author: Merwin, J.:

text:
    Ellis H. Roberts & Co. v. John Buckley and Others and George F. Vietor and Others, Appellants; Patrick F. Bulger, as Assignee, etc., and Others, Respondents.

      Assignment for the benefit of creditors — error in the inventory — explained by pa/rol evidence ■ — • an assignment honestly made cannot be invalidated by subsequent illegal acts — the intention to defraud presents a question of fact.

    Upon the trial of an action brought to set aside an assignment for the benefit of creditors, on the ground that it was made with the intent to hinder, delay and defraud the creditors of the assignor, evidence is competent on the part of the assignee to explain a mistake in the inventory in regard to the amount of a preferred debt, by showing the circumstances under which an amount in excess of the correct amount of such debt was put in the inventory, and that it was put therein in an absolute form by mistake and without intent to defraud; and the assignment may be sustained if it is made to appear that at the lime of the assignment there was no intent to prefer the preferred creditor for more than the amount due him, and that the erroneous amount in the inventory was inadvertently inserted therein without any fraudulent intention.
    If an assignment is executed with an honest intent, no subsequent illegal acts on the part of the assignor can invalidate it, but such acts may, in certain cases, be considered in determining what was the original intent.
    Under the statute as it now stands an assignment for the benefit of creditors is good, although no inventory has ever been filed by the assignor, and, if one is filed, tlie county judge has power by order to require or allow it to be corrected or amended; the inventory is not, therefore, an integral part of the assignment, and an invalid assignment cannot be made good by the inventory.
    The fact that an item - of a schedule attached to an assignment for the benefit of creditors does not state the exact amount of a preferred debt, or the precise dates from which interest is to be reckoned thereon, does not of itself invalidate tlie assignment.
    The question whether an assignment for the benefit of creditors is made with the intent to defraud creditors is one of fact; in some cases, upon undisputed evidence, the fact may be determined as matter of law, and the presumption of an intent to defraud may be deemed conclusive.
    Appeal by tlie defendants, George F. Yietor and others, from portions of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 7th day of June, 1893, upon the report of a referee.

      George F. Da/nforth and James Dunn, for the appellants.

      FT. J. CooJeinham and William P. Quinn, for respondent Bulger as assignee.

      Xatteson da Ilarvey, for judgment creditors.

      W. Hernán, for the assignors.
   Merwin, J.:

The important questions in this case arise upon the appeal of the defendants, composing the firm of Fredexick Yietor & Aclielis, and relate to the validity, as against creditors, of the general assignment of the defendants Buckley and Shirley. There have been two trials. Upon the first trial the assignment was sustained, and the judgment was affirmed at General Term. (Roberts & Co. v. Vietor, 54 Hun, 461.) Upon appeal to the Court of Appeals the judgment was reversed and a new trial ordered. (130 N. Y. 585.) Upon the second trial the assignment was again sustained. Whether that conclusion was correct is the main question now here.

The charge against the assignment is that it was made with intent to hinder, delay and defraud creditors. This charge is, as the case now stands, predicated upon the character of the preference in the assignment in favor of Daniel G. Major. This subject was considered by the Court of Appeals and its decision was based on the view it took of that preference. Upon the last trial further evidence was given by the respondents, which they claimed bore upon the question of the intent of the assignors. This evidence the appellants claim was not competent, or, if competent, was not material, and that the decision of the Court of Appeals in substance required the referee to find the assignment fraudulent.

The assignment is dated March 17, 1886, and on that day it was executed, acknowledged, delivered and recorded. In this assignment there was preferred a partnership debt of “about $12,000” in favor of Daniel Gr. Major, the consideration of which was stated to be “ money loaned;” its form was stated to be “ account and notes which assignors are unable to describe,” and under the head of “ date for interest ” there are stated several items amounting in the aggregate to $12,000, with a different date opposite to each, and at the end apparently applicable to all the items is the expression, “ as near as assignors are able to state.”

On the 7th of April, 1886, the inventory or schedule required by the statute (Chap. 466 of the Laws of 1877, § 2, as amended by chap. 318 of 1878) was filed, being executed and verified by the assignors. In this the indebtedness to Major is stated to be “ $12,000 accounts and notes,” and this is followed by a statement of dates .and amounts which are identical with the dates and amounts in the assignment, but the qualifying words, “ as near as assignors are able to state,” are omitted.

It was shown and found upon each trial that at the time of the •assignment Major had claims against the assignors on notes or accounts for money loaned, the principal of which was $12,538.75, and these, with interest to the date of the assignment, amounted to $14,139.35. As against these claims there were credits of money paid to Major from time to time, amounting, with interest to the date of the assignment, to the sum of $1,489.97. Deducting this, there was a balance due Major at the time of the assignment of $12,656.38. The items of Major’s debt, as stated in the inventory filed April 7, 1886, with interest to the date of the assignment, amounted to about the sum of $13,501.70, thus showing an excess of $845.32 over the true amount .of the debt. In view of this situation it is .said, in the opinion of the Court of Appeals, as fol- . lows: “As we have seen, the inventory was filed twenty days thereaftei’, axxd in it tlxe amount aixd items are stated without qualifying words, thus ixxdicating that at that time the assigxxors were possessed of the requisite information to correctly describe them. This inventory we are to read iix conxxection with the assignment, and so readiixg the instraments we think that it is appareixt that the assignors not only have, but intended to absolutely and unqualifiedly prefer the claim of Major to the amount stated.”

As tlxe case stood, the inference of fx-aud as to the amount of the Major debt was deemed to be ixxevitable, and on that ground the finding of the court below that there was no fraud was considered erroneous and a reversal followed.

The additional evidence on tlxe last trial was offex-ed for the purpose of explaining the invexxtory in regard to the Major debt and of showing the circumstances under which it was made, and that it was made in the absolute fox-rn it was by mistake and without any intent to defraud. This evidence was competent (Shultz v. Hoagland, 85 N. Y. 464, 473 ; Crook v. Rindskopf, 105 id. 482; Fay v. Grant, 53 Hun, 44, 47; affd., 126 N. Y. 624; Blain v. Pool, 13 N. Y. St. Repr. 571; affd., 116 N. Y. 651; Ellis v. Myers, 28 N. Y. St. Repr. 120, 124) unless the Court of Appeals held that the statement in the inventory was conclusive oxx the subject. ¥e think that the decisioxx referred to should xxot be construed to that resxxlt. The general expx-essioxxs iix the opinion that might point towards that coxx elusion are to be deemed as used with reference to the facts of the ease as they there appeared. There was there practically no explanation of the manner in which the qualifying expressions of the assigixment were omitted in the inventory, and the court gave force to the presxxmption that the assignor’s designedly made the amount absolute.

The issxxe before the Coxxrt of Appeals on that subject was whether tlxei-e was ei-ror iix the finding that the assignment was not fx-audulent, and the precise point decided was that there was error in that respect and that the evidence did not authox-ize the finding, and for that reason a new trial was granted. The question whether the inventory could not be explained was not before the coui’t.

It is to be observed that under the statute as it now is an assignment is good although no inventory is ever filed by the assignor. So, if one is filed, the county judge has power, by order, to require or allow it to be corrected or amended. It cannot, therefore, be said to be an integral part of the assignment. If the statement of the assignor in the inventory is conclusive, then the assignor, for twenty days at least after the assignment is executed and recorded, has the power at his will to destroy what might otherwise he perfectly valid. This result should not be yielded to unless it he absolutely necessary. The assignor, by his inventory, cannot make good what would otherwise be invalid. (Porter v. Williams, 9 N. Y. 142.) So, as said in the Shultz case, if the assignment was executed with an honest intent, no subsequent illegal acts on his part will invalidate it, although they may in certain cases be considered on the subject of the original intent.

Assuming, therefore, as I think we must, that the evidence offered by way of explanation was competent, the further question .arises whether the situation is materially changed. For if it is not, the ruling of the appellate court must be followed. (Mygatt v. Coe, 142 N. Y. 81.)

From the explanatory evidence it appears that the assignment, including the schedules of preferences thereto attached, was prepared by Mr. Sherman, one of the attorneys for the assignors, from information which lie supposed to he correct, and the Major debt was then stated to be $12,000 on account for money loaned, and specific dates and amounts were given for the purpose of the calculation of interest. These papers were presented by Mr. Cookinham to the assignoi’s for execution. It was then stated by them that they -were unable to give the correct amount of the debt or the items thereof, but that the amount of the debt was about $12,000, and thereupon Mr. Cookinham, with the knowledge of the assignors, changed the amount so as to make it read “about” $12,000, the form of the debt, so as to make it read “ account and notes which assignors are unable to describe,” and added to the statement of the dates and .amounts for interest, the expression “ as near as assignors aro able to state.” The papers were then executed. The inventory was after-wards prepared by Mr. Sherman from the same information that he had at the time he prepared the assignment and in the same form as to the Major debt as he originally prepared it, and • he did not then know that any change had been made in the statement of the Major debt or any qualifying words inserted. The inventory was executed by the assignors in presence of Mr. Sherman, and tbe assignors bad then no further or more definite information as to the amount and details of the Major debt than they had at the time the assignment was executed. Their attention was not called to the fact that their indebtedness to Major was stated in the schedules to the inventory without the qualifying words that were in the schedule attached to the assignment, and in verifying the inventory they relied upon their attorneys preparing it in proper form.

The referee finds that: In stating their indebtedness to Major and the preference thereof in schedule ‘ C ’ of their assignment, the assignors did not intend to state, nor did they state, the exact amount due to Major. Nor did they intend to state in said schedule, nor did they state, the items which -made up the indebtedness; but they did intend to state, and did state, about the amount of the debt and the dates from which interest was to be computed upon certain sums of money as near as the assignors were able to state them. The assignors, in and by their assignment and the schedule thereto, intended to prefer, and did prefer, only the debt which was actually due . to said Daniel Q. Major, with interest thereon from the time that interest was actually due and payable.” He also finds that: “ The assignors in verifying said inventory and schedules did so relying upon the attorneys to prepare the inventory and schedules in proper form, and in so verifying them acted in good faith, without any intent to hinder, delay or defraud their creditors, and with the honest intent to set forth their indebtedness to Major, as nearly as they were able, for the true amount due to Major, but without intending to state the precise amount due him, or the precise items which made up the debt, and without any intent to modify the statement of said debt as it was set forth in schedule ‘ C,’ forming part of the assignment.”

The fact that the assignment, or schedule C thereto attached, did not state the exact amount of the Major debt, or the precise dates from which interest was to be reckoned, would not of itself invalidate the assignment. (Maack v. Maack, 49 Hun, 507; Bank of Silver Creek v. Talcott, 22 Barb. 550; Brainerd v. Dunning, 30 N. Y. 211; Butt v. Peck, 1 Daly, 83; Kavanagh v. Beckwith, 44 Barb. 192; Browne v. Weir, 5 S. & R. 400; Dedham Bank v. Richards, 2 Metc. 105; Brown v. Knox, 6 Mo. 302; Burrill on Assign. § 146; Bisli. on Insol. Debtors, § 161.) The material circumstance then was as to the effect to be given to the positive statement ip the inventory as bearing on the intent of the assignors at the time of the execution of the assignment.- Unexplained and with the presumption that the assignors at the later date had become familiar with the true facts, it was deemed to so far characterize the original act as to make it in effect a positive statement, and so an intentional preference of an amount in excess of the true debt. By the new evidence it is made expressly to appear that at the time of the assignment there was no intent to prefer more than the true debt, and that the positive statement in the inventory was inadvertently inserted, and without any intention to change the qualified statement in the assignment. These were material circumstances and were vital in their character, and it should, therefore, I think, be said that the evidence now is materially different from what it was upon the first trial, and that the judgment of the appellate court is, therefore, not conclusive here.

The question whether the assignment was made with intent to defraud creditors was one of fact. In some cases upon undisputed evidence the fact may be declared as matter of law ; the presumption of an intent to defraud may be deemed conclusive. The present is, we think, not such a case as it now stands. The evidence authorized the referee to find that the assignors did not intend to prefer Major for more than was due him, and that the assignment was not fraudulent. These questions were primarily for the trial court to determine, and we are - not prepared to say that the findings are against the weight of the evidence.

We do not deem it important to consider the effect of the amendment of the inventory made after the decision in the Court of Appeals. The referee ruled that it did not affect the rights of the appellants. The admission in evidence of those proceedings, if erroneous, was not prejudicial error.

The foregoing considerations lead to the conclusion that the judgment should be affirmed.

TIaediN, P. J., and Martin, J., concurred.

Judgment affirmed, with costs to be paid by the appellants, Yietor & Co., to the respondent, the assignee.


source: Caselaw Access Project

author: MaetiN, J.:

license: Public Domain

text:
    Charles M. Smith, as Sole Executor, etc., of Loren Smith, Deceased, Respondent, v. George B. Northrup, Appellant.

      ‘‘For value received” —a sufficient statement of the consideration of a contract of guaranty to satisfy the Statute of Fra/lids— covenants under seal.

    The words “for value received ” are a sufficient statement of the consideration in a written guaranty of the payment of a hond and mortgage to constitute a valid contract under the Statute of Frauds.
    The former rule, that contracts of guaranty were void under the Statute of Frauds unless their consideration was expressed upon the face of the instrument itself, has been modified, and where the nature of the consideration is fairly inferable from the contract, it will satisfy the requirements of the statute.
    It was shown, upon the trial of an action, that the following guaranty had been signed by the defendant therein:
    “ Olinton, N. Y., March 22d, 1890.
    “For value received, the receipt whereof is hereby acknowledged, I hereby guarantee the payment of a certain bond and mortgage bearing date the 22d day of December, 1885, and given by David Ailen and Ann, his wife, to Loren Smith, deceased, within one year from the date of this instrument. Witness my hand and seal this 29th day of March, 1890.
    “ GEO. B. NORTHRUP. [l. s.]”
    And that the sole consideration of the guaranty was the agreement of the plaintiff not to foreclose the bond and mortgage therein referred to within one year.

      Held, that the nature of the consideration for the defendant’s undertaking was fairly inferable from the written provisions of the guaranty, and was sufficient to satisfy the requirements of the Statute of Frauds.
    A covenant under seal is not within the Statute of Frauds requiring an agreement to be in writing expressing the consideration.
    Appeal by the defendant, George B. Northrup, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 29th day of May, 1893, upon the verdict of a jury rendered after a trial at the Oneida Circuit, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 27th day of May, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      Chcvrles JH. Secvrle, for the appellant.

      Charles JR. <& Glcvrenee ZJ. Garruth, for the respondent.
   MaetiN, J.:

Tbis action was brought upon a written instrument or guaranty which was as follows:

“ CliNtoN, N. Y., Mm-'ch %2d, 1890.

“ For value received, the receipt whereof is hereby acknowledged, I hereby guarantee the payment of a certain bond and mortgage bearing date the 22d day of December, 1885, and given by David Allen and Ann, his wife, to Loren Smith, deceased, within one year from the date of this instrument. 'Witness my hand and seal this 29th day of March, 1890.

“GEO. B. NORTHRUP. [l. s.]”

The defendant by his answer admitted signing and delivering a guaranty of the payment of the bond and mortgage mentioned in the foregoing instrument, and alleged that there was no valid consideration for the execution thereof, and “ that the consideration for the guaranty moving from plaintiff to defendant was the agreement on the part of the plaintiff to suspend, or not to foreclose within one year, and that the guaranty did not itself contain the agreement, and, being an executory agreement, not already fulfilled, but to be performed afterwards, it should have been a part of the guaranty, and that without it the guaranty could not be enforced.” As a further defense the defendant alleged that such guaranty was obtained by the fraud and false representations of the plaintiff as to the number of prior incumbrances there were upon the premises mentioned in the mortgage referred to in the guaranty, and that he relied upon such fraudulent representations when he executed the instrument in suit.

Upon the trial the question chiefly litigated was whether the guaranty was obtained by means of such fraudulent representations. That question was submitted to the jury in a charge whereby it was instructed that if it found that the representations alleged were made as proved by the defendant, the plaintiff could not recover. The jury found in favor of the plaintiff. A careful reading of the evidence contained in the appeal book renders it quite manifest that the question whether the guaranty in suit was obtained by the fraud or fraudulent representations of the plaintiff was one of fact, and that its determination by the jury should not be disturbed.

The appellant, however, contends that this guaranty was void under the Statute of Frauds, for the reason that it does not state the agreement of the plaintiff, which was the consideration for the defendant’s promise to guarantee the payment of the bond and mortgage described therein. On the trial it was proved that the sole consideration for the guaranty was the agreement of the plaintiff not to foreclose the mortgage within one year. This was not disputed. The defendant’s precise claim is that the plaintiff’s agreement to extend the time of payment of the bond and mortgage for the period of one year should have been set out in the guaranty as the consideration therefor, and that having been omitted, it does not comply with the requirements of the Statute of Frauds, which provides that every agreement which contains a special promise to answer for the debt, default or miscarriage of another person shall be void unless such agreement or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith.

We find no sufficient authority in the cases cited by the appellant to uphold his contention. We think they are clearly distinguishable from this. In the case before us the written instrument upon which this action is based was a guaranty of the bond and mortgage described therein, and contained all the provisions of the agreement to be performed by the party who signed it. Hence, the question here is, whether the consideration for the defendant’s agreement was sufficiently stated.

The writing stated that, For value received, the receipt whereof is hereby acknowledged,” the defendant guaranteed the payment, etc. Thus the first question presented is whether the words, for value received,” were a sufficient expression of the consideration to constitute a valid contract under the Statute of Frauds. In Miller v. Cook (23 N. Y. 495) it was held that the words, “ for value received,” in a guaranty of a promissory note, were a sufficient expression of the consideration to answer the requirements of the Statute of Frauds, and in the opinion in that case the cases of Watson’s Executors v. McLaren (19 Wend. 557); Douglass v. Howland (24 Wend. 35); Cooper v. Dedrick (22 Barb. 516), and Brewster v. Silence (4 Seld. 207) were referred to as authorities sustaining that decision. Mosher v. Hotchkiss (2 Keyes, 589) is to the same effect. The doctrine of the Miller case was also recognized in Drake v. Seaman (97 N. Y. 230). Within the doctrine of these cases it would seem tbat the words, “ for value received,” were a sufficient statement of. the consideration of the guaranty in suit to answer the requirements of the statute.

Moreover, it appeared on the face of the guaranty that the debt secured by the bond and mortgage was to be paid in one year from date, and the debt was then past due. Construing these instruments (the guaranty and the bond and mortgage) together in the light of the circumstances of this case, can it be said that it did not sufficiently appear on the face of the guaranty that the defendant’s undertaking was in consideration of the extension of the time of payment for one year. If not, then the writing was clearly sufficient to fulfill the requirements of the statute.; In Ryde v. Curtis (8 Dow. & Ry. 62) a guaranty was in these terms: I do hereby agree to become security for Mr. R. G-., now your traveler, in the sum of five hundred pounds for all money he may receive on your account,” and it was held that it sufficiently appeared upon the face of that instrument that the consideration for the guaranty was the continuance of the traveler in the service of the plaintiff. In Kennaway v. Treleavan (5 M. & W. 498), where the words were: “ I hereby guarantee to you the sum of 250Z. in case Mr. P. should make default in the capacity of agent and traveler to you,” it was held that it sufficiently appeared in the guaranty that the consideration for the undertaking was the future employment of P. in the capacity of agent and traveler. . In Newbury v. Armstrong (6 Bing. 201) the instrument was: “ I agree to be security to you for J. C., late in the employ of J. P., for whatever you may entrust him with while in your employ, to the amount of 50IP and it was held that the consideration for the guaranty sufficiently appeared, that it was to be implied that C. had left one service, and the guaranty was given in consideration of his being taken into another. In Hutton v. Padgett (26 Md. 228) the agreement was as follows: I hold myself responsible to W. A. & W. W. Padgett of Baltimore, Md., to the amount of $2,000, for any drafts they have accepted, or may hereafter accept, for John Latouche, now of Alexandria, Ya.,” and it was held that to bind a party upon a collateral promise to answer for the debt or default of another, it was necessary, under the Statute of Frauds of that State, that the consideration, as well as the promise, should appear from the writing; that it was sufficient if it might be collected or implied from the instrument itself, and that it was to be implied from the guaranty in that case that the consideration was that the plaintiff would accept the drafts for Latouche. In Gates v. McKee (13 N. Y. 232) the guaranty was as follows: “ I will be responsible for what stock M. E. McKee has had or may want hereafter, to the amount of five hundred dollars,” and it was held that the consideration was sufficiently expressed within the requirements of the Statute of Frauds. In Evansville Nat’l Bank v. Kaufmann (93 N. Y. 273), Rugbe, Cli. J., in speaking of a contract of guaranty, said: “ It was formerly held that such contracts were void by the Statute of Frauds unless their consideration was also expressed upon the face of the instrument itself. (Union Bank v. Coster, Ex'r, 3 N. Y. 211; Newcomb v. Clark, 1 Den. 226.) But this rule was modified by other cases, holding that where the nature of the consideration Ivas fairly inferable from the contract sued upon * * * it would satisfy the requirements of the statute. (Gates v. McKee, supra; Church v. Brown, 21 N. Y. 315; Douglass v. Howland, 24 Wend. 35; Leonard v. Vredenburgh, 8 Johns. 29; Rogers v. Kneeland, 10 Wend. 218.)” In Barney v. Forbes (118 N. Y. 580) the head note, which seems to fairly state the substance of thé decision in that case, is as follows: Plaintiffs, who held certain bonds as collateral for a debt due them from M., received an inclosure sent by defendant, who was a member of the firm of D. & Go., containing a letter from M. to the effect that he had accepted a position in the house of R. & Co., and pledging a portion of his salary each year until the debt was paid ; also asking that c with this assurance, and the letter inclosed, the bonds be released.’ The letter referred to, which was also inclosed, was from defendant; after stating the employment of M. by his firm, the letter contained the following: I will undertake that the agreement made by him to pay a certain amount to you each year shall be earned out until the indebtedness to your firm is liquidated.’ -Plaintiffs accepted the proposition and surrendered the bonds. In an action upon the guaranty contained in defendant’s letter, held, that the letters were to be taken and construed together; that upon their face it appeared that defendant’s promise was made to procure the release of the bonds, which it accomplished, and this was a valid consideration; that, therefore, the requirements of the Statute of Frauds were met, the promise was valid, and defendant was liable.”

"When the doctrine of the cases cited is applied to this case, it becomes quite obvious, we think, that the nature of the consideration for the defendant’s undertaking was fairly inferable from the written provisions of the defendant’s guaranty, and that it was sufficient to satisfy the requirements of the statute.

Again, the agreement or guaranty upon which this action was brought was under seal, and it has been held that a covenant under seal is not within the Statute of Frauds, requiring the agreement to be in writing expressing the consideration. (Douglass v. Howland, 24 Wend. 35; Barnum v. Childs, 3 Super. Ct. Rep. [1 Sandf.] 58; affd., Childs v. Barnum, 11 Barb. 14; Rosenbaum v. Gunter, 2 E. D. Smith, 415.) The case of Barnum v. Childs was referred to in Fargis v. Walton (107 N. Y. 401), and the correctness of the decision was not questioned.

These considerations lead to the conclusion that the defendant’s contention that the guaranty upon which this action was brought was void under the Statute of Frauds, cannot be maintained.

"We have examined the various exceptions by the defendant to the admission and rejection of evidence, and to the charge of the court, but have found none that would justify a reversal of the judgment, or that need be specially considered, and, hence, it follows that the judgment should be affirmed.

HaRDIN, P. J., and MeRWIN, J., concurred.

Judgment and order affirmed, with costs.


author: Pee Cueiam: :

text:
    Elias Warn, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.

      Master and servant — duty of an employer to make proper rules — conduct of his business — qualification of the rule that a servant takes the risk of the employment.

    The law imposes upon a railroad company the duty to its employees of diligence and care not only in furnishing proper and reasonably safe appliances and machinery and skillful and careful co-employees, hut also of making and promulgating rules, which, if faithfully observed, will give reasonable protection to the employees, and it is also required to exercise such a supervision over its servants and the prosecution of its business, as to justify the belief that the business is being conducted in pursuance of such rules.
    A corporation in making rules for the government of its employees is bound to use ordinary care, and to anticipate and guard against such accidents and casualties as may be reasonably foreseen by its managers exercising such ordinary care.
    The rule that a servant takes the risk of the business is subject to the qualification that the master must exercise reasonable car,e to guard the servant, while engaged in his duties, from unnecessary hazards, including hazards from the negligence of co-employees, and the negligence of one servant does not excuse the master from liability to a co-servant for an injury which would not have happened had the master performed his duty.
    Appeal by the plaintiff, Elias Warn, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 10th day of November, 1893, upon the dismissal of the complaint directed by the court after a trial at the Onondaga Circuit before the court and a jury.

      Louis Marshall, for the appellant.

      Miscode, Doheny & Miscock, for the respondent.
   Pee Cueiam: :

W e are of the opinion that the facts in this case should have been submitted to the jury, and that the nonsuit was improper. The law imposes upon a railroad company the duty to its employees of diligence and care, not only in furnishing proper and reasonably safe appliances and machinery and skillful and careful co-employees, but also of making and promulgating rules, which, if faithfully observed, will give reasonable protection to the employees. (Abel v. President, etc., D, & H. C. Co., 103 N. Y. 581.) It is also required to exercise sucli a supervision over its servants and tlie prosecution of its business as to liave reason to believe tbat it is being conducted in pursuance of sucli rules. (Whittaker v. D. & H. C. Co., 126 N. Y. 549.)

If defendant’s rule No. 36 was intended to apply to a train like the one in the inspection of which the plaintiff was injured, it became, a question of fact whether the defendant was guilty of negligence in regard to its proper promulgation and enforcement. If that rule was not intended to apply to such a train, then it became a question of fact whether the defendant had performed the measure of its duty within the rule laid down in the Abel case. The defendant, in making rules for the government of its employees, is bound to use ordinary care and to anticipate and guard against such accidents and casualties as may reasonably be foreseen by its managers exercising such ordinary care. (Berrigan v. N. Y., L. E. & W. R. R. Co., 131 N. Y. 582.)

Nor should it be said, as matter of law, that under the facts of the present case the plaintiff assumed the risk as incident to the business. In Abel v. D. & H. C. Co. (128 N. Y. 664) it is said that the rule that the servant takes the risk of the business is subject to the qualification that the master must exercise reasonable care to guard the servant while engaged in his duties from unnecessary hazards, including hazards from negligence of co-employees. (See, also, McGovern v. C. V. R. Co., 123 N. Y. 280.) Negligence of a servant does not excuse the master from liability to a co-servant for an injury which would not have happened had the master performed its duty. (Coppins v. N. Y. C. & H. R. R. R. Co., 122 N. Y. 557.)

The question of contributory negligence was for the jury.

Present — HaRdiN, P. J., IVIaetm and MjbrwiN, JJ.

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


author: Matttam, P. J.:

text:
    Barzelle M. Strong, Appellant, v. Cyrus Waters, Respondent.

      Oral agreement — when not admissible to vary the terms of a written contract.

    Evidence of a contemporaneous oral agreement is inadmissible upon the trial of an action to modify or add important provisions to a written contract, where there is no claim that such evidence proves or tends to prove a mutual mistake by the parties to the written contract, or that such written contract was procured by fraud.
    Appeal by the plaintiff, Barzelle M. Strong, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Clinton on the 3d day of May, 1893, upon' the report of a referee.'

      Royal Corbin, for the appellant.

      L. L. Shedden, for the respondent.
   Matttam, P. J.:

In the month of June, 1887, the plaintiff and defendant entered into a contract in writing of which the following is a copy:

“This agreement, made and entered into between B. M. Strong, of Evans Mills, N. Y., as party of the first part, and Cyrus Waters, of Champlain, party of the second part, witnesseth: Party of the first part agrees to drill a well for party of the second part at $2.50 a foot, and furnish pipe for pump without charge, and is to be relieved from all responsibility when he stops drilling; in case of a flowing well, to be two dollars per foot.

“ Party of the second part agrees to pay party of the first part $2.50 for each and every foot so drilled, and purchase a pump and cylinder of party of the first part at Gould’s listed prices, and pay for all casing of well at $1.00 per foot; to furnish proper wood and water for engine while drilling, and as required, and board two men while drilling said well.

“B. hi. STRONG,

“Per J. B. Bort.

“CYRUS WATERS.”

Under this contract the plaintiff claims that he drilled to the depth of about thirty feet, when he struck water, but continued to drill to the depth of ninety feet at the request of the defendant. The plaintiff also claims that he furnished to the defendant twenty-one feet of casing or tubing at one dollar per foot, a pump of the value of eleven dollars, and a cylinder of the value of eight dollars j merchandise of the value of $100.

There appears to be no substantial controversy over the amount of work performed or material furnished by the plaintiff in and about this work.

But the defendant sets up in his answer various defenses, among which was an allegation of fraud and mistake in making the written contract, also a breach and failure to perform the contract by the plaintiff.

Under this answer the defendant proves, under the objection of the plaintiff, a parol contemporaneous agreement or contract, greatly at variance with the written contract upon which the action was brought. There was no claim that the parol evidence so offered and received on the part of the defendant proved or tended to prove a mutual mistake by the parties to the written contract, so as to make it competent for the purpose of a reformation of the written agreement.

Nor did it prove or tend to prove any fraud by the plaintiff in procuring the written agreement to be made.

The only possible effect of the evidence was to modify or add to the written contract important provisions by a parol contemporaneous agreement. It needs no citation of. authorities to show that that cannot be done.

We think the learned referee erred in the admission of that evidence, and that such error may have affected his determination of the action.

The judgment should, for that reason, he reversed.

Judgment reversed, the referee discharged and a- new trial, ordered, costs to abide the event.

Putnam and Herrick, JJ., concurred.

Judgment reversed.


author: Putnam, J.:

text:
    The First National Bank of Plattsburgh, Respondent, v. John J. Fitzpatrick, Appellant, Impleaded with Others. The People of the State of New York ex rel. John J. Fitzpatrick, Appellant, v. Henry B. Ransom, Respondent.

      Contempt — misconduct that can he punished, as — order of commitment — must b& made after the commission of the contempt.

    Misconduct which, can be treated and punished as a civil contempt must be such as to defeat, impair, impede or prejudice a right or remedy of a party to a civil action, and that the alleged misconduct has that effect must be made to appear and be adjudicated.
    A person cannot be punished for a civil contempt in failing to obey an order directing him to pay over a certain sum of money or .to stand committed for' contempt, unless a second order be made after his refusal to pay the sum of' money, a copy of the first order having been first served upon him and a demand having been made of him for the moneys directed to be paid thereby.
    Appeal by the defendant, in the first above-entitled action, John J. Fitzpatrick, from an order of the Supreme Court, entered in the office of the clerk of the county of Clinton on the 14th day of February, 1894, directing the defendant, John J. Fitzpatrick, to deliver to the receiver of his property the sum of $2,916.45 or stand committed to the Clinton county jail until such delivery be made, or until discharged by law or order of the court, with notice of an intention to bring up for review upon such appeal said order and the orders to show cause and orders appointing and extending the-receivership of the property of the defendant and the proceedings upon which said orders were based.

      T. F. Oomoan/, for the appellant.

      Geo. H. Beohwith, for the respondent.
   Putnam, J.:

I think the order of February thirteenth, under which the defendant was imprisoned, and from which the appeal is taken, was erroneously granted for the reasons pointed out in Fischer v. Raab et al. (81 N. Y. 235). In that case the plaintiff was directed to pay certain referee fees and failed to do so. An order to show cause was granted requiring him to pay the said fees within a certain time or show cause why he should not be committed for contempt in disobeying the order and not paying the fees. On the return of the order, plaintiff not having paid the money, the court made an order that he be committed to the common jail of the county, there to remain charged upon the contempt until he should pay the fees and ten dollars costs. The order was reversed by the Court of Appeals, that court holding that the misconduct which can be treated. and punished as a contempt must be such as to defeat, impair, impede or prejudice a right or remedy of a party to a civil action, “ cmd that the alleged miscond/uct does have such effect must be made to appea/r cmd be adjudicated.” The court held in that case that it did not appear that the alleged offense affected or impaired the defendants’ rights, and also used the following language: “ And there does not appea/r to have been any adjudication that the alleged miscond/uct defeated, impaired, impeded or prejudiced any right or remed/y of the defendants. So fa/r as appea/r s in the papers before us, the sole purpose of the proceedimg was to compel payment for the benefit of the referee, as the defendcmts were not liable to pay him.”

It will be seen that the order from which the appeal is taken in this case is subject to one of the objections pointed out in Fischer v. Radb [supra) as to the order in that case. There is no adjudication that the alleged misconduct of defendant defeated or in any way affected or prejudiced any right or remedy of the plaintiff. In the subsequent decision of the Court of Appeals in the same case (Fischer v. Langbien et al., 103 N. Y. 84) it was not intended to overrule the doctrine established when the case was first before that court. The other cases cited by the learned counsel for respondent, if inconsistent with Fischer v. Raab et al. (supra), must be deemed overruled by that authority.. (See, also, Matter of Swenarton v. Shupe, 40 Hun, 41-43; Sandford v. Sandford, Id. 540, 541; Boon v. McGucken, 67 id. 251; Code Civ. Proc. §§ 14, 2281-2283.) There is a further objection to the order in question. It assumed to commit the defendant to jail for an offense that he could not commit until after the order took effect. The order to pay the receiver the sum of $2,916.45 necessarily preceded the offense of defendant in disobeying it. Its direction to defendant to pay the money to the receiver forthwith must be understood as a command to pay the said money immediately after the order was signed, a copy served and a demand made for the money. There was no order defendant was compelled to obey, until it was signed by the judge and a copy served on him and a demand made. If he then refused to obey, another order was required. The contempt could not precede the making of the order. It is true that the court, on February thirteenth, could have made an absolute order, if properly drawn, committing defendant for contempt on account of his previous refusal to pay the money to the receiver. But no such order was made. Defendant was required to pay to the receiver the money in question or stand committed. After the making of the order he should have had an opportunity to make said payment; and if not made, another order was required. (See Brinkley v. Brinkley, 47 N. Y. 40, 46, 47; Kuhn v. Kuhn, 23 N. Y. St. Repr. 387, 388; Rice v. Ehele, 55 N. Y. 518-521.)

I think, therefore, that the order in the first above entitled action should be modified by striking therefrom the words “ or stand committed to the Clinton county jail until such delivery be made, or until discharged by law or order of this court,” at the end thereof, and inserting in the place of the words so stricken out “upon the demand of said receiver for said sum,” and that the order in the second above entitled action or proceeding should be reversed, with the usual costs and disbursements on both appeals, and the defendant discharged from arrest.

Mayham, P. J., and Herrick, J., concurred.

In the action first above entitled, order modified, as per opinion, with ten dollars costs and printing and other disbursements.

In the second, order reversed, with ten dollars costs and printing and other disbursements.


author: Mayham, P. J.:

text:
    The People of the State of New York, Respondent, v. Irving Gumaer, Appellant.

      .Seduction under the promise of marriage — proof as to the place where the offense was committed — corroboration of the testimony of'the female seduced.

    Where the indictment of a person for the crime of seduction under the promise of marriage states that the seduction was committed in a specified town and county, while the evidence upon the trial shows that the same took place near “ Sand Spring,” without specifically showing that such locality was within the limits of such county, the court and jury are authorized, in the absence of any evidence showing that locality to be outside of the county limits, and where no question is made upon that subject on the trial, to find it to be within such county, and upon appeal a reversal will not be granted on the ground that the evidence fails to show that the crime was committed within the territorial jurisdiction of the trial court.
    Upon the trial of a prisoner for the crime of seduction under promise of marriage, the evidence of the female seduced .is sufficiently corroborated as to the promise of marriage to authorize the submission of the question to the jury, when it is shown that the acquaintance of the prisoner and the complainant commenced in January, and that the prisoner’s attentions to her were unremitting from then until the following June, the time when the seduction was alleged to have been committed, during which time he visited her every Sunday, frequently rode out with her, attended upon her, escorted her to parties and in visits to her friends, and evinced for her great partiality.
    ■(Herrick, J., dissenting.)
    Appeal by tlie defendant, Irving Gumaer, from a judgment of the Court of Sessions, held in and for the county of Sullivan, rendered on the 14th day of December, 1893, convicting him pf the crime of seduction under the promise of marriage.

      John W. Dyon, for the appellant.

      David 8. Hill, District Attorney, for the respondent.
   Mayham, P. J.:

The appellant relies mainly upon two grounds for a reversal of "the conviction:

First. That it does not affirmatively appear that the alleged crime was committed within the territorial jurisdiction of the Court of Sessions of Sullivan county.

Second. That the testimony of the prosecutrix is not supported by ■other evidence as required by section 286 of the Penal Code.

The indictment charges that the offense was committed at the -town of Eorestburgh in the county of Sullivan, and while the evidence described the seduction as occurring near Sand Spring, without-specifically showing that that locality is within the limits of Sullivan county, still, we think, in the absence of any evidence showing that locality outside of the county limits, or of any question being made upon the trial, upon that subject, the court and jury were authorized, upon all of the evidence, to find it within that county, and that the defendant cannot now, on appeal, without any proof to support his contention, ask a reversal of this conviction on the ground that the evidence fails to show that the crime was committed within the territorial jurisdiction of the trial court.

The indictment complied with the provisions of subdivision é of section 28fi of the Code of Criminal Procedure by stating that the offense was committed within the county of Sullivan, and the proof, in the absence of any objection or suggestion to the contrary, sustained that allegation.

This brings us to the consideration of the second ground urged by the defendant for a reversal of this conviction, viz.: Was there a sufficient corroboration of the evidence of the prosecutrix to satisfy the requirements of section 286 of the Penal Code ?

The corroborating circumstances relied upon by the People consist mainly of the evidence of attentions of the defendant upon the prosecutrix in the character of a suitor. The undisputed evidence shows that their acquaintance commenced in January, 1891, and that his attentions were unremitting from that time until the seventh of June, when it is alleged the offense was committed; during that interval he visited her every Sunday, frequently rode out with her, attended upon her, and escorted her to parties and to visit her friends, and evinced for her such partiality by his attentions as to furnish some evidence which the jury had the right to consider as bearing upon the alleged promise of marriage, and, to some extent at least, corroborated the testimony of the prosecutrix upon that subject.

This alleged promise of marriage and seduction, according to the testimony of the prosecutrix, occurred on the Yth of June, 1891, and the adulterous intercourse was repeated, according to her testimony, on the next Sunday, the fourteenth day of June, at about the same place, on their return from Port Jervis; and defendant continued his visits every Sunday after tliat except one until the fifteenth of August; during all the summer months of that year he was a constant visitor of the prosecutrix.

On the 6th of April, 1892, prosecutrix gave birth to a child which she alleges was the fruit of the defendant’s intercourse with her. Other circumstances are detailed in the evidence which the jury might properly regard as bearing upon the question of the alleged promise and seduction. There was, therefore, other evidence supporting the testimony of the female seduced, which, if believed by the jury, was clearly sufficient to meet the requirements of section 286 of the Penal Code.

. The case was, therefore, a proper one for the jury, and there is sufficient evidence to sustain their verdict. Some criticism is made by the appellant’s attorney upon the charge of the judge, and while in some respects his characterizations may have too plainly reflected his own feelings, there was no legal error in the charge for which this judgment of conviction can be reversed:

The judgment of conviction should be affirmed.

Putnam, J., concurred; Herrick, J., dissented.

Judgment affirmed.


text:
    William A. Dean, Appellant, v. Andrew R. Clark and Another, Respondents.

      Bond of indemnity against taxes given 'to induce a taxpayer to vote for bonding a town — void as against public policy.

    An instrument — reciting the making of a request to commissioners, appointed under chapter 878 of the Laws of 1866, on the date of the execution thereof, to procure a certain loan, that the person making such request was recorded in the assessment roll of a certain town and that he feared that a tax might be levied upon his property appearing on said roll to pay the principal and interest on the bonds to be issued by such commissioners — provided for the payment by the obligors of all such taxes.

      Held, that such instrument might properly be deemed an agreement to indemnify such person against the damages he might sustain in the way of taxation in consequence of his procuring (with others) the commissioners to obtain such loan;

      That, as it presumptively appeared from the recitals of such instrument that it was given in consideration of such person’s requesting the commissioners in writing to borrow a sum of money on the faith and credit of such town and to issue town bonds therefor, such instrument was not enforcible.
    A contract of indemnity to a taxpayer against taxes, resulting from his vote in favor of the bonding of the town of which he is a resident, has a tendency to influence his action and hence injuriously affects the public interests.
    Appeal by tlie plaintiff, "William A. Dean, from a judgment of tlie Supreme Conrt in favor of tlie defendants, entered in tlie office of tlie clerk of the county of Columbia on the 24th day of January, 1894, upon the dismissal of the complaint directed by the court after a trial at the Columbia Circuit before the court and a jury.

      John G. Du/rdess, for the appellant.

      Gadman <& Peole, for the respondents.
   Putnam, J.:

Section 1 of chapter 3J3, Laws of 1866, provided that on the application in writing of twelve or more freeholders in any town in either the counties of Rensselaer or Columbia, it should be the duty of the county judge of the county where such town was situated, or any justice of the Supreme Court at Special Term, to appoint not more than three freeholders to carry into effect the purposes of the act.

Section 2 authorized said commissioners to borrow on the faith and credit of such town such sum of money as a majority of the taxpayers therein representing a majority of the taxable property thereof should determine, not exceeding twenty-five per cent of the assessed valuation of said town. The act further provided that the authority conferred by section 2 should only be exercised upon condition that the consent of such majority of the taxpayers appearing upon the assessment roll of 1865 should first be obtained in writing, acknowledged before a justice of the peace, which writing should be filed, with a copy.of the assessment roll annexed, in the office of the clerk of such town and the county clerk of the county. The act further provided for the raising of the money by taxes to pay the principal and interest of the money borrowed in pursuance of its provisions.

Under the said act three persons were appointed commissioners for the town of New Lebanon, Columbia'county, and the plaintiff, a taxpayer of said town, with others comprising a majority in number, and representing a majority in amount of the taxable property of said town appearing upon the assessment roll of 1865, consented to and requested in writing that the said commissioners should borrow on the faith and credit of said town the sum of $100,000. On the same day the defendants, Andrew R. Clark, Henry D. Gay and others, executed to plaintiff a bond in the penalty of $1,500, with the following conditions:

“Whereas, the above-named Dean has this day signed a certain request to Ransom II. Gillett, Moses Y. Tilden and Joseph IL Royce, commissionei's appointed under the first section of the act of the Legislature of the State of New York, approved the fourth day of April, 1866, entitled ‘An act to authorize any town in the counties of Columbia or Rensselaer to aid in the completion of the Lebanon Springs railroad’ (a copy of which is hereto annexed), that the said commissioners in conformity with the said second section of said act, shall borrow on the faith and credit of said town one hundred thousand dollars, and issue town bonds therefor; and whereas the said Dean is recorded upon the assessment roll of said town, for the year 1865, for the sum of thirty-five hundred and fifty dollars; and whereas the said Win. A. Dean fears a tax may be levied upon the property appearing upon the said roll to juay the interest that shall fall due upon the town bonds, as well as the principal of the same, when they shall become due.

“ Now, therefore, the condition of this obligation is such that if the said obligors shall save harmless and indemnify the said Dean from all payments lie may make on account of any taxes levied upon the property appearing upon the said assessment roll in any year, and which tax shall be levied and collected for the puiqiose of paying interest or principal of the town bonds issued as aforesaid, then this obligation shall be void, otherwise remain in full force and effect.”

The action was brought on this undertaking, the plaintiff claiming to recover the sum of $1,500.

It was shown that bonds of the town -were afterwards issued, in pursuance of the request and consent of plaintiff and other taxpayers, for the sum of $100,000 borrowed thereon, and it was admitted on the trial that plaintiff had been compelled to pay $1,000 in taxes levied on his' property to apply upon the principal and interest of such bonds.

The trial court held that the instrument upon which the action was brought was not supported by any legal consideration, and was in contravention of public policy, and dismissed the complaint.

The learned counsel for the appellant insists that it was an unwarranted assumption on the part of the trial court that the promise of indemnity to plaintiff contained in the instrument above set out was made in inducement and in consideration of plaintiff’s signing the request to the commissioners to borrow on the faith and credit of the town $100,000 ; that such assumption was not justified by the language of the bond or by the evidence given on the trial.

It does not appear that any such position was taken by the counsel on the trial. An exception was allowed to the decision of the court dismissing the complaint on a statement of facts made by the trial judge. The plaintiff on the trial made no objection or criticism upon the assumption of the court as to the facts, and made no request to go to the jury on any question in the case.

We think, however, that the assumption of the trial judge was justified by the language of the instrument in question. It recites the making of a request to the commissioners by plaintiff on the day of the execution of the paper; that he was recorded on the assessment roll of said town for the year 1865 for $3,550 ; that he feared a tax might be levied upon his property appearing on said roll to pay the principal and interest on the bonds to be issued by the commissioners, and the undertaking provided for the payment by the obligors of all such taxes. The instrument in question may properly be deemed an agreement to indemnify plaintiff against the damages he might sustain in the way of taxation in consequence of procuring (with others) the commissioners to obtain the loan. The paper said: Whereas, you have requested the commissioners to borrow $100,000, and fear a tax maybe levied on your property to pay the principal and interest on such loan, therefore, the obligors agree to pay such taxes. The word “ whereas ” is defined to mean “ the thing being so that, ” “ considering that things are so.” The undertaking, therefore, said, considering that you have requested the town commissioners to borrow $100,000, and fear a tax may be levied on your property to pay said loan, we agree to indemnify you against said tax. We think it presumptively appeared from the recitals of the instrument in question, that it was given to plaintiff in consideration of his requesting the commissioners in writing to borrow said sum of $100,000 on the faith and credit of the town, and to issue town bonds therefor. It is a well-settled principle that whatever may be fairly implied from an instrument in writing is, in judgment of law, contained in it. (Rogers v. Kneeland, 13 Wend. 114.) The language of the instrument in question fairly implied that it was made to indemnify plaintiff from the consequences of his act in requesting the town commissioners to bond the town for $100,000.

Counsel for plaintiff contends that the instrument in question — if given in consideration of plaintiff’s signing the request to the commissioners to issue bonds of the town or to indemnify him from the payment of taxes on his property resulting from the issuing of said bonds —■ did not contravene any principle of public policy, hence, was not illegal, and that the court erred in dismissing the complaint.

The Legislature, by section 2 of chapter 373 of the Laws of 1866, gave authority to the commissioners appointed in the town of New Lebanon, pursuant to section 1 of said act, to borrow on the faith and credit of the town such sum of money, not exceeding twenty-five per cent of the assessed valuation of the town, as a majority of the taxpayers, representing a majority of the taxable property therein should determine upon, on condition that the consent of such majority of the taxpayers appearing on the assessment roll of 1865 should first be obtained in writing. In pursuance of the authority so conferred by sections 1 and 2 of the act of 1866, on the request of plaintiff and other taxpayers, the sum of $100,000 was borrowed and the town bonded therefor. It was clearly a matter of public concern in said town whether or not $100,000 should be borrowed for the benefit of the Lebanon Springs railroad and bonds issued therefor, to pay which, and the interest thereon, the citizens of the town would be afterwards necessarily taxed. It was a question affecting the public interests of the town which plaintiff and other citizens and taxpayers were compelled to pass upon. Such an expenditure on behalf of the town might or might not be beneficial to it. It might be for the interest of the taxpayers to pay the tax assessed against them on account of such loan jn consideration of the benefit they would derive from tlie proposed railroad, or it might not. The question submitted to the taxpayers was one of great public importance to the town. Plaintiff’s action in the matter affected not only himself but other taxpayers. It affected those citizens who refused to make any request to the commissioners. And also others who did consent to the bonding of the town but were induced to do so by the action of the plaintiff. We think public policy required the unbiased and uninfluenced judgment of the several taxpayers on the question submitted to them pursuant to the statute. The action of the taxpayers in determining whether the $100,000 should be loaned might be deemed similar to an act of legislation. The Legislature, instead of passing on the question of the loan, submitted it to the taxpayers of the town, a majority of whom voted in its favor. By the bond of indemnity the obligors agreed to pay plaintiff the amount he should be taxed in consequence of the proposed loan. Such a bond naturally and necessarily affected his judgment as to the propriety and necessity of the loan. It was like a bribe to him with a view of affecting his action as a citizen on a matter affecting the public interest of the town. The question submitted to the taxpayers was whether the taxable property of the town should be mortgaged, so to speak, to secure a loan of $100,000 for the purpose of aiding the construction of the Lebanon Springs railroad. Plaintiff, as a citizen, was called upon to vote upon the proqjosed measure, which, as we have said, was of great importance. The agreement of the obligors to indemnify him from the payment of taxes to result in consequence of his vote aiid that of the other taxpayers, was very much like an undertaking to pay him $1,000 for his vote.

By such a procedure a minority of the taxpayers of any town could have induced a majority to vote for the bonding of the town under the act, when the judgment of the majority of such taxpayers, if uninfluenced, was opposed to the project. We think public policy required that the vote of each taxpayer of the town of New Lebanon on the proposal to bond it for the benefit of the Lebanon Springs railroad should be uninfluenced, and that, hence, the promise of the defendants to indemnify plaintiff against taxes resulting from his vote was not enforcible.

We think the views above suggested are sustained by the authorities. In Sedgwick v. Stanton (14 N. Y. 291) it is held “ that contracts illegal at common law as being contrary to public policy are such as injuriously affect or subvert the public interest * * such contracts as by their terms or contemplated manner of performance must work some mischief affecting the body politic.” In 19 American and English Encyclopaedia of Law, 565, quoted by counsel for the appellant, public policy is defined as follows: That principle of the law which holds that no one can lawfully do that which has a tendency to be injurious to the public, or against the public good, may be termed the policy of the law, the public policy in relation to the administration of the law.”

It seems clear that a contract of indemnity to a taxpayer against taxes resulting from his vote in favor of the bonding of bis town bas a tendency to influence bis action, and, hence, injuriously affect tbe public interests. As bearing on the question involved see, also, Stanton v. Allen (5 Den. 434, 442); Smith et al. v. Applegate (2 Zabr. 352 and cases cited); O'Hara v. Carpenter (23 Mich. 410); Thomas v. Caulkett (57 id. 394); Noyes v. Day (14 Vt. 384); Gibba v. Smith (115 Mass. 592).

Our conclusion, therefore, is that the trial court made the proper disposition of the case, and that the judgment should be affirmed, with costs.

Mayiiam, P. J., and PIerrick, J., concurred.

Judgment affirmed, with costs.


author: Per Curiam :

text:
    Emeline Pettit, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.

      structure or business 'authorized by the Legislature is not a nuisance per se — it may become so by reason of circumstances.

    Whenever a franchise is granted by tbe Legislature to erect a structure or carry on a business, tbe erection of the structure or the carrying on of the business is not, and cannot, of itself be unlawful or a nuisance. It may, however, become a nuisance because of the manner of its operation or of its construction, or by reason of its location under certain circumstances. Every tiling that is necessarily and naturally incident to its operation is embraced within the franchise and is not a nuisance although it may operate as sueli; damage caused thereby to third persons is damnum absque injuria.

      It is lawful for a railroad company in connection with the operation of its road to erect and operate steam pumps, using coal which generates and discharges smoke, but if the machinery is so located that its operation becomes a nuisance, when its location might have been such that it would not have become a nuisance to others, it may be declared a nuisance by reason of such location, and damages may be recovered by one who receives therefrom injury or damage peculiar to himself. *

    The fact that a pump operated by steam and used in connection with a railroad is erected alongside a highway, and that it emits smoke and steam, and makes some noise, is not sufficient to constitute a nuisance, although the smoke settles upon such highway.when the wind is in a certain direction.
    Appeal by the plaintiff, Emeline Pettit, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Greene on the 10th day of October, 1893, upon the dismissal of the complaint directed by the court after a trial at the Greene Circuit before the court and a jury, with notice of an intention to bring up for review on such appeal the decision of the court dismissing the complaint.
    This action was brought to recover damages for personal injuries sustained by the plaintiff in being thrown from a wagon.
    The complaint alleged the erection and operation by the railroad company of a steam pump situated by the side of a traveled highway ; that such pump was used for the purpose of supplying water as required for the needs of the railroad; that during the operation of such pump, the smoke and steam generated thereby spread over the highway in such manner as to frighten horses; that such construction and operation of the pump was a nuisance and dangerous to the safety of persons traveling along said highway in wagons drawn by horses, and that by reason of negligence on the part of the defendant in the operation of such steam pump, the plaintiff sustained the injuries for which she sought to recover damages in this action.
    The opinion of the trial justice in granting the defendant’s motion for a nonsuit was as follows:
    Eursman, J.:
    This question is not altogether free from difficulty. I foresaw yesterday that it must arise from the direction which the evidence was taking under the examination of counsel.
    Whenever a franchise is granted by the Legislature to erect a structure or to cany on a business, tlie erection of the structure or the carrying on of the business is not, and cannot of itself be unlawful or a nuisance. It may become a nuisance by reason of the manner of its operation or of its construction, or by reason of its location under certain circumstances. The structure being thus authorized* by the Legislature, and its being, therefore, legal and not a nuisance of itself, everything that is necessarily and naturally incident to its operation is embraced within the franchise, and is, therefore, not a nuisance, although it may operate as a nuisance and damage to the injury of some. In such case the law says it is damnum cibsque im/juria■ — -an injury from which damages do not flow.
    Now this structure was a lawful structure, and was authorized by the Legislature, because it is within the franchise granted by the General Railroad Act. It is a necessary incident to the operation of railroads that they should take water, and where they cannot obtain it by gravity they can take it by operation of pumps. They can operate pumps by steam and use the coal which generates and discharges smoke, and of course generates and discharges steam, and which is necessarily accompanied by considerable noise. These things are lawful because they are naturally and necessarily incident to the operation of the machine which itself is authorized by the franchise granted by the Legislature. If, however, this machine is so located that its operation necessarily becomes a nuisance to others, when its location might have been such that it need not and would not become a nuisance to others, I think the law is that it may be declared a nuisance by reason of such location, and damages may be recovered by one who receives injuries or damages peculiar to himself.
    Now, there are two difficulties it is claimed in the way of recovery in this case. The first is, that the evidence does not show this pump and the operation of it to be a public nuisance. The proof as to the location (and so far it is in accordance with the allegation in the complaint) is, that it was erected alongside of a highway, a much frequented highway; that it emitted smoke and steam and made some noise.
    The injury, so far as the plaintiff was concerned, is wholly attributed in the proof to the smoke coming out of this pumping machine and descending upon and across the highway and its vicinity. There is no pretense or claim in the proof that the emission of steam or the noise of machinery had anything to do with the frightening of these horses.
    Now, the proof is that it is only when the wind is in a certain quarter that the smoke crosses the highway at this point, and there is no proof whether the wind is in that quarter and the smoke therefrom comes across the highway once a day, once a week, or once a year. It did on this occasion, the wind being northerly, and the proof being that when the wind was northerly the smoke crossed the highway at this point.
    Now, is it to be said that a structure is a nuisance because it is so located that at some particular time and under some particular circumstances, which are not proved to be frequent, or common, or usual, a certain result may flow, such as in this case ?
    Another objection raised is, that the complaint does not allege that this machine was originally improperly located, located so that by reason of its location it became a nuisance, or that by reason of its location (its operation in this location) it is- maintained as a nuisance.
    I think the complaint is defective in this particular. I do not think that upon either of these grounds the plaintiff has maintained a cause of action on the proof, and I, although reluctantly, grant a nonsuit.

      FT. A. Galkins, for the appellant.

      F. L. Westbrook, for the respondent.
   Per Curiam :

We think the judgment should be affirmed for the reasons stated by the learned trial judge in granting the motion for a nonsuit. (See Flinn v. The N. Y. C. & H. R. R. R. Co., 112 N. Y. 11.)

The trial judge was correct in holding that the evidence did not show that the pump and the operation of it wTas a public nuisance. ~VVe think on the evidence he was not required to submit the question as to its being such to the jury. Hence the case of Morton v. Mayor, etc., of New York (110 N. Y. 207) and kindred cases cited by appellant do not apply. All that was shown was that when the wind blew in a certain direction and in certain conditions of the atmosphere the smoke from the defendant’s pump building settled down on the highway. It did not appear how often this happened. If defendant’s building and its operation was a nuisance no railroad company could run its trains along or near a highway or through a public street, because when the wind would blow in a certain direction, and in certain conditions of the atmosphere, the smoke from its engines would settle down, as it often does, on the street. For the same reason a manufacturing establishment could not be located ou or near a highway or street.

Morton v. Mayor, etc., of New York (supra) was a case where the city ¡haced a building with pumping machinery on its premises adjoining those of plaintiff, and it was shown that the noise and vibration produced by the operation of the machinery rendered plaintiff’s premises untenable. The other cases cited by plaintiff are of the same character. They were all cases of undoubted nuisances, the effect of which, in each instance, was to practically deprive the complaining party of his property. Those authorities were very different from this case, where all that appears is that when the wind is in a certain direction, occasionally (how often is not shown) the smoke from the defendant’s structure settles down on the highway.

The judgment should be affirmed, with costs.

Present — Mayham, P. J., Putnam and IIerexck, JJ.

Judgment affirmed, with costs.


text:
    Solomon Fleischman and Another, Respondents, v. Gertrude Fleischman and Another, as Executors, etc., of David Fleischman, Deceased, Appellants, Impleaded, etc.

      Abstract questions not passed on- hy the appellate -courts.

    An appellate court -will not pass upon mere abstract questions from the determination of which no practical result can follow.
    Appeal by the defendants, Gertrude Fleisclnnan and another, as executors, etc., of David Fleisclnnan, deceased, from an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Albany on the 26th day of February, 1894, denying the defendants’ motion for an order-requiring the plaintiffs to reply to new matter set up in the answer of the defendants.

      Ohas. B. Cole, for the appellants.

      J. Newton Fiero, for the respondents.
   Per Curiam :

This is an appeal from an order denying defendants’ motion that plaintiffs be required to reply to the new matter set up in the answer. There is also submitted an appeal from an order in the same action made at the same time granting plaintiffs’ motion to discontinue the-action as to said appealing defendants. The two appeals were argued together.

There can he no object, therefore, in passing upon the question submitted to us on this appeal. The defendants have ceased to boparties to the action. Should we conclude to reverse the order, the plaintiffs cannot he compelled to serve a reply. The only effect of a decision would be to obtain the opinion of this court upon the legal questions involved.

Appellate courts have uniformly refused to pass upon “mere abstract questions from the determination of which no practical result can follow.” (People ex rel. Gilbert Geer, Jr., v. Common Council of Troy et al., 82 N. Y. 575; The Commercial Union Assurance Co. (Lim.) v. Morris H. Smith et al., 40 N. Y. St. Repr. 758.)

The appeal should be dismissed, without costs to either party.

Present — Mayham, P. J., Putnam and Herrick, JJ.

Appeal dismissed, without costs to either party.


author: Mayiiam, P. J.:

text:
    Richard H. Shires, Respondent, v. Fonda, Johnstown and Gloversville Railroad Company, Appellant.

      Negligence — duty of a person appi'oacMng a railroad crossing — vohat is not-a dangerous rate of speed, for a train.

    It is the duty of a person approaching a railroad crossing, in order to relieve himself from the imputation of negligence, to look in both directions for approaching trains.
    A train on a steam railroad moving, at the time of an accident at a highway crossing, at the rate of from eight to ten miles an hour, and giving the usual warnings of its approach, is not running at an unusual or dangerous rate of speed.
    Appeal by the defendant, the Fonda, Johnstown and Gloversville Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Montgomery on the 25th day of September, 1893, upon the verdict of a jury, rendered after a trial at the Montgomery Circuit, and also from an order entered in said clerk’s office on the 25th day of September, 1893, denying the defendant’s motion for a new trial made upon the minutes, with notice of an intention to bring up for review on such appeal said judgment and order, together with the -exceptions taken on the trial, the denial of the defendant’s motion for a nonsuit and the charge as made to the jury.

      A. D. L. Balcer, for the appellant.

      B. B. Fish, for the respondent.
   Mayiiam, P. J.:

Two questions only seem to be presented for our consideration on this-appeal:

First. Was the defendant negligent in running its trains at too high a rate of speed in crossing this highway, without suitable signals and warnings of its approach ?

Second. Was the plaintiff guilty of contributory negligence, or rather did the evidence show that he was free from contributory negligence, in driving his horse and wagon on to this railroad track nt the time of the collision and injury ?

The track of the defendant’s railroad starts from the depot at Fonda and runs in a westerly direction nearly parallel with Main street in that village, about 1,000 feet, where it crosses the Cayudetta creek, and there commences to curve to the north on an ascending grade of forty-two feet to the mile, and at a distance of 200 feet from the creek crosses that street at an acute angle with the same.

Northerly of the railroad bridge over this creek, and at a distance of 135 feet therefrom, Main street crosses the creek and continues in a westerly course 128 feet to where it is crossed by the railroad track. At this junction of the railroad and street the carriage of the plaintiff collided with an engine of the defendant, and the injury of which the plaintiff complains was inflicted.

The accident occurred about seven p. m. on the tenth of May. The-train started from Fonda and was moving up the track towards Johnstown at a moderate rate of speed, and as the same passed over the railroad bridge 200 feet from the junction, the plaintiff drove over the wagon bridge in the direction of the junction and 128 feet therefrom. Between the turnpike or street'-on which the plaintiff was driving and the railroad track there appears to have been three intervening obstructions to vision, one a house twenty-two feet wide, and two elm trees. With the exception of these obstructions the railroad track was visible from the street on which the plaintiff was-driving all the distance from the highway bridge to the railroad crossing. The undisputed evidence shows that from a point on the-highway or street on which plaintiff was driving, forty-five feet from the track, the view of, the track from the crossing to the railroad bridge, a distance of 200 feet, was entirely unobstructed. The-train was moving at the rate of from eight to ten miles per hour, and seven witnesses swear that the whistle of the locomotive was sounded and bell rung as the train approached this crossing. The-plaintiff, his wife and a lady riding with them, each swear that they did not hear these signals.

Upon these facts, we think that the plaintiff failed to make a case of negligence on the part of the defendant. It does not appear that, the defendant’s train, at the time of the accident, was running at an unusual or dangerous rate of speed; and the evidence that the usual signals and warnings were given on the train on approaching this-■crossing seem overwhelming. That evidence is of a positive and affirmative character, and testified to by seven witnesses, some of whom do not appear to be in any way connected- with the defendant ; and as to those who are shown to be the employees of the defendant there is no greater presumption of bias attached to their testimony, on the ground of interest, than would attach to the testimony of the-plaintiff and the two ladies riding in the carriage with him.

The burden is upon the plaintiff, who charges negligence upon the defendant, to establish the truth of his charge. In this he seems, upon the evidence, to have failed; and if the appellate court ought over to reverse, where there is some evidence in support of a verdict, but a clear and decided preponderance of evidence against it, this is such a case.

But even if there were sufficient evidence of negligence on the part of the defendant to uphold the verdict, we think that the evidence wholly fails to establish the plaintiff’s freedom from contributory negligence.

As we have seen, the plaintiff was in plain view of this track for most of the distance from the railroad and wagon bridges to the crossing at which the accident occurred, and was familiar with the location of the highway and railroad track. The evidence shows that if on approaching the railroad track he had looked, he could and must have seen the approaching train. Had he done so, he could without difficulty have avoided collision by turning to the right into the public road on the east side of the Lisner House, or, if he had passed that house, by turning into the road to the coal house between the Lisner House and the railroad sign, either of which presented a safe and accessible Avay of escape.

It is true the plaintiff testifies that he was looking to the north, and did not observe the approaching train on the south, but, as trains were liable to approach from either direction, he was required, in order to relieve himself from the imputation of negligence, to look in both directions. (Cullen v. Pres., etc., of D. & H. C. Co., 113 N. Y. 667; Crandall v. Lehigh Valley R. R. Co., 72 Hun, 431.)

We think the learned trial judge erred in refusing to nonsuit the plaintiff on the motion of the defendant at the close of the testimony and in refusing to set aside the verdict and grant a new trial on defendant’s motion upon the minutes.

Putnam and Herrick, J J., concurred.

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


text:
    The People of the State of New York ex rel. Tiffany & Co., Relator, v. Frank Campbell, late Comptroller of the State of New York, and James A. Roberts, Comptroller of the State of New York, Respondents.

      Exemption of manufacturing corporations from taxation under section % of chapter 542 of the Lam of 1880 — how restricted by chapter 353 of the Lanas of 1889 •— construction of statutes.

    Under the provisions of section 3 of chapter 542 of the Laws of 1880, prior to the passage of chapter 353 of the Laws of 1889, manufacturing corporations doing business within the State of New York, whether incorporated under the laws of the State of New York or of any foreign State or country, were exempt from tax imposed under such act, without any restriction upon their doing business out of the State or transacting other business within the State.
    The Legislature, by chapter 353 of the Laws of 1889, amending chapter 542 of the Laws of 1880, intended to apply a new rule to the taxation of domestic and foreign manufacturing corporations, and, by the passage thereof, the exemption of manufacturing corporations from taxation contained in section 3 of chapter 542 of the Laws of 1880 was restricted. Such amendment requires that a corporation, in order to entitle it to claim the exemption, shall be wholly engaged in manufacturing within the State of New York.
    In construing an act of the Legislature, if doubtful or uncertain language is employed, the court, for the purpose of arriving at the legislative intent, may properly look for the motive that induced the Legislature to make the enactment.
    Certiorari issued out of tbe Supreme Court and attested on tie 27tli day of January, 1894, directed to Frank Campbell, late Comptroller of the State of New York, and James A. Noberts, Comptroller of tbe State of New York, commanding tliem to certify and return under tbeir bands and seals their respective proceedings in relation to tbe tax assessed upon the capital stock of tbe relator.

      Charles E. Miller and Norton Olíase, for tlie relator.

      John W. Hogan, for respondent Noberts.

      Nathaniel W. Norton, for respondent Campbell.
   Mayham, P. J.:

Tiffany & Co. is a .domestic corporation created under the General Manufacturing Act of 1848, with its principal office and jfiace of business in the city of New York, having a capital stock of $2,400,000, and a surplus, during the period from 1888 to 1891 inclusive, of about $1,000,000, employed as capital in its business.

In July, 1892, the Comptroller settled an account against that corporation for tax for twelve years prior to November 1, 1891, aggregating $237,000, the corporation having hitherto failed to make' a report to that officer.

In March, 1893, Tiffany & Go. made application under the statute to the Comptroller for a revision and resettlement of its accounts for taxes so assessed against it.

Upon a hearing on such application testimony was taken, and on the 28th of December, 1893, the Comptroller made and filed his decision, wherein he determined that this corporation was, prior to 1889, exempt from taxation, but that it was taxable during the years 1889, 1890 and 1891, and fixed the amount of the tax during that period at $6,000.

To review that determination the relator, Tiffany & Co., sued out a writ of certiorari, and now claim that as a domestic manufacturing corporation it is wholly exempt from taxation under the act of 1848, and the various acts amendatory thereof, and that the provisions of chapter 353 of the Laws of 1889, amending the act of 1880, have no application to it.

The Attorney-General, on behalf of the State, also seeks to review by certiorari the determination made by the Comptroller by which he reduced this tax to $6,000. We shall first consider the certiorari of Tiffany & Co. The question presented- by this certiorari is, “ Is Tiffany & Co. wholly exempt from taxation under the statute ? ”

In answering this question a brief examination of the statutes out of which this question arises is necessary.

The first statutory exemption to which our attention has been directed is section 3 of chapter 542 of the Laws of 1880, which provides as follows : “Every corporation, joint-stock conqpany or association whatever, now or hereafter incorporated under any law of this State, or now or hereafter incorporated by any other State or country, and doing business in this State, except savings banks and institutions for savings, life insurance companies, banks and foreign insurance companies and manufacturing corporations, carrying on manufacture within this State, shall be subject to and pay a tax.”

By this section manufacturing corporations doing business within this State, wdiether incorporated under the laws of this State or of any foreign State or country, are clearly exempted from tax imposed under the act of 1880, and that too without any restrictions upon their doing business out of the State or transacting other business within the State.

That exemption was not í'estrictéd or in any way affected by chapter 361 of the Laws of 1881, amending in some respects the act of 1880. This act was again amended in some particulars by chapter 359 of the Laws of 1885, but the exemption from taxation of manufacturing corporations, incorporated under the laws of this State and doing business therein, was not affected by such amendment.

The act was next amended by chapter 353 of the Laws of 1889. By this chapter 542 of the Laws of 1880 was amended so as to read as follows: “ Every corporation, joint-stock company or association whatever, now or hereafter incorporated, organized or formed, under, by or pursuant to law in this State, or in any other State or country and doing business in this State, except only savings banks and institutions for savings, life insurance companies, banks, foreign insurance companies, manufacturing or mining corporations, or companies wholly engaged in carrying on manufacttire or mining ores within this State, cmd agricultural and horticultural societies and associations, which exception, however, shall not include gas companies, etc. * * * shall be liable to and shall pay a tax.”

‘Prior to the act of 1889 manufacturing corporations were exempted from this tax if they were incorporated under the laws of this State, or of any other State or country, and doing business in this State.

The manifest object of the legislation upon this subject, as appears by the legislation itself, and the construction put upon it by the courts, was, by granting these corporations exemption from taxation, to furnish inducements to productive industries to locate their plants and carry on their business in this State, and thus contribute to its general prosperity and aggregate wealth. But this inducement, liberal as it was, did' not, in all instances, secure to the State the desired advantage.

It is quite apparent that the Legislature, in jessing the act of 1889, sought to guard against corporations availing themselves of this immunity from taxation, by organizing under the laws of this State in a name and character which under the statute would exempt them from the franchise tax, and at the same time engage in a business, claimed to be incidental to the protected business in this State, or the same kind of business outside of the State, and thus to a great extent escape taxation.

If we are right in assuming that the policy of the original act of exemption was to foster and encourage manufacturing in the State, we may in like manner assume that it sought, by incorporating in the act the word “wholly,” for the purpose of more effectually accomplishing that object, by compelling corporations entitled to the exemption to conduct a business wholly within this State or lose their right to the exemption, and for the same reason to employ its capital in the business, to encourage which the Legislature has deemed to be for the interest of the State, and hence all corporations within the State not coming within this class the Legislature has seen fit to tax. It can hardly be maintained that the Legislature intended to confer the advantages of exemption from taxation on a manufacturing corporation, and allow such corporation to employ its capital in business in competition with other corporations, companies or individuals, whose business of the same character is liable to be taxed. In interpreting an act of the Legislature, if doubtful or uncertain language is employed, the court may properly look for the motive that induced the Legislature to make the enactment for the purpose of arriving at the legislative intent. (People ex rel. Brush Electric Co. v. Wemple, 129 N. Y. 513.)

But if we are to give the word “ wholly ” its full literal significance, and apply it to manufacturing corporations within this State, no real doubt or ambiguity is left in the statute which could make it necessary to invoke any technical rule of construction. The plain import of the language would be to deprive manufacturing corporations, incorporated under the laws of this or any other State, and doing business partly in this and partly in another State, of the benefits of this exemption. But it is insisted by the learned counsel for the relator that the word wholly,” used in the amendment of the act of 1880, by section 353 of the Laws of 1889,' does not refer to manufacturing corporations, but relates only to mining ores within this State. The language of the statute, with its punctuation, is as follows: “ Manufacturing or mining corporations, or companies wholly engaged in carrying on manufacture, or mining ores within this State,” Did the language employed mean manufacture of ores ” and “ mining of ores,” or did the word “ manufacture” relate to those industries generally known, making from raw material manufactured articles, as designated from another industry known as digging from the soil deposits of metallic substances ?

I am clearly of the opinion, that both industries were required in this statute to be wholly carried on within this State, and that the word “ wholly ” required the corporations engaged in these several industries to confine their operations within this State in order to make the exemption available.

Prior to the enactment of the amendment of 1889 these exempted corporations, whether foreign or domestic, were entitled to exemption if they were doing business within this State, although they were also engaged in their business out of this State; but if they did no business in this State, but carried on their business abroad, they were liable to taxation. (People v. Horn Silver Mining Co., 105 N. Y. 76-78.)

The effect of the amendment of 1889 is Avell illustrated in the case of The People ex rel. Seth Thomas Clock Co. v. Wemple (133 N. Y. 323-325). That was a foreign corporation organized in the-State of Connecticut, and doing business partly in Connecticut and partly within the State of New Yoi’k, from 1880 to 1889, and its average annual business in New York was from $16,000 to $20,000, and for the same'period its average annual business in Connecticut was from $500,000 to $100,000 a year, and the Court of Appeals held that prior to the amendment of 1889 it was exempt from taxation because it was a manufacturing corporation carrying on business in this State, and the court in that case, in discussing the effect of the amendment of 1889, uses this language : “ So also a foreign manufacturing corporation, actually engaged iii manufacturing within this State, was exempt from taxation, the same as a domestic corporation of the same character.” This exemption was restricted by chapter 353 of the Laws of 1889 which requires that the corporation, in order to be entitled to claim the exemption, shall be “ wholly engaged in carrying on manufactures within this State.” The Legislature in passing this amendment intended to apply a new rule to the taxation of foreign manufacturing corpo2-ations.

This last remark was doubtless because the court had in that case a foreign corporation under consideration, and was not intended to distinguish between a foreign and domestic corporation in the application of the new rule created by this amendment.

Indeed, no distinction could be made between a domestic corporation, and a foreign corporation doing business in this State in the application of the amendment of 1889 in express terms, and in the same sentence embraces both foreign and domestic corporations, and in this respect places them under the same rule. The language is organized, or formed under, by, or pursuant to law in this State, or in any other State or country, and doing business in this State.” We are, therefore, by the very language of the act itself, required to apply the same rule to a domestic corporation as was applied in the Clock Company case by the Court of Appeals and to hold that the Legislature have established by the amendment of -1889, and have intended to apply a new rule to the taxing of domestic manufacturing corporations.”

Not only the same language in the statute as to domestic and foreign corporations is employed, but the same consideration of State policy is applicable to domestic and foreign corporations. Judge O’Brien, in discussing the probable object of the Legislature upon that question of policy, uses this language: “ If the Legislature, in providing that manufacturing corporations should be exempt from taxation, intended, as it probably did, to encourage and foster manufactures within the State, the policy of the law would apply as well to a corporation carrying on a small business as to one engaged in larger and more extensive operations,” and we may add that this consideration will apply as well to domestic as to foreign corporations.

There is no distinction in the statute between domestic and foreign corporations, and we see no reason for any distinction on the ground of State policy, and think that the reasoning of the court in the Seth Thomas Clock Company case applies with equal force to the case at bar.

The Comptroller, upon the evidence, finds that the relator employed a portion of its capital outside of its manufacturing business, as follows: For «the year 1889, thirteen per cent, $312,000; for the year 1890, twelve per cent, $288,000 ; for the year 1891, fifteen per cent, $360,000; on which he assessed a tax as follows: 1889, on $312,000, amounting to $1,950 ; 1890, on $288,000, amounting to $1,800; 1891, on $360,000, amounting to $2,250.

We are clearly of the opinion that the relator, by its dealings with its capital, in not confining its use to manufacturing wholly within this State, has deprived itself under chapter 353 of the Laws of 1889 of its immunity from taxation, which it had before that time enjoyed under the act of 1880, and that the Comptroller was authorized and required under the act of 1889 to impose a tax on the relator.

The writ of certiorari must be quashed, with fifty dollars costs and disbursements.

Putnam, J., concurred; Herricic, J., not acting.

Writ of certiorari quashed, with fifty dollars costs and disbursements.