author: LawbeNoe, J.:

text:
    Henry P. Rogers and Others, as Executors, etc., of Nathaniel P. Rogers, Deceased, Respondents, v. Frank I. McGuire, Defendant; Nathaniel P. Rogers, Appellant.

      Evidence — an executor testifying to transactions with a deceased “person — he does not tiler Ay authorize his opponent to testify to an independent transaction — a will spealcs from, the testator's death — a provision releasing a devisee from debts spealcs from its date —possession by an executor of a note made by himself to his testator.

    Under the provision of the Code of Civil Procedure (§ 829) prohibiting- a party to an action from testifying in his own behalf against the executor or administrator of a deceased person, as to a personal transaction or communication with the deceased, except when the executor or administrator lias testified in his own behalf in reference thereto, the exception is confined strictly to the transaction testified to by the personal representative, and the opposite party cannot be permitted to give evidence of another and independent transaction for the purpose of explaining, impairing or contradicting the testimony so given by the executor or administrator.
    The general rule is that a will speaks from the date of the death of the testator, and not from its date, unless its language, by fair construction, indicates a contrary intention.
    Where a will directs that no deduction shall be made from the share of any of the testator’s children by reason of any sum which he has theretofore given or advanced to or for account of either of them, this provision will not be held to release a child from an indebtedness to the testator incurred subsequent to the date of the will.

      Qucere, whether moneys loaned by a father to his son can, within the language of such a provision, be regarded as a sum given or advanced.
    Where certain of the executors of a will bring an action against a firm, of which a son and one of the executors of the testator is a partner, for moneys loaned by the testator to the firm, the fact that the partner has in his possession and produces upon the trial of the action a note upon which the plaintiffs seek to recover, does not, under the circumstances, alter the legal position of the plaintiffs, nor require them to show that the debt represented by the note is still unpaid.

      Appeal by tlie defendant, Nathaniel P. Rogers, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 8th day of May, 1895, upon the decision of the court rendered after a trial at the New York Special Term.

      Jaoób F. Miller, for the appellant.

      T. D. Kemieson, for the respondents.
    Present — YaN BeüNt, P. J"., O’BbieN and Fo'llett, JJ.
    Judgment affirmed, with costs, on opinion of court below.
   The opinion of the court below was as follows:

LawbeNoe, J.:

This action is brought by three of the executors of the will of Nathaniel P. Rogers, deceased, against the defendants, composing the firm- of Maguire' & Rogers, the defendant Nathaniel P. Rogers being also an executor of the will of his father, Nathaniel P. Rogers, deceased. It is alleged in the complaint that the testator, Nathaniel P. Rogers, at sundry times loaned to the defendants, as co-partners, divers sums of money, aggregating $50,000, which said several sums of money the defendants promised and agreed to repay to the testator; that such sums had not been paid at the time of the death of the testator, nor since, and that the same are now wholly due and owing from them. Nathaniel P. Rogers died on the 22d day of April, 1892, and his will, bearing date the 26th day of December, 1885, was admitted to probate May 24, 1892. The answer of the defendant Nathaniel P. Rogers admits that Nathaniel P. Rogers, the testator, indorsed for the firm of Maguire dr Rogers, a note for $3,000, which was discounted by the Poughkeepsie National Bank; that when said note became due and payable it was renewed by another note for the same amount, indorsed by the said Nathaniel P. Rogers, which was also discounted at the said bank; that when the last-mentioned note became due and payable it was taken up by the said Nathaniel P. Rogers, deceased, and held by him. He further alleges that to secure the payment of said note, the defendants Maguire & Rogers assigned to the said Nathaniel P. Rogers, deceased, a. bond for $2,971 and interest made by Robert I. Marston to tliem, secured by a mortgage on lands situate in the State of Iowa; that said bond and mortgage are still held by the estate of the said Nathaniel P. Rogers, deceased, and are, as defendant is informed and believes, more than an adequate security for the payment of the said note. He denies that the said Nathaniel P. Rogers loaned to the said firm divers sums of money amounting to $50,000, or any other*sum except temporary loans, which were repaid, or that they ever promised or agreed to pay to the testator said sum or any other sum except what may be implied from the payment of the aforesaid note for them. Por a second defense, the defendant Nathaniel P. Rogers sets out the will of his father, Nathaniel P. Rogers, in extenso, and claims that, under the 13th clause -thereof, the-testator released him of and from all claims of every kind and nature whatsoever, and that lie is indebted to the said estate in no respect whatever. By the 13th clause of his will the said testator provided as follows: “ I direct that no deduction shall be made from the share of any of my children by reason of any sums which I have heretofore given or advanced to or for account of either of them,” and by the 14th clause of his will he constituted and appointed his sons, Henry P. Rogers, Nathaniel P. Rogers, Jr. (the defendant), John Bard Rogers, and his son-in-law, Charles D. Puller, to be executors of his will. In other portions of his will he had constituted them trustees of his estate, hotli real and personal, during the joint lives of his daughter, Elizabeth M. Rogers, and his grandson, John Sliillito Rogers, with power to lease, etc., and to pay the rents, issues and profits of his real estate, from time to time, to his five children, in equal shares, naming them, etc. Por a third defense, the defendant Rogers pleads the Statute of Limitations as to such of the alleged loans as were made before April 22, 1886. The answer of the defendant Maguire admits that the testator, Nathaniel P. Rogers, did advance to the defendants in this action, as co-partners under the firm name and style of Maguire & Rogers, sums of money aggregating $12,971, and alleges that payment of $2,971 of the $12,971 so advanced was secured to said Nathaniel P. Rogers by a mortgage upon certain lands in the-State of Iowa; that as to the remaining $10,000 advanced by Nathaniel P. Rogers, the testator, the said claim was subsequently transferred and delivered to the defendant Nathaniel P. Rogers as a gift from the testator to him, and he avers that the defendant Nathaniel P. Rogers claims to be the owner thereof, and has given notice to the defendant Maguire to that effect. Upon the trial it appeared that all of the amounts claimed by the plaintiffs wore barred by the Statute of Limitations, save and except the sum of $1,000 claimed to have been loaned on the 12th of May, 1889 $3,000 claimed to have been loaned on the 25th of May, 1889 $4,000 claimed, to have been loaned on the 19th of December, 1890,, and $0,000 on the 20th of January, 1891. All of these alleged loans were made after the date of the will. It further appeared from the evidence that Maguire & Rogers delivered to the testator a bond and mortgage of one Marston as security for the first two-loans ; that Maguire took out a policy of insurance upon his own life, in the Equitable Life Assurance Society, and assigned the same to the testator as security for the note given for the last two loans, and all other sums were, therefore, excluded from consideration. On the trial, testimony was received from the defendant Nathaniel P. Rogers, subject to the plaintiffs’ objection, to the effect that the deceased delivered to him the $10,000 note of Magnire and the policy on Maguire’s life, and told him that they were a gift to him, the said defendant. I am of the opinion that such evidence should not be received, and it is, therefore, stricken out and disregarded. It was claimed by the defendants that this testimony was admissible, because the plaintiffs had themselves opened the door for its admission, first, by certain testimony of the plaintiff Henry P. Rogers, one of the executors, and secondly, by the testimony of the defendant (/Maguire. I do not think that this position is tenable. The rule is that, under the provision of the Code of Civil Procedure (§ 829), prohibiting a party to an action from testifying in his owm behalf against the executor or administrator of a deceased personas to a personal transaction or communication with the deceased, except when the executor or administrator has testified in his own behalf in reference thereto, the exception is confined strictly to the transaction testified to by the personal representative, and that the party cannot be permitted to testify to another and independent personal transaction for the purpose of explaining, impairing or contradicting the testimony so given. (Martin v. Hillen, 142 N. Y. 140 ; Clift v. Moses, 112 id. 426; De Verry v. Schuyler, 8 N. Y. Supp. 221.) Henry P.. Rogers, the executor, was not examined as to the giving of the notes in question, nor as to the alleged gift by the testator to the defendant Nathaniel P. Rogers of the $10,000 note and the policy of insurance upon the life of Maguire. He was asked the general question,, “Do you know whether your father in his lifetime made loans, to the firm of Maguire & Rogers ? ” And he answered, “ I do.” He was not asked, except as to one item, as to the time when, such loans were made, nor does he seem to have testified as to any of tlie iteibs mentioned in the bill of particulars, excepting the item of $8,000 of May 31,1886, and when it was discovered that he was. not speaking as to that item of his personal knowledge, the court, struck out his testimony. The testimony having, been stricken out. and being disregarded, it cannot now be claimed as having opened, the door for testimony by the defendant Rogers in respect to a personal gift from his father to him of the $10,000 note and of the-policy on the life of Maguire. It is obvious, also, that the testimony of the defendant Rogers, proposed to be admitted, did not relate to the same transaction as that in regard to which liis brother,, the plaintiff executor, had been interrogated. Nor do I think that the plaintiffs, in placing Maguire upon the stand, elicited from him such evidence as entitled the defendant Rogers to testify as to the. personal transaction between him and his father in respect to the-alleged gift of the $10,000 note and the policy of insurance. That, was a subsequent personal transaction between the testator and the defendant Rogers, in respect to which Maguire was not examined, and under the case of Martin v. Hillen (supra) the defendant Rogers was prohibited from testifying thereto. If these views are. correct, the result follows that, in respect to the items of $1,000, $3,000, $4,000 and $6,000, the testator held a valid claim against the. firm of Maguire & Rogers, and against the defendant Rogers individually, at the time of his decease, unless the'provision of the will abóve set forth released the defendant Rogers' from liability therefor. The general rule is, of course, that a will speaks from the. date of tlie death of tlie testator, and not from its date, unless its-language, by fair construction, indicates a contrary intention. It is. contended by the plaintiffs that it is apparent from the will in this, case that the testator, when directing that the sums which he" had given or advanced to Ids children should not be deducted from the share of any of them, referred to gifts or advancements existing at the date of the will, and that lie did not intend that such provision should relate to any gifts or advances thereafter made. The cases of Wetmore v. Packer (52 N. Y. 450) and Van Alstyne v. Van Alstyne (28 id. 375) are relied upon by the plaintiffs in support of this interpretation of the will. In this contention I think that the plaintiffs are correct. The language of the will is, that “no ■deduction shall be made from the share of any of my children by rea.son of any sums which I have heretofore given, or advances to or for account of either of them.” In Van Alstyne v. Van Alstyne (supra) the action was brought by the executors of the testator, •against one of his sons, to recover upon two promissory notes, and the language of the will was, that the testator released his children from “ any charge I have made against them or either of them.” In that case there was a will and a codicil, the will being dated in 1850 and the codicil in 1855. The notes were dated respectively November 1, 1854, and April 1, 1856, and the latter note had an indorsement thereon, dated April 6, 1857, showing the payment of interest. The court held that the codicil amounted to a republication of the will, and must be held to speak in regard to the release' of charges as of the time of the execu tion of the codicil. This would have exemjoted the defendant from liability upon the first note, but not upon the second; but the •court also held in that case that the words “ any charge ” could not be held applicable to promissory notes. Judge Sblden, delivering the opinion of tlm court, says: “ Words of present tense have often, though not uniformly, been held thus to limit the subject of the .gift. (1 Jarman on Wills, 278, 279.) My interpretation of the present will is, that the words ‘ from any charge I have made) ■show an intention on the part of the testator to limit the release to charges existing at the time when the will was executed.” It seems to me that the language of the present will is even stronger than that which was the subject of construction in tire case of Van Alstyne v. Van Alstyne. The testator restricts the provisions against the deduction from the share of any of his children to ■such sums as “ I have heretofore given ” or advanced, etc. I think he clearly intended by that to .limit the exemption-to such sums as be bad given or advanced prior to tbe date of tbe execution of bis will, wbicb was December 26, 1885. Furthermore, it may well be doubted under tbe decision in Van Alstyne v. Van Alstyne, whether moneys loaned can be regarded as sums given or advanced to any of bis children. (See, also, Sanford v. Sanford, 61 Barb. 299.) It is claimed, however, by the defendant Nathaniel P. Rogers that, as be produced tbe $10,000 note and tbe policy upon tbe trial of this action, tbe plaintiffs cannot, upon the evidence as it stands, recover, and that tbe obligation rests upon tbe plaintiffs to show that tbe debt is still outstanding. Under tbe circumstances of this case, I do not think that this contention can be sustained. (See Grey v. Grey, 47 N. Y. 552.) I am of tbe opinion, therefore, that tbe plaintiffs are entitled to judgment in respect to tbe items of $1,000 of April 12, 1889 ; $3,000 of May 25, 1889 ; $4,000 of December, 19, 1890, and $6,000 January 20, 1891, with interest thereon, but that tbe judgment should provide that upon tbe payment of the $1,000 and $3,000, an assignment of tbe Iowa mortgage should be made by tbe executors of tbe estate to tbe defendants, or to such of the defendants as shall make tbe payment. Plaintiffs should also have their costs. Enter decision accordingly and settle on notice.


source: Caselaw Access Project

author: 1ÍEREICK, J. : Mayham, P. J., and Putnam, J.,

license: Public Domain

text:
    Grace B. Sherman and Anna T. Blanchard, Appellants, v. Joseph Green, Respondent.

      Justice’s Court — a return, which does not show when a demand for a jury trial was made, should he sent haeh to be amended.

    Where from the position of an entry made hy a justice of the peace upon his •■minutes, as contained in the record on appeal to the County Court from his .judgment, it is left uncertain whether a statement, relative to a demand for a trial by jury, refers to the.day of the joinder of issue, or whether it refers to pro■ceedings had upon the day to which the trial was adjourned, it is proper (inasmuch as section 2990 of the Code of Civil Procedure provides that, unless a jury trial is demanded at the time when issue is joined, the right to such a trial shall be deemed to have been waived) to order a further or amended return to be made, to the end that the uncertainty may be dispelled.
    Appeal by the plaintiffs, Grace B. Sherman and another, from •a judgment and order of the County Court of "Washington county, entered in the office of the clerk of the county of Washington on ■the .31st day of December, 1894, reversing a judgment rendered by a justice of the peace of the town of Salem, Washington county, ■and also from an order of the County Court of Washington county, entered in said clerk’s office on the 31st day of December, 1894, denying the plaintiffs’ motion for an order directing the justice of the peace to make and file an amended return of the proceedings had before him upon the trial of said action.

      Frederick W. Sherman, for the appellants.

      J. B. MeOormieh, for the respondent.
   1ÍEREICK, J. :

Tbe plaintiffs recovered a judgment in a Justice’s Court against the defendant; tbe defendant appealed therefrom to tbe County Court. Tbe justice in bis return, under tbe record of proceedings at tbe joining of issue, lias these words, Defendant appeared in person and by counsel and filed an answer in writing cmd demanded ajimy, and stated that they were ready for trial.” Tbe words “ and demanded a jury ” bad a line drawn through them in tbe return as filed, and upon tbe margin of the return appeared these words, “ Defendant asks for a trial by jury and asked that a venire be issued in .the usual forin required by tbe Code.” On tbe return of tbe second day’s proceedings these words appeared, “Defendant insists on a trial by jury .and asked that a venire issue in tbe usual form. That a jury was demanded by tbe defendant at the joinder of tbe issue of tbe trial, and defendant objects to proceeding to trial in this issue without a jury, and now tenders therefor $1.75 for such jury.

“ Plaintiffs object to tbe allowance of tbe jury, on tbe ground that tbe defendant joined issue and took an adjournment without making any demand therefor.”

It. does not appear whether tbe memorandum of tbe demand for a jury by tbe defendant, which appeared upon tbe margin of tbe return, was intended as part of tbe record of tbe proceedings of tbe day of tbe joinder of issue, or of tbe proceedings upon tbe adjourned day. Tbe plaintiffs insist that it refers to tbe demand made on tbe adjourned day; tbe defendant claims that it was tbe demand made at tbe joinder of issue.

Tbe plaintiffs made a motion in tbe County Court for a further or amended return which should show when this demand for a jury was made, claiming that tbe demand made at tbe joinder of issue bad been waived by tbe defendant, and that tbe demand set forth in tbe margin referred to tbe demand made by him upon tbe adjourned day. Tbe motion for a further return was denied and tbe judgment reversed upon tbe ground that tbe defendant bad been improperly deprived of a trial by jury of tbe issues in tbe action.

Tbe motion for an amended return was denied rrpon tbe ground that there was no power in the court to compel tbe justice to make an amended return which would contradict tbe original return.

Section 2990 of the Code of Civil Procedure provides that, unless a jury trial is demanded at the time of the joining of issue, the right to trial by jury shall be deemed waived.

It will be seen, therefore, that it is important to have returned to the court the fact whether such demand for a trial by jury was made by the defendant at the time of the joining of issue, and, if so, whether it was waived. The entry in the margin of the justice’s return leaves these questions unsettled. From the position of the entry upon the record, it leaves it uncertain as to whether it refers to the day of the joinder of issue or to the proceedings had upon the day to which the trial was adjourned.

To ask the justice to make a return which will clear up this uncertainty is not to ask him to contradict or falsify his original return, but to cure it of all uncertainty, and it, therefore, does not come within the principle of the cases cited to us, that a justice cannot be asked to make an amended return which will falsify or contradict the one originally made by him.

The order of the county judge denying the further amended return should, therefore, be reversed, and an order made, requiring such further or amended return, as asked for in the plaintiffs’ notice of motion therefor, and the judgment of the county judge reversing the judgment of the justice of the peace should be reversed, with directions to the County Court to hear the appeal upon the return of the justice, as amended and corrected.

Let an order be entered accordingly, with costs and disbursements of this appeal.

Mayham, P. J., and Putnam, J.,

concurred.

Order reversed and order made requiring an amended return. Judgment of County Court reversed and County Court directed to hear appeal on amended return, with ten dollars costs and disbursements to appellants.


author: Herrick, J. :

text:
    Emma Van Wert, Respondent, v. St. Paul Fire and Marine Insurance Company, Appellant.

      Insurance— cancellation thereof, when a question of fact — the effect of a company’s charging its agent with a premium — it is not a payment by the insured — revieio of a direction of a veixlict.

    Iureviewing a direction oí the court to a jury, to find a verdict upon the evidence-in favor of the plaintiff, that view of the evidence should he taken which is most favorable to the defendant.
    Where, in an action upoD a policy of fire insurance, the evidence is conflicting upon the question whether, prior to the loss, the policy had been canceled by the company, the company is entitled to have the question of cancellation submitted to the jury.
    Upon the trial of such an action it appeared that, in making up the account between the company and its agent who issued the policy in question, the amount of the premium upon the policy was charged to the agent, and that when the policy was canceled the unearned portion of the premium was credited to the agent; that this was not done at the request of, nor with the knowledge of, the insured; and that after the fire and before the present action was begun the insured tendered tlie full amount of the premium to the company.

      Held, that the transaction was a mere matter of account between the insurer and its agent, in which the insured was not concerned; and that the payment, if it could ho called such, did not inure to the benefit of the insured as a payment of the premium by her to the company.
    Appeal by the defendant, the St. Pan! Eire and Marine Insurance Company, from a judgment of the Supreme Court in favor' of the plaintiff, entered in tlie office of the cleric of the county of Ulster on the 15th day of April, 1895, upon the verdict of a jury-directed by the court after a trial at tlie Ulster Circuit.

      William D. Murray, for tlie appellant.

      Chcyrles F. Oamtine, for tlie respondent.
   Herrick, J. :

This is an appeal by the defendant from a judgment entered upon the verdict of a jury, rendered by direction of tlie court in favor of tlie plaintiff and against tlie defendant. Tlie action is upon a policy of tire insurance. In reviewing a direction of tlie court to a jmy, to find a verdict upon the evidence in favor of the plaintiff and against the defendant, that view of the evidence should be taken which is most favorable to the defendant.

The policy in question was issued to the plaintiff. No premium was paid at the time, and no premium was ever paid by the plaintiff. The contention of the defendant is that such policy was surrendered by the plaintiff to the defendant’s agent, through whom the policy was issued, and that the same was canceled for non-payment of the premium. That the defendant obtained possession of the policy before the fire is unquestioned. The contention of the plaintiff is that it was not surrendered up to be canceled, but that the same was delivered to the defendant’s agent without her knowing what was to be done with it; the agent, upon the contrary, claims that he called upon her several times to procure payment of the premium, and, not succeeding, requested the return of the policy, and that subsequently he mailed the policy back to the plaintiff, informing her that if the premium was not paid within a reasonable time that the policy would be canceled.

That at a later time, on November sixth, he again procured the policy from the plaintiff, and told her that if the premium was not paid by the last day of the month the policy would be canceled, and no payment being made thereon by her before that time it was cauceled. The policy provided that it might be canceled upon five days’ notice.

If this story is true, and under the evidence the jury would have a right to find that it was true, this beyond all question terminated the policy, and I think the defendant had a right to have that question submitted to the jury as to whether the policy had been canceled before the fire.

The other question in the case is this: In making up the accounts between the defendant and the agent of the company, who issued the policy in question, the amount of this policy was charged to such agent, and, upon its being canceled, the unearned portion thereof was credited to such agent. It does not appear that this was done either at the request of or with the knowledge of the plaintiff, for after the fife occurred, and before the commencement of this action, she tendered the full amount of the premium to the defendant.

The claim is made that this payment, if it can be called such, by the agent to the company, inured to the benefit of the plaintiff, and was in law a payment by her, so far as the insurance company was concerned, of the premium.

Without citing- any authorities upon that question it seems to me that, even if it should he considered payment by the agent instead of a mere regulation of the accounts between the company and the agent, it is not one that inures to the benefit of the plaintiff. She did not request it; it does not even appear that she knew that it had been done; so far as the evidence shows the only communication that was made to her was in asking her to pay the premium, and to inform her that the policy would be canceled if it was not.

As a matter of fact she did not pay one dollar, and did not offer to pay the premium until after her property had been destroyed by fire. There was neither prior authority nor subsequent ratification.

The agent was not her agent, but the agent of the company. She never ratified his act before the fire, because she did not know that it had been done. She did not ratify it after the fire, and before the commencement of this action, but, on the contrary, tendered the amount of the premium, assuming it to be .unpaid. It seems to me that the transaction was a mere matter of accounts between the defendant and its agent, of which the plaintiff cannot take advantage.

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

Mayham, P. J., and Putnam, J., concurred.

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


author: Herrick, J.: Putnam, J.

text:
    John H. Titus, as Administrator, etc., of Alexander Whitford, Deceased, Respondent, v. The Town of New Scotland, in the County of Albany, Appellant.

      Contributory negligence■ — measure of caution required — negligence of a driver imputed to his companion.

    The care and. caution which it is necessary should be affirmatively established by a person who seeks to recover the damages resulting from an in j ury caused by another’s negligence is to be measured by the circumstances of the particular case, and is commensurate with the difficulties and dangers of the locality in question and of the danger to be apprehended.
    In an action of such a nature, brought by an administrator to recover damages resulting from the death of his intestate, it appeared that the accident happened upon a very dark night; that a person named Cameron was driving home with the intestate; that both had been drinking, and that the intestate was unable to remain on the seat of the wagon, and was down upon his knees in front of it; that Cameron knew that he was approaching a narrow bridge, and also knew that he had already strayed from the road upon several occasions. He testified that he could not see the road at all from his seat; that he made no effort to guide his horses, leaving that to their instinct; that he was not looking out for the bridge particularly; that just before he reached the bridge he was in the ditch at the side of the road, and that if the horses had not, of their own accord, turned into the road, he would have been three feet to one side of the bridge. 1-Iis testimony also tended to show that when he got upon the bridge his wheels went straight upon the plank, but that at about the fourth plank the wheels sunk because that plank was too short. The wagon was upset and fell into the stream and upon the intestate, holding him there until ho was dead.

      Held, that it did not appear that Cameron had exercised proper care, and that his lack of care was imputable to the intestate and prevented a recovery by his administrator.
    Putnam, J,, dissenting.
    Appeal by the defendant, The Town of New Scotland, in the county of Albany, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Greene on the 2d day of March, 1895, upon the verdict of a jury rendered after a trial at the Greene Circuit, .and also from an order entered in said clerk’s office on the 27th day of February, 1895, denying the defendant’s motion for a new trial made upon the minutes.

      J Newton Fiero, for tlie appellant.

      ■J. A. Griswold, for tlie respondent.
   Herrick, J.:

This is an appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff and against the defendant, and from an order denying a motion for a new trial.

The plaintiff’s intestate was killed in an accident occasioned by a wagon, in which he was being driven, going off the side of a bridge located in the defendant town.

Tlie alleged negligence of the defendant was in maintaining, or permitting to remain, a bridge upon one of its highways without guards or rails, and, as is claimed, with the planks constituting the floor thereof of unequal lengths, so that the wagon in which plaintiff’s intestate was at the time of the accident, after going a short distance upon the bridge, came to a place where the planking thereof did not extend as far o.ut to the side as at the entrance to the bridge, in consequence of which tlie wheels of such wagon ran off the side of the bridge, overturned tlie wagon, precipitating the intestate into a creek below, the wagon falling upon him and keeping him there until he was dead.

For the purposes of this discussion it will be assumed that the evidence given upon the trial was sufficient to warrant the finding by the jury that the defendant was negligent in not properly maintaining and caring for the bridge in question. In addition to that, however, it became incumbent upon the plaintiff to establish, affirmatively, freedom from contributory negligence upon the part of the intestate. Absence of proof upon that question is fatal to tlie plaintiff’s cause of action.

The jury are not to be permitted to guess or con jecture; there must lie evidence showing proper care and caution under the circumstances, or evidence from which the jury can infer proper care and caution upon the part of the deceased.

Is there any such evidence in this case? Plaintiff’s intestate together with one Cameron were driving from the city of Albany to their homes in the county of Greene; both had been drinking; the intestate appears to have been almost helplessly drunk. Cameron admits 'that he felt the effects of what he had been drinking. Cameron was driving, and the intestate at the time, or just prior to the happening of the accident, was down upon his knees in front of the wagon seat, his intoxication being such that he could not remain upon the seat. It was about half-past seven in the evening, and seems to have been intensely dark.

The bridge in question is between twelve and thirteen feet in width; the road is a little over thirty-three feet from fence to fence; the traveled portion of the road is eleven feet in width.

Before reaching the bridge the horses had gone off the roadway at various points and come back, and some distance before reaching the bridge the horses again strayed away from the road.

About forty rods distant from the bridge stood a house, in which a light was to be seen as it was approached. Cameron says : I knew about where the bridge was in a general way, and that I was coming close to it when I saw the light; now and then I watched the light; I didn’t really think about the bridge until I struck upon it; I came on it all right with the horses; I knew it was there; I hadn’t been looking out, for it as I came along, not particularly ; I supposed I was in the road as much as I am in the chair; I sat there easy ; I was not thinking about running off the bridge; I supposed I was in the road and getting across the bridge right along ; I wasn’t giving myself any particular uneasiness about the bridge; I knew it was there and thought it would be all right when I got there.”

Again, Ire says: It was quite dark; you could not see the road to drive without the lantern except to see generally the fences and the make of the road.” And again he says: “I couldn’t see the road at all sitting in the seat; I had the lines in one hand and the horses kind of picked their way; they walked right along until we came to this bridge; I had to leave it to their instinct or what they could do as to following the road; I knew when we came on the bridge; the next thing I knew we were bottom side up, or the wagon was.”

He stated that the first three or four planks as he went on the bridge extended further out over the side of the bridge than tlidse next succeeding them; and that before reaching the bridge they were off the road and the horses turned in again, and upon examining the bridge next morning he says: “ I saw the mark of the left-hand wagon wheel where it first went on the bridge; it didn’t go straight in crossing these three or four planks; I was .out of the road and had to go Mitering to get on the bridge; after the wheel got on the bridge it went straight on the plank; when it got to the end of the third plank then the wheel went down in consequence of a short plank.” Upon his cross-examination he testifies: I was about half way out of the road before I came to the bridge; I got out of the road coming down from Mead’s to the bridge ; the wagon tipped twice and I noticed it and pulled in; when I was out of the road at the bridge I didn’t notice I was out of the road until I went off the bridge ; I had been out twice before that; the wagon tipped a little and I knew that I was out of the road and I pulled the team in and went on; I know now that the fact was that I was out of the road just before I got to the bridge; within twenty feet of the bridge I was in the ditch at the side of the road; I didn’t know it then; I know it now; we were about three feet three inches from the beaten track; before Aye got to the bridge the horses hauled out into the road; I didn’t; if'the horses had gone straight ahead, three-feet from the bridge, my left wheel Avould not have come Avithin three feet of the bridge; they Avould not have touched the bridge.”

This testimony of the plaintiff’s principal witness, the survivor of the accident, shows pretty clearly how the accident happened, and its cause, and furnishes no evidence from Avliich the jury could properly find that the plaintiff’s intestate exercised due care and caution, and was not guilty of contributory negligence.

The care and caution necessary to be observed is to be measured by the circumstances of each ease, and is commensurate Avitli the difficulties and dangers of the locality, and the danger to be apprehended. The plaintiff’s intestate in this case, I think, Avas properly chargeable Avitli the'manner in Avliich C'ameron conducted himself. If Cameron exercised due and proper caution, under the circumstances, it inures to the benefit of the plaintiff; and, if he did not, the plaintiff’s intestate, I think, must be held responsible for it.

There is no evidence that Cameron did anything by way of precaution— no affirmative evidence of any act done by him — and I can find no evidence from Avhich the jury could dmv any inference of care and precaution on his part.

Cameron knew that he was approaching a narrow bridge; he knew that he had already strayed from the road. It was so dark that he couldn’t see the road at all sitting in the seat. He made no effort to guide his horses at all, leaving it, as he says, to their instinct. He says that he was not looking out particularly for the bridge, although he knew it was there. It seems to me that in approaching a narrow bridge, crossing a stream, upon a night like that testified to in this case, the conduct of Cameron, as testified to by himself, was not such as to warrant the jury in finding affirmatively that he was free from contributory negligence.

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

Mayham, P. J., concurred. '

Putnam, J.

(dissenting):

The question in this case is whether the tidal court was justified In submitting to the jury the question as to the alleged contributory negligence of plaintiff’s intestate or his servant. Judge Denio, in Johnson v. The Hudson R. R. R. Co. (20 N. Y. 73), says: “ The true rule, in my opinion, is this : The jury must eventually be satisfied that the plaintiff did not by any negligence of his own contribute to the injury. The evidence to establish this may consist in that offered to show the nature or cause of the accident, or in any other competent proof. To carry a case to the jury the evidence on the part of the plaintiff must be such as, if believed, would authorize them to find that the injury was occasioned solely by the negligence of the defendant. It is not absolutely essential that the plaintiff should give any affirmative proof touching his own conduct on the occasion of the accident.” In Chisholm v. State (141 N. Y. 246-249) Judge Bartlett remarks: “ Although it is a fundamental principle that the absence of negligence on the part of the plaintiff, contributing to the injury, must be affirmatively shown by him, yet this may be done by direct -proof, or by circumstances. (Hart v. Hudson River Bridge Co., 80 N. Y. 622 ; Hoffman v. Union F. Co., 47 id. 176-186; Button v. Hudson River R. R. Co., 18 id. 248.) If different conclusions can be drawn from these circumstances it is a question for the jury, or in this case for the commissioners. * In Harris v. Uebelhoer (75 N. Y. at page 175) Chief Judge Folgeb remarked : ‘A public highway may be used in the darkest night; a night so dark as that the keenest and clearest vision might not be able to detect obstacles and defects. In such a case any man traveling upon it is practically a blind man.’ One passing along a sidewalk has a right to presume it is safe. (McGuire v. Spence, 91 N. Y. 303; Weed v. Vill. of Ballston Spa, 76 id. 329 ; Brusso v. Buffalo, 90 id. 679.)”

In this case, Cameron, the driver of plaintiffs intestate, was sworn and stated all the facts which occurred at the time of his death. The accident happened on a dark night; so dark that Cameron could not see the roadway and was compelled to allow the horses to choose their way. lie could'only seethe fence on each side. I infer from the evidence that the team w*as going on a walk. The horses had been out of the traveled part of the road twice shortly before they reached the bridge, but they were in the roadway when they actually came to it. It is to be inferred from the evidence that if the planks had been properly placed on the bridge the accident would not have happened, as both wheels were on the planks when the wagon reached the place of the accident.

The question before the jury was, did the evidence, by any construction that could be fairly placed upon it, show the absence of contributory negligence on the part of Cameron ? As we have seen, lie had a right to presume the bridge safe. If his testimony was to be relied on, he was driving slowly along a road with which he was not familiar, on a night so dark that he could not see the roadway, allowing the horses to choose their way, when his wagon was overturned by a defect in a bridge on the highway.

It is difficult to see what Cameron could have done that he did not do. Not being able to see the roadway, as Judge Folger remarked in Harris v. Uebelhoer (supra), he was “ practically a blind man.” lie could not guide the horses in any other way than he testified he did; when he found by the pitching of the wagon that they were out of the road, he turned them back into it. It may be that his safest course, under the circumstances, was the one he adopted, to allow the horses to pick their way. I cannot understand how he could have taken any other course, unless he had alighted from the wagoh and led the horses.

The fact that the horses before they came to the bridge were out of the roadway twice, does not necessarily show negligence on the part of the driver. The night was so dark that he could not see the roadway, and experience teaches us that under such circumstances such an occurrence as the one tinder consideration is likely to happen to the most careful driver.

The circumstances surrounding the death of plaintiff’s intestate being fully shown, it seems to me that whether Cameron did or did not do all that a careful driver should have done under the circumstances was a question of fact. As Judge Allen said in Massoth v. D. & II. R. R. Co. (61 N. Y. 529), “ The question of contributory negligence in cases of this character is ordinarily one of fact for the jury. It depends usually upon a variety of circumstances, and upon inferences from the facts proved, calling’ for the exercise of practical knowledge and experience, and is peculiarly within the province of a jury of twelve men.” And as Judge Bartlett remarked in Chisholm v. State (supra),If different conclusions can be drawn from these circumstances, it is a question for the jury.”

I regard the case as a close and doubtful one, but am inclined to believe that the trial court properly submitted the questions involved to the jury.

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


author: Herrick, J.:

text:
    The People of the State of New York ex rel. The Chicago Junction Railways and Union Stock Yards Company, Relator, v. James A. Roberts, as Comptroller of the State of New York, Respondent.

      Taxation — when a foreign corporation does lousiness in this State — conclusiveness of the Comptroller's determination as to the amount of a tax.

    Upon a proceeding taken to review a decision of tlie Comptroller relative to taxing tlie capital stock of a foreign corporation, it appeared tliat the relator was a corporation,, organized under the laws of the State of New Jersey and described by its treasurer as “a proprietary company; ” that its entire capital was invested in the'stook of another foreign corporation, known as the " Union Stock Yards and Transit Company of Chicago, Illinois; ” that it had an office in Jersey City and also one in New York city, in which latter city the dividends upon the stock held by it were received and its directors met and declared divi¿Lends upon its own stock:, which were transmitted by clieclrs drawn in and sent from New Yoris city.
    Held, tliat the corporation did business in the Slate of New York and was taxable therein. That being thus taxable, the decision of the Comptroller as to the amount upon which it should be taxed would not be disturbed unless clearly shown to be erroneous.
    Certiorari issued out of tlie Supreme Court and attested on the 3d day of May, 1895, directed to James A. Roberts, Comptroller of the State of New York, commanding him to certify and return to-the office of the clerk of the county of Albany all and singular his-proceedings, decisions and actions, as such Comptroller, in the premises, and also a statement of such facts as may be pertinent and material to show the legality or illegality of an assessment made by him for taxes upon the relator, and also his acts and proceedings, with all papers, documents and records before him pertaining to the application for the revision and resettlement of said tax, to the end that such decision on such application might be reviewed by the court both on the law and on the facts.

      William J). Guthrie and Edward D. O'Brien, for the relator

      G. D. B. Ilasbroueh, Deputy Attorney-General, for the-respondent.
   Herrick, J.:

This is a certiorari to review a decision of the Comptroller in taxing the relator’s capital stock. The relator is a foreign corporation, incorporated under the laws of the State of New Jersey; it is described by its treasurer as “ a proprietary company.” Its entire capital is invested in the stock of another corporation, the Union Stock Yards and Transit Company of Chicago, 111.”

It was formed for the purpose of purchasing the stock of the Union Stock Yards and Transit Company, and has purchased and now owns the greater portion of the stock of such company, in which there are about a dozen other stockholders.

The stock,of the Union-Stock Yards and Transit Company owned by the relator is deposited with the Central Trust Company of New York and forms the basis or security for a series of bonds issued by the relator amounting to $10,000,000. The relator, in addition to-its bonds, has also issued stock.

The relator is a separate and distinct corporation from the Union Stock Yards and Transit Company; the latter continues to carry on business the same as before the relator corporation was formed.

Apparently the only business done by the relator is to receive the dividends upon the stock owned by it in the Union Stock Yards and Transit Company, pay its office expenses and divide the dividends, so received, in dividends among its own stockholders. The only other business it seems ever to have transacted was the purchase of the stock of the Union Stock Yards and Transit Company. It has an office in Jersey City and one in New York; its dividends are received in Now York city; the directors meet in New York city and declare dividends upon the relator’s stock, and the checks for the payment of such dividends are made out in New York city and transmitted therefrom.

It will thus be seen that all the business of the relator, that is, the receiving of dividends upon the stock owned by it, and the declaring from the money so received dividends upon its own stock and transmitting the same to its stockholders, is all done in the city of New York.

The business carried on in Chicago by the Union Stock Yards and Transit Company by which this money is earned, is a separate and distinct business from that done by the relator, and is done by a separate and distinct corporation and must not be confused with that done by the relator, which is carrying on a separate and distinct business from it.

The relator is, therefore, taxable as a foreign corporation doing business in this State; and, being so taxable, the decision of the Comptroller as to the amount upon which it shall be taxed, we have heretofore held, will not be disturbed unless clearly shown to be erroneous. The amount is not seriously questioned by the relator.

The writ of certiorari should be quashed 'and the decision of the Comptroller affirmed, with fifty dollars costs and disbursements.

IVÍayham, P. J., and Putnam, J., concurred.

Writ of certiorari quashed, decision of Comptroller affirmed, with fifty dollars costs and disbursements.


author: Herrick, J.;

text:
    Thomas B. Belch, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Contributory negligence — proof of freedom from, required of the plaintiff.

    In an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendant, it appeared that the plaintiff was driving-east towards double tracks of the defendant’s railroad, which ran north and south; that the track first reached by the plaintiff was used by trains going-south, and that the plaintiff knew that a train was at the time nearly due upon the further or north-bound track; that when he reached the first track a wheel of his carriage slipped off the axle, which became wedged between the planking and one of the rails of that track; that it was dark and took him some little time to find the wheel and to put it back upon the axle; that he then looked for the nut but could not find it; that he went to the horse's head and in a moment heard the noise of the train coming on the north-bound track, was struck by it and injured.
    It further appeared that the approaching train could be seen at a distance of half a mile, and that the noise of its approach could be heard for at least that distance; that the plaintiff made no attempt either to back his horse from the south-bound track nor to drive, after having put his wheel on temporarily, over the north-bound track.

      Held, that he had not shown himself to be. free from contributory negligence and was not entitled to recover.
    Appeal by tbe defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 4th day of May, 1895, upon the verdict of a jury rendered after a trial at the Ulster Circuit, and also from an order, entered in said clerk’s office on the 23d day of April,. 1895, denying the defendant’s motion for a new trial made upon the minutes.

      F. L. Westbrook, for the appellant..

      F. Countryman, for the respondent.
   Herrick, J.;

This is an appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff and against the defendant, and from an order denying a motion for a new trial. The action is one for • alleged negligence whereby the plaintiff lost one of his hands.

The accident happened on the 14th of August, 1893, at a place where a highway called “ People’s road ” crosses the tracks of the defendant, at a point about one mile north of the village of Saugerties. “ The People’s highway” runs east and west, and the defendant’s tracks north and south. The westerly track is known as the south-bound track, that is, the track on which trains run that are going southward,'and the easterly track is known as the northbound track, that is, the track on which trains run going to the north.

The plaintiff approached these tracks from the west, and testifies that when he was within fifteen or twenty feet of the westerly track he stopped his horse and looked and listened for approaching trains, but neither saw nor heard any. ITe then drove on, and as he was crossing the westerly track the right forward wheel of his carriage slipped off its axle and his carriage tipped and threw him out. The plaintiff was familiar with the crossing; he knew that there was a train that left Saugerties about eight-twenty-eight in the evening, and that it was then in the neighborhood of half-past eight. He says that he realized the necessity of getting his horse and wagon off the tracks. He says that he went to his horse’s head and looked and listened for approaching trains, but neither heard nor saw any. He attempted to lead his horse off the track, but found that the carriage was in some way fastened; he their went to the axle where the wheel was off and found that it had fallen between the planking of the crossing and the west rail of the south-bound track; he lifted it up out .of its place, and then groped around for the wheel, which he finally succeeded in finding. He had some difficulty in placing the wheel on the axle, but finally succeeded in getting it on.

He then groped on the ground hunting for the nut, stooping over with his hands on the ground ; he did not succeed in finding it; he then returned to his horse’s head. He says: I went to my horse’s head and reached out; whether I caught the bridle or the rein I can’t say which, but in my attempt to reach I saw a flash of light, and heard a roar and a wh-r-r-r, something in that style; and I was whirled around with my right hand in under me, and thrown down on my stomach, and the breath was knocked out of me, and iny left arm and hand were extended in that position (ind.); I was in a dazed or semi-dazed condition. I saw the receding lights of a disappearing train in the distance; I mean the rear light of the train• — some colored lights; I saw them going away from me towards the north.”

He states that the interval of time between tlie flash of light and the roar heard by him, until lie went down was imperceptible. When he got up his hand ivas hanging from his arm by a shred of slrin, and was subsequently cut off.

Tlie night was dark, hut not a stormy one. From the crossing tlie tracks of tlie defendant run straight'south for a distance of 2,800 feet to a enrve in the road, beyond which tlie tracks cannot be seen. From the crossing where the accident happened to such curve the view is clear and unobstructed. No whistle was blown by tlie locomotive, and there is a conflict of testimony as to whether any bell was rung. The testimony is practically undisputed that the headlight of the locomotive can be seen from the crossing to tlie curve, and that the noise of an approaching train can be beard for more than that distance, one witness testifying that it could be beard when it started to leave the station at Saugerties, about one mile away.

That there was a light in the headlamp of the locomotive is undisputed.

I will not discuss the matter as to whether there was negligence on the part of the defendant, but for the purposes of this appeal assume that there was sufficient evidence of negligence to warrant the verdict of the jury. It is incumbent upon the plaintiff to establish affirmatively tlie absence of contributory negligence on his part. Has lie done so ? He knew that lie was in a place of danger; he knew it was incumbent upon him to get out of it as soon as possible; to this lie testifies. Did he make sufficient effort? Did he take sufficient precaution ?

His first effort to remove his horse and carriage from the track was futile, because the axle had Jjecome firmly fixed between the planking and tlie rail, but when lie had removed it from that position there was no longer any obstacle to removing them from tlie trade, either by promptly driving over both tracks or backing them out of danger. He did neither. He first went in pursuit of the wheel to put it on tlie axle; this took some little time; again he consumed some time, as lie testifies, in putting it on the axle after he had found it. Then again he could have driven across the tracks or backed from them, but lie did neither. He then consumed some time gi-oping upon the ground in endeavoring to find the nut to place upon the axle.

On each of these occasions he is particular to say that he looked to the north and the south, and listened to see if he could hear anything of an approaching train or trains, but neither saw nor heard anything. He was then on the south-bound track; he then went to his horse’s head, which he testifies was on the third rail from the west,” which would be the westerly rail of the north-bound track, and was instantly struck.

It has been held to be the duty of a person approaching railroad tracks to look and listen for approaching trains. It may be, perhaps, assumed that if one performs that duty and sees or hears nothing, and goes on, that he has discharged every duty that is incumbent upon him to relieve himself from the charge of contributory negligence; and it is possible, if the plaintiff’s story as to what he did is absolutely true, that he performed every duty that devolved upon him, under the'circumstances, to protect himself against danger. But after carefully considering the evidence I cannot persuade myself that the story is true. It seems to be inconceivable that if he had done what he says he did do, that he should have neither seen nor heard the approach of the train which injured him.

It needs no evidence to satisfy me that the approach of a railway train can be heard for a considerable distance, particularly when there appears to be no other noise mingling with it to distract attention. There ’is testimony in this case that the approach of a train could be heard for over three-quarters of a mile. It needs no evidence to satisfy me that the light from a locomotive headlamp can be seen for a long distance when there is nothing to intercept the view. There is evidence in this Q^se, which is undisputed, that such headlight could be seen for a distance of 2,800 feet. The ability to hear the noise and see the light of an approaching train are undisputed facts with which the testimony of the plaintiff, that he looked and listened and neither saw nor heard anything, comes in conflict.

From our own knowledge, as well as the testimony of the witnesses in this case, we know that a person on the tracks of a railroad can hear the noise of an approaching train if he listens. From our own knowledge we know that a person upon the tracks of a railroad, with his view unobstructed, can see the light of a locomotive headlamp, if lie looks, and there is one there to be seen; and yet we are asked to believe that the plaintiff looked and listened, but heard and saw nothing of the approach of the train, although it could be seen for a distance of 2,800 feet; that he walked from a position of security on the west track to the east track, neither seeing nor hearing this approaching train until it struck him, only seeing the light and hearing- the noise almost the instant that it was upon him.

The approaching train could be seen when at a sufficient distance away from him to enable him to avoid it if he had 'looked. And if he had looked he must have seen it; if, when he placed the wheel on his carriage, or when he ceased hunting for the nut, and before he went to his horse’s head, he had looked, he must necessarily have seen the light, and when he says he did look both ways, and did not see or hear the train until it struck him, I do not believe his story, and consequently cannot see that he took reasonable precaution to avoid the accident. (Stopp v. Fitchburg F. F. Co., 80 Hun, 178, and cases cited.)

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

Mayham, P. J., and Putnam, J., concurred.

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


author: Herrick, J\ :

text:
    Charles H. Fort, Appellant, v. Terrence Cummings, Supervisor of the Town of Watervliet and Others, Respondents.

      Constitutional km — chapter 975, Laws of 1895. dividing the town of Watervliet, is constitutional — -an authorized act may contain anything germane to its subject — an act providing for the election of supervisors in a new town is not a “ local bill’ within sections 16 or 18 of article 3 of the Constitution.

    Every presumption is in favor of the constitutionality of an act of the Legislature, and if it and the Constitution can be so construed as to enable both to stand and each can be given a legitimate office to perform, it is the duty of courts to give them such a construction.

      In construing an act of the Legislature, in connection with the Constitution, that portion of the Constitution with which it is supposed to conflict must be read in connection with the other parts of the Constitution, all parts of the Constitution being given effect; and when there is any apparent conflict between the different parts, the spirit and intent of each must be examined to determine whether there is a conflict in intent; and, if there be no such conflict, although the language may conflict, the full effect intended by the framers of the Constitution is to be given to all parts of that instrument.
    Chapter 975 of the Laws of 1895, relative to the division of the town Of Watervliet, in the county of Albany, and the erection from it of the town of Colonie and the new town of Watervliet, is constitutional.
    The provision of section 5 of article 3 of the State Constitution that “nothing in this section shall prevent the division at any time of counties and towns, and the erection of new towns by the Legislature,” is almost, if not quite, an express grant of the power to erect a new' town.
    Where the Legislature has power to enact a law, it may embrace in that law everything which is germane to the main subject of the enactment; and a local bill does not violate section 16 of article 3 of the State Constitution, requiring such a bill to embrace but one subject which must be expressed in its title, where, after erecting a town, it contains other provisions initiating a government for the town and providing for the selection of proper officers.
    Section 18 of said article 3, prohibiting the passage of a local bill for the election of town supervisors, is not violated by chapter 975 of the Laws of 1895. The latter act is not a local act providing for the election of supervisors within the meaning of the Constitution; such is not the purpose of the act; the election of supervisors is only a necessary incident of the act and is not its main subject or purpose.
    The object of the various provisions of that section of the Constitution w’as to put an end to special legislation, and its prohibition does not relate to new political subdivisions of the State created by special acts of the Legislature.
    Appeal by the plaintiff, Charles JET. Fort, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 12th day of August, 1895, denying the plaintiff’s motion for an injunction pendente lite.

      James W. Eaton, for the appellant.

      Arthur L. Andrews, for the respondents.
   Herrick, J\ :

In 1895 the Legislature passed an act known as chapter 915 of the Laws of that year, entitled as follows : “ An act to divide the town of-Watervliet. in tlie county of Albany, and to erect the town of Colonie out of the part set off from the said town of Watervliet.”

Section 1 of said act designates what portion of the former town of Watervliet shall constitute the town of Colonie.

Section 2 provides that the remaining portion of said former town of Watervliet shall constitute the town of Watervliet.

Section 3 provides when and -where the first town meeting of the town created by such 'act shall be held, and designates persons to preside at such town meeting, and confers upon them the right to exercise the same powers as justices of the peace when presiding at town meetings.

Sections 4, 5, 6 and 7 provide for the officers to be elected at such town meeting, and the terms for which they shall hold office.

Section 8 provides for a division of the property, both real and personal, of the former town of Watervliet, between the new town created by the act and the new town of Watervliet; such division to be made in the maimer provided by section 3 of article 1 of chapter 20 of the general laws of the State of New York, known as the Town Law (Chap. 569 of the Laws of 1890), and provides for the payment of the “debts owed by the town of Watervliet, divided by this act, in the same manner as provided by section four of the said town law.”

Section 9 provides that the town created by such act shall be governed by chapter 20 of the general laws of the State, known as the Town Law, except as otherwise provided in the act.

Pursuant to said act the persons named therein for that purpose presided at the town meeting, and at such time there were elected a supervisor, town clerk and four justices of the peace, being the defendants Collins, Groat, Dayton, Woodward, Stedman and Miller.

The plaintiff and appellant commenced this action, alleging that he is a taxpayer and resident of that portion of the town of Watervliet which under said act continues to be known as the town of Watervliet, and alleging, that the former town of Watervliet was possessed of property to the amount of several thousands of dollars, and that the town board of the new town of Colonie and of the new town of Watervliet propose to meet and divide such property and apportion the same between the two towns, as provided for in said act. He charges that the act dividing the old town of Watervliet and creating the new town of Oolonie is unconstitutional and void, and prays for an injunction restraining- such town boards from meeting, dividing and apportioning such property.

Without passing upon his right as a citizen and taxpayer of said town to have- and maintain such an action, if such act is unconstitutional, but assuming that' he has such right, I will proceed to an examination of the other questions involved.

The action of the plaintiff is based entirely upon the alleged unconstitutionality of chapter 975 of -the Laws of 1895.

Every presumption is in favor of the constitutionality of an act of the Legislature.. Before an act of the Legislature will be declared unconstitutional, a case must be made showing clearly that the statute, when fairly and reasonably construed, is brought into conflict with some.provision of the Constitution. * * * If the act and the Constitution can be so construed as to enable both to stand, and each can be given a legitimate office to perform, it is the duty of the court to give them such construction.” (People ex rel. Killeen v. Angle, 109 N. Y. 567; Sweet v. City of Syracuse, 129 id. 316-329.)

The appellant contends that the act is unconstitutional, because it is a local act providing for the election of a member of the board of supervisors, and for the opening- and conducting of elections, and designating a place of voting, in defiance of article 3, section 18, of the Constitution; and also because it provides for the election of four justices of the peace for terms of one, two, three and four years, and is, therefore, in conflict with section 17 of article 6 of the Constitution, which provides that the electors of the several towns shall, at their annual town meetings, or at such other times and in such manlier as the Legislature may direct, elect justices of the peace, whose terms of office shall be for four years ; and his contention is that, it being necessary for the towns to have town officers, the manner of their election is an integral and necessary portion of the act, and that if the portion thereof providing for their election is unconstitutional, that then the whole act is unconstitutional and void; that one portion of it cannot be separated from the other.

If they can be separated, so that the provisions for the town government and the election of the town officers can be separated from the erection of the town itself, he contends that then the bill is a violation of section 16 of article 3 of the Constitution, which provides that a local bill shall embrace but one subject, which shall be expressed in the title.

The argument made in support of these contentions is ingenious and forcible; but one portion of it, as will be hereafter seen, perhaps goes too far and concedes too much.

The appellant concedes the power of the Legislature to divide existing towns and to create new ones.

Section 5 of article 3 of the Constitution, reading as follows: “ Nothing in this section shall pi'event the division at any time of counties and towns, and the erection of newp towns by the Legislature,” is almost, if not quite, an express grant of such a power, although such power would exist in the Legislature unless there was a prohibition against it in the Constitution.

Where the Legislature has power to enact a law, it has the power to embrace in that law everything which is either necessary or proper to make it a complete whole. It can embrace in it everything germane to the main subject of the enactment, and all necessary or proper details.

As has been said repeatedly in passing upon the question as to whether a local bill embraces more than one subject, under section 16 of article 3 of the Constitution, all matters germane to the subject expressed in the title may be included in the enactment.

When the subject is expressed, all matters fairly and reasonably connected with it, and all matters which will or may facilitate its accomplishment are proper to be incorporated in the act and are germane to the title.” (Astor v. Arcade Ry. Co., 113 N. Y. 93-109; Sweet v. City of Syracuse, 129 id. 316-333.)

The same reasoning applies to the power of the Legislature to pass a law upon any particular subject; it has power to include in the law anything germane to the subject.

In the creation of a new town something more is necessary than merely to provide boundary lines; a town government must be provided for, and town officers; they cannot be left to create themselves ; there must somewhere be a starting point, some method provided for electing or appointing them; and all these things, the creation of the offices, the provisions for the manner of filling them, are, as stated by.the appellant, integral and necessary parts of an act providing for the creation of a new town ; they are germane to the main purpose of the act; they are necessary and constituent elements of any law -creating a new town.

This same contention was made in the case of The People ex rel. Clancy v. Board of Supervisors (139 N. Y. 524), where, under the provisions of a charter for the city of Yonkers, providing that the supervisors should be elected in a different manner from that provided for in the general law, it was held that the section of the Constitution prohibiting the passage of any local bill for the election of supervisors did not apply to cities because cities acquire corporate life by force of special, several and purely local acts of the Legislature, which creates and frames them in the regular exercise of governmental functions. That the Constitution permits that mode of organization of ■ cities, and that that permission must necessarily extend to and cover all the proper subjects of a city charter, among them the division into wards, and the allowance of a supervisor in each or in so many of them as may be prudent or satisfactory, and that the law that so creates and charters and organizes a city is not, within the constitutional meaning, a local law providing for the election of members of the board of supervisors.

So here the Constitution permits and authorizes the Legislature to create towns; and new' towns like a city owe their corporate life to special, several and purely local acts of legislation, either by the Legislature of the State or the legislature of the county; and in the creation of new towns, it being necessary to provide for the election of supervisors and other town officers, it seems to me that such act is not a local act providing for the election of supervisors within the meaning of the Constitution. That is no+ the purpose of the act; it is not the act itself; it is only a detail and necessary incident of the act, but is by no means the main subject or purpose of the law.

The same reasoning applies to all the objections to the act that are made as being in violation of section 18 of article 3 of the Constitution. The objection that that portion of the act which provides that the justices of the peace shall be elected for terms of one, two, three and four years, respectively, is void as being in conflict with section 17 of article 6 of the Constitution, which provides that justices of the peace shall be elected for the term of four years, I will not discuss, for if my conclusion is correct, that the act as a whole is constitutional and properly provided for an election of town officers, then, if it be conceded that there was no power to shorten the term of any of them, it would follow that they were elected for terms of four years each, as the Constitution provides.

The object and intent of the various provisions of section 18 of article 3 of the Constitution was to put an end to special legislation, and to have uniform general laws upon the subjects mentioned in that section. In the nature of things that intent could not be expected to exist in relation to new political subdivisions .of the State, counties, cities and towns, which are created by special acts of legislation; the evil intended to be prevented by the section referred to could not exist before, or even at the time, new cities, towns and counties came into existence. And the prohibition could only apply to acts of legislation in relation to political subdivisions of the State in existence when such acts were passed.

In construing an act of the Legislature in connection with the Constitution, that portion of the Constitution with which it is supposed to be in conflict must be read in connection with other parts of the Constitution, and all parts of the Constitution must be given force and effect, and -when there is any apparent conflict between its different parts, the spirit and intent of each must be looked into to see if there is any conflict in intent, and if there is no conflict in spirit and intent, although there may be an apparent one in language, then there is no difficulty, in giving the full effect intended by its framers to all parts of the instrument.

In giving construction to the various provisions of section 18 of article 3, the Court of Appeals in a number of cases has given a practical rather than a literal construction to the language used. (Gilbert Elevated My. Co., v. Anderson, 3 Abb. N. C. 437; People ex rel. Bd. of Commrs. v. Banks, 67 N. Y. 569 ; People v. Petrea, 92 id. 128; People ex rel. Clancy v. Board of Supervisors, 139 id. 524.)

The construction here indicated is a practical construction that preserves to the Legislature the full power to create newr towns and, as a necessary and integral part of that power, the power to provide for the organization of its town government. This poymr is in its nature a special power to be exercised by special acts of legislation.

And it preserves the spirit and intent of section 18 by confining it to political subdivisions of the State already in existence, and as to which, and which only, special legislation is to be feared.

Por these reasons, I think, the order appealed from should be affirmed.

Putnam, J., concurred ; Mayham, P. J., not sitting.

Order affirmed, with costs and disbursements.


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    The People of the State of New York ex rel. Charles S. Nisbet v. The Common Council of the City of Amsterdam and Others, Respondents.

      Municipal corporations — audit of a claim — construction of the cha/rter of the city of Amsterdam ■— veto power of the mayor — reference to an improper committee — effect of the claimant’s being denied a hearing before the committee — Laws of 1885, chap. 131, § 31; 1892, chap. 53, § 2.
    When by a special law it is provided that an act or thing shall be done by the authorities of a city, but the specific method is not prescribed, and the charter of the city provides a method for the performance of similar acts, the act authorized to be done by the special law must be performed in the manner pointed out by the charter for the doing of similar acts.
    A claim by an attorney for legal services rendered to the city of Amsterdam under chapter 53 of the Laws of 1892, relative to the improvement of Bridge street, is a claim which must be audited and allowed in the manner prescribed by the city charter.
    Such a claim is subject, under the charter of the city of Amsterdam, to the veto power of the mayor, the resolution auditing it being one “ for the expenditure of money,” within the meaning of the charter.
    Where a city charter (§ 31, chap. 131 of 1885) provides that a claim against the city must be referred to a “ committee on auditing accounts,” the reference of the claim to such committee is a condition precedent to its due allowance, and the common council cannot, without thus referring the claim, audit it.'
    Semble, that the claim may bo referred to the law committee of the common council for an investigation of its merits, but that the power of the law committee does not extend beyond the investigation of any legal question which may be involved.

      Where an investigation of the claim is referred to a committee of a common council, and such committee denies the claimant any right to share in the investigation or to examine hostile witnesses, the claimant is thereby deprived of his legal rights, and the proceedings had before the committee have no effect upon the legal status of the claim.
    Certiorari issued out of the Supreme Court and attested on the 17th day of May, 1895, directed to the common council of the city of Amsterdam and to William A. Fisher, as mayor of said city, and to Thomas J. Hazlett, as clerk of said city, directing them to certify and return to the clerk’s office of the county of Montgomery all and singular their proceedings in reference to the claim of the relator, to the end that they may be reviewed and corrected on the merits by the court.

      Nisbet c& Hanson, for the relator.

      Louis II. Reynolds, for the respondents.
   Herrick, J.:

' This is a proceeding by certiorari to review the proceedings of the common council of the city of Amsterdam in auditing the claim of the relator against the said city for legal services.

By chapter 53 of the Laws of 1892, entitled “An act to provide for the improvement of Bridge street, in the city of Amsterdam,” the city of Amsterdam was authorized to make certain public improvements, and for that purpose was empowered to take proceedings to acquire such real property as might be necessary to be used, and to assess and award the damages therefor. The city authorities determined to act under the authority given them by such act, and took proceedings to condemn property and award damages; and it appears to be conceded that the relator was employed, and legally employed, to conduct such proceedings on behalf of the city. The proceedings were conducted to a Conclusion by the relator.

On the ninth day of March, in the afternoon, he presented his bill for the services rendered, and on the eleventh day of March, a resolution was passed allowing such bill at the sum of $4,823.54. On the fifteenth day of March the resolution auditing the relator’s bill was vetoed by the mayor. This veto was sustained. The relator refiled his bill and resubmitted it to the common council,, by whom it was referred to the law committee ; the law committee was discharged from its further consideration, and the common council passed a resolution allowing or auditing such bill at the sum of $2,523.54.

This is a very general statement of the proceedings sought to be-reviewed; they will be examined more in detail in determining the questions of law involved.

Section 2 of chapter 53 of the Laws of 1892 provides that the commissioners’ fees, “ and other necessary costs and expenses (all of which shall be audited and the amounts thereof fixed by the common council), shall be considered part of the expense of said improvement.”

Special statutes in relation to a city are to be read in connection with the charter of such city, and made to harmonize with it, if possible, so as to make such laws a complete whole, the same as if such special law were an amendment to the charter.

And where by a siDecial law it is provided that an act or thing shall be done by the city authorities, and the specific method of so doing is not prescribed, and in the charter of the city there is a specified method prescribed for the doing of similar acts or things, then the act authorized to be done by the special act is to be done in the manner pointed out in the charter for the doing of such similar acts or things.

Section 31 of chapter 131 of the Laws of 1885, being the charter of the city of Amsterdam, provides that: “All accounts and claims against the said city, and all accounts and claims for services rendered or moneys expended by any officers within said city, which would be charges and accounts against a town if they were rendered or expended by the officers thereof, shall be presented to the common council, and the same shall be referred to a standing committee of said board to be composed of one member from each ward, to be called ‘ committee on auditing accounts.’ It shall be the duty of said committee to inquire or examine into said accounts, and they may send for persons and papers, and may examine the claimant on oath in relation thereto. The said committee shall report the matters referred to them to the common council either favorably or' adversely, with their reasons, and the said common council shall then hear, examine and determine the same as a board, of town auditors, and for that purpose shall possess the powers and b.e subject tO' the duties of town auditors.”

The pi’ocess then of auditing claims against the city of Amsterdam, of which the bill of the relator is one, is that it shall be presented to the common council and then, referred to the “ committee on auditing accounts ” to be examined by it and the result of its examination reported to the common council. ■

There is no evidence that any such course was taken in this case,, and so far as can be inferred from the proceedings, it was not referred to the auditing committee.

I have heretofore stated that the claim was presented on the ninth day, of March, in the afternoon, and- audited on the eleventh. The ninth day of March was Saturday. The election for city officers and members of the common council had taken place on the preceding Tuesday, being March fifth.

It was the duty of the common council to meet on the following Monday at ten o’clock in the forenoon for the purpose of canvassing the votes cast at such charter election, and it was at the meeting-held for such purpose that the resolution was passed allowing the relator’s bill. There was no meeting of the common council between the time when the bill was presented on the ninth, which presentation was made by filing it with the city clerk, and the meeting on the eleventh, when such bill was allowed, when it could have been referred by the common council to the auditing committee. I think the presumption arises from this statement of facts that the auditing committee never had the bill before it, and never in any way considered it. Indeed, the return states that the bill presented by the relator was never seen by any member of the common council until several days after March eleventh.

The resolution by which the relator’s bill was allowed also included the awards of the commissioners for damages,'and various other items of expense of the proceedings, in addition to the bill of the relator. The allowance of such bill was, therefore, illegal, and not binding upon the city, because the requirements of the law for the auditing of claims -were not complied with.

There is still another objection to this allowance of the claim. The charter of the city of Amsterdam provides that the term of office of its elective officers shall commence on the Monday following the annual election. (§ 11, chap. 131, Laws of 1885.)

The mayor’s term of office is for one year (§ 12); consequently, the term of the mayor who was in office when this bill was presented would expire on the eleventh day of March, and the term of the new mayor would commence on that day.

Section 34 provides that where the term of office of the mayor shall expire within five days after a transcript of any ordinance, resolution, order or act shall have been filed with him, such ordinance, resolution, order or act shall have no force ; obviously, a resolution passed on the last day of the existence of ‘the old common •council, on the same day and at the same meeting at which the votes cast at the election for mayor were to be canvassed and the result •of such election declared, and on the day when .the term, of office of the mayor ceases, is within the meaning of this prohibition.

But, however that may be, the mayor whose term of office commenced on March eleventh vetoed the resolution in question. By ■section 34 pf the charter of the city of Amsterdam, heretofore referred to, the mayor is empowered to veto all orders, resolutions or ordinances which shall have passed the common council for the expenditure of money.”

The resolution by which the relator’s bill was allowed, as I have •stated, included a number of other items of exjoenditure which would very properly come under the head of a resolution for the expenditure of money.

It is contended that a resolution like the one in question is not subject to the veto power of the mayor, because it is said it is not a resolution for the expenditure of money, and it is argued that the resolution for the expenditure of the moneys in question here, within the meaning of section 34, was the resolution or ordinance that was passed which authorized and initiated the improvement; that the ordinance having been passed authorizing the improvement, the necessary, expenditures resulting therefrom were chargeable upon the city, and that the direction by the common council to pay them is not an act authorizing the expenditure of money, but is simply a •determination of the amount to be paid under such previous ■authorization.

I cannot accept that construction of the language in question. Tlie power conferred is one very commonly vested in mayors of cities in this State, and is for the purpose of giving them power and authority over public expenditure, and to enable them to check needless or wasteful expenditure of the public money.

To enable them to do this and fulfill the intent of the statute, it is obvious that it must extend to a resolution or ordinance which authorizes an act to be done which calls for the expenditure of money, and in addition allows them to act upon the resolution or audit of the common council of their respective cities as to the expenses incurred, to determine whether they are necessary, extravagant or wasteful.

It must be apparent that an ordinance providing for a public improvement may be perfectly wise and proper, yet the manner in which it is carried out may be wasteful, extravagant and dishonest • and it is just as necessary that the mayor should have a supervision and check upon the manner in which such improvement is carried into effect, and the expense thereof, as upon the ordinance or resolution which initiates and authorizes the expenditure of money. The first step authorized an expenditure; the last determines the amount and directs its payment; each is a resolution or ordinance “ for the expenditure of money,” and each is subject to the veto power of the mayor, within the language of section 34.

For these reasons I think the audit and allowance of relator’s bill on the eleventh day of March was illegal, and not binding upon the city.

"When the mayor’s veto came to be considered by the common council, the relator was heard in relation thereto, and at that time presented a number of affidavits as to the value of the services he had rendered ; and, upon the veto of the mayor being sustained, he refiled and resubmitted his bill for services to the common council. The common council referred it to its law committee, which procefeded to consider it, and examined witnesses in relation to such claim. The relator asked leave to appear before the committee and take part in said investigation, but the committee refused his request, and did not allow him to come before it, or to examine any of the witnesses summoned by it.

The relator thereupon procured a writ of prohibition, prohibiting the said committee from submitting to the common council the ■depositions or testimony taken by it relating to the value of the services of the relator, or submitting any report, finding- or decision in relation to said claim. After such writ of prohibition was ■served, affidavits were procured by members of the common council, or by some one acting in their behalf, as to the value of the relator’s services. The law committee was discharged from the consideration of such claim, and the common council then and there, ■at the same meeting at which the law committee was so discharged, passed a resolution allowing the relator’s claim at the sum of $2,523.54

This last audit and allowance was irregular and illegal. The bill was not presented to the “committee on auditing accounts,” and has not been investigated by it, and a report of its investigation made to the common council. Submitting the claim to another committee of the common council will not answer the purpose. I do not mean to say at this time that they had no right to have the matter referred to the law committee to investigate any legal question involved; possibly that may be true, but an examination and investigation of the merits of the claim itself should be made by the “ committee on auditing accounts.”

When the Legislature made that the tribunal for investigating claims, it excluded every other committee of the common council. Further than that, the investigation that was conducted by the law committee was illegal; it was not such a hearing of the relator’s claim as the law contemplates. lie was given no opportunity to confront and examine the witnesses produced against him; the bill was considered by that committee in executive session, which means a secret session, when he could not be present to hear or answer the ■arguments against the allowance of his claim. He asked to appear before the committee and his request was refused. A hearing and investigation conducted in such a manner cannot be tolerated in law, and can lay no foundation for valid action by the city authorities. He was compelled to submit his claim to the common council. That body was made the court to pass upon his rights. Before his rights could be determined, he was entitled to “an opportunity to be heard and to defend, enforce and protect his rights.” A failure to give him such opportunity to enforce his claim is depriving him of due process of law in enforcing his rights. (Stuart v. Palmer, N. Y. 183-191; People v. O'Brien, 111 id. 1-62.)

For these reasons I think the writ of certiorari must be sustained, and the audit and allowance of the relator’s claim, by the common council vacated and set aside, with fifty dollars costs and disbursements of these proceedings to tlie relator.

Mayhah, P. «L, concurred; Putnam, J., not acting.

"Writ of certiorari sustained, with fifty dollars costs and disbursements.


author: Herrick, J7:

text:
    The People of the State of New York ex rel. Charles S. Nisbet, Respondent, v. The City of Amsterdam and Others, Appellants.

      Municipal corporations — reference of a claim to a common council committee not having jurisdiction ■ — ■denial to the claimant of a hearing before the committee — due process of law — Laws of 1885, chap. 181, § 31 —1892, chap. 53.
    In proceedings taken to procure a writ of prohibition, it appeared that the relator, an attorney, had rendered services to the city of Amsterdam, in proceedings taken by the city to condemn certain real property; that the city charter provided that all accounts and claims for services rendered to the city should he presented to the common council and should be referred to a standing committee of that board known as the “ committee on auditing accounts;” that the claim of the relator was allowed by the common council, was vetoed by the mayor, was resubmitted to the common council and was by it referred to the “law committee” of that body, that the relator asked leave to attend the hearing given by the committee in regard to his claim and to take part in it; that the law committee took testimony as to the value of the relator’s services, but refused to allow him to he present at the hearing.

      Held, that under the city charter the claim should have been referred to the “ committee on auditing accounts,” and that no other committee had jurisdiction of it;
    That, assuming that the law committee had jurisdiction, it had denied the relator permission to confront the witnesses who appeared before that committee and that such a manner of disposing of, the relator’s rights was not in accordance with due process of law;
    That the relator was entitled to a writ prohibiting the use by the common council of the testimony taken before the law committee.
    Appeal by the defendants, The City of Amsterdam and others, from an order of the Supreme Court, made at the Schenectady Special Term and entered in the office of the clerk of the county of Montgomery on the 22d day of May, 1895, directing that a writ of prohibition, heretofore issued in the action, be made absolute, restraining and prohibiting the defendants, and each and every one of them, from using and considering or taking cognizance of certain testimony or depositions of witnesses relating to the value of the services of relator rendered to the city of Amsterdam, in the Bridge street matter, taken by or before the law committee of the common council thereof, in the auditing and considering of the bill or claim of the relator, or from using, considering or taking cognizance of any finding or report or decision of said committee in reference to the bill or claim of relator for legal services, in the auditing of said bill or claim, and restraining and prohibiting said law committee and the members thereof from submitting or returning to said common council the said depositions or testimony taken by them relating to the value of relator’s services, or any report, finding or decision in reference to the value of relator’s services, and also from taking any other or further testimony or depositions on the subject of the value of relator’s services.

      Nisbet <& Hanson, for the respondent.

      Louis II. Peynolds, for the appellants.
   Herrick, J7:

This is-an appeal from an order rendering absolute a writ of prohibition. It arises out of the same proceedings that have been considered by us at this term in the case of The People ex rel. Nisbet v. The Common Council of the City of Amsterdam et al.

After the claim of the relator, as allowed by the common council, had been vetoed by the mayor, it was then resubmitted to the common council and by them referred to its law committee as stated in the opinion in the last-named case. The law committee proceeded to take testimony as to the value of the relator’s services. The relator requested leave of the law committee to attend such hearing and take part in said investigation, but that committee refused such request, whereupon proceedings were taken which resulted in the granting of the order which is now appealed from, which restrains and prohibits such committee from proceeding with such investigation and from making any report of the result of their investigation to the common council.

As. I have stated in the discussion of the principal case, the charter of the city of Amsterdam provides that claims against such city shall be referred to .the “ committee on auditing accounts,” and that such provision of the statute excludes other committees from acting. The law committee was, therefore, without jurisdiction. In addition, it is to be said that the law committee was proceeding to pass upon the merits of the relator’s claim,, presumably with the intention of making a report thereon to the common council, without giving him an opportunity to be heard, without permitting him to confront the witnesses being examined or to cross-examine them. A claimant’s rights cannot be disposed of in that way. Such a proceeding to determine a person’s rights or interests is contrary to the law of the land; it is not due process of law.

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

Mayiiam, P. J., concurred; Putnam, J., not acting.

Order affirmed, with costs and disbursements.

       Ante, page 488.— TRep.