text:
    John Doherty, Plaintiff, v. Charles S. Sweetser, Defendant.
    821i 556'Jforses unattended upon a public street — •negligence inferred therefrom — burden of 72 Ag-l5!1:! proof.

    It is negligence to allow horses to be in a public street unattended, and where they are so found the natural inference is that it was permitted, and it is not incumbent upon a party claiming damages caused by reason thereof to prove the existence of negligence on the part of the party charged with the care of the horse.
    The burden is upon the party seeking to avoid the results arising from such a state of facts to show that he has used all proper means to prevent the same and that he was without fault.
    Motion by the defendant, Charles S. Sweetser, for a new trial, on a case containing exceptions, ordered to be heard at the Greneral ■ Term in the first instance, upon the verdict of a jury rendered after a trial at the New York Circuit on the 19th day of April, 1894,

      Henry Schmitt, for the plaintiff.

      Robert E. Deyo, for the defendant.
   Yan Brunt, P. J.:

This action was brought to recover damages suffered by the plaintiff, he having been run over in the street by a horse. The evidence in this case showed that a horse belonging to one Dolman, which had been hired by the defendant and used by him during the day drawing coal off a canal boat into the yard of the defendant, in the evening ran out of the yard with no harness or halter upon him, and colliding with the plaintiff injured him severely. This action was brought to recover damages for such injuries. Upon the case being submitted to the jury, no evidence having been offered upon the part of the defendant, a verdict was rendered in favor of the plaintiff.

It is urged that it was error.to submit the case to the jury, upon the ground that there was no proof of negligence upon the part of the defendant in allowing this horse to be at liberty in the public street. And this question is brought up by an exception to the charge, the court having instructed the jury that in the absence of explanation upon the part of the defendant it had a right to impute negligence from the fact of the horse being in the street without harness, without halter and unattended. It is urged that it is necessary for the plaintiff to show some act of omission or commission upon the part of the defendant by reason of which the horse got into the street unattended. It is further urged that it is not shown how -the horse got on the street — whether he started away without cause or broke away, or under what circumstances he started off; and that such proof as was furnished by the plaintiff does not meet the requirements of the law in regard to the burden of proof in respect to negligence. Our attention has been called to various cases where this question has been discussed. It has been held that leaving horses unfastened in a public street is undoubted negligence (Norris v. Kohler, 41 N. Y. 42), and our attention is also called to cases in which it has been held ■that the mere fact of horses running away does not necessarily impute negligence. But in those cases it appears that the horses •were properly attended and attempted to be controlled, but 'we are ■cited to no case holding that negligence is not imputed where a horse is found loose upon the street and causes damage, unless the owner shows the circumstances under which the escape has occurred. It is negligence to allow horses to be in the public street unattended; and where they are so found the natural inference is that it was permitted, and it is not incumbent upon the party claiming damage to prove the negative of such permission. The burden is upon the party seeking to avoid the results arising from such a state of facts to show that he has used all proper means to prevent the same and that he was without fault.

It would seem, therefore, that the rule laid down by the learned court was correct, and that the fact that this horse was in the street unattended called upon the defendant to make some explanation as to how he got there. It would certainly be placing upon the plaintiff a burden which is entirely foreign to the ordinary rules of law to compel him to go into this yard from which this horse escaped and prove what was done there in reference to its management ; facts which are peculiarly within the knowledge of the defendant, and which, if there had been no negligence, he would have had no difficulty in showing.

We are of opinion, therefore, that the exceptions should be overruled and judgment ordered upon the verdict, with costs.

Parker, J., concurred.

Exceptions overruled; judgment ordered on verdict, with costs.


source: Caselaw Access Project

author: Nan Brunt, P. J.:

license: Public Domain

text:
    The Fifth National Bank of the City of New York, Plaintiff, v. The Central National Bank of the City of New York, Defendant.

      Check ■ — presumption as to its condition when signed — name of a real person, when used as a fictitious payee, when not so used.

    In the absence of proof it will be presumed that a check when signed was filled in in the same maimer that it is at the time when it is produced upon the trial of an action.
    Where a check drawn upon a bank is signed by the maker in the belief that the name of the payee represents a real person, entitled to receive the amount of the check, and with the intention that it should be delivered to the real payee, and that it should not go into circulation otherwise than through a delivery to and indorsement by the payee named therein, the rules applicable to checks drawn to fictitious pei-sons do not apply thereto.
    Motion by the defendant, The Central National Bank of the City ■of New York, for a new trial on a case containing exceptions, •ordered to he heard at the General Term in the first instance npon the verdict of a jury rendered by direction of the court after atrial at the New York Circuit on the 14th day of May, 1894.

      W. S. Arnoux, for the plaintiff.

      Gibson Putzel, for the defendant.
   Nan Brunt, P. J.:

This action was brought to recover the amount of a check which was drawn upon the plaintiff by one of its customers and paid by it to tbe defendant, tbe indorsement thereon being claimed to be forged. Tlie check as presented upon the trial was made payable to the order of B. A. & G. N. Williams, Jr., and purported to be by them indorsed. There was no dispute in tlie evidence that such indorsement had never been made by them or by their authority, and the sole question which was litigated upon the trial was whether the check had been drawn in blank or to a fictitious jmyee so that it might be considered as a check payable to bearer. The drawer of the check was illiterate and could not read or write except for the purpose of signing his own name, and all his checks were filled out by a bookkeeper in whom he had confidence and who presented them to him for signature. The drawer has no recollection in respect to the signing of the check in question. He testified that he did not knowingly sign it in blank. He further testified as follows : “ It is not possible that I would sign it in blank and leave it with my bookkeeper.” In another place, when asked : “Did Watson always state to you the names of ■ the payee in the checks presented to you for signature? A. Not always. Q. Did yon, on or about March 26th, 1892, request Watson to fill out a check for B. A. & G. N. Williams, Jr. ? A. I did not, not that I know of; I don’t remember of asking him to fill out a check for Mr. Williams on that date. Q. You don’t know; you don’t remember ? A. No, I don’t remember.” And then, in another place, lie says : “ I don’t remember anything about it.”

It is clear, therefore, that the case is utterly devoid of any proof as to the circumstances of the signing of this check. In the absence of proof the presumption is that the check, when signed, was filled in as it is at the present time. The proof also shows that the maker of this check did not intend to make the same payable to bearer or to a fictitious payee; and in this respect the case differs radically from those which are cited upon the part of the defendant, of which Phillips v. Mercantile Nat. Bank (140 N. Y. 556) is the latest illustration. In that case the cashier of the defendant bank had authority not only to fill out checks but to sign them, and he made the checks in question in that case payable to persons who were dealers with the bank, but without their knowledge, and then indorsed them in the names of the payees for the purpose of converting the funds of the bank to his own use. Under such circumstances the court held that, so .far as the defendant was concerned, the intent of the cashier was the intent of his bank, that the payees were to be considered as fictitious persons, and that the bank was so far concluded by the acts of its cashier as to be estopped from denying the validity of the check. In other words, that where the maker of a check uses as payee the name of an existing party, but does not intend that such party shall indorse the check, but indorses it himself, it is the same as though the name of a fictitious payee had been used, the intent being not to issue the check to the payee. In the case at bar there is no such proof. There was no intent upon the part of the maker to sign the check to a fictitious payee. The only construction that can be placed upon tbe testimony of tbe drawer of tbe check is that he has no recollection of signing tbe check in blank and that be did not intend to make it payable to any fictitious payee.

In this respect tbe case at bar is similar to the case of Shipman v. The Bank of the State of New York, (126 N. Y. 318), and differs from tbe case of Phillips v. Mercantile Nat. Bank (supra). In tbe case of Shipman, although fictitious names were used by tbe clerk, tbe checks were signed by tbe firm in the belief that tbe names of the payees represented real persons entitled to receive tbe amount of tbe checks and with tbe intention that they should be delivered to real payees, and should not go into circulation otherwise than through a delivery to and an indorsement by tbe payees named.

In the case at bar, as already stated, there is no evidence but that tbe drawer of tbe check intended that it should be delivered to tbe payees, and there was no intention upon bis part to make tbe same payable to a fictitious payee.

Attention might be called to other cases similar to that of Phillips v. Mercantile Nat. Bank, but tbe case cited sufficiently illustrates tbe rule and points tbe distinction between it and tbe case at bar.

Tbe exceptions should be overruled and tbe plaintiff have judgment upon the verdict, with costs.

Follett and Parker, JJ., concurred.

Exceptions overruled, judgment ordered on verdict for plaintiff, with costs.


author: O’Brien, J.:

text:
    Robert J. Dean and Another, Respondents, v. Marshall S. Driggs, Defendant. Edward S. Hatch, Appellant.

      Motion foi' the substitution of attorneys ■ — reference to ascertain the attorney’s lien — appeal from an order fixing the amount thereof.

    Upon a motion for the substitution of attorneys in a pending action, a reference ordered to ascertain the amount of the attorney’s lien, although in form a reference to hear and determine the matters of difference, is in fact one to take evidence and report to the court so that it may be enabled to fix the amount of the lien.

      Upon an. appeal from the order of the court fixing the amount of the lien the appellate court is at liberty to examine the record to determine what would be a fair and reasonable compensation to the attorney.
    Appeal by Edward S. Hatch from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the cleric of the county of New York on the 20th day of February, 1893, as denies the motion of the appellant to modify the report of the referee by adding the sum of $3,000 to the amount found due the appellant.

      Thomas P. Wielces, for the appellant.

      L. E. Warren, for the plaintiff Robert J. Dean, respondent.
   O’Brien, J.:

Upon a motion made for the substitution of attorneys, a reference was ordered to determine the amount of the attorney’s lien in several proceedings in which the substitution was desired. The referee found the amount due to be $3,470.16. Upon the motion to confirm the report, the appellant asked the court to establish his lien at the sum of $6,470.16, instead of the amount found by the referee,, such claim being made up of $500 in addition to the amount found due in the case of Dean v. Driggs, and of $2,500 for services in the Matter of Margues. The court refused to grant such increase, and it is on account of such refusal that this appeal is taken.

The first question presented is as to the right to $500 additional to the amount allowed by the referee in the case of Dean v. Driggs. This was an action to recover the sum of $3,500 and interest, and was first tried in 1887, and the complaint was dismissed, but upon appeal to the General Term the judgment was reversed and a new trial granted. The second trial took place in June, 1888, when the plaintiff recovered judgment, from which an appeal was taken, which resulted in November, 1889, in the granting of a new trial. ' Subsequent to the second trial and prior to the argument of the appeal, and on January 28, 1889, the attorney and client had a settlement involving this action among several others, by the terms of which the attorney agreed to accept $1,200 in compensation for services in all-matters prior to October, 1888, “ exclusive of taxable costs and disbursements ; which, however, are not to be charged except in the event that a collection is made in any of the matters where costs have been awarded us, or either of us, and included in a judgment.” After the argument of the second appeal Dean & Oo. paid the attorney $250; and these two amounts of $1,200 and $250 the referee has found were in full of services to and including the second appeal, and that they are indebted to the attorney only for services rendered subsequent to the second appeal. The third trial resulted in a verdict in Dean’s favor, which upon appeal wa^ affirmed at the General Term, and was pending in the Court of Appeals when this motion for substitution was made. In his report the referee thus estimates the services subsequent to the second appeal.

“ That R. J. Dean & Company are indebted to said Edward S. Hatch for the services rendered in said action.subsequent to the second appeal thereof only.

“ %5ih. That the services rendered in said action after the second appeal up to the time of entry of the order of reference herein are reasonably worth the sum of nine hundred dollars, exclusive of taxable costs.

%6th. That the amount of the taxable costs in said action are six hundred and twenty-two and y7^ dollars.

%7th. That there is due and owing from Robert J. Dean & Company to Edward S. Hatch said sums of nine hundred dollars and six hundred and twenty-two and ^9¶ dollars, taxable costs in said action, in all the sum of one thousand five hundred and twenty-two and y7^ dollars.”

It may be assumed, as claimed by the appellant, that the amount of costs connected with the suit up to and including the second appeal was $500, and such costs, by the agreement of the parties, were to go, if collected, to the attorney; and the contention of the appellant is that the referee, after deciding that $1,522.79 was a proper compensation for the third trial and the appeal therefrom, erroneously applied the sum of $500, the costs to which the attorney was entitled, as compensation for his prior services.

If the premise upon which this argument is based was correct, that the referee allowed for such services $1,522.79, then the conclusion would follow that in addition thereto the attorney was entitled to the taxable costs which, by the agreement between the parties, were reserved for the benefit of the attorney. We think, however, that this claim rests upon too slender a foundation. All this discussion would have been avoided if the referee had more clearly-expressed himself in his findings; but an examination thereof will show that he had in mind the agreement entered into between the parties by which the costs were to go to the attorney, and that in fixing the value of the services he found that they were reasonably worth the sum of $900, and in addition thereto he found that the attorney was entitled to costs, which made up the amount to $1,522.79. Though not so explicitly stated, there can he no doubt that this was the intent and meaning of the referee when in his finding in regard to the value of such services he says they “ are reasonably worth the sum of ’ $900 exclusive of taxable costs.” Apart, however, from such finding, this being in form a reference to hear and determine the matters of difference, but in fact one to take evidence and report to the court, so that it might be enabled, upon the motion for substitution, to fix the amount of the attorney’s lien, we are at liberty, as we have done, to examine the record, as no doubt the court below did, to determine what would be fair and reasonable compensation to the attorney. Having in mind the fact that he has been paid for services up to and including the second appeal, we think that the sum of $900 was full compensation for the third trial of an action involving $3,500, in which, in addition to such amount, the attorney was awarded $622.79, a sum equal to the taxable costs upon the three trials.

The second claim is, that appellant is entitled to receive $2,500 in addition to what has been allowed him, for services in various matters classed together as the Matter of Marques. It appears that Marques, who had organized a corporation known as the American Package Company, in connection with a man named Gair, owed the attorney for services in relation thereto, and had also become indebted to Mr. Dean in the sum of over $7,000. In 1886 a dispute having arisen between Marques and Gair, the former desired proceedings taken with a view to realizing on the assets of the American Package Company. Such proceedings the attorney was disinclined to undertake upon the responsibility of Marques alone. At the same time Mr. Dean brought to the attorney his claim against Marques for collection, and as means of accomplishing the latter an arrangement was made, by which Marques assigned his claims against tlie company to Dean as security for Dean’s claim against him, and the attorney undertook the proceedings against the company. The question in dispute is, whether such proceedings were to be taken upon the retainer of Mr. Marques or solely upon the retainer of Mr. Dean, and under what arrangement or agreement the attorney proceeded.

In support of the view that it was solely’upon the responsibility of Dean that the attorney proceeded, a letter written by Dean to Marques under date of January 27, 1886, was produced, which reads:

“ Friend Marques :
“ I have seen Mr. Hatch and he says he has had a talk with you, and told you that he would twist Gair out of his shoes and help you out, if I would guarantee him, and I have told him that I would. Now, I advise you to give him the matter entirely, for he knows all about the whole affair, and we will make Mr. Gair understand that he cannot do with us as he pleases before we get through with him. Now don’t neglect this matter. Do it at once.
“ Yours truly,
“ R. J. DEAN.”

On the next day, what purports to be a memorandum of agreement between Dean and Marques was signed by Dean alone, which, after reciting the situation of the parties, purports to assign from Marques to Dean his stock, interest and claims in and to and connected with the American Package Company, as security for the payment of Dean’s claims, in which instrument we find the following clause:

2. That the party of the second part (Dean) will, as far as he considers to be reasonably safe and practicable for him so to do, without ultimate loss to himself, assist the party of the first part (Marques) in the furtherance of his interest in relation to the American Package Company, and with money necessary therefor, and particularly in securing the services of Edward S. Hatch to prosecute and defend said actions and proceedings.”

No explanation of why Marques did not sign it is furnished, and whether or not it was a binding contract between the parties is left in doubt. One thing is clear, that the paper, not being executed by Marques, did. not assign the latter’s interest in the package company to Dean. However, from this period down to the date of this motion, it is conceded that the attorney performed various services in the Matter of Marques, which, by the finding of the referee, were reasonably worth $2,500. Considering that nothing was ever realized by Dean, we may say, in passing, we think this was a liberal allowance; but we agree with the appellant in the view that the question of amount is not involved. Were we to rely solely upon the letter and the agreement from which we have quoted, supplemented as these were by the attorney’s evidence as to the agreement between himself and Dean, there would be much in his contention that he was acting solely upon the retainer of Dean, and that, under his agreement, he looked to him solely for payment. It will be noticed, however, that the letter was one written to Marques, and that the agreement relied upon was one purporting to be between Dean and Marques, but signed by Dean alone ; and it is not claimed that there was any written request from Dean to the attorney, reliance being placed chiefly upon the fact that the letter and agreement were both placed in the possession of the attorney.

If we take the instrument called the agreement, upon which the appellant relies, and regard it as in some way binding on Dean, it will be noticed that it is rather indefinite as to* just what responsibility Dean assumed. He states: “As far as he considers to be reasonably safe and practicable for him so to do, without ultimate loss to himself,” he will assist Marques with money and in securing the services of the attorney. Just what this meant can be best inferred from the conduct of the p>arties themselves. Most of the services rendered to Marques were prior to the settlement between Dean and the attorney in January, 1889, and it is conceded that such settlement included all claims for services of every kind up to October, 1888, with certain excepstions referred to in the settlement, which need not be mentioned, because the Marques matters were not among them. This omission of any claim is significant when considered in connection with other facts appearing. Thus, a few days before the agreement of 1886, the attorney received from Marques a note for $500 as a retainer, upon condition, as he claimed, that Marques could obtain Mr. Dean’s indorsement, by which he meant, not his indorsement to the note, but “ to the engagement that I should go on with Mr. Marques’ matters.” And when, for the first time after 1886, the bill for services in these matters as against Dean was presented in June, 1892, it was in the following words: “ To services in Dean v. Marques, and services rendered to Moritz Marques on written request of Mr. Dean, and including note of Marques to Hatch in judgment, with other notes in favor of Dean against Marques, $500.” And in the letter explaining this and other charges the attorney writes :

“In Deem against Margues this is a particularly hard one, though it is just. I should never, probably, have forced myself to a determination unless I was compelled to, as I am under the present circumstances. I would not proceed for Mr. Marques, after he had already run up a bill, which has not been paid, something like a thousand or more dollars, unless he paid me. In lieu of that he brought your communication that you would be responsible for the work. He adjusted it afterwards with me, and I compromised it, if I remember it correctly, for $500. That note, at your suggestion, when I stated I proposed to bring a suit upon it, was joined with your three notes and judgment entered in your favor on that note against Marques. ¥e did a very great amount of work in this matter at different times for you. To the best of my recollection, we have not been actually paid for it, except so far as all claims would be included in the settlement I made with you, as of October 1, 1888, I do not think you allowed me anything in that matter, so it seems to me that if I charge you the amount of the note that is in your judgment and let everything else go, it might be termed just.”

That the claim for services in the Marques matter was in some way compromised or adjusted between the parties, if ever really assumed by Dean, is evident from all the testimony, but just when and how does not so clearly appear. Thus we find that bills were rendered by the attorney to Dean for disbursements, and that Dean paid them, and yet the referee has found (and to such finding we take no exception) that the agreement was not that Dean was simply to pay disbursements. Whatever view the parties took of the so-called agreement, or whether it was compromised or adjusted, may never be ascertained, but the testimony furnished upon the reference clearly shows that neither the attorney nor the client thought there was any real or valid claim existing in 1892; for, in addition to what lias already been, said, it is shown that in March, 1889, Mr. Dean wrote the attorney for a bill for whatever was owing up to February, 1889,” which bill was sent a few days after and paid. Now, as the principal part of the services rendered for which the claim is now made was prior to the settlement of October 1, 1888, it is remarkable that in none of these settlements between the parties was the claim made by the attorney against Dean, and the attorney admits that in none of his accounts against Dean did he charge up the Marques claim as against him; and in March we find the attorney writing to Dean to know if he had any objection to his accepting a retainer from Marques, which letter would never have been written if he had then thought he was at liberty to do any work that Marques wanted and charge it to Dean, whom he regarded as a responsible party.

Moreover, had the attorney stood upon the claim which he first made in 1892, and which upon his direct examination upon the reference he supported, of $500, his position would have been stronger than to attempt to increase this amount by $2,000. By such action the evidence is furnished that his feeling and anxiety^ to punish his former client were so strong that he was willing to convert what from his letter can be seen was regarded as a doubtful and a hard claim against Dean for $500 into one for $2,500. To summarize, then, upon the reference before the client was examined, it appeared, first, that the attorney claimed for services in these matters $500; second, that the principal part of the services rendered was jarior to October 1, 1888, the date of the settlement between the parties; third, that he had never charged such a claim up against Dean in any of his books ; fourth, that he had taken Marques’ note for $500, which had been turned over to Dean, and that the amount of such note was the claim that he made against Dean for the services. rendered to Marques. Although the attorney had rendered numerous bills for services from 1886 down to 1892, two of which involved a general statement for all services rendered by the attorney or his firm, excepting certain enumerated claims in which the Marques matters were not included — which bills had been paid, yet in none of these had any portion of the claim, such as is here made, for services ever been made or disclosed or suggested by the attorney to his client. We think, therefore, that, having regard to the relation that existed between the parties, and noticing the particularity, and we might add the regularity, with which bills were furnished by the attorney, the facts we have alluded to are most significant, and justified the referee in refusing to allow the attorney any sum for services rendered in the matter of Marques.

We regard it as a subject of regret that the attorney did not him self adhere to the suggestion which, in his letter of Jtme, he madé to his client, namely, that instead of entering into harsh words 01 ill-feelings as to their matters of difference, they should be referred with a view of having them adjusted, his closing words being: “I should be satisfied with whatever the court awards me. I presume you would be too.” The client having adopted this suggestion, and both having agreed on a referee of their own choosing, who seems to have given a patient hearing and investigation of the questions involved between them, and he having reached a conclusion that the rights of the parties should be adjusted by the payment by the client, in full settlement of all claims, of the sum of $3,470.16, and the client, in addition, being required to pay the expenses of the reference, amounting to $750, which, adopting the advice of his former attorney, he is prepared to do, we think that the attorney should be satisfied with the conclusion reached, which, upon all the testimony, we regard as fair and just, and upon payment of such amounts, should be required to give the consent for substitution.

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

Yan Brunt, P. J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: O’Brien, J.: Eollett, J.

text:
    Catherine T. Smith and Others, as Executors, etc., of Hugh Smith, Deceased, Appellants and Respondents, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent and Appellant.

      Assessment ■ — when invalid under chapter 335 of 1813 —the commencement of the work the day prior to the act talcing effect sustains the assessment.

    An assessment levied upon real estate, situated within the city of New York, to pay for the construction of a sewer during the operation of chapter 335 of the Laws of 1873 is void, if the expenses of such work were more than $1,000 and the work was not let by contract, unless the work was commenced prior to the passage of such act.
    The fact that such work was commenced the day previous to the taking effect of such act is sufficient to sustain the validity of the assessment.
    Follett, J., dissenting.
    Cross-appeals by the plaintiffs, Catherine T. Smith and others, executors, etc., of Hugh Smith, deceased, and by the defendant, The Mayor, Aldermen and Commonalty of the City of New York, from a judgment of the Supreme Court in favor of the jdaintiffs, entered in the office of the clerk of the county of New York on the 27th day of April, 1894, upon the verdict of a jury rendered by direction of the court after a trial at the New York Circuit.

      Jolm F. Kmconagh, for the plaintiffs.

      George L. Sterling, for the defendant.
   O’Brien, J.:

This action was brought to recover sums paid by plaintiffs for two assessments for sewers in the Boulevard. The first was an assessment for sewers between Ninety-second and One Hundred and Sixth streets, and the second an assessment for sewers between Sixty-first and Seventy-seventh streets. By the judgment the plaintiffs recovered the first but were nonsuited as to the second, and it is from the refusal to allow a recovery for the second assessment paid that the plaintiffs appeal, while the defendant appeals from so much of the judgment as allows any recovery.

Questions involving assessments for the improvement of the Boulevard have been before this court and the Court of Appeals so many times that it is unnecessary to recite the facts at length, it being sufficient to state only those that present the questions raised upon this appeal.

Between the years 1872 and 1876 the construction of the Boulevard between Fifty-ninth and One Hundred and Fifty-fourth streets was in progress by men employed by days’ work and not by contract. This construction included, not only the regulating and grading of the Boulevard, but the building of the sewers. With respect to the latter, the area to be covered being nearly five miles long and the grades varying greatly, it was divided for purposes of sewerage into five sections, which when completed resulted in five assessments, one for each of these sections or. subdivisions, the assessments being confirmed in-1881. The charter of 1873 (Chap. 335, Laws of 1873) went into effect on the 30th of April of that year, and required that all contracts must be let at public letting, if for more than $1,000, “ excepting such works now in progress as are authorized by law or ordinance to be done otherwise than by contract.” (§ 91.) The work on the sewers was all done by days’ work, and the amount upon each section was greatly in excess of $1,000.

When the question was first presented it was sought to sustain the legality of the assessment for the entire sewer by claiming that the work in- progress upon one section was work in progress upon each subdivision thereof. This, however, was disposed of by the Court of Appeals (Matter of Blodgett, 91 N. Y. 117) adversely to the city.

Upon the authority of that case the assessment levied upon the plaintiffs’ property for the section of the sewer between Ninety-second and One Hundred and Sixth streets was void, it being conceded that it was for more than $1,000 and was all done, not by contract, but by days’ work admittedly commenced after the passage of the charter of 1873. (Tripler v. Mayor, 125 N. Y. 617; 139 id. 1.) Although conceding the technical illegality of such assessment, the defendant insists that no recovery for money so paid can be had, upon the ground that the remedy by suit of this nature has been taken away by statute and that the payment must be considered to have been made voluntarily. Upon this claim the recent decision of this court in Mutual Life Ins. Co. v. Mayor (79 Hun, 482) is controlling upon this court.

As to the section, between Sixty-first and Seventy-seventh streets, the testimony shows that on April twenty-ninth, one day before the charter of 18Y3 went into effect, the sewer excavation was begun, there, being employed on that day on that section a foreman, a blaster, forty-one roclonen, eleven laborers, one blacksmith, three carts and eight double teams, and on the next day the work was continued and right along afterwards until completed, by days’ work. The question presented is as to whether work upon this section can be regarded as work then in progress.

In The Matter of Blodgett (supra) it is said: “We have recently considered the meaning of this phrase (work in progress), as used in the charter, and the scope and purpose of the exception thereby declared (Matter of Weil, 83 N. Y. 543). In that case wo expressed the opinion that the purpose of the exception was to avoid the evil and complication arising from an application of the contract system to work already commenced and moving towards completion in a different manner, and was descriptive of cases where the city was already committed to a specific mode of doing the work, and could not change the system without complication or confusion. * * * The exception of the charter had an evident purpose and aim. The general and dominant idea was to do all of the city’s work by the contract system, and that only was intended to be exempted which was already begun — which was ‘in progress’ on a system and in a mode of its own, and -which could not be interfered with unless at the peril of evil consequences.”

Under this definition of what is meant by the phrase “ work in progress,” a close question is presented whether such work as was done on the day preceding the taking effect of the charter was sufficient to bring it within the exception and permit of its being continued otherwise than by contract. On one side it can be urged with much force that work could have been stopped at once without occasioning any complication or confusion, or evil consequences to the city, and a contract let therefor without such action coming in conflict with any different system. On the other hand, the making of the surveys, profiles, etc., coupled with the fact that work had been actually commenced, argues strongly for the validity of the assessment under a liberal construction of the language used in the charter. When we recall the advantage and benefit that this boulevard was to the abutting property, and the injustice to be done by placing the assessment -upon the city at large, we think that a liberal construction should be indulged in in support of the assessment.

¥e are, therefore, of the opinion that the judgment was right and should be affirmed, without costs to either party upon this appeal.

Yan Brunt, P. J., concurred.

Eollett, J.

(dissenting):

I concur in that part of the prevailing opinion which sustains the recovery for §2,844.85, but dissent from that portion which denies the plaintiffs’ right to recover §7,371.83, the amount of the assessment collected, with interest, on account of the work done on the second section between Sixty-first and Seventy-seventh streets.

Section 91 of chapter 335 of the Laws of 1873 provides :

“ Whenever any work is necessary to be done to complete or perfect a particular job, or any supply is needful for any particular purpose, which work and job is to be undertaken or supply furnished for the corporation, and the several parts of the said work or supply shall together involve the expenditure of more than one thousand dollars, the same shall be by contract, under such regulations concerning it as shall be established by ordinance of the common council, excepting such works now in progress as are authorized by law or ordina/nce to be done otherwise than by contract.”

The exception in italics relates to particular works in progress April 30, 1873, when the statute took effect, which had then been authorized by law or ordinance to be done otherwise than by contract. Two conditions must have existed April 30, 1873, to bring the Boulevard sewer within the exception : (1) The work must have been in progress, and (2) it must have been authorized by law or ordinance to be done otherwise than by contract.” Our attention has not been called to any law or ordinance authorizing this particular work to be done otherwise than by contract. On the contrary, the undisputed evidence is that there was no such ordinance, and so, the work on this sewer is not within the exception. (Chap. 137, Laws of 1870, § 104; Matter of Robbins, 82 N. Y. 131.)

Notwithstanding the statute and the fact that there was no law or ordinance authorizing the construction of this sewer otherwise than by contract, the commissioner of public works constructed the whole of it by days’ work. This sewer is about five miles long, divided into five sections, numbered from one to five, every one having a separate outlet. The property assessed was divided into five assessment areas corresponding with the five sewer sections, so that the expense, or a portion thereof, of constructing each section was assessed on the property benefited by that particular section. Prior to April 30, 1873, no work had been done on any part of this sewer except that performed the day before on section 2, and it has been held that the work was not in progress on the other sections (Nos. 1, 3, 4 and 5) within the meaning of the statute, and that the local assessments for those sections of the improvement are void. The Court of Appeals in the cases cited in the prevailing opinion has construed the meaning of the term works now in progress,” and as we understand the cases, the term refers to works under construction and so far advanced (April 30, 1873) that a change of system would involve complication and confusion. Certainly the work done in a single day on this important improvement, involving the expenditure of several hundred thousand dollars, was not so far advanced as to involve complication or confusion by directing it- to be done by contract. It is quite apparent, we think, that commencing work on this section April 29, 1873, was a mere subterfuge, resorted to for the purpose of defeating this remedial statute. This is shown by the evidence in the record and by the history of the construction of this improvement as given in the prevailing opinion and in the cases referred to. It is urged that the property owners assessed were benefited by the work, and, therefore, a liberal construction should be indulged in to support the assessment. I think this is not a legal reason. Assessments are sometimes set aside because they are unequal or inequitable, but tax levies are never sustained because they are equitable ; they must be legal. By sustaining this assessment we countenance the action of the department of public works in attempting to avoid the operation of this highly remedial statute, which, like all other such statutes, should be construed so as to thwart the mischief which the statute was intended to prevent, and this court ought not to point out a way by which this and other like statutes may be subverted.

It is urged that the whole city should not bear the expense of this improvement which so largely benefited the owners of property on the Boulevard. A single individual is not usually responsible for the improper action of a department of a municipality, but it is often just and legal to hold the entire body of the citizens responsible for such action.

The judgment should be modified by increasing the amount of the recovery by $7,371.83, and, as modified, affirmed, with costs in favor of the plaintiffs and against the defendant.

Judgment affirmed, without costs to either party.


text:
    Louis Munzinger, Appellant, v. The Courier Company, Respondent.

      Unincorporated association, how sued — amendment of a summons and complaint changing the name of the defendant from that of an unincorporated association to that of its president — appeal from an order denied on the ground of want of power. ■ ^

    An unincorporated association may, under the provisions of the Code of Civil Procedure, be sued in the name of its president, or all its individual members may be sued if their names be known to the person desiring to commence an action.
    Where one person or corporation is sued, another and different person upon whom process has not been served cannot be brought in as a sole defendant byway of substitution, but. where there is merely a misnomer, or some defect in the designation of the defendant, and a substitution or change of the party is not desired, an amendment will be allowed changing the name of the defendant, as designated, to his correct name.
    Where the plaintiff in an action endeavors to bring into court an unincorporated association, designating it in the summons by its name, and alleging in the complaint that it is a corporation, if the president of the association has been served with process, the plaintiff will, upon motion, be allowed to remedy the defect and have an order substituting the president of the association as the defendant in the action, and the complaint will be amended by striking out the allegation of the incorporation of the defendant and inserting in its place an allegation that the defendant is an unincorporated association.
    Where a motion was denied by the Special Term solely upon thje ground of want of power, the General Term may, in a proper case, reverse the order of the Special Term denying the same and grant the motion.
    Yan Brunt, P. J., dissenting.

      Appeal by the plaintiff, Louis Mnnzinger, from an order of the Supreme Court, made at the New York Special Term .and entered in the office of the clerk of the county of New York on the 21st day of September, 1894, denying the plaintiff’s motion for leave to amend the summons and complaint.

      Benjamin Patterson, for the appellant.

      Ansley Wilcox, for the respondent.
   O’Brien, J.:

The plaintiff brought an action for libel against the Courier Company, alleging, upon information and belief, that it was a domestic corporation and the proprietor and publisher of a newspaper called the Buffalo Courier. The amended answer, while admitting that the Courier Company was such proprietor and publisher, denied that it is or ever was a domestic corporation, and this answer is verified by George Bleistein, who deposes that he is president of the Courier Company. Upon service of this answer, plaintiff, upon an affidavit showing that he had inadvertently sued the defendant as a domestic corporation, when in fact it is an unincorporated association doing business under the name of the Courier Company, and that there is no corporation by the name of the Courier Company, moved for leave to amend the summons and complaint by making the title of the defendant George Bleistein, as President of the Courier Company,” and by changing the allegation tliat the defendant was a corporation to one that it was an unincorporated association.

There is no question made but that if the defendant is an unincorporated association, the Code of Civil Procedure provides that it may be sued in the name of its president, or all, its individual members may be sued if known to the plaintiff. (Code Civ. Proc. § 1919.) The real question is as to whether the court had power to allow the amendment in the title. The judge, at Special Term, denied the motion for leave to amend upon the authority of the case of N. Y. State Monitor Milk Pan Assn. v. Remington Agricultural Works (89 N. Y. 22), wherein it was held that the Code (§ 723) does not authorize the striking out of the name of the sole defendant in an action and the insertion in lieu thereof of the names of other persons as defendants ; and the reasons given are, that the effect of striking out the name of the defendant and inserting the names of three other persons as defendants in lieu thereof is to continue the action against other and different parties than the one named, thus substituting a cause of action with new and other defendants.” In the opinion the case of Bassett v. Fish (75 N. Y. 303) is cited, wherein it was held that the complaint could not be amended by striking out the names of the defendants, who were sued as school trustees, and inserting the name of the corporate board of education to which they belonged.

In both these cases it will be noticed that the persons sought to be brought in were different from those upon whom process had been served ; and these decisions go to the extent of holding (and very properly) that where one person or corporation is sued, another and different person upon whom process has not been served cannot be brought in as a sole defendant by way of substitution. This is clearly pointed out in the dissenting opinion of the General Term in N. Y. Milk Pan Co. v. Remington Works (25 Hun, 479), which was the one receiving the approval of the Court of Appeals. Among the other cases therein collated and discussed reference is made to Newton v. Milleville Manf. Co. (17 Abb. Pr. 318, note); Tighe v. Pope (16 Hun, 180), and Bank of Havana v. Magee (20 N. Y. 355). As therein said: “ Newton v. Milleville Man. Co. (17 Abb. Pr., note) is a Special Term case, briefly reported, where the plaintiff, in ignorance of the true name of defendants, and supposing them to be a corporation, which they were not, had sued them by the name in which they transacted their business. He was allowed, on motion, to substitute their names as defendants under section 175 of the old Code of Civil Procedure. If the plaintiff in the present case had made the Remington Agricultural Company defendant, supposing it to be a corporation, this case would have been like that cited. As it is, the analogy fails, because the plaintiff has not sued Philo Remington and his partners, but has sued an existing corporation which is entirely distinct from them. In the case cited there was no corporation, but the name inserted in the summons as that of the defendant was the partnership name of the very persons whose real names were afterwards substituted. No new person was brought in. The real defendants had been sued under their partnership name. * * * The case of Tighe v. Pope (16 Hun, 180) was one where an action was brought against one describing her as administratrix, and asking judgment against her as such. The motion was to strike out the words ‘as administi’atrix.’ The court held that it should be granted, remarking that, ‘ whether the amendment were allowed or not, the same person will be defendant.’ * * * The case of Bank of Havana v. Magee (20 N. Y. 355) was one where the plaintiff miscalled himself by the name ‘Bank of Havana,’ instead of using his true name ‘ Charles Cook.’ An amendment giving his true name brought in no new party. There was no person, natural or artificial, called ‘ Bank of Havana,’ but that name was one used by Cook, the real plaintiff, in his business. Like the case last cited, therefore, the amendment brought in no person who had not in fact been a party previously.”

In addition to the above we have a Special Term decision of this court of McKane v. Democratic General Committee of Kings County (21 Abb. N. C. 89) where a voluntary unincorporated association was sued in its own name, but the summons was served on its president, and an amendment to the title of the action was allowed, changing the defendant’s name to that of its president in order to’ comply with the Code of Civil Procedure, section 1919, allowing such an association to sue or be sued in the name of its president or treasurer. As therein said : “ The plaintiff has endeavored to bring into court the voluntary association against which he seeks to enforce some right. He has caused the proper officer of that association to be served with process, and has simply omitted to name that officer in the title of the action as president of the association.”

It is true that in the case last cited the plaintiff did not, as here, sue the defendant as a corporation; but in that, as in the other cases cited, the distinction between a case where an amendment will, and where one will not be allowed, is pointed out,, v.iz., that where there is merely a misnomer, or some defect in the designation, and not a substitution or .change of the party, the amendment will be allowed,

The qxiestion, therefore, is whether there is here sought a change of the party defendant.

The plaintiff is suing the proprietor and publisher of the Buffalo Courier, which is called the Courier, Company, and does business under that name. This the defendant admits, denying merely that it is a corporation. The amendment desired is not to substitute an individual, but to change the name so as to conform to the statute. It is the Courier Company, publisher and proprietor of the Buffalo Courier, that will still be the defendant, but as it turns out that instead of being a corporation it is an unincorporated association, the title of the action must be changed. The amendment named is precisely the s&me as if a person were sued as administrator of A, and it subsequently appearing that he was not such administrator, but was the administrator of B, an application should then be made to amend so as properly to designate the party defendant. That the court has the power to allow such an amendment under section 723 of the Code of Civil Procedure, in furtherance of justice, has been many times held, and yet such an amendment is nothing more than the plaintiff here asks, that is, to bring in a party doing business under a name equally suited to either a corporation or an unincorporated association, and which he finds, upon the party appearing in court, has been incorrectly described or misnamed, but which he still wishes to retain in court after amending the process and pleadings, so as properly to designate the defendant. In other words, there is no change of party, the same individual being still before the court, but having misnamed him, it is proposed to correct such misnomer, which, we think, the court in a proper case has the right to permit.

The error into which the plaintiff fell was a natural one, and his failure properly to describe the defendant is satisfactorily explained. There being no denial of the merits, and no laches having been shown on the part of the plaintiff in moving, it having been denied by the court below solely upon the ground of want of power, we think that the order should be reversed, with ten dollars costs and disbursements to appellant, and the motion for leave to amend granted upon payment by plaintiff of the costs of the action up to the date of the service by plaintiff of his notice of motion.

Eollett, J., concurred ; Yan Brunt, P. <T., dissented.

Order reversed, with ten dollars costs and disbursements to appellant and motion for leave to amend granted on payment by plaintiff of costs of action up to date of service of plaintiff’s notice of motion.


text:
    In the Matter of the Application of The Board of Street Opening Relative to Acquiring Title to One Hundred and Twenty-eighth Street Between Amsterdam Avenue and Convent Avenue, in the Twelfth Ward of the City of New York. D. G. Yuengling Brewing Company and Another, Appellants, The Mayor, Aldermen and Commonalty of the City of New York, Respondent.

      Chapter 209 of 1839 — hoio limited — classification of streets in the city of New York — section 990 of chapter 410 of 1882 — discontinuance of a street opening proceeding under — interests of mortgagees in the real estate affected.

    The general provisions of chapter 209 of the Laws of 1839 as to street openings are limited by special acts conferring power upon the various departments of the government of the city of New York.
    Where such power is given by special acts, to be exercised in the public interest, and it is attempted to be exercised, it cannot be taken away by an appeal to the provisions of such act of 1839, conferring rights, upon the majority of property owners to be affected thereby, to have the proceeding discontinued.
    The classification of streets in the city of New York, into those that the public authorities may open of their own accord, and those for the opening of which proceedings should be initiated by the property owners, was not intended to be disturbed by chapter 209 of the Laws of 1839, of which section 990 of chapter 410 of the Laws of 1882 (the Consolidation Act) is a part.
    The public authorities of the city of New York have the right to proceed with public improvements in the way of street openings without interference by a majority of the owners affected by such improvements, except in regard to streets and avenues where such officers proceed upon the petition of the property owners themselves, in which event section 990 of chapter 410 of the Laws of 1882 applies, and upon the coming in of the report, if it appears that a majority in interest object, they have the right to have the proceedings discontinued.
    Mortgagees of real estate to be affected by a proposed street opening have an interest in the property within the meaning of section 990 of chapter 410 of the Laws of 1882, and their interests must be considered in determining whether persons interested “ to the amount of a majority in amount of the whole assessments and awards” appear and object to further proceedings.
    Appeal by the D. G. Yuengling Brewing Company and another from an order of the Supreme Qourt, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of July, 1894, granting a motion made to confirm the report of commissioners of assessment, and denying a motion to discontinue the proceeding.

      JLouis Marshall, for the appellants.

      John P. Punn, for the respondent.
   O’Brien, J.:

.The board of street opening and improvement presented to this court a petition, reciting that it was necessary, useful and proper for the public interest to acquire title, for the use as a public street, to certain lands upon what would be when opened One Hundred and Twenty-eighth street, between Amsterdam avenue and Convent avenue, in this city. The commissioners appointed pursuant to the petition made a report, awarding as damages to divers persons the sum of $1,105, taxing the costs at $1,006.48, and assessing those claimed to be benefited $2,111.48. Of the assessments thus laid nearly $1,900 was against the appellants, who, upon the application to confirm 'the report, moved for the discontinuance of the proceedings, pursuant to the provisions of section 990 of the Consolidation Act (Ohap. 410, Laws 1882), which, among other things, provides that, “upon the coming in of the said report * * * if persons who appear by the said report to be interested, either by assessment or for benefit or award for damages, to the amount of a majority in amount of the whole assessments and awards, shall appear and object to further proceedings upon the said report, the court shall order the same to be discontinued, and the same shall thenceforth be discontinued.”

There can be no doubt that if this section has application to a proceeding such as was here initiated it is controlling, and the appellants were entitled to a discontinuance of the proceeding as a matter of right. The question is, does this section apply to a proceeding such as this ?

By the Laws- of 1807, and subseqently by the Laws of 1839 (Chap. 209), 1873 (Chap. 335), 1874 (Chap. 604), and 1876 (Chap. 436), statutes were passed regulating and providing for the opening of streets in different portions of the city. These were afterwards brought together and now appear in chapter 410 of the Laws of 1882, known as the Consolidation Act. Section 990 of that act was originally a portion of the act of 1839 (Ohap. 209), being a general act relative to assessments. Section 105 of chapter 335 of the Laws of 1873 (now section 955 of the Consolidation Act) confers upon the board of street opening the power, whenever they deem it for the public interest, to lay out new streets south of Fifty-ninth street. Section 956 of the Consolidation Act confers similar power upon the department of public works above Fifty-ninth street, except in the twenty-third and twenty-fourth wards, in which wards, by the next section, the power is conferred upon the department of public parks. In this (section 957) and the following section, relating to the power of the department of public parks with respect to the mode of acquiring title for the use of the public to lands required for streets in the twenty-third and twenty-fourth wards, the provisions are taken from chapter 604 of the Laws of 1874, and notably those portions of section 958 which permit such department, whenever it shall deem it for the public interest so to do, to acquire lands for streets, avenues, roads, public squares and places laid out by them.

By chapter 436 of the Laws of 1876, streets to be laid out by the park department under chapter 604 of the Laws of 1874, were to be divided into three classes, viz., first, second and third. Streets of the first class were to be opened whenever, in the opinion of the department of the city government having control of such opening, the interest of the public demanded such opening ; streets of the second class were to be opened only on the petition of the owners of one-third of the linear feet of frontage on such streets; and streets of the third class were to be opened only on the petition of the owners of three-fourths of the linear feet of frontage.

In The Matter of Ryder Avenue (No. 324, vol. 31, 1885, Ct. of App. Cas., at the Bar Assn.; State Library, vol. 986, case 10, Ct. of App. Cas.; Matter of Comrs. of Public Parks Relative to Ryder Avenue, 36 Hun, 645; Matter of Comrs. of Public Works, 99 N. Y. 683), which was a proceeding initiated in 1885 by the public authorities, an application such as is here made was presented for leave to discontinue by property owners representing the necessary majority of awards and assessments, under section 990 of the Consolidation Act; and it was held that that section did not apply, the judge at Special Term, in his opinion, saying: “Rider avenue is an avenue of the first class under the provisions of the act of 1874 just referred to, and can, therefore, be opened if the commissioners are of the opinion that the interests of the public demand such opening and grading.”

It will thus be seen that, prior to the Oonsolidation Act, the provision permitting a discontinuance did not apply to all proceedings relating to street openings or the laying out of public squares or spaces, it being, in effect, held that the act of 1839 is general in its provisions and applies to all cases not governed by any special act; that as the power was given by the act of 1876 to the “ board or department of the city government having control of such opening” to open streets of the first class, as to such streets the act of 1839 was superseded. There is authority, therefore, for the proposition that the general character of the act of 1839 is to be limited by special acts conferring power upon departments of the city government ; that where such power is given in the public interests and it is attempted to be exercised, it cannot be nullified by an appeal to the act of 1839 conferring the right upon the majority of property owners to be affected. (See, also, Matter of Board of Street Opening Twenty-second Ward Park, 1 N. Y. Supp. 145; 16 N. Y. St. Repr. 91.) In this last case it appeared that the Legislature declared that a certain plot of land thereafter should be known on the map of the city as a public place; held, that section 990 had no application to such a proceeding, but referred only to cases in which there were both awards for damages and assessments for benefits, not to those in which a tax was laid upon the city at large.

Although as now found in the Consolidation Act, the classification of streets in regard to other portions of the city is not so marked or distinct, it will be found that a distinction is always made between those streets that are to be opened pursuant to the power conferred upon the public authorities and those opened upon the application of the property owners.

Section 955, chapter 410 of the Laws of 1882, as amended by chapter 185 of the Laws of 1885, authorized the board of street opening and improvement to lay out and open streets, avenues, etc., “ whenever they may deem it for the public interest so to do,” and the counsel to the corporation is required, upon the request of said board, to immediately take proceedings to acquire title to the land to be taken.

Section 963, chapter 410 of the Laws of 1882, .authorizes the mayor, aldermen and commonalty of the city of New York to open any street, etc., laid out by the commissioners under the act of 1807, either of their own volition or upon the petition of three-quarters of the linear frontage thereon.

■ . It provides * * * And also whenever and as often as so many proprietors of lands fronting on any such street * * * as shall together own three-fourth parts of all the lands fronting on such street * * * shall by petition desire the said mayor, aldermen and commonalty to open any such street * * * and the said mayor, aldermen and commonalty shall deem the opening thereof to be necessary or useful, it shall Be lawful for the said mayor, aldermen and commonalty to cause the same to be opened.”

. We think that there is force, therefore, in the claim of the city, that this classification of streets into those that the public authorities could open of their own accord, and those for* the ' opening of which proceedings should be initiated by the property owners themselves, was not intended to be disturbed by the act of 1839, of which section 990 of the Consolidation Act is a part.

In different portions of the Consolidation Act we find the right conferred upon the public authorities, whenever they deem it for the public interest, to open streets, avenues or public places. If it could be held that section' 990 had reference to proceedings so initiated by the public authorities, then it necessarily would be restrictive of the power which in the broadest terms is given to them, whenever they deem it for the public interest, to open and lay out streets and public places. As stated, the act of 1839 was general and related to all proceedings connected' with public improvements wherein there were assessments and awards; but the acts conferring the power upon the different boards and departments of this city being special, must be given force and effect, in view of their purpose and scope and in the public interest. We think that this can be done by leaving, as the Legislature undoubtedly intended to leave, in the public authorities the right to proceed with public improvements in the way of street openings without interference by a majority of the owners affected by such improvements. But, in regard to streets and avenues where such officers proceeded upon the petition of the property owners themselves, we think that section 990 applies, and, upon tlie coming in of the report, if it appears that a majority in interest object, they have the right to discontinue the proceedings. This construction only can harmonize the conflicting provisions of the Consolidation Act relative to public improvements.

In this particular case, we think, for another reason, that the judge below was right. It is true that the appellants are the owners of the equity of redemption in lands abutting upon 'the proposed street, but it also appears that such lands are mortgaged for very large amounts and that the mortgagees were neither present upon the motion nor have they consented to a discontinuance of the proceedings. That the mortgagees have such an interest in the property within the meaning of the section we think apparent. As they have not united with the owners of the equity of redemption it cannot be said, upon the evidence furnished to the court below, that those appearing and consenting to a discontinuance of the proceedings represented a majority in amount of those who were interested.

¥e think the order below was right and should be affirmed, with ten dollars costs and disbursements.

Yan Brunt, P. J., and Parker,- J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Parker, J. :

text:
    Thomas W. Robertson, Appellant, v. The Ongley Electric Company, Respondent.

      Corporation — presumed to know the 1cm of the State creating it, hut not that of other States — when an attachment is not “permitted” or “suffered.”

    A corporation will be presumed to know the laws of the State under which it was created and to have made its contracts with reference to such laws, but such presumption does not extend to the laws of • other States or of foreign countries.
    A corporation cannot be said to have permitted or suffered an attachment to issue against its property, where the attachment was issued as a matter of right, because the corporation was a foreign corporation, in a State other than that under the laws of which the corporation was created, when the corporation did not even know that an application for an attachment was contemplated.

      The sense in which the words “permit” and “suffer” are generally used imports' that the doing of certain things may be permitted or suffered without an affirmative act, but that the thing cannot be “permitted” or “suffered” without an omission to do some act which might have prevented it; to permit or suffer an act usually implies the power to prohibit, prevent or hinder it.
    Appeal by the plaintiff, Thomas W. Robertson, 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 5 th day of October, 1894, upon the decision of the court, rendered after a trial at the-New York Special Term, dismissing the plaintiff’s complaint.

      Henry W. Ha/rdon and Treadwell Cleveland, for the appellant*

      Rufus W. Peclcham, Jr., for the respondent.
   Parker, J. :

The trial court dismissed the complaint on the ground that the note upon which the plaintiff sought to recover had not matured when the action was commenced. The note reads as follows :

“ $22,183.33. New York, November 1st, 1892.
“ Two years after date we promise to pay to the order of Thomas W. Robertson twenty-two thousand seven hundred and eiglity-three dollars at No. 1 Broadway, New York city.
“ Yalue received.
“Number --•. With interest at five per cent, payable semiannually. Due November 4, 1894.
“ THE ONGLEY ELECTRIC COMPANY,
“ By Geo. S. Hopkins,
Vice-President.”

The action was commenced April 4, 1893, some months before-the due date of the note according to its terms. But at the time the note was given the defendant executed and delivered to the plaintiff, as collateral security for its payment, a chattel mortgage upon certain patents, accounts and chattels of the defendant. That instrument provided, among other things, that upon the happening of certain events the principal sum represented by the note should become instantly due and payable. One of the events named was that if the defendant should permit or suffer any attachment or other process against its property to be issued the note should become at once due.

Two weeks prior to the commencement of this action a person claiming to be a creditor of this defendant (a New Jersey corporation doing business in the State of New Jersey, and having its general offices for the transaction of business in Jersey City) procured an attachment to be issued in this State, and levied upon certain property of the defendant within the State of New York. The plaintiff in the action in which the attachment was issued sought recovery against the defendant for certain commissions alleged to have been earned by selling its treasury stock. The defendant answered the complaint, denied the debt, and refused to pay. Before this trial that action was put on the short cause calendar for trial, but as the limit of time allowed for such causes was reached before the evidence was in, the result was that it went to the foot of the calendar under the rule. In such condition the action stood at the time of the trial of this cause. The situation, therefore, does not permit the court to infer that the. issue of the attachment was due to a failure on the part of the defendant to pay, in the ordinary course of business, a meritorious claim.

The question, then, is, whether the issuing of an attachment in a State other than that under the laws of which the defendant was incorporated, and under the circumstances to which we have briefly referred, operated under the provision of the chattel mortgage to make the sum secured by the note at once due and payable. So much of the covenant relating to the events which should cause the note to become payable prior to the date of maturity fixed by its terms reads as follows:

And the said party of the first part, for itself and its successors and assigns, covenants and agrees to and with the said party of the second part, his executors, administrators and assigns, that in case default shall be made in the payment of the said principal sum above mentioned, or in the payment of the interest thereon, or in case the said party of the first part shall, at any time before the day of payment herein provided for, remove the said goods, chattels and property or any part thereof, or permit or suffer any attachment or other process against property to be issued against it, or permit or suffer any judgment to be entered up against it, then the said principal sum above mentioned shall become instantly due and payable. * *

If this provision be read without having in mind the circumstance which it is alleged caused this note to mature, it will suggest that the parties intended to cut down the time which the note should have to run only in the event of such happenings as should endanger the plaintiff’s chances of making his claim out of the property of the defendant. It undertook to provide that in the event of a removal of the goods covered by the mortgage, whether by the voluntary act of the defendant, or through legal proceedings taken by a creditor, then the note should at once mature. In other words, the parties to that instrument apparently intended to relieve the payee of the note, and the mortgagee as well, from any possible embarrassment by reason of the length of credit, should the mortgagee voluntarily attempt to dispose of the property, or some creditor, by means of an attachment or judgment, should be about to effect its disposition in order to make his claim out of the defendant’s property. A construction of this language which should make the note mature if an attachment should be obtained in another State or foreign country, would not seem to be in accord with the plan which the parties to the instrument had in mind. The defendant may be presumed to know the law of the State to which it owes its creation, and to have made its contract with reference to it, but there is no occasion for extending the presumption of knowledge to the law of other States or foreign countries. There is no suggestion that in its own State this attachment would have been issued if applied for. But in this State, the defendant being a foreign corporation, an attachment may issue against its property within the limits of the State, however solvent it may be, and however great its ability to pay all claims against it on demand. It is not within its power to prevent a creditor, or a fictitious claimant even, from obtaining' an attachment against its property in this State. And the construction contended for would, of course, put it in the power of the mortgagee, if at all inclined to turn sharp corners in order to gain some advantage over his debtor, to cause the note to become due at once by procuring an attachment to be taken out by some person in another State or country than that of the defendant’s residence.

Now, clearly, this was not what the parties intended, and we have to inquire whether the language employed, if reasonably construed, is not in accord with what seems to have been their desire at the time. It will be observed in the first place that it is not provided that the note shall become due in the event that an attachment shall be issued. The provision contains words of limitation in addition, words indicating that the attachment provided for was one for the issuing of which the defendant should be in some measure responsible because of its tacit consent or its neglect to discharge its just obligations. The attachment provided for is one that the defendant shall “permit or suffer” to be issued against it. Now, it is not contended that the defendant did any affirmative act to procure or permit the issuing of the attachment, but, having failed to prevent its issue, it is urged that the defendant permitted or suffered it to issue.

The learned counsel for the appellant concedes that if the word “ permit” had been used alone there would be no opportunity for such construction of the instrument as tliat for which he contends. He urges, however, that the use of the words “ or suffer” indicates that the parties intended to include the opposite of the ordinary meaning of the word permit. His argument is that the word “ suffer ” is undoubtedly used at times the same as “ permit,” but that it could not have been the intention of the parties to use the words in that sense in this contract, otherwise they would have been omitted because unnecessary. Therefore, it is urged that the meaning to be attached to the word “ suffer ” is to “ tolerate,” and thus the words “ permit or suffer ” should be read as “ permit or tolerate; ” and if thus read it is contended the covenant would mean “ if the attachment shall issue with the defendant’s permission or without it.”

We have already said that the appellant concedes that the defendant did not permit the„attachment to issue., “ To permit ” is “ to consent, to allow or suffer to be done, to tolerate, put up with.” A definition of the word “ permit ” most favorable to the plaintiff is that which imports only acquiescence or abstinence from prevention. It cannot be urged that the defendant acquiesced, for the evidence is to the contrary, and the act was one over which it had no control. The attachment 'issued against the property of the defendant as a matter of right, because the defendant was a foreign corporation, and it cannot be said to have abstained from hindering without a suggestion in the record that the defendant knew that the plaintiff contemplated even an application to the court for a warrant of attachment. In all dictionaries “ to permit ” is given as one of the definitions of “ suffer,” and “ to suffer ” as one of the definitions of “permit.” They are used synonymously. The sense in which these words are generally used imports that the doing of certain things may be permitted or suffered without an affirmative act, but that it cannot be done without an omission to do some act which might have prevented it. In other words, to permit or suffer an act usually implies the power to prohibit, prevent or hinder it. As we have already said, it does not appear that the defendant could have hindered it, for it does not appear that it was informed that an attachment was to be applied for until after it had been issued and levied upon the property. It may be said that it could have hindered it by paying the demand made upon it, whether right or wrong, whether there was anything due upon it or not. True, that might have been done, but certainly there was no occasion for the defendant to desist from its defense of the action brought against it until it had at least been threatened with an attachment in case it should continue to insist upon its defense. Whether it could have safely proceeded with its defense, after being warned that the consequences of it would be the issuing of an attachment, we need not consider, for it does not appear that it had reason to expect that the procuring of an attachment was even contemplated by the plaintiff in the action in which the attachment was issued before a levy was actually made under the attachment.

The judgment should he affirmed, with costs.

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

Judgment affirmed, with costs.


author: Follett, J.:

text:
    Hugh J. Grant, as Temporary Receiver of The Saint Nicholas Bank of New York, Plaintiff, v. George C. Treadwell Company, Impleaded with Another, Defendant.

      Promissory note of a corporation — not executed in accordance with its by-laws — when the corporation is liable thereon.

    If the president of a corporation has been in the habit of executing notes in the name of the corporation, and his acts in so doing have never been repudiated or questioned by the directors of the corporation, and some of such notes have been paid by the corporation, the fact that the corporation received the avails of two notes so executed by the president, together with the fact that the president was not guilty of wrongdoing or of diverting the obligations of the company or their proceeds in executing the notes in the name of the corporation, is sufficient, in an action brought to recover the amount of the same, to sustain a finding by the jury that the president was authorized to execute the notes, or that their execution had been ratified by the corporation, although the by-laws of such corporation prescribed that its promissory notes should be signed by its treasurer together with its president or secretary.
    Motion by the plaintiff, Hugh J. Grant, as temporary receiver of tbe Saint Nicholas Bank of New York, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance, upon the dismissal of the complaint, directed by the court after a trial before the court and a jury, at the New York Circuit on the 17th day of May, 1894.
    February 1, 1892, the “George C. Treadwell Company” was incorporated under the laws of New Jersey, and had places of business at the cities of New York and Albany in this State. From the date of the organization of the corporation and until April 17, 1894, George H. Treadwell was its president and general manager.
    August 21, 1893, two promissory notes for $2,500 each were made, of which the following is a copy:
    “ $2,500^°^. Albany, N. Y., Aug. 21, 1893.
    “ Four months after date we promise to pay to the order of Geo. H. Treadwell twenty-five hundred TVir dollars at Hotchkiss & Co.’s Banking House, New York, 31 and 33 Broadway.
    “ GEO. C. TREADWELL CO.
    “Value received. By Geo. H. Treadwell,
    “No.-. Due Dec. 24. • President.

    “ Indorsed: Geo. H. Treadwell.”

      The two notes were precisely alike. Both were written by George IT. Treadwell, president, and were indorsed by him individually and were discounted by Hotchkiss & Co. for the benefit of the corporation. Shortly afterwards and before the notes came due they were transferred by Hotchkiss & Co. to the Saint Nicholas Bank for value, which received them in good faith. This bank subsequently failed, and the plaintiff was appointed temporary receiver thereof.

      John M. Bowers and Latham G. Deed, for the plaintiff.

      Daniel G. Thompson, for the defendant.
   Follett, J.:

At the close of the plaintiff’s case the court, on defendant’s motion, dismissed the complaint, and the plaintiff excepted and asked that the question of the power of the president to execute the notes be submitted to the jury, which request was refused, and the plaintiff excepted.

' The inherent power of the defendant corporation to bind itself by promissory notes was not questioned on the trial. The sole question litigated at Circuit was whether the president of the defendant had authority to bind it by these promissory notes, and the only question presented on this motion is, was the evidence sufficient to authorize the jury to find that the president had such power? George IT. Treadwell held two offices — he was the president and also the general manager of the corporation, and was the largest stockholder in the company.

The by-laws prescribed the power of the president as follows :• “The president of the company shall be the general executive officer of the company, and shall have the general supervision of its business affairs. * * * He shall preside at all meetings of the board, and generally he shall perform all duties pertaining to the office of president.”

The powers of' the general manager were prescribed by the bylaws as follows: “The general manager of the company shall * *, * have power to purchase goods for the said company, both in the United States and in foreign countries, and to fix and establish the price for which goods are to be sold, both, at wholesale and retail; lie shall have power to employ and discharge clerks, porters and servants connected with the purchase and sales department of the said business, and shall, under president of said company, have supervision of the whole business of the said company, and shall perform such further duties as shall from time to time be assigned to him by the board of directors.”

How many directors there were does not appear, but it seems from the case that they did not, as a board, exercise any control over the affairs of the corporation during 1893, but left the whole management of the business to the president, and to him was left the duty of raising money and paying the debts of the defendant.

A by-law of the corporation was introduced which provides: He (the treasurer) shall, together with the president or the secretary, accept and indorse drafts and sign and indorse promissory notes for the purpose of the purchase of merchandise for the company’s use and sale, and other necessary expenditures, to an amount that shall not exceed at any one time outstanding twenty per cent of -the paid-up capital.” It is urged that under this by-law the note not having been signed by the treasurer, is not binding upon the company.

In The National Spraker Bank v. George C. Treadwell Co. (80 Hun, 363) it was held that the fact that a promissory note was not signed by the defendant’s treasurer, in accordance with the by-laws, constitutes no defense to an action on a note in the hands of a bona fide holder, the corporation having received the benefit of the proceeds.

In this case it was shown that the president executed, in the name of the corporation, other notes for its benefit, some of which were paid before the defendant passed into the hands of a receiver, and some were not; and there is no pretense that the president’s acts have been repudiated or even, questioned by the directors, nor is it asserted that he was guilty of any wrongdoing or that he had diverted the obligations of the company or of their proceeds. The fact that the defendant received the avails of these notes, together with the other facts in the case, wTas sufficient to have sustained a. finding that the president was authorized to execute these two notesr or that their execution had been ratified, which is the equivalent of original authority. Whether the president was authorized to make the notes should have been submitted to the jury, and the court erred in dismissing the complaint of the plaintiff, whose exceptions should be sustained and a new trial granted, with costs to him to abide the event.

Nan Brunt, P. J., and Parker, J., concurred.

Plaintiff’s exceptions sustained and a new trial ordered, with costs to him to abide event.