author: Van Brunt, P. J.: Daniels, J.

text:
    In the Matter of the Application of GEORGE EL STONEBRIDGE, Jr., as Receiver of the New York Book Company.

      Attachment pursuant to section 12, title 1, chapter 5, pa/rt 2 of the Revised Statutes— not issued upon am affidavit whose allegations rest simply upon information and belief.

    Upon an appeal from an order denying a motion to vacate a warrant for the examination of John B. Alden in relation to the property of the New York Book Company, it appeared that the warrant, to vacate which the motion was made, was issued pursuant to the provisions of section 12, title 1, chapter 5, part 2 of the Revised Statutes, which provides that “ whenever the trustees shall show, by their own oath or other competent proof, to the satisfaction of any officer named in the first section of the seventh article in this title, or of any judge of a County Court, that there is good reason to believe that the debtor, his wife, or any other person has concealed or embezzled any part of the estate, * * * such officer or judge shall issue a warrant commanding any sheriff or constable to cause such debtor, his wife or any other person, to be brought before him at such a time and place as he shall appoint for the purpose of being examined.”
    In this case a warrant was issued upon a petition showing that the petitioner was the receiver of the New York Book Company, and alleging that one John B. Alden had in his possession certain property of the petitioner as receiver of said book company and also stating various other matters, all simply upon information and belief, with no statement whatever as to what were the sources of the information of the affiant or the grounds of his belief.

      Held, that, as the issuing of this warrant was a preliminary condemnation of the defendant, of the commission of a crime, viz., that of embezzlement or of concealing property of others, that warrants of this description should not be issued except upon evidence which ought to satisfy the court of the existence of facts necessary to authorize the issuing of the warrant, and that an affidavit upon information and belief simply was evidence of nothing; that the order appealed from should be reversed. (Daniels, J., dissenting.)
    Appeal from an order made at a Special Term held in the county of New York, which was entered in the office of the clerk of the county of New York on April 25, 1889, denying a motion of John B. Alden to vacate and set aside a warrant for his examination in relation to the property of the New York Book Company, which was issued upon the application of George H. Stonebridge, Jr.,' who was a permanent receiver of the said New York Book Company.

      James B. Bill, for the appellant.

      Charles E. Hughes, for the respondent.
   Van Brunt, P. J.:

The warrant to vacate which the motion was made was issued pursuant to the 'provisions of section 12, part 2, title 1, chapter 5 of the Revised Statutes, which provides that whenever the trustees shall show, by their own oath or other competent proof, to the satisfaction of any officer named in the first section of the seventh article of this title, or of any judge of a County Court, that there is a good reason to believe that the debtor, his wife, or any other person has concealed or embezzled any part of the estate, etc., such officer or judge shall issue a warrant commanding any sheriff or constable to cause such debtor, his wife, or any other person, to be brought before him at such time and place as he shall appoint for the purpose of being examined.

In the case at bar a warrant was issued upon a petition showing that such petitioner was the receiver of the New York Book Company, and alleges, simply upon information and belief, that one John B. Alden has in his possession certain property of your petitioner, as receiver of said book company, and various other allegations, all upon information and belief, with no statement whatever as to what were the sources of the information of the affiant or the grounds of his belief. I do not think that any officer or judge should be satisfied upon such an allegation that any person has been guilty of concealment or embezzlement; and in order to justify him in issuing the warrant he must be satisfied of these facts. There is nothing upon which he can judicially act except the statement of the affiant, and he has no personal knowledge of the facts, and does not pretend to have, and he makes allegation entirely upon information and belief without giving the court an opportunity to know whether he had any information at all, or any grounds for his belief. And although, in certain cases, it has been held by the Court of Appeals that under similar circumstances the judge or officer acquired jurisdiction to act, yet still they have never held, as yet, that where he has refused to act upon such an utter want of evidence, such refusal was erroneous. And in the case of Tim v. Smith (93 N. Y., 87), it has laid down the rule that the court must be informed upon what the belief of the affiant is based in order that it may judge of the evidence which is produced before it; and certainly a remedy of so harsh a character should not be lightly issued against any citizen.

If an allegation, simply upon information and belief, is to move the court to act, then it was useless to make it necessary for any application to the court. The party seeking the relief might just as well have had the right to issue the warrant without the intervention of any officer or court, because it is his determination, as to whether from the information he has received or the belief which he has formed, he is entitled to the warrant or not. He has not deigned to inform the court what information he has, or what are the grounds of his belief, and the court is to act entirely upon his judgment as to whether the information he has obtained justified his belief. The very issuing of this warrant is a preliminary condemnation of the defendant that he has committed a crime, viz., that of embezzlement or of concealment of the property of others. Warrants of that description should not be issued except upon evidence which ought to satisfy the court of the existence of the facts necessary to authorize the issuing of the warrant, and an affidavit upon information and belief simply is evidence of nothing.

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

Beady, J., concurred.

Daniels, J.

(dissenting):

The warrant which the appellant John B. Alden mo vea to vacate and set aside was issued against him on the petition and application of the receiver of the New York Book Company, who was appointed in an action of George Langdon against the company. It was issued upon the ground that the receiver had become possessed of the powers and authority conferred by law upon trustees to whom an assignment of the estate of an insolvent debtor might have been made, under the provisions of chapter 5 of the second part of the Revised Statutes. These provisions required the trustees, before proceeding to the discharge of any of their duties, to take and subscribe an oath that they would well and truly execute the trust by their appointment reposed in them, according to the best of their skill and understandiug. The statute defining the duties and authority of such trustees further provided that whenever they should show by their own oath,- or other competent proof, to the satisfaction of any officer named in the first section of the seventh article of the title, or of any judge of a County Court, that there was good reason to believe that the debtor, or his wife, or any other person, had concealed, or embezzled, any part of the estate of the debtor vested in the trustees, or that any person could testify concerning the concealment or embezzlement thereof, or that any person that should not have rendered an account, as previously required, was indebted to such debtor, or had property in his custody or possession belonging to the debtor, the officer should issue a warrant commanding any sheriff or constable to cause the debtor, his wife or other person, to be brought before him, at such time and place as-he should appoint, for the purpose of being examined. The statute then provided for the examination of the person brought before the officer on oath touching all matters relative to the debtor, his dealings and estate, the detention or concealment of any part of his-property, and the indebtedness of any person to him, which examination has been required to be reduced to writing and signed by the person so examined. The statute further provided for the commitment of the person brought before the officer in case of his refusal satisfactorily to answer any lawful question put to him or to sign the examination when there was no reasonable objection thereto. And it was further directed that he should not be discharged on habeas corpus by reason of any insufficiency in the form of the warrant of commitment. (3 R. S. [6th ed.], 36, § Y; Id., 38, §§ 14-18.)

These provisions of the statute have been made the subject of objection by the appellant as being in conflict with certain provisions contained in the Constitution of the State. But as they in no manner provide for any adjudication adversely to the person required to be examined, or in any way affect Ms rights, but provide solely for the discovery of the existence of what may be claimed to be the property of the debtor, they do not appear to conflict with either of the constitutional provisions referred to in the argument of the appellant. This subject was considered in Noble v. Halliday (1 Comst., 330), and the provisions were considered by the court entitled to be sustained and enforced whenever a proper application might he made for that object. And quite similar provisions, declaratory of the power and authority of the Surrogates’ Courts, weré sustained by the decision made in Matter of Curry (25 Hun, 321).

The petition, as to most of the material facts, was made upon the information and belief of the receiver. But that fact, under the peculiar frame and language of the statute authorizing its presentment for the warrant, was held not to he a fatal defect in the proceeding in the case of Noble v. Halliday (supra). The section of the statute, under which the warrant may be issued, is peculiar in this respect, providing for means of supplying the applicant with that knowledge concerning the assets and effects of the debtor or corporation as might not otherwise he obtained by him. If he had such knowledge as would justify a positive affirmation of the facts, then the examination of the party to be brought before the officer would he unnecessary. It is when the applicant has attained no such knowledge that the proceeding may be taken for the examination of the party or person from whom knowledge is expected to be derived. And, under the circumstances contemplated and provided for, the applicant may apply for the warrant, upon his information and belief, although such a statement would not be sufficient to support other legal proceedings. Under these statutes that has been considered to be all that may be required, and their provisions were complied with, in this respect, by this petition.

A further objection has been taken that it has not been stated in the petition that the receiver had taken the oath required by the provision of the statute which has been previously mentioned. But the petition contains the statement that the petitioner had been appointed a temporary receiver in the action mentioned in it, and, by the decree entered in the action, he had been continued as a permanent receiver of the company, with the usual powers and duties, and that he had qualified as such receiver and entered upon his duties as such. And under what was said in the decision of Hoag v. Hoag (35 N. Y., 469, 475), this was sufficient to maintain the conclusion that he had, in fact, taken the oath.

It has also been objected that the receiver is not stated to have published the notice required by the statute to be given by trustees immediately upon their appointment. But the petition does state in positive terms that this notice had been published, and that it required all persons indebted to the company to render an account to the receiver at a time, or before a time, and at a place, mentioned in the notice, of all debts and sums of money owing by them, respectively, and to pay the same, and all persons having in their possession any property of the corporation to deliver the same to him within the same time and at the same place specially mentioned; and further stating that the notice contained all other matters required by law. What has been specially stated to be contained in it was a substantial compliance with the statute directing the form of the notice to be published. (3 R. S. [6th ed.], 37, § 10.) In addition to that, the authority of the receiver to apply for the warrant has not been made dependent upon the publication of this notice. But that is permitted to be made whenever he should show, by his own oath or other competent proof, the facts mentioned in the statute of which this notice has not been made to form a part.

The power given to the receiver to apply for the warrant, and secure thereby the examination of the person to be brought before the officer, has been restricted by section 1788 of the Code of Civil Procedure to receivers appointed under the article containing it, and by so much of title 4, article 3, chapter 8 of part 3 of the Revised Statutes, as still continues in force, to proceedings for the voluntary dissolution of corporations. These preceding provisions contained in the Revised Statutes have been rendered applicable to receivers appointed in proceedings taken under title 11, chapter 17 of the Code of Civil Procedure for the voluntary dissolution of a corporation, "by subdivision 5 of division 3 of section 1 of chapter 245 of the Laws of 1880. And it is to be presumed from the facts stated in the petition, although that has not been directly or positively averred, that this receiver was appointed either in such a proceeding or under the authority contained in article 3, title 2, chapter 15 of the Code of Civil Procedure. For under no other appointment than one made by virtue of these provisions, at the suit of an individual, would the receiver be authorized to interfere with or obtain the control or management of the assets and property of the corporation. And the proceedings taken by the petitioner have been directed to obtaining the possession or securing the discovery of the property of the company. And his right so to proceed has in no other manner been questioned than by objections taken to the petition and affidavit on which the warrant has been issued. And the omission to deny the truth of either of the facts mentioned in the petition to support the application of the receiver very directly tends to confirm the accuracy with which they have been stated. It may very well be conceded that the petition has been defectively and carelessly drawn. But that concession of itself did not' entitle the person proceeded against to an order setting aside or discharging the warrant, as long as so much was contained in the petition as enabled the officer to whom the application was made, as well as this court, to see that the appointment had probably been made under the authority of one or the other of these statutory provisions. In drawing an important paper of this description, care should always be taken to present the case distinctly and clearly. For where a statute has provided such a remedy, the proof made in support of the application must bring it within the provisions of the law. (Gilbert v. Columbia Turnpike Co., 3 Johns. Cas., 107; Ex parte Heath, 3 Hill, 43, 47; Matter of Pyrolusite Manganese Co., 29 Hun, 429; Matter of Townshend, 6 N. Y. Supr. Ct. [T. & C.], 227; Matter of N. Y. City and H. R. R. Co., 110 N. Y., 374, 379.) And this general rule is to be considered as still continuing in force, notwithstanding what has been said in the exceptional case of Central Trust Company v. New York City and N. Railroad Company (110 N. Y., 250). But while it has not been complied with as clearly as that should have been done, sufficient facts do appear, argumentatively, from the petition to entitle this order to be supported and maintained.

The statute creating the authority to issue the warrant provided that it might be issued by an officer named in the first section of the.seventh

article of title 1, chapter 5, part 2 of the Revised Statutes, aud that included justices of the Supreme Court. (3 R. S. [6th ed.], 38, § 14; id. 28, § 1.) But by section 1 of chapter 245 of the Laws of 1880, all of title 1, chapter 5 of part 2 of the Revised Statutes was declared to be repealed except article eighth thereof. And it was the first section of this title that empowered justices of the Supreme Court to act in this proceeding. But this repeal has been so far qualified by subdivision 13 of section 3 of the act of 1880 as still to continue the preceding law in force so far as to authorize a justice of the Supreme Court to issue this warrant. For by this subdivision it has been declared that where a provision of the existing laws is referred to in any other provision of the existing laws remaining in force after this act takes effect, it, nevertheless, remains in force for the purpose for which it is so referred to, although rejsealed, in terms, by a provision of this act of 1880. So much of the statute as provided for the issuing of the warrant, to this extent, therefore, still remained in force. For this repeal was so far qualified in this manner as still to allow the repealed law to be consulted to ascertain and determine the officers by whom the warrant might be issued. And by that reference a justice of the Supreme Court has been clearly included, and the warrant accordingly was regularly'issued by him. Some further objections have been taken by the counsel for the appellant to this proceeding, but they rest upon no substantial foundation. The petition, while formally defective, was not so much so as to require the proceeding to be dismissed under the rule ■ sustained by the authorities requiring all the facts to be stated which are contemplated by the statute to entitle the applicant to the warrant. The order should, accordingly, be affirmed, but the manner in which the petition has been drawn should not be rewarded by the allowance of costs.

Order reversed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Van Brunt, P. J.:

license: Public Domain

text:
    THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Plaintiff, v. MARCELLA FAY (Formerly MARCELLA KEENAN), as Executrix of the Last Will and Testament of JAMES T. KEENAN, Deceased, Defendant

      Admissibility of statements contained in pleadings, as evidence in another action.

    In an action, brought to recover a sum due upon a contract made between the plaintiff therein and a copartnership alleged to have been composed of James T. Keenan, the defendant’s testator, and one Thomas Nugent, it became necessary, upon the trial, for the plaintiff to prove the existence of the partnership. The only evidence which was offered to prove it was a portion of an answer made by the defendant, as executrix, in an action brought against her by Nugent, in which she alleged, on information and belief, that the said Nugent and Keenan were jointly interested in a contract with the department of street cleaning of the city of New York, and also a finding by a referee in that action in substantial accord with the allegation in the answer.

      Meld, that it was error to admit this evidence.
    "That an admission contained in pleadings between other parties, simply founded upon information and belief, where there is no presumption that the facts alleged or denied must have been within the knowledge of the party making the allegation or denial, and where the allegation or denial is not against the interest of the party making the same, cannot be received in evidence as establishing the truth of the allegation or denial.
    That, in the case at bar, the alleged admission was not against the interest of the defendant, who was asserting a right in respect to a matter as to which there was no presumption that she had any personal knowledge whatever.
    That the admission gained no force from the fact that the referee in that case found the statement to be correct.
    Motion for a new trial on a verdict in favor of the plaintiff, rendered at the New York Circuit, by direction of the court, the exceptions being ordered to be heard in the first instance at ■the General Term.

      W. L. Turner, for the plaintiff.

      Daniel Daly, for the defendant.
   Van Brunt, P. J.:

This action was brought to recover a sum due upon a contract made between the plaintiff and a copartnership alleged to have been composed of James T. Keenan, the defendant’s testator, and one Thomas Nngent. The defendant, by her answer, having denied the copartnership, it became necessary for the plaintiff to prove the same, and the only evidence which was offered to substantiate this allegation of the complaint was a portion of the answer of the present defendant, as executrix in an action begun against her by Nugent, in which she alleged, on information and belief, that the said Nugent and Keenan were jointly interested in a contract with the department of street cleaning of the city of New York, and also a finding by the referee in said action in substantial accord with the allegation in the answer. This proof was duly objected to and the objection was overruled, and upon this evidence alone was based the direction of the court that the allegation of partnership contained in the complaint in this action was made out.

In this we think there was error. It is true that admissions in pleadings in an action between other and different parties have been received in evidence by the courts. The ground upon which these admissions have been received has been because they were admissions against the interest of the party making them, and because of the great probability that a party would not admit or state anything against himself or against his own interest unless it was true. And, furthermore, these admissions have been confined to those cases where the admissions contained the assertion of facts which, from the nature of the case, if true, must have been within the knowledge of the party making the admission and the pleading is verified by him. These rules are laid down in the case of Cook v. Barr (44 N. Y., 157) and their application is apparent. Therefore, an admission contained in pleadings between other parties simply founded upon information and belief, where there is no presumption that the facts alleged or denied must have been within the knowledge of the party making the allegation or denial, and where the allegation or denial is not against the interest of the party making-the same, cannot be received in evidence as establishing any fact. In the case at bar the alleged admission was not against the interest of the defendant, who was asserting a right in respect to a fact as to which there is no presumption that she had any personal knowledge whatever. Therefore, the two elements which are necessary to exist in order to justify the admission of this allegation of the pleadings are conspicuously absent, and under no rule of evidence could it be admitted.

Tbe admission gains no force from tbe fact that subsequently the-referee in the case in which the admission was made found the statement to be correct. Neither would it lose any force by the fact of a finding in that action that the admission or statement was not correct. It is entirely immaterial, as to its admissibility in evidence, what has become of the action in which the admission has been made, therefore the finding of the referee in the action in which the admission was made was entirely immaterial. It did not conclude the plaintiff in this action, and, therefore, it could not conclude-the defendant, because estoppels must be mutual.

There seems, therefore, to have been error committed in the receipt of this admission, and also in the receipt of the finding of the referee in the action in which that admission was made. Notwithstanding the authorities cited upon the part' of the plaintiff to-sustain the admission of the finding, we think that as the parties were different, and as the finding could not have been offered in evidence in favor of the defendant, it may not be used -against her.

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

Brady and Daniels, JJ., concurred.

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


author: Van Brunt, P. J.: Barrett, J.

text:
    In the Matter of the Application of the COMMISSIONERS OF THE DEPARTMENT OF PUBLIC PARKS Relative to Acquiring Title to that part of North Third Avenue, from the Twenty-third Ward Line to Pelham Avenue, in the Twenty-fourth Ward of the City of New York.

      Conveyance of land subject to a street shown on a map — what act shows an acceptance of the street by the public authorities — when an adverse possession does not arise from the act of obstructing a street.

    Upon, an appeal from an order confirming the report of the commissioners in proceedings to condemn land for a public street, it appeared from the papers presented upon the record that the claimant, Mr. I-laskins, acquired his title to the property in question in October, 1850, through a deed made by one Arthur G-. Powell, individually, and as administrator and trustee of the estate of William Powell, deceased. The premises conveyed were part of the farm of the said William Powell who, in October, 1849, filed a map of his farm in the office of the clerk of Westchester county, upon which appeared the lines of a proposed avenue called College avenue. The deed conveyed the said premises, described as lots 2 and 3 on said map, “ together with such parts of the said College avenue as are opposite and contiguous to the said premises hereby conveyed, and together with the one-half of such parts of the said other streets, avenues and roads laid down on said map as are opposite and contiguous to and fronting on the premises hereby intended to be conveyed, respectively, and together with the right of way, by, through and upon said roads, streets and avénues, laid down on the said map, in common with the other part owners of said premises, * * * it being intended to keep open the said streets and avenues as public roads.”
    'Shortly after taking possession under his deed, Mr. Haskins opened College avenue, the easterly line corresponding with the easterly line of that avenue as laid out on the map, but he opened it to a width of fifty feet instead of sixty-six feet, the width as defined by the map. On laying out the avenue Mr. Haskins, who owned the land on the westerly side of the avenue, put up a building partly on the strip of sixteen feet wide,' which was included in the lines of College avenue as laid down on said map, which had been occupied by himself and his tenants up to the time of the trial, taxes being paid thereon to the town of West Farms, while it was part of Westcliester county and to the city of New York since that time. The commissioners awarded nominal damages only for the strip.
    ■On an appeal from the order confirming their report, it was urged that the commissioners were bound to make a substantial award for the strip in question, because, although it was laid out on the map as a part of the public street called College avenue, yet as it had never been accepted as such, the fact of its having been so designated on the map was not to be considered by the commissioners in making their award. ,

      In 1877 the park commissioners filed a map, on which College avenue was-designated as a public street throughout its whole width, as laid out upon the Powell map.

      Held, that the filing of this map by the park commissioners was an acceptance upon the part of the public of the dedication attempted to be made by Powell, unless there had been a revocation of such dedication by some person authorized to make the same prior to such acceptance.
    It was claimed that the occupation of a portion of this avenue by Haskins was a. revocation of such dedication.

      Held, that none but the dedicator, or his legal representatives, could revoke it; that as Haskins acquired his title, subject to the easement created as to the avenue, that the occupation of the locus in quo by him did not extinguish, destroy or impair the easement, because his possession was under the limitations contained in his deed, and was, therefore, not adverse, and, consequently, not susceptible-of ripening into an exclusive right.
    It was also claimed that Haskins had been in adverse possession of the property in question since the construction of the buildings above mentioned.

      Held, that the erection of the building on the part of Haskins was simply an encroachment upon the easement, and was not sufficient to constitute an adverse-possession, or to charge the owner of the easement with any knowledge of any adverse claim on the part of Mr. Haskins, since the right of passage was. conceded by leaving the avenue open to the extent indicated. (Barrett, J., dissenting.)

      Bridges v. Wyckoff(67 N. Y., 180) followed.
    Appeal from an order or judgment of tbe Special Term of the New York Supreme Court, held in the county of New York, made, on the 9th day of November, 1888, in so far as it overruled the-objections of John B. Haskins to the report of commissioners in proceedings to condemn land for a public street, making an award of a nominal sum only for a parcel of land designated as No. 91, and making no award for the buildings erected thereon.

      Abel Crook, for John B. Haskins, appellant.

      Carroll Berry, for the Mayor, etc., respondent.
   Van Brunt, P. J.:

It appears from the papers presented upon this record that Mr. Haskins acquired his title to the property in question in October, 1850, through á deed made by one Arthur G-. Powell, individually and as administrator and trustee of the estate of William Powell, deceased. The premises conveyed were a part of the William Powell or Union Hill farm. In October, 1819, a map of this farm was filed in the office of the clerk of Westchester county, upon which distinctly appeared the lines of what was to be a proposed avenue called therein College avenue. These lines were somewhat altered by a subsequent map made in 1850, and filed in 1851. By the description contained in said deed the premises conveyed to Mr. Haskins were referred to as being lots 2 and 8 on said map and containing two and twenty-seven one hundredths acres of land. The deed conveyed said premises, “ together with such parts of said College avenue as are opposite and contiguous to the said premises hereby conveyed, and together with the one-half of such parts of the said other streets, avenues and roads laid down on said maps as are opposite and contiguous to and fronting on the premises hereby intended to be conveyed respectively, together with the right of way by, through and upon said roads, streets and avenues, laid down on the said map in common with the other part owners of said premises, * * * it being intended to keep open the said streets and avenues as public roads.” Shortly after taking possession under his deed, Mr. Haskins proceeded to open College avenue, the easterly line of which corresponded with the easterly line of that avenue, as laid out on the farm map, but he opened it fifty feet instead of sixty-six feet wide as shown on the map. On laying out the avenue Mr. Haskins, who owned the land on the westerly side of the avenue, put up a building partly on the strip sixteen feet wide which was, as above stated, included in the lines of College avenue, as shown on the farm map, and it has been occupied, by himself and his tenants in possession of the strip, ever since the paying taxes thereon to the town of West Farms while it was part of Westchester county, and to the city of New York since that time.

The commissioners having awarded him nominal damages only for the strip of land and house, Mr. Haskins objected to the confirmation of their report, and from the order confirming such report this appeal is taken.

On behalf of the appellant it is urged that the commissioners were bound to make a substantial award for the strip in question, because, although it was laid out on the'map as a part of the public street called College avenue, yet, it never having been accepted as such, it was not to be so considered by the commissioners in making their award; and, also, because Mr. Haskins has been in adverse possession of the property since the construction of the building as aforesaid.

Yarious authorities have been cited to show, first, that there should be an acceptance of the dedication in order that the owner of the fee should be entitled only to a nominal award; and, secondly, that Mr. Haskins being since 1852 in possession of the property, and paying taxes thereon, has established a claim thereto by adverse possession.

It seems to be clear that the filing of the map by the park commissioners in 1877, making College avenue a public street throughout its whole width as laid out upon the Powell map above referred to, was an acceptance upon the part of the public of the dedication attempted to be made by Powell, unless there had been a revocation of such dedication by some person authorized to make the same prior to such acceptance. It is claimed that by the occupation of a portion of this avenue by Haskins there was a revocation of such dedication, but the difficulty with the position of the appellant is that he had no power whatever to revoke such dedication. By the deed from Powell to Haskins the avenue to the full width was dedicated to the public. Haskins took his title subject to such dedication, and, having acquired his title subject to this easement, none but the dedicator or his legal representatives could revoke it. Mr. Haskins could not revoke it, because, as already said, he took his title subject to the dedication; and, having taken his title in that manner, it was impossible for him to revoke that over which he had no control. If Mr. Haskins had made this dedication or had taken his title irrespective of it, then, perhaps, he might have had the power of revocation ; but having taken subject to this easement, it is difficult to see'how he could revoke a license which had been granted by his grantor, and upon the maintenance of which his grantor had a right to insist, and which right the grantee could not take away from him.

Neither did the occupation of the lomos in quo by Mr. Haskins, upon the ground that it was adverse, extinguish, destroy or impair the easement, because his possession was under the limitations contained in his deed, and was not susceptible of ripening into an exclusive right. The erection on the part of Haskins was simply an encroachment upon the easement, and was not sufficient to constitute an adverse possession, or to charge the owner of the easement, with any knowledge of an adverse claim on the part of Mr. Has-kins, since the right of passage was conceded by leaving the avenue • open to the extent indicated, and unless something appears more-than appears in the papers now before the court, his occupation must be deemed to have been subject to the limitations expressed in his deed.

In the case of Bridges v. Wyckoff (67 N. Y., 130), the plaintiff claimed title to a strip of land eighteen feet in width and forming-part of the street referred to in the conveyance, through which she took title and which had been inclosed by her or her grantor for more than twenty years. The words in the conveyance under which the title was acquired were as follows: ' “ All the right, title and interest of the parties of the first part, in and to the one-half of such streets as lie immediately in front of all the lots hereby conveyed, the same to be used however as public streets or roads, forever.” The plaintiff was defeated on the ground that the deed showed the existence of the street. The court say “the deed' showed that at that time there was no claim of right as against the dedication or the right of the public to take and use .the land as a street,” and, further, that “ all that was needed, therefore, to make the land dedicated a public street, was the acceptance of the land dedicated by the proper pubhc authorities as a street; and it is undisputed that there was such acceptance by the highway commissioners, of the town in 1871.”

In the case at bar there was such acceptance by the filing of the map by the park commissioners in 1877. In the case cited the court say: “ There had been no revocation of the dedication at any time. The original proprietors, and all the other parties interested might have united and revoked the dedication before acceptance by the public authorities, but this they did not do; ” recognizing, therefore, the principle that the grantor or his legal representative was a necessary party to the revocation of this dedication. In the case cited it was claimed that the plaintiff could hold the land fenced in by adverse possession. The court say: “ The difficulty with this claim is that the land was not adversely claimed or possessed,” because in the deed by which she acquired her title the street and the right of the public to use it was expressly recognized.

Our attention has been called to no principle which recognizes a possession adverse to an easement by establishing possession, claiming title under a deed which expressly establishes the easement. There must be something more than mere possession to establish adverse possession. It must be possession under claim of title, and where such claim of title-is founded upon a written instrument, no greater title can be acquired than was given by the instrument itself.

"We are of opinion, therefore, that there was a complete accepted dedication of the premises in question, and that, under the principles governing the making of awards in cases of this description, no error was committed by the commissioners, and the order should be affirmed, with ten dollars costs and disbursements.

Daniels, J., concurred.

Barrett, J.

(dissenting):

I am unable to concur in the conclusions arrived at by my brethren in this case. In my judgment, Mr. Haskin was entitled to a substantial award. He acquired an absolute title to the sixteen feet in question, subject only to a right of way in the adjoining owners, and to a possible acceptance by the public authorities (of West Chester county) of the proferred dedication. There is no question here of adverse possession, T)ut of a use of the easement, adverse to the enjoyment of the adjoining owners.

The easement, having been acquired by deed, could only be destroyed by adverse use for the space of time requisite to create a prescriptive right. A mere obstruction of a way, caused by the owner of the servient estate, for less than twenty years, would not bar the right. And the adverse use for even twenty years must be open and notorious in hostility to and indicating a denial of the right granted. (Wash, on Easements [ed. 1863], 551, § 6, sub. 2, and cases there cited.)

Thus, in Yeakle v. Nace (2 Whart., 123), where eleven lots lying side by side were sold to two persons, ten to one and one to the other, with a right of way across the rear end of each lot, it was held that the owner of the ten lots lost his right of way by acquiescing for twenty-one years in the inelosure and cultivation by his neighbor of the remaining outside lot. The court, in its opinion, gave the following illustration: “ If a man grants twenty-five feet of front on one of the streets of this city, retaining the title to the adjoining land, and at the same time grants the right to an alley four feet wide, between the lot sold and ‘that retained, expressly reserving the right to build under and over the said alley; now the grantor is not bound to build at all, and though he does not for more than twenty-one years, his right to build under and over the alley is not gone; but if his vendee of the twenty-five feet should cover those four feet by his building, the whole right of the vendor to'those four feet would be gone by the limitation of twenty-one yea/rs, unless suit was brought within that time.”

Even in the case of tenants in common, adverse possession, such as will effect the ouster of a co-tenant, may be acquired by unequivocal acts open and public, making the possession so visible, hostile, exclusive and notorious, that notice may be fairly presumed. (Culver v. Rhodes, 81 N. Y., 348; Millard v. MeMullin, 68 id., 345; Humber v. Trinity Church, 24 Wend., 581.)

In the case at bar there was, as to these sixteen feet, an open and notorious denial by Mr. Haskin of the right of way granted to the adjoining owners. The latter were entitled, according to the present contention, to the enjoyment of a street sixty-six feet in width. He asserted that they were entitled to a street of- but fifty feet in width. He opened and has since maintained a street of that width at his own expense, and they acquiesced in the limitation. He took exclusive possession of the remaining sixteen feet, fenced the space in, built upon it, rented it, paid taxes upon it, and in every conceivable way closed it to the street use. All this was before the eyes of the adjoining owners, and for upwards of twenty years they neither dissented nor demurred.

It is entirely plain that their rights, with respect to the subject of this advei'se use, were, upon well-settled principles, abandoned and lost. As to the public, they acquired no vested rights during the twenty years of Mr. Haskin’s hostile and adverse use. The offer of dedication remained open to them, but they did not accept it until Mr. Haskin’s fee had been freed from the easement. They could have stopped the running of this adverse use at any time within the twenty year’s by an acceptance of the dedication. So could the adjoining owners by acts indicative of non-acquiescence or dissent. But the public could not, any more than the adjoining owners, lie by while Mr. Haskin was acting upon his denial of the easement, and then when the adverse use had destroyed the rights conferred by the deed or proffered by the map, come forward, and, by their tardy acceptance, revitalize the dedication.

The public is not bound to accept a proffered dedication. Such acceptance involves duties and responsibilities which the authorities may be unwilling to assume. During these twenty odd years, the authorities of Westchester county declined to accept any duties or responsibilities with regard to the proposed streets in question, nay, more, they observed in silence the assumption of those duties and responsibilities by Mr. Haskin, and they recognized his acts in hostility to the unaccepted dedication by taxing him annually for the structure erected upon these very sixteen feet.

The adjoining owners had at least vested rights during the period of adverse use. The public had nothing but an inchoate right. Both were, lost by the hostile and adverse use thus acquiesced in for over twenty years.

The cases fully support this conclusion. In Baldwin v. City of Buffalo (29 Barb., 396) it was held that where the owner of land dedicates the same to the public for a street, and then grants the land in fee, and the grantee and those holding under him possess and occupy the land for more than twenty-five years before the public asserts any claim or right founded upon the dedication, all right in the public will be deemed to have ceased. On a subsequent appeal in the same case (35 N. Y., 375) it was stated that the plaintiff took the fee subject to the easement j and that the court was unable to discover any principle of law or equity by which the plaintiffs could be allowed to acquire any more interest therein than he purchased, short of twenty years ad/oerse possession.

In Alves v. Town of Henderson (16 B. Monroe, 131) it was held that where an individual inclosed part of the land dedicated to public use and held exclusive possession of it for twenty years, he gained a valid prescriptive title. So, in Rowan’s Executors v. The Town of Portland (8 B. Monroe, 232), Ch. J. Marshall said that the right of the public in property dedicated to public use may be lost by an adverse possession for twenty years. (See, also, Peckham v. Henderson, 27 Barb., 207; Webber v. Chapman, 42 N. H., 326.) Of course, this doctrine does not apply to an established highway where there is no non-user, and where the occupation is a mere obstruction and nuisance. (Driggs v. Phillips, 103 N. Y., 82.)

Bridges v. Wyckoff (67 N. Y., 130), does not conflict with these cases, and, when carefully examined, it will be found to be in entire harmony with the principles above stated. In that case there had been repeated mesne conveyances of the land in dispute; in each of these mesne conveyances the mutual easement in the land had been set out in full and the transfer made expressly subject thereto. By the acceptance of the respective deeds the several grantees had distinctly reaffirmed and recognized the easement. This recognition was plainly fatal to any claim of possession, adverse and hostile to the easement; and as the last of the mesne conveyances (the plaintiff’s) was very much within the statutory limit of twenty years, no title by adverse possession, or exclusive right by adverse use, could have been acquired thereunder. This is apparent from the language of Earl, J.: “ The difficulty with this claim,” that of adverse possession, is that the land was not adversely claimed or possessed. She took her deed in 1862,” the order declaring the street to be a public highway having been made in 1871, “ and i/n that the street and the right of the public to use it as such was expressly recognized. The deed showed that, at that time, there was no claim of right as against the dedication.” And, further: “ It is claimed, however, that the erection and maintenance of the fence enclosing part of the street was to that extent a revocation. The answer to that claim is that it was manifestly not so intended, because in all the deeds coming down as late as 1862, the dedication and the slreets are expressly recognized.”

If Mr. Haskin had deeded to A in 1860, subject to the public right, and A had deeded to B in 1870, subject to the same public right, the case would have been in point, and the acceptance of the dedication in 1877 would have been fatal to B.

I am of opinion, therefore, that Mr. Haskin is the absolute owner of the sixteen feet in question, freed from the easement granted to the adjoining owners by the deed under which he took; and freed, also, from the proffered dedication contemplated by the map filed in 1819 and by the phraseology of his deed on that head.

The order should be reversed, with costs, and the proceedings remitted to the commissioners for revisal and correction.

Order affirmed, with ten dollars costs and disbursements.


author: Van Brunt, B. J.:

text:
    MARY P. WILCOX and Others, as Executrix and Executors of DENNIS C. WILCOX, Deceased, Respondents, v. CHARLES C. DODGE, EDWARD H. POTTER and PETER J. CLAASSEN, Appellants.

      Commission to examine a pa/rty — interrogatories should not be stricken out as being inadmissible under section 829 of the Code of Civil Procedure.

    Upon a commission for the examination of one of the defendants in his own behalf, certain interrogatories to be annexed to the commission were proposed. An objection having been taken to such interrogatories upon the settlement thereof, principally upon the ground that they could not be asked, under the provisions of section 829 of the Code of Civil Procedure, the court made an order disallowing and striking out the said interrogatories, and certain other cross-interrogatories.

      Held, that it erred in so doing:

      Mrst. As it was not certain that, upon the trial, an objection that the evidence would come within section 829 of the said Code would be made.

      Second. Or that, if made, it would necessarily be sustained, there being circumstances in which, during the progress of the trial, the party seeking to avail himself of that section may be precluded from the benefit of the protection granted by it, because of the introduction of evidence upon his own part.
    Appeal from an order, made at a Special Term of the Supreme Court held in the county of New York, dated May 6, 1889, which was entered in the office of the clerk of the county of New York on May 8, 1889, settling the interrogatories and cross-interrogatories proposed to be attached to a commission issued in this action to take the testimony of Edward H. Potter.

      R. F. Clark, for the appellants.

      H. P. Wilds, for the respondents.
   Van Brunt, B. J.:

Upon a commission for the examination of one of the defendants upon his own behalf, were proposed certain interrogatories to be annexed to the commission, and objection having been taken to such interrogatories upon the settlement thereof, principally upon the ground that they should not be asked under section 829 of the Code, the court made an order disallowing and striking out interrogatories and consequently certain cross-interrogatories, and from such order this appeal is taken. (

The rule which is to govern in the settlement of interrogatories shows very distinctly that there is a great differencé between the allowance of an interrogatory on the preliminary settlement thereof and the admission of the answers to the same in evidence upon the trial. (Uline v. N. T. C. and H. R. R. R. Co., 79 N. Y., 175.) In this case it is said that, although the judge in settling interrogatories to be annexed to a commission is required to allow “any question pertinent to the issue,” he has authority to disallow questions not pertinent to the issue, and hence to determine whether the proposed question is pertinent or not; but that this power should be sparingly exercised, as he cannot always foresee precisely what evidence the exigencies of the trial might render proper. He must also allow all pertinent questions, although a judge sitting at the trial might, in his discretion, exclude them.

One of the main grounds upon which the appellant founds his appeal is, that he has a right, for. the purpose of the theatrical effect to be produced upon the jury, to ask a question which he knows must necessarily be excluded at the time at which he puts them. This affords no ground whatever for reversing the ruling which was made in the court below in respect to these interrogatories. The court is not obliged to go through the idle form of allowing interrogatories to be put, when it is absolutely certain that the evidence thus elicited by the interrogatories can never be introduced upon the trial.

But there is a substantial reason why it would appear that the ruling of the court was erroneous. In the first place, it is not at all certain that upon the trial the objection that the evidence comes within section 829 of- the Code will be made, or if made, that it must necessarily be sustained.

Tlie witness is a competent witness and his evidence can be excluded only upon objection taken that the case comes within the purview of section 829. And there are circumstances where during the progress of the trial the party seeking to avail himself of section 829 may be precluded from the benefit of the protection granted by this section because of the introduction of evidence upon his own part. Now it is impossible for the court to say whether during the progress of the trial such circumstances may not arise as will authorize the defendant to introduce this evidence. Such being the fact although it may appear that such evidence cannot be admitted if the objection is taken under section 829, yet it is not absolutely certain but that it may become competent in consequence of something that takes place upon the trial. Under these circumstances, therefore, there seems to be no reason for anticipating that which may or may not happen upon the trial. No harm can possibly be done by allowing the defendant to put these interrogatories, and if the proper objections are raised upon the trial, the judge presiding can afford ample protection to the plaintiffs. We think, therefore, that the interrogatories should be allowed subject to legal objections to be taken at the trial.

The order should be reversed, with ten dollars costs and disbursements, and the interrogatories and cross-interrogatories allowed subject to all legal objections to be taken upon the trial.

Beady and Baeeett, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and the interrogatories and cross-interrogatories allowed subject to all legal objections to be taken upon the trial.


text:
    SAM S. UTTER, Respondent, v. ALEXANDER McLEAN and FRANK T. BROWN, Defendants; WILLIAM D. SOUTHARD and Others, Moving Creditors, Appellants.

      Motion by a junior judgment-creditor of a firm to set aside as framdulent a senior judgment entered on a confession — it may be made, even if the •moving parties were not creditors of the firm which confessed the judgment, where one of the defendants under each judgment is a member of both firms.

    A motion was made on behalf of one Southard and others, judgment-creditors of Alexander McLean and Elizabeth A. McLean, who had duly issued an execu. tion upon such judgment, to set aside a confession of judgment made in favor of Sam S. Utter by the said Alexander McLean and one Frank E. Brown, upon the ground that the said confession was fraudulently entered. No affidavits denying the fraud were offered in support of the confessed judgment, and upon the hearing the court denied the motion.
    Upon an appeal from the order it was urged that the junior judgment-creditors could not, upon a motion, test the validity of a senior judgment upon allegations of fraud, where the senior judgment was valid upon its face.

      Held, that the objection was not well taken.

      Williams v. Hernon (8 Keyes, 99); Chappel v. Chappel (12 N. Y., 215) followed;

      Miller v. Ea/i'le (24 id., 110); Dunham v. Waterman (17 id., 9) distinguished. That, as the moving parties were judgment-creditors, and had issued an execution upon their judgment, they were authorized to make this motion to remove an obstruction to the making of a levy under the said execution.
    It was urged that as the moving parties attacked the consideration upon which the judgment was founded, and alleged the same to be false and fraudulent, that the court could not, and would not, determine, in a summary motion, upon affidavits, such serious charges of fraud.

      Held, that, as the fraud was not denied, there was no difficulty in determining that question.
    It appeared that the moving parties were not judgment-creditors of the firm which confessed the judgment to Utter, but that they were judgment-creditors of another firm, one of the defendants in each of the judgments being a member of both firms.

      Held, that the moving parties had a right to levy upon the assets of the firm of McLean & Brown in order to reach and sell the interest of such common member of the two firms, the defendant Alexander McLean, therein, and to have the obstruction to their so doing, presented by the Utter judgment, removed.
    Appeal from an order, made at a Special Term of the Supreme Court held in tbe county of New York on the 3d day of May, 1889, which was entered iu the office of the clerk of the city and county of New York on the same day, denying a motion to vacate a judgment entered on a confession.

      A. B. Robertson, for the appellants.

      M. Morley Platzek, for the respondent.
   Van Brunt, P. J.:

A motion was made on behalf of one Southard and others, who were judgment-creditors of one Alexander McLean, and one Elizabeth A. McLean, upon which judgment they had duly issued an execution to set aside a confession of judgment made in favor of plaintiff herein, by the said Alexander McLean and one Frank T. Brown, upon the ground that said confession of judgment was fraudulently entered. No affidavit denying the fraud was offered in support of the judgment, and upon the hearing the court denied the motion, and from the order thereupon entered this appeal is taken.

The points which are now urged in support of the ruling of the court below are, first, that the junior judgment-creditors cannot test the validity of a senior judgment, by motion, upon allegations of fraud where the judgment is valid upon its face and in no way defective, and that the only mode of testing the validity of the senior judgment is by an action. And we are referred to the cases of Miller v. Earle (24 N. Y., 110), and Dunham v. Waterman (17 id., 9), to support this proposition. But an examination of those cases show that no such question was there presented. In Miller v. Earle it is simply decided that money made and paid over under a confession of judgment, although it may be defective, cannot be reached by motion where no fraud is alleged. And in Dunham v. Waterman the only point in the decision pertinent to the question now before the court is, that it decides that an action can be maintained to set aside such a judgment. Whereas, in the case of Williams v. Hernon (3 Keyes, 99), and in Chappel v. Chappel (12 N. Y., 215), the right of the court to entertain a motion to set aside a confession of judgment, upon the ground of fraud, is expressly recognized. The same was held in case of Frasier v. Frasier (9 Johns., 80), where the Supreme Court directed an issue as to charges of fraud to be tried.

It is further urged, as an objection to the granting of this motion, that in an action by a judgment-creditor to set aside a judgment or conveyance upon the ground that such judgment or conveyance was made to defraud creditors, the plaintiff must allege in his complaint, and prove on the trial, that his execution has been returned unsatisfied, or that an execution has been issued upon the judgment.

This proposition is undoubtedly true; but in the case at bar all the conditions have been fulfilled. The moving party is a judgment-creditor. He has execution issued upon his judgment, and he makes his motion to remove an obstruction to the levying of the execution which he has issued. He is in a condition to maintain an action, and being in a condition to maintain an action he can, under the authorities cited, obtain this relief by motion, the court having full control over its own judgment. It is urged that the moving party attacks the consideration upon which the judgment is founded and alleges the same to be false and fraudulent, and that the court cannot and will not determine in a summary way, on motion, on affidavits only, such serious charges of fraud. In reply to this objection, it seems to be sufficient to say that when the fraud is confessed there is no very great difficulty in determining the only questions of fact which are necessary to entitle the moving party to the relief asked.

But there is another point which seems to be necessary to consider upon this appeal, and that is that the moving parties are not judgment-creditors of the firm who confessed the judgment to the plaintiff, but they are judgment-creditors of another firm not composed of the same persons. It appears, however, that one of the defendants in each of the judgments is the same persons, and the moving parties, therefore, have a right to levy upon the assets of the firm of McLean & Brown to reach and sell the interest of the defendant Alexander McLean therein. The judgment, therefore, by confession, and the execution issued thereunder, should be set aside so far as they obstruct the moving parties from levying upon and selling the light, title and interest of Alexander McLean in the firm property of McLean & Brown.

The order appealed from should be reversed, with ten dollars costs and disbursements and the motion granted to the extent indicated.

Brady and Barrett, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted to the extent indicated in opinion.


text:
    JOHN BUHRENS, Respondent, v. THE DRY DOCK, EAST BROADWAY AND BATTERY RAILROAD COMPANY, Appellant.

      Negligence — when an error of judgment is not — the rights of horse ca/rs in respect to points where their tracks cross intersecting streets a/i’e the same as those of other vehicles.

    In an action, brought to recover damages on account of personal injuries received by the plaintiff, who was a baker, it appeared that on the morning of December 15, 1884, he was driving his wagon through Pike street, towards East Broadway, New York, in which latter street the defendant’s horse railroad tracks were laid. The morning was dark and it was raining hard, but the electric lights were burning and a person could see a distance of three-quarters of a block away. When the plaintiff reached the corner of the street he looked out of the wagon and saw a car coming terribly fast about seventy-feet away. The plaintiff’s horse was then about ten feet from the car track. There was a hill down which the car was coming, and on account of the rain the tracks were slippery. The street where the plaintiff was traveling was level.
    Upon the trial, when asked why he did not stop when he saw the car only seventy feet away, he replied, “Tliecarhad just as much time as I did to stop,” andstated that he did not make any attempt to check his speed at all but pushed right ahead. The car struck the hind wheel of the wagon, tilted it over, and plaintiff was injured.
    Upton the hearing of an appeal from a judgment entered in the plaintiff’s favor it was claimed that the uncontradicted facts showed contributory negligence, in that, as the plaintiff saw the defendant’s car approaching at an excessive rate of speed, it necessarily followed that he was negligent in pursuing his course.

      Held, that, assuming that the plaintiff saw the car approaching very fast, still, as there was nothing to indicate to him that it was not under the control of the driver, he had a right to believe that the latter would exercise proper care; and although subsequent events proved that he had erred in his conclusion that he could drive clear of the approaching car, that it was a mere error of judgment and did not necessarily constitute negligence, when the proof showed that if the car had been properly managed he would have been enabled to cross in safety.
    It was claimed upon the part of the defendant that it had the right of way, and that, therefore, it was the duty of the plaintiff to stop in order to allow the car to pass.

      Held, that while it was well settled that street railway cars have to a certain degree a right of way over their tracks in respect to vehicles passing in a direction the same or opposite to that of their cars, within the space embraced within their tracks, yet, in respect to those points where the tracks cross other streets, there is no reason and no necessity of giving vehicles of this description any such exclusive right over vehicles crossing their tracks.

      That their use of the streets at such points is of precisely the same nature and character as that of other vehicles, and their right to the street, and their use thereof, in respect to other vehicles, are precisely the same as those of such other vehicles.
    That the judgment should he affirmed.
    Appeal from a judgment in favor of the plaintiff, recovered on the verdict of a jury for $1,000, rendered at the New York Circuit, which was entered in the office of the clerk of the county of New York on February 13, 1888; and also from an order denying a motion, made on behalf of the defendant on the minutes of the justice presiding at the trial, for a new trial.

      J. M. Scribner, for the appellant.

      W. H. Townley, for the respondent.
   Van Brunt, P. J.:

This action was brought to recover damages on account of personal injuries received by the plaintiff. The plaintiff is a baker. On the morning of December lo, 1884, he was driving his wagon through Pike street, towards East Broadway. The defendant’s tracks are in the latter street, the down track being the one nearer the north side. The morning was dark and it was raining hard, but the electric lights were burning and a person could see a distance of three-quarters of a block away. When the plaintiff reached the corner of the street he looked out of the wagon which had open sides, and saw a car coming terrible fast, about seventy feet away; the plaintiff’s horse at the same time being about ten feet from the car track. There was a hill down which the car was coming, andón account of the rain the track was slippery. The street where the plaintiff was traveling was level. When asked why he did not stop when he saw the car coming, only seventy feet away, he replied, The ear had just as much time as I did to stop,” and that he did not make any attempt to check his speed at all but pushed right ahead. The car coming along struck the hind wheel of the wagon, tilted it over and the plaintiff was injured. The jury rendered a verdict for the plaintiff, and from the judgment thereupon entered this appeal was taken.

The ground upon which the appellant claims a reversal is, that the uncontradicted facts show contributory negligence, in that as the plaintiff saw the defendant’s car approaching at an excessive rate of speed, it necessarily follows that he was negligent in pursuing his course.

It appears that the plaintiff was driving slowly, and that all of the wagon except the hind wheel cleared the car, which shows that the plaintiff’s opinion that he could pass the car safely was not entirely without foundation, and if the latter had been properly managed would have been undoubtedly correct.

Assuming that the plaintiff saw the car approaching very .fast, still there was nothing to indicate to him that it was not under control of the driver, and he had a right to believe that the latter would exercise proper care. The plaintiff supposed he would clear the car, and, although subsequent events proved that he erred in this conclusion, a mere error of judgment was not necessarily negligence when the proof shows that had the car been properly managed, as the plaintiff had a right to assume it would be, he would have been enabled to cross in safety.

From these facts it being possible to draw an inference that the plaintiff had not been guilty of negligence in attempting to cross, under the circumstances disclosed, the question of negligence necessarily became a question for the jury, and it was for them to say whether the plaintiff had proved himself to be free from negligence or not.

It is not the province of the court to determine this question, where it is possible to draw different inferences or conclusions from the facts disclosed. It is true that the plaintiff stated after the accident that the car had just as much time as he had to stop; but this indicated nothing except the fact which was self evident, and the car would, if properly managed, have had more time to stop than the plaintiff.

It is claimed upon the part of the defendants, however, that they had the right of way, and therefore it was the duty of the plaintiff to stop to allow them to pass. It is undoubtedly well settled that street railway cars have, to a certain degree, the right of way over their tracks in respect to vehicles passing in the same or opposite directions to the cars within the space embraced between their tracks. This right has been conceded to vehicles of the description of street cars, simply because of the necessities of the situation.

A street car is confined to its track; it cannot turn out to pass a vehicle which is proceeding in the same direction with it at a slower pace, neither can it turn out to avoid a vehicle passing in an opposite direction. And it is because of this inability and the fact that their calling could not be pursued without giving them this right that it has been held that they have the right of way within the limitations already mentioned. But in respect to those points where their car tracks cross other streets, there is no reason and no necessity for giving to vehicles of this description any such exclusive right. Their use of the streets at such points is of precisely the same nature and character as that of other vehicles, and their rights to the street and the use thereof in respect to other vehicles are precisely the same as those of such other vehicles. There is no necessity for adjudging to them any right of way, as their construction and method of propulsion is in no greater respect interfered with, under such circumstances, than are those of other vehicles. We do not, therefore, concede the claim upon the part of the defendants, that they had a right of way, and that they had a right to assume that the plaintiff would stop to allow their car to pass, but that the plaintiff had a right to assume that the car would give him the way to which he was entitled by the fact of the position which he had attained at the crossing.

The only exception to which it is necessary to call attention is the exception to the question where the plaintiff’s counsel was allowed to ask the driver if he had not been previously discharged from another road. This ruling was probably erroneous. But as in his answer the witness admitted the fact, further stating that he was discharged on account of political influence, the error was harmless.

We are of the opinion, therefore, upon the whole case, that it was a question for the jury to determine as to whether, under the circumstances of the case, the plaintiff had shown himself to be free from contributory negligence or not, and it was not error to submit this question to them for their consideration.

The judgment appealed from must be affirmed^ with costs,

Cullen, J., concurred.

Judgment affirmed, with costs.


text:
    THE FIRST NATIONAL BANK OF PATTERSON and Others, Appellants, v. THE CENTRAL NATIONAL BANK, Impleaded with WILLIAM M. HALSTEAD and Others, Respondents.

      Payment of a debt preferred by a general assignment which has been subsequently vacated, — the amount paid cannot be recovered from a bona fide creditor.

    A complaint alleged that the plaintiffs were judgment-creditors, with executions returned unsatisfied, of the defendants, composing the firm of Halstead, Haines & Co., who, on the 13th day of July, 1884, made and executed an assignment purporting to convey to their assignee all their joint and individual property for the benefit of creditors; that the said assignment was made by the assignors with the intent to hinder, delay and defraud their creditors, including the plaintiffs; that the said assignment, at the suit of other creditors, had been declared void; that the defendant, the Central National Bank, was preferred in the said assignment as a creditor of said assignors, and that such preference was paid by the assignee prior to the commencement of this action.
    Judgment was demanded that the assignment be declared void; that a receiver be appointed; that the money so paid to the bank by said assignee be adjudged to have been paid wrongfully, and that the defendants be compelled to account for all the property of the said firm, including the said sum so paid to the Central National Bank; that out of that property the judgments for the plaintiffs should be paid.
    Upon an appeal from a judgment, entered upon a decision sustaining a demurrer to the complaint:

      Held, that the judgment should be affirmed.
    That the fact that a preference was contained in the assignment made it no more susceptible to attack than if such preference was not contained therein.
    That the assignee was protected in making the payment, and he could not be called upon to account for it, nor to refund the money which he had paid out pursuant to the directions contained in a fraudulent assignment.

      Ames v. Blunt (5 Paige, 33); Miller v. Earle (34 N. Y., 110) followed.
    That, as the assignee had a right to pay, a bona fide creditor had a right to receive, and the acf of the creditor in receiving the payment could not be challenged, while the act of the assignee in paying was held legal and valid.
    Appeal from an interlocutory j udgmont, entered in the office of the clerk of the county of New York, April 24, 1889, upon the decision of a Special Term of the Supreme Court, held in New York county, sustaining a demurrer interposed to the complaint, and also from the order sustaining such demurrer entered in said office April 23,1889.

      J. J. Adams, for the appellants.

      George A. Strong, for the respondents.
   Van Brunt, P. J.:

The complaint alleges that the plaintiffs are judgment-creditors, with executions returned unsatisfied, of the defendants, composing the firm of Halstead, Haines & Co , who, on the 12th of July, 1881, being possessed of a large amount of property, made and executed an assignment purporting to convey to their assignee therein named all their joint and individual property for the benefit of creditors, with preferences, and a copy of said assignment is annexed to the complaint. The complaint further alleges that the said assignment was made by the assignors with intent to hinder, delay and defraud their creditors, including the plaintiffs, and that said assignment at the suit of other creditors has been declared void; that the defendant, the Central National Bank, was preferred in said assignment as a creditor of said assignors, and that such preference was made by the assignee prior to the commencement of this action. The complaint thereupon demands judgment that the assignment be declared fraudulent and void as against the plaintiffs; that a receiver be appointed, and that the money so paid to the defendant, the Central National Bank, by said assignee be adjudged to have been paid wrongfully and in fraud of the creditors of the defendants, composing the firm of Halstead, Haines & Co., and that the said defendants be compelled to account for all the property of said firm, including the said sum so paid over to the defendant, the Central National Bank, and now held by it; and that out of said property the judgments of these plaintiffs be paid, with interest and costs. To this complaint the defendant, the Central National Bank, demurred upon the ground that it does not state facts sufficient to constitute a cause of action; upon the argument of this demurrer at Special Term it was sustained, and from the interlocutory judgment thereupon entered this appeal is taken. At the outset it is necessary to correct some erroneous views which seem to pervade the whole of the discussion of the questions involved upon this appeal upon the part of the appellants. It seems to be assumed that because the Central National Bank was a preferred creditor, that, therefore, some other or different rule is to be applied in considering the questions raised by this demurrer from that which would obtain had they not been such preferred creditors and the assignment had been simply an assignment without preferences. It is hardly necessary to discuss the question as to whether an assignment without preferences might not be void as well as an assignment which attempts to prefer creditors. The fact that preferences are contained in the assignment makes it no more susceptible to attack than if such preferences were absent* íí the assignment, with or without preferences, is made with intent to hinder, delay or defraud creditors, it may be set aside by a creditor who is in a position to file his bill for that purpose, and he m^y thereby obtain a preference upon the assets which were attempted to be assigned by an assign rnent without preferences in precisely the same manner as he could in the cáse of an assignment with preferences which had been made to hinder, delay and defraud the creditors of the assignors. Therefore, the question presented by this appeal is, whether a creditor can ever, under any circumstances, receive with safety payment of his debt through the instrumentality of an assignment.

It may be urged that this is not the question involved, but that it states much too broadly the situation as developed by the plead ings before the court. In considering the question which is presented by the pleadings, it is necessary to bear in mind the results which must necessarily follow from the rule sought to be sustained by the appellants. If this rule is to obtain, then no creditor can ever, when he receives the payment of his debt through the instrumentality of an assignment of his debtor’s property, be sure that he may not be called upon to refund the money, because of fraud in the making of the assignment. This statement is true, because if an action may be brought after a creditor has been paid his debt through the instrumentality of an assignment by any judgment-creditor to set aside the assignment, and recover back the money paid under it to the creditor, and devote it to his own use, then, under the statute of limitations applicable to these causes of action, the creditor receiving the money is never safe, because the other creditor has a right to bring his action at any time within six years after the discovery of the fraud ; and if he discovers the fraud twenty years after the payment has been made, we can see no reason, if this rule- is to prevail, why the creditor cannot be made to disgorge the money for the benefit of this creditor who lias accidentally acquired knowledge that twenty years before there was fraud in the assignment under which the creditor had been paid, and that, too, long after the debt due to the creditor who is thus pursued has been outlawed and he has lost all remedies of every kind and nature against his debtor.

It is not necessary to discuss the proposition that the assignee is protected in making these payments, and that he cannot be called upon to account for them nor to refund the money which he has paid out in pursuance of the directions contained in the fraudulent assignment. That proposition is not challenged by the learned counsel for the appellants, but it is claimed that, although the act of the assignee is valid in paying the money, and although he cannot be called to account, yet the act of the bona fide creditor in receiving it is unlawful. It seems to us that if the assignee has a right to pay, there can be no question but that the bona fide creditor has the right to receive, and that the act of assignee in paying cannot be held legal and valid, and the act of the creditor in receiving payment be challenged.

We can safely rest the decision of this question upon this point alone, because we know of no principle under which the title to property can be attacked, where the act of tbe person in transferring the title was legal and valid. The right to property has been set aside where the act of the transferror of the property has been invalid and done with a fraudulent intent, and where the transferee was aware of that fraudulent intent, or where he had not parted with any value upon the receipt of the property. But where the act of the transferror cannot be attacked, and has in no manner .defrauded or injured the persons complaining of such act, and where the property is received by the transferee in good faith and for a valid consideration, it is difficult to see upon what principle ^.the title to this property can be attacked by anybody.

' The decision in the leading case, upon the point that an assignee cannnot be rendered responsible for the proceeds of the assigned property, which has been distributed to bona fide creditors under the assignment, clearly shows that the above statement is entirely correct. It is said in Ames v. Blunt (5 Paige, 222) that the liability of the assignee for the proceeds of the assigned property, which has been distributed to the tona fide creditors under the assignment, must depend upon the question whether the legal or equitable rights of the plaintiffs have been impaired or affected by such distribution; in other words, whether they have, in fact, been defrauded thereby. The principle, then, upon which the decision of the court in Wakemem v. Orover, and of the vice-chancellor in the present case, is sustainable is that the proceeds of the assigned property had been distributed according to the directions of the assignors in payment of tona fide creditors, to whom such proceeds might have been lawfully distributed by the assignors themselves at any time before the plaintiff had obtained any legal or equitable lien thereon, and that, therefore, the complainants had not been defrauded or injured by such distribution. This case was approved in the case of Miller v. Ernie (24 N. Y., 110).

Now, if the assignee by his distribution of the assigned property, according to the directions of the assignors, in payment of tona fide creditors, did not defraud or injure the complaining creditors, then in what possible way has the creditor sharing in the distribution defrauded or injured the complaining creditors by receipt of the payment of his debt. Although other points have been presented by the argument of counsel for the respondents, yet we think that we should rest the decision upon this one alone, and we should not consider others, although it might be shown, we think, very conclusively, that for other reasons none of the points presented by the demurrer have been well taken. But we do not consider it advisable to enter upon this discussion, as it might draw attention away from the single proposition which it seems to us must control the disposition of this appeal.

The judgment appealed from must be affirmed, with costs.

Brady and Daniels, JJ., concurred.

Judgment affirmed with costs.


author: Merwin, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. EDMUND G. HUTCHINSON and Others, as Trustees of the First Congregational Church of the Village of Phoenix, Appellant, v. JOHN O’BRIEN and Others, as Assessors of the Village of Phoenix, Respondents.

      Religious society — land of, occupied by a church and a pm'sonage building — the pm'sonage is not exempt from tarnation — form of assessment.

    Upon an appeal from an order affirming an assessment upon certain real property belonging to the relators, and dismissing a writ of certiorm'i, obtained, under chapter 269 of 1880, to review an assessment, it appeared that the relators, the trustees of a church, owned a parcel of land situate in the village of Phcenix, 132 feet wide on Bridge street and 150 feet deep on Jefferson street. At the time the assessment was made there stood upon the land, fronting on Bridge street, a brick church used by the relator’s society exclusively for public worship; and also fronting on the same street, and separated from the church by a narrow space, a wooden building, erected and used by said association exclusively for the parsonage, and occupied by the pastor of the church as a dwelling-house. The pastor received an annual salary, the parsonage being furnished for his use by the society; upon the rear of the lot were sheds for horses to accommodate the teams of those attending public worship.
    It was claimed by the relators that the ground upon which the building, denominated a parsonage, stood was exempt from taxation under subdivision 3 of section 4 of title 1, chapter 13, part 1 of the Bevised Statutes, as amended by chapter 397 of 1883.

      Held, that the parsonage was not exempt from taxation, and that the assessors properly assessed it.

      Tlie cases bearing upon this question, collated and considered by Yann, J., at Special Term.
    The assessment was against “ Trustees First Congregational Church,” the property assessed being described as “parsonage,” and the valuation was entered $1,600.

      Held, that this description did not mislead the relators.
    That the absence of a statement of the quantity of the land which it was intended to assess, if important under the village charter, was not a source of any injury to the relators.
    That the proper mode of assessing such property was to take the value of the part of the lot actually occupied by the religious society from the value of the whole property, and to assess the society upon the value of the residue.
    Appeal from an order of the Onondaga Special Term, which was entered in the office of the clerk of Oswego county on September 28, 1888, affirming an assessment against the relators and dismissing a writ of certiora/ri obtained under the provisions of chapter 269 of the Laws of 1880, to review an assessment upon certain real property belonging to the First Congregational Church of the village of Phoenix, known as the parsonage.
    The relators are the trustees of a religious corporation which owns a parcel of land situate in the village of Phoenix, 132 feet wide on Bridge street and 150 feet deep on Jefferson street. At the time the assessment in question was made there stood upon the said lot, fronting on Bridge street, a brick church used by said society exclusively for public worship, and, also, fronting on the same street and separated from the said church by “ a narrow space,” a wooden building, erected and used by said association exclusively for a. parsonage, and occupied by the pastor of said church as a dwelling-house. The pastor received an annual salary, the parsonage being furnished for his use by the society. Upon the rear of said lot were “ sheds for horses, and a barn erected and used for the accommodation and comfort of the teams and horses of those who may attend public worship at said church.” The greater portion of the entire parcel of land was covered by the erections aforesaid.
    The following opinion was delivered by Yann, J., at Special Term:
    “Vann, J. This proceeding presents the following question for decision: Where two buildings belonging to a religious corporation stand near each other and upon the same parcel of land, one being used for a church and the other for a parsonage, is the latter exempt from taxation under the laws of this State ?

      “ This precise question does not appear to have been passed upon by our courts, although the opportunities to raise it have been numerous and frequent. As recently said by one of the justices of this court, when considering a kindred topic, the question has in this State usually been one of concession rather than litigation.’ {People ex rel. Semvncvry of Ov/r Lady of Angels v. Barber, 42 Hun, 27, 31.)

      “ Certain general principles applicable to the subject of exemption from taxation are, however, well established. Taxation is the rule and exemption from taxation the exception. Every presumption is in favor of the tax and against the exemption. A statute in order to create an exemption must be clear, explicit and free from doubt. Its language is to be strictly construed, and must plainly express the intention of the legislature. If its meaning is doubtful, the decision of the courts must be against the exemption. The right must be expressly conferred, and it can never arise by mere implication. "When, however, the power of exemption is clearly exercised by the legislature, effect must be given to it by the courts.
    " These rules are applicable to religious, charitable and educational corporations claiming exemption from taxation. The authorities upon- the subject are uniform and too numerous for convenient citation, but they can be found in nearly all of the text books, and especially in the following: Cooley on Taxation (pp. 146-152); Burroughs on Taxation (pp. 132-136); Blackwell on Tax Titles ([3d ed.], pp. 403-409); Browne on Assessments and Taxation (pp. 20-34); Snyder on Religious Corporations (p. 86).
    “ Our Revised Statutes provide that £ every building erected for the use of a college, incorporated academy or other seminary of learning, and in actual use for either of such purposes, every building for public worship, every school-house, court-house and jail used for either of such purposes, and the several lots whereon such buildings so used are situated, and the furniture belonging to each of them,’ shall be exempt from taxation. (2 R. S. [7th ed.], 982, § 4, sub. 3, as amended by chap. 397, p. 571, Laws of 1883.)
    " If a liberal construction of this statute would include a parsonage under the description of a building for public worship upon the ground that it indirectly promoted that object, the strict construction that is uniformly applied to the subject by the courts of all the States and of the United States, without exception, does not permit that conclusion. A building used solely for a private residence, and in which public worship is never held, is not a building for public worship'. The public have no more right to enter a parsonage, occupied by the clergyman and his family, for public worship, than they have to enter the residence of any member of the congregation for that purpose. A parsonage is not used for public worship, but is simply the residence of the pastor who conducts public worship in another building devoted exclusively to that object. As held by the court in the Trinity Church Case (10 How. Pr., 138): ‘ A building for public worship is an edifice devoted primarily, if not exclusively, to church services generally.’ A building may be used for worship, as every private house should be, but it is public worship or religious services to which the public is admitted that is required by the statute. As pertinently asked by Judge Peckham in a recent case, ‘ How can that worship be called public to which the public is not admitted ? ’ {Assn, for Colored Orphans v. Mayor, etc., 101N. Y., 585.)
    “ If a religious association furnishes its pastor a. house free of rent, the use of that house relieves the society from the payment of a salary that otherwise would be correspondingly larger. Thus the rental value of the parsonage is a part of the pastor’s compensation. If he saw fit to board and lease the house to some one, he would receive the rental value in money instead of actual use. If he let the house for some commercial purpose the result would be the same. He would receive the rent as a partial compensation for his services, and the society would have to raise by ordinary methods so much less money. Thus we might have the extreme but still possible case where a part of the property of a religious corporation was used for a manufactory, the income going to the support of the pastor. Such a case, however improbable, would not differ in legal effect from the case under consideration, because in either event the rental value of the property claimed to be exempt would go to the support of the pastor, and thus, indirectly, promote public worship. The building would not, however, be used for public worship. Such a construction of the statute would pervert its meaning and lead to a result never intended by the legislature. The statute, when strictly construed as the law requires, limits the exemption to a building actually used for public worship, and does not include a building the income or use of which is devoted to the support of the pastor.
    “ The severity with which the rule of strict construction has been applied is illustrated by the following cases: Chega/ry v. The Mayor, etc. (13 N. Y., 220); Colored Orphan Asylum v. The Mayor, etc. (104 id., 581); Buffalo City Cemetery v. City of Buffalo (46 id., 506).

      “ The relators claim that the case of the Yoimg Men's Christian Association of the City of New York v. Mayor (44 Hun, 102), recently decided by a divided court in the first department, is applicable to this proceeding. The decision in that case, however, was placed upon the ground that the building was used exclusively as a place for holding public worship and religious and social meetings, and for imparting religious and secular instruction to young men. In other words, it was used partly for public instruction and partly for public worship, and was held to be exempt on both grounds.
    " The' case of the People ex rel. Semina/ry of our Lady of Angels v. Ba/rb&r (42 Hun, 21), is also cited by the learned counsel for the relators. This case was based upon the statute exempting every building erected for the use of a college, incorporated academy or other seminary of learning.
    “ It is obvious that buildings erected for the use of schools, the subjects taught being unlimited, have a much wider range of uses than a building for public worship simply. Accordingly it was held that in the case of a public seminary of learning, the statutes make no qualification of the purpose for which the lot and buildings might be used other than that which is necessarily or fairly incident to the objects of the institution, and that all lands and buildings used in the proper business of the institution were exempt from taxation. This case goes further than the Court of Appeals has yet gone, but not far enough to control the decision of the case at bar.
    " Although no case has been cited from the reports of this State in which the exact question under consideration was determined, we are not without light upon the rule as settled in other States.
    " Under a statute in Indiana exempting every building erected for religious worship * * * and the lands whereon such build-

      ing is situate, not exceeding ten acres,’ it was held that a parsonage standing within twelve feet of the church and communicating with it by means of doors opposite each other through which the pastor had access to his study in the church, and to the part of the church used for public religious services, was not exempt. (Trustees, ete. v. Ellis, 38 Ind., 3.)
    “ A statute of Massachusetts exempted ‘ all houses of religious worship.’ A congregation erected a building for that purpose, consisting of a cellar, basement story and second story. The second story was used for a church, the cellar was used to heat the church by means of a furnace, but the basement story was rented for secular purposes, and the income used to pay for erecting the building and the support of public worship. It was held that the part that was rented was not exempt from taxation. (Proprietors, ete. v. City of ToweTl, 42 Mass. [1 Mete.], 538.)
    “ The courts of Ohio, Michigan and Missouri hold to the same effect. (Cincinnati College v. The State, 19 Ohio, 110; Detroit, etc., Society v. Mayor, etc., 3 Mich., 172; Wyman v. City of St. Louis, 17 Mo., 334.)
    “Under a statute of Kansas exempting all property used for religious purposes, it was held that a dwelKng-house, owned by the diocese of the Episcopal Church and used by the bishop as a residence, was not exempt. The court said: In this case the property is used as any other dwelling, and the use is not distinguishable from that of the residence of any other Christian pastor or Christian gentleman. ( Viml v. Beach, 10 Kan., 214; see, also, The State v. Boss, 24 N. J. [Law], 497; Pierce v. Inhabitants of Cambridge, 56 Mass. [2 Cush.], 611; The Evrst M. E. Church v. City of Chicago, 26 111., 482.)
    “ My conclusion is, that the property in question is not exempt from taxation, and that the assessors simply did their duty in assessing it.
    “ The proper mode of assessing such property is to deduct the value of the part actually occupied by the corporation from the value of the whole estate, and the society or college should be assessed upon the value of the rest of the property thus ascertained.” (Burroughs on Taxation, 134; Detroit, etc., Society v. Mrnyor, etc., 3 Mich., 172.)

      “ As no complaint is made by tbe relators that tbe valuation is. excessive or unjust, it is to be presumed that the assessors adopted the proper rule in making the assessment.
    “ The prayer of the petitioner is denied and the writ dismissed.”

      Avery & Merry, for the appellants.

      O. M. Reilly, for the respondents.
   Merwin, J.:

Two propositions are presented by the appellant: First. That the lot upon which the building denominated a parsonage stands is exempt from taxation under subdivision 3 of section 4 of title 1, chapter 13, part 1 of the Revised Statutes, as amended by chapter 397 of 1883. Second. That the assessment is void for not containing a description nor giving the quantity of land to be taxed.

The first proposition is fully discussed by Mr. Justice Yann in the opinion delivered by him at Special Term, upon making the order appealed from. There is no occasion for any further discussion of the subject. We agree with him in his view that the parsonage was not exempt’.

The second proposition does not seem to have been raised at Special Term. It is not stated in the writ of certiorari as a ground for relief, nor does it appear to have been raised before the assessors, although upon grievance day the relators appeared before them and asked for relief on the other ground. It is, however, stated in the petition upon which the writ was granted. The assessment was against “Trustees First Congregational Church,” the property assessed was described “parsonage,” and the valuation was entered “ $1,600.” The description did not mislead the relators. (Tallman, v. White, 2 N. Y., 66.) There was no doubt about the identity. Presumptively, it was so much of the lot as was covered by the parsonage. It was understood to be a real estate assessment, so alleged in substance in the petition. The absence of á statement of the quantity, if important under the charter of the village (chap. 639 of Laws of 1868, as amended by chap. 257 of 1888, tit. 4, § 6), is not a source of any injury to the relators. As said in People ex rel. Delaware and Hudson Canal Company v. Parker (45 Hun, 432), injury must be shown or the alleged illegality will be unavailing. under the act of 1880. No question is made about tbe valuation.. We think there is nothing in the form of the assessment that presents-here any good ground for disturbing the order.

The order should be affirmed, with costs.

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

Order affirmed, with costs.