiums received by it during the year 1892, the amount of premiums paid by it for reinsurance after October 1, 1892, and that the plaintiff is entitled to have judgment against the defendant for the sum of $864.14, being two per cent upon the sum of $43,207.40, the amount of premiums paid by it for reinsurance prior to October 1, 1892. Let judgment be entered accordingly.

Matham, P. J., and Putnam, J., concurred.

Judgment for the People for the sum of $864.14. ■


author: Herrick, J. :

text:
    William H. Townsend, Respondent, v. Winslow M. Bell and Another, Appellants.

      Riparian rights — reasonable use of water — a material question of fact.

    Á riparian proprietor is entitled to a reasonable use of the stream of water running through his premises, as a part of his proprietary rights in the soil.
    It becomes a material question, in every case where a particular use of water by a riparian proprietor is sought to be enjoined, whether such use, under all the circumstances, taking into consideration the equal rights of other riparian proprietors, is a reasonable exercise of the rights of a riparian owner or proprietor.
    The test of what is a reasonable use of water by a riparian proprietor applies to all uses by him of waters which flow through his premises, and there is, in principle, no distinction between a use which obstructs the flow of water and subtracts from its quantity and that which discolors, deteriorates or pollutes it for commercial or manufacturing purposes.
    The material question whether a particular use of water by a riparian proprietor sought to be enjoined is reasonable or not is a question of fact to be determined by a jury or trial court; and the refusal of the court, in such an action tried by the court without a jury, to make any finding at all in respect to that question on the ground that it is not material, is an error of law.
    Appeal by the defendants, Winslow 1L Bell and Arthur E. Bell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Ulster county on the 25th day of November, 1892, upon a decision of the court on a trial before the court without a jury at the Ulster Circuit, perpetually restraining the defendants from so using the water of a certain stream as to change its natural condition, or as to render the same impure, discolored or unhealthful.

      John, J. Zimson, for the appellants.

      J. Newton Fiero and George G. Reynolds, for the respondent.
   Herrick, J. :

This is an action brought by the plaintiff against the defendants for damages claimed to have been suffered by the plaintiff by reason of the defendants polluting and discoloring a stream of water which flowed by and in front of plaintiff’s premises.

The defendants are the owners and operators of a plush factory situated upon the stream, and at a short distance above the premises of the plaintiff.

Upon defendants’ premises is a pond, constructed more than twenty years ago by a former proprietor of said premises.

The defendants used the water of this pond in operating their factory, drawing the water from it and then discharging into the stream the refuse from the factory, polluting the waters by the materials used in dyeing and rinsing the goods colored at the factory.

From the view that I have taken, it is unnecessary to set forth all the facts of the case found by the trial court. The case was tried before the court without a jury.

Amongst other things found by the court was, that the use which defendants made of the stream is necessary in carrying on- their business.

The 'defendants requested the court to find as a matter of fact that “ the use by defendants of the waters is a reasonable one.” In response the court said, “ I refuse to pass on the question sought to be presented by this finding, on the ground that under the decision of the General Term in this case, whether the use was a reasonable one or not is not material.”

This I think was error. It is elementary law that a riparian proprietor is entitled to a reasonable use of the stream of water running through his property, as a part of his proprietary rights in the soil. (Gould on Waters, 220; Angell on Water Courses, 240; Bullard v. Saratoga Victory Mfg. Co., 77 N. Y. 525; Prentice v. Geiger, 74 id. 341; Gould v. Boston Dock Co., 79 Mass. [13 Gray] 442; Merrifield v. Worcester, 110 id. 216.)

Hence it becomes a question in every case where a particular use of water is sought to be enjoined whether such use under all the circumstances, taking into consideration the equal rights of other riparian proprietors, is a reasonable exercise of the rights of a riparian owner or proprietor.

I do not understand that when the case was in this court before (62 Hun, 306) the court decided that the question as to whether the use of the water was a reasonable or unreasonable one, was not a material question in the case. The prevailing opinion would seem to have been more to the effect that the use of the water in this particular case, as shown by the facts then before the court, was one that the defendants had no right to exercise, and that in fact it was an unreasonable and illegal use, and one which, therefore, irrespective of any special injury that could be shown to have resulted therefrom to the plaintiff, the defendants were not entitled to enjoy.

I do not see, taking into consideration the various uses to which water and streams of water are put for milling and manufacturing purposes, by means of which streams of water are necessarily used, and as has been found time and again by the courts to have been more or less discolored, polluted and lessened in quantity, that any distinction in principle can be drawn between that use by the riparian proprietor, which obstructs the flow of water and subtracts from its quantity, and that which discolors, deteriorates or pollutes it.

Running streams cannot be used for commercial or manufacturing purposes, and the waters thereof retain their pristine clearness and purity. The test of what is a reasonable use I think applies to all uses by the riparian proprietor of the waters which flow through his premises.

The question whether a particular use of water by one riparian owner is consistent with the rights of other owners is generally a question of fact to be determined by a jury.

“ And the test in the absence of a right by prescription or grant, is whether the particular use under the circumstances, having regard* to the maxims governing the rights of property, is a reasonable one.” (Prentice v. Geiger, 74 N. Y. 341-346.)

What is a reasonable use is also a question of fact to be determined by a jury or trial court. (Herman v. Roberts, 119 N. Y. 37-45; Bullard v. Saratoga Victory Mfg. Co., 77 id. 530.)

The question as to whether the use was a reasonable one then being material,, and one necessary to be determined in rendering a final decision in the case, and that being as we have seen a question of fact for a jury, or for the court acting in place of the jury, a refusal to make any finding at all in respect thereto, on the ground that it was not material, was error of law. (Baumann v. Pinckney, 118 N. Y. 615, 616; James v. Cowing, 82 id. 449.)

For that error the judgment should be reversed, and a new trial granted, costs to abide the event.

Mayham, P. J., and Herrick, J., concurred.

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


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    The People of the State of New York ex rel. Orville Crouse, Appellant, v. The Board of Supervisors of Fulton County, Respondent.

      Mandamus — order to show cause— duty of the hoard of supervisors to pay a judgment for costs in a hasta/rdy proceeding.

    An order granted at a Special Term of the Supreme Court or by a judge at Chambers, upon a petition or affidavit presented by a relator, requiring the person, officer or board to whom the order is directed, to do the thing asked for by the relator, or to show cause at a Special Term why such order or mandamus should not be made peremptory, takes the place of a notice and is to be deemed merely an application for a mandamus and not in itself an alternative-mandamus, and is not subject to the provision of section 2072 of the Code of Civil Procedure which requires an alternative mandamus to be made returnable twenty days after service thereof.
    Such an order to show cause may be made by a judge or Special Term in any part of the State of New York, provided it is made returnable at a Special Term held in the judicial district embracing the county wherein an issue of fact joined upon the alternative writ of mandamus which maybe granted on the return of the order to show cause would be triable.
    When a county board of supervisors fails and neglects to provide for the payment of a judgment of the County Court of Sessions for costs on appeal in a bastardy proceeding, rendered against a town which is liable for the support of its own poor, the person in whose favor the judgment was rendered is entitled to a mandamus to compel the board of supervisors of the county to provide for its payment.
    Appeal by the relator, Orville Crouse, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of Fulton county on the 28th day of January, 1898, denying the relator’s application for a mandamus to compel the board of supervisors of Fulton county to audit and provide for' the payment of a judgment of the Court of Sessions of Fulton county in favor of the relator and against the town of Johnstown, Fulton county, for costs.
    The order to show cause, granted at the Herkimer Special Term on January 10,1893, on the return day of which the above-mentioned order was made, was as follows:
    “ Ordered, that the supervisors of the several towns and cities in Fulton county, State of New York, convene in session as a board of supervisors of said county of Fulton, and that they and said board of supervisors be, and they hereby are directed and required to audit and allow and properly provide for the payment of the judgment of the said Orville Crouse, together with interest, costs and charges to the time of such payment.
    “And it is further ordered that said supervisors convene and comply with the terms hereof on or before the 21st day of Jan., 1893, and serve a notice of their action or determination on said judgment on Frank B. Towman, Esq., the attorney for the relator herein, or that they show cause before this court at a Special Term thereof appointed to be held at the Chambers of the justice in the city of Amsterdam, Montgomery county, N. Y., on the 'fourth Tuesday in (21th day of) January, 1893, at the opening of the court on that day (10 o’clock a. m.) why this order or mandamus should not be made peremptory.
    “And it is further ordered that the services of this order or mandamus be made,” etc.

      Frcmlc B. Towmcm, for the appellant.

      Andrew J. Fellis, for the respondent.
   Herrick, J.:

In an action or proceeding prosecuted by the overseer of tne poor of the town of Johnstown, Fulton county, against the relator, Orville Crouse, in the Court of Sessions of Fulton county, a judgment was recovered in favor of Crouse, against the town of Johns-town for costs in the sum of $170.75.

The said judgment or á certified copy of the docket thereof, was duly presented to the board of supervisors of Fulton county, for audit, allowance and payment; but such board of supervisors adjourned sine die, without in anywise acting upon such judgment.

The relator thereafter applied to a Special Term of this court, held in the county of Herkimer on the 10th day of January, 1893, and procured an order, directing the board of supervisors of the county of Fulton to convene in session, and audit and allow and provide for the payment of such judgment on or before the 21st day of January, 1893, or that they show cause at a Special Term of the court, appointed to be held at Chambers in the city of Amsterdam, Montgomery county, on the 24th day of January, 1893, why such order or mandamus should not be made peremptory.

The board of supervisors demurred to the order obtained at the Herkimer County Special Term; the same came on to be heard at the Special Term held in Montgomery county on the 24th day of January, 1893, and upon such hearing the learned justice holding the term held that the papers failed to show that the relator was entitled to relief, and denied the application for a mandamus.

No objection was made that a mandamus was not the proper remedy for the relief sought by the relator.

The objection, however, was raised by the defendants that the order granted by the Herkimer County Special Term was in itself an alternative mandamus ; that the Special Term had no. right to grant it; that it was made returnable in too short a time, and that it was not under the seal of the court. It was, however, properly regarded, I think, by the learned justice holding the .Montgomery Special Term, merely as an application for a mandamus.

While the order granted may, perhaps, be criticised as to form, and while it speaks of itself as an “ order of mandamus,” still, I think, that in substance it was an order to show cause why a. mandamus should not.be granted.

Section 206J of the Code of Civil Procedure provides that an alternative writ of mandamus may issue upon an affidavit or other written proof, and either with or without previous'notice.

A practice has grown up, based upon the common-law practice, of applying to the court or a judge in Chambers, upon petition or affidavit, for an order requiring the person, officer or board to whom it is directed, to do the thing asked for by the relator, or to show cause at a Special Term why a mandamus should not issue compelling the person, officer or board to do the thing specified in the order; then upon the return day, if the thing has not been done and there is no dispute as to the facts, a peremptory mandamus is issued in the form required by the Code. If the facts are disputed, an alternative writ of mandamus is granted in the form and manner and returnable as prescribed by chapter 16, title 2, article 4 of the Oode of Civil Procedure.

This practice is convenient; the order to show cause takes the place of, and is, in fact, a notice, and, in many instances, results in bringing the controversy to a termination much quicker than if an alternative mandamus was issued in the first instance, returnable in, twenty days after the service thereof, as required by section 2012 of the Code.

This practice enables parties to move promptly to obtain the relief they seek; it affords the party proceeded against an opportunity to comply with the demands of the relator, if he has no defense in fact or law, and is, I think, a compliance with that portion of section 2061 of the Code which says that an alternative writ'may be granted either with or without previous notice of the application as the court thinks proper.”

If, upon the hearing of such order to show cause, there is no dispute as to the facts, but simply a question of law, and a peremptory mandamus is issued, I think it comes within section 2010 of the Code, the order to show cause having fulfilled all the offices of, and being, in fact, a notice of the application.

While the order to show cause herein was granted by a judge, and at a Special Term, out of the district embracing the county wherein an issue of fact, joined upon the alternative writ of mandamus would be tried, still it was made returnable at a Special Term in the proper district. If the application for the mandamus itself was made in the proper district I can see no objection to a judge or Special Term in any part of the State making an order to show cause for the purposes in question, provided it is made returnable- at a Special Term held in the district embracing the county wherein the issue of fact joined upon the alternative writ of mandamus would be triable.

While, as before stated, the order to show cause herein Is not in very good form, and contains some of the phraseology and directions of a mandamus, yet it is not a mandamus, but an order to show cause why one should not be granted, and the practice followed by the relator in this case I think is substantially correct.

The other objection raised is as to the judgment that the relator seeks to have the defendants audit and allow.

The judgment purports to be a judgment of the Fulton County Court of Sessions, and the claim is that the Court of Sessions is a Criminal Court, and has no jurisdiction to render a civil judgment. I think this objection is without force. Chapter 2, section 39 of the Code of Criminal Procedure, defines the jurisdiction of Courts of Sessions. Subdivision 3 of such section provides that they shall have jurisdiction, “ To hear and determine appeals from orders of justices of the peace under the provisions of law respecting the support of bastards.” Section 861 of the Code of Criminal Procedure provides that a person who feels himself aggrieved by an order of the magistrates in bastardy proceedings, may appeal to the Court of Sessions of the county. Section 873 of the same Code directs that the costs must be awarded in favor of the party in whose favor the appeal is determined. That section also directs the manner in which such costs are to be paid, when awarded against the overseer of the poor of a town not liable for the support of its own poor. Section 874 of the same Code provides that in other cases the payment of the costs may be enforced by the court as in civil actions. It will thus be seen that Courts of Sessions have power to award costs, and to enforce their payment, as in civil actions. Section 3 of chapter 155 of the Laws of 1886 provides that the towns in the county of Fulton shall be liable for the support of their own poor, so that we have here a case where the payment of costs is to be enforced by the court as in a civil action.

Second Revised Statutes, 474, sections 102,103 (Birdseye’s Statutes, pp. 26, 27, §§ 82, 83), provides for the payment by boards of supervisors of judgments for any debt, damages or costs obtained against any town, the supervisor or the overseers of the poor thereof.

It seems to me, therefore, that a Court of Sessions having jurisdiction to award costs, and to enforce their payment, as in a civil action, and a judgment for costs having been rendered by the court against the town of Johnstown, and it being made the duty of the board of supervisors to provide for the payment of judgments against the town, and the defendants having failed and neglected to make provision for the payment of the judgment in this case, that the relator is entitled to the relief asked for.

The order of the Special Term denying the application for a mandamus should be reversed, with costs of the motion at Special Term, together with the costs of this appeal, with printing and other disbursements.

Mayi-iam, P. J., and Putnam, J., concurred.

The order of the Special Term denying the application for a mandamus reversed, with costs of the motion at Special Term, together with the costs of this appeal, with printing and other disbursements.


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    Addison Loucks and George K. Daley, as Administrators, etc., of Christina Loucks, Deceased, Respondents, v. Lewis L. Johnson, Charity A. Sheffer and John J. Johnson, Appellants, Interpleaded as Defendants by the Albany Savings Bank.

      Gift causa mortis — samngs bank deposit — direction to the donee to divide with others.

    A gift causa mortis of money on deposit in a savings bank, effectuated by the actual delivery by the donor of his bank book to the donee and its acceptance by the latter, is not invalidated by the fact that it is accompanied with a direction to the donee to divide the balance of the money, after the payment of the donor’s doctor’s bill and funeral expenses, between himself and others named by the donor.
    Appeal by the defendants, Lewis L. Johnson, Charity A. ShefEer and John J. Johnson, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of Columbia county on the 27th day of December, 1892, upon a decision of the court after a trial before the court without a jury at the Columbia Circuit, except that portion of the judgment staying proceedings pending the appeal and providing for the continuance of the deposit of the fund in controversy pending the appeal.

      Seymour Van Santmoord, for the appellants.

      B. O. Strait and S. W. MoOlellam,, for the respondents.
   Herrick, J.:

The plaintiffs, as administrators of Christina Loucks, commenced an action against the Albany Savings Bank to recover a sum of money on deposit in said bank to the credit of their intestate.

The defendants were substituted as defendants by an order of interpleader, and in their answer claimed ownership of the money in the savings bank by reason of a gift causa mortis thereof from said Christina Loucks; judgment was rendered in favor of the plaintiffs, and from that judgment the defendants appeal to this court.

We are relieved from the solution of many questions arising out of alleged gifts causa mortis by reason of the findings of fact in this case by the trial court, and which findings seem to be sustained by the evidence.

The trial court found that, on or about the lJth day of July, 1861, Christina Loucks deposited a sum of money in the-Albany Savings Bank, which, on the 1st day of July, 1891. with its accumulated interest, amounted to the sum of $988.38.

That on the 15th day of April, 1891, the said Christina Loucks, being ill and in expectation of death, personally delivered and handed over to the defendant, John J. Johnson, the bank book issued to her by the Albany Savings Bank, which bank book showed a then existing balance to her credit; that at the time of delivering said bank book to the defendant Johnson, she said to him that, after the payment of her doctor’s bill and funeral expenses, the balance of the money was to be equally divided between his sister and brother (who are the other defendants in this case) and himself. The defendant Johnson then and there accepted the gift, and has since retained possession of said bank book.

That Christina Loucks died on or about April 16, 1891, of the ailment or peril in view of which said gift was made by her, without having revoked said gift.

The court further found that in making such delivery of the bank book, it was the intention of Christina Loucks to create a valid gift causa mortis of the moneys on deposit in said bank, and that such gift was not made with the intention of defrauding any of her creditors.

To constitute a valid gift causa mortis the property must be actually delivered; the donor must surrender the possession and dominion thereof to the donee. (Ridden v. Thrall, 125 N. Y. 572-579.)

The delivery of the savings bank book was such a surrender and parting with dominion, and vested the possession of, and title to, the money on deposit in the bank in the donee. (Ibid. 572.)

In Young v. Young (80 N. Y. 423), and Curry v. Powers (70 id. 212), the alleged gifts causa mortis were held invalid because the court found there was no parting with the possession of, or title to, the property by the donor.

In this case, as we have seen, there was an actual delivery to the donee, and an acceptance by him, of the bank book, so that within the case of Ridden v. Thrall the donor parted with the possession and title to the money on deposit in the savings bank, and the donee took such possession and title.

The plaintiffs, however, contend that the direction by the donor to divide the property, after the payment of funeral expenses, 'between himself, his brother and sister, renders the gift invalid; no authority, however, is cited to maintain that contention.

It has been held that a gift causa mortis may be made to one in trust for a third person (Clough v. Clough, 117 Mass. 83; Sheedy v. Roach, 124 id. 472), and also that a gift providing for a division of the property between specified persons after the payment of bills and expenses, is a valid gift, causa mortis. (Pierce v. Boston, etc., Savings Bank, 129 Mass. 425-440.)

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

Mayham, P. J., and Putnam, J., concurred.

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


author: Herrick, J. : Putnam, J.:

text:
    William A. Fullerton and Willis F. Mould, Appellants, v. William McLaughlin, Respondent.

      Contract foe' the conveyance of real estate — extension of time of payment — scope of agency — specific perfoe-mance.

    Proof of an agency in a third party to fill in the description of land in a contract for a conveyance thereof made by a land owner, so as to render the contract a valid and authorized one, and of an admission by the land owner that such agent “ did all his business for him,” does not establish power in the agent to modify or change the contract when made so as to extend the time prescribed therein at which payment must be made, in order to entitle the other contracting party to a conveyance.
    When a contract for a conveyance of land provides that the party to whom it is given shall pay the purchase price at a certain date, and that if the money is not then paid, the contract shall be null and void, the time of payment is of the essence of the contract, and strict fulfillment, unless duly waived, or the time is extended, is requisite to give a right to compel specific performance of the contract to convey.
    Appeal by tbe plaintiffs, William A. Fullerton and Willis F. Mould, from a judgment of the Supreme Court dismissing the complaint, entered in the office of the clerk of Franklin county on the 20th day of June, 1892, upon a decision of the court, rendered after a trial, by the court, without a jury.
    The action was brought to compel the defendant to make conveyance to the plaintiffs, of the premises described in the following contract executed between them:

      “ Articles of Agreement made this 2Ttk day of Dee. in the year of our Lord one thousand eight hundred and eighty-nine, between William McLaughlin of Racquette Rond, party of the first part, and W. A. Fullerton of Everton, N. Y., and W. F. Mould of Santa Clara, N. Y., parties of the second part.

      “ Witnesseth; that said party of the first part, hereby covenants and agrees that if the parties of the second part shall first make the payment and perform the covenants hereinafter mentioned on their part to be made and performed, the said party of the first part will convey and assure to the parties of the second part in fee simple clear of all incumbrances whatever, by a good and sufficient warranty deed, tbe following lots, pieces or parcels of ground, viz.: Two lots on Racquette Pond (not yet surveyed). One of said lots is marked by the site of an old barn and tbe other just below tbe first lot selected by H. Garvey. Both are corner lots,
    j Block No. (5) five, lots Nos. (1 & 2) one and two. )
    ( Block No. (6) six, lots Nos. (5 & é) five and four. )
    Being part of Sub lot 105 township No. 22 Macomb’s Purchase, Great Tract No. one, County of Franklin, State of New York, tbe above-numbered lots are same as intended to be conveyed by tbe foregoing contract.
    “And tbe said parties of the second part hereby covenant and agree to pay to said party of tbe first part the sum of two hundred dollars in tbe manner following, ten dollars cash in band paid, tbe receipt whereof is hereby acknowledged, and the balance to be paid one year from tbe date of this article, and if not paid at that time this contract shall be null and void.

      “W. F. MOULD,

      “W. A. FULLERTON,
    “¥M. McLaughlin.”
    The description of tbe lots by blocks and numbers was left blank in tbe instrument as originally executed on December 27, 1889, but was inserted on January 15, 1890, by one W. E. La Fountain, who was claimed to be tbe defendant’s agent.
    Tbe plaintiffs paid the defendant the sum of ten dollars, called for by tbe contract, at tbe time of its execution, and claimed that they tendered payment of the balance of $190, to La Fountain, as the defendant’s agent, on December 27, 1890, being one year from tbe date of tbe contract, as therein provided, but that La Fountain, as such agent, extended tbe time for making tbe payment, by then informing the plaintiffs that the defendant was unable to make conveyance of tbe premises according to tbe terms of tbe contract, but would be able to do so in a short time, and requested the plaintiffs to wait until the defendant was able to make such conveyance.
    Tbe plaintiffs stated in their complaint that they bad the balance of the sum called for by tbe contract, ready for payment to tbe defendant, upon execution and delivery of tbe conveyance sought to be obtained.

      J. W. Webb, for the appellants.

      John P. Kellas, for the respondent.
   Herrick, J. :

It seems to me that this case should be affirmed, upon the opinion, of the court below.

The agency proved, it seems to me, did not grant power to extend or modify the written contract.

Mayham, P. J., concurred; Putnam, J., not acting.

Judgment affirmed, on opinion of court below, with costs.

The following is the opinion of the court below:

Putnam, J.:

I think that all the evidence in, and facts of, the case indicate^ that La Fountain was to a certain extent the agent of the defendant. The contract was drawn, with a blank space left to be filled in with a proper description of the lots agreed to be conveyed, and I infer from the evidence that La Fountain, as defendant’s agent, was authorized to write in the contract the proper description of the lots, and hence that the contract as read in evidence was a valid and. authorized contract.

But, although La Fountain was an agent of defendant to make* the contract, that fact did not give him, either actually or presumptively, any authority to cancel, extend or modify it. The admission of defendant proved by several witnesses that “ Mr. La Fountaim, did all Ms busmess for Mm,” should be deemed to apply to the business then being discussed and transacted, the making of contracts for the sale of lots. The contract being made and the right of the parties fixed and determined by the writing, the admission of defendant should not be construed to mean that La Fountain had authority to modify or extend or change the contract. "When this-written contract was made the agency must be deemed to have-ceased in the absence of competent evidence of its continuance.

It was for the plaintiffs to show such continuance. Under well-settled principles they could not show such continuance by the-agent’s declarations. But they show it in no other manner. The plaintiff Mould testified that the first time he saw defendant after fcbe making of the contract the latter said that La Fountain was not authorized to extend the contract or to act as his agent. I conclude, therefore, that plaintiffs fail to show a valid extension of the time to perform the contract. They show the agency of La Fountain to the making of the-contract. But such agency does not give him power to modify, change or extend it. (See Brewster v. Carnes, 103 N. Y. 556; Ritch v. Smith, 82 id. 627; Bickford v. Menier, 107 id. 490; Edwards v. Dooley, 120 id. 551; Smith v. Kidd, 68 id. 130, 131.)

By the terms of the contract plaintiffs were to pay the balance of the purchase price one year from its date, and if said money was not then paid, the contract should be null and void. I think, therefore, that the time of the payment was of the essence of the contract. (Wells v. Smith, 2 Edw. Ch. 78; 7 Paige, 22.)

Hence, the time of payment being by the terms of the contract material, and strict fulfillment of the terms of the contract not having been waived or extended by defendant, I conclude that plaintiffs are not entitled to a specific performance.

The complaint should be dismissed, with costs.


text:
    Almira Trumpbour, Plaintiff, v. John Trumpbour, Jr., and Others, Defendants. The New York Life Insurance and Trust Company, Appellant. Almira Trumpbour and Others, Petitioners, Respondents.

      Trust company — depository of court moneys — liability for a failure to collect money'.

    When a trust company, which is made by law a depository of the court, accepts an order of the court directing a bank, in which court money is temporarily deposited, to pay the same over to the trust company and directing the trust company to hold the money subject to the further orders of the court and to . allow interest thereon, to be compounded annually and accumulated, and agrees to hold the money as provided by the order and accepts the trust created thereby, which is authorized by its charter, but through its own fault or neglect omits to demand or obtain the money from the bank under the order, it will be responsible for the money and its increase to the court and those for whose benefit it was to hold it in trust, the same as if it had drawn the money from the bank as empowered by the order received by it.

      Appeal by tlie New York Life Insurance and Trust Company from an order of tbe Supreme Court made at tlie Columbia Special Term on the 4th day of February, 1893, and entered in the office of the clerk of Columbia county on the 1st day of April, 1893, on the petition of Almira Trumpbour and others, directing the appellant to pay certain moneys over to the petitioners.

      It. E. Robinson, for the appellant.

      Horace R. Pech, for the respondents.
   Herrick, J.:

On the 8th day of June, 1871, a judgment in partition in the above-entitled action was rendered and entered in the Columbia county clerk’s office.

Pursuant to the provisions of the will of one Paul Trumpbour, deceased, which are declared by said judgment, the sum of $500, a part of the proceeds of sale under said judgment of partition, was brought into this court to be held for the benefit, after the death of John Trumpbour, Jr., who is one of the defendants in said action, of the persons who, at the death of said John Trumpbour, Jr., should be his heirs or the assigns of any of them.

The referee in said action in partition deposited the said $500 in the Farmers’ National Bank of Hudson, subject to the order of the court. I assume it was so deposited with the remainder of the proceeds of the sale of the real estate in question in the action.

Upon the judgment, the referee’s final report of sale, and other orders and papers in the action, an order was made at a Special Term of the court on the 30th day of March, 1872, ordering the Fanners’ National Bank of Hudson to pay to the order of the New York Life Insurance and Trust Company the sum of $500, and it was further ordered that the New York Life Insurance and 'Trust Company retain said sum of $500 and the interest and accumulations thereof, subject to the further orders of this court, for tlie benefit of the plaintiffs, Almira Trumpbour and others, except that their right thereto is subject to be defeated or varied according to the provisions of the will of Paul Trumpbour, as stated in said judgment. It was further ordered that while such sum of money remained on investment in such life insurance and trust company, the interest or dividends that should from time to time accrue thereon should be added to the principal, to constitute a new principal, upon which further interest or dividends should be computed and allowed.

A copy of said order was duly served on such life insurance and trust company on or about the 3d of April, 1872, and said company agreed to accept the money as a deposit, subject to the future orders of this court, and to allow interest thereon at the rate of four per cent per annum, to be compounded annually.

John Trumpbour, Jr., died on or about May 13, 1892.

The petitioners in these proceedings are the heirs and the assigns of the heirs of the said John Trumpbour, Jr.; there is no question raised but what they are the persons legally entitled to the $500 so ordered to be deposited as heretofore stated, and its increase.

Two of the heirs of said John Trumpbour, Jr., on or about the 20th day of March, 1877, duly assigned their interests in said fund to Horace R. Peck, one of the petitioners, and thereafter and on the 21th day of April, 1878, an order was made at a Special Term of this court, entitled in the action, directing the New York Life Insurance and Trust Company to retain and invest the interest of said heirs so assigned, and the accumulations thereof, for the benefit of said Horace R. Peck, and that in the final disposition of said fund the said Horace R. Peck, his legal representatives or assigns, should be entitled to receive and be paid by the said New York Life Insurance and Trust Company such portion of said fund as would otherwise belong to the heirs of the said John Trumpbour, Jr., who made such assignment. A copy of such order was duly served on the New York Life Insurance and Trust Company on the 27th day of April, 1878.

The New York Life Insurance and Trust Company for some rea^ son failed, omitted or neglected to ask or demand in any way from the Farmers’ National Bank of Hudson the said sum of $500 pursuant to the order of the court, and has never received it, but it has always remained where it now is, in the Farmers’ National Bank of Hudson. If the terms of the aforesaid order and agreement of the life insurance and trust company in relation to said fund had been complied with, the fund would now amount to about the sum of $1,091.30, with interest at four per cent per annum from the 3d day of April, 1892.

Tbe petitioners, Almira Trumpbour and others, ask an order of this court for the distribution of the fund, in the proportions set forth in the petition, and for an order directing the New York Life Insurance and Trust Company to pay the same to them or their respective attorneys.

The Special Term made an order directing the distribution and payment of such money as prayed for by the petitioners, and from that order the New York Life Insurance and Trust Company appeals to this court. The facts are undisputed.

Ordinarily the fact that a person, bank or other depository had not received the money, would be a complete defense to an application made to compel him or it to pay it over.

But the New York Life Insurance and Trust Company does not stand in this case in the position of an ordinary depository; it is incorporated under chapter 75 of the Laws of 1830, as amended by chapter 250 of the Laws of 1831, and chapter 630 of the Laws of 1872. Subdivision 5 of section 2, chapter 75, Laws of 1830, empowers its corporators to accept and execute all such trusts of every description as may be committed to them by any person or persons whatsoever, or may be transferred to them by order of the Court of Chancery or by a surrogate.”

Section 2, chapter 630 of the Laws of 1872, after limiting the amount Avhich said company may have in trust, provides as follows: “ But the said company may at any time receive in deposit and loan out any money which may be deposited with them by the Supreme Court or any of the courts of law or equity or Surrogates’ Courts of this State, notwithstanding the limitation contained in' this act.”

Under these acts such company is made one of the depositories of the court, and without entering into the question as to whether it can be compelled to receive deposits, it is sufficient to say that in this particular case it agreed to receive the deposit in question.

Now, while it is true that it did not receive in fact a deposit of cash, or a cheek or draft, it received what, under the circumstances, was the equivalent of a check or draft, and it is only by its own neglect or omission that it failed to realize upon it, as it could upon a check or draft where there was money on deposit to the credit of the person drawing such check or draft.

The fund in question was in the possession, and under the control of, the court, and deposited for tbe time being in the Farmers’ National Bank of Hudson.

The court does not pay cash or draw checks or drafts, but makes and directs payments by its orders. In this case it directed the transfer of the money in its possession from, and its payment by, the Farmers’ National Bank of Hudson, to the New York Life Insurance and Trust Company, by its order, which took the place of a check or draft of an individual or corporate drawer.

That order was given to and left with the New York Life Insurance and Trust Company, such company in nowise refusing to accept the same, but agreeing to take the money therein mentioned, and to pay interest upon it as prescribed by its terms.

This, I think, was a complete acceptance of the trust which it was authorized to receive and execute under its charter, and that it must be held to possess the money mentioned in the order, subject to an order of this court. If it does not in fact possess it, it is by reason of its own omission and neglect, and it is responsible for it and its increase, to the court and those for whom it was to hold it in trust, just the same as if it had drawn it from the Hudson bank.

The order of the Special Term should be affirmed, with ten dollars costs, and with printing and other disbursements.

Mayham, P. J., and Putnam, J., concurred.

Order affirmed, with ten dollars costs, and printing and other disbursements.