author: Cullen, J. :

text:
    In the Matter of the Application of JAMES W. LAMB to Have Canceled Certain Taxes on Real Estate.

      Taxes—power of the legislature to ratify, without giving notice to the prn'ty assessed.

    In a proceeding, instituted under the provision of chapter 656 of 1886, relative to taxes in Long Island City, to have certain taxes canceled upon the ground that their invalidity appeared on the face of the proceedings by which they were levied, the defect alleged was that the assessors did not make or attach to the rolls the affidavit required by law.

      Held, that while the failure to make and attach the affidavit prescribed by the statute invalidated the taxes as they were originally imposed, yet as section 15 of the same statute, under which these proceedings were instituted, provided that “all taxes, water rates or rents heretofore laid or levied prior to the year 1883, or intended so to be for city, ward, State and county purposes in said city, and now on record, with interest thereon allowed by law, are, in all respects, ratified and confirmed, and the same, and each and every thereof, are hereby levied and made a lien upon the several pieces of land and premises upon which the same were originally assessed or levied, or intended so to be, as a tax to be collected as hereinbefore provided,” that this proceeding could not be maintained.
    The petitioner contended that this act was unconstitutional and that the legislature could not relevy a tax without providing for notice thereof to the taxpayer.

      Held, that this contention could not be sustained in this case as the assessors had the power to levy the taxes, and the lands of the petitioner were subject to taxation, and no error in the levy or apportionment of the taxes was averred.
    That the legislature had power, by a subsequent enactment, to cure the defect in the proceedings, occasioned by the failure of the assessors to properly verify their determination, without providing for a notice to the taxpayer and for a hearing by him.

      Ensign v. Barse (107 N. Y., 329) followed.
    Appeal by the defendants, Long Island City and Frederick W. Bleclcwenn, as assessor, etc., from an order made at a Special Term held at White Plains, Westchester county, on December 1, 1888, which was entered in the office of the clerk of Queens county on December 3,1888, directing the cancellation of certain taxes on real property.

      Hector M. Hitchings, for the petitioner.

      W. J. Foster, for Long Island City.
   Cullen, J. :

This is a proceeding under the provisions of chapter 656, Laws of 1886, relative to taxes in Long Island City, to have certain taxes canceled on the ground that their invalidity appears on the face of the proceedings by which they were levied. The proceedings of the assessors are not produced on the appeal, but the petition in this matter alleges the defect to be that the assessors did not make or attach to the. rolls any affidavit required by law. • This allegation is not denied, and for such defect the court, at Special Term, vacated the taxes.

The failure to make and attach the affidavit jirescribed by the statute doubtless invalidated the taxes as they were originally imposed. But by the same statute of 1886, it is provided (§ 15) “All taxes, water rates or rents heretofore laid or levied prior to the year 1883, or intended so to be for city, ward, State and county purposes in said city, and now on record, with interest thereon allowed by law, are in all respects ratified and confirmed, and the same and each and every thereof are hereby levied and made a lien upon the several pieces of land and premises upon which the same were originally assessed or levied, or intended so to be, as a tax to be collected as hereinbefore provided.” Assuming that this legislation related to defective or void taxes of the character of those in dispute, the respondent contends that it is unconstitutional, and that the legislature cannot relevy or validate a tax without providing for notice to the taxpayer and for a hearing. We are of opinion that this contention is not universally true, and that its soundness or unsoundness depends on the character of the defect for which the original tax was invalid. If there was no statute authorizing the imposition of the tax in the first instance,- or if the statute purporting to confer authority was void for lack of provision for notice and hearing, or any other reason, the doctrine contended for would apply. Such, also, would be the case if the original apportionment of the tax had been erroneous and the tax void for that reason. For the taxpayer would be entitled to a correct division of -the charge or burden, and that he may secure such, is the very necessity for a hearing. But the defect for which these taxes are assailed is of a different character. The assessors had the power to levy the tax; the lands of the petitioner were subject to taxation, and no error in the levy or apportionment of the tax is averred.

The assessors failed, therefore, so far as appears on the papers, not in their proceeding to determine the tax, but in not properly verifying their determination. It seems to us that the case of Ensign v. Barse (107 N. Y., 329) covers the case at bar. It was there held that the legislature could cure, by subsequent enactments, defects in the proceedings to levy taxes founded upon acts or omissions which the legislature might have originally dispensed with, and that such defects are not jurisdictional. The failure of the assessors to verify the tax-rolls, we think, was of this character. The respondent has not argued before us that the act of 1886 was not intended to cover cases like the present. Unless it was intended to so apply we do not see in what cases it would operate. We are of opinion, therefore, that the passage of that act validated the taxes here questioned, and that the petitioner was not entitled to have them canceled.

The order appealed from should be reversed and the petition denied, with ten dollars costs and disbursements.

Pratt, J., concurred.

Order reversed and petition denied, with ten dollars costs and disbursements.


source: Caselaw Access Project

license: Public Domain

text:
    First Department,
    December 17, 1888.
    Adolph Goslin, Respondent, v. The Mayor, etc., of the city of New York, Appellant.
   Motion denied upon payment of ten dollars costs, and appellants stipulating to argue at the next term.


text:
    Hiram B. Aylsworth, Respondent, v. James Gallagher, Appellant.
   Motion denied.


text:
    In the Matter of Frank J Keller, an attorney, etc.
   Order of reference to take proof of facts, granted.


text:
    Sarah Clarke v. Moses Devoe.
   Motion granted upon payment of ten dollars costs.


text:
    Farmers’ Loan and Trust Company v. The Bankers and Merchants’ Telegraph Company.
   Upon the motion to dismiss the appeal of wise and Bill herein, no excuse was offered for failure to print the papers, and no affidavit was ever presented showing any excuse. Upon the settlement of the order a memorandum, claiming to show an excuse was submitted, but as the purpose of requiring a notice of settlement of orders is not to afford an opportunity to re-argue the motion, such memorandum could not he considered. In the motion now before the court the affidavits submitted in answer to the motion seem to present an excuse, and the motion should be denied.


text:
    The Columbia Bank v. Lorin Ingersoll. The Rhode Island National Bank v. Lorin Ingersoll.
   There is no provision in the rules for such a motion as this. The parties having extended the time to serve papers beyond the commencement of the term, there is no provision for the making of a motion to dismiss. Motion denied.


text:
    In the Matter of the Probate of the Will of Catherine Darragh, Deceased.
   The making of this motion having been delayed until tlie appellant had printed his papers, we think that he should be allowed to supply the undertaking upon payment of ten dollars costs. The undertaking submitted with the papers cannot be approved because of tlie erasures contained therein. We do not find in the copy of the case submitted on this motion any certificate of the clerk of the Surrogate’s Court that the appeal book is a correct copy of the record of the Surrogate’s Court. This must he supplied or the case cannot he heard. This certificate upon appeals from the surrogate cannot he waived by consent of parties.


text:
    Kingsland & Williams v. The Mayor.
   Motion denied upon the ground that the papers are type-written upon paper which in no way com plies with the provision of the Code.


text:
    Fifth Department,
    January Term, 1889.
    The Pfaudler Process Fermentation Company, Appellant v. McPherson Smith and another, Respondents.
   Judgment affirmed. Opinion by Barker, P. J.


text:
    Charles Robinson, Respondent, v. Addison R. Baldwin and another, Appellants.
   Judgment affirmed, with costs. Dwight, J., not sitting.


text:
    Charles Brigham, as Executor, etc., of Harriet T. Sedgwick, Deceased, Respondent, v. Delia J. Gott, Impleaded, etc., Appellant.
   Judgment reversed and new trial ordered, costs to abide the final award of costs. Opinion by Haight, J.


text:
    Edward J. Kelsey, Respondent, v. The Pfaudler Process Fermentation Company, Appellant.
   Judgment affirmed. Opinion by Bradley, J.


text:
    White Sewing Machine Company, Respondent, v. Allen Fargo, Appellant.
   Judgment affirmed. Opinion by Dwight, J.


text:
    Edward J. McLeod, Respondent, v. John Maloney and another, Appellant.
   Judgment and order affirmed. Opinion by Barker, J.


text:
    In the Matter of the Final Settlement of Edwin J. Cleflin, General Assignee of W. H. Harris.
   Both orders affirmed, with ten dollars on one appeal, and disbursements in both. Opinion by Barker, P. J.


text:
    Wesley Mandeville, as Receiver, etc., of Henry J. Beck, Appellant, v. Edward H. Avery, Respondent, Impleaded, etc.
   Judgment and orders subsequent to verdict reversed, and further proceedings to be had according to tbe practice in such cases, with costs of this appeal to the plaintiff to abide the event. Opinion by Bradley, J ; Dwight, J., not sitting.


text:
    In the Matter of the Judicial Accounting of Job Sayre, Administrator of William H. Sayre, Deceased.
   Appeal dismissed for want of juris diction, with ten dollars costs and disbursements. Opinion by Haight, J.


text:
    Harriet S. Chamberlain, Respondent, v. The Insurance Company of North America, Appellant.
   Judgment affirmed. Opinion by Bradley, J.


text:
    Gertrude Schum, Respondent, v. The City of Rochester, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Haight, J.; Bradley, J., not voting.


text:
    Margaret Curran, Appellant, v. The City of Auburn, Respondent.
   Order affirmed, with . costs of this appeal to the defendant to abide the event.


text:
    Franz X. Winkler and another, Respondents, v. William Summers, as President, etc., and others, Aldermen of the City of Buffalo, Appellants.
   Judgment affirmed, with costs on the opinion of Daniels, J., at Special Term.


text:
    Henry Wright, Respondent, v. Charles Boller and another, Appellants.
   Judgment affirmed. Opinion by Bradley, J.


text:
    Harriet Richardson, Respondent, v. Herman Van Voorhies and another, Appellants.
   Judgment and order affirmed. -Opinion by Haight, J.


text:
    In the Matter of the Probate of the Alleged Last Will and Testament of Louisa M. Ramsdell, Deceased.
   Decree and order affirmed, with costs to both parties to be paid out of the estate. Opinion by Dwight, J.


text:
    Mary Keeler, Appellant, v. William Keeler and others, Respondents. (In re will of Morris Keeler, deceased.)
   Decree reversed on an issue of fact, and the questions at issue ordered to be tried by a jury at the Cayuga Circuit. Issues to be settled by Barker, P. J Costs to abide the subsequent proceedings to he had in the Surrogate’s Court. Opinion by Barker, P. J.; Dwight, J., not voting.


text:
    Newell N. Shaffer, Respondent, v. George Harmon, Appellant.
   Judgment and order reversed and new trial ordered, costs to abide event. Opinion by Haight, J.


text:
    Lyman D. Norris, Respondent, v. George W. Shannon, Appellant.
   Judgment affirmed.


text:
    George Tummonds, Respondent, v. Charles P. Moody, Appellant.
   Judgment affirmed. Opinion by Bradley, J.; Haight, J., not sitting.


text:
    Emma Ostrander, Respondent, v. Matthew P. Campbell, Appellant.
   Judgment of the County Court and that of the justice reversed. Opinion by Dwight, J.; Haight, J., not sitting.


text:
    Mary A. Stryker, Appellant, v. Francis M. Schuyler, Respondent.
   Judgment affirmed, with costs. Opinion by Haight, J.; Barker, P. J., not sitting.


text:
    William E. Clark, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.
   Judgment and order affirmed. Opinion by Barker, P J.; Dwight, J., not sitting.


text:
    Adoniram J. Abbott and others, Respondents v. Louisa M. Royce and another, Appellants.
   Motion for new trial denied and judgment ordered for the plaintiff on the verdict. Opinion by Dwight, J.; Bradley, J., not sitting.


text:
    The People of the State of New York, Respondent, v. George F. Mink, Appellant.
   No case received by the court, and consequently not considered.


text:
    Amos B. Scofield, Respondent, v. Lafayette C. Scott and others, Appellants.
   Judgment affirmed, with costs to the respondent, payable out of the assigned estate. Opinion by Dwight, J.


text:
    Oliver Durfee, as Assignee, etc., of Leroy B. Howd, Respondent, v. William H. Bump, Appellant.
   Judgment affirmed, with costs. Opinion by Haight, J.


text:
    Mary R. Bullock, Respondent, v. John M. Bemis, Appellant.
   Judgment reversed and new trial ordered before another referee, costs to abide event. Opinion by Dwight, J.


text:
    In the Matter of the application of the Niagara Falls and Whirlpool Railway Company to acquire lands of Jane S. Townsend.
   Order affirmed, with ten dollars costs and disbursements; Bradley, J., concurs so far as the order sets aside the order appointing commissioners.


text:
    Herbert P. Bissell, as Receiver, etc., Respondent, v. J. Smith McMaster, Appellant, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements.


text:
    The People of the State of New York, Respondent, v. Frank L. Meyers, Appellant.
   Judgment and conviction affirmed, and proceedings remitted to the Court of Sessions of Steuben county. Barker, P. J., dissenting


text:
    Thomas V. Welch, as Receiver, etc., Appellant, v. Lauren C. Woodruff and another, Respondents.
   Judgment reversed on a question of fact and a new trial ordered, costs to abide the final award o? costs. Opinion by Barker, P. J.; Bradley, J., not voting.


text:
    The Rochester Printing Company, Respondent, v. A. B. Kellogg and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements.


text:
    William H. Ensign and others, Appellants, v. John L. McKinney and others, Respondents.
   Order affirmed, with ten dollars costs and dispursements, on opinion of Daniels, J., at Special Term; Bradley, J , taking no part.


text:
    In the Matter of the Last Will and Testament of Julia G. Skinner, Deceased
   Decree reversed upon a question of fact, and a trial by jury al, the Chautauqua Circuit ordered of the material questions of fact arising upon the issues between the parties to he settled by Dwight, J., unless agreed upon by the parties, costs to abide the subsequent proceedings to be had in the Surrogate’s Court. Barker, P. J., and Haight, J.. not sitting.


text:
    Amy A. Barber, Appellant, v. William Moon and others, Respondents, and Loretta Zimmers and others, Appellants.
   Judgment affirmed, with costs.


text:
    Daniel F. Alverson, v. The Canandaigua Water-Works Company.
   Motion for a new trial denied, with costs.


text:
    William Arndt, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order affirmed.


text:
    Estelle C. Church, Respondent, v. Harry B. Orsland, Appellant.
   Judgment affirmed, with costs.


text:
    Delia M. Paul, Respondent, v. Levancha J. Heath, Appellant.
   Judgment affirmed, with costs.


text:
    Horatio Ballard, Respondent, v. Michael Vehala, Appellant.
   Judgment affirmed. Memorandum by Dwight, J.


text:
    Eliza D. Sidway, Appellant, v. Isabel Sidway, as Administratrix, Respondent.
   Order reversed, with ten dollars costs and disbursements.


text:
    Sherman S. Rogers, Respondent, v. The Common Council of the City of Buffalo and Ceriac Diebold, Appellant.
   Judgment affirmed, without costs to either party. Haight, J., notvoting.


text:
    The Traders’ National Bank of Rochester, Respondent, v. Edward Bush, Appellant, Impleaded, etc.
   Judgment and order affirmed.


text:
    John McEwen, Respondent, v. Northern New York Manufacturing Company, Appellant.
   Judgment affirmed. Memorandum by Barker, P. J.


text:
    Bank of Buffalo v. John Thompson and others.
   Motion for new trial denied, with costs on the authority of First National Bank of Batavia v. Tarbox (38 Hun, 57.)


text:
    Cordelia A. Van Dusen v. Sarah Wilcox.
   Motion for reargument denied and memorandum of decision modified by striking out the words “with costs to abide the event,” and inserting “upon payment by the appellant of the costs and disbursements of the trial and of this appeal.”


text:
    Louis R. Bennett and another v. The Western Union Telegraph Company.
   Motion for leave to appeal to the Court of Appeals denied.


text:
    The People of the State of New York, Respondent, v. Olney Dean, Appellant
   Appeal dismissed.


text:
    The People of the State of New York, Respondent, v. Charles Kennedy, Appellant.
   Appeal dismissed.


text:
    Fourth Department,
    January Term, 1889.
    Charles E. Lee, Respondent, v. John P. Laughlin, Appellant, Impleaded with Patrick Bird and James Bird.
   Order reversed, with ten dollars costs and printing disbursements. Verdict and judgment set aside, with ten dollars costs, and new trial granted. Opinion Per Guriajm, filed with clerk of Onondaga county. Kennedy, J., not sitting.


text:
    The Ithaca Agricultural Works, Appellant, v. Judah Eggleston and Alden B. Eggleston, Respondents.
   Order of reference affirmed, but order of confirmation reversed and leave granted to the appellant to issue an execution against Judah Eggleston, with ten dollars costs and disbursements in County Court, and with costs of this appeal against Alden B. Eggleston. Opinion by Kennedy, J.


text:
    Abijah S. Wakeman, Respondent, v. Jacob Wilbur and Sylvia A. Wilbur, Appellant.
   Judgment reversed on the exceptions and anew trial ordered, with costs to abide the event. Opinion by Kennedy, J.


text:
    Percival Maricle, Respondent, v. Law S. Brooks, Appellant.
   Judgment and order affirmed, with costs. Opinion by Kennedy, J., Martin, J., not sitting.


text:
    Josiah D. Payne, as Executor, etc., Appellant, v. Elizabeth H. Freer, Individually and as Executrix, etc., Respondent.
   Judgment affirmed, with costs to be paid out of the estate or plaintiff’s testator: Opinion by Martin, J.


text:
    The City of Elmira, Appellant, v. The Maple Avenue Railroad Company, Respondent.
   Judgment affirmed, with costs. Opinion by Kennedy, J.


text:
    Walter Hunt, Respondent, v. Frederick Walch, Appellant.
   Judgment and order affirmed, with costs. Opinion by Follett, P. J., Kennedy, J., not sitting.


text:
    Jacob P. Youker, Respondent, v. Mary L. Treadwell, Appellant.
   Judgment affirmed, with costs. Opinion by Martin, J.


text:
    Ruez R. Mackey and Rebecca Osterhout, as Administrators of Elihu G. Osterhout, Respondents, v. William H. Couse, Appellant.
   Judgment reversed and new trial granted, with costs to abide the event. Opinion Per Guriam filed with the clerk of Onondaga county.


text:
    Llewllyn H. Crigler and Robert L. Crigler, Appellant, v. Ezra M. Bedell, Respondent, Impleaded with Fay L. Gates and Libbie S. Gates.
   Judgment affirmed, with costs. Opinion by Martin, J.


text:
    Louis Bajus, Appellant, v. The Syracuse, Binghamton and New York Railroad Company, Respondent.
   Judgment and order affirmed, with costs. Opinion by Follett, P. J.; Kennedy, J., not sitting.


text:
    Timothy Slattery, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.
   Judgment and order reversed on the exceptions and a new trial ordered, with costs to abide the event. Opinion by Kennedy, J.


text:
    Joseph E. West, as Administrator, etc., Respondent, v. George A. Reynolds and others, Appellants.
   Judgment affirmed, with costs against the appellants personally, on opinion of Kennedy, J., at Special Term. Kennedy, J., not sitting.


text:
    James McCarthy, Appellant, v. Bradley S. Teale, Respondent.
   Judgment affirmed, with costs. Opinion Per Guriam filed with the clerk of Onondaga county.


text:
    Jay Anthony, Respondent, v. Joseph Leeret and Hannah Blaisdell, Appellants.
   Judgment and order reversed on the exceptions, and a new trial granted, with costs to abide the event. Opinion by Martin J.


text:
    Stephen Murphy, Respondent, v. Orson H. Brown, James H. McCarthy and William McCarthy, Appellants.
   Judgment and order affirmed, with costs. Opinion P&>' Guriam filed with the clerk of Onondaga county.


text:
    In the Matter of the Revocation of the Probate of the Last Will and Testament and Codicil thereto of Valentine Liddington, Deceased. Charles D. Nixon, Appellant, v. Frederick Liddington, Valentine Liddington, Mary A. Ganoung and Phoebe Payne, Respondents.
   Decree affirmed, with costs of this appeal against the appellants personally. Opinion by Martin, J.


text:
    Mark Shepp, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order affirmed, with costs. Opinion by Kennedy, J.


text:
    Michael Mosner, Respondent, v. The Rome, Watertown and Ogdensburg Railroad Company, Appellant.
   Judgment reversed on the exceptions and a new trial granted, costs to abide the event. Opinion by Follett, P. J.


text:
    Catharine T. Carpenter, Appellant, v. Ellen C. Cornings, Respondent. Same v. Albert C. Carpenter and others, Respondent.
   Judgment reversed on the exceptions. Hew trial granted, costs to abide the event. Opinion by Kennedy, J.


text:
    Albert O. Briggs, Respondent, v. Eli D. Austin, Appellant, Impleaded, etc.
   Judgment affirmed, with costs, but with leave to withdraw demurrer and answer in twenty days after notice of entry of judgment, and payment of costs included in interlocutory judgment and costs of this appeal. Opinion Per Guriam filed with the clerk of Onondaga county.


text:
    John R. Washburn, as Superintendent of the Poor of Jefferson County, Respondent, v. Daniel B. Woodcock and James B. Blodgett, as Overseers of the Poor of the Town of Fowler, Appellants.
   Judgment reversed and complaint dismissed, with costs against the plaintiff. Opinion Per Guriam filed with the clerk of Onondaga county.


text:
    First Department,
    January Term, 1889.
    Decisions handed down January 9, 1889.
    Stephen M. Chester, Respondent, v. Francis H. Jumel and others, Appellants.
   Motion to strike printed copies of appeal case from files of court granted.


text:
    Same v. Same.
   Motion to resettle the case dismissed.


text:
    In the Matter of the Metropolitan Elevated Railway Company.
   Motion denied.


text:
    Samuel B. Barker v. George P. Platt.
   Motion granted unlefes appeal be argued at February Term.


text:
    Jean A. Tanziede v. Margaret J. Smith.
   Motion granted unless appellant stipulate that this appeal abide the result of appeal in Chester v. Jumel.


text:
    Julius J. Frank v. Edward A. Davis.
   Motion denied.


text:
    Moses Sahlein v. Anthony M. Dimock.
   Motion granted.


text:
    Decisions handed down January 28, 1889
    Randolph Guggenheimer, Respondent, v. Edward Sayre, Appellant, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Brady, J.


text:
    Clarence H. Clark, Appellant, v. John Fey, Respondent.
   Judgment affirmed, with costs. Opinion by Brady, J.


text:
    In the Matter of Thomas W. Pearsall, etc.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Van Brunt, P. J.


text:
    In the Matter of Richard F. Carman.
   Order must be reversed and the case remitted to the Special Term for further action, without costs. Opinion by Van Brunt, P. J.


text:
    Florence A. Merrill, Respondent, v. Peter Bruner as Surviving Partner, etc., Appellant.
   Judgment affirmed, with costs. Opinion by Brady, J.


text:
    Hydrogen Company of United States, Respondent, v. Henry G. Beatley, Appellant.
   Order affirmed with costs. Opinion by Bartlett, J.


text:
    Christian G. Friedman, Appellant, v. James N. Platt and others, Respondents.
   Order affirmed, with costs and disbursements. Opinion by Bartlett, J.


text:
    Richard D. Harris, Appellant, v. Aktiebolaget Separator, Respondent.
   Order affirmed, with costs. Opinion by Bartlett, J.


text:
    The People of the State of New York ex rel. John Gesser, Appellant, v. Stephen B. French and others, Commissioners, etc., Respondents.
   Proceedings affirmed,with costs. Opinion by Bartlett, J., and Daniels, J.


text:
    The Metropolitan Exhibition Company, Appellant, v. John Newton, as Commissioner, etc., Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Van Brunt, P. J.


text:
    Christopher Mooney, Respondent, v. Charles J. Fagan, Appellant.
   Judgment affirmed, with costs. Opinion by Bartlett, J.


text:
    Hannah Milhous, Appellant, v. Elizabeth Johnson and another, respondents.
   Judgment in favor of plaintiff, with costs. Opinion by Van Brunt, P. J.


text:
    In the Matter of Sarah L. Plumb an Infant, etc.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Van Brunt, P. J.


text:
    William M. Kingsland, as Sole Surviving Trustee, etc., Plaintiff, v. The Mayor, etc., of the City of New York, Defendants.
   Opinion by Van Brunt, P. J.


text:
    Thomas H. Thorn and another, Appellants, v. James Sutherland and others, Respondents.
   Judgment affirmed, with costs. Opinion by Van Brunt, P. J.


text:
    John W. Pierson, as Executor, etc., Appellant, v. Mary A. Gillespie and others, Respondents.
   Judgment reversed and new trial ordered, without costs, either against or in favor of the parties to this record. Opinion by Van Brunt, P. J.


text:
    Henry R S. Williams, Plaintiff, v. The Mayor, etc., of the City of New York, Defendant.
   Motion for judgment granted, with costs. Opinion by Van Brunt, P. J.


text:
    John A. Conquest and others, Respondents, v. Frederick E. Barnes and others, Appellants.
   Order reversed, with ten dollars costs and disbursements. Opinion by Van Brunt, P. J.


text:
    John A. Kamping, Respondent, v. John A. Horan, Appellant.
   Judgment reversed and new trial ordered, with costs to appellant to abide the event. Opinion by Van Brunt, P. J.


text:
    William M. Kingsland, Trustee, etc., Plaintiff, v. The Mayor, etc., of the City of New York, Defendant.
   Motion to set aside referee’s report denied, with ten dollars costs.


text:
    Frank H. Wall, Respondent, v. The United States Illuminating Company, Appellant.
   Judgment reversed, new trial ordered, with costs to the defendant to abide the event.Opinion by Daniels, J.


text:
    Ninth Avenue Railway Company, Respondent, v. The Mayor, etc., of the City of New York, Appellant.
   Order reversed, with ten dollars costs and disbursements. Opinion by Van Brunt, P. J.


text:
    Eighth Avenue Railway Company, Respondent, v. The Mayor, etc., of the City of New York, Appellant.
   Order reversed, with ten dollars costs and disbursements. Opinion by Van Brunt, P. J.


text:
    Robert W. Johnson, Appellant, v. Ellen C. Johnson, Respondent.
   Order affirmed, with costs and disbursements. Opinion by Van Brunt, P. J.; dissenting opinion by Daniels, J.


text:
    Henry K. S. Williams v. The Mayor, etc., of the City of New York.
   Motion to set aside referee’s report denied, with ten dollars costs.


text:
    Phoebe M. Bloomingdale, Respondent, v. John A. Bowman, Appellant.
   Judgment reversed and new trial ordered, with costs to appellant to abide event. Opinion by Van Brunt, P. J.


text:
    John M. Bostwick, Appellant, v. James M. Vail, Respondent.
   Order affirmed, without costs, on opinion in case of Crowns v. Vail.


text:
    Ulrice Lesser, Appellant, v. F. E. Perkins, Respondent.
   Judgment affirmed. Opinion by Daniels, J.


text:
    George Kuhn, Appellant, v. James W. Vail, Respondent.
   Order affirmed, without costs, on opinion in case of Crowns v. Vail.


text:
    Leland Fairbanks, Jr., Respondent, v. Winthrop Sargent, Executor, etc., Appellant.
   Judgment reversed and new trial ordered, with costs to the appeVant to abide event. Opinion by Van Brunt, P. J.; dissenting opinion by Bartlett, J.


text:
    John Galway and others, Respondents, v. Jacob D. Nordlinger, Appellant, Impleaded, etc.
   Judgment and order affirmed. Opinion by Daniels, J.


text:
    Maria Lewis, Appellant, v. James M. Vail, Respondent.
   Order affirmed, without costs, on opinion in case of Crowns v. Vail.


text:
    In the Matter of the Petition of Priscilla G. Gay, etc.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Van Brunt, P. J.


text:
    In the Matter of the Appointment of a Trustee of the Columbian Insurance Company.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Gerhard H. Bick, Administrator, etc., Respondent, v. Catharine Reese, Appellant.
   Judgment and order affirmed, with costs. Opinion by Daniels, J.


text:
    In the Matter of the Columbian Insurance Company.
   Order affirmed, with ten dollars costs and disbursements.


text:
    John H. Graham, Appellants, v. William C. Gulliver, Administrator, etc., Respondent.
   Judgment and order denying motion to set aside the report affirmed, with costs. Opinion by Daniels, J.


text:
    Katharine Kabok, Appellant, v. The Phœnix Mutual Life Insurance Company, Respondent.
   Judgment affirmed. Opinion by Daniels, J.


text:
    Jean Joseph Ract, Appellant, v. Eugene Duviard-Dime.
   Judgment reversed and a new trial ordered, with costs to the appellant to abide the event, unless the defendant stipulates to modify the judgment as stated in opinion; but if the stipulation be given, then the judgment, as so modified, should be affirmed, without costs of this appeal. . Opinion by Daniels, J.


text:
    Jean Joseph Ract, Appellant, v. Eugene Duviard-Dime, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Daniels, J.


text:
    Richard S. Newcombe, as Assignee, etc., Respondent, v. Irving National Bank, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Van Brunt, P. J.


text:
    Frederick W. Von Stade and others, Respondents, v. Sarah Le Compte, Appellant, Impleaded, etc.
   Appeal dismissed, with costs. Opinion by Bartlett, J.


text:
    William E. Laimbeir, Appellant, v. Robert W. Tailer and others, Respondents.
   Judgment affirmed. Opinion by Bartlett, J.


text:
    Frank H. Stearns, Respondent, v. The St. Louis and San Francisco Railway Company, Appellant
   Judgment reversed and new trial ordered, with costs to appellant to abide event. Opinion by Van Brunt, P. J.


text:
    Union Dime Savings Institution, Appellant, v. Francis Neppert, Appellant, Impleaded, etc., Respondent.
   Judgment reversed and new trial ordered, with costs to appellant to abide event. Opinion by Van Brunt, P. J.; dissenting opinion by Brady, J.


text:
    In the Matter of the Petition of the Rector of St. Andrew’s Church.
   Order reversed, with costs and disbursements. Opinion by Van Brunt, P. J.


text:
    The People of the State of New York, Respondent, v. Eugene O’Hara, Appellant.
   Judgment affirmed. Opinion by Macomber, J.


text:
    In the Matter of the Application of the Superintendent of the Insurance Department, etc.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Van Brunt, P. J.


text:
    Importers and Traders’ Bank v. William H. Peters, as Receiver, etc., Appellant, Everett Brothers, Gibson & Co., Respondents.
   If the respondents will stipulate to modify judgment as directed in opinion, the judgment as modified will be affirmed, without costs; otherwise the judgment will be reversed and a new trial ordered, with costs to appellant to abide event. Opinion by Van Brunt, P. J.


text:
    The People of the State of New York ex rel. Second Avenue R. R. Co., Appellants, v. Michael Coleman and others, Commissioners, etc., Respondents.
   Order affirmed, with costs and disbursements. Opinion by Van Brunt, P. J.


text:
    Maria Farrell, as Administratrix, etc., Respondent, v. The Houston, West street, etc., Railway Company, Appellant.
   Judgment and order affirmed, with costs. Opinion by Van Brunt, P. J.


text:
    The People of the State of New York, Respondent, v. John J. Gibson, Appellant.
   Judgment reversed and new trial ordered. Opinion by Van Brunt, P. J.


text:
    William H. Weeks, Appellant, v. James S. Berry, Respondent, Impleaded, etc.
   Judgment reveised and demurrer sustained, with leave to defendants to withdraw their answers and amend the same upon payment of costs of this appeal and of the court Below. Opinion by Van Brunt, P. J.


text:
    Arthur Furber, Appellant, v. Alexander L. McCarthy and others, Respondents.
   Appeal stricken from the calendar. Opinion by Van Brunt, P. J.


text:
    Frederick Van Axte, as Executor, etc., Respondent, v. Berta D. Fisher and others, Appellants.
   Judgment affirmed, with costs. Opinion by Van Brunt, P. J.


text:
    S. Skiddy Cochran and others, Respondents, v. Jeanette M. Thurber and others, Appellants.
   Order reversed, with ten dollars costs and disbursements. Opinion by Van Brunt, P. j.


text:
    Orlando Bonelle, Appellant, v. The Pennsylvania Railroad Company, Respondent.
   Judgment and order affirmed, with costs. Opinion by Van Brunt, P. J.


text:
    In the Matter of William A. Wheelock, Appellant.
   Order affirmed, with costs. Opinion by Van Brunt, P. J.


text:
    In the Matter of Annie N. Alexander.
   Order affirmed with costs. Opinion by Van Brunt, P. J.


text:
    James Gamble, Respondent, v. Queens County Water Company and others, Appellants.
   This case must bo stricken from the calendar and cannot be considered by the court, because the record contains no findings signed by the judge. Ordered accordingly. Opinion by Van Brunt, P. J.


text:
    William L. Stow, Appellant, v. Edwin S. Chapin and others, Respondents.
   Order affirmed, with ten.dollars costs and disbursements, with leave to appellant to renew application for injunction upon new and additional papers upon the payment of the costs of the court below and of those awarded upon this appeal. Opinion by Van Brunt, P. J.


text:
    Isaac Stern and others, Respondents, v. Cornelius W. James, Appellant.
   Judgment affirmed, with costs. Opinion by Van Brunt, P. J.


text:
    The Mutual Life Insurance Company of New York, Respondent, v. Edwin B Woods, Appellant.
   Judgment affirmed, with costs. Opinion by Van Brunt, P. J.


text:
    Henry Woolreich, Appellant, v. James Fettretch, Respondent.
   Judgment as directed in opinion. No costs to either party on this appeal. Opinion hy Brady, J.


text:
    Lionel R. Gersenberger, Plaintiff, v. Rosalie Herman and others, Defendants.
   Order reversed and motion granted, with ten dollars costs and disbursements. Opinion by Brady, J.


text:
    George H. Pride, Appellant, v. The Indianapolis, Decatur and Western Railway Company, Respondents.
   Order affirmed, with ten dollars costs and disbursements of this appeal. Opinion by Brady, J.


text:
    The People of the State of New York ex rel. Joseph Keegan v. Henry D. Purroy and others, Commissioners, etc.
   Proceedings affirmed and writ dismissed. Opinions by Brady, j., and Van Brunt, P. J.


text:
    The People of the State of New York ex rel. William J. O’Connor v. Henry D. Purroy and others, Commissioners, etc.
   Proceedings affirmed and writ dismissed. Opinion by Brady, J., and Van Brunt, P. J.


text:
    The People of the State of New York, Respondent, v. Abel M. Rontey, Appellant.
   Judgment affirmed. Opinion by Brady, J.


text:
    Frederick Lange, Respondent, v. Peter Kearney, Appellant.
   Judgment affirmed. Opinion by Brady, J.


text:
    The People of the State of New York, v. John O’Neil, Appellant.
   Judgment reversed and new trial ordered. Opinion by Brady, J.


text:
    The First National Bank of Scranton, Respondent, v. Abraham Wolf, Appellant, impleaded, etc.
   Judgment affirmed, with costs. Opinion by Brady, J.


text:
    Joseph O. Proctor, Jr., Respondent, v. The Preservaline Manufacturing Company, Appellant.
   affirmed, with costs. Opinion by Brady, J.


text:
    George L. Whitman and others v. John R. Haines and others.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Brady, J.


text:
    In the Matter of Johnston Livingston.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Brady, J.


text:
    In the Matter of Dore Lyon.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Brady, J.


text:
    Frederic P. Olcott, as Receiver, etc., Respondent, v. Thomas W. Evans, Appellant.
   Order affirmed, with ten dollars costs of this appeal and the disbursements. Opinion by Brady, j.


text:
    Cornelius B. Mitchell and others, Respondents, v. Rosalie Herman and others, Appellants.
   Order reversed and motion granted, with ten dollars costs and disbursements. Opinion by Brady, J.


text:
    Brunswick Balke Collender Company, Respondent, v. David Stevenson, Appellant.
   Judgment affirmed. Opinion by Brady, J.


text:
    Bernhard Stirn and others, Respondents, v. The Metropolitan Elevated Railroad Company and others, Appellants
   Judgment affirmed, with costs. Opinion by Macomber, J.


text:
    In the Matter of the Application of the Santa Eulalia Silver Mining Company.
   Order affirmed, with costs and disbursements. Opinion by Macomber, J.


text:
    William Benson, Appellant, v. Charles A. Gerlach, Respondent.
   Judgment and order reversed and new trial ordered, with costs to the appellant to abide event. Opinion by Macomber, J.


text:
    Toronto General Trust Company, Appellant, v. The Chicago, Burlington and Quincy Railroad Company and others, Respondents.
   Judgment affirmed, with costs. Opinion by Macomber, J.


text:
    Maximilian Fleischman and others, Appellants, v. Simon Newman, Respondent.
   Judgment affirmed, with costs. Opinion by Macomber, J.


text:
    The East River National Bank and others, Respondents, v. Union Adams and others, Appellants.
   Judgment reversed and new trial ordered, with costs to the appellant to abide the event. Opinion by Macomber, J.


text:
    James H. Dunham and others, Appellants, v. Thomas B. Cressy and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Macomber, J.


text:
    The People of the State of New York ex rel. Hugh Foley, Appellant, v. Stephen B. French and others, Commissioners, etc., Respondents
   Order affirmed, with ten dollars costs and disbursements. Opinion by Macomber, J.


text:
    James Thompson, Respondent, v. William J. Best, Appellant.
   Order reversed, with ten dollars costs and disbursements, and order of arrest vacated. Opinion by Van Brunt, P. J.; dissenting opinion by Macomber, J.


text:
    Clara Campbell, Respondent, v. Charles Arbuckle, Appellant.
   Judgment affirmed, with costs. Opinion by Macomber, J.; Van Brunt, P. J., dissenting opinion.


text:
    Solon Humphrey and others, Trustees, Plaintiffs and Respondents, v. The New York, Lake Erie and Western Railroad Company and others, Defendants and Appellants.
   Judgment affirmed,with costs. Opinion by Brady, J.


text:
    Union Dime Savings Institution, Appellant, v. Florent Feltz, Respondent, Impleaded, etc.
   Judgment reversed and new trial ordered, with costs to appellant to abide event. Opinion by Van Brunt, P. J.; Brady, J., dissents.


text:
    The Prince Manufacturing Company, Respondent, v. Prince’s Metallic Paint Company, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Brady, J.


text:
    Margaret Foster, Respondent, v. Theodore M. Roche, as Trustee, and The United States Trust Company, Appellants.
   Judgment reversed in part and new trial ordered, without costs of this appeal. Opinion by Bartlett, J.


text:
    The People of the State of New York ex rel. The Central Park, North and East River Railroad Company, Appellant, v. The Commissioners of Taxes and Assessments of the city of New York, Respondent.
   Order Order affirmed, with costs and disbursements. Opinion by Daniels, J.


text:
    The People of the State of New York ex rel. The Central Park, North and East River Railroad Company, Appellant, v. The Commissioners of Taxes and Assessments of the city of New York, Respondent.
   Order affirmed, with costs and disbursements. Opinion by Daniels, J.


text:
    The People of the State of New York ex rel. The Central Park, North and East River Railroad Company, Appellant, v. The Commissioners of Taxes and Assessments of the city of New York, Respondents.
   Order affirmed,with costs and disbursements. Opinion by Daniels, J.


text:
    Saly I. Mayer and others, Respondents, v. Garret L. Hardy, Appellant.
   Judgment reversed. Opinion by Bartlett, J.


text:
    The People of the State of New York ex rel. The Central Park, North and East River Railroad Company, Appellant, v. The Commissioners of Taxes and Assessments of the city of New York, Respondent.
   Order affirmed,* with ten dollars costs and disbursements. Opinion by Daniels, J.


text:
    The People of the State of New York ex rel. The Central Park, North and East River Railroad Company, Appellant, v. The Commissioners of Taxes and Assessments of the city of New York, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Daniels, J.


text:
    Henry Elsworth and others, Executors, etc., Appellants, v. Sarah Hinton and others, Respondents.
   Interlocutory judgment modified as directed in opinion. Opinion by Brady, J.


text:
    Charles H. Ward, Respondent, v. Jane Hartley Cowdrey, Executor, etc., Appellant.
   Judgment affirmed. Opinion by Brady, J.


text:
    Benton McConnell, Appellant, v. The Manhattan Construction Company, Respondent.
   Order reversed, with ten dollars costs and disbursements, unless stipulation directed in opinion be given, otherwise order affirmed, without costs. Opinion by Van Brunt, P. J.


text:
    Byron W. Cohen, Respondent, v. Augustus R. Lane and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Van Brunt, P. J.


text:
    In the Matter of Robert A. Gregory.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Van Brunt, P. J.


text:
    In the Matter of the Petition of George W. McLean, as Receiver of Taxes, etc.
   Motion for reargument granted, the appeal to be submitted to the court which originally heard the appeal within ten days.


text:
    Samuel A. Nolen v. Gordon H Camp.
   Motion to dismiss appeal granted, with ten dollars costs.


text:
    Henry B. Brewster v. William C. Brewster.
   Motion granted, unless plaintiff pay ten dollars costs and stipulates to argue appeal March Term.


text:
    Peter C. Anthony, Appellant, v. Leopold Wise and others, Respondents.
   Judgment affirmed, with costs. Opinion by Bartlett, J.


text:
    Anna F. Churchman, Respondent, v. Hannah B. Merritt and others, Appellants.
   Order reversed, with costs, but without prejudice to another application upon papers setting forth a cansé of action. Opinion by Bartlett, J


text:
    The National Thread Company, Respondent, v. The Mansfield Silk and Thread Company, Appellant.
   Judgment affirmed, with costs. Opinion by Bartlett, J.


text:
    In the Matter of Sarah L. Plumb, an Infant. James N. Plumb, General Guardian, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Van Brunt, P. J.; dissenting opinion by Bartlett, J.


text:
    William H. Kennagh, Appellant, v. Elizabeth McColgan, Executrix, etc.
   Final judgment reversed and interlocutory judgment modified so as to overrule the demurrer as to the first and second defenses and sustain the same as to the third defense, without costs of this appeal to either party Opinion by Bartlett, J.


text:
    Francis Gordon Brown v. F. O. Norton.
   Motion denied, with ten dollars costs.


text:
    Julius Leszynsky v. Samuel H. Leszynsky.
   Motion granted, unless appellant stipulates to argue at February Term.


text:
    Madaline T. Burchell, Appellant, v. James Culgin, Respondent.
   Judgment affirmed,with costs.


text:
    The Murray Hill Bank, Appellant, v. Elizabeth Van Antwerp and others, Respondents.
   Judgment affirmed. Opinion by Brady, J.


text:
      Edward Wood, Executor, etc., Respondent, v. Karoline Kroll, Individually and as Executrix, and others, Appellants.

       Decision handed down February 15, 1889.

   Exceptions overruled, with costs of the motion. Opinion by Daniels, J.


text:
    Third Department,
    February Term, 1889.
    Matter of Clark, Respondent, v. The Water Commissioners of Amsterdam, Appellant.
   Order affirmed, with costs. - Opinion by Ingalls, J.


text:
    Florence Campbell, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   Judgment affirmed, with costs. Opinion by Ingalls, J.


text:
    Charles Stone, Respondent, v. The City of Troy, Appellant.
   Judgment and order reversed, new trial granted, costs to abide event. Opinion by Landon, J.


text:
    The Canajoharie National Bank, Appellant, v. John F. Diefendorf, Respondent.
   Judgment and order reversed, new trial granted, costs to abide event. Opinion by Ingalls, J.


text:
    Catharine Sager, Respondent, v. Margaret E. Dorr, as administratrix, etc., Appellant.
   Judgment affirmed, with costs. Opinion by Landon, J.


text:
    John Newman and others, Appellants, v. Martin J. Blessing and others, Respondents.
   Judgment affirmed,with costs. Opinion by Ingalls, J.


text:
    James O. Laughlin, Respondent, v. George H. Hammond & Co., Appellant.
   Judgment affirmed, with costs. Opinion by Landon, J.


text:
    Victoria A. Jones and another, Plaintiffs, v. William Slocum, Defendant.
   Judgment affirmed, with costs. Opinion by Ingalls, J.


text:
    Thomas Eagan, Appellant, v. John P. Powers, Administrator, etc., Respondent.
   Judgment affirmed, with costs. Opinion by Landon, J.; Learned, P. J., not acting.


text:
    Henry Schoonmaker, Appellant, v. Eugene Niver, Respondent.
   Judgment affirmed, with costs. Opinion by Ingalls, J.


text:
    James A. Dennison, Appellant, v. Rice A. Brown, Respondent, Impleaded, etc.
   Order reversed, with ten dollars costs and printing disbursements, and motion denied with ten dollars costs. Opinion by Ingalls, J.


text:
    The Waterloo Woolen Manufacturing Company, Plaintiff, v. James Shanahan and others, Defendants.
   Injunction granted as asked for on filing bond. Opinion by Landon, J.


text:
    Decisions handed down February 21, 1889.
    Francis A. Fales, v. Thomas B. Lawson and others.
   Appeal dismissed. Opinion by Learned, P. J.


text:
    Same v. Same.
   Motion to stay denied.


text:
    Peter J. Lansing v. Samuel Stevens.
   Motion to go to the Court of Appeals denied.


text:
    Matter of Application Against Commissioner of Highways.
   Motion to correct by giving costs as m judgment granted.


text:
    Barnes v. Smith.
   Motion for reargument denied.


text:
    Locadie A. V. Cassagne v. James M. Ostrander.
   Motion to go to Court of Appeals denied.


text:
    Samuel D. Coykendall, Appellant, v. Abram Constable and others, Respondents.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Oliver H. P. Strait, Appellant, v. John R. Knapen, Respondent.
   Order reversed, with ten dollars costs and printing disbursements, and motion to amend denied with ten dollars costs.


text:
    Sabina Kaveny, Appellant, v. The City of Troy, Respondent.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    The People of the State of New York, Respondent, v. Philo Baldwin, Appellant.
   Order reversed. Memorandum by Learned, P. J.


text:
    John Martin v. The Central Vermont Railroad Company.
   Motion to go to Court of Appeals denied.


text:
    Abel A. Crosby and others, Respondents, v. The Delaware and Hudson Canal Company, Appellant.
   Motion to amend denied, with ten dollars costs.


text:
    The People of the State of New York ex rel H. Cornelia Gilbert v. Timothy Moore and others, Assessors, etc.
   Motion to dismiss appeal denied.


text:
    The People of the State of New York ex rel. Delaware and Hudson Canal Company, Appellant, v. Benjamin B. Parker and others, Respondents.
   Judgment affirmed, with costs.


text:
    Francis A. Fales v. Thomas B. Lawson and others.
   Appeal from order refusing to strike out, etc. Order reversed, with ten dollars costs and printing disbursements, and motion granted with ten dollars costs. Memorandum by Learned, P. J.


text:
    Jacob Snyder and another, Respondent, v. Lawrence E. Pope, Appellant.
   Order affirmed,with ten dollars costs and printing disbursements.


text:
    In the Matter of the Application for the Revocation of the Will of John D. Turnbull, Deceased.
   Order affirmed, with costs. Opinion by Learned, P. J.: Landon, J., not acting.


text:
    Charles B. Wenzell, Respondent, v. John D. Morrissey, Appellant.
   Order affirmed, with ten dollars costs and printing disbursements. Learned, P. J., not acting.


text:
    George D. Sweetser and others, Respondents, v. Adam B. Smith and others, Appellants.
   Order reversed, with ten dollars costs and printing disbursements, and motion to continue injunction denied, with ten dollars costs.


text:
    The People of the State of New York ex rel. The Fitchburg Railroad Company, Respondent, v. The Assessors of Towns of Schaghticoke, Pittstown and Hoosick, Appellants.
   Motion for reargument denied.


text:
    Maria K. Phelps, Appellant, v. Thomas McCann and others, Respondents.
   Judgment affirmed, with costs.


text:
    Smith Hay, Appellant, v. Marcus S. Babcock and others, Respondents.
   Judgment affirmed, with costs.


text:
    Asa O. Kingsley, Plaintiff, v. John F. Crawford and others, Defendants.
   Judgment affirmed, with costs.


text:
    The Fort Edward Water-Works Company, Appellant, v. James McIntyre and another, Respondents.
   Judgment affirmed, with costs. Memorandum by Learned, P. J.


text:
    Fourth Department,
    February Term, 1889.
    Union Mutual Life Insurance Company, Appellant, v. George Frederick Vietor and others, Respondents.
   Order reversed, with ten dollars costs and disbursements Held, the affidavit was insufficient on which the order was granted. Merwin. J., not sitting.


text:
    William T. Cross, Respondent, v. Mortimer Spring, Appellant.
   Motion denied.


text:
    John P. Morenus and another, Administrators, etc., Respondents, v. Ira Crawford, Appellant.
   Motion denied.


text:
    John R. Washburne, Respondent, v. Daniel B. Woodcock and others, Appellants.
   Order of the January Term amended by striking therefrom the words “ and complaint dismissed with costs against the plaintiff,” and insert therein after the word reversed the words “ and a new trial granted? with costs to abide the event,”


text:
    Ellen I. Ballard, Executrix, etc., Respondent, v. The Hitchcock Manufacturing Company, Appellant.
   Motion denied.


text:
    Albert Bennett, Respondent, v. George S. Weaver, Appellant.
   Motion denied.


text:
    In the Matter of the People’s Railroad Company of Syracuse.
   Motion for the appointment of commissioners granted and order filed with clerk of Oneida county.


text:
    Augustus Ross, as Executor, etc., and others, Appellants, v. De Witt Gleason and others, Respondents.
   Motion denied, with ten dollars costs.


text:
    George E. Dunham, Respondent, v. William J. Cramond, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Sidney Wilder, Respondent, v. James N. Walters and another, Appellants.
   Order reversed, with ten dollars costs and disbursements. Held, that the action cannot be revived against the executor and continued against him and the surviving defendant as a joint action. (See first volume of Rumsey’s Practice, 667 and cases cited.)


text:
    John A. Collins, Respondent, v. George K. Collins and others, Appellants.
   Judgment affirmed, with costs, and leave granted to the defendants to answer upon payment of the costs of the demurrer ana of the appeal within twenty days.


text:
    Wilber S. Peck and others, Respondents, v. Marvin Fisher, Appellant.
   Order reversed, with ten dollars costs and disbursements. Followed Gorman v. South Side Railroad Co. (32 Hun, 71).


text:
    Sarah Bullard, Appellant, v. Theodore Bearss and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements on the opinion of Kennedy, J., delivered at Special Term.


text:
    Joseph H. Lewis, Appellant, v. Thomas Corlett, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    M. Henry Kiley, Appellant, v. James L. Meagher, Respondent.
   Judgment of Madison County Court affirmed, with costs.


text:
    George W. Lawton and another, Respondent, v. William N. Steele, Appellant.
   Judgment and order reversed and new trial ordered, with costs to abide event. Per Cunam opinion filed with the cleric of Oneida county. Merwin, J., not sitting.


text:
    Henry Sherman, Respondent, v. Ezra Wormuth, Appellant.
   Judgment affirmed, with costs.


text:
    Helen S. Wright, Respondent, v. The Syracuse, Binghamton and New York Railroad Company, Appellant.
   Order reversed, without costs.


text:
    Albert Hill, as Administrator, etc., Respondent, v. Dilla Cornue, Appellant.
   Judgment of the County Court of Cortland county affirming a justice’s judgment affirmed, with costs.


text:
    People’s Railroad Company of Syracuse, Appellant, v. Syracuse, Binghamton and New York Railroad Company and another, Respondents.
   Order affirmed, with ten dollars costs and disbursements. Per Curiam mem. filed with the county clerk of Oneida county.


text:
    Jeremiah Callaghan, as Administrator, etc., Appellant, v. The Delaware, Lackawanna and Western Railroad Company and The New York Central and Hudson River Railroad Company, Respondents.
   Judgment reversed on the exceptions and a new trial granted, with costs to abide the event. Hardin, P. J., not voting.


text:
    Second Department,
    February Term, 1889.
    William F. Bailey v. Nicholas Murphy.
   Order affirmed, with ten dollars costs, besides disbursements. Opinion by Barnard, P. J.


text:
    Anne Leichman v. William G. Jughan.
   Judgment and order denying new trial affirmed, with costs. Opinion by Barnard, P. J.


text:
    The Ocean Pier Company v. Charles L. Wolsey.
   Judgment affirmed, with costs. Opinion by Pratt, J.


text:
    John Vance v. Levi Hedfield.
   Judgment affirmed, with costs. Opinion "by Dykman, J.


text:
    Peter Bruner and others v. Michael Lewis and others.
   Judgment affirmed, with costs. Opinion by Barnard, P. J.; Dykman, J., not sitting.


text:
    Joseph Groll v. Prospect Park, etc., Railroad Company.
   Judgment and order denying new trial affirmed, with costs. Opinion by Dykman, J.


text:
    Juliette Hyland, Respondent, v. Yonkers Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by Pratt, J.; Barnard, P. J., not sitting.


text:
    William J. Weeks, Appellant, v. John Becken, Respondent.
   Judgment and order denying new trial affirmed, with costs. Opinion by Pratt, J.


text:
    The People of the State of New York ex rel. John Lake, Respondent, v. Elbert Hegeman, as County Treasurer, Appellant.
   Judgment affirmed, with costs. Opinion by Barnard, P. J.


text:
    Matter of opening Marine avenue, New Utrecht.
   Order confirming report affirmed, with costs. Opinion by Pratt, J.; Barnard, P. J., not sitting.


text:
    Matter of Peter M. Baum.
   Referred to Walter Farrington to take proof and report facts with the evidence as to charges made. Opinion by Barnard, P. J.


text:
    Charles G. Farley, Sheriff, v. Josephine A. Gibbs.
   Judgment of Justice and of County Court affirmed, with costs. Opinion by Barnard, P. J.


text:
    The People of the State of New York ex rel. Michael Coughlin, Respondent, v. Patrick J. Gleason, as Mayor of Long Island City, Appellant.
   Order for mandamus affirmed, with costs and disbursements. Opinion by Barnard, P. J.; Dykman, J., not sitting.


text:
    The People of the State of New York v. Thomas Ricker and others.
   Conviction and judgment affirmed. Opinion by Barnard, P.J.; Dykman, J., dissenting.


text:
    Besse H. Blynn, Respondent, v. Tredwell D. Smith and another, Appellants.
   Judgment affirmed, without costs. Opinion by Pratt, J.


text:
    The Town of Southampton, Respondent, v. Edwin Post, Appellant.
   Judgment affirmed, with costs. Opinion by Dykman, J.


text:
    Rosanna Briasco, Appellant, v. Joseph B. Lawrence, Respondent.
   Order reversed, with costs and disbursements. Opinions by Barnard, P. J., and Pratt, J.; Dykman, J., not sitting.


text:
    Joshua C. Sanders, Appellant, v. Alfred C. Chapin, Comptroller, etc., Respondent.
   Order affirmed, with costs. . Dissenting opinion by Dykman, J.


text:
    William F. Coston, Respondent, v. Benjamin F. Morris, Appellant.
   Judgment affirmed, with costs. Opinion by Pratt, J.


text:
    Jarvis S. Baker, Respondent, v. William H. Secor, Appellant.
   Judgment and order denying new trial reversed, and new trial granted, costs to abide event. Opinion by Pratt, J.


text:
    Margaretta Remsen and others, Respondents, v. George S. Wheeler, Appellant.
   Judgment reversed and new trial granted, costs to abide event. Opinion by Barnard, P. J.


text:
    James J. Graham, Respondent, v. William J. Powers and others, Trustees, etc, Appellants.
   Order denying motion to vacate judgment reversed, with costs and disbursements, and motion granted with ten dollars costs. Opinion by Dykman, J.


text:
    Theodore G. Clarkson, Respondent, v. Francis G. Dunning, Appellant.
   Judgment, reversed and new trial granted, costs to abide event. Opinion by Barnard, P. J.; Dykman, J., not sitting.


text:
    John W. Foulks, Respondent, v. Jefferson H. White, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by Pratt, J.


text:
    Matter of Probate of Will of John J. Wilmurt, Deceased.
   Decree admitting will to probate affirmed, with costs. Opinion by Dykman, J.


text:
    The People of the State of New York ex rel. Cornelia Johnson, Respondent, v. Elbert Hegeman, as County Treasurer, Appellant
   Order granting writ of mandemvus reversed, with fifty dollars costs. Opinion by Barnard, P. J.


text:
    William H. Strong, Appellant, v. Annie M. Morel, Respondent.
   Judgment affirmed, with costs. Opinion by Barnard, P. J., and Pratt, J.; Dykman, J., dissenting.


text:
    Benjamin F. Hobby and others, Respondents, v. Edward P. Day, Appellant, Impleaded, etc.
   Judgment affirmed, with costs. Opinion by Dykman, J.


text:
    Silas D. Gifford, Receiver, etc., Respondent, v. Michael A. Corrigan, Executor, etc., Appellant
   Judgment affirmed, with costs. Opinion by Pratt, J.; Barnard, P. J., dissenting.


text:
    John D. Walsh, Appellant, v. William C. Brown, Assignee, etc., Respondent.
   Judgment affirmed, with costs. .Opinion by Dykman, J.


text:
    P. Elbert Nostrand, Appellant, v. Mary T Knight and others, Respondents.
   Judgment reversed and new trial granted, costs to abide event. Opinion by Barnard, P. J.


text:
    Cyrus Cleveland and others, Appellants, v. The City of Yonkers and others, Respondents.
   Order denying injunction affirmed, with costs and disbursements. Opinion by Dykman, J.; Barnard, P. J., not sitting.


text:
    William Tumbridge, Respondent, v. Cassius H. Read and another, Appellants.
   Judgment and order denying new trial reversed ana new trial granted, costs to abide event. Opinion by Dykman, J


text:
    Constantine W. Benson, Appellant, v. Henry D. Townsend and others, Respondents.
   Reargument ordered. Barnard, P. J., not sitting.


text:
    Harriet S. Rumsey and others, Appellants, v. The New York and New England Railroad Company, Respondent.
   Judgment affirmed, without costs of appeal. Opinion by Pratt, J.; Barnard, P. J., not sitting.


text:
    Eleanor T. Mitchell, Administratrix, Respondent, v. James T. Mitchell, Appellant.
   Judgment reversed and judgment of justice affirmed, with costs. Opinion by Barnard, P. J.


text:
    Stephen Johnson, Respondent, v. Joshua V. Van Name, Appellant.
   Judgment affirmed, with costs. Opinion by Barnard, P. J.


text:
    Charles F. Schlaefer, Appellant, v. William Hieberger, Respondent.
   Judgment .affirmed, with costs. Opinion by Dykman, J


text:
    George H. Deller v. Staten Island Club.
   Judgment reversed and new trial granted, costs to abide event. • Opinion-by Pratt, J. ,


text:
    The People of the State of New York ex rel., etc., v. Board of Health, Gravesend.
   Order affirmed, with costs and disbursements. Opinion by Dykman, J.


text:
    The People of the State of New York ex rel. The Brighton Pier and Navigation Company, Respondent, v. The Board of Assessors of the Town of Gravesend and others, Appellants.
   Order affirmed, with costs and disbursements. Opinion by Dykman, J.


text:
    Matter of Petition of Union Elevated Railroad Company of Brooklyn to Acquire Title to Real Estate of Jacob Levy and Joseph Weil in said City.
   Order affirmed, with costs. Opinion by Pratt, J.


text:
    Tyler McNaier, Respondent, v. The Manhattan Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by Pratt, J.; Dykman, J., not sitting.


text:
    Adolph Tode v. Lena Gross.
   Judgment affirmed, with costs. Opinion by Barnard, P. J.


text:
    Matter of Acquisition by New York and Massachusetts Railway Company of Lands of John R. Lent and others.
   Order confirming award of commissioners affirmed, with costs. Opinion by Dykman, J.- Barnard, P. J., not sitting.


text:
    Augustus W. Vallez v. Brooklyn City Railroad Company.
   Judgment and order denying new trial affirmed, with costs. Opinion by Barnard, P. J.


text:
    Thomas H. Story, Executor, etc., Appellant, v. United Life and Accidental Insurance Association, Respondent.
   Judgment affirmed, with costs Opinion by Barnard, P. J.


text:
    John H. Dixon, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by Prátt,J.; Barnard, P. J., not sitting.


text:
    Wallace Mayo, Appellant, v. Sallie M. Davidge and another, Respondents.
   Judgment affirmed, with costs. Opinion by Dykman, J ; Barnard, P. J., not sitting.


text:
    Aaron P. Bates, v. The Lidgerwood Company
   Judgment affirmed, with costs. Opinions by Barnard, P. J., and Pratt, J.


text:
    Theodore Clarkson, Appellant, v. Francis C. Dunning, Respondent.
   Order directing the return of the $12,000 deposit affirmed, with costs and disbursements. Opinion by Barnard, P. J.


text:
    David F. Butcher v. Samuel S. Hepworth.
   Judgment affirmed, with costs.


text:
    Dennis R. Shiel v. McMaster Muir.
   Judgment and order denying new trial affirmed, with costs. Opinion by Pratt, J.; Dykman, J., not sitting.


text:
    Chester D. Flint v. Samuel J. Knight.
   Appeal dismissed and judgment affirmed, with costs, for non-submission according to stipulation.


text:
    The Pocontico Water-Works Co. v. Seth Bird and others
   Judgment affirmed, with costs. Opinion by Pratt, J.; Dykman, J., not sitting.


text:
    Matter of Extension of Ashburton Sewer, Yonkers.
   Order affirmed, with costs. Opinion by Pratt, J.; Barnard, P. J., not sitting.


text:
    Warren H. Lewis v. The Ocean Pier Company.
   Judgment reversed and new trial granted, costs to abide event. Opinion by Dykman, J.


text:
    David F. Bayles and others, Commissioners, v. Scudder Jayne.
   Judgment and order denying new trial affirmed, with costs. Opinion by Dykman, J.


text:
    In the Matter of John H. Post.
   Ordered, that it be referred to Seaman Miller to take proof and report the facts with the testimony in relation to the petition and answer.


text:
    E. Merrit Colyer v. George B. Colyer.
   Motion denied, with ten dollars costs.


text:
    Peter Gillen, as Administrator, etc., Appellant, v. The Tucker & Carter Cordage Company, Respondent.
   Judgment affirmed, with costs. Opinion by Cullen, J.


author: Learned, P. J.:

text:
    JACOB OUDERKIRK, Respondent, v. THE CENTRAL NATIONAL BANK OF TROY, Appellant.

      Liability of a bcmkfor bonds deposited, with it and disposed of by its cashi&i' — when it will be held to be a mandatary and not a depositary.

    The plaintiff, in 1884, deposited, certain bonds with the defendant, a bank, as collateral security to notes -discounted by it f.or him, the last of which notes was-finally paid on January 26, 1887. The plaintiff being on that day ill his son-in-law, Mr.. Face, went to the bank for the note, and the cashier gave him. the note, to which there was attached what looked like bonds. These the cashier did not give to him, but gave him a paper, dated on that day, which certified:
    “That Mr. Jacob Ouderkirk has had deposited in this bank, as collateral security to any and all loans made to him direct, $1,500 par value U. S. 4 percent coupon bonds; that all said loans thereon having been paid and canceled said bonds axe left for future like use or safe-keeping, subject to the order of said Ouderkirk. Ooupons to be collected when due and return made to him as heretofore. <<WICKS.”
    The bank having refused to deliver the bonds to the plaintiff upon a demand made in February, 1888, this action was brought to recover for the wrongful detention of the said bonds. The answer denied the conversion, alleging that the bank had not the bonds; that it never authorized the cashier to receive them, and that the cashier converted them to his own use.

      Held, that as the bonds were in the custody of the bank, as pledgee, in the first instance, and so continued until the last note was paid, and Mr. Face, agent of the plaintiff, saw what purported to be the bonds attached to the note at the time when the note was delivered to him and the receipt was given, it must be assumed to have been proved that the bank then had the bonds.

      Tliat tlie contract was quite different from a deposit, strictly so-called; that the bank was a mandatary rather than a depositary, and was, to a certain extent, an agent of the plaintiff in collecting the coupons.
    The defendant, to justify its not returning the bonds, proved that such bonds were kept in a steel safe in the vault; that such safe had a lock of which only the president and cashier had the combination; that the president did not take the bonds, nor did the clerks or bookkeepers. The cashier was not called. The president spoke of the cashier’s defalcation as occurring about December 20, 1887, but no proof of such defalcation was given. It was also shown that up to the date last mentioned the cashier was a man of good reputation.
    The court charged that the plaintiff was entitled to recover unless the defendant could show that the loss was not caused by any act of neglect on the part of the . defendant; that the defendant was not only liable in case of gross neglect, but liable where the loss was occasioned by any neglect on its part. The court also charged that the defendant had undertaken to show that it did all which it reasonably could to protect these securities.

      Held, that this latter part of the charge must be considered as explanatory of the meaning of the judge in the use of the words “ any neglect.”
    That, under the circumstances of this case, which were not inconsistent with the careless surrender of the bonds to some person by the cashier or their possible sale and the receipts of the avails of their proceeds by the bank, the charge was not erroneous.

      Qucere, whether the bank would be liable in case a willful taking of the bonds by the cashier were proved.
    Appeal by. the defendant from a judgment entered, upon the verdict of a jury rendered at the Rensselaer County Circuit, in the office of the clerk of the county of Rensselaer, on October 11,1888.
    The plaintiff, being the owner of certain bonds, in question in this action, gave them to the defendant, a bank, in 1884 as collateral security to a note of his discounted by it. This note, after having been renewed, was finally paid. Subsequently the plaintiff had another note discounted by the bank, and these bonds remained as collateral to that note, which was finally paid January 26,1887. On that day the plaintiff was ill, and his son-in-law, Mr. Face, went to the bank for the note. The cashier gave him the note, and there were attached what looked like bonds. These the cashier did not give him; but he did give Mr. Face a paper as follows:
    “Troy, N. Y., Ja/rma/ry 26, 1887.
    “This certifies' that Mr. Jacob Ouderkirk has had deposited in this bank, as collateral security to any and all loans made to him direct, $1,500 par value U. S. four per cent coupon bonds; that all said loans tliereon having been paid and canceled, said bonds are left for future like use or safe-keeping, subject to the order of said Ouderkirk; coupons to be collected when due and returns made to him as heretofore. - «W. WICKES.”
    Subsequently, in February, 1888, the plaintiff demanded the bonds and the bank did not deliver them, alleging they were not then in its possession. The complaint alleges the receipt of the bonds by the bank and its wrongful detention. The answer denies the conversion ; alleges that the bank has not the bonds; that it never authorized the cashier to receive them, and that the cashier converted them. The jury rendered a verdict for plaintiff, and the defendant appealed.

      Orin Gambett, for the appellant.

      Nelson Davenport, for the respondent.
   Learned, P. J.:

The bonds were certainly in the custody of the bank, as pledgee, in the first instance, and so continued till the last note was paid. If, by the giving of the receipt of January 26, 1881, the bank became a gratuitous bailee, still it had authority so to act (Pattison v. Syracuse National Bank, 80 N. Y., 82); and the plaintiff was not chargeable with knowledge of any directions given by the bank to its cashier in that respéct. The bonds must be considered to have been deposited witli the bank, not with the cashier individually. Mr. Face, the agent of the plaintiff, at the time when the note was delivered to him and the receipt 'was given, saw what purported to be the bonds attached to the note. Therefore, there is no reason to think that the bonds were not then in the possession of the bank. If they had been converted or lost previously to that time, another question might have arisen; but the receipt, not being disproved, must be held to show that the bank then had the bonds.

If a creditor, holding a pledge, assent, after payment of the debt, to hold the pledge for the benefit of the debtor, it becomes a deposit. (Story on Bail., § 55.) That rule has reference, of course, to a gratuitous holding, from which the holder is to derive no benefit. In the present case we must judge from the receipt what was the nature of the holding by the bank. It was to be not only for safekeeping, but “ for like use,” that is, for use as a collateral to loans which might be made in the future. The bank also was to have the right to collect the coupons and make returns as heretofore, This collecting of coupons, payable in another place, was a regular part of banking business. It was a slight benefit to the bank, giving it funds in New Tork. And it is plain that the arrangement was somewhat different from the ordinary care of keeping, in a bank vault, a locked box, to the contents of which the bank has no rightful access. Deposit, as it is accurately called, is entirety gratuitous, and because there is no benefit whatever to the depositary, the general rule is that he is liable only for gross negligence. (Dig., Book 13, 6. 5, 2.) But here, to say nothing of the anticipated profit in making a loan on this collateral, there was the distinct benefit of collecting the coupons and making returns to the plaintiff. The bank was employed by plaintiff to collect from time to time the stuns payable for interest, and for that purpose it had the custody of the bonds, with the right to receive payment of such interest and to surrender the interest coupons, and thus it was plaintiff’s agent.

It seems to us that tins is a contract quite different from a deposit, strictly so-called. For instance, in the case of Foster v. Essex Benk (17 Mass., 479), a case which has some analogy with the present, Foster left a case of gold coin for safe-keeping. The court said it would have been a breach of trust to open the case or inspect its contents. "When the bank, in fear of danger, removed its own specie to another town, it did not feel authorized to remove this without the owner’s consent. It is evident that in the present case the bank had other authority and right in respect to these bonds, and other duties also. And, without entering on the disputed point whether a mandate must be gratuitous, we might probably say that, as something was to be done by the bank, it was a mandatary rather than a depositary. It was, to a certain extent, an agent of the plaintiff, that is in collecting the coupons.

In Pattison v. Syracuse National Bank (ut supra) it is said that as “the plaintiff’s securities were received on deposit by the bank, it was bound to return them or show some sufficient cause for not doing so.” In that case the bank claimed that they were stolen by some person other than employees of the bank, and the question was whether the theft was suffered through the gross negligence of the bank.

In the present case the defendant, to show cause for not returning the bonds, proved that such bonds were kept in a steel safe in the -vault, which safe had a lock, of which only the president and cashier had the combination. The defendant proved that the president did not take the bonds, nor did the clerks or bookkeepers. The cashier was not called. The president spoke of _ the cashier’s defalcation as occurring about December 20, 1881. No direct proof of such defalcation was given. The president testified that, if the cashier was away, this safe was not opened. It is also shown that up to the date last-mentioned the cashier was a man of good reputation. The court charged that the plaintiff was entitled to recover unless the defendant could show that the loss was not caused by any act of neglect on the part of the defendant; that the defendant was not only liable in case of gross neglect, but was liable where the loss was occasioned by any neglect on its part. To this part of the charge the plaintiff excepted. The question then is whether, on the facts of this case, the defendant was liable only for gross negligence ; or, more accurately, whether the defendant might excuse itself for not returning the bonds by showing that they were lost without gross negligence. In another part of the charge the judge said that the defendant had undertaken to show that it did all which it reasonably could to protect these securities ; and this must be considered as explanatory of the meaning of the judge in the words “any neglect.” If this had been a case of merely gratuitous bailment, then probably the exception would have been well taken. But under the circumstances of this case we think the charge was not erroneous, as above explained. 'Whether the bank would be liable for a willful taking of the bonds by the cashier is a question not distinctly presented. The facts of the case are consistent with the careless surrender of the bonds by the cashier to some person other than plaintiff. It is even possible, under the proof, that the bonds were sold by the cashier and the avails received by the bank. For no proof is given by defendant as to the time when, or the manner in which, the bonds passed from its possession. The examinations occasionally made by the directors and by the United States officials did not include such deposits as that of the plaintiff.

¥e are of opinion that the judgment and order should be affirmed,, with costs.

Landon and Ingalls, JJ., concurred.

Judgment affirmed, with costs.


author: Learned, P. J. :

text:
    ALFRED D. BUMP, Appellant, v. WILLIAM GILCHRIST and Others, Respondents.

      General legatees — not properly made parties to an action where an ececutrix has improperly transferred a note, upon which the action is brought— Code of Girtil Procedure, sec. 452.
    In an action commenced against William Gilchrist and others, the makers, and a guarantor of a promissory not'e of $1,000, made payable to Margaret M. Bump, executrix of Warren S. Bump, or bearer, which was alleged to have been transferred by her to the plaintiff, two general legatees under the will of Warren S. Bump, deceased, were, on their own application, made parties defendant upon the ground that they, together with Margaret M. Bump, were the persons interested in the estate of Warren S. Bump, and that Margaret, as executrix, was. mismanaging the estate and had assigned the note in suit, being part of the assets, of the estate, to the plaintiff without consideration.

      Held, that while a general legatee is entitled, at the proper time, to his share in the estate, and to proceed against the executrix in the proper court for mismanagement, he is not the owner of any specific part of the estate.
    That as these legatees had no interest in this specific note they should not have been made parties to this action.
    Appeal from a judgment entered, at the Washington County Circuit, upon an order dismissing the complaint, in the office of the clerk of the county of Washington on December 24, 1887; and, also, from an order made at a Special Term and Circuit Court, permitting Horace Gilchrist, as guardian of William J. Bump, an infant, and Charles W. Taylor, as guardian of Alfred W. Bump, an infant, to be brought in as defendants, and permitting them to interpose a defense to the above entitled action, which order was entered in the office of the said clerk on October 26, 1886.
    This action was commenced against William Gilchrist and others, makers and a guarantor of a promissory note of $1,000 and interest, payable to Margaret M. Bump, executrix of "Warren S. Bump, or bearer, alleged to have been transferred to plaintiff. Two general legatees under tbe will of "Warren S. Bump, viz., "William J". Bump and Alfred W. Bump, applied to be made defendants and plaintiff against her will was ordered to bring tliem in. Tbe ground was, in brief, that they, together with Margaret M. Bump, were the persons interested in the estate of "Warren S. Bump; that Margaret, as executrix, was mismanaging the estate, and had assigned the note in suit (being part of the assets) to plaintiff without consideration, etc.
    On the trial of the case the plaintiff produced the note, and testified to his ownership of it. On cross-examination he testified that he knew it belonged to the assets of the estate of "Warren S. Bump; that he received the note in payment for work done on the farm for several years, and that he also gave to Margaret a note of his own of $326, when he received this note. The will of "Warren S. Bump was given in evidence by plaintiff. It gives his wife the use of all the property as long as she remains the widow of testator, with power to use the principal of the personal, if she needs more, to support the children. At her death all was to go to the children William J. Bump and Alfred W. Bump. If the widow married, all was to be divided between the widow and the children when the youngest became fwenty-one. If the sons died before the widow and before receiving their share, she was to have the whole. The court nonsuited the plaintiff on the ground that the case could not be determined until the rights of the widow were determined on an accounting in the Surrogate’s Court, and that she could not convey any right to the property until she knew what she was entitled to. The plaintiff appealed from the judgment and the order

      8. W. Russell, for the appellant.

      L. Fraser, for the respondent.
   Learned, P. J. :

The result of this case illustrates the incorrectness of the order bringing in the two legatees. Section 452 of the Code authorizes the bringing in a party who has an interest in the subject, “ the title to which may in any manner be affected by the judgment.” Cases like Turner v. Conant (18 Abb. N. C., 160) and Derham v. Lee (87 N. Y., 599) show that the object is to bring in all parties having an interest, so that a final decision may be made. Now, in any view, there are plainly no other parties having an interest, except those who are now parties. Margaret has transferred her rights to the plaintiff; and William J. and Alfred W. are the only legatees. If then, they were properly brought in, no reason is shown why a verdict against the signers of the note should not have been directed in favor of some one. The object of section 452 is not to enable debtors to escape paying debts; but, in a proper case, to aid in deciding to whom they shall pay. And when every person who could claim the debt is a party, the debtor should not go free.

Undoubtedly, if this note was, in fact, wholly assets of the estate the executrix could reclaim it if she had parted with it improperly But until she, or some one authorized so to do, should reclaim it, it would seem that the legal title was in the party to whom it liad been transferred. Of course the plaintiff must be the real party in interest. That means the party holding the legal title. For instance, an assignment may be fraudulent as to creditors, yet the fraudulent assignee would be competent to maintain an action on a note thus fraudulently assigned. According to the practice pursued in this case, when an assignee, under an assignment, fraudulent as to creditors, had sued on a note thus assigned, a creditor of the assignor might cause himself to be made a party defendant to that •action, and the court would thereupon nonsuit the plaintiff and thus relieve the debtor from paying any one. The mistake has been in bringing in the legatees. A general legatee is entitled, at the proper time, to liis share in the estate, and he is entitled to proceed against the executrix in the proper court for mismanagement, but he is not the owner of any specific part of the estate. The estate belongs to the executrix. These legatees, therefore, were not properly brought in as parties, because they had' no interest in this specific note. f This is easily illustrated. This executrix is personally entitled, in any event, to one-third. Now, if this note were much less than one-third of the estate, she might take it as her share or as part thereof, and the legatees could claim no.specific interest therein.

It may be true, as the respondents urge, that the plaintiff and the executrix are mismanaging the estate, but this action is not the place where that question is to be tried. As the signers of the note do not deny their signature, the only question here to be tried is whether the plaintiff is the legal owner and holder. . Of that his possession is prima facie, but not conclusive, evidence. These legatees are in no sense owners of the note, and show no title or claim of title thereto. They should not be parties.

Order making legatees parties reversed, with ten dollars costs and printing disbursements against the guardians, and motion to make them parties denied, with ten dollars costs against guardian.

Judgment reversed, new trial granted, costs to abide event.

Landón and Ingalls, J J ., concurred.

Judgment reversed, new trial granted, costs to abide event.


author: Landon, J.:

text:
    STACIA CULLEN, as Administratrix, etc., of JAMES CULLEN, Deceased, Appellant, v. FREDERICK O. NORTON, Respondent.

      Duty of the owner of a mine, to his servants — submission to the jury of the question, as to his negligence — what risks the servcmt does not assume-.

    On the 4th day of June, 1887, the plaintiff’s intestate, one Cullen, who was a qaurryman or miner in the employ of the defendant, was lulled by the falling of rocks from an unexpected discharge of a blast in the defendant’s cement quarry in the town of Rosendale. On that day eleven holes had been drilled and charged in a perpendicular breast of rock, which were fired at one time, one of which did not explode. The attention of the defendant’s foreman in charge of the work having been called to the unexploded blast he remarked that it would not pay to bother with firing it, and gave directions to drill other holes around and near it and pointed out the places, and directed Cullen and other workmen to commence drilling upon the same breast of rock about fifteen or twenty feet beneath the unexploded blast. While the men were drilling above and Cullen below it the unexploded blast unexpectedly exploded, and the rocks thrown out fell upon Cullen and killed him.
    Upon an appeal from a judgment dismissing the complaint, upon the close of the plaintiff’s testimony, in an action brought to recover damages occasioned by the death of the intestate:
    _Held, that one of the duties of the master was to furnish his servant a safe and proper place in which to prosecute his work; that this duty continued to be the master’s, no matter to what subordinate servant he delegated its performance.

      That by placing the intestate at work directly underneath the unexploded blast, while other servants were drilling the rock within two feet of it, exposed him to the danger of injury from the falling pieces of rock, if by any chance the blast should be accidentally exploded, and, in view of all the circumstances, the question as to whether such exposure was negligence on the part of the master should have been submitted to the jury.

      Turner v. Cliateanigay Ore Company (21 Weekly Dig., 40); Loughliny. State of New York (105 ÍT. Y., Í59); Crispin v. Babbitt (81 id., 516); MeCoslc&i’ v. Long Island Bailroad Company (84 id., 77); Scott v. Sweeney (84 Hun, 292) distinguished.
    It was urged that the deceased knew all about the facts and voluntarily assumed the risks, and thus by his contributory negligence precluded a recovery.

      Held, that this was a question for the jury.
    Where a servant does not assert his judgment, in opposition to the supposed better judgment or stronger will of his master, the law usually allows a jury to determine whether he voluntarily assumed the risks', or acted in reliance upon the judgment of his master, or out of a constrained acquiescence in the rule of obedience which his relation as servant imposed.
    Appeal from a judgment dismissing tbe complaint, directed by the court upon the close of the plaintiff’s testimony, upon a trial at the Ulster Circuit before a jury, which was entered in the'office of the clerk of Ulster county on June 25, 1888.
    The plaintiff’s intestate, James Cullen, was killed on the 4th day of June, 1887, by falling rock resulting from an unexpected discharge of' a blast in the defendant’s cement quarry in the town of Rosendale. Cullen was a quarryman or miner in the employ of the defendant. Eleven holes had been drilled and charged in a perpendicular breast of rock. They were fired at one time, but only ten exploded. Patrick Dolan was defendant’s foreman in charge. JELis attention was called to the unexploded blast, and the boss blaster said, “ Fire it.”. Dolan remarked that it would not pay to bother with it, and he gave directions to drill other holes around it and near it, and pointed out the places. He then directed Cullen and other workmen to commence drilling upon the same breast of rock, about fifteen or twenty feet beneath the unexploded blast. Air drills were used by Cullen and by the men above him. 'While the men were drilling above and Cullen below, the' unexploded blast unexpectedly exploded, and the rock thrown out fell upon Cullen and killed him.

      D. M, Dewitt, for the appellant.

      J. W. Fiero, for the respondent.
   Landon, J.:

Upon the evidence, we think this case ought to have been submitted to the jury. The plaintiff’s intestate took upon himself all the risks incident to the dangerous character of his service, except those that might befall him in consequence of his master’s negligence. (Pantzar v. Tilly Foster Iron Mining Co., 99 N. Y., 368.) One of the duties of the master was to furnish his servant a safe and proper jfiace in which to prosecute his work. (Id.) This duty continued to be the master’s, no matter to what subordinate servant he delegated its performance. (Id.) The defendant’s foreman was intrusted with its performance, and hence stood in place of and represented the master in assigning the servant to his fatal place of labor. If it was negligence to assign him to this place, the negligence was the master’s. This place was upon the bench of the breast of perpendicular wall of rock, fifteen or twenty feet beneath the undischarged blast, within two feet of which two other work, men were engaged in drilling holes. It may be that the best method of treating the undischarged blast was to drill holes around it, charge and explode them, and thereby blow out the rock which held it. A mistake in that respect might be merely a mistake in judgment as to the best method of treatment of a dangerous situa_ tion, and not at all attributable to negligence. But to place the servant at work directly underneath the unexploded blast, while other servants were drilling' the rock within two feet of it, exposed him to the danger of injury from the falling pieces of rock, if, by any chance, the blast hould sbe accidentally exploded. It would be for the jury to say, in view of all the circumstances, whether such exposure was negligence on the part of the master.

In Turner v. Chateaugay Ore Conpany (21 Weekly Dig., 40), decided hy us, a hole had been charged and fired, but the explosion did not perform the service expected, and defendant’s foreman told the plaintiff to drill it deeper. The fact was that in the discharge, some of the explosive material in the hole remained unexploded, and as the plaintiff was engaged in drilling the hole deeper, this material exploded and injured him. The risk was incident to the work, and would be great in any place and under any master. A sharp inspection of the hole before commencing to drill it would be the ordinary duty of the workman. If it had been made by the foreman, lie would simply be doing servants’ work, and bis negligence would be tbe work of a fellow-servant.

Loughlin v. State of New York, (105 N. Y., 159) is cited. There the captain of the State’s boat, and the plaintiff and other workmen, under the direction of the captain, were all digging clay from a bank and loading it upon the boat. In the prosecution of this work the captain first loosened the overhanging earth and then set the plaintiff to digging underneath. Thé loosened earth fell upon the plaintiff and injured him. The court held they were all servants together, doing servants’ work; and though the captain was in ■charge, yet he was only in charge of the details of servants’ service. So it was in Crispin v. Babbitt (81 N. Y., 516); McCosker v. Long Island Railroad Company (84 id., 77), and in Scott v. Sweeney (34 Hun, 292), decided by us. Here the plaintiff’s intestate bad nothing to do with the unexploded hole; he was not co-operating with respect to it, but was, by the direction of the foreman, set to work to make new holes fifteen or twenty feet beneath it. The •foreman was in no way working with him or participating in the execution of any of the details of his work. The danger to which he was exposed was not incident to his work, but wholly incident to the place where he was assigned to do it. Here the defendant was in Europe, and his foreman represented him. When the foreman told plaintiff’s intestate to go to work in this place of danger, he spoke with the autliorhy of the master. He might have assigned him a place of labor remote from the danger of this unexploded blast. He substituted this place for the safe places at his command.

It is urged that the deceased Icnew all about the facts and voluntarily assumed the risks, and thus bji his contributory negligence precluded recovery. This is for the jury. When a servant does not assert'his judgment, in opposition to the supposed better judgment or stronger will of his master, the law usually allows a jury to determine whether he voluntarily assumed the risks, or acted in reliance upon the judgment of his master, or out of a constrained acquiescence in the rule of obedience which his relation as servant imposes. (Hawley v. Northern Central R. R. Co., 82 N. Y., 370.)

The judgment is reversed, newtrial granted, costs to abide the event.

Learned, P. L, and Ingalls, J., concurred.

Judgment reversed, new trial granted, costs to abide event.