text:
    George R. Cornwall, Respondent, v. Joseph Sachs, Appellant, Impleaded with Henry Fenno.

      Injunction pendente lite— balance of inconvenience — sale of an improvement in a patent, produced under contract with the plaintiff, restrained.

    Where, upon balancing considerations of relative convenience and inconvenience, on an application for an injunction pendente lite, it is apparent that the act complained of is likely to result in irreparable injury to the plaintiff, and the balance of inconvenience preponderates in his favor, the injunction will be granted.

      On an application, for -an injunction pendente lite to restrain t? , defendant from selling an invention which the plaintiff claimed was an improvement in a patented individual fire alarm system, produced hy the defendant under a contract hy which all such improvements were to belong to the plaintiff, but which the defendant claimed was an independent invention, the plaintiff made out a jprima facie case, and it appeared that the injury which the plaintiff would sustain by a sale of the invention was much greater than the defendant could sustain by a temporary restraint upon his right of disposition.

      Held, that a case was presented where it was proper to preserve the status quo until a hearing could be had upon the merits, but that the injunction should apply only to the particular invention claimed by the plaintiff as an improvement, and to the papers and drawings relating thereto.
    Appeal by the defendant, Joseph Sachs, from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the city and county of New York on the 1st day of March, 1893, granting an injunction pendente lite.

    The action was brought to enjoin the defendant Sachs from selling ' or assigning certain inventions and patent rights, and from, removing certain models, drawings and other property, to which the plaintiff claimed to be entitled under a contract made by the defendant Fenno, acting for the plaintiff and as his agent, with the defendant Sachs, and to have the contract, and all the benefits and advantages secured to Fenno by its terms adjudged to belong to the plaintiff.

      Franeis Forbes, for the appellant.

      Lawrence GodTam, for the respondent.
   Barrett, J.:

The question here is whether Sachs’ latest invention is an improve ment upon his original invention, for which a patent was granted on the 30th of August, 1892, or whether it radically differs therefrom and from the patented mechanism. Under the contract between Fenno and Sachs, the latter was to perfect an individual call fire alarm system to be used in operating present systems of fire alarm street boxes from a distance, and Fenno was to be the owner of the patent to be issued therefor. Sachs was also to assign to Fenno such improvements upon the original application as might be made during the continuance of Sachs’ monthly stipend. After the system, for which a patent was granted in August, 1892, had been to some extent perfected, Sachs invented the debated system, and in February, 1893, he applied for a patent therefor.

The plaintiff alleges that this latter application and the system upon which it was based involved an improvement upon Sachs* original invention, and, although this allegation is made upon information and belief, Fenno supports it by an affidavit in which he states, positively, that the latest application was certainly intended to be an improvement upon the system described in the contract, and that it follows the specifications of the contract, except in certain particulars, as to which there was a special agreement. Fenno also, states that the alleged improvement was so invented while Sachs was still in his employ and in receipt of salary under the contract.

The plaintiff thus makes out a prima faoie case in support of his-claim, and although his averments are denied, we agree with the Special Term that it was proper to preserve the status quo until a hearing upon the merits. The injury which the plaintiff would sustain by a sale of the invention is much greater than the defendant can possibly sustain by a temporary restraint upon his right of disposition.

The case is thus brought within the rule that where, upon balancing considerations of relative convenience and inconvenience, it is-apparent that the act complained of is likely to result in irreparable injury to complainant, and the balance of inconvenience preponderates, in his favor, the injunction will be granted. (High on Injunctions, §§ 5, 13.)

We think, however, that the order appealed from is altogether too broad, and that it should be modified by limiting the injunction to the particular invention which the plaintiff claims as an improvement upon the original invention.

It was improper to embrace in the injunction order the original invention for which the patent of August, 1892, was issued. No allegation with regard to this invention is made in the complaint, and Sachs has never denied the plaintiff’s right thereto or to the patent therefor.

The sweeping provision restraining the sale of cmy other invention, improvement or patent relating in awy way to afire ala/rm system, or boxes or apparatus for use in connection therewith, was wholly unauthorized. So, also, was the mandate that Sachs deposit with Messrs. Briesen & Knauth certain specifications, drawings and models, and that he prosecute his application for a patent with all practical diligence.

As to the materials, modéls, drawings and papers in the Germania Bank building, or in the shop of Wischering & Son, the injunction was proper so far as it restrains their disposition pendente lite. But the injunction on this head should be limited to such materials, models, drawings, papers, etc., as relate to the invention and application in dispute — namely, the application of February, 1893 — and it should also be limited to the sale of these articles. There is no reason why they should be taken out of Sachs’ possession —• any more than the disputed invention ■ — ■ in advance of judgment. Indeed, an injunction can properly run against their disposition only because they are ancillary to the invention, and may be embraced in the decree — if the plaintiff is successful upon the trial — as an incident to the main relief. But for this peculiarity the plaintiff would be left to his legal remedy as to these articles.

This modification of the injunction practically disposes of the second branch of the appeal — namely, the order made upon the application to punish for contempt. No decision, however, was made with regard to the alleged contempt, and the order on that head is simply a statement that no punishment will be imposed, but that in & certain contingency the plaintiff may apply again.

The order appealed from shoulcl, therefore, be modified so as to ■enjoin Sachs from disposing of the invention described in the specifications for an auxiliary fire alarm system sent by him to the United States patent office on or about February 14, 1893, and also from ■disposing of any of the materials, models, drawings, papers or other property relating to said invention. In all other respects the order ■appealed from should be reversed, without costs of this appeal to •either party.

Van Brunt,. P. J., and Follett, J., concurred.

Order modified as directed in opinion, and as modified affirmed, without costs of this appeal to either party.


source: Caselaw Access Project

author: Barrett, J".:

license: Public Domain

text:
    The People of the State of New York ex rel. The New York Hotel and Restaurant Company (Limited) and Others, Appellants, v. Edward P. Barker and Others, as Commissioners of Taxes and Assessments of the City and County of New York, Respondents.

      New York City Consolidation Act, section 822 — correction of personal taxes — not applicable to domestic corporations.

    The provision of section 822 of the New York City Consolidation Act, as amended by chapter 276 of the Laws of 1883, which empowers the commissioners of taxes and assessments to correct a tax on personal property when the applicant or party aggrieved shall satisfy the commissioners that he “ has been prevented by absence from the city or by illness ” from making his complaint or application to them within the time aTowed for the correction of taxes, is not applicable to a domestic corporation.
    Appeal by the relators, tne New York Hotel and Restaurant Company (Limited) and others, from an order of the Supreme Court, made at the New York Special Term at Chambers, on the 28th day of March, 1893, denying the relators’ motion for a peremptory writ of mandamus commanding the respondents to hear and consider upon the merits the application of the relators, for the correction and reduction of the assessed valuation of their personal property.

      Charles E. Coddmgton and Alfred B. CruiTcshcmTc, for the appellants.

      James M. Ward, for the respondents.
   Barrett, J".:

The personal property of the relator company was assessed for the purpose of taxation for the year 1892. It failed to apply for the correction of the tax within the time allowed by law. It subsequently applied to the respondents for remission under section 822 of the Consolidation Act, as amended by chapter 276 of the Laws of 1883 (§ 5). The power there given to the tax commissioners is limited by the provision that “No tax on personal property shall be remitted, canceled or reduced unless the applicant or party aggrieved shall satisfy the commissioners that he has been prevented by absence from the city or by illness from making his complaint or application to them within the time allowed by law for the correction of taxes.”

The commissioners refused to consider the application upon the ground that a domestic corporation is not within this provision.

We think the commissioners were right. A domestic corporation cannot, liko an individual, be prevented by absence or illness from making its complaint within the time allowed by law. As a creature of the law, it is present where it is incorporated and exercises its corporate functions, and it certainly cannot be ill.'- Its officers or agents may be ill, or absent, but they are not the corporation. Nor is the illness or absence of an agent contemplated by the act. A corporation is not within the mishap for which relief is afforded to an individual. Being present in a legal sense in the locality of its incorporation, there was no reason for extending the provisions of the act to such a legal entity.

If the relator is right, how could the commissioners deal with the preliminary question? What is the corporation for the purposes of the act ? Not, surely, the stockholders, who can perform no executive functions for the company. And if the directors and officers are to be deemed the corporation, must the relator show the absence or illness of every such agent ? It is plain that, had the Legislature intended to include domestic corporations, it would have specified the particular officer or agent whose absence or illness would have sufficed to give the commissioners jurisdiction.

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

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

Order affirmed, with costs.


author: Barrett, J.:

text:
    Theodore Moss, Appellant, v. Eugene Tompkins, Respondent.

      Breach of a theatrical “ sharing terms ” agreement • — • damages.

    On the trial of an action brought by the lessee of a theater in New York city against a theatrical manager to recover damages for the breach of a contract known as a “sharing terms agreement,” whereby the plaintiff was to furnish his theater and equipment for a given period, and the defendant was to furnish a certain new play and a dramatic company, the parties to share the gross receipts, the breach was conceded, it appearing that the defendant had, some months before the first performance was to be given, notified the plaintiff that he would not produce the play at In,-} theater, and that he had persisted in such refusal.
    The plaintiff thereupon offered to show, by the previous receipts of his theater and by proof of the success of the play elsewhere than in New York, that the receipts during the term of the contract would have been greater than the amount actually received by him from other sources during the same period, which offer was objected to and the objection sustained.

      Held, that the ruling was correct.
    That as it was entirely uncertain whether the receipts from the defendant’s play would have exceeded the amount which the plaintiff actually received during the contract term, it was by n means certain that any damages, such as the plaintiff claimed, resulted from the breach, and, hx-i.ee, the doctrine was not applicable, tl...t where partluid-r damages arc the certain result of the breach, their uncertainty in amount will not prevent a recovery.
    Appeal by tbe plaintiff, Theodore Moss, from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of the city and county of New York on tbe £d day cf March, 1893, upon a verdict rendered at tbe New York Circuit allowing the plaintiff six cents damages and awarding costs to tbe defendant, and from an order denying tbe plaintiff’s motion for a new trial made upon the minutes, entered in said clerk’s office on the 1st day of March, 1893.

      Stephen H. Olin, for the appellant.

      A. J. Dittenhcefer and Dmid Gerber, for tbe respondent.
   Barrett, J.:

The action was for breach of contract. The plaintiff is the lessee of the Star Theater in this city. Tbe defendant is a Boston theatrical manager. Tbe parties entered into what is known as a “ sharing terms agreement,” whereby the plaintiff was to furnish his theater, orchestra, attendants and equipment for a given period, and the defendant was to furnish a new play called “ The Soudan,” together with a dramatic company. The gross receipts were to be divided between the parties, each week, in certain specified proportions. Some months before the date when the first performance was to be given, the defendant notified the plaintiff that he would not produce the play at the Star Theater, and he has since persisted ■ in that refusal. Upon the trial, the breach being conceded, the ' plaintiff offered to show by the previous receipts of his theater, and by proof of the success of the play elsewhere than in New York, that the receipts during the term of the contract would have been greater than the amount actually received by him from other sources during the same period. The latter amount was specified in the bill of particulars as $13,600. This offer was objected to and the objection was sustained. The plaintiff excepted to the ruling, and the exception presents the sole question upon this appeal.

We think the ruling was correct. The plaintiff could, of course, have proved the amount which he actually received for his theater during the term of the contract, but it would have been impossible for him to prove what the receipts from the defendant’s play would have been during the same period. His offer specified two elements— namely, the previous receipts of the Star Theater from other attractions, and, second, the success of the defendant’s attraction elsewhere than in New York. The first element could have had no possible bearing upon the question of damages. The theater did not draw people because of its attractiveness as a building. Each entertainment there stood upon its own merits. The second element was equally uncertain. Profits, that is, the certainty of receipts beyond what the plaintiff actually took in during the contract term, could not be predicated of the success of the play in other cities before it had acquired a general or established reputation. The play was new and it was entirely untried in this city. No one could possibly know, therefore, how it would succeed here. The defendant’s dramatic company was not shown to include artists of such exceptional and well-known talent as to guarantee, apart from the play, audiences of reasonably certain numbers. Nor was any special attraction of the latter kind contemplated by the contract. The proposed elements were, therefore, speculative and insusceptible of anything like certain proof. The language of Bradley, J., in Bernstein v. Meech (130 N. Y. 359), is directly in point, and, we think, controlling. The latter case does not conflict with Wakeman v. The Wheeler & Wilson Manufacturing Co. (101 N. Y. 205). The doctrine there held was, that where particular damages are the certain result of the breach, their uncertainty in amount will not prevent a recovery. But here it is by no means certain that any damages (such as the plaintiff claims) resulted from the breach. It is, in fact, entirely uncertain whether the receipts from the defendant’s play would have exceeded the amount which the plaintiff actually received during the contract term. The reasonable certainty that there would have been some receipts from the play, therefore, involved no certainty that damages on that line were caused by the breach.

The plaintiff did not offer to show, as did the plaintiff in Bernstein v. Meech, any expenses which he had incurred in preparing for the contemplated performances. This was doubtless because there -were here no such expenses, as the plaintiff was notified months in’ advance of the first performance, that the defendant would not produce the play in the Star Theater.

The generality of the plaintiff’s offer at the close of the trial was clearly in the line of the two elements which he had previously specified. The whole line of testimony ” which the court excluded was the whole line in these two directions. If the plaintiff intended to offer anything else, he should have specified it.

We think that the offer as made was properly ruled upon, and that the judgment should be affirmed, with costs.

Van Brunt, P. J., and Follett, J., concurred.

Judgment affirmed, with costs.


text:
    Charles Meyers, as Administrator, etc., of Charles Meyers, Deceased, Respondent, v. The Mayor, Aldermen and Commonalty of the City and County of New York, Appellant.

      “ Inspectin'of regulating and grading streets” in New York city — not a public officer — discharge of, from employment — application of chapter 110 of the Laws of 1888, in reference to veteran soldiers and sailors.

    There is no such, publicofflce as that of “inspector of regulating and gradinv streets ” in the city of New York, and a person who holds such a position, £ daily wages, is merely an employee of the city, and is liable to removal as such.
    When the services of such an employee are dispensed with by the officer who employed him, and who has the power to continue or to cease to employ him, his right to pay ceases, and it is immaterial that the notification that his services are dispensed with states that he is “ suspended.”

      Senible, that such an employee does not hold a “ position by appointment,” and that his daily wages are not a “ salary,” and, hence, that he does not come within the terms of chapter 119 of the Laws of 1838, which prohibit the removal of honorably discharged soldiers and sailors “holding a position by appointment in any city or county of this State, receiving a salary,” except for cause shown after a hearing had.
    That even if such an employee was within the terms of said act of 1888, he was not entitled to recover pay from the city while unemployed by it, although he might have been wrongfully removed or suspended by the commissioner of public works.
    • Appeal by the defendant, the Mayor, Aldermen and Commonalty of the city of New York, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 13th day of February, 1893, upon a verdict in favor of the plaintiff, rendered by direction of the court at the New York Circuit.
    The plaintiff’s intestate served in the United States navy from 1851 to March 15, 1864, when he was honorably discharged. In October, 1886, he was employed by the department of public works as an inspector of regulating and grading the streets of ■ the city, at the rate of three dollars per day, and continued to act in that capacity until April 6, 1889, when he was suspended by the commis sioner of public works by a communication of which the following is a copy : “ You are hereby suspended from the position of inspec. tor of grading, etc., in this department, without pay from this date.” He received his pay to April 6, 1889, and afterwards from time to time reported to the department that he was ready and willing to discharge the duties of the place until July 11, 1889, when he sent to the department a formal resignation of the position. Between April 6 and July 11, 1889, another person discharged the duties which the intestate had previously discharged, and on the same work, and it appears that during this time the decedent was not employed by the department; that he sought other work and was unable to find employment. Between these dates there were seventy-eight working days, the wages for which amounted to $234, to recover which, with interest, this action was brought, and for which sum a verdict was directed, and on which a judgment was entered.
    This action has been twice tried. On the the first trial, in March, 1891, the complaint was dismissed and a judgment entered, which was reversed by this court in May, 1892. (46 N. Y. St. Repr. 130.) In June following Meyers died, and afterwards letters of administration were duly issued on his estate to the present plaintiff, in whose name this action was duly revived and continued. On the second trial the evidence taken on the first was read, no other or additional evidence being received or offered.

      William A. Snoeetser, for the appellant.

      William W. Jenks, for the respondent.
   Follett, J.:

A public officer cannot, without his assent and in the absence of statutory authority, be deprived of the salary attached to his office by being suspended or prevented by his official superiors from temporarily discharging the duties of his office. So long as he remains a public officer his right to the salary attached to the office exists. Nothing short of removal from or abandonment of his office bars this right. (Gregory v. The Mayor, 113 N. Y. 416.)

The view we take of this case renders it unnecessary to determine whether the power to remove an officer includes the power of suspending him. Eor a discussion of this question see Gregory v. The Mayor (supra), and Emmitt v. The Mayor (128 N. Y. 117), anddhe cases cited in Throop on Public Officers, sections 401 to 406, inclusive.

The right of the plaintiff to recover depends upon whether his intestate was a public officer of the city or a meres employee of the department of public works. In this State public offices can be created only by the law-making power — the Legislature, or by some public body or board to which' the power to make local laws or regulations has been delegated, pursuant to the Constitution. No such office as inspector of regulating and grading the streets in the city of New York has been created by the statutes of this State, nor by any law or ordinance of any public board or body authorized to legislate for the city in respect to its local affairs. Such an office is not mentioned in the Consolidation Act (Chap. 410, Laws of 1882), nor do we find any authority therein for the creation of such an office by any board or body existing by virtue of that act. Moreover, the evidence does not show that any body, board or officer has attempted to establish such an office.

Section 54 of the Consolidation Act provides: “ Every person elected or appointed to any office under the city government shall, within five days after notice of such election or appointment, take and subscribe, before the mayor or any judge of a court of record, an oath or affirmation faithfully to perform the duties of his office; which oath or affirmation shall be filed in the office of the mayor.”

The burden of showing that the decedent held a public office was on the plaintiff, and there is no evidence that the intestate took an official oa¡th. A person designated and employed as foreman of a street-cleaning gang could claim with as much propriety as the decedent to be a public officer. We have not failed to note the cases in which excise inspectors (Gregory v. The Mayor, 113 N. Y. 416), inspectors of masonry (Emmitt v. The Mayor, 128 id. 117), court attendants (Rowland v. The Mayor, 83 id. 372), and various other persons occupying positions in the courts, or in the departments of the State or city governments, have been held to be public officers; but in all those cases the position occupied was created and existed by force of some statute, or local ordinance having the force of a statute.

The plaintiff’s intestate was not a public officer, but a mere employee of the department of public works, serving for daily wages at the rate of three dollars for each day’s service. When the officer who employed him, and had the power to continue or to cease to employ him, refused to permit him longer to render service, his right to wages was terminated. It makes no difference in what language cue refusal is expressed. When his services were disjjensed with, his right to pay ceased. We are unable to see any good reason why a person whose services are no longer desired is “ suspended,” instead of being discharged, and why the custom prevails, unless it is “ keep the word of promise to our ear and break it to our hope,” is difficult to understand. This practice has caused a multitude of actions against the city.

Chapter 119, Laws of 1888, provides: “No person holding a position by appointment in any city or county of this state, receiving a salary from such city or county (unless he has been appointed for a definite term), who is an honorably-discharged soldier, sailor or marine, having served as such in the Union army or navy during the War of the Rebellion, shall be removed from such position except for cause shown after a hearing had.”

The intestate held no “position by appointment,” and he was compensated for his labor by daily wages, but not by “ receiving a. salary,” and he is not within the statute. Salary differs from wages and denotes a higher degree of employment. The term “ wages ” indicates inconsiderable pay, without excluding salary, which is suggestive of a larger compensation for more important service. The. contention that a person employed by the city by the day, who has served in the army, cannot be discharged, or his services dispensed with except for cause shown after a hearing had,” derives no support from the language or intent of the statute quoted. But admitting that the terms of the employment of the intestate brought him within the act, he was not entitled to pay from the city while unemployed, though wrongfully removed or suspended by the commissioner of public works. (Higgins v. The Mayor, 131 N. Y. 128.)

When this case was before this court on a former appeal, the question whether the then plaintiff was a public officer or a mere employee of the city, was not presented to nor considered by the court. However, that decision in so far as it conflicts with this judgment, is overruled.

The judgment should be reversed, and as under no circumstances can the plaintiff recover, the complaint should be dismissed, with costs.

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

Judgment reversed, and complaint dismissed, with costs.


author: Follett, J.:

text:
    Francis A. H. Bergmann and Another, Respondents, v. Hamilton H. Salmon, Individually, and Hamilton H. Salmon, as Executor, and Emily M. Salmon, as Executrix, of the Last Will and Testament of Hamilton H. Salmon, Deceased, Appellants, Impleaded, etc.

      Injunction —undertaking—effect of bringing in new defendants.

    When a preliminary injunction has issued in an action brought against a person, individually, the court cannot, on subsequently bringing in the same person and another as executors as additional parties defendant, and continuing the injunction as against them, permit the undertaking for an injunction, previously given in the action as originally entitled, to stand and declare it good and sufficient as to all the defendants, but must require a new undertaking.

      Appeal by tbe defendants, Hamilton H. Salmon, individually, and Hamilton H. Salmon, as executor, and Emily M. Salmon, as executrix, of tlie estate of Hamilton H. Salmon, deceased, from an order of tbe Supreme Court, made at the New York Special Term at Chambers, and entered in'the office of the clerk of tbe city and county of New York on the 7th day of February, 1893, bringing into the action as parties defendant, the executor and executrix of Hamilton H. Salmon, deceased, amending the summons and complaint, and granting leave to serve a supplemental summons and complaint, and permitting a former undertaking given upon the granting of an injunction to stand, and declaring the same good and sufficient as to all the defendants, and continuing the injunction as against Hamilton H. Salmon, individually, and the executor and executrix.

      Edward W. /S. Johnston, for the appellants.

      Lloyd McK. Garrison, for the respondents.
   Follett, J.:

In August, 1882, the plantiffs were owners of a tontine policy of insurance, No. 167,187, issued by the New York Life Insurance Company. On that day they borrowed of Hamilton H. Salmon $1,000, for which they gave their note payable six months after date, and assigned to liim as security said policy No. 167,187, and also another policy issued by the TEtna Insurance Company for $1,000, payable in the event of the death of the plaintiffs to Salmon. Tt is alleged that Salmon loaned but $753, and that the difference between that sum and the amount of the note'was a usurious consideration "for the loan. This note was four times renewed upon the payment of alleged usurious considerations.

There were two Hamilton H. Salmons, father and son. The father died before the commencement of this action, which was begun against the son for the puipose of restraining the defendant from selling, assigning or surrendering the policies, and for a judgment that the plaintiffs’ assignment of them be set aside as void for usury. With the summons and complaint an injunction restraining the defendant from transferring or collecting tlie policies was served. Tlie defendant interposed an answer by which he denied each and every allegation contained in the complaint. Subsequently" the plaintiffs ascertained that the transaction was with the father, who was dead, and not with the son, who had been sued, and that letters of administration had been granted upon his estate to Hamilton H. Salmon and Emily M. Salmon. They then moved for an order permitting them to amend the summons and complaint by bringing in the representatives of Hamilton H. Salmon, deceased, and that the injunction issued in the action be continued as against them, which was granted. The order provided “that plaintiffs’ undertaking as provided herein be. and the same hereby is declared good and sufficient as to all these defendants.”

In this we think the Special Term exceeded its power. This undertaking was given in an action brought against Hamilton H. Salmon, individually, and not against the representatives of his father’s estate. The undertaking upon which the injunction was granted was emitted as the action was entitled before the amendment was granted, by which the sureties undertook to indemnify the defendants so enjoined from damages which they might sustain by reason of the injunction. They did not undertake nor agree to indemnify the additional defendants who were brought 'in by the amendment from any damages which they might sustain by reason of the granting of the order, and no action of this court could make them liable beyond the terms of their contract. ¥e think that the order permitting the summons and complaint to be amended by bringing in the additional parties was right, so also was that part of it restraining them from selling or disposing of the policies of insurance. But that part which provided that the undertaking should stand as security for the new defendants brought in cannot be sustained.

That pai-t of the order which provides “that plaintiffs’ under taking as provided herein, be, and the same hereby is, declared good and sufficient as to all these defendants ” is reversed; but it is in all other respects affirmed, provided that the plaintiffs, within ten days after service of a copy of the order to be entered on this decision, file a new undertaking in this action in the form prescribed by the Code, to be approved by the Supreme Court, or a judge thereof, with no costs to either party on this appeal.

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

Order modified as directed in opinion, and as modified affirmed, without costs to either party on this appeal.


text:
    Louis Greenblatt, Appellant, v. David Hermann, Respondent.

      Specific performance — proceedings for the sale of a decedents realty to pay debts — parties— the burden of proof as to any defeat of title, is on the vendee.

    The vendee of real estate refused to take title and sued the vendor for specific performance of his contract to give ft good title, or else for the recovery of what, had been paid on the purchase money and for damages, on the ground that a. proceeding in a surrogate’s court for the sale of the property to pay the debts, of a former owner who had died under such circumstances that the land descended to the collateral heirs of his father and mother in equal proportions, if both left heirs, was defective for the reason that no heirs of the mother were made parties to such proceeding.
    It appeared that the petition in the proceeding named the collateral heirs of the decedent’s father as parties, and alleged that the parties named therein were the heirs of the decedent, and no mention was made in the proceeding of any collateral heirs of the decedent’s mother, and testimony was given therein that there were no other heirs than those mentioned in the petition.

      Held, that t.he allegation in the petition and the testimony were sufficient to. give the surrogate jurisdiction;
    That the burden was upon the plaintiff to show that defects in the title existed, and that having given no evidence to show that there -were any persons not mentioned in the proceeding in the Surrogate’s Court who were the heirs of the decedent’s mother, he failed to establish any defect in the defendant’s title;
    That the plaintiff having refused, without adequate cause, to perform his contract to purchase, and not having shown that the defendant’s title was defective, was neither entitled to recover what he had paid on the contract nor to a specific-performance thereof.
    Appeal by tbe plaintiff, Louis Greenblatt, from a judgment of the-Supreme Court dismissing the complaint upon the merits, entered in the office of the clerk of the city and county of New York on the 3d day of April, 1893, upon a decision of tbe court rendered upon a trial at the New York Special Term.

      Henry S. Van Duzer, for tbe appellant.

      Samuel II. Benton, for tbe respondent.
   Follett, J.:

This action was brought by a vendee against a vendor to compel1 tbe specific performance of an executory contract, or, in case it could not be performed, to recover tbe money that he had paid on tbe contract, together with damages for its non-performance.

October 1, 1810, diaries ~W. Nicbols purchased tbe land tbe title ■to wbicb is tbe subject of tbis action, taking a full covenant deed,, ■which was duly recorded October 10, 1840. On the 27th day of January, 1879, Nichols died seized of the premises. He died intestate, leaving no widow, no ancestors and no descendants. His father and mother, Benjamin and Margaret Nichols, died before him, leaving no ancestors and no descendants, except Charles W. Nichols. Under such circumstances, the land having been acquired by purchase, it descended to the collateral heirs of his father and mother in equal proportions, if both left such heirs. On the 19th of February, 1879, letters of administration were granted to John B. Knapp, James H. Nichols and Augustus H. Allen, on the estate of Charles W. Nichols, by the surrogate of the county of Kings. The decedent’s personal estate was insufficient to pay his debts, and he left no real estate except that involved in this litigation. On the 11th of September, 1880, more than eighteen months after letters were issued, the administrators filed their petition in the Surrogate’s Court for leave to sell this real estate for the purpose of paying the intestate’s debts. It was alleged in the petition that the deceased left no lawful issue, widow, father, mother, brothers, sisters or descendants of them, him surviving. That his heirs at law are first cousins and descendants of deceased first cousins, and their names and residences and the names and residences of the respective husbands or wives of such as are married are as follows to the best (of) our knowledge, information and belief.” Then follows a list of more than fifty persons who are alleged to be the heirs at law of the decedent. All of these persons were the collateral relatives of the intestate’s father, and no mention is made of any collateral relatives of the intestate’s mother.

It is urged that the petition is fatally defective and conferred no jurisdiction upon the surrogate to entertain the proceedings, because it is not alleged that the intestate’s mother left no collateral heirs.

A citation was duly issued and served upon the persons mentioned in the petition. On the hearing before the surrogate a so-called ancestral tree or schedule of the heirs of Charles W. Nichols was exhibited and verified by oral evidence. By this tree it appears that the persons named in the petition and cited were the heirs, on the father’s side, of Charles W. Nichols. It also appears tha the mother, Margaret, was dead, and it does not disclose that she left any collateral heirs. James H. Nichols, a member of the family, testified that he knew the decedent and that “ there are no ■other heirs at law or descendants of heirs at law other than are mentioned there ” in the schedule.

Upon' this evidence and upon evidence that it was necessary to •sell the real estate' for the payment of debts, the property was ■ordered to be sold. It was sold at public auction and conveyed to the purchaser, which conveyance was confirmed by the Surrogate’s Court. The defendant in this action acquired his' title to the land ■by mesne conveyances from the purchaser at the surrogate’s sale.

April 13, 1892, the parties to this.action entered into an executory ■contract, by which the' plaintiff agreed to purchase and the defendant agreed to sell the above-mentioned premises for $19,500, to be thereafter paid, the defendant agreeing to convey to the plaintiff the title to the land in fee simple, free and clear of all incumbrances except those mentioned in the contract. The plaintiff paid $1,500-•on the contract, but at the time mentioned for its performance refused to accept of a conveyance, which he admitted was satisfactory in form, because, as he alleged, the proceedings in the ■Surrogate’s Court vested no title in the purchaser at the sale. On the trial the proceedings in the Surrogate’s Court were introduced in evidence, but the plaintiff failed to show, and did not attempt to ■show, that the decedent’s mother left collateral heirs, and there is no •evidence in the case of the existence of such heirs.

- It is insisted that the proceedings in the Surrogate’s Court are fatally defective, because it was not alleged in the petition by which the proceedings were instituted to sell the land that Margaret Nichols had no collateral heirs, and because this fact was not established by common-law proof before the Surrogate’s Court.

We are of the opinion that the allegation that the persons named in the petition were the heirs of the decedent, is in legal effect an •allegation that they were all of his heirs, and that it was not necessary to affirmatively allege that Margaret Nichols left no heirs. As before stated, a member of the family testified on the hearing before the surrogate that the decedent left no other heirs than those mentioned in the schedule, which were the same as those mentioned in the petition. This allegation and this evidence were sufficient to give the surrogate jurisdiction of the proceeding. And there being no evidence offered tending to show that there were any persons not mentioned in those proceedings who were the heirs of Margaret Nichols, the plaintiff failed to establish any defect in the title of the defendant. The burden was upon him to show that defects existed. The mere fact that it was possible that Margaret might have left collateral heirs is not sufficient to entitle him to recover in this action. The plaintiff having refused to perform his contract without adequate cause, and not having shown that the defendant’s title was defective, he is not entitled to recover the amount which he paid on the contract, nor is he entitled to a specific performance thereof.

The case containing exceptions which is printed with the judgment roll does not appear to have been settled by the judge before whom it was tried and ordered filed. Under such circumstances it forms no part of the record, and the questions which the appellant, seeks to raise are not brought before this court for review by an appeal from the judgment. However, we have considered the case, on the merits.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


author: Van Brunt, P. J.:

text:
    The People of the State of New York ex rel. The Durant Land Improvement Company, Respondent, v. John Jeroloman, as Justice of the District Court in the City of New York for the Eighth Judicial District, Appellant.

      A perfected appeal from, a judgment for rent is a stay upon pre-existing summary proceedings — section 1810 of the Code of Civil Procedure as amended January 24, 1893. . ■ •
    The amendment of January 24, 1893, to section 1310 of the Code of Civil Procedure — “ When an appeal from a judgment for rent has been perfected, and execution stayed as herein provided, the appeal stays all summary proceedings, pending or otherwise, to recover the possession of real property or dispossess tenants therefrom, based on the failure to pay the rent included in the judgment appealed from” —refers to appeals perfected before, as well as after, the date of the amendment, and makes such appeals a stay upon summary proceedings commenced before and pending at the date of the amendment.
    This legislation does not violate the provision of the Constitution of the United States which forbids a State to pass any law impairing the obligations of' contracts.

      Appeal by the defendant, John Jeroloman, as justice of the District Court in the city of New York for the eighth judicial district, from an order of the Supreme Court made at the New York Special Term at Chambers, and entered in the office of the clerk of the city and county of New York on the 13th day of March, 1893, granting a peremptory writ of mandamus.

      H. J3. TwombT/y, for the appellant.

      jEsek Oowen, for the respondent.
   Van Brunt, P. J.:

The relator in this proceeding having procured a judgment for rent against its tenant (from which judgment the tenant had appealed and given security to stay execution), instituted a summary proceeding in the District Court, over which Justice Jeroloman presided, to recover possession of the premises because of non-payment of said rent, and such proceedings were thereupon had that in October, 1890, a final order was made by the justice dismissing said summary proceedings.

Prom this final order the relator appealed, and on the 19th of January, 1893, the same was reversed and a new trial ordered.

On the 2Jth of January, 1893, and before said new trial was had, the Legislature passed the following act (Chap. J of 1893):

Section 1. Section thirteen hundred and ten of the Code of Civil Procedure is hereby amended so as to read as follows:
“ § 1310. Where an appeal to the General Term of any court, or to the Court of Appeals, or otherwise, has been heretofore or shall hereafter be perfected, as prescribed in this chapter, and the other acts, if any, required to be done, to stay the execution of the judgment or order appealed from, have been done, the appeal stays all proceedings to enforce the judgment or order appealed from, except that the court or judge from whose determination the appeal is taken, may proceed in any matter included in the action or special proceeding and not affected by the judgment or order appealed from or not embraced within the appeal; or may cause perishable property to be sold, pursuant to the judgment or order appealed from. The proceeds of such a sale must be paid to abide the result of the appeal into the Court from or in which the appeal is taken; or if it was taken as prescribed in title fifth of this chapter, into the Supreme Court. When an appeal from a judgment for rent has been perfected and execution stayed as herein provided, the appeal stays all summary proceedings, pending or otherwise, to recover the possession of real property, or dispossess tenants therefrom, based on the failure to pay the rent included in the judgment appealed from.
§ 2. All acts and parts of acts inconsistent with or repugnant to the provisions of this act, are to that extent hereby repealed.
“ § 3. This act shall take effect immediately.”

When said proceeding came up for trial the justice held that he was prevented from proceeding with the case, as the giving of security upon the judgment for rent operated as a stay. A motion was then made for a peremptory writ of mandamus, which was granted, and from the order granting the same this appeal is taken.

It is claimed by the respondent that the amendment to the Code above referred to is not in terms retrospective, and applies only to judgments entered and appeals taken after its passage, and we are referred to the rule laid down by Judge Denio in the case of Ely v. Holton (15 N. Y. 595) which was as follows :

“ The theory of amendments, made in the form adopted in the present instance, we take to be this: The portions of the sections which are repeated are to be considered as having been the law from the time they were first enacted, and the new provisions are to be understood as enacted at the time the amended act took effect. * * * In other words, we consider the amendment as only equivalent to an independent statute, declaring in general language that an appeal may hereafter be taken from an order granting a new trial on complying with the conditions mentioned.”

And it is urged that applying this rule of construction to the present case, it means that this amendment as to judgments for rent is to be read as though it was a separate section. It seems to us that it is an equally well-settled canon of construction that where it is manifest what was the intention of the Legislature, all statutes must be construed according to such intention. (People ex rel. Wood v. Lacombe, 99 N. Y. 43, and cases there cited.)

Upon an inspection of this statute it seems plain that' it was the intention to make it applicable in all its parts to pending proceedings. It expressly alters the film part of the statute, making it applicable to appeals theretofore perfected; and then in the subsequent part of the section provides that when an appeal from a judgment’ for rent has been perfected, and execution stayed as herein provided, the appeal stays all summary proceedings pending or otherwise.” The reference to the preceding part of the section shows that the appeals referred to are those mentioned in tlie amended first part of the section, viz., those which had been theretofore or should be thereafter perfected.

It is difficult to see how the Legislature could have more plainly signified its intention to make these provisions apply to pending proceedings than this particular language has done.

As a strong objection to making this legislation apply to existing proceedings, it is urged that if so construed it would violate the provision of the Constitution of the United States, forbidding a State to pass any law impairing the obligations of contracts. It is well settled that a person has no vested right in any particular remedy; and the instances of changes of practice held applicable to pending litigations are too numerous to need citation. The case of Martin v. Rector (118 N. Y. 419) recognizes the validity of such legislation, and none of the citations of the respondent in any way impair the force of that decision.

It is undoubtedly true that if the Legislature had taken away all means of obtaining possession of the premises leased, if no rent was paid, such legislation would have been unconstitutional. But it only provided that after the landlord has obtained a judgment for his rent, which has been secured upon appeal, he shall not be permitted to proceed with this particular remedy to obtain possession of the premises. The rent has been secured, if due. Why then should the landlord have a right to this summary remedy after all reason for its existence is gone ? He should be remitted to the ordinary channels of legal procedure if he seeks under such circumstances to enforce a forfeiture.

We think, .therefore, that the order appealed from was wrong, and should be reversed, with ten dollars costs and disbursements of appeal, and the motion denied, with twenty-five dollars costs.

Barrett and Eollett, JJ., concurred.

Order reversed, with ten dollars costs and disbursements of appeal and the motion denied, with twenty-five dollars costs.


author: Per Curiam :

text:
    George P. Rowell and Others, Respondents, v. Joseph E. Janvrin, Appellant.

      Stockholders liability under the Manufacturing Corporations Act — amendment of the complaint — independent causes of action.

    An amendment, which seeks to set up a liability upon the part of a stockholder, under section 14 of the Manufacturing Corporations Act (Chapter 40 of the Laws of 1848), in reference to the purchase of property and the issuing of stock therefor, presents an independent cause of action and cannot be inserted in a complaint which seeks to enforce a stockholder’s liability under sections 10 and 11 of the same act, because of the failure to file a certificate that the whole of the capital stock has been paid in.
    Appeal by the defendant, Joseph E. Janvrin,.from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 16th day of February, 1893, granting leave to the plaintiffs to serve an amended complaint.

      Dickinson W. Richards, for the appellant.

      Jonatham, G. Ross, for the respondents.
   Per Curiam :

We are of the opinion that the court erred in permitting the amendment of the complaint by the order appealed from. The cause of action sought to be set up by the amended, complaint was entirely independent of, and had no relation to, that which had been alleged in the original complaint. In the original complaint, a liability of a stockholder was sought to be enforced because of thé failure to file a certificate that the whole of the capital stock had been paid in, under sections 10 and 11 of the Manufacturers’ Act (Chap. 40 of 1848). By the amended complaint, a liability upon the part of the stockholder was attempted to be set up, arising from the provisions of section 14 of the same act in reference to the purchase of property and the issuing of stock therefor. These were distinct independent grounds of a recovery, the only common feature being that in each the defendant was sought to be charged as a stockholder.

We think the court should not have engrafted upon this action, in which the plaintiffs seemingly confess that they cannot succeed, an independent cause of action. The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements of this appeal, and the motion denied, with ten dollars costs.

Present — Yak Brunt, P. J., Follett and Barrett, JJ.

Order reversed, with ten dollars costs and disbursements of this appeal, and motion denied, with ten dollars costs.


text:
    Gerhard Wessels and Another, Respondents, v. Gustavus A. Boettcher, Appellant.

      Attachment — insufficiency of the affidavit.

    To obtain an attachment, the plaintiff must set out in tbe affidavit therefor a good cause of action, unless a complaint accompanying the summons, in which a good cause of action is set forth, is made a part of the affidavit.
    An. affidavit for an attachment,' which only alleges an indebtedness upon an account current, and which, while stating that the items of such account current consist of merchandise and money advanced, does not state how much merchandise, what its value was or how such value was arrived at, or upon what basis the plaintiff claims a recovery, fails to state facts sufficient to constitute a cause of action, and, therefore, is not sufficient to sustain an attachment.
    Appeal by the defendant, Gustavus A. Boettcher, from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the city and county of New York on the day of March, 1893, denying the defendant’s motion to vacate an attachment.
    The attachment was granted upon the following affidavit:
    “ Charles T. Wessels, being duly sworn, doth depose and say that he is one of the plaintiffs named in the above-entitled action. That the plaintiffs at the several times hereinafter mentioned were copartners; that the above-named defendant is indebted to the above-named plaintiffs in the sum of $4,438.09 over and above all counterclaims known to plaintiffs upon the cause of action for breach of express contract other than a contract to marry, and that the grounds for the plaintiffs’ claim are as follows, to wit: that plaintiffs are merchants doing business in the city of New York. That the defendant is a merchant residing in Spanishtown, Jamaica; that plaintiffs have from time to time for many years last past shipped merchandise to the defendant and advanced money to him, and there is an account current between them; that on September 15, 1892, there became and was due the plaintiffs from the defendant upon said account current the sum of $1,138.09 over and above all offsets and counterclaims known to the plaintiffs ; that no part of said sum has been paid, and the amount thereof, with interest from September 15, 1892, is wholly due and unpaid from defendant to plaintiffs, and plaintiffs have a cause of action against the defendant, therefor for breach of contract; that plaintiffs are about to commence an action to recover the same; that the summons is made out and a copy thereof is hereunto annexed.
    “ And this deponent further says that the defendant is not a resident of the State of New York, but is a non-resident thereof, and resides in Spanishtown, Jamaica, British West Indies.”

      Geo. W. McKenzie, for the appellant.

      Joseph A. Shoucty, for the respondents.
   Per Curiam :

It is necessary an affidavit to obtain an attachment that the plaintiff should set out in such affidavit a good cause of action, unless a complaint accompanying the summons is made a part thereof in which complaint a good cause of action is set forth.

In the case at bar the cause of action attempted to be set out clearly does not state facts sufficient to constitute a cause of action. There is no allegation except that of an account current. It is true that the items of such account current are stated to consist of merchandise and money advanced, but how much merchandise, what its value was, or how such value was arrived at, or upon what basis the plaintiffs claim a recovery, are not even hinted at. Under such circumstances, no recovery can be had upon a cause of action set forth in this manner. Therefore, there being before the court no proof of the existence of a cause of action, no attachment should have been issued.

The order appealed from should be reversed, with ten dollars costs anu disbursements, and the attachment vacated, with ten dollars costs and disbursements.

Present — Van Brunt, P. J., Follett and Barrett, JJ.

Order reversed with ten dollars costs and disbursements, and attachment vacated, with ten dollars costs and disbursements.


text:
    The Hanover National Bank of the City of New York, Appellant, v. William R. Stebbins, Respondent.

      Attachment — non-resident defendant — “residence” distinguished from “ domicile.”

    A defendant is “not a resident of tlie State,” within the meaning of that term, as used in section 636 of the Code of Civil Procedure, as a ground for obtaining an attachment, when his residence, i. e., the abode or place where he actually lives, is not in the State of New York, although his legal domicile may he within this State.
    Appeal by the plaintiff, the Hanover National Bank of the city of New York, from so much of an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the city and county of New York on the 6th day of August, 1892, as provides “ that the attachment granted herein on the 8th day of July, 1892, against the property of the defendant, William R. Stebbins, be and the same is hereby vacated, with ten dollars costs of this motion to the defendant, and that all moneys collected by the sheriff and all property attached remaining in his hands be delivered and paid by him to the defendant or his agents, and released from the attachment.”

      Thomas 8. Moore, for the appellant.

      Wm. H. Shepard and E. Z. Prentiss, for the respondent.
   Per Curiam :

The original affidavits upon which the warrant of attachment was granted justified the issuance of such warrant upon the ground of defendant’s non-residence. It is insisted, however, that the affidavits used on the motion to vacate such attachment by their weight more than counterbalanced such original affidavits, and if they did not conclusively show that defendant was a resident of the State, they left the question in such doubt that the burden placed upon plaintiff of showing non-residence of the defendant was not sustained, and, therefore, that the attachment should be vacated. This was the view taien by the judge on the motion to vacate, and it remains on this appeal to determine whether such conclusion was right.

No doubt exists but that prior to June, 1891, the defendant was a resident of this city. According, however, to his own account, in that month he gave up housekeeping in this city, stored his furniture, and departed with his family for Europe, where he remained until August following, when he returned, and after spending a few days in some hotel in this city, he departed for Kansas City and various places in the west where his interests were situated, and in which places most of his time has been spent since August, 1891. His wife and a portion of his family remained in Europe, where some of Ms children were being educated, and had not returned at the time the warrant was granted, in July, 1892. The defendant states that he never acquired a residence in Europe or in Kansas City or any place in the west, and that it was his intention, as soon as his wife returned in the fall of 1892, to resume housekeeping in the city of New York.

Taking, however, the statements of the defendant as to his residence during all this period, can there be any doubt as to his being, since June, 1891, a non-resident of this State ? The Code (§ 636) provides that a plaintiff shall be entitled to an attachment upon showing by affidavit, to the satisfaction of a judge, among other things, that the defendant is “ not a resident of the State.”

In determining this question of residence for ¿he purpose of an attachment, the distinction must always be kept in mind between it and domicile. The fact that the defendant never acquired a residence in another place and that he had all the time since 1891 an intention to return and resume housekeeping with Ms family in this city, would be sufficient to constitute a domicile within this State. But the word “ residence,” as used in section 636 of the Code, means the abode or place where one actually lives and not one’s legal domicile. In other words, a reading of this section will show that it was intended to supply a method for the collection of debts by appropriating property of the debtor to be found within the State when proceedings against the debtor personally are impossible or liable to be made ineffectual, and thus it allows the use of the process in rem when process in personam could not be served.

As said in Drake on Attachments, section 65 : “ The Court of Appeals of New York recognized the compatibility of domicile in that State with actual non-residence so as to authorize the party to be proceeded against by attachment as a non-resident even when the intention to return existed and there was no abandonment of domicile.”

And in "Waples on Attachments (pp. 34, 35), it is said:

The condition upon which attachment issues is, not that the debtor be a resident of another State or country, but that he be not a resident of the State in which the suit against him is brought and the attachment issued. * * * The essential charge is that he is not residing or living in the State, that is, that he has had no abode or home within it where process may be served so as effectually to reach him. In other words, his property is attachable if his residence is not such as to subject him personally to the jurisdiction of the court and place him upon equality with other residents in this respect.”

These views are supported by the cases of Frost v. Brisbin (19 Wend. 11); Haggart v. Morgan (5 N. Y. 422); Mayor, etc., v. Genet (4 Hun, 487); Wood v. Hamilton (14 Daly, 41); Weitkamp v. Loehr (58 Super. Ct. 79).

Taking the defendant’s own statements, and applying thereto the Code provisions relative to attachments, interpreted in the light of the decisions above referred to, we think that the defendant at the time the attachment was issued was not a resident of New York, nor could it be claimed that he was even constructively such resident. Neither his home nor his family were here, and though it is sought to be shown that his absence was necessary for his business and health, the principal fact is apparent that his residence again in New York was entirely dependent on the time of the return of his family, who had been in Europe for more than a year at the time the attachment was issued, and who were to remain abroad at least for months subsequent thereto. The fact that his furniture was stored here, coupled with liis intention to resume his residence on the return of Ms family, would give him a domicile here, but upon all the facts we think that at the time the attachment was issued the defendant was not a resident, of this State within the meaning of section 636 of the Code, and that, therefore, the attachment was properly issued against his property within this State.

Our conclusion, therefore, is that the motion to vacate the attachment should have been denied, and that the order vacating the attachment, from which this appeal is taken, should be reversed, with ten dollars costs and disbursements.

Present — Yan Brunt, P. J., O’Brien and Lawrence, JJ.

Order reversed, with ten dollars costs and disbursements.


author: Van Brunt, B. J.:

text:
    Frederick H. Smith, Jr., Appellant and Respondent, v. Francis W. Savin and Elisha W. Vanderhoof, Appellants, and John Wheeler, as Assignee and as Receiver of Orlando M. Bogart & Co., Appellant.

      Securities wrongfully pledged by the agent of the undisclosed owner, and converted by the pledgee — right of the owner to ratify the pledge, and sue the agent’s pledgee for the conversion — election of remedies.

    An undisclosed principal has a right to enforce the contract of his agent in respect to his property.
    An undisclosed owner of securities which have been placed in the possession of his agent and wrongfully pledged by the agent to a third party, and converted by the pledgee, may, on ratifying the pledge made by his agent, maintain an action for the conversion of his property by the agent’s pledgee.
    When a pledgee violates the terms of his pledge and converts the pledge, the pledgor has an immediate right of possession and an immediate right of action for the pledge, to which claim of possession the pledgee may offset the amount actually due him.
    If a stockbroker, clothed with the apparent ownership of securities placed in his possession by the real owner thereof, wrongfully pledges the same with a third party as security for a loan made to him by the pledgee, and the pledgee wrongfully sells che securities and applies the proceeds on the loan, the owner may adopt the act of his broker, and maintain an action for conversion against the pledgee, in which he may recover the market value of his securities within a reasonable time after his discovery of the conversion, less the amount actually due the deiendant for money advanced by him on the securities,

      If the complaint, in an action originally brought in equity to reach the proceeds of a sale of personal property, is amended, on condition of the payment of costs, which are accepted by the defendant, so that it becomes in effect a complaint for the conversion of the property sold, the defendant cannot, on appeal from a judgment recovered by the plaintiff on the amended complaint, invoke the doctrine of the election of remedies, as an objection to the right of the plaintiff to recover as for a conversion.
    Appeals, by all the parties to the action, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 26th day of November, 1892, upon the report of a referee.

      T. D. Henneson, for defendant Savin and another, appellants.

      John Hotmwn, for defendant Wheeler, appellant

      Dermison c& Hall, for plaintiff, appellant and respondent.
   Van Brunt, B. J.:

This action was begun as one in equity to reach a specific fund in the hands of the defendants Savin & Vanderhoof, and was tried before a referee, and from the judgment entered upon such referee’s report, an appeal was taken to the General Term, where the judgment was reversed and a new trial ordered. Subsequently the plaintiff gave notice of motion for leave to serve an amended complaint, which was granted upon the 'condition that he pay before the service of such amended complaint to the attorneys of the defendants all of their costs and disbursements and ten dollars costs of motion, which costs were taxed and duly paid by the plaintiff. He thereupon served his amended complaint which, upon the trial of the action, was claimed to be for conversion, but to which view the pleader, at the time of drawing the same, did not absolutely wish to co. unit himself. Answers-to such amended complaint were served, and. the issues thus framed were referred to a referee, who reported partially in favor of the plaintiff, and from the judgment thereupon entered these appeals are taken.

In the determination of the questions involved it does not seem to us that it is necessary to state but a very few of the facts established upon the trial, and. those are substantially conceded upon the record.

It appears that the defendants Savin & Vanderhoof were carrying on business as stockbrokers in the city of New York, and that the firm of O. M. Bogart & Co. were also carrying on in said city the business of bankers and brokers..- With this latter firm the plaintiff had been dealing for a number of years. Prior to and including the 1st of May, 1884, as security for any overdrafts which the plaintiff might make upon said firm, he deposited with them a large number of bonds and a certificate for 100 shares of Missouri Pacific stock. On the 8th of May, 1884, Bogart & Co. unlawfully, and without the knowledge of the plaintiff, pledged fifty-five United States bonds belonging to the plaintiff with the Central Trust Company of New York city, and received the sum of $55,000 from said company on the faith thereof. On the 13th of May, 1884, Bogart & Co. borrowed on call from the defendants Savin & Vanderhoof, the sum of $50,000, and deposited as collateral various shares of stock, including the 100 shares of Missouri Pacific stock belonging to the plaintiff, all of which stocks, except said 100 shares, were the property of Bogart & Co. Upon said day the plaintiff was apparently indebted to Bogart & Co. for and on account of overdrafts in the sum of $43,170.7-9. At or prior to ten o’clock of the 14th of May, 1884, Bogart & Co. made a general assignment for the benefit of their creditors to the defendant Wheeler, who accepted the trust, and duly qualified as such ássignee. Upon said morning, after the execution and delivery of the assignment of Bogart & Co. and after the defendants Savin & Vanderhoof had notice of such assignment, the defendant Savin made a demand upon O. M. Bogart, Jr., who had been a clerk, but who was not a member of the firm of O. M. Bogart & Co., for the repayment of said sum of $50,000.' He made no demand upon any member of the firm, or upon said assignee. Not receiving payment upon the demand made, and within a few minutes thereafter, he sold at the stock exchange through private brokers all the securities deposited with them as collateral for said loan of $50,000, which sale took place within half an hour after the return of Savin to such stock exchange rooms. No notice of intention to sell was served upon the firm of Bogart & Go. or upon Wheeler, as assignee, or upon the plaintiff before such sale took place.

The proceeds realized by Savin & Vanderhoof from the sale of the securities, other than the 100 shares of Missouri Pacific stock, after deducting one-sixteenth of one per cent as commissions, amounted to $45,975, and the amount due upon the loan of $50,000, made by them to Bogart & Co. at the time of the sale, was $50,006.94. The proceeds realized from the sale of the 100 shares of Missouri Pacific stock, after deducting one-sixteenth of one per cent, amounted to $7,543.50. In the latter part of May, the plaintiff first learned that the defendants, Savin & Yanderhoof, claimed to have sold said stock on the 14th of May, 1884. The value of the stock on the 21st of June, 1884, which the referee finds to be within a reasonable time of the discovery by the plaintiff of this sale by Savin & Yanderhoof, was $100 per share; and the referee gave judgment in favor of the plaintiff against Savin & Yanderhoof for the sum of $5,968.06, being the difference between $10,000, the market value of said stock on the 21st of June, 1884, and $4,031.94, the amount remaining unpaid to Savin & Yanderhoof after the application to the debt of Bogart & Co. of the proceeds of the sales of all the securities excepting this Missouri Pacific stock.

From this judgment all the parties appeal. The defendants, Savin & Yanderhoof, claim that this action, being for conversion, cannot be maintained; that no relations existed between the plaintiff and them by which their act in selling this Missouri Pacific stock was wrongful as against him; that whatever rights Bogart & Co. may have had because of the manner of the sale, the plaintiff was not subrogated to 'any such rights, nor could he enforce the same; and that a surety (and it is sought to treat Smith as a surety because of his ownership of this stock) cannot enforce actions upon behalf of his principal.

It seems to us that the true relations of the parties have been entirely overlooked by the counsel for both parties. It seems to be clear that there is no subrogation of Smith to Bogart & Co.’s rights, and that he is not by this action seeking to enforce any rights of Bogart & Co. But he is seeking to enforce a right which accrued to him as the real owner of the stock pledged by Bogart & Co. The pledge by Bogart & Co., as far as the plaintiff was concerned, of this stock as collateral to the loan of Savin & Yanderhoof, was clearly a wrongful act, for which the plaintiff could have called Bogart & Co. to account. Or he might adopt the act of Bogart & Co., which latter he has done by the action brought against Savin & Vanderhoof, because he had put it in the power of Bogart & Co. to treat this stock as their own and procure money upon it. And by reason of the holding out of Bogart & Co. as the owners of this-stock, Savin & Vanderhoof, as far as they had advanced their money upon it, were to be protected, but no further. The undisclosed principal has a right to enforce the contract of his agent in respect to M3 property, being bound only by the contracts of that agent in respect thereto. Such being the relations of the parties, and Savin & Vanderhoof having converted these securities as. against Bogart & Co., the plaintiff had a right to pursue Savin & Vanderhoof to procure the redress of wrongs which had been suffered in respect to that property. Bogart & Co., or their assignee, would have a right of action against Savin & Vanderhoof for the conversion of these securities, amongst which were the 100 shares of Missouri Pacific belonging to the plaintiff. As has been said, the plaintiff had a right to adopt the contract of Bogart & Co. in respect to his property, and if Savin & Vanderhoof has broken this, contract, the plaintiff, as the undisclosed principal, had a right to' redress in respect to the property owned by him. He, therefore, brings this action against Savin & Vanderhoof for the conversion of this stock, it having been sold without any demand upon Bogart & Co. for the repayment of the loan or any notice given of the time and place of sale. ¥e have not noticed in this statement the claim in regard to the rules of the stock exchange, for they seem to be entirely immaterial.

But it is urged by the defendants that the case of Thompson v. St. Nicholas Nat. Bank (113 N. Y. 325) is in conflict with this view. On the contrary, it is in entire harmony with the principles here laid down and is an authority in support thereof. In that case the court held that the bank having acted in pursuance of and under the power conferred by the contract of pledge, it was immaterial what ulterior rights there were of which they had no notice at the time of the making of the pledge. The waiver of right of notice of the time and place of sale and personal demand was as much a part of the contract of pledge in that case as was the pledge itself, giving a right to sell. And in pursuance of the express authority conferred by the agreement of pledge, the bank acted, and the court held that the sale being in accordance with the contract between the pledgee and subpledgee, it was not illegal or in violation of the original pledgor’s rights, manifestly because the original pledgor or the owner of the stock as against the subpledgor, could not have varied the terms of the contract by simply giving notice of ownership or interest. If there is one thing well settled it is that a bona fide holder of a negotiable security without notice, is entitled to protection in everything which he gives upon the faith of the pledge, and that he has the right to sell in a particular way, or under particular circumstances, is as much a part of the right secured by the pledge as the money actually advanced. Now what were the relations between the plaintiff, Bogart & Co., and Savin & Yanderhoof, in consequence of the wrongful conversion by Savin & Yanderhoof of the stock pledged by Bogart & Co. ? The plaintiff, by ratifying the pledge of Bogart & Co., had a right to maintain his action for the conversion of his property by the pledgee of his agent. And all that Savin & Yanderhoof, the' pledgees, could claim was that they should not be placed in a worse position when the undisclosed principal brought his action than they would have been had such principal not been disclosed, and the agent had brought it in his own name. If Bogart & Co. had brought this action they probably would have been entitled to recover more than has been recovered here. At least they would have been entitled to recover the market value of this stock which has been converted, less the balance due upon the account, and that is all that the plaintiff recovered. The amount which was due upon the account was offset against the market price of the stock taken at a reasonable time after the discovery of this conversion. ■

But it is claimed by the defendants that at the time of this conversion the plaintiff was not entitled to the possession of the stock because the loan by Savin & Yanderhoof to Bogart & Co. had not been paid. They might have gone farther, perhaps, and . said, because at the time of this conversion Bogart & Co. had a right to hold this stock because of the overdrafts of the plaintiff. But the plaintiff paid these overdrafts, and was entitled to his stock from Bogart & Co. who had wrongfully placed it in this loan. It is a familiar principle that when a pledgee violates the terms of his pledge and converts the pledge, the pledgor has an immediate right of possession and an immediate right of action for the pledge, to which claim of possession the pledgee may offset the amount actually due him, and even for a long period of time this was denied him, but that seems to be the rule at the present day.

Bogart & Co.’s rights seem to be beyond question, and the plaintiff seems equally entitled to enforce the rights which belong to him because of the wrongs done to Ms agent in respect to his property.

But it is said that in consequence of the nature of this action when it was first commenced, there has’been an election of remedies by which the plaintiff has last the right to pursue this particular remedy ; that having sought originally to reach the proceeds of the sales, he adopted the sales of Savin & Vanderhoof, and cannot now be heard to claim that they are wrongful.

Whatever might have been the rule had two separate actions been brought, one to reach the proceeds of the sale and one for the conversion, the first of wMch had proceeded to judgment, no such doctrine can be invoked in a case where there has been but one action, and whatever change has taken place has been the result of an amendment to the complaint in that action. The amended complaint takes the place of the original complaint, and the sole action which -the court has judicial notice of is the action in which the complaint exists. If the court had no power to make such amendment, or it was improper that it should have been made, that question should have been determined before the parties accepted the conditions upon which such amendment was allowed. It is too late now to appeal in this indirect manner from the order of amendment. And even a direct appeal would not lie, the defendants having accepted the costs which were made the condition of amendment. There being but one action before the court, and one judgment, we fail to see how the doctrine of election can be invoked.

There are many facts which are stated in the findings of the referee, and also established by the evidence, which it does not seem necessary to advert to. It seems to us that those which are stated show what the relations' of the parties were, and that the plaintiff had a right to maintain this action in the form into which it seems to have been converted (whether wrongfully or not is entirely immaterial upon this appeal), for the concededly wrongful conversion of the plaintiff’s securities by the defendants Savin & Vanderhoof.

It might very well be a question whether the defendant Wheeler was a necessary or proper party to the action, but as no such question is presented it is not necessary to discuss the same.

The judgment should be affirmed, but as all the parties are appellants, without costs.

Follett and Bassett, JJ., concurred.

Judgment affirmed, but as all the parties are appellants, without costs.


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    Julius H. Caryl, Plaintiff, v. Francis X. Stafford, Appellant, Impleaded with Others; Nelson J. Waterbury, Jr., Referee, Respondent.

      foreclosure sale — referee’s compensation — disbursements.

    By force of section 3397 of the Code of Civil Procedure, the compensation of a referee appointed to sell real property in an action brought to foreclose a mortgage, is limited to fifty dollars in any one action, although the referee may have made more than one sale owing to defects in the proceedings.
    Such a referee is entitled, however, to be allowed his disbursements, to whatever extent they were properly incurred.
    When there are infants interested in the proceeds of a mortgage foreclosure sale, an order of the court is absolutely necessary to authorize the payment by the referee of a fee to the attorneys for the purchaser at a defective sale;

      Semble, that a verbal consent of the defendant’s attorney will not, when infants are interested, justify the court in allowing such a disbursement.
    Appeal by the defendant, Francis X. Stafford, from an order of the Supreme Court made at the New York Special Term, held at Chambers, and entered in the office of the clerk of the city and county of New York on the 15th day of October, 1892, overruling exceptions, and confirming a referee’s report of sale under the fore.closure of a mortgage.
    The circumstances under which certain of the disbursements claimed by the referee in connection with the first sale of the property were made, are set forth as follows in an explanatory report presented by him.
    “ Both Mr. Leon Lewin, attorney for plaintiff, and Mr. Denis Quinn, since deceased, who represented the interest of the adult defendants, and Mr. James M. Baldwin, the guardian ad litem,, agreed that the purchaser could not be compelled to take title. A compromise was, therefore, made between Messrs. Foster & Stevens, representing the purchaser, and Mr. Lewin and Mr. Quinn, that it was best in the interest of economy to have the matter settled out of court, and it was accordingly agreed that the ten per cent paid the referee and the auctioneer’s fees should he returned to the purchaser, and that out of the moneys thereat realized on a subsequent sale Foster & Stevens should he paid $25, and that the referee ishould retain the expenses which he had incurred together with the • compensations of the referee. This is in accordance with the established practice in foreclosure suits, was satisfactory to all the parties at the time, and the referee was surprised to learn that after a long time had elapsed they are now questioned.”

      J. W. 8hejpa/rd, for the appellant.

      JV. J. Waterbury, Jr., for the respondent.
   Van Brunt, P. J.:

It appears from the papers that the respondent was appointed referee to sell certain premises under foreclosure, and that owing to defects in the proceedings there were three sales by the referee, and the referee was allowed to deduct from the proceeds of the last sale, fifty dollars, for his time and services upon each sale. We cannot find any warrant for such allowance. By section 329J of the Code (the section which fixes the compensation of the referee) it is provided that the referee’s compensation, including commissions, cannot, where the sale is under a judgment in an action to foreclose a mortgage, exceed fifty dollars. This seems to us to limit the fees which a referee may charge for the sale of property, as his compensation in any one action, to fifty dollars.

For his disbursements, he would be entitled to be allowed to what ever extent they were properly incurred. And there seem to have been no error in the allowance of the expenses for advertising or the payment of the auctioneer’s fees.

The payment by the referee to the attorneys for the purchaser upon the first sale of twenty-five dollars, seems to be entirely unauthorized, there being no order of the court in reference thereto, wbicb was absolutely necessary in view of the fact that there were infants interested in the proceeds of sale. In passing,-it may be said that even the verbal consent claimed to have been given by the defendant’s attorney, now deceased, would seem hardly sufficient, if there were infants interested, to justify the court in allowing such a disbursement.

The order should be modified by sustaining the objections as to the fifty dollars for the referee’s compensation on the first sale, and as to the fifty dollars for his compensation on the second sale, and. as to the twenty-five dollars paid to the counsel for the purchaser upon the first sale. This modification of the order would, under ordinary circumstances, have been made upon the payment of costs and disbursements of the appeal by the respondent; but the papers have been put together in such a way that it is impossible to tell to which order they apply, and some are included which have not the slightest pretense of right to be embraced within the record.

The order will, therefore, be modified, without costs.

O’Brien, J., concurred.

Order modified as directed in opinion and as modified affirmed, without costs.


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    Marie T. Upington, Plaintiff, v. Michael A. Corrigan and Others, Defendants.

      Conveyance of land, on condition that a church be built thereon within a reasonable time — judicial notice — death of the grantee upon whom the condition was imposed — intention that the condition should follow the land.

    The owner of land conveyed it, in 1862, for a nominal consideration, to the Rev. John Hughes, his heirs and assigns forever, upon the condition “that the said party of the second part shall consecrate, or cause to he consecrated, the said property for the purpose of erecting a church building, and shall, within a reasonable time, erect or cause to be erected such building.” This condition not having been complied with, and the grantor and grantee having died, the heir at law of the grantor in 1891 brought an action of ejectment for the granted • premises against the successor to the title of the Rev. John Hughes, who was in possession.

      Meld, that the trial court, in the absence of evidence explaining the delay, should take judicial notice of the fact that an unexplained delay of twenty-nine years, in commencing to build a church is unreasonable;

      That it was the evident intention that the condition should he annexed to and follow the estate granted, into whosoever’s hands it might come, and that the property was not to he deemed relieved from the condition on the death of the Rev. John Hughes, on the assumption that the condition was imposed upon him only.
    Motion by the plaintiff, Marie T. Upington, for a new trial upon exceptions ordered to be heard in the first instance at the General Term, by an order made at the New York Circuit on the 1st day of March, 1893, upon a verdict being directed for the defendants.

      Jas. ]£. Hxmt, for the motion.

      T. G. Barry, opposed.
   Van Brunt, P. J.:

This is an action of ejectment commenced in July or August, 1891, to recover possession of certain premises for breach of conditions subsequent contained in the deed by which plaintiff’s ancestor conveyed the same.

The facts conceded are as follows: One Mary McDonough Davey, being the owner of the premises in question, conveyed the same to the Rev. John Hughes for nominal consideration by a full covenant warranty deed on the 19th of September, 1862. This deed in addition to the usual covenant contained the following:

To have and to hold the above-granted, bargained and described premises, with the appurtenances, unto the said party of the second part, his heirs and assigns, to his and their own proper use, benefit and behoof, forever. Upon the conditions following, to wit: That said party of the second part shall consecrate or cause to be consecrated the said property, for the purpose of erecting a church building, and shall, within a reasonable time, erect or cause to be erected such building. And reservation is hereby made by said party of the first part to appropriate, at her option, either of the ground under such building or outside thereof and within the boundaries of the property hereby conveyed, a sufficient place of interment or burial for her late husband, now deceased, family and self, and to erect a suitable tablet or monument to their memory.” The defendant Corrigan, having succeeded to the title of Hughes, and - being in possession of the premises, and none of the conditions of the deed of I)avey having been complied with, this action was brought to recover possession of the same by the plaintiff, who, with the defendant Pooler, are the only living heirs at law of IVJtary Davey, upon the ground that there -having been a breach of the conditions upon which the grant was made, such grant was forfeited.

IJpon the trial these facts appearing the plaintiff rested, and the court was asked to dismiss the complaint upon the grounds: First. That as there were no allegations of forfeiture during the lifetime of Hughes, and as the condition in the deed did not name his heirs, executors, administrators or assigns, the condition could not be broken after his death; and, second,, the condition not being binding upon the defendant Corrigan, no right of action for forfeiture because of the breach of condition existed against him; and, third, that the burden was on the plaintiff to prove that a reasonable time had elapsed in which to build a church, having in view the situation of the premises. These motions the court appears to have denied, but directed a verdict for the defendant upon the ground that there was no sufficient evidence to show that a reasonable time had elapsed with reference to the situation of the property and within which to build a church, and that the question of reasonable time being one of law, the court must have before it some evidence upon which to base a ruling more than the mere lapse of time.

To this ruling the counsel for the plaintiff duly excepted, and this is the. exception presented upon this motion:

Grant in 1862; no compliance with conditions in 1891. Twenty-nine years having elapsed, must evidence be offered to show that twenty-nine years is an unreasonable time to take in which to construct a building ? There are a large number of facts of which the court always takes judicial notice, they being those which form the common knowledge of mankind, and which everybody takes into consideration in the ordinary affairs of life. Suppose that the condition had been that the grantee should go from New York to Albany within a reasonable time, and twenty-nine years had elapsed and he had not gone, and no explanation was given of the delay, could it be argued for a moment that it would be necessary to offer evidence to show that there had been time enough to have made the journey, which we all know could have been made thousands of times during the period which had elapsed ?

This is substantially the case at bar, and the court may take judicial notice of the fact, which is common knowledge, that twenty-nine years is an unreasonable time within which to commence to build a church, unless some sufficient explanation is given. In drawing the answer of the defendant, it was thought necessary to allege as new matter the grounds upon which' it was to be claimed that the delay was not unreasonable; and this new matter, we think he should have been called upon to prove, as for the purposes of the time it was denied. After hearing the proofs, it could be determined whether a delay, which upon its face appeared unreasonable, had been excused.

It is claimed, however, that the condition called for the performance by Archbishop Hughes only, and he being dead, the property was relieved of the condition; and we are referred to the case of Emerson v. Simpson (13 N. H. 475) as an authority to sustain this proposition. That case turned upon the particular language of the condition, and seems to have but little bearing upon the case at bar. It was the evident intention in the case at bar that the condition should be annexed to and follow the estate granted, into whosoever’s hands it might come. Otherwise, the plain object of the grant would be defeated. Such was the rule held in the case of Langley v. Chapin (131 Mass. 82), and recognized in Rose v. Hawley (118 N. Y. 502), and is certainly in consonance with the plain intention of the grantor.

We are of the opinion, therefore, that the court erred in directing a verdict for the defendant; and the exceptions should be sustained and a new trial ordered, with costs of this application to plaintiff to abide final event.

Eollett and Barrett, JJ., concurred.

Exceptions sustained and a new trial ordered with costs of this application to plaintiff to abide final event.