text:
    In the Matter of the Petition of HUBERT O. THOMPSON, Commissioner, etc., for the Appointment of Commissioners of Appraisal under Chapter 490 of the Laws of 1883. In re WILLIAM B. WADSWORTH. In re ELEANOR P. WENTWORTH, as Executrix. In re FRANK B. MALLORY.

      New York aqueduct — what interest in the land taken therefor was acquired under chapter 490 of 1883.
    Tlie New York aqueduct commissioners, appointed under chapter 490 of the Laws of 1883, to supply the city with an increased supply of pure and wholesome water, adopted certain maps, in accordance with the provisions of the act, upon which appeared the following explanatory note:
    “The right to be acquired in the parcels of land upon the map is delineated as follows, the fee is colored pink, the easement in perpetuity is colored blue, a temporary easement is colored yellow.”.
    Thereafter a petition was presented to the court for the appointment of commissioners of appraisal, in which it was stated that “ of the real estate so proposed to be taken or affected, certain parcels are required as shaft sites, dumping ' grounds, portals, open cuts, blow-offs, embankments, gate-houses, etc., for the purpose of constructing and maintaining said aqueduct. The boundaries of said parcels are as follows, the said parcels being colored on said maps in pink.” “It is also proposed to acquire a temporary easement sufficient to authorize the use and occupation of the surface of certain real estate for the construction and until the completion of said aqueduct. The boundaries and description of said real estate required for such purpose are as follows, such real estate being colored on said maps in yellow.”
    “ The boundaries and descriptions of the sites of the several tunnels which it is proposed to construct are as follows, being colored on said maps in blue.”
    The tenth section of the act of 1883 provided that “ on filing said oath (of the commissioners), in the manner provided in the last section, the said mayor, aldermen and commonalty of the city of New York shall be and become seized in fee of all those parcels of real estate which are on the maps, in the fourth section referred to, described as parcels of which it has been determined by said aqueduct commissioners that the fee should be acquired; * * * and the said commissioner of public works, and the said aqueduct commissioners and the said mayor, aider-men and commonalty of the city of New York, or any person or persons acting-under their or its authority, may enter upon, and use and occupy in perpetuity, all the parcels of real estate described in said map for the purpose of constructing and maintaining on, in, under or over the same, the said aqueduct, dams and reservoirs with the said blow-offs, sluices, culverts, bridges, tunnels, ventilating-shafts and other appurtenances.”
    It was insisted by certain of the owners of land, through which a tunnel was constructed for the purposes of the aqueduct, that, under the provisions of the statute, the city acquired a fee in their land, and that they were entitled to-compensation for tlie fee and not for a mere easement, although by the designation on said maps it appeared that an easement, only was sought for by the aqueduct commissioners

      Held, that a claim upon the part of the owners, whose land was to be appropriated under this act, that this provision of the statute conferred upon the corporation of the City of New York and its agents the right to enter upon, and use and occupy in any manner, the parcels of land in question, so long as such occupation and use was for the purpose of constructing or maintaining the aqueduct or its appurtenances, and that such use was inconsistent with and excluded the ownership of the fee by any one other than the city, was not tenable.
    That the legislature intended, and had a right, to confer upon the aqueduct commissioners the power to determine what land should be taken in fee, and in what land an easement only should be acquired, and the extent and nature of such easement.
    That the city had the right to occupy, continuously and permanently, all the land designated and described on the map as sites for tunnels or other appurtenances, but that no right existed to construct anything in any place not designated on the map.
    That where the commissioners decided to take a permanent easement for the maintenance of the aqueduct under the surface of the land, it was entirely consistent with the retention by the former owners thereof of the fee in the land, subject to such servitude, and that there was nothing in the law which required the city of New York to take and pay for land beyond what was necessary for the construction of this work.
    That proof of the value of the fee of such land as was designated upon the map, as being sought to be taken only to the extent of an easement therein, was properly excluded.
    Several appeals by certain claimants from an appraisal and report of tbe commissioners appointed by an order of tbe Supreme Court, made in the above-entitled proceeding, dated October 11, 1884, and hied in tbe office of tbe clerk of tbe county of "Westchester on that day, so far as it affected tbe rights and claims of tbe several appellants, and also from an order made at a Special Term of tbe Supreme Court, entered in tbe office of tbe clerk of tbe county of Westchester on the 27th day of October, 1888.

      William H. Glarh and De Lancey FTieoll, for the City of New York.

      Thomas F. Wentworth, for tbe claimants.
   Dykman, J.:

This case brings to us three appeals from the report of tbe commissioners of appraisal appointed to ascertain and determine the compensation tc be made by tbe city of New York to tbe owners or tbe persons interested in tbe real estate sought to be acquired or affected by the proceedings under chapter 490 of the Laws of 1883, to provide new reservoirs, dams and a new aqueduct with the appurtenances thereto, for tbe purpose of supplying the city with an increased supply of pure and wholesome water.

Tbe appeals are taken by the executors of George W. Parsons, deceased, owners of a portion of parcels, Numbers 608, 610 and 612 of tbe land described on tbe map of said aqueduct; by Frank B. Mallory, owner of parcels Numbers 606 and 608, part of parcel Number 609 and certain contiguous land not laid out on tbe map : and by William B. Wadsworth, tbe owner of other land contiguous to the aqueduct, but not laid down on the map. These three appeals present separate interests, but the claims were all represented by tbe same counsel and were tried before tbe commissioners upon the same evidence, and two of them present the same questions.

In the Parsons claim and the Mallory claim it is the insistence of the appellants that the city acquired a fee in the property appropriated, and not an easement, and that, therefore, the commissioners adopted an erroneous principle and erred in excluding testimony tending to show the damage which the appellants would sustain by the taking of a fee, and consequently awarded them insufficient compensation.

The Wadsworth case involves the question of the competency of certain testimony rejected by the commissioners, and all the appeals require an examination of the statute under which the proceedings were instituted and concluded.

Section 1 of the law designates certain officials and private individuals to carry the provisions of the act into execution for the purpose of supplying the city with an increased supply of pure and wholesome water and that they shall be known as the aqueduct commissioners.

Section 2 requires the commissioner of public works, under the direction of the aqueduct commissioners, to submit to them a plan or plans, with maps, specifications, estimates and particulars relating thereto, for the construction of a new aqueduct or conduit for water from some point on the Croton river or Croton lake to some point in the city of New York, and for the construction of one or more dams and reservoirs to retain such water, and for the construction of such sluices, culverts, canals, pumping-works, bridges, tunnels, blow-offs, ventilating shafts and other appurtenances as may be necessary to the proper construction, maintenance or operation of such aqueduct, dams and reservoir.

Section 3 authorizes the entry upon contiguous land for the purpose of making surveys and examinations for the preparation of the maps required to be made.

Section é requires the commissioner of public works to prepare six similar maps or plans of the proposed sites of the proposed dams, reservoirs and aqueducts, sluices, culverts, canals, pumping-works, bridges, tunnels, blow-offs, ventilating shafts and the appurtenances thereof; upon which maps there should be laid out and numbered the various parcels of real estate, on, over or through which the same were to be constructed and maintained, or which should be necessary for the prosecution of the work authorized by the act. On such maps, also, the natural and artificial division lines existing on the surface of the soil at the time of the survey were to be delineated, and there was to be plainly indicated thereon of which parcels the fee, and over or through which parcels the right to use and occupy the same in perpetuity, is to be acquired.

By section 6 it is provided that, after the maps are filed the counsel to the corporation shall apply to the Supreme Court for the appointment of commissioners of appraisal, upon a petition signed and verified by the commissioner of public works, which should contain a general description of all the real estate to, in or over which any title, interest, right or easement was sought to be acquired for the city for the purposes of the act, each parcel being more particularly described by a reference to the number of such parcel as given on the maps, and the title, interest or easement sought to be acquired to, in or over such parcel, whether a fee or otherwise, was required to be stated in such petition.

By section Y the counsel to the corporation was required to publish a notice of such application for the appointment of commissioners and a statement of the boundaries of the dams, reservoirs, sluices, culverts, canals, pumping-works, bridges, tunnels, blow-offs and ventilating shafts and of the route of the aqueduct by courses and distances, and of the greatest and least width of its track, with separate enumerations of the numbers of the parcels to be taken in fee, and of the numbers of the parcels in which an easement is to be acquired, with a reference to the time and place of filing the maps, and that was declared a sufficient description of the real estate sought to be taken or affected.

Section 10 provided that, on filing the oath of the commissioners of appraisal, the mayor, aldermen and commonalty óf the city of New York should become seized in fee of all the land described on the maps, as parcels of which it had been determined to acquire a fee.

The subsequent provisions of the act relate to proceedings beyond the acquisition of the property, and, therefore, require no further pursuit at this time, but the portions of the law already outlined are sufficient to furnish the rule for the determination of these appeals.

After the passage of the act the aqueduct commissioners organized tinder it, and the maps and plans required by the fourth section were prepared and adopted and the commissioners of appraisal were appointed. *

Upon the maps adopted the parcels affected by the constructions were all numbered and shaded, some were colored pink, some blue and some yellow, and each of the maps contained the following explanatory note: “ The right to be acquired in the parcels of land upon the map is delineated as follows: the fee is colored pink, the easement in perpetuity is colored blue, a temporary easement is colored yellow.”

In the petition presented to the court for the appointment of commissioners of appraisal, it is stated that: “ Of the real estate so proposed to be taken or affected, certain parcels are required as shaft sites, dumping grounds, portals, open cuts, blow-offs, embankments, gate-houses, etc., for the purpose of constructing and maintaining said aqueduct. The boundaries of said parcels are as follows, the said parcels being colored on said maps in pink.”

It is also proposed to acquire a temporary easement sufficient to authorize the use and occupation of the surface of certain real estate for the construction and until the completion of said aqueduct. The boundaries and description of said real estate required for such purpose are as follows, such real estate being colored on said maps in yellow.”

The boundaries and descriptions of the sites of the several tunnels which it is proposed to construct are as follows, being colored on said maps in blue.” Then follows a description of a strip of land thirty-three feet in width on each side of the center line of the survey of the aqueduct route as shown on the maps, running through the lands of Parsons and Mallory and including the parcels numbered on the maps from 604 to 616, inclusive, and the strip so described is marked on the maps in blue, which manifests the intention of the commissioner to acquire a perpetual easement only in those pai’cels.

The commissioners awarded $3,804 for the acquisition of the easement in perpetuity in parcels 609, 610 and part of 612, being the Parsons land, and $832.10 to Mallory for the perpetual easement in parcels Nos. 606 and 608 and part of 609, and $2,000 for damages to contiguous real estate.

No entry was made upon the land of Wadsworth, but he interposed a claim for damages to contiguous real estate, and Iris claim was not allowed.

The scope and meaning of the statute under which these proceedings were instituted is entirely free from ambiguity, and it manifests the intention of the legislature to delegate to the city of New York the power to exercise the right of eminent domain, and to confer upon the commissioners appointed to construct the new aqneduct the power and discretion to take such interest and right in the lands necessary to be acquired for the accomplishment of the public purpose in contemplation.

Such a delegation of authority and power is not only within the competence of the legislature, but it is precisely within the limitation of the Constitution, which restricts the right to condemn private property for public use to the reasonable necessity of the corporation in the discharge of its public duty. (Sixth Ave. R. R. Co. v. Kerr, 72 N. Y., 330; Sweet v. Buffalo, etc., Ry. Co., 79 id., 293; Cooley’s Con. Lim., 559; Rensselaer, etc., R. R. Co. v. Davis, 43 N. Y., 137; Washington Cemetery v. Prospect Park R. R. Co., 68 id., 591; Clark v. Worcester, 125 Mass., 226.)

In the last case the question involved had reference to the compensation to be made for the construction and maintenance of a sewer on the land of the claimant, and it was, therefore, similar to these, and the court said in the opinion: “ The right to take is limited by the public exigency stated; beyond that the power to exercise the right of eminent domain is not given. The statute is to be strictly construed in this respect. * * * The power to take land for the purpose stated does not confer the right to take an absolute estate in fee simple, because such an estate is not necessary to the enjoyment of the defined privilege. * * * The use only of the petitioner’s land was taken, and that use is limited to the purposes named. * * * For all purposes consistent with that enjoyment the right to use the land remains in the owner of the fee.”

Reaching the conclusion that it was within the power of the legislature to delegate the power to determine what interest or right the city should acquire in the lands in question, it is in order now to inquire what the intention of the legislature was as the same is expressed in the act.

In section 4 the aqueduct commissioners are required to adopt maps and plans indicating the sites of the proposed dams, reservoirs, aqueducts, etc., and to indicate upon the maps “ of which parcels the fee, and over or through which parcels the right to use and occupy the same in perpetuity is to be acquired.”

Then the petition for the appointment of commissioners of appraisal is required to state the title, interest or easement sought to be acquired to, in or over such parcel, whether a fee or otherwise.”

Then, again, in the notice of the application for the appointment of such commissioners, there was required “ separate enumerations of the numbers of the parcels to be taken in fee and of the numbers of the parcels in which an easement is to be acquired.”

By section 10, when the oath of the commissioners of appraisal was filed the city became seized in fee of these parcels of land, described as parcels of which it has been determined by said aqueduct commissioners that the fee should be acquired.

These provisions of the statute denote the intention of the legislature to confer upon the aqueduct commissioners the power to determine what land shall be taken in fee and in what land an easement shall be acquired, and the extent and nature of such easement.

It becomes, therefore, next in order to inquire what the aqueduct commissioners have determined in the exercise of the power so delegated to them and with what intention such power has been exerted, so far as their action has affected these appellants.

They first determined upon and adopted a map and a plan of con_ struction according to which the portion of the aqueduct affecting the parcels of real estate in question is laid from two hundred and fifty to three hundred feet below the surface of the ground, and by which there is to be no structure of any kind between the ujjper surface of the aqueduct and the surface of the earth, and the surface of the land is not to be disturbed or used in any way.Upon the adopted maps of the proposed site and location of the aqueduct they have designated the entire portion thereof, running through the land in question, as being from two hundred and fifty to three hundred feet below the surface of the earth, and have indicated by the blue color that the fee of this property was not to be acquired, but only the right to use and occupy the same in perpetuity with the aqueduct. Then a petition was presented to the court stating that a permanent easement only was to be acquired in these lands, and the notice of such presentation was in conformity and harmony with the statement in the petition. Thus the commissioners have indicated their determination to acquire in these lands only an easement for the perpetual occupation of the same by the aqueduct, and for the use of that structure for a continuing water-way.

We, therefore, reach the conclusion that the city has acquired only a permanent easement in these lands, unless the legislature has authorized a use of the premises by the city which is inconsistent with and excludes other ownership. Such is the contention of these appellants, and that presents the great question in the construction of this aqueduct law.

The argument in favor of the acquisition of a fee is based upon section 10 of the act, which, as we have already seen, provides that upon filing the oath of office of the commissioners of appraisal the city “ shall be and become seized in fee of all those parcels of real estate which are on the maps in the fourth section referred to, described as parcels of which it has been determined by said aqueduct commissioners that the fee should be acquired, * * "x' and the said commissioner of public works, and the said aqueduct commissioners, and the said mayor, aldermen and commonalty of the city of New York, or any person or persons acting under their or its authority, may enter upon and use and occupy, in perpetuity, all the parcels of real estate described in said map, for the purpose of constructing and maintaining on, in, under or over the same, the said aqueduct, dams and reservoirs with the said blow-offs, sluices, culverts, bridges, tunnels, ventilating shafts and other appurtenances.”

The provisions for the entry upon and use of the land, it is insisted, confers upon the corporation of the city of New York and its agents, the right to enter upon and use and occupy, in any manner, the parcels of land in question, so long as such occupation and use is for the purpose of constructing or maintaining the aqueduct or its appurtenances, and that such use is inconsistent with and excludes the ownership of the fee by any one other than the city. We do not find the position tenable.

Within the scheme of the act there are but two uses which can • be made of these lands in question for the purpose of constructing or maintaining the aqueduct and its appurtenances as. laid out on the maps of the aqueduct commissioners, one by the occupation of an underground portion of them by the body of the aqueduct, and the other by establishing through them a communication by a shaft or tunnel between the surface of the ground and the body of the aqueduct. The latter is a purpose not contemplated by the last part of section 10 of the act, but independent of that the land in question cannot be appropriated to any such use.

The law requires the aqueduct commissioners to adopt plans for the construction of such tunnels as maybe necessary to the construction, maintenance or operation of the aqueduct, and for the location of the sites of such tunnels, and provides for the acquisition of the fee of the land through which the same are to run; and the manifest purpose and design of the requirement for the location of the sites of the tunnels was to assist in the selection of the parcels of land in which the city should acquire a fee, and, therefore, their location was a prerequisite and a condition precedent to the appointment of commissioners of appraisal and their acquisition.

The city could take only what was necessary to the accomplishment of the public purpose in view, which was the building of the conduit, and as an essential prerequisite to the condemnation of any interest in the land, it was necessary to designate, with cei’tainty, the situation and location of all land to be affected, and the right to be acquired therein, and the purpose of such acquisition, and nothing could be taken which was not specified upon the maps and plan of construction and described and prayed for in the petition for the appointment of commissioners of appraisal.

No sites for any erection were located upon the property in question except the aqueduct, and the petition only asked for a permanent easement therein for that purpose, and, therefore, no entry can be made upon these lands, and no use or occupation of them can be had except for the purpose of constructing or maintaining the aqueduct, two hundred’ and fifty feet beneath the surface.

These principles run through and control all the cases of this kind. Wherever a map is required to be made of property proposed to be taken for public purposes great particularity and precision is required; and as the appropriation of property in virtue of the right of eminent domain is in derogation of private right, nothing can be taken by implication.

The fair interpretation of the statute, therefore, is that the city has the right to occupy continuously and permanently all the land described and designated on the map as sites for tunnels or other appurtenances, and that no right exists to construct anything in' any place not designated on the map.

The law invested the commissioners with discretionary power to take a fee in land necessary for some purposes, to take a permanent easement in others, and a temporary easement in others, and that discretion has been exercised and exhausted.

They decided to construct an aqueduct in an underground excavation far below the surface of the earth from Oroton lake to the city of New York, a distance of over twenty-nine miles, and as the right to excavate such an opening and construct and maintain the aqueduct therein was all they required, they decided to take a permanent easement in the land through which it passed for that purpose.

As such an interest in the land was all that was necessary to the attainment of the end in view, it was all that could be justly taken. In the case of Washington Cemetery v. Prospect Park Railroad (68 N. Y., 591) the land had been taken for a street and the court there said: No implication ought to be indulged that a greater interest or estate is taken than is absolutely necessary to satisfy the language and object of the statute making the appropriation * * * The land is taken for an avenue, and this purpose is fully satisfied by the taking of an easement in the land for the street or highway. There is nothing inconsistent in the public use of -the land for an avenue and the retention by the landowners of the fee, subject to the easement. It is not necessary that exact or technical language should be used in a statute for taking private property for public use in order to vest the fee in the public, but it must clearly appear, before this effect can be given to a statute, that it was the intention of the legislature, disclosed by the act itself, to take a fee.” This long extract is made because it is an authoritative statement of the principle which must control the question now under examination.

No interest is necessary in the lands in question beyond an easement, and the use of the land for an aqueduct is perfectly consistent with the retention of the fee subject to that servitude. There is no reason why the owner should be deprived of the use of his land which he can enjoy to the fullest extent, and there is yet less reason for compelling the city to take and pay for the fee when its acquisition is unnecessary. Nothing in the law positively requires the city to take and pay for land beyond its necessities, and it should not be compelled or permitted to do so without the plain requirement of the statute.

Proof of the value of the land was, therefore, properly excluded, and as the city took only an easement the award is ample. The Parsons claim and the Mallory claim endure the same result.

The ’Wadsworth claim rests upon a different basis. Neither the aqueduct or any other structure rests upon the property, and the claim was for • consequential injury. The commissioners decided that no injury had resulted, and made no award, and we concur with them in that conclusion. There was a question of evidence which requii’es no examination, and which was properly disposed of by the commissioners.

The orders should all be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., concurred.

Award of commissioners affirmed, with costs.


source: Caselaw Access Project

author: Barnard, P. J.:

license: Public Domain

text:
    WILLIAM R. McLAUGHLIN and Another, as Executors, etc., of ROBERT McLAUGHLIN, Appellants, v. IRA O. MILLER, Respondent.

      An installment payable in the future, of the eost of a public improvement, imposed by tax under a special law— is not an incumbrance.

    By chapter 335 of the Laws of 1860 and amendatory acts, the improvement of Fourth avenue, in the city of Brooklyn, was authorized, at a cost of $150,000 to the property along the route of such improvement, of which sum it was directed, by chapter 299 of 1S61, that one-twentieth part should be levied and collected by tax in each year for twenty years.
    On July 1, 1872, one Ira O. Miller and his wife conveyed a piece of property, on Fourth avenue in the city of Brooklyn, to Robert McLaughlin, by a deed containing a covenant of warranty against all incumbrances, except a mortgage of $1,900.

      Held, that the installment of the one twentieth part of $150,000, payable each year under the terms of the act of 1861, was not an incumbrance upon the property so conveyed, within the meaning of the covenant contained in the deed.
    Appeal by the plaintiffs from a judgment of the Supreme Court in favor of the defendant, entered on the 3d day of August, 1889, in the office of the clerk of the county of Kings, after a trial by the court without a jury.
    The action was brought to recover upon a covenant against incumbrances, contained in a deed conveying premises on Fourth avenue in the city of Brooklyn, executed and delivered by the defendant to the plaintiffs’ testator in or about July 1, 1872. The .complaint alleged that at the time the deed was delivered an assessment for the Fourth avenue improvement in said city had been imposed upon the premises embraced in such deed and was a lien upon the property conveyed under chapter 299 of 1861 and chapter 608 of 1870/

      Tunis G. Bergen, for the appellants.

      Ira O. Miller and Alfred E. Mudge, for the respondent.
   Barnard, P. J.:

Ira O. Miller and wife, on the 1st of July, 1872, conveyed apiece of property, in the city of Brooklyn, to Robert McLoughlin. The deed contained a covenant of warranty against all incumbrances, except a mortgage of $1,900. The legislature had before this authorized the improvement of Fourth avenue. The property along the route was required to pay $150,000 of the cost of the improvement, one-twentieth part of which was to be levied and collected in each year for twenty years. One hundred and seventy-five thousand dollars of the cost of the improvement was to be collected, in 1870, from the property in the first twelve wards of the city. All taxes and assessments imposed upon the Jots in question before the delivery of the deed were paid by defendant. The question, therefore, is, were the installments of the one-twentieth part of $150,000, payable each year, an incumbrance? We think the successive installments, although fixed by the legislature in advance, a part of the tax for the years in which they were collectible, and that they were not liens on the land from the beginning within the covenant against incumbrances. The tax was fixed so far that a certain sum was to be raised each year, but every year brings its burdens.

There are various sums which are required to be annually collected, but the land is not incumbered thereby until the tax levy is actually made, and such taxes are a lien on the land from the date of the confirmation of the yearly tax levy only. The evidence does not show an assessment for the entire number of yearly payments in 1870. A fair inference from the fact proven is that the first payment only was made a lien on the land. In order to arrive at the amount of the first payment all the cost of the work did appear, but it was not, and could not, be collected at once. There was, therefore, no cause of action proven. (Barlow v. St. Nicholas Bank, 63 N. Y., 399.)

The judgment must, therefore, be affirmed, with costs.

Dykman, J., concurred.

Judgment affirmed, with costs.


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

text:
    In the Matter of the Application of GEORGE V. SIMS for a Writ of Habeas Corpus, etc.

      Imprisonment for non-payment of alimony awarded by a judgment — contempt.
    Upon tlie return to a writ of Jiabeas corpus, issued to inquire into tlie cause of detention of one George Y. Sims, it appeared that he was held by the sheriff under a warrant of commitment, entitled in an action brought by said George Y. Sims against one Ellen T. Sims, which recjted that an order had been made therein requiring him to pay alimony to the defendant, Ellen T. Sims, which he had refused and neglected, to do; because of which he was, by an order of December 19, 1888, adjudged to be guilty of a contempt of court.

      Held, that the commitment in this case was valid and that the writ should be dismissed. •
    That an adjudication that the contempt charged had defeated, impaired, etc., a right of the defendant, was not essential.
    That the proceeding was not properly one for a contempt, but was authorized by section 1773 of the Code of Civil Procedure, in case of a failure to pay the alimony awarded. (Per Yan Brunt, P. J., and Barrett, J.)
    That the non-payment of alimony was a contempt, punishable civilly under the third subdivision of section 14 of the Code of Civil Procedure. (Per Bartlett, J.)
    Appeal by George Y. Sims, the petitioner, from an order of the Supreme Court, made and entered in the office of the clerk of the county of New York on the 19th day of February, 1889, dismissing tlie proceeding upon a writ of habeas corpus sued out by him, with notice that the commitment for contempt, and the order directing the issuance of said commitment, would be brought up for review upon such appeal.

      Wales F. Severcunce, for the appellant.

      Herbert S. Ogden, for the respondent.
   Bartlett, J.:

This proceeding was instituted to inquire into the cause of the detention of George Y. Sims by the sheriff of the city and county of New York. The sheriff returned, as his justification for the restraint of the relator, a warrant of commitment issued out of the Supreme Court by the direction of Mr. Justice Andrews under date of December 27, 1888. This commitment is entitled in an action in which George Y. Sims is plaintiff and Ellen T. Sims, sued as Ellen T. Kelly, is defendant, and recites that an order was made therein on February 15, 1888, requiring the plaintiff to pay the defendant temporary alimony at the rate of ten dollars a week; that a certified copy of such order had been served upon the plaintiff and payment of the alimony demanded of him; that he had refused and neglected to j>ay the same; and that the court, being satisfied that sequestration or a direction to give security would not be effectual, had thereupon, on December 19, 1888, duly made an order “ adjudging the said George Y. Sims guilty of a contempt of court by reason of the premises aforesaid, and directing that the said George Y. Sims, for the contempt aforesaid, of which he is guilty, be imprisoned by the sheriff of the city and county of New York in the jail of said county” until the said alimony, amounting at the date of the commitment to $450, shall be paid, together with twenty-five dollars costs of the proceeding. The commitment, after these recitals, goes on to command the sheriff to arrest the said George Y. Sims and imprison him in the said jail until the said sum of money and said costs are paid or until he is discharged according to law.

In addition to this commitment, the papers on appeal contain the order of December 19,1888, adjudging the relator guilty of contempt. How this order got into the appeal papers does not appear. I find nothing in the record to indicate in what manner it was brought before the judge who heard the argument upon the writ of habeas ■corpus. The certificate of the clerk, however, asserts that it was one of the papers upon which the court below acted in making the order appealed from, and as the correctness of the certificate is not questioned, I think we are bound to consider not only the commitment, but this order upon which it was based, in passing upon the lawfulness of the relator’s imprisonment.

In the Matter of Swenarton v. Shape (40 Hun, 41), it was expressly decided that where proceedings to punish a person for misconduct are taken under sections 14, 2266 and 2281 of the Code of Civil Procedure, “ it is indispensable for the punishment of the party that it should be made to appear, and be determined by the court, that the misconduct complained of was calculated to, or actually did, defeat, impair, impede or prejudice the rights or remedies of a party to an action or special proceeding brought in court or before a judge or referee.”

The misconduct alleged in the case cited was the disobedience of an attorney to an order directing him to deposit certain moneys with the clerk of the court, and the proceeding was instituted under title 3 of chapter 17 of the Code of Civil Procedure, to punish the ■attorney for a civil contempt. But the suggestion has been made that a proceeding to enforce the payment of alimony, although regulated by that title, is not really a proceeding to punish for contempt at all, and hence that the decision in the Matter of Swenarton v. Shupe (supra) is distinguishable from the present case on that ground. I cannot acquiesce in this view. It seems to me that the non-payment of alimony is a contempt punishable civilly under the third subdivision of section 14 of the Code, which confers upon a court of record the power to punish “ a party to the action or special proceeding, an attorney, counselor or other person for the non-payment of a sum of money ordered or adjudged by the court to be paid in a case where by law execution cannot be awarded for the collection of such sum.” Other provisions of the Code might be cited to show that such a proceeding as that now before us is in the strictest sense a proceeding to punish for contempt, but it will probably be sufficient to refer to the amendment of section 111, which was made in 1886. (Laws of 1886, chap. 672.)' That section, as amended, provides that “no person shall be imprisoned within the prison walls of any jail for a longer period than three months under an execution or any other mandate against the person to enforce the recovery of a sum of money less than $500 in amount, or under a commitment upon a fine for contempt of court in the nonpayment of alimony or counsel fees in a divorce case, where the amount so to be paid is less than the sum of $500.”

The language which I have emphasized is a recent legislative interpretation of the meaning of the several provisions of the Code relating to proceedings to enforce the payment of alimony (section 1773 and sections 2266 to 2291), and would seem to leave no room for doubt that such proceedings are proceedings to punish the party for contempt of court. And this has apparently been the view of the General Term of this department, which has twice applied the doctrine of the Matter of Swenarton v. Shupe to proceedings to-enforce the payment of alimony. (Sandford v. Sandford, 40 Hun, 540; Mendel v. Mendel, 4 N. Y. St. Rep., 556.) In both of these cases it was held to be a fatal defect that the order contained no adjudication that the conduct of the party had been such as to defeat, impair, impede or prejudice a right or remedy of the party affected by it.. I should deem these three decisions controlling, and should think that they required the release of the relator on writ of habeas corpus, were it not for the case of Fischer v. Langbein (103 N. Y., 84). The opinion of the Court of Appeals in that case seems to overrule in effect the decision of the General Term in the matter of Swenarton v. Shupe (supra) and in the other cases asserting the jurisdictional necessity of an express adjudication that the contempt charged has defeated, impaired, impeded, or prejudiced a right or remedy of a party litigant. In Fischer v. Langbein neither the order nor the commitment, as it appears in the appeal papers (Court of Appeals Cases, June, 1886) contains any such adjudication, and yet the court expressly upheld the commitment as containing all that the law required, and the result reached in the opinion upon the consideration of the whole case, necessarily also implied that the order, although erroneous, was not so defective in any matter of substance as to render it void. In that case it was said that the order and commitment “ presented all of the facts upon which the judgment of the court in awarding the commitment was based,” and the same seems to be equally true in the case at bar.

From this decision of the court of last resort it follows that the defect in the proceedings against the relator is not of such a character as to entitle him to relief by habeas corpus, and the order of the court below dismissing the writ should, therefore, be affirmed.

Van Brunt, P. J.:

On the 23d day of January, 1889, a writ of habeas corpus was issued by one of the justices of this court to the sheriff requiring him to produce the body of the relator, George Y. Sims, by him imprisoned, and to certify the time and cause of such imprisonment and detention. Upon the return day of the habeas corpus the sheriff returned that the true cause of the detention of the said Sims was a warrant of commitment, a copy of which was thereto annexed, from which it appeared that, on the 15th of February, 1888, an order was made in an action pending in this court, wherein said George Y. Sims was plaintiff and Ellen T. Sims, sued as Ellen T. Kelly, was defendant, whereby the plaintiff was required, amongst other things, to pay to the defendant or her attorney, during the pendency and until the final determination of the action, the sum of ten dollars per week for the defendant’s alimony; and that the court being-satisfied that a copy of said order had been served upon said Sims, and a personal demand for the payment of said alimony made, and that payment thereof had been refused and neglected, and that sequestration or a direction to give security would not be effectual, and that an order was thereupon entered upon the 19th of December, 1888, adjudging the said Sims guilty of a contempt of coux-t by reason of the facts afox-esaid, and directing that the said Sims be imprisoned by the shex-iff of New Yox-k until the said alimony, amounting, at the date of the commitment, to the sum of $450. and the costs of the proceedings to compel such payment, to wit, twenty-five dollax-s, be paid, or until the said Sims be dischai’ged according to law, and that a wax-rant issue committing the said Sims accordingly, and whex-eby the said sheriff was x-eqxxired to ai’rest the said Sims and impx-ison him xxntil the said sum of money and the costs and expenses were paid, or until he was discharged according to law. Thex-e was also contained in the papex-s upon this appeal the order referred to in this commitment, but how it forms part of the record npon these proceedings we are xxnable to comprehend, as it does not appear upon the return by the sheriff, and forms no part of the commitment to which reference has already been made, and which commitment was the authority for the sheriff to hold his prisoner. The counsel for the petitioner orally demurred to the sheriff’s return for its alleged insufficiency to warrant the holding of the prisoner, and, upon a hearing before the court, the motion to discharge the prisoner was denied, and from the order thereupon entered this appeal is taken.

The objection to the right of the sheriff to hold the prisoner, which is made on this appeal, is that there was no adjudication that the prisoner was fined any sum to indemnify the respondent or for any purpose whatever; that there was simply a general adjudication that he was guilty of contempt of court, and it was further ordered that for the contempt he be imprisoned.

Of course, if the order of the court is not to be considered as brought up by these habeas corpus proceedings, as it cannot regularly be, then there is no evidence before the court, but that the court below, in its order, has adjudged that the neglect of the petitioner was calculated to or actually did defeat, impair, impede or prejudice the rights or remedies of the defendant in the action above mentioned; and consequently the authorities cited in support of the position taken by the prisoner cannot prevail, because those adjudications proceeded entirely upon the ground that there had been no adjudication of the kind mentioned in the order directing the payment, and we think that upon this account the regularity of the proceeding cannot be reviewed by habeas corpus, and the only way in which the invalidity of the order directing the payment can be assailed would be by appeal from such order.

If, however, we consider the order as before the court upon this proceeding, then the case of Swenarton v. Shupe (40 Hun, 41) would seem to be an authority against the validity of the proceedings because of the want of notice of the adjudication in the order. ¥e think, however, that the learned judge in making this decision has overlooked the fact that this proceeding is not to punish for contempt, and that by the force of section 1773, where a husband makes default in paying alimony, and where such payment cannot be enforced by means of sequestration proceedings or by resorting to security, the court may issue, without any other facts before it, an order to show cause why the husband should not be punished for his failure to make the payment.

It is a familiar rule, governing the granting of motions, that the facts upon which an order to show cause is granted must make out a prima facie case ; and if it was sufficient to authorize the grantiiig of an order to show cause simply that this payment was not made and such payment could not be enforced by sequestration proceedings, or by resorting to security, then clearly it was in the contemplation of the framers of the Code that upon these facts appearing to the satisfaction of the court the final order might issue.

But it is said that, pursuant to section 1773 of the Code, proceedings must be taken to punish as prescribed in title 3, chapter 17 of this act. Title 3 regulates the proceedings to piinish contempts of court other than a criminal contempt; and the first section of that title (section 2266) provides that in any case where it is specially prescribed by law a court has power to punish by fine and imprisonment, or either, or generally as a contempt, a neglect or violation of duty or other misconduct, and that where aright or remedy of a party to a civil action or special proceeding pending in the court or before a judge may be defeated, impaired, impeded, or prejudiced thereby, the offense must be punished as prescribed in this article. Now, section 1773 provides that where the husband fails to make the payment of alimony he is to be punished in the same manner as prescribed by that’ article. It is clear that this was intended only to regulate the form of procedure, and the form of procedure as regulated by this title is only that which takes place after the issuing of the order to show cause. All the preliminaries prior to that time contained in this title are entirely inapplicable. Section 2283 provides that upon the return of an order to show cause the questions which arise must be determined as upon any other motion, and if the determination is to the effect specified in the last section but one, the order thereupon must be made to the same effect as the final order therein described. The last section but one (section 2281) provides that if it is determined that the accused has committed the offense charged and that it was calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party to an action or special proceeding, the court must make a final order accordingly, and directed that he be punished by fine or imprisonment, or both, as the nature of the case requires, and that the warrant of commitment must issue accordingly.

It is true that this provision of the Code apparently requires in a proceeding of this description that this adjudication should be had. But as it is entirely inconsistent with the nature of the proceeding, and with what it is necessary to prove in order to give the court authority to initiate the proceedings for the imprisonment of the defaulting party, it would seem to be inconsistent with the previous provisions,.and not intended to apply to proceedings of this character. In these proceedings the party proceeded against is not fined. It is not a fine which he is called upon to pay. It is the payment of money required by an order to be paid, for which, because of the peculiar nature of the requirement, this method of collection has always been recognized to exist ever since the adoption of the Revised Statutes and before. If the party is entitled, as she is under section 1773, to proceed to punish the delinquent upon making proof of non-payment of a sum, it seems to be an idle ceremony to say that the court must make any other adjudication than that there has been such failure.

Upon the whole case, therefore, we are of opinion that the commitment was regular and showed jurisdiction in the court to issue the same.

The writ of habeas corpus should be dismissed, with ten dollars costs and disbursements, and the prisoner remanded.

Barrett, J.:

This is not an appeal from an order punishing the relator. It is simply an appeal from the order refusing to discharge him on habeas corpus. The only question thus presented is whether the commitment was valid. The return was not traversed nor was a demurrer thereto interposed. We have nothing to do with the papers on the record other than the commitment annexed to the return. Upon the face of the commitment there was jurisdiction. Under section 1773 of the Code, punishment for contempt in the ordinary sense is not contemplated, but simply punishment for the non-payment of the sum required. For that failure the defendant may be committed, under section 2268, until payment is made. The warrant to commit is in the nature of a body execution:

The procedure must, it is true, as provided in section 1773, be under the chapter with regard to contempt of court, but the offense is the non-payment of the alimony and the warrant to commit issues under section 2268. The only difference is that the warrant cannot be issued ex parte , but only upon an order to show cause.

The commitment here was valid and the writ was properly dismissed.

I agree, therefore, that the order should be affirmed, with costs.

Writ dismissed, with ten dollars costs and disbursements, and the-prisoner remanded.


author: Bartlett, J.: Yan Brunt, P. J.: Barrett, J.

text:
    In the Matter of the Application of GEORGE H. STONEBRIDGE, Jr., as Receiver of the NEW YORK BOOK COMPANY.

      Receiver of a corporation — a wa/i'rant against one having property of the corporation must he applied for on notice to the attorney-general — such party is not ■ bound to account until the first publication of notice of the appointment of a receiver — what notice insufficient.

    An application for a warrant by tlie receiver of a corporation, acting under tlie Kevised Statutes (4 B. S. [8th ed.], 2534^-2534 and 2682, § 72), must be made upon notice to the attorney-general as prescribed by chapter 378 of the Laws of 1883. (Barrett, J., dissenting.)
    A person having in his possession property of the corporation for which a receiver has been appointed, is not bound to account and answer for the amount of the debt, or the value of such property, to the receiver of the corporation, until after the first publication of the notice of the appointment of the receiver, as provided by section 70 of 2 Bevised Statutes, 409. (Barrett, J., dissenting.)
    A notice which does not state who has been appointed receiver, or to whom the property is to be delivered, is not a compliance with said section.
    Appeal by John B. Alden from an order made at a Special Term of the Supreme Court held in and for New York county, on the 21st day of November, 1S89, and entered on the same day in the office of the clerk of said county, denying the motion of said Alden to vacate and set aside a warrant issued for his apprehension and examination on the application of the New York Book Company, and from each and every part thereof, except that the appellant did not bring up for review so much of the said order as granted him a stay pending his appeal therefrom to the General Term.

      James B. Dill, for the appellant Alden.

      Charles E. Hughes, for the receiver, respondent.
   Bartlett, J.:

The warrant against the appellant was issued at the instance of George TL Stonebridge, Jr., receiver of the New York Book Company, assuming to act under certain provisions of the Revised Statutes relating to trustees of insolvent debtors, which provisions are, by law, made applicable to receivers of corporations. (4 R. S. [Bank’s 8th ed.], pp. 2524-2534, and p. 2682, § 72.) No notice of the application for the warrant was given to the attorney-general. This is the first point made in the brief of the appellant and it is fatal. The precise question has been determined by the Court of Appeals in a case where an application was made to me for a warrant of this kind at the Kings County Special Term in November, 1889. The application was denied on the sole ground that no notice thereof had been given to the attorney-general as prescribed by the Haggerty act. (Laws of 1883, chap. 378.) The order refusing the warrant was affirmed by the General Term on this and other grounds, but was sustained in the Court of Appeals on the ground alone that the attorney-general should have had notice of the application, without considering the other questions discussed by the General Term. (In re Van Namee, 23 N. E. Rep., 1149.)

The decision mentioned is conclusive against the position of the respondent and renders it necessary to reverse the order appiealed from, irrespective of the other interesting points presented by the appeal.

Yan Brunt, P. J.:

The respondent in this action, on the 12th of February, 1889, was appointed receiver of the New York Book Company in proceedings taken to procure the sequestration of the property of said corporation for the purpose of paying the debts thereof. The said receiver qualified and published a notice requiring all persons indebted to the said corporation, or having the property of said corporation in their possession, to pay such debts or sums of money or to deliver the same to liim at his office. This notice was not signed by the receiver, nor did it contain the name of the receiver in any part thereof, and it was impossible to determine from the notice who liad issued the same.

It being claimed upon the part of the receiver that the appellant Alden had certain property of the corporation in question in his possession, an application setting up these facts was made to the court for a warrant against the said appellant that he might be brought before the court for the purpose of being examined pursuant to the statute in such case made and provided. This warrant was granted, and a motion having been made to set the same aside upon various grounds, that motion was denied, and from the order denying the same this appeal is taken.

In the foregoing statement of facts it has not been deemed necessary to state all the proceedings which have been taken in reference to the appointment of the receiver, nor to make particular reference to the papers upon which the warrant in question was granted, except so far as it sets forth the point upon which this appeal may be determined.

By the provisions of the Revised Statutes under which the proceedings in question were initiated (2 R. S., 469, § 70), it is provided that the receivers, immediately on their appointment, shall give notice thereof, which shall contain the same matters required by law in notices of trustees of insolvent debtors. By section 72 it is provided that, after the first publication of the notice of the appointment of receivers, every person having possession of any property belonging to such corporation, and every person indebted to such corporation, shall account and answer for the amount of such debt and the value of such property to the said receiver. The section further provides that all the provisions of law in respect to trustees of insolvent debtors, the collection and preservation of the property of said debtor, the concealment and discovery thereof, and the enforcement of such discovery shall be applicable to the receivers so appointed, and to the property of such corporation.

It will be seen by the provisions of this section that it is not until after the first publication of the notice of the appointment of the receiver as provided by section 70 that it becomes obligatory upon the person indebted to the corporation to account and answer for the amount of such debt and the value of such property to the receiver.

In the case at bar, although an attempt to publish the notice required by section 70 is made, yet it contains no notice as to who has been appointed receiver nor to whom the property is to be delivered. Therefore, the obligation created by section 72 did not spring into existence, as it is only after the publication of the notice of the appointment of the receiver, as already stated, that the duty to account and answer for debts due to the corporation and property belonging to the corporation arises.

It is urged, upon the part of the respondent, that the publication of the statutory notice to creditors and debtors of the corporation was not a condition precedent to the receiver’s application for the warrant, because personal demand had been made upon Alden for the delivery of the property of the company before the application was made.

It may be said, in answer to these suggestions, that where the statute provides one proceeding for putting a party in default, provides for a particular way of giving notice, a notice given in another way, although equally effectual, cannot establish such default. As already seen, the language of section 72 is explicit — after the first publication of the notice of the appointment of the receiver, then the duty to deliver the property shall arise, and there is no provision whatever that it shall arise before.

It is true that section 12 (2 R. S., p. 43) relating to the powers, duties and obligations of trustees and assignees, provides that whenever the trustees shall show, by their own oath or other competent proof, that there is good reason to believe that the debtor, his wife or any other person has concealed or embezzled any part of the estate of such debtor vested in said trustees, or that any person can testify concerning the concealment and embezzlement thereof, a warrant may be issued commanding the sheriff to cause such person to be brought before the court for the purpose of being examined.

But this provision is to be read in connection with the provisions of section 72 upon which it is engrafted by the latter part of this section. It certainly was not intended that before the duty of delivering over the debts and property of the company, by reason of the publication of the notice, this provision in regard to examination should go into effect, because, under that very provision of the statute, until that notice was given the alleged debtor was not in default.

Ve tliinlc, therefore, that the necessary preliminary to the initiation of these proceedings was the putting of the debtor in default by the publication of the proper notice of the appointment of the receiver in order that the debtor might deliver over the property.

It appears clearly from the record in this case that no such notice was given. The appellant was not put in default by the demand, because that was not the method provided by the statute for putting him in default; and not being in default in respect to delivery of this property, it is difficult to see how the court was justified in issuing the warrant for his examination.

The other points raised upon this appeal do not appear to be necessary to be considered, as rthe one suggested seems to be fatal.

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

Barrett, J.

(dissenting) :

The point that the receiver cannot apply for this warrant until after the first publication of the notice of his appointment (as required by 2 R. S., 469, § 70), is not, in my judgment, well taken. Under the Revised Statutes (Id., § 67) a receiver, appointed upon the voluntary dissolution of a corporation, became vested with its property from the time when his bond was filed. Iiis right thereafter to sue for and recover such property, without regard to the notice, was specially recognized. It is true that section 72 provides that debtors shall account to the receivers “ after the first publication of the notice;” but the same section applies to the receivership all the provisions of law in respect to trustees of insolvent debtors, and the collection and preservation of the property of such debtors. One of the latter provisions is that, “ notwithstanding any such notice, the trustees may sue for and recover any property or effects of the debtor, and any debts due to him at any time before the day appointed for the delivery or payment thereof.” (2 R. S., 43, § 10.)

This is m pcuri materia with the provision as to the vesting of the property and assets of the corporation in the receiver from the time of the filing of his bond. It also enforces the statutory declaration that from the same time the receivers are “ trustees of such estate for tlie benefit of the creditors of such corporation and of its stockholders.” And it is not inconsistent with the requirement that the debtors shall account “ after the first publication of the notice.” This latter provision does not qualify the receiver’s right to sue. The intention plainly was to prescribe a period after which the debtor could not plead payment to the corporation or its officers in ignorance of the receiver’s appointment.

But, further, the provision as to the publication of notice is not jurisdictional. The object is to give the best practical notice, but notice is the essential thing. Personal notice is not required because of the probability that the creditors and debtors are numerous. The form prescribed is the statutory substitute for actual notice. If, however, personal notice is given to every debtor or creditor, and that can be made to appear conclusively as matter of fact, what good reason can there be for delaying the execution of the receiver’s trust ? It certainly seems unreasonable to permit a debtor who has had actual notice, and who has, in fact, paid the receiver a part of his debt, to throw this representative of the creditors out of court upon the trivial technicality in question, when that officer seeks to recover the balance of the debt. The present case is quite analogous to this illustration, for it appears that Mr. Alden not only had due personal notice of the receiver’s appointment, but that he actually delivered up to that officer the books of account of the corporation, and then informed him that there were no other assets. There is still another answer to this objection, and that is, that the object of the proceeding is not the collection of a debt or the delivery of property, but simply the procurement of testimony. Thus the statement in the petition as to notice was superfluous. For even if such notice was a prerequisite to proceedings to compel the delivery of property or the payment of a debt, there is no suggestion or implication in the statute of its being a prerequisite to the mere discovery of such property or debt. And certainly it is the bounden duty of the receiver to put himself in a position, whereby, upon the publication of notice, he may advisedly invoke against debtors or bailees ordinary legal remedies. That the proceeding was “ intended as an informal but prompt and effective substitute for the tedious and expensive process on a bill of discovery ” was explicitly held in Noble v. Holliday (1 Comst. 333). The following observations of Ruggles, J., wlio there delivered the opinion of the court, are quite appropriate to the present case: The necessity and utility of the proceeding are too obvious to require elucidation. The property of an insolvent corporation is usually in the hands of the officers and agents under whose management it has become insolvent. They are frequently its largest debtors, and the power of compelling them and all others to disclose its condition, and of ascertaining by that means where its property is, in whose hands, under what claim or pretense it is held, and who are its debtors, is indispensable to the interest of its creditors for whose benefit it is to be collected and distributed by the receiver.”

The proceeding under the statute is terminated by the signature of the person examined to his deposition and the attestation thereof by the officer conducting the inquiry. (2 R. S., 44, § 13.) Such proceeding may be instituted even against a witness (section 12), who can testify concerning the concealment or embezzlement of property by any other person. The warrant is nothing more, in substance, than a subpcena, obedience to which is insured in the first instance. Modern legislation would probably have substituted the more genial process of a judge’s order, but the object to be attained is the same, however brought about.

These views are emphasized by reference to the Code (§§ 1788, 1789). Under these sections even a temporary receiver, appointed in sequestration proceedings, has power “ to collect and receive the debts, demands and other property of the corporation, * * * and to maintain any action or special proceeding for either of those purposes.”

Such temporary receiver is not required to give the notice already referred to, yet, clearly under the express authority of the statute above quoted, he may proceed against debtors or bailees. Now, this temporary receiver may be continued by the final judgment, and thereupon he becomes, in the language of section 1?S8, <k a permanent receiver, and has all the powers and authority conferred and is subject to all the duties and liabilities imposed upon a receiver appointed upon the voluntary dissolution of a corporation.” It would certainly be strange if the same officer, who as temporary receiver is lawfully prosecuting debtors and bailees, should, the moment lie is appointed permanent receiver, be compelled to pause until after the formality of this first publication has been gone through with. Upon the whole, I am of opinion that the petitioner had a right to institute the present proceeding as soon as he was appointed permanent receiver. He was not required by the court to furnish any additional security beyond that which he had already given as temporary receiver. Nor was the court called upon by any statutory provision to require him to furnish additional security-lie was simply, in the language of the section, “ continued by the final judgment.” There was no break in the office. The receiver was receiver throughout, and his bond was effective throughout. The fact that he filed a bond when originally appointed is sworn to, and such proof is not negatived by the certificate of the clerk that no bond was filed after the 7th of November, 1888. The petitioner was appointed on the 3d of November, 1888, aud the bond was undoubtedly filed between that date and the seventh of November. If not, the appellant should have shown the omission by a certificate covering the period commencing with the appointment. It is not necessary to decide wdiether the receiver was bound to file the oath required of trustees of insolvent debtors (2 R. S., 41, § 5), for the proof that such oath was filed is quite satisfactory, and we even find a copy of the oath among the papers used in opposition to the motion to vacate. *

The point is made that the warrant was void because no notice of the application therefor was given to the attorney-general. There is nothing in this point. This proceeding is not within the act of 1883. (Chap. 378, § 8.) It is not for the dissolution of the corporation, nor for the distribution of its assets, and it would be absurd to require the receiver to notify the attorney-general of every stej) he takes to discover property and debts, or to secure such property and debts when discovered. The attorney-general, however, had due notice of the application for the appointment of the receiver. This is denied by Mr. Alden upon the strength of the judgment-roll and proceedings in the sequestration suit. But these proceedings sufficiently show that the attorney-general had notice, and it was incumbent upon the objecting party to rebut what thus appears, and to show affirmatively, as matter of fact, that such was not the case. The attorney-general’s admission of dne service appears to be indorsed upon the original notice of motion for the appointment of a temporary receiver, and proof of the service upon him of all the papers thereon is recited in the order. There is, it is true, no proof of the service upon the attorney-general of the papers upon which the court subsequently relieved the original appointee and substituted Mr. Stonebridge pendente lite. It seems, however, that the original order was amended nune pro tune simply by making this substitution, and thus a recital of notice to the attorney-general appears on the order so appointing Mr. Stonebridge as temporary receiver. This, however, would probably not have, answered but for what followed. All the papers upon the application for final judgment and for the continuance of Mr. Stonebridge as permanent receiver were duly served upon the attorney-general, together with a copy of the proposed judgment, in which this language was used : “Second. That George H. Stonebridge, Jr., Esq., heretofore appointed receiver of the said corporation, is hereby continued as the permanent receiver thereof, with the usual powers and duties,” etc. This proposed judgment also recited that “ copies of all the preceding papers ” in the action had been served upon the attorney-general, and that Stonebridge had been, by order entered therein on the 11th day of October, 1888, duly appointed receiver of all the assets of the company, and had duly qualified and entered upon his duties as such receiver, and was then, at the date of the judgment, the receiver of the corporation.

The provisions of the act of 1883 were thus substantially complied with, and the validity of Mr. Stonebridge’s appointment cannot now be successfully attacked, certainly not by a party or witness in this collateral proceeding. It is also claimed that the proceedings should have been dismissed, because in their institution and conduct the receiver employed the atorneys for one of the creditors! of the corporation. This is carrying the rule that a receiver should not employ the attorney of either of the parties to the suit entirely too far. These gentlemen were not even attorneys for the plaintiff in the action wherein the receiver was appointed. They happen to represent one of the creditors of the corporation who, if the receiver secures any property, will share equally with the other creditors. The receiver represents all the creditors, and the stockholders as well. The point would be the same in principle if these attornej’s represented a stockholder. It was entirely natural and proper for a receiver thus appointed to look for assistance, in securing something for his eestuis que trust, where he would be likely to get it. It is quite different where the receiver is appointed in a partnership suit, or even in a proceeding designed for the benefit of a single creditor. “ The undertaking to act as the solicitor or counsel for the receiver, under such circumstances, would, therefore,” as was said by the chancellor in Ryckman v. Parkins (5 Paige, 545), “ frequently cast upon the person thus assuming to act inconsistent and conflicting duties ; both of which duties could not properly be discharged by the same person.” Here, however, there can be no such conflict of duty. The receiver representing all the creditors who, regardless of individual zeal, must share alike, cannot well be placed in a false position by availing himself of the knowledge acquired by the counsel of any one of such creditors. A question may ultimately arise with regard to compensation, but so. far as the present proceeding is concerned there is no ground for dismissal.

The question of the constitutionality of the act was sufficiently considered by Mr. Justice Daniels in his dissenting opinion on the previous appeal in this matter. (58 Hun, 549.) There is nothing in the prevailing opinion there to indicate that the majority differed with him on this head. The question, too, seems to be reasonably free from doubt. There is here no attempt to punish any one or to deprive any one of property without due process of law. The party or witness is simply brought before the officer to be examined upon proof sufficient to warrant the inference of concealment or embezzlement. If, upon such examination, the officer was authorized summarily to overrule a claim of title and to compel the delivery of the property discovered, the case of Matter of Beebe (20 Hun, 462), would be applicable. But the act there under consideration is plainly distinguishable from the present in that it “ was not passed,” as Mr. Justice Boardman observed, “ for the purpose of the examination, but to get possession of the property claimed, if the examination proved favorable.” Here discovery is alone the aim and end of the proceeding. It will be observed, too, that the constitutionality of the law' was not even questioned in Noble v. Halliday (supra), while the practical working of the act was commended.

The verification of the petition is certainly informal, but it should not, under the circumstances, be treated as an absolute nullity. The venue, though absent from its usual place, may properly be gleaned from all that appears on the face of the petition. This petition is entitled in the Supreme Court, “ City and County of New York,” and it purports to have been verified before “ Nicholas Schloeder, Notary Public (153) N. Y. Co.” The words “ City and County of New York” in the title have no legal relation to the proceeding, and are superfluous except as indicating the venue. Ordinarily these words in such a connection refer to the designated place of trial. They could have had no such meaning here, for the proceeding of itself is not an action, nor is it initiated in an action, nor can it result in a trial. Consequently, these words indicate nothing save the locality where the oath was administered and where the proceeding was about to be commenced. The presumption that the notary officiated within his jurisdiction is thus strengthened by the context. And the presumption that the officer has not violated his duty is sufficient prima facie to establish the fact that the oath was administered by him in the county appended to his name. (Parker v. Baker, 8 Paige, 430; Barnard v. Darling, 1 Barb. Ch., 219; People in re Mosher v. Stowell, 9 Abb. N. C., 461.) But apart from this, the objection was waived by the failure to make it below. It nowhere appears in this record that the point ivas specified as one of the grounds of the motion to vacate. If the objection had been taken, it would, according to the ruling in Smith v. Collier (3 N. Y. St. Rep., 172), have been competent to permit an amendment in accordance with the fact. Nor would the objection have been necessarily fatal, even without an amendment, for the statute does not require a petition, and the warrant may issue when the officer is satisfied of the existence of the necessary facts by the oath of the receiver “ or other competent proof.” Here there was this oath, but whatever question there may have been as to its sufficiency, there was also other competent proof sufficient to sustain the warrant.

There are still other objections to the proceeding upon the appellant’s brief, but they need not be specially considered. They are of a trivial and technical character, suggestive of a desire to evade the examination at all hazards and upon the most trumpery grounds. Upon the facts there was ample to warrant the examination.

The order should, therefore, be affirmed, with costs.

Order reversed, with ten dollars costs and disbursements.


author: JBajbtlett, J.:

text:
    ANNIE COLWELL, Respondent, v. THE MANHATTAN RAILWAY COMPANY, Appellant.

      Negligence — passenger injured on an elevated railroad — wages paid to a, nurse, when evidence of the value of the services rendered.

    la an action brought to recover damages resulting from an accident to a passenger upon an elevated railway in the city of New York, it appeared that as the train approached the station at which the passenger proposed to leave it, the trainman, who had charge of the gates, got up and opened the door of the car, and held it open, whereupon the passenger arose and reached the sill of the door just as the car stopped. The stoppage of the car jarred the passenger, who seized the door-frame and at the same time the brakeman let go of the door which slammed upon her fingers.

      Held, that there was sufficient evidence of negligence on the part of the railway company to lake the case to the jury; that it is not negligence for a passenger in an elevated railway car to leave her seat and go towards the door, which at the time is held open by one of the trainmen as the car approaches the station.
    The passenger testified that after the accident she employed a nurse, who remained with her some six weeks, and to whom she paid $100.

      Held, that the price actually paid for personal services in this case might he considered as some evidence of the value of the work performed, and was competent proof to warrant the jury in considering the item in an assessment of damages.

      Appeal by the defendant, the Manhattan Railway Company, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 27th day of February, 1889, after a trial at the New York Circuit, at which a verdict was rendered in favor of the plaintiff for $500; and also from an order denying the defendant’s motion to set aside the verdict and for a new trial, entered in the office of the clerk of said county on the 28th day of February, 1889.

      Henry D. Sedgwiek, Jr., for the appellant.

      William B. Ellison, for the respondent.
   JBajbtlett, J.:

It seems to me there is no difficulty in sustaining the plaintiffs right to recover in this action. The facts to which she testified and the inferences which may legitimately be drawn from them make out a case of negligence on the part of the defendant. The plain tiff was a passenger upon one of the defendant’s elevated railway trains •on the west side of the city of New York. She entered the cars at the Twenty-third street station, intending to go to the station at Fifty-ninth street and Ninth avenue. As the train came into the latter station the trainman who had charge of the gates got up, opened the door of the car and held it open. The plaintiff rose to pass out and reached the sill of the door just as the car stopped. -It jarred me,” she says, “ and he let go of the door, which slammed upon my fingers, instantly smashing the three first fingers.” When the door caught her fingers the trainman had just passed behind the plaintiff and was at the time crossing in front of her to open the door of the other car. She says that the jarring of the door caused her to grasp hold of the side of this door-frame to save herself.

This testimony of the plaintiff was not in any manner controverted. The defendant introduced no evidence whatever upon the trial, but went to the jury upon the proof put in by the plaintiff, contending that it failed to establish any negligence on the part of the trainman in the management of the car door, and that it did affirmatively establish contributory negligence on the part of the plaintiff in getting up and going to the door before the train stopped, and before the guard had called out the name of the station or invited passengers in any manner to leave the train. The plaintiff recovered a verdict of $500 damages.

There was sufficient evidence of negligence to take the case to the jury. As the train ran into the station, the trainman opened the door and held it open and the plaintiff got up to pass out. The trainman had been sitting almost opposite the plaintiff, and the circumstances were such that he must have seen her, and must have been aware that it was her intention and desire to leave the car at that particular station, through the door which he had just opened. If the mechanical appliances of the door were such that, when he let it go, it was liable suddenly to slam shut by reason of the ordinary jarring of the train upon coming to a stop, then it was his duty to retain his grasp upon it until the plaintiff had safely passed out. Either a door should have been provided which, under ordinary circumstances, would remain stationary after having been opened by the trainman to permit the egress of passengers, or the trainman should have exercised due care to prevent any injury to passengers by a door which he had opened to offer them an exit, and which was under his immediate control at the time. The learned trial judge, therefore, did not ¿o too far in telling the jury that if the facts were substantially as testified to by the plaintiff, then the act of the servant in letting go the door under the circumstances, and not securing it in any way, was a negligent act.

Nor can it be held, as matter of law, that the plaintiff was guilty of contributory negligence. It is not negligent for a passenger in an elevated railway car to leave his seat and go toward a door wliich, at the time, is held open by one of the train-men as the train approaches the station. There would be serious complaints, indeed, on the part of the elevated railway companies if it were the general practice of passengers to wait to leave their seats until the train came to a full stop. The unnecessary delay would be very detrimental to-the business of these railroads. In the brief for the appellant it is said that the guard had not given the plaintiff any invitation to leave the train, and, furthermore, that when she left her seat and went to the door it was open, not being caught back, but swinging on its hinges, so that the danger that when the car stojoped the door would swing to was perfectly obvious. But the plaintiff’s testimony is not that the door was swinging on its hinges when she got up to pass out, but that it had been opened by the train-man, who held it open. This act was certainly an implied invitation to leave the train, and must have been so understood by the passenger who desired to get. out at the station which it was then approaching. As Miller, J., said, in Nichols v. Sixth Avenue Railroad Company (38 N. Y., 131), “ I am not aware of any rule which demands that a passenger on a railroad car in a city shall wait and remain in his seat after indications have thus been made manifest that the car is about to stop.” (See, also, Wylde v. Northern R. R. Co., 53 N. Y., 156.) Upon the proof in the case no error was committed in charging the jury that the plaintiff’s act in getting up before the train stopped, or before the name of the station was called, was not contributory negligence on her part..

Another question remains to be considered. In order to prove the actual pecuniary loss which she had incurred by reason of the injury, the plaintiff testified that she employed a nurse, who remained with her for six weeks and to whom she paid $100. No other evidence whatever was introduced as to the value of the services of a nurse. The trial judge, in his charge, instructed the jury that, in assessing the plaintiff’s damages they were to consider the expense which she had incurred for medical services and in the payment of the nurse, and told them that the nurse’s bill was proven at $100. The counsel for the defendant asked the court to charge that the plaintiff could not recover for the nurse’s bill of $100, because there was no proof as to what the services were reasonably worth. The court declined to charge as requested, stating as a ground for the refusal, that it had been proved that the amount was paid for six weeks’ attendance by the nurse; whereupon an exception was duly taken in behalf of the defendant. I do not think the trial judge erred in refusing to give the instruction thus prayed for. No doubt it is the rule that there can be no recovery for services unless there is some evidence as to their value. In Leeds v. Metropolitan Gas-Light Company (90 N. Y., 26) and Kane v. Manhattan Railway Company (3 N. Y. State Rep., 145) the judgments were reversed because, under the instructions given, it seemed probable that damages had been awarded to the plaintiffs on account of loss of time, whereas there was no proof as to the amount of their earnings nor any other evidence by which the value of the time lost could properly be estimated.

In the case at bar, however, there is not the same absolute lack of evidence as to value that there was in those cases. In regard to property the rule is well established that the price therefor is some evidence of value. (Hoffman v. Conner, 76 N. Y., 121.) Similarly, I think, the price actually paid for personal services, such as those of this nurse, may be considered as some evidence of the value of the work performed, and constitutes competent proof sufficient to warrant the jury in considering the item in the assessment of damages.

The judgment should be affirmed, with costs.

Yan Brunt, P. J., and Barrett, J., concurred

Judgment affirmed, with costs.


author: Bartlett, J.:

text:
    MICHAEL J. DADY, Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellant.

      Certificate of commissioner of public works as to the necessm'y delay in executing a contract — not a condition precedent to a suit thereon — effect upon the recovery of stipulated liquidated, damages where the city has caused the delay.

    A contract with the city of New York provided for the completion of the work therein mentioned in 300 days, and authorized the city to take and retain out of the moneys payable thereunder the sum of twenty dollars a day as liquidated damages for any delay beyond the prescribed period. It also provided that, in computing the 300 days, there should be excluded “the time aggregated in days and parts of days during which the work required by this contract has been delayed by any act or omission on the part of the parties of the first part (the City of New York); all of which shall be determined by the said commissioner of public works, who shall certify to the same in writing.”
    In an action brought by the contractor to enforce the contract, the city charged that the contractor had delayed the work beyond the prescribed period, while the contractor charged that such delay had been caused by the city itself in carrying out other public works in the neighborhood, which prevented him from fulfilling his contract within the time specified therein.

      Held, that the contract did not make the obtaining of the certificate of the commissioner of public works a condition precedent to the maintenance of a suit to recover money under the contract, where delay had intervened and the work had not been completed within the 300 days.
    That when the city caused any substantial delay in the work, it lost the right to charge the contractor with the stipulated liquidated damages for over-time, and' could only insist that the time within which the work should be completed should be a reasonable time.
    Appeal by the defendant, the Mayor, Aldermen and Commonalty of the City of New York, from an order, entered at the New York Circuit on the 26th day of June,' 1889, denying the defendant’s motion for a new trial; and also from a judgment, entered at the circuit on the 'Tth day of June, 1889, adjudging that the plaintiff Michael J. Dady recover of the defendant, the Mayor, Aldermen and Commonalty of the City of New York, the sum of $2,882.98, together with costs.

      John J. Townsend, for the appellant.

      L. Laflin Kellogg„ for the respondent.
   Bartlett, J.:

The plaintiff brings this action as the representative of the firm of John Cox & Co., to recover a balance of $2,841 - claimed to be due from the city upon a contract for regulating and grading One Hundred and Eighth street, from Eighth avenue to Manhattan avenue, and setting curb-stones and flagging sidewalks therein. The defendant admits the execution of the contract but claims the right to retain, out of the sum which the contractors would otherwise be entitled to receive, $2,740 as liquidated damages for delay in completing the work, and $101 as repair security. The contract provided for the completion of the work in 300 days, and authorized the city to deduct and retain out of the moneys payable thereunder the sum of twenty dollars a day as liquidated damages for delay beyond the prescribed period. The defendants insist that the contractors are chargeable with 137 days over-time under this provision in the contract, to which the plaintiff responds that the city itself prevented him from doing the work in 300 days, and hence should not be allowed to hold back any portion of the payment. His proposition that the delay was attributable to the action of the city authorities in carrying on other public works in the neighborhood, which prevented him from fulfilling his contract so far as the element of time is concerned, has been sustained by the finding of the jury.

The contract provides that, in computing the 300 days Sundays shall be excluded and holidays on which no work is done, and days when work is suspended by order of the commissioner, and “ the time, aggregated in days and parts of days, during which the work required by this contract has been delayed by any act or omission on the part of the parties of the first part (the defendants), all of which shall be determined by the said commissioner of public worhs, who shall certify to the same in wriUngP The first point made in behalf of the appellant is that the plaintiff was bound to produce the certificate mentioned in this clause of the contract or prove that he had applied for it, and that his request had been unreasonably refused. But the contract does not make the obtaining of this certificate a condition precedent to the maintenance of a suit to recover moneys earned thereunder. The provision seems designed to enable the defendant, if so disposed, to appeal to the commissioner of public works to decide how much time should be excluded from the 300 days by reason of the city’s interference with the due prosecution of the work by the contractors, so that if the contractors claimed too large a deduction on that account, this officer should act as an arbiter between the parties, previously chosen or consented to by both. Unless the city called him in to compute the delay, however, the contractors were certainly not bound to do so.

Section 328 of the New York city consolidation act (chap. 410 of 1882) prescribes that the construction of work under plans for sewerage shall have precedence over and shall not be interfered with by any work connected with other street improvements. The plaintiff: attributed much of the delay to the building of a sewer in Eighth avenue. The second point made in behalf of the city on the present appeal is that the plaintiff must be deemed to have had knowledge of this law, and in undertaking to complete his work in 300 days the contractor assumed the risk of any delay he might suffer through the operation of the statute giving sewerage works a preference over other street improvements. In other words, the position of the appellant appears to be that the city can avail itself of this statute to interfere with a street contractor’s work and then charge him twenty dollars a day for the delay which it thus occasions. Further discussion of this suggestion seems unnecessary.

Finally, it is contended that the trial court erred in declining to instruct the jury that they might apportion the over-time between the contractors and the city, so that the plaintiff should recover only for the exact number of days that the work was delayed by the action of the city authorities. The learned judge was of the opinion that there was no evidence in the case precise enough to make such an apportionment anything but mere guess-work, and charged the jury that if the city, by its action, so delayed the contractors as to prevent them from finishing the work within the contract time, the plaintiff was entitled to a verdict for the full amount, but that if it had caused no such delay, the city was entitled to a verdict. I think this instruction was correct. When the city caused any substantial delay in the work, it lost the right to charge the contractors with the stipulated liquidated damages for overtime, and could only insist that the time of completion should be reasonable.

In my opinion, the judgment and order appealed from should be affirmed, with costs.

Yan Brunt, P. J., and Barrett, J., concurred.

Judgment and order affirmed, with costs.