author: Parker., J.:

text:
    The People of the State of New York ex rel. Michael Doherty, Relator, v. The Board of Police Commissioners of the City of New York, Respondent. The People of the State of New York ex rel. Bernard Meehan, Relator, v. The Board of Police Commissioners of the City of New York, Respondent. The People of the State of New York ex rel. John Hock, Relator, v. The Board of Police Commissioners of the City of New York, Respondent.

      Police commissioners of New Torlc— review of their dismissal of members of the police force — presumption indulged in its support — the testimony of an accomplice must be corroborated ■— testimony of the accused falsus in uno falsus in omnibus —• notice of the charges preferred —jurisdiction, how affected by malice towards the accused — several members tried together —practice regulated by the board — ordinary rules of evidence disregarded.

    In proceedings brought to review the action of the board of police commissioners of the city of New York in dismissing from the police force of that city a member thereof, the court will indulge in the same presumptions in support of such determination that it would in support of the verdict of a jury.
    Although the decision of the board of police commissioners of the city of New York, dismissing a person from the police force of such city on the charge of bribery, cannot be sustained, if based alone upon the uncorroborated testimony of the person who gave the bribe, it is not essential that the corroborative evidence, which is necessary to sustain such determination, should consist of statements of other witnesses who testified directly to the same effect; there is another form of corroboration which may he equally effectual, furnished by ' proof of surrounding circumstances and conditions which harmonize with and support, in essential particulars, the direct testimony, showing a connection between the narrative told and the opportunities, and permitting inferences as to probabilities.
    Where the board of police commissioners of the city of New York, upon the trial of a member of the police force before it, is justified in finding his testimony false in one respect, it is authorized to disbelieve his testimony in all respects.
    It is the established rule that where an administrative body, of the character of the board of police commissioners of the city of New York, is clothed with the disciplinary power of punishment or removal, the question of the reasonableness of the time ‘allowed for explanation or preparation to meet the charges preferred before such body rests, to a great extent, in its discretion, and the manner in which that discretion is exercised will not furnish a ground for a reversal of the decision of such body in the absence of proof that it was capriciously exercised to the prejudice of the person removed.

      The jurisdiction of the board, of police commissioners of the city of New York to hear and determine charges against police officers of such city cannot be defeated by an expression of belief by tbe person tried before such board on. charges preferred, that certain members of the hoard of commissioners clothed with judicial functions will exercise the jurisdiction conferred by law upon it wrongfully through malice or corruption. Nor can he secure himself in office by challenging, on such grounds, two of the members of such board, and thus leave the board without a majority of its members to render a judgment or make a determination, if the members so challenged were not prohibited from sitting because of any statutory disability and had no direct interest in the controversy in a disqualifying sense.
    Separate and distinct acts were charged against certain members of tbe police force of the city of New York before tbe board of police commissioners of such, city, but they were alleged to he in pursuance of a common scheme, to wit, the protection of a house of prostitution from the penalties of the law through the action of officers charged with its enforcement, the price of such protection, being charged at one time to have been paid to one of such officers in the name of the second, at another to the second and at another to the third, hut uniformly in pursuance of the common purpose and understanding, and the result of the trial showed that the witnesses on the part of the People were substantially the same in each ease, and the proof adduced against each officer was in nearly all substantial respects like that offered against the others; there was no statute in existence giving such officers the right to a separate trial.

      Held, that the determination of the hoard of commissioners should not he reversed, upon a review thereof under a writ of certiorari, for the reason that such hoard refused the application of such police officers for separate trials.
    The board of police commissioners of the city of New York is not a court, but an administrative body vested with disciplinary powers of punishment or removal; it is authorized by statute to regulate its own practice and procedure, and is not restricted by all the limitations of a court at common law.
    The members of the hoard of police commissioners of the city of New York who render judgment dismissing a person from the police force of such city need not be present when the evidence is taken. The hoard may call for the defense of an accused officer before his accusers have been heard, and such a departure from the rules of evidence as would he fatal in a criminal trial may not justify the court in reversing a sentence of such board upon the review thereof by certiorari. '
    Certiorari issued out of tlie Supreme Court of tbe State of New York and attested on tlie 27tli day of August, 1894, directed to James J. Martin, John C. Sheehan, Charles H. Murray and Michael Kirwin, as police commissioners of tbe city of New York, constituting tbe board of police of the police department of tlie city of New York, commanding them to certify and return to tlie office of the clerk of the county of New York all their proceedings, decision and actions in regard to the'removal or dismissal of the relators from the police force of the city of New York.
    . Abraham L. Fromme, for the relators.
    ■ Frameis L. Well/man, for the respondent.
   Parker., J.:

The relator Doherty insists that the evidence presented to the police commissioners was insufficient to sustain the findings of bribery made by them, and it becomes the duty of the court to inquire whether there was evidence tending to support the finding, and if there was, whether there was such a preponderance of proof against the existence of such fact as would make it the duty of the court to set aside the decision as against the weight of evidence ? In support of their determination, however, the court will indulge in the same presumptions that it would in support of a verdict of a jury. (People ex rel. Masterson v. French, 110 N. Y. 494; People ex rel. Hogan v. French, 119 id. 493 ; People ex rel. McAleer v. French, Id. 502; People ex rel. Coyle v. Martin, 142 id. 352; Code Civ. Proc. § 2140.)

■ The direct evidence of bribery consisted of the testimony of Augusta Tliurow, who for some three and one-half years prior to this trial had been the keeper of a house of ill-fame. Her story was, in. brief, that October 25, 1892, while the relator was captain of the precinct in which her house was situated, her premises were raided, and she was placed under arrest; that she pleaded guilty before the Special Sessions on November 2,1892; was fined twenty-five dollars, which she paid, and was then discharged. After her arrest, but before the November election, she went to the station house, accompanied by her husband, to see the captain. It was early evening, and when she reached the station house her husband remained outside, while she went in and there saw Captain Doherty alone, and the witness describes what took place as follows:

“The Witness: I says, £I have come to see you about my house; ’ he says, £ Have you been tried in Special Sessions ? ’ I said, ‘Yes.’ He says, ‘What-was you fined?’ I said, £25;’ he says, ‘ I told them not to push you hard ; ’ then after that I said that I would like to run my lionse the same as everybody else did in the precinct, and he says,£ I will send my man Meehan around.’ I told the captain that I had done business with Bissert, and he said, ' Meehan is a nice fellow and you will certainly get along with him.’ ”

A few nights later Mrs. Thurow said there was a large procession passing, and she was out ip the street with some girls, when the wardman, Meehan, ran up to her and said: “ Wait until after election and we will see whether Tammany wins, and then you -will put out brooms and go right ahead in business, put brooms out of the door and sweep out the other party and go ahead in business.” The day after election she bought the brooms at Luhr’s grocery near by, fastened them openly on the door of her house, and then the house was opened again for the conduct of the illegal traffic which had led to its being raided two weeks before.

The night after the election she says that Meehan came into the hall of her house, and the girls having told her of his coming, she went to him in the hall, and Meehan said : I see you have commenced business, and I said'Yes, what is the damage,’ and he says §25, and I gave it to him.”

She told him to call between the sixth and tenth of the month, and it was between those dates in the following month of December that she next saw him, at -which time she handed him twenty-five dollars in front of the grocery store of Mr. Luhr. It was dark and no one was present, nor was anything said.

She never paid Meehan after that, and did not see him again except on the evening of January sixth, when she saw him standing in the station house in company with another man and four women as she passed into the captain’s room.

She states the facts which led up to her visit to the captain on that occasion as follows: The inmates of her house had on that day been celebrating the birthday of a girl known as Lillie Sanders, and in the midst of the celebration a tall man with very light or white hair, called at the place and asked to see the witness, and when she came to him he said : “ You want to go down to the house,- the captain wants to see you,” and told her to go in the evening between the hours of eight and nine. >

Between those hours, accompanied by her husband, she went to the station house. Her husband waited outside while she passed into the captain’s room. She describes the interview which took place between herself and the captain as follows: “A. I went in and I said to the captain, ‘ Did you send for me. ? ’ and he said ‘ Yes.’ I says, ‘ I have brought the money with me,’ and he says, ‘ I am not supposed to take money,’ and he handed me an envelope out of his desk and says to me, Write on that, Iíock,’ and I says, ‘ That is German,’ and he says, ‘ Yes.’ He says, ‘ Now, I am supposed to close the houses in my precinct,’ and he had a bunch of papers, similar to those of the other man, and he opened it and showed it and showed me where the number of my house was, and he put his hand on the other part of it so that I could read my number, but nothing else on the other side, and he says, ‘Now, you want to be very careful in doing business; you only want to let your friends in and don’t take any money yourself; if you let strangers in they might send somebody from the central office, and they might raid you from the central office.’ ”

She wrote the name of Ilock, as directed by the captain, and put the money inside of the envelope, the captain placing it in a pigeon hole in his desk.

The next day, she says, she read in a newspaper that Meehan was no longer the wardman of the precinct; that he had been transferred January twenty-sixth to another district, and Ilock had been appointed precinct detective in 1ns stead.

In the early part of the following month of February .the witness was informed'by some of the inmates of her house that, during a brief absence, Ilock had called, so she went again to the office of the captain, and what took place she describes as follows: “ A. I says to him, ‘ Captain, did you send Hock,’ and he says, ‘ I could not send anybody else.’ I says, ‘ I was not there when he went into the hall, and the girls told me that Hock was there, so I knew it was time for the money and I brought it with me,’ and he gave me an envelope and I put it in and he put it in the pigeon hole. Q. Then you told him that the girls had told you that Hock had been there in your absence? A. Yes, sir. Q. Was anything else said after you had given him the money? A. Yes, sir. Q. What was it? A. I says, ‘I don’t know Ilock,’ but he says, ‘Well, the girls all know him; he has been long on the Bowery.’ I said that I did not know Hock ; that I did not know him personally.”

She testified that her first direct and personal dealing with the new wardman took place in the early part of the following month of March. A little boy came to her and said that a man wanted to see her, and she immediately walked across the street to Lulir’s store, where the man was standing, and, aided by the description which had been given of him by the girls, she handed him twenty-five dollars and went away. She made a similar payment to him in April, but in May he wanted five dollars for himself. Against this latter payment she protested, but Hock said, “That place is worth $60 or $10 to protect that ranch of yours. * * * The house is in the right spot and it is in the right neighborhood; make all you can get out of it.” Finally, she says, she gave him the five dollars for himself, and as he took it he said, “You are a caution; there ain’t one of them that hangs back that way with the money like you.” .

She testified to similar payments to Hock in June, July and August. In September she says that her husband came to her and reported that Hock was in the house, and she gave him the thirty dollars and he handed it to Hock in her presence.

In October and November she made similar payments, but in the middle of the latter month her house was raided for the second time, the first occasion having been a little over a year before. At the time of this raid she was arrested and brought before the Special Sessions, where she pleaded guilty and paid a fine of twenty-five dollars which was imposed. After her discharge she sought the wardman out again, and she says that he made a proposition to her, which involved the payment of a much larger amount for protection for the ensuing year. She in turn proposed the payment of a smaller sum than Hock had insisted upon, and requested him to submit to the captain her proposition, and Hock promised that he would come up again and let her know what the captain said. He did not come again, but she saw him shortly afterwards and inquired of him what the captain had to say about the arrangement she had proposed.

To this inquiry Hock made no answer, but said: “Well, First street is going to be closed up to-night, and you will have to lay low for thirty days or two months. You cannot do anything, because everything in First street and in the whole precinct is going to be all closed up. The Parkhurst people have been in to see the captain.” Shortly afterwards Captain Cross succeeded the relator in command of the precinct and her house was raided.

But, urges the cormsel for the relators, this story of corruption by a keeper of a house of prostitution was uncorroborated, and, therefore, insufficient to support the findings of the police commissioners. If it was essential that the corroborative evidence should consist of statements of other witnesses who testify directly to the same effect, the position of counsel would be well taken. But there is another form of corroboration, which may be equally effectual, furnished by proof of surrounding circumstances and conditions which harmonize with and support, in essential particulars, the direct testimony, showing a connection between the narrative told and the opportunities, and permitting inferences as to liabilities.

In People v. Elliott(106 N. Y. 288) the court considered whether the corroborative evidence in that case was sufficient to meet the requirements of section 899 of the Code of Criminal Procedure, forbidding a conviction upon the testimony of an accomplice, unless “ corroborated by such other evidence as tends to connect the defendant with the commission of the crime.” There was no direct evidence connecting defendant with the crime other than that of the accomplice. The evidence offered for that purpose showed that the defendant had been previously convicted of a like crime; that he . and the accomplice were acquaintances and associates in the city of New York; that he was in Rochester, the place where the crime-was committed, and at Charlotte, a place near Rochester, some days prior to the commission of the crime, and registered at three hotels under an assumed name ; that the accomplice was with the defendant at Charlotte and was introduced by him to a third person ; when arrested, he asked the officer if any one had been arrested in Rochester; and, upon being asked why, 'lie said there must have been somebody who had done some talking, and, while denying that he had committed the crime, said he knew who did it. The court, in holding that there was sufficient corroboration to sustain the conviction, said : “ All these circumstances certainly have some tendency to corroborate the evidence of the accomplice, and they seem to us to satisfy the requirements of the section of the Criminal Code referred to. Each circumstance, taken by itself, is quite inconclm sive, but when considered together they certainly furnish some corroborative evidence. It is not necessary that tlie corroborative evidence of itself should be sufficient to show the commission of the crime or to connect the defendant with it. It is sufficient if it tends to connect the defendant with the commission of the crime.”

In Moller v. Moller (115 N. Y. 166), which was an action for divorce, the defendant iuvoked the rule, established by the courts, that the uncorroborated evidence of prostitutes and private detectives is insufficient to break the bonds o'f matrimony.

The court, while approving the rule, said : But the illicit amours of faithless husbands aud wives are usually clandestine, and their wicked paths are hidden from public observation; and, hence, courts must not be duped, and they must take such evidence as the nature of the case permits, circumstantial, direct or positive, and bringing to bear upon it the experiences and observations of life, and thus weighing it with prudence and care, give effect to its just preponderance.” Other recent cases in which this general rule has been applied, are People v. Terwilliger (74 Hun, 310, 313); People v. Hooghkerk (96 N. Y. 149, 162); People v. Everhardt (104 id. 591); People v. Oogle (104 id. 511, 515); People v. Jaehne (103 id. 182); McCarthy v. McCarthy (143 id. 235).

Necessarily, there can be no direct evidence of the commission of an offense of the character of that of which the relator has been found guilty by the police commissioners, other than that furnished by one of the two parties to the transaction.

Receipts are not ordinarily given for bribe money, nor the presence of witnesses invited to see paid over the price of official dishonor.

But, while this is so, it is necessary that there should be some corroborating facts and circumstances harmonizing with the direct testimony which give to it such weight and strength as to induce belief in its truth.

Ye shall now inquire whether there were such corroborating facts as to authorize the police commissioners to find, as they did, that the story of the woman Tliurow was true. One of the pregnant facts seems to be thoroughly established, outside of the testimony of Mrs. Tliurow, and that is, that during the period for which she claims to have paid for police protection she was conducting a house of prostitution. It is equally as well established that the relator well knew that such was the fact. These facts are made to appear by evidence entirely outside of the testimony of the inmates West and Sanders. It was in October, 1892, that the woman Thurow was first arrested. This relator had been the captain of the precinct from the early spring. During this time it apjiears that the women inmates of this house were actually detected by passing officers soliciting from the stoop. More than that, the officers frequently arrested some of the inmates and brought them before the magistrate, who, in some instances, imposed a nominal fine, which they paid. The relator’s knowledge of the character of the house appears from his own testimony, as well as from other evidence consisting in part of. a letter, dated June 23,1892, written by him to Werner A. Meyer, the agent for the owner of the premises occupied by Mrs. Thurow as lessee. The letter is as follows:

“ Precinct No 14, )
“New York, June 23, 1892. \
“Werner A. Meyer, Esq.,
“16 First street.
“Sir — I wish to notify you that the premises known as No. 23 Second avenue, of which I understand you are the agent, is now being used for immoral purposes. I have received so many complaints about it that I have procured the necessary evidence against the place of Mrs. Thuro. I would advise you to take such action as would save the owner from being prosecuted.
“ Respectfully,
“MICHAEL DOHERTY,
Oa/ptain 14iA PrevmetJ

What action the agent took in the matter we are not informed, but certain it is that the captain took no steps in the direction of closing the house for nearly four months thereafter, when the premises were raided and Mrs. Thurow placed under arrest. She pleaded guilty to the charge of keeping a disorderly house, and [laid a fine of twenty-five dollars. Without referring to other testimony in the record on this subject, we may safely say that her testimony as to the character of her business, and the captain’s knowledge of it, prior to the time when she alleges she commenced to ¡iay for protection, is fully confirmed.

The krrests of women from her stoop; the captain’s letter to the agent; the raiding of the house under his direction; the arrest of the woman Thurow; the charge against her and her plea of guilty, assured the police commissioners, not only of the character of her business, but that the captain had full knowledge of it. That it is an important fact is apparent, when we consider that almost immediately after she had paid the fine and been discharged, she went on with the business the same as before, and was not again arrested or her house raided for more than a' year. The reason that she gives, for the cessation of hostilities on the part of the police, was that she paid for protection.

The fact that, immediately after her aruest, she was permitted to go on with her business in the same manner as before, and to continue it for so long a period of time, with knowledge on the part of the captain of the precinct that her business was being conducted as formerly, certainly tended in the direction of confirmation. Evidence was furnished by the relator which permits inferences of fact corroborative of material portions of the testimony of the witness Thurow. Some of his witnesses testified that, day after day, during the months from June to November, 1893, the captain, in the hearing of the sergeants and of the whole platoon, directed that special efforts be made for the suppression of this particular resort. And, notwithstanding the pretended vigilance, the house was not raided)nor was the woman Thurow arrested. Occasionally a woman from the house would be found on the outside soliciting, and in full view of the residents of the immediate neighborhood, and she was at once placed under arrest. But their arrest proved not to be a very serious annoyance for Mrs. Thurow, against whom the captain would have it believed the police were not only daily warned but whom they were commanded to bring to justice, for as promptly .as her women were arrested she was accepted as bondswoman by the sergeant in command.

It is certainly a fact of such moment as to entitle it to serious consideration that this woman should have been accepted as bonds-woman for the inmates of her house on the very days on which the captain was commanding vigilance on the part of his force, to the end that the woman Thurow and her illegitimate business should be driven from the precinct. The witness Thurow says that she arranged with the captain to have herself accepted as bondswoman for the inmates of her house when arrested, just the same as Mollie Burns,” another keeper of a house of prostitution, was accepted. The blotter kept at the station house, and which is required to be signed by the captain five times each day, shows that Mollie .Burns was frequently accepted as bondswoman. It further appears from this blotter that there was before the relator, as captain, a record, which it was his duty to sign on five different occasions during the day, which should have informed him, and doubtless did, of the fact that the woman Thurow was being accepted as bondswoman for the inmates of her house by his sergeant, and that the effect of such action was to make their arrests a farce. The fact that she was so accepted on many occasions, and that it was made to appear upon the blotter, which it was the captain’s duty to examine, was entitled to consideration in connection with her statement that she was so accepted in pursuance of an arrangement with the relator, and the commissioners were at liberty to draw the inference that such fact tended to corroborate her story. And the captain’s wordy vigilance, to his command, considered in connection with the fact that during all this time no results were accomplished, and no efforts made in that, direction, other than the arrests of the women while on the stoop or street, and which occasioned them no other trouble than the production of Mrs. Thurow to sign a bond, constituted evidence which the commissioners could weigh in determining whether they tended to corroborate Mrs. Thurow’s_ assertion that such official neglect of duty was in accordance with a corrupt agreement made with her. In matters of detail her story was not without corroboration. The captain strenuously denies that the conversations to which Mrs. Thurow testified ever took place between them, or that any money was paid to him; but lie does say that she called at the station house on two occasions. They differ radically as to what took place. The captain says that on these occasions, “ I told her she was a desperate woman, and I said, You get out of this precinct and get out of this station house.’ ” But the fact that this woman was in the station house and in the captain’s room was a matter for consideration on the question of corroboration.

The testimony of the husband Thurow confirmed that of the witness in several respects. lie testified that, on one occasion, he saw her hand money to ITock, and, on another, that she handed the money to him to give to Hock, and that he did it in her presence, and in this respect their statements are agreed.

He confirmed her statement that he accompanied her to the station house, and says that on one of the occasions he went into the private room and shook hands with the captain. Luhr, the proprietor of the neighboring grocery, knew of the character of the house, and testified that he sold Mrs. Tliurow brooms, and saw them fastened on the house. Of course, this corroborates her statement that she bought the brooms of Luhr, and took them to the house and fastened them upon the door.

The importance of this corroboration by Luhr is apparent, when it is brought to mind that only a few days before her house had been raided and she had been adjudged guilty of keeping a disorderly house.

Prom that time until the day after election she had been obliged to conduct her illicit business with some show of regard for outward appearances. How came it then that as soon as election day came and went she assumed that she no longer need kee|3 up an outward appearance of obeying the law, but could at once openly advertise her business upon the door of her house, by hanging thereon a cluster of brooms, which seems to have been regarded as an appropriate and effective sign ? She says that she took this step because just before election she was told by Wardman Meehan in effect that if the election turned out all right she could put out brooms and go right ahead in business. Now, if she did put out brooms the day after election, as Luhr swears she did, and with brooms bought from him, and within two weeks after her house had been raided and she arrested, convicted and fined, it constitutes an important fact for consideration in connection with her version of the conversation witli Meehan on that subject.

The records of the department confirm the witness’ statement that she did not see Meehan after January sixth, in the precinct, and that the papers the day following announced that he had been transferred and Hock appointed in his place. The witness Thurow’s statement that the captain, in passing the house, would frequently address remarks to the inmates, who were on the stoop, and order them inside of the house, is confirmed by the women West and Sanders. The last witness admitted that January 6, 1893, was her birthday, and that the event was celebrated by the inmates of the house. It was in the midst of this celebration that the witness Thurow claims to have been summoned to the station house, which, she says, was on the evening of January G, 1S93.

We have not overlooked the fact that the records kept at the station house seem to demonstrate that the captain was absent between eight and nine o’clock of the evening of'January sixth;, and it follows, necessarily, that Mrs. Thurow could not have seen him between those hours. But the records do show that the captain was present between seven and eight o’clock on that evening. It is entirely possible, therefore, that she might have made an error of half an hour or an hour as to the time of the meeting, and still have been correct in all substantial respects. This error was a fact to be considered in connection with all the other facts and circumstances bearing upon her alleged visit to the captain ; but it was not a fact of such force and weight as to require of the commissioners that they wholly disregard all the other evidence relating to that meeting.

There are many other facts in this voluminous record which might be referred to in considering the question whether the record contains such evidence of a corroborative character as authorized the commissioners to consider it under the general rule expressed in People v. Elliott (supra): “ The court, before it should submit the case to the jury, should be satisfied that there is some corroborative evidence fairly tending to connect the defendant with the commission of the crime, and when there is, then it is for the jury to determine whether the corroboration is sufficient to satisfy them of the defendant’s guilt.”

We think the evidence to which we have referred fully supports the commissioners in the conclusion necessarily reached by them, that the facts offered in corroboration were of such a character as to be entitled to consideration in connection with the direct testimony of the witness Thurow.

It follows that if the corroborating facts and circumstances persuaded the commissioners that Mrs. Thurow’s testimony was true, their finding must stand, unless the evidence presented in behalf of the relator so preponderates against it as to make it the duty of the court to set aside the finding, because it is against the weight ,of evidence.

It is urged in belialf of the relator that, even though it be determined that there was sufficient evidence of corroboration to justify the belief in Mrs. Tliurow’s story, in the absence of direct evidence to the contrary, still there was produced in behalf of the relator direct and positive evidence to the contrary in such measure as to make it the duty of the court to hold that the findings should be .reversed because against the weight of evidence.

Hock, Meehan and the relator Doherty all specifically and positively denied the statements of Mrs. Thurow. But it cannot be said that their testimony was not in some degree discredited by the searching cross-examination to which they were severally subjected.

From the relator Doherty’s testimony it appears that he was appointed patrolman in December, 1870, at a salary of $1,200 a year ; promoted to the post of sergeant in July, 1887, when his salary was increased to $1,600 and later to $2,000, and was appointed captain in 1890 at a salary of $2,750. ITe was married in May, 1875; at the time of the trial had a family of eight children, the eldest of whom had attained the age of sixteen years; was then living at 735 Lexington avenue, which he purchased in December, 1893, for $18,000; $4,000 was paid down in cash at the time of purchase, and a mortgage for $14,000 on the property was paid by him within two months after the purchase. At the time of the trial he had other property in Mount Hope, for which he had paid $2,000 ; some real estate in Brooklyn, for which he had paid a like sum, and a balance to his credit, in the Farmers’ Loan and Trust Company, of between $5,000 and $6,000. "When asked to explain how he had been able to support so large a family and accumulate a fortune of $28,000 on a salary which was only $1,200 a year until 1887, and at no time more than $2,750, he said that in December, after he had been appointed sergeant, a broker named Gustave Tuttle came to him while he was on a patrol wagon and said: “ It is a good time now if a person had a few hundred dollars, it was a beautiful time in stocks.” I said — we entered into conversation about it, and he said, “ If a man had a couple of hundred dollars now he would make a big thing on it.” I said, “ I have a couple of hundred dollars and more than that if there is any chance, but don’t use my money and lose it.” "Well, he said, “I would not use your money if I did not think thei’e was a pretty sure thing. He said, “If you trust me you will see.” I went down to the station house, and, as I stated before, I kept my money, a good deal, in the station house and at home; I could have given him a thousand dollars there out of my closet at the station house at the time. I could have given him it at the time. I brought out $200 and I gave it to him. Now, about two or three days after, two days, I should think, he came to the station house to me, and I was on desk duty, and he gave me $1,200 and my $200; he says I was lucky enough; I says, “You were; this is my first experience in stocks, I said ; and I said, I am very lucky.” I took my $200 from it and I gave him back the $1,200;" and I said, “ I have lost nothing now, 1 have my $200 clear, you take that $1,200 and use it the best you can for me in stocks, and from time to time he won, got money for .me. lie gave me $2,600 at one time. During the next five months lie gave me at different times, or he won $22,000 for me, and that was the luckiest part of my life only when I was made police captain, of course I was lucky then.”

Further cross-examination discloses that he had never made inquiries as to the whereabouts of the broker’s office; had never received a statement as to the shares of stock which had been purchased or sold; did not think his broker kept any books of any kind, and knew of no writing of any nature which would substantiate the story of the dealings between the broker and himself. When asked for Mr. Tuttle’s address he said : “ I have not it just now; I think I can find him around the Sinclair House.” Apparently he did not find him, for Tuttle was not produced on the trial. As this money' came to him, according to his testimony', some time in June, 1881, inquiry was made as to its disposition, upon the assumption that such a large sum of money would likely be either invested or deposited in some financial institution. But, according to 'the witness’ testimony, the accommodating broker, who had made $22,000 for him on an investment of $200 during a period of five months, consented to borrow it of him and pay him interest at the rate of six per cent. The loan was made, according to the witness, and a note or notes, he did not remember which, without other security, was accepted. When the note or notes were payable he did not remember, but recalls that they were subsequently paid by his benefactor, the last payment being made some time in the latter part of 1892.

It is impossible to read tlie testimony of the relator upon this subject, to which we have been able to make only a brief reference, without reaching the conclusion that the commissioners were at liberty to disbelieve his story as to the manner in which this sum of $22,000 ivas accumulated. If they found his testimony to be false in such respect they were, of course, authorized to disbelieve it in all respects. In this record of 800 pages we have found evidence tending to discredit other witnesses who testified in behalf of the relator. But as this discussion has already proceeded to an unreasonable length we shall refrain from its consideration and content ourselves with the assertion that our examination satisfies us that the finding which we have been considering cannot be set aside on the ground that it is against the weight of evidence.

¥e are also of the opinion that there was such evidence in support of the finding that the relator was guilty of culpable neglect of duty, in permitting Mrs. Thurow’s house to be maintained for illegal and immoral ends from the 6th of January, 1893, to the month of November following, as to deny to this court the right to reverse it.

The relator was required to go to trial upon two days’notice, notwithstanding a request for an adjournment, and it is urged that the denial of the request was error. The statute provides that charges against a member of the department shall be investigated “ upon such reasonable notice to the member or members charged, and in such manner of procedure, practice, examination and investigation as the said board of police may, by rules and regulations, from time to time jirescribe.” (Chap. 410 of 1882, § 250, as amended by chap. 180, Laws 1884, § 1.)

And the one hundred and eighty-ninth rule of the department provides that service shall be made two days before the trial, which rule was observed in this case. The request of the relator, therefore, was for an adjournment after being regularly brought before the board upon such notice as the rules prescribed.

It is the established rule that where an administrative body of the character of the board of police commissioners is clothed with the disciplinary power of punishment or removal, the question of the reasonableness of the time allowed for explanation or preparation to meet the charges, rests to a great extent in the discretion of such body, and the manner in which that discretion is exercised will not furnish a ground for reversal of the decision, in the absence of proof that it was capriciously exercised to the prejudice of the relator. (People ex rel. Keech v. Thompson, 94 N. Y. 451.)

T3ie counsel for the relator strenuously insisted before the commissioners that the interests of his client required an adjournment to prepare for the hearing, while, on the other hand, the counsel for the People, with apparently equal earnestness, urged that there were public reasons why the trial should at once proceed, alleging, among other reasons, that the witnesses for the prosecution were under constant and vigilant snrveilance, and that a prompt inquiry was indispensable if one was to be prosecuted at all. In this situation the commissioners decided to refuse an adjournment, and this court is not at liberty to say, in the light of the facts before the commissioners, that they abused the discretion vested in them.

Relator’s further contention, that it was error for two of the commissioners to sit after they had been challenged by him and accused of having prejudged the case, and not intending to give the accused a fair trial, is without legal merit. The board of police commissioners consists of four members, and under the statute empowering them to investigate, take evidence and hear charges against members of the police force, and to render judgment dismissing, removing or suspending members of such force, it is provided that no such judgment or other determination shall be rendered “unless a majority of the board of police commissioners shall concur.” (§ 251 of said act of 1882, as amended by chap. 180 of 1884.) As the board has exclusive jurisdiction in such matters it would follow, if relator’s position be well taken, that he could secure himself in office by challenging two of the members of the board, as he attempted to do in this case, thus leaving the board without a majority of its members to render a judgment or make a determination.

It is not pretended that the commissioners whom he attempted to challenge had any direct interest in the controversy in a disqualifying sense, or that they were prohibited from sitting because of any statutory disability, and in such a case jurisdiction to hear and determine cannot be defeated by an expression of a litigant’s belief, that the judge or officer clothed with judicial functions will exercise the jurisdiction, by law conferred, wrongly through malice or corruption.

The trial of the accused jointly, notwithstanding their request for a separate trial, is claimed to be error. The reasons assigned for a right to a separate trial are stated by the relator in these words: The charges do not affect the defendants equally; Meehan is accused in the months of November and December, 1892 ; the captain, in January and February of 1893 ; Ilock, from March, 1893, to November, 1893, all of bribery, the charges of neglect of duty differing both as to dates and responsibility, the extent of vigilance differing as to commander and subordinate, and the amount of official business, being the tests as to willful neglect, differing in like manner.”

It should be further observed that, while separate and distinct acts were charged against the accused, they were nevertheless alleged to be in pursuance of a common scheme, to wit, the protection of a house of prostitution from the penalties of the law, through the action of officers charged with its enforcement. The price of protection was charged at one time to be paid to the captain in the name of his wardman; at another to the first wafdman, and at another to the second, but uniformly in pursuance of a common purpose and understanding. The result of the trial has shown that the witnesses on the part of the People were substantially the same in each case, and the proof adduced against one was in nearly all substantial respects like that offered against the others. There was no statute in existence giving the relators the right to a separate trial, and inasmuch as the ground work against all the relators was the same, the determination of the commissioners should not be reversed, unless there is some rule of law which entitled them to separate trials. The relator has not brought to our attention any authority asserting the existence of such a rule. ' On the other hand, authority is not wanting that the board which tried these relators is not restricted by all the limitations of a court at common law, for it is not a court, but an administrative body vested with disciplinary powers of punishment or removal, and authorized by the State to regulate its own practice and procedure.

In People ex rel. Weston v. MoCave (123 N. Y. 512), upon a hearing before the commissioners upon charges against a member of the force, the accused was sworn upon the opening pf the case, and asked to state wliat occurred at the time of the commission of the alleged offense.

Counsel at once objected that no case had been made out against the accused, and that he could not be called upon to testify against himself before a case had been made out against him. The objection was overruled, and the Court of Appeals in sustaining the rnling of the commissioners said: “ But the proceedings of the board of police commissioners are not governed by any particular rules of procedure other than their own. The statute (Chap. 180, Laws 1881) authorizes the board to adopt rules for the examination, healing and determination of charges against members of the force. It guards the rights of the accused member by providing that the charges shall be in writing, and shall be investigated upon a reasonable notice to him. This power to regulate the manner of procedure in the trial of an accused member, is, in the nature of things, reasonable, and strict conformity with the mode of procedure in courts of law is not expected nor essential. The proceedings are disciplinary in their nature. Eor the maintenance of the police force in the most efficient state possible, esjiecial powers are conferred upon the commissioners by the statute, and great latitude is allowed them in the exercise of these powers. The tenure of the policeman’s office must necessarily be dependent upon his implicit obedience to the disciplinary rules which his superiors establish, and though entitled to a trial upon any charge involving subjection to punishment, that trial is, practically, simply an examination of the matter, whereat the accused can be present and be heard in defense or excuse. Such an examination is not like a trial in a court of law, and for its legal correctness it is only required that no rule of law shall have been violated nor unwarrantable punishment be inflicted.”

So, in People ex rel. McCarthy v. The Board of Police (98 N. Y. 333) a patrolman was dismissed from the force upon evidence taken before one of the commissioners, sitting alone. Before a determination was had such commissioner went out of office, and thereafter the evidence was submitted to the four commissioners then in office, who made the determination complained of. The court held that no error was committed, and, in the course of its opinion, said: “ This was not a common-law trial, with the incidents and common-law rights pertaining to such a trial; nor, strictly speaking, was it a trial before a court. It was an investigation required by tbe statute in such cases to furnish information to the board upon which they can act in disciplining any member of the police force.” Other authorities tending in the same general direction are People ex rel. Cline v. Robb (126 N. Y. 180); People ex rel. Flanagan v. Board of Police (93 id. 97); People ex rel. Keegan v. Purroy (4 N. Y. Supp. 345).

' By these cases it is determined that the commissioners who render the judgment need not he present when the evidence is taken ; that the board may call for the defense of an accused officer before bis accusers have been heard ; that such a departure from the rules of evidence as would be fatal in a criminal trial may not justify the court in reversing a sentence of the board of police commissioners, and it would seem to follow from the line of reasoning which led to these decisions that the commissioners were clothed with the discretionary power of determining whether these relators should he separately or jointly tried. We have discussed only'the relator Doherty’s case, but have necessarily reached the same conclusion in the cases of Hock and Meehan, the ground work of the evidence in each case being substantially alike.

The writs of certiorari should be dismissed in each case, with costs to the respondent.

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

Writ dismissed in each case, with costs to the respondent.


source: Caselaw Access Project

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

license: Public Domain

text:
    The Metropolitan Elevated Railway Company and Another, Appellants, v. William H. Johnston, Respondent.

      Order dismissing a complaint not appealable — relief for a mistake or ignorance of fact granted upon motion or by action — defense of an adequate remedy at law.

    There is no authority' justifying tlie taking of an appeal from an order in an action dismissing the complaint upon the pleadings and the opening of counsel.
    Mistake or ignorance of fact is a subject of relief only where it constitutes the material ingredient of the contract of the parties, or disappoints their intention by mutual error, or where it is inconsistent with good faith and proceeds from a violation of the obligations which are imposed by law upon the conscience of either party. But where each party is equally innocent, and there is no concealment of facts which the other party has a right to know, and no surprise or imposition exists, the mistake or ignorance, whether mutual or unilateral, is treated as affording no foundation for equitable interference.
    Although the fact, in regard to which a mistake was made, relates to the entire subject-matter of a contract, it does not authorize relief if such fact could have been discovered by reasonable diligence upon the part of the party seeking to obtain relief.
    In case the relief sought may be granted, either on a motion or by an action, it is within the discretion of the court to refuse to settle the rights of the litigants on a motion and compel the moving party to seek his relief in an action.
    A defendant in an equitable action who answers cannot avail himself of the defense that the plaintiff had an adequate remedy at law, unless it is pleaded in the answer. This rule simply prevents the defendant from availing himself, as a matter of right, of the existence of such defense. (Van Brunt, P. J., dissenting.)
    When a defendant has failed to interpose such defense, and a trial court refuses to dismiss an equitable action on that ground, its refusal to do so cannot, on appeal, be urged by the defendant as an error.
    The trial court may, in its discretion, dismiss an equitable action on the ground that the plaintiff has an adequate remedy at law, notwithstanding the fact that the defendant has failed to interpose that defense, although, since legal and equitable remedies have been administered in the same court, such discretion has been seldom exercised. (Van Brunt, P. J., dissenting.)
    Appeal by the plaintiffs, The Metropolitan Elevated Railway Company and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 25th day of May, 1891, upon the decision of the court, rendered at the New York Special Term, dismissing the plaintiff’s complaint, with notice of an intention to bring up for review upon such appeal an order made at the New York Special Term, and entered in said clerk’s office on the 19th day of May, 1891, dismissing the plaintiff’s complaint.

      JuUen T. Davies and J. D. Thomson, for the appellants.

      M. 8. Thompson, for the respondent.
   Van Brunt, P. J.:

It appears from the complaint herein that in 18YT the Gilbert Elevated Railway Company, now the Metropolitan Elevated Railway Company, commenced proceedings to condemn easements which they were desirous of occupying for the purpose of the construction of an elevated railway in the city of New York, appurtenant to certain lands in South Fifth avenue which belonged to one Amos R. Eno, and which included a portion of the street in front of property No. 227 Soutli Fifth avenue, and that an award was made in such proceedings to said Eno which was afterwards duly paid to him.

It is further alleged in said complaint that the defendant in this action, having acquired through divers mesne conveyances the title to No. 227 South Fifth avenue, in 1889 commenced an action in this court against these plaintiffs, alleging that he was the owner in fee of No. 227 South Fifth avenue aforesaid and of certain property rights appurtenant to said premises, including' a portion of the bed of said South Fifth avenue immediately in front of and adjoining said premises to the center of said street. This action contained the usual prayer for injunctive relief and judgment for damages. Issue was joined therein, and the same was tried and a decision rendered awarding an injunction unless these plaintiffs should pay this defendant $2,500 as the value of his property rights appurtenant to No. 227 South Fifth avenue. An appeal was taken from such judgment, and while said appeal was pending the parties agreed to settle by the payment of the fee and rental damages and costs. The condemnation proceedings to which Mr. Eno was a party were not pleaded by the defendants in Johnston’s action, and the settlement was made in ignorance on the part of both parties that such condemnation proceedings had ever been taken. Subsequent to such settlement, these plaintiffs, having discovered such condemnation proceedings, notified the defendant thereof and asked restitution from, him of the several sums of money paid to him as aforesaid, which restitution said Johnston wholly failed and refused to make, and judgment is demanded for various kinds of relief.

The defendant answered denying any knowledge or information sufficient to form a belief as to many of the allegations of the complaint, admitting the proceedings in the action to which the defendant was a party, alleging the validity of the judgment, and that the plaintiffs purposely neglected and still neglect to record conveyances of easements or easements and property rights acquired by them in the office of the register of the city and county of New York so as to be notice to bona fide purchasers as by law required and refused to inform the defendant in said action that they claimed ■ to have acquired any such right in the premises. The defendant further denied any mutual mistake of fact.

Upon the ease coming on for trial the court dismissed the complaint, as the judgment recites, on the pleadings and the opening of counsel; and from the order dismissing the complaint and the judgment entered thereupon this appeal is taken.

It is evident that the appeal from the order must be dismissed, with ten dollars costs, as there is no authority for the taking of such an appeal.

Upon the appeal from the judgment it will be necessary to consider the disposition of the case by the court as .an adjudication that the complaint did not state facts sufficient to constitute a cause of action.

It is urged that the ground upon' which the court dismissed the complaint was that it contained no allegation that the plaintiffs had no adequate remedy at law. And it is claimed that the rule is well established that if such an objection is to be insisted upon, it shall be raised by answer. For this position the plaintiffs seem to have respectable authority. In the case of Ostrander v. Weber (114 N. Y. 102) it is stated as a rule of law that in an equity action the defendant in order to insist that an adequate remedy at law exists, must set it up in his answer; and cites as authorities the case of The Town of Mentz v. Cook (108 N. Y. 504). Upon reference to this case it will be seen that it is stated that it appears to be settled by the general concurrence of authority that a defendant cannot, when sued in equity, avail himself of the defense that an adequate remedy at law exists unless he pleads that defense in his answer. (Grandin v. Le Roy, 2 Paige, 507; Le Roy v. Platt, 4 id. 77; Truscott v. King, 6 N. Y. 147 ; Cow v. James, 45 id. 557; Green v. Milbank, 3 Abb. N. C. 138, and Pam v. Vilmar, 54 How. 235.)

An examination "of these cases shows that no such rule has been laid down. In almost all the cases the question came up upon the trial, and all that was held or was necessary to be held, was that it was too late then to take the objection. And in the case of Grandin v. Le Roy (supra), which is the original authority for all these decisions, it is held that the objection is waived unless it is taken by demurrer or answer; that it is a question going to the jurisdiction of the court, and unless the objection to such jurisdiction is taken by demurrer or answer it is deemed to be waived, and such objection will not be entertained upon the trial. And that is all that it has ever been necessary to decide in any of the cases which have been cited, the language of which seems to infer, excepting the case of Green v. Milbank, that such objection can only be taken by answer. In the case last cited the language of the court is that the objection must be taken at the earliest opportunity and by answer. It is manifest, it being an objection to jurisdiction appearing if at all upon the face of the complaint, that it may be taken as well by demurrer as by answer.

Under these rules, however, this objection having been taken for the first time at the trial, it cannot avail, there being nothing in the pleadings in respect thereto. . 3

We then come to the question as to whether the plaintiffs can be relieved upon the ground of mistake.

Our attention has been called to no authorities bearing directly upon the question involved. But it would seem that under the facts appearing in the case at bar the plaintiffs are not entitled to relief because it does not appear that the plaintiffs could not have ascertained by the use of reasonable diligence the facts which are now claimed to furnish the grounds for equitable interposition.

The rule is laid down in Snell’s Principles of Equity (10th ed.), 536, as follows: “ As to mistakes of fact the general rule is that an act done or contract made under a mistake (i. <?., in ignorance) of a material fact is voidable and relievable in equity. But in order to obtaining such relief the fact must be material to the act or contract, and if the act or contract is not materially affected by it, the party claiming the relief on that immaterial ground will be denied it. But assuming that the fact is material, then whether the mistake is that of one party only to the contract, or is the mistake of both parties, relief will be given, varying only in its nature according as the mistake is unilateral or is mutual; e. g., if a person shall sell a messuage to another, which was at the time swept away by a flood without either party having any knowledge of the facts, equity would relieve the purchaser upon the ground that both parties intended the purchase and sale of a subsisting thing, and implied its existence as the basis of their contract; and on the same principle a contract to purchase property which is already the purchaser’s own is relievable, and that whether the mistake is of the purchaser only or is the mistake of both parties. But it is not sufficient in general to show that the fact is material; it must in general also be shown that the fact is one which could, not, by reasonable diligence, have been known: for if by reasonable diligence the fact would have become known, equity will not relieve, since that would be to encourage culpable negligence on the part of persons whose duty it is to make all due inquiries.”

The writer then alludes to the fact that where one contracting party has knowledge of a material fact which he does not communicate to the other, it is the rule that in order that the latter may set aside the transaction on the ground of the other party’s withholding of that fact, the former should have been under an obligation, not merely moral, but legal or equitable, to make the discovery. So also, where the means of information are open to both parties, and where each is presumed to exercise his own skill, intelligence and judgment with regard to the subject-matter, and where there is no confidence reposed, but where each is dealing with the other at arm’s length, equity will not relieve. And, therefore, where the fact (not being a fact amounting to the entire subject-matter of the contract) is equally unknown to both parties, or where each has an equal amount of information, or where the fact is doubtful from its own nature, in either of such cases, if the parties have acted with entire good faith, a court of equity will not intervene. The general ground upon which all these distinctions proceeds is that mistake or ignorance of fact is subject of relief only where it constitutes the material ingredient of the contract of the parties, or disappoints their intention by mutual error, or where it is inconsistent with good faith, and proceeds from a violation of the obligations which are imposed by law upon the consciences of either party. But where each party is equally innoceqt, and there is no concealment of facts which the other party has a right to know, and no surprise or imposition exists, the mistake or ignorance, whether mutual or unilateral, is treated as laying no foundation for equitable interference.

The only ground, therefore, upon which, under these rules, the plaintiffs can claim relief, is that the fact which was unknown was not only material, but amounted to the entire subject-matter of the contract.

In tlie case at bar it might very well be claimed that the fact did amount to the entire subject-matter of the contract, because it related to the title of the property which was the subject-matter of the settlement between the parties to this action. Rut even this does not authorize relief if the fact could have been discovered by reasonable diligence upon the part of the plaintiffs.

There is no allegation tending to show that by reasonable diligence they could not have discovered the fact in question. Various excuses are given — as that the plaintiffs succeeded to the rights of other parties; that their immediate successor, through an intermediary, paid the purchase money, and that changes in the management of the elevated railroads have occurred. But it nowhere appears that any inquiry in regard to the title of this property was made upon the part of the plaintiffs or any attempt to ascertain its previous history, or whether it had been acquired on not. Certainly the taking of no steps to ascertain as to the validity of the title of the defendant is not using reasonable diligence. It seems to us, therefore, that upon this ground the judgment was correct and that the same should be affirmed, with costs.

Follktt, J.:

I concur in the opinion of the presiding justice, except that part which discusses the rule governing the necessity of pleading > the defense of the existence of an adequate remedy at law. That question does not seem to be involved in this case.

In case the relief sought may be granted on a motion or by an action, it is within the discretion of the court to refuse to settle the rights of the litigants on a motion and compel the moving party to seek his relief in an action. (Hill v. Hermans, 59 N. Y. 396; Montrait v. Hutchins, 49 How. Pr. 105.) This is frequently done when the right of the moving party to the relief sought depends upon the determination of an issue of fact. "When there is a sharp controversy over a material issue of fact it can usually be more satisfactorily settled by hearing the witnesses examined and cross-examined than by reading their affidavits. But there is nothing in the record before us which indicates that the court dismissed the complaint on the ground that the plaintiffs should have sought their relief by motion. The practice before referred, to lias no relation to tlie rule that a defendant in an equitable action cannot avail himself of the defense that the plaintiff has an adequate remedy at law, unless it is pleaded in the answer, when ho auswrers, which seems to be well established by the cases cited in Tucker v. Manhattan Ry. Co. (78 Hun, 439), in which this court recognized and applied the rule. Such is the rule in other jurisdictions. (1 Dan. Ch. P. & P. [6th Am. ed.] 549, 556, 624, 630 and cases there cited; Story Eq. Pldgs. [10th ed.] § 473 and cases cited; Mitf. Ch. Pldgs. [6th Am. ed.] 263; Brown v. Lake Superior Iron Company, 134 U. S. 530, 536.) This rule simply prevents the defendant from availing himself as a matter of right of the existence of the defense that the plaintiff has an adequate remedy at law. When the defendant has failed to interpose this defense, and the trial court refuses to dismiss the equitable action on that ground, the refusal cannot be urged by the defendant as error on appeal. But the trial court may, in its discretion, dismiss an equitable action on the ground that the plaintiff has an adequate remedy at law though the defendant failed to interpose that defense, but, since legal and equitable remedies have been administered in the same court, this discretion has seldom been exercised.

In case it appears on the face of the bill or complaint that the plaintiff has an adequate remedy at law, the objection may be raised by demurrer, but in the cases referred to the defendants answered and failed to raise the objection in their answers. It is not held in these cases that the defense, that there is an adequate legal remedy, may not be raised by demurrer when the defect appears on the face of the complaint or bill.

Parker, J., concurred.

Judgment affirmed, with costs.


author: O’Brien, J.:

text:
    Jacob Blumer and Another, Appellants, v. Richard N. Dyer and Another, Respondents.

      Contracts — their construction determined by the situation and acts of the parties and the end sought.

    Where the language of an agreement does not fix a definite period within which one of the parties thereto has an option and right to purchase certain patents belonging to the other party, the court in determining the meaning of the language employed, which gives such party the option and right to purchase such patents for sixty days after the experimental plant had been “in successful operation,'’ will take into consideration the situation of the parties, their conduct and the end sought to be secured.
    Appeal by tlie plaintiffs, Jacob Blumer and another, from a judgment of tlie Supreme Court in favor of tlie defendants, entered in the office of the clerk of the county of New York on the 29th day of June, 1894, upon the decision of the court rendered at the New York Special Term dismissing the plaintiffs’ complaint, and also from the decision of the court entered in said clerk’s office on the 26th day of June, 1894.

      Geo. Roadly, for the appellants.

      Elihu Root and Edwin B. Smith, for the respondents.
   O’Brien, J.:

The appellants are patentees of inventions relating to the production of yeast from the waste products of starch manufacture. On the 17th of June, 1892, they entered into an agreement with the defendant the National Starch Manufacturing Company, which provided for the transfer of these patents to the defendant Dyer with a view to their ultimate acquisition by the starch company, if after experiment they were found to work satisfactorily.

By such agreement there was conferred on the defendant company the option to take an exclusive license under the patents in the United States, Canada and Mexico, and to purchase the same upon certain considerations, which included, among others, the payment of $2,500, and the furnishing of suitable buildings with machinery and apparatus, according to the working plans to be furnished by plaintiffs, “ for the experimental manufacturing of yeast by the processes covered by said patents in order to determine the availability of the said processes for utilizing in the manufacture of yeast the waste product of its (the starch company’s) present processes of manufacturing starch, and the commercial availability of the said inventions and processes for the purposes of its business.” The agreement provided that such option and right to purchase should continue “ ilntil the expiration of the period of sixty days from the time when the said experimental plant is in successful operation, and producing yeast by the processes described in the said patents in sufficient quantity to enable the starch company to put the same upon the market and test its commercial availability.” The starch company agreed that it would endeavor to “ utilize the entire waste product of starch-bearing materials of its factories in the manufacture of yeast under the patents.” The agreement further provided that the patentees were to devote their time and attention to erecting and operating the buildings, etc., and use their best, efforts to “ put such experimental plant into successful operation as soon as practicable.”

The purpose of this action is to procure a judgment adjudging said contract to have been terminated and no longer binding, and that the patents be returned to the plaintiffs. The question presented is one involving the construction of this agreement of June 17, 1892, and as correctly stated by tjie learned trial judge : “The struggle in this action arises upon the claim of the plaintiffs, that the option was not exercised within sixty days,, as provided for by the contract, which claim is resisted by the effort of the Starch Company to show full compliance, either actual or tendered, and strict conformity with the contract; and the main question, therefore, to be solved is the actual date when the somewhat indefinite period, from which the time began to run, really occurred. When was the ‘ said experimental plant in successful operation ? ’ ”

The defendant company was among the largest manufacturers of starch in the United States, and in that connection was in possession of a number of factories. The plaintiffs are chemists, and prior to entering into the agreement with the defendants had been employed in the manufacture of yeast, and had obtained at the date of the contract “ two letters patent of the United States for improvement in the manufacture of yeast, the sirbstance 'of said inventions being that they embraced a method of making yeast out of the steep water or waste water used in the manufacture of starch, and which, before the date of such invention, had been wasted and thrown, away.” Their invention was thus characterized in a communication to the starch company in March, 1892 : “ Bluiner and Schlagenhaufer’s method of utilizings waste products. Our invention has for its purpose to open a new and profitable field to the starch industry, by utilizing certain liquid waste products which heretofore were of little value.”

The character of the inventions, the purpose to be served, the results to be accomplished, the letters and conduct of the parties, are all important as bearing upon the question of when the time within which the defendant starch company was to exercise its option commenced to run. The language of the agreement did not fix a definite period, and it is in the light of the situation of the parties, their conduct and the end to be secured, that we are to determine the meaning of the language employed which gave to the starch company the option and right to purchase for sixty days after the experimental plant was “in successful operation.”

“ It is a cardinal rule in the construction of contracts that the intention of the parties is to be inquired into and if not forbidden by law is to be effectuated; and whenever the language used is susceptible of more than one interpretation, the courts will look at the surrounding circumstances existing when the contract was entered into, the situation of the parties and the subject-matter of the instrument.” (French v. Carhart, 1 N. Y. 102. See, also, Coleman v. Beach, 97 id. 553, 554; Heath v. Hewitt, 127 id. 174.)

It is insisted by the appellants that the construction given to the contract by the court below was erroneous in this — that it treated the plaintiffs as guarantors for the manufacture of first-class starch by the factory, while, at the same time, the experimental plant was required to prove a success in making yeast. Ye have examined the argument by which such contention is sought to be supported, and fail to see that it in any way militates against the force of the findings made on sufficient evidence and supported by the opinion of the trial judge. We might be well content.to rest this appeal upon that opinion, because supplementing it is a mere work of supererogation, every question that could be presented having been disposed, of in the numerous findings of fact, and the conclusions of law and the grounds or reasons therefor clearly and forcibly stated in the opinion. The importance of the question, the value of the interests involved, and the ability and earnestness with which the appellants have pressed their construction of the contract upon our consideration necessitated an examination of the voluminous record in the light of the arguments ; but, as already said, the question in the main narrows itself down to a very simple issue, determinable upon the solution of the question whether it was the intention of the parties to enter into a contract for the successful manufacture of yeast as an independent product, or of the successful manufacture of starch and the successful manufacture of yeast as a by-product thereof.

When we recall the scope of the inventions which was “ to open a new and profitable field to the starch industry, by utilizing certain liquid waste products,” and that the buildings and machinery were to be furnished by the starch company “for the experimental manufacturing of yeast by the processes covered by said patents in order to determine the availability of the said processes for utilizing in the manufacture of yeast the waste product of its present processes of manufacturing starch,” we have a guide to what the plaintiffs themselves claim as the advantages of their patents and a key to what the starch company expected to achieve ; and these, with the correspondence spread upon the record and the character of the experiments carried out by the plaintiffs, are an unerring index as to the intention of the parties. In other words, in order to determine when the experimental plant was in successful operation, it is necessary to ascertain what the experiment was, to try which the plant was erected. Undoubtedly it was, in effect, to ascertain whether the profitable manufacture of yeast by the plaintiffs’ processes could be combined with the profitable manufacture of starch by the defendants’ processes. Both regarded yeast solely as a by-product of the starch manufacture, and did not intend or seek to determine anything as to the independent manufacture of yeast. And the conclusion reached by the learned trial judge, that the experimental plant was not in successful operation until the experiments to try which it was constructed were successful, that is, when the successful manufacture of yeast was combined with the successful manufacture of starch, is amply supported. 'But the question then remains, when with reference to date was this ascertained?

It is conceded that the starch company complied with the preliminary conditions by paying the amount fixed, and, after obtaining the necessary working plans and specifications, furnished a suitable building and equipped the same with proper machinery and apparatus for the experimental 'manufacture of yeast by the processes covered by the patents at the city of Indianapolis. And -while it may be true that on November 3, 1892, the experimental plant was in successful operation and producing yeast by processes introduced by the plaintiffs, we think it equally apparent that the plant was never brought into successful operation and never produced yeast by the processes described in the patents, but that all the operations were experimental in character and consisted of modifications and variations of the processes described in the letters patent and of the material to which they were applied, and that the yeast produced by the plant was made by processes in some respects different from those described in the patents, and that the evidence shows that “ thereafter continuously and until long after the third day of November, 1892, a course of extensive and protracted experiments was carried on at said plant in Indianapolis by both parties working together to that end until the desired result was finally approximated and shown to be practicable and likely to be commercially successful ; but this was not ascertained or apparent until about the 1st of January, 1893, when it became apparent that the plaintiffs’ said inventions could be made useful and profitable in the prosecution of this defendant’s business.” If, therefore, the contract contemplated the production solely of yeast, without reference to the production o'f starch, then the plaintiffs’ position would be right; but, if it was contemplated and intended to apply the processes to the successful manufacture of both products, yeast and starch, then clearly the defendant is right; and thus, as already stated, the difference in the contentions urged consists in one affirming and the other denying the interdependent relation between the successful manufacture of starch and yeast.

Prior to the making of the contract, the plaintiffs submitted to the defendant company a written statement of what they could do, which commenced with the declaration that “ our invention has for its purpose to open a new and profitable field to the starch industry by utilizing certain liquid waste products,” and referred to “ corn, the principal raw material for the manufacture of starch,” as containing certain substances soluble in water which can be separated; and how they could be separated is thus stated: “ The separation is made in such a way and at such a low temperature that the starch does not undergo any changes, but stays intact and may serve the purposes of starch manufacture in any of the usual methods. What we use is only the soluble part of the corn, which now goes to waste as wash water; and the operation which is necessary to' obtain these soluble parts in a suitable extract does not change the present course of making starch in the least, and does not decrease the value of the feed which is a result of the starch industry. * * * The American starch industry is in a position to produce about eighteen millions lbs. of yeast per annum, and is able to monopolize the entire yeast trade of the United States, as it is absolutely impossible for anybody to compete with it if our process is connected with the manufacture of starch.” In -what is termed their report of June 6, 1892, plaintiffs state that tne method of making yeast can be connected with “ your present mode of manufacturing starch without any difficulty and with entire success The results obtained as per quality and quantity of yeast are highly favorable. In our opinion, you will have two ways to introduce and carry out our process : (1) In using steep water with sulphurous acid. (2) Extracting ground corn.” The plaintiffs proceeded to say that the first of these methods would-be “ the easiest manner to introduce our process without making any changes in your manufacturing.” And the report concluded with a request that the starch company should “take into consideration in near future our projects which we made to you some time ago, in order to come to a practical agreement.”

These extracts state what the plaintiffs proposed to do, and are in no* way suggestive that the proposition was one for the manufacture solely of yeast, or one which should transform the defendant’s business from the making of starch into the manufacture of yeast, but clearly indicated that in connection with the starch business they offered a valuable adjunct in the shape of the processes which would be equally successful in producing good yeast from the steep water used in the manufacture of starch, and which otherwise would run to waste. That the plaintiffs had experimented in this direction appears, but that the plan had been brought into successful operation prior to the making of the contract is negatived by the terms thereof, which provided not only for an examination into the validity of the patents, but for the expending by the defendant company of considerable money in furnishing a building properly equipped for the experimental manufacturing of yeast by the processes covered by said patents.” We think, therefore, that the defendant company is correct in asserting that “ when the agreement was executed neither party imagined that the Company would sacrifice or subordinate this business to, or allow it to be injuriously affected by, the manufacture of yeast from its waste water.” The claim that the two processes of making starch and yeast were to be entirely indepen dent,, and that the purpose of the erection of the plant and of the experiments undertaken was to determine whether or not the plaintiffs could make good yeast, has not the slightest basis for support. While, therefore, the experimental plant was erected with a view of determining whether yeast could he produced by the patented processes in quantities sufficient to test “ its commercial availability,” it was also for the purpose of testing “ the successful operation of the experimental plant; ” and by this undoubtedly was intended the harmonizing of the two products in such a way that, without interfering with or subordinating the starch business, the making of yeast could be successfully accomplished.

That this is so is further apparent from other language in the agreement, reciting the object and purpose for which the building and machinery were to be furnished, which are stated to he “ in order to determine the availability of the said processes for utilizing in the manufacture of yeast the waste product of its present processes of manufacturing starch, and the commercial availability of the said inventions and processes for the purposes of its business.” To destroy the force of such language it is insisted that this is but a recital and not a contractual provision. But it shows what the purpose and object of the parties were, and is properly re sorted to where, as here, a dispute has arisen as to the meaning of the contractual language used in order to ascertain the intent of the parties.

In addition, however, to language oral and written, which we find throughout the record expressive of such intent, we have the conduct of the parties, which always 'may be resorted to for the purpose ■of determining what construction they themselves placed upon the ■contract. Without repeating specific acts we think it clearly appears that the effort of the plaintiffs and the defendant company was directed towards the successful production, not only of yeast, but also of starch; and while it may be conceded that, with some modification, yeast could be jjroducod, and that this fact was established by November third, it is equally clear that subsequent to that period the efforts of the plaintiffs were not relaxed, but that they struggled ■continuously to obtain good starch down to and until January, 1893, when for the first time was established, in the language of the contract, “ the availability of the said processes for utilizing in the manufacture of yeast the waste product, of its present processes of manufacturing starch.” And then for the first time were successfully determined the experiments for which the experimental plant had been constructed, and on such data alone do we think it can be held that there was a successful operation ” of such experimental plant.

The claim that plaintiffs • remained at Indianajiolis and assisted in bringing about the manufacture of starch of a suitable quality between November, 1892, after they had determined that by their processes yeast could be produced, and January first, when it was ascertained that both products could be successfully obtained, the ■one the by-product ,of the other, merely to assist the defendant ■company, is neither frank nor candid. On their representation of what could be accomplished the defendant company went to considerable expense and did Avliat was required of it apd what lay in its power to enable plaintiffs to verify their statements, and plaintiffs were not only in honor and fair dealing bound, but, as we have shown, by the fair construction to be given to the contract, they were bound to make such representations good. And that they understood this is more consistent with what they did than any explanation based upon a statement that they were gratuitously engaged in assisting the company out of its difficulty. It is clear that so- far as the starch company was concerned, as there was no intention to give up their business and enter exclusively upon the manufacture of yeast, the patents would have been of little value to it; and yet, upon the plaintiffs’ theory, we are to assume that it deliberately entered into an agreement by which it subordinated its principal business to enter upon an experiment, to demonstrate the success of which, it was, in addition, willing to expend time and money.

There is but one other argument, to which a brief reference should be made. It is claimed that when the learned judge decided that the manufacture of yeast out of waste steep water was not one of the present processes ” of the defendant company contemplated in the making of the contract, and that the experimental plant would not be in successful operation unless the factory could make high-grade starch with the same steep water out of which plaintiffs were to make first-class yeast, and that yeast could not be made out of whole corn steep water, he found that the parties entered into what at the beginning would have been an impossible contract. The plaintiffs had notified the defendant company of the two ways in which their patented processes could be introduced; and, while it is true that the process of manufactuiing starch by the use of acidulated water, or water saturated with sulphurous acid gas, was being tried or considered experimentally, the uncontradicted evidence is, that when the contract was made, this way of making starch was not one of the starch company’s then “ present processes.” The most that in this respect can be claimed is, that it was one of the means by which the plaintiffs proposed to make the steep water of starch manufacture available for yeast manufacture; and that the experiment could not be successful so long as this method of treating the steep water in jured the starch. While, therefore, it is true, strictly speaking, to say that that method of making starch was not one of the then present processes in use or intended to be used, it was a process in connection with which experiments had been made by the defendant company, assisted by the plaintiffs, and was in contemplation by the parties as a possible solution of what was desired, namely, the successful manufacture of the two products.

' It will thus be seen that in steps more circuitous we have reached the same conclusion more directly reached by the learned trial judge, that the intention of the parties was to enter into a contract for the manufacture of yeast as a by-product of starch, and to that end the experimental plant was constructed, which never could be regarded as having been successful in its operation until it could produce the yeast without injury to the starch. This conclusion is tlie result of a fair, construction of the language of tlie agreement itself, which, so far as doubtful, is made plain and clear by the light afforded by the communications, both verbal and written, of the parties, and their own acts, which, we think, place their intent and meaning beyond reasonable doubt

Tlie judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    Annie Butler, Plaintiff, v. James R. Townsend and Another, Defendants.

      Injury from an unsafe house — the liability therefor depends upon occupancy rather than ownership.

    By tlie terms of a will the legal title to certain real estate was vested in the executors named therein, subject to the right of the widow to the use of the house upon such premises, but, apart from the portion of the will which gave the legal title to the executors and conferred upon the widow the right to use the house, there was nothing that in any way related to the duties of the executors in respect to such house.

      Held, that the executors would not be held liable for personal injuries sustained by third persons, resulting from the unsafe and defective condition of such house, although the executors had knowledge of its unsafe condition.
    The duty of keeping premises in a safe condition in general devolves upon the occupant and not upon the owner.
    Motion by tlie plaintiff, Annie Butler, for a new trial on a case containing exceptions, ordered to be beard at the General Term in the first instance upon the dismissal of the complaint directed by the court after a trial before the court anda jury at the New York Circuit on tlie 27th day of April, 1894.

      Ira Leo Bamberger, for the jilaintiff.

      John A. Beall, for the defendants.
   O’Brien, J.:

The plaintiff seeks to recover damages for injuries sustained by her through the negligence of the defendants. The allegations are, that as executors and trustees under the will of Charles A. Ooe, deceased, the defendants were in possession and control of the premises, and that plaintiff’s injuries were sustained through their carelessness and negligence in allowing the premises to get out of repair and neglecting their duty to have the stairways supplied with a proper banister or railing, and in allowing the same to remain in an unsafe, defective and dangerous condition, of which the defendants had due notice. The defendants denied possession, or that they were under the obligation to take the care and management and control of the premises, claiming that the widort of Charles A. Ooe, deceased, had been since his death, and at the time of the accident was, in sole use, occupation, control and management of the said house and premises.

The will provides as follows: “ And, also, I direct my ex'ecutors and trustees to allow my said wife the use of my dwelling house in the City of New York, and also the use of the one I now have at Hastings, and in case either or both of my said dwelling houses should be sold, then the use of any other dwelling house in the City of New York and in the country not costing more than the dwelling house sold, and I do authorize and empower my said trustees to purchase for her use a dwelling house in the place of each one they may sell; said house or houses so purchased not to cost more than the price realized for those sold.”

It was conceded that subsequent to the probate of the will, thé widow had occupied the premises, pursuant to its provisions, and also that the defendant Townsend, who was one of the executors and trustees, and his family had resided in the house, upon the invitation of the widow, from the fall before the accident to a period shortly prior thereto, but were absent therefrom at the time of such accident.

The broad question presented, therefore, is, whether the defendants or the widow were responsible for injuries resulting from the unsafe and defective condition of the premises of which they had notice. Its solution must depend upon a determination whether, according to the provisions of the will and the conceded facts as to the occupancy by the widow, the defendants, as executors and trustees, had any such use, occupation, control or management of the house as Avould render them liable, even though they had knowledge, for injuries resulting from the defective condition of the premises.

By the will the legal title to the premises was vested undoubtedly in the defendants, but such title was subject to the right of the widow to use the house. Apart from the portions of the will which clearly determine as to the legal title and confer upon the widow the right to use the house, there is nothing therein that^ in any way bears upon the duties of the defendants in resjiect to such house. With the title in the executors, therefore, and with the rights conferred upon the wife under the provision of the will quoted above, the question -proposed is to ,be determined.

As the defendants were not entitled to the possession, use or management, and as the will itself makes no provision for repairs and confers no authority upon defendants to devote any part of the estate coining into their hands to that purpose, we fail to see upon what theory they can be held liable. It has been many times held that the duty of keeping premises in safe condition in general must pertain to occupancy, not to ownership; and this principle has heen many times applied in accident cases where the owner has leased the premises without a covenant giving a right of entry for the purpose of making repairs, and in none of which, so far as our attention has been (jailed, has the owner been held liable for damages occasioned by neglect to repair. If the defendants had the power, and had rented the premises, without {[ covenant to repair, for a long term of years, and while in possession of the lessee injuries happened to a third person by the neglect to repair, we do not think it would be seriously claimed that they, though holding the legal title, would be responsible for such damages. The hypothetical case is in principle analagous to the oue at bar. Here the use and occupation of the property were given to the widow by her husband’s will. The defendants had never been in the control or management or occupancy of the premises. They would have no right to expend any of the money of the estate, because the authority was not conferred upon them to make repairs, that duty devolving upon the widow with the use of the premises. Having no obligation placed upon them, therefore, to manage or repair the premises while the same were in use by tlie widow, the defendants would, not be responsible for their unsafe and defective condition,, even though tliey had knowledge thereof.

We think that the judge below was right in dismissing the complaint, and that the exceptions should be overruled and judgment entered in favor of the defendants, with costs.

Van Brunt, P. «T., and Parker, J., concurred.

Exceptions overruled, judgment ordered for defendants, with costs.