text:
    Emanuel Durnherr, Respondent, v. Paulina Stellmacher et al., Appellants.
    (Argued October 16, 1885 ;
    decided December 1, 1885.)

      William E. Edmonds for appellant.

      Smith & Briggs for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam

license: Public Domain

text:
    Michael Cummins, Respondent, v. The City of Syracuse, Appellant.
    (Argued October 30, 1885;
    decided December 8, 1885.)
    This action was brought to recover damages for injuries alleged to have been sustained through defendant’s negligence.
    Plaintiff, who resided at Rochester, went to Syracuse, where he arrived at midnight, and went with several others, among them a brakeman, who carried a lantern, to a saloon on West Fayette street in said city; said street crosses Onondaga creek by a bridge, which the party crossed in going to the house; on the street north of West Fayette street, and directly north of the bridge is the depot of the New York Central railroad. The saloon was on the south side of West Fayette street, on the west bank of the creek adjacent to the bridge. Between the building on the opposite side of the street and the railings on the north side of the bridge was an open space of about one foot unprotected by a guard or railing. The night was dark and the street lights were out when plaintiff left the saloon to return to the depot. He saw the light from the depot reflected on the waters of the creek. He crossed the street in the direction of the light and fell through the open space into the creek, about sixteen feet below, and was injured.

      The further material facts appear in the mem. of opinion, which is given in full:
    “ The absence of a guard rail between the angle of the bridge truss and the corner of the adjacent building left an unprotected opening, through which the plaintiff fell and was injured.
    “ The circumstance was such as to permit an inference of negligence on the part of the city to be drawn by a jury. The more difficult inquiry is, whether any reasonable view of the admitted facts warrants an inference that the plaintiff was himself free from negligence contributing to the injury. Dismissing all consideration of the equivocal character of the injured man, and of the questionable purpose of his wanderings in the night, as immaterial to the injury, we still have the facts that he was a stranger in the city, knowing nothing of the locality, crossing a bridge of which he was conscious just before entering the house from which he last emerged, having with him, as a guide and companion, the brakeman, Sullivan, who did know the locality and carried with him a train lantern, but, on leaving the house in a night of extreme darkness, undertaking to find his own way without the immediate aid of Sullivan’s knowledge or his light, and so, misled by a reflection on the water, crossing the street, and walking through the unguarded opening. On the face of it this conduct seems negligent. It is forcibly urged, that, while he had a right to assume the streets to be safe for the purpose of travel, he had no right to assume that accident was impossible, or the city an insurer of his safety. The means of protection were at hand; ordinary prudence required their use and might have prevented the accident. The known existence and proximity of the bridge, an entire ignorance of the locality, and the extreme darkness of the night, all demanded of plaintiff an exercise of such reasonable care and caution as the circumstances placed within his power. If he had found himself upon the street without light or guide, and a stranger to the locality, it would have been easy to infer that he moved with all the care and caution reasonably within his power. But if, having a light, he had extinguished it and taken the risk of the darkness, or having a guide, had dismissed him without adequate necessity or reason, and so had walked through the gap, the inference of carelessness would have been irresistible. In this case the plaintiff voluntarily dispensed, for the moment, both with a guide and a light, and ignorantly traveled off into the darkness. Such conduct was imprudent unless other circumstances so excused or explained it as to make possible an inference of reasonable care; and it is upon those circumstances, if at all, that a question of fact can arise. It is said plaintiff was in a hurry, and the guide and the light delayed and lingered behind. Nothing hurried him. The party were on their way back to the freight train, and to a lodging in the caboose. For this the plaintiff was indebted to the brakeman, and could reach the result only in his company and •through his assistance. Nothing was gained by preceding him, and nothing lost by waiting for him to lead the way. But it is much more forcibly suggested that the plaintiff was misled by Sullivan’s failure to warn him that he was going wrong. The proof is that while the brakeman tarried, and the plaintiff moved on across the street, the former called out ‘ Mike, where are you going 3 ’ to which plaintiff answered, ‘ I am going across this way ; come on.’ The fact that Sullivan made no reply, and uttered no further warning, is relied upon as furnishing to plaintiff an assurance that he was not going wrong. And this fact put in connection with the further fact that the creek made an opening leading directly to the light at the depot which was reflected upon the water and induced plaintiff’s belief that an open street was before him running directly to the station furnish the final explanation offered. It does not rebut the inference of negligent conduct. The call of Sullivan was almost, if not quite, a warning. The sound of his voice drew attention to the fact that he was lingering behind, and what he said indicated that plaintiff was not going in the expected direction and to the train. It called his attention to his wandering, and prudence required that he should wait the few moments necessary, till a guide and a light would insure safety and indicate the proper direction. And the fact that he knew his proximity to a bridge and of course to an opening which it spanned made his duty all the more imperative. Instead of that he disregards the warning ; answers, ‘ I am going across this way; come on ’; and plunges blindly forward into the darkness. It is true that he thought .he was travel-ling an open street and was misled by the reflection of the station light on the water; but there was no need of any such mistake; no urgency or need impelled him to trust in an unknown locality, near a bridge, to the uncertain guidance of such imperfect sight as was alone possible in the thick darkness. That is the trouble with the explanation. It does not excuse neglect to employ the light and the guide, ready at hand and costing only a few moments of harmless delay, which would have guarded against the deception of the open creek, and prevented the accident. We do not think the facts admit of any reasonable inference consistent with the absence of contributory negligence.
    “ The judgment should be reversed, and a new trial granted, costs to abide the event.”

      Louis Marshall for appellant.

      George Raines for respondent.
   Per Curiam

opinion for reversal and new trial.

All concur, except Danforth, J., dissenting, and Finch, J., not voting.

Judgment reversed.


text:
    Henry W. Smith et al., Appellants, v. Thomas E. Arnold et al., Respondents. Same, Appellants, v. Same, Respondents.
    (Argued November 24, 1885 ;
    decided December 8, 1885.)

      Walter Howe for appellants.

      John H. V. Arnold for respondents.
   Agree to dismiss appeals; no opinion.

All concur.

Appeals dismissed.


text:
    Mary B. Lyon, as Executrix, etc., et al., Appellants, v. Charles W. Hersey et al., Respondents.
    (Argued November 24, 1885;
    decided December 8, 1885.)
    This was an appeal from an order of General Term, affirming an order of Special Term, fixing defendants’ damages by reason of an injunction herein.
    The following is the mem. of opinion:
    “ The right of the defendant to damages on account of the injunction is not disputed, and we see no reason to interfere with the result reached at the General Term. There is some evidence that all the items of damages were sustained by reason of the injunction, and that the damages were as much as allowed. We have nothing to do with the weight or the cogency of the evidence.

      “ The order should be affirmed, with costs.”

      C. D. Adams for appellants.

      N. E. Kernan for respondents.
   Per Curiam

mem. for affirmance.

All concur.

Order affirmed.


text:
    The People, ex rel. Eden Musee American Company (Limited), Appellant, v. Joseph B. Carr, Secretary of State, Respondent.
    (Argued November 24, 1885;
    decided December 8, 1885.)

      Abm. Van Santvoord for appellants.

      Denis O’Brien, attorney-general, for respondent.
   Agree to affirm on opinion below.

All concur.

Order affirmed.


text:
    In the Matter of John Swenarton, Respondent, v. Walter H. Shupe, Appellant.
    (Argued November 24, 1884 ;
    decided December 8, 1885.)

      Geo. W. Stephens for appellant.

      Robert L. Harrison for respondent.
   Agree to dismiss appeal on the ground that it involves only questions of facts; no opinion.

All concur.

Appeal dismissed


text:
    The People, ex rel. Leslie W. Russell et al., Respondents, v. Alfred C. Chapin, Comptroller, etc., Appellant.
    (Argued November 24, 1885 ;
    decided December 8, 1885.)

      Alfred C. Chapin, appellant, in person.

      Leslie W. Russell for respondents.
   Agree to affirm on opinion of judge at Special Term.

Order affirmed.


text:
    In the Matter of Rebuilding the Bridge across the Shawangunk Kill, between the towns of Crawford and Shawangunk.
    If mere user by the public, without any action of town authorities, laying out, recording, improving or accepting a road can make it a highway (as to which qumre), such user must continue for at least twenty years.
    (Argued November 24, 1885;
    decided December 8, 1885.)
    This is an appeal by the town of Shawangunk from an order of General Term, made November 18, 1884, which reversed an order of Special Term, confirming the report of a referee adjudging the town of Crawford liable to rebuild one-half of a bridge across the Shanaugnnk kill, a stream of water which forms the boundary line between said towns. The road which crossed the stream by the bridge was opened and the bridge built at private expense. It was used by the public, and that portion thereof in the .town of Crawford was regularly laid out in and by proceedings under the statute, but that portion, in the town of Shawangunk was-never legally laid out or accepted by the town. In 1881 the bridge was washed away by a freshet, and the town of Crawford refused to contribute toward rebuilding it. The following is the mem. of opinion :
    “ The road in the town of Crawford was not legally laid out. There was no acceptance by the town, or its officers, of the road after it was opened by private parties. Nor was there any acceptance of the dedication of the land for the highway which imposed the burden of the highway upon the town. The road was never recorded as such, and no order was ever made laying it out, and it was never worked or improved by the town as such. Here the use of the road by the public was only for about four years, and if mere user by the public without any action of the town authorities laying out, or recording, or improving, or accepting the road, can make a highway (a point we do not determine), such user must continue at least twenty years.
    “ Concurring in the opinion pronounced at the General Term we see no occasion to write more.
    “The order should be affirmed, with costs.”

      J. F.Cloonan for appellant.

      William Vanamee for respondent.
   Per Curiam

opinion for affirmance.

All concur.

Order affirmed.


text:
    William Martin, Appellant, v. The Tribune Association, Respondent.
    (Argued December 1, 1885 ;
    decided December 8, 1885.)

      Clifford A. H. Bartlett for appellant.

      Cornelius A. Runkle for respondent.
   Agree to dismiss appeal on argument.

All concur.

Appeal dismissed.


author: Rapaxlo, J..

text:
    Edward J. Chapin, Respondent, v. Walter J. Foster, Appellant.
    The court has no authority to impose as a condition of granting an order to set aside an execution against the person, unlawfully issued, that defendant shall stipulate not to sue for damages for an arrest under the unlawful process; nor does the fact that the order awards costs, authorize the condition.

      It seems that if the condition be attached, to the award of costs only, it would be proper.
    Where the order imposes such a condition, defendant has the right to appeal from that portion thereof, so long as he has not availed himself of the portion awarding costs; it is not necessary to appeal from the whole order.
    The complaint in this action alleged in substance that plaintiff, having in his possession certain property pledged to him as security for a debt, delivered the same to the defendant under an agreement between the parties and the pledgor, that defendant should receive the property, sell the same, and out of the proceeds pay plaintiff’s claim; that defendant sold the property and has in his possession sufficient of the avails to pay plaintiff’s debt, but refuses so to do. Held, that the action was ex contractu and no order of arrest having been issued therein a judgment in plaintiff's favor did not authorize an execution against the person. (Code of Civ. Pro., § 549.)

      Bartlett v. Btinton (L. B., 1 C. P. 483), distinguished.
    (Argued November 24, 1885;
    decided December 8, 1885.)

      Appeal from a portion of an order of the General Term of the Supreme Court in the third judicial department made November 20, 1883, which reversed with costs an order of the Special Term denying a motion to vacate or set aside an execution against the person of defendant, and granted the motion with costs of motion “ upon the defendant stipulating not to sue 'for false imprisonment on account of his arrest or imprisonment under said execution.” Tiie appeal was from that portion of the order imposing the condition.
    The complaint alleged in substance that plaintiff in October, 1875, had in his possession certain property pledged to him as security for a debt. That the pledgors and defendant being desirous of obtaining possession of said property, entered into an agreement with plaintiff, by which defendant agreed to receive said property, sell the same, and out of the proceeds, to pa; ■ among other debts, plaintiff’s claim. That in pursuance of said agreement, plaintiff delivered the property to defendant, who sold and converted the same into money ; realizing more than sufficient to pay for all the indebtedness specified in the contract including plaintiff’s claim; but that although he has •the money in his possession he refuses to pay said claim. No order o^ .rrest was obtained. Plaintiff obtained judgment, and upon return' of execution against property unsatisfied the execution in question was issued, and defendant was arrested by virtue thereof.

      Geo. W. Stephens for appellant.
    Whenever a party is entitled to a vacation of an order as a matter of right, the court cannot abridge that right by compelling him in order to obtain it to surrender another. (Matter of Bradner, 87 N. Y. 171; Tompkins v. Smith, 62 How. 449; Wilder v. Guernsey, 19 Alb. L. J. 401; Mayer v. Rothschild, 59 How. 510; Faulkner v. Morey, 22 Hun, 379; Crotty v. Kimball [MSS.] Gen. Term, Sup. Ct., Oct. 1885.)

      John W. Stone for respondent.
    The action being for conversion and misappropriation, a body execution was properly issued. (Roberts v. Prosser, 53 N. Y. 260; Wood v. Henry, 40 id. 124; Segelken v. Meyer, 94 id. 473.) The court had power to impose the condition not to sue for false imprisonment. (In re Bradner, 87 N. Y. 176; Morangue v. Walden, 6 Hun, 529; Mobnow v. Kenan, 22 How. 190; Parcher v. Billows, 23 id. 421; Brown v. Teat, 1 Hill, 221; Chandler v. Bricknell, 4 Cow. 49; Robb v. Moffat, 3 Johns. 397.) The appellant should have appealed from the entire order. (Wallace v. Castel, 68 N. Y. 370; Bartlett v. Stinton, L. R., 1 C. P. 483.) The defendant cannot enforce that portion of the direction that was favorable to him and appeal from the portion that was unfavorable. (Bennett v. Vansykler, 18 N. Y. 481; Greenberg v. Blumendahl, 66 How. 62; Wheeler v. Tracy, 47 N. Y. 368; Tribune v. Smith, 40 id. 81; Matter of Water- Works, 85 id. 478, 648.)
   Rapaxlo, J..

This case comes within the decision in Segeiken v. Meyer (94 N. Y. 473). The action was not one of those specified in section 549 of the Code of Civil Procedure, but was ex contractu for neglecting and refusing to pay a debt due to the plaintiff out of the proceeds of property which had been placed in the hands of the defendant to be by him H ’d for the purpose of paying certain debts, among which was that due the plaintiff. Ho order of arrest having been issued in the action, the judgment therein did not authorize an execution against the person. The execution against the person of the-defendant was, therefore, unlawfully issued, and the defendant-had a legal right to a reversal of the order of the Special Term, which denied his motion that it be set aside and he be released from the custody of the sheriff.

The General Term consequently erred in attaching to its order of reversal the condition that the defendant should stipulate not to sue, etc. (Matter of Bradner, 87 N. Y. 171; Crotty v. Kimball, N. Y. Gen. Term, Oct. 1885.)

It is claimed that, as the order of reversal awards costs to the defendant, and such award of costs was in the discretion of-the court, it had the right to attach the condition in question to its order. If the condition had been attached to the award of costs simply, it could stand, but it is not so limited. It is attached to the whole order, and the consequence is, that if the defendant declined to give the stipulation, the erroneous order of the Special Term and the execution against his person would remain in force. The plaintiff claims that the defendant should have appealed from the whole order. This, it is obvious, he could not be required to do, for a reversal of the whole order would have left the order of the Special Term, and the execution, in full force,

It does not appear that the defendant has collected or demanded the costs awarded to him by the order of reversal, and the case, therefore, does not come within that class of cases which hold that a party who has availed himself of provisions in his favor, contained in an order, has thereby waived the right to appeal from other provisions therein which are adverse to him.

The case is distinguishable from that of Bartlett v. Stinton (L. R., 1 C. P. 483). In that case the moving party, by his notice of motion, asked the court for the exercise of its discretionary power in his favor, and his motion was granted on terms. In the present case the decision of the Special Term was against him. He did not, by his appeal to the General Term, ask for the exercise of any discretion, nor submit himself to its discretion to impose terms upon him. His appeal was based upon a purely legal point, and the effect of the appeal was to demand, as matter of right, that the erroneous order appealed from be reversed. Whatever the General Term added to that reversal was of its own volition, and the defendant had the right to appeal from that part of-the order which prejudiced him, so long, at all events, as he had not undertaken to enforce any other part of the order which rested in the discretion of the General Term.

The order of the General Term should be modified by striking out the condition specified in the notice of appeal, with costs.

All concur.

Ordered accordingly.


author: Per Ouriarn.

text:
    Sallie G. Thorington et al., Appellants, v. J. Vaughn Merrick et al., Respondents.
    In an action to compel a trustee to account and pay over the sum found due, and to convey to plaintiffs the trust estate, an attachment will not lie. (Code of Civ. Pro., § 635.)
    The affidavit upon which an attachment was issued in such an action stated that “ the amount of plaintiff’s claim in said action is, to-wit : §10,000, or other larger sum with interest * * over and above all discounts and set-offs,” and as grounds of the claim, alleged in substance that a claim for §9,000, secured by mortgage, was put into defendants’ hands for collection, they agreeing to account for and turn over the proceeds ; that they collected and discharged the claim, receiving on such settlement certain real estate “of great value,” the title to which they took in their own names, a portion of which they collusively and without the knowledge of the owners of the claim disposed of, and the balance they hold ; but refuse to convey or to account for moneys received. Held, that the affidavit was insufficient, under the Code of Civil Procedure (§ 636), to warrant the attachment, as it did not state that a specific sum was due over and above all counter-claims, or that plaintiffs were entitled to recover any sum; and that the facts stated fail to show that plaintiffs are entitled to recover the sum named.
    The order appealed from affirmed a Special Term order vacating the attachment. Neither order stated the ground for the decision. Held, that it was discretionary with the court below to determine, from the facts stated whether a case for an attachment was made, and its decision was not reviewable here.
    (Submitted November 24, 1885;
    decided December 8, 1885.)
    Appeal from order of the General Term of the Supreme Court, in the second judicial department, made February 15, 1885, which affirmed an order of Special Term vacating and setting aside a warrant of attachment issued herein.
    The affidavit upon which the attachment was issued alleged “ that a cause of action exists in favor of said plaintiffs against said defendants, for which said action is commenced, or is about to be, and the amount of plaintiffs’ claim in said action is, to-wit: $10,000 with interest from the 1st day óf January, 1883, over and above all discounts and set-offs, and that the ground of said claim and "cause of action is as follows: ” The grounds stated were, in substance, that deponent, as trustee for the plaintiffs, held a certain mortgage claim which he placed in the hands of defendants for collection, in pursuance of an agreement, in writing,'by which defendants agreed to collect the same, and to- duly account and turn over the proceeds to the deponent as trustee, or to the cestui que trusts ; that defendants collected and discharged the claim, but have not accounted as agreed; that, in the settlement of said claim, defendants took certain real estate of great value, which they caused to be conveyed to themselves ; that a portion of said real estate they collusively resold and recon vejred to the mortgagor without the authority or consent of deponent or the cestui que trusts / that the balance of the real estate they still hold and refuse to convey to those entitled thereto, and that defendants are non-residents but have property in this State.

      J. 8. Wvnter for appellants.
    Where the affidavit for an attachment sets forth enough to call on the officer for the exercise of his judgment, it gives jurisdiction. (Conklin v. Dutcher, 5 How. 386; 1 Code R. [N. S.] 49; Skinner v. Kelly, 18 N. Y. 355.) On motion to set aside the attachment for irregularity, it will be held sufficient. (Talcot v. Rosenburg, 3 Daly, 203; Niles v. Vanderges, 14 How. 547; Van Loon v. Lyons, 61 N. Y. 24; Schoonmaker v. Spencer, 54 id. 366; Furman v. Walter, 13 How. 348.) It seems sufficient to confer jurisdiction when the affidavit makes out a clear prima facie case. (Mott v. Lawrence, 17 How. 559; 1 Code R. [N. S.] 104; 3 Sandf. 703; Woodhouse v. Todd, 10 Weekly Dig. 59; 9 Rep. 621.) The affidavit should contain a statement of the facts out of which the claim arose, and they should appear to warrant the claim or conclusion deduced from them. (Manton v. Poole, 67 Barb. 330; S. C., 4 Hun, 638; Easton v. Molavasa, 7 Daly, 147; Allen v. Meyer, id. 229.) An averment that the amount of plaintiff’s claim in the action is a sum stated over and above all discounts and set-offs, is the equivalent of the statement that said claim is the sum stated “ over and above all counter-claims known to plaintiffs.” (Lamkin, v. Douglass, 27 Hun, 517; Alford v.
      Cobb), 28 id. 22; Trow P. Co. v. Hart, 60 How. 190; Rupert v. Haug, 1 Civ. Pro. 417; 87 N. Y. 141.) In order to justify the issuing of an attachment under the Code, it is not necessary that the plaintiff should have a cause of action for the payment of the money 'merely. It is enough that a cause of action exists against the defendant, and that the amount of the claim, and the grounds thereof are stated. (Ward v. Bagg, 18 Barb. 139; Eaton v. Molavasa, 7 Daly, 147; Allen v. Meyer, id. 229.) It is no objection that the action is ex contractu even though it is in whole or in part for unliquidated damages, if the claim is for money, and the debt of an actual character, actually due and not dependent on any contingency. (Drake on Attach. [5th ed.] 13-25, §§ 13-23; Lennox v. Howland, 3 Cai. 323; In re Francisco Marty, 3 Barb. 229; Lawton v. Riel, 51 id. 30; Ward v. Bogg, 18 id. 139; Hagood v. Jordans, 12 Ala. 180.) Where the defendant’s non-feasance or default is of a duty created by contract, the action should be in assumpsit. (1 Chitty's Pl. 153.) The affidavit is unquestionably sufficient, if, after setting forth the dealings between-the parties and the nature of the indebtedness, it alleges that the defendant by means of the premises is indebted to the plaintiff in a sum stated, and that the defendant is not a resident of the State. (Drake on Attach. 34, § 34; Humphreys v. Matthews, 11 Ill. 471; Burger v. Griffin, 2 La. Ann. 154.) Assumpsit is sustainable where there has been an express contract or where the law implies a contract. (1 Chitty's Pl. 112.) Where there is an express promise and a legal obligation results from it, then the plaintiff’s cause is accurately described in assumpsit. (1 Chitty's Pl. 152.)

      Douglass & Minton for respondents.
    The action is not “ one to recover a sum of money only.” (Code, § 635.) Attachment will not lie in actions of this nature. (Ackroyd v. Ackroyd, 20 How. Pr. 93; Guilhon v. Linds, 9 Bosw. 601; Ketchum v. Ketchum, 1 Abb. Pr. [N. S.] 157; Kneeland on Attach., § 111.) It is necessary that facts sufficient to constitute a cause of action should be stated. (Reilly v. Sisson,
      31 Hun, 572.) "It is essential that the affidavit should show that the plaintiffs are entitled to recover a specific sum. A general averment of damage is not sufficient. (Golden G. C. Co. v. Jackson, 13 Abb. N. C. 476; Walts v. Nichols, 32 Hun, 276.) The action, if not in equity, is one brought to recover “damages fora breach of contract.” The affidavit, then, should - have shown “ that the plaintiffs are entitled to recover a sum stated, therein, over and above all counter-claims known to them.” (Code, § 636; Lyon v. Blakely, 19 Hun, 299; Donnell v. Williams, 21 id. 216; Dickey v. Coe, 13 Weekly Dig. 318; Rupert v. Haug, 87 N. Y. 141; Murray v. Hankin, 30 Hun, 37; Gray v. Giles, 2 Law Bull. 12.)
   Per Ouriarn.

The action here is in equity, and from the facts set forth in the affidavit the plaintiffs are only entitled to a judgment that the defendants hold the pine lands, therein mentioned, in trust for the plaintiffs, and that they convey the same to the plaintiffs, and that an accounting of their transactions be taken as trustees for the plaintiffs, and that they pay-over the sum found due to them upon such accounting.

It is manifest that in such a case an attachment will not lie, within the provisions of section 635 of the Code of Civil Procedure. .We are also of the opinion that the affidavit was insufficient, inasmuch as it did not state that a specific sum was due, over and above all counter-claims known to the plaintiffs, in accordance with the provisions of section 636 of the Code of Civil Procedure. It was upon this ground, as appears from the opinion, that the General Term affirmed the order vacating the attachment. The affidavit, on its face, does not show that the plaintiffs are entitled to more than nominal damages. It places no value upon the real estate mentioned therein, and for which the plaintiffs are called upon to. account, but it simply alleges that it was of great value. It sets forth “ that the amount of plaintiffs’ claim in said action is, to-wit: $10,-000, or other larger sum, with interest from the 1st day of January, 1883, over and above all discounts and set-offs.” The value of the property is the basis upon which the amount of the attachment is fixed, and this is, as we have seen, not specifically stated. The facts stated do not show that the plaintiffs are entitled to recover the sum named, or any sum whatever, and it is not alleged in the affidavit that they are entitled to recover any sum. It may also be observed that it was discretionary with the courts below, in view of the facts stated in the affidavit, to determine whether a case was made out for an attachment, and as the order of t'he Special Term and the order appealed from do not state the ground upon which the attachment was vacated, the decision may he upheld upon this ground.

The appeal should he dismissed.

All concur.

Appeal dismissed.


author: Dahfobth, J.

text:
    Board of Water Commissioners of the Village of Clinton, Respondent, v. Theodore W. Dwight et. al., Appellants.
    The act of 1885 (Chap. 17, Laws of 1885), entitled “An act for the relief of the village of Clinton,” is not violative of the constitutional provision (State Const., art. 3, § 16), declaring that no private or local bill “ shall embrace more than one subject and that shall be expressed in the title ”; and said act was within the authority of the legislature and is valid.
    Said act, although a local, is not a private one.
    Where prior to the passage of said act proceedings had been commenced by the board of water commissioners of said village under the act of 1875 (Chap.. 181, Laws of 1875), authorizing villages to furnish pure and wholesome water to their inhabitants, and an application for the appointment of commissioners to appraise damages had been denied at Special Term, on the ground of non-compliance with the requirements of the act last mentioned—Held, that the act of 1885 was properly before the General Term on appeal from the Special Term order, and rendered a decision upon the original proceedings unimportant; and that, therefore, a reversal of the order of Special Term with leave to make “application to the Special Term for the appointment of commissioners,” was proper,
    (Argued November 24, 1885;
    decided December 8, 1885.)

      Appeal from order of the General Term of the Supreme Court, in the fourth judicial department, made April 21, 1885, which reversed an order of Special Term, denying an application for the appointment of commissioners in proceedings under the act of 1875 (Chap. 181, Laws of 1875) to appraise the damages by reason of the taking of water from Miller creek to supply the village of Clinton. The General Term order authorized application to be made to the Special Term for the appointment of commissioners.
    The material facts are stated in the opinion.

      William Kernan for appellants.
    Chapter 17 of the Laws of 1885 is unconstitutional as violating article 3, section 16 of the State Constitution, which provides that no private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title. (Rochester v. Briggs, 50 N. Y. 553; Matter of Blodgett, 89 id. 392.) The act under consideration is a “local” bill. (People v. Supervisors, 43 N. Y. 10; Kerrigan v. Force, 68 id. 383.) The General Term erred in resorting to chapter 17 of the Laws of 1885, passed since the argument before that court, as a ground for reversing the judgment at Special Term. A court cannot take “judicial notice” of a private statute. (1 Greenl. on Ev. [14th ed.] 8; Broad S. H. Co. v. Weaver, 57 Ala. 26; Perdecaris v. Trenton, 5 Dutch. [N. J.] 367; Alleghany v. Nelson, 25 Penn. St. 332; Code of Civ. Pro., § 530.) Documentary evidence can be put in evidence at the General Term, or even in the Court of Appeals, only to uphold a judgment, not to reverse it. (Stillwell v. Carpenter, 62 N. Y. 639; Porter v. Waring, 69 id. 250.) An appellate court can reverse a judgment only when it is shown that the court below erred in deciding the case on the evidence before it. (Stillwell v. Carpenter, 62 N. Y. 639; Porter v. Waring, 69 id. 250; Bourel v. Bigler, 19 Ohio, 362; The Grace Werdler, 7 Wall. 196.)

      C. D. Adams for respondent.
    The proceedings on the part of the village or water commissioners, under the Laws of 1875, were legal and regular. (Fleming v. Village of Suspension Bridge, 92 N. Y. 368.) Chapter 17, Laws of 1885, was sufficient to cure any supposed irregularities or_defects in such proceedings. (63 N. Y. 239, 244; 66 id. 129-137; 82 id. 204-210; Cooley on Const. Lim. 371, 379.)
   Dahfobth, J.

The proceeding was instituted by the board of water commissioners of the village of Clinton, for the purpose of acquiring water from Miller brook for the use and supply of that village. To that end, under section 6 of the act of 1875, entitled An act to authorize the villages of the State of Hew York to furnish pure and wholesome water to the inhabitants thereof ” (Chap. 181), they presented a petition to the Supreme Court, asking that commissioners be appointed to determine the damages sustained by its owners by reason “ of the taking and use of said water.” The application was opposed by them, and denied at Special Term upon the ground that certain provisions of the act of 1875 {supra) had not been complied with by the petitioners, but the decision was reversed at General Term, and leave given to make application to the Special Term for the appointment of commissioners,” upon the ground, as stated in the order, that the errors and omissions complained of were cured by the act of 1885 (Chap. 17), entitled ce An act for the relief of the village of Clinton,” and, therefore, it was deemed unnecessary for the court to examine the merits of the controversy.

The appellant contends that the court erred in giving that efieet to the statute, saying, first, that it violates article 3, section 16, of the Constitution, which provides that no private or local bill, which may be passed by the legislature, shall embrace more than one subject, and that shall be expressed in the title.”

It must be conceded that the words of the title are very general, but they are comprehensive and do express a single intent, which the body of the act neither exceeds nor contradicts. It has been held that the purpose of the provision was, that neither the members of the legislature nor the public should be misled by the title of an act, and thereby various objects, having no necessary or natural connection with each other, be united in one bill. There is here, neither that danger nor that result. The board of water commissioners represented the village of Clinton, and the irregularities complained of, and which, if they existed, rendered inoperative the commissioners’ act, affected proceedings in which the village was alone interested, and by the non-completion of which they were prejudiced. The first section confirms and makes those acts effective and legal. The second section relates to the vote of the electors, without which, duly given, the commissioners' had no power to proceed with any duty under the act of 1875 {supra). This vote and the certificate of the result, it (§ 2) declares valid and lawful, and authorizes and requires the commissioners to perform each duty and act imposed by the statute of 1875. The subject in each section and the enactment are for the relief of the village of Clinton, and we think that well expressed in the title, although it states neither the mode in which the subject is treated, nor the means by which the end is to be reached. (Conner v. Mayor, etc., 1 Seld. 285; Brewster v. Syracuse, 19 N. Y. 116; People v. Lawrence, 41 id. 137; Gordon v. Cornes, 47 id. 608.)

Other objections to the act of 1885 are made by the learned counsel for the appellant, but we think them untenable. Although a local, it is not a private act. It concerns a whole community and not particular persons nor a private enterprise. The act, therefore, was properly before the Supreme Court, and that court could not be required to pass upon the merits-of the controversy, unaffected by it. (Geer's Case, 82 N. Y. 575.) The statute was within the authority of the legislature, and seems to have been passed to prevent public inconvenience. It is not denied by the appellant that, if valid, it cures the defects and errors under the original proceedings, and we do not consider them. But upon the ground that the act of 1885 is valid and sufficient, and a decision, therefore, upon the original proceedings unimportant, we think the order appealed from should be affirmed.

All concur.

Order affirmed.


author: Raballo, J.

text:
    Margaret C. Wallace, as Executrix, etc., Respondent, v. Robert H. Berdell et al., Appellants.
    Where, on reversal of a judgment, this court directed immediate restitution of certain real estate of which one of the appellants had been dispossessed by means of the erroneous j udgment, and that the mesne profits up to the time of the restitution be ascertained and paid to him, — held, the intent was to provide for the same compensation for withholding the real estate to which the appellant would have been entitled on recovering the same in an action of ejectment; and that an order entered upon the decision providing that “ the value of the rents and profits ” be ascertained was substantially in accord with the decision.
    The provisions of the Code of Civil Procedure (§§ 1496,1531), providing for recovery in an action of ejectment as damages for withholding the property, “ the rents and profits, or the value of the use and occupation of the property,” may be regarded as the legislative definition of the ancient technical term “ mesne profits.”
    The owner of the property withheld is not confined to the rents actually received by the party required to make restitution. The owner should have either these or the rental value, as may be just under the circumstances.
    The mesne profits consist of the net rents, rental value, or value of the use and occupation, and in ascertaining either, all necessary payments for taxes and ordinary repairs are to be deducted.
    The order of restitution contained a provision not contained in the decision, to the effect that the restitution and payment should be without prejudice to the right of the owner to commence and maintain any suit or proceeding for waste or inj ury to the property. Held, that while perhaps the provision was superfluous, as it was not the intent of the court to deprive said owner of any such right of action, if he had any, the order as entered was proper.
    (Argued December 1, 1885;
    decided December 8, 1885.)
    Motion to recall and amend remittitur etc.
    The case is reported in 98 N. Y. 480.

      Henry Baeon for motion.

      Alfred Taylor opposed.
   Raballo, J.

The opinion in this case on the motion for restitution, after holding that the remittitur should be amended by inserting a direction for the immediate restitution of the real estate in question, held that there should be inserted a further direction, that the mesne profits of said real estate, up to the time of such restitution, be ascertained and be paid by Ambrose S. Murray to Charles P. Berdell. (See 98 N. Y. 480.)

The order entered upon the decision of the motion, instead of following the words of the opinion, provided that the directions should be that the value of the rents and profits, etc.,” be ascertained.

The counsel for Mr. Murray seems to be apprehensive that this deviation from the language of the opinion may subject his client to liability for the gross rents or rental value of the property, without any allowance for amounts paid by him for taxes and necessary repairs, etc., and he now moves for a recall of the remittitur for the purpose of making the direction con-, form to the language of the opinion.

The intention of the court was to provide for the same compensation to the defendant for withholding from him the possession of his real estate, to which he would have been entitled on recovering the same in an action of ejectment, and we see no difference, in substance or effect, between the language of the.opinion and that inserted in the order.

Whatever uncertainty there may have been in former times as to the rule of damages in an action for mesne profits, has been removed by the provisions of the Revised Statutes and of the Code of Civil Procedure and the decisions thereon.

At common law the action for mesne profits, after recovery in ejectment, was in the form of an action of trespass, and although the general rule was that the plaintiff was entitled to recover in such an action the annual value of the land, it was held in some cases that he was not confined to that, and it was said by the court in Goodtitle v. Tombs (3 Wils. 118): The plaintiff is not confined in this case to the very mesne profits only, but he may recover for" his trouble. I have known four times the value of the mesne profits given by a jury in this sort of action of trespass. If it were not so, sometimes complete justice could not be done to the party injured.”

In Jackson v. Loomis (4 Cowen, 168), which was an action of trespass for mesne profits after a recovery in ejectment, it was held that a defendant, whose possession was bona fide, was entitled to be allowed in mitigation of damages the value of permanent improvements, beneficial to the freehold, made in good faith. The court, by Savage, Ch. J., after stating that it could find no case in point, either in this country or in England, citéd, in support of its decision, from the opinion of Kektt, J., in the Court of Errors, in Murray v. Gouverneur (2 Johns. Cas. 441.): “As to the sum expended for repairs, it may be left for liquidation, in an action for mesne profits, if the respondents should think proper to sue for the rents and profits. The action for mesne profits is a liberal and equitable one and will allow of every kind of equitable defense.” The Revised Statutes (2 R. S. 310, § 44 et seq.), substitute, in place of the action of trespass for mesne profits, a suggestion to be entered on the record of the judgment in ejectment, and direct that such suggestion be in the form in use for a declaration in an action for use and occupation. Section 48 requires the plaintiff to prove on the trial of the issue, to be framed on such suggestion, the value of the mesne profits during the time for which the plaintiff is entitled to recover, and by section 49 allowances are directed to be made for permanent improvements and for the value of their use.

In Woodhull v. Rosenthal (61 N. Y. 394) the rule of damages is stated by Dwight, Commissioner, to be the rental value of the premises recovered; and the whole subject is provided for by the Code of Civil Procedure, which provides (§ 1496) that in an action to recover-real property or the possession thereof, the plaintiff may demand in his complaint, and in a proper case recover, damages for withholding the property, and section 1497, that “ those damages include the rents and profits or the value of the use and occupation of" the property where either can be legally recovered,” and section 1531 uses the same language as to the amount of damages allowed in ejectment, viz.: The rents and profits or the value of the use and occupation of the real property recovered,” so this may be regarded as the legislative definition of the ancient technical term “ mesne profits” used in the opinion. The term “ value of the rents” employed in the order, does not essentially_depart from this definition.

It would be manifestly unjust to confine the owner of the property withheld from him to the rents actually received by the party required to make restitution. The owner should have either those rents, or the rental value, as may be ■ just under the circumstances. In either case, payments necessarily made for taxes and ordinary repairs would be involved in ascertaining the rents received or the rental value. The mesne profits consist of the net rents after deducting all necessary repairs and taxes, or the net rental value, or the value of the use and occupation. That is all of which the party from whom the possession has been withheld has been deprived. For this he should be made whole, and he should not suffer from any mismanagement, negligence or improvident expenditure by the party in possession. On the other hand he should not be relieved from any necessary diminution of the gross rents or rental value, or gross value of the use and occupation, to which he would have been himself subjected had he not been disturbed in his possession.

The amount justly chargeable for the rents which the owner derived, or might with reasonable diligence have derived from the property, and the amount of the expenditures which have been properly made and which the owner would have been obliged to make had he remained in possession, are matters to be determined by the referee.

The order contains a further provision which was not contained in the opinion, viz.: “ That the restitution and payment ordered be without prejudice to the right of Charles P. Berdell to commence and maintain any suit or proceeding for waste or injury to the property, etc.”

This provision determines no question in relation to any such action, but leaves the parties to their legal rights, whatever they may be. That under certain circumstances such an action may be brought, after recovery in ejectment, was decided by the court of errors in Dewey v. Osborn (4 Cow. 329). The provision in the order was perhaps superfluous, as no such damages could have been recovered in the proceeding for restitution. It was not intended to deprive Mr. Berdell of such right of action, if he had any, and we see no occasion for amending the order in that respect.

The motion should be denied without costs.

All concur.

Motion denied.


author: Per Curiam.

text:
    Hiram W. Lane, Appellant, v. Josiah H. Wheeler, Respondent.
    A notice of appeal to this court from an order granting a new trial, which does not contain an assent on the part of the appellant as required by the Code of Civil Procedure (Subd. 1, § 191) that, if the order is affirmed judgment absolute shall be rendered against him, is fatally defective.
    Assuming that the time to appeal from an order granting a new trial might be extended by the facts that the appeal cannot be taken without leave of the General Term, and that such leave could not be obtained until the next General Term, the notice of appeal must at least be served within sixty days after leave is granted. It is immaterial that the appellant fails to enter the order granting leave ; he cannot extend his time to appeal by delaying to enter an order obtained for himself, upon his own motion.
    (Argued December 1, 1885;
    decided December 8, 1885.)
    Motion to dismiss appeal on the grounds that the notice of appeal is defective and was not served in time.
    The material facts are stated in the opinion.

      Oook <& Lockwood for motion.

      Smith & Fisher opposed.
   Per Curiam.

The notice of appeal is defective because it does not contain an assent on the part of the appellant that, if the order is affirmed, judgment absolute shall be rendered against him, as required by subdivision 1 of section 191 of the Code.

The claim of the respondent is also well founded, that the notice of appeal was not served in time. The Code (§ 1325) requires that an appeal to this court from an order must be taken within sixty days after service upon the attorney for the appellant of a copy of the order appealed from, and a written notice of the entry thereof. A copy of the order with the written notice was served on the attorneys for the appellant on the 20th day of May, 1885, and the notice of appeal to this court was not filed with the clerk until October fourteenth, and was not served on the respondent’s attorney until October sixteenth, nearly five months after the twentieth day of May. But the claim is made for the appellant, that the limitation of time for an appeal from an order, specified in section 1325, is not applicable to this case, because the appeal could not be taken without leave of the General Term, and that such leave could be obtained only at the next General Term, which was held in June, 1885. Assuming that the time to appeal might be extended by the circumstance mentioned, the notice of appeal must be served at least within a reasonable timé after leave to appeal has been granted. Plaintiff’s motion for leave to appeal was granted at the June General Term, and the decision was handed down July third. The appeal should have been taken, at least, within sixty days from that date, and yet it was delayed more than ninety days from that date. It matters not that the appellant did not enter a formal order granting leave to appeal until September first. He could not extend his time to appeal by delaying to enter an order obtained for himself upon his own motion. It is clear, therefore, that the ’ appeal was not taken in time, and upon both grounds mentioned it should be dismissed, with costs.

All- concur.

Appeal dismissed.


author: Danforth, J.

text:
    I. E. Jefferson, Plaintiff in Error, v. The People of the State of New York, Defendant in Error.
    Where the enacting clause of a statute, forbidding the doing of an act, contains one or more exceptions, an indictment for a violation of the statute must contain averments showing that the case is not within any of the exceptions ; but an exception in a subsequent clause or statute is simply matter of defense, and it is not necessary to negative it in the indictment.
    Accordingly held, that an indictment under the provision of the excise law of 1857 (Laws of 1857, chap. 635, § 14), prohibiting the sale of intoxicating liquors, to be drank on the premises, without a license therefor, “ as an inn, tavern or hotel-keeper,” was sufficient which alleged a sale of certain specified liquors, among them ale and beer, without such a license, but did not negative a license, as authorized by the Amendatory Act of 1869, to sell ale and beer. (Laws of 1869, chap. 856, § 4.)
    (Submitted December 1, 1885;
    decided December 15, 1885.)
    Error to the General Term of the Supreme Court, in the fourth judicial department, to review judgment entered upon an order, made October 20, 1882, which affirmed a judgment of the Court of Sessions of Wyoming county, entered upon a verdict convicting plaintiff in error of a violation of the excise law. (Mem. of decision below, 28 Hun, 52.)
    The questions discussed arose under the following count of the indictment:

      “ And the jurors aforesaid, upon their oath aforesaid, do further present that the said I. E. Jefferson on the third day of May, in the year last aforesaid, at the town of Attica and in the county last aforesaid, with force and arms, did unlawfully sell divers strong, spirituous and intoxicating liquors and wines, to be drank in the house, shop, and out-house of him, the said I. E. Jefferson there situate, that is to say: wines, whisky, beer, lager beer, Dutch beer, ale, gin, rum, brandy, and other strong, intoxicating and spirituous liquors to the jurors aforesaid unknown, without having obtained a license therefor as an inn, tavern or hotel-keeper, contrary to the farm of' the statute in such case provided,” etc.

      M. E. & E. M. Bartlett for plaintiff in error.
    The right to sell, to be drank on the premises, is expressly given to inn, tavern and hotel-keepers by chapter 625 of the Laws of 1857. (O'Rourke v. People, 3 Hun, 232.) The rule of pleading in indictments is “that a party pleading must show that his adversary is not within the exceptions.” (People v. Brown, 6 Park. Cr. 66; Stark. Cr. Pl. 171.)

      I. Sam Johnson, district attorney, for defendant in error.
    The motion to quash should have been made before the defendant entered his'plea of not guilty. (1 Colby's Cr. Law. 269.) In statutory offenses it is always sufficient to charge in the indictment the offense in the words of the statute. (People v. Adams, 17 Wend. 275; People v. Gilkenson, 4 Park. 26; Osgood v. People, 39 N. Y. 449; Huffstater v. People, 5 Hun, 23.)
   Danforth, J.

The indictment in question was found in May, 1881, and as the Code of Criminal Procedure had not then taken effect (§ 963), it is to be construed without regard to the provisions of that act. It contains four counts. At the close of the evidence the court ruled that there could be no conviction under the first three counts, but against the exception of the defendant’s counsel, submitted the case as one in which the defendant might be found guilty under the fourth count, saying to the jury: You are only to consider whether or not the defendant, at the time and place mentioned in the indictment, sold strong, spirituous and intoxicating liquors, to be drank on his premises, without having a license therefor as an inn, tavern, or hotel-keeper.” There was no exception to this charge, but it followed a denial of a motion by the defendant’s counsel to direct a verdict of not guilty upon the indictment generally, and also an unsuccessful motion to quash the fourth count in the indictment, upon the ground, among other things, that it was not necessary to have a license as an inn, tavern, or hotel-keeper, “ to sell, to be drank on his premises, all of the liquors mentioned in that count.” The motion was denied, and the exception then taken to the ruling of" the court is the only error now relied upon.

The indictment was evidently drawn under section 14 of the act entitled “ An act to suppress intemperance, and to regulate the sale of intoxicating liquors,” passed in 1857, and constituting chapter 628 of the laws of that year. That section prohibits the sale of such liquors by any person “to be drank in his house, or shop, or any out-house, yard, or garden thereof, without having obtained a license therefor as an inn, tavern, or hotel-keeper,” and it is obvious that if this were all, the appeal would be without merit, but in 1869, the act of 1857 was amended (Laws of 1869, chap. 856), and among other things, it was declared by section 4 that the provisions of the act of 1857 should be held “ to apply to the sale of ale or beer, except so much thereof as forbids the granting a license to any person, except such persons as propose to keep an inn, tavern, or hotel, and the commissioners of excise were authorized, in their discretion, to grant a license for the sale of ale or beer to persons other than those who proposed to keep an inn, tavern, or hotel.” By these provisions, the operation of the act of 1857 was restricted (People v. Smith, 69 N. Y. 175) and a new exception added to that already given by section 14 of that act, so that a person might sell ale or beer, to be drank upon his premises, if lie either kept a tavern there, or had been licensed under the act of 1869.

It is not suggested by counsel on either side that the act of 1870 (Chap. 175), regulating the sale of intoxicating liquors, has in any respect contravened the provisions of the acts of 1857 and 1869, to which I have referred. The precise objection raised by the learned counsel for the appellant is that the indictment does not allege in form or substance, that defendant had not permission to sell ale or beer; and as such articles are enumerated among those alleged to have been sold, he contends that the indictment should have negatived the exception made by the act of 1869 (supra).

It is no doubt a general rule that if a statute forbids the doing of any act, without the authority of either, one of two things, the indictment must negative the existence of both before it can be supported, and it is well settled that if exceptions are stated in the enacting clause, it Would be necessary to negative them in order that the description of the crime may correspond with the statute, but if there be an exception in a subsequent clause or subsequent statute, that is matter of defense, and is to be shown by the defendant.

It has, therefore, been held that, where the statute imposes a penalty on the selling of spirituous liquors without a license, it is necessary to aver the want of a license in the indictment. But in Fleming v. People (27 N. Y. 329), it was said to be unnecessary in an indictment for bigamy to negative certain exceptions, although they were referred to in a section defining the offense, and that, as matter of pleading as well as proof, it was for the defendant to bring himself within the exceptions ; and as illustrating that rule, the court referred to the case of a physician practising without a license, and the selling spirituous liquors without a license, saying, the prosecution need not prove the want of qualification. It was also held that the omission of such allegations was within the meaning of the Bevised Statutes, which declare that no indictment shall be deemed invalid by reason of any defect or imperfection in matters of form, other than those which are enumerated, which shall not tend to the prejudice of the defendant.

In either view, therefore, the case was well disposed of. The act of 1869 extended the authority of the commissioners to grant a license for the sale of ale or beer, and affected many of the provisions of the act of 1857. But the indictment contains the language of section fourteen of that act, and stated an offense. We think that was enough.

The defendant was at liberty to show either that he had a license to sell strong or spirituous liquors, as provided in the fourteenth section of the act of 1857, or a license for the selling of ale or beer under the act of 1869. He did neither. The record shows that the evidence on the part of the people tended to prove that the defendant sold strong and intoxicating liquors in quantities less than five gallons, to be drank on his premises, and that the same were so drank on his premises, and rested. The character of the liquor does not appear, bat the defendant then proved by the admission of the district attorney that he had a license covering the periods alleged in the indictment, and mentioned in the evidence, “for the sale of strong and spirituous liquoi's in quantities less than five gallons, not to be drank on the premises.” No other evidence was given by him, and it is clear that he neither negatived the exception in section 14 of the act of 1857, nor brought himself within the proviso or condition of section 4, of the act of 1869: Tinder the circumstances, the court committed no error, and the judgment rendered upon the conviction was properly affirmed by the G-eneral Term.

The judgment appealed from- should, therefore, be affirmed.

All concur.

Judgment affirmed.