author: HARDIN, P. J.:

text:
    Celia Salisbury and Others, as Administrators, etc., of Henry O. Salisbury, Deceased, Respondents, v. Binghamton Publishing Company, Appellant, Impleaded with Others.

      Discontinuance of an action — not an absolute right — action by a creditor of a corporation on behalf of himself and others may be discontinued before, not aftm\ decree • form of the final judgment therein.

    The right of a plaintiff to discontinue an action is not absolute and unqualified. Whether an order of discontinuance shall be. allowed before a judgment is entered ordinarily rests in the discretion of the court in which such order is sought.
    Where a creditor files a bill in behalf of himself and all others who shall come in and prove their debts under the decree and contribute to the expenses of the suit, he may discontinue his suit at any time before there has been a decree entered therein for the benefit of himself and the other creditors, but after the entry of a decree he cannot deprive the other persons of the same class, of the benefit of the decree if they think fit to prosecute the suit.
    An action brought by a creditor of a corporation against the stockholders thereof was referred to a referee to hear and determine the same. The referee thereafter rendered his report and an interlocutory judgment was entered by order of the Special Term, which, among other things, provided for a further reference, and, declaring the rights of several defendants as between themselves, provided for the costs of the action, and contained a contingent provision for the payment 01 any extra allowance that might be made in the final judgment. It also provided ioi the collection from sundry defendants of amounts to be paid into court, ñom which fund it directed that the costs of the action be paid to the plaintiff’s attorneys and to the attorneys for the other parties to whom costs might be adjudged, and, also, such other and further costs and expenses as the court might allow and direct to be paid therefrom, and that the residue of said fund be paid to such peirson or persons, in such sums, as the court should direct by the final judgment.
    It also contained a provision that certain enumerated creditors “are required to exhibit and prove their claims and thereby make themselves parties to this action beiore the referee herein, * * * on contributing and paying to plaintiffs’ attorneys their respective proportions of the expenses of this action to be then settled by the said referee, and, in default thereof, said creditors who are in default are to be precluded from all benefit of this judgment and from any distribution thereunder which shall be made, but claims of creditors which have already been proved before the referee are not required to be again proved.” Over and beyond such provisions the decree declared liabilities and rights of sundry parties, in appropriate language, mentioned therein.

      Held, that upon an application for a final judgment based upon the interlocutory judgment and the referee’s report, the final judgment might properly provide for the distribution of tho funds and for the adjustment of the rights and liabilities of the several parties, and tho proper allowances to be made in accordance with the tenor of the interlocutory judgment and the rules and practice existing in such cases.
    Appeal by the defendant, the Binghamton Publishing Company, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Onondaga on the 24th day of September, 1894, confirming the report of a referee, denying a motion made by the appellant and certain other defendants for the appointment of a new referee and granting the plaintiffs’ motion for leave to discontinue the action, unless any creditors of the Binghamton Hydraulic Power Company, who might desire to further prosecute the action, should pay to the plaintiffs’ attorneys a certain specified amount, in which event the person so paying the same should be' substituted as the plaintiff in the action, with leave to continue the same.

      T. B. L. M. Merchant, for the appellant.

      Gill (& Stilwdl, for the respondents.
   HARDIN, P. J.:

Although'the appeal book before us does not contain the complaint, answer or the report of the referee upon which the interlocutory judgment was entered, we discover from the appeal papers before us that an action was brought by the plaintiffs’ intestate, as a creditor of the Binghamton Hydraulic Power Company, against the stockholders of said company. A preliminary injunction was obtained and that was sustained. The action seems to have been commenced and conducted upon the principles laid down in Pfohl v. Simpson (74 N. Y. 137). After the issues were joined there was a reference to the late Judge Edwards as sole referee to hear, try and determine the same and all matters in controversy therein, and to take proof against all parties in default.” It seems the referee rendered his report on the 24th of February, 1892, which was filed, and he settled an interlocutory judgment, upon notice, which was presented to a Special Term held on the 13th of April, 1892, and the interlocutory judgment was allowed by that court. The judgment contains extensive provisions, among others, one providing for a further reference and declaring the rights of several defendants as between themselves, and provides for the costs of this action and contains a contingent provision for the payment of any extra allowance that might be made in the final judgment, and provides for the collection from sundry defendants of amounts to be paid into court by paying the same to the county treasurer, and that from such funds so paid into court the treasurer’s fees be allowed, and that he “ pay the costs of this action to plaintiff’s attorneys and to the attorneys of such other parties to whom costs may be adjudged hereinbefore directed, and such other and further costs and expenses herein as the court may allow and direct to be paid from said moneys, and that the residue of said fund be • paid over by said county treasurer to such person or persons, and in such sums, as the court shall direct by the final judgment to be entered herein.” It also contained a provision that certain enumerated creditors “ are required to exhibit and prove their claims and thereby make themselves parties to this action before the referee herein -x- * * on contributing and paying to plaintiff’s attorneys their respective proportions of the expenses of this action to be then settled by the said referee, and in default thereof said creditors who are in default are to be precluded from all benefit of this judgment and from any distribution thereunder which shall be made, but claims of creditors which have already been proved before the referee are not required to be again proved.” Over and beyond the provisions already quoted the decree declared liabilities and rights of sundry parties in appropiiate language mentioned therein.

In Maicas v. Leony (22 N. Y. St. Repr. 149; S. C., 113 N. Y. 619) it was held that if the referee commit errors of law or of fact “ they cannot be corrected by a motion made at Special Term to set aside the report and all proceedings thereunder, but by appeal from the judgment entered upon the report.” The privilege of the plaintiff to discontinue an action is not absolute and unqualified. 'Whether an order of discontinuance shall be allowed ordinarily before a judgment is entered rests in the discretion of the court in which such an order is sought. (Young v. Bush, 36 How. Pr. 240; Wilder v. Boynton, 63 Barb. 547; Carleton v. Darcy, 75 N. Y. 375.)

In Matter of Petition of Butler (101 N. Y. 309) it is said that, in the exercise of its power to control the entry of an order, there is a discretion, and that where no facts are stated, and nothing appears to show a violation of the right or interest of the adverse party, the plaintiff may discontinue. In the case in hand the plaintiffs’ intestate, as a creditor, filed his bill in behalf of himself and others who were similarly situated who should come in under the bill and establish their rights.

In 2 Barbour’s Chancery Practice, 169, it is said that in such a case “ others are allowed to come in at any time, either before or after the decree, until the fund is actually distributed and paid out.” And it is further suggested that a creditor coming in under the decree takes the position of a complainant.” And it is further stated “ where a creditor files a bill in behalf of himself and all others who shall come in and prove their debts under the decree and contribute to the expenses of the suit, he may discontinue his suit at any time before there has been a decree therein for the benefit of himself and the other creditors. But, after a decree, he cannot deprive the other persons of the same class of the benefit of the decree if they think fit to prosecute it.” That doctrine seems to be sustained by numerous cases that have arisen since the author used the language we have quoted.

In Innes v. Lansing (7 Paige, 583) it was said that such a creditor “ may discontinue his suit at any time before there has been a decree therein for the benefit of himself and the other creditors.”

In Cummins v. Bennett (8 Paige [2d ed.], 19) it was held that it is a matter of coirrse to permit the complainant to dismiss his bill at any time before decree upon payment of costs. But an order for leave to dismiss upon payment of costs is conditional; ” and in a note to that case it is said at page 81, viz.: It is discretionary with the court to refuse a complainant permission to dismiss his bill if a dismissal would work a prejudice to the other parties.” (Bank of State of So. Carolina v. Rose, 1 Rich. Eq. 292.) And in Watt v. Crawford (11 Paige, 412) the chancellor observed: “Before any decree or decretal order has been made, in a suit in chancery, by which a defendant therein has acquired rights, the complainant is at liberty to dismiss his bill upon payment of costs. But after a decree has been made by which a defendant has acquired rights, either as against a complainant or as against a co-defendant in the suit, the complainant’s bill cannot be dismissed without destroying those rights. The complainant, in such a case, cannot dismiss without the consent of all parties interested in the decree; nor even with such consent, without a rehearing or upon a special order to be made by the court.”

In Picabia v. Everhard (4 How. Pr. 113) it appeared that the action was to foreclose a mortgage which had been assigned to one of the defendants, and in 1844 a decree had been entered' in the suit by default, but it had not yet been enrolled, and the assignee, the petitioner, asked for relief, to be made a party plaintiff or for leave' to vacate the decree of foreclosure and dismiss the suit, and the motion was denied; and in the course of the opinion delivered in that case it was said, To establish a precedent which should give the plaintiff this right, especially after decree, might be made to operate vexatiously and oppressively. Every decree affects other rights besides those of the plaintiffs. All parties become interested in it, and any of them may take steps to have the effect of it,” citing Carrington v. Holly (1 Dickins, 281) and several other cases.

Brinckerhoff v. Bostwick (99 N. Y. 194) is in harmony with the cases to which we have referred. In that case it said: “ The action is really the action of all the stockholders, as it was necessarily commenced in their behalf and for their benefit. It could not have been commenced by one stockholder for himself alone. It is true that at any time before judgment the original plaintiff, before the others were made parties, could have discontinued the suit or could have settled his individual damages ; * * * but if he had prosecuted the action to judgment, then the judgment would have been for the benefit of all the stockholders, and he would then have ceased to have control over it, because the rights of the other stockholders would at once have attached thereto.” The rule was recognized in Tremain v. Insurance Co. (11 Hun, 286).

In Mattison v. Demarest (1 Robt. 722), alluding to the principle which we have already adverted to, the judge who delivered the opinion said: But the moment the decree was entered in the suit the rights of the other creditors attached to it, and the proceedings in all the other suits were or might be stayed.” And in that case, as well as Averill v. Patterson (10 N. Y. 500), it was intimated that the rule as it existed in the old Court of Chancery had not been changed by the Code.

On the 20th of January, 1894, the appellant gave notice of a motion to be heard on the 3d of February, 1894, “ For an order referring all matters in this action left undetermined by said interlocutory judgment, and thereby directed to be thereafter determined, to some suitable person to take proof thereof, and particularly of such debts made or owing by the Binghamton Hydraulic Power Company, and remaining unpaid and not heretofore proven and established in this action as the stockholders found liable to contribute to the payment of the debts of said company by said interlocutory judgment may be liable to pay thereunder,” and to consider and determine the several particulars mentioned in the interlocutory judgment. On the 25th of January the plaintiffs gave notice of a motion to be heard at the same term “ for an order permitting plaintiffs to discontinue said action without costs unless some of the parties hereto, creditors of said Binghamton Hydraulic Power Company,' shall desire to proceed with the prosecution of said action in their own name, and in that case that such party or parties be required to pay 'to plaintiffs or their attorneys the sum of two thousand two hundred and six dollars and two cents ($2,206.02) for their expenses in this action, and that upon such payment an order be made substituting such parties plaintiffs herein and relieving these plaintiffs from further responsibility connected with the prosecution of said action.” Several affidavits were read at the February Special Term in regard to the matters mentioned in .the two notices of motion to which we have just referred, and the Special Term, held on the 3d of February, 1894, ordered a reference “ to take the proofs of the parties and to report to this court the amount of the disbursements on behalf of the plaintiff in said action, and also the value of the services of Gill & Stillwell as attorneys for the plaintiff in said action to date.” Proofs were taken before the referee mentioned in that order, and a report was made on the proofs, and the report and the motion papers were again brought before the Special Term held on the 2d of June, 1894, when the order appealed from was made. On looking into that order we find that it confirms the report of the referee who heard the matters relating to the motions and made his report bearing date May o, 1894. And tbe order also denied tbe motion “ for tbe appointment of a new'referee made on belialf of tbe Binghamton Publishing Company and other defendants,” and granted tbe motion -to tbe plaintiffs to discontinue, “ unless within sixty days from the date of tbe entry of this order and tbe service of a copy of it, * * * tbe Binghamton Publishing Company and any other -creditors of the Binghamton Hydraulic Power Company who may desire to further prosecute said action, shall pay to tbe plaintiffs or their attorneys the sum of $1,901.16, together with interest on $1,385.00' from February 21, 1893, together with $60.00 referee’s fees paid by plaintiffs upon the reference herein.” It appears by one of the affidavits used upon the hearing of the motions that some negotiations had been had in respect to a settlement of the action between the attorneys of some of the defendants. However, no written evidence of the settlement between any of the several defendants themselves, or between them and the jrlaintiffs, is produced. Nor is there anything in the affidavits indicative that the .appellant ever gave assent to a settlement upon the terms that are mentioned in the motion papers. Nor is there any evidence in the motion papers tending to show that the attorneys had authority to ■settle upon the terms mentioned in the affidavits relating to the negotiations and the projected settlement. "We have found nothing in the motion papers which warranted the court in refusing to name a referee in the place of Judge EdwaRds, who had died, after the ■entry of the interlocutory judgment. We think the Special Term ought to have ajjpointed a referee to carry out the provisions of the interlocutory judgment. When such a hearing shall have taken place before the referee, and his report shall be brought before the court, and an application made based upon the interlocutory judgment • and the report of such referee, an application for a final judgment, to accord with the provisions of the interlocutory judgment, may provide properly for the distribution of the funds and for the adjustment of the rights and liabilities of the several parties, and the proper allowances to be made in accordance with the tenor of the interlocutory judgment and the miles and practice iu such cases. The foregoing views lead to the conclusion that the order appealed from should be reversed, and either party allowed to apply to the Special Term to name a referee in place of Judge Edwards to bear tlie proofs of tlie respective parties, in accordance with the provisions of the interlocutory judgment.

Martin and Merwin, JJ., concurred.

Order Teversed, with ten dollars costs and disbursements to the appellant, with leave to either party to apply to the Special Term for the appointment of a referee upon the usual notice.


source: Caselaw Access Project

author: Hardin, P. J.:

license: Public Domain

text:
    First National Bank of Carthage, Respondent, v. Prosper L. Eaton and Charles E. Eaton, Appellants, Impleaded with Another.

      Appeal — when dismissed.

    No appeal lies from an order sustaining a demurrer. Tlie appeal should he taken from the interlocutory judgment.
    The notice of appeal in this case was in the following words:
    “ Please take notice, that the Appellants, Prosper L. and Charles E. Eaton, appeal to the General Term of the Supreme Court, Fourth Department, from the judgment of the Supreme Court herein, entered in the office of the Clerk of the County of Jefferson on the 23d day June, 1894, and appellant intends to bring up for review upon such appeal the interlocutory judgment herein, dated the 23d day of June, 1894, and the order, dated the 5th day of June, 1894.”
    The appeal papers, however, contained only the order of June 5, 1894, and no interlocutory or final judgment.

      H. O. Cook, for the appellant^.

      A. E. Kilby, for the respondent.
   Hardin, P. J.:

As the appeal is from an order sustaining the demurrer to a part of defendants’ answer, and no appeal is taken from any interlocutory judgment, the appeal should be dismissed. (Code, § 1349; Cambridge Valley Nat. Bank v. Lynch, 16 N. Y. 514; Sheffield, v. Robinson, 62 N. Y. St. Repr. 163; S. C., sub nom. Sheffield v. Mur ray, 80 Hun, 555; Lee v. Timkin, 62 N. Y. St. Repr. 764; S. C., 81 Hun, 81; Haffey v. Lynch, 68 id. 506.)

Tbe appeal should be dismissed.

Martin and Merwin, JJ., concurred.

Appeal dismissed, without costs. (See 68 Hun, 506.)


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

      Nonsuit — claim for personal injuries — evidence-as to the rate of speed of a locomotive, in violation of an ordinance, is for the jury — contributory negligence in not looking for the train.

    Upon an appeal from a judgment entered on a nonsuit, the appellant is entitled to have all of the evidence construed in a manner most favorable to his contention, as well as to have the benefit of the inferences which can legitimately be drawn from such evidence.
    Upon the trial of an action brought to recover damages sustained by reason of the defendant’s alleged negligence, whereby the plaintiff was rundown by a steam locomotive, it is for the jury to determine what force and effect should be given to the evidence that the passenger train was approaching the street crossing in a city where the accident occurred at a greater rate of speed than was permissible under an ordinance of the city.
    The fact that it was shown upon the trial of such action that the plaintiff, under some circumstances, could have observed an approaching engine for a distance of 229 feet, is not sufficient to require the court to rule, as a matter of law, that the plaintiff was guilty of contributory negligence. If the plaintiff testified that he looked both ways before attempting to cross the tracks, it is for the jury to determine upon such testimony as exists in the case whether his conduct on the occasion was that of a person using ordinary care and prudence.
    If in case of an accident at a railroad crossing, it appears that the person injured did look for an approaching train, it would not necessarily follow, as a rule of law, that he was remediless because he did not look at the precise place and time where and when looking would have been of the most advantage
    Appeal by the plaintiff, Thomas McPeak, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oswego on the 27th day of November, 1893, upon the dismissal of the complaint, directed by tbe court after a trial before the court and a jury at the Oswego Circuit, and also from an. order entered in the said clerk’s office on the 26th day of October, 1893, denying the plaintiffs motion for a new trial made upon, .the minutes.
    The action was brought to recover damages sustained by the plaintiff, who lost an arm on the 2d of April, 1892, by being struck by an engine of the defendant while about to cross Fourth street, in the city of Oswego.

      W. A. Pouoher and William Tiffany, for the appellant.

      P. G. Griffin, for the respondent.
   Hardin, P. J.:

Inasmuch as a nonsuit was granted the appellant is entitled to have all of the evidence construed in a manner most favorable to his contention, as well as to have the benefit of the inferences which could legitimately be drawn from such evidence. (Harris v. Perry, 89 N. Y. 308; Sherry v. N. Y. C. & H. R. R. R. Co., 104 id. 656; Morrison v. The Metropolitan Telephone Co., 52 N. Y. St. Repr. 603; S. C., 69 Hun, 100.)

The defendant’s track where the accident occurred crosses Fourth street and passes along Schuyler street. On the occasion of the accident one of defendant’s freight trains was stalled in its approach to Fourth street, and while crossing it, about nine-fifty o’clock p. m. The track was wet, and as the train approached Fourth street it was passing around a curve, and there was some difficulty found in getting the use of the contrivance for depositing sand upon the track to prevent the wheels from slipping. A great noise was made by the engine that was attempting to get the freight train in motion. Holman, the engineer on the freight train that got stalled, said; “Ye stopped there about nine-fifty o’clock on account of a bad rail. "We didn’t have a very high pressure of steam. The engine was slipping bad. "We stopped about four minutes, and put on the blower, and began to take in slack; three or four minutes. Took the slack of the. train and pulled them a little ways, and stalled again. Took slack again and started the train, and pulled them out very slowly. The second time we took slack we stopped just long enough to get- slack ; about two or three minutes. Our engine was supplied with sand. I was using it. It was on a curve, and slie wasn’t getting sand the way she ought to. Only on one side. Sometimes the sand pipe gets off the rails, and it don’t work just right. * * * The noise was the sudden exhaust; quite a nQise, sudden, following each other ; short exhaust; * * * it was a continuous noise, a kind of blowing noise out of the stack. * "" * The cause of this stalling were an insufficiency of steam and slippery rails and the curve combined. These three causes caused us to get stuck there.” Defendant’s witness Buskey, who was the head brakeman on the freight train that got stalled, says: The engine was exhausting steam when we tried, and when we didn’t try they had'the blow'ér on, and had a kind of humming noise through the stack of the engine. The blower makes that humming noise. * * * That is the worst noise — the most difficult to hear when you are near it of any noise the engine makes. I guess it is the. most difficult to hear when you are near the noise, more difficult than it is any other noise which the engine makes. * * * I call that noise a kind of humming noise. It is when you are trying to get steam. It is when the blower is on. It is a continuous humming noise. * * * No cessation at all. Whenever we were not trying to go ahead that noise existed. And when we were trying to go ahead we were exhausting.” Plaintiff was traveling north towards the Fort grounds when he reached the Fourth street crossing, where he found standing across the sidewalk a freight train headed west, stalled. There were two other tracks which were not occupied at the time the plaintiff approached the road, one known as the south track and the other as the middle track. The plaintiff was approaching the crossing with his friend Ward, and testifies as follows : UI got down on to the crossing; stood there for perhaps for about two or three minutes, when I first stopped. I looked both ways to see if there was any train coming along; went over a little further and lookéd again. I saw a freight train stalled there on the north track; might have stood there perhaps a quarter of a minute. I looked both ways; I looked east first; turned around and looked to the west to see if I could get by that train — if it was cut in two any way so I could get around cither end of it — to see if there was an opening. I found I couldn’t get around it. I stepped back again. I should say I was about two feet from the north rail of the middle track looking east when this passenger train (going west on middle track) came along and struck me and knocked me I should say about ten feet, and threw me over on my back. My arm went out and it took it off. The engine of the freight train was puffing and blowing off steam so I couldn’t hear anything coming. I couldn’t hear the passenger train ; didn’t see it till I was struck. The engine of the freight train stood, I should say, about twenty feet from the crossing, perhaps thirty feet west. The tail of 'the train extended easterly. The cars that confronted me when I came up were box cars, a freight train of box cars. I was struck and my arm run over by the passenger train on the middle track, on the north rail just where the point of the track comes together” (meaning the frog of the switch on middle track just west of the sidewalk).

Plaintiff was air enlisted soldier stationed at the fort near by, and had occasion to pass and repass the crossing two or three times a week and sometimes two or three times a day. When he reached the crossing about nine-fifty it was dark and cloudy. There was some evidence to the effect that on the night in question a passenger car was standing on the south track east of Fourth street and about opposite the Connor House. There was an electric light near the crossing. Defendant called an engineer who had made measurements of the premises, and from his testimony it is claimed there was no obstruction to the plaintiff’s view of the headlight of the approaching engine for a distance of some 229 feet just before the accident, and that he could have obtained a view of the headlight of the engine at a distance of 421 feet before it reached him, although there were intervening cars on the south branch that interrupted the light afterward and until the engine got within a distance of 249 feet. And there was evidence tending to support the position that an electric light illuminated the vicinity where the accident occurred. It appeared that there was an ordinance of the city prohibiting the defendant from running its trains at the place in question faster than six miles an hour. There was evidence given tending to show that the speed of the passenger train as it came up Schuyler street was from eight to ten miles an hour. Defendant called McCarthy, the engineer of the passenger train, who testified that it was a dark night, and that the headlight of his engine was burning at the time and that he saw the rear end of the freight train on the right-hand side of him, to wit, on the north track, when the rear end of the freight was about Sixtü street, and that he slowed up his tram and came along a little further, and that just he fore he got where the accident occurred he saw a man on the top of the gondola standing there with his back toward him, and that he got up a little further just about in front of him, and that be jumped off with his back toward the witness, and just as he fell the witness engine hit him, and that the brakes were applied and the train stopped, and that as he was getting down from the engine the plaintiff was standing in front of him by the gangway, and that the plaintiff remarked nothing but an arm off.” In response to the testimony given by the defendant the plaintiff testified that he did not on the night in question get on to any car on the freight train, or attempt to get on any, and that he didn’t jump off a car of the freight train upon that night or fall from it or come from it in any way, and that he didn’t state to any one that he expected any one on the passenger train. That he didn’t state on that night that he jumped from the freight train or anything substantially of that character. He further testified : “ This exhaust of the engine of the freight train or the blower making its noise, one or the other, was being done during the entire time, from the time I arrived there at the crossing to go home that night until the accident. I heard no bell or whistle on the passenger train. I plainly heard this exhaust and this blowing from the engine during the whole time’. The blower made a kind of rumbling sound; loud.” Upon the evidence of all the circumstances attending upon the acts and omissions of the defendant on the occasion of the accident, we think the question of defendant’s negligence was one of fact which should have been submitted to the jury. It was for the jury to determine what force and effect should be given to the fact, if so found from the evidence, that the passenger train ry.as approaching the crossing at a greater rate of speed than was permissible under the ordinance of the city.

In Beisegel v. N. Y. C. R. R. Co. (14 Abb. [N. S.] 29) it was held that “ It is some evidence of negligence as to third persons, on the part of a railroad company, to show that it ran its engine through the streets of a city at a speed greater than is permitted by a city ordinance, although the ordinance prescribes only a penalty for a violation of its provisions.” In that case the trial judge charged the jury “That if they were satisfied from the evidence that the engine was so running at the time, and this excess of speed beyond what the ordinance permitted contributed to the injury received by the plaintiff, it was some evidence of the negligence of defendants; ” and the court sustained the charge in an opinion delivered by Grover, J.

In Massoth v. D. & H. C. Co. (64 N. Y. 532) it was held that city ordinances of the character of the one produced in this case are competent on the question of negligence of railroad corporations, and that the proof of greater rate of speed than that prescribed, with all the other evidence in the case, is to be submitted to the jury. It was also held in that case that, “ irrespective of any ordinance or law regulating the speed of railroad trains at crossings, the- running at an excessive rate of speed is negligence, and if a collision is caused thereby, the company is liable.” And it was further said that “ as to whether the rate of speed is excessive or dangerous in the locality is a question of fact for the jury.”

Whether the plaintiff was guilty of contributory negligence was a question of fact which should have been submitted to the jury. Plaintiff testified that he looked, listened, used his eyes and made an effort to apprehend whether the place at which lie found himself was one of danger or of safety. The fact that a person under some circumstances could observe an approaching engine for the distance mentioned by the testimony was not sufficient to require the court to rule as a matter of law that the plaintiff was guilty of contributory negligence.

In Massoth v. D. & H. C. Co. (supra) it was said: “ It does not necessarily follow from the fact that a skilled engineer can demonstrate that from a given point in a highway the track of a railroad is visible for any distance, that an individual in charge of a team approaching the track is negligent because he does not from the same point see a train approaching at great speed in time to avoid a collision.”

In Shaw v. Jewett (86 N. Y. 616) the court was asked to charge “ that if they believed that the plaintiff could have seen the train at distance enough from the track to have stopped his horse before reaching the track, his failure to see the train was negligence on his part, and he was not entitled to recover.” The court refused to so charge, and it was held that the refusal was not error, and in the course of the comments delivered thereon by Folger, Ch. J., he said: “That is not the rule. The plaintiff is not bound to see; he is bound to make all reasonable effort to see, that a careful, prudent man would make in like circumstances. He is not to provide against any certain result. He is to make an effort for a result that will give safety; such effort as caution, care and prudence will dictate.” That doctrine was approved in Rodrian v. N. Y., N. H. & H. R. R. Co. (125 N. Y. 529), and applying it to the case in hand it must be said that according to the plaintiff’s testimony he looked both ways, and it was for the jury to determine upon such testimony as is found in the case whether his conduct on the occasion was that of a person using ordinary care 'and prudence. The question was one for the jury, and not for the court. (Parsons v. N. Y. C. & H. R. R. R. Co., 113 N. Y. 355; Towns v. R., W. & O. R. R. Co., 28 N. Y. St. Repr. 126; Rodrian v. N. Y., N. H. & H. R. R. Co., 125 N. Y. 529; Sherry v. N. Y. C. & H. R. R. R. Co., 104 id. 652; Chisholm v. State, 141 id. 246.)

Respondent calls our attention to Burke v. N. Y. C. & H. R. R. R. Co. (73 Hun, 32), which is unlike the case before us, as there it appeared “ that the deceased could have seen this train and could have avoided it if she had used her oyes for the purpose for which they were intended ; ” and there was no evidence that they were so used, and it was held that it was error to refuse to charge that the deceased was bound, in virtue of the evidence in that case, to turn her head and look for the train before entering upon the track. "We think the language of Andrews, J., in Rodrian v. N. Y., N. H. & H. R. R. Co. (125 N. Y. 529) should be applied to the case in hand. He there said : “ If, in case of an accident at a crossing, it appears that the person injured did look for an approaching train, it would not necessarily follow, as a rule of law, that he was remediless because he did not look at the precise place and time when and where looking would have been of the most advantage.” The judgment in that case was reversed because of a defect in the proof. At a later part of the opinion it is said: “ There is not the slightest evidence that she looked up or down the track before attempting to cross, or stopped or listened, the only evidence being that she appeared to be looking directly in front of her.”

We think the trial judge fell into an error when he withheld the case from the jury, and the judgment and order should be reversed and a new trial ordered, with costs to abide the event.

Martin and Merwin, JJ., concurred.

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


text:
    The People of the State of New York ex rel. Jesse Read, Appellant, v. The Board of Town Auditors of the Town of Smithville in the County of Chenango and State of New York, Respondent.

      Powers of towns — resolution passed at a town meeting authorizing the raising of money — chapter 122 of 1883 — “audit” defined — powers of a boa/i'd of ° town auditor's — its determination cannot be rcmiewed by mandamus.

    Towns and other municipal corporations arc organized for governmental purposes, and their powers are limited and defined by the statute under which they are constituted. They possess only such powers as are expressly conferred or necessarily implied.
    Where, subsequent to the passage of chapter 122 of the Laws of 1883, the vote in a town meeting authorizing the raising of money or incurring of a town liability exceeding $500 was not by ballot, the resolution so passed is invalid.
    The term “audit,” as applied to Ihe action of a board of town auditors, means to hear and examine, and includes both the adjustment or allowance and the disallowance and rejeption of an account.
    The jurisdiction of a board of town auditors over claims is not only original, but its decision is conclusive until reversed or modified by another court in proceedings by certiorari, and where a board of town auditors has passed upon, disallowed and rejected, as against a town, a claim presented to it (which is not an absolute statutory liability), its determination cannot be reviewed by mandamus.
    Appeal by the relator, Jesse Read, from an order of the Supreme Court, made at the Chemung Special Term and entered in the office of the clerk of the county of Chenango on the 8th day of May, 18-94, denying the relator’s motion for an order directing and commanding the board of town auditors of the town of Smithville, county of Chenango and State of New York, to meet in said town and consider and pass upon and audit a certain claim theretofore presented by tbe relator or to show cause why it should not so meet, consider and audit the said claim.
    In December, 1870, the town of Smithville issued several towD bonds in aid of a railroad. At the town meeting in 1887 a resolution was passed as follows : “ Resol/oed, that the chairman, George W. Ohurch, appoint a committee of three, to look after the town bonds.” The resolution was carried, and the chairman appointed John P. Davis, Jesse Read, the relator, and Samuel Oline as such committee. At the annual town meeting held in Smithville at the town hall on the 21st of February, 1888, it appears by the record thereof that “ the following proceedings were had and resolutions were duly passed, to wit: The report of Jesse Read, committee on refunding town bonds, was duly made by Ur. Read, and on motion made and carried, the said report was accepted and approved. Resolved, that Jesse Read be continued a committee to refund or purchase the bonds of the town.of Smithville, issued December 24th, 1870, and that he be allowed for his services as such committee five per cent on all bonds that may be or have been funded or purchased subsequently to February 14th, 1887.” On the 9th of November, 1893, the relator presented his claim in writing, duly verified by him, to the board of town auditors of the town of Smithville, “ whereby he asked payment from the said town the aforesaid sum of $2,855, and four years’ interest thereon ($685.20), amounting to $3,540.20. The said account Avas received by said board, who thereafter acted on the same, and refused to allow deponent’s said claim or any part thereof, and rejected the same.” It appears that “ the said board unanimously determined and decided that the said claim of the said Jesse Read was invalid and without merit as a claim against the toAvn of Smithville, and duly audited the same and unanimously rejected it, and made a minute of their rejection.” And after stating several facts relating to the origin and history of the claim made by the relator, the auditors completed their statement in regard to said claim in the following language: “We do, therefore, certify, find, decide and determine that the said annexed claim of the said Jesse Read is illegal and void, is not a legal charge against the toAvn of Smithville, Chenango county, N. Y., and that same is hereby passed upon, disallowed and rejected, and each and every part thereof.” Numerous affidavits were used at the Special Term relating to the claim and its rejection.

      A. W. Gumming, for the appellant.

      John, W. Church, for the respondent.
   Hardin, P. J.:

In Wells v. Town of Salina (119 N. Y. 280) it was said that “ towns and other municipal corporations are organized for governmental purposes, and their powers are limited and defined by the statutes under which they are constituted. They possess only such powers as are expressly conferred or necessarily implied.”

Appellant’s learned counsel seeks to support the claim of the relator by referring to the several statutes relating to the bonding acts and provisions therein in relation to refunding at a lesser rate of interest. Chapter 75 of the Laws of 1878 provided for the issuance of new bonds in place of existing bonds, and in the 2d section of the act it was provided that the exchange of existing bonds was to be made under the supervision of “ the constituted and statutory-authorities of any such village, city, town or county; ” and in the 5th section it was provided that “ nothing in this act contained shall be so construed as to jjermit any village, city, town or county in this State to increase its present bonded indebtedness.” And in chapter 317 of the Laws of 1878 section 2 was amended and power was given “ the said officers or boards of any such village, city, town or county ” to make such exchange, etc. And in chapter 522 of the Laws of 1881 further provision was made in respect to indebtedness of towns being paid by the issue of new bonds; and in section 4 it is provided, viz.: “ It shall be the duty of the railroad commissioners, supervisors and financial officers of towns, villages, cities and counties, having in charge the moneys received and collected, and responsible for the payment of the interest and principal duo on bonds under this act, and they are hereby required to report annually to the board of supervisors of counties, the trustees of villages and the mayor and board of aldermen or common council of cities, as the case may be.” And in chapter 316 of the Laws of 1886 further provision was made for the issuing .of new bonds by the board of trustees, mayor or common council, town board, board of supervisors or supervisor, or railroad commissioners, or officer or officers now having in charge according to law the payment of interest or principal on bonds,” etc.; and in section 4 it was made the duty of “ the railroad commissioners, supervisors and financial officers of towns, villages, cities and counties, having in charge the money received and collected, and responsible for the payment of the interest and principal due on bonds issued under this act,” to report annually to the board of supervisors of the counties, trustees of villages and mayor' and board of aldermen and common council of cities, the sum due and payable the succeeding year; and in the 6th section of that act the commissioners were required to execute official bonds before entering upon the discharge of their duties under the act.

We find no provision in any of the statutes to which reference has been made expressly authorizing the appointment of agents or attorneys to discharge the duties that are imposed upon the several governmental officers mentioned in the several statutes to which we have referred.

By chapter 122 of the Laws of 1883 it was provided, viz.: “ All votes in town meetings authorizing the raising of money or incurring any town liability exceeding five hundred dollars shall be by ballot;” and the 2d section of that act provided that the town cleric shall give twenty days’ notice, posted in five conspicuous places, of any proposed appropriation or tax for the raising or borrowing of money, etc. The 2d section was amended by chapter 82 of the Laws of 1885, providing that the notice to be given by the town clei-k shall be for five days only. It is contended that the resolution of the town passed in 1888 is invalid because the votes thereon were not taken as prescribed in section 1 of the statute of 1883, by ballot. If force is to be given to that vote or the action of that town meeting establishing a liability on the part of the town to pay the relator, then it seems that it falls within the direct language of section 1, as it is there provided that all votes “ incurring any town liability exceeding five hundred dollars shall be by ballot.” Such seems to have been the construction put upon the provisions of the section by the relator as well as by the board of audit; for thereafter an application was made to the board of supervisors of the county to legalize or confirm the action of the town board in 1888 under the provisions of chapter 326 of the Laws of 1885. In the last-mentioned act power was given to the board of supervisors so that they could “by a two-thirds vote of all the members elected thereto, legalize the informal acts of any town meeting in raising money for any purpose for which such money is authorized to be raised by law, and by like vote to legalize the irregular acts of any town officer,” etc. Upon a full hearing before the board of supervisors of the application to legalize the action of the town board and to place the claim presented by the relator upon the schedule of the town, after a full consideration of the whole matter relating to the merits of the relator’s claim, as well as to the sufficiency of the resolutions and authority claimed to have been conferred, the board of supervisors refused to legalize the action of the town board by sanctioning the resolution of 1888, and refused to audit and allow the claim of the relator. The conclusion seems to follow, therefore, from the foregoing state of facts, that the town board has rejected the claim of the relator as well as the board of supervisors, and that there is no authority warranting the town board in auditing and allowing the claim of the relator.

In People ex rel. Myers v. Barnes (114 N. Y. 317) it was held: The term audit ’ as applied to the action of a board of town auditors, means to hear and examine; it includes both the adjustment or allowance and the disallowance and rejection of an account,” and in that case it is said that the jurisdiction of the board of town auditors over claims is not only original, but its decision is conclusive until reversed or modified by another court in the manner prescribed by law,’ i. e., in proceedings by certiorari,” and near the close of the opinion in that case it’ was said: The relator has failed to establish by the evidence contained in the record the absolute liability of the town for the whole or part of any one of the claims,” and for that reason the case did not fall within that class of cases where there is a statutory liability creating legal charges against a town as in the cases of People ex rel. Johnson v. Board of Supervisors of Delaware Co. (45 N. Y. 196) and People ex rel. Thurston v. Town Auditors of Elmira (82 id. 80).

In People ex rel. Durant Land Imp. Co. v. Jeroloman (139 N. Y. 17) it was said that a mandamus is only granted in the sound discretion of the court. (See, also, People ex rel. Millard v. Chapin, 104 N. Y. 96.) Nothing is found in the case of Wells v. Town of Salma (55 N. Y. St. Repr. 95; S. C., 71 Hun, 559) inconsistent with the views already expressed, as in that case the town board did not act upon tbe claim,” and it was, therefore, said that what took place before the board was not an adjudication that formed a bar to any further proceedings on the part of the plaintiff. "We think the action of the Special Term denying the writ should be sustained.

MartiN and MerwiN, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    Addie S. Rutherford, Appellant, v. Henry C. Soop, as Executor, etc., of John M. Rutherford, Deceased, Respondent.

      Statutory reference— Code of Giml Procedure, § 2718, as amended by chapter 686 of 1898, does not require pleadings — neither'an answer nor a bill of particulars ordered.

    ¡lection 2718 of the Code of Civil Procedure, as amended by chapter 686 o'f the Laws of 1898, does not change the existing rules in regard to the reference, of disputed claims against the estates of decedents. The claim, the rejection thereof and the stipulation to refer are to he treated as superseding the necessity of pleadings on either side, and the party rejecting the claim is at liberty to assert any defense thereto.
    Such section as amended does not require either party to furnish pleadings, and, although such section provides that “ on the entry of such order the proceeding shall become an action in the Supreme Court,” what has then taken place in relation to the issue between the parties remains in full force and vigor. The plaintiff is not required to serve a complaint nor the defendant an answer. The distinction between statutory references and others which are inherent in the nature of the proceeding is not obliterated by the general language of the statute giving referees therein the same powers possessed by referees in actions.
    Where a disputed claim against the estate of a decedent is referred under the statute, the refusal of the Special Term, upon the motion of the plaintiff, to order the defendant to serve an answer is proper.

      Semble, that the rule is the same as to the service of a bill of particulars.
    Appeal by the plaintiff, Addie S. Rutherford, from an order of the Supreme Court, made at the Chenango Special Term and entered in the office of the clerk of the county of Delaware on the 8th day of January, 1894, denying the plaintiff’s motion to compel the defendant to make a specific answer under oath to the plaintiff’s claim, and requiring the defendant “ to make and serve upon the plaintiff herein a duly verified amended answer herein setting forth and separately stating all defenses claimed to be made by the said defendant to the matters alleged in the plaintiff’s complaint herein; or that the defendant fully and fairly apprise, in writing, the plaintiff of all grounds upon which he will insist on the trial of this action in opposition to the above-mentioned claim of the plaintiff ; or that the defendant fully and fairly apprise the plaintiff of his reasons for disputing the said claim.”
    A claim against the testator was exhibited to the executor on the 20th day of April, 1893, and a notice of the dispute of the claim was served on the 28th of April, 1893 ; the agreement to refer was signed October 13, 1893, and was approved by the surrogate October 16, 1893. The claim as made was as follows:
    “ The Estate of JohN-M. Rutherford, Deceased.

      “ To Mrs Addie S. Rutheefobd. Dr.

    “To board, lodging, washing, mending, clothing, use of rooms, care and nursing during sicknesses and other occasions of and for the said deceased and his wife, from November 20, 1880, to and including January 28, 1893, eleven years, one month and twenty-eight days................. $10,000 00
    “ To services rendered the said deceased in assisting in the care of his business during the same period. 2,000 00
    $12,000 00
    “ Upon which the following payments have been made:
    Oct. 27, 1885 ...................... $30 00
    July 16, 1890..................... 10 00
    Nov. 27, 1890...................... 20 00
    - 60 00
    $11,940 00”
    Subjoined to the claim was the affidavit of the plaintiff in the usual form in such cases, sworn to the 20th ’ day of April, 1893. The notice served by the executor was in the following language:
    “ To Mrs. A. S. Rutheefobd :
    “ Toil will please take notice that I doubt the justice and validity of your claim of $1-1,940 against the above-named estate, and I do hereby dispute the same, and offer to refer it under the statute to some suitable and proper person as referee, to be approved by the surrogate.
    “ I-I. C. SOOP, Executor.”

    Thereafter an instrument reciting the presentment of the claim and the dispute and rejection thereof was signed, in which instrument it was stated and agreed that “ the said matter in controversy be referred to Hon. William O. Lamont, of Cobleskill, N. Y., Counselor. at law,- as sole referee to hear and determine the same. Dated Oct. 13, 1893.” In the affidavit presented in behalf of the defendant at the Special Term it was stated that the defendant demanded a bill of items, but no itemized account had been presented or any bill of particulars served, and the executor added “ That deponent cannot safely make or serve a verified answer to the claim or complaint of the above-named plaintiff until he is furnished with an itemized account of such claim, showing when such cause or causes of action accrued, what the services rendered were for and by whose request, and the extent and character of the business transacted by said plaintiff for the said John M. Rutherford.” In the memorandum prepared by the judge who heard the motion at Special Term he said: “I do not think the court has the power to grant the relief which the plaintiff here asks. * * If I am wrong in my judgment of the power of the court, the same considerations would lead to the refusal to exercise the discretion of the court to grant the plaintiff’s request.”

      Robert T. Johnson, for the appellant.

      F. M. Andrus, for the respondent.
   Hardin, P. J.:

In Bucklin v. Chapin, Administratrix (1 Lans. M3), it was held that a reference under the statute stands in place of an action, and the entry of an order to refer must be deemed its commencement.

In Tracy v. Suydam (30 Barb. 110) it was held that where parties agree to refer under the statute “ the agreement to refer need not notice matters of defense to the claim. The account presented is, in effect, the plaintiff’s complaint, and there being no pleadings, and no provision in the statute for pleadings, the defendant is limited to no particular defense; and, consequently, any and every legal defense against the claim must necessarily be available;” And it was also said in that case: “And every species of legal proof adapted to show the injustice of the claim, or its invalidity as a whole, or in degree or amount, is admissible.” And the executors are “ at liberty to make any defense that their testator or intestate could himself make, if alive, and the same were properly pleaded, in an action upon such claim.”

In Roe v. Boyle (81 N. Y. 301) a similar reference had been ordered, and the court said: “ This is not an ordinary proceeding It is specially regulated by statute. (2 R. S. 89, 90.) In cannot be commenced by summons. It can only be commenced by the consent of the parties and the approval of the surrogate. It can be tried in no other way than before a referee. There are no pleadings, and the representatives of the estate proceeded against can prove against the claim any defense which they have without pleading it in any form.”

In Mowry v. Peet (88 N. Y. 454) it was said that “ In trying and adjudicating upon these matters which are within the scope of the reference, the statute (2 R. S. 88, § 36) confers upon the referee and the court the same powers as if the reference had been made in an action. Rut the proceeding is not an action.”

Section 36 of the Revised Statutes (Vol. 3 [Yth ed.], p. 2299) provided for an agreement being entered into and for the entry of an order; and section 37 provided that the referee should proceed to hear and determine the matter, and that the proceedings should be the same in all respects, and the referee should have the same powers and be entitled to the same compensation and subject to the same control “ as if the reference had been made in an action in which such court might, by law, direct a reference.” In references under that statute it was held by the Court of Appeals in two cases that a bill of particulars could not be required (Townsend v. N. Y. Life Ins. Co., 4 N. Y. Civ. Proc. Rep. 403; Eldred v. Eames, 115 N. Y. 403), and in the latter case it was held that the referees “ could not change the items of an account presented and referred. The exercise of such power by the referee would enable a claimant to obtain a reference of claims against an estate without the consent of the defendant or the approval of tbe surrogate, wbicb is made by tlie statute tlie condition of such a proceeding. It is the claim which is rejected by the executor that may be referred and none other.”

In Gilbert v. Comstock (93 N. Y. 484) it was held that, prior to the Code of Civil Procedure, “ a contestant of a claim presented by an executor against the estate was not required to present a written answer or formal objections; the claim was open to any answer or defense, and was subject to be defeated if, at the testator’s death, the Statute of Limitations had run against it.”

In chapter 686 of the Laws of 1893, approved May 11, 1893, section 2Y18 of the Code of Civil Procedure was amended, and, as amended, contained the following language: “ If the executor or administrator doubts the justice of any such claim, he may enter into an agreement in writing with the claimant to refer the matter in controversy to one or more disinterested persons, to be approved by the surrogate. On filing such agreement and approval in the office of the clerk of .the Supreme Court in the county in which the parties or either of them reside, an order shall be entered by the cleric referring the matter in controversy to the person or persons so selected. On the entry of such order the proceeding shall become an action in the Supreme Court. The same proceedings shall be had in all respects, the referees shall have • the same powers, be entitled to the same compensation, and subject to the same control as if the reference had been made in an action in which such court might, by law, direct a reference.”

It is contended by the learned counsel for the appellant that immediately upon the entry of an order for a reference “ the matter became and was an action in the Supreme Court in every sense and in respect to all proceedings,” and in support of his contention he calls our attention to Adams v. Olin (29 N. Y. Supp. 131; S. C., 78 Hun, 309), and the judge who delivered the opinion in that case in respect to a question of costs stated that the proceeding ceased to be a special proceeding and became an action and was to be tried as such in respect to all subsequent proceedings. "We find nothing, however, in the opinion which indicates that the section was construed in any respect, except so far as it relates to a different rule as to costs from the one existing under the Revised Statutes. Nor do we find anything in the language of the section which indicates an intention, on the part of the Legislature to overturn the well-settled rule as appears by the cases to which we have already referred, and numerous other cases, where it has obtained in regard to such references. We are of the opinion that the claim, the rejection thereof and the stipulation to refer are to be treated as superseding the necessity of pleadings on either side and that the party rejecting the claim is at liberty to assert any defense, and that nothing is found in the section as amended which requires either party to furnish pleadings, and that the contention of the appellant is unsound and the conclusion reached at the Special Term was correct. Although the statute in terms provides that on the entry of such order the proceeding shall become an action in the Supreme Court,” we think what has transpired in relation to the issues between the parties remains in full force and vigor, and that neither is the plaintiff required to serve a complaint nor the defendant an answer. We may appropriately repeat the language used in Eldred v. Eames (supra), where it is said: It is the claim which is rejected by the executor that may be referred and none other. If the power of amendment is allowed, the whole subject of the controvei-sy may be changed during the trial, to the manifest detriment of the defendant and in. violation of statutory authority, to order a reference. The trial might thus be had upon claims that were not presented to or rejected by the executor and whose reference was never approved by the surrogate. Tírese conditions are made by the statute' essential to the power to refer, and cannot be dispensed with or subverted. The distinction between statutory references and others, which are inherent in the nature of the proceeding, is not obliterated by the general language of the statute giving referees therein the same powers possessed by referees in actions.” The plaintiff has availed herself of a provision of the statute for a reference with a view, doubtless, of obtaining a more summary determination of her claim, and it must be assumed that such course was adopted for proper reasons and with the expectation that the provisions of law would apply to such a reference. If she had preferred to have the rules and practice in actions apply from the beginning to the end of her efforts to recover her claim, she might have brought an action instead of joining with the executor in an agreement to refer. (Dryer v. Brown, 10 N. Y. Supp. 52; S. C., 5 id., on first appeal, 486.) We are- of tlie opinion that tbe Sjjeeial Term properly refused to order tbe defendant to serve an answer or deliver a bill of particulars.

Mabtin and Mekwin, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Merwin, J.:

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    The National Cash Register Company, Appellant, v. Harry C. Coleman, Respondent.

      Conditional sale —leviable interest in the property sold — ■ a judgment for the unpaid purchase price does not affect the vendor’s title — mortgagee in possession of personal property.

    A vendor delivered to a vendee a casn register in pursuance of a written contract whereby the vendee agreed to pay a specified sum therefor, of which a certain amount was to be paid in cash, and the balance in monthly payments to be made thereafter. It was further provided therein that, in case of any default in the making of any.payment, the vendor might take possession and remove the property, and the balance of the purchase price should at once become due and payable. It was also provided that the title to the property should not pass until it was paid for, but should remain in the vendor until * that time.

      Held, that the arrangement between the parties was a conditional sale, and was valid;
    That the title to the cash register did not pass as between the parties, and that the purchaser had no leviable interest in the property until the purchase money was fully paid;
    That the recovery by the vendor of a judgment for the unpaid portion of the purchase price due on such property, after taking possession thereof, as long as it remained unsatisfied, did not affect the title of the vendor in the property.
    Where a mortgagee is in possession of personal property the mortgagor has no leviable interest therein; he has only an equity of redemption which is not the subject of seizure and sale on execution.
    Appeal by tbe plaintiff, The National Cash Register Company, from an order of tbe Supreme Court, made at tbe Onondaga Special Term and entered in tbe office of tbe clerk of tbe county of Onondaga on tbe 6th day of October, 1894, granting tbe defendant’s motion to vacate and set aside tbe return of an execution issued upon tbe judgment recovered by tbe plaintiff against tbe defendant.

      Miller, Oridley c& Pratt, for tbe appellant.

      Albert T. Benedict, for tbe respondent.
   Merwin, J.:

In November, 1892, tbe'plaintiff delivered to tbe defendant a cash register, in pursuance of a written contract signed by tbe defendant, by which be agreed to pay therefor tbe sum of $115, of which thirty dollars was to be paid down in cash and ten dollars monthly thereafter, and it was provided that in case of default in making any payment the plaintiff might take possession of and remove the register, and the balance of the purchase price should at once become due and payable. It was also in the writing agreed that the title to the register should not pass until the same was paid for in full, and should remain -in the plaintiff until that time. Payments to the amount of $100 were made upon the contract, and then default was made. The plaintiff thereupon took possession of the register and still has it. Soon after taking possession the plaintiff brought suit against the defendant for the balance of the purchase price, being the sum of seventy-five dollars, and on the 7th of August, 1894, recovered judgment therefor. An •-execution was issued thereon to the sheriff of Onondaga county, and by him returned wholly unsatisfied on the 5th of September, 1894. Thereafter the plaintiff commenced proceedings against defendant supplementary to execution, and then the defendant moved at Special Term to set aside the return of the execution, and the order appealed from was made. The ground for setting aside the execution was stated in the order to be that the defendant has a leviable interest in the register, and that the sheriff did not levy upon the same because he was informed by the attorneys for the plaintiff that the defendant had no interest subject to levy therein.”

The arrangement between the parties was a conditional sale, and there is no doubt about its validity. (Frank v. Batten, 49 Hun, 94, and cases cited.) The title, as between the parties at least, did not pass. (Herring v. Hoppock, 15 N. Y. 409; Comer v. Cunningham, 77 id. 397.) In such a case, as it has been held in numerous cases, the purchaser has no leviable interest until the purchase money is .fully paid. (Strong v. Taylor, 2 Hill, 326; Herring v. Hoppock, supra; Cole v. Mann, 62 N. Y. 1; Burchell v. Green, 6 Misc. Rep. 236, affd. in 80 Hun, 602; Freeman on Executions, § 124, and cases cited.) The recovery of the judgment, as long as it remained unsatisfied, did not affect the title of the plaintiff in the property. (Hilliard on Sales, 23; Root v. Lord, 23 Vt. 568; Vaughn v. Hopson, 10 Bush. 337.) In Brewer v. Ford (54 Hun, 116, 120) it is said: “ The right asserted by the plaintiff, that under the contract he may retain the title to the property and at the same time enforce the vendee’s promise to pay the purchase price, are not inconsistent, and both propositions have their foundation in the agreement, which was in all respects lawful as between the parties thereto.” (See, also, Marvin Safe Co. v. Emanuel, 21 Abb. N. C. 181, and note at page 197.) There is nothing in the case to indicate that the plaintiff has waived any of its rights.

If, as the defendant suggests, the plaintiff is, to be treated as a mortgagee, the defendant would have no leviable interest in the property, as the defendant is in default and the plaintiff is lawfully in possession. The defendant would have only an equity of redemption, which is not the subject of seizure and sale on execution. (Nichols v. Mead, 2 Bans. 225.)

If the defendant claims that the right of plaintiff to sue for and recover the balance of the purchase price was affected by its retaking possession of the property, that was a matter to be raised in the action, as the retaking was before it was commenced.. It is not a question that can be considered here.- "VYe are referred to no authority which requires the plaintiff to have its lien, if it be called that, foreclosed by allowing the property to be sold on the judgment, which we assume it had a right to recover for the balance of the purchase money. It has a right to collect, if it can, its judgment in the ordinary way. It only seeks to recover its debt; it does not claim to hold the register after the debt is paid.

"We fail to see how it can legally be said that the defendant has any leviable interest in the register. It follows, therefore, that the order of the Special Term cannot be sustained.

HaediN, P. J., and Martin, J., concurred.

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


author: Mervin, J.:

text:
    Fitz Boynton and Another, Respondents, v. Ophelia E. Squires, Appellant, Impleaded with Another.

      Sm’iAces for a maoried woman — her liability for goods sold — allegation of joint liability where the obligation is several.

    When services are rendered for the benefit of the separate estate of a married woman with her knowledge, the presumption is that they were rendered at her request.
    The fact that certain goods sold were charged to the husband does not necessarily relieve the wife from liability therefor, if the vendor did not know of her ownership of the property for the benefit of which the goods sold were purchased. The fact that the complaint in an action charges a joint liability of two defendants does not relieve one of such defendants, appealing from the judgment rendered against her therein, if the facts warranted the finding that she was individually liable.
    Appeal by the defendant Oplielia E. Squires from a judgment of the County Court of Cortland county in favor of the plaintiffs, entered in the office of the clerk of the county of Cortland on the 17th day of September, 1894, upon the decision of the court affirming the judgment of a justice of the peace of the town of Cortland-ville, Cortland county, N. Y., and also from an order entered in said clerk’s office on the 17th day of September, 1894, affirming the said judgment.

      E. E. Mellon, for the appellant.

      T. E. Courtney, for the respondents.
   Mervin, J.:

This action was commenced in Justice’s Court against the defend' ant and her husband, E. Frank Squires. The complaint was for goods sold and delivered; the main issue was whether the appellant was liable. There was a trial by jury and a verdict against both defendants. The husband did not appeal. The plaintiffs were in the drug business, and the recovery was for paints and oils sold by plaintiffs at their store and delivered to the two witnesses Galpin and Mullane in September, 1892, and taken by them on to a farm owned by the appellant, and there used in September, 1892, by the witness Galpin in painting the buildings on the farm. Mrs. Squires became the owner of the farm in July, 1892, and she with her husband moved on to it in December, 1892. She was there about the buildings while the painting was being done. It may be inferred that the painting was being done preparatory to the subsequent occupancy. The husband directed the men to get the goods of the plaintiffs, and they were charged to the husband. There is evidence that the husband did not direct how they should be charged. There is evidence tending to show that the plaintiffs did not know that the wife owned the farm. The witness Mullane worked on the farm from July to .December, 1892, and he testified that lie worked for the defendants, and that the husband hired him and paid him. The witness Galpin testifies that the husband hired him, and that in getting his pay he sued both defendants and recovered a judgment against both.

In Cutter v. Morris (116 N. Y. 310) it is said that when services are rendered for the benefit of the separate estate of a married woman, with her knowledge, the presumption is that they were rendered at her request. The same doctrine was laid down in Fairbanks v. Mothersell (60 Barb. 406). This case was referred to, but not overruled ill the case of Jones v. Walker (63 N. Y. 612), which is relied on by the appellant. (See, also, Mackey v. Webb, 25 N. Y. St. Repr. 308.)

In the present case, in view of the presumption referred to and of the evidence in the case, it was for the jury to say whether the painting was done at the appellant’s request, and, if so, it would then also be a question of fact whether the materials were not ordered at her request and obtained by employees at work, either for her alone or for her in association with her husband.

The fact that the goods were charged to the husband did not necessarily relieve tin wife, as the plaintiffs did not know of her ownership. (Meeker v. Claghorn, 44 N. Y. 349; Foster v. Persch, 68 id. 400.) The fact that the complaint charges a joint liability does not relieve the appellant if the facts warrant a finding of individual liability. (Brumskill v. James, 11 N. Y. 294; Stimson v. Van Pelt, 66 Barb. 151.)

As the case stands we think that the judgment should be affirmed.

Hardin, P. J., and Martin, J., concurred.

Judgment affirmed, with costs.


author: Martin, J.:

text:
    The People of the State of New York, Respondent, v. Richard H. Stone, Appellant.

      Indictment — when demurrable— “ fertilizer certificate” under chapter 437 of 1890— a false certificate equivalent to no certificate — a crime cannot be established by implication.

    If an indictment does not conform substantially to the requirements of sections 875 and 876 of the Code of Criminal Procedure, it presents a ground of demurrer under section 383 thereof.
    Chapter 437 of the Laws of 1890 contains no provision making the act of affixing a false certificate to any package of fertilizers a crime, nor does it directly forbid such an act.
    Although, under such act, a false certificate would doubtless be regarded as no certificate, the offense created by such statute is that of omitting to attach the certificate required.
    The omission is the principal fact, and as purely statutory offenses cannot be established by implication, such omission cannot be inferred from an allegation in the, indictment that there was a false certificate affixed to a package of fertilizers.
    No essential element of a crime can be omitted from ■ an indictment without destroying the whole pleading. The omission cannot be supplied by intendment or implication, and the charge must be made directly and not inferentially or by way of recitals.
    Under the well-established rules of criminal pleading, the indictment of a person under the provision of chapter 437 of the Laws of 1890, making it a crime to offer for sale fertilizers without a certificate attached thereto, must contain an allegation of the name of the person to whom such offer to sell was made if the name is known, and,.if not known, the indictment must allege that the offer to sell was made to a person whose name was unknown.
    Appeal by the defendant, Richard H. Stone, from a judgment of the Court of Sessions held in and for the county of Tompkins, rendered on the 29th day of May, 1894, convicting him of the crime of offering for sale commercial fertilizers with false analysis attached, and sentencing him to pay a fine of $100 and to stand committed to the county jail of Tompkins county until such fine be paid, not exceeding 100 days.

      William N. Noble, for the appellant.

      J. H. Jenning-s, for the resjiondent.
   Martin, J.:

The indictment in this case was presented by the grand jury at a term of the Oyer and Terminer held in and for the county of Tompkins on the 28th day of October, 1893. It was sent to the Court of Sessions for trial, and was as follows:

Court of Oyer and Terminer of the County of Tompkins.
“ The grand jury of the county of Tompkins, by this indictment, accuse Richard H. Stone, of the town of Ulysses, in the county of Tompkins, of the crime of offering for sale commercial fertilizers with false analysis attached, committed as follows: The said Richard H. Stone, on the 1st day of January, 1892, at the town of Ulysses, in the county of Tompkins and State of New York, and at divers and various other times between- that date and the date of the finding of this indictment, at the town of Ulysses, in the county of Tompkins and State of New York, willfully and unlawfully did have in his possession as if for sale, and did offer and expose for sale, to be used in this State, commercial fertilizers contained in packages, on which said packages was printed and attached an analysis purporting to state the percentages of phosphoric acid, potash and ammonia contained in said packages, and which said analysis, so printed on said packages as aforesaid, was accompanied by an affidavit stating that said analysis was a true representation of the contents of said packages, while in truth and in fact said analysis so attached to said packages of commercial fertilizers as aforesaid did not contain a true representation of the contents of said pack-* ages of commercial fertilizers, in that said packages of commercial fertilizers aforesaid were deficient of the amount of phosphoric acid, ammonia and potash set forth and contained in said printed analysis attached to said packages by more than one-half of one per centum of phosphoric acid, and by more than one-half of one per centum of ammonia, and by more than one-half of one per centum of potash. And the said Richard H. Stone did so willfully and unlawfully offer and expose for sale, and have in his possession as if for sale, said packages of commercial fertilizers as aforesaid, he, the said Richard TI. Stone, well knowing that said packages of commercial fertilizers so offered and exposed for sale as aforesaid were deficient in the amount of phosphoric acid, ammonia and potash as above set forth, and that at the time and times hereinabove mentioned, the selling price of said commercial fertilizers was ten dollai's per ton or more, and that said selling price of ten dollars per ton or more was fixed and asked by said Richard H. Stone, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity.
“ J. II. JENNINGS,
“District Attorney.”

Upon this indictment was the following indorsement: Court of Oyer and Terminer. The People against Richard Stone. Indictment for offering for sale Commercial Fertilizers with false analysis attached. J. H. Jennings, District Attorney.”

To the indictment the defendant interposed a demurrer. The objections raised thereby, briefly stated, are as follows:

1. That' the indictment does not conform substantially to the requirements of section 275 of the Code of Criminal Procedure, in that it does not contain a plain and concise statement of the act constituting the crime;

2. That it does not conform substantially to the requirements of section 276 of the Code of Criminal Procedure, in that it does not contain the name of the crime charged or any brief description of it as it is given by statute;

3. That the facts stated therein do not constitute a crime ;

4. That the statute (Chap. 437, Laws of 1890) does not make the violation of any of its provisions a crime;

5. That the grand jury had no jurisdiction to take cognizance of the matter; and,

6. That the statute is unconstitutional.

Chapter 437 of the Laws of 1890, which is entitled “ An act for the protection and education of farmers and manufacturers in the purchase and sale of fertilizers,” by its 1st section provides: “ All commercial fertilizers which shall be offered for sale, to be used in this State, shall be accompanied b,y an analysis stating the percentages contained therein of nitrogen, or its equivalent’ of ammonia, of soluble and available phosphoric acid, the available phosphoric acid either to be soluble in water or in a neutral solution of citrate of ammonia as determined by the methods agreed upon by the American Society of Agricultural Chemists, and of potash soluble in distilled water. A legible statement of the analysis of the goods shall be printed on, or attached to, each package of fertilizers offered for sale for use in the State; and where fertilizers are sold in bulk, to be used in this State, an analysis shall accompany the same, with an affidavit that it is a true representation of the contents of the article or articles.”

By section 3 it is provided: “ Whenever a correct chemical analysis of any fertilizer offered for salé in this State shall show a deficiency of not more than one-third of one per centum of nitrogen, or its equivalent of ammonia, or one-half of one per centum of soluble or available phosphoric acid, and one-half of one per centum of potash soluble in distilled water, such statements shall not be deemed false within the meaning of this act. This act shall ' apply to all articles of fertilizers offered or exposed for sale for use in the State of New York, the selling price of which is ten dollars per ton or higher, and of which they are part or parcel, and of any element into which they enter as fertilizing material, among which may be enumerated nitrate of soda, sxrlpliate of ammonia, dissolved bone black and bone black undissolved, any phosphate rock, treated or untreated with sulphuric or other acids, ashes from whatever source obtained, potash salts of all kinds, fish scrap, dried or undried, also all combinations of phosphoric acid, nitrogen or potash, from whatever source obtained, as well as all and every article that is or may be combined for fertilizing purposes.”

The 5th section declares: “ Every person, firm or corporation violating any of the provisions of this act shall, upon conviction thereof, for the first offense, be punished by a fine of not' less than fifty dollars, nor more than two hundred dollars; and for the second offense by doirble the amount, in the discretion of the court; such fines to be paid to the officer whose duty it is to enforce the provisions of this act, to be used by him for that purpose, and to be accounted for to the Comptroller.”

Section 6 provides: “The director of the New York State Agricultural Experiment Station at Geneva is charged with the enforcement of the provisions of this act, and shall prosecute in the name of the People for violations thereof; and for that purpose he may employ agents, counsel, chemists and experts, and the Court of Special Sessions shall have concurrent jurisdiction to hear and determine charges for violating the provisions of this act committed in their respective counties, subject to the power of removal provided in chapter one of title six of the Code of Criminal Procedure.” The Code of Criminal Procedure provides that an indictment must contain “ a plain and concise statement of the act constituting the crimes without unnecessary repetition ” (§ 275), and that the name of the crime be inserted, if it have one, or if it be a misdemeanor, having no general name, a brief description of it, as given by statute, stated, and the act charged as an offense set forth. (§ 276.) The appellant contends that these provisions of the statute were not complied with, and, hence, that his demurrer should have been sustained. If the indictment does not conform substantially to the requirements of sections 275 and 276, it is a ground of demurrer under section 323 of the Code of Criminal Procedure.

The particular grounds upon which the appellant rests his contention, that the indictment does not contain a plain and concise statement of the act constituting the crime, are : (1) That it is not alleged that there was not printed on or attached to the packages of fertilizer offered for sale to be used in this State, an analysis of the nitrogen or its equivalent of ammonia, of soluble and available phosphoric acid, and of the potash soluble in distilled water, as required by section 1 of the statute. (2) That it did not allege the name of the person to whom the goods were offered for sale, if known; and, if not, the fact that such person was unknown. (3) That it is not alleged therein that nitrogen or its equivalent of ammonia, of soluble or available phosphoric acid and potash, soluble in distilled water, were a part or parcel of such fertilizers, or of some element which entered into their composition. (4) That it is not alleged that methods (stating them) have been agreed iipon by the American Society of Agricultural Chemists for the determination of the solubility of available phosphoric acid.

An examination of the indictment renders it quite obvious that it was found and drawn upon the theory that the statute of 1890 made it a crime to affix a false certificate to any package of commercial fertilizer sold or offered for sale. By chapter 222 of the Laws of 1878 it was provided that, “ For affixing a false certificate to any barrel, sack, box or package of fertilizer, the party disposing of such barrel, sack, box or package, shall forfeit to the purchaser thereof the sum of two hundred dollars.” That statute was repealed by section 10, chapter 437, Laws of 1890. When we look at the statute of 1890 we find that it contains no provision whatsoever making such an act a crime, or directly forbidding it. The only reference in the statute to a false certificate is contained in section 3, which provides that where the deficiency is not more than one-third of one per centum of nitrogen or its equivalent of ammonia, or one-lialf of one per centum of soluble or available phosphoric acid, and one-half of one per centum of potash soluble in distilled water, such statement shall not be deemed false within the meaning of this act. This provision cannot, we think, be regarded as sufficient to make it a crime to affix a false certificate to a package of such fertilizer. The statute contains no words prohibiting the making of a false certificate, but only provides that when the deficit is but a certain per centum, the certificate shall not be regarded as false. Doubtless a false certificate would, under this statute, be regarded as no certificate, but if the deficiency was no greater than that mentioned, it would, under the statute, still be sufficient, and the penalty for selling without a certificate would not be incurred. Purely statutory offenses cannot be established by implication. (People v. Phyfe, 136 N. Y. 554.) It follows, therefore, that as there is no express provision in the statute declaring the making of a false certificate to be a crime, and as no crime is to-be implied from the provisions of section 3, the allegations in the indictment as to a false certificate are insufficient to charge the defendant with a crime.

We find in the indictment no direct allegation that the required certificate was not printed on or attached to the packages of fertilizer alleged to have been offered for sale. It is alleged that a false certificate was attached, but nowhere is it alleged that a true one was not also attached. The offense created by this statute is that of omitting to attach the certificate required. This omission was the principal fact and could not, we think, be inferred from the allegation that there was a false certificate. In The People v. Albow (140 N. Y. 130, 134) Andrews, Ch. J., in discussing the sufficiency of the indictment in that case, said: “A criminal charge may be and often is supported by inferences from facts which imply the existence of the principal fact constituting the offense. But the principal fact must be charged in the indictment. It is not sufficient to allege the facts from which an inference of the principal fact may be drawn, without charging the principal fact. The settled rule of criminal pleadings requires that all the elements which enter into the definition of an offense must be stated in the indictment. The strictness which formerly prevailed in respect to unessential matters in indictments, which often defeated the ends of justice, has been properly relaxed. But the rule that the offense must be charged in plain and intelligible language, and that the indictment must set forth all the essential elements of the crime, is and ought to be preserved alike for the protection of the accused and in the interest of the certain and orderly administration of the criminal law. It was said by Mr. Justice Field, in United States v. Hess (124 U. S. 483), in the case of an indictment under a statute of the United States for a fraudulent use of the mails, where essential facts were not averred, ‘ no essential element of the crime can be omitted without destroying the whole pleading. The omission cannot be supplied by intendment or implication, and the charge must be made directly and not inferentially, or by way of recital.’ This is a sound exposition of the principle governing criminal pleadings.” "W"e think the doctrine of this case requires us to hold that the indictment in the case at bar was insufficient because it did not directly charge the principal fact, which was, that the defendant offered for sale packages of fertilizer to which he had omitted to attach the certificate required by the statute.

The indictment also fails to allege the name of the person to whom the goods were offered for sale, or that his name was unknown. The recognized and well-established rules of criminal pleading required an allegation of the name of the person to whom such offer was made, if known ; if not, an allegation tliat they were offered to a person whose name was unknown. In People v. Burns (53 Hun, 274), where there was an indictment for selling and exposing for .sale impure milk, it was held that it was essential to the validity of such an indictment that it should allege to whom the milk was sold by tlie defendant, or, if the purchaser was unknown, that fact should be alleged in the indictment. In the opinion in that case it is said: “ The act sought to be charged was the sale of milk of a kind prohibited by said statute. To constitute such sale there must have been a purchaser, and the defendant was entitled to be informed by the indictment who such purchaser •was, so that he could be prepared to disprove such sale upon the trial, if it had not been made as alleged. The omission of such statement in the indictment constituted a material defect, as without it the defendant would be liable to surprise upon the trial, and quite likely to be prejudiced by such omission. The defect, therefore, must be-regarded as matter of substance, and not merely of form, as it was the right of the defendant to be informed not merely of the crime charged, but also of the act which constituted it.” (See, also, People v. Gregg, 59 Hun, 107; People v. Olmsted, 74 id. 323; People v. Pillion, 78 id. 74; People v. Dumar, 106 N. Y. 502, 509; People v. Stark, 136 id. 538.) In the Stark case, which was an indictment for libel, it was held that where an indictment contained no averment as to the manner of publication, or of the person or persons to whom it was addressed, or by whom it was seen or read, or that the names of such persons were unknown to the grand jury, the indictment was defective and a conviction under it error. In the opinion in that case it was said: “ Tested even by the liberal rule of the Criminal Code, I do not think such an indictment contains a plain and concise statement of the act constituting tlie crime. So far as the manner of publication is concerned, it does not allege any fact, but a mere conclusion of law. It was held by this court, in People v. Dumar (106 N. Y. 502), that the indictment must both charge the crime and state the act constituting it, and the principal reason for requiring a specific statement of the act is the right which the accused has to be informed of the precise accusation which he is required to defend.” The doctrine of the cases cited seems to be conclusive upon this question and to uphold the defendant’s contention that the indictment was defective in not stating the name of the person or persons to whom the packages of fertilizers were offered for ■ sale, or, if their names were not known, in not alleging that fact.

As the judgment herein must be reversed for the errors already pointed out, it is unnecessary to examine the other questions presented by the appellant.

Hardin, P. J., and Merwin, J., concurred.

Judgment of conviction and interlocutory judgment disallowing the defendant’s demurrer reversed, and after such judgment of reversal is entered in the judgment book, a certified copy of such' entry shall be forthwith remitted to the clerk of Tompkins county, with whom the original judgment roll is filed in accordance with the provisions of section 54J of the Code of Criminal Procedure.