text:
    The People of the State of New York, Respondent, v. Matthew F. Dailey, Appellant.

      Assara.lt — an arrrest made by a policema/n without cause — evidence as to the motive of the arrest — a policeman as an aggressor in a breach of the peace.

    On the trial of an indictment for assault in the third degree, alleged to have been committed by the defendant, who was a policeman, in arresting the complainant without cause and charging her with being disorderly, the question of the motive with which the arrest was made, whether in the performance of a public duty or not, was presented. It was claimed by the People that the defendant arrested the claimant from a sinister motive, in order to put an end to her importunities that he should provide for her daughter, whom she charged him with having seduced. The daughter was permitted to testify, as a witness for the People, that she was with child and that the defendant was its father.
    The defendant was found guilty of the assault.

      Held, that the testimony was properly admitted, as bearing upon the question of the defendant’s motive in making the arrest.
    A policeman who is engaged in committing a breach of the peace has no right to arrest the person against whom the breach is being committed, because of his resistance.
    Appeal by the defendant, Matthew F. Dailey, from a judgment of the Court of Oyer and Terminer held in and for the city and county of New York, rendered on the 5th day of December, 1892, upon the verdict of a jury, convicting the defendant of assault in the third degree.

      W. F. Howe, for the appellant.

      11. JB. B. Stapler, for the respondent.
   Yan Brunt, P. J.:

The defendant was indicted for assault in the third' degree, committed upon one Annie Hannan on the 23d of April, 1892. The defendant pleaded not guilty, but .upon the trial was found guilty of the crime charged in the indictment, and from the judgment thereupon entered this appeal is taken.

There seems to be some discrepancy, both.in the case and upon the points of counsel, as to the date upon which the alleged assault was committed. The indictment charges that it was committed on the twenty-third of April, and the appellant’s counsel assumes that it was the twenty-third of April, but the case would seem to indicate that it was the twenty-third of May. No point has been raised, however, as to these dates ; it is probable that some mistake has been made in the printing of the papers.

The complainant, after testifying to various interviews with the defendant leading up to the interview which resulted in her arrest, testified that on the evening of the twenty-third of May she saw the defendant at 318 Monroe street. She continues : “ He sent a little boy up to me to tell me there was an officer down stairs wanted to see me. I went down stairs; his wife was with him. I stood on the top step of my door and he got hold of my right arm with his left hand and put his club to my nose and called me a whore, and said, ‘ Do you mean to say that I have kept company with your daughter a year? ’ I said, ‘No, not a year, but you are the ruinar tion of her.’ He said, ‘You damned whore, if you say that again I will arrest you.’ I said, ‘ It is I that ought to be arresting you.’ I stepped down off the door and went about a yard or so away from the door. He took up his club to club me. His wife went over and got hold of the club. He told his wife to let go of that stick. My oldest son went up and said, ‘ Don’t you club my mother.’ He said, ‘Yes I will,’ and he called my son a name. He said, ‘I will take you in.’ I said,£ Take me in, you wretch; you are not satisfied to ruin my daughter, you want to arrest me now.’ He arrested me. I sent up stairs for my clothes. All the children were shrieking until we got to the station house.”

She then testified that she was locked up at the station house charged by the defendant with being disorderly and drunk, but on the next day was discharged. It was claimed upon the part of the People that this course was resorted to by the defendant in order to put an end to th§ efforts which the complainant was making against him because of his conduct towards her daughter.

Several witnesses were called upon the part of the People in corroboration, including the daughter of the complainant, who, among other things, was asked: “ Q. You^ are about to have a child, are you not? A. Yes, sir. Q. Is Mr. Dailey (meaningthe defendant) the father of that child? A. Yes, sir.”

This testimony was objected to and an exception taken.

The defendant was examined upon his own behalf, and testified as to the interview which resulted in the arrest of the complainant as follows: “ She came down and she says, ‘ Good evening.’ I said, ‘ Good night.’ She said, ‘ Are you Roundsman Dailey ? ’ I said, ‘Yes, mam.’ She said, ‘Won’t you step up stairs, I want to talk with you ? ’ I said, ‘ If you want to talk with me you can talk with me down here.’ She says, ‘You have my daughter in the family way, and the quietest way out of this is the best, and I want you to make some kind of a settlement, as I have no house or money to keep my daughter, and I want to make an arrangement to send her to the hospital.’ I said, ‘ I don’t know you and I don’t know your daughter.’ She said, ‘You are Roundsman Dailey?’ I said, ‘Yes, but I don’t know you or your daughter,’ and she said, ‘You stinking son-of-a-bitch,’ and with that she grabbed me by my coat and she pulled two buttons off my dress coat, and she says, ‘ I will show you whether you know me or my daughter or not.’ With that I sent a rap out on the sidewalk for assistance, and nobody answered, and she came over and caught hold of my collar and pulled the side of my collar off. I then sent out another rap, and nobody came, and then I said, ‘I will take you to the station house,’ and she said, ‘ No, you son-of-a-bitch, I will take you to the station house; you are my prisoner.’ And she grabbed hold of my arm and pulled me to the sidewalk and she started to run x\p, and then she caught hold of her son’s arm and she said,c I wouldn’t walk on the same side of the street with you,’ and she went along until we reached Delancey street, and then she walked along about ten feet with me, and then went up to her son again and caught hold of her son’s arm, and walked from there to the station house.”

And certain other evidence was offered for the purpose of corroborating the testimony of the defendant.

It is now urged that it was error to admit the testimony of the daughter which has been excepted to ; that “ the issue before the jury was not whether the defendant was or was not guilty of the charge made against him by the complainant in reference to her daughter, nor was the jury to determine whether the defendant alone was the father of the child of which Mamie Ilannan was then pregnant.”

In answer to this objection it is urged upon the part of the People that this testimony ivas competent in order to prove the motives which caused the defendant to act in the manner in which he was claimed to have acted by the complainant, and the making of the arrest without cause ; and that this was in the mind of the court in admitting the testimony was clear because throughout the charge the question of motive is continually kept before the mind of the jury ; that if the arrest was made in the performance of a public duty, the jury were instructed that the defendant was not guilty; but if made because of a sinister motive and not for the purpose of the preservation of the public peace then the defendant was guilty.

It would seem upon an examination of the rule in this State, as developed by one or two cases to which reference may be had, that no error was committed in the introduction of this testimony.

In the case of Pierson v. The People (79 N. Y. 424), the appellant had been convicted of murder in the first degree in causing the death by poison of one Withey in February, 1887. Upon the trial, after evidence had been given upon the part of the People showing an intimacy between Mrs. Withey and the prisoner, who was a married man, before and after the death of Withey, and that the prisoner departed from his home on the 19th of February, 1877, eleven days after the death of Withey, the prosecution called one Butterfield, a clergyman who resided in Michigan. lie testified that the prisoner called at his residence with Mrs. Withey on the 26th of February, 1877. The witness was then asked what took place at that time. This was objected to, and the objection overruled. The witness answered, in substance, that he married them ; that the prisoner had stated under oatli that there was no legal objection to his marriage. The court held that the evidence was competent. “ Crime is never committed without a motive; and hence,,on the trial of a person charged with crime, it is always competent to give evidence showing the motive which induced the criminal to act. Where the crime is clearly proved, and the criminal positively identified, it’ is not important to prove motives. But where the ease depends upon circumstantial evidence, and the circumstances point to any particular person as the criminal, the case against him is much fortified by proof that he had a motive to commit the crime. Where the motive appears, the probabilities created by the other evidence are much strengthened. This evidence tended to prove that the motive which operated upon the prisoner was the desire to possess Withey’s wife; that his passion for her was so absorbing that he was determined to overcome all obstacles standing in his way. One obstacle was the husband, and he was murdered. Marriage was either necessary or desired; and when he was confronted with the necessity of taking the oath, which he could not truly take, he overcame that obstacle by falsely taking it. Thus, to accomplish his end, he commits two crimes; and the last has an intimate relation to the first. By 'the last he consummates a purpose in part achieved by the first; and the fact that he would take this false oath and enter into this marriage shows the overpowering nature of the motive which impelled him. That such proof is competent, even if it tends to prove another crime, has frequently been decided. (The People v. Wood, 3 Park. Cr. 681; Stout v. The People, 4 id. 71.)”

So, in the case of Pontius v. People (82 N. Y. 339), the appellant was indicted for assault and battery with intent to kill, and convicted of the offense. Upon trial of the indictment the prosecution gave in evidence certain notes purporting to have been made or indorsed by the complainant, and also a bank account. Testimony was then given by the complainant and others, showing that the signatures of the complainant to the notes were forged. After the case for the prosecution was closed, the prisoner’s counsel moved that the court direct the jury to disregard all the evidence tending to establish the forgery, and the court denied the motion. Upon appeal it was held that the evidence was properly received, and the court did not err in retaining it; that it was competent as showing the existence of a motive for the commission of the offense charged, and none the less so because it also proved the commission of another crime.

Now, in the case at bar, the question of motive was one which was most prominently before the jury, but the evidence objected to was not of the serious character which was considered in the cases above cited. It did not prove that the defendant had been guilty of a crime. The evidence as to his intercourse with this girl, if it commended itself to the jury, tended strongly to support the claim of the motive advanced by the People. It does not seem to have have been error, therefore, to admit this testimony.

Various criticisms have been made in respect to the charge of the learned court, but there.are none which seem to require any particular notice. .

It is urged that “ the learned judge instructed the jury that if Dailey had seduced Mrs. Hannan’s daughter and went to Mrs. Han-nan for the purpose of inducing silence, and that Mrs. Hannan had then been guilty of acts of disorderly conduct in the public streets, for which Dailey arrested her, that arrest would be unjustifiable, solely because Dailey’s motive in going to the place was not a pure one/’ i

.But an examination of the charges does not seem to sustain this criticism. The charge is that if defendant’s story was incorrect, and “he came to this woman prompted either by what may have been told by his wife, or even by what may have been told by the two officers, Baker and Leonhard, and that he sought to silence her importunities in the manner which has been described by the witnesses, then, gentlemen, you are at liberty to find this defendant guilty.”

If a police officer provokes a breach of the peace, and incites to a breach of the peace, it is difficult to see how he can justify an arrest, when he is the guilty party. If the evidence of the complainant was true, if there was any disorderly conduct it was upon the part of the police officer, and not upon the part of the complainant'. And all that the learned- court intended to instruct the jury was that if Dailey was committing a breach of the peace, he had no right to arrest the complainant because of her resistance.

Upon the whole case we find no errors which call for a reversal.

The judgment should be affirmed.

Follett and Parker, JJ., concurred.

Judgment affirmed.


source: Caselaw Access Project

author: Yan Brunt, P. J.:

license: Public Domain

text:
    In the Matter of the Distribution of the Surplus Moneys in an Action of Foreclosure of a Mortgage on Real Estate of Sarah Lawrence Hazard, Deceased.

      Judgment liens — on after-acqniredproperty — no priority — Code of Civil Procedure, ' § 1251.
    DM®' tie statute of the State of New York (Code of Civil Procedure, § 1251), docketed judgments become liens simultaneously, and without priority between .them, upon real property subsequently acquired by the judgment debtor during ten years from the filing of the judgment roll, at the time of his acquisition of the property.
    Hence, "where there are several judgments docketed against the judgment debtor at the time he acquires property, the judgment first docketed is not a prior lien on such after-acquired property, but all the judgments are entitled to rank equally.
    Appeal by the petitioner, the American Surety Company of New York, from so much of a decree of the Surrogate’s Court of the city and county of New York, made and entered on the 3d day of April, 1893, as confirmed the report of areferee determining the rights of certain parties, other than the said American Surety Company of New York, to any portion of the surplus moneys herein.
    The proceeding was one for the distribution of surplus moneys arising out of the sale on foreclosure of the property of a decedent, which surplus moneys were paid into the Surrogate’s Court in pursuance of section 2198 of the Code of Civil Procedure. The claimants to the fund are judgment creditors of Roland N. Hazard, the.sole devisee and legatee under the will of the deceased. The surrogate’s decree directed distribution pro rata among those claimants whose judgments were docketed in the county of New York at the time of the death of the decedent, viz., July 21, 1890. The judgments owned by the appellant, amounting in all to $22,986.40, were docketed in that county prior to the time of the docketing of any of the other judgments. The surrogate held, as a conclusion of law, that where there are a number of judgments docketed against the judgment debtor at the time he acquires the property, the judgment first docketed is not a prior lien, but all are entitled to rank equally. The question of the correctness of this ruling is the only question presented by this appeal.

      J. J. Crawford, for the appellant, American Surety Company, petitioner.

      L. A. Loolcwood, for the respondent John R. Caswell.

      J. J). Taylor, for the respondent Le Grand S. Cholwell.

      Norwood Ooggeshall, for the respondents S. Y. L’Hommedieu and Reginald A. Lawrence.
   Yan Brunt, P. J.:

We might affirm the decree appealed from upon the opinion of Surrogate Ransom in the court below Avere it not for the fact that in such opinion he seems to lay too much stress upon adjudications in other States. Such adjudications can throAV very little, if any, light upon the construction of our statutes, as there is almost always some variation in language which may very well change the rule of interpretation.

When Ave consider the language of our statute Ave fail to see AArhere there is any provision for, or any evidence of, an intention to provide for a priority of liens of judgments upon after-acquired property. Judgments are a lien upon property because of the provisions of the statute, and unless there is. some provision granting priority none can exist.

The provisions of our statute regulating liens of judgments are those contained in sections 1250 and 1251 of the Code of Civil Procedure.

Section. 1250 provides that “ a judgment required to be docketed as prescribed in this article neither affects real property or chattels real, nor is entitled to a preference until the judgment roll is filed and the judgment docketed.” And section 1251 provides tliat u except as otherwise specially prescribed by law, a judgment hereafter rendered which is docketed in a coimty clerk’s office as prescribed in this article, binds and is a charge upon, for ten years after filing the judgment roll, and no longer, the real property and chattels real in that county which the judgment debtor has at the time of so docketing it, or which- he acquires at any time afterwards and within the ten years.”

Now, it is urged upon the part of the appellant that there is no distinction made by the statute between property held at the time and after-acquired property, and that as no different rule is prescribed as to the duration of the lien, between property owned at the time of the docketing of the judgment and after-acquired property, such lien being for ten years after the filing of the judgment roll, etc., these words apply to both classes of property, and if the lien commences in the one case from the time of the filing of the judgment "roll, it commences from that time in the other as well. And it is urged that there being an express declaration that the lien is to continue for ten years, it commences at the time of the filing of the judgment roll and docketing of the judgment in respect to after-acquired property as well as to that owned at the time.

That this construction cannot prevail seems to be manifest when we consider the wording of the statute. The words of the statute are, binds and is a charge upon; ” that is, upon filing the judgment roll and docketing the judgment, such judgment at once binds and is a charge upon the debtor’s real estate. But it cannot at once bind. and be a charge upon what he does not own, and the binding and charging can only take place when the debtor acquires the property, and then the binding and charging of all the judgments must occur simultaneously, because it is the one act of acquisition which then enables the judgments to bind and charge, and not the several acts of filing the judgment rolls and docketing the judgments.

It is difficult to see how it is possible for a lien to attach to a thing which does not exist. The lien of a judgment attaches to the ownership of the property. As ordinarily expressed, however, it is stated that the judgment binds the property, but it is clear that it is intended in all such expressions to hold that it is a lien upon the ownership of the property, and that is all.

The codifiers, in their zeal, by changing the language, to add confusion to conditions which were plain before, have seen fit to change the language of the Revised Statutes, without any avowed intention of making any change in its provisions. In this respect, it seems to us that they have infused uncertainty where it did not exist before, as they have frequently succeeded in doing in other instances.

The provisions of the Revised Statutes (Vol. 2, p. 359, § 3) are as follows: “ All judgments hereafter rendered in any court of record shall bind and be a charge upon the lands, tenements, real estate and chattels real of every person against whom any such judgment shall be rendered, which such person may have at the time of docketing such judgment, or which such person shall acquire at any time thereafter, and such real estate and chattels real shall be subject to be sold upon execution to be issued on such judgment.” Here the language is, shall bind and be a charge upon the lands, etc., which such person may have at the time of docketing such judgment, or which such person shall acquire at any time thereafter,” the language indicating futurity in the attaching of the lien— “ shall bind the lands, etc., which such person shall acquire at any time thereafter.” Bind when? Clearly when acquired, and not before.

The next section (§ 4) provides that from and after ten years from the time of docketing such judgment, it shall cease to bind or be a charge upon any such property, clearly showing that there was no intention or idea that a lien could exist against after-acquired property for any period of ten years, as is claimed from the present provisions of the Code.

It seems to us that the whole idea pervading the provisions of the Code under consideration, is that these judgments go into operation as against any property which the judgment debtor may hold or acquire during ten years from the filing of the judgment roll; but until title is acquired, it seems to be clear that no lien can attach.

As already suggested, it is the acquisition of the title which enables the lien to attach; and the liens of all prior judgments necessarily attach at one time, and there can be no priority between them.

The decree should be affirmed, with one bill of costs to the respondents.

Follett and Parker, JJ., concurred.

Decree affirmed, with one bill of costs to the respondents.


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

text:
    Charles Trotcky, an Infant, by Samuel M. Trotcky, his Guardian ad litem, Respondent, v. The Forty-Second Street and Grand Street Ferry Railroad Company, Appellant.

      Determination of the weight of evidence by the General Term — negligence — a child injured by a street horse ean\

    The court does not set aside verdicts because the unsuccessful party produced the greater number of witnesses on the vital issue; but when, in addition to numbers, the testimony of the witnesses is of such a character as to render the truth of their statements highly probable, and more probable than the evidence of the witnesses of the successful party, the General Term must discharge the duty imposed on it by the statute, and determine for itself whether the issues have been determined against the weight of evidence.
    In an action brought to recover damages from a street railroad company for an injury to a boy two years and three months old, who, in running across the street, was struck by one of the defendant’s horse cars, the plaintiff claimed that the injury was caused by the negligence of the driver of the car, and sought to establish the fact that he was negligent, (1) in that he was sitting instead of standing; (2) that the car was moving at an excessive rate of speed, and (3) that the driver did not promptly apply the brake. The plaintiff recovered a verdict.

      Held, that on the whole case the verdict was greatly against the weight of evidence, and that, by evidence which greatly outweighed the plaintiff’s, the defendant showed that its driver did not commit any one of the acts which the plaintiff sought to establish as a ground of recovery; and, hence, that a new trial should be granted.
    Appeal by tlie defendant, the Forty-Second Street and Grand-Street Ferry Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 23d day of January, 1893, upon a verdict rendered at the New York Circuit, with notice of an' intention to bring up for review on such an appeal an order entered on the same day denying the defendant’s motion for a new trial made -upon the minutes.

      Freling II. Smith, for the appellant.

      Christopher Fine, for the respondent.
   Follett, J.:

This action is for the recovery of damages for a personal injury caused, as it is alleged, by the negligence of the defendant’s employees. On the 17th of July, 1891, between eleven and twelve o’clock A. m., the plaintiff, then but two years and three months old, was run over by one of defendant’s horse cars, and suffered the loss of his right arm. The plaintiff resided with his parents on the third floor of No. 5Y9 Grand street. His maternal grandmother occupied the ground floor of this number as a cigar store. At about eleven o’clock of the day of the accident the plaintiff’s mother took him down stairs and left him in the care of his grandmother. No. 519 is on the south side of Grand street and a little east of where Goerclc street intersects Grand. The child saw an ice wagon on the north side of the street, and expressmg a desire for. a piece of ice, his grandmother permitted him to cross the street in company with a boy by the name of Kelly, who was then about nine years of age. After the child had received a piece of ice he started to recross Grand street and was run over by defendant’s open car No. 83.

The foregoing facts are not disputed. The evidence given in behalf of the plaintiff does not tend to charge any of the defendant’s employees with any negligent act which contributed to the accident, except the driver of car No. 83, and it is sought to establish that he was negligent in the following particulars: (1) That he was sitting instead of standing, for which reason he was unable to see the child on the track as early as though he had been standing. (2) That the car was moving at an excessive rate of speed. (3) That the driver did not promptly apply the brakes. To establish these propositions three witnesses were called in behalf of the plaintiff. His grandmother, Fannie Friedman, testified that the child left her store in company with the Kelly boy to cross the street for a piece of ice, and that after securing it, he and the Kelly boy started to recross the street together, and while crossing the child fell on the south track, and the Kelly boy left him. She testified that the driver of No. 83 was sitting down and that the car went very fast.

Bernard Price and ITirsch Friedman testified that they were walking together from the ferry west on the north side of Grand street and that they saw the child lying on the south track; that the driver of car No. 83 was sitting, and that he did not apply the brake until the car was very near the child, and that the car was running very fast. Both testified to substantially the same state of facts. On the cross-examination both said that they could not say that the car was going as fast as at the rate of five miles an hour. This was substantially all of the evidence given in behalf of the plaintiff descriptive of the accident or of its cause.

Patrick Glynn, the driver of car N.o. 83, testified that he was standing with the lines in his left hand, with his right hand on the brake; that the car was traveling east towards the ferry on the south track at the rate of about six miles an hour, and that as he approached Goerck street, a yellow car, No. 13, of the Cortlandt street line, approached from the east going west on the north track. That the child was crossing the street from the north to the south and ran in front of the horses drawing No. 13 and between the whiffletree and dashboard of No. 83 and fell under it.

James Gettings, the driver of No. 13, testified that as his car approached Goerck street he saw this child standing on the northwest corner of Goerck and Grand; that he suddenly started and ran diagonally across the street in front of his horses; that he called to the driver of No. 83, but the boy ran against the whiffletree of No. 83 and fell under it. He testified that No. 83 was going at about the rate of six miles an hour; that its driver was standing; that he applied the brake and stopped the car within eight or ten feet.

Ellen Miller testified that she was riding on car No. 83 ; that the child ran in front of the horses drawing car No. 13 and against the one on which she was riding.

Annie Eldrédge testified that she was riding on the north end of the second or third seat from the front on car No. 83 ; that the driver was standing, and that the car stopped very suddenly, but that she did not see the child before it was run over.

Fannie Merrick, a sister of tlie last' witness, testified that she sat by the side of her sister; that she did not see the child until after the accident; that the car stopped suddenly, and that the driver was standing.

Rebecca 'Willis testified that she was riding on car No. 83 at the time of the accident; that it was not going very fast, was stopped very quickly and that the driver was standing, but that she did not see the child before the accident.

Mary E. Lowery testified that she lived on the top floor of No. 581 Grand street next east of the building in which the plaintiff’s parents resided; that she was looking out of the window and saw the accident; that the Kelly boy and the child went to the ice wagon; that the Kelly boy went onto the wagon and handed the child a piece of ice, after which he started to cross the street alone, and that he fell between car No. .83 and its horses; that he ran in front of the horses of No. 13 and into No. 83 ; that the cars were not moving very fast, and that the driver of No. 83 was standing up with his hand on the brake.

Julia Murphy testified that she was looking out of the window of No. 581 with her sister, the last witness; that she saw the child run in front of the horses of No. 13, and that he fell between No. 83 and its horses; that she saw the Kelly boy go up to the ice wagon and hand the child a piece of ice, after which he started to cross the streét alone; that the driver was standing with one hand on the brake.

Mamie Pitt testified that she was looking out of the window with the last two witnesses ; that she saw the Kelly boy hand the child a piece of ice, and that he then started to cross the street alone, and that he ran in front of the horses of No. 13 and between No. 83 and the horses attached to it.

Dennis Conway, the conductor of No. 83, testified that the car was not running over six miles an hour; that as it approached Goerek street he heard the driver of No. 13 shout, but he did not see the child until after the accident, and that his driver was standing up.

Albert E. Truman testified that he was standing on the fire escape of No. 408 Madison street; that he saw the child start to run across the street towards his home; that he ran in front of the horses of No. 13 and against the wliiffietree of No. 83, the driver of which was standing with the lines in one hand and the brake in the other; that he saw the driver apply the brake as fast as lie conld, and that the car was stopped within a short distance.

William Truman, father of the last witness, testified that he was on the fire escape with his son and saw the accident; that the driver of No. 83 was standing up with the lines in one hand and the brake wheel in the other; that the child ran in front of the horses of No. 13, five or six yards in advance of them, and into No. 83.

Antonio Marrone testified that he saw the accident; that the child started to cross the street and ran between the hind legs of the horses and the dashboard of car No. 83.

John Bovaird testified that he saw the accident; that he heard somebody call, and saw the boy run in front of No. 13 and into No. 83, the driver of which was standing with one hand on the brake and holding the lines with his other hand.

Joseph Welsh testified that he saw the boy run in front of No. 13 and into No. 83, between its dashboard and whiffletree ; that its driver was standing with the lines in one hand and the other on the brake; that both cars were going at about six miles an hour, and that the child was alone.

James Kelly, who is said to have accompanied the child across the street, was not sworn. At the close of the plaintiffs evidence this statement appears: “ I tender to the other side, if they choose to examine him, the boy James Kelly. He is in court. I am free to say to the court that I put him on the stand once, and don’t believe he understands the nature of an oath, or is sufficiently intelligent to give testimony, and that is the reason I don’t call him, but he is here if the other side desire to examine him.”

The grandmother testified : I had known this boy Kelly at that time half a year. The Kelly boy at that time Jboarded with his aunt in klangin street, not a block from where I live. The Kelly boy had been round there before when Charlie was there; he comes there every day and plays with the child.”

It is insisted by the defendant’s counsel that the grandmother was negligent in placing the child in the care of this unintelligent boy, with whom she must have been so well acquainted. How much intelligence he had does not clearly appear, and as the view which we take of this case leads to a new trial, it may be that on the next trial it will be shown whether the Kelly boy was a proper custodian of this child.

A verdict of $15,000 damages was rendered. It seems to us that on the whole case the verdict is greatly against the weight of evidence, and further, that, by evidence which greatly outweighs the plaintiff’s, the defendant shows that its driver did not commit any one of the acts which the plaintiff sought to establish as a ground of recovery. There is no reliable evidence tending to show that the car was moving at more than six miles per hour, and it is not asserted that- this rate of speed, at this time and place, was excessive or negligent. -

Many witnesses who were so situated that they must have known what the fact was, testified that the driver was not sitting, but was standing, and it seems to us that this issue was determined against the preponderance of the evidence, as was also the issue whether the brake was promptly and efficiently applied.

The court does not set aside verdicts because the unsuccessful party produced the greatest number of witnesses on the vital issue, but when, in addition to numbers, the testimony of the witnesses is of such a character as to render the truth of their statements highly probable, and more probable than the evidence of the witnesses of the successful party, this court must discharge the duty imposed on it by the statute, and determine for itself whether the issues have been determined against the weight of evidence.

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

Parker, J., concurred.

Yan Brunt, P. J.:

I think that the evidence shows conclusively that the witnesses upon the part of the plaintiff testified falsely, in order to make out negligence upon the part of the defendant.

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


text:
    Thomas F. Burke, as Administrator, etc., of Johanna Burke, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Duty of looking, incumbent upon a person approaching a railroad crossing — contributory negligence — burden of proof.

    It is not sufficient, in order to discharge the obligations which rest upon a person attempting to cross a railroad track, to show that the head was turned in one direction or another; but, to authorize a recovery against a railroad company for damages for the death of a person killed by a train in attempting to cross the track on a highway, there must be some evidence tending to show that the deceased not only turned his head but used his eyes for the purpose of detecting an approaching train, and that in consequence of some obstruction he was unable to detect the danger.
    If an approaching train is in plain sight of a person attempting to cross the track, and the person apparently looks but does not see the train, although he could have seen it and avoided it if he had used his eyes, it is manifest that he did not do what he appeared to do, and that he did not comply with the rules of law applicable to the case. ■
    The question of the care required of a person in attempting to cross a railroad track is not whether he exercised any care, but whether he exercised the care which the law has said a person of ordinary prudence would exercise under the circumstances.
    In an action brought against a railroad company to recover damages, on the ground of negligence, for the death of a person caused by a passing train at a crossing, the burden of proving that the deceased looked for the train before attempting to cross the track rests upon the plaintiff; and a charge which casts such burden upon the defendant, by instructing the jury, in effect, that unless they find that the deceased did not look for the train the plaintiff is entitled to recover, is erroneous.
    Arpbal by the defendant, tlie New York Central and Hudson. River Railroad Company, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 6th dáy of March, 1893, upon a verdict rendered at the New York Circuit, and also from an order entered in said clerk’s office on the 1st day of March, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      F. W. Teams, for the appellant.

      W. F. ¡Severance, for the respondent.
   Yan Brunt, P. J.:

This action was brought to recover $5,000 by the next of kin of one Johanna Burke, who was struck and fatally injured by one of the trains of defendant at the crossing of the Spuyten Duyvil and Port Morris railroad, called Hanlon’s crossing, on the 26th of July, 1890. On the trial the plaintiff had a verdict for $5,000, and from the judgment entered thereon and from an order denying a motion for a new trial the defendant has appealed.

The question presented upon this appeal is whether upon the conceded facts the plaintiff has shown that the deceased was free from any negligence which contributed to the accident.

It appears from the evidence that the deceased had lived at Spuyten Duyvil, in the same house in which she lived at the time of the accident, upon the east side of the tracks, and immediately in view of the crossing at which she was killed, for about twenty years.

On the 26th of December, 1882, an ordinance was approved by the mayor which required that there should be maintained on each side of steam surface railroads at crossings in the twenty-third ward gates which should be kept down for one minute before the approach of trains for the protection of persons intending to cross the railroad. It appeared that although there were gates at each side of the crossing in question, the gateman who was in charge was not on duty after seven-thirty in the evening and before seven o’clock in the morning, and never had been since the passage of such ordinance and the erection of the gates.

According to the testimony offered upon the part of the plaintiff, the deceased was seen about a quarter-past nine in the evening coming over the crossing and passing along the road, and some five or ten minutes afterward returning and going towards her house, which was beyond the crossing where she was seen.

One witness testified that he saw the woman turn her head up the track and saw her turn it down again, and saw the train from the corner of the house come along, and she just got right in the way of it, and the train came along and took her out of the way.

The witnesses further testified that no bell was rung or whistle blown, and that the train, in their opinion, was running from twenty to twenty-five miles an hour.

The only witness who actually saw the accident, when requested to give the jury an idea of how quickly this whole thing happened, answered: “ It happened ■ — • I could not judge how quick it happened. Q. Yery quick? A. Yes, sir. Q. Like a flash almost % A. Yes, sir.”

It was further proved by one of the witnesses on the part of the plaintiff that the deceased passed him going towards Hanlon’s crossing on the evening in question, and that he saw the train about seventy-five or one hundred feet before it reached him, and that he heard the noise of the train as it went by, and the chug,” chug ” of the engine. This witness, however, did not see the accident when it occurred.

It was proved upon the part of defendant, without attempt at contradiction, that the track for a distance of 350 feet from the crossing was substantially straight, and ran side by side with the highway, and that the nearest structure to the crossing, or obstruction to the view, was a building situated 360 feet south of the crossing, and that a person approaching the railway, as the deceased is testified to have done, at any point within thirty-eight feet from the outer rail of the track upon which she was hurt, could see a train approaching from 300 to 600 feet day or night. It further appears that the headlight on the engine was burning, but there was a conflict of testimony as to the speed of the train, the defendant claiming that it had stopped at a signal station about 'TOO feet from the crossing and was getting up speed instead of running at full speed. It was also testified upon the part of the defendant that the bell was being rung by the fireman at the time of the happening of the accident.

It, therefore, appears from the evidence that the train must have been in full sight at the time the deceased stepped upon the track. The testimony of the only witness who saw the accident is that she was struck as soon as she stepped upon the track, which could not have occurred had any appreciable interval of time elapsed between her stepping upon the track and the arrival of the train. The witness at first testified that when the deceased first came along she had a shawl on her head; but evidently becoming aware of the tendency of this testimony, he stated that it was not exactly on her head, it might have been ai’ound her shoulders, and then he boldly took back what he had deliberately sworn to and said he did not see the shawl upon her head at all.

Taking the most favorable view of the testimony offered upon the part of the plaintiff, at the time that the deceased was at the edge of the track this train must have been in full sight; and if she first looked up the track, and then turned her head around towards Spuyten Duyvil, it is evident she did not look, because if she had looked she must have seen the train.

Now, it is not sufficient in order to discharge the obligations which rest upon a person attempting to cross a railroad track, to show that the head was turned in one direction or another. There must be some evidence tending to show that the deceased not only turned her head but used her eyes, for the purpose of detecting an approaching train, and that in consequence of obstructions, if you please, or of a fog, or something of that kind, she was unable to detect the danger. ' Where it is plainly apparent that a person by the use of his eyes could have seen the danger and avoided it, it seems to be trifling with the rules of law to say that simply because the head was turned in one direction or another he has, therefore, complied with the plain dictates of ordinary prudence.. This rule was expressly laid down in the case of Tucker v. N. T. Central & H. R. R. R. Co. (124 N. Y. 308), and seems to be entirely consistent with reason. While railroad companies are held to care and diligence in the management of their railroads in order that accidents to persons who may be compelled to cross the same do not happen, yet a corresponding duty is owed by those who are crossing such railroads of using ordinary care and prudence to avoid the dangers to which they may be exposed. And it has been long settled that it is necessary for a party attempting to cross such an avenue of travel to look to see if there is any danger from an approaching train and if they fail to do that then they cannot recover.

Now, if a person looks she is supposed to look for the purpose of seeing, and if an object is in plain sight and she apparently looks, but does not see it, it is manifest she does not do what she appears to clo, and has not complied with the rules of law.

In the case at bar, as • already stated, the evidence shows conclusively that the deceased could have seen this train and could have avoided it if she had used her eyes for the purpose for which they were intended.

Upon examination of the charge of the learned court it will be seen that the jury had an erroneous impression in regard to the burden of proof on this question of care, and the degree of care which the deceased was bound to use.

The court charged that it was the duty of the deceased, as she was about to cross that track, to exercise diligence and care in ascertaining whether or not a train was approaching, and if she failed to exercise the care that you would expect from a prudent person, under the circumstances disclosed by the evidence, then the plaintiff cannot recover in the action. After calling attention to the testimony, the court further said“ You are to determine from this evidence whether- in fact Mrs. Burke did exercise any care in crossing the track, and if you come to the conclusion that she did not,” etc. It was not a question as to whether she exercised any care, but whether she exercised the care which the law has said a person of ordinary prudence will exercise under these circumstances.

The court further charged: “ If you come to the conclusion that she did not look for the train, and by looking could have seen the train, and if you come to the conclusion that she was injured because she did not look for the train, then the plaintiff is not entitled to recover.” In other words, the jury were instructed that unless they found that she did not look for the train the plaintiff was entitled to recover not, if they found that she did look and could not see the train because of obstruction, which would have presented the issue in a very different form. In the charge as given the burden of showing that she did not look was cast upon the defendant, when the burden of proving that she did look was by the law thrown upon the plaintiff.

It was error, therefore, to refuse to charge as requested that the deceased was bound, in view of the evidence in this case, to turn her head and to look for the train before entering upon the track.

There may be a question also as to the amount of damages. There seems to have been no basis in the proof as to pecuniary damage for the large sum awarded.

Upon the whole case, we think that the court erred in its disposition, and that the judgment must be reversed and a new trial ordered, with costs to appellant to abide event.

Follett and Parker, JJ., concurred.

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


author: Follett, J.:

text:
    Guiseppo Spitalera, an Infant, by Salvatora Spitalera, his Guardian ad litem, Respondent, v. Second Avenue Railroad Company, Appellant.

      Negligence — personal irvjwry from collision with a street horse cwr — issue as to tohether the plaintiff had boarded a ear— charge ignoring the defendants evidence.

    On the trial oí an action brought to recover damages from a street railroad company for a personal injury, suffered by a boy through being run over by one of the defendant’s horse cars, and alleged to have been caused by the negligence of the defendant’s employees, the issue of fact tendered by the plaintiff was that he had boarded another car going in the opposite direction, tendered his fare, and was wrongfully put off by the conductor, and was so exposed to the car which injured him.
    The defendant denied this, and asserted that the boy did not enter upon either car, but ran in front of the horses of the car by which he was injured, and was knocked down by them. This was the theory of the defendant’s case, and evidence was given in support of it.
    The trial court, however, charged the jury that there was no evidence that would ' show that the boy was not on one car or the other.

      Held, that this was clearly a misdirection, well calculated to prejudice the defendant’s case; and, hence, that it constituted error for which a new trial should be granted.
    Appeal by the defendant, the Second Avenue Railroad Company, from a judgment of the Supreme Court, entered in the office ■of the clerk of the city and county of New York on the 11th day of April, 1893, upon a verdict in favor of the plaintiff rendered at tire New York Circuit, and also from an order entered on the 11th day of May, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      JPm/son Merrill, for the appellant.

      Abram J. Bose, for the respondent.
   Follett, J.:

This action is for the recovery of damages for a personal injury alleged to have been caused by the negligence of the defendant’s employees. The plaintiff is a minor, his age not being disclosed by the record, but from the age of a playmate who testified on the trial, and other circumstances, we infer that he was ten or twelve years of age at the time of the accident, which occurred July 14, 1891. He lived with his parents on the south side of Twelfth street and east of Second avenue, through which avenue the defendant’s horse railroad extends. The plaintiff testified that about noon of July 14, 1891, he received from his mother five cents with which to pay his car fare to Thirty-second street, where he intended to go to help his uncle. He testified that he and his companion walked from near First avenue along Twelfth street until they came to Second avenue, which they crossed and stood on the west sidewalk, and that when an up-town car on defendant’s line came along, he got onto it; that the conductor ordered him off, and the plaintiff replied : I have five cents to pay my fare; stop; I give you five cents,” and showed him the money. The conductor answered no, pushed him off and he fell under a down-town car, the forward wheel of which - passed over his right foot, so injuring it that amputation of a part of it was necessary. A lad, twelve years of age at the date of the trial (April 3, 1893), who was with the plaintiff, testified to substantially the same state of facts, though he did not seem to be quite certain whether the plaintiff crossed to the west side of Second avenue, or stood between the up and down tracks of the road.

James Healy, a witness called by the plaintiff, testified that he was riding on the down-town car, and sat on the east end of the second seat from the front one. He said that he heard a scream and saw the boy come off from the up-town car, and that he fell under the down-town car.

Chris Lamont, called for the plaintiff, testified that the boy got onto the up-town car, but that he did not see him fall; he saw him after the accident. This is substantially all of the evidence descriptive of the accident, given in behalf of the plaintiff.

Nussbaum, the conductor of the down-town car, testified that he heard a scream, saw the boy fall in the street, and his car ran over him, at which time the horses attached to both cars stood face to face, the up-town car not having reached the point where the boy fell.

Fay, a passenger on the down-town car, testified to about the same state of facts.

Annie ’Walsch, a witness called by the defendant, testified that she was riding on the down-town car, and that she saw the boys crossing Second avenue, one of whom was knocked down by the horses of the down-town car and was run over.

Marcuse, the conductor of the up-town car, called by the defendant, testified that the accident occurred before his car reached the place where the boy fell, and that, when the cars were stopped, the horses stood face to face. lie also testified that the boy was not on his car, and did not tender him five cents.

Martin, the driver of the up-town car, testified that, before his car reached the place of the accident, the boy had been run over by the down-town car, and that he drove along and stopped his horses near to those drawing the down-town car. This is all of the evidence given by the defendant descriptive of the accident.

The issue of fact tendered by the plaintiff was that he boarded the up-town car, tendered his fare and was wrongfully put off by the conductor. This the defendant denied, and it was asserted in its behalf that the boy did not enter upon either car, but ran in front of the horses of the down-town car and was knocked down by them.

The learned trial judge in submitting the case to the jury, said: “ On the part of the defendant, you have this state of facts presented to you, that this boy was a trespasser on the car; that he was not there for the purpose of getting a ride by paying for it, but that he was there simply for the purpose of stealing it, and that when that was notified to him, he got off as best he could, and when he did that, it so happened that he fell under this other car, and was injured by reason of that circumstance. Of course, if he was a trespasser on the car, and if he merely got off by a notification on the part of the conductor, the railroad company would not be responsible, but, even if he were a trespasser, and if he were in a dangerous position, and the conductor of the car threw him off in the way in which this boy testifies, under another car, the railroad company would be responsible, because the conductor would not have any right to eject any person, even a trespasser on the car, from a position of that kind so as to put him in peril of his life or of his limb.” To this instruction the defendant excepted. This instruction did not present the real issue litigated on the trial. The defendant’s witnesses denied that the plaintiff entered upon either car. Its theory of the accident was that the plaintiff in attempting to cross the street in front of the down-town car, was knocked down by the horses. The defendant asked the court to charge: That if they (the jury) find that the boy was not upon either of tiie cars, but was running across the street, and ran into the horses attached to the down-town car, or into the car, they must find a verdict for the defendant.” The court replied: “ I refuse so to charge ; there is no evidence before the jury that would show that he was not on one car or the other.” This was the final instruction given to the jury, and it was clearly a misdirection. The whole theory of the defendant’s case was that the boy was not on either car, but was knocked down by the horses, and they gave evidence in support of that theory. The statement by the trial judge that there was no such evidence was well calculated to prej-' udice the defendant’s case.

For this error the judgment and the order must be reversed and a new trial granted, with costs to the appellant to abide the event.

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

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


author: Yan Bkunt, P. J.:

text:
    Ludwig Baumann, Respondent, v. Elizabeth Moseley, as Administratrix, etc., of Joseph B. Adamson, Deceased, Appellant.

      Sale and delivery of goods under a sevei'al contract — retaking possession of a pwt of the goods by the vendor.

    The defense to a claim against a decedent’s estate, for goods sold and delivered to the deceased, that the plaintiff’s contract with the decedent for the sale and delivery of goods was an entire contract which the plaintiff had never completed, is not substantiated where the evidence shows that the goods delivered were ordered upon different days and delivered upon different days, and that the goods which were not delivered were not ordered by the decedent or with his consent.
    The vendor of goods sold and delivered under a several contract, who, not having power to rescind the contract, has by an act of trespass retaken possession of a part of the goods, may recover the purchase price of the balance of the goods delivered.
    Appeal by the defendant, Elizabeth Moseley, as administratrix, etc., of Joseph B. Adamson, deceased, from a judgment of the Supreme Court, entered in the office of the clerk of the city and and county of New York on the 31st day of March, 1893, upon the report of a referee, and also from an order confirming such report, entered in said clerk’s office on the 23d day of March, 1893,

      II I. Brant, for the appellant.

      W. H. Shepard, for the respondent.
   Yan Bkunt, P. J.:

This was a special proceeding upon a disputed claim against the estate of Joseph B. Adamson, deceased, referred pursuant to the statute.

The plaintiff is a furniture dealer in this city, and in the months of April and May, 1888, claimed to have sold and delivered to Joseph B. Adamson, the defendant’s intestate, a considerable quantity of goods. Before all had been delivered Adamson died. After his death the plaintiff seems to have continued to deliver the goods on the day of his death and two following days. Some days after the delivery of all the goods and the decease of Adamson, the plaintiff obtained possession of the apartment at which this furniture had been delivered, and removed therefrom certain of the goods.

The referee, in his report, found that the plaintiff had converted the goods which he had thus removed, and allowed the claim only for the balance. And, from the judgment thereupon entered, this appeal is taken.

It is urged that the plaintiff’s alleged contract with the defendant’s intestate for the sale and delivery of the goods in question, was an entire contract which the plaintiff had never completed; and if this contention were supported by the evidence, it would undoubtedly be a good answer to the claim now presented. But, upon an examination of the evidence, we fail to find any proof that, the contract was an entire one. On the contrary, it seems that these goods were ordered upon different days and delivered upon different days; and that the goods which were not delivered were not ordered by the deceased at all, but were ordered on the second of May by the woman with whom he was living in this apartment, and who had been with him at the time the orders for the other goods were given. The only portion of the goods ordered upon any one day and not actually delivered, was a mat which was taken to the premises and brought back again by the messenger. As for the goods which were ordered on the second of May, if they had been delivered after his death at these premises, it is exceedingly doubtful whether any recovery could have been had for them, because there is no proof that they were ordered by Adamson, or with his consent. There is, therefore, no ground for the claim that the contract was an entire contract.

It is also urged that the plaintiff’s alleged contract is void under the Statute of Frauds; that the value or price of the goods was more than fifty dollars, and there being never a complete delivery and acceptance of all the goods, and nothing paid on account, and no agreement, note or memorandum in writing subscribed by the deceased or his agent, the statute applies. But in considering the elements necessary to take a transaction of this kind out of the Statute of Frauds, the learned counsel has omitted one important factor. The statute (2 K. S. 136, § 3) reads : “ Every contract for the sale of any goods, chattels or things in action for the price of fifty dollars or more, shall be void * * * 2 unless the buyer shall accept and receive part of such goods, or the evidences, or some of them, of such things in action.” Now, in the case at bar, the greater part of the things sold had been delivered and accepted by Adamson before his death, which clearly took the case out of the Statute of Frauds.

The point is further raised that the plaintiff elected to treat the contract as rescinded; that he made no efforts to enforce the contract, no demand of payment, no option was given to the intestate’s representative, and that neither the defendant nor her intestate were ever put in default in any way.

It appeared that a demand of payment was made when the plaintiff presented his claim against the estate, and that this was the proper way for the plaintiff to begin proceedings for the enforcement of his contract after the death of Adamson. The taking of possession of the goods and the removal of such as were removed by the plaintiff after the death of Adamson, was undoubtedly a trespass. He had no power to rescind the contract, and when he was charged for the full purchase price of those goods, he received some just.punishment for his temerity.

The points presented for onr consideration do not seem to have been well taken, and the judgment and order appealed from should be affirmed, with costs.

Follett and Parker, JJ., concurred.

Judgment and order affirmed, with costs.


author: Van Brunt, P. J.:

text:
    The People of the State of New York ex rel. Robert Taggart, Appellant, v. Theodore W. Myers, as Comptroller of the City of New York, Respondent.

      Award f'or street opening in the city of New Yorh— occupation of the premises by the owner until the payment of the clward — claim of the city to deduct rent.

    The fact that the owner of premises acquired for a street opening in the city of New York remained in occupation (after notification by a collector of the department of the city revenue that the bureau for the collection of city revenue had fixed a certain rent upon the premises), from the date of the order confirming1 the report of the commissioners of estimate and assessment to the date when the city comptroller was prepared to pay awards, up to which time the city had not taken, or sought to take, possession of the premises, does not entitle the comptroller to retain from the payment of such owner’s award rent for such period of occupation.
    The city has no power to take possession of premises, the title to which has been acquired in proceedings for the opening of a street, for the purpose of renting them.
    Appeal by the relator, Robert Taggart, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 22d day of July, 1893, denying the relator’s application for a peremptory writ of mandamus.

      James A. Deering, for the appellant.

      T. Oonnok/, for the respondent.
   Van Brunt, P. J.:

This was an application for a peremptory writ of mandamus to compel the respondent to pay the relator the sum of $380, the balance of an award made to liim for the opening of Bethune street from Greenwich to Hudson, which was retained by the respondent as rent of premises occupied by the relator. The order confirming the report of the commissioners of estimate and assessment was entered on the 6th day of December, 1892, and the report of the referee awarded to the relator for the lot and building known as 593 Hudson street, occupied by him, the sum of $16,797.75. The comptroller was not prepared to make payment until April 1,1893; and on that day, when the relator went to the comptroller’s office to receive his money, the comptroller presented a claim and demanded payment or the right to retain from the award the sum of $380 for rent of the premises from the date of the order confirming the report to April first, the date of payment. The relator disputed the legality of the claim, and upon the comptroller refusing to pay the whole award, accepted the balance of the award, leaving the amount in question to be determined upon a proper application to compel its payment. The relator remained in possession of the pi’emises until the award was paid. The improvement upon the street was not commenced until after the first of April, the date when the payment was made, and the last day for which the city seeks to charge the relator rent. ,

Upon these facts the relator applied to the court for a writ of mandamus, and as an answer thereto the respondent presented the affidavit of one Rapp, who swore that he was one of the collectors employed by the department of city revenue of the city of New York, and that on the day of the confirmation of the report, in pursuance of instructions received by him, he called at the relator’s place of business, and had a conversation with his son, who was the general overseer and superintendent of his father’s business. Rapp further averred that he informed the son that he called for the purpose of notifying him that the city had acquired title to said property, and was vn full possession thereof, and also that the bureau for the collection of city revenue had fixed the rent of the premises occupied by the relator at $100 a month. Rapp further averred that the son stated that he was acquainted with the fact that the city had acquired title to the premises, but he did not think his father was under any obligation to pay the rent demanded until the award made to him had been paid. Rapp further averred that the son was fully advised by bim that it was tbe intention of the mayor, etc., to take immediate possession of said premises, and the notification was given by deponent to said Taggart as an indication upon the part of the city that it did by an affirmative act acquire possession of the premises, and also that it was its intention to collect rent for the same in case the relator desired to remain in possession.

Rapp further averred that the son stated that his father would have to stay, as it was impossible for him to evacuate the premises, etc.

Upon this affidavit the court denied the motion for a mandamus.

It is difficult to see upon what theory the corporation of the city of New York can claim rent for the premises in question. In the affidavit of the affiant Rapp there is not the slightest authority shown from any person having the right to give such authority for his rnaking the visit which he did. And his affidavit is as inconsistent in its statements as it is defective in its law. In one part of his affidavit he states that he notified the relator’s son that the city was in full possession of the premises, and in another that it was the intention of the mayor, etc., to take immediate possession of said premises.

The fact is apparent that the city was not in possession at all, and took no steps whatever to acquire possession. Now, the corporation was only authorized to take possession of this property at this time for the purpose of proceeding with the improvement. (Hamersley v. The Mayor, 56 N. Y. 534; Detmold v. Drake, 46 id. 318.) It had no power to take possession for the purpose of renting. In fact there is no evidence that it ever did take possession for that purpose, or that it ever attempted to do so.

The department of the city which is charged with the duty of making this improvement is the department of public works and not the comptroller; and the comptroller had no more authority to take possession of these premises on behalf of the city than the corporation counsel would have had. He is not clothed with any such duty and could confer no such authority. Indeed, it may be said that if the comptroller had authority, the affidavit of Rapp contains no statement that he. went by authority of the comptroller.

It seems to be clear, therefore, that even if this son could bind his father as a tenant of the city, in respect to which there is not the slightest evidence (although this man Rapp attempts to swear to that fact also, but it is evident that he had no knowledge on the subject, but was simply swearing to the results of his own imagination), the facts and fancies set out in Rapp’s affidavit do not constitute the shadow of a defense to the claim presented by the relator, and he should have had the relief asked for.

The order appealed from should be reversed, with costs, and the motion for mandamus granted, with costs.

Parker, J., concurred.

Order reversed, with costs, and the motion for mandamus granted, with costs.


text:
    Felice Tocci, Appellant, v. The Mayor, etc., of the City of New York, The New York and Harlem Railroad Company and The New York Central and Hudson River Railroad Company, Respondents.

      Constitutionality of chapter 339 of the Latos of 1892 — contribution of money by the city of Sew York to the expense of elevating railroad tracks.

    The provision of chapter 339 of the Laws of 1892, which imposes upon the city of New York the payment to the New York and Harlem and the New York Central and Hudson River railroad companies of one-half the expense of the Dark Avenue and Harlem River improvement, including the elevation of the railroad tracks and the restoration to public use of cross streets thereunder, is not obnoxious to the provision of the Constitution of the State of New York (Art. 8, § 11), providing that no city shall thereafter give any money or property, or loan its money or credit to or in aid of any individual, association or corporation; nor shall any such city be allowed to incur any indebtedness except for city purposes.

      So held, upon the facts appearing upon an appeal from an order denying an injunction pendente lite in an action brought by a taxpayer to restrain the payment by the city of New York to the New York and Harlem and the New York Central and Hudson River railroad companies, of certain 'moneys under the provisions of said chapter 339 of the Laws of 1892.
    Appeal by the plaintiff, Felice Tocci, from au order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the city and county of New York on tlie 15th day of September, 1893, denying the plaintiff’s motion for an injunction pendente lite.

      A. Reyna/ud, for the appellant.

      Frank Loomis, for the respondents, the New York and Harlem Railroad Company and New York Central and Hudson River Railroad Company.

      O. L. Sterling, of counsel for respondent, the mayor, etc.
   Yan Brunt, P. J.:

This action is brought by a taxpayer to restrain the city officials from paying to the railroad companies, defendants, certain moneys under the provisions of chapter 339 of the Laws of 1892, upon the ground that it imposes- upon the city a contribution to the private railroad structure belonging to the defendant railroad companies, and is, therefore, unconstitutional. Hpon the application for an injuncticmgpmdente lite affidavits were submitted upon both sides, and certain material facts controverted in those affidavits. In cases of this description it is much better practice where the right to a preliminary injunction has been denied, and there are disputed questions of fact, that the party should go to trial and settle the facts, and there determine the question as to the right to an injunction, rather than to attempt to procure a decision of the General Term upon a state of facts which may be entirely changed upon the trial, and unless a very clear case is made by facts which could not be found to be different upon the trial such an order should be affirmed.

In the case at bar upon an examination of the papers upon which this application was founded, and the answers thereto, it seems to us that there is no possible reason for our interference with the court below. The whole fallacy of the plaintiff’s action is the assumption that the contribution of money by the mayor, aldermen and commonalty of the city of New York to the enterprise in question is a contribution to a private use. On the contrary, it would appear that it is a payment upon the part of the city for benefits and privileges received; and with the question as to whether the city has paid a high or low rate for what it has acquired we have nothing to do.

It appears tliat the defendants, railroad companies, were, prior to 1872, the owners of and operating on Fourth avenue, in the city of New York, steam railroads from Forty-fifth street up to and across the Harlem river. In 1872 an act was passed giving the New York and Harlem Railroad Company a statutory grade between Forty-fifth street and the Harlem river, an increased width of depressed roadway, and where the said roadway was to be in tunnel giving to the city and the people the full width of Fourth avenue between Fifty-sixth and Ninety-sixth streets. Between Ninety-sixth street and Harlem river, the railroad structure was to be upon a viaduct and in a out inclosed by sidewalls with undercrossings between One Hundred and Second and One Hundred and Thirteenth streets inclusive, and overcrossings from One Hundred and Nineteenth street to One Hundred and Twenty-ninth street inclusive. The said railroads crossed and were to cross the Harlem river slightly above high-water mark. By this act the railroad companies were given the exclusive use and occupation of said road, and persons were prohibited from entering or passing upon the same, or any portion thereof under a penalty. In 1890 an act of Congress was passed providing that the Secretary of War should cause the low bridges then crossing the Harlem river to be replaced by other bridges at the expense of the owners thereof as soon as the necessary legislation, if such legislation were necessary, should enable the change in grade to the approaches of said bridges to be made, the owners of said bridges to be allowed a reasonable time in which to complete the work necessary for such bridges, and said bridges to have a clear space between the under side thereof and the high Avater of spring-tides of twenty-four feet.

To enable the railroad companies to comply Avith the act of Congress all that Avould have been necessary to be done, was to change the grade from One Hundred and Twenty-fifth street to the Harlem river, which would have been much less expensive to the companies than the plan hereinafter mentioned, provided for by the act of 1892. But had this method been adopted, no part of Park avenue would have been returned to public use, and it would not have permitted the free and unobstructed passage of the intersecting streets from one side of the city to the other.

In 1892, in order to enable the said railroad companies to comply witli the requirements of the act of Congress, the Legislature passed an act changing the grade of the road from One Hundred and Sixth street to and over the Harlem river to One Hundred and Forty-ninth street, making in the act various requirements in respect to the plans, specifications and estimates for said work, and to the method in which the work should be done. The act further provided that when the plans, specifications and estimates should be made and filed as therein required, the expense and cost of the improvement should be borne and paid by the defendant, the New York and Harlem Railroad Company, or its lessee, the New York Central and Hudson River Railroad Company, and the mayor, aider-men and commonalty of the city of New York, in equal proportions as the construction of the said improvement progressed. The act farther provided that when and as often as it should appear by the certificate of the superintending engineer of the work of said improvement, duly certified by a board provided to be appointed by said act, that the sum of $25,000 had been expended thereon by either of said railroad companies, specifying the portions and divisions of said improvement where the said expenditure had been made, the comptroller of tlie city of New York should draw his warrant, etc., for one-half of the same. The act further provided that in no event should the proportion of the cost of said improvement to be paid by the city of New York exceed the sum of $750,000, and that if the cost of said improvement should exceed the sum of $1,500,000, then the entire cost over and above such sum should be borne and paid for by said.railroad companies. And, further, that said improvement structure and bridge should be exclusively for the uses and purposes of tlie railroad, companies, and it should not be lawful for any person or persons other than a public officer'in the execution of his duty as such, with his agents and assistants, to enter and pass upon or through the same, or any portion thereof, on foot or in any other way than in the proper cars of such corporation provided for such purpose, with the consent of such corporation, under the penalty of a fine, this provision being the same as that contained in the act of 1872.

It is urged upon the part of the appellant that the contribution1 imposed upon the city by the statute of one-half the cost of the: ■structure from One Hundred and Sixth street to the river, declared to be exclusively for the uses and purposes of a private railroad •company, is illegal and in violation of the Constitution. And our attention is called to the provision of the Constitution which, so far as it is applicable to the question now before the court is as follows: “No * * * city * * * ' shall hereafter give any money or property, or loan its money or credit, to or in aid of any individual, association or corporation, * * * nor shall any such * * * .city * * * be allowed to incur any indebtedness except for * * * city * * purposes.”

The argument of the counsel for the appellant is that the statute under consideration provides that the city shall contribute practically to two material works: First, the construction of a railroad structure, which is expressly stated to be exclusively for the use of the defendant company, that is, the New York and Harlem or the New York Central and Hudson River Railroad Company, and, secondly, the filling in, regulating and paving under that structure of some space and street crossings from One Hundred and Fifteenth street to One Hundred and Thirty-third street, and making the same part of the public avenue; and that if the second purpose is not within the prohibition of the Constitution, yet if it has been so inextricably mixed in the statute with the first purpose, which is within :such prohibition, that it is inseparable, and the entire provision is vitiated. It is further urged that in the case at bar, however, the purposes and objects are not so mixed as to defy judicial discrimination, either in principle or in fact, and, therefore, the unlawful can and must be set aside; for the provision, so far as it prescribes the contribution to the ostensible public work of filling in, regulating, etc., •can be readily separated from the part imposing upon the city the payment of one-lialf the cost of the private railroad structure declared to be for the railroad’s exclusive use and purpose.

We think, however, that in this statement of propositions the -essential features of the improvement are lost sight of by the appellant. It is undoubtedly true that the expense attendant upon the opening, filling in, regulating and paving of Park avenue, released by tlié elevation of the defendant’s railroad tracks, can be separated from the expense of building such elevated tracks. But this is by no means the whole of the improvement, nor is it the part of the improvement in which the city is most largely interested. These railroad companies were in exclusive occupation of a part of the public streets of the city of New York. It was deemed by the Legislature advantageous to the city of New York that such occupation should cease, and that these portions of the streets should be restored to public use, and that the interruption of communication between the two sides of the city should terminate ; and they considered that the advantages to be derived from these changes and the others to be made by the railroad companies, which the Legislature had no power whatever to enforce upon said companies, were of sufficient importance to the city of New York to justify its payment of one-half of the expense of the improvement up to $750,000. It is entirely • immaterial in the consideration of this question whether the railroad ■company owned the fee of the land which they occupied or not. For all practical purposes they were its absolute owners, and entitled to its absolute control and exclusive use for the purposes of their railroads. It was for the abandonment of these rights, and the expense of other constructions in their stead, that the city was authorized to make the payments provided for by the act.

The provision of the act, in regard to the payments to bo made, that the certificate of the superintending engineer of the work of the improvement should specify the portions and divisions of said improvement where said expenditures had been made, was simply a method of determining as to how much money, under the provisions of the act, the city at any one time could be called upon to pay towards the improvement.

It was a matter of considerable moment to the city of New York as to whether unobstructed communication should be had between the different sides of the city from One Hundred and Fifteenth ■street to the Harlem river. The improvement was but one work. There were different things to be done in carrying out its design. But merely because a portion of the improvement required either the removal or the bringing upon the ground of earthy material, and another portion required the bringing upon the ground and the erection of iron structures, by no means segregated the parts of the improvement. They were, each and every of them, necessary parts of one design. The elevation of tracks, and the improving of the street were parts of the same work; and it is to this one work that the city contributes. Even though the claim that the city contributes to the private structure of the railroad were true, if in consideration of such contribution the railroad surrenders rights which it had to public streets and avenues, and the Legislature chose to permit the city to buy out such rights by contributing to the expenses incurred because of such surrender, we see no possible constitutional objection thereto. It is merely paying a consideration for substantial advantages supposed to be gained. And we have nothing to do with the question whether the Legislature directed the city to pay a high or low price for the privileges which it acquired, or made an improvident bargain thereof, if their value is of such a character that an absolute gift cannot be inferred.

Now, it is conceded by the argument upon the part of the appellant that the acquisition of the streets occupied by the railroad companies and the establishment of uninterrupted communication between the two sides of the city are matters of great value, but, it is contended, not of the value which the Legislature directed the city to pay. Into this inquiry we cannot enter.

It is further urged upon the part of the appellant that, while the act is substantially granting a new franchise and use to these railroads, it contains no provision for a conveyance by the roads to the city or even a quit-claim deed or release of anything they then owned. Rut this in no manner affects the question. It is undoubtedly true, as was so ably shown by the counsel for the appellant, that the use of the streets by the railroad company, being abandoned because of their right acquired for an elevated railroad, the land in the street formerly occupied by them naturally and legally reverted •to the city for street purposes. The conditions remained the same whether there was a formal release or a release by operation of law. The railroad companies surrendered their rights and accepted anew franchise, and the Legislature authorized the city to pay them not to exceed a certain sum for so doing. As already stated, we see no constitutional objection to such a provision under the circumstances disclosed in the case at bar.

The order should be affirmed, with costs.

Follett and Parker, JJ., concurred.

Order affirmed, with costs.


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    Peter Naylor and Benjamin Haxtun, Individually and as Trustees under the Will of Peter Naylor, Deceased, Respondents, v. Elizabeth N. Gale, Appellant, Impleaded with Others.

      Testamentary trustees — commissions — at what time finally determined.

    The commissions of testamentary trustees are governed by the law in force at the time of the settlement of their accounts, notwithstanding the services may have been performed prior to the enactment of such law.
    At the time of the settlement of the accounts of two testamentary trustees of an estate amounting to over $100,000, chapter 636 of the Laws of 1892, amending section 2736 of the Code of Civil Procedure, was in force, providing that: “Where the value of the personal estate of the decedent amounts to $100,000, or more, over all his debts, each executor or administrator is entitled to the full compensation on principal and income, allowed by law to a sole executor or administrator, unless there are more than three.” The accounting went back to December, 1883.

      Held, that the law of 1892, in force at the time of the accounting, enlarged the trustees' right to commissions as to income received and disbursed prior to its enactment, and, hence, that each of the two trustees was entitled to full commissions on income, for the entire period covered by the accounting;

      Semble, that the law existing at the time of each annual rest does not finally determine the right of the trustees to commissions for that year.

      Samge v. Sherman (24 Hun, 307; 87 N. Y. 283), followed.
    • Semble, that questions as to the validity of the trust cannot be considered in an action brought simply to pass the accounts of trustees under a will.
    Appeal by the defendant, Elizabeth N. Gale, from portions of a judgment of the Supreme Court, rendered at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 8th day of June, 1893, confirming the report of a referee.
    Chapter 636 of the Laws of 1892, approved May 16, 1892, is as follows: “ Section 1. Section 2736 of the Code of Civil Procedure is hereby amended so as to read as follows: § 2736. Where the value of the personal estate of the decedent amounts to one hundred thousand dollai-s, or more, over all his debts, each executor or administrator is entitled to the full compensation on principal and income, allowed by law to a sole executor or administrator, unless there are more than three, in which case the compensation to which three would be entitled, shall be apportioned among them according- to the services rendered by them respectively; and a like apportionment shall be made in all cases where there shall be more than one executor or administrator.”
    (Section 2736 of the Code has been repealed since the accounting in suit, by chapter 686 of the Laws of 1893, and its provisions incorporated in section 2730.)
    By section 2811 of the Code, section 2736 was declared to apply to and regulate the like matters, where a testamentary trustee accounted'
    The trust estate in suit consisted of personal property amounting to more than $100,000.

      Eustace Comoanj, for the appellant.

      Treadwell Cleveland, for the respondents.
   Yan Brunt, P. J.:

This action was brought for the settlement of the accounts of the plaintiffs as trustees of Peter Naylor, deceased, for the period since December 7,1883-, to which date their accounts had been heretofore judicially settled, and to obtain the acceptance of the resignation and discharge of the plaintiffs as trustees of said trust.

There is no dispute made as to the correctness of the accounts submitted by the trustees. But exception is taken to the allowance by the referee to each of the trustees of full commissions on income computed as upon annual accountings. And it is also contended that the respondents are not trustees of the appellant, and are, therefore, not entitled to any commissions whatever.

The questions sought to be raised as to the validity of the trust cannot be considered in this proceeding, as the action was simply brought to pass the accounts of the plaintiffs under the will in question. And it would be sufficient, if there were no other reason to dispose of the right of the appellant to question the validity of the trust, to say that no such issue is presented upon the papers before us. But we do not by any means intend to hold that, had the appellant attempted to raise such an issue, it could have been done in this action.

The only question, therefore, to be considered is whether the referee erred in holding that each of the plaintiffs is entitled,as trustee to full commissions on income computed as upon'annual accountings.

It is admitted tliat were it not for tlie law of 1892 the plaintiffs would have been entitled to but one commission, and the question presented is whether by the law of 1892 their claim has been enlarged as to income received and disbursed prior to that time. As already suggested, the accounting in this action goes back to December, 1883. If the question were an open one, in view of the fact that trustees, unlike executors, have a right to deduct for their compensation full commissions on the income actually received before paying it over (Matter of Mason, 98 N. Y. 527 ; Matter of Selleck, 111 id. 284), and that this right accrues annually, I should incline to> the opinion that the law, which existed at the time their right accrued, namely, at the end of each year, should govern the right of the trustees to commissions for that year.

It is true that in the case of executors it has been frequently held that the law existing at the time of the passage of their accounts is the statute which governs in respect to their compensation, upon the ground that an executor is not entitled to any compensation until the final execution of the duties imposed upon him. And hence no right to commissions accrues until the settlement and passage of his accounts, and such is the rule laid down in the case of Dakin v. Demming (6 Paige, 95), and since followed. But, as already observed in the case of a trustee in respect to income, his right to commissions accrues annually, and he has a right annually to collect the same ; therefore, it would seem that his claim for commissions accrues at the end of each year.

But we think that the Court of Appeals, in the case of Savage v. Sherman (87 N. Y. 283), has established a different rule, and made the rights of trustees in this respect exactly similar to those of executors. In that case, in the court below (24 Hun, 307), it was held that the commissions of trustees were to be governed by the law in force at the time of the settlement of their accounts ; and this rule was distinctly approved.

It follows, therefore, that the referee was correct, and that the. judgment should be affirmed, with costs.

Pollett and Parker, JJ., concurred.

Judgment affirmed, with costs.