author: Parker, J,:

text:
    Tyndale Palmer, Respondent, v. The Chicago Evening Post Company, Appellant.

      Managing agent of a foreign corporation— 0ode of Qivil Procedure § 432, subd. 3.
    A foreign newspaper corporation employed an agent who was compensated'by commissions, and occupied an office upon which was the sign of the principal; the principal in a letter referred to such agent as its “ eastern representative,” and the agent advertised in newspapers under the newspaper name of the corporation, signing the advertisement as its “eastern representative.” The business of the agent was the soliciting and obtaining of advertisements and the making of contracts therefor upon a prescribed schedule of fates, and when special rates were submitted to the agent for adoption or rejection, outside of the schedule rates by which he was to be guided, it was his duty to submit such propositions to his principal at its general office in Chicago.
    All the corporation’s business transacted in the State of New York was conducted^ by such agent, subject to no other direction than such as he received from the general office of the corporation, a considerable part of the business being transacted by him under general directions, the exceptions being special propositions for advertising below the rate which, by his general directions, he was authorized to accept.

      Held, that the agent was the managing agent of the corporation within the meaning of subdivision 3 of section 432 of the Code of Civil Procedure.
    Appeal by the defendant, The Chicago Evening Post Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of December, 1894, denying the defendant’s motion to set aside the service of the summons upon it.

      Wager Swayne, for the appellant.

      Jewries It. Soley, for the respondent.
   Parker, J,:

The question is whether Thaddeus B. Eiker was managing agent of the defendant within the meaning of subdivision 3 of section 432 of the Code of Civil Procedure, which prescribes how personal service may be made upon a foreign corpoi’ation.

It would be comparatively free from difficulty were it not that appellant insists that the Court of Appeals in Taylor v. G. S. P. Assn. (136 N. Y. 343) stated what constitutes a managing agent, and that an abatement of one jot from the full measure of that rule takes him without the section.

It would be a difficult task to formulate an inflexible rule which should in each and every part present the true division line between managing and other agents, owing to the almost infinite variety of business carried on in this State by foreign corporations varying in character and necessarily requiring officers, agents or employees with varied capacities, powers and duties.

Some foreign corporations practically transact all of their business in this State, their incorporation elsewhere being for the purpose of obtaining a more favorable charter or escaping taxation, while others, like this defendant, do the greater part of their business within the limits of the State creating them, but have branch offices in other jurisdictions where business is solicited, contracted for and paid for.

The fact that no two cases are alike, that each must depend on its own peculiar facts, has led to the adoption of only the most general rules for their disposition. And it seems to us clear that the court did not intend to, and did not in fact, work out any change in the hitherto substantially uniform tendency of the decisions.

What was decided was' that the relation of attorney and client does not constitute such an agency. The facts were that the person served, as the managing agent of the defendant, had been employed by it to foreclose, and he had foreclosed a mortgage owned by it, and had never been connected with the defendant in any other way.

The question was not at all on the border line, and the court so treated it, referring only to Peddington v. Mariposa L. & M. Co. (19 Hun, 405), and Sterrett v. Denver & R. G. R. Co. (17 id. 316).

We are thus brought to an examination of the decisions which fully justify, as we think, the determination of the Special Term.

Hiller v. Burlington & Mo. R. R. Co. (70 N. Y. 223) was not a case of service upon a managing agent, but upon one of the directors of a foreign corporation while temporarily in this State in the pursuit of his own business. It is not, therefore, precisely analagous, but the reasoning which led the court to hold the service sufficient is in point and instructive.

'In delivering the opinion of the court Judge Earl said: “ Corporations are intangible, incorporeal existences, and service of process upon them can only be made by service upon some one of their agents or officers. The Legislature has power to determine how and upon whom service shall be made. It may determine that service shall be upon the board of directors while in session, or upon any of the executive or administrative officers, directors or other agents. The object of all service of process is said to be to give notice to the party on whom service is made that he may be aware of and may resist what is sought of him, and it is a general rule that any service must be deemed sufficient which renders it reasonably probable that the party proceeded against will be apprised of what is going on against him, and have an opportunity to defend.”

In Palmer v. The Pennsylvania Company (35 Hun, 369) a motion to set aside service on grounds similar to those made in the present case was denied. The defendant’s affidavits showed that the alleged agent was appointed by another company, subject to discharge by that company, and wholly paid by that company, but that as a matter of convenience in the transaction of certain details in connection with the business of the defendant, such as the transmission of reports, he was authorized to act for the defendant.

The General Term in affirming the order of the Special Term said : “ There is no doubt that defendants hold Pollock (the alleged agent) out to the world as their agent in the city of New York. It is plain that he has a large authority and within a wide field his acts are binding on defendant-. The Code does not specify the extent of the agency required to bind defendants by service of process, except that the person upon whom the service is made must be managing agent. Were the rule to be established as contended by appellants, that the agent must have charge of the whole business of tbe corporation, tbe statute would, be a dead letter, for such an agency seldom, if ever, exists. Every object of the service is attained when the agent served is of sufficient character and ranli to malee it reasonably certain that the defendant will be a/pprised of the service made. The statute is satisfied if he be a managing agent to any extent.”

The Court of Appeals affirmed the order without opinion. (99 N. Y. 679.)

It was held in Tuchband v. C. & A. R. R. Co. (115 N. Y. 437) that it is not necessary that the agent should have charge of every department of business of a foreign corporation carried on in this State in order to constitute him a managing agent within the meaning of the section of the Code under consideration.

The court said: “ The defendant, like other railroad corporations, necessarily has not only directors, a treasurer and secretary, but other officers and agents. By these persons, or, under their direction, by others, the business of the company is conducted. Prom the very nature of a body corporate, service of process cannot be personal, and at commpn law it was made by serving it on a proper officer so that it might come to the knowledge of the company, and then further proceedings by distress. (1 Tidd’s Pr. 121.) Under the statute {supra) the same object was in view; and when the corporation has an office in this State where a substantial portion of its business is transacted by a person designated by itself as a general agent, although followed by words indicating some one department, it may safely be assumed that the object of the statute will be accomplished. It, of course, intends a “ managing agent ” in this State, and where a corporation created by the laws of any other State does business in this State, the person who, as its agent, does that business should be considered its managing agent, and more especially should that be so where the foreign corporation has an office or place of business in this State, and when that office is in charge of that person and he there acts for the corporation. He is there doing business for it, and so manages its business. Such person is, in every sense of the word used in the statute, “ a managing agent.”

In Brayton v. N. Y., L. E. & W. R. R. Co. (72 Hun, 602) the court observes that the requirement of the statute is not that the service shall be made upon the managing agent, but only upon a managing agent of the defendant, and held that service upon the division superintendent of an important division of the company's road constituted a sufficient compliance with the statute.

The point of the decision in three of the cases cited supra may be stated as follows: In Palmer’s case the statute is satisfied if the person served be a managing agent to any extent.

In Brayton's case the person served need not be the only managing agent of the defendant. It is sufficient if he be a managing agent of an important part of defendant’s road. And in Tuchband's case, when a foreign corporation does any business in this State the person who, as its agent, does that business should be considered its managing agent, and more especially should that be so when the foreign corporation has an office or place of business in this State, and when the office is in charge of that person, and he there acts for it.

The facts touching the relations existing between Eiker, the alleged managing agent, and the defendant, the Chicago Evening Post Company, as disclosed by the affidavits, may be briefly stated as follows: Eiker was not employed by the defendant upon a salary, but was compensated by it by way of commissions upon the business done.

He occupied an office in the Tribune Building, upon which is the sign of the defendant, and he advertised in newspapers under the newspaper name of the defendant, the advertisement being signed by him as “ its eastern representative.”

In November, 1892, plaintiff wrote a letter to the defendant at Chicago, asking for copies of certain numbers of said paper, and in reply received a letter saying that defendant had no copies of the issues described, and concluding, “ Mr. T. B. Eiker, 50 Tribune Building, New York, is our eastern representative.”

The business of a newspaper agent in the city of New York, such’ as Eiker, is the soliciting and obtaining of advertisements and making contracts therefor upon a prescribed schedule of rates. If special rates were submitted to Eiker for adoption or rejection outside of the schedule of rates by which he was to be guided, it was his duty to submit such propositions to the defendant at its general office in Chicago. All of defendant’s business transacted in this State was conducted by Eiker, subject to no other direction than such as he received from the central office of the defendant, a considerable part of the business being transacted by him under general directions only, the exceptions being special propositions for advertising below the rates, which by his general directions he was authorized to accept. These facts, we think, constituted him a managing agent within the meaning of the statute as interpreted by the authorities to which we have referred.

The order should be affirmed, with ten dollars costs and printing disbursements.

Yan Brunt, P. J., and O’Brien, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Parker, J.:

license: Public Domain

text:
    Charles A. Glyn, Plaintiff, v. The New York and Harlem Railroad Company, Defendant.

      Fa/ilure of a street ca/r driver to stop his cm' when directed —when not the cause of . an accident.

    The negligent act of the driver of a street car, in failing to stop the car at a point at which a passenger desired to alight, cannot be said to be the cause of an accident whereby such passenger sustained injuries, if the passenger was safely standing on the platform of the car in a place of safety at the time the car, without stopping, passed the point at which he desired to alight, and if he made no attempt to get oil the car at that place, and was afterwards injured by reason of his going onto the platform of the car and being crowded by other passengers there onto the step and off the car.
    Motion by the plaintiff, Charles A. Glyn, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the New York Circuit on the 14th day of October, 1894.

      Theodore W. Melwm, for the plaintiff.

      Wm. 8. Cogswell, for the defendant.
   Parker, J.:

In March, 1892, the plaintiff was a passenger on a car of defendant proceeding through Madison avenue. When nearing Fifty-sixth street plaintiff notified the conductor of his desire to leave the car at that street. At this time he was inside of the car and seated. The conductor thereupon rang the bell for the driver to stop, and plaintiff moved out from the inside of the car to the rear platform and stood by the side of tlie conductor. The car did not slow up when it reached Fifty-sixth street, nor did it stop after crossing it, and the plaintiff testifies : “ When I found that the car did not stop I said, ‘Won’t you let me off at my street ? I don’t want to be carried up town.’ He said, ‘I rang the bell, but the driver didn’t stop the car.’ I said, ‘ Ring it again.’ He did ring it again. At that time I was preparing to leave the car. After he had rung the bell the second time I prepared to get to the edge of the platform and get off the car when it came to the next street.”

Before the next street was reached, and while the car was under full headway, he passed by the people standing on the platform, and what happened then the plaintiff describes as follows: “ There was a gentleman standing with his back to the window and another at the dashboard. We were all pretty stout people, and both gave way to let me to the edge of the platform, and, after I got there, they crowded back again in their places, so forcing me to put my left foot on the step. It being slippery, I found it was not safe unless I put the other foot down, and before I could get standing there, by the motion of the car, I found I had to let go the handrail or be thrown down. I was then on the step of the car leading down to the street. * * ■ * They forced me down. They forced me to put the first foot down, and then coming up behind me like that (illustrating) they forced the second one down. * * * I did not get an opportunity to stand there; the left one went off. I felt myself unbalanced by the rapidity of the car, and I had to leave hold of the rail.”

The trial court held, and we think rightly, that there was no evidence of negligence for the consideration of the jury.

Lehr v. S. & H. P. R. R. Co. (118 N. Y. 556) does not aid the plaintiff in this case. The plaintiff, who was crowded from the platform by a movement of tlie passengers which caused him to lose his hold, fell under the car and was injured, and the verdict of the jury was sustained, because there was evidence authorizing the jury to find that the defendant undertook to cany more passengers than could stand or sit within the car, the platform and steps in addition being filled to their utmost capacity, and that the exercise of reasonable foresight would have led the defendant to anticipate that such crowding of its car and platforms would render accidents, like the one that befell the plaintiff, probable.

Saltzman v. The Brodklyn City R. R. Company (73 Hun, 567) was very similar in its facts to the Lehr case. Plaintiff boarded the car, which was' filled on the inside, so that he was compelled to stand on the platform, and passengers continued to come upon the platform in such numbers that he was finally forced on to the step, from which position he was finally thrown by the jolting of the car while the horses were being driven very fast.

In this case the car was not crowded. There was plenty of room in the car, where the plaintiff had a seat, and there was no opportunity to charge the defendant, as in the cases referred to svyyra, with having undertaken to carry more passengers than could sit or stand within the car, so that both platforms and steps were crowded to their utmost capacity. The only act of negligence that we can spell out is that the defendant’s driver failed to stop the car at Fifty-sixth street. But while it is probably true that the accident would not have occurred had the car stopped at Fifty-sixth street, it is apparent that such negligent act did not cause the accident, for the plaintiff testifies that he was standing on the platform, in a place of safety, when the car passed Fifty-sixth street without stopping, and he made no attempt to get off there.

Indeed, it seems that he then decided not to get off until the next' street should be reached, for he says that after the conductor rang the bell the second time in obedience to his request, he “ prepared to get to the edge of the platform and get off the car when it came to the next street.” His preparations were prematurely made and resulted unfortunately, but they were not directly occasioned by the failure to stop at Fifty-sixth street, for plaintiff had abandoned the idea of getting off before reaching Fifty-seventh street prior to his starting to the edge of the platform.

If it be true that he stepped down upon the step because two persons, whom he describes as standing on the platform, crowded against him, defendant cannot be charged with negligence for that reason.

The car was not overloaded, there was plenty of room for all inside of it, and no reason why he could not have continued to stand in the same position on the platform until he reached Fifty-seventh street as he was standing in when he came to Fifty-sixth street.

The jostling and crowding, if any there was, was due to the carelessness of the two persons standing upon the platform, and for their acts, under the circumstances disclosed, defendant was not legally blamable.

Plaintiff’s exceptions should be overruled and judgment ordered for the defendant, with costs.

Yan Brunt, P. J., and O’Brien, J., concurred.

Exceptions overruled and judgment ordered for defendant, with costs.


author: O’Brien, J.:

text:
    Frederick Eder, Respondent, v. Seth H. Gildersleeve and Another, Appellants.

      Facts not reviewable on appeal from, a judgment — countercldim of a judgment — a discharge from a contempt a good consideration for an undertaking — objection to evidence not sufficiently specific.

    Upon an-appeal from a judgment entered upon tlie verdict of a jury, if no order denying a motion for a new trial was made or entered, tlie facts are not before tlie appellate court for review, and it is confined upon appeal to the judgment and exceptions.
    In an action brought by the assignee of a cause of action the defendants cannot interpose, by way of counterclaim, a judgment recovered by them against the plaintiff's assignor, where the’ assignment was made before the defendants obtained their judgment, commenced their action, or even had the cause of action. i

    Upon the trial of an action it appeared that the defendants had been proceeded against as for a contempt, and that to terminate such proceeding and release themselves from the possibility of an adverse order they had offered to give an undertaking to pay any judgment that might be recovered in the action. This offer being made, the court decided in the proceedings for contempt that the giving of the proposed undertaking should lead to a denial of the motion, and that an order should be entered to that effect. In pursurance of such determination the parties proceeded against caused an undertaking to be executed and delivered to the plaintiff in the action, who accepted it.

      Held, that after the acceptance of such undertaking by the plaintiff the defendants were at liberty to enter an order denying the motion to attach them for contempt, and that their failure to do so would not affect the validity of the undertaking which was given and accepted upon a sufficient consideration; That such undertaking was good at common law, and, being based upon a sufficient consideration, it was binding upon the sureties.
    An objection taken to the admission in evidence, upon the trial of an action, of the assignment of a claim executed by a corporation under its seal and signed by its president and duly acknowledged, and the authority to sign and the genuineness of the seal sworn to by him, on the ground that it is incompetent and immaterial, is not sufficient to present the question that the assignment is inadmissible in evidence on the ground that it is a void instrument, because it has not been shown to have been the act of the corporation by proof of the resolution which authorized it.
    Yan Brunt, P. J., dissenting.
    Appeal by tbe defendants, Seth. H. Gildersleeve and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of January, 1894, upon the verdict of a jury rendered after a trial at the New York Circuit.

      B. F. Valentine, for the appellants.

      James FVyrm, for the respondent.
   O’Brien, J.:

No order denying a motion for a new trial was made or entered, and as the facts, therefore, are not before us for review, we are confined on this appeal to the judgment and exceptions.

It appears that the Lawrence Beach Company, in 1887, brought an action against their lessees of a hotel and recovered judgment on the 27th day of February, 1890, for $1,985.18. Pending that action a receiver of the property and income, of the hotel was appointed, to whom the lessees were directed to deliver certain books and property, which they refused to do. Being proceeded against as for a contempt, they offered and were permitted, upon the motion to punish them, to give an undertaking, with two sureties, to pay any judgment that should be recovered in the action. The court directed that if such undertaking was given the motion for an attachment as against them should be denied. These defendants became the sureties upon such undertaking, under which they obligated themselves to pay all costs and damages that might be awarded in the action pending, not to exceed $2,200.

Evidence was given tending to show that prior to the judgment this undertaking was assigned to the plaintiff, who had become the attorney for the Lawrence Beach Company a short time after it had commenced its action against the lessees, the consideration for such assignment being his services as attorney and counsel in that and other actions. In 1890 judgment was recovered against the lessees, and execution issued and returned unsatisfied, and after that this suit was brought against the defendants upon the undertaking.

On the trial the defendants relied upon the following defenses :

I. That the assignment had not been actually made to the attorney, as claimed by him, and that the instrument produced on the trial was an afterthought, and procured because of the appointment of a receiver of the corporation.

II. That the assignment, even if executed in 1888, as claimed by the plaintiff, was not merely voidable, but absolutely void, under the terms of the statute then in force, which prohibited the transfer by a corporation which had refused payment of its written obligations of any of its property to any officer of the corporation, and which made every transfer in contemplation of insolvency absolutely void.

III. That the contract claimed by the plaintiff as an assignment was subject to the offset of contract obligations held by the defendants against said plaintiff corporation before they had any notice of such assignment.

TY. That the instrument upon which the action was based was void for want of consideration.

Y. That the cause of action stated in the complaint was one, not in favor of the plaintiff, but in favor of the company.

Whether any of these is shown on this appeal to have been sustained is the question presented.

First. Not only was the first defense disposed of by the verdict, but, as it involved a consideration of the facts, it is not before us for review.

Second. The answers to the second defense are that the plaintiff „was not an officer of the company ; there is no evidence that the company was insolvent in 1888, when the assignment was made, and the illegality is not pleaded. The only place where the question seems to have been raised was on the request to charge, and we think the trial judge correctly ruled that there was no force in the defendants’ contention. Apart from this, to determine the validity of the assignment the facts would need to be reviewed, which, as already said, are not before us.

Third. The third defense, that the plaintiff’s claim was subject to an offset in the shape of a judgment obtained against the company in 1891 is disposed of, even if we regard it as properly pleaded, by a consideration of the dates; from which it appears • — ■ assuming the plaintiff’s claim to be true, and it was so regarded by the jury — that the plaintiff obtained his assignment long before the defendants got judgment, or sued, or had a cause of action. (Code Civ. Proc. § 502.)

Fourth. The instrument shows that there was a consideration, in that the defendants offered to give the undertaking to secure any judgment, which was accepted by the company, the undertaking itself having been directed by the court as a condition for denying the motion for an attachment. The recitals therein are: “ If such an undertaking be given and approved, * * * the motion for an attachment may then be denied by an order to that effect.” Whether an order denying the motion was entered or not can make no difference, the motion so to enter being a matter which more nearly concerns the parties proceeded against, or their sureties, and was something for their benefit which they could do or omit to do; and for their failure the company or the plaintiff here could not be regarded as having lost any rights. Or, differently expressed, as shown by the facts and the situation of the parties which led up to the giving of the undertaking, the defendants were being proceeded against as for a contempt. To terminate this proceeding and release themselves from the possibility of an adverse order, they offered to give an undertaking to pay any judgment that might be recovered by the company. This offer being made, the court decided that the giving of sucli an undertaking should lead to a denial of the motion and that an order should be thereafter entered to that effect. ‘ In pursuance of such determination and .the order entered thereon, the parties proceeded against caused the undertaking to be executed and delivered to the company, which accepted it as it was authorized to do by the order, which was the outcome of the application upon the proceeding for contempt. After its acceptance by the company, the defendants were at liberty to enter an order denying the motion for an attachment, and their failure to do so cannot affect the undertaking which was given and accepted upon what we deem to have been sufficient consideration.

The further insistence that there was no statute requiring such an undertaking to be given is without force, because this undertaking was good at common law, and, being based upon a sufficient consideration, it is binding on the sureties.

Fifth. As to the fifth defense, it is true, as already stated, that this was not a statutory undertaking and did not run to any party of the second part; but the reasonable construction is, that it was an agreement to pay the judgment if one should be recovered by the Lawrence Beach Company, and the claim upon which such judgment was afterwards founded being the property of the company, it was assignable; and having been assigned, together with the undertaking, to the plaintiff, the judgment based thereon became as much the property of the plaintiff under the assignment, and as clearly enforcible by the assignee, as it would have been by the company if no assignment had been made.

These defenses disposed of, there remain to be considered the exceptions taken to rulings upon evidence. It is claimed that the court erred in admitting the assignment of the claim to plaintiff, upon the ground that it was a void instrument, because it was not shown to be the act of the corporation by proof of the resolution which authorized such assignment. The difficulty with this objection is, that it was not taken in the court below when the assignment was offered in evidence. It was then objected to as incompetent and immaterial. That it was neither clearly appears. The assignment itself was under the seal of the company, and signed by its president, and in the acknowledgment is the sworn statement of that officer that the signature and the seal were affixed by order of the board of trustees of the corporation. If it was sought to challenge the accuracy of this statement of the president, it should have been pointed out on the trial, so that the trial judge could have his attention called to the point of the objection. ' In other words, if the proper foundation in appellants’ view had not been laid for its introduction, this should have been called to the court’s attention, and then, if the objection was sustained, further proof might have been produced. Such a question was not raised in the trial court by an objection that it was incompetent and immaterial.

Considering this, as well as the other exceptions presented, we find no error which would justify our interfering with the judgment, which we think should be affirmed, with costs.

Parker, J., concurred; Van Brunt, P. J., dissented.

Judgment affirmed, with costs.


author: Brown, P. J.:

text:
    Oliver W. Cook, Appellant, v. The New Amsterdam Real Estate Association and Others, Defendants; The Albany City National Bank, Respondent.

      Examination of plaintiff before trial — affidavit therefor, when insufficient.

    An affidavit, on which an application is'made for an order for the examination of the plaintiff before trial, is defective when it does not show knowledge on the part of the attorney who makes the affidavit, as to the materiality of the plaintiffs testimony, or state the source of such attorney’s information and the reasoD for not procuring the affidavit of his informant, and which does not state the nature of the defense.
    Appeal by the plaintiff, Oliver W. Cook, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 26th day of January, 1895, denying the motion of the plaintiff to vacate an order made for the examination of the plaintiff before trial.
    The affidavit upon which the order in this case was granted was as follows:
    “State or New York, i “ City and County of Albany, j ss''

    “‘Amasa J. Parker, of the city and county of Albany, New York, being duly sworn, says:
    “ That he is a member of the firm of Parker & Fiero, and one of the attorneys for the defendant, the Albany City National Bank, in the above-entitled action.- That this action was commenced against such defendant by admission of service of summons and complaint on the 7th day of November, 1894, and that issue was joined therein on the 27th day of November, 1894, by the service of the defendant’s answer.
    “ That this action is brought for the foreclosure of a mortgage of which plaintiff claims to be the owner and holder, given by the New Amsterdam Real Estate Association, and it is alleged that the other defendants have, or claim to have, some interest in or lien upon the mortgaged premises or some part thei-eof subsequent to that of the plaintiff. That the defendant, the Albany City National Bank, is the owner and holder of two judgments against the New Amsterdam Real Estate Association, one entered in Westchester county clerk’s office, on the 26th day of August, 1894, for $422.77, and the other entered in the said clerk’s office on the 14th day of November, 1894, for $424.03.
    “ That a defense to this action is interposed because defendant and its attorneys are informed that the mortgage of the plaintiff, Oliver W. Cook, sought to be foreclosed, is not a hona fide mortgage and was not given for a valuable consideration, at least to the full amount thereof, and that the amount claimed to be due is much larger than the amount actually due thereon, and that said mortgage was given or transferred for the purpose of enabling some of the parties interested as stockholders in the defendant, the New Amsterdam Real Estate Association, to obtain title to said property by foreclosure proceedings for much less than' its real value upon a claim not actually in existence. That the effect of such foreclosure, together with the other incumbrances upon the property, would be to deprive this defendant of any interest therein and cause a sale and disposition of the property at a sacrifice so that defendant would in all probability be unable to realize any part of the judgments aforesaid.
    “That the testimony of the above-named plaintiff, Oliver W. Cpok, is material and necessary to this defendant for the purpose of enabling it to show facts hereinbefore set forth by way of defense, such facts not being within the knowledge of this defendant or of any person, so far as defendant is aware, except the said plaintiff and persons interested in the defendant, the New Amsterdam Real Estate Association. That the said Oliver "W. Cook, whose .examination is desired, resides at 125 West Ninety-fourth street, in the city of New York, and has a place of business at 142 West 38th street, in said city. That no previous application for the examination of the said Oliver W. Cook has been made herein, and that said cause is noticed for trial at a Special Term for the trial of equity cases to be held in the county of Westchester on the 26th day of January, inst.”

      Henry W. Smith, for the appellant.

      Amasa J. Parker, Jr., for the Albany City National Bank, respondent.
   Brown, P. J.:

The affidavit upon which the order for the plaintiff’s examination was granted was defective in not showing the materiality of the plaintiff’s testimony to the knowledge of the attorney who made the affidavit, or stating the source of the attorney’s information and the reason for not producing the affidavit of his informant. The affidavit states that issue had been joined in the action by the service of an answer by the Albany bank, but it does not state the nature of the defense. It states that the attorneys had been informed that the mortgage was not a Iona fide mortgage ; that it was not given for a valuable consideration, but made for the purpose of enabling some of the stockholders of the real estate association to obtain title to the mortgaged property by foreclosure proceedings upon a claim not in existence, but it does not state that such facts were known to the attorney making the affidavit, nor does it state the source of the information. Such an affidavit is fatally defective. (Hale v. Rogers, 22 Hun, 21; In Matter of Bronson, 78 id. 351.)

The order must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Cullen, J., coneurred; Dykman, J., not sitting.

Order reversed, with ten dollars costs and disbursements. Motion granted, with ten dollars costs.


text:
    In the Matter of the Estate of Bernard Travis, Deceased. Edward M. L. Ehlers and Others, as Executors, etc., of Bernard Travis, Deceased, Appellants; Charles E. Travis, Individually and as Guardian, etc., Respondent.

      Will — interest upon a legacy computed from the testator’s death — reasonable time to malee a sale of real estate directed by a will.

    The evident intention of a testator was that the sum of $3,000, bequeathed by a clause of his will, should be set apart within a reasonable time for the benefit of his grandchildren.
    In a proceeding instituteu to compel the'executors and trustees named in the will to pay such sum to the respective parties, no excuse was shown by the executors for not complying with the directions of the will.

      Reid, that said grandchildren were entitled to the interest on their respective legacies from the testator’s death, and that the order of the surrogate directing the payment to them of the interest on such legacies was proper.

      Semble, that two years is an ample time within which to sell real estate under directions contained in a will.
    Appeal by Edward M. L. Ehlers and others, as executors of the last will and testament of Bernard Travis, deceased, from an order of the Surrogate’s Court of the county of Westchester, entered in the office of the surrogate of Westchester county on the 25 th day of November, 1891, directing them to pay interest upon certain money bequeathed by the will of Bernard Travis, deceased.

      Joseph C. Creme and W. II. Robertson, for the appellants.

      Platt c& Thompson, for the respondent.
   Brown, P. J.:

The will of Bernard Travis, deceased, was admitted to probate on June 3, 1892. It contained the following provision :

“Seventh. I do hereby direct my hereinafter named executors and trustees, the survivor or survivors of them, to set apart from my estate the sum of three thousand dollars, and I do hereby give and bequeath the said sum to them, to have and to hold the same in trust, and the interest and income arising therefrom to be paid to and equally divided between my three grandchildren, Lewy Travis, Augusta G. Travis and Robert II. Travis, and upon their respectively attaining the age of twenty-one years I do give and bequeath to eacli of them the sum of one thousand dollars, to be paid from the aforesaid sum.”

This proceeding was instituted in October, 1894, to compel the ■executors to pay such legacies.

The ' affidavit of the executor, Edward M. L. Ehlers, filed in answer to the petition, states that the personal property is insufficient to pay the legacies and they must be paid from the sale of real estate ■and that a large portion thereof had been taken by the city of New York and that the remaining portion had not been sold.

It does not appear from the appeal papers that any evidence was given by the executor in support of the allegation of his affidavit which I have quoted, and we are not informed as to what part of the real estate was taken by the city of New York, nor for what purpose, or at what price or under what statute the city acquired the land, or of the relative value of that taken by the city and that held by the executor.

By the will of tlie testator, the executors were directed to sell the testator’s real estate cc upon such terms and at such price and in such manner,” as they should deem for the best interests of the estate.

No reason is assigned why such portion of the real estate as was not taken by the city has not been sold. The direction of the will worked an equitable conversion of the land, and, while the executors are entitled to a reasonable time in which to effect a sale, in the absence of all explanation, we are of the opinion that two years was ample time within which to have complied with the direction of the will.

The evident intention of the testator was that the sum of $3,000, bequeathed by the seventh clause of the will, should be set apart, within a reasonable time, for the benefit of his grandchildren, and they are entitled to interest on their respective legacies from the testator’s death. (Cooke v. Meeker, 36 N. Y. 15; King v. Talbot, 40 id. 76.)

No excuse was shown by the executors for not complying with the direction of- the will, and the order should be affirmed, with ten dollars costs and disbursements.

Dykman and Cullen, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    James W. McDermott, Appellant, v. The Nassau Electric Railroad Company, Respondent.

      Street railway — consent of property owners on the side of the street opposite to a square or parh- — -one statute superseded by another.

    A later statute covering the same subject-matter as a prior statute and containing new provisions operates to repeal such prior act, although the two acts are not in express terms repugnant, and the provisions of the old act which are omitted from the new one must be deemed to be repealed.
    Section 91 of chapter 565 of the Laws of 1890, which provides that when a railroad runs through a street or avenue bounded on one side by a public square or park the consent of one-half of the property owners on the opposite side of such square or park shall also be first obtained, was superseded by section 91 of chapter 723 of the Laws of 1894.
    Appeal by tbe plaintiff, James W. McDermott, from an order of tbe Supreme Court, made at the Kings County Special Term and entered in tbe office of the clerk of the county of Kings on the 30th day of November, 1894, denying the motion of the plaintiff for an injunction pendente lite.

      E. O. JBoardman, for the appellant.

      John J. Allen and James G. Ghv/reh, for the respondent.
   Brown, P. J.:

The plaintiff is the owner of a lot of land fronting on Marcy avenue opposite Tompkins park, a public park of the city of Brooklyn, and this action is brought to restrain the defendant from constructing a surface railroad on that part of said avenue on which said park fronts.

The Railroad Law of 1890 (§ 91, chap. 565) contained the following provision in relation to surface railroad companies obtaining the consents of property owners to the construction and operation of their roads:

But where such railroad runs through a street or avenue bounded ■ on one side by a public square or park, the consent- of one-half of the property owners on the opposite side of such square or park shall also be first obtained.”

Chapter 723, Laws of 1894, amended section 91. It re-enacted the section with certain changes, and omitted the provision quoted above»

It is the appellant’s claim that the provision quoted was not repealed by the' amending act of 1894, 'but is still in force, and this claim is based upon the language of the amending act, which is that “ Section ninety-one * * * is hereby amended as follows,” and in the appellant’s argument a distinction is drawn between the expression in an amending act which declares a prior act to be “ amended as follows,” and one which declares a prior act to be “ amended so as to read as follows.”

"When it is intended to supersede a prior statute by a new act, the latter form of expression is the usual one, and it has been repeatedly decided that a statute declaring a former statute to be thereby amended so as to read as prescribed in the amending act is a repeal of the original statute. (People v. Wilmerding, 136 N. Y. 363.)

But the rule is well settled that a later statute covering the same subject-matter and embracing new provisions operates to repeal the prior act, although the two acts are not in express terms repugnant. (People v. Jaehne, 103 N. Y. 182, and cases cited.)

"While it is true that there is nothing necessarily repugnant in the act of 1894 to the requirement that the consents of the owners of property on the opposite side of a public- square or park should be first obtained before a railroad could be constructed through a street bounding one side of such park, yet we are of the opinión that this case falls within the rule quoted. The act of 1894 covers the same subject-matter as the section which it amends. It is entitled “An act to amend the railroad law relating- to consents of property owners for building and operation of street surface railroad.”

It re-enacts the old section. The caption of the section is the same : “ Consent of property owners and local authorities.”

"We are of the opinion that it was the intention of the Legislature that it should be a substitute for the section amended, and that it declared the law upon the subject embraced in the title of the act, and the provisions of the old statute which are omitted in the new act must be deemed to be repealed. (Moore v. Mausert, 49 N. Y. 332.)

The order must be affirmed, with ten dollars • costs and disbursements.

Dykman and Cujulen, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Willard Bartlett, J.:

text:
    In Matter of the Application of Thomas F. Gilroy, as Commissioner of Public Works of the City of New York, etc. The Mayor, Aldermen and Commonalty of the City of New York, Respondent; Mary P. Iselin and Others, as Trustees under the Will of Mary M. Gouverneur, Deceased, and Others, Appellants.

      Eminent domain — measure of damages — -oath of the commissioners — residence of the commissioners.

    In determining the damages to be awarded in a proceeding instituted by the commissioner of public works of the city of New York to acquire real estate for the maintenance, preservation and increase of the supply of pure and wholesome water for the city of New York, the commissioners appointed to assess such damages, in determining what is the fair market value of the premises so to be taken, must take into consideration the availability of the property for use in connection with the water supply of New York city.
    The omission from the constitutional oath required to be taken by such commissioners of the word “ faithfully ” is sufficient to invalidate the proceeding, unless the parlies can be held to have waived the objection by going on without calling attention to the defect until tbe report was made.
    The fact that two of the commissioners appointed by the court in such proceedings are neither residents of the county in which the property sought to be taken is situated nor residents of an adjoining county, does not affect the jurisdiction of such commission, where all claimants had notice of their appointment by tbe terms of the order of the court.
    Appeal by Mary P. Iselin and others, as trustees under the will of Mary M. Gouverneur, deceased, and others, from “tbe appraisal and report of Messrs. Daniel W. Guernsey, Martin T. McMahon and Arthur D. Williams, the commissioners herein, dated January 14, 1894, and filed in tbe office of the clerk of Putnam county January 15, 1894, and from eacli and every part of suck appraisal and report; ” also from an order of tbe Supreme Court granted at tbe Orange Special Term, bearing date the 17th day of February, 1894, and entered in tbe office of tbe clerk of the county of Putnam, confirming the report of said commissioners of appraisal; and also from an order granted at the Orange , Sjiecial Term, bearing date tbe 17th day of February, 1894, and entered in the office of the clerk of the county of Putnam, denying the motion of the appellants to vacate and set aside said appraisal and report, and all proceedings oí said commissioners, and to direct a new appraisal of the property involved in the proceeding, with notice of an intention to bring up for review on such appeal an order granted at the Westchester Special Term, and entered in the office of the clerk of the county of Putnam on the 1st day of July, 1890, appointing Daniel W. Guernsey and others commissioners in this matter, and all the proceedings of said commissioners thereunder.

      Eugene Frayer, for the appellants.

      H. T. Dyhmcm, for the respondent.
   Willard Bartlett, J.:

This proceeding was instituted in 1891 by the commissioner of public works of the city of New York to acquire certain real estate in the town of Carmel, in Putnam county, for the maintenance, preservation and increase of the supply of pure and wholesome water for the city. It related originally chiefly to the fee of the land under water constituting the bed of Lake Gilead; but it was also designed to extinguish any adverse claims which might exist in reference to' a number of other pieces of property in Putnam and Westchester counties, which the municipal authorities-of New York had previously attempted to acquire for like purposes. The matter was subsequently extended by stipulation so as to refer to the same commissioners of appraisal the question of the compensation to be made to the same claimants for an undivided third part of the mines and minerals in certain lands in the town of Southeast, in Putnam county, which the city likewise sought to acquire.

The commissioners awarded the claimants $4,200 for the fee of Lake Gilead, and merely a nominal sum for the mines and minerals. The- claimants now appeal from the order of the Special Term confirming the report of the commissioners, and also from an order denying a motion to set aside'the report on the ground that the commissioners had not taken the statutory oath, and because two of the commissioners were neither residents of the county where the property of the claimants was situated nor residents of some adjoining county.

The principal question presented by the appeal from the order confirming the report is whether the commissioners did not adopt an erroneous measure of damages in excluding from consideration, as an element in tlie market value of tlie property to be taken, the existence of any demand for such property on the part of the city of New York. Tlie record plainly shows that they proceeded upon the theory that the existence of any such demand could not be considered as an element of market value. So far as the rule which they followed was merely a decision that the desirability of the particular property to the city in view of its necessities was not the legal measure of damages it was correct. The commissioners went much further than this, however, and practically held that the availability of the property for use in connection with the water supply of New York city could not be taken into account by them in determining what was the fair market value of the premises.

In so doing it seems to me they disregarded the great weight of authority as to the proper measure of compensation in cases of this kind.

A question similar to that before us arose in the case of The Trustees of College Point v. Dennett (5 T. & C. 217), which was decided by the General Term of this dejiartment more than twenty years ago. It was a proceeding to acquire an interest in a pond, from which to supply the village of College Point with water. The owners desired to prove that the pond possessed a value as a source of' water supply to cities, and sought to show that there was only one other pond available for like purposes within an area of six miles. They were not permitted to do this, and the court held that the commissioners erred and set aside their report.

In The Matter of the New York, Lackawanna & Western R. R. Co. (27 Hun, 116) the land sought to be taken was peculiarly adapted for railroad purposes. The commissioners took that fact, into consideration in awarding compensation to the owner, and the General Term of the third department sustained their action in so. doing, and in refusing to value the premises as agricultural lands-only. “ Here was a narrow strip of land,” said Boardman, J., “ formerly used as a way and only of value for a way. The owner-holds it for such purpose only, expecting the time will presently come when he can utilize it to his own profit or sell it to some one else for such purpose. Why, then, are not the purposes for which, it is held and the uses to which it is adapted proper elements in its value ? ” Tbe same question may be asked with reference to Lake Gilead in the present proceeding. To ignore its adaptability to furnish water to the city of New York is to leave out of consideration the most important element which gives it any value in the market.

The doctrine that the fitness of lands for particular purposes is an element in estimating their market value in condemnation proceedings is supported by the decision of the Supreme Court of the United States in the case of The Boom Co. v. Patterson (98 U. S. 403). There the property was desired by a boom company for the purpose of constructing a boom in the Mississippi river, and was peculiarly adaptable for such purpose. The value was assessed at more than $9,000, having reference to the adaptability of the lands to the construction .of a boom, but at only $300 if such fitness were left out of view. The Supreme Court affirmed the judgment for the larger amount, holding that their suitableness for forming a boom was a fact which the owner had a right to insist upon as an element in ascertaining the value of his lands.

Mr. Justice Field, in the course of the opinion, cites with approval the case of Young v. Harrison (17 Ga. 30) which was a proceeding to acquire a site for the abutment of a bridge, wherein the Supreme Court of Georgia held that the value of the land for a bridge site was to be considered in assessing the compensation to be made to the owner. To the same effect is a well-considered decision in an Arkansas case (L. R. Junction Ry. Co. v. Woodruff, 49 Ark. 381), where the land was to be condemned for the erection of a railroad bridge. The contention was, that as the defendant had no right to bridge the Arkansas river, while the plaintiff possessed such right, the defendant, as owner, could not have any damages based upon a use to which he could not put the property himself. The court, however, refused to adopt this view, holding that the probable demand there may be for suburban property for depot and bridge sites is a recognized factor in the market value of such property.

A similar rule as to the measure of compensation, where the power- of eminent domain is exercised for the acquisition of reservoir sites, has been laid down in a number of cases. (San Diego Land Co. v. Neale, 78 Cal. 63; Spring Valley Water Works v. Drinkhouse, 28 Pac. Rep. 681; Alloway v. Nashville, 88 Tenn. 512.) In the case last cited it is well said that market value “ includes every element of usefulness and advantage in the property. If it be useful for agriculture or for residence purposes, if it has adaptability for a reservoir site or for the operation of machinery, if it contains a quarry of stone or a mine of precious metals, if it possesses advantages of location or availability for any useful purpose whatever, all these belong to the owner, and are to be considered in estimating its value.”

Without further citation of authorities, I think it is sufficiently clear that the commissioners in the case at bar erred in excluding from consideration an essential element in the market value of the property under consideration — that is to say, its adaptability to furnish a portion of the water supply of the city of New York. It follows that their report should be set aside.

This conclusion renders it unnecessary to pass upon the objections to the form of oath, and to the residence of two of the commissioners, except so far as some suggestion from the General Term may be useful upon the new appraisal which must be had. In my opinion, the omission of the word “ faithfully ” from the constitutional oath which the statute required the commissioners to take, was a material omission, sufficient to invalidate the proceeding unless the parties can be held to have waived the objection by going on without calling attention to the defect until the report was made. (Merritt v. Village of Portchester, 71 N. Y. 309.) As to the non-residence of two of the commissioners, that was a matter of which the claimants had notice by the terms of the order appointing them. It did not affect the jurisdiction, and the objection now comes too late, having clearly been waived by the conduct of the claimants.

Cullen, J., concurred.

Order confirming report of commissioners reversed and report set aside, with ten «dollars costs and disbursements. A new hearing directed to be had before other commissioners.


text:
    John P. Persch, Appellant, v. J. Wesley Allison, Respondent, Impleaded with Another.
    Gomplaint— ordered made more definite and certain.

    The complaint in an action brought to rescind a contract, upon the ground that the plaintiff was induced to enter into the contract by false representations, alleged that the defendant Allison agreed to assign and transfer to the plaintiff his right, title and interest in a license of a certain corporation, to use and operate automatic telephone exchanges for the State of Pennsylvania. A copy of the contract was attached to the complaint and together therewith a list of forty patents controlled by said corporation.
    It further alleged that the license issued by the said corporation was worthless and that said corporation was not the owner or licensee of said patents necessary to operate, license and use automatic telephone exchanges, and that said Allison possessed no right, title or interest in said exchange or company which could he utilized.

      Held, that an order requiring the plaintiff to specify what patents were referred to was proper, it not being asserted that none of them were owned or controlled by the corporation, hut that it did not own or control those necessary to operate, license and use automatic telephone exchanges; also that the defendant was entitled to know what the plaintiff meant or referred to by the use of the word “utilized.”
    Appeal by tlie plaintiff, Jolm P. Perscli, from an order of the Supreme Court, granted at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 2'Tth day of December, 1894, directing that the complaint be made more definite and certain.

      Hugh Ilirsh, for the appellant.

      George Zabrishie, for the respondent.
   Brown, P. J.:

This action was brought to obtain a judgment rescinding a contract between the parties and to obtain the return of certain notes and money delivered to the defendant under the contract and to recover damages.

A copy of the agreement was attached to the complaint. By it the defendant Allison agreed to assign and transfer to the plaintiff his right, title and interest in a license of the Strowger Automatic Telephone Company, for the State of Pennsylvania. A copy of the license was attached to the agreement with a list of forty patents controlled by said company.

The complaint alleged that the plaintiff was induced to enter into said agreement by the representations of the defendant that said company was the owner, licensee, patentee, and had control of the necessary patents to use and operate automatic telephone exchanges by automatic switch boards without the use of central offices, * * * and that no other person or persons, corporation or corporations, had received or purchased or were then the owners or controlled the right to the exclusive use and operation of said automatic telephone system for the State of Pennsylvania, but * * * that said license * * * conveyed said sole and exclusive right to use and operate and license said telephone exchange in the State of Pennsylvania.”

It further alleged in the sixth- paragraph that all of said representations so made by the defendant Allison to the plaintiff were false and untrue; that the license issued by the said company to the said defendant, J. Wesley Allison, was worthless, as the said company had no right, title or power to grant said license ; that it was not the owner or licensee of said patents necessary to operate, license and use automatic telephone exchanges in the manner hereinbefore described, and that said Allison possessed no right, title or interest in said exchange or company which could be utilized; that on or about the 1st day of August, 1893, and previous to the execution of said license, the said -company entered into an agreement with one Cassius M. Upton, in and by which it agreed to sell and deliver to him a license and to convey to him, by a good and sufficient deed, the sole and exclusive right to use, operate and license automatic telephone exchanges in the States of Pennsylvania, New Jersey, Ohio and Michigan, and that the said Upton fully complied with the condition's of said agreement, but that said company failed to comply with the said agreement, and that an action was then pending in a court of competent jurisdiction, brought by said Upton against the said company for a specific performance of said contract.

We are of the opinion that the order appealed from was properly granted. Jt required plaintiff to specify what patents are referred to in the sixth paragraph of the complaint. The list attached to tlie agreement enumerates forty patents by number and date. It is not asserted that none of them were owned, or controlled by the company, but that it did not own or control those “necessary.to operate, license and use automatic telephone exchanges.” The defendant is entitled to know which ones in the list are referred to.

Again, the allegation that the defendant possessed no right, title or interest in said exchange or company that could be utilized is very indefinite. The defendant is entitled to know what the plaintiff means or refers to by the word ■“ utilized.” Whether he intended to claim that the patents were worthless or impracticable, and, if so, whether the claim referred to all or only a part of those named in the list, or whether the claim was that the defendant’s interest in the patents was of such a meager character that its assignment to the plaintiff would not transfer to him a right which he could use in a practical way or manner.

The allegation in the seventh paragraph, that the company had failed to comply with its agreement with Upton, would appear to be unnecessary to the plaintiff’s cause of action, but, if it is to remain in the complaint, it should be made sufficiently definite for the defendant to know what'facts he will be called upon to meet at the trial.

The plaintiff may, however, elect to strike out that part of the seventh paragraph, and he should have permission to omit it from the amended complaint.

With this modification the order should be affirmed, with costs.

Dykman and Cullen, JJ., concurred.

Order modified so as to permit plaintiff to amend his complaint, as Indicated in the opinion, and as modified affirmed, with ten dollars costs and disbursements.


text:
    Katharina Weidner, Appellant, v. George Weidner, Respondent.

      Divorce suit — opening a default— counter charges of adultery — presumption from the service of a summons and complaint — laches justify a denial.

    Upon a motion made to open a judgment of absolute divorce recovered by a wife against lier husband, the allegations contained in the moving affidavits used upon such motion, showing that the husband had suspicions as to the fidelity of his wife and charging her with having committed adultery, are entitled to no consideration where, prior to the obtaining by the wife of the judgment sought to be opened, the husband had instituted an action for divorce against his wife which had been dismissed, and, also, an action against another for the alienation of his wife’s affections, which resulted in a verdict and judgment for the defendant therein.
    Where a husband was served with a summons and complaint in an action brought by his wife to procure an absolute divorce, and knew that the suit was pending and the charges that were made against him, he must be presumed to have notice that a judgment was likely to be rendered against him therein, and where he knew of a j udgment rendered in a prior action brought against him by his wife for a separation, he is not entitled to suppose that if alimony were granted in the divorce action it would be any less in amount than that granted in the suit for a separation.
    Where the amount of alimony awarded to a wift? in an action brought by her against her husband for a separation is unpaid, and the husband has left the State to escape the enforcement of' the decree in such action, the motion of the husband, in a subsequent action broughkagainst him by his wife for an absolute divorce, to open the default and set aside the judgment, if made nearly nine months after he received actual notice of the entry of the judgment in the divorce action, should be denied unless the alimony allowed in the judgment for divorce be first paid.
    Appeal by the plaintiff, Katliarina Weidner, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 12th day of July, 1894, denying the defendant’s motion to open the default and to set aside the judgment rendered in the action and to permit the defendant to defend said action, ujion the plaintiff’s stipulating to allow the judgment to be so amended that she will have no claim against the defendant for support, past or future,, and providing that otherwise such motion be granted.

      Oharles J. Patterson, for the appellant.

      Baldwin F. Strauss and Almet F. Jenks, for the respondent.
   Brown, P. J.:

This action was brought by the plaintiff for an absolute divorce. At the time it was commenced the defendant was living at Allentown, in the State of Pennsylvania, and the summons was served by publication.

The defendant did not appear, and on November 8, 1889, judgment was entered dissolving the marriage and directing the defendant to pay to the plaintiff for the support of herself and children the sum of fifteen dollars a week.

The order appealed from sets aside the judgment and opens the default and permits the defendant to appear and defend the action, unless the plaintiff permits the “ judgment to be so amended that she will have no claim upon said defendant for support, past or future.” In case such amendment should be permitted, the motion to open the default was denied.

We are of the opinion that the conditions imposed upon the plaintiff are unjust towards her, and that the order should be modified.

It appears that prior to the year 1889 the parties were residents of the city of Brooklyn. The defendant had suspicions as to the fidelity of his wife, and charged her with having committed adultery with one Ilenry Loeffler. These charges are reiterated in the defendant's affidavit used upon this motion, but, inasmuch as they were made the subject of judicial investigation, they are not entitled to any consideration here.

In 1886 the defendant sued Loeffler in the City Court of Brooklyn for alienating the plaintiff’s affection, and about the same time instituted an action for divorce against the plaintiff, charging her with adultery committed with Loeffler.

The action for alienation of affection was tried in March, 1887, and resulted in a verdict and judgment in Loeffler’s favor, -and in April, 1887, the action for divorce against the plaintiff was dismissed. In September, 1887, the plaintiff sued the defendant in the City Court for a limited divorce on the ground of cruelty. No defense was made, and on November 18, 1887, judgment was entered granting to the plaintiff fifteen dollars per week alimony and directing defendant to give security for its payment.

Up to November, 1887, the defendant resided in Brooklyn, and it is very clear that he moved to Pennsylvania to escape from the enforcement of the judgment in the separation suit. No alimony has ever been paid under that decree.

In April, 1889, this action was commenced. The defendant admits in his moving affidavit that he received the summons and complaint, but swears he paid no attention to them because he believed it was impossible for his wife to produce witnesses who would swear to the accusations made against him.

In 1893 he moved to Newark, N. J. While there he met his wife, and he was then told of the judgment of divorce and the amount of alimony which it was adjudged that he should pay. Thereafter he returned to Brooklyn; and a copy of the judgment having been served upon him, an order was made on May 28,1891, directing him to show cause why he should not be punished for contempt in neglecting to comply with its terms. Three days later application was first made to set aside the judgment and open the default.

Laying aside the charges made in the defendant’s affidavit as to the plaintiff’s relations with Loeffler, which we do not think worthy of serious consideration in view of the result of the suit against Loeffler, the main grounds upon which the defendant asks to have the judgment set aside are : (1) That the testimony as to his adultery was false, and (2) that prior to the action for separation he had conveyed a considerable part of his property to the plaintiff.

We are of the opinion that the defendant should have an opportunity to try the accusation of adultery made against him, and, so far as the order appealed from ■ permits him to come in and defend the action, we agree with the conclusion of the Special Term. But the charge that defendant transferred a large part of his property to the plaintiff is met by the statement that the parties owned four houses and lots in Brooklyn, the title to wlficli stood in their joint names, and that the property was divided between them, and the conveyance to the plaintiff was but a transfer to her of one-half of this property. If such be the fact, there can be no inference that the defendant has already provided for the plaintiff’s support; and in this view of the case, if the facts permit the conclusion that the decree of divorce should stand, it would seem unjust to deprive the plaintiff of the provisions made therein for her support. The defendant does not now assert his inability to pay tbe amount of alimony awarded by tbe judgment, nor does be claim that the amount was out of proportion to his means, nor that it- was not necessary for the support of the plaintiff and her children. It was the same amount awarded by the City Court in the separation suit, and that decree has never been appealed from nor complied with. We fail to see the justice of requiring the plaintiff to surrender all provisions made for her support, as a condition of retaining the benefit of the judgment of divorce.

"While it may be true, as the defendant testifies, that he never received the copy of the judgment of divorce, which was mailed to him at Allentown, he must be presumed to have had notice that such a judgment was likely to be rendered against him. He was served with the summons and complaint, and knew that the suit was pending and the charges that were made against him. He knew of the judgment in the separation suit, and he could not have supposed that, if alimony was granted in this action, it would be any less in amount than that granted in the separation suit. He took no steps to defend the suit, and after he had, according to his own admission, received actual notice of the judgment and its terms, he waited nearly nine months before he took any proceedings to vacate it.

In view of this long delay to protect his rights, of the amount of alimony awarded to the plaintiff in the separation suit and the fact that defendant left the State to escape the' enforcement of the decree in that action, we are of the opinion that the judgment in this action should not be opened unless the alimony allowed therein is paid.

The order should, therefore, be modified so as to provide that, upon payment by the defendant of the amount of alimony due under the judgment, the motion will be granted, otherwise it is denied, with costs, and so modified the order appealed from is affirmed, with ten dollars costs and disbursements to the appellant.

Dykman and Cullen, J.T., concurred.

Order modified so as to provide that, upon payment by the defendant of the amount of alimony due under the judgment, the motion will be granted, otherwise it is denied, with costs, and as so modified the order appealed from, is affirmed, with costs.


author: Dykman, J.:

text:
    In the Matter of the Appraisal of the Property of Charles H. Edwards, Deceased, Under the Act Entitled “An Act to Tax Gifts, Legacies and Collateral Inheritances in Certain Cases.” James A. Ridden, Appellant; Henry H. Adams, County Treasurer of Kings County, Respondent.

      Gift inter vivos— taxable under chapter 713 of 1887.
    Section 1 oí chapter 713 of the Laws of 1887 evinces the intention of the Legislature to subject to a tax all property which should be transferred by a gift to take effect after the death of the grantor or bargainor.
    Where the title to personal property, the subject of a gift, passed to the donee upon its delivery to him by the donor, subject, however, to revocation at all times during the lifetime of the donor, it is a gift which took effect in enjoyment after the death of the donor, and not until then, and is within the spirit of such statute, and, if such statute was in effect at the time of the ' death of the donor, the gift is subject to tax thereunder.
    Appeal by James A. Ridden from an order of the Surrogate’s Court of the county of Kings, granted on the 17th day of December, 1891, and entered in the Kings County Surrogate’s Court, confirming the report of the appraiser and the assessment of the tax made on property received by the said James A. Ridden by virtue of a gift from Charles IT. Edwards, deceased.

      John H. Corwin, for the appellant.

      Emmet li. Oleott, for the county treasurer, respondent.
   Dykman, J.:

This is an appeal from an order of the surrogate of Kings county confirming a tax under the Transfer Tax Law.

The facts are these : On the 16th day of October, 1888, Charles H. Edwards made a gift 'causa mortis to James A. Ridden of a tin box and its contents,

The box contained sixteen savings bank books, seven of which represented accounts standing to the credit of Charles TI. Edwards, and nine of which represented accounts standing to the credit of Thomas Edwards. Thomas Edwards was the father of Charles II. Edwards, and he died before Charles, who was his only relative and heir at law.

The appraiser appointed by the surrogate valued the property at $26,227.48, and that valuation was confirmed, and a tax was imposed upon that sum under the transfer statute of this State.

The donee of the gift has appealed from the order and insists that ■there can be no tax upon the amounts represented by the bank books which stood in the name of Thomas Edwards, because Charles H. Edwards was not the owner of such accounts.

The facts developed fail to justify that contention. The bank books were in the possession of Charles IT. Edwards, and Ridden, the donee, received them from. him. All the title he ever had to any of the bank books was derived from his donor, and that title was affirmed by the Court of Appeals. (Ridden v. Thrall, 125 N. Y. 572.)

It is to be collected from the affidavit of Ridden, printed in the appeal boob, that when he made a claim against the banks for the money standing to the credit of Thomas Edwards upon the nine bank books which contained his name, he was confronted by a claim of the representatives of the estate of Thomas Edwards, -which he •compromised by paying them the sum of $5,000. Thereupon he received the money from the banks, and he received it as owner. He did not acknowledge the claim of the representatives of Thomas Edwards to the ownership of the money; he merely acknowledged them as adverse claimants, and made a compromise with them. In other words, he bought them off by paying them about one-fifth of their claim. He took no assignment from them, bnt as between him and' the banks he evidently based his claim to the money upon the donation of Charles IT. Edwards.

The legal effect of his compromise with the representatives of the estate of Thomas Edwards was to quiet their claim and perfect his title to the property which he received from his donor.

The appellant also contends that property passing by virtue of a gift causa mortis was not subject to taxation under the statute which was in force in 1888, when the gift in question was made. That statute was as follows: “ After the passage of this act all property which shall pass by will, or by the intestate laws of this State from any person who may die seized or possessed of the same while a resident of this State, * * * or any interest therein or income therefrom, which shall be transferred by deed, grant, sale or gift made or intended to take effect in possession or enjoyment after the death of the grantor or bargainor, * * * shall be and is subject to a tax.” (Chap. 713, Laws of 1887, § 1.)

This statute evinces the intention of the Legislature to subject to a tax all property which should be transferred by a gift to take effect after the death of the grantor or bargainor.

The title to the property passed to the appellant upon its delivery to him by the donor, but the gift was subject to revocation at all times during the lifetime of the giver, and in that sense it took effect in enjoyment after the death of his grantor. He could not have maintained an action for the recovery of the money represented by the bank books during the lifetime of Charles H. Edwards, and, therefore, he could not enter upon the full enjoyment of the gift until after his death.

The gift, therefore, seems to fall within the spirit and intention of the statute, and the tax was, therefore, properly imposed.

The order should be affirmed, with costs.

Brown, P. J., and Cullen, J., concurred.

Order affirmed, with costs.


text:
    In the Matter the Application of Hubert O. Thompson, as Commissioner of Public Works of the City of New York, etc., to Acquire Certain Water Rights, etc. Caroline Lazzart and Others, Appellants; The Mayor, Aldermen and Commonalty of the City of New York, Respondent.

      Diversión of the water of a river —measure of damage to ripa/rian owners ■— when only nominal damages will he awa/i’ded — mill owners.

    In a proceeding instituted by tie commissioner of public works of the city of New York to assess damages, based upon the diminution of the water flowing-through the Bronx river by reason of the construction of a dam, it appeared that the quantity of water flowing through the Bronx river had not been diminished, but, on the contrary, that it had actually been increased in the dry season by the construction of such dam. In some cases the commissioners awarded only nominal damages.

      Held, that no principle of law was violated by their failure to allow damages where no property was appropriated.

      Where no legal errors appear in the proceedings of commissioners appointed to assess damages caused by a public improvement, and they have adopted no erroneous rule for the allowance of damages in making their award, an appellate court will not interfere with the report of such commissioners upon the mere question of damages unless the amounts awarded are so great or so small as to he palpably unjust.
    Hiparían proprietors have the right to the natural, flow of the water as an appurtenance to their land; they have no property in the water, and it has no value to them independent of their land, and its value to them is measured by the injury which its diversion would inflict upon their land.
    Mill owners and owners of water power upon a river, the water of which has been diverted for a public improvement, should not be allowed a sum sufficient to pay the cost of replacing by steam power the water power of which they have been deprived. The true measure of damages in such a case is the effect of the diversion of the water upon the property to which it was appurtenant; if Its actual value has been reduced, the amount of such reduction in value or the difference between the actual value after the diversion of the water and its value if there had been no diversion.
    Appeal by the claimants, Caroline Lazzari and others, from an order of the Supreme Court, dated the 26th day of March, 1894, confirming the report of commissioners of appraisal; also, by the claimants, Charles Seidler and others, from the report of the commissioners of appraisal dated the 26th day of March, 1894, and from an order of the Supreme Court made at the Orange Special Term on the 18th day of August, 1894, and entered in the office of the clerk of the county of Westchester, confirming the report of said commissioners of appraisal; also, by the claimants, Thomas Bolton and others, from the said order dated August 18, 1894, and entered in the office of the clerk of Westchester county, confirming the report of commissioners of appraisal, and from the report and supplemental report of said commissioners; also, by the claimants, Marietta Z. Siegrist and others, from the said order dated August 18, 1894, entered in the office of the clerk of the county of Westchester, confirming the report of said commissioners of appraisal.

      Marbvn, J. Keogh, for David Lydig, appellant.

      James A. Deervng and Geo. G. Munger, for Thomas E. Woolf, appellant.

      J. O. Sanders, appellant, in person.

      Artlvwr Furber, for various claimants, appellants.

      James It. Mevrvvn, for Sarah L. Myers and Mary A. Littlewood, appellants.

      Ralph Hiclcox, for claimants, appellants, parcels 254 and 255.

      Alex. Thain, for claimants, appellants, interested in parcels 272-279, 281-283, 285, 286, 288, 288a, b and c, and 284.

      Wm. H. Olcvrlc and Nelson J. Waterbury, for the city of New York, respondent.

       Ho order of March. 26, 1894, appears in the case.

   Dykman, J.:

This is an appeal from an order confirming the report of commissioners of appraisal. •

The proceeding was instituted by the commissioner of public works, and the claims for damages are based upon the diminution of the water flowing through the Bronx river, by reason of the construction of the dam at Kensico. Theie is no claim in this proceeding for property taken or appropriated.

The Kensico dam was constructed across a gorge, through which the Bronx river flowed. The stream was small at that point in the dry season, and it appears from the evidence in this case that, when the dam was in course of construction, the stream was turned aside and all the water passed through a five-inch pipe.

After the completion of the dam the reservoir was filled and the water was conducted through pipes to the reservoir near Williams Bridge.

The maintenance of the dam and the passage of the water through the pipe line constituted a diversion of the water, and it became necessary to quiet the claims of the riparian proprietors along the Bronx river for damages which might result to them from the decrease of the water in the river by reason of such diversion.

To that end commissioners of appraisal were appointed for different sections of the river, and they have all made their reports to the com-t, which have been duly confirmed.

The commissioners in this proceeding had charge of the section of the river from Williams Bridge south.

In some eases the commissioners have awarded substantial damages, in others nominal damages, and in others they have allowed nothing.

No principle of law is violated by the failure to allow damages where no property is appropriated.

Especially will that rule prevail in this case in consequence of a fact which may as well he stated here.

It now turns out that the quantity of water flowing through the Bronx river has not been diminished, but, on the contrary, it has been actually increased in the dry season by the construction of the Kensico dam.

That fact was established by unquestionable evidence.

Lewis S. Onderdonk, who formerly resided near the dam, stated the fact generally, and then testified as follows: A number of years ago I plowed the ground below the dam that was owned by an old man named Davis; I plowed a strip of ground between Bronx river and the highway leading to White Plains, and the ground there then was just as dry as it was in any other part of the farm, and to-day its banks seem to be saturated with water, so that at the foot of this slope where I ploughed it is now grown up with flags like a pond, which was surprising to me until it was explained that this water was filtering through the ground on the eastern side of the dam.”

The Davis property was immediately below the dam, and then came the land of James D. See, within half a mile of the dam. Mr. See was examined as a witness in this proceeding, and it is to be gathered from his testimony that the dam was constructed in this way: A stone wall was first built across the gorge, and then earth was filled in both on the upper and lower side of the wall. It is ■usually denominated an earth dam.

In relation to the quantity of water, his testimony is as follows : 4‘I lived there at the time this dam was constructed, and was there almost daily; in the construction of the dam they blew out a good many rock to get a good foundation, it was lime rock, and they opened a couple of large veins; I think there were two; I think I testified before another commission that there were two; there was quite a large volume of water from those two veins, and they were below where the mason work of the present dam is; after they built the mason work they filled in below with dirt; that water from those two veins, and they are large, runs through this dirt, and comes out of the bank below and out of the bank wall, they had to take large stone from the bank wall to let that water out and save the bank; that water flows into the bed of the brook below the dam; those veins are deep, and there never has been a drought yet that affected them; during the times of drought we get water from those veins below the dam that we did not get before, and the consequence is that in times of drought the water which is below the dam in coming through my place the volume is larger than it was in times of drought before the erection of the dam, and the quality of the water is a great deal better for us. That is my explanation. * * *

“ During the time of the- drought, I think it was two years after the completion of the dam, I watched that stream below the dam, and made a remark at the time that in my judgment there was more water running through that dam than ran through the dam in times of drought before the dam was built. I am of the opinion still; I am sure of it. I would not change back, if I owned property to-day, for $1,000. I think I was benefited $1,000 instead of being damaged $1,500, that the city gave me.”

George S. Birdsall, the chief engineer of the department of public works of the city of New York, was examined as a witness, and upon his cross-examination testified as follows: “ Q. You do not mean to say that the water that runs down the Bronx river from that point down to the Lorillard point is as much now as it was before the construction-of that dam, do you? A. In dry seasons, yes. Q. Do you mean to say that in dry seasons that dam does not retain any water ? A. There is as much water passing it as there was going past it before. Q. You mean to say that it does not retain any water in dry. spells ? A. Only what is stored back of it. Q. But some of that comes down in dry spells ? A. Certainly. Q. Then it does during dry spells prevent water from coming down beyond it, which would come down were it not there ? A. No, sir. Q. Where would that water remain ? A. It goes through the rock of the Kensico dam; by actual measurements in dry weather there is just as much water passes that dam as there was passing it before this construction; the water being stored above the dam and being higher than it is below, the pressure forces it through the rock underneath the bottom of the dam. Q. Then the dam is not perfectly constructed ? A. There is no dam in the world perfectly constructed.”

That evidence stands upon the record unanswered, and constitutes a complete refutation of the theory upon which the claims for damages in this proceeding are presented.

Such demands are all based upon the diminution of the quantity of water in the Bronx river in the dry season by reason of the construction of the Kensico dam.

They relate solely to the dry season, because at all other times the flow of water is plentiful, and the evidence recited shows that instead of being diminished the flow of water is increased in the dry season by the construction of the dam.

As the complaints of the appellants relate only to the insufli ciency of the awards for damages, and the evidence shows that no damage has resulted from the cause assigned, our examination might terminate here, yet it may be well to proceed somewhat further.

There are no legal errors in the proceedings of the commissioners, and they have adopted no erroneous rules of damage' in making their awards. Under such circumstances an appellate court will not interfere with the report of commissioners upon the mere question of damages unless the amounts awarded are so great or so small as to be palpably imjust.

That rule is settled in this State, and in this district we have had many occasions for its application. (See Matter of Staten Inland R. T. Co., 47 Hun, 397.) . The reason for the rule has been stated in varied language as follows: The commissioners are required to view the premises, and by such examination they obtain a knowledge of the location and condition of the property and its availability, which is not recorded, and which is never presented to the appellate tribunal. • Such knowledge is deemed so important that the law contemplates the possibility of an award based upon a view alone, for the commissioners are only required to take the proofs offered by the parties, and if none is offered, they make their award without it.

Again, the commissioners are authorized to seek information by outside inquiries prosecuted by themselves alone and to act upon the knowledge tiras obtained. That evidence also remains unwritten and is never presented to the appellate court.

So it is, therefore, that while the commissioners may be controlled entirely by the knowledge they derive from those two sources, the appellate court knows nothing of it. Moreover, when testimony is taken by the commissioners, it necessarily consists almost entirely of the opinions of witnesses respecting values, and no tribunal is ever bound by such opinions ; especially is that so with respect to commissioners of appraisal.

Opinions respecting values of property and resulting damages usually differ very widely, and the commissioners are required to exercise their own judgment in respect thereto.

These considerations are sufficient to justify the reluctance, with, which the courts interfere with the awards of commissioners upon the mere question of their size. So far from being open to criticism, we deem the awards ample in size in all the cases before us in any view which can be taken.

The greatest complaints are made by mill owners, but it is a fact proved in these cases, as well as derived from history, both past and current, that water power in this country has ceased to be valuable. The centers of trade have changed and steam power has superseded water power.

Steam power can be planted at any place where it is required by business, while water power can only be utilized where it is found, and business must seek it there.

Great complaint is made by the owners of mills and water power on the river, and their contention is that the commissioners should have allowed them a sum sufficient to pay the cost of replacing by steam power the water' power of which the owners had been deprived by the diversion of the waters of the Bronx river.

That contention ignores the rule- of law which prescribes the measure of compensation for property appropriated for public use, and, without any reference to the decrease in value of the property by reason of the diversion of water, requires the allowance of a sum of money which will pay for a steam engine of sufficient power to replace the water power. '

Several engineers were permitted to testify respecting the cost of supplying the water power, or rather of reproducing the same by steam. Also in respect to the amount of money it would require to produce an annual income at five per cent to meet such expense annually, but all the testimony of that character was erroneously admitted. It was irrelevant and immaterial in any and every view. The riparian proprietors had the right to the natural flow of the water as an appurtenance to their land. They had no property in the water, and it had no value to them independent of their land or real property, and, therefore, its value to 'them was measured by the injury which its diversion inflicted upon their real property to which this water was appurtenant.

The question before the commissioners, therefore, was what in fact had been the effect of the diversion of the water upon the property to which it was appurtenant. "Was its actual value reduced ? If it was, the amount of such reduction in value, or the amount of the difference between the actual value after the diversion and its value if there had been no diversion of the water, was the measure of compensation.

Such being the rule of damage, all the testimony in relation to the replacement of the water power by steam was erroneous.

The appellants cannot complain of the error, however, because the testimony was introduced by them, and the city cannot assign the admission of the testimony as error because it has not appealed.

It is probable, however, that the testimony was harmless as it was not followed by the commissioners, and there is nothing to show that they adopted any erroneous rule of damage.

The theory upon which the claimants in these cases proceed is this: They take the drainage area of the Bronx river from its source to its mouth, and the drainage area of the river above the dam, and claim that the proportion of the latter to the former shows the proportion of the water diverted.

That theory leaves out of view entirely the effect of impounding the water in the reservoir, and makes diversion equivalent to diminution of the stream.

Moreover, it includes the wet season as well as the dry, while in the former there can be no injury as we have seen because the river is always full, and in the latter we have seen that there is no diminution.

It is stated several times in the points of the respective appellants that there was a conceded diversion of the water, by which it seems to be meant that the engineers assumed such diversion in making their calculations. If anything further is intended it is sufficient to say that no such concession was justified.

After a most careful examination we find no cause for interference with the report of the commissioners or with the order for its confirmation, and the order should be affirmed, with costs.

Cullen, d., concurred; Brown, R. J., not sitting.

Order affirmed, with costs.


author: Dykman,- J.:

text:
    In the Matter of the Application to Open and Lay Out Oakley Avenue in the Town of Jamaica, Queens County, New York.

      New road in a town — what land owners may oppose the confirmation of the County Court’s order.

      Quaere whether, where the necessity for a new road has been certified to by the highway commissioners of the town and the County Court commissioners, and the County Court of the county in which the property is situated, parties, who own parcels of uncultivated and unimproved land through which it is proposed to run the new road, can be heard in opposition to an application made to the General Term of the Supreme Court to confirm the order of the County Court directing the laying out of such road, although one of such land owners who opposes the confirmation of such order of the County Court has laid out a street upon his land and sold lots on both sides thereof upon which houses have been erected.
    Motion by Earl A. Gillespie and others to confirm an order of the County Court of the county of Queens, entered in the office of the clerk of the county of Queens on the 15th day of January, 1895, directing the laying out of Oakley avenue in the town of Jamaica, county of Queens and State of New York.

      Henry A. Montfort, for the motion.

      G. G. a$> F. Reynolds, opposed.
   Dykman,- J.:

It is now provided by statute that no highway shall be laid out through any building without the consent of the owner thereof, unless so ordered by tlie County Court of the county in which the proposed highway is situated, and not even then until the General Term of the Supreme Court shall confirm the order of the County Court. (Laws of 1890, chap. 568, § 90.)

This is an application for the confirmation of such an order.

The proceeding was instituted to lay out and open a highway in the town of Jamaica from Liberty avenue to University place, to be called Oakley -avenue, and, because it passed through buildings, it became necessary to apply to the County Court under the statute to whiph reference has been made.

The necessity of this new road has been certified by the highway commissioners of the town, the County Court commissioners and the County Court of Queens county, and this application for the order of the General Term is not opposed by any owner of any building through which the highway is proposed to be opened.

The motion is opposed by persons who own two parcels of uncultivated and unimproved land through which it is proposed to run the new road.

While it is quite doubtful whether persons so situated can be heard in opposition to this application, we have yet thought it advisable to hear counsel on their behalf and make an examination of the case.

In relation to the opposition of Shattuck, it is to be said that he has laid out a street upon his land, and sold lots on both sides thereof, upon which houses have been, erected.

While such action does not constitute a dedication of the land for a street, it does preclude him from closing the street without the consent of the persons who own such lots thereon.

The objection of the Napiers seems to be destitute of merit also.

The order of the County Court should, therefore, be confirmed.

Brown, P. J., and Cullen, J., concurred.

Order affirmed.