text:
    THE UNION MANUFACTURING CO., Respondent, v. AARON H. BYINGTON, Appellant.

      Referee's report — exceptions to—evidence — morn dedm'ations of witnesses—admissibility of—depositions—memoranda.

    Where an exception to a ruling or direction of a referee is specific, resting on special grounds and reasons, no objection to the ruling or direction,, except those so specified, will be considered upon appeal. Upon the cross-examination of one of defendant’s witnesses, an affidavit made by the witness several years before, and which tended to contradict the evidence given by him on the trial, was presented to him by plaintiff’s counsel and he admitted the' signature to be his, and that his memory was fresher at the time it was made than at the time of his examination; plaintiff’s counsel declined to allow the defendant’s counsel to see the contents of the affidavit, and refused to put it in evidence. At a later period of the trial he offered it in evidence, and, against the objection of the defendant, it was received. Held, that this was error, as the defendant had been prevented from examining the witness concerning its contents; that, before he could be affected by the affidavit which his witness had made, without his privity or knowledge, he was entitled to show the circumstances under which it was made, the reasons existing for making it, and any other matter that might have impaired the force of its unexplained statement.
    An affidavit made by one of the plaintiff’s witnesses some years before, and corroborating the testimony given by him upon the trial, was received. Held, that this was error; that it was simply the declaration of the witness, and the fact that it was sworn to, did not render it admissible.
    Neither of the affidavits was admissible as a memorandum; each was made several years after the occurrence, not with a view of making a memorandum of it, and the witnesses themselves were able to testify from recollection on the subject to which the affidavits related. ,
    Appeal from a judgment, in favor of the plaintiff, entered upon the report of a referee.

      This action was brought to recover the sum of $3,131.56, and interest from May 22,1862, for a balance on goods sold and delivered to the defendant. The answer denied the purchase, and set up two counter-claims, one for commissions and the second for use and occupation of a portion of defendant’s premises for storage.
    The plaintiff replied, denying all the allegations in the answer respecting the counter-claims. The case was referred to a referee to hear and determine. The referee reported in favor of the plaintiff, not for goods sold and delivered, but for money received by him as the agent of the plaintiff, in selling the goods described in the complaint.

      Wm. Henry Arnoux, for the appellant.
    The referee erred in adjudging that on the pleadings and proofs, the plaintiffs were entitled to recover; the judgment must be secundum allegata et probata. (Ferguson v. Ferguson, 2 N. Y., 361; Kelsey v. Western, 2 id., 500-506; Wright v. Delafield, 25 id., 266; James v. McKernon, 6 Johns., 563; Lyon v. Tallmadge, 14 id., 516; Crocket v. Lee, 7 Wheat., 522; Woodruff v. Dickie, 31 How., 164.) The affidavit of Colonel Hathaway should not have been admitted without an opportunity to cross-examine him. (Lee v. Potter, 2 Keyes, 543; Pendleton v. Empire Stove Co., 19 N. Y., 13; Newcomb v. Griswold, 24 id., 298; Hubbard v. Briggs, 31 id., 518; Romertze v. East River N. Bank, 49 id., 577; Gaffney v. People, 50 id., 416.)

      Luther R. Marsh and R. Rowley, for the respondent.
   Daniels, J.:

The action was brought for the price of goods, alleged to have been sold and delivered by the plaintiff to the defendant, and the recovery had for the proceeds of goods received and sold by the defendant as the plaintiff’s agent.

This, it was insisted upon at the argument, pould not be lawfully allowed, but, as the exception taken to the referee’s direction, that the plaintiff should have judgment for the amount found to be due from him, is specific, resting on special grounds and reasons, and this objection is not among them, that point is not presented for consideration. By specifying particular objections to the recovery directed, and omitting the one so elaborately argued, the latter was necessarily excluded from the case.

During the trial the defendant claimed commissions, as such agent, for cloth claimed to have been sold by him, for the plaintiff, to the quartermaster of the State of Connecticut, for the manufacture of soldiers’ overcoats, and afterwards delivered to, and manufactured by, the firm of Day, Griswold & Co. The amount claimed for those commissions, was the sum of $1,374. The defendant’s evidence, as a witness, tended to prove the justice of this claim. He stated that the sale was made by his exertions as the plaintiff’s agent, and, if he was right in that statement, he was entitled to his commissions for making it.

John M. Hathaway was examined as a witness in the defendant’s behalf, for the purpose of sustaining the claim that the sale was made by means of his agency. During the progress of the cross-examination of this witness, an affidavit was presented to him by the plaintiff’s counsel, and he stated that the signature to it was his, and that his memory was fresher in 1864 than at the time of his examination. The plaintiff’s counsel declined, to allow the defendant’s counsel to examine or sec the contents of the affidavit, and refused to put it in evidence. At a later period in the trial, it was offered in evidence, and then objected to by the defendant, for the reasons that the plaintiff’s counsel refused to put it in' evidence when the witness was on the stand, or permit it to be examined so that the witness could be cross-examined in relation to it. The objections were overruled and the affidavit allowed to be read, to which the defendant’s counsel excepted.- This affidavit was sworn to in March, 1864, while the trial took place in November, 1869, and, in substance, it showed that the sale was not produced through the intervention of the defendant’s agency.

The objection that it was improper, under the circumstances, as a contradictory statement of the evidence given by the witness, was not taken by the defendant. But the objection that he had been prevented from examining the witness concerning its contents, because the plaintiff’s counsel withheld it while the witness was under examination, was taken, and it was an objection which the referee ought to have sustained. Before the defendant could be affected by the affidavit which his witness had made without his privity or knowledge, he was entitled to show the circumstances under which it was made, the reasons existing for making it, and any other matter that might have impaired the force of its unexplained statements. This he was deprived of, by the affidavit’s being withheld from the possession or inspection of his counsel. It was both unfair and unjust, and prevented him from availing himself of an important legal right.

Another witness was examined on the same subject, on behalf of the plaintiff, who had previously made an affidavit embodying the subject upon which he gave evidence, and that was offered by the plaintiff, and received by the referee, under the objection that the former declarations of the witness were not evidence for the plaintiff. The defendant objected to the ruling by which this affidavit was allowed to be read. The affidavit showed that the witness had sworn substantially the same in March, 1864, when it was taken, as he did upon the trial,- and his statements, on both occasions, tended to disprove the validity of the demand, made for commissions on' account of the sale of the cloth for the overcoats. This affidavit contained simply the sworn declaration of the witness who made it. It was no less so by reason of the fact that it had been sworn to by the witness. It had no claim to admissibility, because the witness had sworn to the declaration which he made.

To entitle the deposition of a witness to be read in evidence, the formalities required to be observed by positive law, must appear to be complied with, and they secure the party, to be affected by the evidence, the privilege of cross-examination. Where such provisions are disregarded, the deposition, though taken under all other formalities, is not admissible as evidence.

There is no principle on which the admission of this affidavit, as confimatory evidence of that given by the witness during the trial, can be sustained. It was simply the declaration or admission of the witness, on a preceding occasion, of what he claimed to know concerning this portion of the controversy between the parties to this action, and it derived no force, as evidence, from the circumstance of its being sworn to, because of its ex parte and informal character. But, if it did, the statement would still be liable to the objection taken upon the trial, that it consisted only of the declarations of the witness, at a time when he was not in a position to be examined, as to their accuracy, by the party whose claim was proposed to be disproved by them.

As memoranda made by the witnesses, neither affidavit was proper. Each was made several years after the occurrence, not with a view of making a mere memorandum of it, and the witnesses themselves were able to testify from recollection on the subject to which the affidavits related. The latter circumstance, of itself, was sufficient to render them improper evidence as memoranda. Both these affidavits tended to disprove the claim made by the defendant. And, as it was rejected by the referee, they must be presumed to have had their appropriate effect in producing that result.

He has, therefore, been prejudiced by the rulings of the referee, allowing them to be read. In consequence of these rulings, there must be a new trial in the action, and for that purpose, it will be unnecessary to consider the other objections taken to the conclusions of the referee.

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

Davis, P. J., and Westbrook, J., concurred.

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

       1 Greenleaf on Ev., 12th ed., 589, § 552.

       Meacham v. Pell, 51 Barb., 65 ; Russell v. Hudson River Railroad Co., 17 N. Y., 134.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    ELLEN MURRAY and BERNARD McCAFFERTY, as sole surviving Executrix and Executor, etc., Respondents, v. SIMEON E. CHURCH, Impleaded with MARGARET LOUISE WOOD and others, Appellants.

      Practice—demwrer—executor—suit by.

    Where the plaintiffs were described in. the title of the cause as executrix and executor, and, in the body of the complaint, a good cause of action is completely alleged and set fo rth, but it appears to be in the plaintiffs’ own right, and not in their representative capacity, held, that a demurrer on the grounds that the plaintiffs had no capacity to sue, it not appearing from the complaint that they were executrix and executor, and that the complaint did not state facts sufficient to constitute a cause of action, was frivolous.
    Appeal from a judgment, entered in favor of the plaintiff, for the foreclosure and sale of the real estate described in the complaint, and from an order overruling demurrer as frivolous, and directing judgment for the plaintiffs.
    The defendant, Church, demurred to the complaint on the grounds:

      First. That the plaintiffs have not legal capacity to sue. It does not appear from said complaint that the plaintiffs have any authority to represent the estate of Peter Murray, deceased, as executrix or executor, or otherwise, or that there is any such estate.

      Second. That complaint does not set forth facts sufficient to constitute a cause of action.
    On the motion of thé plaintiffs’ counsel, an order was made at Special Term overruling defendant Church’s demurrer as frivolous, and directing judgment for the plaintiff, and referring the case to a referee to compute the amount due. Upon the coming in of his report, without further notice to the defendant, judgment of foreclosure was entered, and an allowance of two and a half per cent made to the plaintiffs. The facts are stated in the opinion.

      S. F. Church, for the appellant.

      Boardman c& Boardman, for the respondents.
   Daniels, J.:

The plaintiffs in the title of this action, described themselves as executrix and executor of the last will and testament of Peter Murray, deceased. And they then proceed, for the purpose of alleging a cause of action, to set out in the complaint, the execution and delivery by the defendants, Margaret L. and Henry Wood, to the plaintiffs, in their individual capacity, of a bond and mortgage to secure the sum of $5,500, with interest. They also show that the moneys secured and agreed to be paid, have become due, and that the same are wholly unpaid.

That the other defendants have some interest in, or lien upon the mortgaged premises, or some part of them,, which accrued subsequent to the lien of the mortgage. The mortgage is alleged to have been recorded, and judgment of foreclosure and sale is demanded. A good cause of action is completely alleged and set-forth in the complaint, but it appears to be in the plaintiffs’ own right, and not in their representative capacity.

If they had not described themselves as executrix and executor, no possible objection could be made to the cause of action alleged. It would then be as complete and perfect as any rules of pleading could require it to be.

The circumstance that they did so describe themselves, does not, in any manner, change the effect of the facts alleged.

That is merely a description of their persons; and, in view of the facts stated, it does not warrant the conclusion that the suit must be maintained by them in that capacity.

They were at liberty, notwithstanding that description, to rely upon a cause of action existing in their favor, in their own right; and, in doing so, their complaint, being sufficient in all other respects, was not demurrable on account of the fact that, in the title of the action, they describe themselves as having a representative character.

This point was very well settled by the case of Merritt v. Seaman, and the authorities referred to in the opinion of Judge Gteidley.

As the bond and mortgage were executed and delivered to the plaintiffs, and secured the moneys, mentioned, to" them, they did have the legal capacity to maintain the present action for the foreclosure of the mortgage, although they were executrix and executor, precisely as the title of the action stated them to be, and the facts set forth in the complaint, presented a' perfect cause of action in their favor. The demurrer presenting only these objections, was, therefore, clearly frivolous, and was properly overruled as such.

The allowance made, of two and a half per cent, was within the discretion conferred upon the court in this class of cases.

And there is nothing in the case, showing that it was improperly exercised on the present occasion.

But, if there were anything of that nature in the case, it would not aid the defendant appealing, because no exception was taken presenting it for consideration.

As no other objections are presented by the appeal, the judgment should be affirmed with costs.

Davis, P. J., concurred.

Judgment affirmed, with costs.

       2 Seld., 168.

       Code, § 309.


text:
    VERNON K. STEVENSON, Appellant, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Respondents.

      Statutes—provisions of, when held to he directory—chapter 408 of 1867.
    By chapter 403, of the Laws of 1867, Madison avenue was laid out and extended from Eighty-sixth, to One Hundred and Twentieth street; its precise location, width and extent being prescribed by the first section. By the second section, it was made the duty of the corporation counsel, within three months after the passage of the act, to take the necessary legal means to open the street. Held, that the provision, as to the time within which the proceedings should be commenced, was directory merely, and that the time mentioned was not essential to the validity of the proceedings, if they were, in all other respects, afterwards properly taken.
    The resolution of the common council, directing the corporation counsel to take proceedings to open the street, was not published in all the corporation newspapers prior to its adoption, as required by the charter. Held, that as the improvement was fully provided for by the act, and the proceedings taken conformed to it, though not instituted within the time required by it, they were valid and effectual without any resolution of the common couhcil, and the omission to publish it, as the law requires in other cases, in no way impaired the authority which the statute provided for extending the street.
    Appeal from an order sustaining a demurrer to the complaint.
    The plaintiff is the owner of certain lots fronting on Madison avenue, between Fifty-eighth and Fifty-ninth streets, in the city of New York, which have been assessed for the opening of Madison avenue, from Eighty-sixth street to One Hundred and Twentieth street.
    The plaintiff claimed that the assessment was void, and brought this action to have the defendants perpetually enjoined from enforcing or collecting the same.
    By the first section of chapter 403, of the Laws of 1867, a certain piece of land, -therein particularly described, “is hereby declared, for all legal purposes, to be one of jthe streets of said city, in like manner as if the same had been laid out by the commissioner, etc.” Section 2 is as follows: “ It shall be the duty of the counsel to the corporation- in the said city, within three months after the passage of this act, to take the necessary legal means to open, as a street, the said extension of Madison avenue.” The act took effect, April 16, 1867.
    On the 19th of February, 1868, the common council adopted a resolution, directing the counsel, to the corporation to take •the necessary legal measures to have Madison avenue opened according to law. In pursuance of this resolution, the proceedings were instituted, under which the present assessment was laid. The resolution was not advertised in the corporation newspapers, as required by the charter, prior to its adoption. The defendant demurred to the complaint, upon the ground that no cause of action was alleged therein. The demurrer being sustained, and the complaint dismissed, the plaintiff appealed.

      Oliver W. West, for the appellant.
    The provision of the second section, requiring proceedings to be commenced within three months, is mandatory. (Potter’s Dwarris on Statutes, 224; Adriance v. McCafferty, 2 Robertson, 153; People v. Schermer

      horn, 19 Barb., 559; State v. McLean, 9 Wis., 292; Webster v. Trench, 12 Ill., 302.) The failure to publish the resolution, was fatal to the assessment. (In re Douglass, 46 N. Y., 42.)

      E. Delafield Smith, corporation counsel, for the respondents.
    The provision of the statute, as to the time within which the street was to be opened, was directory. (People v. Allen, 6 Wend., 486; Gale v. Mead, 2 Denio, 160; U. S. Trust Co. v. U. S. Fire Ins. Co., 18 N. Y., 199; 5 Cowen, 269.)
   Daniels, J.:

By chapter 403, of the Laws of 1867, Madison avenue was laid out and extended from Eighty-sixth to One Hundred and Twentieth street; the first section of the act defined its precise location, width and extent, consequently, nothing further was left to be done but to open and improve it within such bounds, in order to render it serviceable to the public. And to attain that end, the counsel to the corporation was required, within three months from the passage of the act, to take the necessary legal means to open the extension as a street. No further or other proceedings, whatsoever, were prescribed for that purpose. And as those means were defined by preceding laws, no uncertainty existed as to what was required to complete the extension as a street. They required commissioners of estimate and assessment to be appointed; the statutory duties imposed upon them to be performed ; the subsequent confirmation of their proceedings; and the grading and paving of the extension by the respondent. That was the clear scope and design of all the act could possibly contemplate.

But the proceedings, required to be taken for that purpose by the corporation counsel, were not instituted until after the three months, mentioned in the second section of the act, had expired, and for that reason it is insisted, on behalf of the plaintiff, that his power to proceed at all, was extinguished. This was a proceeding required for the benefit of the public. Its object, as well as that of the statute, was to secure the opening of the extension as a street, for the use and convenience of the public; to create what seems to have been regarded by the legislature, and undoubtedly was, a public improvement. That, and nothing but that, was to be obtained under the provisions of the law. And it could not have been intended that the public should be deprived of the benefit of the improvement, if the officer, whose duty it was to proceed, neglected to do so within the three months mentioned, as long as no such result was declared to be the consequence of his omission. The act provided for the extension and opening of the street; that was its leading and paramount object, and, to secure that, required the corporation counsel to. take the requisite proceedings to ascertain and assess the expenses, within three months afterward. But it did not provide that the taking of the proceedings, within the period mentioned, should constitute a condition, on which the existence of the extension, as a street, should depend; nor that the proceedings should not be taken at all, unless they were taken within the time prescribed. And, as- long as the legislature imposed no such restriction, it is clear that the courts have no right to add it to the statutes.

In that state of the law, the time mentioned is not essential to the validity of the proceedings, if they are, in all other respects, afterward properly taken. It is the duty of the public officer, who is required to proceed within a specified period, to do so, and a willful neglect to do so, would probably be a misdemeanor on his part under the statutes of this State. But his neglect should not be allowed, under such a statute as this, to deprive the public of the benefit of a valuable improvement in an important street of the city. The settled rule of construction, requires no such consequence to be attached to «the violation of a legal duty of this description; on the contrary, the time mentioned, in the manner this was, is considered to have been intended by the legislature as directory merely, and that the enterprise itself should not fail by reason of neglect to comply with the requirement made in that respect; the essential object and purpose of the law are not allowed to be defeated by a circumstance of that description. The cases of People v. Schermerhorn and Adriance v. McCafferty are in no way in conflict with this principle. They were decided under different circumstances, requiring a different principle for their disposition. They depended upon the fact of notice, not the time within which it should he given; and the notices required, were also conditional in their nature.

The plaintiff’s property assessed, as benefited by the extension, fronted upon Madison avenue, between Fifty-eighth and Fifty-ninth streets. It was, therefore, not within the actual limits of the improvement made by the extension of the street. But that was not necessary, in order that it should be benefited by the extension of the street. Such an extension would ordinarily benefit property and enhance its value, situated upon other portions of the street than those included within the limits of the improvement. And so far as such benefit extended, an assessment for the expenses of the improvement, could be equitably and justly extended; whether it should be assessed or not, was a matter confided, by the express terms of a preceding statute, to the judgment and discretion of the commissioners. The only restriction imposed upon them, in that respect, was that which prohibited them from extending their assessment, for benefits derived from the improvement, beyond half the width of the block toward the next street or avenue from the street opened, straightened or improved. Assessments for benefits derived by property, situated upon the same street, can very properly be extended as far from the locality in which the improvement may be made, as its benefits may be actually enjoyed. How far that may be, must be necessarily confided to the judgment of the commissioners, so long as all reasonable bounds are not exceeded by them; and no reason exists for supposing that to have been done in the assessments made upon the plaintiff’s property.

As the improvement was fully provided for by the act of 1867, and the proceedings taken, conformed to it, though not instituted within the time when it was rendered the duty of the corporation counsel to commence them, they were valid and effectual without any resolution of the common council; and the omission to publish it, as the law requires in other cases, in no way impaired the authority which the statute provided for extending the street; and there being no want of authority in the commissioners to assess the plaintiff’s property, fronting upon the same street, for the benefit received by it from the improvement, no facts are shown by the complaint which will enable the plaintiff to maintain the present action. The order sustaining the demurrer was right, and it should be affirmed, with costs.

Davis, P. J., and Donohue, J., concurred.

Order affirmed, with costs.

       Vol. 1, Laws of 1867, p. 960.

       Id., § 2.

       Thomas v. Clapp, 20 Barb., 165, 167; Pond v. Negus, 3 Mass., 230; Cole v. Green, 6 Man. & G., 872, 890; Marchant v. Langworthy, 6 Hill, 646; 3 Denio, 526; Gale v. Mead, 2 id., 160; People v. Holley, 12 Wend., 481; People v. Peck, 11 id., 604; Jackson v. Young, 5 Cowen, 269; People v. Allen, 6 Wend., 486.

       19 Barb., 559.

       2 Robertson, 153.

         Laws of 1816, p. 77, § 1.


text:
    ADDISON P. SMITH, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.

      Statutes—eonsirueiion of— salary of police justice.

    In 1860, the duties of the police justices of the city of New York having been increased, the legislature enacted that, “for the additional duties imposed by this act, the common council or board of supervisors in said city and county, may increase the compensation of any officer mentioned herein, ” and, under this1 authority, the common council, in 1862, advanced the salary of the police justices to $5,000 a year. Held, that by thus advancing the salary, the authority created by the statute was exhausted, and both the common council and the board of supervisors were from that time powerless for further action in the premises; and that a resolution of the common council, passed in December, 1869, providing that then1 salary should be still further advanced to the rate paid to the city judge, $10,000 a year, was void.
    In 1870, the legislature enacted, that “ the mayor and comptroller are hereby authorized to fix the salaries of the civil justices of said city, not exceeding the salary now paid to the police justices of said city.” Held, that the unauthorized' increase of the police justices’ salaries, was not thereby legalized.
    Appeal from a judgment in favor of the plaintiff, recovered on a trial before the court.
    The facts appear in the opinion.

      John A. Strahan, for the appellant.

      Mbridge T. Gerry, for the respondent.
   Daniels, J.:

The judgment appealed from, was recovered by the plaintiff, as the assignee of James E. Coulter, one of the police justices of the city of New York, whose official term commenced on the 1st day of January, 1870; and it was rendered for the amount unpaid the assignee at the yearly salary of $10,000, for the year ending on the 1st of September, 1872. The recovery was resisted by the defendant, on the sole ground that the assignor was by law restricted to the salary of $5,000,; and whether he was or not, is the sole point required to be considered upon the present appeal.

In 1860, certain additional duties were imposed upon the police justices of the city of New York, and for that reason it was then enacted that, for the additional duties imposed,” “ the common council or board of supervisors in said city and county,” might increase the compensation of those officers. Under this authority, the common council of the city advanced the police justices’ salary to the sum of $5,000 in the year 1862.

This authority, by the terms of the act, was conferred to meet what was deemed to be a particular exigency, requiring the performance of but one single act. The object was to render the salary adequate as a compensation, for the services required to perform the increased duties assigned to the officer by the provisions of that statute. Those duties wére at once apparent from the terms contained in the law, and it required but one act to adjust the compensation reasonably due for their performance. By that act, it was contemplated that the compensation would be rendered reasonably sufficient, and when it was performed, it was undoubtedly supposed by the common council, that entire justice had been done in that respect. The object to be accomplished, required it should be performed at once; not that partial justice in this respect should be done at one time, and the performance of the full duty completed at another. It was not an authority to increase the compensation from time to time, but to adjust it in such a manner as would render it consonant to the changes then made by the law; and duty to the officer, as well as the plain intent of the law, contemplated but one' increase for that purpose. These are matters which have been ordinarily maintained under the authority of the legislature; and no reason exists for supposing that such a change in the system was designed, as would follow' a complete relinquishment of that authority. The fair import of the act,- as well as the purpose designed to be effected by this provision, is opposed to so broad a construction of its terms. In this respect, it was similar to the authority conferred upon commissioners to make an assessment, in the case of Williams v. Haines, which was held to be exhausted when that act was performed, although it proved to have been illegally done. And the case of People v. Woodruff maintains the same construction. By advancing the salary to the sum of $5,000, the authority created by the statute was exhausted, and both the common council and the board of supervisors were, from that time, powerless for further action in the premises.

After that authority had been exhausted by its appropriate exercise, and in May, 1869, the common council was prohibited from increasing the salaries of persons then in office, or their successors, except as provided by acts passed by the legislature.

But, notwithstanding the fact that the authority, given by the act of 1860, had been exhausted by the application and use of it, and the prohibition to the contrary, contained in the act of May, 1869, the common council did, in December of that year, provide, by resolution, that the police justices’ salary should be still farther advanced to the rate paid to the city judge, which was $10,000 per year. . This seems to have been a plain, unwarrantable usurpation of power, and the act, for that reason, was utterly void.

In April, 1870, it was enacted that the mayor and comptroller were authorized to fix the salary of the civil justices of the city, at an amount not exceeding the salary then paid to the police justices. And, from that circumstance, this unauthorized increase in the salary of the police justices, is claimed to have been from that time legalized. The argument, though plausible, is not deemed to be sound. The law of 1870 dealt simply with the fact, not with the authority under which it had come into existence. Ho attention was devoted to the latter circumstance, neither was the amount paid mentioned or defined. But, whatever that might be, wliether authorized or not, that was to constitute the limit on the authority to be exercised under its provisions. Upon so grave a matter as the unlawful assumption of official authority, the practice of the legislature is to use plain words, when a design exists to ratify or confirm. The object of this enactment, was to confer authority on two of the corporate officers of the city, to adjust the salaries of its civil justices. And, according to the terms made use of, that was the only object entertained. To confirm the unauthorized act of the common council of the preceding year, required something beyond that—at least some terms indicating the existence of such a purpose. This act contains nothing from which that can be supposed to be within its spirit or design; and, for that reason, under well settled mips of construction, it cannot be comprehended by the law.

Courts are required to construe statutes, where no different intention is manifested, by their terms, and the subject-matter to which they relate, according to the ordinary and popular meaning of the language in which they are made. And what cannot fairly be maintained to be within the signification of those terms, is not to be deemed to be within the statute. These laws are made for the public, and are required to be obeyed by its members, and no other rule is consistent with the substantial performance of the duties required to be observed under their provisions.

Under such a principle of construction, no well supported reason can be found for the conclusion that it was designed, by referring in this act to the fact of payment, to sanction and approve the authority on which the payment itself was made. Upon this subject, the comments of Judge Davies, in the decision of the case of the People v. Woodruff (supra), are peculiarly wise and appropriate. He there said that “ It is a dangerous principle to imply power when it is not conferred by legislative authority in clear and distinct terms. It is always competent for the legislature to speak clearly and without equivocation, and it is safer for the judicial department to follow the plain intent and obvious meaning of an act, rather than to speculate upon what might have been the views of the legislature in the emergency which may have arisen. It is wiser and safer to leave the legislative department to supply a supposed or actual casus omissus, than attempt to do it by judicial construction.”

Another objection to the construction of this statute, relied upon in behalf of the plaintiff, arises out of the circumstance that the confirmation of the act of the common council, in advancing the salary in 1869, was an object of a local legislative nature, and, as such, commonly, if not necessarily, made the subject of special legislative enactment. Certainly, such acts are not usually intended to be confirmed, when no expressions, indicating the existence of such a design, have been allowed to find their way into the law. Something more than a simple reference to the fact, unlawfully brought into existence, should be required to produce such a confirmation. If more than that be not required, then legislation is beset with risks, which, in this rapid age, must often be productive of injurious consequences, both to public and private interests. When such latitude of construction is adopted, as requires its support from conjecture and speculation, rather than the import of the terms employed in the laws, their administration will be rendered too uncertain to be consistent with the stability of substantial rights. The guide which safety, as well as reasonable uniformity, requires to be followed, is that which has been already mentioned of construing the laws by the ordinary signification of the terms made use of, without so far refining upon them as to exceed their meaning, in order to supply the necessities of some particular case.

The subject is not free from difficulty, as was well remarked by the learned judge before whom the trial was had. But the support supplied by the reference, made in the act of 1869, to the fact of payment, is altogether too shadowy in its nature to maintain the legality of the plaintiff’s demand.

The additional circumstance, that the legislature, in 1870, made the appropriation large enough to include the increase of 1869, in no way improves' the plaintiff’s case. The same objections exist to the inference that, by doing so, the legislature intended to confirm the illegal act of the common council, as have already been mentioned in considering the other provision of the statute. If the appropriation had, in terms, provided that the police justices should be paid the salary of $10,000, the case would be manifestly different from what it now is—an appropriation of a gross sum to pay salaries. The import of such an appropriation is, that the officers, who are to be paid out of it, are to receive what they have a lawful right to demand, and nothing beyond that. If the appropriation exceeds the sum necessary for that purpose, it does not follow that the officers, intended to be paid out of it, are entitled to have the excess divided between them.

The judgment should be reversed, and a new trial ordered, with costs to abide the event, unless the plaintiff consent, within twenty days, to reduce the recovery to the amount due at the rate of $5,000 per year, and the allowance made in the same proportion. And in case such consent be given, then the judgment, as so modified, should be affirmed, without costs of the appeal.

Davis, P. J., concurred.

Ordered accordingly.

       Laws of 1860, 1014, § 26.

       49 N. Y., 587.

       Id., 592, 3.

       32 N. Y., 355.

       Vol. 2, Laws of 1869, 2133, § 11.

       Laws of 1870, vol. 1, p. 888.

       Newell v. People, 3 Seld., 9, 97, 98; People v. Utica Ins. Co., 15 John., 358, 380.

       32 N. Y., 364.


text:
    THE PEOPLE ex rel. J. WM. McGOWAN, Appellant, v. WILLIAM J. HAVEMEYER and others, Respondents. THE PEOPLE ex rel. JAMES DUNPHY, Appellant, v. THE SAME, Respondents. THE PEOPLE ex rel. A. J. FULLERTON, Appellant, v. THE SAME, Respondents.

      Chapter 779 of Laws of 1873 — board of estimate and apportionment created by — when its power to revise estimates of preceding board, ceased.

    The power of the board of estimate and apportionment, created by'chapter 779, of the Laws of 1873, to reconsider, revise and redetermine the estimate already made for that year, ceased on the 1st day of July, 1873.
    The appeals in these cases, are taken from orders denying motions for peremptory writs of mandamus, directing the respondents, as the board of estimate and apportionment, to convene, audit and apportion the amounts due to the relators, for their salaries as messenger and deputy clerks of the board of supervisors of the county of Eew York.
    The salary of the messenger accrued between August, 1871, and December, 1872; and the salaries of the deputy clerks, between the 1st of January, 1872, and the 1st of May, 1873.

      Joseph H. Dulces, for the appellants.

      Geo. P. Andrews, for the respondents.
   Daniels, J.:

As the claims made by the relators all accrued by the 1st day of May, 1873, the latest of them should have been included in the estimate of county expenses for that year.

By chapters 573 and 583, of the Laws of 1871, the county expenses for the years 1871 and 1872, were required- to be estimated and apportioned within twenty days after the first day of May of the first year, and on the first day of May of the second year. But this date was afterward extended as far as the 20th day of May, 1872. By section 2 of chapter 573, of the Laws of 1871) the estimates of each year, after 1872, were required to be made by the first day of December of the preceding year. By force of these statutes, and the provisions contained in them, requiring the estimates to comprehend the yearly county expenses, for which each should be made, as a portion of those expenses, the relators’ salaries should have been included in the estimates, made before the enactment of chapter 779, of the Laws of 1873, creating the board constituted by the respondents. So much of the salaries as would accrue and become payable in any one year ought, under the provisions of the law relating to that year, to have been included in the estimate made for its expenses.

That was plainly the duty of the officials required to make those estimates. When the new board was created, on the 14th of June, 1873, all the estimates had been made into which the relators’ salaries should have entered. And the persons required to make them, had neglected to estimate any amount for the payment of those salaries. It was to supply the omission arising out of that neglect, that the present proceedings were instituted.

For the purpose of sustaining them, it was shown that two of the relators, on the 18th day of July, and the other, on the 11th of August, 1873, made demands, in writing, on the respondents that they should forthwith convene, audit, allow and apportion the amount due to each of them, respectively, for their unpaid salaries.

These demands must have been designed to require the respondents to allow and include these salaries in the 'estimates already made by the preceding board for the year 1873, for they were not required to make their estimates, for the year 1874, until the 1st of December in the year 1873. For that purpose, they could not be required to convene, as the relators demanded they should. And if the demands were designed and understood to require the respondents to convene, and enter upon the making of their estimates for the year 1874, the fact that the time had not then arrived Avhen they were required by the statute to do that, would constitute a complete answer to the demands served.

There is no good reason for supposing that to have been the relators’ purpose, or the understanding the respondents had of it.

If that had been the purpose of the demands, they would simply have required the respondents, to include the unallowed salaries in the estimates which should be made by the board for the year 1874.

The object which the relators undoubtedly designed to secure, by requiring the respondents forthwith to convene for the purpose mentioned by them, was the incorporation of their claims in the estimates, made by the preceding board for the year 1873. But for that purpose, their demands were made at too late a period. For while the act of 1873 empowered the board, constituted by the respondents, to reconsider, revise and redetermine the estimate previously made for that year, it only allowed that to be done at some time prior to the 1st day of July, 1873. The language of the section is such as to show that the time mentioned in it, was intended to form a limit beyond which the estimate made in the preceding year, should not be interfered with.

They were allowed to act upon this subject from time to time, and at any time prior to the first day of July, clearly implying that it was not intended that they should take any action in that respect after that time. The nature of the proceedings • was such as to render the time mentioned important, as a limitation upon the exercise of the authority conferred over the preceding estimate. For that was afterward to be certified by the comptroller to the board of supervisors, to be levied and collected in the year 1873, upon the real and personal estate within the city and county of New York. These subsequent proceedings contemplated that the duties of the respondents with that estimate, would be completed by the time mentioned in the section. Any other construction would permit the indefinite extension of the time, within which they might reconsider, revise and redetermine the preceding estimate.

If they could so far extend the time, as to comply with the demands made by the relators, they could continue to do so in order to comply with other demands, until no part of the year would be left, within which the the estimate could be certified to the supervisors, for the purpose of enabling them to proceed in levying and collecting the taxes.

In this proceeding, time must have been intended as an essential attribute of the act allowed to be performed. For, in no other view, could the purposes provided for, be certainly accomplished. The statute not only permitted the respondents to reconsider and revise the estimate made for the year, but it required that to be done, if done at all, by the first day of July. That the time prescribed was intended to be a positive limitation of the power to be exercised, is further shown by the act of 1872, already referred to.

For, by the preceding act of 1871, the board was required to meet and make estimates, for 1872, on the first day of May of that year. An extension of that time was, for some reason, found to be desirable, and the legislature made it for a period of twenty days.

It would be unreasonable to' suppose that legislation would have been resorted to for the purpose of extending the time, if that which had been previously specified, had not been intended to define the period, within which the estimate was required to be made.

These acts all relate to the same subject-matter, and a consideration of all their provisions is proper, for the purpose of ascertaining and determining the intent of each particular enactment. The language of the act of 1873, the proceedings afterward to be taken on the estimate within that year, as well as this legislative construction of the previous provision as to the time within which another estimate should be made, combine to support the conclusion that no reconsideration or revision of the estimate could be made by the respondents, after the time prescribed for that purpose had passed. For that reason, the respondents had no power to comply with the demands made upon them by the relators.

They could not then lawfully convene to audit, allow and apportion the relators’ unpaid salaries, and the motions made by them were properly denied.

The same disposition was made of á similar application, against the respondents, by both the Special and General Terms of the Court of Common Pleas of the city of blew York, in the case of Patrick McMullen. And no reason appears to exist for doubting the propriety of that decision.

If the relators have the legal right to have the amounts due to them, which should have been included in preceding estimates, incorporated in the estimate of the respondents, they must be provided for by an estimate hereafter to be made.

The orders appealed from appear to have been made on the 12th day of December, 1873, when, if the writs applied for had been awarded, the respondents had no power to obey their mandate.

For, by that time, their power over the estimate of 1873 had expired by lapse of time, and the estimate for 1874 had been completed, if the duty prescribed by the statute had been observed.

And it may be presumed to have been performed as the law required it should be, since nothing to the contrary appears in these cases.

The orders were right, and they should be affirmed.

Davis P. J., and Lawrence, J., concurred.

Orders affirmed.

       Vol. 1, Laws of 1872, 1050, § 2.

       Laws of 1873, 1186, § 2.

       Vol. 2, Laws of 1871, 1269, § 3.

       Vol. 1, Laws of 1872, p. 1050, § 2.

       Clark v. Norton, 49 N. Y., 243.


author: Dauiels, J.:

text:
    ABRAHAM MESEROLE and others, Appellants, v. ARCHIBALD K. MESEROLE and others, Respondents.

      Will—trust—suspension of power of alienation—accumulation.

    Where the testator, having devised property, both real and personal, to trustees, to receive the rents, issues and profits thereof, divided the same into fourteen equal parts, and directed that the rents, profits and income of each part should be paid over to different persons named in the will, the trust, as to each part, to terminate upon the expiration of two lives in being at the time of the testator’s death, 7idd, that the fact that the due execution of the trust would require some of the parts to remain in the hands of the trustees after the trust had terminated, and the ultimate right vested, as to them, did not invalidate the trust by creating an unlawful suspense of the power of alienation.
    The testator directed that a portion of the rents, incomes and profits of certain of the shares, which were given to minors, should be accumulated during their respective minorities, and, upon their expiration, the accumulation of each share should be added thereto, and the rents, incomes and profits of the shares, thus augmented, paid over to the respective beneficiaries. Held, that the direction was valid ; that the law does not require the accumulation to be paid over to the beneficiary upon the termination of his minority; and that it is sufficient if it be for his benefit.
    Whether or not the heir at law can maintain an action for the purpose of procuring a construction of the testator’s will, quere.

      Semble. That the right to maintain such an action in equity, is limited to the executors or trustees themselves, and the persons specially authorized to do so, under the act of 1853.
    Appeal from a judgment in an action, brought to obtain the construction of the will and codicil of Abraham Meserole, deceased.
    The testator left two children, his son, Jeremiah Y. Meserole, and his daughter, Maria M., wife of William K. Knapp, and three grandchildren, the plaintiffs in this action, children of David M., a son of the testator.
    • By the provisions of the will, after the bequest of several legacies, including $10,000 to each of the plaintiffs, the testator gave the residue to, and for the use of, the other two children and their families. The facts are stated in the opinion.

      AT/oin G. Bradley and M. I. Townsend, for the appellants.

      E. Moore and T. J. daclcson, for the respondents.
   Dauiels, J.:

The testator left an estate of considerable magnitude, consisting of real and personal property.

After the bequest of several legacies, concerning the validity of which no controversy exists, the testator gave, devised and bequeathed the residue and remainder of his real and personal estate to three executors, to take possession and hold the same, and receive the rents, issues, profits and income thereof, in the several shares and proportions, and for the respective periods afterward mentioned. He then directed that three equal fourteenth parts should be held by them for and during the natural life of his son, Jeremiah Y. Meserole, two for his daughter-in-law, Evelina, wife of that son, one for Alfred Y. Meserole, the son of his own son, one for Abraham Meserole, another son of his own son, three for his daughter, Maria M. Knapp, one to each of her three daughters, and the remaining equal fourteenth for the life of his grandson, John Meserole Knapp.

The same substantial directions were given by the testator, eon-cerning the three shares provided for his three children. They are, that the rents, profits and income, arising from each share, shall be paid over by the executors, to the beneficiaries respectively, for the support of themselves and their families respectively. And the directions given, are also identical, concerning each of the one-fourteenths, given by him to the executors for each of his six grandchildren. They are, that the executors should apply $1,000 each year for the support, maintenance and education of each grandchild, during the period of his or her minority, out of the rents, profits and income of the share, required to be held by them for the use of such grandchild.

The residue of the income of the share of each grandchild, to be accumulated during the period of the minority of the grandchild, from whose fourteenth the same shall be derived. And as each shall attain his or her majority, then, from that period, the entire rents, profits and income of his or her fourteenth, and of the accumulations added thereto under the preceding direction, are to be paid over to each respectively, for his or her support and maintenance, during the residue of his or her respective life.

At the decease of the testator’s son, Jeremiah Yf Meserole, whether before or after his own death, the three-fourteenths parts of the rents and profits, provided for him as his share for life, are required to be divided by the executors, into four equal shares, and kept safely invested-by them, and the interest and income from two of them, paid over to the testator’s daughter-in-law, Evelina Meserole, during her life. And at her decease, the two shares themselves are directed to be divided and paid over, among and to the lawful heirs of the testator’s son, Jeremiah V. Meserole, in the same proportions as if he had died intestate and possessed of such shares.

The other two shares, created out of those fourteenths, the executors are required to invest, one for each of the two sons of Jeremiah Y. Meserole, and to pay over the interest and income of the share, invested for each of such sons, to him during his natural life.

And on either’s decease, all the property and money, held in trust for him under the terms of the will, are directed to be divided and paid over among, and to his lawful heirs. And if either of such sons shall die before his father or mother, then the share he would otherwise have been entitled to, upon the decease of his surviving parent or parents, is directed to go to the lawful heirs of Jeremiah Y. Meserole.

Upon the decease of the testator’s daughter-in-law, Evelina, the two-fourteenths of his estate, provided for her benefit for life, are directed to be divided into five equal shares. Three of them to be invested for, and the interest and income from the same paid, over to, his son, Jeremiah Y. Meserole, during his life. And at his death, the shares themselves divided between, and paid over to his lawful heirs. The other two of these five shares, are directed to be invested for the benefit of the two sons of Jeremiah Y. Meserole, one for each, and the income and interest of each share, paid over to the person for whom the investment is directed to be made, during his natural life.

The final distribution of the two shares, as the persons entitled to their income and interest may respectively die, is directed to be' made among the lawful heirs of the testator’s son, Jeremiah Y. Meserole, by the provision, already considered in another connec- * tion, on that subject.

At the decease of the testator’s daughter, Maria M. Knapp, the three-fourteenths of his estate, the rents, issues and profits of which are given to her for life, are required to be divided into four equal shares and invested, one for each of his grandchildren, Maria M., Evelina M., Katie L., and John Meserole Knapp; and the income and interest of such share, paid over to the person for whom the investment is required to be made, during his or her natural life. And at the time of the decease of either of those four persons, if that should not occur during the life of their mother, Maria M. Knapp, the share provided for the person dying, is given to his or her lawful heirs, absolutely. .But if either should die before their mother, then the fourth of the three-fourteenths, provided to supply her share of rents, income and profits, is directed to be divided among her lawful heirs. And upon the decease of either of these four grandchildren, the fourteenth of the testator’s estate, directed by the will to be held in trust by the executors for each of them respectively, is absolutely given to his or her lawful heirs.

These provisions effectually dispose of all the residuary estate, directed by the testator to be held in trust by his executors, if they are not in conflict with the provisions of the statutes, limiting the period within which the power of alienation and absolute ownership of property may be suspended.

The testator, very clearly, designed to dispose of his real and personal estate by the provisions contained in his will, and to avoid intestacy as to any portion of it. And if the directions given by him are valid, that object has been accomplished. From the analysis, made of the directions contained in the will, concerning the disposition of the residue of the testator’s estate, it is apparent that the trust created in the rents, issues, income and profits of neither one of the shares provided for, can extend beyond the duration of two lives in being .at the time of his decease. And the lives, by which the most extended limitations are restricted, are those of the two beneficiaries themselves; eight fourteenths, constituting three specific shares, can only continue until the end of the two lives, for the benefit of which each share is created. For, by the division which it is provided shall be made of these three shares, as the life tenants of the rents, income and profits of each, may die, no portion into which the share itself is directed to be divided, can extend beyond the life of the person who is to receive its rents, income and profits, after such division may be made of it.

The other six fourteenths are still farther restricted. For, as each life tenant of a fourteenth part of the rents, income and profits, may die, the trust in the share of such person will at once cease to exist, according to the terms of the will, and it will become the absolute property of the lawful heirs, who, it is provided, shall receive it when the trust created in it shall end.

The testator’s scheme was, evidently, to avoid the unlawful suspension of the power of alienation and absolute ownership, in the trusts created in the residue of his estate. And to accomplish that result, while he gave the entire residue in trust to his executors, with full authority to continue and hold it together as one mass, he divided and disposed of the rents, issues and profits, issuing from the same, in such a manner that the existence of no share provided for, could, by any possibility, transcend the statutory period.

But it is claimed, that, as portions of the mass of the estate must necessarily remain in the executors’ hands, to supply the purposes oí the trust, for a greater period than the duration of two lives, in being at the creation of the trust, the disposition should be held to be unlawful. That consequence would have proved the same, if a legal, as well as equitable division of the estate, had been made.

For some shares, even then, would have extended through the existence of many lives, in point of fact. But the statute does not render the disposition unlawful on account of that circumstance, as long as the beneficial interest, itself, must determine with the lives of the two persons, who are to successively enjoy the same interest.

In such a disposition of the testator’s property, although the executors hold it as one entire mass, an equitable division of it is made among the persons who are to receive defined and specific portions of its rents, income and profits.

Each beneficiary becomes, for the time being, the equitable owner of that portion of the estate from which his or her rents, income and profits are derived, and the property held in trust, is, to that extent, held solely for the person benefited by so much of the trust.

It seems to have been supposed that the present case should be distinguished from those settling this principle, by reason of the feet, that, in them, the testator designed to have his estate changed into personalty, for the purposes of the trust. But that could make no difference in the principle to be applied. For, if realty, held as one mass in trust, would violate the provision of the statute, prescribing the limits beyond which the power of alienation cannot be suspended, the illegality could not be avoided by simply changing it into personalty, and, in that form, holding it for the same time in one similar mass.

If the trust would be void, as one affecting real estate, the same consequence would follow from the suspension of the power of absolute ownership, in case it should be converted into personalty, and the product were required to be held in trust for the same period of time. A change in the form of the property, supporting the trust, would not essentially change the principle applicable to it in this respect.

The principle governing hoth classes of cases must be, in substance, the same, from the similarity of the provisions contained in the statutes relating to them. Consequently, such a separation and division of the equitable interests in the rents, income and profits, as have been held to constitute a valid disposition of the testator’s personal estate, must be attended with the same result, when they are made in the rents and profits of real estate. And, nnder the authorities existing on that subject, it would seem to follow that the disposition which the testator made in this instance, was a lawful and proper one, so far as the objection now under consideration, has assailed its validity.

The persons, to whom the shares in the rents, income and profits of the testator’s residuary estate, were given for life, took several interests by the direct provisions of the will.

These interests were-in the nature of equitable estates in specific shares of the residue held by means of the intervention of the trust created for the individual benefit of each, rendering them equitably tenants in common for life in such residue. In effect, the estate was as completely divided between them, as though given to them in direct terms as tenants in common. For, in theory, that was the substantial nature of the interests, they were severally intended to derive under the terms of the will.

The accumulation of the rents; income and profits of the shares, given in severalty to the testator’s grandchildren, was limited by the expiration of the minority of the respective minors, for whose benefit it was directed. And the direction in that respect was not unlawful, because the fund, accumulated during the period provided for, was to be added to the principal of the minor’s interest in the equitable estate.-

The statute nowhere prohibits such a disposition of the accumulated fund. It simply requires that it shall be for the benefit of the minor, and terminate at the expiration of his or her majority. And that purpose is as clearly and literally observed, where the amount accumulated, is to be added to the principal of the minor’s interest, as it would be in case it were required to be paid over to -him upon attaining his majority. But if it were not equally as beneficial, that would constitute no valid objection to the validity of the direction. For all that the statute requires, is, that the accumulation shall be for the benefit of the minor, and terminate with his minority. And that object is secured where it is added to the principal, from which he is afterward to receive the interest and income.

It is unnecessary to consider the effect of the power of sale given to the executors, by which they were authorized, and for some purposes it may have been contemplated that, under it, they might find it necessary, to convert the realty into personalty. For it was optional merely, and never exercised by the executors. FTeither can it be important to examine the effect, attributable to the acts of the plaintiffs in accepting and receiving, without objection, the legacies provided for them by the will of the testator, nor the question whether the plaintiffs, as heirs-at-law, can properly maintain an action for the purpose of procuring a construction of the testator’s will, or the judgment of the court on the validity of the provisions contained in it, for the disposition of his residuary estate. The right to maintain such an action in equity, will probably be found to be limited to the executors or trustees themselves, and the persons specially authorized to do that under the act of 1853.

The judgment, pronounced in this case by the Special Term, was right, and it should be affirmed.

Davis, P. J., and Donohue, J., concurred.

Judgment affirmed, with costs.

       3 R. S., 5th ed., 11, §§ 15, 16; id., 75, § 1.

       Tucker v. Bishop, 16 N. Y., 402; Savage v. Burnham, 17 id., 561; Gilman v. Reddington, 24 id., 9 ; Everitt v. Everitt, 29 id., 39.

       3 R. S., 5th ed., 13, § 37; id., 75, § 3.

       Bailey v. Southwick, 6 Lansing, 356, 362, 363.

       General Statutes of N. Y., vol. 4, 503.


author: Davis, P. J.:

text:
    THE PEOPLE ex rel. JAS. C. DANIELS and another v. FREDERICK CUSHMAN, Respondent.

      Landlord and tenant—when relation exists—variance in proof—when fatal.

    The respondent instituted proceedings, under the landlord and tenant act, to have the relator removed from a certain portion of a pier in Hew York, described in the complaint by metes and bounds. At the trial, there was no proof of any lease of the particular premises described. Held, that the variance was fatal.
    Where the relators, who were entitled to use a pier for loading and unloading canal boats, agreed to pay the respondent, the lessee ot the pier, hfty dollars a month for the privilege of placing a derrick, scales and office upon a certain portion thereof, held, that this did not create the relation of landlord and tenant, and that, upon the termination of the agreement, they could not be dispossessed under the landlord and tenant act.
    Certiorari to the justice of the District Court, of the first judicial district of the city of New York, to examine an adjudication made by said justice, under the statute authorizing summary proceedings. The facts are stated in the opinion.

      D. McMahon, for the relators.
    Benedict, Taft db Benedict, for the respondent.
   Davis, P. J.:

The relators are agents of a line of canal boats, known as The Seneca Falls Line.” The harbor-master in charge of “ Pier 4, East river,” had assigned to the boats of said line, a portion of said pier as their berth, at which such boats were accustomed to load and unload.

The respondent was the lessee of the pier, and claimed by his affidavit, duly presented to the justice of the District Court for the first judicial district, that the relators were holding over, after the expiration of a lease from him to them, of “ a portion of the wharf or pier known as Pier 4, East River, in the city of Hew York, for the purpose of erecting and maintaining thereon a derrick, a building or office, and a scale, which portion of said wharf or pier is particularly described as follows: Beginning at a point on the westerly side of said pier, distant about one hundred and thirty-three feet six inches from the bulk-head line, and running thence easterly and parallel with said bulk-head line, ten feet; thence northerly, at right angles to said bulk-head line, twenty-eight feet; thence westerly and parallel with said bulk-head line, ten feet; and thence southerly, and at right angles to said bulk-head line, twenty-eight feet, to the place of beginning.”

The respondent alleged, that on or about the 12th of April, 1871, he leased the above described premises to the relators, for the term of one year, commencing on the 12th day of April, 1871, and ending on the 12th day of April, 1872, unless said term should be sooner terminated by notice. The proofs given in the case, tended to show that the relators, as agents of the line above named, had used the pier, at the berth assigned to their boats, for receiving and discharging cargoes from their boats, for many years. That a derrick for unloading the boats, consisting of a pole inserted in the pier, and a swinging arm with appropriate tackle, had been maintained and used for some twenty-five years; and that, in 1871 and 1872, the relators used also a platform scale, on wheels, foi weighing freight when necessary, and a small covered structure on wheels, four or five feet square, with a desk in it, at which a man could stand in rainy weather, to take tallies of-the cargoes loaded or discharged. The respondent gave evidence tending to show, that, for the privilege of using these things on the pier, the relators, in 1871, agreed to pay, and did pay, the sum of fifty dollars per month, which payments were made up to the time when the canal boats ceased to use the pier, in the fall of 1871. In 1872, the relators refused to pay, and hence the proceedings were instituted against them, as tenants holding over after the expiration of their lease.

The material allegation of the complaint, is the leasing of a certain described portion of the pier, of which metes and bounds are given, and the unlawful holding over of that portion, after the expiration of the lease; and the justice has found in accordance with the allegation, and given judgment that the relators be dispossessed of the premises so described. There was no proof of any lease of the particular premises described in the complaint. The variance in that respect was fatal. The derrick and scales and office (if it be so called) were probably used within the metes and bounds set out in the complaint, but there was a total failure to prove any lease of the pier within those metes and bounds. The utmost that can justly be said of the proof, is, that it showed that, in 1871, the relators had agreed to pay fifty dollars a month for the right or privilege of using those particular conveniences, on that part of the pier where the berth, assigned to their boats, required them to be used. That agreement did not operate as a lease of the premises, described by metes and bounds in the complaint. Those premises, the relators had a clear lawful right to use as a part of the wharf or pier, for the purpose of loading and unloading their boats, they paying the lawful wharfage therefor to the respondent, or to the party entitled thereto. It appears that the wharfage was paid. The relators could not, therefore, be dispossessed of the portion of the wharf described, under the landlord and tenant act, because they used utensils and implements on such part, different from those which they had a right to use as proprietors or agents of the boats lawfully occupying the berth.

If the use of a derrick, and the scales and office, were unlawful, or without right, the relators might, perhaps, have been treated as trespassers by the owner or lessee of the pier, but, as it seems to us, clearly not as tenants, to be removed under the landlord and tenant act. Considering the agreement of 1871, as at most under the evidence it was, as permitting, for a stipulated price per month, the use, on a portion of a public wharf, of the above described conveniences for loading and unloading, and that the relators’ sole right to use them, depended upon the agreement, there certainly would not spring up the relation of landlord and tenant, entitling the former to remove the latter, on the expiration of the agreement, from the premises pu which the conveniences had been used. There must be a letting of the realty, itself, to constitute such relation, and not a mere contract with a party who has a right to use and occupy for a lawful purpose, such as loading and unloading vessels at the piers of the city, giving a privilege to use on the piers, utensils and machinery belonging to himself. Indeed, the proceeding in this case was not aimed, in fact, to remove the relators from the premises described, but to take off the tools or conveniences used by them, still leaving them in occupancy, as far as necessary for loading and unloading their boats, in some other manner. The judgment, however, goes so far as to dispossess them wholly of the portion of the pier described. We are of opinion that the statute, giving summary remedies to landlords against tenants holding over without permission, has no application to the case. For that reason, and on the ground of fatal variance between the complaint and the proofs, the proceedings must be reversed.

Daniels and Donohue, JJ., concurred.

Proceedings and judgment reversed.


author: .Donohue, J.:

text:
    HORACE B. FROUDE, Appellant, v. EMILY L. FROUDE, Respondent.

      Commission rogaiov.y.

    The plaintiff applied to the court for a commission to he issued to the French courts, to enable him to examine two witnesses orally, on the ground that one of the witnesses had already been examined on commission, and, as he claimed, testified falsely, and that he feared the other would do so. Held, that the application was properly denied. The mode of taking testimony abroad, is established by the Revised Statutes, and it is not to be departed from, unless the court cannot otherwise obtain the testimony.
    Appeal from an order ■ denying an application made by the plaintiff for a commission rogatory, to take the testimony of two witnesses residing at Nice, in France. The facts are stated in the opinion.

      Ohas. E. Whitehead, for the appellant,
    cited Lumley v. Gye (3 Ellis & Black., 114); Clay v. Stephenson (7 Ad. & Ellis, 185); Boelen v. Melladew (10 Com. Bench, 898); Ponsford v. O'Connor (5 Mees. & Wels., 673); Fisher v. Izatary (1 El., Black. & El., 321); Pole v. Rogers (3 Bing., N. C., 780); Nelson v. The U. S. (Peters’ C. C. R., 235).

      Jos. Laroeque, for the respondent.
   .Donohue, J.:

In this case, the plaintiff applied to the court below, to allow him to examine two witnesses abroad, under a commission to be issued to the French courts, at the place of residence of the witnesses, to procure such examination orally; the reason given, being that one of the witnesses had already been examined, and, as claimed, testified falsely, and the other, it is apprehended by the plaintiff, would do so. The court below denied the application, and from that order the plaintiff appealed. I think the court below was right. The Revised Statutes fix the mode of taking testimony abroad, and the cases cited by the plaintiff, as well as defendant, establish the rule that this is not departed from, unless the court cannot otherwise get the testimony. Lincoln v. Battelle is a case in point.

The cases cited from the English reports, must be viewed in the light of the English rule, which has always been averse to taking testimony except in presence of the parties, and has always appéared to excuse itself when adopting testimony taken in any other way. Hoffman’s Chancery Practice lays down the rule, as practiced here in equity cases. To adopt the cumbrous and expensive rule of the English courts on this subject, or open commissions, would be to subject parties to disastrous delays and expenses. If the rule were adopted, whenever a party thinks his testimony could be better taken by such commission, he could have it. His opponent would, at his peril, have to accompany them, and perhaps find, when he had gone to such country as his opponent desired to send him, and had incurred the expense of employing counsel, that no witnesses were produced. Again, to adopt this system, would be to subject all our causes to the rules of evidence and mode of examination under the laws of each particular country to which the commission yould go.

In this case, the facts show that no difficulty exists in obtaining the execution of a commission in our own form; it has been done in this case, and no pretense exists that it cannot be done as to the other witness. The mere statement that they expect in this way to get different testimony, is not enough. Should the witness, already examined, testify differently, the testimony would be worthless, and, as to the other, such fact is not to be presumed.

Again,, it is a question, in the absence of all settled form of taking the testimony in our courts, whether we are prepared to sanction the mode of taking testimony, adopted in some cases, under the civil law.

The order appealed from should be affirmed.

Davis, P. J., and Daniels, J., concurred.

Order affirmed.

       Part 3, chap. 7, title 3, art. 2.

       6 Wend., 475.

         Page 481.

       1 Barb. S. C. R., 220.


author: Donohue, J.:

text:
    JOSEPH E. PAINE, Respondent, v. EDWARD D. McCARTHY, Appellant.

      Service of summons without complaint—judgment on failure to appea/r.

    On the seventeenth of June, a summons, without a copy of the complaint, was served on the defendant, and on the nineteenth, a copy of the complaint was left at his office; the defendant having served no notice of appearanqg or put in an answer, the plaintiff, on the eighth of July, entered judgment. Held, that the judgment was regular.
    Appeal from an order made at Special Term, denying a motion made by defendant to set aside the judgment entered in the action, but allowing him, on certain conditions, to come in and defend.

      Edwa/rd D. McCarthy, in person, for the appellant.

      James E. Bedell, for the respondent.
   Donohue, J.:

In this case, on the seventeenth day of June, the defendant was served with a summons, neither accompanied by, nor required to be accompanied by a complaint.

The defendant having served no appearance or answer before the eighth of July, the plaintiff entered judgment.

The defendant now claims that this judgment should be set aside as irregular, on the ground that the plaintiff served a complaint at defendant’s office on the nineteenth of June, and the defendant’s time to appear and answer did not expire until the ninth of July, on which day he served an answer.

The judge below denied defendant’s motion, but gave him liberty, on certain conditions, to come in and defend. We think the order correct. Section 130 expressly shows that, to entitle the defendant to a copy of the complaint, he should appear within the twenty days after service of the summons, and that the complaint need not accompany the summons.

This construction has been given by the court. We think the defendant has no cause of complaint against the order, as, in strictness, the plaintiff was correct, and defendant’s motion might have been denied.

The order should be affirmed.

Davis, P. J., and Daniels, J., concurred.

Order affirmed, with costs.

       Van Pelt v. Boyer, 7 Howard, 325.


text:
    ROBERT A. SINCLAIR, Respondent, v. JAMES NEILL and others, Appellants.

      Rescission of contract—when allowed—power of referee to allow amendments to ■ complaint.

    The plaintiff was induced by fraudulent representations, made by the defendants, to purchase, in February, a store of goods, together with the fixtures and the leases of the property, for $4,000; in payment of which he gave two notes, made by himself, for. $500 each, and a bond and mortgage, which he had procured to be executed, for the residue. The plaintiff took possession of the store, disposed of the goods and collected the rents, until the twenty-second of May, when he discovered the fraud; offered to restore the goods then unsold, the fixtures and the leases, and, his offer not being accepted, he then disposed of the residue of the goods. This action was brought to rescind the purchase, and procure a return of the notes and the bond and mortgage ; held, that as he had put it out of his power to return what he had received by-the purchase, he could not rescind the contract. In order to entitle a party to rescind a sale or purchase of property, on account of fraud, he must be able to restore and return what he himself has received. Where that cannot be done, the fraudulent transaction cannot be annulled.
    At the trial, the plaintiff applied to the referee for leave to amend the complaint by alleging that he had sustained damages, by reason of the false and fraudulent representations contained in the complaint, to the amount of $5,000, and demanding a recovery of such damages; and that the same, because of the vendor’s insolvency, should be declared a lien upon any amount found due from him on account of the sale. The referee permitted this amendment to be made against the objection of the defendants; held, that this was error; that the amendment introduced a new and independent cause of action into the case, not within the issues referred to the referee to try; that the referee should have suspended the trial, until relief could be obtained by special motion, on notice, before the court.
    Appeal from a juugment in favor of the plaintiff, entered upon the report of a referee. The facts are stated in the opinion.

      M. I. Townsend, for the appellants.
    The plaintiff, having put it out of his power to restore what he had received under the contract, cannot rescind it. (Hogan v. Weyer, 5 Hill, 389; Van Epps v. Harrison, id., 66; Voorhees v. Earl, 2 id., 288; Story on Con., § 844, note a ; Chit. on Con., 6 ed., p. 815, note c; Minturn v. Main, 3 Seld., 227; Cobb v. Hatfield, 46 N. Y., 533; Springer v. Dwyer, 58 Barb., 189; Linsey v. Ferguson, 3 Lans., 196.) The referee erred in allowing the amendment to the complaint. (Bradley v. Ardrich, 40 N. Y., 504; Mann v. Fairchild, 2 Keyes, 111; Heywood v. City of Buffalo, 14 N. Y., 540; Underdonk v. Mott, 34 Barb., 113 ; Bailey v. Southwick, 6 Lans., 362.)

      O. Frost, for the respondent.
    The referee had the power to allow the amendment to the complaint. (Hubbell v. Meigs, 50 N. Y., 480; Bradley v. Bosley, 1 Barb. Ch., 125; Code, § 173; Bedford v. Terhune, 30 N. Y., 453; Ackley v. Tarbox, 31 id., 564; Emery v. Pease, 20 id., 62.)
   Daniels, J.:

The evidence and the referee’s report show that the plaintiff was induced by fraudulent representations, made by the defendant, Robert Thomas, and assented to by the defendant, James Neill, to purchase a store of goods, together with the fixtures and leases, extending from the 15th day of February, 1869, the time of the purchase, to the 1st of May, 1871, for the price of $4,000.

The purchase price was secured by a bond and mortgage, which the plaintiff procured to be executed and delivered, and his own two notes of $500 each. It was part of the consideration of the sale, that the defendant, Thomas, should be a partner in the business with the plaintiff; and, in compliance with that understanding, they jointly carried it on, until near the first of the following month of June. By that time, the goods, of which the stock in the store consisted, were entirely sold out, the sale of the entire residue being made on the second day of that month. During the same time, the plaintiff sublet the upper portions of the premises included in the leases, and received from $500 to $600 rent for the same.

By the 22d day of May, 1869, the plaintiff had discovered the fraud by which he was induced to make the purchase, and offered to surrender and return the goods he then had, the fixtures in the store and the leases, to the defendants, who were the vendors, and d'^anded a return of his notes, and the bond and mortgage he h?.u procured to be made and delivered. They refused to comply with the request made, and this action was then brought to rescind the purchase, and procure a return of the notes, bond and mortgage. Before the 3d of June, 1869, the plaintiff gave notice to the defendants interested in the transaction, that he should not pay the rent becoming due on the lease on the first of that month. The landlord, for the non-payment of that rent, repossessed himself of the premises, by summary proceedings under the statute.

As the facts of the case existed when the action was commenced, the plaintiff had been so far benefited by the purchase, that, by his subtenants, and the occupancy of himself and his partner, he had enjoyed the property, demised by the leases assigned to him, from the fifteenth of February to the end of May, and received the proceeds derived from the sale of at least half the stock of goods transferred to him.

To that extent, he had put it out of his power to return what he had received by the purchase. And, on the second of June, he still further extended that incapacity, by disposing of the residue of the stock. This rendered him incapable of rescinding the co ' • tract of sale, and, by doing so, entitling himself to a return of the notes, bond and mortgage, given for the purchase price.

In order to maintain the right of a party, either at law or in equity, to rescind a "sale or purchase of property, on account of fraud, it is necessary that the party designing to do so, shall be able to restore and return what he himself has received, as the equivalent of what he may have been induced to part with by means of the fraud. Where that cannot be done, the fraudulent transaction cannot be annulled by the party defrauded. It cannot be rescinded in part and affirmed in part, as it would be by the retention of any of its fruits. An enjoyment of the advantages of the transaction, precludes the party receiving them from repudiating that portion which may prove to be detrimental to his interests. This rule is very well settled, and it constituted a complete answer to the' plaintiff’s action as one in equity for the rescission of the sale.

But, notwithstanding this inability, the learned referee held both the notes given by the plaintiff, and the bond and mortgage, to be invalid and without consideration, because they had been procured by the false and fraudulent representations made byj|he defendants, Thomas and Neill; and judgment was entered in accordance with this conclusion. This conclusion cannot be sustained. For, even though given for property which the plaintiff was induced to purchase by means of fraudulent representations, there was a sufficient consideration to sustain them, as long as the transaction was in such a condition as to render the plaintiff incapable of rescinding it. He could not retain its fruits and still resist a liability for the purchase price. The party defrauded, is not deprived, in such a case, of a proper remedy for the redress of the injury produced by the fraud perpetrated. For he may maintain an action for the recovery of such damages as, with what he may have recovered by the sale, will form an equivalent for what, by the terms of the purchase, he was entitled to have as its fruits. And beyond that, he may make use of his right for the recovery of damages, either by way of maintaining an independent action for their recovery, or by way of recoupment or counterclaim, in reduction of the seller’s claim for the purchase price.

The law gives the purchaser his election. He may assert his right to damages for the fraud, by way of an action in his own behalf, or avail himself of it as a defense to a suit for the recovery of the purchase price of the property sold.

During the progress of the trial, the plaintiff applied to the referee for leave to amend the complaint, by alleging that he had sustained damages, by reason of the false and fraudulent representations contained in his complaint, to the amount of $5,000, and demanding a recovery of such damages, and that the same, because of the vendor’s insolvency, should be declared a lien upon any amount found due from him on account of the sale.

The defendants objected to the allowance of the amendment, but the referee overruled the objection and permitted it to be made. This objection, though general in its terms, was sufficient to present the point of the referee’s power to allow the amendment to be made; and no amplification of it could have been of any benefit to the referee or the plaintiff, because the ground on which it stood, could not be changed by any act of either.

As the complaint contained nothing upon the subject of the plaintiff’s right to damages, this amendment introduced an entirely new element into the case, constituting of itself an independent right of action, not within the issues referred to the referee to try.

It was not simply supplying a variance by an amendment, which the referee had the power to do. For as the plaintiff- could not maintain the action in the shape he had placed it by his complaint, because of his inability to rescind the sale, his case was unproved in its entire scope and meaning. And that could not be corrected by any amendment the referee had the power to allow.

The only mode by which that could be properly done, was by suspending the trial until relief could be obtained by special motion, on notice, before the qourt. The power, by that proceeding, is ample to meet such emergencies as the plaintiff’s case was found to encounter. And it was the only mode in which he could be relieved, without a discontinuance of the action and the institution of a new suit. On such a motion, the parties have an ample opportunity for a complete presentation of all the facts affecting the propriety of the amendment, and proper terms can be prescribed, to guard against surprise and injustice. It is true, the referee might secure to the parties the observance of all these rights, but the legislature did not deem it proper to confer upon him the power to hear and dispose of such an application. The case allowed to be alleged by the amendment, was distinct and different from that which the complaint had previously presented, and that, the referee had no authority to permit; it in effect gave the plaintiff the benefit of a new cause of action, without which, he must of necessity have had judgment against him.

It may be unfortunate for the plaintiff, who seems to have been grossly deceived and defrauded by the misconduct of the persons he dealt with, that his suit was not brought in the form the law prescribed for the case he was able to prove. But courts of justice have no power, for that reason, to disregard legal requirements in that respect, and award relief which, under well-settled principles, can only be administered under different circumstances from those disclosed by the complaint.

After allowing the amendment, the referee permitted the plaintiff to recover damages occasioned by the fraud, deducted the value of the stock purchased and sold by the plaintiff from the amount, and directed judgment for the balance of $186.07 in his favor. The relief given was not even hinted at in the original complaint, and for that reason it was wholly unauthorized.

By the judgment which has been recovered, the entire consideration received for the property sold, has been annulled, the plaintiff has enjoyed the use and proceeds of the leasehold premises for over three months, and received the avails of the goods delivered to him, amounting to over $1,600, and still lias a judgment for a balance in his favor. Such incongruous results cannot ordinarily be secured in the same action. Certainly not under the circumstances shown in this case. As the plaintiff cannot rescind, his relief must be confined to redress by way of damages, which possibly may be deducted from the sum he may owe to the vendors of the property, if their insolvency shall be satisfactorily established. And such redress must assume the validity of the bond, mortgage and notes, so far as they may exceed the damages which equitably should be deducted from them on account of the plaintiff’s loss resulting from the fraud. How far he may be entitled to relief in that respect, it is not necessary now to consider. But as he is not a party to the bond and mortgage, he will probably be found unable to reduce the amount secured by them, by any damages he may be entitled to recover. His relief, as long as he cannot rescind, must consist in damages, and not in annulling the bond, mortgage and notes given for the price of the property purchased.

The judgment has awarded to him more than, in any view of the circumstances, he can be entitled to receive.

It should be reversed and a new trial ordered, with costs to .abide the event.

Davis, P. J., and Donohue, J., concurred.

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

       Cobb v. Hatfield, 46 N. Y., 533; Springer v. Dwyer, 58 Barb., 189. Also the decision on this transaction by Court of Appeals, in Pullman v. Aiken.

       Beecker v. Vrooman, 13 Johns., 302; Van Epps v. Harrison, 5 Hill, 63; Code § 150, sub. 1; Boston Silk and Woolen Mills v. Eull, 37 How., 299.

       Merritt v. Seaman, 2 Seld., 168.

       Code, § 171; Ransom v. Wetmore, 39 Barb., 104; Whitcomb v. Hungerford, 42 id., 177; Ford v. Ford, 53 id., 525; Degraw v. Elmore, 50 N. Y., 1; Ross v. Mather, 51 id., 108.

       Smith v. Felton, 43 N. Y., 419.