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

text:
    E. W. BLISS COMPANY, Respondent, v. THE OPERA GLASS SUPPLY COMPANY, Appellant.

      Attachment — requisites of an afjiduroit made, on behalf of a corporation, for an attachment — what is proof that a sum is due the plaintiff ‘‘over and above all counterr-claims.”

    Section 686 of the Code of Civil Procedure, subdivision 1, requires, upon an application for an attachment, an affidavit showing that the plaintiff is entitled to recover a sum stated therein, “over and above all counter-claims known to him.”

      Held, that where a former executive officer of a corporation, with whom the actual transaction took place, and his successors, who had charge of its books, made affidavits that the corporation was entitled to recover of the defendant a certain sum over and above all counter-claims “known to deponent,” the above-provision was reasonably complied with, and that jurisdiction ivas conferred thereby; and that it was not necessary that such an affidavit should he made by every officer of the corporation.
    (Van Brunt, P. J., dissenting.)
    Appeal by the defendant, The Opera Glass Supply Company,, from an order entered in the clerk’s office of the county of New York, on the 19th day of May, 1891, denying its motion to vacate an attachment granted in the above-entitled action.

      A. B. Masten, for the appellant.

      James B. Dill, for the respondent.
   Barrett, J.:

The sole ground upon which a reversal is here claimed is that the affidavits upon which the attachment was granted do not show a right to recover the sum sued for “ over and above all counter-claims ” known to the plaintiff.

The cause of action is fully established by the affidavit of Mr. Porter, who was the plaintiff’s secretary and treasurer at the times mentioned in the complaint, and who had personal knowledge of all the matters in question. Mr. Porter states that the plaintiff is entitled to recover from the defendant the unpaid balance claimed in the complaint “ over and above all counter-claims existing in favor of the defendant and against the plaintiff, known to the deponent.” The present secretary of the plaintiff, Mr. Copp, makes a similar statement with regard to counter-claims.

The appellant’s objection to these statements is that, as Mr. Porter does not appear at the present time to be an officer of the plaintiff, he cannot know whether any counter-claims have arisen in favor of the defendant since he ceased to be an officer, and that, as Mr. Copp has no personal knowledge of the transactions set forth in the complaint, he cannot know anything on the subject.

These objections are not well taken. Mr. Copp may not have had any personal connection with the original sale and delivery of the goods, and yet he may be perfectly competent to make the requisite affidavit with regard to the. existence or non-existence of claims against the company. This is not a case where the principal may have knowledge of a claim existing against himself, of which his agent is entirely ignorant. Here the principal, as such, can have no knowledge. It would, for instance, be absurd for one of its officers to state that the corporation was entitled to recover the claim sued upon over and above all counter-claims known to it. When, therefore, one of the executive officers of a corporation Avliose duties are such that he would naturally knoAv of the existence of claims against the company, states that there are no such claims to his knowledge, the statute is reasonably complied with and the jurisdiction attaches. The object of the statute is to secure a defendant against an attachment for a larger amount than is really recoverable. This is just, and so far as may be necessary to effect that end the statute should be strictly enforced. At the same time .a plaintiff should not be deprived of his rights by a too technical .adherence to the letter of the law, or by too great strictness as to .the form in which the necessary evidence is presented. Thus, in Buell v. Van Camp (119 N. Y., 160), the Court of Appeals held that where there were several individual plaintiffs the affidavit of one of them to the effect that a cause of action existed against the ■defendants, “ over and above all counter-claims and set-offs known1 to deponent,” was a sufficient compliance with the statute and showed that the plaintiffs were entitled to recover the sum stated in the ■affidavit over and above all counter-claims known to them,” If such .a statement was sufficient in the case of individuals, it certainly .should not be deemed insufficient in the case of corporations. The .argument that the individual affiant may be ignorant of a counter - ■claim which is, perhaps, well known to some of the other plaintiffs is quite as strong as the argument that the president or. treasurer of •a corporation may know of some claim against it which is unknown to the secretary.

To require every executive officer of a corporation to make the .affidavit against counter-claims before permitting if to apply for an attachment would be unreasonable and oppressive. And such ■extreme technicality is not required adequately to secure the defendant against an abuse of process. In Ruppert v. Haug (87 N. Y., 144), the Court of Appeals held that it was enough if the affidavit ■showed this fact as to the absence of counter-claims “ to the satisfaction of the judge who receives the application for the warrant, but there must be some evidence,” citing Steuben County Bank v. Alberger (78 N. Y., 258), where the same court said : “ If we could gather from them (the affidavits) any fact, however light, which tended to ■show the existence of the statutory conditions, the judge would have acquired jurisdiction.” In the case at bar the secretary of the ■company would have been as likely to know whether the defendant had any counter-claims against the plaintiff as any other of its officers. In addition to his other duties he naturally had charge of the books ■of the corporation, in which all transactions, involving either debit or credit, are usually recorded. These books he states that he resorted to before verifying the complaint. The previous secretary ■•showed the entire absence of any counter-claim -while he remained an officer of the company, which was as late as the last item in the account. The present secretary, with the books before him, states that he, too, knows of no counter-claim. This was surely sufficient to confer jurisdiction upon the judge who granted the attachment. It was certainly some evidence of the absence of any such counterclaim. And, unless it was necessary to add the testimony of all the other officers of the company as to their ignorance of any such counterclaim, it was reasonably sufficient. ¥e have, in fact, no doubt from the affidavits presented, without contradiction or explanation, that the plaintiff is entitled to recover from the defendant the amount ■claimed over and above all counter-claims.

The order appealed from should, therefore, he affirmed, with costs.

Patterson, J., concurred.

Yan Brunt, P. J.:

I dissent. I do not think that the affidavit was a compliance with the provisions of the Code. All that the case of Buell v. Van Cam¶ decides is that such an affidavit conferred jurisdiction upon the court below, and, as in such a case the Court of Appeals has no power of review, it affirmed the order, but the General Term may review and should review, even where jurisdiction has been obtained, and when such jurisdiction has been improperly exercised they should reverse. In the case at bar the provision of the Code has not been complied with, and as an attachment is an extreme remedy, its issuance is justified only when letter and spirit of statutory requirement are complied with.

Order affirmed, with costs


source: Caselaw Access Project

author: Barrett, J.:

license: Public Domain

text:
    GIBSON W. FAIRMAN, Appellant, v. CHARLES B. BRUSH and Another, as Executors of JOHN McLAREN, Deceased, Respondents.

      Referee — the court may require him to malic further findings.

    The court has inherent power to send a case back to a referee, in order that lie-may make any further findings which the interests of justice may require.
    This power is analogous to that exercised by the court over its judgments, records- and proceedings, and there is nothing in sections 1022 and 1023 of the Code of. Civil Procedure which prevents the court from exercising it in such a case.
    Appeal by the plaintiff, Gibson W. Fairman, from an order entered in the office of the clerk of the county of New York, on the 4th day of April, 1891, denying his motion to require the referee in this action to make further findings.

      Theodore B. Oates, for the appellant.

      B. Estes, for the respondents.
   Barrett, J.:

There is nothing m sections 1022 and 1023 of the Code of Civil Procedure which deprives the court of power to require proper findings. These sections undoubtedly change the former practice whereby findings originally insufficient in form or indefinite in substance might be clarified upon the settlement of the case. This, was all that was decided in Gormerly v. McGlynn (84 N. Y., 284), where the revisers’ note to section 1023 was referred to, and their view was seemingly approved, that the method of proceeding by motion to compel findings, where the referee refuses to make them at all, has not been abolished.

Oases where the power in question has been denied have proceeded either upon a misapprehension of what was decided in Gormerly v. McGlynn, or upon a too narrow view of'what was-contemplated by sections 1022 and 1023.

Ye have no doubt that the Special Term has power, in the interest, of justice, to add to the findings made by it, and-we think it equally clear that the court may remit his findings to a referee for a similar-purpose. "We so held in McInerny v. Schultheis (Law Journal, April 22, 1891), and we see no reason for altering the opinion there expressed. This is a power which is so far inherent that it would require an express prohibition to deprive the court of its exercise. It is analogous to the power always exercised by the court over its judgments, records and proceedings in the interest of justice.

In the present case the application should have been granted. The finding that the plaintiff rendered services for the testator which the latter paid in full, is too indefinite to raise the questions-presented. The referee should have found specifically on each of the items of the plaintiff’s demand, and then he should have specifically found the amount paid.

The order should be reversed, with costs, and the motion granted-

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

Order reversed, with costs, and the motion granted.


author: Daniels, J. :

text:
    ALFRED N. WILDMAN, Appellant, v. JOHN VAN GELDER, Respondent.

      Attachment — what facts show a disposition of property with a fraudulent intent to-defraud creditors — a check is “property ” — a single creditor is entitled toth& protection of the statute.

    A stockholder of a corporation agreed to pay to a trustee for the corporation an assessment made upon his stock, provided that the corporation delivered to said stockholder its check for an equal amount in payment upon an indebtedness ■ owing by it to him, the proceeds of which latter check the stockholder agreed to apply to the payment of his own. The check of the corporation was delivered to the stockholder, who collected it and used the proceeds for a purpose other than the one agreed upon, and then stopped payment on the check which he had given to the trustee for the corporation.

      Held, that these facts indicated an intention, on the part of the stockholder, to defraud the corporation, and were sufficient to justify the granting of an attachment under subdivision 2 of section 636 of the Code of Civil Procedure.
    That the check of the corporation was ‘ ‘ property” within the meaning of said section.
    That the disposition of any property by the debtor, with intent to defraud a creditor, brought the case within the spirit of the provisions of said section relative to the disposition of property by a debtor “ with the intent to defraud his creditors,” and that any creditor thus defrauded was entitled to bring an action to redress the injury done.

      Appeal by tlie plaintiff Alfred N. Wildman from an order entered in tbe clerk’s office of tbe county of New York on the 26th day of March, 1891, denying his motion to vacate an attachment granted in the above-entitled action.

      Edwa/rd Lymcm Short, for the appellant.

      J. E. Eustis, for the respondent.
   Daniels, J. :

The attachment was issued on the ground that the defendant had .assigned and disposed of property with the intent to defraud the plaintiff, his creditor. To establish this recital it was proved by the affidavits that the defendant, as a stockholder in the Hat Sweat Manufacturing Company, had agreed to pay an assessment to the plaintiff, as trustee for the company, amounting to the sum of $1,200, provided the company would deliver to him its check for the same amount upon an indebtedness of the company to him, and that t[ie check of the company should be used and applied by him to pay his own check delivered to the plaintiff, as trustee, and on the faith of which the latter agreed to and did pay the assessment for the defendant. He made and delivered his check to the plaintiff, dated July 28, 1890, but at his request its presentment for payment was delayed until the twenty-ninth of the following month, to enable the defendant to meet and provide for the payment thereof by the check of the company, which on that day was made and delivered to him to be used in that manner by him. But instead of using the check received by him for that object he ■stopped tbe payment of his own check which he had made and delivered to the plaintiff, and otherwise appropriated and disposed •of the check made and delivered by the company to him. These were substantially simultaneous transactions, resulting in a fraud upon the plaintiff. He had been induced by the defendant to hold his check until he received the company’s check for the same amount which was delivered to him to be used only to meet his ■own check delivered to the plaintiff. And when he received the ■company’s check he stopped payment to the plaintiff and used the company’s check for another object. These facts create the presumption that the defendant all along, and when he received the company’s check, intended to defraud the- plaintiff by inducing-him to pay the assessment to the company, with the assurance that he would be reimbursed by the company’s check, but which, when it. should be received, he would appropriate to a different object, and which he finally did. They warrant the conclusion that in the disposition of the check the defendant intended to defraud the plaintiff.

It is undoubtedly the law that the intent to make a fraudulent, disposition of the debtor’s property must not only be averred, but. it must also be supported by the facts. (Fleitmann v. Sickle, 13 N. Y. St. Rep., 399; Morris v. Talcott, 96 N. Y., 100, 107;. Bump v. Dehany, 12 N. Y. Supp., 901.) But these facts are reconcilable with no other inference than that the defendant did intend to defraud the plaintiff in the disposition which he made of the company’s check. It was received upon a disputed claim of indebtedness, to be used for a special object, and at once diverted by the defendant to another, which necessarily had the effect of defrauding the plaintiff out of the use to wrhich the check had been specially devoted. To entitle the creditor to an attachment for the disposition of the debtor’s property, the law does not require the disposition of all the debtor’s property, or any particular portion of it, to defraud his creditors, but it has been provided in case it shall be made to appear that the debtor has assigned, disposed of, or secreted, or is about to assign, dispose of or secrete property with the intent to defraud his creditors. (Code Civil Pro., § 636, sub. 2; Taylor v. Myers, 34 Mo., 81.)

The cheek delivered to him was property, and the intent to defraud the plaintiff by its disposition is very fully disclosed by the facts which the affidavits maintain. And he, as a creditor, is as much within the spirit of this provision as two or more, or any other number of the debtor’s creditors would be, whom he intended to defraud by the disposition of any part of his property. (Sherrill v. Bench, 37 Ark., 560; Correy v. Lake, Deady, U. S. Rep., 469.)

The order should be reversed, with ten dollars costs and the disburseifients, and the motion denied.

Lambert, J., concurred.

Order reversed, with ten dollars costs and disbursements, and the motion denied.


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

text:
    THE BRUSH ELECTRIC ILLUMINATING COMPANY, Appellant, v. THE CONSOLIDATED TELEGRAPH AND ELECTRICAL SUB-WAY COMPANY, Respondent.

      Electrical sub-ways in New York city — the occupation of a sub-way by a corporation binds it to pay the rent fixed, — equitable relief not granted where a legal remedy exists — relief as to the past rent — the power of the court limited to that conferred by section 7, chapter 716, Latos of 1887 — eviction of corporations using the electrical sub-ways.

    By chapter 584, Laws of 1884, the legislature directed that all telegraphic, telephonic and electric light wires should, in cities having a population of 500,000 or over, he placed under ground, and, hy chapter 499, Laws of 1185, created, in cities having a population exceeding 1,000,000, a board of commissioners of electrical sub-ways, to build such sub-ways for all corporations of that nature.
    .Such a board, in 1886 in the city of New York, entered into a contract with a sub-way company for such construction, and in April, 1887, a further modified contract was made; this permitted the defendant “to fix a fair scale of rent,” but provided that the scale of rentals should, at all times, be subject to the control of said board, to which any dispute in this regard should be referred for final decision.
    ■Said contract, as modified, was confirmed by chapter 716, Laws of 1887, section 7 of which provided that if it should be made to appear to the satisfaction of any of the justices of the Supreme Court, or of any judge of the Common Pleas or of the Superior Court, or to the satisfaction of either of said courts, that the said board or the said sub-way company had violated or failed to perform any of the provisions of the acts above cited or of said agreement, or had failed to furnish to corporations desiring to use the sub-ways just and equal facilities “ upon terms that to the court shall appear just and reasonable,” then said judge or justice or court might, by “ proper proceedings in the nature of a writ of mandamus, or by mandamus," enforce the provisions of said acts and of said agree, ment, or compel the granting of such facilities.
    In 1888, the sub-way company completed certain sub-ways and announced a tariff, which was known to an electric illuminating company which applied for and obtained space in such sub-ways. After paying a small part of the rent, the illuminating company declared the same unreasonable and refused to make any further payment. The sub-way company subsequently notified the illuminating company that unless payment was made it would remove from the subways the latter’s apparatus. The illuminating company then brought an action in order to have a fair scale of rentals determined hy the court, and asked that all action on the part of the sub-way company, the defendant therein, be in the meantime stayed.
    Upon a motion made to continue a preliminary injunction during the pendency of the action:

      Held, that the motion should be denied.

      'That the occupancy of the sub-ways by the plaintiff, with knowledge of the rental demanded, constituted a contract with the defendant to pay that rental.
    'That if the plaintiff deemed the rent as fixed unreasonable, it was its duty under chapter 716, Laws of 1887, to have first submitted the question to the arbiter appointed by said statute, to wit the Board of Commissioners of Electrical Bub-ways.
    That in the absence of fraud the decision of said board would, it seems, be final.
    'That in any event equity could not be invoked by a company which was in default, and which had not paid or secured the payment of tlie rent which it knew was asked by the defendant.1

    That neither equity nor section 7 of chapter 716, Laws of 1887, could relieve the plaintiff in regard to rent which had become due before the commencement of the action.
    That no general jurisdiction was conferred by said section 7 of chapter 716 of the Laws of 1887 upon the court as a court of equity; and that the remedy there given, by mandamus, or proceedings in that nature, must be strictly pursued.
    That under said section 7 the court had power to do only such acts as, under its provisions, a judge could do out of court.
    That the defendant had a right to resort to the remedy of eviction upon the failure of the plaintiff to pay the rentals announced by the defendant.
    Appeal by tlie plaintiff, tlie Brush Electric Illuminating Company, from an order entered in the clerk’s office of the county of New York on the 5th day of June, 1891, denying its motion to continue an- injunction heretofore granted in this action, restraining the defendant, its officers, attorneys, agents and servants from removing, or in any way whatsoever interfering with, the cables and electrical conductors or any property of the plaintiff, and from interfering with the plaintiff, its officers, agents or servants in ■operating and maintaining said cables or conductors, or having access to them, or any of the plaintiff’s property, in the defendant’s sub-way, constructed or to be constructed, and from instituting or prosecuting any action or proceeding for the purpose of removing from said sub-way, or otherwise interfering with, tlie property of the plaintiff; and also vacating the temporary injunction.

      Eselt, Oowen, W. P. Putney, B. F. Einstein and Paul D. Oravath, for the appellant.

      J. O. Garter, F. R. Ooudert, Edward Zauterbaeh, M. Egleston and W. Zf. Cohen, for the respondent.
   Yan Brunt, P. J.:

Tlie plaintiff in this action, together with the plaintiffs in the other actions argued herewith, were duly incorporated for the purpose of the manufacture, use and transmission of electricity for the production of heat, light and power in the city of New York, and for a long period of time maintained poles and wires and other conductors in the streets of the city by which their currents were transmitted and distributed. Prior to the year 1887 overhead wires were exclusively used by these corporations.

In 1884 the Legislature passed an act which provided that all telegraphic, telephonic and electric-light wires and cables used in any incorporated city- of this State, having a population of 500,000 or over, should thereafter be placed under the surface of the streets, lanes and avenues of the city.

In 1885 an act was passed by which in cities having a population exceeding a million, the mayor, comptroller and commissioner of public works of such city were authorized and directed to appoint three disinterested persons who were to be a board of commissioners of electrical sub-ways, which board was charged with the responsibility of enforcing the provisions of the act of 1884, hereinbefore mentioned, and of causing to be removed from the surface and to be maintained and operated underground wherever practicable, all electric wires and cablés used or to be used in the business in any such city. Under this act it was contemplated that the electric-light companies should build the sub-ways according to plans to be submitted to the said board of commissioners; and in case of the failure of said companies to propose or put in use a suitable plan, the commissioners were directed to devise and make a general plan such as would meet the requirements of the acts of the Legislature. In 1886 the act in question was amended in some immaterial particulars. In the said year the board of commissioners of sub-ways which had been duly appointed pursuant to the act of 1885 for the purpose of carrying into effect the duties imposed upon them by that act, entered into a contract with the Consolidated Telegraph and Electrical Sub-way Company (the respondent) for the construction of the sub-ways into which the overhead electric wires were to be put. In April, 1887, the said commissioners entered into another contract with said respondent, whereby they agreed to provide, build, equip, maintain and operate sub-ways according to plans and specifications furnished therefor by the commissioners of sub-ways or their successors.

The fifth paragraph of said contract reads as follows: “ The party of the second part (the respondent) may fix a fair scale of rent to be charged according to the kind of conductors and the amount of space required therefor, which shall be at the same rate to all occupants making a like use of said sub-ways; but the scale of rentals or any charges fixed or made by the party of the second part (the respondent) shall at all times be subject to the control, modification and revision of the parties of the first part (the commissioners of sub-ways), or their successors ; and no contract shall be made between the party of the second part and any company or corporation on any terms which shall not require the payment by such other company or corporation of rents at the rates so fixed.”

The tenth paragraph of said contract reads as follows: “ In case any dispute shall arise between the party of the second part (the respondent) and any company occupying or desiring or requiring to occupy said sub-ways, the same shall be referred to the parties of the first part, or their successors, for settlement, whose decision shall be final.”

In June. 1887, the legislature passed an act by which the agreement made between the commissioners of sub-ways for the city of New York and the Consolidated Telegraph and Electrical Sub-way Company, under date of July 26, 1886, as amended and modified by a second and further contract or agreement between said parties, dated the 7th of April, 1887, was ratified and confirmed, subject, however, to the provisions of that act.

Section 7 of the act reads as follows:

§ 7. In case and whenever it shall be made to appear to the satisfaction of any of the justices of the Supreme Court, or any judge of the Court of Common Pleas in and for the city and county of New York, or any judge of the Superior Court of the city of New York, or to the satisfaction of either of said courts, that the said board constituted by this act, or its successors, or any officer or agent of said board, or its successors, or the said The Consolidated Telegraph and Electrical Sub-way Company, or any corporation or persons claiming under the said board or its successors, or under the said company, shall have violated or shall have failed to observe and fully perform or to carry into full effect all or any of the provisions of this act or of either of the acts hereinbefore mentioned, or of the said agreement, or shall have failed to furnish just and equal facilities under this act or the said agreement to any and all corporations lawfully competent to manufacture, use or supply electricity, or .to operate electrical conductors in any street, avenue or highway in the city of New York applying for such facilities upon terms that to the court shall appear just and reasonable, then and in every such case said judge or justice or court may, by proper proceedings in the nature of a writ of mcmdanms, or by mcmda/irms, enforce the provisions of this act or of the acts before mentioned, or of the said agreements, or of any agreement made under the said acts, or compel the granting of such facilities, or may grant such relief as may be proper in the premises. And the said board or its successors, or the mayor, aldermen and commonalty of the city of New York, or any person, company or corporation aggrieved by any such violation or failure as aforesaid, shall be entitled to institute and maintain such proceedings as are by this section authorized.”

The defendant, having completed a large number of miles of subways in 1888, announced a tariff which would be charged the electric-light companies for the use of the sub-ways, and, in 1889, applications were made by various of the electric-light companies for space in the sub-ways for the period of one year, some of which applications contained the rental inserted therein, and in others the rental was left blank; but all the electric-light companies making this application knew the scale of rent which the defendant had adopted for the use of the sub-ways constructed by them. These .applications having been granted by the defendant, and space assigned in the sub-ways to these various electric-light companies) they proceeded to put their wires therein and use the same for the purposes of their business. It further appears that these companies protested against the rates which were charged by the defendant for the use of its sub-ways, upon the ground that they were unjust, unreasonable and not fair; and negotiations were had between the defendant and some of these electric-light companies for a reduction of these rentals, such negotiations, however, being predicated upon ■an occupation of the sub-ways by the electric-light companies .for a series of years. Some slight portion of the rental thus claimed by the defendant has been paid, but for a long period of time, prior to the commencement of these actions, there had been a refusal upon the part of the electric-light companies to pay any rent to the defendant, .upon the ground that the rent demanded was unfair. In October, 1890, the defendant notified the electric-light companies that they were required to pay the rentals due or else to take out and remove their cables and electrical conductors from the sub-ways, and, in ■case of failure to comply with the requirements of the notice upon .a certain date, measures would be taken by the defendant for the removal or cutting out or both of the cables and conductors belonging to the electric-light companies from the sub-ways owned by the defendant. Thereupon these actions were commenced and injunctions were obtained to restrain action upon the part of the defendant. Upon the hearing of the motion to make the injunction permanent during the pendency of the action, the motion was denied, and from such denial this appeal is taken.

The plaintiff, claiming that the rental charged by the defendant is unjust and unreasonable, has brought this action to have a fair .scale of rentals determined by the court, all action upon the part of the defendant towards the collection of any rent whatever to be ■enjoined, pending the investigation of this question.

The plaintiff invokes the jurisdiction of the court upon the ground that the contracts hereinbefore mentioned provide that the defendant may fix a fair scale of rents, and upon the claim that section 7 of the act of 1887, above cited, provides that the electric-light companies may occupy ducts in these sub-ways upon terms that to the court may appear just and reasonable.

It seems to be clear, under the elementary principles which determine whether contractual relations have been entered into between parties, that the a]3plication of these electric-light companies for space in the sub-ways, with knowledge of the rental which- was claimed to be charged, the granting of these applications and the occupation of the sub-ways constituted a contract between the companies and the defendant to pay such rentals, unless there is something which is peculiar in the situation of the parties which takes .their action out of the ordinary rules governing■ the conduct of parties to contracts. It is not necessary to cite authorities for the proposition, that if A desires B to let him the use of anything which belongs to B, and he knows B’s price for such occupation, and his application being granted, he enters into such occupation, it makes a contract to pay the price.

But it is said that the electric-light companies, the plaintiffs in these actions, are not governed by this rule, because they were compelled to get out of the streets and go into the sub-ways. This is undoubtedly true. This court knows from the previous struggles of these electric-light companies which have come before it, to keep-out of the sub-ways and to conduct. their business (notwithstanding that it had become a public nuisance) by the use of overhead wires, that it was not until they were threatened with the destruction of their business if they continued to maintain a nuisance-in the streets that they consented to occupy any portion of the sub-ways which have been prepared for them. And it is also true that a very large part of that reluctance arose from the fact that it would necessarily be more expensive to use an artificial envelope for their conductors than to allow them to be surrounded by the open air. Having resisted the law to the very last moment it may be that they were compelled to enter these sub-ways rather precipitously. But for this the defendant was not responsible, and if any harsh or unfair contract was insisted upon, under the circumstances, by the defendant, the .plaintiffs had their appeal, because the scale of rents or any charge fixed or made by the defendant was at all times subject to the control, modification and revision of the Board of Electrical Control or their successors, and if the terms of the contract which had been entered into between the defendant and the electric-light companies were of such a character as required modification, an appeal was given to the Board of Electrical Control, and with but one exception, as far as we can see from the papers, no such rights were ever exercised.

But these parties, without paying or offering to pay any rental whatever, have come into a court of equity to have this rental fixed, upon the ground that it is unreasonable, without any resort whatever to the tribunal which had the power to modify the terms of the contract entered into between them and the defendant.

It is a familiar principle that, at least until all measures which the law gives to a party have been exhausted to restrain a wrong, equity -cannot be called upon to interfere. And it may well be doubted in a case of this description, where the provisions of the law (because these contracts have become law by being adopted and approved by the legislature), state that the decision of the board shall be final, whether equity can interfere unless upon proof of fraud upon the part of the board.

But it is urged that under section 7 of the act of 1887, to which reference has already been had, notwithstanding this provision of the contract, jurisdiction has been conferred upon the courts to determine and fix what is a fair and reasonable rental or to grant such relief as may be proper in case such jurisdiction is invoked.

An examination of the section, however, will show that the' court us a court of equity, has no jurisdiction conferred upon it. The whole jurisdiction conferred by that section is conferred upon a justice of the Supreme Court or a judge of the Court of Common Pleas or Superior Court, or upon either of those courts, to enforce, in a particular way, the provisions of the various acts and the various agreements under said acts, and to compel the granting of such facilities and the granting of such relief as might lie proper in the premises; and this way pointed out is, by proper proceedings, in the nature of a writ of mandamus or by mandamus, and no other jurisdiction whatever is conferred.

It is apparent that no general equity jurisdiction was intended to be conferred, because the jurisdiction conferred by this act may be exercised by a justice or a judge, and need not be by the court at all. It is true that the court may act, but the court has no power to do anything more than a judge would have the right to ■do out of court under the provisions of this act. And that this is the true interpretation placed upon this act is apparent from the last clause thereof, which is as follows: “ And the said board or •its successors, or the mayor, aldermen and commonalty of the city of New York, or any person, company or corporation aggrieved by any such violation or failure as aforesaid, shall be entitled to institute and maintain such proceedings as are Tyy this section authorized.” As has been before seen, the only proceedings authorized by this section are proceedings in the nature of a writ of mandamus. Even though, therefore, a judge or a court might, where proceedings in the nature of a mandamus had been instituted, grant such relief as the circumstances required, the very wording’ of the section excludes all other jurisdiction upon the part of a court or judge.

Again, even if a court of equity had jurisdiction, yet it could not intervene in an action of this character because of the position of the plaintiff. It alleges that the rental is unfair, but it has entered into a contract to pay this rental, and it is clear that no matter what the jurisdiction of the court may be as to rentals accruing subsequent to the filing of a bill, it would have no power to relieve the company from a debt which it has incurred prior to the initiation of these proceedings. It was bound to pay what was due before it co.uld come into a court of equity 1 and ask to be relieved from subsequent payment, even if the court had 'jurisdiction to entertain such an application, which we do not think it has. But in the case at bar it offers to pay nothing; it brings no money into court and is seeking to be relieved from a debt ’which it owes to this defendant, by the intervention of this court, upon the theory that it made a contract which it was improvident for it to make; and that, being compelled by the force of circumstances and the fear that its business might be destroyed, to make this contract, it ought not to be held to it.. We know of no rule of equity jurisprudence which justifies a court in intervening under such circumstances. But it is claimed that even if there had been a valid agreement upon the part of the plaintiff to pay rentals at the rate charged, its failure to pay would not justify the defendant in its threatened conduct.

It is conceded that the letting of these sub-ways is not leasing an interest in real estate, and, therefore, under no circumstances could a possessory action to recover possession of the space occupied by these electric-light companies as real estate be maintained. And it is clear that a possessory action for the recovery of personal property will not lie, as replevin could not be had to recover a hole in the ground.

The nature of the rights conferred upon this plaintiff by the contract which it entered into with the defendant is peculiar, because of the situation of the parties and the thing leased and the purpose for which it is rented. The fact, however, that the thing rented can neither be considered real estate nor personal estate cannot deprive the defendant of the protection of the law in the use of its property as against one who has entered upon its enjoyment under a contract which it has willfully violated.

As has already been stated, under these circumstances equity will not intervene, because the proposed action of the defendant would, at most, be a trespass, the damages for which might be easily ascertained. As far as the interruption of the business of the plaintiff is concerned, that could not be considered, because it has no right in equity to continue its business at the expense of the defendant.

The position taken by the counsel for the appellant, upon the argument of this appeal, was, that the only remedy of the defendant was to sue for the amount of these rents, and in case the occupants of the sub-ways failed and the amount could not be collected upon execution, in the case of a corporation, to have the corporation dissolved, and to have a receiver occupy the sub-ways during the pendency of the dissolution proceedings, with the right of the purchaser from the receiver to continue the occupation, and so on ad infl/rvittmi without a cent of rent being paid. Such a result never could receive the sanction of law, and unless the court is pointed to some plain, well-established principle which necessarily brings about such a result, it would hesitate before it interfered under such circumstances.

It might well be claimed that the rights of this defendant, in reference to the occupation of its sub-ways by the plaintiff, is similar to the right of a passenger to occupy a place in the train of a common carrier. It is well established, both at common law and by statute, that a common carrier has the right to eject a passenger who refuses to pay his fare. And, for the same reason, it would seem that when the plaintiff refuses to pay the compensation which it agreed to pay for the occupation of these sub-ways, the defendant would have a right to eject it from the vehicles in which it had been allowed to place its wires for the purpose of the conduct of its business. The position of the plaintiff in the conduct of its business by means of these sub-ways, by and with the consent of the defendant, seems to be like that of a licensee. It is permitted to conduct its business through this space over which the defendant has control, upon a promise to pay a certain remuneration. Failing to comply with its contract upon which the permit depended, the right to continue to conduct its business by means of these subways necessarily ended, and the defendant had a right to prevent its continuance.

We are of opinion, therefore, that a court of equity could not intervene, certainly until this plaintiff has paid what was due before the commencement of these proceedings, and that probably the sole jurisdiction of the court is controlled by section 7 of the act of 1887, and can be invoked only in the form of the proceedings therein prescribed in a proper case.

The order should be affirmed, with costs.

Barrett, J.:

While unreservedly concurring in the result arrived at by the presiding justice in this case, and in the other cases presented at the same time, I prefer to state briefly the conclusions at which I have arrived. These actions proceed upon the theory that the plaintiffs obtained access to certain allotted ducts in the defendant’s ■sub-way without having made any valid or binding contract as to rent, and they ask the court to determine what would be a just and reasonable rent. In the meantime they ask us to enjoin the defendant from disturbing them, and in the end to enjoin the defendant from, collecting any greater sum as rental than the sum finally adjudged in these actions to be just and reasonable. Thus, without alleging what would be a just and reasonable rent, without furnishing a particle of proof upon that head, without giving any reason for the absence of either such allegation or proof, and without tendering or even offering to bring into court any given sum deemed by them to be just and reasonable, the plaintiffs ask us to grant an injunction which will permit their continued occupancy of the allotted duets, without one penny of immediate compensation to the defendant. What, in fact, do they offer pending this litigation ? Nothing whatever but a phrase.. They say in their complaints that they “ have always been ready and willing to pay to the defendant a fair and just and reasonable rental for these ducts.” In plain terms, therefore, the plaintiffs, in the name of equity, invoke a positive abuse of judicial power. Having secured possession of the ducts without any contract as to rent, they boldly ask us to keep them there pendente lite in the full and complete enjoyment of all the rights and privileges of tenancy, freed from any of its corresponding duties or obligations. Upon the plaintiffs’ own complaint, therefore, there was not a particle of equity in the application which was denied. If there was no contract, the plaintiffs were in possession as bare licensees, and upon their refusal, after due notice to remove, they became trespassers. This view of the true relation of the parties, is not affected in the least by the fact that, under the legislation confirming the contract between the commissioners of electrical sub-ways and the defendant, the plaintiffs had an undoubted right to the due allotment of necessary space in the sub-ways. But the further claim made by the plaintiffs, that such right was absolute and could not be preliminarily conditioned upon reasonable terms and regulations, is, in my judgment, preposterous. The time to settle the question of rent and all other terms was when the plaintiffs applied for space. The defendant had a perfect right, and, indeed, it was its duty, to refuse to permit any company to occupy the sub-ways until the contract therefor was complete. The law is sufficiently exjfiicit in this regard. The defendant, could fix what it deemed a fair scale of rentals, and if the companies agreed to that scale, well and good. That settled the question.

If, however, the companies deemed such scale to be unfair or unreasonable, an arbiter between them and the defendant was provided, namely, the Board of Electrical Control. That board had full revisory power with regard to such rentals, and in the absence of fraud or bad faith its decision was final and binding upon both parties. It is entirely clear that the plaintiffs were bound in the first instance to appeal to this board in case the rates fixed by the defendant were deemed unreasonable. It is equally clear that the court could not revise or reverse the honest judgment of that board, and that the companies could not appeal to the court, even after an unsuccessful appeal to the board, without averring fraud or bad faith. In case, however, the board should refuse or neglect to act promptly upon the companies’ appeal, a summary remedy was provided by section 7 of the act of 1887. The object of the provisions of this latter section was to secure the granting of just and equal facilities, upon fair and reasonable terms, to all applicants alike. The plaintiffs, however, neither appealed to the board to revise the rentals fixed by tlie defendant, nor to the court to proceed by mandamus under this section Y. They simply took possession of tlie allotted space under written applications, some of which specified the rentals and others did not. In the latter instances it is, however, conceded that the companies were aware of the rates of rentals which the defendant had fixed. I agree with the presiding justice that the facts are sufficient to establish a contract relation between the companies and the defendant as to these rentals. The plaintiffs, however, were not even then without redress. They could still appeal to the Board of Electrical Control, which was authorized at all times to control, modify and revise either the scale of rentals or any fixed charges. While such appeal is afforded to them they cannot, I repeat, appeal to the courts. Certainly not, as already pointed out, without showing fraud or bad faith oh the part of the board. If, therefore, the plaintiffs are in possession without a contract, the defendant has a perfect right to treat them as licensees and to remit them to their original position as outside applicants in quest of possession. If, hovrever, they are in possession under a contract, they must abide by its terms or seek its modification in the only manner authorized by law. They cannot come into court and ask to be upheld in their naked possession until at some future time, and by means of an investigation utterly unknown to any court, whether of law or equity,-“the fair thing,” so to speak, between the parties has been arrived at.

With regard to the question as to whether the defendant can, under any circumstances, resort to the remedy of eviction, I think the plaintiffs must be held to the position assumed in their compfiaints. They do not admit the tenancy under a completed lease, but simply claim that they are in possession under an implied agreement to give them a lease upon fair and reasonable terms to be judicially ascertained. Thus their attitude in the interim, as we have already seen, is necessarily that of licensees. They are in possession, they say, without a contract, under the right, however, which the law gives them, and the duty which the law imposes xrpon them, to place their conductors in the sub-way. Still, they are there as mere licensees until a- contract, such as the law authorizes and even compels the defendant to impose, is entered into. Upon the case made by the plaintiffs, therefore, there can be no doubt of the defendant’s right to remove an apparatus which simply trespasses upon the sub-ways. But I agree with the presiding justice that, even upon the defendant’s case of a completed contract, the right exists to remove the plaintiffs’ apparatus for non-payment of the agreed rentals. When the nature and object of the sub-ways are considered, it becomes apparent that the ordinary rules which govern as between landlord and tenant can have no application. The sub-way is a great public work, authorized for a specific purpose and constructed with a view to a special service. It stands to-reason that when the conditions upon which the service is granted have been broken, such service may be discontinued and the facilities afforded by the structure withdrawn. To limit the defendant, to the ordinary action to recover money would be subversive of the entire system thus inaugurated. Supposed analogies with regard to possessory actions are misleading. For the defendant, though a. private corporation, has here public duties to perform, duties, which require that it should grant or withhold the service under-reasonable rules and regulations — never, of course, arbitrarily. It is, for instance, bound to supply the city of New York and each of its several departments, free of charge, with all the space necessary for their electrical conductors. It is also bound to-economize the space in the sub-way so that no one company shall occupy more than it actually needs to the exclusion or detriment of any other company. It is further bound to charge the same rates-to all occupants making a like use of the sub-ways. Again, when its net annual profits exceed ten per cent upon the actual cash capital invested by it in constructing and equipping the sub-ways, the excess is required to be paid into the treasury of the city of New York. Then, too, the management and control of the spaces-occupied by any company is subject to the rights of all other occupants, and expressly to such reasonable rules and regulations as the defendant may make. Other provisions might be adverted to, but I have specified enough to show the quasi public character of the duties imposed upon the defendant, and the necessity, if it is to perform its functions successfully, of regulating the space under its control in such a manner that no one non-paying company shall have the right of permanent occupancy and continuous service to-the detriment not only of the city and the defendant, but of others who are willing to pay and who may thus be crowded out by a non-paying occupant.

I think, therefore, that payment of the agreed or fixed rentals is an essential and reasonable condition to the use of the allotted «pace, and that the defendant should not be interfered with in resuming possession of such space, and again offering it for electrical purposes, except in a case of real oppression and injustice. No such case has here been made out. On the contrary, an injunction under the circumstances disclosed would plainly he both unjust and oppressive.

I concur, therefore, for these reasons, in the affirmance of the orders appealed from.

Patterson, J.:

I have but little to add to the opinion of the presiding justice which covers the material points discussed on the argument of this appeal. The several plaintiffs entered into the occupation of space in the conduits of the defendant under an absolute obligation to pay for their use. That they were compelled to do so by law cannot affect that obligation, for such compulsion resulted from a necessity connected with the public safety; their business, as theretofore conducted, being dangerous to the community. At the time they entered into the occupation of the space referred to -they knew not only that they were required to pay, but also the rates established. Under such circumstances an implied contract arose to pay that rent unless a different one were fixed by the tribunal created by the law to regulate rentals, which, as I read the statute and the contracts, is, in the first instance, the Board of Electrical Control. Even assuming that this court or a justice thereof, or the judges of the Court of Common Pleas or of the Superior Court, have, under the seventh section of the act of 1887, a right to fix rents under any circumstances, I do not think that provision can be construed as being retroactive or as relating to anything more than the fixing of rents after the jurisdiction has been invoked; for it is not to be assumed that the court can control or administer this property of the defendant, or interfere with past relations between it and the plaintiffs as to an adjustment of rents, any more than it could between private parties who had entered into contract relations from which an implication of law would arise as to an amount of rent to be paid for the use or occupation of property; and it is entirely immaterial how this sub-way may be catalogued as property, or whether the relation of landlord and tenant exists, or the defendant is to be regarded as a carrier furnishing facilities for transportation, or whether it is to receive rent eo nomine (which the statute distinctly provides for), or a sum of money as compensation. Whatever it may be called, the defendant is entitled to its recompense, and that is for services rendered and facilities afforded; and it is simply impossible that a construction can be given to these acts which would enable the plaintiffs to go on, from year to year, using the sub-way in their business, with dilatory proceedings in courts, by appeals from adjudications fixing rates; and then, if they are dissatisfied, abandoning the use and leaving the defendant to nothing but mere common-law actions.

I agree with the presiding justice that whatever power the court may have over the subject is limited by the statute, but if general equity rules are applicable, the plaintiffs must put themselves in a position to show they are entitled to the consideration of a court of equity. That can be done only by securing to the defendant, either by a deposit iof money or by a sufficient bond, the amount of rent which they knew was charged at the time they entered into occupation, which was either $1,000 a mile as fixed by the defendant, or $900 a mile, which seems to have been considered by the Board of Electrical Control a proper sum. ' Nothing whatever has been done by either of the plaintiffs in that direction, and the court will not now make any order concerning it, for the case must be determined on the facts as they are presented in the record, and were submitted to the judge in the court below.

We are not called upon to interfere with the course of the defendant, nor to point out to either party what is the remedy for the nonpayment of this rent. It is sufficient that no case has been made for the interference of the court by in junction, and if the defendant transcends its legal right in preventing the use of the sub-ways by the plaintiffs, the latter have their adequate remedy at law.

Order affirmed with costs.


author: Yan Brunt, P. J.:

text:
    ANN FARMER, as Administratrix, etc., of HENRY FITZSIMMONS, Deceased, Plaintiff, v. THE MANHATTAN SAVINGS INSTITUTION, Defendant.

      Savings bank — payment of a depositor’s money in appm'ent violation of its rules — not protected by a collusive judgment — the question of negligence is one for the jury.

    Among tlie rules of a savings bank in the State of New York, to which one Fitzsimmons, a depositor, had assented, were the following : “The officers and clerks will endeavor to prevent frauds on depositors, but all payments made to any person producing the proper deposit pass-book, shall be good and valid payments ; ” and also the further rule, that “ On the decease of any depositor the amount standing to the credit of the deceased shall be paid to his or her legal representatives.”
    The depositor died in 1874 in Pennsylvania, of whose death the bank was informed, and one Carew was there appointed his administrator, and was subsequently, in 1877, discharged.
    Several unsuccessful attempts were thereafter made by one Devlin, who had got possession of the pass-book, to obtain the money from the bank ; and, in 1888, Devlin commenced an action against the defendant to recover the deposit. A referee was agreed upon in the action, whose office was in the same building with that of the attorney for the defendant; the plaintiff’s attorney prepared the defendant’s answer and the referee’s report, and paid all the expenses of obtaining the judgment, but taxed no costs against the defendant. The judgment in that action was that the defendant pay the money to Devlin.
    In an action brought against the savings bank, by an administrator of the goods, etc., of the depositor Fitzsimmons, subsequently appointed in the State of New York, to recover such deposit:

      Meld, that the judgment was apparently collusive and did not, in view of the second rule of the bank, above stated, protect the bank in its payment.
    That there having been a devolution of title by operation of law, and said rale of the bank providing in such case for a payment to the legal representatives of the depositor only, the question should have been submitted to the jury whether, upon all the facts, the bank had not been negligent in making the payment to Devlin.
    Exceptions of tlie plaintiff, Ann Parmer, as administratrix of Henry Fitzsimmons, deceased, taken upon a trial at tlie New York Circuit, before the court and a jury, at which her complaint' was dismissed, whereupon the court, by an order made on the 23d day of March, 1891, directed said exceptions to be heard in the first instance at General Term, and that judgment be in tlie meantime suspended.

      Abram Kling, for the plaintiff.

      Ira D. Warrren, for the defendant.
   Yan Brunt, P. J.:

On the 12th day of February, 1862, one Henry Fitzsimmons, a ■Oatholic priest, a resident of Wilkesbarre,'Pa., opened an account with the defendant. When he opened this account he signed his name to the signature-book, containing the rules and regulations of the defendant, among which were the following :

“ The officers and clerks will endeavor to prevent frauds on ■depositors, but all payments made to any person producing the proper deposit pass-book shall be good and valid payments.” And also the following:

On the decease of any depositor the amount standing to the credit of the deceased shall be paid to his or her legal representative.”

A bank-book was at the same time delivered to him containing an entry of the deposit made at the opening of the account. He ■continued to make deposits, which were entered in the same book up to the 31st of July, 1872. In June, 1874, he died at Wilkes-barre, and in July 1874, Francis Oarew, a Oatholic priest, was appointed administrator of his estate. Before the death of Fitzsimmons, Ann A. Devlin came into possession of this bank-book, and repeatedly presented the same to the defendant and demanded payment of the money, which the defendant refused. In July, 1886, the said Ann A. Devlin presented to the bank this book; her own affidavit to the effect that the book had been given to her causa mortis ; a certificate that Carew had been appointed administrator of Fitzsimmons’ estate, and an affidavit or statement by said Carew that Ann A. Devlin was entitled to receive the money, upon the face of which statement it also appeared that on the 18th of April, 1877, the said Carew had been discharged as administrator, .and again demanded payment. Thereupon, in 1888, Ann A. Devlin commenced an action against the defendant to recover this •deposit. An answer was interposed and the case was referred to a referee; and after a trial, which resulted in a judgment against the defendant for the amount of the deposit, the defendant paid this judgment to Ann A. Devlin in April, 1888, and received from her the bank-book given to the intestate in 1862 in satisfaction of the judgment.

It further appeared that the plaintiff’s attorney prepared the complaint and the defendant’s answer, and that the referee, who was agreed upon, occupied offices in the same building with the attorney for defendant, and that the plaintiff’s attorney prepared the decision and paid all the expenses of obtaining the judgment, and entered the same without costs against the defendant. ■ On the fifth of October following tire payment of the judgment, the plaintiff in this action took out letters of administration in this State, and commenced this action to recover the deposit from the defendant.

Upon the trial these facts appeared and the plaintiff requested to go to the jury, among other things, upon the point as to whether the defendant was negligent in paying the money to said Devlin, under all the facts presented by the testimony in the case. This request being refused and an exception taken, the court dismissed the complaint and an exception was taken thereto; which exceptions the court directed to be heard in the first instance at the General Term.

We think that the refusal to submit this question of negligence to the jury was clearly error. The administrator having been discharged from his trust, his representations in regard to the right of Ann A. Devlin to receive this money could have no greater or other effect than the representations of a stranger in regard thereto.

Whatever might have been the position of the parties had the rule of the bank, that all payments made to any person producing the pass-book should be good and valid payments, stood alone, it is unquestionably the fact that this rule is very materially qualified by the subsequent rule which provided that, on the decease of any depositor, the amount standing to the credit of the deceased shall be paid to his legal representatives.

It may be a question worthy of consideration hereafter whether, in the case of the decease of a depositor, the prior rule does not become entirely inapplicable because of the subsequent one. The defendant knew that the depositor had died; it had resisted the payment of this money upon the production of the bank-book, and it was not until this collusive judgment was obtained that such payment was made.

It is difficult to see upon what theory the defendant supposes that a judgment of this kind could afford any protection in the payment of- the amount deposited. The defendant knew that the depositor was dead; had its attention necessarily called to the rule that on the decease of the depositor the amount standing to his credit shall be paid to his legal representative. The reason for the rule in regard to the presentation of the pass-book entirely ceases upon the deatli. of the depositor. That rule is to protect the bank in payments made to persons apparently having authority to collect, when they are ignorant of the fact that by operation of law there has been a devolution of title.

Where there has been a devolution of title by operation of law, such as occurs upon the decease of a depositor, the rules of the defendant are explicit that payment will only be made to the legal representatives of the deceased. Therefore, if they pay to anybody else, they necessarily pay at their peril, and it is for them to justify the payment by showing that the party had a legal right to receive the money in question. The two rules operate upon an entirely different state of circumstances — the one being to protect the bank against the carelessness of the depositor, and the other to protect the depositor when he is no longer in a position to protect himself. The defendant seems, in the payment made in the case at bar, to have lost sight of this latter rule, and to have acted in violation of its provisions.

We think, therefore, that the plaintiff was entitled to have this question submitted to the jury at least, and the exception taken to the refusal so to do should be sustained and a new trial ordered, with costs to the plaintiff, to abide the final event.

Barrett and Patterson, JJ., concurred.

Exceptions sustained and new trial ordered, with costs to the; plaintiff, to abide final event.


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

text:
    THE MANUFACTURERS’ NATIONAL BANK, Respondent, v. DUDLEY HALL and Another, Defendants. THE EPPENS, SMITH & WIEMANN COMPANY (Limited), Junior Attaching Creditor, Appellant.

      Attachment — what affidamit therefor that no counter-claim exists is sufficient.

    An attachment was obtained, in the State of New York by a foreign corporation based upon information furnished by its attorney in another State, to its attorney in the State of New York, who was the affiant, and it clearly appeared that neither attorney had any personal knowledge whether any counter-claims existed against the plaintiff and in favor of the defendants.

      Held, that no compliance with the requirements of the Code of Civil Procedure, section 636, subdivision 1, was shown.
    Where the papers of a subsequent lienor by attachment are defective, he cannot successfully attack the prior attachment.
    An affidavit made by the president of a corporation, which complies in form with the requirements of subdivision 1 of section 636 of the Code of Civil Procedure, is sufficient to sustain an attachment, provided that it shows that he was such president at the time that the transaction, out of which the claim arose, took place.
    Appeal by the Eppens, Smith & Wiemann Company (Limited), which claimed to have acquired a lien upon or interest in the property of the defendants Dudley Hall and another after it was attached in the above-entitled action, from an order entered in the clerk’s office of the county of New York on the 19th day of May, 1891, denying its motion to vacate a warrant of attachment granted in this action upon the application of the plaintiff therein on the 10th day of March, 1891.

      Joseph Kunzman, for the appellant.

      George M. Pinney, for the respondent.
   Yan Brunt, P. J.:

The attachment of the plaintiff was obtained against the defendants, upon the ground that tliey were non-residents, and was founded upon the affidavit of one George M. Pinney, Jr., who stated that he was the attorney for the plaintiff in this action; that it was a foreign corporation, located in Massachusetts, and that the action was brought to recover the amount of a certain promissory-note of $5,000 which was due and unpaid, and that said sum was due from the defendants to the plaintiff over and above all counterclaims known to the plaintiff.

The affiant further stated that he had made the statements in the .affidavit upon information received by him contained in two telegrams, which were annexed to his affidavit. That they were received from one "William A. Gaston, who was an attorney and counselor-at-law and a member of a firm doing business at Boston, Mass.

The first telegram was as follows:

“ Has Dudley Hall and Company, one fifty-two Front street, a stock of goods, and can you get an attachment on it if we send on their note. We fear they may assign here. Answer. I will send particulars.

WM. A. GASTON.”

The second telegram was as follows:

Assignment made here. Attach debtor’s property at one ninety-two Cherry street, New York, public warehouse, on note overdue, five thousand dollars, owned by Manufacturers’ National Bank. Debtors are Dudley Hall and Dudley 0. Hall, both of Medford. Will write to-night.

« WM_ A_ QA8TQN„

It is perfectly apparent that neither Gaston , the author of these telegrams, nor the attorney who made this affidavit, had any knowledge whatever as to whether there were any counter-claims existing in favor of the defendants against the plaintiff.

Unless the requirements of the Code are to be treated as a farce, it is quite clear, where it is apparent that the parties have no personal knowledge of the transaction, that such an affidavit coming from such a source, simply because the affiant swears to the fact, ■does not authorize the court to act upon the affidavit. And if this were the only question involved in the appeal there, would be no difficulty as to its disposition.

But it is urged upon the part of the plaintiff that if the plaintiff’s papers are bad, the appellants are in an equally unfortunate condition. The affidavit upon which their attachment was obtained was made by Mr. John F. Pupke, who swears that he is the president of the plaintiff, a corporation organized under the laws of the State of New Jersey, the affidavit being made on the 10th of March, 1891. It then alleges the sale of goods in February, 1891, by the plaintiff to the defendants, which were to be paid for in cash; that no part thereof has been paid, and that the plaintiff is entitled to recover the amount thereof, over and above all counter-claims known to the deponent or to the plaintiff.

The affiant nowhere states that he had any knowledge of the financial affairs of the appellant corporation, or that he had any connection with its active business, or that he ever saw its books or accounts, or that he had any such relation to the business of the corporation as would justify the inference of knowledge as to its pecuniary affairs. We do not know, even from the papers, as to whether he was connected with the company at the time of the transactions alleged in the affidavit. As was said in the case of Buhl v. Ball (41 Hun, 64), this is a summary jirovisional remedy to take from a debtor the custody of property, and to support the remedy the provisions of the statute must be substantially complied with — referring to the provision that it must be shown by affidavit, to the satisfaction of the judge granting the attachment, that the plaintiff is entitled to recover the sum stated therein, over and above all counter-claims known to him. Such facts must be presented to the court that they can see, from the necessary comiection of the affiant with the business of the corporation applying for the attachment, that he is likely to know whereof he is making a verification. In the case of the cashier of a bank it has been held that because of his position he is presumed to be acquainted with the financial affairs of the corporation of which he is an officer. But in the case of a trading corporation, with nothing to show what the duties of the president are or that he has any knowledge whatever of the fiscal affairs of the corporation or of its business transactions, we think the court cannot assume, simply from the fact of his being the president, that he has any personal knowledge in respect to the transaction whereof he is speaking; and if he has no personal knowledge, then the rule is clear that he must set out the sources of his information, so that the court may see whether his belief is justified.

Upon the whole case, therefore, we are of the opinion that the order appealed from should be affirmed, with ten dollars costs and •disbursements.

Barrett, J.:

I concur unreservedly with the presiding justice as to the first attachment. As to the junior attachment, however, I am unable to ■concur in the views expressed with regard to the affidavit of Mr. Pupke, the president of the company. I think that- the affidavit of the president of a corporation, wherein he swears positively to the sale and delivery of goods by the corporation to a defendant, is sufficient prima faoie to warrant the granting of an .attachment. It imports personal knowledge of the facts sworn to, there being no intimation in the affidavit that it is based upon any •element of information, and the president’s position, as the chief executive officer of the company, certainly justifies the inference that when he swears positively with regard to a corporate transaction he speaks of his own personal knowledge. I concur in the result, however, for the reason that Mr. Pupke does not state that he was president of the company at the time the goods in question were sold. I agree that a person who was not president at the time of the corporate transaction presumptively speaks of it upon information, and that the presumption of personal knowledge only arises when he swears positively to a corporate transaction, occurring at a time when he makes it clear that he was president.

Patterson, J.

I also agree with the presiding justice respecting the first .attachment, but I do not concur in what is said in his opinion respecting the subsequent one, so far as it relates to the competency ■of an officer of the corporation to make the affidavit.

In that respect, I am in accord with the views expressed by Mr. Justice Barrett. But the affidavit of Mr. Pupke is defective and insufficient in substance, in that it does not state his relation to the corporation at the time the goods were sold, and I, therefore, agree that the order must be affirmed.

Order affirmed, Avith ten dollars costs and disbursements.


author: Bartlett, J.:

text:
    ISIDOR ALKUS, Plaintiff, v. ALBERT GOETTMANN, as Executor and Trustee Under the Will of HENRY SCHREIBER, Deceased, Defendant.

      Specific performance —a, purchaser at a public sale is excused from completing itr by the existence of a question as to an implied power of sale in an executor.

    A purchaser at a public sale of real estate will not be compelled to take premises of which the title is doubtful, unless all the parties interested in the premises are before the court.
    A will contained no specific power of sale, but directed certain payments to be made by an executor, from which directions the executor deemed that a power of sale to the extent of such payments arose by implication in his favor, and after having paid the testator’s debts and the specific legacies given by the will the executor, upon the basis of a further direction in said will to “ pay ” to and to “divide” among certain persons the residue of the estate, assumed to convert the realty into personal property, and to.that end sold certain land which had belonged to his testator.

      Held, that there was sufficient doubt as to the existence in the executor of said power of sale to justify the purchaser in refusing to complete the purchase.
    A Submission to the General Term of a controversy between Isidor Alkus, plaintiff, and Albert Goettmann, as executor of and trustee under tlie will of Henry Schreiber, deceased, defendant, upon an agreed statement of facts, dated and verified October 29,1890.

      Albert G. McDonald, for the plaintiff.

      Roscoe H. Obanning, for the defendant.
   Bartlett, J.:

I think the plaintiff in this litigation is entitled to prevail. He was a purchaser at a public sale in the city of New York of certain real estate which the defendant assumed to sell as executor and trustee under the will of Henry Schreiber. He paid $1,515 toward, the purchase-money, other expenses of the sale amounting to twenty dollars, and $125 for the examination of the title. These amounts, he now seeks to recover back on the ground that the will of Henry Schreiber does not confer any power of sale upon his executor.

The will first provides for the payment of $500 to the executor,, exclusive of his legal commissions, and then gives and bequeaths to-Mm, as trustee, all the rest, residue and remainder of the testator’s property, real and personal, wheresoever situated, in trust, (1) to pay $500 to Henry Booman; (2) to pay $500 to Charles Armann; and (3) to invest $5,000 for the benefit of Minna Piper and her children, and pay the principal over to the beueficiaries in certain proportions at designated times. The will- then continues :

“ All the rest, residue and remainder of my estate, of whatsoever nature, I direct to be paid to my brother, August Schreiber, whose present address or whereabouts in the United States is unknown to me; to my sister, Christina Budder, wife of Hermann Budder of Stift, Quernhein, Kreis Harford, West-phalen, Germany; and to the child or children of my deceased sister Minna Wilmsmann, formerly wife of Wilhelm Wilmsmann, of Blarsheim, near Qubbeck, Westphalen, Germany, the same to be divided equally between them or the survivors or survivor of them, the said surviving issue of said Minna Wilmsmann to take the share of their deceased mother.” Then follows the nomination of the defendant as executor and trustee “ for the execution of the trust hereinbefore 'stated.”

The testator owned the New York lot of land to which this controversy relates, a piece of real estate in Brooklyn, and upwards of $10,000 in personal property. Before the sale in question here, the Brooklyn land was sold, and -out of the proceeds and the personalty, the executor had paid the legacies and satisfied all demands upon the estate, based upon the provisions of the will preceding the residuary clause which has been quoted.

Prom this statement it will be seen that our determination of this controversy must depend upon the question whether the defendant’s power to sell Ms testator’s real estate is so free from doubt as to justify the court in compelling a purchaser to take title from Mm by a judgment rendered in the absence of the parties who are beneficially interested in the lands devised by the will.

I do not think it is. The will confers no express power of sale upon the executor. If any such power exists it must be implied from the language of the instrument, as applicable to the property and affairs of the testator. The defendant concedes that the will is very inartificially drawn, but invokes the rule that where a testator directs that to be done which necessarily implies that the estate is first to be sold, the executor is vested with power to sell and execute tlie requisite deeds of conveyance. He argues that tlie direction in tlie residuary clause that the remainder of tlie estate “be paid ” to the persons mentioned therein, “ the same to be divided equally between them or the survivors or survivor of them,” contemplated a transmutation of all the property into money; that the testator could hardly have intended to authorize his executor to make an actual partition of the two pieces of real estate which he owned, among the six beneficiaries, five of whom were aliens; and that the insufficiency of the personalty, without the proceeds of the sale of the Brooklyn lot, to pay the testator’s debts and legacies, shows that he must have intended to have the executor sell all his land. On the other hand, in behalf of the plaintiff, it is insisted that no case can be found in which a power of sale has been implied on grounds so slight as exist here; that the use of the phrase “ to be paid ” is not of controlling significance, inasmuch as there was personal proj^erty to which it could apply; and that tlie words “ the same to be divided equally between them ” import a tenancy in common. (Jackson v. Luquere, 5 Cow., 221.) Another consideration ma3r be suggested. Even if a power of sale can be implied, so far as was necessary to provide for the pa3nnent of the legacies, can it be extended further, so as to'authorize the executor to sell for the sole purpose of effecting a division of the residuary estate, after all the legacies have been satisfied %

It seems to me that we have here presented “ a real question and a real doubt ” such as Andrews, J., spoke of in the case of Flemming v. Burnham (100 N. Y., 1, 10), as sufficient to prevent the court from passing upon an objection to the title in the absence of the parties in whom the outstanding right is vested. It is easy to see how residuary devisees might well object to the exercise of a power to sell lands which would place the entire proceeds in the hands of an executor, unless it was perfectly clear that the testator meant to clothe him with such authorfiy. Tlie case cited, and the later case of Abbott v. James (111 N. Y., 673), approve the rule that unless all the interested parties are before the court a purchaser will not be compelled to take a title which depends upon a doubtful question even of law onty; for the adjudication would not be binding upon the absent parties, who could raise the same question in a subsequent proceeding. I think this rule is decisive of the present ■controversy, and requires us to render judgment for the plaintiff in the terms of the submission.

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

Judgment for plaintiff in the terms of the submission.


author: Patterson, J.: Barrett, J.:

text:
    CAROLINE LIVINGSTON, Appellant, v. THE NEW YORK ELEVATED RAILROAD COMPANY and Another, Respondents.

      Appeal —• a copy judgment not certified by the clerk, and a notice not stating the precise place of its entry, will not limit the time of appeal— estoppel.

    Where a respondent seeks to bar an appeal upon technical grounds, he will himself be held to strict practice.
    The copy of a judgment required, by section 1851 of the Code of Civil Procedure, to be served upon the unsuccessful party in order to limit his time of appeal, was not attested by the clerk,' and the notice accompanying it did not specify the place of its entry to be the office of the clerk of the city and county of New York, but stated that the judgment was entered “ in the office of the clerk of the Supreme Court.”

      Held,, that the notice of entry was insufficient to limit the appeal.
    'That statements made by the parties seeking to appeal, to the effect that the time to do so had expired, did not operate to estop them from subsequently taking an appeal.
    Appeal by the plaintiff, Caroline Livingston, from an order ■entered in the office of the clerk of the city and county of New York, on the 27th day of February, 1891, setting aside the execution issued in this action.

      O. Q. Bennett, for the appellant.

      Julien T. JDmies and Brainarcl Tolies, for the respondents.
   Patterson, J.:

On the 8th day of May, 1890, the appellant (plaintiff) recovered ■at the Special Term a judgment against the defendant, in part for a sum of money awarded as damages to certain premises belonging to her. On the same day what purported to be a copy of the judgment was, with what was intended to be a notice of the entry thereof, served on the defendants’ attorneys. The time to appeal, had it been duly limited, would have expired on the 7th day of June, 1890, and on that day the defendants’ attorneys undertook to make service of a notice of appeal, but that attempt was held by the General Term to be ineffectual, and hence no service was made. (11 N. Y. Supp., 359.) That decision was affirmed by the Court of Appeals. Subsequently, and on the 16th day of January, 1891, the defendants’ attorneys caused a new notice of appeal to be served properly. Meantime the defendants had made various efforts, by motions to the court, to have the regularity of the first appeal recognized, but those efforts were unfruitful, and on the 21th day of December, 1890, the plaintiff’s attorney issued execution to the-sheriff of the city and county of New York. At that time the situation of the plaintiff was the following: She held the money judgment from which no appeal had been taken, and there was no-order staying proceedings, and nothing operating to prevent the issuance of an execution, although on the 2d day of July,' 1890, a duly executed undei’taking on appeal was filed by the defendants. On the day the second notice of appeal was served an order to show cause why the execution should not be set aside was obtained. The-motion made on that order was granted, with costs against the plaintiff, and from the order entered thereon this appeal is taken.. The ground upon which the decision was based is, that the second notice of appeal is good, because the copy of the judgment and the-notice of the entry thereof served on the defendants’ attorneys May 8, 1890', were not sufficient to impair the defendants’ right to appeal, irrespective of the mere question of time. Section 1351 of the Code of Civil Procedure provides that an appeal must be taken ■within thirty days after sendee upon the' attorneys for the appellant of a copy of the judgment or order appealed from and a written notice of the entry thereof. Strict compliance with this provision is required to operate a limitation of the time allowed; and so much do the courts favor the right of appeal that they have gone to great length in upholding the most technical objections to the sufficiency of the papers, served pursuant to the section of the Code referred to. The learned judge in the court below cited in his opinion several of the adjudications of the Court. of Appeals on tlie subject, and among them, In re New York Central and Hudson River Railroad Company (60 N. Y., 112); Kelly v. Sheehan (76 id., 325); Good v. Daland (119 id., 153). In the case at bar, the objections taken to the paper are that the copy of the judgment lacked the attestation of the clerk, and that the notice of entry did not specify the place of entry to be the office of the clerk of the city and county of New York, but merely stated that the judgment was entered with the clerk of the Supreme Court. These defects at first blush do not appear to be very substantial, but when it is considered that a right of appeal may be destroyed in the most meritorious case by a mere accident,, and that the court has no power to relieve, it is altogether equitable-to insist that the party seeking to enforce the technical advantage shall be held to strict technical practice himself, and the very objections now pointed out Ijy the defendants have been deemed cogent enough to prevent the limitation of the time to appeal. (Good v. Daland, supra; Valton v. Nat. Loan Fund Life Ass.,, 19 How. Pr., 515; approved in Matter N. Y. C. R. R. Co., etc., 60 N. Y., supra.) The learned judge below was, therefore, correct in holding that the right to appeal had not been limited, and that, the notice of appeal served on the 16th of January, 1891, was-in time.

But the respondents claim that the appellant is in some way estopped from denying that the time to appeal had expired, and calls, attention to various statements made in affidavits used in the proceedings to avert the consequences of the default in serving the notice-of appeal within thirty days from May 8,1890, and which have been above referred to. In those affidavits it is stated that the defendants’ time to appeal expired on the seventh of June, but we do not think such statements constitute, under all the facts before us, either binding admissions or anything else that fairly should be construed to-deprive the defendants of the right to appeal. They were made in view of the fact that a notice of appeal which they claimed to be-regular and in time had been served, and were founded upon that belief, and were made altogether with reference to the questions raised in the proceedings adverted to and on the assumption that the service of the judgment and notice of entry were also regular. In this the affiants were mistaken, but their mistake has caused no. .injury to the plaintiff, and should not be considered tantamount to an estoppel.

We are of the opinion, however, that the order made by the learned judge is too broad, and that the execution should not have been set aside absolutely and with costs against the plaintiff, but that proceedings upon it should have been stayed merely; for when it was issued in December, 1890, the plaintiff had a clear legal right to enforce her judgment by appropriate process. The court had .adjudged her to be entitled to the money; there was no appeal pending and no impediment to its collection; for the undertaking-filed July 2, 1890, without an appeal actually taken, did not in any way supei’sede the right to realize on the judgment. But when the .appeal was taken in January, it was proper to apply to the court to stay the execution on such terms as might be considered just.

The order must, therefore, be modified so that proceedings under the execution be stayed until the determination of the appeal without costs, and as thus modified it will be affirmed, without costs.

Yan Brunt, P. J., concurred.

Barrett, J.:

I also concur. There is no question here of the mere waiver of an irregularity. The defendants waived nothing. They simply insisted that they had appealed according to law. when, in fact, they had not. The plaintiff failed to set the defendants’ time to appeal running, by reason of her failure to serve a particular paper precisely as required by statute. The defendants’ acknowledgment of the receipt of that paper, and their expression of belief that their time to appeal was thereby limited, do not alter the legal effect of the plaintiff’s failure to do what was requisite to set the time to .appeal running.

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