author: Lewis, J.:

text:
    Edward H. Throne and William E. Throne, Plaintiffs, v. The Lehigh Valley Railway Company, Defendant.
    fifegligence— killing of horses by a railroad company — failure to fence the railroad, not the proximate came — liability of a lessee company under chapter 676 of 1892 — word “agents” defined.

    In an action brought to recover damages resulting from the killing of two horses by the alleged negligence of the defendant, a railroad corporation, in omitting to fence the side of its railroad abutting upon the field from which it was claimed the horses strayed on to the railroad, where they were killed by a passing train, it appeared that prior to the accident the defendant had leased all its property, except its right to exist aS a corporation, to another company, and that the defendant did not own and had no interest in any of the rolling stock upon the road.

      Held, that the damages sustained by the plaintiffs were not caused by the defendant’s agents, engines or cars;
    That the proximate cause of the injuries to the horses was not the failure to fence the road;
    That they were not injured by going from the pasture on to the railroad track, but by the acts of the agents of the lessee company;
    That the word “ agents,” as used in section 32 of chapter 676 of the Laws of 1892, has reference only to the agents of the corporation operating the railroad.

      MotioN by the plaintiffs, Edward H. Throne and another, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance, upon the granting of defendant’s motion for a nonsuit at the Monroe Circuit on the 2d day of March, 1894.

      J. A. Stull, for the plaintiffs.

      Ma/rtin Ou/rey, for the defendant.
   Lewis, J.:

This action was brought to recover for the negligent killing of two horses belonging to plaintiffs at Rush, Monroe county, on or about June 29, 1893. The alleged negligence consisted in the omission to fence the sides of the defendant’s railroad opposite the field from which it is claimed the horses strayed on to the railroad land and were tliere killed by a passing train.

It was alleged in the plaintiffs’ complaint that in consequence of •said negligent omission on the part of the defendant to provide the fences required by statute at the place aforesaid two of plaintiffs’ horses, at the time stated, strayed from a pasture on what was known as the Bndlong farm on to the defendant’s road and were there struck and killed by a passing engine to the plaintiffs’ damage ■of $250. The defense was, in substance, a general denial, and an .allegation that if the horses were killed or injured it was done solely by the negligence of the plaintiffs or some person or corporation ■other than the defendant.

There was evidence, showing the organization of the defendant as a railroad corporation, and that its line of road passed through the premises upon which tlie horses were being pastured in the town of Rush, Monroe county. Eor the •purposes of the trial the following facts were conceded: “ That the defendant was at the time of the •accident referred to in the complaint, and now is, the owner of the right of way; that the defendant, under lease dated April 14,1891, leased all its property, real and personal, and franchises, except the franchise to exist as a corporation, to the Lehigh Yalley Railroad 'Company, a foreign corporation, for the period of 999 years from January 1, 1891, and that said lease has at all times continued and still continues in force; that the said Lehigh Valley Railroad Company by lease dated February 11, 1892, leased all its property, real and personal, and franchises, except the franchise to continue as a corporation, to the Philadelphia and Reading Railroad Company, a foreign corporation, which immediately went into possession of the road and operated it and continued to operate it up to and past the time of the happening of this accident; that at the time the Lehigh Valley Railway Company leased its property to the Lehigh Valley Railroad Company the right of way was practically acquired by the defendant named in this action along the entire line, but the grading for the road was not completed, was under headway; that no track was laid. The grading and construction of the roadbed was in progress at the time of the lease, but that none of the track for the completed railroad was laid at that time ; that immediately upon the execution of the lease the lessee went into the exclusive possession of the road and continued and finished the grading and the laying of the track, and together with its lessee, the Philadelphia and Reading Railroad Company, equipped the road and opened it for use on the 1st day of September, 1892; that the defendant in this action constructed none of the road after the lease, laid no track, never had any rolling stock or personal property, never operated the road, had no officers except those necessary to maintain its corporate existence, had nothing to do with the road except to draw its rentals under the lease with the Lehigh Valley Railroad Company.

“ That at the time of the accident the railroad was in the possession of the Philadelphia and Reading Railroad Company which was operating it under the lease aforesaid, and that the engines and cars in question, by which it is agreed the injury was inflicted at the time of the accident, were operated by the said Philadelphia and Reading Railroad Company.

“ That at the time of the leasing of the road by the Lehigh Valley Railway Company to the Lehigh Valley Railroad. Company and at the time of the accident, there was no fence of any kind constructed along the lines of the road across the Endlong farm and never has been since they had acquired the right of way.”

The statute making it obligatory upon railroad companies to erect and maintain fences on the sides of their road in force at the time of this accident, was chapter 565, section 32, of the Laws of 1890, as amended by chapter 367 of the Laws of 1891, as amended in 1892 by chapter 676, section 32, volume 1, page 1390, as follows : “ § 32. Every railroad corporation and any lessee or other person in possession of its road shall, before the lines of its road are opened for use, and so soon as it' has acquired the right of way for its roadway, erect and thereafter maintain fences on the sides of its road of height and strength sufficient to prevent cattle, horses, sheep and hogs from going upon its road from the adjacent lands. * * * So long as such fences are not made or are not in good repair the corporation, its lessee or other person in possession of its road, shall be liable for all damages done by their agents, or engines, or cars to any domestic animals thereon. When made and in good repair they shall not be liable for any such damages, unless negligently or willfully done. * * * No railroad need be fenced when not necessary to prevent horses, cattle, sheep and hogs from going upon its track from the adjoining lands.” This act of 1892 took effect May eighteenth of that year. The next preceding statute upon this subject was chapter 367 of the Laws of 1891, which was passed May 12, 1891. -The preceding statute, section 32, chapter 565 of the Laws of 1890, went into effect May 1, 1891.

As stated, on the 14th of April, 1891, at a time prior to the enactment of these statutes, the defendant had leased all its property, real and personal, and franchises, except the franchise to exist as a corporation, to another company. At the time of said leasing section 44 of chapter 140 of the Laws of 1850, as amended by section 8 of chapter 282 of the Laws of 1854, was in force; it was therein provided that Every railroad company formed or to he formed, but whose lines are not now open for use, shall, before the lines of such railroad are open, erect and thereafter maintain fences on the sides of their road, of the height and strength of a division fence required bylaw,” etc. The duty of maintaining such fences was, by section 2 of chapter 582 of the Laws of 1864, imposed upon the lessee or lessees of the railroad of any railroad corporation.

It is the contention of the plaintiffs that, notwithstanding the defendant was not, at the time of leasing its road obliged under the statutes then existing to erect line fences, the subsequent acts above referred to imposed that duty upon the defendant. The lines of this railroad were not opened for use until September 1, 1892. The terms of the statute in force at the time of the leasing would have been fully complied with if the fences had been constructed at any time prior to September 1, 1892. The defendant, therefore, had not neglected -any duty imposed upon it by statute at the date of the lease.

It had, at the time of the leasing, acquired the right of way for its roadway, and if the statutes of 1890, 1891 and 1892, referred to, imposed the duty upon the defendant as well as any lessee or other person in possession of the road to erect and maintain fences on the sides of the road, notwithstanding it had, prior to their taking effect, leased its road, then the defendant’s negligence, so far as tliq omission to construct the fences, was established.

The plaintiffs cannot invoke the rule that' the defendant was responsible for the continuance of a nuisance existing at the time oj the leasing of its road. For, as we have seen, it had not omitted any statutory duty then devolving upon it. The plaintiffs’ counsel in his brief states that the trial court held that the statutes enacted after the defendant leased its road imposed upon the defendant equally with its lessee the duty to erect and maintain the fences.

This ruling was as favorable to the plaintiffs as they could wish. At the time the later statutes were passed the defendant was not in possession of the road, had no control over it; it was in the exclusive possession of another company.

It is not entirely clear that the defendant would have had the right to enter upon the roadbed for the purpose of complying with the terms of the statute; but without deciding this question, we think the trial court correctly held that the damages in this’ case were not done by the defendant’s agents, engines or cars. It did not own, neither had it any interest in, any of ^he rolling stock upon the road. The clause in the statute of 1892, which follows the sentence, “ So long as such fences are not made, or are not in good repair, the corporation, its lessee, or other person in possession of its road, shall be liable for all damages done by their agents or engines or cars to any domestic animals thereon,” and which reads, “ When made and in good repair they shall not be liable for any such damages unless negligently or willfully done,” cannot with any propriety be claimed to apply to a party sustaining the relation to the road this defendant did. We are of the opinion that the word “agents” in the statute lias reference only to the agents of the corporation or person operating the road, and that neither the engines nor cars which, in this case, caused the damages, nor the employees operating them can be said to hare been the agents of the defendant.

The injuries to these horses were caused by the acts of the employees of the Philadelphia and Reading Railroad Company. (Miller v. The N. Y., L. & W. R. R. Co., 125 N. Y. 123.)

The proximate cause of the injuries to the horses was not from a failure to fence the road, nor were they injured in going from the pasture on to the railroad track. They were injured by the acts of the agents of another company.

The authorities to which we are referred by the plaintiffs’ counsel, of injuries to animals caused by their straying upon the lands of a railroad company and receiving injuries from other causes than coming in contact with railroad trains, do not seem to have any application to the question involved here. Where, or liow, or from what pasture these horses got upon the railroad track, w*as not •veiy clearly established upon the trial. That question does not seem to have been much considered upon the trial. It was probably assumed that they strayed upon the railroad lands, as claimed by the plaintiffs. We place our decision upon the ground that the plaintiffs failed to show that the injuries to their property were caused by the agents, engines or cars of the defendant.

The motion for a new trial should be denied, and judgment directed for the defendant upon the nonsuit.

Bbadley and WerNer, JJ., concurred; Ward, J., not sitting.

Motion for a new trial denied, and judgment directed for the defendant on the nonsuit.


source: Caselaw Access Project

author: Ward, J.:

license: Public Domain

text:
    Mary Smith, Appellant, v. Maria Moulson, Respondent.

      A finding of fact without any evidence to support it — an exception is necessary to the review thereof.

    Where a finding of fact is made by tlie court without evidence to support the finding, an exception is necessary to bring the case up for review, as the question whether there was evidence to support the finding is one of law, and if in such case no exception is taken to the ruling of the trial court and filed as required by section 994 of the Code of Civil Procedure, and no exception is taken to the conclusion of law that the complaint be dismissed, the judgment will be affirmed on appeal.
    Appeal by tbe plaintiff, Mary Smith, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 5th day of October, 1894, upon the decision of the court rendered after a trial at the Monroe Special Term dismissing the plaintiff’s complaint upon the merits.

      William E. Edmonds, for the appellant.

      F. E. DraTte, for the respondent.
   Ward, J.:

The principal objection raised to the judgment by the appellant is that the court found that the consideration for a contract for the purchase of the land between the parties had not been paid, and there was no evidence to support that finding. Where there is a finding of fact without evidence an exception is necessary to bring the case up for review as it is a question of law whether there was evidence to support the finding. (Mead v. Smith, 28 Hun, 639; Underhill v. Nichols, 8 Wkly. Dig. 276; Healy v. Clark, 120 N. Y. 642.) There was no exception to the ruling of the trial court filed as required by section 994 of the Code of Civil Procedure. - At all events there should have been an exception to the conclusion of law that the complaint be dismissed.

The judgment should be affirmed, with costs.

Dwight, P. J., Lewis and Bradley, JJ., concurred.

Judgment affirmed, with costs.


text:
    Edward Smith, Appellant, v. Robinson Bros. Lumber Company, Respondent.

      Principal and agent —common cm'rier not affected by secret instructions to the consignee’s agent as to the amount to be paid for transportation.

    The general doctrine, that a special agent with special instructions cannot hind his principal beyond the limits of the authority conferred, has been modified in the case of common carriers when dealing with agents in matters relating to transportation.
    The right of the common carrier to recover a reasonable compensation for transportation will not ordinarily be limited or abated by secret instructions from the principal to his agent not to pay more than a certain rate for such transportation.
    George H. Chamberlain, whose business, in part, it was to ship lumber for others, made an agreement through the agency of one McGraw by which a transportation company agreed to transport lumber from Ontonagon to Sandusky at the rate of two dollars and fifty cents per thousand feet. Chamberlain, finding he could not sell his lumber at Sandusky, telegraphed the Robinson Bros. Lumber Company of Tonawanda asking whether he could ship one boat load for them. They replied that he might if the rate did not exceed two dollars and fifty cents per thousand feet. While the lumber was being loaded Chamberlain directed the master of the boat to proceed to Tonawanda. The transportation company, which knew nothing of this change until after the vessel had sailed, brought an action against the Robinson Bros. Lumber Company to recover the freight earned in carrying the lumber from Ontonagon to Tonawanda. Upon an appeal by the plaintiff from a judgment in favor of the defendant, entered by direction of the court,

      Held, that the court erred in holding that Chamberlain was a special agent for the defendant and could not bind the defendant to pay more than the rate of two dollars and fifty cents per thousand feet.
    Appeal by the plaintiff, Edward Smith, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 2d day of March, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Erie Circuit, and also from an order entered in said clerk’s office on the 13th day of February, 1895, denying his motion for a new trial made upon the minutes.

      George G Union, for the appellant.

      Sjpencer GUnion, for the respondent.
   Lewis, J.:

This action was brought by tlie plaintiff as assignee of a claim for transporting a cargo of lumber from Ontonagon, Midi., to Tonawanda, N. Y. It was alleged in tlie complaint that tlie assignor, tlie Davidson Transportation Company of Hampton, Mich., was the owner of the schooner Harold and other vessels, and was engaged in the business of transporting lumber and other property between different ports and places upon the great lakes for hire; that the company received on board the Harold a cargo of lumber owned and shipped by tlie defendant from Ontonagon to Tona-wanda aforesaid; that the company carried and delivered said lumber at defendant’s request and upon its promise and agreement to pay therefor as freight the reasonable value of the services; that the reasonable value thereof was the sum of $2,834.11, being at the rate of $3.50 per thousand feet, and that the freight for the transportation of said lumber was demanded of the defendant; that no part thereof had been paid except the sum of $2,024.37, leaving due the sum of $809.74. The assignment of the claim to the plaintiff was alleged. The answer admitted the ownership of the lumber and its carriage, but put in issue the question of the reasonable value of tlie transportation and denied that the lumber was carried at the defendant’s request, and alleged that the Harold was chartered by one McGraw, and that tlie lumber was carried under an agreement made by one George II. Chamberlain, acting for the defendant; that said lumber should be so carried for the sum of two dollars and fifty cents per thousand feet, and was so carried under said agreement and not otherwise, and that the defendant had paid the freight and the whole thereof for the carriage of said lumber.

At the close of tlie evidence a verdict wras directed for the defendant and a motion made by the plaintiff for a new trial upon the minutes was denied.

There was evidence upon the trial tending to show' that one McGraw was a manufacturer and dealer in lumber at Ontonagon aforesaid; that he was not a shipper of lumber, but sold his lumber on the dock at Ontonagon to he delivered by him upon the rail of vessels there, and that the purchasers of lumber chartered their own vessels. A Mr. Chamberlain was engaged in and about Ontonagon in the business of purchasing lumber for third persons and securing vessels to transport tlie same from the place where it was pm-chased to the place of destination; that in October, 1891, McGraw had a quantity of lumber which he wished to dispose of. He inquired of Chamberlain, at Bay City, if he intended to ship more lumber from Ontonagon that fall. Chamberlain replied that lie did, but was not able to obtain boats; McGraw undertook to find boats, and to that end interviewed one James E. Davidson, who was an officer and agent for the Davidson Transportation Company. McGraw understood that Chamberlain desired to ship the lumber to Sandusky, and Davidson offered to furnish two boats for Sandusky at two dollars and fifty cents a thousand feet, and McGraw so informed Chamberlain, who stated that he would engage the boats at that rate, and McGraw informed Davidson, who accepted the rate of freight.

Chamberlain, finding that he could not make a sale of lumber to dealers in Sandusky, telegraphed to the defendant at Tonawanda as follows: “ McGraw has two boats chartered for Ontonagon, load one for Buffalo. Can I load one for you with five quarter. Answer.” The defendant replied: “Yes, if freight is not over two-fifty and boat is good.”

Lumber was at this time being loaded, as the carrier understood, for Sandusky. After the receipt of defendant’s telegram and while the lumber was being loaded, Chamberlain directed the master of the vessel to take the cargo of lumber to the defendant at Tonawanda;

The transportation company knew nothing of this change of destination until after the vessel had sailed and was on its way to Tonawanda. The master signed no bill of lading. When McGraw learned of Chamberlain’s intention to send the lumber to Tona-wanda instead of Sandusky, he told him that the freight would probably be from fifty cents to a dollar a thousand more than the rate agreed upon for Sandusky.

Chamberlain replied that they could fix that down there, meaning the place where the consignee resided. Some of these facts were controverted by the defendant, but as the verdict was directed by the court, they are assumed to be the facts for the purposes of this appeal. The assignment of the claim to the plaintiff was proven. The court held that Chamberlain was a special agent of the defendant and could not bind it to pay any greater rate than the two dollars and fifty cents mentioned in the telegram of instructions.

The question is, whether the carrier was bound by the secret instructions given to the agent as to the rate to be charged or can it recover a reasonable compensation for transporting the lumber? The transportation of the lumber from Ontonagon to Tonawanda was worth from $800 to $1,000 more than the freight would amount to at two dollars and fifty cents a thousand. Chamberlain’s business was obtaining customers for lumber and acting for them in procuring boats to ship it after consulting the customer as to the destination of the lumber and the time it should be shipped. The carrier found Chamberlain in control of this lumber and its apparent owner. It contracted with him in ignorance of the fact that he was not its owner, and in ignorance of any special instructions to him. It was not made to appear by any direct evidence whether Chamberlain had theretofore procured cargoes of lumber for the defendant. The tenor of his telegram to the defendant would lead to the inference that he had done so, for, without any explanation, he asks the defendant if he can load a boat for it. He did not even mention what the proposed cargo was to be ; neither the price, quantity nor quality is mentioned. The inference is reasonable that Chamberlain had theretofore dealt with the defendant in purchasing lumber, and that the defendant knew the manner in which he did his business.

"While we recognize the general doctrine that special agents with special instructions cannot bind their principals beyond the limits of the authority conferred, the rule, we think, has been somewhat modified in its application to common carriers when dealing with agents in matters relating to transportation. To attempt to apply this rule of special instructions in its fullest extent to contracts for freight made by agents with common carriers when goods are presented to them for transportation, and require them at their peril to examine into the authority of the person presenting goods for transportation to make contracts in relation thereto, would virtually destroy the utility of the business of common carriers. (Meyer v. Harnden's Expr. Co., 24 How. Pr. 290.)

The defendant here had clothed Chamberlain with the apparent title to the lumber. The assignor contracted with him in entire ignorance of the secret instructions, and the defendant now seeks to limit tlie plaintiff’s compensation by instructions it gave its agent wbicli were not communicated to tbe carrier.

Men engaged in the business that Chamberlain was maybe found in large numbers in the country, especially in the ocean and lake ports and about railroad freight depots.

They discharge important duties relating to commerce; not unfre-quently carriers, so far as agreements relating to freight are concerned, know no one but these middlemen. The place where the contract for freight is made is not unfrequently a long distance from the place of the owner’s business, and to require the carrier to communicate with the owner before accepting the property for transportation would be impracticable. While the general principles applicable to special agencies can be derived from the text books and from adjudged cases, yet after all, each case must, to a large extent, depend upon its own circumstances and be construed with reference thereto.

Reference to a few authorities may be made with profit. They may aid in the solution of the question under consideration. It is held in Shelton v. Merchants’ Dis. Trans. Co. (59 N. Y. 258) that “ an agent employed to ship goods to the owner has authority to make such contract with the common carrier as, in the honest exercise of his discretion, he sees fit.” Parsons in his work on Shipping and Admiralty (Vol. 1,. p. 170) says : “ A ship, as the great instrument of commerce, may be regarded as of great importance, not only to its immediate owner, but to the community. And the public policy or general expediency of promoting and assisting the profitable use and employment of the ship in the commercial interchange of commodities between distant nations has a considerable effect upon the law of shipping. It is probable that the system of liens hereafter spoken of and many of the duties and rights of the owner and master of the ship on the one hand and of the shippers of goods on the other, if they do not arise from this policy, are, nevertheless, affected by it and owe to it whatever modifications cause them to differ from what they would be under the ordinary rules of the law of contracts.”

In Nelson v. The Hudson R. R. R. Co. (48 N. Y. 498) it is held that “ an authority to deliver goods to a common carrier for transportation includes all the necessary and usual means of carry-iug it into effect. It can only be executed by obtaining the consent of the carrier to receive them, and tlie agent is, therefore, authorized to stipulate for the terms of transportation.”

In Ryan v. M., K. & T. Ry. Co. (65 Tex. 15) it is stated that as a general rule the consignor, as the agent to whom the owner entrusts his goods to be delivered to the carrier, must be regarded as having authority to stipulate for the terms of transportation.”

In Howell v. Graff (25 Neb. 130) it is held : “A special agent who acts within his apparent power wilL bind his pi-incipal by his contracts even if he has received private instructions which limit his special authority, but if he exceed liis apparent power his principal will not be bound.” (The Millers' Nat. Ins. Co. v. Kinneard, 136 Ill. 199.)

It was held in Mo. Pac. Ry. Co. v. Ins. Co. (84 Tex. 149) that an agent who bought and shipped cotton to his non-resident principal was presumed to have authority to make any kind of lawful freight contract upon such shipment, as that the carrier should have the benefit of any insurance that might have been effected upon the goods; that in the absence of notice to the contrary the carrier might rely upon the existence of such power in the agent.

Mr. Justice Field in York Co. v. Illinois Cent. R. R. Co. (3 Wall. 107) says that the consignees, who were not in that case the owners of the property shipped, but the mere agents of the consignees, were to be treated as the owners.

If we may assume, as suggested, that the defendant was advised of the character of the business Chamberlain was pursuing, and had theretofore purchased cargoes of lumber through him, Chamberlain may be considered as the general agent for the transaction of that particular kind of business, and if so his acts, as between his principal and strangers in that particular line of business, bound his principal although he violated private instructions given him by his principal which he failed to communicate to the transportation company. (Cox v. Alb. Brewing Co., 56 Hun, 491.)

When the Davidson Transportation Company accepted this freight for transportation reciprocal rights arose between it and the defendant, the owner of the property. Shippers of goods are bound to pay the owner of the ship the freight earned by the carriage. The ship owner has a lien on the goods to enforce his rights against them.

This rule is one favored by the law merchant for the mutual benefit of the carrier and the shipper, and for the general advantage of commerce. A charter party does not divest the owner of the vessel of his lien for freight, nor of his right to collect the same. Though the lien be waived by the master delivering the goods without demanding freight, the owner may afterwards compel the consignee to pay it. When the lumber in this case was put on board the vessel it became bound to the ship for the freight. Had these secret instructions to Chamberlain been to the effect that thedefend-ant would consent to his shipping the lumber upon condition that the vessel should not have a lien for its transportation, and the cargo had been taken aboard the vessel without the secret instructions having been communicated to the carrier, it would scarcely-be claimed that the vessel would have lost its lien upon the lumber for its transportation. We are of the opinion that there were questions of fact in this case which should have been submitted to the jury, and that it was error to direct a verdict.

The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.

Bbadley, J., concurred; Wakd, J., dissented; Dwight, P. J., not sitting.

Judgment and order reversed, new trial granted, costs to abide the event.


text:
    William H. Caine, Appellant, v. Benevolent and Protective Order of Elks, Respondent.

      Association of Elks — power of its ruler to remove officers — -an arbitra/i'y removal is not justified — scope of such power.

    Semble, that the fact that hy the constitution of a benevolent and protective order of Elks its ruler is given the power to remove, for cause, any elected or appointed officer of its grand lodge, does not justify a removal made hy such ruler if the removal was made without notice to the persons removed and without giving them any opportunity of appearing before him and presenting their defense, and that a judgment pronounced hy the ruler upon the conduct of the persons removed, if arbitrary and without any compétent evidence that the persons removed had failed to fully and conscientiously perform the duties imposed upon them, will not he sustained. . *

      A member of a committee appointed to designate the place at which an annual meeting is to he held, although a trustee of the order, does not come within the scope nor is he subject to the exercise of such power.
    Appeal by the plaintiff, "William II. Caine, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Chautauqua on the lGth day of August, 1891, granting the defendant’s motion to dissolve,* set aside and vacate an injunction issued against it on the 18th day of June,. 1894

      A. O. Wade, for the appellant.

      Leroy Andrus, for the respondent.
   Lewis, J.:

A temporary injunction was granted in the above action by the special county judge of Cattaraugus county, restraining the defendant, its officers, agents, servants and assistants from holding or attempting to hold any annual meeting of the defendant at Atlantic City in the State of New Jersey on the 19th day of June, 1894, and from paying out or expending or contracting to pay out or expend any of the funds of the defendant in paying or defraying any expenses of such meeting.

The defendant was incorporated by special act of the Legislature of the State of New York in the year 1871, as a fraternal benevolent society, for the purpose mainly of accumulating funds for the protection and aid of its members and their families. The order was, at the time of the commencement of this action, composed of a grand lodge and a large number of subordinate lodges located in various States of the TTnion. The subordinate lodges receive their charters from the grand lodge, and are subject to its general control and government, subject, however, to limitatioñs provided in the charter. The constitution provides for officers of the grand and subordinate lodges with long, high-sounding titles, which, for the sake of brevity, will be omitted. The officers consist of a ruler, who is the head of the order, three knights, a secretary, treasurer, tiler, and a board of three trustees. These officers are elected by ballot at the annual meetings of the grand lodge. Their term of office is one year. The ruler is given the power by the constitution to appoint certain subordinate officials and such committees as may be created by law or are authorized by the grand lodge. A court of appeals, consisting of three members of the order, is provided for, to be appointed by the grand lodge at its annual meetings. This body is vested with the power to construe the laws of the order and settle all controversies, in accordance with the constitution, laws and principles of the order, and decide such questions as shall be submitted to them for their decision by the grand lodge; their decisions, when announced by the ruler, are final unless reversed by the grand lodge at its annual meetings. The ruler is given the power to remove, for cause, any elective or appointed officer of the grand lodge. ' He is required to give his reasons therefor in liis annual address; such removals are subject to the approval of the grand lodge. Annual meetings of the grand lodge are to be held at such time and place as it shall determine. .

The expenses attending such meetings are to be paid by the grand lodge. Delegates to the annual meetings are appointed by the subordinate lodges and they compose the members of the convention. The expenses of the delegates in attending upon these annual meetings were found to be quite onerous, and at the annual meeting held in Detroit in the year 1893, this question was considered, and the convention concluded to change the practice which had theretofore’ prevailed of the convention designating by resolution the time and place for the meeting for the following year. The convention determined to appoint a committee of three with power to fix the time and place for the annual meetings, and the following resolution was unanimously adopted: That the board of grand trustees should select a time and place that would be most convenient to the' largest number of members, the ¡hace selected to be one that would offer the best inducements, and secure the lowest hotel and railroad rates.” Willard O. Van Derlip, Joseph Laube and Peter J. Campbell were elected by ballot general trustees of the order at the Detroit meeting; their term of office was one year, and until their successors were appointed. These trustees, as such committee, met in the city of New York for the purpose of considering the question submitted to them. They selected Atlantic City, New Jersey, as the place of meeting, and June nineteenth as the time, and so reported to the ruler. The action of the committee did not meet with liis approval. He claimed that the committee had determined upon a place of meeting without sufficient investigation and without having made sufficient negotiations with hotel proprietors and transportation companies of different localities, with the view of securing the best terms for the delegates, lie concluded to have another place selected for the meeting, and to accomplish his purpose he at once, without any notice to the members of the committee and without their having any opportunity to appear before him and give an account of their proceedings, removed them from their office as trustees. He assumed the power so to do under section 4 of the laws of the order, which reads as follows : “ He (the ruler) may remove any elective or appointive officer of the grand lodge or of a subordinate lodge for cause, but he must give his reasons therefor in his animal address,' and all such removals shall be subject to the approval of the grand lodge. He shall have such other powers and perform such other duties as are inherent in and pertain to his office, and are not in conflict with the constitution and laws.” The ruler thereupon appointed another committee on location. The new committee selected Jamestown, N. Y., as the place of meeting, and fixed the same time for the meeting as the first committee had. The ruler thereupon called a special meeting of the order to convene at Jamestown on the day before the time thus fixed for the convention in that city. This controversy caused much feeling among the members of the order. Delegates were appointed by the different lodges; some of them were commissioned to attend the Atlantic City meeting, and others the Jamestown meeting. The ruler gave notice to the members of the committee on laws and appeals to assemble and determine as to the propriety of his action in the removal of the committee. One member of the committee thereupon resigned, another gave notice that he would not be able to attend the meeting. The ruler appointed others in their places, and the two thus appointed met with the remaining member, and without giving notice to the members of the committee who had been removed, approved the action of the ruler in removing them. As the time approached for the assembling of the delegates to these rival conventions this action was commenced in the name of the plaintiff, who was a member of the order and a resident of the State of Minnesota, and the injunction order mentioned was obtained, and upon motion the order appealed from was granted.

Both meetings were held, a quorum of delegates being present at each meeting. The usual proceedings were had, including the election of officers, etc. The ruler attended at the Jamestown meeting, and reported what he had done in the removal of the committee, and that convention passed a resolution approving his action.

The legality of the acts of the ruler in removing the committee is the principal question presented by this appeal. If he acted within the powers conferred upon him then the Atlantic City meeting was not legally convened, and the expenses of the delegates thereto cannot properly be paid out of the funds of the order, and the officers which were there elected are not entitled to discharge their respective duties. The power to fix the time and place of the annual meetings, as stated, is vested by the constitution in the grand lodge. The convention determined to confer the power to select the place and time of meetings to a committee of three of its members for the reasons stated, instead of exercising the power by a vote of the delegates. When the committee discharged the duty thus confided to it, it was in effect the act of the convention. Had the convention at its annual meeting selected Atlantic City as its place of meeting no one would claim that the ruler had the power to change such determination. Selecting the place for such meeting was not one of the ordinary powers conferred upon the board of trustees by the constitution and laws of the order. Their duties are defined by section 11 of the grand lodge laws as follows : “ The grand trustees shall have general supervision over the funds, investments and other property belonging to the grand lodge. They shall receive and hold the bonds and securities of such grand officers as are required to give security for the faithful discharge of their official duties. They shall purchase all books, papers, supplies, etc., that are necessary, and order the grand secretary to contract for all necessary printing under their direction. They shall audit the accounts of the grand secretary and grand treasurer, and report thereon in full at each annual session. For this purpose they shall obtain all necessary books, papers, etc., from those officers prior to the annual session. They shall regularly make a report of their transactions, * * * and they shall carry out in general the provisions of tlie constitution and laws of tlie order.” The fact that the committee so selected happened to hold the office of trastees does not, we think, affect the question under consideration. Had other members of the order been chosen their powers would have been the same. The power to remove such a committee as this is not, by the constitution or laws of tlie order, expressly or impliedly vested in the ruler, and when he assumed to exercise that power his acts were void and of no effect. But had he possessed the power of removal his decision should not be sustained because of the manner of his procedure. He assumed to remove them without notice, and without giving them any opportunity of appearing before him and presenting their defense. He pronounced judgment upon their conduct arbitrarily without,' as far as appears from the record, any competent evidence that they had failed to fully and conscientiously perform the duties imposed upon them by the convention. After having assumed to remove them, he, without authority, appointed another committee upon location, thus, in effect, arrogating to himself practically the right and power of determining the place of meeting, which, by the constitution, was vested in the convention at its annual meeting. The constitution of the order provides that the grand lodge may exercise the judicial powers or delegate the same, and that a court of appeals may be established to which cases may be taken on appeal. Two members of the court of appeals having refused to act, the ruler assumed to appoint others in their places. It is quite doubtful if he possessed the power to appoint members of that committee. That power, by the constitution and laws of the order, seems to have been committed to the delegates composing the annual convention.

Other questions are presented which we do not deem it necessary to consider, as we are of the opinion, for the reasons stated, that the action of the ruler in assuming to remove the committee on location, and change the place for the meeting from Atlantic City to Jamestown, was without jurisdiction and void.

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

Bradley, J., concurred; Dwight, P. J., and Ward, J., not sitting.

Order affirmed, with ten dollars costs and disbursements.


text:
    Benjamin F. Wheeler, Respondent, v. Sarah J. Eastwood, as Administratrix, etc., of Josiah K. Eastwood, Deceased, Appellant.

      Instrument in writing — when it is a hill of sale and not a, chattel mortgage — scrutiny of claims against the estate of a decedent.

    An instrument in writing- recited that the first party named therein, in consideration oí a specified sum paid to him at or before the execution of the instrument by the second party thereto, the receipt whereof was acknowledged, had bargained and sold to the second party certain property, and that the property so transferred was in the possession of the first party. The instrument contained no promise or agreement to pay any sum of money to the second party.

      Held, that the instrument was a hill of sale and not a chattel mortgage.
    Where one of the parties to a written contract is dead, claims arising thereunder made by the other party thereto against his estate should be scrutinized with great care, and should be rejected unless they are sustained by very clear and competent evidence.
    Appeal by the defendant, Sarah J. Eastwood, as administratrix, etc., of Josiah K. Eastwood, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Wyoming ou the 28th day of July, 1894, upon the report of a referee.

      John F. Dorihy, for the appellant.

      Charles D. Newton, for the respondent.
   Lewis, J.:

This was a reference under the statute of a claim made by the plaintiff against the estate of Josiah K. Eastwood, deceased. Eastwood died in October, .1892. The defendant was appointed admin-istratrix of the estate. The plaintiff, in the month of November, 1893, presented to the defendant a claim against the Eastwood estate for $296.85, consisting of the following items :

“ 1892, Sept. 5, to money loan. $250 00
11, “ “ . 2J 85
Oct. 4, “ “ services and labor_ 19 00 ”

The claim was rejected by the administratrix and was duly referred, and the referee found as facts that on the 5th day of September, 1892-, the deceased, Josiah K. Eastwood, executed and deliv-' ered to the plaintiff- a bill of sale of personal property, consisting of a one-fourth interest in some cordwood, farm products, buggy, etc., to secure the payment of the sum of $250, and that thereafter and in November, 1893, Eastwood having died and the defendant Sarah having been appointed administratrix, a written agreement was made between the plaintiff and the administratrix and one Erank 0. Eastwood, by which the property described .in the said bill of sale or chattel mortgage for the security of the plaintiff was discharged, but leaving the question of a claim under the said bill of sale to the 'extent of $250 with some other items of account against said estate unsettled, which were to be referred according to law, and that no part of the $250 had been paid, and he found as a conclusion of law that the plaintiff was entitled to recover against the defendant, as administratrix, said sum of $250.' ■

The referee assumes, without evidence to sustain the assumption, that the instrument was intended as a chattel mortgage.

The evidence, we think, fails to sustain the conclusions of the referee, but on the contrary, it tends quite conclusively to show that the bill of sale, lipón which the referee bases his findings, was not given by the deceased to the plaintiff to secure to him the payment of any sum of money whatever, but was given through the advice of the plaintiff for the purpose and with the intention of preventing a Mr. Herron from collecting a grocery bill he had against Eastwood, and for the collection of which Herron had brought suit against Eastwood. The bill of sale bore date September 5, 1892. It recites that the deceased, in consideration of the sum o,f $600, paid to him at or before the execution of the instrument by Benjamin F. Wheeler, the receipt whereof is hereby acknowledged, has bargained and sold to Wheeler a buggy and harness and a quarter interest in some farm products; that the property so transferred was in the possession of Eastwood upon his farm in Wyoming county.

The instrument was a simple bill of sale. It in terms acknowledges the payment of the consideration for the property sold. It contains no promise or agreement to pay any sum of money to the plaintiff. Claims of this character presented against estates should be examined, before they are allowed, with great care. One of the parties to the contract being dead, claims made arising thereunder should be scrutinized with great care and should be rejected unless they are sustained by very clear, competent evidence. The plaintiff was permitted without objection to testify to personal transactions with the deceased.

This evidence, it is claimed, tended to sustain his cause of action. This evidence would undoubtedly have been excluded had it been objected to, but, we think, giving full credit to it, it fails to satisfactorily sustain plaintiff’s claim. It was fairly established upon tiie trial that the bill of sale mentioned was executed by the deceased by the suggestion and through the connivance of the plaintiff, with the intention of hindering and preventing the collection of a claim against him in favor of a Mr. Herron.

An action had been commenced by Herron against the deceased just prior to the date of the bill of sale, and was then pending-undetermined to collect a grocery bill the deceased owed him. The testimony of Mr. and Mrs. ITurne as to conversations between the deceased and plaintiff at the time of the execution of the bill of sale, pretty clearly establish that it was given to cover up fhe property so as to prevent the collection of the grocery bill.

There was evidence tending to show that the plaintiff was not in a condition financially, at the time the bill of sale was given, to loan Eastwood money to any amount. Mrs. Hume testified that shortly before its execution the plaintiff came to the deceased’s house to live ; that he was without means; that all that he had was a “ piece pail ” and a pair of overalls. Mr. Manchester testified that plaintiff did not have money enough to p>ay his fare to Plornellsville and that he furnished him a ticket. Michael Pension,, a hotelkeeper, testified that the plaintiff was working for him about the hotel; that he wasn’t any good around the hotel tending bar, so I put him in the bam and he wasn’t any good there, and after the fair I let him go ; I paid him somewhere about $18 or $19 for labor.”

Plaintiff testified : “I have been confined in the jail at Warsaw and am not ashamed of it either; I refused to pay costs on an execution.”

The plaintiff and the deceased appear, from the evidence, to have had some real estate dealings. In the month of November, 1893, after the appointment of Mrs. Eastwood as administratrix, a settlement was had between the plaintiff and Eastwood’s representatives, which resulted in a written agreement being executed, dated the 13th day of November, 1893, which recites that, “Whereas, divers disputes have arisen between the parties hereto, growing out • of transaction had between the party of the first part and Josiah I£. Eastwood; ” then follow some conditions as to the transfer of property between the parties, and then it states : “ The parties of the second part (the administratrix and Frank 0. Eastwood) agree to pay the interest on said Halstead mortgage and pay the first jrnrty (the plaintiff), $350; upon receipt of which $350 the party of the first part agrees to release and'discharge said parties of the second part and the estate of said Josiah K. Eastwood, deceased, from all bills of sale, chattel mortgages, damages, bonds, notes and liabilities of every kind which he may have against said estate of Josiah K. Eastwood, deceased, or these parties individually, except an account of $296.85 which he claims against said estate, which is to be referred under the statute for disputed claims.”

The administratrix paid to the plaintiff this $350.

It is stated in the record that it was admitted by the plaintiff that the bill of sale heretofore mentioned was canceled by this agreement. Notwithstanding this admission, the referee has found that it was not in fact canceled, but that there was due thereon from the estate to the plaintiff $250.

Not much attention seems to have been paid to the rules of evidence upon the trial, resulting undoubtedly from the failure of the defendant’s counsel to interpose proper objections.

An examination of the case has satisfied us that the plaintiff’s alleged claim is fictitious and without any merit, and that the judgment appealed from should be reversed and a new trial had before another referee, with costs to abide the final award of costs.

Dwight, P: J., and Beadley, J., concurred; Waed, J., not sitting.

Judgment reversed and a new trial granted before another referee, costs to abide the event.

         Sic.


text:
    The County of Monroe, Appellant, v. The City of Rochester and Samuel B. Williams, as Treasurer of said City, Respondents.

      Street opening — assessment of expense — power of the Supreme Court to correct the assessment in an action brought by the party assessed.

    Although the assessment against property, made by assessors appointed to assess the expenses arising out of the opening of a city street may he grossly unjust and unequal as compared with the assessment against other property taken for such street, yet, if it results simply from an error of judgment on the part of the assessors, the Supreme Court has no power to correct it in an action brought ' by the owner for that purpose.
    If, however, improper considerations enter into the minds of the assessors in making the assessment, or they adopt an erroneous rule or principle which results in great injustice to the property owner, the Supreme Court has power to cor- . reel the error.
    The error will bo corrected in a case in which it is apparent that the assessors did not adopt any rule in making the assessment upon the property of such owner, but arbitrarily fixed the amount of the assessment without the exercise of their judgment.
    Appeal by tlie plaintiff, Tbe County of Monroe, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 28th day of November, 1894, upon the decision of the court rendered after a trial at the Monroe Equity Term dismissing the plaintiff’s complaint.

      John Desmond, for the appellant.

      A. J. Dodenbeoh, for the respondents.
   Lewis, J.:

The common council of the city of Rochester, in the year 1881, took proceedings for opening a street in that city, running east and west from State to Sophia streets, known as Church street.

The common council duly designated the portion of the city deemed to be benefited by the laying out of the street, and ordered an assessment to be made upon the portion of the city so designated to pay the expenses of the improvement.

The assessment was accordingly made, which was set aside by the judgment of the Supreme Court because of irregularities of tbe assessors in making the assessment; a reassessment was thereafter made by the direction of the common council. The plaintiff, being the owner of a parcel of land which was assessed for said improvement, brought this action to vacate and set aside the assessment, because of various alleged errors and irregularities in the proceedings of the common council, and especially errors and irregularities of the assessors in making the assessment. The action was tried at the Monroe Special Term, and resulted in the dismissal of the plaintiff’s complaint, and the plaintiff appealed from the judgment to this court.

The trial court did not deem any of the alleged errors of sufficient importance to justify setting the assessment aside. Many errors and irregularities in the proceedings and determinations of the assessors were charged in the complaint and litigated upon the trial. We agree with the conclusions of the trial court with one exception. We find, from an examination of the case, evidence of such a gross and excessive assessment of the plaintiff’s property as compared with the assessment of the other property assessed, that our minds are led to the conclusion that there must have been some inexcusable error committed by the assessors in making the assessment, and a perusal of the testimony of Mr. Munn, one of the persons who made the assessment, and the only one of the assessors who was interrogated as to the rule or principle adopted in making it, strengthens and confirms the impressions made by the examination of the other evidence in the ease. Plaintiff’s property consists of a lot fronting upon the southerly side of West Main street; it is bounded on the west by Fitzlmgh street, on the east by Irving place, and on the south by property of the city; it is 140.0S feet in width, and 264 feet in depth, and was proven to be worth about $250,000 at the time of the trial. At the time the assessment was made the evidence tends to show that.it was worth about $150,000, and at this same time there was upon the lot an old court house, which has since been torn down and a new court house is being constructed thereon. The sum directed to be reassessed upon all the property in the district, for the improvement, was $185,000; of this sum the plaintiff’s property was assessed $16,082.40.

The property directly east of plaintiff’s lot, on the other side of Irving place, bounded upon the north by the southerly side of West Main street 165 feet, and on the west by Irving place, on the east by Exchange street and 325 feet- in depth, which concededly was of much greater value than plaintiff’s lot and an equal distance relatively from Church street, was assessed at only $8,827.12. A like inequality appears in the assessment upon the block adjoining the plaintiff’s lot on the west across Fitzhugh street. Property across West Main street from plaintiff’s lot, which fronts ,on Main street 162 feet and upon North Fitzhugh street 143 feet, and is occupied by the Powers Hotel and stores, which with its improvements was worth twice as much as plaintiff’s lot, was assessed about $6,000.

The property known as Powers Block upon the corner of West Main and State streets, with a frontage on West Main of 165 feet and 171 on State street, and the width of Main street nearer Church street than plaintiff’s lot, and which was valued at more than $1,000,000, was assessed at a little more than $7,000.

Many other instances of flagrant inequalities in the assessments appear in the case. Our attention has not been directed to another piece of property, in the entire district, which is assessed at anything like the amount of the plaintiff’s assessment relatively.

The assessments upon lots which, by the opening of Church street, were given a frontage upon that street appear to be almost nominal in amount compared with the assessment in question, while plaintiff’s lot is 455 feet distant from Church street.

Mr. Munn was called as a witness and questioned as to the plan or rule adopted by the assessors iu making the assessment. lie replied that it was a long time since the roll was made out, and that he could not state positively iu regard to it. When asked to give some reason for the large assessment on plaintiff’s property he said that they divided the property into ’grades and laid the assessments at amounts per foot for the different grades; that they took into account mainly the frontages the property had upon streets, and that in .the case of the court house property they regarded the lot as having three frontages, one on Main, another on Fitzhugh and a third on Irving place, and when confronted with the fact that even then the amount of the assessment would not have been produced, lie said that they might have ai’bitrarily made some additions to the frontages in the case of the plaintiff’s lot. It is quite apparent from the testimony of Mr. Mnnn that the assessors did. not adopt any rule in mating the assessment in question, but arbitrarily fixed the amount and that without the exercise of their judgment in the premises.

The following questions propounded to him and his answers thereto tend quite strongly to establish this conclusion : “ Q. What is there in your reason that tells you the court house .property, smaller frontage by 25 feet on Main street, receives more than twice the amount of benefits this other block has received (referring to the block on the other side of Irving place) ? A. The assessed valuation of the court house — the estimated valuation of the court house — when the first assessment for Church street was made was $150,000, and now the board of supervisors have been trying to sell it for $250,000, and the increase in price is based principally on the opening of Church street and the location of the government building, and I believe the law allows the assessors to place an assessment and benefit to the increase of the property. . Q.' This other property is relatively the same distance from Church street, and must, on the same principle, have increased in value, must it not? A. I don’t know; I haven’t looked into it; that is, I haven’t got it in my mind ; I had-this in my mind principally because that was in reference to the county building. * * * Q. Why is it that the smaller piece of property has increased any larger amount than the larger piece ? A. Well, that is our judgment; that is all. Q. You haven’t any reason to offer ? A. That is the reason; that it has. * * * Q. Take the Powers Block, that has a frontage of 169 feet on Main street; it is 100 feet nearer to Church street; it is 111 feet on State street; it is valued for more than a million dollars, and it is assessed for a little over $7,000 ; it has quite as many square feet, nearly as many square feet, as the court house property; explain upon what rule or method you discriminated in that way between those two pieces of property ? A. We assessed according to benefits. Q. What method of reasoning led you to the conclusion that the court house property * * * received $16,000 while this block here of property received only $7,000 ? A. I have no answer to offer to that.” The answers of this witness to questions propounded to him as to the assessments upon property in the immediate vicinity of Church street, and some of it fronting upon that street, and which were, as compared witli tlie assessment in question, absurdly small in amount, were equally unsatisfactory.

Tliat the assessment of the plaintiff’s property was relatively grossly unjust and unequal cannot be doubted by any one who examines the evidence. If this had resulted simply from an error of judgment on the part of the assessors we would be powerless to correct it in this form of action. (Cooley on Taxation [1st ed.], 533: Guest v. The City of Brooklyn, 69 N. Y. 506; Hoffeld v. The City of Buffalo, 130 id. 387.)

We feel quite sure that improper considerations were permitted to enter into the minds of the assessors in making the assessment; they must have adopted some erroneous rule or principle which resulted in this great in justice to the plaintiff, and, that being so, we have the power hereto correct the error. (Elwood v. The City of Rochester, 43 Hun, 102.)

The judgment appealed from should be reversed and a new trial granted, with costs to abide the final award of costs.

Dwight, P. J., Beadley and Wakd, JJ., concurred.

Judgment reversed and new trial granted, costs of this appeal to abide the final award of costs.


author: Haight, <T.:

text:
    Edmund C. Whitney and August Beck, as Sheriff of Erie County, Appellants, v. Joseph Davis and Others, Respondents.
    Action against a non-resident — levy under an attachment necessary — creditors Mil — prerequisite of a complaint under subd. 2 of section 655 of the Code of Civil Procedure— scope of the equity powers of the court.

    In an action "brought against a non-resident for the recovery of a sum of money only, where the defendant is served with the summons without the State, no judgment can he entered against him until an attachment issued in the action has been levied upon his property.
    Ordinarily, an action in the nature of a creditor’s bill cannot be maintained until after entry of judgment and the return unsatisfied of an execution issued thereon.
    The complaint in an action instituted under the provisions of subdivision 2 of section 655 of the Code of Civil Procedure, in aid of an attachment, must allege not only that the defendant has not appeared in the action, but also that he has made default therein.

      Semble, that the provisions of the Code of Civil Procedure, in reference to attaching creditors’ actions and creditors’ hills, do not extend so far as to deny to a creditor the interposition of the equity powers of the court, where the situation is such as to render it impossible for him to obtain relief under those provisions, but such equitable powers will not be extended to cases where parties may by compliance with the provisions of the Code obtain full relief and protection.
    Appeal by the plaintiffs, Edmund -C. "Whitney and another, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 20th day of November, 1894, denying their4 motion for a new trial upon the ground of surprise and newly-discovered evidence.

      Norria Morey, for the appellants.

      Ansley Wiloox, for the respondents.
    Present — Dwight, P. ,T., Lewis, Beadley and WARD, JJ.
    Order affirmed, with ten dollars costs and disbursements, on opinion of Haight, J., at Special Term.
   The opinion of Haight, J., at Special Term was as follows:

Haight, <T.:

The evidence in this case shows that the action was brought in aid of an attachment issued in.another action, and that the defendants were not in default in that action when this action vras commenced. The same question is presented in the case of The First National Bank of Salem and Another v. Joseph Davis et al., in which case 1 have reached the conclusion that the action is not maintainable until such default. See my opinion filed in that case. If the conclusion I have reached in that case is sound, it follows that this action must fail for the reason that it was prematurely brought. I think, therefore, that the motion must be denied. The order to be entered, however, should provide that the motion was disposed of on this ground and without a consideration of the merits, so that in case it should be held that my views are unsound upon this question bilo-case may be again remitted to the Special Term for a determination of the motion upon the merits.

The motion for a new trial upon the ground of newly-discovered evidence is denied, with ten dollars costs, for the reason that the action appears to have been prematurely brought, and without a consideration of the motion upon the merits.

       SUPREME COURT.
      The First National Bank on Salem] and August Beck, as Sheriff of Erie ¡.Erie Special Term, September, 1894. County, «. Joseph Davis et al. j
      Demurrer to plaintiff’s complaint bjr the defendants Joseph Edwin Davis and Edmonia B. Martin.
      Haight, J.:
      The complaint, among other things, alleges that the plaintiff, the First National Bank of Salem, began an action against the defendant Joseph Davis, a non-resident of this State, by the personal service of a summons and complaint upon him without the State on the 14th day of September, 1898, pursuant to chapter 5 of the Code of Civil Procedure, to recover a balance of §10,311.49 upon three promissory notes. The complaint further alleges that the defendant Joseph Davis has not appeared in said action, and that final judgment has not been entered therein; that in that action an attachment has been duly issued to the sheriff of Erie county in this State directing him to attach the property of Joseph Davis; that the defendant Joseph Davis was on the 15th day of May, 1891, seized as owner in fee of an undivided two-thirds of a parcel of land situate in the city of Buffalo, county of Erie (particularly describing the same), and that on that day the defendant Davis executed and delivered a deed of conveyance thereof to the defendant Miles M. Martin, of the State of Virginia, and that the consideration named in such deed was the sum of §50,000. The complaint contains other allegations to the effect that this conveyance was made in fraud of the rights of creditors and is void, and as relief demands judgment that such conveyance be adjudged fraudulent and void as against the attachment issued in the action brought by the plaintiff, the First National Bank of Salem, against Davis, and that the premises be subjected to the levy of the plaintiff’s attachment, etc.
      This action, as commonly understood, is in aid of such attachment. The demurrers interposed are upon the ground that the complaint does not state facts sufficient to constitute a cause of action, and the particular defect relied upon, as pointed out upon the trial, is that the complaint fails to allege that the defendant Davis had made default in the action brought against him upon the notes, and in which action the attachment was issued.
      The second subdivision of section 655 of the Code of Civil Procedure provides as follows: “ Where the summons was served without the State, or by publication pursuant to an order obtained for that purpose, as prescribed in chapter fifth of this act, and where the defendant has not appeared in the action (otherwise than specially), but has made default, and before entering final judgment, the sheriff may, m aid of said attachment, maintain any i:' * * action against tne attachment debtor and anj' other person or persons * * which may now be maintained by a judgment creditor in a court of equity either before the return of an execution in aid thereof or after the return of an execution unsatisfied.”
      There are other provisions to the effect that the judgment in such an action shall provide and direct that the property shall be applied to the satisfaction of any judgment which may be obtained in the attachment action (§ 655, subd. 2), and that in such action the plaintiff, by leave of the court or a judge thereof, may bring and maintain the action in the name or himself and the sheriff jointly by his own attorney, and at his own expense. (Code Civ. Proc. §§ 677, 678.)
      It will be observed that the complaint herein alleges that the summons in the action in which the attachment was issued was served without the State, pursuant to an order obtained for tliat purpose; that the defendant lias not appeared in the action, and that judgment has not been entered therein; but it does not allege that the defendant has made default therein. The defendant Davis being a nonresident, and the service of the summons upon him having been made without the State, and the action being for a sum of money only, no judgment could be entered against Mm until an attachment issued in the action had been levied upon Ms property. (Code Civ. Proc. §§ 1216, 1217.) It was for the purpose of making-the levy of such attachment good that this action was brought. At what time-may it be maintained? This question has been much discussed in the courts. Ordinarily, an action in the nature of a creditor’s bill can be maintained only after the entry of judgment and the return unsatisfied of an execution issued thereon. (Code, § 1871.) But cases have arisen in which it was impossible for parties to comply with this provision, in which it has been found necessary, in order to protect the rights of creditors, for the court to interfere through its equity powers. It consequently has been held that an attachment creditor, after recovery of judgment and the issuing of execution, may maintain an equitable action in his own name to set aside a fraudulent transfer of the property which had been seized under the attachment (Mechanics & Traders’ Bank v. Dakin, 51 N. Y. 519), and, on the-other hand, that the attaching creditor had no standing in court to reach equitable assets until his remedy at law was exhausted, nor to attack a fraudulent transfer of the property of his debtor until after judgment. (Thurber v. Blanck, 50 N. Y. 80.) Again, a creditor by attaching property in the possession of his debtor acquires a specific lien upon his interest and is entitled, like a judgment creditor, to impeach the title of a fraudulent mortgagee. (Frost v. Mott, 34 N. Y. 253.)
      After the court had thus given expression upon the subject, the attention of' the Legislature was again called thereto, and in 1889 (Chap. 504) the second subdivision of section 655 of the Code above quoted was enacted. To my mind it was the legislative intention to bring the practice as nearly in harmony with that provided in judgment creditors’ actions as was possible and still preserve the-rights and remedies of attaching creditors.
      The plaintiff, the First National Bank of Salem, could not enter judgment against the defendant Davis until it could show a levy of the attachment issued in its action upon property belonging to Davis. This it was unable to do, for the reason that the property of Davis being real had been conveyed to another person. It can make such attachment good only by procuring a judgment in' this court declaring such conveyance or transfer to have been made in fraud of its rights. But, as we have seen, ordinarily, such an action could be maintained only after the creditor had established the amount of his claim by a judgment and exhausted the-remedies given him at law by the issue and return of an execution unsatisfied, but tMs could not be done if the plaintiff is given no power to enter judgment; and, to-my mind, it was to relieve creditors similarly situated that the provision in question was enacted. It gives him the right to now maintain an action where the defendant has not appeared in the action, hut has made default whereby the rights of the plaintiff have become fixed and the amount of his claim established. My attention has been called to the case of The People ex rel. Cauffman v. Van Buren (136 N. Y. 252) which it is claimed sustains the plaintiffs’ contention. It is sufficient to say in reference to that case that the attention of the court does not appear to have been called to the provisions of the Code under consideration, and the judge delivering the prevailing opinion of the court expressly states therein that “the mere existence of a fraudulent transfer would not be sufficient to authorize a court of equity to entertain an action at the suit of an attaching creditor to set it aside.”
      T do not understand that the allegations of the complaint call for the exercise oí" any of the equitable powers of the court independent of the provisions of the Code. It may bo that the provisions in reference to attaching creditors’ actions and creditors’ bills do not extend so far as to deny to a creditor the interposition ■of the equity powers of the court where the situation is such as to render it impossible for him to obtain relief under those provisions. (The National Tradesman’s Bank v. Wetmore, 124 N. Y. 241; People ex rel. Cauffman v. Van Buren, 136 id. 252-260.) But this power will not be extended to cases where parties may comply with the provisions of the Code and by so doing obtain full relief and protection. In this case the alleged fraudulent transfer was of real estate, and it is not alleged nor is it apparent that the plaintiff will suffer any harm from waiting until the defendant has appeared in the original action or has made default. By so waiting the parties may avoid the expense and trouble of trying' the action in aid of the attachment and of carrying it up through the courts of the State and then possibly upon a trial of the original action in which the attachment was issued find-that the plaintiff had no cause of action.
      The demurrers should be sustained, with leave to the plaintiffs to amend their complaint within twenty days upon payment of the costs of the demurrers.


author: BkowN, P. J.:

text:
    The People of the State of New York ex rel. Theodore A. Drake, Respondent, v. John R. Sutton and Others, Board of Audit of the City of Brooklyn, Appellants. The People of the State of New York ex rel. Daniel O’Reilly, Respondent, v. The Same, Appellants. The People of the State of New York ex rel. Frederick A. Davis, Respondent, v. The Same, Appellants. The People of the State of New York ex rel. William A. Brown, Respondent, v. The Same, Appellants.

      Veteran volunteer jw'emen — holding positions as clerks com he discharged only for cause — mandamus their proper remedy to secure reinstatement — chap. 577 of 1892.
    The rule that courts will not, at the instance oí a person out of possession of an office, try the title to the office by mandamus, but will leave the party to his remedy Dy writ of quo warranto, has reference to public officers created by law and is not applicable to clerks or employees unlawfully removed from their positions by their superiors.
    Under chapter 577 of the Laws of 1892 veteran volunteer firemen holding positions by appointment in a city for an indefinite time, and not being persons excepted by the statute from its operation, if removed from their positions without cause, may properly seek reinstatement by mandamus.
    A person who is appointed a clerk, under a city charter which confers upon the heads of city departments, power to appoint and remove clerks and fix their salaries, performs duties of a public character, but he cannot be said to hold a public office existing solely by force of a statute.

      Appeals by the defendants, John R. Sutton and others, board of audit of the city of Brooklyn, from orders of the Supreme Court in four cases, each made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 30th day of April, 1895, granting the motions of the several relators and ordering that a peremptory writ of mandamus issue in each case commanding the defendants forthwith to restore and reinstate the relators to the positions and clerkships held by them under the board of audit of the city of Brooklyn previous to the 30 th of January, 1895; to permit them to perform their duties as clerks; to assign them to duty, and to allow them to receive the salary, emoluments and compensation attached to their positions.

      Thomas F. Magner, for the appellants.

      Charles J. Patterson, for the respondents.
   BkowN, P. J.:

The relators are all veteran volunteer firemen of the city of Brooklyn, and prior to January 31, 1895, were clerks in the board of audit of that city and on that day were discharged.

By chapter 577, Laws of 1892, veteran volunteer firemen holding positions by appointment in any city of this State, and receiving a salary from such city, cannot be removed from their positions except for cause after a hearing had, unless they hold their positions for a definite tenn, or fill the position of private secretary, chief clerk or deputy to an official or department, or hold confidential relations to the appointing officer. The appellants claimed that the relator Brown was a chief clerk to the board of audit, and, therefore, not within the protection of the act in question. This claim is not sustained by the papers before us. The affidavit of the comptroller is, that the said relator was secretary to the board of audit. We are not referred to any provision of the charter creating such an office. The resolution of the board under which the relator was discharged and the notice delivered to him of his discharge designated him as an “ account clerk.” And there are no facts set forth in relation to his duties showing him to have been other than a clerk. If he acted as secretary of the board of audit that fact did not make him a chief clerk or deputy in the department.

In Davis’ case there was an affidavit by the comptroller that he bad been informed that tbe relator was not a veteran fireman. No issue of fact was raised by tbis affidavit. The relator’s certificate of discharge ivas set forth in the moving affidavits, and there was no denial of its validity. In all other respects the several cases are alike and may be considered together.

. We are of the opinion that the relators bore no confidential relations to the board of audit or to any member thereof. Their services were wholly of a public character, and they bore no personal relations to any member of the board. In order to fall within the exception of the statute the relations between the clerk and the appointing officer must be of a personal nature. The performance of official duties does not establish a confidential relation to the' head of the department. In these cases the duties performed by the relators are enumerated in the petitions and not denied in the answering affidavits, and the question whether they were, in character, official or confidential was one for the court to determine.

We are also of the opinion that the relators were clerks and not incumbents in a public office, and that mandamus was the proper proceeding to restore them to their positions. The rule that courts will not, at the instance of a person out of possession of an office, try the title thereto by mandamus, but will leave the party to his remedy by writ of quo warranto lias reference to public officers created by law, and is not applicable to clerks or employees unlawfully removed from their positions by superior authority.

The case of People ex rel. Wren v. Goetting (133 N. Y. 569), cited by the appellants, involved the title to the office of clerk of a Police Court, an office which was created and existed by force of a statute of this State, and such are all the cases to which my attention has been directed, and in which the rule was applied. But it is very plain that quo warranto would not lie to try the right to a clerkship in the public service. Such positions do not exist solely by force of law, but by the will and discretion of the appointing officer.

Title 3, section 2, of the charter of the city of Brooklyn (Chap. 583 of the Laws of 1888) confers upon the heads of the departments power to appoint and remove clerks and their assistants and other subordinates and to fix their salaries. While the incumbents of such positions perform duties of a public character, they do not hold a public office as that term is used in the case referred to.

It follows from those views that the relators'’ oases fell within the provisions of chapter 577, Laws of 1892, and as they were not appointed for a definite time, their discharge without a hearing and for no assigned cause was illegal.

They have a clear legal right to be restored to their positions.

Mandamus is the only remedy adequate to repair the wrong dono them, and the orders must be affirmed, with costs.

DykmaN, J., concurred; Peatt, J., not sitting.

Orders affirmed, with costs.


author: BeowN, P. J.:

text:
    In the Matter of the Application of the City of Brooklyn, Appellant, for Authority to Acquire the Property and Franchises of The Long Island Water Supply Company, Respondent.

      Metra allowance — unauthorized in a proceeding under chapter 481 of 1892 —• eminent domain.

    In a proceeding instituted under chapter 481 oí the Laws of 1892, authorizing the city of Brooklyn to condemn and acquire the franchises and property of the Long Island “Water Supply Company, the court has no power to grant an extra allowance.
    Such a proceeding is not taken under the General Condemnation Law, and section 8372 of the Code of Civil Procedure has no application to it.
    Pratt, J., dissenting.
    Appeal by the city of Brooklyn from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 2d day of January, 1895, granting the motion of the Long Island Water Supply Company for an extra allowance in a proceeding instituted under chapter 481 of the Laws of 1892, authorizing the city of Brooklyn to condemn and acquire the franchises and property of the Long Island Water Supply Company.

      Herury JTonge, for the appellant.

      Thomas E. Eem'sall, for the respondent.
   BeowN, P. J.:

I am of the opinion that the court had no power to grant the order appealed from.

Section 3240 of the Code of Civil Procedure authorizes an award of costs in special proceedings at the same rates allowed for similar services in actions. But this section does not empower the court to grant an extra allowance. (Matter of Holden, 126 N. Y. 589.)

This proceeding was not instituted under the General Condemnation Law, but pursuant to chapter 481, Laws of 1892, and, therefore, the order cannot be sustained under section 3372 of the Code. Moreover, the conditions do not exist under which alone costs and allowances can be granted to a property owner under the latter section. That section provides for an offer by the plaintiff to purchase the property which it proposes to take at a specified price. If the offer is not accepted and the compensation awarded by the commission does not exceed the amount of the offer with interest from the time it was made, no costs can be allowed either party, and it is only when the compensation awarded exceeds the amount of the offer with interest as aforesaid, that the court may grant costs and an allowance to the defendant to be paid by the plaintiff.

No offer was made by the city in this case, and none was necessary under the act which authorizes this proceeding.

The order must be reversed, and the motion denied.

Dyicmak, J., concurred; Pratt, J., dissenting.

Order reversed with ten dollars costs, and motion denied.


text:
    Mary Wiley, an Infant, by John Wiley, her Guardian ad Litem, Respondent, v. The Long Island Railroad Company, Appellant.

      Extra allowance — an application therefor must be made to the cowt before which the trial was had — rule 44, General Buies of Practice — its violation, if not objected, to, disregarded on appeal.

    A motion for an extra allowance of costs should be made to the court before which the trial is had and to the justice who presided at the trial of the cause, pursuant to rule 44 of the General Rules of Practice.
    The objection that such an application has not been made to such justice is not one that goes to the jurisdiction of the court. It is a rule of practice solely and can be waived by the adverse party, and .when such objection is not taken at the time of the argument of the motion it will be deemed to have been waived.
    When a party desires to object to the power of the court to hear a motion or to the regularity of the proceedings of the moving party, he must seasonably take his objection and, if it is overruled, must see that the ruling of the court appears in the record, otherwise all such objections will, upon appeal, be deemed to have been waived.
    Appeal by the defendant, The Long Island Kailroad Company, from so much. o± an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 25th day of April, 1895, as grants the plaintiff an extra allowance of fire per cent on the recovery in' the above-entitled action, in addition to costs, with ten dollars costs of motion.

      W. O. Beecher, for the appellant.

      M. L. Towns, for the respondent.
   BkowN, P. J.:

This action was first brought to trial at the Circuit and the complaint was dismissed. Upon appeal to the General Term the judgment was reversed and a new trial granted. The defendant then gave the usual stipulation for judgment absolute against it in case of an affirmance, and appealed to the Court of Appeals, where the judgment of the General Term was affirmed, with costs. The case then went hack to the Circuit to have the damages assessed and there was a verdict in plaintiff’s favor. It does not appear from the record before us that any motion for an allowance was made at tiie Circuit.

Thereafter the plaintiff served a notice upon the defendant that, upon all the evidence and proceedings in the action and upon, the affidavit of plaintiff’s attorney, she would move at Special Term to set aside the verdict as inadequate, and in case the verdict was not set aside, for an extra allowance in addition to costs.

After hearing the parties -the court refused to set aside the verdict, but granted to the plaintiff an allowance of five per cent upon the amount of the verdict.

The defendant has appealed from so much of the order as grants the allowance, upon the ground that the motion for an allowance should have been made to the judge who presided at the trial when the verdict was rendered.

We agree with the appellant’s counsel that motions of this character should be made to the court before which the trial is had. Such is the plain provision of the General Rules of Practice (Rule 41), and that rule has been uniformly construed to require application for extra allowance to be made to the justice who presided at the trial of the cause. (Hun v. Salter, 24 Hun, 640.)

The' objection, however, is not one that goes to the jurisdiction of the court, but is a rule of practice solely, and could be waived by the defendant.

We do not find in the appeal papers that the objection now made by the appellant was taken at the Special Term, and, not having been taken at the argument, the appellant must be deemed to have waived it.

When a party desires to object to the power of the court to hear a motion, or to the regularity of the proceedings of the moving party, he must seasonably take his objection, and, if it is overruled, see that the ruling of the court appears in the record. Otherwise all such objections will, upon appeal, be deemed to have been waived. (Cowenhoven v. Ball, 118 N. Y. 231.)

The order must be affirmed, with costs.

DyxMAN, J., concurred; PRatt, J., not sitting.

Order affirmed, with ten dollars costs and disbursements.


author: IxROWN, P. J. :

text:
    Catharine Schoonmaker, Respondent, v. Leonard Blass, Appellant, Impleaded with Sarah C. Schoonmaker.

      Amendment of a complaint upon the trial — extent of such an amendment authorized in a mortgage foreclosure suit.

    The court has power, under section 723 of the Code of Civil Procedure, to direct an amendment of the complaint upon t-he trial of the action.
    The complaint in an action brought to foreclose a mortgage on real estate stated a good cause of action, hut the relation of one of the defendants to the cause of action did not appear, his name appearing as a defendant in the title of the action in the summons and complaint, hut not appearing in the body thereof.
    The action coming on for trial the court ordered the cause stricken off the calendar, and that the complaint he amended hy “alleging a cause of action against the said defendant.”

      Held, that it was clearly competent for tlie court at the trial to correct the mistake by permitting the insertion of an allegation material to the case, but that the order granted was too broad in its terms, as it permitted the plaintiff to allege any cause of action against such defendant, and that such order would he so modified on appeal as to permit the insertion of an allegation in the complaint 'showing that such defendant had some interest in the mortgaged premises which arose subsequent to the mortgage, or some other material connection with the cause of action therein alleged.
    Appeal by tlie defendant,- Leonard Blass, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of tlie clerk of the county of Kings on the 16th day of January, 1895, amending the complaint in the above-entitled action, and also from an order made at the Kings County Special Term and entered in said clerk’s office on the 15th day of February, 1895, denying the said defendant’s motion to vacate and set aside said order amending the complaint.

      Isaac If. Miller, for the appellant.

      John Andrews, for the respondent.
   IxROWN, P. J. :

This action was' brought to foreclose a mortgage on real estate.

The appellant was made a party defendant, his name appearing as such in the title of the action in the summons and complaint, lie was not, however, named in the body of the complaint, and there was nothing therein to show what connection he had with the mortgaged property or the cause of action alleged in the pleading. He served an answer containing a general denial of the allegations of the complaint.

The order appealed from recites that, upon the action coming on for trial, the court ordered it marked off the calendar, and that the complaint be amended by “alleging a cause of action against the said defendant.”

The court had power, under section 723 of the Code of Civil Procedure, to direct an amendment of the complaint upon the trial.

A good cause of action was staled in the complaint, but the relation of the appellant to that cause of action did not appear, and it was clearly competent for the court at the tidal to correct that mistake by permitting an insertion of an allegation material to the case.

The order granted is, however, too broad in terms, as it permits the plaintiff to allege any cause of action against the appellant. „ It should be modified by permitting the insertion of an allegation in the complaint showing that the appellant has some interest in the mortgaged premises subsequent to the mortgage, or some other material connection with the cause of action therein alleged, and, as so modified, is affirmed, with costs.

DvkMAN and Pratt, JJ., concurred.

Order modified, so as to permit the insertion of an allegation in the complaint showing that the appellant acquired an interest in the mortgaged premises subsequent to the mortgage, or some material connection with the cause of action therein alleged, and, so modified, affirmed, with costs and disbursements.


text:
    George Miller, Respondent, v. John King and John G. McCulloch, as Receivers of The New York, Lake Erie and Western Railroad Company, Appellants.

      Gammon carriers — passenger removed from, a train — damages where the removal was not unlawful. *

    Upon the trial of an action brought against a railroad company by a party alleging- that he was wrongfully ejected from a train, the court ruled that the act of the company was not unlawful. No special damages were alleged or'proved.

      Held, that the action was to be treated as one for a breach of contract: that the plaintiff was entitled to recover only the reasonable expense of procuring a conveyance from the place where he was ejected to his destination, and that a verdict for §100 damages was excessive.
    Motion for the reargument of an appeal by the defendants, John King and another, as receivers of the New York, Lake Erie and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 20th day of September, 1894, upon the verdict of a jury for $100 rendered after a trial at the Orange Circuit, and also from an order made on the 18th day of June, 1894, and entered in said clerk’s office, denying their motion for a new trial made upon the minutes.

      Lewis E. Gawr and W. A. Parshall, for the appellants.

      John W. Lyon, for the respondent.
   BkowN, P. J.:

The motion for a reargument in this case must be granted. The case was tried at the Circuit solely upon the theory of a breach of contract. The court ruled that the ejectment of the plaintiff from the train was not unlawful. On appeal, this court apparently overlooked that ruling and sustained the judgment on the ground that “ the conductor had no right to eject the plaintiff, and his action in doing so, was unlawful.”

The plaintiff should not be permitted to sustain his judgment on a different theory than that upon which it was recovered at the trial.

Treating the action as one for breach of contract, the damages were excessive. No special damages were alleged or proven. The plaintiff was entitled to actual damages only, and that limited his right to recover to the reasonable expense of procuring a conveyance from the place where lie was ejected to his destination. (Hobbs v. London & South Western Ry. Co., L. R. [10 Q. B.] 111; Francis v. St. Louis Transfer Co., 5 Mo. App. 7; Indianapolis, Bloomington & Western Ry. Co. v. Birney, 71 Ill. 391; Fink v. Albany & Susquehanna R. R. Co., 1 Lans. 147-158.)

As the plaintiff was only a short distance from his destination when ejected from the train and chose to walk there instead of hiring a conveyance, and suffered no injury or loss from so doing, it is very doubtful whether he is entitled to more than nominal damages.

The motion must" be granted, with costs to abide the event.

DyKMAN, J., concurred.

Motion for reargument granted, with costs to abide the event.