text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN DAVIDSON and Others v. EDWARD GILON and Others, Composing the Board of Assessors.

      Assessment for street pavement under section 878 of chapter 410 of 1882—ahorse raih'oad, compa/ny should, he assessed for such work.

    The provisions of section 878 of chapter 410 of the Laws of 1882, directing an assessment for the paving of a street in the city of New York, to be made among the owners or occupants of all the houses and lots intended to be benefited thereby, were simply a re-enactment of existing provisions of law, and should be construed with the other laws existing prior to 1882 concerning local improvements in said city.
    A horse railroad company is benefited by the laying of a pavement in the street between the rails of its tracks, and is subject to assessment therefor; and not to assess such company for such work is a manifest error on the part of the assessors, which it is one of the offices of the writ of certiora/ri, authorized by chapter 269 of the Laws of 1880, to correct.
    Certiorari to review the action of the members of the board of assessors, and of the board of revision and correction of assessment-rolls, in the matter of an assessment made by the board of assessors for the expense incurred for paving Madison avenue, from One Hundred and Thirty-third street to One Hundred and Thirty-seventh street, in the city of New York.
    The writ was applied for upon the ground that the entire amount •of the expense of said improvement, including the cost of paving between and about the tracks of the horse raih’oad belonging to and •operated by the New York and Harlem Bailroad Company, through the said avenue between the said streets, had been assessed upon houses and lots in the vicinity thereof, and that no part of said expense had been assessed upon said railroad company or its property.

      Trnmum H. Baldwin, for the relators.

      Q. L. Sterling, for the respondent.
   Daniels, J.:

The expenses of the improvement were mainly assessed upon the property fronting upon the avenue. Before it was either ordered •or made, the assessors in their return to the writ have stated the facts to be, that there was, and is, in said avenue, between One Hundred and Thirty-third and One Hundred and Thirty-seventh streets, a double line of track, owned and operated by the New York and Harlem Railroad Company, as and for a horse railroad, and that the avenue has been paved between and about the said railroad track, and that the amount of said paving has been included in the above gross amount of paving done on said avenue, and assessed upon said houses and lots as aforesaid.

But they assessed no part of the expense of the improvement upon the structure of the company, for the combined reason that in their opinion it had not been benefited by the pavement of the avenue, and it was not under the laws assessable therefor.

, The railway was operated by horse-power, employed to move the cars of the company, in carrying and transporting passengers for hire. And in that use it is clear, beyond reasonable ground for controversy, that the railway tracks had been improved and benefited by the pavement. So much of it as was laid between the rails supplied the company with a solid and permanent road-way for the use of its horses, not liable to be affected or impaired by the weather, as the unpaved earth necessarily would be. There was, therefore, no. foundation for the opinion of the assessors to rest upon, that the road-bed and structure of the company had not been benefited by the pavement. In this conclusion, adopted by them, there was a manifest error, which it is one of the offices of the writ of certiorari, as it has been provided for, to correct. (Laws of 1880, chap. 269.)

The more substantial reason for omitting the railway tracks from the payment of a proportionate part of the expenses of the pavement was the construction the assessors considered it to be their duty to place ilpon the laws applicable to the assessment of expenses for local improvements. The company had not been in any form exempted from the obligation to contribute towards the expenses, by chapter 825 of the Laws of 1812, under which this part of its railway had been laid. The act was wholly silent in this respect. The authority was provided by it for extending the tracks through this'part of the. avenue upon the payment of the value of the rights and privileges conferred, to the - mayor, etc., of the city, as that should be ascertained by commissioners to he appointed for that object. But this act contained nothing which, either in language or by implication, relieved the company from defraying the expenses of benefits conferred upon it by the improvement of the avenue.

What it obligated the company to pay was for no more than the right or privilege of laying its tracks in the avenue, and afterwards using them as a street railway. And that is the utmost extent of the advantages derived by the company from that act.

It was, however, considered by the assessors that they could charge the company, or its structure in the avenue, with no part of the expense of the pavement, for the reason that section 878 of chapter 410 of the Laws of 1882 directed the assessment of the expenses to be made among the owners or occupants of all the houses and lots intended to be benefited thereby. And it must be assumed that the literal observance of this language would exclude the company and its railway and require the owners of the houses and lots to defray the entire expense of the improvement.

But the incorporation of this section in the act of 1882 was not its enactment as a law by the legislature. It was no more than its compilation as one of the laws already existing relating to the city of New York. And it derived its force and effect from its own enactment, and not from this compilation. The enactment of it as a law dates farther back even than the 9th of April, 1813, when, in a similar manner, it was made section 175 of chapter 86 (vol. 2, p. 407), of the Revised Laws of the State. And it should now be construed with the other laws since enacted concerning local improvements, and necessarily affecting its meaning and application.

At the time when it was made a part of the Laws of 1813 the use of a street or avenue for a railway was unknown and did not exist. That possibility was not within the knowledge or anticipation of the enacting authority. It has been a more modern development under other laws framed to provide for and regulate its use and enjoyment. Through its existence a valuable property has been created, unknown to and not within the contemplation of earlier laws. And that property has furnished another subject of taxation, and that, too, within the comprehension of laws previously enacted. (People v. Cassity, 2 Lans., 294; 46 N. Y.,.46.) And it has since been defined and declared to be liable to taxation by chapter 298 of the Laws of' 1881. And similar progress his been made, though not in as direct language, in providing for the payment of the expenses of local improvements.

By section 1 of chapter 313 of the Laws of 1874, it was provided and declared that all property, subject to an exception inapplicable to this controversy, should be liable to assessment when it should be benefited “ by any improvement or other public work already completed or now being made or performed, and hereafter made, done or performed ” And this law has been made section 899 of the act of 1882. Its language is very broad, so much so as literally to include this pavement. And subdivision 2 of section 868 of the consolidation act also provided for the same obligation by directing the board of assessors to assess upon the property benefited the certified amount of its expenses. The direction that this should be done in the manner authorized by law, and in the proportion so authorized, in no way restrains the provisions subjecting all the property benefited to assessment for the expenses. Lor this phraseology includes no more than the proceedings prescribed for making the assessments. They have been clearly declared and defined, and the assessments are to be made by observing and following that course of proceeding, and the proportion authorized by law to be assessed is so much as the property has been benefited by the improvement to be paid for. No other objects were intended to be subserved by these phrases, but they were adapted to the promotion of what had been otherwise so plainly declared, that all the property benefited by a local improvement should defray the expenses of making it.

And this general’principle has modified and enlarged the effect ■ of the section of the act of 1813, which directed the assessment of the expense to be made among the owners and occupants of the houses and lots .benefited. And that was considered to be the result of more recent legislation in the case of the Mayor v. Colgate (12 N. Y., 140, 153). In 1813 houses and lands were the only property which could be benefited by a street improvement, and it was entirely proper to designate their owners as the persons who should be required to pay the expenses. But since then a new and additional structure has been placed in the streets of cities and villages, which will be as much benefited by their pavement as the houses and lots, and may with equal propriety be directed to divide the expenses with their owners. This advancement since street railways bare been constructed has at all times been within the knowledge of the law-making authority. And there is every reason for concluding, when it was clearly and expressly declared, that the property benefited by a street improvement should bear its expense, that it was intended that street railways should not be exempted from that obligation. And the law has generally been construed to be attended with that effect. (Troy, etc., R. R. Co. v. Kane, 9 Hun, 506.) There the law had made the property benefited by a street improvement liable for its expense. And the railway company was, under that principle, required to contribute to the expenses of constructing a sewer deemed to benefit it, although under the surface of the street. And, under general provisions no broader than these affecting the city of New York, a similar liability has been in other instances sustained. (City of Chicago v. Baer, 41 Ill., 306 ; City of New Haven v. Fairhaven, etc., R. R. Co., 38 Conn., 432; Northern Indiana, etc., Co. v. Connelly, 10 Ohio [Critchfield], 159.) And it was applied to the structure of a steam railway in Peru, etc., Railroad Company v. Hanna (68 Ind., 562). But that application of the principle was denied in Philadelphia v. Philadelphia, etc., Railroad Company (33 Penn., 41) and Junction Railroad Company v. Philadelphia (88 id., 424) for the reason that railways of that description would not be benefited by these improvements. The fact itself is different in the case of a street railway, which must be necessarily benefited by laying a permanent stone pavement, as that' was which was placed on this avenue between its tracks and rails, and immediately adjacent thereto. And so far as the company owning this railway was benefited by the pavement it should have been proportionately required to bear its expense. The charge of that part of the expense upon the owners of the houses and lots made them, or their property, bear this obligation of the railway company. And that the assessors could not legally do, even if the company itself could not be made to pay for its proportion of the benefit. For the inability to enforce payment for a benefit created against one person or his or its property will supply no legal ground for obliging another to make compensation for that benefit.

But there was no such inability here. For the proceedings, provided for assessing the expense of the benefit to the property of the railway company, were as well adapted to make that assessment as they were to assess the houses and lots for the benefits received by them. They equally applied to every species of property benefited by the pavement, whether that of individual owners or of a railway company. And in case of failure to pay, the railway could be as readily sold as could be a house and lot. The same means for imposing and collecting, or realizing the assessment exists in one-ease as it does in the other. And the assessors erred in failing to carry it into effect against the street railway company. Complete authority has been provided for the correction of this error by chapter 269, Laws of 1880. The proceedings are not stayed by the certiorari, and the fact that they may have, since the service of the writ, passed beyond the authority of the assessors forms no answer to the right of the relators to a review of them.

The assessment, so far as it has charged them with the proportionate part of the benefit of the pavement, which was received by the railway company improving its structure in the avenue, should be reversed and the proceedings remitted to the assessors to assess the expenses upon the company and its property so far as it has been benefited, and the residue only upon the houses and lots of the relators.

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

Proceedings reversed as directed in opinion.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    THE NATIONAL PARK BANK OF NEW YORK, Respondent, v. THE STEELE & JOHNSON MANUFACTURING COMPANY, Appellant.

      Mistake of a bank cashier in certifying negotiable paper as good—when the amount paid by the bank under such certification is recoverable by it.

    A promissory note made by Mitcbell, Yance & Co., April 14, 1887, for $3,281.83, at four months from date, to tbe order of tbe Steele & Johnson Manufacturing Company for goods sold by it to Mitcbell, Yance & Co., was, on August 18, 1887, certified by the National Park Bank, where it was made payable, anil thereafter was transferred to the Tradesmen’s National Bank and credited to the Steele & Johnson Manufacturing Company. On the day following the note was paid through the clearing-house and the proceeds were received hy the Tradesmen’s National Bank, and were paid over to the Steele & Johnson Manufacturing Company.
    At the time when the note was certified the makers had on deposit with the National Park Bank only $146.66, and the note was certified under a mistake as to the amount of such deposit. When such mistake was discovered information was sent on August 18, 1887, to Mitchell, Yance & Co., who notified the Steele & Johnson Manufacturing Company, and that company was the next day also notified by the National Park Bank of the existence of such an error, and the money which had been paid upon the note was demanded, hut the money was not repaid.
    In an action brought by the National Park Bank for its recovery, it appeared that the certification of the note was made by the assistant teller of the bank without any authority from the officers of the bank, and it did not appear that the Steele & Johnson Manufacturing Company had in any way changed its condition by reason of the certification of the note and the payment of the money upon it.

      Held, that while the act of the teller in certifying the note, without consulting the state of the account of the makers with the bank, might be careless, yet that that circumstance was not sufficient to prevent the recovery of the money by the bank, and that the bank was entitled to judgment for its repayment.
    Appeal by tlie defendant, the Steele & Johnson Manufacturing Company, upon questions of law and upon the facts, from a final judgment, entered in the office of the clerk of the county of New York on the 8th day of June, 1889, after a trial before the court and a jury at the New York Circuit, and from an order denying a motion made upon the minutes of the court for a new trial.
    The action was brought to recover the amount of a note made by Mitchell, Yance & Co., payable at the plaintiff’s bank, which had, before its maturity, been certified by the bank and had been paid by it.

      Marston Wiles, for the appellant.

      Barlow <& Wetmore, for the respondent.
   Daniels, J.:

The verdict was directed for the amount held to have been paid by mistake by the plaintiff upon a promissory note made by Mitchell, Yance & Co., on the 14th of April, 1887, for the sum of $3,281.83 to the order of the defendant, and due in four months after its date. The note was given for goods which the defendant had sold to Mitchell, Yance & Co. And on the 18th day of August, 1887, it was presented to and certified by the assistant paying teller of the plaintiff. After its certification, which was at the instance of the defendant, the note was transferred to the Tradesmen’s National Bank for the benefit of and credited to the defendant. And on the day following the note was paid through the clearing-house and the proceeds received by the Tradesmen’s National Bank, and that bank paid over these proceeds to the defendant. At the time when the note was certified the makers had on deposit with the plaintiff no more than the sum of $146.66. And the assistant teller, who certified the note, testified that he did so in the belief that the account of Mitchell, Yance & Co. with the plaintiff was sufficient to permit the certification of this note. When that was discovered not to be the fact, information was sent to Mitchell, Yance & Co., and they notified the defendant by letter, mailed about six o’clock in the afternoon of the 18th of August, 1887, that the certification of the note arose out of an error on the part of the bank. And on the next day a letter was written and mailed by the assistant cashier of the bank to the defendant again apprising it of the error in the certification of the note, and demanding the repayment of the money which had been advanced upon it in the course of the clearing-house settlements. This was not repaid, and the action of the plaintiff was brought for the recovery of the amount. And at the close of the proofs a verdict was directed in favor of the plaintiff for the amount which it was held it was entitled to recover. No controversy appears to have arisen concerning the amount the plaintiff was entitled to recover, if it was entitled to maintain the action at all.

After the verdict was directed the defendant moved for a new trial, which was denied, and an exception was taken to the denial. But no order appears to have been entered upon this decision. None, certainly, is contained in the case. And whether there were any grounds for the motion cannot be now considered, for it has so long been held that an exception to the refusal to order a new trial is entirely inoperative, as to dispense even with the citation of authorities on that subject. The case, consequently, must be disposed of upon the exceptions arising in the progress and at the close of the trial. The evidence which was given did prove the fact to be that the note had been certified in the manner already mentioned, under the belief, on the part of the person certifying it, that the account of the drawers in the bank was sufficient to justify this certification. And when that was discovered not to be the fact immediate steps were taken to avoid the payment of the note. But they were ineffectual on account of the inability to discover the party who was the holder of the note. This was not ascertained by the bank until the note itself had been paid. And as soon as that was done, and the note surrendered to the plaintiff, the demand was made upon the Tradesmen’s National Bank and the defendant for the return of the money. The bank declined to make the payment. And as it had paid over the money to the defendant, its agency in the transaction had ceased, and it was not liable to refund the money to the plaintiff. But the action for that purpose was properly brought against the defendant. (National Park Bank v. Seaboard Bank, 44 Hun, 49.)

The act of the teller in certifying the note without consulting the state of the account of the makers with the bank may be characterized as careless. But that circumstance was not sufficient to prevent the recovery of the money. (Kingston Bank v. Eltinge, 40 N. Y., 391; Lawrence v. American National Bank, 54 id., 433; Union Nat. Bk. v. Sixth Nat. Bk., 43 id., 452; Mayer v. Mayor, etc., 2 Hun, 306.)

The defendant, through the cross-examination of the plaintiff’s witnesses, endeavored to prove the fact that the bank had, on previous occasions, certified the paper of Mitchell, Vance & Co., without reference to the state of their deposit account. But that was stated by the teller to have been done only with the direct authority of one of the officers of the bank, and that it was on occasions when the account of Mitchell, Vance &' Co. ivas immediately after-wards made good, and upon the faith of deposits expected from that company; while in this instance the testimony of the assistant teller was that he certified the note, not under the authority mentioned, or the existence of such an expectation, but wholly upon his own belief that the account of Mitchell, Vance & Co. was sufficient to justify his act. It was not done, therefore, under the authority of’ any rule or practice observed'in the previous certification of the paper of Mitchell, Vance & Co., but solely because of a misapprehension on the part of 'the teller as to the state of their account. And that, within the authorities, entitled the plaintiff to the recovery of the money, provided the evidence on the part of the defendant presented no legal defense.

The defendant gave evidence and offered further proof from which it was claimed that it should be exonerated from the obligation to return this money. But it did not appear from the proof which was supplied, neither would it from that which was offered and rejected, that the defendant had changed its condition in any respect by reason of the certification of the note and the payment of the money upon it. It did appear that the note had been given for goods manufactured by the defendant and sold to Mitchell, Yance & Co. And the defendant proposed to prove that the goods were delivered upon the representation that Mitchell, Yance & Co. were solvent and able to pay for them, and that this representation was not true. But if the proof in this manner offered had been received, it would have established no change whatever in the relations existing between the defendant and Mitchell, Yance & Co., upon or after the certification of the note. It might have entitled the defendant to the return of their goods, if they still remained in the possession of Mitchell, Yance & Co. But that right, if it existed at all, was not impaired in any respect by the certification and payment of the note. It was also proposed to be proved that statements were made by Mitchell, Yance & Co., to the agent of the defendant when the note became due, concerning their financial condition and ability to pay it. These representations were excluded on the objection of the plaintiff, to which exclusion the defendant excepted. But while proof of the representations might very properly have been received, the defendant was not injured by its exclusion, for the reason that the evidence afterwards taken was received upon the basis that the representations offered to be proved had, in fact, been made. But although, for the time, these representations may have delayed proceedings for the collection of the note, there was no evidence that this delay resulted in any injury whatever to the defendant. If it had deprived them of their ability to take proceedings for the collection of their debt, and in this manner .subjected them to a loss they would not otherwise have incurred, it may be that a defense would have then been made out. (Kingston Bk. v, Eltinge, 40 N. Y., 391, 404; 66 id., 625, 626, 621.) But it did not. For the defendant on the day when it received information that the note had been certified might, if it had been disposed to do so, have returned the money, and taken proceedings for the collection of its debt against Mitchell, Yance & Co. For it was not until the 20th of August, 1887, that the action was commenced by the attorney-general to dissolve the corporation existing under the name of Mitchell, Yance & Co. A still further answer is supplied by the proof to the defendant’s position as to this part of the case, and that is that it was in no manner proved that the defendant would have been able to collect the note by any proceedings it could have taken against Mitchell, Yance & Co., between the time of its maturity and the commencement of the suit by the attorney-general. It was proved that at least one asset of the company existed in its favor in the city of Cincinnati, but no proof was given that the defendant had knowledge of this fact or of the existence of property elsewhere which it could regularly have seized or resorted to for the enforcement of the payment of this debt. And it was not shown, therefore, that any change in its position, or in its ability to insure payment, arose out of the delay occasioned by the certification of the note. And neither of the authorities which have been cited to sustain the appeal support the defenses which the defendant endeavored to make.

At the close of the case nine different requests were presented by the counsel for the defendant, upon which it was proposed to submit the case to the jury. But these requests presented no more than legal propositions which the court was not obliged in any view to submit to the jury. The exceptions taken to the refusal so to submit the case, as well as those to the refusal of the motion to dismiss the complaint, and others incidentally referred to in the points, can neither of them be sustained. The plaintiff’s case was proved by the evidence. And as no defense was maintained by the additional proof produced or offered on behalf of the defendant, the court was right in directing a verdict for the amount which the plaintiff had been obliged to pay by reason of this certification of the note, and the judgment should be affirmed.

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

Judgment affirmed.


text:
    FRANK WALTON, Respondent, v. PARKE GODWIN, Appellant.

      Annual report of a corporation — what false statement as to the capital paid in, is not a material false statement, rendering the officer,s signing the report liable for its debts.

    In an action brought to charge one of the directors of the American Opera Company (Limited) with a debt existing against such company, upon the ground that the annual report filed by such company was false in its statements concerning the amount of capital stock which had been paid in, it appeared that one Henry Seligman, who was named in the report as one of the stockholders, was not, and never had been, the owner of stock in the corporation; that a certificate for ten shares of stock, amounting to the sum of $1,000, had been sent to him, which he had refused to accept and had returned, and that this amount, as well as an additional sum of $1,000, for which there was no foundation whatever, was included in the amount of the capital stock of the company stated in the report to have been paid in.

      Held, in view of the fact that the jury might have found that $146,600 of the capital stock of the company had been paid in, that this error, to the extent only of $2,000, did not make the report “false in any material representation.”
    That this slight discrepancy could have had no effect whatever upon the connection or dealing of its creditors with the corporation, and that, therefore, the state, ment could not be a material false statement, rendering the officers who signed the report liable for the debt of the company.
    Appeal by the defendant from a judgment in favor of the plaintiff, entered on the verdict of a jury rendered at the New York Circuit, in the clerk’s office of the county of New York on the 24th day of January, 1890, and from an order, dated and entered January 31, 1890, in said clerk’s office, denying defendant’s motion made upon the minutes of the presiding judge to set aside the verdict and grant a new trial. .

      Nelson Smith, for the appellant.

      William W. Badger, for the respondent.
   Daniels, J.:

The verdict was rendered for the sum of $4,122.73, against the defendant as one of the directors of the American Opera Company (Limited). The company was incorporated under the authority of chapter 611 of the Laws of 1875. On the 17th day of January, 1887, the annual report of the company was made, and it was filed on the twentieth of February of the same year. This report was signed by the defendant, together with other persons, and the state: merits contained in it concerning the amount of capital stock which had been paid in, and the names of persons who are stated to have been stockholders were alleged to be untruthful. And it was on that ground that the plaintiff, as the assignee of Henry Bates, was ■ permitted to recover the verdict upon which the judgment was 'entered. This verdict was recovered for the amount found to be owing to Henry Bates under a contract made by the company with him on or about the 22d of October, 1886. He was employed in the capacity of a tenor singer at the salary of $125 weekly. He performed no actual service in the capacity in which he had been employed, and he was discharged early in December, 1886. The contract made with him was for a season of thirty weeks, commencing in November, 1886, and it was for the amount of the damages resulting from the refusal to perform the agreement on the part of the comrpany that the verdict in the action was' rendered. It appeared in support of the action that the plaintiff had previously recovered a judgment for the same demand against the company itself, and that execution had been issued upon the judgment and returned unsatisfied.

The defendant resisted the action on the ground, among others, that Bates had been discharged from the service of the company by reason of his incompetency. And it had been agreed by the sixth rule, which was made a part of the contract of employment, that he might be discharged in the event that he proved to be an incompetent person. And it was declared in this rule that “ the vocal and musical directors shall be the sole • judges of the fact and extent of the incompetency in applying this rule.” One of the musical directors was examined as a witness upon the trial and testified that rehearsals were had in which Bates took his part, and that he was determined to be an incompetent person by the musical directors, and for that reason was discharged. But the accuracy of this statement was controverted upon the trial. And Mr. Bates himself testified, and so did his wife, that the rehearsals took place prior to the signing of the contract, and that up>ón their completion he was directed to go and sign the agreement, and that it was so signed on the 25th, or between that and the 21th of October, 1886. The evidence of the plaintiff himself had the like tendency to establish the fact to be that the rehearsal in which Bates was engaged took place before tbe making of the agreement, and that there was no examination or rehearsal in which he was afterwards engaged upon which the musical directors determined him to be incompetent. On this evidence the court submitted the question to the jury whether the incompetency of Bates was determined upon by the musical directors for or on account of any incompetency .appearing in him after the signing of the agreement. If there was, then the court directed the jury that they should find a verdict in favor of the defendants. But if the rehearsals took place prior to the signing of the contract, then it was held that there had been no such discharge under the agreement as would entitle the defendant to a verdict. And these directions appear to be supported by the agreement itself, and the rule made a part of it. Bor it contemplated the fact that the incompetency should be subsequently ascertained or discovered to justify the dismissal of Bates from the service of the company. This is the clear import of the agreement and the rule, taken and construed together. And the jury must have been satisfied that no incompetency was found in Mr.' Bates after the agreement had been entered into, and that he had not been discharged from the service of the company because of that fact.

In the submission of the case to the jury the judge presiding at the trial directed them that the defendant was liable, in case they found that Mr. Bates had not been discharged under the authority of rule sixth, for the reason that the report was untruthful. And to that an exception was taken on behalf of the defendant. In support of the action it was alleged that the report untruthfully stated that $148,600 of the capital stock had been actually paid in, and that the several persons who were named as stockholders were not the owners of any stock of the corporation. These were matters which section 18 of chapter 611 of the Laws of 1815 required to be stated in the report. That section required a report “which shall state the amount of capital, and the proportion actually paid in, * * * and the names of its then existing stockholders.” And it was proved upon the trial that Henry Seligman, who was named in the report as one of the stockholders, was not and never had been the owner of stock in this corporation. It was also shown that the report was made upon the basis that Seligman was one of the owners of stock in this company. While it appeared from the testimony of Clifford D. Jaffray, who was at first the bookkeeper and afterwards the paymaster of the company, that Mr. Seligman never became the owner of stock in the company; that a certificate of stock was sent to him which he declined and returned. His certificate included ten shares of stock amounting to the sum, as it is to be inferred from the case, of $1,000. And it was proved that this amount, as well as an additional $1,000, for which there was no foundation whatever, were included in the report as part of the capital of the company which had been paid in. Evidence was also given to the effect that other persons named in the report as stockholders in the company were not the owners of the stock charged to them. But as to these persons the books of the company were produced stating them to be the owners of the stock which it was asserted had been issued to them. And the secretary of the company in verifying the report appears to have included these persons as the owners of stock, in the company. This report, as well as the books produced and read in evidence, tended to establish the fact that as to these other persons they were the owners of the shares appearing in their names. And as they were interested in maintaining that they were not the owners of such shares, and their denials were in conflict with this other evidence, the court could not direct a verdict upon the testimony given by them to this effect. But if it had been important to ascertain whether they were the owners of the shares appearing in their names, that fact should have been submitted to the jury. But as to Mr. Seligman there was not only his own testimony that he was not the owner of stock in the company, but, in addition to that, the evidence of Mr. Jaffray, who was entirely disinterested. And it did not appear on the books of the company that this person was the owner of any of its stock.

By section 21 of chapter 611 of the Laws of 1875 it has been provided that if any certificate or report made, or public notice given, by the officers of any such corporation shall be false in any material representation, all the officers who have signed the same shall be jointly and severally liable for all the debts of the corporation contracted while they ai’e officers thereof. And by the preceding section 18 the amount of the capital actually paid in, and the names of the persons who are stockholders at the time when the report shall be made, are required to be truthfully stated in it. But, from the evidence which was given at the trial, it could only bo assumed by the court that the report was untruthful, to the extent of the sum of $1,000, in stating the amount of capital actually paid in, and the further sum of $1,000 represented to be the proceeds of the shares issued to Seligman. And as to this first $1,000 there was evidence tending to show it had probably resulted from an error in the footing of the items. And that Mr. Seligman was not the owner of stock in the company was a fact appearing beyond ground of controversy. And as the case was tried, it is upon these two facts that the liability of the defendant must be maintained if it is maintained at all. And it accordingly, under section 21 of the act, depends upon the question whether these statements were materially false representations. The law has not defined what shall or shall not be material representations in the report, but that must be determined from the consideration of the act and the nature and object of the report itself. The report has evidently been required as information to the public concerning the financial condition and responsibility of the corporation. This information is intended as a security to persons dealing with the company. And whatever would materially affect their judgment in their dealings, should be regarded as a material representation in the report itself. But if a report proves to be untruthful in representations which would have no effect whatever upon the judgment or conduct of persons dealing with the corporation, such representations could not be consistently held to be material. And it must be by this criterion that the question of the liability of the persons signing the report should be determined, for if it contains untruthful statements, and those statements appear to be so entirely unimportant that they would not affect, in the least degree, the credit of the company or the conduct of persons dealing with it, then they cannot legally be held to be material misrepresentions. And such was the fact as to the representations concerning the amount of the capital stock of this corporation which had been paid in, and the statement that Mr. Seligman was one of its stockholders. These statements were unfounded to the extent only of $2,000, leaving, as the jury might have found the fact to be upon the evidenee, that $148,600 of tlie capital stock of the company had been paid in. And there is no reason for concluding that this amount would not as well, or completely, have maintained the credit and standing of the company as would the amount of $148,600. This slight discrepancy or difference in so large an amount would have no effect whatever upon the transactions or dealings of creditors with the corporation. And for that reason these statements could not be assumed to be, as they appear to have been in the charge of the court, materially false statements, rendering the officers who signed the report liable for its debts.

There was a probability certainly arising from the other evidence in the case that the amount actually paid in was considerably less, but that probability was not so well maintained as to entitle the court to assume the fact to be established by the evidence. But that part of the case should have been submitted to the. jury. The evidence as to it was by no means conclusive, and they might on that evidence have found in favor of the defendant. There was evidence that the names of persons had been omitted who were the owners of stock in the company, but this omission by no possibility could have prejudiced the public or persons dealing with the company itself. It would have a tendency to reduce its credit instead of increasing it, which would work no injury whatever to persons in their dealings with the company. And for that reason the omission could not be material.

Other important questions have been presented by the evidence given upon the trial, but it is not necessary at the present time to consider whether the rulings made concerning them are capable of being sustained or not. For, as to this part of the case which has been considered, the court erroneously decided that the defendant was liable in case Mr. Bates had been discharged from the service of the company because of incompeteucy after the making of the agreement itself.

The judgment and order should be reversed and a new trial ordered, with costs to the defendant to abide the event.

Tan Brunt, P. J., and Brady, J., concurred.

Judgment and order reversed and new trial ordered, with costs to defendant to abide event.


author: Daniels, J. :

text:
    THOMAS KELLEY, Respondent, v. THE FORTY-SECOND STREET, MANHATTANVILLE AND ST. NICHOLAS AVENUE RAILWAY COMPANY, Appellant.

      Negligence—duty of an employer defined.

    In an action to recover for damages claimed to have arisen from the negligence of the defendant, it appeared that a few days before the accident in question the defendant had purchased a force-pump, to be used in applying whitewash to its premises; that the pump had become clogged, and that the plaintiff was sent for to remove a cap from the apparatus in order to put it in working order, and had loosened one of the screws holding the cap in its place when the whitewash was blown into his eyes by the compressed air, causing the injury complained of.
    The pump had been manufactured by a company engaged in that business, and had been subjected to the ordinary test to discover whether it was defective, and there was nothing to indicate that the removal of the cap would be attended with any danger.

      Held, that as there was no cause for apprehension, there was no negligence in omitting to guard against the accident.
    That the law exacts from the employer the exercise of reasonable care and intelligence for the safety and protection of the persons employed, and that when such care and intelligence are exercised the happening of what, at most, are only possible accidents, is part of the risk of the employment against which the person employed is required to guard and protect himself.
    Appeal by tbe defendant from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of tbe county of New York on tbe 1st day of March, 1890, in favor of tbe plaintiff; and also from an order, entered in said clerk’s office on tbe 28tb day of February, 1890, denying defendant’s motion for a new trial, after a trial before tbe court and a jury at tbe New York Circuit, at wbicb a verdict was rendered in favor of tbe plaintiff for tbe sum of $2,250.
    Tbe action was brought to recover damages for injuries sustained by tbe plaintiff through tbe alleged negligence of the defendant.

      William G. Trull and J. Gerald Irwin, Jr., for tbe appellant.

      John Ha/rdy, for tbe respondent.
   Daniels, J. :

Tbe verdict was recovered for the damages tbe plaintiff sustained from an injury to and substantial loss of one of his eyes, by an accident which occurred while he was in the employment of the defendant. He did machinist’s work on the running gear of the company’s cars. A few days before the accident the company purchased a force pump to be used in applying whitewash to its premises. It had been used for that object when it became clogged or obstructed and the plaintiff was sent for to remove a cap over the apparatns, to permit it to be again placed in working order. And as he was engaged in doing that, and when he had loosened one of the screws holding the cap in its place, the whitewash was blown into his face and eyes by the compressed air, causing the injury which has been made the subject of complaint. The evidence sufficiently tended to prove that the service was being performed under the directions of the defendant’s superintendent, to make that a proper question of fact for the jury. And as he seems to have had the entire control and management, under the directors, of the practical part of the company’s business, the action might very well be maintained for any want of care, or negligence on his part, producing the accident. The important inquiry, therefore, must be whether there was any want of reasonable care attributable to him in the directions given to the plaintiff to render this service.

The pump was manufactured by a company engaged in that business, and was subjected to the ordinary test to discover whether it was in any respect defective. And it was selected after that for the defendant by a person who had an acquaintance, derived from experience in the use of the same apparatus. There was evidence in the case on the part of the plaintiff that the work on the interior of the pump had not been smoothly finished. But that could only be discovered by taking the pump apart, and that was not done until after the accident. And as the accident itself was not shown to have been caused in any degree by that defect it can form no circumstance of importance in the decision of these appeals.

The proof tended to show that the pump had become obstructed and clogged by so much wet lime passing into it as to prevent the solution from passing through it, and it was necessary to remove the cap to relieve it by the removal of thé compound. This, according to the uneontradicted testimony of one of the witnesses, had been done by himself on other occasions with other pumps without the least danger from any explosion of the lime. And there was nothing whatever at this time indicating that it would be attended with any danger in this instance. Apparently the apparatus was in good condition, and it was in all respects as observable by the plaintiff when he was directed to perform this service as it was by the superintendent, or any other person who was present at the time. The plaintiff himself testified on his cross-examination that there was nothing about the machine that appeared to me, that I could detect, that looked dangerous, or as if the act which I was about to perform would result in danger or injury to me; nothing at all; I didn’t know what the machine was; I didn’t know there was anything the matter with the machine; it was a new patent machine they were experimenting on ; I did not look at the machine; I was not there long enough to see whether there was any danger or not; I did not inquire as to what the condition of the machine was; I made no inquiry at all. As he observed it, there was nothing to admonish caution, or to suggest inquiry or investigation. • And the other persons present appear to have been as free from every suspicion of danger as himself.

The witness Guenther had previous experience in the use of the machine for disinfecting purposes, as he stated, in twenty or thirty stables. He was asked, what was the matter with this one, “ and said two chances to one the lever got clogged; * * * I couldn’t say what was the matter with it until the cap was taken off: I have taken off the cap before and I thought it was the proper thing to do.” He testified further: “I said the cap must be taken off; to loosen the cap,” and then some one went and brought Hr. Kelly. He further stated that he had handled these machines for about four months prior to that time, and had no idea or intimation that there was any danger about it. Nor was any evidence given that there was danger in the removal of the cap, being attended with or followed by an explosion of the contents of the pump. And from this, as well as all the evidence in the case, there was no cause for suspecting injury to the plaintiff in the performance of his work. And there was, therefore, no want of care on the part of the superintendent in not taking precautions to guard against any possible occurrence of the nature of that which took place. As there was no cause for apprehension, there was no negligence in omitting to guard against accidents. What the law exacts from tbe employer is tbe exercise of reasonable care and intelligence for tbe protection and safety of tbe persons employed. And when that is observed, tbe happening of wbat at most is only a possible accident, is part of tbe risk of tbe employment. It is an unforeseen incident of tbe business against which tbe person employed is required to guard and protect himself. (Probst v. Delamater, 100 N. Y., 266; Webber v. Piper, 109 id., 496.)

Tbe only fact which had come to tbe knowledge of the superintendent which was not expressly brought to the notice of the plaintiff was that the machine had become obstructed with the whitewash drawn into it. And there is no reason for supposing that his conduct was in the least influenced by the want of that knowledge, since there was no ground for expecting that the forceable expulsion of tbe whitewash would follow the loosening or removal of the cap. As tbe evidence disclosed the facts, the charge of negligence on the part of the defendant was not sustained, and the exception taken to tbe refusal to dismiss tbe complaint was well founded.

Tbe judgment should be reversed and a new trial ordered, with costs to the defendant to abide the event..

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

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


text:
    ALFRED ELDRIDGE, Respondent, v. THE ATLAS STEAMSHIP COMPANY (Limited), Appellant.

      Negligence — use of a steam winch by a sea/man — contributory negligence.

    In an action to recover tie damages resulting from an injury to the plaintiff’s left hand, caused by a steam-winch on board the defendant’s steamer, it appeared that the plaintiff shipped as a seaman at the city of New York, and on the morning of the day of the accident was ordered to attend to the working of a winch, in order to control the motion of which the person operating it was required to extend his hand over the wheels to the valve. When the winch was in motion the noise caused by it was so great as to prevent the operator from hearing orders given by the person in charge of the business, and he was obliged to watch that person and operate the use of the winch in accordance with different motions of his hand. While extending his hand across the winch to reach and operate the valve the plaintiff’s fingers were caught between the wheels and the injury complained of was received.
    Evidence was given tending to show that the winch was unsafe by reason of its being uncovered where the wheels were exposed, while the defendant proved that no accident had previously happened from it, and that the hand of the operator, extended to reach the valve, was not required to go nearer than from six to ten inches of the wheel.

      Held, that, in view of the position occupied by the plaintiff, his obligation to obey the orders of his superiors, and the confidence which would be inspired by such orders when given, he was not chargeable with contributory negligence in this case.
    That it was not error to refuse to charge, that if the plaintiff had an opportunity of seeing the winch before the ship sailed, he must be assumed to have sailed with a knowledge of its condition, and could not recover for an injury caused thereby.
    Appeal by tbe defendant from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of tbe county of New York on tbe 20tb day of February, 1890, after a trial before tbe court and a jury at tbe New York Circuit, at wbicb a verdict for $3,750 was rendered for tbe plaintiff.
    Tbe action was brought to recover for injuries received by tbe plaintiff while in tbe defendant’s employment.

      Everett P. Wheeler, for tbe appellant.

      Jacob Fromme, for tbe respondent.
   Daniels, J.:

Tbe plaintiff sustained a severe injury to bis left band, resulting in tbe loss of three of bis fingers, in operating a diagonal steam winch on board tbe defendant’s steamer Alvena” on tbe 23d of November, 1886, at Aspinwall. He shipped as a seaman and signed articles prior to tbe commencement of her voyage at tbe city of New York; and was ordered on tbe morning of tbe day of tbe accident to attend to tbe working of this winch in shifting cargo, and be obeyed, as it was stated be was bound to do, that order.

There were three winches used upon tbe steamer for similar objects, and tbe other two were horizontal and covered, and not liable to accidents of tbe nature of that encountered by the plaintiff. These others bad been in use for about twelve years, and were comparatively noiseless. This diagonal winch had preceded the improved winch, had been in extensive use, but had given place to the others when changes were made. It consisted in a lifting apparatus, operated by a steam valve and a large and small cog wheel. And to reach the valve, to control the motion of the winch, the person operating it seems to have been required to extend his hand over the wheels to the valve. When the winch was in motion the noise caused by it was so great as to prevent the operator from hearing orders given by the person in charge of the business over him, and he was obliged to watch that person and regulate the use of the winch from different motions of his hand. The evidence of the plaintiff, which was corroborated by that of other witnesses, is, that he was rendering his services in this manner, and was extending his hand across the winch to reach and operate the valve, when his fingers were caught between the wheels and this injury received.

There was no controversy as to the fact that this winch was uncovered, or that the plaintiff received his injury while he was engaged in operating it. Evidence was given that it was unsafe for want of being covered where the wheels were exposed, and on the part of the defendant that no accident from it had previously happened, and that the hand of the operator extended to reach the valve was not required to go nearer than from six to ten inches of the wheels.

At the close of the plaintiff’s ease the defendant’s counsel moved for a dismissal of the complaint for want of evidence of negligence, and also for the further reason that this was a risk of the plaintiff’s employment, and the accident resulted from the plaintiff’s own want of care. At the close of the case the motion was renewed. And the defendant excepted to its denial on each occasion.

Upon a previous trial the complaint was dismissed, but that was set aside and a new trial ordered by this General Term, whose decision was a sufficient authority for the submission of the case to the jury. (Eldridge v. Atlas Steamship Co., 55 Hun, 809; 28 N. Y. State Rep., 501.) The further evidence given by the defendant was added to that which had previously been taken. But it was in no respect so controlling as to require the points in controversy to be withheld from the jury There was, accordingly, no error in the denial of these motions. The.plaintiff occupied a position in which lie was bound to obey tbe orders of his superiors; and in undertaking to operate tbe wincb, in tbe condition in wbicb it was, be bad reason to believe it could be safely done. Confidence of that nature would naturally be inspired by tbe orders wbicb were given, and when it emanated from a person whose order tbe subordinate has bound bimself to obey, as tbe plaintiff as a seaman in tbe service of tbe steamer bad become bound, that cannot fail to be a fact of importance in tbe inquiry involving tbe care of tbe person rendering tbe service. And while tbe defendant was not bound to obtain and supply for this service tbe best possible apparatus, it was bound to render that wbicb was to be used reasonably secure and safe. And wliat bad been done to secure that end, -with tbe other two in use, was suggestive, at least, of tbe propriety of adding that or a similar or equivalent safeguard to this diagonal wincb. And as it bad failed to do that, after acquiring tbe knowledge supplied by tbe other winches, and wbicb it must from their employment be assumed to have obtained, there was sufficient to render tbe case one for tbe jury on each of these controlling inquiries. ■

Photographs were produced upon tbe -trial, and a photograph of winch No. 2, wbicb was not tbe wincb in question, was shown to tbe witness Burrows, and be was then asked whether tbe frame on the left-hand side was a protection against tbe cog wheels -to tbe man standing there and working tbe wincb. Tbe witness was not allowed to answer tbe question, and tbe defendant’s 'counsel excepted to this ruling. But from tbe form of tbe question-it cannot be determined that it bad any pertinency to the case. ■ It might or might not, for all that appeared, have been a protection for that wincb without shedding tbe slightest light upon either issue in tbe action. Tbe same witness was asked whether a man could not, in this country, leave tbe ship after be had signed articles, in ease he did not like the looks of her. A nd an exception was taken to the ruling excluding the answer. Whether be’could leave or not was not important, for tbe plaintiff did not attempt to leave. He was not bound to do so even if he bad seen the uncovered condition of this wincb before the steamer sailed, which be denied having done. Tbe answer, even if it bad been favorable, would have been wholly unimportant, for the reason that be remained and subordinated bimself to tbe orders which were given him.

Whether he was competent to perform the duties of quartermaster after this injury to his hand was not to be determined by the opinion of the witness who was interrogated as to that fact. That depended upon the services to be performed and the apparatus to be used, which could have been clearly stated and described, and in that manner brought within the comprehension of the jury, who would then have been as able to infer what the ability was, as well certainly, as the witness. And when that may be done the fact is not one to be proved by the expression of an opinion, which was all that was ashed of the witness.

Neither was there error in the refusal to charge that, if the plaintiff had an opportunity of seeing the winch before the ship sailed, he must be assumed to have sailed with the knowledge of its condition, and cannot recover for an injury caused thereby. This request presented a clear non sequiter, and also placed the plaintiff’s right to maintain the action wholly on the opportunity to see, whether he had seen or not. But without acquiring knowledge of the fact itself, the opportunity to discover it would not justify a verdict for the defendant. If he entered the employment of the ship with knowledge that the winch was uncovered, then the court, at the request of the defendant’s counsel, did charge that he could not recover, but the verdict must be for the defendant. And that was going fully as far as either the law or the facts required the court to interfere for the exoneration of the defendant.

The action was one for the jury, and neither of the exceptions can be sustained, nor was their verdict of $3,750 in any degree excessive.

The judgment and order should be affirmed.

Yan Brunt, B- J., and Brady, J., conciuTed.

Judgment and order affirmed.


text:
    WILLIAM GASKELL and Others, Respondents, v. WILLIAM H. BEARD, CHARLES N. KIMPLAND and DUNCAN A. GILLIES, Appellants, THE HILTON TIMBER AND LUMBER COMPANY and Others, Respondents.

      Corporation— covemed by the woi'ds “person or persons" in the lien Icm, section 1824, chapter 410 of 1882 — errm' in the amount stated in the notice of lien to be due.

    A corporation may file a notice of lien, under section 1824 of cliapter 410 of the Laws of 1882, although such statute provides that such lien may be filed by “any person or persons,” as a corporation, is as completely within the intention of the section as a natural person would be, and is equally entitled to its protection. When persons are mentioned in a statute corporations are included, if they fall within the general reason and design of the statute.
    Although the statute (Laws of 1882, § 1825, chap. 410) provides that the notice shall state the amount claimed, from whom it is due, or to become due, “ giving the amount of the demand after deducting all just credits and offsets,” etc., yet where, without any fraudulent intent, and through mistakes on the part of the persons having in charge the details of the business, the amount claimed in the notice of lien is considerably greater than the amount shown by the evidence to be due, the lien will be enforced, notwithstanding such error in the amount claimed in the notice.
    Appeal by tbe defendants William H. Beard and Charles N. Kimpland from the following parts and portions of a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 29th day of May, 1890, that is to say:

      First. Eróm so much and such parts of said judgment as determines that the defendant, the Hilton Timber and Lumber Company, has the first lien upon the amount of money declared by said judgment to be due and owing to the defendant Duncan A. Gillies by the defendant, the Mayor, Aldermen and Commonalty of the City of New York.

      Second. From so much and such parts of the said judgment as determines that the plaintiff herein have the second lien upon the amount of money declared by said judgment to be due to the defendant Duncan A. Gillies by the defendant, the Mayor, Aldermen and Commonalty of the City of New York.

      Third. Erom so much and such parts of the said judgment as determines that the lien of the defendants William H. Beard and Charles N. Kimpland upon the moneys declared by the said judgment to be due to Duncan A. Gillies by the Mayor, Aldermen and Commonalty of the City of New York, is the third lien thereon, and subsequent to the alleged lien- thereon of the Hilton Timber and Lumber Company and of the plaintiffs.

      Fourth. From so much and such parts of said judgment as directs the comptroller of the city of New York to pay over to the defendant, the Iiilton Timber and Lumber Company, out of the fund in his hands due from the Mayor, Aldermen and Commonalty of the City of New York to Duncan A. Gillies, the sum of four thousand four hundred and ninety-two dollars and twenty-one cents ($4,492.21).

      Fifth. From so much and such parts of said judgment as directs the comptroller of the city of New York to pay to the plaintiffs herein the balance of the said fund due from the Mayor, Aldermen and Commonalty of the City of New York to Duncan A. Gillies, which balance is by said judgment fixed at the sum of two thousand eight hundred and thirty-two dollars and thirty cents ($2,832.30).
    Also an appeal by the defendant Duncan A. Gillies from the following parts and portions of the said judgment, that is to say:

      First. From so much and such parts of the said judgment as determines that the plaintiffs herein have the second lien upon the amount of money declared by said judgment to be due to the defend ant Duncan A. Gillies by the defendant, the Mayor, Aldermen and Commonalty of the City of New York:' •

      Second. From so much and such parts of said judgment as directs the chamberlain of the city of New York- to pay to the plaintiffs herein any of the moneys to the credit of the said fund due from the Mayor, Aldermen and Commonalty of the City of New York to Duncan A. Gillies, which sum is by said judgment fixed at the sum of two thousand eight hundred and thirty-two dollars and thirty cents ($2,832.30).
    The action was tried before a referee, who filed his report, by which, among other things, the validity of the several notices of lien filed, and the amount due to the several parties filing such notices of lien, were determined.

      Matthews & Smith, for the appellants.

      Benjamin Estes, for the plaintiffs, respondents.

      S. B. Brownell and S. R. Johnson, for the Hilton Timber and Lumber Company, defendant, respondent.
   Daniels, J.:

An action was commenced by William Gaskell and others against Duncan A. Gillies and others to enforce a lien for materials supplied to the defendant Gillies in the removal of an old wharf, and the construction of a new one at the foot of Rivington street in the city of New York. Another action was commenced for a like object in. favor of William H. Beard and another against Duncan A. Gillies and others. These actions, by consent and on motion, were consolidated, and were afterwards tried together before the referee. By his report he found that there was payable to Gillies under his contract for the work the sum of $7,324.51, which was in the hands of the comptroller, to be paid as the balance of the contract-price still owing by the city of New York. Against this balance the Hilton Timber and Lumber Company, which was a corporation formed under the laws , of the State of Georgia, and a defendant in the action, filed with the head of the department or bureau having charge of the work, and with the comptroller of the city, notices in the form prescribed by section 1825 of chapter 410 of the Laws of 1882, claiming a lien upon this balance for timber furnished and delivered to the contractor in the performance of this work. The plaintiffs Gaskell and others filed a similar notice in their own behalf for materials in like manner furnished and used, and so did the plaintiffs Beard and Kimpland, to enforce a lien in their favor against this sum of money. The balance was insufficient to satisfy the demands existing in favor of these different claimants. The referee concluded that the Hilton Timber and Lumber Company, which was a defendant in both actions, was entitled to be first payed out of the balance, and the firm of Gaskell and others to be next paid, and the plaintiffs Beard and Kimpland to be entitled to payment after the other two demands had been discharged. This left the plaintiffs Beard and Kimpland without sufficient money applicable to the payment of their debt, and they accordingly appealed from the judgment entered upon the report of the referee. The contractor Gillies also appealed from so much of the judgment as sustained.the claim of Gaskell and others as a second lien upon the balance remaining unpaid to him for the work done under his contract.

In support of the appeal of the plaintiffs Beard and Kimpland, the position has been taken that this company was not entitled to enforce its lien against the balance due to the contractor, for the reason that it was not a person, and could not be included in so much of the statute as relates to and provides for this remedy. The objection is that the law has secured the remedy only to any person or persons who shall hereafter, as laborer, mechanic, merchant or trader, in pursuance of or in conformity' with the terms of any contract made between any person or persons and the city, perform any labor or furnish any material toward the performance or completion of any contract made with the city, on complying with the next section, shall have a lien for the value of such labor or materials, or either, upon the moneys in the control of the city, due or to grow due under said contract with said city, to the full value of such claim or demand, and these liens may be filed and become an absolute lien to the full and par value of all such work and materials, to the extent of the amount due, or to grow due on said contract, in favor of every person dr persons, who shall be employed or furnish materials to the person or persons with whom the said contract with the city is made, or the sub-contractors,” etc. (§ 1824.) And that a corporation is not a person. This section of the law has been very broadly expressed, and its general intention evidently was to create a lien in favor of all persons performing labor or furnishing material to a contractor with the city, to enable him to perform and fulfill his contract. And no reason has been evinced for making any distinction in the right to the lien between a natural and artificial person, as a corporation is recognized as being in judgment of law. The remedy was designed to be general, without discriminating in favor of or against the party by whom the materials should be supplied or the service should be rendered. What was the design of the legislature was to prescribe and create this security in favor of the party who should furnish the materials or perform the service mentioned in it. And a corporation is as completely within this intention of the section as a natural person would be, and is equally entitled to its protection. For, as a matter of justice, no distinction can possibly exist between the merits of a claim for materials furnished by a corporation and an individual, but each is entitled to be equally supported and each may be fairly assumed to be a person within the intention of the act. It will be seen that it has not provided, by the most critical implication, that the person or persons to be protected shall be natural persons, but the provision is that any “ person or persons ” furnishing the material or performing the labor or service shall be entitled to the lien. And a corporation is a person within the meaning of this language. As to the effect of such legislation, it has been stated that “ the construction is, that when £ persons ’ are mentioned in a statute corporations are included if they fall within the general reason and design of the statute.” (Angelí & Aúnes on Corporations [10th ed.], § 6.) And this seems to follow from the legal definition of a corporation, and that is, that it is an artificial person. (Marshall v. Baltimore, etc., R. R. Co., 16 How. [U. S.], 314, 327.)

In the case of United States v. Amedy (11 Wheat., 392) the defendant was indicted for destroying a vessel with intent to prejudice the underwriters. And whether it could be sustained or not depended upon the construction to be given to the language of an act of congress declaring it to be an offense to do the act charged, with intent or design to prejudice any person or persons that had underwritten any policy or policies of insurance thereon. It was insisted, in support of a motion to arrest the judgment, as the insurance was made by a corporation, that no offense had been established within the act. But the court held the objection not to be well taken, and said that “the mischief intended to be reached by the statute is the same whether it respects private or corporate persons. That corporations are in law, for civil purposes, deemed persons is unquestionable.” (Id., 412.) This principle of construction was again applied in Society, etc., v. Town of New Haven (8 Wheat., 464). That case arose under the treaty with England, declaring that there should be no future confiscations made, nor any prosecutions commenced against any person or persons, for or by reason of the part which he or they may have taken in the present war, and that no person shall, on that account, suffer any future loss or damage either in his person, liberty or property. And this was considered to be so broad as to include the case of a corporation. In the case of Beaston v. Farmers’ Bank, etc. (12 Peters, 102), a similar question arose under another statute of the United States securing it priority in the payment of its debts. And it was objected that a corporation was not within the construction which should be given to the language of the act. But in the opinion of the majority of the court it was said that, “ no authority has been adduced to show, that a corporation may not, in the construction of statutes, be regarded as a natural person ; while, on the contrary, authorities have been cited which show, that corporations are to be deemed and considered as persons when the circumstances in which they are placed are identical with those of natural persons expressly included in such statutes.” (Id., 134.) And this principle is directly applicable to the disposition of this objection, for the position and relation of the company to the contractor, and the justice of its demand, were identical with those of natural persons endeavoring to enforce the same remedy. In People v. Rector, etc. (22 N. Y., 44), a corporation was held by the Court of Appeals of this State to be a person within the meaning of that term as it was contained in the statute of limitations. (Id., 57.) And the principle was also generally followed in Risley v. Phenix Bank (83 N. Y., 318). And it is well supported by the legal rule that it is the duty of courts so to construe statutes as to meet the mischief which the law was intended to remedy, and to advance the remedy when that may be done without violating fundamental principles.. (Dibble v. Hathaway, 11 Hun, 571.) The referee was accordingly entirely right in overruling this objection as he did at the trial.

A further objection was taken in behalf of the plaintiffs Beard and Kimpland to the allowance of the debt of the Hilton Timber and Lumber Company on the ground that it had exceeded in its notices the amount actually owing to it for the timber which it had delivered. The amount claimed in favor of the company was the sum of $4,716.69, while the debt, as it was maintained by the evidence, was for the sum of $4,221.82, which presented an overcharge in its notices amounting to $494.87. The law, by section 1825 of chapter 410 of the Laws of 1882, has required the notices which are allowed to be filed to be verified by oath or affirmation. And that the notice shall state the amount claimed, from whom it is due, or to become due, “giving the amount of the demand after deducting all just credits and offsets,” etc. And because the correct amount of the demand was not stated in the notices, this firm having the third in the order of notices filed, resisted the right of the company to a recovery. It is no doubt true that the intention of the act is, that a correct statement of the indebtedness or claim should be inserted in the notices. This is required not only for the protection of the contractor himself, but also for that of the subsequent creditors -who have similar claims against him. The law intends that a truthful statement shall be made, and has required as much as that from the creditor making it. And if this overcharge remained without any explanation, it might be inferred that a fraudulent augmentation of the debt was intended by the creditor, which would prejudice the claims of others as justly entitled to satisfaction. And that, under the authorities, would be sufficient to defeat a recovery by the creditor chargeable with the fraud. (Lynch v. Cronan, 6 Gray, 581; Hoffman v. Walton, 36 Mo., 613; Foster v. Schneider, 50 Hun, 151; Hubbell v. Schreyer, 15 Abb. [N. S.], 300, 304; Reeve v. Elmendorf, 38 N. J. Law [9 Vroom], 125; McPherson v. Walton, 42 N. J. Eq., 282.) And the case of McMillan v. Seneca Lake, etc., Company (5 Hun, 12) proceeded upon no departure from this strict rule. For there the excess consisted of no more than the demand for interest, which the court held might be rejected as surplusage. The case of Morgan v. Taylor (5 N. Y. Supp., 920), seems to be a departure from the principle maintained by the other authorities. But it is-not necessary to determine how far it could be followed in the disposition of these appeals. For evidence was given upon the trial directly tending to prove the fact to be that the overcharge made-by the company in its notices was the result of mistakes on the part of the persons having charge of the details of its business. The-evidence given to establish this fact was quite satisfactory. It explained the source and the manner through which the error had been produced. And it was proved that it arose out of no disposition to charge against the contractor’s balance any more than was actually owing by him to the company. And the referee, for that reason, considered that the statute did not require so strict a construction as to produce a forfeiture of this demand, as has now been insisted upon in support of the appeals. And in following that construction the case has proceeded no farther than litigated controversies are permitted to be carried in the correction of mistakes, and avoiding their consequences. That such a mistake will not justify the exclusion of the demand containing it was held in Harrington v. Dollman (64 Ind., 255). And so it was in Kiel v. Carll (51 Conn., 440). And in Odd Fellows Hall v. Masser (24 Penn., 507), it was stated by the court that in these proceedings what was required was good faith. And that appears to have been observed by the persons in charge of the business of the company. A similar objection was considered in Allen v. Frumet, etc., Company (73 Mo., 688). There items aggregating $1,779 were erroneously included in the demand. This was proven to have arisen out of a mistake as to the location of a furnace, and not from any intention to defraud. And it was for that reason held not to invalidate the whole, lien, especially where no. one has been injured by the mistake, and the items are easily separable from the balance of the account.” (Id., 692, 693.) These authorities, as well as the reason and equity of the statute, sufficiently support the conclusion adopted under the evidence by the referee, to require so .much of the judgment as is in favor of the Hilton Timber and Lumber Company to be sustained.

The resistance made by the plaintiffs Beard and Kimpland and the contractor Gillies, to the demand allowed in favor of Gaskell & Co., has been placed upon a very similar state of facts. They included in their notices articles which had been used to improve their own property, and forming no part of the materials appropriated to the construction of the pier. But it was proved upon the trial that this arose out of a mistake and from erroneous advice given to the creditors by their counsel. How he could have supposed that the materials supplied and used for an entirely different and distinct object could be included legally in the claim made against the contractor’s balance is somewhat mysterious. But evidence was given from which the referee considered this fact to have been established. It was undoubtedly a liberal view adopted by him for the protection of the creditor against the obvious mistake of his counsel. And as the evidence did directly tend to exhibit this to be the fact, it should not now be held that the referee in his generosity had taken too charitable a view of what was shown to have occurred, for the creditors themselves do not appear to have been responsible for the error brought about in this manner in the statement of their claim. They, on the other hand, appear to have been disposed to demand no more than they were legally entitled to claim. There was no fraudulent enhancement of their demand, as was the case in several of the authorities which have been cited; and the rule which those authorities sustain should not, therefore, be enforced against these plaintiffs. By the disposition which was made of their claim no more has been allowed or recovered than it was entirely just they should receive.

The referee has added to his report a very carefully considered opinion. And for the reasons which he has assigned, and which have also now been stated, this judgment should be affirmed.

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

Judgment affirmed.


author: Brady, J.:

text:
    In the Matter of the Assessment of Tax upon Collateral Inheritances in the Estate of WORTHINGTON ROMAINE.

      The personal property in the State of New York of a non-resident, domiciled in another State, is subject to the New York collateral inheritance tm.

    By the provisions of tlie statutes (chapter 483 of 1885, as amended by chapter 713 of 1887), relating to the collateral inheritance tax, the estate of a non-resident of this State, domiciled in another State, who dies, in such latter State leaving no wife or children, and leaving personal property, consisting of bonds and stocks, deposited for safe-keeping within the State of New York, is liable to taxation thereon under such statutes.
    The fiction of law that personal property, when the subject of taxation, attends the owner and has its situs at his domicile, must yield to the express provisions of the statute which imposes such tax upon the property of a non-resident.
    Appeal by Amasa A. Redfleld, sole surviving administrator of tbe goods, etc., of Worthington Romaine, deceased, and by Mason Romaine, Charles N. Romaine and Dora M. Romaine, from an order of the Surrogate’s Court of the county of New York, made and entered on the 6th day of December, 1889, appointing an appraiser in the above-entitled matter; and also from an order or decree of said court, made and entered on the 22d day of March, 1890, confirming the report of said appraiser and assessing a tax upon the property and interests of the collateral next of kin of said deceased; and also from an order or decree of said Surrogate’s Court, made and entered on the 23d day of April, 1890, adjudging that the property and. interests of the said next of kin are subject to the operation of chapter 713 of the Laws of 1887.

      E. L. Eedfield, for the administrator and others, appellants.

      B. F. Eos Passos, assistant district attorney, for the People, respondent.
   Brady, J.:

Romaine, the decedent, died intestate m Virginia in 1888. He left neither wife nor child. His domicile was in Virginia. He left property in this State which was claimed to be subject to taxation, and upon which a tax was imposed and assessed. Part of the property consisted of bonds and stocks, and was contained in a safe or deposit box and vault rented by the decedent from the Stuyvesant Safe Deposit Company in the city of New York.

The tax was imposed under chapter 483 of the- Laws of 1885, as amended by chapter 713 of the act of 1887. The part of the act of 1885, presenting the question herein to be discussed, is as follows:

“After the passage of this act all property which shall pass by will or by the intestate laws of this State from any person who may die seized or possessed of the same while being a resident of the State, or which property shall be within this State,” etc.

The alteration made by the'act of 1887, to which reference has been made, was accomplished by the , insertion of a clause after the words “ while a resident of this State or,” as follows: “ If such decedent was not a resident of this State at the time of his death.”

Under the act of • 1885, which was considered in this department in the Matter of Tulane, who was a resident of the State of New Jersey (51 Hun, 213), and which is a kindred case, it was determ, ined that the property of the deceased was not subject to the tax provided for, inasmuch as it had neither passed by will nor by the intestate laws of this State, and had not been transferred by deed, grant, sale or gift; but had passed by the intestate laws of the State of New Jersey, although situated in this State, a case not within the language or the spirit of the statute. And it was subsequently held in the Matter of Enston (113 N. Y., 174) that property within this State which passed by will or intestacy from a non-resident decedent to collateral relatives or strangers, was not taxable under the act of 1885; and it would seem, prior to its amendment in 1887, that the act of 1885 applied only to property so passing from any person who may die seized or possessed of. the same while being a resident of the State, and to property within the State owned by a resident and transferred inter vivos, to take effect after the death of the transferrer. This decision was made by a divided court; Judge Finch concurred with Judge Danforth, who wrote the dissenting opinion, and in which the learned dissenting judge insisted that the manifest purpose of the act of 1885 was, that property within this State belonging to a decedent, who was a non-resident at the time, should be taxed under its provisions; and it is said in the dissenting opinion : It is conceded by the learned counsel for the -appellant that the confusion thought to l?e apparent in the words of this act is cured by the amendatory act of 1887 (chap. 713).” The learned judge then refers to the corresponding features contained in that statute, and particularly to the words “ if such decedent was not a resident of this State at the time of death,” and says that they supply by explicit designation what was implied in the former act, and facilitate the interpretation of other clauses, although he thought them superfluous.

The learned surrogate in deciding this case regarded the foundation of the argument of the learned counsel for the administrator as a legal fiction, namely, that the property sought to be subjected to the tax attends the owner and has its situs at his domicile, and expressed the view that the general rule as to the situs of personal property could not be disputed, but must give way in all cases where, as said by the Court of Appeals In re Enston [supra), there is something in the policy of the statute or its language which shows a different legislative intent, and then suggests that the policy of the statute of this State imposing a succession tax upon property which was within the State of a person, resident or non-resident thereof at the time of his death, seemed wholly opposed to this rule. And this view is regarded as unanswerable.

In the concluding opinion of Andrews, J., in the Matter of Enston [supra), he declared that the Law of 1887 so amended the act of 1885 as to subject to its operation the property within this State of a non-resident decedent, and that the amendment furnished some evidence that prior thereto the proper construction of the section, according to the understanding of the legislature, did not include within its operation such property.

Whatever may have been the view entertained by the courts of the provisions of the act of 1885, there is no doubt, so far as expressed by the opinion of the court of last resort in the Matter of Enston, that the amendment of 1887 subjected property within the State of a non-resident decedent to the tax provided for by the acts under consideration. The fiction to which the learned surrogate made reference in his opinion was one discussed by Judge Andrews. It was looked upon as one subject to the policy of the statute or its language, which showed a legislative intent to destroy it, which was clearly done in that statute. The language of the act of 1887 seems so clearly to embrace the property of a non-resident decedent in this State at the time of his death that no controversy can be well maintained with regard to it. It, therefore, applies to property within this State of a non-resident decedent and subjects it to a tax.

For this reason the order appealed from should be affirmed, with ten dollars costs and disbursements.

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

Order affirmed, with ten dollars costs and disbursements.


author: Beady, J.:

text:
    In the Matter of the Petition of JAMES C. HAZLETON to Vacate an Assessment for Thirteenth Avenue from Twenty-third to Twenty-fourth Streets.

      Assessment—proceedings to vacate—laches in malcing the application — effect thereon, of the payment of the assessment—statute of limitations.

    In an application, under chapter 388 of the Laws of 1858, and its amendments-(sections 897-914, chapter 410 of 1882), the petition, in proceedings to vacate an assessment, was served upon the counsel to the corporation of the city of New York on August 17,1880. A notice of the application for an order vacating the assessment upon the petition, and the proofs which had been taken in the meantime, was not served until February 12, 1890.
    The application was made upon the grounds that the assessment, which was confirmed March 9, 1875, was for a repavement laid in violation of law and in violation of chapter 326 of the Laws of 1840. It was conceded in the case that there was no tax valuation, and that, under the Law of 1840, an assessment could not be made for a local improvement above the amount of one-half of the assessment for the purposes of taxation, and also that non-assessment for the purpose of taxation, was a sufficient ground for vacating an assessment for a local improvement.

      The objection of the corporation counsel rested upon the ground: That the court had no jurisdiction to reduce the assessment, because no notice of the application was given to the counsel to the corporation until more than ten years after its confirmation.

      Held, that the petition having been served on the counsel to the corporation within the time, and no objection having been taken at the time that the application was made to the court upon such petition, some years thereafter, that there was a waiver of any such ground of objection on the part of the counsel to the corporation.
    A second ground of objection was that the assessment could not be vacated after payment thereof had been made to the city.

      Held, that, as the payment in this case was made after the proceedings to vacate the assessment had been commenced, the right of the applicant to relief was not' affected thereby.

      Mattel' of Lima (57 N. Y., 170) distinguished.
    That the statute of limitations was not a bar to the right of the applicant to relief, as although the application was not made to the court within ten years after the confirmation of the assessment, yet the proceedings to vacate the assessment were instituted within such ten years.
    Appeal by the Mayor, Aldermen and Commonalty of the City of New York from an order made at the New York Special Term on the 20th day of March, 1890, in the above-entitled action, by which it was adjudged that the assessment for the Thirteenth avenue paving, between Twenty-third and Twenty-fourth streets, in the city of New York, confirmed on the 9th day of March, 1875, and imposed upon the lots mentioned and described in the petition in this matter, be vacated, and that the lien created thereby, or by any subsequent proceedings, cease, so far as the same affects such lots, and that the comptroller and collector of assessments of said city, and the clerk of arrears of the said city, be directed to cancel and vacate the said lien of record on said lots in the books and records of their office.

      George L. Stirling, for the Mayor, etc., appellant.

      P. A. Hargous, for the petitioner, respondent.
   Beady, J.:

This proceeding was instituted under chapter 338 of the Laws of 1858, and its amendments, which were subsequently incorporated into the consolidation act. (Laws 1882, §§ 897-914, inclusive, chap. 410.)

The papers were served on the counsel to the corporation on the 17th of August, 1880, but the notice of the application upon the petition, and the proofs which had been taken in the meantime, were not served until February 12,1890. Although the petition was served on the 17th of August, 1880, as already mentioned, the notice :of application for the order vacating the assessment was founded upon the petition and the proofs which were subsequently taken. In the petition the following reasons were stated as the grounds upon which the petitioner relied for success, viz.:

I. Because there is included in said assessment, and assessed upon the lots of your petitioner, the cost of work for which no contract was made, in conformity with the provisions of the charter of 1873, nor were any bids made for doing said work, or any part thereof, or any competition therefor.

II. That the work, for the expense of which said assessment is imposed, was done without any authority of law, and there are included therein expenses not authorized by law.

III. That said assessment is for a repavement laid in violation of law, and is in violation of chapter 326, Laws of 1840.

It is contended by the learned counsel for the. corporation that no evidence was offered to sustain either the first or second of these reasons, and that the respondent must rely upon the third, namely, that the assessment is for a repavement laid in violation of law and is in violation of chapter 326 of the Laws of 1840. It is conceded by him that there was no taxed valuation and that, under the law of 1840, no assessment can be assessed for a local improvement beyond the amount of one-half of the assessment for the purposes of taxation (chap. 326, Laws of that year), and also that non-taxation or non-assessment for the purpose of taxation is sufficient to vacate an assessment for a local improvement. Such is the established rule. (Matter of Second Ave. M. E. Church, 66 N. Y., 395; Matter of Cram, 69 id., 452; Matter of Schell, 76 id., 432.)

And the reliance of the learned counsel is upon two points: First. That the court had mo jurisdiction to reduce the assessment, because no notice of the application was given to the counsel to the corporation until after the payment of the assessment, and more than ten years after the confirmation. It appears, however, by the points presented by him that the petition was served on the counsel to the corporation on August 17, 1880, and, therefore, that the proceeding to vacate the assessment was instituted at that time. It is true that the application to the court founded upon the petition was not made until some years afterward; but no objection upon that score appears to have been made at the time the application was presented or the proofs taken, and, therefore, the doctrine of waiver might be invoked if it was necessary, which it is not. If the appellant desired to dispose of the proceeding an application could have been made for that purpose. The appellant will not be permitted to indulge in laches and then to take advantage of them. Therefore, there is no force in the first objection.

Another reason assigned why the order should be vacated is, that, after payment of the assessment, the court has no jurisdiction to vacate or reduce the amount of an assessment. This proposition rests upon the decision in the Matter of Lima (77 N. Y., 170). In that case, however, no proceedings had been instituted to vacate the assessment, in which respect it differs from this case. It does not apply therefore. When the payment, is made, after proceedings commenced to vacate, it does not affect the right of the applicant to relief. (Matter of Hughes, 93 N. Y., 512; Purssell v. Mayor, 85 id., 330.)

It is also suggested that the statute of limitations barred the right of the respondent to relief, upon the assertion that the application to be of any validity'must be made within ten years after the confirmation of the assessment. Here the proceeding was instituted within ten years. Indeed, it was instituted within six years after the assessment was imposed.

It is also insisted, upon a series of authorities, that the petition must clearly and definitely state the particular respects in which the assessment is claimed to be illegal, and that a reason not stated in the petition cannot be inquired into. The answer to that is, that it is definitely stated in the petition that the work was done without any authority of law; that it was a repavement, and that it was in violation of chapter 326 of the Laws of 1840. It is too late now for the counsel to the corporation to effectively urge such an objection. It should have been, but was not, interposed at the time the proofs were taken or the petition presented, but if this be not a correct view of the subject, the allegation that the assessment was unauthorized by law was sufficient to cover the requirements of the case, in addition to which,'however, there is a direct allegation that it was in violation of the Laws of 1840, chapter 326. Admitting that there was an extraordinary lapse of time between the presentation of the petition and the hearing upon the merits, the delay cannot be wholly charged upon the respondent for the reason already suggested, that the appellant could have urged the proceedings to a determination. But, in addition to that, the Court of Appeals in the Matter of Rosenbaum (119 N. Y., 24), wherein-it appeared that the petition was presented in 1812, some proof taken in 1880, and the hearing in 1888, did not regard the delay as prejudicial to the petitioner’s right to be heard and relieved. Beyond this, and lying at the very foundation of this proceeding, and not overcome and not to be questioned, is the fact that there was no authority whatever for imposing the assessment, and the efforts to defeat the petitioner are seemingly entirely technical.

For these reasons the order appealed from should be affirmed.

Van Brunt, P. J., and Daniels, L, concurred.

Order affirmed.-