text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN FITZPATRICK, Appellant.

      Kidnapping under Penal Code, sec. 211 — what constitutes it.

    A person is not shown to be guilty of the crime of kidnapping, under section 211 of the Penal Code, by proof that he has induced another to go out of the State by false and delusive promises that he could obtain work, at a specified compensation, at a distant place, although such person had reason to believe that such representations would not prove to be true.
    Appeal by the defendant from a judgment of conviction of the offense of kidnapping, and from the sentence imposed thereunder, after a trial at the General Sessions of the Peace, in the city and county of New York, on the 25th day of September, 1889, before the court and a jury.

      William F. Howe, for the appellant.

      McKenzie Senvple, for the respondent.
   Bartlett, J.:

The defendant was indicted for kidnapping David Kennedy. There were two counts in the indictment. The first count need not be considered, as the district attorney virtually abandoned it upon the trial. The second count charges that the defendant, on the 9th day of May, 1889, “ did feloniously and willfully, inveigle and kidnap one David Kennedy, with intent to cause him, the said David Kennedy, to be sent out of the State, to wit, to the State of Yucatan, in the Republic of Mexico, and to be there kept and detained against his will.”

According to the testimony of the complainant, he met the defendant on May 9,1889, at Ward’s pier, in this city, at which the steamship City of Washington was lying at the time. The complainant went there in consequence of some statement, not disclosed by the evidence, which had been made to him by a stranger. He ashed the defendant “ What sort of a job it was ? ” presumably referring to some job which he had heard of from the .stranger. Fitzpatrick said “it was a job in Mexico, $35, in American dollars, and board,' a month.” He also said it was a good job, and things were cheap there. The work was work on a railroad. The complainant further testified, in substance, that the defendant said that “ the company ” at Progreso, in Yucatan, was to pay the thirty-five dollars a month in American money and provide the board, when Kennedy and the other laborers, who went out at the same time, should arrive at their destination; and that Fitzpatrick said there was a job at Progreso waiting for them, and that Progreso was a healthy place.

After talking with the defendant, Kennedy signed a paper at his request, on which there were already twenty or thirty names, and then went on board the steamer. There is some testimony to the effect that, subsequently, when the' complainant was coming down the gang-plank and told the defendant that he was coming ashore for tobacco, Fitzpatrick lifted his stick and spoke to him threateningly, telling him to get back into the ship ; but this becomes unimportant, as the district attorney did not insist that Kennedy was sent out of the State by violence, and the learned trial judge so instructed the jury in his charge.

The complainant and his companions went to Progreso on the steamer. It is not necessary to review in detail their unpleasant experiences in Yucatan. After some delay they were given work in handling freight on a railroad, for which they were paid at the rate of a Mexican dollar a day, without board, instead' of at the rate of thirty-five dollars a month in American money, with board. The price of food appears to have been so high that it was difficult, if not impossible, to make a fair living on such wages; in the opinion of the complainant the climate was unhealthy, and after working for a Mexican dollar a day at Merida for about two weeks, and boarding himself, he left the capital of Yucatan and managed to make his way back to New York.

The defendant, in testifying in his own behalf, denied having told Kennedy or anybody else that the men would receive thirty-five dollars a month in American money, or having said anything about their board or in reference to the climate in Yucatan. As to the making of these statements, however, the verdict of the jury is against him, and the case must be disposed of in this court on the assumption that he made them. I am also of the opinion, after reading all the testimony through very carefully, that it affords ample support for the inference, which must have been drawn by the jury, that the defendant knew the complainant would not find work on a railroad in Yucatan at the promised compensation, and for the further inference that the defendant’s purpose in making the statements which he did make was to induce the complainant to go out of the State. Assuming all these facts the question is, whether the act of the defendant constitutes the crime of kidnapping under the provisions of the Penal Code.

The defendant was convicted under the first subdivision of section 211, which declares that any person is guilty of kidnapping who willfully “ seizes, confines, inveigles or kidnaps another, with intent to cause him, without authority of law, to be secretly confined or imprisoned within this State, or to be sent out of the State, or to be sold as a slave, or in any way held to service or kept or detained against his will.” • In view of the proof the verdict must have been based on a finding that Fitzpatrick inveigled Kennedy for the purpose of causing him, and thereby did cause him, to be sent out of the State against his will; and if the evidence will support such a finding, the conviction will have to be sustained.

In the case of The People v. De Leon (109 N. Y., 226) it was said that an inveiglement, in the ordinary sense of the word, implies the acquiring of power over another by means of deceptive or evil practices, not accompanied by actual force; and it was held that the defendant had inveigled the complainant, within the meaning of the kidnapping statute, when he procured her consent to go to Panama upon the pretense that honest employment had been secured for her there, while, in fact, his secret design was that she should become an inmate of a brothel. But every deceptive or evil practice does not constitute an inveiglement; and, I think, a material distinction exists between the case at bar and the case of The People v. De Leon (supra) in respect to the nature of the deception. There the promise of honest employment was not only to be broken, but a distinct affirmative wrong was to be done the complainant by forcing her into a life of prostitution in a foreign land. Here the facts are very different. The complainant was promised honest employment and he got it. The deceptive part of the promise, which was not kept, was the assurance that he should be paid thirty-five dollars a month in American money and receive his board, instead of which his wages were so meagre that he could only just live on them. I attach little importance to the alleged false representations concerning the climate of Yucatan and the prices there, since it is plain enough that they were not the procuring cause of the complainant’s consent to go thither. He was induced to go by the promise of work at a specified compensation, and we are called upon to determine whether the making of a promise of this kind, by a person who knows it will not be kept so far as the rate of compensation is concerned, is an inveiglement within the legal signification of that term so as to subject the person making it to punishment as a kidnapper. I do not think it is.

In the case of Ranney v. The People (22 N. Y., 413, 417) it was said that a false representation, essentially promissory in its nature, had never been held to be the foundation of a criminal charge. In effect, the defendant’s statements to Kennedy about work at Progreso were merely promises to give him work when he arrived at that port. Their true character is not changed by reason of their form. Saying to the complainant that there was a job waiting for him in Yucatan was only another way of promising him employment if he would go to that country. The legal effect of making such a promise with an intent not to fulfill it, so far as relates to the wages to be paid, must evidently be the same, if the contemplated employment were in New Jersey instead of in Mexico; yet I hardly think it would be held that a man was guilty of kidnapping who came to this city and induced a laborer to cross the Hudson river on a ferry boat to Hoboken by a promise to give him work there at a dollar and a half a day, when he really intended to pay him only a dollar a day. Such a proceeding would be a shabby trick, but not a crime. As was said by Comstock, Ch. J., in Ranney v. People, already cited, the offense of making a false and delusive promise, with no intention of performing it, is not indictable ; and, as has been suggested, the deception in the De Leon Case consisted not only in the design to withhold honest employment from the complainant, but to compel her to enter upon a life of shame.

In view of the great hardship sometimes inflicted upon those who are induced by false promises to go from this State to foreign lands, the legislature might well provide for the punishment of the wrongdoers in such cases through the agency of the criminal law; but, under the law as it now is, I do not think the facts disclosed in the record before us authorized the conviction of the defendant of the crime of kidnapping.

In my opinion the judgment should be reversed.

Yan Brunt, P. J., and Barrett, J., concurred

Judgment reversed.


source: Caselaw Access Project

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

license: Public Domain

text:
    J. WALLACE MacWHINNIE, Respondent, v. WILLIAM T. CAMERON, Appellant.

      Assignment of a judgment — is subject to the costs, awwrded against the assignor, of supplemental^ proceedings instituted, thereon— Code of Civil Procedure, sec. 779.

      An assignee of a judgment takes the assignment thereof subject to the equities existing between the original parties, and where costs have been awarded to the judgment-debtor in supplementary proceeding instituted upon such judgment, he is entitled to have the same paid before any execution can issue thereon.

      Quaere, whether, under section 779 of the Code of Civil Procedure, providing for a stay of proceedings until the payment of costs, an execution issued upon a judgment under such circumstances should be set aside until said costs are paid, or whether it is sufficient that said costs be credited to the debtor in reduction • of the amount due upon the judgment and the execution issued thereunder?
    Appeal by the defendant William T. Cameron from an order made at a Special Term of the Supreme Court, and entered in the office of the clerk of the county of New York on the 15 th day of April, 1890, denying the defendant’s motion to set aside an execution issued in the above-entitled action.
    The judgment herein was duly entered and docketed in New York county on February 20, 1880, and in Queens county on the 21st of February, 1880. Execution was thereupon duly issued by plaintiff to the sheriffs of Queens and New York counties on the 24th day of February and the llth day of April, 1880, respectively, and both executions were thereafter duly returned unsatisfied.
    In September, 1880, proceedings supplementary to execution were instituted by plaintiff and no property of the defendant was discovered; thereafter, and in May, 1882, proceedings supplementary were again taken by ■ plaintiff, but no property was discovered. Defendant then offered to have his mother'transfer a bond and mortgage to the plaintiff’s attorney in settlement of the judgment, but the offer was not accepted by plaintiff or her attorney, nor was it ever carried out by defendant, and the judgment has never been paid. Subsequently, and in 1885, MacWhinnie, the judgment-creditor, died, leaving a last will and testament, which was admitted to probate and recorded in Oxford county, Ontario, Canada, and Annie MacWhinnie was appointed and qualified as sole executrix thereof, and letters testamentary were duly issued to her thereon.
    In November, 1889, proceedings supplementary to execution were taken by said Annie MacWhinnie, as executrix, and the proceedings were dismissed, without costs, and with leave to renew on fuller papers.
    In January, 1890, proceedings supplementary were again taken by said executrix, and on motion of defendant said proceedings were again dismissed, with ten dollars costs to defendant. Afterwards, and in January, 1890, the judgment was duly assigned by said Annie MacWhinnie, as executrix as aforesaid, to Michael A. Gearon, who thereupon became, and now is, the sole and absolute owner of the judgment.
    On February 15, 1890, the said assignment to Gearon, duly authenticated, was filed in the office of the clerk of the city and county of New York, and a certificate of said clerk to that effect was, on the 16th day of February, 1890, filed in the office of the clerk of Queens county, where the judgment was docketed as aforesaid.
    Thereafter, and on said 16th day of February, 1890, Gearon, the assignee, issued execution to the sheriff of Queens county directing him to levy upon and sell certain real estate in that county belonging to the defendant and judgment-debtor Cameron, which the sheriff proceeded to do, and advertised the sale of said property for April 5, 1890.
    The defendant thereupon moved to vacate and set aside the execution, and to enjoin the Queens county sheriff from enforcing the execution of the judgment. The motion was denied, with ten dollars costs of motion to the assignee, and defendant appeals.

      Alexander Cameron, for the appellant.

      8. W. Bower, for the respondent.
   Brady, J.:

The motion to vacate the execution rests upon the provisions of section 779 of the Oode, which declares that where the costs of a motion are directed to be paid, all proceedings on the part of the person required to pay them, except to review or vacate the order, are stayed without further direction of the court until the payment thereof. The costs awarded the defendant had not been paid when the execution was issued herein on behalf of the assignee, and the defendant insists that it could not, therefore, be properly issued. The answer made to this proposition is, that the payment of costs was not obligatory upon the assignee, inasmuch as they were not given against him, and he was not ordered to deduct them from the judgment. This answer availeth not. ' The assignee took the assignment subject to the equities existing between the original parties. He stands, therefore, in the same position as the assignor. The rule is well settled. (Bush v. Lathrop, 22 N. Y., 535; Young v. Guy, 12 Hun, 325.) He might, perhaps, have proceeded with the execution had he deducted the costs due to the defendant from the amount of the judgment, or credited the amount of them upon the execution, but he did neither. He treated the obligation to pay them inferentially imposed by section 779, as if he owed the defendant no duty in that respect, and, as we have seen, did this intentionally on the assumption that the order to pay costs in no way affected him. 'Not having deducted them from the amount of the judgment, he issued an execution for a sum not due, and in excess of what was due, just the amount of them. The statute is, however, imperative, and cannot be wholly disregarded as it was here.

The order appealed from should, therefore, be reversed, with ten dollars costs and the disbursements of this appeal.

Daniels, J., concurred.

Yan Brunt, P. J. :

I concur in the result. I do not concur in the view that the assignee was not compelled to pay these costs as a condition precedent to proceeding, but might have credited them upon the judgment ; the Code requires payment, and giving a credit is not payment.

Order reversed, with ten dollars costs and the disbursements of this appeal.


author: Brady, J.: Yan Brunt, B. J.: Daniels, J.:

text:
    SAMUEL W. HALE, Respondent, v. WILLIAM P. SHANNON, Appellant, Impleaded with Others.

      Negotiable paper — fraudulently obtained — a pm'Py seeking to enforce it must simo that he is a bona fide purchaser for value.

    Where, in an action brought to recover upon certain negotiable notes, it appears that before the notes came into the hands of the plaintiff they had been fraudulently obtained and unlawfully diverted from the purposes for which they were made, the plaintiff is bound to prove that he has given value therefor and is a bona fide purchaser thereof in the usual course of business.
    Appeal by the defendant William P. Shannon from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on March 12, 1890, after a trial at the New York Circuit before the court and a jury, at which a verdict was directed by the court, in favor of the plaintiff, for $13,432.20.

      E. F. Bullo/rd, for the appellant.

      J. F. Osborne, for the respondent.
   Brady, J.:

This action was based upon four promissory notes drawn by the defendants Shannon & Bullock, dated May 19, 1882, whereby they jointly and severally promised to pay to their own order, for value received, four several sums of $2,287.50, aggregating $9,150. They were indorsed, as alleged, before maturity to the defendant Payne, and by liim before maturity, and after they had been so indorsed, and after indorsement by himself for value, delivered to the plaintiff. The defendant Shannon only was served with the summons and complaint. He defended upon the ground that he had been induced by Payne to give the notes in payment for certain shares of stock and by representations which were false and fraudulent, and so designed to be in order to get the notes. Payne represented himself to be owner of the stock, but was not, in fact, and the fraud was accomplished, for he knew he was not the owner of any stock; knew what he said on that subject to be utterly without foundation; made the representation to obtain the notes therefor, intentionally, knowing well that he was falsifying and intending to do so with an object in view. There can be no doubt that on such a state of facts, as between him and the maker of the notes, they had no validity. Here all the elements demanded by the adjudications are present. The obstacle, however, in the defendant’s path is that a third person has intervened in no way connected with the representations, so far as appears, and presumptively a-holder for value. The possession of the notes which were, in form, negotiable and given for value received, as stated in them imports that they were acquired for value in the usual course of business, without notice of any circumstances impeaching their validity ; that they are owned by the person possessing them, and, therefore, he can recover against all prior parties. (Daniel’s Neg. Inst., vol. 1, § 812; Collins v. Gilbert, 94 U. S., 753; Comrs. v. Clark, Id. 285; Brown v. Spofford, 95 id. 478; to the same tenor, see Abbott’s Trial Ev., p. 389.)

Assuming this to be the rule, is there aught in this case to relieve the defendant from its application to his defense ? The plaintiff insists that even if it would be effective in case the defendant’s obligation were not joint, yet being joint, he must proceed farther and show that no consideration was received by his joint maker Bullock. There is, it must be said, no direct testimony on that particular subject, and the presumption of value given may not have been overcome. Kinsman v. Birdsall (2 E. D. Smith, 395) is an authority on that proposition. See, also, Eandolph on Commercial Paper (vol. 2, p. 5, § 447), in which it is said: “ A joint note implies a joint consideration.” See, also, Abbott’s Trial Evidence (p. 442), in which the author says: “ It is not sufficient for one of several joint makers of a note to show that he received no consideration, lie must show that neither of the others did.” (See, also, Daniels On Negotiable Instruments, vol. 1, pp. 94-105 ; Tiedeman on Commercial Paper, §§ 156, 151.)

This rule is not so imperative, however, that facts and circumstances tending to overcome the implication of a joint consideration may not be invoked, at least so far as to make it necessary to submit the issue of value to the jury. Do they present themselves here ? It appears that Bullock, the joint maker, was a friend of Payne’s and a relative of one Andrews, who was the manager in possession of the company, the stock of which Payne sold. The defendant had not known Bullock very long, not longer, indeed, than he had known Payne ; and there is no reason apparent why Bullock joined with the defendant in the note, unless it was to assist Payne in consummating the fraud. The stock which the notes were designed to purchase was to be the property of the defendant, not Bullock. Tie was to purchase it and to pay for it, and Bullock, except as a figure-head or conspirator, seems to have no relation to the transaction. When the notes were given the arrangement between the defendant and Payne was thus expressed: “If (said Payne) you will give me long notes for it, the company will be able to make the money, and as they make it you can take up the notes and I will deliver you the stock.” And again: “ I will deliver you the stock as the notes are paid, as they come due and are paid; I will hold the notes and present them to you myself, and they wont pass out of my hands, so that when they are due I will bring the notes and the stock to you.” Thereupon the defendant said, “ All right, I will do it.” He also said that the stock was not delivered to him, an incident which was a part of the scheme in aid, it w'ould seem, of Payne, who had not the stock to deliver, and, therefore, his peculiar proposition. The notes, as. already suggested, were fraudulently obtained and unlawfully diverted, Payne having agreed to hold them and to part from them only to the defendant, and on their gradual payment by the profits to be derived from the stock. Under all these circumstances, the request to go to the jury on the question whether any .consideration had been given for the notes should have been granted. There was enough shown to put the plaintiff to proof of value given,.the tona fides of the transaction out of which they grew having been successfully assailed, the notes diverted, and it having at least been prima facie established that the other maker, Bullock, had not received any consideration for the notes, the whole consideration, if any, having been received by the defendant. The refusal of the court to submit the question stated to the jury was error, the learned counsel for the defendant having coupled his request with the contention that the plaintiff was placed by the ■evidence in such attitude that he was bound to show value given and a purchase in the usual course of business.

The judgment, for these reasons, should be reversed and a new trial granted, with costs to abide the event.

Yan Brunt, B. J.:

I concur in the result. The note having been obtained by fraud, the plaintiff was bound to prove himself a tona fide holder for value. (Harger v. Worrall, 69 N. Y., 370.)

Daniels, J.:

The evidence did not prove that the note had been received for value. That seems to be a mistake in the statement of the case.

And as it had been obtained by fraudulent representations, the action could not be maintained without proof that the plaintiff had become a holder for value. A new trial should be directed.

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


author: Bartlett, J.:

text:
    JAMES B. TITMAN, as Administrator, etc., and SARAH E. O’MALLEY, as Administratrix, etc., Plaintiffs, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Defendant.

      Statute of limitations — action for death caused by the negligence of a municipal, corporation — token it falls toitkin chapter 572 of 1886.
    An action brought for the alleged wrongful causing of death by negligence, is an action “for damages for personal injuries alleged to have been sustained by reason of the negligence ” of a municipal corporation, within the meaning of chapter 572 of the Laws of 1886, and is barred by the one-year statute of limitation.

      Exceptions ordered to be heard in the first instance at the General Term, after a trial at the New York Circuit, on the 14th day of October, 1889, at which the plaintiff’s complaint was dismissed by the court and the exceptions taken, and the rulings on the trial were directed to be heard at the General Term in the first instance, with a stay of proceedings until the determination thereof.
    The complaint alleged, among other things, the following:

      Second. That Tenth avenue, in the city of New York, between One Hundred and Forty-third and One Hundred and Forty-sixth streets, and to a greater extent both north and south, is one of the streets of the said city of New York, and the obligation is imposed upon said city, by virtue of its charter, to keep the same in good order and in a secure and safe condition.

      Third. That the said defendant, disregarding and neglecting its duty in this respect, on the 8th day of January, 1887, and for a long time prior thereto, suffered and allowed the said avenue, and particularly that portion on or about the intersection of said avenue with One Hundred and Forty-fourth street, to be and to remain, to its knowledge, in an unsafe and dangerous condition for persons-riding or passing thereon, by reason of a large stone which was negligently and wrongfully suffered to remain for a long period of time upon said avenue.

      Fourth. That on or about the 8th day of January, 1888, between the hours of six and sev'en o’clock in the afternoon, the plaintiff’s intestate, Thomas O’Maley, was passing along said avenue, at the point aforesaid, and without any fault or negligence on the part of him, the said Thomas O’Maley, the sleigh or vehicle in which he was riding came suddenly in contact with the said large stone so carelessly and negligently left, as aforesaid, upon the avenue, so that the said Thomas O’Maley was thrown from the said vehicle to the avenue, and in so falling struck and fell violently upon his head and other portions of the body, whereby he was fatally injured, so that thereafter from the effects of said injuries he died, to these plaintiffs’ damage in the sum of $5,000. * *

      Seventh. That, on the 4th day of January, 1889, these plaintiffs, in accordance with the statutes made and provided, duly presented a claim against the Mayor, Aldermen and Commonalty of the City of New York for the sum of $5,000, as damages for the wrongful act and neglect of the said defendants, by which the death of the said Thomas O’Maley was caused, being the same claim sued upon in this action.

      Eighth. That, though thirty days have expired since the presentation of said claim, no part of the same has been paid.

      L. Laflim, Kellogg, for the plaintiffs.

      Thomas P. Wiókes, for the defendant.
   Bartlett, J.:

The plaintiffs brought this action to recover damages, under section 1902 of the Code of Civil Procedure, for the wrongful act, neglect or default of the defendant in causing the death of Thomas O’Maley, by leaving a large stone in Tenth avenue near One Hundred and Fourty-fourth street, in the city of New York, which upset the sleigh in which Mr. O’Maley was riding on January 8,1887, and threw him out. He died from the injuries thus received on J anuary 21, 1887.

On February 4, 1887, letters of administration on the estate of Mr. O’Maley were issued to the plaintiffs. On January 4, 1889, the claim in suit was presented to the comptroller of the city of New York, and its settlement and adjustment were demanded, but it has not been settled or paid.

This action was begun on February 6, 1889. Upon the trial at Circuit the complaint was dismissed on two .grounds, which are stated in the record as follows: 1. That, by the Laws of 1886, plaintiffs had one year and thirty days after the issuing of letters of administration in which to commence this action. 2. That the plaintiff did not have over two years from the death of the decedent in which to commence this action.

Upon these rulings the only questions which arise on the present appeal are, (1) Whether the plaintiffs’ cause of action is barred by chapter 572 of the Laws of 1886; and, (2), Whether it is barred by section 1902 of the Code of Civil Procedure.

Chapter 572 of the Laws of 1886 provides as follows: “ No action against the mayor, aldermen and commonalty of any city in this State having 50,000 inhabitants or over, for damages for personal injuries alleged to have been sustained by reason of the negligence of such mayor, aldermen and commonalty, or of any department, board, officer, agent or employee of said corporation, shall be maintained, unless the same shall be commenced within one year after the cause of action therefor shall have accrued, nor unless notice of the intention to commence such action, and of the time and place at which the injuries were received shall have been filed with the counsel to the corporation or other proper law officer within six months after such cause of action shall have accrued.”

If an action for wrongfully causing death by negligence is ££ an action for damages for personal injuries alleged to have been sustained by reason of the negligence ” of the defendant as a municipal corporation, then the one-year limitation prescribed by this statute is applicable to the case at bar and the complaint was properly dismissed.

The learned counsel for the plaintiff insists that this is not an action for personal injuries at all, but a special statutory action growing out of a death caused by the wrong-doing of the defendant ; that it is based wholly on the injury done to the estate and property of the decedent; and hence that it does not fall within the purview or terms of the act of 1886. On the other hand, the counsel to the corporation refers to the definition of personal injury in the Code itself as conclusive in regard to the meaning of the statute. ££ A £ personal injury ’ includes libel, slander, criminal conversation, seduction and malicious prosecution; also an assault, battery, false imprisonment, or other actionable injury to the person either of the plaintiff or of another.” (Code Civil Pro., § 3313, subd. 9.) It is to be noted, however, that the Code does not assume to apply this definition to the construction of other statutes, the section cited beginning with the words: ££ In construing this act, the following rules must be observed,” etc.

The question- is not free from difficulty, but I cannot resist the conclusion that the phrase “ personal in juries ” as, used in chapter 572 of the Laws of 1886, was employed in a less restricted and technical sense than that which the plaintiffs’ counsel would give it. Notwithstanding the distinctions which exist between the action for negligently causing death and the action for negligently causing bodily harm not resulting in death, I think nine lawyers out of ten would ordinarily speak of both as actions for personal injuries. And it seems to me that the legislature has spoken in the same way in the act of 1886. An injury to the person gives rise to both classes of actions, and that injury is the prominent idea associated with a negligence suit involving death, just as much as with a negligence suit involving-less serious results. Until the passage. of Lord Campbell’s act in England, and similar statutes in this country, if the injured person died in consequence of his injuries, no damages were recoverable against the party by whose wrongful act or negligence he had suffered. It is undoubtedly true that in a technical sense the statute gives a new cause of action. (Whitford v. Panama R. R. Co., 23 N. Y., 465; Littlewood v. Mayor, 89 N. Y., 24.) Substantially, however, and considering the nature of the redress to be afforded, it is a continuation of the original cause of action for the benefit of those dependent on the services or bounty of the deceased, and who have been injured by the personal wrong done to him. The statute, says Judge Coolet, “continues for the benefit of the wife, husband, etc., a right of action which, at the common law, would have terminated at the death, and enlarges its scope to embrace the injury resulting from the death.” (Cooley on Torts, 264.) In other words, the right of action growing out of what was clearly a personal injury, in the most restricted sense, is practically, though not technically, continued and extended by the statute. As Rapallo, J., points out in Littlewood v. Mayor (supra),. the statute “ was intended to apply to the case of a party who, having a good cause of action for a personal injury, was prevented by his death which' resulted from such injury from pursuing his legal remedies, or who omitted in his lifetime to do so.” Such being the purpose of the change in the common law, I think the action thus authorized may reasonably and naturally be called an action for damages for personal injuries; and I have no real doubt that it was the intention of the legislature to apply the one-year limitation to suits of this character against municipal corporations by the enactment of chapter 572 of the Laws of 1886.

This view renders it unnecessary to discuss the question whether the cause of action was barred by the two-years limitation, and requires an affirmance of the action of the court below.

Excejjtions overruled and judgment ordered for defendant.

Yan Brunt, P. J., and Barrett, J., concurred.

Exceptions overruled and judgment ordered for defendant.


author: Dykman, J.: Pratt, J.

text:
    MARY M. GOUVERNEUR and Others, Appellants, v. THE NATIONAL ICE COMPANY OF NEW YORK, Respondent. (Two Cases.)

      Natural, unnamgable, fresh-water pond —title to the land under its waters — adverse possession — the exercise of an easement does not create a prescriptive right to

    Where land upon the side of a natural, unnavigable, fresh-water pond is conveyed by a description, the line of which on the side of the pond runs “along said pond,” the title to the land under water, in front of the premises conveyed, does not pass to the grantee under the deed.

      Ledyard v. Ten JSyclc (36 Barb., 125) disapproved.
    Where no part of the land under water has been inclosed or occupied, and the only use thereof has been in taking ice from the surface of the water by the grantee of the adjoining property, a title by adverse possession does not arise in his favor.
    Such grantee does not acquire title to the land under water, under such circumstances, by taking a deed thereof from a third person where there is no evidence of the existence of any title to the land under water in such third person.
    The act of taking ice from the surface of the water cannot create a prescriptive right, as a fee in the land will not be implied from user where an easement therein would secure the privilege enjoyed; and an easement cannot be presumed in such case, as it cannot exist separately from an estate to which it is attached.

      Appeals by tlie plaintiffs from two judgments, one entered, in eacli of tlie two above-entitled actions, in tlie office of the clerk of the county of Putnam on the 6th day of February, 1889, with notice of an intention on the part of the plaintiffs to bring up for review on such appeals an order, entered, in each case, in said office on the 6th day of February, 1889, granting to the defendant an additional allowance of five per cent on the amount claimed in the complaint.
    The judgments appealed from dismissed the complaints in each of the above-entitled actions, one of which was brought to recover for a trespass, and the other of which was in ejectment, although both involved the same issue, namely, the title to the premises in question, which consisted of a pond in Putnam county, in the State of New York. The plaintiffs claimed title to the land under the water of the pond as the successors in title of the original patentee. The defendant claimed title as the owner of the land under water by virtue of certain conveyances describing the land upon the border of the pond.

      Iselin c& Warner, for the appellants.

      Close & Robertson, for the respondent.
   Dykman, J.:

The defendant claims the right to Hinckley pond, and has appropriated the same to its own use for the purpose of gathering ice from its surface for commercial purposes, and two actions have been commenced against it by the plaintiffs, one for the recovery of the premises and the other for the recovery of damages for their unlawful invasion.

The pond is a small natural lake bounded on the east and west by mountains and on the north and south by very low swamps. It is fed by two streams from the south, one of which is a little brook at the south-west corner that empties into the swamp, and loses its identity there before it reaches the pond, the other is at the southeast corner, constituting a small, well-defined stream at its mouth. The outlet is Muddy brook at the north-east corner, and that is a lazy, sluggish brook, running to the north with very little descent. The pond is shaped like the bowl of a spoon, and is sixteen feet deep in places, while the outlet is four feet deep. It has no thread and possesses none of the characteristics of a stream. There is no current and can be none, and the finding of the trial judge on that subject is against the evidence and against the possibility. With two small streams from opposite points coming from a low swamp, and a shallow outlet on the north-east corner only four feet deep, and a pond sixteen feet deep in the center, there can be no current, and no thread. There is, of course, a general movement of the water towards the outlet, but it is- imperceptible, and the pond is not the widening or spreading out of a stream, and it is not the confluence of two streams, because one of the streams from the south never reaches the pond in the shape of running water. Neither was the pond ever called Muddy, brook; that notion is insinuated into the points of the respondent on this appeal, and seems to have been imbibed by the judge, but it is entirely erroneous. The conception was extracted from a deed of conveyance from Margaret Ogilvie to Abner Crosby for 200 acres of land on the east side of the pond, the boundaries of which, beginning at a hickory tree twenty chains and thirty-four links east of Muddy brook, have this for the third course, to wit: “ North sixteen degrees west forty-three chains and seventy-nine links to Muddy brook,” but that this language indicates the outlet, and not the pond, is shown conclusively by the words immediately following, which are and down the same as it runs until it bears due west from the aforesaid hickory ” (the place of beginning).

Moreover, in the year 1813, a deed of conveyance was made by the same family to Joshua and Samuel Mabie for land on the west side of the pond, which contained this language, in the description of the premises, after reaching the pond on the west side, “ thence northerly along said pond to the outlet thereof, that is, to Muddy brook,” showing that the pond and the brook were not identical.

Neither of these subjects, however, are important in the solution of the problem presented by this ajípeal. The paramount and controlling question is, whether the plaintiffs own the bottom of the pond, and a complete understanding of that dispute will require the statement of some facts.

Hinckley pond was included in' the grant of land from King William the Third to Adolph Philips, dated June 17,1697, and then for the first time the title was vested in an individual owner.

Let there be no mistake about the character of this body of water. It is a pond, and not a stream of water, and the rules of law applicable to streams will have no application to this case.

The trial judge has found that “ the premises in question consists of the water and land under water of a natural pond or lake, sometimes called Hinckley pond and sometimes Croton lake, and are about a half a mile long and a little less than a quarter of a mile wide in the-broadest part, oval in shape, and covering somewhat over forty-five acres.

He also found as follows: The premises in question are a natural pond or basin, the confluence of two streams, Muddy brook and East inlet flowing into it at the southerly end, with an outlet, Muddy brook, at the northerly end.”

The plaintiffs in this action are the successors of the patentee; and if the title to the land in dispute has not passed from the family, the premises belong to them.

The predecessors of the plaintiffs have sold and conveyed all the land surrounding the pond to different persons by deeds which describe the premises they convey with precision, and in most cases by exact courses and distances, and, with but one exception, when the lines run along the pond they are by compass directions between monuments on the side of the pond like this. “ Beginning near the south side of a large rock on the west side of Hinckley pond; * * * thence running south sixteen degrees west five chains and sixteen links along said pond; thence south nine degrees west four chains sixty links to a pine tree stump.” The exception to the boundaries by courses and distances is found in the deed to Joshua and Samuel Mabie, already mentioned, and in that deed the course is northerly along the pond.

It is now the insistence of the defendant that each of the deeds for the land bordering npon this water operated to convey the land to the center of the pond, and, therefore, the plaintiffs have no title to the land covered by its waters.

Pausing here for a moment, in view of such contention, it becomes appropriate to inquire whether the predecessors of the plaintiff ever lost the title to the bed of this pond.

The owners conveyed a portion of land hy definite boundaries, and there is nothing in the deeds -to denote an intention to buy or sell any land not included within the boundaries expressly defined, and there is no principle of law to justify the grantee in going beyond the boundary line and taking another parcel. He cannot claim by force of his grant; and if the doctrine for which the defendant contends is to prevail, the acquisition by construction and operation of law might exceed what was obtained by express grant. It is a fundamental principle of law that one parcel of land not mentioned in a deed cannot pass as an appurtenant to another distinct parcel expressly granted by precise and definite boundaries.

If all the parcels of land conveyed around this pond by the predecessors of the plaintiffs were protracted according to the description in the deeds, all the land called for by his deed would be allotted to each grantee and the pond would remain, and thus it is demonstrated that the premises in question were not embraced in the deeds, but are excluded therefrom bj1- the terms of the descriptions, which manifests a plain intention to grant and- receive a specified quantity of land specifically described.

There is nothing in those deeds to indicate that the parties intended more than they said, and the presumption of law is that the title remains in the original proprietors until such presumption is overcome. There is no rule of the common law that half of a stream shall pass by a grant of the adjacent land. All the law does is to indulge a presumption in favor of a shore owner in the absence of evidence. The claim of 'the defendant is interposed by virtue of the common law, but that system of jurisprudence has been much modified in its application to our lakes, because in England it was confined to navigable rivers and the sea.

We can indulge no inference for the purpose of enlarging the grants of the plaintiffs’ predecessors, for the law makes no intendment concerning such grants. The grantees take to the lines prescribed by the deeds, and their limits can be extended no further by construction. Presumption is never entertained to enlarge an estate, and a deed cannot be made to operate on property which one party did not intend to buy and the other party did not intend to sell.

We must not deceive ourselves because the land in question is covered with water. We are dealing with private rights alone, unembarrassed by any question of sovereignty. We have a natural, unnavigable fresh-water pond, in which the State has no rights, whose bed is private property, the owner of which has made grants of land on its borders bounded by the pond, and the naked question now under consideration is, whether the grantees by force of such grants have acquired 'title to the bed of the pond.

The land so covered with water was owned by the ancestors of the plaintiffs, and it was the subject of private ownership like other land. That proposition lies under the shadow of a great name, for Lord Hale, in his Treatise de Jure Mcvris, said: “ One man may have the river and the others the land adjacent.” Being such owners, they might sell and convey the same, or they might sell and convey the land adjoining, and in neither case would the deed carry more land than it described. The water over this land does not change it in respect to its ownership. There were many lakes in the land included in the Philips Patent, but the land which they covered all passed to the patentee, and the title to all the other land unconveyed has vested in these plaintiffs, and why not this also. It has never been conveyed, and there is no principle of law which will appropriate it unconveyed. The law makes no contracts and no deeds between parties, and it can make none. It simply enforces those which are made according to their terms, and it goes no further.

Thus far our examination has proceeded upon the legal effect of the grants of land around the pond, and our conclusion upon principle is that those deeds convey only the land which they described and the title of the grantees therein extended to the water, and no further. But, if the case is to be decided upon authority, the result will be the same.

The case of Wheeler v. Spinola (54 N. Y., 378) was so nearly like this as to be an authority, for there the land was bounded by the pond, and it was held that a boundary upon a natural pond carries title to low-water mark only, and Judge Earle, in delivering the opinion of the court, said: “ Neither can the rule as to riparian ownership be applied to this pond which is applied to ordinary fresh-water streams. A boundary upon it does not carry title to its center, but only to low-water mark. Such is the rule as to boundaries upon natural ponds and lakes.” Such is the doctrine of the Court of Appeals at this time, so far as any expression of that court has reached the public.

The case of Smith v. Rochester (92 N. Y., 463) depended upon many questions and considerations not involved in. Wheeler v. Spinola, and this latter case was not referred to, and the inference is that the court did not intend to take any departure from the law as there laid down. The head-note in the Rochester case is unsupported and misleading.

In the Massachusetts case oi Waterman v. Johnson (13 Pick., 265), Chief Justice Shaw said: “A large natural pond may have a definite low-water line, and then it would seem to be the most natural construction, and one which would be most likely to carry into effect the intent of the parties, to hold that land bounded upon such a pond would extend to low-water line, it being presumed that it is intended to give to the grantee the benefit of the water, whatever it may be, wliich he could not have upon any other construction.”

In the case of the Canal Commissioners v. The People (5 Wend., 447), Chancellor Walworth, in his opinion said: “ The principle itself (the common-law rule) does not appear to be sufficiently broad to embrace our large fresh-water lakes and inland seas, which are wholly unprovided for by the common law of England.”

In the case of Bradley v. Rice (13 Me., 301) it was held that where the land in a conveyance was bounded by a pond of water, the grant extended only to the margin of the pond; and expressions of the same purport are found in Kingman v. Sparrow (12 Barb., 206;) Champlain and St. Louis Railroad Company v. Valentine (19 id., 491).

“ When land is conveyed bounding upon a lake or pond, if it is a natural pond, the grant extends only to the water’s edge.” (Angell on Water Courses, § 41.)
“ Where the boundary given is a natural pond or lake of fresh water, the boundary line will, it seems, run along the low-water mark of the pond, though other cases speak only of the water’s edge.” (Wash. on Real Prop. [5th ed.], vol. 3, p. 443, § 47.) The writer refers to many cases in Massachusetts, New Hampshire, Maine and Vermont, as authority for the statement in the text.

In the case of Child v. Starr (4 Hill, 382) Chancellor Walworth lays down the following rules respecting the bed of a river, and they are also applicable to a fresli-water natural pond : “ The bed of a private river is a substantive matter of grant, and can only pass as such. It can never pass as incident or appurtenant to a grant. It is land, and land cannot be incident or appurtenant to land. A conveyance of one acre of land can never be made by any legal construction to carry another acre by way of incident or appurtenance to the first. That land, and that land only, which is expressly embraced in and forms thé subject-matter of a grant, passes under it.” Again, he said in the same opinion: But there is no presumption against direct proof, nor any prima facie intendment in the presence of an express grant; such grant fixes its own limits and determines the rights of the parties under it.”

In the case of Ledyard v. Ten Eyck (36 Barb., 126) the land of the defendant was bounded on the west and south by the lake and outlet thereof, and the judge who wrote the majority opinion said: “ The deed would have the usual legal effect, and as an appurtenance would carry along the land under water to the center; at all events, it would carry the right to the land filled in, where the water was shallow immediately in' front of the defendant’s premises.”

That statement is antagonistic to all the authorities and expressions of writers and judges, and is manifestly erroneous. It has never been followed or referred to in any subsequent case, and in this case of Wheeler v. Spinola (supra) the Court of Appeals bestowed upon it the charity of its silence.

It may also be said that the theory of the defendant respecting the division of the bottom of the pond between the riparian owners is not susceptible of practical application. Under that theory the lateral limits of each owner must be lines running perpendicular to the shore and extending to the center, giving the same width at the center as on the shore, and so the owners on the sides would take the land to the center of the pond and leave nothing for the owners upon the ends, who have the same right to run to the center as the owners on the sides. The position of the defendant, therefore, falls under the condemnation of both principle and authority. This examination is sufficient to dispose of the claim of the defendant that the grants of the plaintiffs’ predecessors of the land around the pond extended to the center.

The second defense introduced by the defendant is less meritorious than the first.

Assuming what is very doubtful, that the deeds upon which the claim to an adverse possession is founded are sufficiently definite and certain to form a basis for such a claim, there has been no possession or occupation under them, such as the law requires, to constitute an adverse possession.

There has been neither cultivation nor improvement and no protection by inclosure, and there has been no use for the supply of fuel or fencing timber for any purpose. Neither was there any improvement of any part of the premises so that the other portions can be deemed to have been occupied for the same length of time as the part improved, and without some or one of these the land is not deemed to have been possessed for the purpose of constituting an adverse ¡possession. (Code of Civil Pro., § 370.)

The rule of law respecting partial occupancy applies to land used in one body according to the custom of the country, but has no application to this case. No part of this land was inclosed or occupied, and such use as was made of the shore at the south-west corner was neither permanent nor continuous.

Moreover’, the procurement of deeds from persons not shown to be the owners, and an entry such as was made under them in this case, is entirely insufficient to initiate a claim to an adverse possession. (Beach v. The Mayor, 45 How. Pr., 368; People v. Livingston, 8 Barb., 255; Sharp v. Brandow, 15 Wend., 597.)

Again, the predecessors of the plaintiffs, being the owners of the land, were, at all times, constructively in the possession thereof, unless it was in the actual hostile occupation' of another under a claim of title (Bliss v. Johnson, 94 N. Y., 242), and the defendant shows no occupation of the land at any time. Taking ice from the surface of the water was no occupation of the land. It was akin to a profit taken from the soil of others, and even that was repeated but once a year; but the claim of a right to take ice from the pond can only be sustained by a prescription, and such a claim cannot be sustained as a prescriptive right, because it cannot exist separately from an estate to which it is attached. (Roe v. Strong, 107 N. Y., 350; Pearsall v. Post, 20 Wend., 123; Angell on Tide Waters, 272; 2 Greenleaf’s Ev., 540; Gould on Waters, § 25.)

In the case of Wheeler v. Spinola (supra), it was held that the cutting of salt grass annually upon an uninclosed lot for twenty years was insufficient to constitute a possession adequate to confer title, and that was manifestly a much stronger case than this. In the case of Miller v. Downing (51 N. Y, 631) it was held that a person who maintains a wood pile upon a vacant lot for thirty years acquired no title thereby.

Another principle of law is that a fee will not be implied from user where an easement would secure the privilege enjoyed. (Roe v. Strong, 107 N. Y., 359; Gould on Waters, § 22.)

In no respect, therefore, have the acts done upon the premises in dispute responded to the requirements of the statute or been sufficient to constitute a possession which can be deemed adverse.

Neither are the plaintiffs estopped from the assertion of their legal rights, because they were never aware of the expenditure of money upon or near the premises, and neither the defendant nor its predecessors have been influenced by any conduct of the plaintiffs or those under whom they claim. Moreover, the trial judge has found that no considerable expenditure for permanent improvements were made upon the premises in question.

Gur examination has proceeded far enough to show that the judgment appealed from is erroneous, although there are other important and interesting questions involved which we do not examine or decide,

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

Cullen, J., concurred.

Pratt, J.

(dissenting):

These two actions depend upon the same question. One of them is in ejectment and the other is for trespass. The primary inquiry in each is whether or not the plaintiff owned the premises in question at the commencement of the actions.

The locus im, quo is a pond in Putnam county, sometimes known as Hinckley pond and again as Croton lake; and there is ground in the evidence for the statement that the pond was sometimes known as Muddy brook, although the latter name has for many years been applied exclusively to the outlet.

The learned trial judge, upon conflicting evidence, has found that there is a slight current running through this so-called pond from its inlets to its outlet. It is a natural basin, a widening of two small streams at and below tlieir confluence.; but the evidence, we think, justifies the inference that it is and must be classed as a water-course, and our conclusion is that it was properly treated as such. It is non-navigable except for small row boats or skiffs.

The plaintiffs’ ancestors undoubtedly owned the land about this so-called pond ; and, by various conveyances, bounded in part by the pond, have conveyed away the whole or substantially all of the adjacent upland. They say, however, that because these various conveyances run “ to the pónd ” or to some monument on the land at the water, and thence along the pond, sometimes by given courses and distances and sometimes without any, but generally to some other monument on the bank, and thence away from the water, and so about to a place of beginning. The water edge is, therefore, a ■boundary on that side, so that the water and the land under water has never, as they claim, been conveyed and is still owned by them. The learned trial judge, in view of all the facts submitted to him, has held that these conveyances run to the center or thread of the Stream of which the pond is only a part. We conclude that this is the correct view. It has been so clearly put in the opinion delivered at the trial term, that, notwithstanding the exceedingly ingenious, exhaustive and plausible argument of plaintiffs’ counsel, it is unnecessary to do more than express our concurrence in the conclusions there expressed. The plaintiffs are undoubtedly correct in the position that, generally speaking, fixed monuments are conclusive when referred to in grants. But the case of a monument on the bank of a stream seems an exception to that rule unless it clearly and affirmatively appears that it was the purpose to exclude the water and land under it to the thread of the water-course.

The authorities cited, and those therein referred to, clearly show that where a grant of land is bounded by a non-navigable natural water-course, it extends to the thread of the stream, notwithstanding the fact that the courses and distances run to specified monuments on the bank. This is because of the fact that it is impracticable, if not impossible, in specifying such a boundary, to set it up or fix a monument at the exact line in the water, especially at the thread of a stream. There are one or two deeds which, at first blush, might seem to form exceptions to the application of this general rule, but taking the grants of plaintiffs’ ancestors together with all the other facts and circumstances, especially the great delay in asserting the theory upon which plaintiffs rely, and also in view of the great outlay which defendants, and others engaged in like pursuits, have made on this pond for business purposes, we think that it is now too late for plaintiffs to claim that the water and the land under water of this pond was not included in these grants. This history shows, or, at least, strongly tends to show, acquiescence in this construction of these grants.

We do not deem it necessary to examine any of the other questions.

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


author: Learned, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE NEW YORK PHONOGRAPH COMPANY, Appellant, v. FRANK RICE, Secretary of State, Respondent.

      Tax payable to the comptroller on the capital of a corporation, created by the consolidation of two corporations, each of which has already paid such tax.

    Each of two corporations, incorporated under chapter 40 of the Laws of 1848, paid the tax of one-eighth of one per cent upon its capital, as required by chapter 143 of the Laws of 1886, as amended by chapter 284 of the Laws of 1887, and subsequently entered into an agreement for consolidation, under chapter 960 of the Laws of 1867, into a corporation having a capital equal to the aggregate of the capitals of the two corporations so consolidated, and with a term of corporate existence the same as that of the corporation having the shortest term;

      Held, that the consolidated corporation, upon filing its articles of association with the secretary of State, was properly required to pay a tax of one.eighth of one per cent upon the amount of its capital.
    Appeal by the relator, the New York Phonograph Company, from an order entered in the office of the clerk of the county of Albany, upon a motion made at the Columbia Special Term, September 5, 1890, for a peremptory writ of mandamus to compel the Secretary of State to file certain papers constituting the articles of incorporation of the relator, without the payment of the tax required by chapter 143 of the Laws of 1886, as amended by chapter 284 of the Laws of 1887. By the order appealed from the motion for a peremptory writ of mcmdamus was denied.

      Noah Davis, for the appellant.

      Isaac N. Maynard, for the respondent.
   Learned, P. J.:

Two corporations, the New York Phonograph Company and the Metropolitan Phonograph Company, were organized under the manufacturing act of 1848 and its amendments; the former for fifty years from October 4, 1888, the latter for fifty years from February 5, 1889. Each paid on its organization the tax of one-eighth of one per cent upon its capital pursuant to chapter 143 of the Laws of 1886. They entered into an agreement of consolidation in pursuance of chapter 960 of the Laws of 1867. Thename of the company thus to be formed is The New York Phonograph Company; its capital is the same as the aggregate of the two consolidating companies ; its term of existence fifty years from October 4, 1888.

The consolidating companies presented to the Secretary of State the requisite papers to be filed as provided by the statute. The Secretary refused to file them on the ground that the tax of one-eighth of one per cent on the capital of the company to be formed had not been paid.

This present proceeding is for a mcmdamxis to compel the filing. The motion for a mcmdamus was denied by the Special Term and the relator appeals.

The question here involved arises under section 1, chapter 143, Laws of 1886, as amended by chapter 284 of the Laws of 1887. “Every corporation * * * incorporated -by or under any general or special law of this State having capital stock divided into shares shall pay to the State treasurer for the use of the State a tax of one-eighth of one per centum,” etc. There is no doubt that the corporation formed (or to be formed) by the aforesaid consolidation agreement has a capital stock divided into shares. Nor is there any doubt that it is incorporated (or to be incorporated) under a general law of the State. The right of the consolidated body to be a corporation comes from the law of the State permitting the consolidation. Without such law the two companies could not consolidate. And that law (chap. 960 of 1867), calling the consolidated body the new company,” specifies in section 4 the corporate powers it shall have. It is too plain for argument that without such law an agreement of consolidation would not create any body having corporate powers, but would be invalid. Hence it must be that the corporation is formed (or to be formed) under a general law of the State.

But it is urged that the two consolidating corporations were corporate bodies in full and vigorous life, entitled to their franchises which they had obtained from the State, and for which they had paid a tax, and that the new body is only a union of the two with no new corporate rights, and, therefore, liable to no new tax. It is true that the two consolidating bodies were corporations in full life, until they formed or should form the new corporation. Then they ceased (or will cease) to exist. It was for this very purpose that they executed the agreement; the purpose to end their own existence and to form a new person. Whenever they form the new corporation their own corporate existences cease. The new company is not a partnership of the two old companies. It is entirely a new corporation. (Shields v. Ohio, 95 U. S., 319; Railroad v. Georgia, 98 id., 359; Railroad v. Maine, 96 id., 499.)

The fifth section of the Consolidation Act expresses this where it says that “ on the organization of such new company ” * * * all and singular the rights, franchises and interests of the said several corporations ” * * * “ shall be deemed to be transferred to and vested in such new corporation,” * * * and such new corporation shall hold and enjoy the same and all rights of property;’’ etc., * * * in the same manner and to the same extent as if the said several corporations so consolidated should have continued to retain the title,” etc. If there were not a new corporation, it would be unnecessary to declare that the rights and franchises of the consolidated corporations should be transferred to and vested in it. » It is urged by the relator that by payment of the tax the consolidating companies purchased the right to be corporations, and, therefore, that they ought not to be compelled to purchase it again. But the.payment of the tax is not the purchase of a.right. Under our Constitution and laws corporate rights are not special concessions by the State; but they are general privileges in the power of all citizens. And the tax is in no sense a purchase-price. The companies have no greater rights when they have paid the tax than they had before. The companies which have paid the tax have no greater rights than those have which were incorporated before 1886, and, therefore, paid no tax.

And this shows, further, that it is immaterial to the present inquiry whether or not the consolidating companies paid the tax. If these companies had been incorporated before 1886 and had entered into .a similar agreement of consolidation, the legal question as to liability to this tax would be the same as in the present case. So, too, if one had been incorporated before and the other after 1886. The construction given to the law imposing the tax must be uniform. It cannot vary according as the consolidating companies have or have not been required to pay the tax.

In short, where the language of the statute is clear it is not for the court to say that a tax is unreasonable. It would have been easy for the legislature to insert in the Consolidation Act, or in the Act imposing this tax, a clause exempting from such tax any corporation of which the consolidating companies or one of them had already paid a similar tax. JBut that was not done; and it would be judicial legislation for us to construe the statute as if such a clause had been inserted. We have only to inquire what the legislature meant. And they must be held to have meant what they said. It is true that the relator presents a strong equity when it urges that the tax has already been paid on the same amount of capital employed in the same business and practically by the same parties. But we cannot yield to this equity in violation of the language of the statutes. There is nearly always something arbitrary and inequitable in taxes and tariffs which courts cannot remedy.

The order appealed from is affirmed, with fifty dollars -costs and disbursements.

Landon and Mayham, JJ., concurred.

Order affirmed, with fifty dollar costs and disbursements.


author: Learned, P. J. :

text:
    In the Matter of the Claim of BYRON O. SPENCER, Respondent, v. ALFRED C. HODGMAN, as Assignee, etc., of CHARLES HOOPER, for the Benefit of his Creditors, Appellant.

      Notes given to an employee — if negotiated, the wages which they off-set are not entitled to a preference under an assignment for creditors by the employer.

    An employee, wlio had rendered valuable services, received, during the term of such employment, the accommodation notes of his employer, which, with the cash paid him, exceeded the amount he had earned. These notes the employee indorsed and transferred, and thereafter the employer made a general assignment for the benefit of his creditors, at which time the notes belonged to other parties than the employee. Subsequently the notes were paid for, and were obtained again, by the employee.

      Held, that the employee was not entitled to a preference in the payment of such notes, under the general assignment, by virtue of the provisions of chapter 288 of the Laws of 1886, preferring all wages or salaries actually owing to the employees of the assignor at the time of the execution of the assignment.
    That, whether the notes paid the original indebtedness or not, the employee, by reason of their transfer prior to the time of the assignment, had at that time no claim for wages or salary as against the estate of the assignor.
    Appeal by Alfred C. Hodgman, as assignee, etc., of diaries Hooper, from an order entered in the office of tbe clerk of tlie county of Washington on the 8th day of January, 1890, by which it was adjudged by the county judge of Washington county that the claimant, Byron O. Spencer, was entitled to a preference under the statute in payment of his claim out of the assets of the estate of Charles Hooper, who had made an assignment thereof for the benefit of his creditors.

      L. H. Northwp, for the appellant.

      O. L. Jones, for the respondent.
   Learned, P. J. :

Alfred O. Hodgman is the general assignee of Charles Hooper for the benefit of creditors. Byron O. Spencer made a claim that, as an employee of the assignor, he was entitled to a preference on a debt of $234.77 and interest. It was agreed between the parties that the matter should be heard before the county judge and should be deemed a part of the final accounting of the assignee. The county judge on a hearing decided that Spencer was entitled to a preference as such employee, and the assignee appeals.

The claimant was employed by the assignor and worked for him from April 1, 1887, to August 27,1888, the date of the assignment. The services at the rate agreed on amounted in value to $779.82, on which the claimant had received $506.37 in cash. At least these are the amounts stated by the county judge, and they are sufficiently accurate for the present purpose. The assignment was made July 27, 1888. Previously to that time Hooper had given to Spencer three notes made by Hooper, dated, respectively, April 9, 1888, May 1, 1888, and May 1,1888, amounting in all to $432.46. These were not given for indebtedness then owing, but, as Spencer says, were accommodation notes; that is to be earned by future services. Thus it is that the aggregate of the notes and of the cash paid exceeds the amount earned by Spencer.

These notes Spencer indorsed and transferred a few days after he received them; and at the time of the assignment, and for several months thereafter, the notes belonged to other persons. In January, 1889, or thereabouts, the claimant paid for the notes and took them into his possession. . How much he paid does not appear.

The claimant relies on chapter 283, Laws of 1886, providing as follows: “ In all distribution of assets under all assignments made in pursuance of this act the wages or salaries actually owing to the employees of the assignor or assignors at the time of the execution of the assignment shall be preferred before any other debt.”

Now, the obvious answer is that at the time of the assignment there were no wages or salaries actually owing to the claimant. Whatever was owing for his salary or wages had been transferred by him and was owing to other parties. It is true, as he claims, that the notes did not pay the original indebtedness. But plainly the transfer of the notes either transferred the original indebtedness, or took away from the claimant for the time all right of action thereon. At the time when Hooper made his assignment the right of action on these notes was in the indorsees thereof. They, and not Spencer, were creditors of Hooper.

Now, it is true that, after January, 1889, when Spencer had paid the indorsees and obtained the rightful possession of the notes, he could have sued Hooper thereon, or he could have sued Hooper on the.original indebtedness, surrendering the notes. This is the familiar doctrine laid down in Jagger Iron Company v. Walker (76 N. Y., 521), cited by the learned county judge.

But that does not apply to this case. Here the question is: Was Hooper, at the time of the assignment, actually owing to Spencer the amount claimed ? We are simply to construe the exact language of the statute. For unless the statute gives a preference, none exists. And the statute does not give a preference for wages or salaries which have been transferred and are, therefore, no longer owing to the employees. If the statute had simply said that wages and salaries shall be preferred, there would be more ground for Spencer’s claim. But the statute goes further' and says that these wages and salaries, in order to be preferred, must be actually owing to the employees at the time of the assignment. Spencer’s claim does not conform to this requirement.

Some other questions are raised on the appeal. It is said that Spencer did not perform his contract, and that there is no proof of the guamt/um meruit; also that the notes were accommodation notes and he was to work them out. But it is not necessary to consider these questions. Taking them in the view most favorable to Spencer, we think, for the reasons stated above, that he is not entitled to a preference.

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

Landon and Mayham, JJ., concurred.

Order reversed, with ten dollars costs and printing disbursements.


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    SAMUEL T. GUILFORD, Appellant, v. JOSEPH B. MILLS, as Sheriff, etc., Respondent.

      Chattel mortgage— levy upon the chattels under an execution against the mortgagor, who has made a general assignment for creditors — what must he shown to sustain the levy.

    A chattel mortgage was executed in February, 1889, by the firm of Crandell & Boynton to one Guilford, and about the sixth of March thereafter Guilford took possession of the mortgaged chattels. On the 12th of April, 1889, Crandell & Boynton made a general assignment of their property for the benefit of their creditors, and on April 20, 1889, a levy was made by the sheriff upon the mortgaged chattels under an execution issued upon a judgment against Crandell & Boynton.
    In an action of replevin brought by Guilford against the sheriff to recover such chattels:

      Held, that Guilford was entitled to recover for the reasons :

      Mrst, that if the plaintiff’s mortgage was good as against the creditors of the mortgagors, Guilford acquired a right to the mortgaged chattels thereunder ; and,

      Second, that if the mortgage was invalid as against such creditors, the title to the chattels passed to the assignee named in the general assignment made by the mortgagors for the benefit of their creditors.
    That, in such a case, the sheriff, in order to justify his levy and seizure of the property, must show a right in his judgment-creditors to take the mortgaged chattels, and it is not sufficient to show that the party, in whose possession the chattels were, had no valid title thereto.

    Appeal by the plaintiff, Samuel T. Guilford, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Warren on the 24th day of June, 1890, after a trial before a referee.
    The action was brought to recover the possession of certain chattels which had been levied upon by the sheriff of the county of Warren under an execution against the firm of Crandell & Boynton.
    At the time of the levy the chattels were in the possession of the plaintiff, who claimed title thereto under a chattel mortgage made by the firm of Crandell & Boynton to him. The referee found that the chattel mortgage was fraudulent and void as against the creditors of the firm of Crandell & Boynton; that the defendant was entitled to levy upon the said chattels; that the plaintiff was not the owner thereof nor entitled to the relief demanded in the complaint, and that the complaint should be dismissed, with costs.

      E. T. Brackett, for the appellant.

      L. H. JBortlvwp, for the respondent.

       Code of Civil Procedure, § 1723. — [Rep.

   Learned, P. J.:

This is an action of replevin. The property in dispute belonged in March, 1888, to Crandell & Boynton. In February, 1889, they executed a chattel mortgage thereon to the plaintiff. About the 6th of March, 1889, the plaintiff took possession of the mortgaged property. On the 29th of March, 1889, the plaintiff sold the mortgaged goods by virtue of the mortgage; bid them in and retained the possession until April 20, 1889. On the 12th day of April, 1889, Crandell & Boynton made a general assignment to L. L. Davis. On the 20th day of April, 1889, the defendant, as sheriff, made a levy on the goods in question, and took them from plaintiff’s possession by virtue of several executions issued upon judgments recovered upon liabilities of Crandell & Boynton arising prior and subsequent to the 14th day of February, 1889.

This case was tried before a referee, who dismissed the complaint; and from the judgment entered on his report the plaintiff appeals. The appeal is heard on the judgment-roll only, no case having been made. The facts above stated appear in the referee’s report.

There are other findings in the referee’s report in regard to the permission by the plaintiff to Crandell & Boynton to continue in possession and to carry on business after the mortgage; upon which facts the referee finds, as conclusion of law, that the mortgage is fraudulent and void as to creditors.

The plaintiff urges that there is no finding of fact that the mortgage was fraudulent, and that the facts found, upon which the referee finds, as matter of law, that the mortgage is fraudulent, are insufficient to support that conclusion.

It does not seem to us necessary here to decide whether, on an appeal upon the judgment-roll solely, the court should reverse the judgment because sufficient facts are not found to compel logically the conclusions of law. We have held in other cases that we ought not to reverse a judgment solely on the ground that the facts found by the referee did not necessarily compel his conclusions of law, although they were consistent with such conclusions. Where the evidence is not before us we may reasonably presume that enough was proved on the trial to make out the additional facts which the referee has not found, and which, with those he has found, would logically lead to his conclusions of law. But, in the present case, the plaintiff urges that the facts actually found by the referee compel a different conclusion of law.

Admitting, for the sake of the argument, that the mortgage was fraudulent as to creditors, it is, nevertheless, a fact that the plaintiff, from the sixth of March down to the day of the levy, was in possession under it. Such possession gave him a right to maintain replevin against any one who took the property as the defendant did. The defendant, then, must show a right to the property in order to justify his taking; this he can only do by connecting himself with the title of Crandell & Boynton, and showing also that plaintiff’s title derived from them is fraudulent as to defendant representing creditors.

But the referee has found that eight days before defendant made a levy Crandell & Boynton made a general assignment to L. L. Davis. Now, if plaintiff’s chattel mortgage is good as to creditors, clearly defendant has no title If plaintiff’s mortgage is fraudulent as to creditors, then Davis, the general assignee, has, under the well-known statute, the right to set it aside, and the title to the property is in him.

The learned referee, in his opinion, refers to this matter, and says that if the assignment is valid, it vests the title in the assignee; and if the plaintiff shows title in another, that defeats his action. But the mistake is that possession alone is sufficient to maintain plaintiff’s action. If the defendant is to justify his taking of the property out of plaintiff’s possession, he must prove a title in himself. To prove a title in Davis does not justify the defendant in taking away property from plaintiff’s possession, unless the defendant acts under authority of Davis, and that he does not do. It is very plain that the man who takes property from my possession cannot defend his act by showing that the property belongs to my neighbor, unless he acts by that neighbor’s authority. (Wheeler v. Lawson, 103 N. Y., 40; Loos v. Wilkinson, 110 id., 195.)

If the facts were such that the defendant had shown also that the assignment to Davis was fraudulent as to tlie creditors represented by him, then he would have avoided the difficulty which now meets him. JBy sweeping away as fraudulent both the chattel mortgage and the assignment he would then, through his executions, have connected himself with the title of Crandell & Boynton, and would thus justify his violation of plaintiff’s possession.

But if that assignment is not fraudulent, then the assignee has the right to attack the alleged fraudulent chattel mortgage. If he will not do this, creditors can bring the action in aid of the assignment.

As this case, however, now stands upon the findings of fact, we think that the complaint should not have been dismissed.

Landon and Mayham, JJ., concurred.

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


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    HENRY VAN WORMER, Appellant, v. GEORGIANNA VAN WORMER, Respondent.

      Action for divorce — second allowance made to the wife notwithstanding a stipulation that no application would be made therefor.

    In an action for divorce tlie attorney for the husband, the plaintiff, paid to the wife’s attorney $100, and took a receipt, signed by the wife’s attorney, stating that the samewas “ the sum agreed on as my counsel fees and upon the agreement that no application shall be made for other or further counsel fees, or alimony until the result of this action is reached.” The case was subsequently tried and the jury disagreed. The defendant then moved that the plaintiff be required to pay a further sum needed for her expenses at the next trial.
    Upon the appeal from an order granting the motion, and directing the payment of $150 for such expenses,

      Held, that, as the possibility of a disagreement of the jury was not within the thoughts of the parties when the receipt was given, the unexpected increase of expense, by reason of such disagreement, changed the situation in such wise that the Special Term was. in view thereof, authorized, notwithstanding the receipt, to grant a further allowance.
    Appeal by the plaintiff, Henry Van Wormer, from an order entered in the office of the clerk of the county of Schenectady on the 21st day of May, 1890.

      The order was granted at the Saratoga Special Term on May 6, 1890, and directed that the plaintiff pay to Georgianna Van Wormer, the defendant, the sum of $150, as and for the expenses incurred by her in the action and to be incurred by her in the further defense thereof.

      W. L. Van Denbergh, for the appellant.

      R. J. Sanson, for the respondent.
   Learned, P. J.:

This is an action for divorce. After issue'had been joined the plaintiff’s attorney paid to defendant’s attorney $100 and took the following receipt:

(Title of the cause.)

Received October 17, 1889, from plaintiff by the hands of W. L. Van Denbergh, his attorney, one hundred dollars, being the sum agreed on as my counsel fees, and upon the agreement that no application shall be made for other or further counsel fees or alimony until the result of this action is reached.

ROBERT J. SANSON,

Defendants Attorney.

Subsequently the cause was tried and the jury disagreed. The defendant then moved that plaintiff be required to pay a sum needed for her expenses at the next trial. The Special Term granted $150 for such expenses. The plaintiff appeals.

The only question before us is whether the receipt is a bar to an application for money to meet these further expenses.

There is no reason to doubt the propriety of the order, unless the court ought to have refused it upon the ground of the agreement contained in the receipt.

It is a question on which there may be some doubt, as it depends principally on the meaning to be gathered from the receipt under the circumstances. Of course, courts always desire to compel the performance of stipulations by attorneys in matters within their power. But we are inclined to think that the possibility of a disagreement of the jury was not within the thoughts of the parties. The expenses of the first trial appear to have been somewhere about $150. And, therefore, we cannot think that the attorneys contemplated a second trial, made necessary by a disagreement of the jury, when they fixed the counsel fees at $100. In speaking of The result of the action ” they probably thought of a trial, a verdict and a judgment; and supposed that $100 would or might be enough to enable the defendant to litigate the action with justice to herself. The unexpected increase of expenses by the disagreement of the jury has changed the situation. And we think it would be unreasonable to give to the receipt the controlling effect which plaintiff claims for it. True, it may be capable of that meaning. But a more fair and just view is to understand that a disagreement of the jury was not anticipated, and, therefore, that it was within the power of the Special Term to give the allowance.

Aside from these considerations, there is no reason to say that the Special Term did not exercise a proper discretion.

The order of the Special Term is affirmed, without costs to either party.

Landon and Mayham, JJ., concurred.

Order affirmed, without costs.