text:
    MARGARET A. OLIVER, Plaintiff, v. JOHN L. MOORE, Executor of the Last Will and Testament of HARRIET GROSS, Deceased, Defendant.

      Lease with cm agreement to board the lessee — rights of the pwties, how affected by the death of the lessee — a deduction must be made if the lessee dies before the termination of the lease.

    In 1884 one Oliver, who occupied the house No. 675 Fifth avenue, in the city of New York, entered into a sealed agreement whereby she let to Harriet Gross two rooms in the third story of said house for the term of eight and one-half months from October then next, attherateof $2,725, to be paid in weekly portions of seventy-five dollars each, beginning on October first; and also agreed, for and in consideration of the said above-mentioned sum, that she would board, and furnish suitable food for, the said Harriet Gross in a suitable manner for herself and her waiting maid for the whole of the term for which this agreement was made without additional charge or expense to the said Harriet Gross other than was therein contained.
    Miss Gross and her maid entered into the occupation of the two rooms, and continued to occupy them until November 27,1885, when Miss Gross died. Oliver furnished board to the maid up to February 2, 1886. The compensation specified in the agreement was paid to Oliver up to about the time of Harriet Gross’ death.
    Thereafter an action was commenced by Oliver against the executor of Miss Gross to recover the amount specified in the agreement, after crediting the estate of Miss Gross with $186, received from parties who occupied the rooms after Miss Gross’ death.
    The plaintiff insisted that the defendant was not entitled to claim any offset upon the theory that plaintiff had saved money by reason of not being obliged to board the' decedent and maid for the whole term.

      Held, that the contract between the plaintiff and the defendant’s testatrix was a lease which made Miss Gross the tenant of the demised premises, and that her estate became liable for the rent as long as the term lasted.

      White v. Maynard (111 Mass., 250); Wilson v. Martin (1 Denio, 602) distinguished.
    That, as Miss Gross was as much entitled to her board as to occupy the rooms which had been leased to her, and as the performance of this part of the. contract became impossible by reason of the lessee’s death, her death operated to lessen the amount of the recovery by the plaintiff under the lease to the extent of the actual cost of boarding the tenant during the balance of the term.
    The plaintiff also claimed to recover interest on each weekly payment from the time it became due until the time when the case was tried.

      Held, that such interest should have been allowed.
    Motion for a new trial upon exceptions taken on tbe trial of tbe action at tbe New York Circuit, November 13, 1888, and ordered -to be heard in the first instance at the General Term, after a verdict in favor of the plaintiff rendered by direction of the court.

      J. Noble Hayes, for the plaintiff.

      H. Kettell, for the defendant.
   Bartlett, J.:

In 1884 the plaintiff, Mrs. Margaret A. Oliver, occupied the house No. 675 Fifth avenue, in the city of New York, and rented rooms and took boarders there. On the twenty-ninth day of September in that year she entered into an agreement with Miss Harriet Gross, in writing and under seal, whereby she let unto the said Flarriet Gross, “ all those two certain rooms situated in -the third story of house No. 675 on Fifth avenue, in the city of New York, being the front and rear rooms on said floor * * * for the term •of eight and one-half months from the first day of October, next, A. D. 1885, at the rate of twenty-seven hundred and twenty-five dollars, to be paid in weekly portions of seventy-five dollars each, beginning on the said first day of October, 1885.” By the .same instrument Miss Gross, for herself, her heirs, executors .and administrators, covenanted and promised to pay the rent and not at any time during said term to let or demise the premises or rooms to any person or persons whatever without the consent of Mrs. Oliver, and further agreed at the expiration of said term to yield up and surrender the possession of said premises.

The agreement also contained the following provision: And it is further agreed, by and between the parties hereto, and the said Margaret A. Oliver doth covenant and promise that for and in con" ¿deration of the said mentioned sum herein agreed to be paid for .said rooms, that she, the said party of the first part, will board or furnish for the said party of the second part suitable food and in a suitable manner for herself and her waiting maid for the whole term for which this agreement is made, without additional charge or •expense to the said Harriet Gross other than is herein contained.”

Miss Gross and her maid entered upon the occupation of the rooms, and continued to occupy them until November 27, 1885, when Miss Gross died. The compensation specified in the agreement was paid to Mrs. Oliver up to about that time. Sbe furnished board to the maid up to February 2, 1886. After the death of Miss Gross, at the instance of her executor, the present defendant, Mrs. Oliver advertised the rooms, and on the first day of May rented them to a family of five persons at thirty dollars a week less than she received under her contract with Miss Gross, although she had to board five persons instead of two. On this substituted contract, the plaintiff credited the estate of Miss Gross with $186. Some portion of the plaintiff’s claim has been paid by the defendant, by permission of the surrogate, and received by the plaintiff without prejudice to her claim for the balance to recover which this suit, is brought.

Upon the trial the contention of the plaintiff was, as it now is, that the agreement under which the defendant’s testatrix took and occupied the plaintiff’s rooms was binding upon the executor of the decedent for the full term, whether such agreement be regarded as a-lease or as a contract for board and lodging. The plaintiff also insists that the defendant was not entitled to any offset upon the theory that the plaintiff had saved anything by reason of not being obliged to board the decedent for the whole term; and that the plaintiff was. entitled to recover interest on each weekly payment from the time it became due until the time when the case was tried. The defendant, on the contrary, contended that the contract being for the boarding of Miss Gross, was dependent upon her continued existence, and that all obligation upon her part or in behalf of her estate thereunder terminated immediately upon her death; and hence that the plaintiff was not entitled to recover at all. The trial court did not adopt the view of either litigant in its entirety, but held that the plaintiff could recover under the contract, notwithstanding the death of Miss Gross, but must submit to a deduction equivalent to the expense to which she would have been put if she had been obliged to provide board for the decedent during the whole of the term. The learned judge at circuit also held that the plaintiff could recover interest only from the commencement of the action, and not upon the amount of each of the weekly payments from the time when it became due under the contract. Applying these views of the law to the facts proved, the court directed a verdict for the plaintiff for $499.22, and ordered that the exceptions of both parties-should be heard in the first instance at General Term. I think the. contract between the plaintiff and the defendant’s testatrix was a. lease which made Miss Gross a tenant of the demised premises, and that her estate became liable for the rent as long as the term lasted. The form of the contract is that of a lease, and cannot properly be characterized, as was the parol contract in White v. Maynard (111 Mass., 250), as an ordinary agreement for hoard and lodging in the-plaintiff’s boarding-house, by which the plaintiff, as keeper of the. hoarding-house, retained the legal possession, custody and care of the. whole house and every room therein.” This agreement would be. extraordinary, indeed, in form, if intended as the common and usual contract for board and lodging. It gave Miss Gross different rights, from those belonging to the ordinary boarder and lodger. It entitled her to exclusive possession of the premises as against Mrs.. Oliver, and would have justified her in the use of force to exclude Mrs. Oliver or any one else whom she might choose to deem an. intruder. In other words, Mrs. Oliver by this instrument divested, herself of the legal custody and control of the rooms and vested such legal custody and control in Miss Gross.

The cases upon which the defendant bases his argument that the-contract in question here is merely an agreement for board and lodging, and not a lease, are White v. Maynard (supra) and Wilson v. Martin (1 Denio, 602). In the first of these cases the action was brought for the breach of an oral contract to provide a family of five persons with board and with three specified rooms as lodgings-in a boarding-house, and to light and heat such rooms for a specified period, at the weekly rate of seventy-five dollars. The court held that this was not an agreement for any interest in lands, within the-statute of frauds, and, in the opinion of Mr. Justice Gray, a number of English decisions are cited holding that under statutes relating to-the elective franchise, and under the valuation and tax acts, a mere-lodger in the house of one who retains the. legal possession of the entire premises is not a tenant. But the same learned judge goes, on to say that an entire floor of a series of rooms, or even a single-room, may, doubtless, be let for lodgings, so separated from the rest' of the house as to become, in fact and in law, the separate tenement of the lessee,” and this proposition is amply sustained by authority. That it was the purpose of the parties to the contract now under-consideration to create a tenancy on the part of Miss Gross, and not .simply to enter into an ordinary agreement for board and lodging, seems evident from the very form of the instrument which they adopted to express their intent. In Wilson v. Martin, already cited, the agreement was oral, and being merely for’ board and lodging, with a designation of the particular rooms to be occupied, it was .held not to create the relation of landlord and tenant between the parties. It differed materially from this contract, which is a demise in writing of certain premises for a definite term and for a specified .sum embracing the entire term. Here the undertaking to board the lessee is collateral to the principal agreement, as was the case in ShalKes v. Wilcox (2 Hun, 419\ where a similar undertaking was likened to “ a covenant for repairs, or other collateral covenant in a lease, running with it and part of the contract.”

The case last cited also bears on the second question presented by this appeal, which is whether the defendant was entitled to offset against the plaintiff’s claim the amount which the plaintiff saved by reason of not having to board the lessee during the whole term of the lease. On this branch of the case the plaintiff insists that the contract entitles her to recover the whole amount specified therein, less what she has already received, inasmuch as she was at .all times prepared and willing to furnish board to two persons up to the end of the term. But the persons thus to be boarded were particularly designated in the agreement, and Harriet Gross, one of them, was expressly named therein. It could not have been within ■the contemplation of the parties that the undertaking - to furnish board would become applicable to some other person in the event •of her death.

In the case of Shallies v. Wilcox (supra), the plaintiff leased certain premises to the defendant at a yearly rent of $300, and further agreed, in consideration of the covenants and agreements contained in the lease, to board the defendant at his house. After a while he refused to allow the defendant to board there, and, in an action on the lease for the stipulated rent, it was held that the defendant had a right of recoupment and counter-claim to the extent of the value •of his board from the time the plaintiff refused to board him. When the lessor elected not to board the defendant longer, for whatever cause,” said the court, he released, in legal effect, a right to recover the full consideration for the occupancy of the store,, called rent, to the extent of the value of the defendant’s board.” It was also said, in that case, that the sum of $500 stipulated to be-paid for rent was’in part payment for the defendant’s board, and that he was as much entitled to his board as he was to occupy the demised premises. So here, it is equally true that Miss Gross was. as much entitled to her board as to occupy the rooms which had been leased to her. The plaintiff did not refuse, like the lessor in the case cited, to furnish the board, but the performance of this-part of the contract became impossible by reason of the lessee’s death. As the agreement was to board Miss Gross personally, I think her death operated to lessen the amount recoverable by the plaintiff under the lease, to the extent of the actual cost of boarding the tenant during the balance of the term. But there is no evidence in the appeal book which shows what it would have cost thus to-board her. The only testimony having any bearing on the subject, was given by Henrietta Bushnell, who could state no figures at all,, and by the plaintiff, on cross-examination, who said: “ I am not in the habit of giving table board, but if I did, it would be ten or fifteen dollars a person. It would be ten now and at that time-ten.” By this she evidently meant that her charge to the boarder would be ten dollars a week; but, of course, that charge would include a profit, and the statement affords no basis for a finding as. to the cost of the board.

While the learned trial judge was right, therefore, in holding that there might be a deduction on account of the fact that the plaintiff was not obliged to furnish board to the defendant’s testatrix during the whole term, there was a failure to prove the facts necessary to the maintenance of an offset on this ground.

As to the amount of interest which the plaintiff was entitled to recover, I am unable to see why she should not have been allowed interest upon each weekly payment from the time it became due. If the contract had been carried out according to its terms, the plaintiff' would have received seventy-five dollars every week, and from the time she received that amount would have enjoyed its use. This-use, which the defendant has retained to himself, was worth the-legal rate of interest, and it is no hardship to the defendant, and. simply justice to the plaintiff, to compel its payment.

The exceptions of the defendant should be overruled, and the •exceptions of the plaintiff should be sustained and a new trial granted, with costs to the plaintiff to abide the event.

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

Exceptions of defendant overruled, and the exceptions of the plaintiff sustained and a new trial granted, with costs to plaintiff to ■abide event.


source: Caselaw Access Project

author: Bartlett, J.:

license: Public Domain

text:
    In the Matter of the Petition of A. S. ROSENBAUM to Vacate an Assessment for Paving Fifty-eighth Street, from Sixth Avenue to Ninth Avenue, with Stafford Pavement.

      Assessment — charge for laying cross-walks done without advertising forbids, illegal.

    In a proceeding to vacate and set aside or reduce an assessment for paving Fiftyeightli street, in the city of New York, the petitioner contended that he was entitled to a reduction of the assessment because it included a charge of more than $1,000 for laying new cross-walks, the contract for laying which was made and the work done without inviting bids or proposals therefor by public notice duly advertised as required by law.

      Reid, that the assessment was illegal so far as the charge for laying the cross-walks was concerned; that the order denying the application should be reversed and the assessment should be reduced accordingly.
    Appeal from an order made at a Special Term held in the county of New York on June 1, 1888, as modified by an order entered in the office of the clerk of the city and county of New York on •June 11, 1888, and denying amotion to reduce an assessment. .

      Elliot Sandford, for the petitioner, ajipellant.

      G. L. Sterling and A. E. Henschel, for the Mayor, etc., of New York, respondents.
   Bartlett, J.:

This is a proceeding to vacate and set aside or reduce an assessment for paving Fifty-eighth street, in the city of New York. The petitioner contends that he is entitled to a reduction of the assessment because it included a charge of more than $1,000 for laying new cross-walks, and the contract for laying the same was made and the work was done without inviting bids or proposals therefor by public notice duly advertised as required by law.

As to the fact that the contract for cross-walks was awarded without any advertisement, there appears to be no doubt. But the same fact appeared in the Matter of the Petition of Voorhis (5 T. & C., 345), in which the General Term of this department, in 1875, sustained the validity of the assessment now in question, as against another petitioner. Upon the strength of that decision, which was subsequently affirmed in the Court of Appeals without any opinion (62 N. Y., 637), the judge who heard the present case at Special Term denied the application of the petitioner, holding that the principle of stare deeisis applied.

In two subsequent cases, however, the Court of Appeals has held that it is a substantial error to withhold from competition'a portion of the work for which an assessment is imposed. (Matter of Mahan, 20 Hun, 301; affirmed, without opinion, in 81 N. Y., 621; Matter of Merriam, 84 id., 596.) These decisions, I think, must be regarded as overruling the effect of the affirmance in the Matter of Voorhis (,siipra), if the facts of that case cannot be distinguished from those in the case at bar. But, certainly, one difference does exist. There it did not appear that the work upon the cross-walks could not have been performed for less than the price actually paid. Here it is expressly proven that on the very day when the contract for laying the cross-walks included in this assessment was given out, other contracts for laying cross-walks were made by the department of public works at a lower price. It seems probable that some such distinction as this must have led to the affirmance of the Yoorliis case in the Court of Appeals, as otherwise it is extremely difficult to detect any difference in principle between that case and the Matter of Eager (46 N. Y., 100), where an assessment was held to be invalid because there had been no proper advertisement for proposals for laying cross-walks and bridge stones.

The counsel for the respondents argue that chapter 313 of the Laws of 1874, passed since the decision of the Eager case, prohibits a reduction on account of the illegality of which the petitioner complains. But the Court of Appeals has held that this statute “ was not intended to sanction or cure a total failure to comply with a mandatory law or ordinance or a direct violation of its most important provisions.” (Matter of Merriam, 84 N. Y., 596, 609.) .

I think the assessment was illegal so far as the charge for laying cross-walks is concerned. The order of the Special Term, should, therefore, be reversed, with costs, and the assessment upon the lots-of the petitioner should be reduced accordingly.

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

Order reversed, with costs, and the assessment upon lots of petitioner, so far as charge for laying cross-walks is concerned, reduced accordingly.


text:
    In the Matter of the Petition of ASHBEL H. BARNEY to Vacate an Assessment for Sixty-third and Sixty-seventh Street Underground Drain, Between Fourth and Fifth Avenues. In the Matter of a Like Petition of MARY E. BROOKS, to Vacate an Assessment for Seventy-ninth and Eighty-eighth Street Sewers. In the Matter of a Like Petition of ANNE MAHONEY. In the Matter of a Like Petition of MAX WEIL.

      Petition to meate an assessment — it abates on the death of the petitioner.

    Upon the hearing oí an appeal, taken by the executors and administrator of petitioners who had filed petitions to vacate an assessment, from orders denying motions to revive the proceedings:

      Meld, that the proceeding to vacate an assessment, being a special proceeding, abated by the death of the petitioner and could not be revived or continued in the name of his executors.

      Matter of Courtlandt Palmer (43 Hun, 572); People ex rel. Wicks v. Oswego County Court of Sessions (2T.&C., 431); Leavy v. Gardner (63 N. Y., 624) followed; People ex rel. Fairchild v. Commissioners (105 id. 674) distinguished.
    Appeal by the petitioners, Ashbel H. Barney and Charles T. Barney, as administrators, .from an order of the New York Special Term, which was entered in the office of the clerk of the county of New York on January 22, 1881, denying a motion to revive the above-entitled proceeding in the name of the said administrators.

      Charles E. Miller, for the petitioners, appellants.

      George L. Sterling, for the Mayor etc., of New York, respondents.
   Bartlett, J.:

These proceedings to vacate and set aside assessments were instituted at various times in 1872, 1873 and 1874. In 1887, orders were made at Special Term, upon testimony previously taken, reducing or vacating the assessments. These orders proved ineffectual, because the several petitioners were dead at the time when the orders were granted. Thereupon the executors or administrators of the petitioners moved to revive the proceedings- and to be substituted, but their motions were denied, and from the orders denying their applications they have appealed to the General Term.

In the Matter of Courtlandt Palmer (decided by this court in March, 1887,43 Hun, 572), it was held that a proceeding to vacate an assessment, being a special proceeding, abated by the death of the petitioner, and could not be revived or continued in the name of his executors. This decision was based on the authority of the People ex rel. Wicks v. Oswego County Court of Sessions (2 Thomp. & Cook, 431) and Leavy v. Gardner (63 N. Y., 624). Since it was rendered, how'ever, the Court of Appeals has held that the power exists to revive certiorari proceedings to review the removal of a person from office, and that his pei’sonal representative may be substituted in place of the deceased relator. (People ex rel. Fairchild v. Commissioners, 105 N. Y., 674).

Upon the authority of that decision the appellants insist that a special proceeding to vacate an assessment may be revived in like manner. But the revival in that case was after judgment pending an appeal; and, furthermore, it would seem that there is statutory authority for reviving a certiora/ri proceeding in section 2133 of the Code of Civil Procedure, which provides that after a writ of cerUorcuri has been issued any proceeding may be taken in the cause, as a similar proceeding may be taken in an action.

There is nothing in the case cited which indicates an intention to overrule the decisions to which we have referred to the effect that an ordinary special proceeding cannot be revived. In accordance With those authorities, these applications were properly denied and the orders denying them should be affirmed, with costs.

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

Orders affirmed, with ten dollars costs and disbursements.


author: Bartlett, J.: Daniels, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM DARROW and CHARLES A. DAVISON, as Trustees for HARRIET IVISON, Respondents, v. MICHAEL COLEMAN, EDWARD C. DONNELLY and THOMAS L. FEITNER, Commissioners of Taxes and Assessments of the City and County of New York, Appellants.

      PersonaZproperty held by trustees — tamable under chapter 392 of 1883 — trust property apportioned among the trustees residing in different States.

    Upon an appeal from an order vacating an assessment against the personal property of the relators, as trustees for Harriet Ivison, it appeared that the property sought to be taxed consisted of mortgages on lands in several of the western States, of the par value of $40,400, to which securities the trustees of Harriet Ivison held the legal title. These trustees were three in number, namely, William Darrow and Charles A. Davison, who were residents of New York, and David B. Ivison, who was a resident of New Jersey. The securities were in New Jersey in the actual custody of Mr. Ivison. The original assessment was $60,000, but on an application to strike it off the books as erroneous the commissioners struck from the roll the name of David B. Ivison and reduced the assessment against the New York trustees from $60,000 to $45,000.

      Held, that the phrase “owner or owners” in chapter 392 of 1883, which was entitled “An act to further define property that shall be subject to taxation,” included trustees. (Daniels, J., dissenting.)
    That the persons taxable under chapter 392 of the Laws of 1883 included those whose ownership in the debts or obligations, which were the subject of taxation, was representative, as well as those whoso ownership was absolute.
    That as only two of the three trustees were residents of this State, and as it has been held under such circumstances that the trust property, for the purposes of taxation, should be regarded as apportioned among the trustees according to their number, the amount assessed against the relators should be reduced by one-third.

      Hardy v. Inhabitants of Yarmouth (6 Allen, 277, 285); State ex rel. Harhness v. Matthews (10 Ohio St., 431, 437); Mayor of Baltimore v. Sterling (29 Md., 48) followed.
    Appeal from an order made at a Special Term held in the county of New York, which was entered in the office of the clerk of the city and county of New York on April 26, 1888, vacating an assessment against the personal property of the relators as trustees for Harriet Ivison.

      George S. Coleman, for the appellants.

      S. S. Brownell, for the respondents.
   Bartlett, J.:

By chapter 392 of the Laws of 1883, which is entitled “ An act to further define property that shall be subject to taxation,” it is provided that “ all debts and obligations for the payment of money due or owing to persons residing within this State, however secured, or wherever such securities shall be held, shall be deemed, for the purposes of taxation, personal estate within the State, and shall be assessed as such to the owner or owners thereof in the town, village •or ward in which such owner or owners shall reside at the time such assessment shall be made.” The property sought to be taxed in the present case consists of mortgages on lands in several of the western States, of the par value of $40,400, to which securities the trustees •of Harriet Ivison hold the legal title. These trustees are three in number, namely, William Harrow and Charles A. Davison, who are residents of New York, and David B. Ivison, who is a resident of New Jersey. The securities are in New Jersey in the actual custody of Mr. Ivison. The original assessment was $60,000, and was made against all three trustees; but, upon an application to strike it off the books as erroneous and illegal, the commissioners of taxes and assessments struck from the roll the name of David B. Ivison, the New Jersey trustee, and reduced the assessment against the New York trustees from $60,000 to $45,000, which appears to have been regarded as the value of the mortgages already mentioned. It is this reduced assessment which the court at Special Term has vacated and set aside on the ground that it is irregular and erroneous. The phrase “owner or owners”.in the act of 1883, as construed by the learned judge below, does not include a .trustee or trustees, but applies only to owners of personal property in their individual right.

After a careful consideration of the question I am unable to concur in this view. The purpose of the act of 1883 was not to define what persons should be subject to taxation, but to provide that persons already liable to be taxed under éxisting laws should be taxed for property that had hitherto been exempt from assessment by reason of the fact that the securities representing such property were outside the territorial limits of the State. The object of the enactment was to add to the taxable property which should fall within the scope of our system of taxation, but not to effect any change in respect to taxable persons. This is apparent from the title of the act itself. The expression “ owner or owners,” in the first section of chapter 392 of the Laws of 1883, should, therefore, it seems to me, be held to comprise such persons as were taxable as owners under the Revised Statutes; and there can be no doubt that trustees were thus taxable. The first provision of the Revised Statutes in respect to the property which shall be subject to taxation is that “ all lands and all personal estate within this State, whether owned by individuals or by corporations, shall be liable to taxation, subject to the exemptions hereafter specified.” (2 R. S. [7th ed.], 981, § 1.) It is further provided that “every person shall be assessed in the town or ward where he resides when the assessment is made, for all lands then owned by him within such town or ward and occupied by him, or wholly unoccupied.” (2 R. S. [7th ed.], 989, § 1.) Although in this latter provision nothing is said about the taxation of lands owned by trustees, a subsequent provision, in regard to the manner in which assessments are to be made, shows that the ownership of land which subjects it to taxation under the Revised Statutes may be the mere legal title of a trustee; for the law further directs that where a person is assessed as trustee,, guardian, executor or administrator, he shall be assessed with the addition to his name of his representative character, and for the full value of the real estate held by him in such representative character. (2 R. S. [7th ed.], 991, § 10.) So much for the ownership of real estate. As to personalty, the Revised Statutes mate it, perhaps, even more clear that the title of a trustee renders him liable to taxation in this State as owner. “ Every person shall be assessed in the town or ward where he resides when the assessment is made for all personal estate owned by him, including all personal estate in his possession or u/nder his control as agent, trustee, guardian, executor or administrator, and in no case shall property so held under either of those trusts be assessed against any other person.” (2 R. S. [7th ed.], 989, § 5.)

From these references it will be seen that the legislature in establishing our system of taxation, which still has its basis in the Revised Statutes, was careful to leave no doubt as to the persons who should be taxable by reason of their ownership of lands or goods within this State; and, out of abundant caution, it was made perfectly clear that those who held real estate or personal property in the representative capacity of trustees were to be taxed as owners, though the assessment-rolls were required to show that they were assessed in their representative character. The act of 1883 must be construed and interpreted with reference to the existing state of the law at the time it was passed and took effect; and trustees, as I have shown, being then liable to taxation as owners, it follows that they fall within the scope and intent of the phrase “ owner or owners,” as employed in the statute in question. It is said, by the learned judge who heard the case at Special Term, that the trustees here are not the owners of the mortgage securities in the ordinary acceptation of that term; but it seems to me that it is only the legal ownership which is contemplated by an act of the legislature, like that under consideration here. Certainly, the beneficiaries could not be taxed on account of these securities under the act of 1883.

Upon this branch of the case, my conclusion is that the persons taxable under chapter 392 of the Laws of 1883 include those whose ownership in the debts or obligations, which are the subject of taxation, is representative, as well as those whose ownership is absolute. The order appealed from, so far as it wholly vacates the assessment, ought, therefore, to be reversed.

I think, however, that the relators were assessed for too large an amount. The value of the mortgage securities appears to have been $40,400. There are three trustees, and, as is remarked in the opinion of the court below, the property cannot be said to belong to any one or two of them as contra-distinguished from the other. Only two of the trustees are residents of this State. Under such circumstances, it has been held that tbe trust property, for purposes of taxation, should be regarded as apportioned among the trustees, according to their number. (Hardy v. Inhabitants of Yarmouth, 6 Allen, 277, 285; State ex. rel Harkness v. Matthews, 10 Ohio St., 431, 437; Mayor of Baltimore v. Stirling, 29 Md., 48.) This rule is both equitable and practicable, and should be applied in such cases as the present. It requires that the amount assessed against the relators should be reduced by one-third.

I think the order appealed from should be reversea, with costs, and the proceedings remitted to the Special Term where application may be made for a reduction of the assessment in accordance with the views which have been expressed.

Van Brunt, P. J., concurred.

Daniels, J.

(dissenting):

The relators, together with David B. Ivison, are trustees of the estate of Henry Ivison, deceased, for the benefit of his widow Harriet Ivison, during her life, with remainder upon her death to his children. The trust estate was set apart by a decree of the surrogate of this county to these trustees for the execution of the trust This was done in February, 1886. The trust estate consisted of securities for the payment of money, and they have been held by and in the possession of David B. Ivison, as one of the three trustees at Rutherford, in the State of New Jersey, where he resides ; the other two trustees, being the relators in this proceeding, were residents of the city and county of New York, but neither of these trustees had possession of any part of the trust estate. That was wholly committed to the trustee residing in New Jersey. An application was made to the commissioners of taxes and assessments to strike out the assessment on the ground that the estate was not hable to taxation within the city and county of New York. They declined to do that,but struck out of the assessment the name of the trustee Ivison, and reduced it from $60,000 to $45,000. Thereupon a writ of certiorari was allowed to review the action of the commissioners, and upon the hearing of the return to the writ their decision was reversed and the property held not to be liable to taxation within this State, and it is from the order reversing the action of' the commissioners that this appeal has been taken.

As the law existed in this State prior to the enactment of chapter 392 of the Laws of 1883, only personal property within the State was liable here to assessment for the purpose of taxation. (1 R. S. [2d ed.], 379, § 1.) And it was repeatedly so held by the court of last resort in this State. The decisions relating to this subject were collected and considered in People ex rel. Jefferson v. Smith (88 N. Y., 576). This decision was made in the year 1882, and at the next session of the legislature in 1883, chapter 392 of the laws of that year was enacted, and that declared that all debts and obligations for the payment of money due or owing to persons residing within this State, however secured or wherever such securities should be held, should be deemed, for the purposes of taxation, personal estate within this State.

But this statute failed to declare that personal estate in the possession or under the control of a trustee, guardian, executor or administrator, should be included within, or be subject to, its provisions, as that had been done concerning personal property within this State by section 5 of article 1, title 2, chapter 13 of part 1 of the Revised Statutes. This section, after declaring that every person should be assessed in the town where he resided for all personal estate owned by him, then added the further provision, that it should include personal estate in his possession, or under his control, as trustee, guardian, executor or administrator. And this addition disclosed the understanding of the revisers, as well as of the legislature, to be that personal estate held by a trustee, or in either of these other capacities, would not be subject to assessment and taxation, without this additional direction. For if it had not been so understood, the law would simply have declared that- every person should be assessed for all personal estate owned by him in the town or ward where he resided, and terminated the enactment in that manner. That was the nature of the statute, on this subject, contained in the Revised Laws. (2 R. L., 509, chap. 52.) There no provision whatever was added for taxing, to a person as owner, such property as should be held by him as trustee, guardian, executor or administrator. And the change afterwards made by adding this phraseology to the preceding law is a further and significant circumstance, indicating that, in the judgment of the legislature, it was necessary that these words ' should be added to render a trust estate liable to assessment and taxation against the trustee as owner. In other words, it exhibits the understanding to have been that a direction alone, for the assessment of personal estate owned by an individual, would not be broad enough to include such as should be in his possession or under his control as a trustee. As the term owned ” was employed and is usually understood, it would not include an estate held in trust, as that is not technically owned by the trustee, but held and possessed by him for the exclusive benefit of another.

There is reason, therefore, for subjecting the act of 1883 to the more limited construction that it was designed only to include property of the description mentioned in it which should be owned in his own right by the person assessed and taxed. The correctness of this view is still further evinced by the fact that the estate to be assessed and taxed by virtue of its enactment has been described as debts and obligations due or owing to persons residing within this State, and that, according to the preceding legislation which is to be considered in the construction which should be given to this act, will ordinarily include no more than such debts and obligations as shall be due or owing for his own benefit to the person assessed. This construction is, to a certain extent, also sustained by the circumstances out of which this act of 1883 seems to have originated. In the preceding year, and for a long series of years prior to the decision of People v. Smith (supra), the relator in that proceeding-had escaped taxation on the ground that his money had been invested in the western States, and securities taken for the investments by agents there residing, which were there held and possessed by such agents. The legislature, actuated by the conviction that it was unjust that such property should escape taxation, while the owner of it actually resided in and received the protection of the laws of this State, enacted this statute to meet that class of cases. That was the occasion or necessity for the enactment, and, under the authorities, it may be considered as an aid to discover the intent of the legislature as well as the construction to which the language of the statute should be subjected. For the circumstances leading to the enactment of a statute may, where its language is obscure or doubtful, be considered, in a measure, as indicating the construction which the act should receive from the courts. Dibble v. Hathaway (11 Hun, 571-574) and People ex rel Supervisors v. Hopkins (2 Thump. & Cook, 586), where it was said, that “ If any doubt arises from the terms employed by the legislature, it has always been held a safe means of collecting the intention, to call in aid the ground and cause of making the statute. (Id., 588 ; People ex rel. Collins v. Spicer, 99 N. Y., 225; People v. N. Y. & M. B. Ry. Co., 84 id., 565.)

"With the aid of these circumstances, and the course of antecedent legislation in this State on the same subject, the conclusion seems to be warranted that the act of 1883 should not be so extended by construction as to include property held in trust by trustees, no part of which is within or protected by the laws of this State. In People ex rel. Neustadt v. Coleman (42 Hun, 5.81) an estate of this description was held to be liable to assessment and taxation in this State for the reason that the securities were within the city and county of New York, and this liability was held to exist, notwithstanding the fact that but one of the trustees resided in this city. And the principle of that decision would seem to require, where the trust estate is held and possessed by one of two or more joint trustees in another State, that it should be relieved from assessment for the purpose of taxation in this State. The laws of this State afford such an estate no security or protection whatever, while, in the case last referred to, the estate held liable for taxation was wholly subject to and protected by the laws of this State.

For these reasons, and those assigned for the decision at the Special 'Term, the order appealed from should be affirmed, with ten dollars ■costs and also the disbursements.

Order reversed, with costs, and proceedings remitted to Special Term, where application may be made for a reduction of the assessment in accordance with views expressed in opinion.


author: Brady, J.: Daniels, J.:

text:
    EDWARD ALING ROBERTSON and Others, Appellants, v. LEWIS A. SAYRE, Respondent.

      Purchaser at aforedosuresale — a master’s deed executed to a third person, at the request of the real purchaser, rests the title to the land in such third person, and in his grantee as against the real purchaser — 1 R. S., 728, sec. 51.
    In an action, brought in relation to two lots in the city of New York, for which the defendant had obtained a quit-claim deed from one Messenger in 1881, and under which he claimed title to the premises, it was claimed by the plaintiffs that, as heirs-at-law of one David H. Robertson, they were entitled to demand that the value of the lots should be fixed and declared, and that the defendant account for said value after being allowed the amount of any legal or equitable liens or charges that he might have against the same, and that the amount so found to be due to the plaintiffs be declared a lien upon the said lots, and in default of payment of the amount found due that the lots should be sold to satisfy the same.
    It was found by the referee before whom the action was tried that, at a foreclosure sale, the said Robertson had bought the two lots for fifty dollars, but gave the name of Thomas II. H. Messenger as the purchaser, and that afterwards, on January 18, 1841, at Robertson’s request,’the deed of the master in chancery for the said lots was made and executed to the said Messenger and delivered to Robertson, who recorded it in the office of the registrar of the city and county of New York. That this was done without the knowledge of Messenger, and when Robertson first informed Messenger thereof the latter, who had for many years previous been on very friendly social relations, with Robertson and his family, became greatly offended and refused to acquiesce in the transaction, and from that time until Robertson’s death they became, and continued to be “estranged.” Robertson died in May, 1851, intestate, and the plaintiffs are his-heirs-at-law.
    Although the title to the property stood on record in Messenger’s name, he was. not aware of it, nor did he ever exercise or claim any ownership of it, and in 1858 he removed from-New York city to Stamford, Conn. In 1881 the defendant’s attorney called upon Messenger, at Stamford, in relation to the lots, and finding that Messenger did not know that the title of the property stood in his. name, and had forgotten all about the matter until his memory was refreshed, the attorney returned within a day or two, bringing with him the defendant and a quit-claim deed, and, as it was claimed, by false Representations induced Messenger to execute it upon the defendant’s agreeing that if any of Mr. Robertson’s heirs should turn up in distress the defendant would help them, and named the amount of such help at one or two hundred dollars.

      Held, that, under the statute of uses and trusts, the title to the two lots vested in Messenger.
    That, although Messenger never claimed any ownership in them, and considered that the property belonged to Robertson’s heirs, and was always ready and ■willing to convey the same to them, yet the defendant, who hy concealment or misrepresentation of facts, and without consideration, and with full knowledge of Messenger’s disclaimer of ownership, induced Messenger to give a quit-claim deed of the property to him, became vested with a good title thereto as against the plaintiffs.
    That, inasmuch as Robertson was, at the time of the conveyance of the property to Messenger, insolvent, and as his design was clearly to prevent its application to the payment of his debts, the transaction came within the terms and spirit of the statute, 1 R. S., 728, § 51.
    That Messenger, being invested with a title by operation of law, had the absolute right to dispose of it as he pleased; and that'having this right, and having exercised it, he thereby committed no violation of law, nor did he violate any rule of public policy, and that no court could undo the act on the application of the heirs of the real purchaser at the foreclosure sale. (Per Brady, J.)
    That the evidence would not support the action which was brought by the heirs of the former owner of the land, whose interest was in form sold at the foreclosure sale. (Per Daniels, J.)
    That, as this action proceeded upon the ground that the person named as the purchaser in'the master’s deed was fraudulently induced by the defendant to quit-claim the land to him for a nominal consideration, the grantor in that deed was the proper person to redress that wrong, and that these plaintiffs had no right to complain of the deception by which such grantor was induced to give the deed. (Per Daniels, J.)
    Appeal from a judgment, recovered upon tbe trial of this action before a referee, dismissing tbe complaint of tbe plaintiffs herein, without costs, which was entered in the office of the clerk of the county of New York on January 1J, 1889.
    The action related to two lots of land, in the city of New York, for which the defendant obtained a quit-claim deed from one Messenger, in 1881, and under which he claimed title to the premises. The plaintiffs claimed that, as heirs-at-law of one David H. Robertson, they are entitled to demand from the court that the value of the lots be fixed and declared, and that the defendant account for such value, after being allowed the amount of any legal or equitable liens or charges he may have against the same, and that the amount found to be due plaintiffs be declared a lien upon said lots, and, in default of payment of the amount found due, that the lots be sold to satisfy the same.
    The facts, as found by the referee, are substantially as follows i At a foreclosure sale made by "William Mitchell, master in chancery, said David H. Robertson bought said two lots for fifty dollars, but gave the name of Thomas H. H. Messenger as the purchaser, and, afterwards, on January 18, 1841, at Robertson’s request, the master in chancery made and executed his deed for said lots to Messenger and delivered the samé to Robertson, who recorded it in the ■office of the register of the city and county of New York. All this having been done by Robertson, without the knowledge, assent or privity of Messenger, Robertson then first informed Messenger thereof. The latter, who had for many years previously been in very friendly social relations with Robertson and his family, when informed of Robertson’s action, became greatly offended and refused to acquiesce in the transaction, and, from the time of that interview until Robertson’s death, they became and continued “ estranged.” Robertson died in May, 1851, intestate, and the plaintiffs are his heirs-at-law.
    Although the title to the property stood of record in Messenger’s name, he was not aware of it, nor did he' ever exercise or claim any ownership of it. In 1858 Messenger retired from business and removed from New York city, where he had lived for many years to Stamford, Connecticut.
    In November, 1881, defendant’s attorney, Mr. Flanders, called upon Messenger at Stamford, in relation to the lots, and was surprised to discover, at the interview, that Messenger did not know that the title to the property stood in his name; he had, in fact, forgotten all about the matter that Robertson had informed him of forty years before, until the attorney for defendant had refreshed his memory by referring to the previous title in which Robertson’s name appears as assignee of the mortgage foreclosed as aforesaid.
    The attorney was also surprised to discover that Messenger had a wholly erroneous idea of the value of the property, and that he was well acquainted with defendant, who had once been his family physician. Seeing the utility of these discoveries, that Messenger was ignorant of his record title; that he disclaimed any ownership to the lots by reason thereof; that he was wholly ignorant of their value, and that he was acquainted with defendant, the attorney within a day or two returned to Messenger, bringing with him the defendant and a blank quit-claim. - What occurred at that interview is set forth in the eighth finding of fact. Messenger expressed his belief that the property must be eaten up by taxes and sales for taxes during the period of forty years since the deed to him had been recorded, and that they could be worth nothing. He fully explained the transaction about the deed being made to him through Robertson, and his rebuking Robertson for thus using his name without authority; that he claimed no interest in the property; that it belonged to Robertson’s heirs, some of whom he knew to be dead,, and the others were scattered and unknown to him, and that if any of them had appeared and requested a deed, he would have given it to them. Then, after some conversation concerning a supposed interest of the defendant in the lots, which interest was really nothing, although Messenger was led by defendant to believe that it. was something, Messenger said: “ I will tell you what I will do; if' any of Mr. Robertson’s heirs should turn up in distress, I will transfer this property to you, providing you will help them,” to which defendant replied, “ Agreed, I will do so; ” and when asked the-amount of such help Messenger named one or two hundred dollars — that being, as he supposed, the value of the lots when the deed was made to him, and before they had been eaten up by taxes- and assessments. A quit-claim deed was then made and executed by Messenger to the defendant for all his right, title and interest in the lots, but no consideration whatever was paid by defendant therefor. The other facts appearing in the case are that, about or previous to the time Robertson had the deed made in the name of Messenger, there were four judgments against Robertson unsatisfied of record. Upon these facts the learned referee finds, substantially, not only that the title to the two lots vested in Messenger under the statute of uses and trusts, but that even although Messenger never claimed any ownership to them, and conceded that the property belonged to Robertson’s heirs, and was always ready and'willing to convey the same to them, yet where a third person, who by concealment or misrepresentation of facts, and without consideration and with full knowledge of Messenger’s disclaimer of ownership induced Messenger to give a quit-claim deed of the property to him, such deed would vest a good title in him as against the plaintiffs.

      James A. Deering, for the appellant.

      A. B. Carrington, for the respondent.
   Brady, J.:

By the statute of uses and trusts (1 R. S., 128, § 51), the rule of the common law was changed and it was declared that no trust should result to the person paying the money on a purchase of real estate, hut the title should vest in the alienee named in the conveyance. The fifty-third section excepted cases where the alienee had taken an absolute conveyance to himself without the knowledge or consent of the person paying the money. Here, as we have seen from the facts, stating them as broadly as they can be given for the plaintiffs, it is not to be disputed that the money was paid by Robertson and the conveyance for his benefit taken by him in the name of another, namely, Messenger. The fifty-third section has, therefore, no possible application. The transaction was within the terms and spirit of the statute and was one inveighed against, inasmuch as Robertson was insolvent, and the design of it was clearly to evade the application of the purchase to the payment of his debts. The effect of section 51 on such an incident cannot be questioned. (Garfield v. Hatmaker, 15 N. Y., 478; McCartney v. Bostwick, 32 id., 59; The Ocean N. Bank v. Olcott, 46 id., 16 ; Everett v. Everett, 48 id., 218.)

Messenger being invested with the title by operation of law, albeit he disclaimed the whole proceeding, had the absolute right to dispose of it as he pleased. The payer of the money forfeited all rights which he might have acquired by taking the conveyance to himself. He deliberately incurred the penalty and sacrificed his money. Messenger having this right, exercised it, and as he committed no violation of law or rule of public policy, no court can undo the act, either for friend or relative of the purchaser in fact. Whether a court of equity would enforce the payment or performance of the peculiar consideration agreed upon for the transfer to the defendant, is not now a subject for consideration The learned counsel for the plaintiffs thinks that the case of Foote v. Bryant (41 N. Y., 544) sustains the right of his clients to indemnity from the defendant but this thought is an erroneous one. In that case it was held that the alienee could, if he chose, regard the equitable rights of the person paying the money and secure them by a lawful declaration of trust or conveyance, but if, in doing so, an absolute conveyance were executed to a third person without the knowledge of the cestui que trust, it brought the transaction within the provisions of the fifty-third section already mentioned. Here, as we have seen, there was a disclaimer by the alienee of the trust, and no attempt of his of any kind to secure the equitable rights of the payer of the money. The case is, indeed, bald of any preservative of them, and the judgment must be affirmed. The result seems to be harsh, but the statute is imperative.

Ordered accordingly.

Daniels, J.:

I do not think the statute avoiding a resulting trust, when the consideration is paid by one person and the title is taken in the name of another, applies to this case. Eor the deed was not delivered to the grantee named in it, but he refused to accept it or in any manner sanction the purchase or the conveyance to himself. The title on this state of facts did not vest in him. But that circumstance will not support the action, which is in favor of the heirs of the former owner of the land and whose interest was in form sold at the foreclosure sale. It proceeds upon the ground that the person named as the purchaser in the master’s deed was fraudulently induced by the defendant to quit-claim the land to him for a nominal consideration. But the grantor in this deed is the person to redress that wrong if it has been perpetrated. The plaintiffs have no right to complain of the deception by which he was induced to give the deed. If they have any remedy, it will be to set aside the sale for the reason that the nominal purchaser refused to accept or take the title. Whether even that is available to them is not a subject to be decided in this action which is for an entirely different object. As the case is now before the court there seems to be no other way open than to affirm the judgment.

Yan Brunt, P. J., concurred.

Judgment affirmed.


author: Beady, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MICHAEL BRIEN, Appellant.

      Larceny cmd receiiying stolen goods — they are distinct offenses and require different evidence to establish their commission.

    Michael Brien engaged one Williams to obtain from one of the public stores certain merchandise and gave him for that purpose forged orders, in form such as were required to obtain its possession. Brien was indicted jointly with Williams for larceny and for receiving stolen property and was tried separately. At the close of the case for the prosecution the recorder ruled out the counts for larceny and submitted the case to the jury under the charge of the indictment against the defendant of receiving property knowing it to be stolen.
    On appeal from a judgment of conviction rendered in the court of General Sessions:

      Eeld, that, as the appellant was the instigator and had employed Williams to assist him in procuring the goods, and as it was through the agency of Williams and by his use of the forged orders, which he received from the appellant, that possession of the goods was obtained, that both Brien and Williams were principals in the transaction.
    That it was, therefore, a taking by both and not a receiving by one.from the other.
    That larceny and the crime of receiving stolen goods are separate, distinct and independent offenses, requiring different kinds of proof.
    That the judgment should be reversed.
    Appeal by Michael Brien from a judgment rendered against him in the above-entitled action by the court of General Sessions of the Peace, held in and for the city and county of New York on the 21st day of May, 1888, convicting him of the crime of receiving property knowing it to be stolen.

      A Suydam, for the appellant.

      J. R. Fellows, for the respondent.
   Beady, J.:

The appellant engaged one Williams to obtain from one of the public stores certain merchandise, and gave him for that purpose forged orders, in form such as were required to obtain its- possession. He was indicted jointly with Williams for larceny, and for criminally receiving stolen property, and was tried separately. At the close of the case for the prosecution the learned recorder ruled out the counts for larceny and submitted the charge on those for receiving property knowing it to be stolen. The appellant was found guilty, and the curious anomaly is presented of the conviction of a man for receiving from himself goods stolen by him There can be no doubt of the appellant’s participation in the crime by which the goods were obtained. He was the instigator — the primary cause, having projected it and having employed Williams to assist him in perfecting it. It was through the agency of Williams, and by his use of the forged orders, which he received from the appel • lant, that possession of the goods was obtained. They were principals, therefore, equally guilty. The major crime was the criminal act by which possession of the goods was obtained from the lawful custodian of them, and this was done by both. It is, therefore, a taking by both, and not a receipt for one from the other. In the more ancient order of procedure, the conviction of the thief necessarily preceded the trial of the receiver, and the offense of the latter necessarily involved two persons, namely, the person who purloined the property, and the person who received it knowing it to have been stolen. If the latter was accessory before or after the fact, he was not a receiver, but a principal. Hnder the new procedure, it is not necessary to convict the thief before proceeding to try the receiver, but it clearly contemplates the existence of the former.

It is not now necessary to aver nor to prove that the principal who stole the property has been convicted or is amenable to justice — such are the provisions of section 551 of the Penal Code. This materially affects the question here to be passed upon in limyne, and that is, whether a man can be convicted of feloniously receiving from himself property which he has stolen. The statement of the proposition seems to refute it. Both offenses, and the two persons necessary to accomplish one of them, are united in the same person, if it be otherwise. This may be the outcome of modern science in the administration of criminal law, but it seems to be at war not only with principle and doctrine, but impossible without creating a new fiction by which the wrongful taker of the property shall be presumed to be evolved from the receiver and separately existing. .Larceny and the crime of receiving stolen goods are separate, distinct and independent, requiring different kinds of proof. The receiver may be convicted, although he was in no way connected with the original taking. It is enough that he knew of it when he received the property. The attempt, therefore, to sustain this conviction is by insisting that Williams was the thief. The learned district attorney in his brief says: “ That Williams was the thief cannot be disputed, and that he perpetrated the larceny alone is uncontradicted.” He is driven to this attitude, but it is wholly untenable. The conception of the crime, according to the record, was by the appellant, and Williams was only an accessory in point of fact. The appellant was a principal. Section 29 of the Penal Code sets all doubt of that at rest. “A person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids and abets in its commission, and whether present or absent, and a person who, directly or indirectly, counsels, commands, induces or procures another to commit a crime is a principal.” It is conceded that Williams was the thief, as we have seen, and the law thus places the appellant side by side with him. The learned recorder charged the jury that if the appellant employed Williams to steal the property, and Williams, in pursuance of that employment, furnished the truck, received the stolen property and placed it on the truck, he was acting as the agent of the appellant. This charge proceeds upon the same erroneous theory. The property was not stolen by the persons from whom it was received, and could not be received as stolen property unless, which has never been held in this country, the felonious taking constituted, eo mstanti, a felonious receiving, and made two offenses out of one act, each apparently inconsistent with the other. It is quite apparent that the errors complained of sprung from the assumption that Williams was the only thief, and this foundation made the whole superstructure false.

The judgment must be reversed, and new trial had.

Van Brunt, P. J., concurred; Daniels, J., concurred in the result.


author: Brady, J.:

text:
    ROBERT HILLIS, Appellant, v. WILLIAM BLECKERT, Respondent.

      Arrest — the complaint must allege the receipt of money in a fiduciary capacity — section 549 of the Code of Civil Procedure.

    Upon an appeal from an order vacating an order of arrest granted in an action, the ground of arrest was stated in the order tobe “for money received in a fiduciary capacity and converted to his own use and fraudulently employed.”
    The facts and circumstances constituting the demands of the plaintiff, which were set out in an affidavit, showed that the defendant was employed as the plaintiffs agent to sell certain goods on commission; that sales had been made under such employment; the receipt of the purchase-price, and a demand made therefor, coupled with an allegation that the money was converted by the defendant to his own use.

      Held, that as there was no allegation in the complaint that the money mentioned was received by the defendant in a fiduciary capacity, it was deficient in an essential element, as it was required by section 549 of the Code of Civil Procedure that such an allegation should be made in the complaint.
    That, as prior to the amendment of that section by chapter 672 of the Laws of 1886, that allegation was not required, the decisions prior to that amendment were of no value as regarded the present decision of this question.
    Appeal from an order made at a Special Term held in the county of New York, which was entered in the office of the clerk of the county of New York on March 11, 1889, in the above entitled action vacating an order of arrest granted therein.

      A. W. Gleason, for the appellant.

      Drachmam, & Nelson, for the respondent.
   Brady, J.:

The ground of arrest is stated in the order to be “ for money received in a fiduciary capacity and ■ converted to his own use and fraudulently misapplied.” In the undertaking, given upon the application for the order, the charge is for money had and received in a fiduciary capacity. The facts and circumstances constituting the demand of the plaintiff are set out in the affidavit also presented when the attachment was applied for, but there is no such charge directly made. It appears from that paper that the defendant was employed as plaintiff’s agent to sell certain goods on commission sales thereunder, the receipt of the purchase-price, and a demand of the money coupled with an allegation made that the money was converted by the defendant to his own use. There is no allegation in the complaint that the money mentioned was received by the defendant in a fiduciary capacity, and it is, therefore, deficient in an essential element. A statement of facts and circumstances which might justify the legal conclusion of money received in a fiduciary capacity does not comply with the statute, inasmuch as it requires such an allegation to be made in the complaint and declares that the plaintiff cannot recover unless he proves the same on the trial. (Code, § 549.) Prior to the amendment of that section, by chapter 672 of the Laws of 1886, the allegation was not required, and, therefore, the decisions prior to that amendment are of no value upon the question discussed. Indeed, the disregard of that amendmenthasled to-many errors in the application of the laws regulating orders of arrest. The effect of the omission considered was not passed upon by the court in Decatur v. Goodrich (44 Hun, 3), but it was held that facts similar to those herein set out against the defendant did not establish a fiduciary character, and were not such as entitled the plaintiff to an order of arrest, to which Robbins v. Falconer (43 Supr.Ct. [11 J. & S.], 363) is also akin. The case of King v. Arnold (12 Week. Dig., 30; S. C., 84 N. Y., 668) relied upon by the plaintiff, was decided in 1881, and, therefore, before the amendment of 1886. It has no-bearing upon the question here involved. It is not deemed necessary, however, to pursue this subject further. The plaintiff must, when he invokes the remedy of arrest on the ground that the defendant has, while in his employment, received his money in a fiduciary character, and improperly converted it to his own use, tender an issue on that subject by proper allegation in the complaint and prove it on the trial. He has not taken the first step herein, and his right to that remedy did not exist. The legislature intended to protect an agent or other defendant from improper restraint under section 549 of the Code, by requiring his prosecution to aver his delinquency by specific averment and to establish it by proper proof. This, as already suggested, has not been done, and the order appealed from was, therefore, properly made and should be affirmed, with ten dollars costs and the disbursements of this appeal.

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

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


text:
    SIGMUND BLUMENTHAL, Respondent, v. ADOLPH STRAUSS and MORRIS STRAUSS, Appellants.

      Dissolution of a firm by a sale of Ms interest by one pa/rtner to Ms copartners— the members of the firm purchasing such interest home no right to maintain a sign ancl paper heading signifying that they are successors of the original firm.

    Upon an appeal from an order granting an injunction restraining the use, by the defendants, of a firm name, it appeared that, prior to December 24,1888, certain copartners were carrying on business at No. 444 Broadway under the name of Strauss & Co.; that on the day mentioned the firm was dissolved, Blumenthal, one of the copartners, conveying to his copartners all and singular his right, title, estate and interest in and to the assets of the said firm of any and every nature, kind and description.
    Blumenthal subsequently formed a copartnership with one Boas, dealing in many of the same goods as those also dealt in by the firm of which he had theretofore been a member.
    The copartners, to whom Blumenthal had conveyed his interest in that firm, thereafter continued business at No. 444 Broadway and retained the old sign of the firm on the outside of the building, adding to it another sign containing the words, “Adolph Strauss & Co., successors to,” and also used the stationery of the old firm, changing it by stamping thereon the same words.
    In an action brought by Blumenthal to restrain Strauss & Co. from making such use of the name of the former firm:

      Held, that, as there was nothing in the facts and circumstances which justified the conclusion that, -by the agreement of dissolution, the plaintiff designed to grant, or that the defendants expected to acquire by it the right to assert that they were the successors to the business of the old firm, or of the members of the old firm, that the defendants had no righfso to employ the name of the retiring partner or to so assert in reference to the business of the original firm, and that the order should be affirmed.

      Morgan v. Schuyler (79 N. Y., 490) followed.
    Appeal from an order made at Special Term held in the county of New York, which was entered in the office of the clerk of the county of New York on the 9th day of March, 1889, granting an injunction restraining the defendants from, in any way, using or displaying the name of the plaintiff or any part thereof in connection with the business carried on by the defendants or by the firm of Adolph Strauss & Co., and from maintaining the plaintiff’s name or any part thereof upon the signs of the said firm in any manner, or by means of signs, circulars, advertisements or other methods, representing, describing or holding out the defendant’s firm of Adolph Strauss & Go. as being the 'successors of the late firm of Strauss, Blumenthal & Co.

      Julian, J. Frank, for the appellants.

      Hamilton Wallis, for the respondent.
   Brady, J.:

Prior to December 24, 1888, the parties to this action were copartners, carrying on business at 444 Broadway, in this city, under the firm name of Strauss & Go. It appears that on the day mentioned the firm was dissolved', the plaintiff conveying to the defendant all and singular his right, title, estate and interest in and to the assets of the said firm of any and every nature, kind and description. The plaintiff subsequently formed a copartnership with one Boas, and dealt in many of the same goods as those also dealt in by the firm of Strauss, Blumenthal & Co. The defendants have, since the dissolution, continued the business at No. 444 Broadway, and continuing the old sign of the firm on the outside of the building, added to it another sign containing the words “ Adolph Strauss & Co., successors to.” And it appeal’s that they also used stationery of the old firm, changing it by stamping thereon the same words.

It will have been observed that nothing in the transfer in its whole scope grants, in any form, the right of using the plaintiff’s name, or the right to declare themselves the successors of the old firm. Indeed, from the fact that the plaintiff purchased a part of the stock in trade of the old firm, the indication was of an intention to conduct a kindred business. There is nothing in the facts and circumstances, duly and closely considered, which justifies the conclusion that by the agreement of dissolution the plaintiff designed to grant, or that the defendants expected to acquire by it, the right to assert that they were the successors to the business of the old firm, or of the members of the old firm. And, in the absence of such an agreement, express or implied, there is no right so to employ the name of one of the partners on dissolution, or so to assert in reference to the whole business, since the decision of the Court of Appeals in Morgan v. Schuyler (79 N. Y., 490), a decision which has not been questioned.

That is a kindred case, and it was said, in considering the question, that it was evidently not the intention of the parties that the defendant in conducting his business was, in any manner, to use the plaintiff’s name, either in combination or as Morgan & Schuyler, or in subservience to it by advertising himself the successor to that firm. And, also, that it was not claimed that there was any express contract to that effect, and that none could be implied either from the language of the agreement actually made or from any fact or circumstance connected with it. The language of the transfer in this case is no broader than in that. The learned justice in tjie court below considered that adjudication decisive, and in this, we think, he was right. An examination of the cases cited by the appellants does not justify a contrary conclusion. They relate to the good will of a business and to the right to its trade-marks, upon an agreement kindred to that involved in this case. It is not deemed necessary to go into a detailed statement of these various cases; but it is .considered sufficient to state the general proposition that none of them involve the precise question here discussed, and which was presented to and disposed of hy the Court of Appeals, as already stated. For these reasons it is thought that the order appealed from should be affirmed, with costs and disbursements.

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

Order affirmed, with costs and disbursements.


text:
    CARL C. STRAKOSCH, Respondent, v. THE PRESS PUBLISHING COMPANY, Appellant.

      Examination of a pa/rty before trial to enable a defendant to answer — a necessity therefor must be shown to exist —such examination denied, when the information is otherwise attainable.

    Upon an appeal from an order vacating an order for the examination of the plaintiff before answer, it appeared that the action was based upon an alleged libel published in the New York World, which related to the conduct and condition of the so-called the Clara Louise Kellogg English Opera Company.
    The order for the examination of the plaintiff was obtained upon the ground that his evidence was necessary to enable the defendant to prepare and serve its answer, in. which it was intended to allege the truth of the article relied upon as libelous.
    The affidavit of the correspondent, on whose information the publication was made, showed that he had made inquiries of persons connected with the company, and from them had obtained information that the company was in the condition in which it was described and stated to be in the article in question.

      Held, that, as the correspondent was in a condition to supply the defendant with all the information that could possibly be required for the framing and presentation of an answer setting forth the truth of the statements contained in the article, that the order for the plaintiff’s examination was properly vacated.
    That a further defense that circumstances existed which, although falling short of a justification of the article, fairly induced the defendant to believe in the truth of its statements, would be sustained only by evidence which would be limited to the matters which came to the knowledge of the persons in the employment of the defendant at or before the publication of the article, and, therefore, the examination would not be properly allowed in order to enable the defendant to present that defense.

      Kinney v. Roberts (28 Hun, 166, 170) followed.
    Appeal from an order made ata Special Term held intbe county of New York, wliicb was filed in tbe office of the clerk of the county of New York on March 5, 1889, vacating an order for the examination of the plaintiff, which order so vacated had been made in order to enable the defendant to obtain information necessary for the preparation of its answer.

      De Lancey Kieoll, for the appellant.

      H. M. Whitehead, for the respondent.
   Brady, J.:

This action is based upon an alleged libel. The defendant avers that the publication was true, and desires the examination of the plaintifUbefore trial in order to frame a proper plea of justification, which must be accurate and full in detail. But no facts and circumstances can be employed except such as were known and believed to be true at the time of the publication (Kinncy v. Roberts & Co., 26 Hun, 166, and cases cited), and as to these there can be no necessity for the examination of the plaintiff, being already known and believed. (Case, supra) This seems to be the rule in this class of actions. The answer may be on information and belief, and may, therefore, embrace all the features of the justification which were known and believed. This disposes of the appeal without considering the plaintiffs affidavit denying the truth of the statements in the libel contained. The law has properly declared that when libelous matter is published of a person, the publisher cannot resort to the evidence of the person maligned before trial for the purpose of •establishing a justification or facts in mitigation of damages. They should be known when the asserted libel was framed and believed, and must be established on the trial to avoid responsibility or to limit it. This rule imposes care; suggests scrupulous investigation and regards and respects the rights of the person assailed.

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

Daniels, J.:

The action is for damages for the publication of a libel. The article alleged to be libelous was published in the New York World, and it related to the conduct and condition of what was called The Clara Louise Kellogg English Opera Company. The order for the examination of the plaintiff was obtained upon the ground that his evidence was necessary to enable the defendant to prepare and serve its answer, in which it was designed to allege the truth of the article relied upon as libelous. To entitle the defendant to obtain the evidence of the plaintiff for this purpose, subdivision 4 of section 872 of the Code of Civil Procedure required that it should be shown, in .support of the application, that his testimony was material and necessary for the party making the defense in the suit. It was stated in the affidavit of the attorney that this examination of the plaintiff was necessary for the framing of a proper answer by way of justification of the article.

But this was a mistaken view of the position and situation of the defendant. For by the affidavit of the correspondent, on whose information the publication was made, it was shown to be the fact that he had made inquiries of persons connected with the company, and from them had obtained information that the company was in the condition in which it was described and stated to be in the article relied upon as the plaintiff’s ground of action. Upon rumors which reached the correspondent he made investigations, and was informed of the several matters contained in the article leading to the statements as they were set forth in the paper. This correspondent was in the employment of the defendant, and, according to his affidavit,, was in the condition to supply the defendant with all the information that possibly could be required for the framing and presentation of an answer setting forth the truth of the statements contained in the article. And if the defendant shall be able to establish the fact that the statements contained in the published article were true, then that of itself is a legal defense to the action. And it will not be confined to the information obtained before the publication of the article by way of evidence to prove that defense.

If the further defense is to be added that circumstances existed falling short of a justification of the article, which fairly induced the defendant to believe in the truth of its statements, that must, in a general sense, be limited to the matters which came to the knowledge of the persons in the employment of the defendant at or before-the publication of the article. (Kinney v. Roberts & Co., 26 Hun, 166,170). But the defendant can besubjected to no such restriction in the proof which may be produced to establish the truth of the publication. The affidavits fail to support the fact, without which the order could not be made, that the evidence of the plaintiff was necessary for the defendant before it could properly frame and serve its answer. The order was right, and it should be affirmed, with ten dollars costs and the disbursements.

Order affirmed, with ten dollars costs and disbursements.


text:
    MARTIN MAHER, Respondent, v. THE MANHATTAN RAILWAY COMPANY, Appellant.

      Action for negligence — under what circumstances the defendant is required, to furnish an explanation of the occurrence.

    Upon an appeal from a judgment, entered upon a verdict in favor of the plaintiff in an action brought to recover for personal injuries caused by the defendant’s carelessness, it appeared that on or about August 18, 1887, as the plaintiff was about entering the cellar of his residence No. 746 Greenwich street, in the city of New York, he was struck on the head by a bar of iron and was severely injured.
    The railway tracks of the defendant passed through Greenwich street, and in front of the plaintiff’s residence, and were supported on an elevated iron structure, and at the time the plaintiff was struck a train was passing by overhead. There-was no other structure at that point over the street, except the elevated structure of the defendant. The iron which fell on the plaintiff was seen descending-from the passing train, and its flight was observed from the time that it just began to descend from the train until it struck the plaintiff.
    The defendant’s motion to dismiss the complaint upon the ground that the plaintiff had failed to show that the piece of iron in question fell from the train or the structure of defendant’s railway company, or was dropped by anyone in the defendant’s employ, was denied by the trial court.

      Held, that, as the fact was stated, and wholly uncontradicted, that a piece of iron, similar to the one shown in. court on the trial and which struck the plaintiff,, was seen in the air falling, and apparently coming from the defendant’s train, the motion was properly denied.
    The defendant also moved to dismiss the complaint on the ground that the plaintiff had failed to show any negligence on the part of the defendant causing the injury.

      Held, that it was the duty of the trial court to submit the question of negligence to the jury.
    That the plaintiff was entitled to' protection from any negligent act of the defendant while in the exercise of any right relating to his property or in the lawful use of the street, and that it was the duty of the defendant, in the exercise of its franchises, to use all necessary caution, care and diligence to prevent injury to persons or property.
    That if a person was injured and there was reason to believe that a missile occasioning such injury emanated from the defendant’s structure or machinery, the- • defendant on proof of its appearance and the injury done by it, was bound to give some explanation of the cause of its occurrence.
    Appeal from a judgment recovered upon a verdict for $1,390 in favor of tbe plaintiff, rendered at the New York Circuit, which was entered in the office of the clerk of the county of New York, and also from an order denying the defendant’s motion made-upon the minutes of the justice presiding at the trial, to set aside the verdict and for a new trial, which was entered on the same day in the same office.
    On or about August 18, 1887, as the plaintiff was about entering-the cellar of his residence, No. 764 Greenwich street, in the city of New York, he was struck on the head and foot by a bar of iron and was severely injured. The railway tracks of the defendant company passed through Greenwich street, and in front of plaintiff’s residence supported on elevated iron structures, and at the time the plaintiff was struck a train was passing by overhead. There was no other structure at that point over the street except the elevated structure of tbe defendant. The bar of iron which fell on the plaintiff was seen descending from the passing train, and its flight was observed from the time that it just began to descend from the train until it struck the plaintiff.

      Townsend & Page, for the appellant.

      Doherty, Durnin & Hendrick, for the respondent.
   Brady, J.:

The defendant gave no evidence, depending upon the assumed infirmity of the plaintiff’s case. The propositions argued now, and urged on the motion to dismiss, are:

First. The learned trial justice erred in denying defendant’s motion to dismiss the complaint upon the ground that the plaintiff had failed to show that the piece of iron in question fell from a train or the strticture of defendant’s railway, or was dropped by anyone in the defendant’s employ ; and,

Second. The learned trial justice erred in denying defendant’s motion to dismiss the complaint upon the ground that the plaintiff had failed to show any negligence on the part of the defendant causing the injury.

In the effort to sustain the first proposition it is said that there is no evidence whatever connecting the defendant with the fall of the iron. This is somewhat extraordinary when the testimony is that it was seen falling from the direction of the defendant’s train passing at the time, and immediately thereafter striking the plaintiff, there being no other structure at the locus in quo from which it could have fallen. The testimony may be interpreted, by ingenious device, to mean something else as matter of argument, or speculative theories may be invoked to demonstrate that it was part of a thunderbolt such as the ancients supposed Jove to employ and particularly to threaten when worsted in argument; but the fact stated, and wholly uncontradicted, is that a piece of iron similar to the one shown in court on the trial, and which struck the plaintiff, was seen in the air falling and apparently coming from the defendant’s track or train.

The second proposition depends for its maintenance upon a kindred argument; and, therefore, if the first be unsound, the second has no force under the facts and circumstances which required the justice presiding at the trial t<. submit the question of negligence to the jury. That was, ind( id, the only issue, there being no pretense that the plaintiff eont fluted to his own injury. It may be unnecessary to say that the ^ laintiff was entitled to protection from any negligent act of the defendant while in the exercise of any right of property and the lawful use of the street, and that it was the duty of the defendant, in the exercise of 'its franchise, to use all necessary caution, care and diligence to prevent injury to person or property. If, by any untoward circumstance, a person is injured and there is reason to believe that a missile occasioning it emanated from the defendant’s structure or machinery, and that incident from its nature may constitute an element of negligence or want of care, the defendants, on proof of its appearance and the injury done by it, are put to the duty of explanation at least. Here the evidence fully justified the conviction that the iron which struck the plaintiff came from the defendant’s structure or its appointments, there being evidently no other source at the time of its appearance. The presumption is against the employment of the missile by the wrongful act of persons for whose conduct the defendant is not responsible and if the defendant is excusable upon this ground, it must prove the fact establishing the excuse. (Per Grover, J., in Edgerton v. N. Y. and Harlem R. R. Co., 39 N. Y., 227.) The iron which fell is germane to the structure, which is chiefly of that material as well as the machinery employed, and it must be that it was broken off in some way while the franchise was in use, which would indicate the absence of that care and duty, that high sense of obligation which is imposed upon the defendant to keep its structure and machinery in such perfect condition that no one, except by extraordinary circumstance, to be proved by it, shall be injured. And this rule should apply as well to wayfarers along the public streets as to passengers. And it does, and hence the decision in McNair v. Manhattan Railway Company (46 Hun, 502), in which the defendant was held liable for injuries occasioned by a clinker or cinder which fell from its structure. The court said, in that case, assuming that a passenger along the street can be injured by one of the very many locomotives of the defendant by a cinder, something is called for from the company by way of explanation. The distinction between that case and that of Searles v. The Manhattan Company (101 N. Y., 661), is explained in the fact that, in the latter case, it appeared that the appliances used upon the defendant’s locomotives to prevent the escape of sparks and cinders were skillfully made and were the best known. Here it must not be forgotten that an accident, which if not in its nature negligence per se, is at least one which may be declared evidence of negligence by the jury, is not explained, and no effort is made to excuse it in any form. The reliance of the defendant is ujion the .abstract technical proposition that there is no evidence of negligence by them, although the injury was occasioned by their structure and its use, and the plaintiff is in no way in any sense responsible for it. This, under the facts and circumstances herein, is not common sense, and should not be the law which is supposed to be the offspring of that attribute, although it is sometimes fiercely rejected in adjudicated cases. Indeed, the Court of Appeals have substantially rejected such an attitude as that taken by the defendants as suggested in Seybolt v. New York, Lake Erie and Western Railroad Company (95 N. Y., 568), in which Huger, Ch. J., .said: “ While it is true, as a general proposition, that the burden of .showing negligence on the part of the defendant occasioning an injury rests in the first instance upon the plaintiff, yet in an action of this character, when he has shown a situation which could not have been produced except by the operation of abnormal causes, the onus then rests upon the defendant to prove that the injury was caused without his fault.” (See cases cited by him.) The question of the defendant’s negligence was duly submitted to the jury by a charge to which no exception was taken, and it must be assumed not only that the rules of law therein expressed were accepted, but that upon the issues of the defendant’s negligence, as a question of fact, the verdict of the jury is conclusive.

No reason is discovered for disturbing this judgment, and it .should be affirmed, with costs.

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

Judgment affirmed, with costs.