text:
    FREDERICK W. MUSER, et al., Respondents, v. JOSEPH LEWIS, Impleaded, &c., Appellant.

      Decided June 26, 1884.

      Husband and wife—Liability of husband, for torts committed by wife.

    The common law respecting the liability of a husband to answer in damage for torts committed by his wife, still prevails, and is substantially in force.
    The statutes of this state authorizing a married woman to hold and manage an estate separate from her husband, and to carry on a sole and separate business, and receive-her profits and earnings therefrom, and to sue and be sued in regard to such estate and business, have not changed the common law in this respect, except in regard to torts committed by her in the management or control of her separate property.
    Where a wife carries on a separate legitimate business, and during the time is guilty of conversion in receiving stolen goods, the husband is liable to answer in damages. A married woman cannot carry on a busi ness of receiving stolen goods, and such goods do not become her property, for the title always remains in the person from whom they were stolen, and consequently this tort of the wife does not relate to, nor is it consequent upon the management or control of her separate property.
    Gerald «. Quam, 10 Abb. N. 0. 28, criticised.
    Partial satisfaction or payment of damages by one tort-feasor,—e. g., in an action for conversion,—inures to the benefit of other joint tort-feasors not as matter of defense, but by lessening the measure of damages.
    Before Sedgwick, Ch. J., and Ingraham, J
    Appeal by defendant Joseph Lewis from a judgment entered upon a verdict in favor of plaintiffs.
    Action for tort of wife in which the husband was joined as party defendant.
    At the close of the case a motion was made on behalf of the appellant, to dismiss the complaint as to him, substantially upon the following grounds: .1st. That there was no evidence in the case connecting him personally, with any of the tortious acts. 2d. That the defendant Mrs.Lewis, the wife of appellant, had used her separate means and estate in the transactions, and the same were the results of her separate business, and that her husband the appellant had no interest therein, nor connection therewith. The motion'was denied by the court upon the ground that the husband was liable for the tort thus committed by his wife to which exception was taken.
    Further facts appear in the opinion.

      David Leventritt, for appellant.
    I. The common law rule respecting the liability of the husband no longer prevails. Prior to the Code of Civil Procedure it was imperative to join the husband as a defendant with the wife in an action for her personal torts, so long as the relation of the husband and wife continued ; but the necessity of such joinder was not because he was liable. Mr. Bishop, in his work on “ The Law of Married Women,” says: “ It is not true, speaking accurately and scientifically, that the husband is liable for the torts of his wife. For example, if she commits a tort and dies before suit brought, he cannot be sued for it, and is in no way responsible. On the other hand, if he dies, she may then be sued alone, the same as though she had been discovert when* the tort was committed. If during their joint lives an action is- brought against the two, and he dies pending suit, the action survives against the wife. The liability, therefore, of the husband, for the wife’s torts, grows merely out of the fact, that, by the rules of the common law, a suit cannot be maintained against a wife alone during coverture, and if the two could not be sued together, the party suffering the injury would be without remedy” (2 Bishop Married Women, § 254; to similar effect see Cooley Torts, 115 ; Capel v. Powell, 17 C. B. N. S. 743; Larkin v. Marshall, 4 Exch. R. 805 ; Newton v. Boodle, 9 Q. B. 948 ; Kowing v. Manly, 49 N. Y. 192). The reason of the rule ceasing to exist by the provisions of the Code of Civil Procedure (§ 450) the rule- itself is abrogated.
    II. The husband is not liable for the torts of his wife (Gerald v. Quam, 10 Abb. N. C. 28 ; Trebing v. Vetter, reported in note, 12 ld. 302; Muser v. Miller, 12 ld. 305). The English courts under a somewhat similar provision to our own have reached the conclusion that the mere existence of the marital relation does not require the husband to be joined as a party with his wife in an action or proceeding which, were she sole, might be brought by or against her (Re Outwin’s Trusts, 48 Law Times, R. N. S. 410 ; James v. Barrand, 31 Weekly Rep. 786; Abonloff v. Oppenheimer [Q. B. Div.], 30 Id. 429 ; Re Fisher’s Trusts, 30 Id. 56 ; Goods of Ayres, 31 Id. 660). In Baum v. Mullen, (47 N. Y. 577), Chief Justice Church adopts this language: “The only question presented for our decision is whether the joinder of the husband with the wife is necessary, in an action for fraud in a contract for sale of the real estate of the latter made by the former as the agent of the wife. We are of opinion that such joinder is not necessary.” To same effect, Rowe v. Smith (45 N. Y. 230); Fiske v. Bailey (51 Id. 150); Vanneman. v. Powers (56 Id. 39); Peak v. Lemon (1 Lans. 295); Gillies v. Lent (2 Abb. Pr. [N. S.] 455) ; Lansing v. Holdridge (58 How. 449). Now, in the case under consideration, it appears that the transactions were had by the wife, Mrs. Lewis, without the knowledge or participation of her husband, the appellant, that she carried on a separate- business, made purchases and sales for her own account, her separate means were invested in the transaction with Madden, and from them, she alone reaped the benefit. She thus had a separate estate—to wit: the moneys invested and subsequently the property acquired through such investment, and the tort was committed in the prosecution of her separate business, and for her exclusive gain, and thus this action clearly affected her separate property. What force is given to section 450 of the Code of Civil Procedure, if the husband is properly joined in this action % Even if the motion to dismiss as to the appellant was properly denied, it was error to refuse the request to charge “ that if the jury believe Mrs. Lewis’ testimony to the effect that her own individual money only was invested in the transactions, and that she alone received the benefit of them, that no verdict can be rendered against her husband,” and the exception thereto was well taken, as also the exception to the statement made by the learned court to the jury “ that if they believe the testimony of Madden, they will find a verdict against Mrs. Lewis and her husband.” ■ •
    - III. Partial satisfaction by one enures to the benefit of other joint tort-feasors (Knapp v. Roche, 18 Week. Dig. 324 ; Bush v. Prosser, 11 N. Y. 347 ; Wilmarth v. Babcock, 2 Hill, 194). Evidence óf satisfaction, in whole or in part by one joint tort-feasor, of the damages occasioned by the joint wrongful act of both, is proper in mitigation of damages (Knapp v. Roche, supra). Satisfaction by one joint tort-feasor has always been held to be available as a bar to an action against another (Livingston v. Bishop, 1 Johns. 291 ; Thomas v. Rumsey, 6 Id. 31; Bronson v. Fitzhugh, 1 Hill, 185 ; Knickerbocker v. Hawes, 8 Cow. 111; Brown v. Kinchelse, 3 Cold. 192; Merchants’ Bank v. Curtis, 37 Barb. 317 ; Ruhle v. Turner, 2 H. & N. 38; Robertson v. Smith, 18 Johns. 481 ; Pearce v. Pearce, 25 Barb. 243; Pouting v. Watson, 32 Eng. L. & E. 116; Barrett v. Third Avenue R. R. Co., 45 N. Y. 628; Woods v. Pangburn, 75ld. 495).

      D. M. Porter, for respondents.
    I. In case the wife is the sole offender in committing the criminal act, the husband must be sued jointly for the damages arising therefrom (Horton v. Payne, 27 How. 374; Tait v. Culbertson, 57 Barb. 9; Wagener v. Bill, 19 Id. 321). The authority given to a married woman to carry on a sole and separate business, and to have her earnings in such separate business, leaves the other common law inabilities in existence (Coleman v. Burr, 93 N. Y. 17).
    The common law liability of the husband for the wife’s crimes continues in full force (Bertles v. Nunan, 92 N. Y. 152).
    In Dimelon v. Rosenfeld (N. Y. Daily Register, June 29, 1878, page 1241), Chief Justice Sedgwick rendered the following opinion : “ Although I believe the learned counsel has stated correctly the reasons of the husband being joined as a party in an action against his wife for her separate tort, nevertheless in case of judgment against them, he has to make satisfaction by his body or property. This was true, whether or not the wife has brought to the husband any property, so that practically the plaintiff has the right to resort to the husband’s property or body for his wife’s tort. I am not convinced that this right has been destroyed by the effect of recent legislation as to married women. If this be right, it may properly be enforced against the husband by joining him as a party with his wife. Section 450 does not forbid the joining of any party as defendant with a married woman in a proper case.” See also Berrien v. Steel (1 Civ. Pro. R. 279 ; Fitzsimons v. Harrington, Id. 360 ; Hoffman v. Lachman, ld. 278).
    In the case at bar, Mrs. Lewis was perpetrating a felony and not carrying on any separate business. She was receiving the goods, knowing them to be stolen, consequently her husband is liable for this tort, because she never acquired title to the property in question, not even a color-able one, inasmuch as the whole transaction was a felony, and even without the testimony of Madden that she received the laces, knowing that they were wrongfully obtained, the fact (which is uncontradicted) that she bought them for one-eighth of their value, and the numerous lots which she herself testifies she obtained from Madden, constituted receiving stolen goods for which she might have been convicted (Copperman v. People, 56 N. Y. 591; People v. Cochrane, 1 Wheeler Cr. C. 81 [84] ; People v. Teal, Id. 199 [201]).
    The other cases were decided before Bertles v. Nunan (supra), and are, where the wife had lawfully acquired title to the property, and some injury was done with, by, or by reason of, it; but a married woman cannot carry on a separate business of receiving stolen goods, nor is the fact she used her own money as a means to induce the thief to deliver the goods to her, of any more force than if she had used her own axe to cut the plaintiff’s hand off. She could acquire no title to the plaintiff’s property by her procedure ; it could neither be absorbed into nor benefit her separate estate, consequently, in the commission of such a crime, she made her husband liable. No one can acquire title to goods through the commission of a theft or by receiving stolen goods (Hoffman v. Carow, 20 Wend. 21; 22 Id. 285; Conlan v. Latting, 3 E. D. S. 353 ; Brower v. Peabody, 13 N. Y. 121).
    II. No demand for the goods was necessary. 1st. Because they were received from the thief, knowing that they were stolen, the evidence on that subject being uncontradicted (Pease v. Smith, 61 N. Y. 477 ; Glassner v. Wheaton, 2 E. D. S. 352). 2d. Because the goods had been delivered to Mrs. Miller, and the demand would have been idle. After actual conversion no demand is necessary (Glassner v. Wheaton, 2 E. D. S. 352 [354]; Vincent v. Conklin, 1 ld, 203 [212]; Sharp v. Whipple, 1 Bosw. 557).
   By the Court.—Sedgwick, Ch. J.

The action was substantially for the conversion of plaintiff’s personal property. The appellant was impleaded with other defendants in said action, and Fanny Lewis, one of the defendants so impleaded, is the appellant’s wife. The proof showed that she was guilty of the actual conversion, and her husband, the appellant, did not participate in it. The claim against him was grounded on the proposition that he was liable in damages for his wife’s tort.

The testimony showed that a clerk of the plaintiffs’ stole from them, through a long, time, a great quantity of laces, and from time to time sold them in parcels to the appellant’s wife. The verdict was not taken as to whether she knew that they had been stolen.

In Baum v. Mullen (47 N. Y. 579), the court declared that the statutes in reference to married women, had not altered the common-law liability of the husband for the personal tort, of his wife, but that such rule was changed by the statutes of 1860, chapter 90, and 1862, chapter 172, when such torts are committed in the management and control of her separate property. In Rowe v. Smith (45 N. Y. 233), Judge Andrews said, referring to these statutes, that “ they leave unaffected, this liability for the strictly personal torts of the wife.”

Both of these cases were directed to the necessity of joining the husband as defendant with the wife, in a charge of tort done by her. In the first case the tort was obtaining money by false representations of the agent of the wife, in contracting for the sale of her separate property, she receiving the money. The court said that the statutes of 1860 and 1862 provide that “ the wife may sue and be sued in all matters having relation to her.sole and separate property,” and further that the action was clearly for “ matters having relation to her sole and separate property.” The matters related “ to the management and disposition of her property.”

In the second case, the action was for damages to the plaintiff by the escape of the cattle of the defendant from land which was her separate property, and their trespassing upon defendant’s land. The court said that the action was founded upon the duty of the owner of land to keep domestic animals from straying upon and injuring the premises of other’s, Such a duty had relation to the property that might be owned solely by a married woman, and that therefore, under the statutes of 1860 and 1862, she might be sued in the same manner as if she were sole.

Neither of the cited cases will support the present recovery, if the tort done by the appellant’s wife related to her sole or separate property. On the other hand, if the tort did not relate to the wife’s property, the principles stated in the cases make the appellant liable.

If the terms of the statutes are not to be enlarged by construction, for the reason that their meaning is clear without it, it would seem to be certain that the title to the goods always remained in the plaintiffs, and that they never became the property of appellant’s wife. Therefore the tort did not relate to the wife’s separate property. If it be supposed that the wife did gain a property of some kind by the transaction, the tort was a separated matter from that which had the appearance of conferring title, and had no essential connection with it, and so the tort was personal to the wife, as distinguished from one relating to her property.

A reference to another part of the statutes should be made. Section 2 of the Laws of 1860, chapter 90, provides that a married woman may carry on any trade or business, and perform any labor or services on her sole and separate account. Coleman v. Burr (93 N. Y. 17), shows that the generality of the clause as to services should be restrained, so that it does not include services done by the wife, for her husband and the family. The ground of the decision was that the objects which were to be obtained by the statutes, and the mischiefs which they were intended to remedy, suggested that there should be such a restriction, also considering that the common or former law remains, excepting to the extent it is clearly annulled by a subsequent statute (Bertles v. Nunan, 92 N. Y. 152). In like manner, it may be said as to the power of a married woman to carry on any trade or business, on her own account, that it was not intended to embrace a personal tort that had no real connection with trading or carrying on a business. In a sense, it is an anomaly, in view of the real independence personally of a wife, that her husband should be liable for her tort of which he. may know nothing, when and where and how it was done. The hardship is not increased by his being liable for a tort, the time of which is within the hours a wife may chose as the time when she says she is transacting her business, and at the place where her business is done, and it has but a circumstantial, but no real connection with buying or acquiring.

Several parts of the statutes indicate that they do not contemplate a sole liability of the wife for a tort, incidentally committed by her, when she was carrying on a separate business.

The first section of chapter 90, Laws of 1860, provides that the property which any married woman acquires by her business carried on, on her separate account, shall be her separate property. Section 2 is, the earnings from her trade shall be her separate property. Section 8 provides that no bargain or contract entered into by any married woman, in or about the carrying on of any trade or business, shall be binding upon her husband, or render him or his property in any way liable therefor. It will be observed that no reference is made to the' wife’s torts. In view of these enactments, section 7 states when a married woman may be sued in the same manner as if she were sole. It is not declared that she may be sued in matters having relation to her separate business, but in matters having relation to her sole and separate property. It has been already considered that the tort in question did not relate to her property.

The learned counsel for the appellant presents an argument of weight. It is, that if a married woman may acquire separate property by her own action, as if she were sole, it is not intended that there can be legal power of interference by her husband with any steps she may take to acquire that property, and if there be no power of interference there should be no legal responsibility. This seems to be sufficiently answered by considering that the sole liability of married women is such only as the legislature has seen fit to make, and that, as we have seen, is confined to matters that relate to what is in fact the married woman’s sole property.

The effect of a more recent statute, section 450 of the Code of Civil Procedure, remains to be examined, and particularly with reference to the learned opinion in Gerald v. Quam (10 Abb. N. C. 28). The court in that case thought that the last clause of the"section : “ It is not necessary or” proper to join her husband with her as a party in any action or special proceeding affecting her separate property,” did not imply that it was necessary to join him in other cases, because the previous part of the section declared otherwise, and embraced all actions against married women. But to me, it seems that the first part has no regulation for the bringing of actions, or when or as to what a married woman might be sued as if she were single. It only says that when she is sued, whether on a joint or individual claim against her, her husband should not, as by common law he might, appoint an attorney to appear for her and defend, but she appears sui juris, and defends as if she were not married. If this be correct, it has no bearing upon the implication of the second part of the section.

I am of opinion, therefore, that the appellant was responsible to the plaintiffs. If he were liable, there is no question in the case as to his being made defendant jointly with the wife, against whom an individual liability is claimed. She would be the party to raise that question, and she has not done so.

One other matter demands attention. It appeared by plaintiffs’ case, that after the receiving of the goods by the appellant’s wife, the plaintiffs had recovered certain of the goods, and had also received certain moneys from a Mrs. Miller, in payment of a judgment obtained for the conversion by her of the goods involved in this action, the appellant’s wife having sent the goods to Mrs. Miller. The court refused to charge as requested by the appellant’s counsel, that the jury should deduct from the value of the goods converted the sum paid by Mrs. Miller. This request, I think, should have been granted, under the case of Knapp v. Roche (18 Week. Dig. 324). It was not matter of defense, but concerned the plaintiffs’ proof as to what damage they had in fact suffered.

It is not necessary, however, to order a new trial on this ground: The plaintiff’s proof was that he had received from Mrs. Miller a sum of money, which, with what the -court directed should be deducted for other reasons, amounted to a sum which the defendant’s.counsel claimed in his requests was the sum to be deducted, viz.: $5,200. The requests did not .specifically refer to this sum, but they were based upon the evidence as given by the plaintiffs, and there was no doubt as to this sum being all that was received by plaintiffs. The court instructed the jury to deduct a parcel of this amount, to wit, $2,224.76, but the rest, that is, $2,975.24, should have been deducted. This may now be deducted from the verdict, a a that ascertained the value of the goods, without including interest.

The judgment appealed from should be reversed, unless the plaintiff stipulate that from the amount of the verdict $2,975.24 be deducted, and in case of such stipulation the judgment as so reduced is affirmed, without costs of appeal to either party.

Ingraham, J., concurred in the result.


source: Caselaw Access Project

author: By the Court.—Sedgwick, Ch. J.

license: Public Domain

text:
    HENRY J. GOODWIN, et al., Respondents, v. JULIUS BUNZL, et al., Appellants.

      Undertaking, on appeal—defeats in, hop waived—action on—affirmance as to pa/rt only.—Replevin.

    Though an undertaking on appeal, e. g., in an action of claim and for delivery of personal property, be not sufficient in form to give the appellant a stay of proceedings upon the judgment appealed from, yet as against the sureties executing it, such undertaking may be supported, as any contract, by sufficient consideration, the burden of proving which, in such a case, devolves upon the party seeking to enforce the undertaking.
    A stay of proceedings upon the judgment, on request, is a sufficient consideration to support such an undertaking.
    Where such a defective undertaking is executed and delivered by the sureties for the purpose of obtaining a stay of proceedings, and the attorney for the respondent excepts thereto, and thereafter, at the request of appellant’s attorney withdraws such exception, and the undertaking is duly approved on consent and filed, and the attorney for the respondent relying thereon does not issue execution,—it not appearing that the sureties were informed of or took action upon said exception, they will be held liable on such undertaking.
    In an action of replevin brought against three defendants, two of whom were parties who had assigned in the property in suit, the third being their assignee, the usual alternative judgment for return of possession or payment of value was rendered against the defendants,” whereupon they appealed and filed an undertaking conditioned “ that if said judgment . . . or any part thereof be affirmed .... said appellants will pay the sum recovered or directed to be paid ” thereby. The judgment was affirmed as to the assignors defendants, and reversed as to the assignee, and after a new trial judgment was entered in favor of said assignee.

      Held, that the judgment being really joint and several against the three, when there was an affirmance as to the assignors, the sureties became liable upon the undertaking.

      Decided June 26, 1884.
    Before Sedgwick, Ch. J., and Truax, J.
    Appeal by defendants from judgment entered on verdict of jury against them.
    The action was against the defendants as sureties, on an undertaking given upon an appeal from a judgment in an action of claim and for delivery of personal property.
    The facts appear in the opinion.

      Melville H. Regensberger and Everett P. Wheeler, for appellants.
    The only question in the case, was as to the right of plaintiffs to possess themselves of these chattels, and as to them, the appellate court did not affirm the judgment, but reversed it. It cannot therefore be said, as to these sureties, that their engagement to pay any judgment ever enured to the benefit of the plaintiffs. The main object and purpose of an action to recover a chattel is the chattel itself. The judgment for its value is alternative only, to be paid only in case the chattel itself is adjudged to belong to the plaintiff and cannot be taken by the sheriff (Code Civ. Pro. §§ 1691, 1724; 2 Green. Ev. § 560).
    The order of the appellate court was followed by a new trial, in which the plaintiffs wholly failed to succeed, and there, andón appeal, it was held that the right to the chattels was not-in the plaintiffs but in Wertheimer, the defendant in the replevin suit. It would be gross injustice to compel the sureties to pay to the plaintiffs the value of the chattels, when this court has decided, that they are not entitled to the possession thereof.
    The defects are, that by the provision of section 1335 of the Code of Civil Procedure, the sureties when excepted to, must justify on oath in court, and the appellants’ attorney must serve notice of the allowance of the undertaking on the exceptants, and the failure to justify, has the same effect as though no undertaking had been given.

      By sections 1328 and 1329 of the Code of Civil Procedure, an appeal from a judgment for the recovery of a chattel is not stayed until the appellant gives a written undertaking in a sum fixed by the court below, that the a'ppellants will obey the direction of the appellate court upon the appeal. It, cannot be seriously insisted by the .respondents, that the appellate court would have directed the goods to be delivered to plaintiffs, for their judgment was to the opposite effect. It is sufficient that no directions were made by the appellate court, which the appellants refused to obey. And if it were otherwise, these sureties did not make such an engagement.

      Kelly & McRae, for respondents.
    The sureties chose and executed the undertaking in the form it is, intending it as a good and sufficient undertaking for the purpose of staying execution f it was considered and treated by all parties as fulfilling that purpose, and they are estopped from denying its force or obligation (Harrison v. Wilkin, 62 N. Y. 412 ; Hill v. Burke, 62 Id. 111 ; Wheaton v. Fay, 62 Id. 275; Coleman v. Bean, 3 Keyes, 94 ; Decker v. Judson, 16 N. Y. 439).
    The condition expressly provided for in this undertaking had occurred. The judgment recovered was in the alternative form a money judgment. The evidence shows that the goods replevined were not in existence, had not been recovered by the sheriff, in the execution issued, and had never been delivered to plaintiffs. Consequently, the judgment was enforceable as a money judgment, and as it never had been paid, defendants were liable on their undertaking to pay as they had therein so agreed to do. It makes no difference that the judgment was reversed as to Wertheimer. It was affirmed as to the Goldsmiths, and under the decisions this made the sureties liable (Seacord v. Morgan, 3 Keyes, 636 ; Auerbach v. Marks, 12 Week. Dig. 155).
    There is no force in the contention that because the sureties did not formally justify in court that they are not liable on their undertaking. This was waived by plaintiffs’ counsel at the express request of defendant’s counsel, and, therefore, the sureties cannot take advantage of it (Ballard v. Ballard, 18 N. Y. 491).
   By the Court.—Sedgwick, Ch. J.

The decision of this appeal must rest solely upon the determination of questions of law that are pertinent to exceptions taken upon the trial. There was no request to go to the jury upon an issue of fact. Both sides asked for a direction of a verdict. Although the defendants excepted to the direction that was made in favor of the plaintiff, that exception was not upon the ground that there was a question of fact for the jury, because the defendants contemporaneously demanded a direction in their own favor, which implied that there was no dispute of fact.

What has been said is to be applied to the main point taken by the defendants as to whether the undertaking by the sureties was supported by any legal consideration. They argued that the undertaking was not in the form prescribed by the statute as the one which, when executed by sufficient sureties, gives to the appellant in the action in which the undertaking may be given, a right to a stay of proceedings upon the judgment. It may be assumed that this proposition is correct.' The undertaking, however, may be supported, as any contract may be, by a sufficient consideration, which, when the undertaking is not in due form, it is necessary that the plaintiff in an action upon it must affirmatively prove. Accordingly, the defendants in this action, upon the trial took the position that the plaint? iff had not proved any consideration for the undertaking. In such a case the consideration may, as in any other case, be an inconvenience suffered, or a forbearance of a right to enforce a legal remedy, by a promisee at the request of the promisor. There is no rule of law that requires this to be proved by direct testimony. It may be shown by circumstantial testimony. A stay of proceedings upon a judgment on request is a sufficient consideration (Post v. Doremus, 60 N. Y 376).

In the present case the sureties knew the law on the subject of the stay of proceedings upon judgments after appeal, or were presumed to know it. The only purpose for which they could have made and offered it was to secure to their principal the benefit of a stay. The want of form to comply with the statute was, it is to be presumed, within their knowledge. The respondents, having the power to object to the undertaking and to secure its disapproval, consented that it might be approved as it was ; and their attorney as a witness on the present trial testified that he did not issue any execution, relying on the undertaking. All these facts and the necessary implications from them, tend to show a stay at the request of the defendants. And if they do not incontrovertibly show this, they would prevent a direction for the defendant and would give the defendants the right to go to the jury as to the fact. This right, however, was not, as has. been observed, claimed. There was a general objection to the direction for the plaintiff, without calling the attention of the court to this particular fact, in any other way than in arguing that there was no evidence of a consideration.

In Post v. Doremus (supra), the court showed that the plaintiff in that case did not accept the undertaking as sufficient to secure a stay of proceedings, but only sufficient to perfect an appeal. In the present case, the facts would justify a finding of fact that the plaintiff did stay the appeal in consequence of the undertaking. I do not see how the defendants can claim that the defect in form of the undertaking should signify that they did not impliedly request a stay of proceedings. There was no other object of an undertaking than a stay of proceedings.

I am of the opinion that the ground stated by the judge below of his direction was valid. The undertaking was used as the defendants (it is to be inferred) intended it was to be used, in being presented to the judge who approved it, for his determination as to whether it was in proper form and with sufficient sureties to give the appellants in that case a right to a stay. The approval was a judicial determination by him on the subject, and all the parties to it should be bound by it, until it be set aside. The fact that the sureties made the undertaking and delivered it, is sufficient evidence that the approval was by their consent, or rather at their instance.

Manning v. Gould (90 N. Y. 476), it is argued, is an authority that these defendants are not bound by the undertaking, because they were excepted to and did not thereafter justify. To make the cited case an authority on 'the subject, it is said that the sureties failed to justify. The facts do not show that there was any failure on the part of the defendants to justify. They did not justify, nor was it shown that they knew there had been an exception to them. On the contrary, at the request of the attorney for the appellant in the former action, the attorney for the respondents withdrew his exception and consented to the approval of the undertaking. The first sentence of Judge Tract’s opinion in Manning v. Gould (supra), shows that it implies that in a case like the present the sureties are liable. Judge Tract said, “ The question is whether the sureties on an u ndertaking given on appeal, when excepted to and they fail or refuse to justify, and justification is not waived by the respondent, are nevertheless bound by the conditions of their undertaking.” If both parties stand upon the exception and there is a failure to justify, then in the language of the Code the effect is the same as if no undertaking had been given. But in case an exception is withdrawn and the undertaking is approved by consent, the case stands as if there had been no exception, especially when the sureties were not apprised of the exception and did not in any way act upon it.

There was another objection—that the condition of the undertaking was not broken. The condition was, “ that if the said judgment so appealed from or any part thereof be affirmed or the appeal be dismissed, the said appellants will pay the sum recovered or directed to be paid by the said judgment.” The judgment was that “the plaintiff recover from the defendants, the possession of said property, together with said $49 damages and said costs, or if possession of said property is not delivered to plaintiff, then that they recover the said value, together with said damages and costs, making in all the sum of $1,675.87, etc.”

The action in which the judgment was obtained wás in replevin against three defendants. Two of them were parties who had assigned and trasferred the chattels to the third, and the chattels were, at the time of the action, in the possession of the third, and remained there until he transferred them to other persons. The judgment was affirmed as to the assignor, and reversed as to the assignee. A new trial was had, and judgment rendered in his favor. The judgment was really joint and several against the three, and when there was an affirmance as to the assignors the sureties became liable upon the undertaking (Seacord v. Morgan, 3 Keyes, 636). It does not follow that because, in fact, the possession of the chattels was in the third defendant, that the obligation of the two, under the judgment to restore them to the plaintiffs, was affected. Replevin will-lie although the defendant has parted with the possession of the property and the same is beyond the reach of the process of the court, so that in no event can a return of the property be had, either in virtue of the claim and demand of the plaintiff or any judgment that may be given in the action (Barnett v. Selling, 70 N. Y. 492, citing Nichols v. Michael, 23 N. Y. 264). It is not a question here, how in such a case, there can be judgment against the two while it is in favor of the third. Such is the judgment, which binds all parties, and that is a final consideration, while it may be imagined, how the result was competently reached.

Certainly it appears that the judgment did not require the defendants unconditionally to pay the amount named, but only if possession of the property was not delivered to the plaintiff. In the present case, it was proved affirmatively and conclusively that the possession had not been delivered, so that the obligation to pay the amount had become absolute.

Seeing no reason for disturbing the judgment appealed, from, I am of opinion it should be affirmed, with costs;

Truax J., concurred.


author: By the Court.—Truax, J.

text:
    JOHN G. SCOTT v. PEDRO MONTELLS.

      Decided June 26, 1884.

      Forfeiture—deposit by tenant as security.

    A sum of money was deposited by tenant “as security for the payment of rent, according to the provisions and conditions of the lease, said security to be paid back to the tenant on the full compliance with the provisions of the lease on the .part of the tenant.” Tenant was dispossessed during the term for non-payment of rent to an amount smaller than the deposit. No other covenants of the lease were broken.

      Held, that the deposit was not forfeited, but that the landlord could only deduct the amount of rent due from the deposit.
    Before Sedgwick, Ch. J., and Truax, J.
    Plaintiff’s exception to the order of the trial justice directing a verdict for defendant, heard at general term in first instance.
    Plaintiff’s assignor leased of defendant a house for a term of years at $300 per month. The lease contained the ordinary provisions; a covenant of the tenant to repair, and also a clause as follows: “In lieu of security, party of the first part accepts and the party of the second part agrees to pay to him the sum of $900. The party of the first part to pay interest at the rate of six per cent, thereonj and to hold the same as his security for the payment of rent by the party of the second part, according to the conditions and provisions of this lease on the part of the party of the second part, said security to be paid back to the party of the second part on the full compliance with the provisions of this lease on the part of the party of the second part.”
    The tenant was dispossessed during the term for nonpayment of rent to an amount differently stated by plaintiff (assignor of tenant) and defendant, but admitted to be less than the deposit. Plaintiff, as assignee of tenant, sued to recover the $900.
    The trial justice, at the close of plaintiff’s testimony, rendered a verdict for the' defendant, on the ground, as stated in the order, that “his assignor (the tenant) had failed to pay some rent, irrespective of the amount thereof,” and had thus failed “ to comply with the provisions of the lease.” Plaintiff excepted ; asked to go to the jury, and his exceptions were ordered to be heard in the first instance at general term.

      Alfred I. Walker and David L. Walter, for plaintiff.

      Kent & Auerbach, for defendant.
   By the Court.—Truax, J.

One Therese Dosot (the plaintiff’s assignor) leased from the defendant certain premises and deposited with him the sum of $900 “in lieu of security.” The lease contained a provision that the defendant should pay interest on this sum and hold it as his security for the payment of rent according to the conditions and provisions of the lease, and that said security was to be paid back on the full compliance with the provisions of the lease on the part of said Dosot. Said Dosot was dispossessed for non-payment of rent. The plaintiff, as assignee of said Dosot, brings this action to recover said sum of $900. At the close of plaintiff’s case the court directed the jury to find a verdict for the defendant. To this ruling and to the denial of a motion for leave to go to the jury the plaintiff excepted, and the court ordered the exceptions to.be heard in the first instance at the general term.

The evidence shows that all the covenants of the lease, except the covenant to pay rent, were fully performed, that the covenant to pay rent was broken by the non-payment of the sum of $138.36.

The money was deposited for two purposes: 1st. It was deposited in the place of security for the payment of such rent as should be due at the termination at the lease, which was in this case $138.36 ; and, 2nd. It was deposited as security for the performance of the other covenants on the part of plaintiff’s assignor, and, as none of these other covenants were broken, the deposit could only be held for the payment of the rent due.of the termination of the lease. On the evidence the plaintiff was entitled to recover from the defendant the difference between the amount of rent due ($138.36) and $900. It was error to direct a verdict for the defendant.

The exceptions are sustained and a new trial is ordered, with costs to abide the event.

Sedgwick, Ch. J., concurred.


author: Per Curiam.

text:
    HENRY DORGELOH v. SARAH E. BASSFORD.

      Decided June 26, 1884.

      Taxes and assessments—lien of, when extinguished 5y lapse of time.

    The right of the corporation of the city of New York, to enforce an assessment, and the lien thereof, exists for twenty years after the confirmation of the same. A presumption of payment then attaches, which can be rebutted only in cine of two ways: first, by proof of payment of some part of the claim; or, second, by a written acknowledgment of the indebtedness, or of the right of action for the same, in this case more than forty years had elapsed since the assessment was confirmed, and it is conceded that neither payment of any part thereof, nor acknowledgment of the same, was ever made.

      Reid, that it must be conclusively presumed that the assessment was paid, and consequently was not a lien upon the property conveyed.
    ^Before Sedgwick, Ch. J., Trtiax and Ingraham, JJ.
    Submission of controversy to the general term.
    Prior to this submission the-defendant had conveyed to the plaintiff certain real estate in the city bf New York, arid the deed contained a covenant against assessments and incumbrances. Plaintiff claimed that an assessment of forty years’ standing remained a lien upon the premises, and that defendant was liable for the payment of the same by reason of said covenant.

      Marshall P. Stafford, for plaintiff.
    The outstanding uncanceled assessment *is a lien upon the property. So long as the official records fail to show that the assessment is paid and canceled it constitutes a cloud upon the title* and a purchaser is entitled to have it removed before he can be compelled to take title.
    Lapse of time raises no presumption that a tax or assessment has been paid. Laying taxes and assessments is an act of sovereignty (McColloch v. State of Md., 4 Wheat. 316), and no presumption whatever as to their payment arises, for presumptions are never indulged against the sovereign power. The assessment is not affected by any statute of limitations. No statute of limitations expressly relating to rights under taxes and assessments has ever been passed in this state. Hence, they are never outlawed and never cease to be a lien and incumbrance upon property upon which they are assessed.

      Thomas B. Smith, for defendant.
    This assessment constitutes no existing lien against said premises, was barred by time twenty-four years ago, and therefore defendant is not liable for the payment of the same under her covenant against incumbrances (Fisher v. Mayor, 67 N. Y. 73). It is conceded that defendant has not revived the liability by payment on account or acknowledgment as provided by statute.
   Per Curiam.

The defendant conveyed to plaintiff certain property on Avenue D, in the city of New York, April 5. 1884, and in such conveyance covenanted against assessments and other incumbrances. It appears from a record of confirmed assessments in the office of the Bureau of Arrears of the city of New York, that in the year 1840 an assessment on said property was confirmed for filling sunken lots, amounting to $183.98, and this submission is to determine whether such assessment was, at the time of said conveyance, an incumbrance on said property.

It appears that no payment or written acknowledgment of the liability of the owner of the property for such assesment has ever been made.

In the case of Fisher v. Mayor (67 N. Y. 78), it was held that the right of the mayor, etc., of New York to enforce an assessment, existed for twenty years after it was confirmed, and that after twenty years the presumption of payment attaches, which could be rebutted only in one of two ways. First, by proof of actual payment of part of the claim ; or second, by a written acknowledgment of the indebtedness or of the right of action.

In this case it appears that néither of these facts exist.

The only record of this assessment is that it was confirmed September 24, 1840, and no proceedings have ever been taken by the corporation of New York to enforce the assessment. We can see no distinction between the case of Fisher v. Mayor (supra), and it is therefore controlling on us; and as it is more than forty years since the assessment was confirmed, it must be conclusively presumed that the assessment was paid, and consequently it was not at the time of the conveyance by plaintiff to defendant a lien on the property conveyed.

Defendant is therefore entitled to judgment. As costs are expressly waived by the parties, it should be without costs.


author: By the Court.—Truax, J. Sedgwick, Ch. J.

text:
    MARY CROSBY, Respondent, v. THE BOWERY SAVINGS BANK, Appellant.

      Decided July 8, 1884.

      Bank deposits—contract between the bank and depositor—third party claimant. —Demurrer.

    Where a party deposits money in his own name in a savings bank, the bank becomes his debtor and contracts to pay such amount to the depositor or to his legal representatives, and if the money so deposited, was in reality the property of another, and was so deposited with the consent of the owner, the terms, of the original contract with the bank are not changed. The complaint in an action by the real owner in such a case, to recover the money from the bank, should show notice to, or knowledge by the bank at the time of the deposit, that the plaintiff is the true owner, or that the money was deposited for the benefit of, and in trust for the plaintiff. Such facts must be alleged as will relieve the defendant from its contract liability with the depositor. *
    The complaint in this action being deficient in the allegation of such facts, it was held that the demurrer, on the ground that it did not state facts sufficient to constitute a cause of action, should have been sustained.
    If in this case the original depositor, had been made a party defendant, with proper allegations, there would have been an equitable cause of action (Sedgwick, Oh. J.).
    Before Sedgwick, Ch. J., and Ted ax, J.
    Appeal from an interlocutory judgment and order overruling a demurrer to the complaint.
    The complaint alleges the incorporation of the defendant under the laws of this state ; that on and between February 24, 1876, and January 28, 1881, one Edward Hewitt deposited with the defendant, in his own name, the sum of about $718.23; that the sum of $493.23, on account of said deposit so made, is still in the possession and custody of the defendant; that the plaintiff is and was at the time above mentioned the owner of the said money, and it was left for the benefit of and in trust for the plaintiff; and that the plaintiff has duly demanded the return of said money, which return the defendant has refused tb make. Judgment was demanded for $493.23.

      The defendant demurred to this complaint on the grounds that it does not state facts sufficient to constitute a cause of action.

      Norwood & Coggeshall, for appellant.

      Abram Kling, for respondent.
   By the Court.—Truax, J.

The complaint shows no obligation on the part of the defendant to return the money deposited with it, to the plaintiff. It does not show that the defendant knew that the money was the plaintiff’s money, nor that it was left for the benefit of and in trust for the plaintiff. The inference to be drawn from the complaint is that the money was given to Hewitt by the plaintiff to be deposited with the defendant in Hewitt’s name, and, therefore, it must be held that the plaintiff is bound .by the contract with the defendant, made with Hewitt, viz., that it would repay the money to Hewitt, the depositor, or to his legal representatives, on demand, as required by the General Savings Bank Act (Laws 1875, ch. 371; amended Laws 1882, ch. 409, § 257).

The deposit became the property of the defendant and the defendant .became a debtor to the depositor (Sims v. Bond, 5 B. & Ad. 393 ; People v. Merchants, &c. Bank, 92 N. Y. 7). This.contract was made by and with consent of the plaintiff. It does not appear that the defendant refuses to perform its contract, and, until it does so appear, there is no cause of action against the defendant.

In Mulcahy v. Develin (17 Week. Dig. 308), cited by respondent, the complaint alleged that the plaintiff was the owner of and was possessed of a certain sum of money on deposit with a third person, which sum of money, in some way, the defendant, without plaintiff’ s knowledge or consent, became possessed of. ' The general term of the court of common pleas held that a demurrer to the complaint would not lie, because the defendants by demurring admitted that the plaintiff owned and was possessed of the money that the defendant had appropriated, without her knowledge and consent. In this respect the two cases differ.

This action is to be distinguished»from those actions in which it has been held that whenever one man has the money of another which he ought to pay over, he is liable in an action of assumpsit. Here, as between the plaintiff and the defendant, the defendant ought not to pay over the money to plaintiff, because with plaintiff’s consent it has promised to pay to another (Stephens v. Radcock, 3 Barn. & Adol. 354).

Of course, if there be no cause of action, stated in the complaint, the defendant is under no obligation to bring in Hewitt, as provided by section 259 of the general savings bank act. That section applies to an action brought by the party in whose name the deposit was made when a claim to the deposit is made by another person.

The judgment.and order are reversed with costs, and demurrer is sustained, with costs.

Sedgwick, Ch. J.

[Concurring.] I concur with Judge Truax in his opinion, that there is no legal cause of action, but I think there would have been an equitable cause of action if Hewitt (the depositor) had been made defendant with proper'allegations.

CASES DECIDED AT SPECIAL TERM.


author: Ingraham, J.

text:
    THE PEOPLE ex rel. WILLIAM H. FIELD v. THE NORTHERN PACIFIC R. R. Co.

      Mandamus—when may issue to compel foreign corporation to exhibit tramferboohs.

    To sustain the power of the courts of this state to grant an application for a writ of mandamus, to compel a foreign corporation to exhibit its transfer-books to a stockholder, it must appear that a court of equity has the power to control by its process the corporate action of a foreign corporation. This power undoubtedly exists, when a cause of action exists and an action is brought in favor of a resident of this state, against a foreign corporation {Code, § 1708); but an application for a mandamus, is a special proceeding and not an action.
    The legislature can constitutionally authorize the courts of this state to exercise the power of the writ of mandamus, over all foreign corporations, that bring themselves,their business and property under their jurisdiction; but thus far no such power has been granted, and it is more than doubtful if by the common law, the courts have the power to interfere by mandamus and compel a foreign corporation to exhibit its transfer books to one of its stockholders.
    Chapter 165 of the Laws of 1842, provides for the exhibition of books by the transfer agent of any corporation, and a penalty for each refusal. The remedy here and the process to procure the same, is directed against the agent, or person in the state having custody of the books, and not against the corporation. If the courts of this state possessed the power of mandamus against the corporation, by virtue of the statute or common law, prior to act of 1842, this act would have been unnecessary, for the transfer agents of the company would have been subject to control in the premises.
    Under the facts and circumstances in this case, held, that the application should not be granted even if the court had the power to grant the relief sought.
    Before Ingraham:, J.

      Application for a mandamus to compel the respondents, The Northern Pacific Railroad Company, “to exhibit to the relator the transfer-books of the preferred stock of said company, or other books containing the names and addresses of the holders of the preferred stock of said company ; and to permit said relator, his attorney or clerks to take therefrom the names and addresses of the registered holders of said preferred stock.”

      Thomas Henry Edsall and E. Ellery Anderson, for relators.

      Artemas H. Holmes and William M. Evarts, for respondent.
   Ingraham, J.

In determining this question, I shall not attempt to do more than give the conclusions at which I have arrived, as 1 think it important to the parties in interest that the motion should be decided at once.

The respondent is a corporation created by act of congress, and is the owner, and operates a railroad running through several states and territories, and has an office in the city of New York. The plaintiff is a holder of 200 shares of the preferred stock, and 500 shares of the common stock of said corporation, and as such stockholder requested the officers of said corporation in charge of the transfer books of said stock to allow him to examine such transfer stock-books, but said officers refused to allow such an examination. The relator, therefore, asks for a peremptory writ of mandamus, requiring said company to permit such examination.

The most serious objection made by the respondent, is that the courts of this state have no power to interfere, or control by mandamus a foreign corporation, or a corporation created by, or existing under laws of any state, except the state of the tribunal whose interference is asked.

The relator does not claim that there is any express provision of statute that authorizes the writ asked for, but insists that by common law the court, has power, when necessary, for the purpose of preserving the rights and interest of stockholders, to interfere by mandamus and compel the exhibition of such books.

It will be noticed that this is not an action, and therefore section 1708 of the Code, and the decisions to which I have referred under that section, do not apply.

That the legislature could constitutionally authorize the courts of this state to exercise such power over all corporations, bringing themselves and their property within this jurisdiction, cannot, I think, be doubted, but no such authority has been given.

Chapter 165 of the Laws of 1842 provides that the transfer agent, in this state, of any corporation existing beyond the jurisdiction of this state, shall at all reasonable times, exhibit to any stockholder when required by him, such books ; and then provides a penalty for each refusal to comply with the statute. It is not claimed by relator that this application can be sustained by this statute, it applies only to transfer agents, and not to the corporation. Any proceeding under that statute must be taken against the transfer agents, and not against the company (People ex rel. Hatch v. L. S. & M. S. R. Co., 11 Hun, 1).

To sustain the power of the courts of this state to grant this application, it must, therefore, appear that a court of equity has power to control by its process the corporate action of a foreign corporation. This power, it would appear, the legislature of this state has given to the courts, when a cause of action exists in favor of the residents of this state against such a corporation (Code, § 1708), but no statute to which I have been referred, or which, in the limited time that I have had to devote to the examination of this question, I have been able to find, has given such a power to the courts of this state to proceed by special proceedings, or in any other way, except by action.

An application for a mandamus is a special proceeding. An action must be commenced by the service of a summons (Code, § 416).

The only case to which I have been referred on this question, is the case of People ex rel. Jenkins v. The Parker Vein Coal Company (10 How.Pr. 548), where Judge Mitchell, on delivering one of the opinions, holds, that a mandamus cannot issue against a foreign corporation, except it violates a law of this state. And while it does not violate any law of our state, the state should not interfere with it. The case of People ex rel. Hatch v. L. S. & M. S. R. R. Co. (11 Hun, 1), holds that proceedings for a writ of mandamus to compel the exhibition of transfer-books of a foreign corporation, can be taken against a transfer agent only. The passage of the act of 1842 would not have been necessary, if the courts of this state had the power claimed, as the transfer agents, being the agents of the corporations, could have been compelled to exhibit the transfer-books of the corporations themselves, and were subject to such control.

But if the court had the power to grant the relief asked, I do not think under the circumstances in this case the application should be granted.

The application “is addressed to the sound discretion of the court,” and “should be exercised with great discrimination and care.” “The court should guard against all attempts by combinations hostile to the corporation or its existing officers, to use its writ of mandamus to accomplish their personal or speculative ends” (People ex rel. Hatch v. L. S. & M. S. R. R., supra).

In this case it is alleged by the respondents', and not denied by the relator, that the stock owned by the relator was transferred to him, long after the resolution of the board of directors of said corporation, authorizing the execution of the mortgage which the relator opposes, and to aid which opposition the inspection is sought, and the circular asking the consent of the stockholders had been issued.

Under such circumstances, I think before the court should grant such a writ as is here applied for, it was incumbent on the relator to show that he was a tona fide holder of the stock, that he sought to protect before the action of the directors of said company, and that this is not an attempt to use the writ oí mandamus to accomplish “ personal or speculative ends.”

The relator must show affirmatively all the facts to entitle him such writ, and under the facts as they appear on this application, I am of the opinion that the application should be denied.


text:
    MUTUAL RESERVE FUND LIFE ASSOCIATION v. THE SPECTATOR Co.

      Decided February 29, 1884.
    Libel.— When action for can be maintained by corporation—complaint in such an action—allegations of—when deemed sufficient on demurrer.

    The law has conferred on business corporations, as well as on individual bankers and merchants, the right of protection against all aggressions, affecting their,business or property, and they may maintain actions for libels in all cases necessary for the protection and preservation of their property and rights, and to recover damages occasioned by the wrongs of others ; but not for those damages to person and character, for which an individual may recover, unconnected with loss or injury to property.
    A corporation engaged in business, in which credit is material to its success, may maintain an action of libel, without proof of special damage, where the language used concerning it is defamatory in itself, and injuriously and directly affects its credit, and necessarily and directly occasions pecuniary injury ; but in all other cases the averments and proofs of malice and special damage, are necessary.
    The averments and allegations of the complaint, in this case, held, sufficient and within the rules laid down as above, and show that the publication of the libel complained of, caused direct pecuniary damage to the plaintiff.
    Before Ingraham, J.
    Demurrer by defendant to the several causes of action set up in the complaint, on the ground that the facts stated do not constitute a cause of action.
    The facts appear in the opinion.

      Alfred Taylor, for plaintiff.

      George W. Miller, for defendant.
   Ingraham, J.

Defendant seeks to sustain his demurrer on two grounds : First, that the only case in which a corporation can maintain an action for libel is when it appears by the complaint that the corporation is a moneyed corporation having shares of stock credit, property, etc., which may be injured by the libel; and that in this case it does not appear that the plaintiff is, but on the contrary it does appear that it is not such a corporation ; and second, that the complaint is defective in not alleging special damages.

The question of the right of a corporation to maintain an action for libel has been but seldom presented, and but two cases are cited on the question in the courts of this state.

The first was the case of The Shoe and Leather Bank v. Thompson (18 Abb. Pr. 418), in the general term of the supreme court. Justice Clerk, before whom the case was heard at special term, held that the law had conferred on business corporations, as well as on individual bankers and merchants, the right of protection against all agressions affecting their business or property, and that the plaintiff has a right to maintain the action without setting out any special damages. On an appeal to the general term, the presiding justice held that “ the rule seems to be—as to the power of corporations to maintain actions for libels—that they may do so in all cases necessary for preservation of their property and rights, and for the recovery of any damages occasioned by the wrongs of others, but not-for those damages to person and character for which an individual may recover, unconnected with loss or injury to property.”

The other case was the case of the Knickerbocker Life Ins. Co. v. Ecclesine (34 Super. Ct. 81). Judge Freedman, in his opinion at special term, cited with approval the opinion of the presiding justice in the Shoe, and Leather Bank case (supra), says : “ Upon a careful consideration of the principles involved, I have come to the conclusion that a corporation engaged in business, in which credit may be piaterial to its success, may maintain an action of libel, without proof of special damage, where the language used concerning it is defamatory in itself, and injuriously and directly affects its credit, and necessarily and directly occasions pecuniary injury, but that in all other cases the averments and proofs of malice and special damage are necessary.”

Applying to the rules laid down in the foregoing cases, and which appear to be in accordance with the principles of common law, I do not think either of the grounds on which defendant seeks to obtain his demurrer can be sustained.

As to the first point, the demurrer admits that the plaintiff is a corporation organized under the laws of the state of New York for the transaction of certain business. There is nothing to show that it has or has not stock ; but no reason can be shown why a corporation of this kind should not be protected from the publication of false reports, where it appears either from the nature of the libel or from other facts pleaded, that such publications have, caused pecuniary injury to the corporation itself. A corporation legally organized is entitled to the protection of the law. Its property should be protected, and if any one wrongfully injures its property the power to sue for such an injury is a necessary incident to its right to hold property and its existence as a corporation.

As to the second ground, the complaint alleges and the demurrer admits, that the prosperity, usefulness permanency, and progress of the plaintiff, are dependent not only on the honesty and skill of the management but also in the confidence of the members and the public therein, and in the officers who conduct the same ; that the money to pay death-claims are voluntarily paid by the members when called for in assessments; . . . . and the faith and credit due to said plaintiff in its said business and the safety and stability and character of the said plaintiff, are and were at all the times in the complaint mentioned known by the public and all said persons, to be dependent upon the honesty and skill in the conduct of the said business and in the management thereof. Then follows a statement of the libel published, directly charging the officers and managers of the plaintiffs with acts which would “ injuriously and directly affect its credit, and necessarily and directly occasion pecuniary injury ” if the “credit” and standing are dependent upon the honesty and skill of its officers and directors, and that fact is alleged and admitted by the demurrer as before stated.

The complaint then alleges that by means of said publication the plaintiff was injured in its business to its damage $25,000.

It seems to me that these allegations come directly within the rule laid down in the two cases above mentioned (Knickerbocker Life Ins. Co. v. Ecclesine, supra, and Shoe & Leather Bank case, supra).

To enable the plaintiff to maintain this action it must appear either that from the nature of the business of the corporation, or from some other fact alleged, or from the libel itself, that the publication was a direct pecuniary loss to the corporation ; or the fact of such pecuniary loss must be shown by an allegation of special damage. But it appears to me that in this case the allegation that the money to pay death claims is necessarily paid to the company when called for in assessments ; that the prosperity of the company depends upon confidence in the honesty and skill of the officers; and that in consequence of a publication charging the officers with dishonesty and want of skill in their management of the company’s business, the company was injured in its reputation and in its good name and credit in its business, and in said business, are sufficient allegations that the publication did cause a direct pecuniary damage and are sufficient without proof of special damage.

The first three causes of action are substantially the same, except that the publications are different, but they all allege substantially that there is a want of skill and honesty in the management of the corporation and in its officers. And the fourth cause of action is for a subsequent publication of the libels complained of in the first three causes of action.

The demurrer should therefore be overruled, and judgment ordered for plaintiffs with costs, with leave to the defendants to answer within twenty days on payment of costs.


text:
    JOHN S. TUTTLE, et al., v. THE BRUSH ELECTRIC ILLUMINATING CO.

      Decided March 1, 1883.

      Streets of city of New York—their use, for purpose of lighting with electrie lights.

    Although the streets of Mew York are held by the municipal corporation in trust, to be used solely as public streets, and can be applied to no purposes inconsistent with street uses, yet the lighting of the streets is one of those uses to be exercised under legislative authority ; and within the discretion given by the legislature as to the mode and manner of lighting the streets, the city authorities have full power in the matter, except that they may not authorize any structure to be erected which is subversive of and repugnant to the uses of a street as an open public street.
    Whether the poles complained of, erected under legislative and municipal authority, are inconsistent with the uses of the street as a street, is largely a question of fact, but as they do not close the street to any appreciable extent or seriously affect the light or air of or access to plaintiff’s property, the action of the city authorities is conclusive.
    Whether the use of the street by defendants for the purpose of supplying electricity to private persons is a use included within the objects of the grant, may well be doubted.
    Before Ingraham, J.
    Action for an injunction to restrain defendants from placing poles or wires in Twenty-fifth street, and for judgment directing the removal of such poles and wires as are now erected in said street, between Broadway and Sixth avenue.
    The facts of the case appear fully in the opinion of the court.

      L. B. Chittenden, for plaintiffs.

      William M. Evarts and Charles C. Beaman, Jr., for defendants.
   Ingraham, J.

Twenty-fifth street, between Broadway and Sixth avenue, in the city of New York, was opened in pursuance of the provisions of the act of 1813, and the land condemned by the city and paid for in pursuance of the provisions of that act.

The provisions have, since their passage, been the subject of much judicial discussion, but I think it will be proper to call attention to the language used by the act, in relation to the interest that vests in the city of New York in the land condemned and taken thereunder. After providing for the appointment of commissioners and the confirmation of their report by the supreme court, the statute provides: “And on such final confirmation of such report by the said court, the said mayor, aldermen and commonalty of the city of New York, shall become and be seized in fee of all the said lands, tenements, hereditaments and premises in the said report mentioned, that shall or may be so required for the purpose of opening the said public square or place, street or avenue, or part or section of a street or avenue so to be opened .... as the case may be, the same to be appropriated, converted and used to and for said purpose accordingly,” and thereupon said mayor, &c., may take possession of the same ; and then follows the proviso, “ In trust, nevertheless, that the same be appropriated and kept open for or as part of a public street, avenue, square or place forever, in like manner as the other public streets, avenues, squares and places, in the said city are and of right ought to be.”

The fee of the land taken under the provisions of this act vests in the municipal corporation, the mayor, &c. of New York, not absolutely, but in trust for a public purpose—viz. : that the lands may be appropriated and used forever as public streets. The municipal corporation, exercising. within its sphere a portion of the sovereignty of the state, hold the property, not for its profit or emolument, but for the public use as a street, and has neither the right nor the power to apply any such property to purposes inconsistent with street uses.

This principle was established in the case of People v. Kerr (27 N. Y. 198), and as far as I have been able to discover has never been questioned, but has been reaffirmed by the court of appeals in Kellinger v. Forty-second street R. R. Co. (50 N. Y. 210), and again distinctly reaffirmed in Mahady v. Bushwick R. R. Co. (91 Id. 148), where the court says: “The plaintiff, though an abutting owner simply, the fee of the street being in the city, was entitled to the use of the street, and neither the legislature nor the city could devote it to purposes inconsistent with street uses.”

But the limitation of the ownership of the city in the streets, applies only to acts which are not “included within the objects of the grant—viz.: that the land may be appropriated and used forever as public streets—as said in People v. Kerr ; or “ inconsistent with street uses,” as said in Mahady v. Bushwick Railroad Co. The court of appeals in the last case says that the Story case left untouched the decision in People v. Kerr, that a horse railroad was a street use consistent with the rights of abutting owners.

Defendant is, therefore, entitled to judgment, if it appears that the acts of the defendants were authorized by the proper authorities, and that the use complained of is a street use within the objects of the grant to the city.

Prior to the year 1813 the common council of the city provided regulations for lighting the streets of the city under the general authority to pass ordinances given by the old charters ; and by the 206th and 207th sections of the general act of 1813 penalties are provided for breaking or interfering with any glass lamp already hung or fixed or hereafter- to be hung or fixed in any of the streets of New-York.

, It thus appears that prior to the passage of the general act of 1813, the city of New York had under its general power used the streets for the purpose of providing light, and that at that time, portions of the street were appropriated for such purpose. The trust on which the city held the streets was that they were to be appropriated for the purpose that the streets of said city were at that time used, viz.: among others, for lighting the streets; and an examination of the ordinances of the common council, and the statutes of the state, will show that from that time to the present, the city of New York has continually used and occupied such portion of the streets as were necessary to properly light them.

That the city has a duty to perform in lighting the streets has been decided. In Harlem Gas Light Co. v. Mayor, &c. of New York (33 N. Y. 327), Judge Brown, in delivering one of the opinions of the court, says: “The power and duty of the municipal government to furnish light for the streets and'avenues of the city is not disputed or put in controversy in this action. Indeed, it could not be with any show of reason or good sense.” Such power existing in the corporation, the legislature directed how it should be exercised.

Section 73 of chapter 335 of Laws of 1873 provides that the commissioner of public works, in conjunction with the mayor and comptroller, is authorized from time to time to contract as provided in section 97 of the act for lighting the streets with gas, and by chapter 478 of the Laws of 1879, amending section 1 of chapter 125 of Laws of 1878, it was provided that the board authorized to make contracts for lighting the streets, etc., with gas, is authorized and empowered to contract for such lighting the public lamps in said streets, etc., with gas or ot-her illuminating materials in said city, by one or more contracts.

The board mentioned and empowered by said statute, on May 25, 1881, made a contract with the defendants to light a portion of the streets of the city and Madison and Union squares by electric lights. Such contract provided that before the defendants should have the right to connect the lamps with the pipes or conductors, that the defendants should have or procure a grant or franchise from the mayor, aldermen and commonalty, authorizing the laying the gas mains or conductors in the streets or parts of streets in which the lamps are .located.

On May 3, 1881, an ordinance or resolution was adopted by the mayor, aldermen and commonalty of the city of New York, whereby the defendant was authorized and empowered to lay, erect and construct suitable wires or other conductors, with the necessary poles, pipes or other fixtures in, on, over and under the streets, avenues, etc., of the city of New York, for conducting and distributing electricity, to be done under and according to the direction of the commissioner of public works.

Thereafter the commissioner of public works granted permission to the defendants to place poles of extra size and length in Twenty-fifth street, between Broadway and Sixth avenue. And in pursuance of this authority and permission, and to carry out their said contracts with the city authorities, and under the direction of the commissioner of public works, the defendants erected the poles complained of in Twenty-fifth street, and have since that time used the said poles to carry wires as conductors from their building where the electricity is generated to the streets to be lighted, for the electric lights erected and maintained by them under the said contract, which said contract has from time to time been continued, and the defendants are at present using the said poles to carry such wire to light, said streets.

If the city authorities had erected the poles for the purpose of supplying the streets with light, it is evident that plaintiffs could not complain. Such a use of the streets would have been within the express words and conditions of the grant, and just such a use as that for which the city held the streets, viz., for the purpose of a public street. The fact, that when the act was passed, the lamps were oil lamps placed on poles, and no poles were needed to carry the conductors to such lamps, would not prevent the city, when an improved method of lighting the streets had been discovered, from using such improved method. That such power was possessed by the city, all the cases in the subject recognize.

In People v. Kerr (supra), the court says, on page 203: “ The principle that in the dedication to the uses of a city street, is involved the right to apply the land to all the public and beneficial uses for which such streets shall from time to time be adapted, is one which is in accordance with the nature and character of the common lawand on page 204: “I see no reason to doubt that the acquisition of the fee for the purposes of a street by the corporation of New York, subjects whatever ultimate estate or right of reversion that may remain in the original owners, to a servitude commensurate with all the uses and purposes of a street in a great city.” In Story v. Elevated R. R. (90 N. Y. 161), Danforth, J. : “The public purpose of a street requires of the land the surface only. Very ancient usage permits the introduction under it of sewer and water pipes •and upon it posts for lamps ; of these things an abutting owner could not complain.” And Tract, J., says at page 179 : “As the other streets of the city were or lawfully ought to be, so this street was to be ; it was to be an open street; one which would furnish light and air to the abutting property, and a free and unobstructed passage to the inhabitants of the city. While the legislature may regulate the use of the street as a street, it has no power to authorize a structure thereon, which is subversive of and repugnant to the uses of the street as an open public street. Whether a particular structure authorized by the legislature is consistent or inconsistent with the use, of the street as a street, must be largely a question of fact depending upon the nature and character of the structure authorized.”

It cannot be seriously maintained that the structure here erected closes the streets to any appreciable extent, nor that such poles seriously affect the light or air of or the right of access to plaintiff’s property ; but such use of the streets is entirely consistent with the use of the street as a street, and is not such a structure as is “subversive of and repugnant to the uses of the street as an open public street.”

The legislature has, as we have seen, given the city authorities power and authority to light the streets, and, instead of doing it directly by the city, it has authorized and empowered them- to contract for such lighting the public lamps with gas or other illuminating materials in said city by one or more contracts.

This power given was conferred for public purposes, and while they are to be exercised in conformity with the direction of the legislature, yet within the discretion given by the legislature as to the mode and manner of lighting the streets and the illuminating materials to be used for such purpose, the city authorities are the “ sole and exclusive judges” (Matter of Dugro, 50 N. Y. 517; Hines v. City of Lockport, 50 N. Y. 238).

The rule is well settled that where power is conferred on public officers or a municipal corporation to make improvements and to keep them in repair, the duty to make them is quasi judicial or discretionary, involving a determination as to the necessity, requisite capacity, location, etc., and for a failure to exercise this power, or an erroneous estimate of the public needs, no civil action can be maintained (Urquhart v. City of Ogdensburg, 91 N. Y. 71). And the fact that this power be placed in the hands of one or more officers is only another form for the execution thereof (Matter of Zborowski, 68 N. Y. 90).

In the exercise of such power the proper authorities have made a contract with the defendants to light certain of the streets, and the common council have authorized defendants to erect the necessary poles, pipes or other fixtures for conducting or distributing electricity under the direction of the commissioner of public works.

The commissioner had given permission to erect the poles objected to, and it thus appearing that the city authorities following the direction of the legislature, have exercised the discretion vested in them, their action became conclusive—for if a person owning property on a street could object and prevent the carrying out of the contract, it would give such property owner the power which the legislature has vested in the city authorities.

The fact that the street through which the poles are located is not one of the streets lighted is, not material.

The manner of lighting the streets is the discretion that is vested in the city authorities, and they having exercised such discretion, by providing that certain streets are to be lighted by wires carried through Twenty-fifth street, their acts cannot be reviewed. Such a provision was, from the nature of the material used, absolutely necessary. It. is impossible to generate electricty at the foot of each lamp post, and under such circumstances, in order to carry out the power given to light the streets, it was necessary to bring the electricity to the streets to be lighted.

The same remark applies to the claim of the plaintiff that the city authorities, or their contractor, should have placed the wires under ground. There was much evidence taken on that subject, and I do not think that such evidence established the fact that any underground conductor has been invented, the use of which would enable the defendant to perform its contract; but it is sufficient- to say that, the city authorities have authorized the use of overground- conductors for such purpose.

The same may be said in answer to the proposition that, as another company using a different system have successfully used underground conductors, that defendant should also use such, underground conductors—the city authorities in the exercise of the discretion vested in them, have not employed such system, but have employed the defendant’s system.

The examination that I have been able to give to this case has convinced me that the city authorities have the power to light the streets by contracting with the defendants, and, having exercised such power, they are the sole and exclusive judges of the means to be employed, so long as they do not authorize a use which “is subversive of and repugnant to the use of the street as an open, public street,” and the poles used by the defendants are not such a use. This view is substantially the same as was arrived at by Judge Haight, in People ex rel. McManus v. Thompson, decided in September, 1883.

The fact that obstructions which have from time to time been authorized in the streets, are gradually becoming so serious as to do great injustice -to the owners of property fronting on the streets used, must be apparent to all, but such considerations are properly addressed to the legislature ; the courts have to apply the law as they find it, and not attempt to correct abuses, the correction of which belongs to the legislative department of the government.

In consequence of the view that I have taken of this case I have not considered it necessary to determine the authority of the defendants under the resolution of the common council, and chapter 512 of the Laws of 1879, as amended by chapter 73 of the Laws of 1882, to use the streets for the purpose of supplying electricity to private persons.

It might well be doubted whether such a use was one included within the objects of the grant to the city, and whether the legislature or the corporation would be authorized to grant to private parties for private purposes the right to obstruct or use the streets which are held by the city in trust that the same be appropriated a public street forever ; but the determination of that question is not necessary to the decision of this case.

I am of the opinion, therefore, that defendant is entitled to judgment, with costs.