text:
    DANIEL B. McKEE, Respondent, v. THE PRESIDENT, MANAGERS AND COMPANY OF THE DELAWARE AND HUDSON CANAL COMPANY, Appellant.

      Construction by a corporation, under authority of its charter, of a dam upon its own premises — when it is liable for discharging the water upon the lands of an adjoining owner — reinedy, other than one specially provided by the statute.

    The plaintiff, who had been the owner of a farm since 1851, widened a small hrook which ran through it and deepened the channel thereof, and thereby drained certain of the flat land of the farm, which had been boggy and useless land, and made it valuable meadow land. Thereafter, in 1871, the defendant constructed on its own land a dam on this stream above the plaintiff’s land,- which held hack the water, and in dry seasons the defendant let the water run through the brook to its canal, using the brook as a feeder. By doing this the defendant caused the water, when it was allowed to escape from the dam, to back up upon the plain tiff’s flat land and injured it; this result being caused, in part, by a gravel bar below the flat land which held the water back and thus turned it on to the plaintiff’s land.
    Upon the trial of an action, brought to restrain such action on the part of the defendant, the court charged that there was no evidence of neglect or want of care on the defendant’s part, and that the plaintiff’s recovery did not depend upon willful malice or negligent acts of the defendant.
    Upon an appeal from a judgment granting a perpetual injunction and a judgment for past damages, entered upon the verdict of a jury:

      Held, that the provision contained in section 10 of the charter of the defendant . (chap. 338, Laws of 1833), which gave the right to a summary applicatiou fora jury to assess damages, did not take away the plaintiff’s common-law right of action or his right to an action in equity.
    Upon the trial of the action it was not claimed that there was any defect in the construction of the dam or in its maintenance, and it was shown that the defendant only discharged the water at times and in amounts necessary for the use of its canal.

      I-Ielcl, that the plaintiff’s damages did not arise incidentally from the construction of the defendant’s dam, but arose from the intentional act of tlie defendant in discharging through an insufficient chíinnel a large body of water without providing a sufficient outlet below plaintiff’s land.
    A right given by the legislature to dam a stream may excuse a person, who constructs the dam in a proper manner, from liability arising from great freshets or from ordinary percolation of water, but it does not 'authorize the person to pour the water thus accumulated upon the land of other persons; nor can he do this by pouring it through the original channel of the stream in such large quantities that the channel cannot carry it off.
    Appeal by tlie defendant from a judgment, entered upon the verdict of a jury, in favor of tlie plaintiff, rendered at tlie Sullivan Circuit, in tlie Sullivan county cleric’s office, October 16, 1888.
    The plaintiff lias beeli tlie owner of a farm since 1851. Through this ran a small brook. He widened and deepened the channel, and drained his flat land into it. So that the flat, which had been boggy and useless land, has become valuable meadow land. In 1811 defendant constructed, on its own land, a dam on this stream above plaintiff’s land. This dam held back the water; and in dry seasons the defendant let the water run through the brook to its canal, using the brook as a feeder. By doing this the defendant threw the water upon the plaintiff’s flat land and injured it. This result appeared to be owing in part to a gravel bar below the flat land which held the water back, and thus turned it on plaintiff’s land.
    This action was brought in equity to restrain these acts of the defendant, and was tried before the court and a jury. The court charged that there was no evidence of neglect or want of care on defendant’s part; that plaintiff’s recovery did not depend on willful malice or negligent act of defendant. The jury found a verdict for plaintiff. The court approved the verdict and made several findings of fact and law. The court made no finding on the question of negligence ; hut found that defendant had not acquired a right to discharge water upon plaintiff’s land, and that it had at all times been practicable for defendant to cut down and lower the channel of the stream so as to convey the water in as large quantities as necessary without injuring plaintiff’s land. The court granted a perpetual injunction, and a judgment for past damages found by the jury. From this the defendant appealed.

      Thornton A. Afinen, for the appellant.

      Timotlvy F. Bush, for the respondent.
   Learned, P. J.:

We do not think tliet the provision in the charter (chap. 238, Laws 1823, § 10), which gives the right to a summary application for a jury- to assess damages, takes away plaintiff’s common law right of action, or his right to an action in equity. (Selden v. Delaware and Hudson Canal Co., 24 Barb., 362; Crittenden v. Wilson, 5 Cow. 165.) The important question here is whether defendant is liable for the injury caused, without proof of some negligence on its part. It is not claimed that there was defect in the construction of the dam, or in its maintenance; and the defendant only discharges the water at times and in amounts necessary for the use of its canal.

The case of Bellinger v. New York Central (23 N. Y., 42), held that where, in pursuance of legislative authority, a person interferes with a running stream by obstructing its flow, he will not be liable for overflows caused, unless on proof of want of due skill. Probably this case states the doctrine claimed by the defendant. Similar is the case of Cuddeback, v. Delaware and Hudson Canal Company (20 Weekly Dig., 454), where damage was claimed to arise by percolation from defendant’s canal.

If this action wore for damages, occasioned by a break of the dam, the decision in Losee v. Buchanan (51 N. Y., 476, 487) would probably apply. But there is a difference in the present case. The plaintiff’s damages do not arise incidentally from the construction of defendant’s dam; they arise from the intentional act of defendant in discharging through an insufficient channel a large body of water, without providing sufficient outlet below plaintiff’s land. The defendant having a supply of water obtained by its dam, desires to send that water down into its canal. It does this without regard to the fact (of which it has been notified) that the channel of the stream will not carry so large an amount, and, therefore, tlfe defendant is really pouring this water upon plaintiff’s land, with knowledge that it is, so doing. While, of course, the defendant has, we suppose, no wish to injure plaintiff, yet it does acts which it knows will directly injure him, and this it should not be allowed to do. The right to dam a stream, given by the legislature, may excuse the person, who constructs the dam in a proper manner, from liability arising from great freshets or from ordinary percolation of water. But we think that such right does not authorize the person intentionally to pour the water thus accumulated upon the land of other persons. Nor may he do this by pouring it through the original channel of the stream in such large quantities that the channel cannot convey it.

We are of the opinion that the decision of the learned justice was correct and that the judgment should be affirmed, with costs.

Landon and Ingalls, JJ., concurred.

J lidgment affirmed, with costs.


source: Caselaw Access Project

author: Landon, J.:

license: Public Domain

text:
    JAMES WALTER CHRYSTAL, an Infant, by JOHN W. KENNY, His Guardian ad litem, Respondent, v. THE TROY AND BOSTON RAILROAD COMPANY, Appellant.

      Failure of a railroad company to give the staMory signals at tiw proper time — when a jury may infer that the injury might home been avoided if they had been given.

    Tlie plaintiff, a child, seventeen months old, lived with its mother, Mrs. Chrystal, in the village of Hoosick Falls, on the north side of Carey avenue, which was crossed by the defendant’s railroad at a point distant about seventy feet from Mrs.
    ■ Chrystal’s house, which stood back from the line of the avenue twelve feet. About half past two in the afternoon the defendant’s passenger train left the depot in Hoosick Falls and proceeded southerly in a straight line towards the avenue. The plaintiff, who had in some way escaped from the house and out on to Carey avenue, came upon the railroad crossing, and stood there upon the track in front of the defendant’s train. The engineer of the train discovered the child, when distant from it about forty rods, and used reasonable diligence and care to avert the peril, but did not bring the train to a stop until the locomotive had passed over the child, crushing one leg and two fingers.
    The testimony of the mother was to the effect that after dinner she sat upon her door-step holding her baby in her lap; that, noticing that it was inclined to sleep, she entered the house, sat in a rocking-chair and nursed the child; its inclinations to sleep continuing, she laid it on the floor and put a chair in the outside door; went into an adjoining room; stayed there eight or ten minutes, came out and saw the child was missing; ran out of the doors into the back yard; looked among the growing potatoes, into the cistern; heard the whistle, looked and saw the approaching train; ran around to the front gate on Carey avenue, whicli was closed; looked to the crossing and saw her child; ran, but arrived too late.
    Upon the trial of an action, brought to recover damages for the injury sustained by the plaintiff, evidence was given tending to show that no bell was rung or whistle sounded within eighty rods of Carey avenue, and that the whistle was blown only when the engineer commenced to stop the train.

      Held, that the jury had the right to draw the inference that if the signals had been given in time the injury might have been avoided.
    Appeal from a judgment in favor of the plaintiff, entered in the office of the clerk of Rensselaer county on February 24, 1888, upon the verdict of a jury rendered at the Rensselaer County Circuit; and, also, from an order denying a motion made upon the minutes of the justice presiding at the trial for a new trial.

      E. L. Fm-sman, for the appellant.

      R. A. Parmwiter, for the respondent.
   Landon, J.:

This case, to quote from the brief of the plaintiff’s counsel, “ contains all the testimony produced on the former trial, together with some additional evidence given in behalf of the plaintiff. The testimony on the former trial was read from the old printed case on the last trial.”

The Court of Appeals (105 N. Y., 164) reversed the former judgment in favor of the plaintiff, upon the ground that the evidence did not show any negligence on the part of the defendant. The Court of Appeals, disclaiming all power to review any controverted questions of fact which had been found by the jury and sustained by the General Term, intimated that the General Term had failed in its duty in not setting aside the verdict, upon the ground that the evidence in exculpation of the plaintiff from negligence was “ incredible, unnatural and contrary to human experience.” As the Court of Appeals disclaims jurisdiction to review the weight of the evidence, its intimation lacks the force attaching to authority and responsibility. We, therefore, pass the question of the plaintiff’s negligence as settled by our former decision upon the same evidence, reaffirmed by the verdict upon the second trial. Accepting fully the decision of that court that the evidence on the former trial failed to show any negligence on the part of the defendant, we must limit our examination to the inquiry whether the additional evidence tends sufficiently to show, either standing alone or giving to the old evidence a significance and meaning which it did not possess on the former trial, that the defendant’s negligence caused the plaintiff’s injury.

The plaintiff was a child seventeen months old, living with its mother, Mrs. Chrystal, on the north side of Carey avenue, in the the village of Hoosac Falls. The defendant’s railroad crossed this avenue about seventy feet distant from Mrs. Chrystal’s house. The house stood back from the line of the avenue twelve feet. About half-past two in the afternoon the defendant’s passenger train left the depot in Hoosac Falls, 1,800 feet northerly of Carey avenue and proceeded southerly in a straight line towards the avenue. The plaintiff, who was just able to walk, had in some way eluded the vigilance of its mother, escaped from the house and out on to Carey avenue, and thence came upon the railroad crossing and stood there upon the track in front of the advancing train. The child was not sensible of its danger. The engineer of the train discovered the child when distant from it about forty rods, and then, to use the language of the Court of Appeals, did “use reasonable diligence and care to avert ” the peril. The train was brought to a stop, but not until the locomotive had passed on or over the child, crushing one leg and two fingers. Hpon the former trial the plaintiff’s contention was that the defendant was negligent in not sooner stopping the train. That contention failing, upon this trial evidence was given tending to show that no bell was rung or whistle sounded within eighty rods of Carey avenue; and in this respect, and in no other, does the plaintiff present additional evidence deserving mention. When the defendant commenced to'stop the train the whistle was blown. That the additional evidence raises the question whether the bell was rung or the whistle sounded “ at the distance of at least eighty rods from the place where the railroad shall cross any traveled road or street on the same level with the railroad,” is not contested by the defendants’ counsel; but his contention is that, if omitted, it is unreasonable to suppose, and could not, therefore, reasonably be found, that the omission to ring the bell or blow the whistle in any way contributed to the plaintiff’s injury.

We accept the finding that neither the bell was rung nor the whistle sounded at the distance of at least eighty rods from the crossing. The sole question, then, is whether the jury had the right to draw the inference that the omission caused the injury or contributed to it. It may be assumed that whether the statutory signals were given or not was of no importance respecting the action of the child, since it could not understand them. It is claimed, however, that if the signals had been given they would have sooner arrested the attention of the child’s mother, and thus have called her attention to the railroad crossing in time for her to save her child. Mrs. Ohrystal’s testimony is to the effect that after dinner she sat upon her door step holding .her baby in her lap ; noticing that it was inclined to* sleep, she entered the house; sat in a rocking chair, nursed the child; its inclination to sleep continuing, she laid it on the floor; put a chair in the outside door; went into an adjoining room; staid there eight or ten minutes; came out and saw tlie child was missing; ran out of doors into the back yard; looked among the growing potatoes, into the cistern; heard the whistle; looked and saw the approaching train; ran around to thg front gate on Carey avenue; the gate was closed; looked to the crossing and saw her child; ran, but was. too late. Of course, no one can surely know whether, if the bell had been rung or the whistle sounded eighty rods away, the mother would have heard or noticed, and if she had, whether her sense bf danger from the railroad would have been so quickened as to have resulted in saving her child. The inference either way may be quite satisfactory to different minds equally fair. Hence we conclude the jury had the right to draw the inference that if the signals had been given in time the injury might have been avoided.

The defendant’s counsel excepted to some of the responses made by the court to the various questions which were propounded under the form of requests to charge. It is obvious from the charge, and the answers to requests to charge, that the jury could not fail to understand that they could find no verdict against the defendant unless the omission to give the statutory signals caused, or contributed to cause, the plaintiff’s injury. The court assented to the various requests in which this proposition was amplified, divided and reiterated. Various propositions extracted from the opinion of the Court of Appeals in this case were presented as requests and assented to. The court thus held that the defendant was not responsible for any error of judgment on the part of the engineer as to the speed of the train, its distance from the child, the child’s age, peril, his own ability to stop the train, and that all the engineer was bound to do was to use rear sonable diligence and care to avert the danger after he discovered it. The nineteenth request then was: “ That there is no evidence in this action that he did not do this.” To which the court responded: “ I leave it as a question of fact for the jury.” Now, the opinion of the Court of Appeals is to the effect that there is no evidence that he did not do this. The counsel was manifestly seeking for an exception, and he asks for a reversal because the court did not maintain the standard of 100 per centum upon an examination upon the-opinion of the Court of Appeals.' The ruling asked by counsel was not at all necessary, for the court, by making the omission to sound the whistle or ring the bell the necessary prerequisite of defendant’s negligence, had, in effect, excluded every other kind of negligence, and thus protected the defendant upon this very question which it now unnecessarily introduced, and it is improbable that the response of the court weakened that protection.

The plaintiff’s counsel asked the court to charge that the defendant was not relieved of the duty to ring the bell or sound the whistle under any circumstances. The court so charged “as an abstract proposition,” thus clearly implying that it was of no practical importance in this case, and he soon after added that the failure to ring the bell or whistle would entitle the plaintiff to a verdict, “ provided the failure tended to produce the injury.”

The judgment is affirmed, with costs.

Learned, P. J., and Inwalls, J., concurred. ■

Judgment and order affirmed, with costs.


author: Learned, P. J.;

text:
    In the Matter of the Assignment of FELT & BELL for the Benefit of Creditors — Accounting of GEORGE H. DORR, Assignee.

      Accounting by a general assignee — when he will be charged with the costs of an action unnecessarily defended by him — the fact that the judgment did not make them payable by him personally, does not prevent the court from deducting them from his commissions omd expenses — a cha/rge for the use of his own horse in the business of the estate disallowed — when an assignee, carrying on the business and discounting notes for cash, will be charged with the difference between the notes and the cash.

    Appeal by George H. Dorr, tbe assignee for tbe benefit of creditors of Felt'& Bell, from a decree made by tbe county judge of St. Lawrence County, settling his accounts as such assignee, entered in tbe St. Lawrence county clerk’s office, November 21, 1883
    Tbe court at General Term said: “ Tbis is an appeal from an accounting, before tbe county judge, of George Ii. Dorr, assignee. for the benefit of creditors. Several objections are taken by tbe assignee, appellant. At tbe time of tbe assignment two actions were pending against tbe assignors. Tbe assignee caused himself to be made a party, and, finally, judgment went against tbe defendants, including tbe assignee, for tbe amount demanded, with costs. These costs were not by those judgments made payable by tbe assignee personally. (Code of Civ. Pro., § 3246.) Tbe county judge held that, though, as between tbe plaintiffs in those actions and tbe assigned estate, the costs were payable from tbe estate, yet that on this accounting tbe assignee should be charged with tbe same, to be deducted from the amount allowed for commissions and expenses. Tbe reason for tbis was that tbe defense was unnecessary, and that tbe assignee bad been guilty of great negligence therein. The appellant insists that the judgments were conclusive in favor of the assignee; that as he was not personally charged in the judgments he cannot be charged in his accounting. He relies on Hone v. De Peyster (106 N. Y., 648). But in that case the defendants, who had recovered a judgment against a plaintiff, as executor, for costs, made a motion to compel the plaintiff to pay personally ; the court held that the judgment was conclusive. The language of the court in that case must be understood as applicable to the facts. The question arose simply between the parties to the judgment. Between them the judgment was conclusive; and as the judgment had not made the plaintiff personally liable, he could not be made so on defendant’s motion.
    “ Biit that principle decided nothing in regard to this assignee’s liability to those for whom he is trustee. They were not parties to the judgment against him, and are not bound by its terms. A single consideration will show this. It was the assignee’s interest to have the judgment rendered against the estate; and, if the estate was solvent, the plaintiffs would not desire a judgment against him personally. So that there would be no one to urge that he had been guilty of negligence. But now the persons interested in the estate are heard for the first time. They have a right to charge that the assignee was guilty of misconduct. No error was made by the county judge in this respect.

      “We think the county judge was right in disallowing the assignee’s charges for the use of his own horse in the business of the estate. The general rule as to trustees dealing with themselves is familiar. It should be adhered to as a most valuable protection to cestuis que trust. We see nothing in the authorities cited by the appellant which sustains this charge of the appellant. * * *
    “ There are several small amounts which the county judge charged against the assignee. It appears that the assignee continued the business in which the assignors had been engaged. He manufactured articles and made sales. In many instances notes were taken and were then sold by the assignee at less than their face, and he charged himself only with the amount received. The county judge has surcharged him with the difference between the note and the cash for which it was sold. In these instances the county judge states that the discount was not justified.

      “ If an assignee carries on business, there may be a necessity for discounting notes for cash. The county judge justifies the assignee, under the circumstances, in proceeding with the manufacture, and no question on that point is before us. Whether, in each instance, it was necessary and proper to discount the notes for less than their face would seem to be a matter of sound judgment under the cir_ eumstances; and we understand the county judge to find that the circumstances did not justify these discounts. We have examined the evidence in regard to these surcharges, but we think it not necessary to state it. It presents another question of fact, or rather several questions of fact, viz., whether the assignee was justified in thus disposing of these several notes. We cannot say the findings were incorrect.”

      Waylcmd F. Ford, for George II. Dorr, assignee, appellant.

      II. F. Morse and E. C. Emerson, for contesting creditors, respondents.
   Opinion by

Learned, P. J.;

Landon and Ingalls, JJ., concurred.

Order affirmed, with, costs.


author: Van Brunt, P. J.:

text:
    HUGH N. CAMP, Appellant, v. ARTHUR G. BEDELL, Respondent.

      When an allegation contained in an answer will not he construed to constitute a demurrer.

    In an action, brought for the purpose of recovering damages for a libel, the complaint contained two causes of action. The defendant served on the plaintiff's attorney a pleading, called by him an answer, which, besides setting up various defenses to said two causes of action, contained, as to each cause of action, the following allegation: “The defendant further answering says that there are not sufficient facts stated therein to constitute a cause of action.”
    Upon an appeal from an order denying a motion made by the plaintiff to compel the defendant to elect between a demurrer and an answer, and to strike from the record the one not selected:

      Held, that the order should he affirmed.
    That as the defendant designated the pleading as an answer, and the matter stated in it raised an objection which the defendant was not required to raise by demurrer, and which he did not waive by answering, a demurrer should not be considered to have been interposed. ,
    That the plaintiff had no right to demand an election by thg defendant between a demurrer and an answer.

      It seems, that as the allegation was mere surplusage it might have been stricken out, as such, upon a motion made for that purpose.
    Appeal from an order made at a Neiv York Special Term, which was entered in tbe office of tlie clerk of tbe city and comity of New York on September 24, 1888, denying a motion to compel the defendant to elect between a demurrer and an answer, and to strike out one or tlie other.

      D. II. Chamberlain, for the appellant.

      W. W. Niles, for the respondent.
   Van Brunt, P. J.:

This action was brought for the purpose of recovering damages for libel, the complaint being in the usual form and containing two causes of action. The defendant served on the plaintiff’s attorney a pleading called by him an answer, in which he set' up various defenses to said two causes of action. This pleading contained as to each cause of action the following allegation : “ The defendant, further answering, says that there are not sufficient facts stated therein to constitute a cause of action.” The plaintiff thereupon moved for an order to compel the defendant to elect whether he will abide by the demurrers to the several causes of action or by the answers contained in said papera, and to strike from the record the pleading not so elected, which motion was denied and from the order thereupon entered this appeal is taken.

It is undoubtedly true that the defendant, cannot demur and answer to the same cause of action, and that demurrers and answers are separate and distinct pleadings, having different objects, raising different issues and requiring different modes of trial, and that they are not less separate and distinct if in form connected and on one paper. But we fail to find in the defendant’s pleading that any demurrer has been inserted therein. He designates it as an answer. The matter stated in the answer raised an objection which the defendant was not required to raise by demurrer, and which he did not waive by answering. This is an objection that he has a right .to take, even at the trial, although he might not have demurred, and although he may have answered without stating anything in said answer in' respect thereto. The defendant not having treated the pleading as a demurrer, and not having attempted thereby to save an objection which could only be raised by demurrer, we see no reason for designating the pleading by that name.

It is undoubtedly true that the allegation is out of place in an answer, although it is not waived if not taken by any pleading. Tbe result is that the allegation is mere surplusage aud might very well be stricken out as such upon a motion made for that purpose. The allegation, however, cannot by any possibility do the plaintiff any harm. The plaintiff’s position is in no way changed because of the fact that the answer contains this needless allegation. We think, therefore, that upon the record no demurrer has been interposed, and, as a consequence, the plaintiff had no right to claim an election by the defendant between a supposed demurrer and his answer.

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

Brady and Daniels, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Van Prunt, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ALBIN FULDA, Appellant.

      Duty, under section 356 of the Penal Code, of a physician to procure a license — what is not such license or diploma under that section.

    Upon tbe trial of the defendant upon an indictment charging him with practicing medicine without a license authorizing him to practice from some chartered school, State board of medical examiners or medical society, as was required by section 356 of the Penal Code, the evidence showed that he had been practicing medicine in the city of New York since 1858; that he was naturalized in 1868; that he had received a medical education at the universities of Halle and Jena, but that he had never received a full diploma, such as was given by the universities to their graduates upon the completion of their course of study; that he had also passed an examination for a commission as a medical officer in the New York volunteers, and received a commission, after such examination, as assistant surgeon in one of the regiments of the New York infantry.

      I-Ield, that the court did not err in charging the jury, that if the defendant practiced medicine at the time and place, and in the manner set forth in the first count of the indictment, they should convict the defendant unless they were satisfied that at the time he had a license authorizing him to practice from some chartered school, State board of medical examiners or medical society.
    The court further charged that if the practice were proved, the burden was thrown upon the defendant to prove that he had a license or diploma from such school, State board of medical examiners or medical society.

      Held, that the charge was correct.

      That the evidence introduced did not disclose any such license or diploma as was required by the statute, and that the fact that before the enactment of the provisions of chapter 436 of 1874, which formed the basis of section 356 of the Penal Code, the defendant had been practicing medicine, did not affect the application of the statute or relieve him from the duty of taking out a license in order to justify his continuance in the practice.
    Appeal from a judgment of the Court of General Sessions of the Peace of the county of New York, convicting the defendant of the crime of practicing medicine without a license.

      A. Suydam, for the appellant.

      McKenzie Semple, for the respondent.
   Van Prunt, P. J.:

The indictment under which the defendant was tried contained three counts, the first charging the practice of medicine without the authority required by section 356 of the Penal Code; namely, without a license, authorizing him to practice, from some chartered school, State board of medical examiners, or medical society, and the remaining counts being based upon other statutes. Upon the trial, however, the district attorney, on the motion of the defendant, elected the first count as the count upon which he would ask for a conviction.

The evidence showed that he had been practicing medicine in the city of New York since 1858; that he was naturalized as a citizen in 1868; that he had received medical education at the universities of Halle and Jena, but that he had never received a full diploma, such as was given by the universities to their graduates tipon the completion of their course of study. The evidence also showed that during the war he passed an examination for a commission as medical officer in the New York volunteers, and received a commission, after such examination, as assistant surgeon in one of the regiments of the New York infantry.

The learned court charged the jury that if the evidence satisfied them, beyond a reasonable doulyt, that the defendant practiced medi cine at the time and place and in the manner set forth in the first count in the indictment, they should convict the defendant, unless they were satisfied that, at that time, he had a license authorizing him to practice from some chartered school, State board of medical examiners, or medical society. To this instruction the defendant duly excepted. There seems to have been no error in this charge. The provisions of section 356 made the defendant amenable to punishment did he practice medicine without the license provided for by said section.

The court further charged that if 'the practice were proved, the burden of proof was thrown upon the defendant to prove that he had a license or diploma from some chartered school, State board of medical examiners or medical society. To this instruction the defendant duly excepted. This seems to have been entirely correct. The burden was upon the defendant to prove, after the people had proved the fact of the practicing of medicine, that he was authorized to practice under the provisions of the statute.

The court further charged that none of the papers produced by the defendant was a license from a chartered school, State board of medical examiners or medical society. The evidence certainly did not disclose any such license or diploma as was required by the statute. He had no license from the medical school in Prussia. It was merely a certificate that he had passed a limited course of study. The commissions which he received as medical officer in the New York volunteers was not a license or diploma from a State board of medical examiners allowing the defendant to practice medicine generally. It was an examination for a specific purpose, and the certificate issued was simply a limited commission for the practice of medicine within a limited sphere. Neither does the fact that before the enactment of the provisions of the law of 1874 (chap. 436), which formed the basis of section 356 of the Code, the defendant had been practicing medicine, restrict tbe power of the statute to compel the taking out of a license in order to justify his practice. This was part of the police regulations of the State. It was thought necessary for the protection 'of the people that these safeguards should be thrown around them in reference to those who assumed to practice medicine in the community. The State has a right to determine upon what conditions and under what circumstances its citizens should be entitled to pursue any vocation. It is in no way interfering with any vested rights, nor is it a usurpation of authority which is not possessed. There seems to have been no error committed in tbe disposition of tbe case, and tbe conviction must be affirmed.

Brady and Daniels, JJ., concurred.

Conviction affirmed.


text:
    LOUISA WILLIAMS and Others, Respondents, v. SAMUEL D. FOLSOM and Others, Appellants.

      Examination of a pa/rty before trial— order reversed if it is not stated in the affidavits that the testimony is to be used on the trial.

    In order to entitle a party to an order, requiring an examination of bis adversary before trial, be must show special circumstances making it important to take the testimony of bis adversary before trial instead of at tbe trial.
    Tbe fact that tbe affidavits, upon wbicli tbe application is made, do not state that, it is intended to use tbe testimony upon tbe trial, justifies tbe court in setting aside such an order'for an examination.

      Jenkins v. Putnam (106 IST. Y., 272) followed.
    Appeal from an order, made at tlie New York Special Term, denying a motion to vacate an order for the examination of the defendants before trial, which was entered in the office of the clerk of the city and county of New York on December I, 1888.

      E. O. Perhins, for the appellants.

      Pa/ul D. Oravath, for the respondents.
   Van Brunt, P. J.:

It is apparent, from the brief of the respondents in this case, that the ground upon which the order is sought to be upheld is that there is no need for a party making an application for the examination of his adversary before trial to show any special circumstance making it important to take the testimony of such adversary before trial instead of at the trial.

We think this is an entirely erroneous view to take of the decisions made upon this point. It is true that the language of the Code may be claimed to be mandatory, but it has been repeatedly held that, taking the whole of the provisions of the Code, it is apparent that it was not intended to deprive the judge of all discretion, but that it should be made to appear, by the papers upon which the order is founded, that there is some good reason for directing the examination to be had before the trial rather than at the trial. In the case át bar no such reason appears. It is true that it is said that, in view of the fact that the defendants are unfriendly to the interest of the plaintiff, the plaintiff cannot safely go to trial without first having caused the defendants to be examined. But this allegation is not founded upon any fact, but is simply the conclusion of the affiant. There is nothing to show that the defendants are any more hostile to the interest of the plaintiffs than the defendant in any other case against whom a claim is attempted to be enforced by suit. This statement, therefore, affords no reason.

In regard to the other statements contained in the affidavit, there is no allegation that the facts are not perfectly known to the plaintiff, nor that they could not have their examination of the defendants at the trial; under these circumstances it is apparent upon the face of the application that the desire of the plaintiffs is to anticipate, if possible, the defense, and not to obtain the testimony of the defendants for the purposes of use upon the trial. In fact, they nowhere state that they intend to use the testimony upon the trial.

In the case of Jenkins v. Putnam (106 N. Y., 272) it is distinctly, held by the Court, of Appeals that where this deficiency of allegation exists the court is justified in setting aside the order for the examination.

We think, therefore, that the application in no way complies with the rules laid down, controlling the granting of orders of this description, and that no case has been made out to justify the court in awarding to the plaintiffs this right before the time which they are at liberty to exercise it without the permission of the court, at the trial. ■

The order should lie reversed, with ten dollars costs and disbursements.

Brady and Daniels, JJ., concurred.

Order reversed, with ten dollars costs and disbursements.


text:
    JOHN D. ELWELL, Respondent, v. CYPRIEN FABRE and Others, Appellants.

      Construction of an agreement to furnish a pier for a steamship while in port.

    In. an action, brought to recover wharfage, it appeared that on December 28,1886, the defendants, who owned a line of steamships running from Europe to the port of New York, entered into a contract with the plaintiff, by which the plaintiff agreed to furnish a certain pier for the use of the steamers of the line during the time they were in port, the defendants agreeing to send the steamers of the line arriving at New York to this pier, and to pay plaintiff for the use thereof as follows: “ Commencing with and including the day of each steamer’s arrival in the port of New York, providing such arrival be previous to the hour of four p. m. (if such arrival be after that hour, then the following day to count as the first dajr), and including the day of each steamer’s departure for sea,” etc., fifty dollars per day.
    The defendants also agreed to give notice to the plaintiff of the date of the sailing of each steamer, at least ten days before the arrival of each steamer at New York, . in order that the pier might be reserved for it. Some of these steamers having arrived at quarantine were detained in consequence of having cholera on board.
    The main question involved in this action was as to the right of the plaintiff to recover wharfage from the time of their arrival at quarantine.

      Held, that the expectation of the parties was that, barring accidents, upon the day of the arrival of the defendants’ steamers, or at least upon the next day, they would need pier accommodations and be brought to the plaintiff’s pier.
    That, in case of the arrival of these steamers before four o’clock in the day, the plaintiff was bound to have his pier ready, and that in case of delays in arrival from tempestuous weather, or otherwise, the plaintiff had no remedy for the loss of his wharfage.
    That, as an offset to this, it was the intention of the parties that from the arrival of the ship in the port of New York the plaintiff was to be at no further risk in reference to his right to collect wharfage, no matter at what time the defendants might chose to dock their ships.
    The defendants claimed that this contract was a marine contract and that'the operation thereof was suspended by force of law.

      Meld, that this claim could not be sustained.
    That the detention at the quarantine did not arise simply from the action of the State, but because of the condition in which the vessels were upon their arrival.
    That as the laws in reference to the quarantine were in force at the time the contract was made, and were the laws of the State where the contract was made, and where the contract was to be performed, the contract was subject thereto.
    By the aforesaid agreement between the parties it was further provided that if at any time, for any cause, the plaintiff should be unable to furnish the pier to any steamer of file defendants, that then the plaintiff was to furnish such steamer, without loss of time, a covered pier as convenient as possible to the plaintiff’s pier, and at no additional expense to the defendants for such change.

      While the pier leased by the plaintiff was occupied by one of the steamers of the defendants, in October, another steamer having arrived, the plaintiff, on October 19, 1887, hired and furnished another pier for the accommodation of this latter steamer, and retained and held the same subject to her use until and including the 25th day of October, 1887, when, in consequence of the steamer being detained at quarantine and the time of her release being uncertain, he gave up this pier to the owner thereof, and the same condition of affairs existed later in regard to another of the steamers.
    The referee held that the plaintiff was entitled to recover fifty dollars a day during the whole time that these steamers were in port, whether he had provided this ■ additional wharfage or not, and that it was immaterial to the defendants whether he had the pier or not, inasmuch as they made no application for the occupation of the pier which was refused.

      Held, that he erred in so holding.
    That the plaintiff could not recover this additional wharfage for an additional pier for the period that such pier was not provided and held in readiness by him.
    Appeal by the defendant from a judgment, entered in the office of the clerk of tlie city and county of New York on June lé, 1888, upon tlie report of a referee.

      R. D. Benedict, for tlie appellants.

      Rtistace Oonwmj, for tlie resjtondent.
   Van Brunt, P. J.:

This action was brought to recover wharfage. On the 28th of December, 1886, the plaintiff and the defendants, who owned and operated a line of steamships running from Europe to the port of New York, entered into a contract whereby the plaintiff agreed to rent a certain pier for the use of the steamers of the line during the time they were in port; the defendants agreeing to send the steamers of the line arriving at New York to this pier, and to pay the plaintiff for the use thereof as follows: “ Commencing with and including the day of each steamer’s arrival in the port of New York, providing such arrival be previous to the hour of four p. m. (if such arrival be after that hour, then the following day to count as the first day), and including the day of each steamer’s departure for sea, etc., fifty dollars per day.” And by said agreement it was further provided that if at any time for any cause the plaintiff should be unable to furnish the pier to any steamer of the defendants, that then the plaintiff was to furnish such steamer, without loss of time, a covered pier as convenient as possible to the plaintiff’s pier, and at no additional expense to the defendants for such change. The defendants agreed to give notice to the plaintiff of the date of the sailing of each steamer from its last port at least ten days before the arrival of each steamer at New York, in order that the pier might be reserved for them.

Some of the steamers of the defendant having arrived at quarantine were detained in consequence of having cholera on board, and the main question involved in this case is as to the right of the plaintiff to recover wharfage from the time of their arrival at quarantine. Upon this point we think that the learned referee has reached a correct conclusion. As stated in his opinion; it is provided in the contract that “ the defendant should give to the plaintiff at least ten days’ notice of the time of sailing of the steamers, respectively, from their last port of departure for New York,” the obvious object of which is that the plaintiff might make proper arrangements, within a reasonable time, to have his pier unoccupied and ready for the steamers upon their arrival. The expectation of the parties apparently was that, barring accidents, upon the day of their arrival, or at least the next day, they would need pier accommodations and be brought to the plaintiff’s pier. This is shown by the clause in the contract, that the period for which payment should be made was to commence with and include the day of each steamer’s arrival in the port of New York, provided such arrival be previous to the hour of four o’clock p. m. ; but that if such arrival be after that hour, and the steamer does not come to the dock, then the following day to count as the first day. It was optional as to when the defendants should dock their ships; but, from the time of the arrival of the ships in the port of New York the plaintiff was bound to have his wharf ready to receive them. It would, therefore, seem to be reasonable to suppose that the parties had in view the fact that these ships would have to pass the quarantine, and that their arrival, at the quarantine did not necessarily control the time at which they would be ready to enter the dock. It is to be assumed that, in case of the arrival of these steamers before four o’clock in the day, the plaintiff was bound to have his pier ready; and that in case of delays in arrival, arising from tempestuous weather or otherwise, the plaintiff had no recourse for the loss of bis wharfage. And, as an offset to this, it would appear that it was the intention of the parties that, from the arrival of the ship in the port of New York, the plaintiff was to be at no further risk in reference to his right to collect wharfage, no matter at what time the defendants might choose to dock their ships.

Under the construction claimed by the defendants, the plaintiff was bound to have his wharf in readiness to receive the vessels when they should arrive; and if the defendants, after entrance into the port of New York or arrival at the quarantine, should arbitrarily detain their ships, the plaintiff would be required to have his wharf all the time in readiness for the receipt of the ships, without any claim for wharfage whatever. The delays of the sea the plaintiff had to run the risk of, but he did not run any risk whatever after the vessel made .the port, and it was not the intention of the parties that he should. It would seem, therefore, that the plaintiff was entitled to recover for wharfage from the time of the arrival of the vessels at the quarantine, if they arrived before four o’clock in the afternoon, which is the construction put upon the contract by the learned referee. ■

As to the defense that this was a marine contract and that the operation thereof was suspended by force of law, we do not think the objection is well taken. The detention of the vessel in getting to the dock must be considered as having been within the contemplation of the parties at the time of the making of the contract. The detention at the quarantine did not arise simply from the action of the State, but because of the condition in which the vessels found themselves upon their arrival. The laws in reference to the ■ quarantine were in force at the time the contract was made; they were the laws of the place where the contract was made and where the contract was to be performed, and all vessels -from foreign ports were subjected to the dangers of this delay in case the necessity therefor arose. It is not that unexpected intervention by the sovereign power which suspends the operation of a maritime contract. The learned referee has found that when one of the steamers was in port it fully occupied the pier leased so that there was no room thereat for the accommodation .of another of these steamers. To meet exigencies of this description, in case of there . being two steamers in port at tbe same time, it was provided that if at any time for any cause the plaintiff was unable to furnish the pier to any of the steamers of defendant, that then he was to furnish such steamer without loss of time a covered pier as convenient as possible to the pier leased, and at no additional expense to the defendant for such change. The pier leased having been occupied by one steamer in October, another steamer arrived and on the nineteenth of October the plaintiff hired and furnished another pier for the accommodation of this steamer and retained and held the same subject to her use until and including the 25th of October, 1887, when, in consequence of the steamer being detained at quarantine and the time of her release being uncertain, he gave up said other pier to the owner thereof, and this condition of affairs existed also later in regard to another of the steamers. The learned referee has found that the plaintiff was entitled to recover fifty dollars a day during the whole time that these steamers were in port, whether he had provided additional wharfage or not, and that it was immaterial to the defendants whether he had the pier or not, inasmuch as they had made no application for the occupation of a pier which had been refused.

In this we think the learned referee erred. We do not think that the plaintiff had the right to recover this additional wharfage for an additional pier for the period that such pier was not provided and held in readiness by the plaintiff. There is nothing in the contract which seems to imply such a condition of affairs, and certainly the plaintiff cannot recover for the furnishing of wharfage or being ready to furnish wharfage when the proof shows that he had neither so furnished it nor was ready to so furnish it. The only theory upon which a recovery could be had is that the plaintiff had the wharf ready for the occupation of the steamer. If he had not, then it would seem that the very basis of the claim had fallen. We, therefore, think that the learned referee erred in allowing a recovery for the wharfage of the substituted piers for those periods of time during which the substituted pier was not provided.

It would seem, further, that the referee has erred in regard to the amount of credits which he allowed upon the payment of wharfage. He finds that the defendants had paid on account of the steamer Britannia $400 and no more. The vouchers offered in evidence show that the defendants paid $600, and that they were entitled to a credit of $200 on that account.

It would appear, therefore, that the judgment should be reduced to the sum of $900 and interest; and if the plaintiff stipulates to accept such reduction such judgment, as modified, should be affirmed, without costs to either party. In case such stipulation is not given, the judgment should be reversed and a new trial ordered, with costs to appellant to abide event.

Brady and Daniels, JJ., concurred.

Judgment as modified affirmed, without costs, on plaintiff stipulating to accept such modification.


author: Yan Brunt, P. J. :

text:
    DORA WHEELER, Appellant, v. THE OCEANIC STEAM NAVIGATION COMPANY (Limited), Respondent.

      United States Revised Statutes, sec. 4381 — written notice to the master of the vessel as to the cha/racter and value of articles shipped — the ca/rrier is not liable ferr pictures shipped by a passenger as baggage.

    In an action brought to recover damages for the loss of certain pictures which the plaintiff had shipped as baggage by one of the defendant’s steamers at- Liverpool, it was conceded that the plaintiff shipped these paintings without,, at the time of their lading, giving to the master, clerk, agent or owner of the vessel a written notice of the true character and value thereof.

      Held, that section 4381 of the Revised Statutes of the United States, which provides: “ If any shipper of platina * * * painting, engravings, pictures, * * * shall lade the same as freight or baggage, on any vessel, without, at the time of such lading, giving to the master, clerk, agent or owner of such vessel receiving the same, a written notice of the true character and value thereof, and having the same entered on the bill of lading thereof, the master or owner of such vessel shall not be liable as carriers thereof in any form or manner,” was a bar to this action.
    That this law was enacted not only for the protection of the carrier, but also for the protection of the government, in order that merchandise should not come into this country without appearing upon the ship’s manifest.
    The plaintiff contended that the question as to whether the pictures were baggage should have been left to the jury.

      Held, that this contention could not be sustained, as they possessed none of the elements of baggage, and it was not possible that they could have been considered as such.

      Held, further, that the defendant could not be held liable as warehouseman because the contract was with it as a carrier, and it no where appeared that that contract had been fulfilled, and its relation to the merchandise in question changed from that of a carrier to that of a warehouseman.

      Curtis v. Delaware, Lackawanna and, Western Hailway Company (74 N. Y., 116);

      Fairfax v. New York Central and Hudson Hirer HaiVroad Company (73 id., 167) ' distinguished.

      Golden v. Homer (20 Hun, 438) not followed.

      It seems, that the statute does not apply to such articles of jewelry and silverware as would, under the circumstances of the case, be regarded as a proper and legitimate part of the passenger’s baggage.

      Carlson v. Oceanic Steam Navigation Company (Limited) unreported, distinguished.
    Appeal from a judgment entered in tlie office of the clerk of the county of New York on the 21st day of June, 1888, upon an order made at the New York Circuit, dismissing the complaint, with costs.

      II. ApUngton, for the appellant.

      Lawrence Godlcin, for the respondent.
   Yan Brunt, P. J. :

This action is brought to recover damages for the loss of certain pictures belonging to the plaintiff, which she had shipped by one of the defendant’s steamers at Liverpool, as baggage. At the close of the plaintiff’s case a motion was made to dismiss the complaint upon the ground that, under section 4281 of the Bevised Statutes of the United States, the defendant was not hable for the loss of the pictures in question in any form or manner, the same having been laden as baggage on the steamer “ Germanic ” without, at the time of such lading, giving to the master, clerk, agent or owner of such vessel a written notice of the true character and value thereof; that the pictures were not baggage, and that the defendant was not liable at common law therefor; and that there was nothing in the pleadings or proof to indicate any liability on the part of the defendant as a warehouseman after the arrival of the steamship.

"Were it not for the decision of one department of this court in the case of Golden v. Romer (20 Hun, 438), we should think that the last objection was well taken in that the whole tenor of the complaint shows an intention upon the part of the pleader to recover against the defendants as a common carrier, and not as warehouse-men. But in the case cited a complaint containing similar allegations was held to justify a recovery against a carrier who had become a warehouseman. This decision seems to be based upon the cases of Curtis v. Delaware, Lackawanna and Western Railroad Company (74 N. Y., 116) and Fairfax v. New York Central and Hudson River Railroad Company (73 id., 167). An examination of those cases, however, discloses the fact that no question of pleading was raised therein, and the only question determined was as to the liability of the carrier who had performed his contract of carriage as warehouseman. The statutes of the United States seem, however, to be a perfect bar to the plaintiff’s right to recover in this action.

The section in question reads as follows: “If any shipper of platina, gold, gold dust, silver, bullion, or other precious metals, coins, jewelry, bills of any bank or public body, diamonds or. other precious stones, or any gold or silver in a manufactured or unmanufactured state, watches, clocks or time-piece of any description, trinkets, orders, notes or securities for payment of money, stamps, majDS, writings, title deeds, paintings, engravings, pictures, gold or silver plate or plated articles, glass, china, silks in a manufactured or unmanufactured state, and whether wrought up or not wrought up with any other material, furs or lace, or any of them, contained in any parcel or package or trunk, shall lade the same as freight or baggage on any vessel, without, at the time of such lading, giving to the master, clerk, agent or owner of such vessel receiving the same, a written notice of the true character and value thereof, and having the same entered on the bill of lading therefor, the master and owner of such vessel shall not be liable as carriers thereof in any form or manner; nor shall any such master or owner be liable for any such goods beyond the value and according to the character thereof so notified and entered.”

It is conceded that the plaintiff shipped these paintings without, at the time of such lading, giving to the master, clerk, agent or owner of the vessel a written notice of the true character and value thereof, and that, therefore, the shipment came within the terms of the statute, and neither the master nor owner of the vessel became liable as carriers of such pictures in any form or manner. ' This law was evidently enacted, not only for the protection of the carrier, but also for the protection of the government, in order that merchandise should not come into this country without appearing upon the ship’s manifest.

The claim that these articles were to be considered as baggage of the plaintiff, because they had been shipped as such, clearly does not take it out of the provisions of the statute, because the provision is that if any such articles shall bo laden either as freight or baggage, without giving the notice, the carrier shall not be liable in any form or manner. And although it is argued that the question as to whether these pictures were baggage should have been left to the jury, under the language used by the court in the case of Curtis v. Delaware, Lackawanna and Western Railway Company, above cited, it is clear that no such question could arise. They possessed none of the elements of baggage, and it was not possible that they could have been considered as such. Where there is any dispute in regard to the evidence, and different inferences may be drawn therefrom, undoubtedly the question must be submitted to the jury ; but where there is no dispute and but one inference can be drawn, as in the case at bar, the necessity of submitting to a jury does not exist.

The defendants cannot be held as warehousemen, because the contract with them was as carriers, and it nowhere appears that that contract had been fulfilled, and their relation to the merchandise in question changed from that of carriers to that of warehousemen. They were liable under their contract of carriage, if at all, and that contract is the one which they have broken, if any. They never assumed to act as warehousemen in respect to this merchandise, and nothing was done which imposed upon them that liability. In all the cases cited where the carrier has been held as a warehouseman the contract of carriage had been completed; the goods had been transported and had arrived at their place of destination, and it was after this that they were lost and that liability arose. But in the case at bar there is no evidence that the contract of carriage was ever fulfilled, or that the goods ever arrived, or that the defendants were under any other liability than that of carriers; they have, therefore, a right to avail themselves of the immunity prescribed by the statute in question, because of the manner of the shipment of the merchandise. Although it is claimed that they may be held liable as warehousemen for accidents during the time of carriage, it does not seem to us that this can be permitted under the particular language of the statute. They are still carriers and their liability depends upon the fact of their having entered upon the contract of carriage and taken possession of the goods under that statute. And as the statute has provided that the carrier shall not be liable in any form or manner for a breach of his contract, it is clear that though his obligation be called by a different name, the statute still applies as the liability originates, because he has been asked as carrier to take possession of the goods in question.

Our attention has been called to the case of Carlson v. Oceanic Steam Navigation Company (Limited), not reported, in which the liability of the defendant for certain jewelry and silverware which were in the plaintiffs’ possession as baggage, the notice required by the statute not having been given, was upheld. This decision, however, does not apply to the case at bar, because it was held in that case that the articles lost were part of the plaintiff’s ordinary baggage; that they were such articles of jewelry and silverware as under the circumstances would only be regarded as a proper and legitimate part of her baggage, and the provisions of the statute did not apply, as it was not intended to apply to such articles as constituted the necessary baggage of a traveler. In the case at bar, as already seen, these pictures could not, under any circumstances, be considered as a part of the necessary baggage of the plaintiff. We do not see how, under the statute in question, any liability can be enforced against these defendants for the loss of the merchandise under the circumstances proved by the plaintiff.

The - judgment should be affirmed, with costs.

Beaut and Daniels, JJ., concurred.

Judgment affirmed, with costs.


author: Beady, J. :

text:
    ALBERT L. HANSCOM, Respondent, v. MORTIMER HENDRICKS, Substituted in Place of the CONSOLIDATED STOCK AND PETROLEUM EXCHANGE OF NEW YORK, Appellant.

      Debtor and creditor — money deposited with a stodc exchange on the transfer of membership therein.

    Under tlie rules of a stock exchange, upon tlie transfer of membership therein, it was required that a sum of money be deposited with the chairman of the exchange, from which was to be paid any amounts due to it, or to its members, and the balance of which was to be paid to the retiring member.

      field, that where a member of such exchange assigned his right of membership in payment of a pre-existing debt owing by him, and such assignee, for the purpose of obtaining a transfer of such membership, deposited the amount required by its rules with the chairman of the exchange, the balance of such deposit, after paying any amounts due to the exchange or its members, could not be taken by a judgment-creditor of the retiring member upon tlie assumption that it was the properly of such judgment-debtor.
    Appeal from a judgment, rendered at tlie New York Special Term of tlie Supreme Court, upon a trial before tlie court, entered in the New York county clerk’s office September II, 1888. Tbe action was brought to recover a fund originally deposited with tbe Consolidated Stock and Petroleum Exchange of New York. By an order of interpleader, the appellant, Mortimer Hendricks, was substituted as defendant in place of the exchange, and the fund was directed to be brought into court and placed to the credit of the action. The sum so deposited amounted to $934.
    The complaint alleged that on or about November 25, 18SI, the plaintiff, Albert L. Hanscom, purchased from one Charles G. Wolff a membership in the Consolidated Stock and Petroleum Exchange; that Wolff had leased from one George W. Sutton a dwelling-house in New York city, at an annual rent of $1,800 ; that a large portion of the rent then due had not been paid; that rent for several months would still have to be paid before the lease expired; that by agreement with Sutton the membership was sold and transferred to plaintiff in lieu of the rent, and in return for the use and occupation of the dwelling-house until the termination of the lease; that by the rules of the said exchange plaintiff could not qualify as a member, or obtain a transfer of the said membership unless a sum equal to its reasonable value was deposited by him with the exchange, for the purpose of enabling it to satisfy all claims which it or its members might have against the person selling the seat or the person to whom it was. sold; that plaintiff deposited the sum of $1,075 with the exchange in compliance with said rules; that Wolff at the same time, for the purpose of notifying the exchange that he had no interest or ownership in the money so deposited, gave to the plaintiff a power of attorney directing the exchange to pay the sum so deposited to the plaintiff after the required deductions had been made, which power of attorney was filed with the exchange ; that such deductions amounted to the sum of $126; that the balance due from said exchange amounted to $949, and that plaintiff was the owner of this sum then deposited in court. The substituted defendant, Mortimer. Hendricks, by his answer denied any knowledge or information as to the facts above alleged, and further stated that on or about November 18, 1887, he recovered judgment against the said Charles Cl. Wolff for $2,164.79, upon which execution was duly issued and returned unsatisfied; that on January 9, 1888, lie instituted supplementary proceedings against the stock exchange, and examined its president, Charles G. Wilson, who testified that he had received from the plaintiff the sum of $1,075, the proceeds of the sale of the membership owned by the said Wolff, and that the moneys so deposited were in the possession of the exchange to the credit of Wolff. Defendant alleged that the moneys so deposited were the moneys of Wolff and that any pretended transfer of the same was for the purpose of hindering and defrauding the defendant. Defendant prayed for a dismissal, making no demand for affirmative relief.
    Upon the trial the following facts appeared: In February, 1887, one George W. Sutton, through Reuben Skinner, his general real estate agent, leased to Charles G. Wolff premises in New York, for a period commencing March 1, 1887, and ending May 1, 1888, at a rental of $1,800 a year, payable quarterly. Skinner collected the rents and acted as the agent of Sutton in all the transactions growing out of the lease. In November, 1887, Wolff owed Sutton about $450 for rent. Upon demand being made by Skinner, Wolff stated that he was a member of the Consolidated Stock and Petroleum Exchange, and it was then agreed between Skinner, as Sutton’s agent, and "Wolff, that this membership should be transferred to Sutton as security for the payment of the rent on the said lease; that until the expiration of the lease Wolff might redeem the membership by paying the rent due, and that in case Wolff failed to pay the rent due at the expiration of the lease, the membership should become the absolute property of Sutton. Mr. Sutton was found to be ineligible to membership in the exchange, being over fifty-five years of age. It was thereupon agreed between Skinner, as Sutton’s agent, and Wolff, that the membership should be transferred to Hanscom, the plaintiff, for the same purpose and on the same •terms. Skinner and Wolff went to the exchange to ascertain what formal proceedings were necessary to carry out this agreement. They were informed by the president and secretary that a deposit ■of $1,075 would be required to meet the indebtedness of Wolff to the exchange and its members. That sum was fixed as the upset price of the seat.,
    The rules of the exchange governing transfers of membership are as follows: “ Whenever any member of this association shall desire to discontinue his membership and to name a successor, he shall send a written communication to the chairman of the committee on membership, stating the fact, with an official nomination of a successor, who shall pay to the chairman of the committee the amount of the consideration for such nomination. The money deposited with the chairman shall be distributed by him in the following manner: (1.) To the association, to the extent of any money due it. (2.) In payment pro rata of claims filed by members and adjudged as valid. (3.) The remainder, if any, to the retiring member or his legal representative.” The nomination must be confirmed by the membership committee, and the person so admitted must duly qualify and deposit the sum fixed as the upset price of the seat sold before the membership will be transferred on the books of the exchange.
    The amount fixed as the value of Wolff’s seat ($1,075) was loaned by Sutton to the plaintiff Hanscom, who deposited it with the exchange. At the suggestion of the officers of the exchange, and in order that the balance of the sum deposited, remaining after tbe deductions required by tbe above rules, should be paid directly to Hanscom, a power of attorney, executed by Wolff and directing such payment, was lodged with the exchange. Hanscom passed the committee on admissions, duly qualified, and Wolff’s seat was duly transferred to him on the books of the exchange. The amount of rent due at the expiration of Wolff’s lease was $1,350, no part of which has been paid. Immediately after his election (about January 5, 1888) Hanscom made a'demand for the balance of the moneys deposited, amounting to $949. In the meantime Mortimer Hendricks, the defendant, had obtained a judgment against Wolff and had instituted supplementary proceedings, serving a third party order upon the president of the exchange. In the course of his examination the deposit of the above sum was discovered, as was also the power of attorney making the same payable to the plaintiff. This action was then instituted, whereupon the exchange interpleaded the defendant Mortimer Hendricks, and the sum in question, less costs, was deposited in court.
    Upon these facts the court below rendered judgment in favor of the plaintiff, from which defendant takes this appeal.

      Abram Klvng, for the appellant.
    Carter, Hughes i& Cravath, for the respondent.
   Beady, J. :

It will be observed from the statement of facts that this is an action to recover a specific fund of which the plaintiff claims to be the owner. This is disputed by the defendant, who asserts it to be the property of his judgment-debtor, and urges a lien by virtue of supplementary proceedings, an account of which is given in the statement. It is not, therefore, an action to reach a seat in tbe Consolidated Stock and Petroleum Exchange. The transaction out of which the controversy arises is one which was designed to secure to Mr. Sutton the rent which was due to him or would become due upon the expiration of the term for which Mr. Wolff had hired from him the premises he occupied. The statement seems to leave but little doubt about the ownership of the fund and the person to whom it should be paid. The evidence shows that for the purpose of accomplishing the tansfer of the seat of Wolff to the plaintiff, it was necessary to make a deposit of a certain amount of money, which is the sum in dispute here; and that sum was loaned by Mr. Sutton to the plaintiff who, for the time being, became the trustee of Sutton for the purpose of accomplishing the security for his benefit. It may be here observed that there can be no doubt upon the evidence that the transfer of the seat was intended to cover the entire amount of the rent which was due and might become due under the lease to Wolff. The money which was thus deposited was to be distributed by the chairman of the committee on membership in the manner indicated in the statement, and at the suggestion of the officers of the exchange, and in order that the balance, after the deductions required by the rules, should be paid directly to the plaintiff, a power of attorney was executed by Wolff directing such payment, and was lodged with the exchange. Immediately after the election of the plaintiff he made a demand for the balance remaining of the moneys deposited, which amounted to $949.

It is quite apparent that whatever interest Wolff had in the fund was transferred to Hanscom, and that whatever sum was to be paid by the exchange was by Wolff’s direction to be paid to him. This was a part of the original transaction itself, and was for a specific purpose, which was accomplished by these details. The defendant presents no equity superior to that existing between Sutton and the plaintiff, even if it be necessary to consider the case in that aspect. But he has nothing whatever to do with those equities. The details of the transaction between Wolff and Sutton and the plaintiff are sufficient to show a special property in the money by the plaintiff •quite sufficient to enable him to maintain the action. Whatever relations were created by it between the plaintiff and Sutton are matters between them with which the defendant has no right to interfere. The extent to which he is entitled to consideration is whether or not the fund which he seeks to have applied to the payment of his judgment belongs, either in whole or in part, to Wolff, his judgment debtor. It is quite clear that it does not, inasmuch as the rent exceeded the amount of the value of .the seat.

For these reasons, without any more extended discussion of the various points raised by the respective counsel herein, the controversy involving it may be said to be nothing more serious than a question of fact, the judgment should be affirmed.

Yan Brunt, P. J., and Daniels, J., concurred in result.

Judgment affirmed, with costs.


author: Bartlett, J.: Daniels, J. :

text:
    MORRILL GODDARD, Respondent, v. THE PARDEE MEDICINE COMPANY, Appellant.

      Bill of particulars — not proper where a defense is, in effect, a denial of the performance of the contract sued upon.

    Where, in an action brought to recover for advertisement, alleged to have been made under a contract with the defendant, a defense is interpos.ed “that the advertisement of the defendant was not published pursuant to said contract; that the said contract was not performed, and that the papers therein mentioned were not received, checked and verified as therein provided,” it is not proper to require the defendant, on the ground that the plaintiff could not tell in what particulars the defendant intended to maintain that the advertisement was not published in accordance with the contract, or what papers therein mentioned were not received, checked and verified in accordance with the agreement, to furnish a bill of particulars covering such matters of alleged defense.

      Bennett Y.Wa/rdell (43 Hun, 452) followed; Dwight v. Germania Life Insurance Company (84 FT. Y., 493) distinguished.
    Appeal from an order of the New York Special Term, entered in the office of the clerk of the county of New York, March 28, 1888, requiring the defendant to furnish a bill of particulars of the fourth defense contained in the answer.

      William H. Shepard, for the appellant.

      Philip Carpenter, for the respondent.
   Bartlett, J.:

The plaintiff brings this action as the assignee of the Chicago Newspaper Hnion, and alleges that the defendant entered into a contract with that organization, which is set out in full in the complaint. This contract provides for the insertion of an advertisement for the Hardee Medicine Company every week for the period of one year, in a number of newspapers which are referred to as contained in a weekly list. There are also provisions to the effect that the papers in which the advertisements are published are to be regularly mailed to the advertiser, and that payment at the rate of eight dollars for fifty-two insertions is to be made “at the end of each three months after papers are received, checked and verified.” The plaintiff further alleges that the Chicago Newspaper Union performed all the conditions of the contract upon its part, and published the advertisement of the defendant for the time specified in the contract, in 4,02V papers in the list which has been mentioned; and he sues to recover the value of the advertising at the price agreed upon between the parties.

The answer assumes to set up four defenses. First, the defendant admits the making of the contract, but denies any knowledge or information sufficient to form a belief as to any other allegation in the complaint. For a second defense, the defendant alleges that the Chicago Newspaper Union has no legal existence, and no capacity to assign its alleged claim to the plaintiff. In the third place, the defendant avers that it ordered the advertisements provided for in the contract to be discontinued after thirteen insertions thereof had been made, and that said contract was thereby canceled and annulled.

The fourth defense, which is the most important so far as this motion is concerned, is in the following words: “ For a fourth and further answer and defense herein, the defendant alleges, upon information and belief, that the advertisements of the defendant were not published pursuant to said contract. That the said contract was not performed, and that the papers therein mentioned were not received, checked and verified as therein provided.”

The plaintiff moved for a bill of particulars of this fourth defense, on the ground that neither he or the managers of the Chicago Newspaper Union could tell in what particulars the defendant intended to maintain that the advertisement was not published in accordance with the contract, or what papers therein mentioned were not received, checked and verified in accordance with the agreement. The court at Special Term ordered that such particulars should be furnished, and the defendant has appealed.

The fourth defense in the answer is not affirmative in its character. It really amounts to nothing more than a denial of the plaintiff’s-alleged cause of action. It adds no strength to the answer and could be wholly stricken out without detriment to the rights of the defendant. Considering it, therefore, with reference to its legal effect, which is simply that of a denial, it cannot properly be regarded as setting up any such claim as to render it proper to require a bill of particulars. The plaintiff counts upon the contract, and is bound to prove a performance thereof before he can recover in the action. He must show that the advertisement of the defendant has been published during the period covered by the contract, and in all the papers in which it was required to be published by the terms of the agreement, however large the number. Such proof is essential to make out the plaintiff’s case, and he cannot avoid the obligation to furnish it, because the defendant has put its denial of due performance in a. somewhat more specific form than was necessary. As in the case of' Bennett v. Wardell (43 Hun, 452), no bill of particulars of the claim should be ordered to be furnished, inasmuch as no claim is set up, but there is merely an assertion that the adverse party has no claim. In this view there is nothing inconsistent with the case of Dwight v. Germania Life Insurance Company (84 N. Y. 493), in which it was held that the claim of a defendant, in regard to which a bill of particulars might be ordered, was “ whatever is set up by him as a reason why the action may not be maintained against him,” or, that ground of fact which he alleges in his answer as the reason why judgment should not go against him,” or, again, “ the position he takes in his pleading, based upon the facts he sets up and the law applied thereto, why he should go without day.” None of these definitions includes a mere denial or a statement of fact, which amounts only to such a denial and which comprises nothing more than what the defendant could have shown if he had contented himself with a simple denial in form.

. We think the order for a bill of particulars shoirld be reversed, with ten dollars costs and disbursements.

Yan Brunt, P. J., concurred.

Daniels, J. :

As long as the defendant has made it a part of its answer to allege that the contract had not been performed and the advertisement had not been published, it was entirely proper to require it to make these statements explicit and intelligible, by the service of a bill of particulars of the plaintiff’s failure to perform. That would greatly simplify the issue and the investigation to be made at the trial, and generally promote the attainment of justice between the parties. The defendant, by this answer, created the occasion for the bill of particulars. And it should not be absolved from the obligation of serving it, by the sole fact that it was not bound to make this answer at all. It has made it and the order requiring it to be amplified by a bill of particulars was so clearly appropriate that it ought to be affirmed.

Order reversed, with ten dollars costs and disbursements.


author: Bartlett, J.:

text:
    In the Matter of the Estate of LAWRENCE ODELL, Deceased.

      Code of Civil Procedure, secs. 2808, 2804 — power of a sw'rogate to order cm intermediate account.

    Where a petition, presented to a surrogate under section 2804 of the Code of Civil Procedure, in addition to asking that a decree be made for the payment of an amount claimed by a beneficiary under a will of a decedent, contains, also, a prayer for general relief such as 'the court may deem just, it is within the power of the surrogate, although the answer prescribed by section 2805 is filed, to make, under section 2803 of said Code, an order requiring the testamentary-trustee to render an intermediate account.
    Appeal from an order of the Surrogate’s Court of the city of New York, entered June 29, 1888, directing testamentary trustees to file an intermediate account.

      Jacob Fromme, for the appellant.

      Michael II. Oardoso, for the respondent.
   Bartlett, J.:

Lydia LI. Kane, a beneficiary under the will of Lawrence Odell, deceased, presented her petition to the surrogate of the county of New York, alleging that she was entitled to one-half of the income derived from the testator’s residuary estate, and praying that the trustees under the will might be directed to pay her $1,500 on account thereof. The petition also asked that the trustees might be cited to show cause why a decree should not be made for such payment, and why the petitioner should not have such other and further relief in the premises as to the court should seem proper.

The testamentary trustees filed duly verified answers in writing, which, under section 2805 of the Code of Civil Procedure, required the surrogate to dismiss the petition so far as the application for the payment of the $1,500 was concerned; inasmuch as the answers sufficed to show that it was doubtful whether the petitioner’s claim was valid and legal. The surrogate accordingly made an order ■denying the petitioner’s application for payment to her of the amount which she demanded, but added to the order a direction that the trustees should filé an intermediate account showing, in detail, their receipts and expenditures in the execution of their trust. Prom this part of the order the trustees appeal on the ground that the surrogate had no power, under the circumstances, to compel an intermediate account to be filed, but was restricted under the law to a simple • dismissal of the appellant’s petition.

If a petition, under section 2801 of the Code, prayed for nothing except the payment of money or the delivery of personal property out of the trust estate, it would seem that the jurisdiction of the surrogate would not extend further than to dismiss it upon the filing of such an answer as is mentioned in the following section (2805). But where the petition, as in the present case, contains also a prayer for general relief, such as the court may deem just, we think it is within the power of the surrogate, under section 2803, to make an order requiring the testamentary trustee to render an intermediate ■ account. That this power was properly exercised in the present ease seems evident.

Order affirmed, with ten dollars costs and disbursements.

Yan Brunt, P. J., and Daniels, J\, concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Brady, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. LAWRENCE DELEY, Appellant, v. STEPHEN B. FRENCH and Others, as Police Commissioners, Respondents.

      Dismissal from the New York police force — intoxication, induced by medicine prescribed for sickness, not an excuse.

    On the return to a writ of certiorari issued to review the action of the New York police board, in the matter of the relator’s dismissal from the New York police-force, it appeared that he was absent from his post sitting at a table in a restaurant asleep, with his hat and coat off, under the influence of liquor; that this condition was induced by his having taken brandy and ginger and a tincture off opium, by direction of a physician, to relieve him from a cold from which he-was suffering, and his having, subsequently to the taking of the first dose, ■ not feeling well, drank from each of two bottles, containing such remedies, what he supposed to be a proper dose, and his having, in fact, taken an amount, which produced unconsciousness:

      Held, that, assuming the existence of an ailment on the part of the relator, it. afforded no justification for his conduct.
    That the facts presented a question, the decision of which rested wholly with the-police commissioners, and that the General Term was not authorized, under the circumstances, to set aside the decision of the commissioners as being against the weight of evidence.

      People ex rel. Michael Brady v. French (11 St. Rep., 577) not followed; People ex-rel. Masterson v. Fi'ench (110 N. Y. 645) followed.
    . Certiorari to review the relator’s dismissal from the police force issued under an order of the New York Special Term of the: Supreme Court of June 15, 1888.

      John TE Tierney, for the relator.

      William, L. Turner, for the respondents.
   Brady, J.:

The charge against the relator was neglect of duty and conduct unbecoming an officer. The specifications were that he was absent-from his post in a restaurant in this city, sitting at a table asleep, with his hat and coat off, and was so much under the influence of liquor • that it was necessary to take him to the eighteenth precinct station house, which was done by-a sergeant and a roundsman. The evi-deuce was abundant to establish that the relator was in a condition: indicating intoxication, and, it may be briefly said, establishing theeharge made and the truth of the specifications stated. The answer of the relator to the charge was that whilst on duty he was suffering from dirarrhea, and so much so that he was compelled to go to-the nearest drug store for relief, getting a man in*the meantime to-cover his post. He met Dr. Hilton in the drug store, who examined: him, and found he was suffering from cold, and who, in the exercise-of his judgment, having made an examination, determined that he would be benefited by a stimulant and narcotic. He consequently prescribed brandy and gingqr and a tincture of opium, directing the: relator to take a tablespoonful of the brandy and ginger and twenty-five drops of the tincture of opium until relieved, and if the first dose,, which was administered by the doctor in the drug store, did not relieve him, to repeat the dose. The relator then returned to his post which he had left in charge of a person. The pain still continuing-the relator took another dose, and not having anything to measure, it drank from each -of the bottles what he thought was a dose, and took, it is supposed, too much of the opium and lost consciousness. It should be remarked here.that there is no evidence in the case of his having imbibed anything other than the medicine prescribed. Dr. Theodore Hilton corroborated the story told by the relator, stating that he saw him in the drug store, prescribed the brandy and ginger and tincture of. opium, and administered one dose himself. And he further said, I suppose he took too much of the opium or the brandy and that produced a narcotic influence; ” that, having taken it, it would take some time to sleep it off, and that he would still smell of the brandy. The druggist, Mr. Arfort, also testified that the relator went to his store, met there Dr. Hilton, who prescribed for him, and that the doctor wrote two prescriptions, which he put up for the relator —-four ounces of mixture in one bottle and one ounce in another; and this was the case which was presented to the commissioners for their consideration. It is kindred to the case of the People ex rel. Michael Brady v. French (reported in 11 State Reporter, fill). In that case it appeared that the relator was taken sick and resorted to stimulants for relief, which Was not denied, and which the court Considered, in that case, sufficient to account for his condition, overcoming the evidence which was offered for the purpose of showing that he was guilty of conduct unbecoming an officer; and the proposition suggested and maintained by the court was that, to determine the truth of the charge, it was to be considered that he did not voluntarily place himself in the condition in which the use of the stimulant placed him; that it was his misfortune, rather than his fault; that he was assailed by disease, when it was entirely proper that something should be done for him in the way of providing a remedial agent, and that provided by his friend was considered to be what was required under these circumstances. And in view of the rule that there must be, upon all the evidence, such a preponderance of proof as to the material facts that the verdict of a jury would be set aside as against the weight of evidence, it was suggested that the misconduct did not tend to establish the charge made of voluntary intoxication, but proved him to have been subjected to illness requiring the aid of stimulants, resulting from no misconduct on his part, and, therefore, the judgment of the commissioners was reversed. Here that decision would be followed were it not for the recent adjudication made in the case of the People ex rel. Masterson v. French (decided October 2, 1888.) That was a kindred case to this, only that the evidence was not quite so strong to prove the immediate necessity of resort to stimulants; but there was sufficient to establish the fact that the relator took brandy and ginger for illness, and there was no evidence to the contrary. This court thought the facts and circumstances detailed in the evidence in that proceeding to be such as to warrant the reversal of the judgment of the commissioners; but the Court of Appeals held, in reversing our decision, that, conceding the existence of an ailment on the part of the relator, it afforded nq justification for his conduct. The proof, such as is given on the part of the relator, established no extenuating circumstances in mitigation of the punishment which he had incurred by reason of his offense, and which would present a question pertaining solely to the general government and discipline of the force; and hence, from the nature of tilings, rests wholly within the discretion of the commissioners, not presenting any conflict of evidence which would invoke the rule authorizing the General Term to set aside the judgment as one against the weight of evidence.

To this exposition of the law by the Court of Appeals we bow and affirm the judgment, and, as a necessary consequence, dismiss the writ, but without costs.

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

Judgment affirmed and writ dismissed, without costs.'

      110 N. Y., 645. — [Rep.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE FAIRFIELD CHEMICAL COMPANY, Respondent, v. MICHAEL COLEMAN and Others, Commissioners of Taxes, etc., Appellants.

      Assessment of a corporationfor the purposes of taxation — deduction, from the assessment foi' personalty, of the value of real estate owned by it.

    The deduction Which is to he made from the amount of the assessment for personal property against a corporation in this State, because of its ownership .of real estate in another State, is to be measured by the actual value and not by the assessed value of such real estate.
    Appeal from an order of the New York Special Term of December, 1888, reversing the action of the commissioners of assessment and taxation of New York city, upon a certiorari issued under chapter 269, of 1880, to review an assessment for the purpose of taxation for the year 1888, made in reference to the personal property of the relator.

      George 8. Coleman, for the appellants. .

      William Man, for the respondent.
   Brady, J.:

It appears in this matter that the real estate of the respondent, was situate in the town of Black Rock, near Bridgeport, in the. State of Connecticut, and, indeed, all its personal property was there, situate; the business place in this city being kept exclusively for the sale of the product of its chemical works.

The appellants, in estimating the amount which should be taxed, deducted from the real estate what was denominated its assessed value instead of its actual value, the difference between these values. being very considerable. The learned justice in tlie court below determined upon tbe cases of the People ex rel. The Twenty-third Street Railroad Company v. The Commissioners of Taxes, etc. (95 N. Y., 554), and the People ex rel. The Panama Railroad Company v. The Same (104 id., 240) that the mode adopted by the appellants was erroneous, and in this conclusion he is undoubtedly sustained by the authorities mentioned. Whatever may be the result of a further consideration of the question, if there should be any other in the court of last resort, these adjudications declare the rule emphatically. The deduction made in the Panama case was of the actual value, and the court, per Andrews, J., in considering the propriety of that mode, said: “ It is true that the deduction on account of the real estate is not, in terms, of the assessed value,” and then suggesting that the legislature in directing a deduction of the assessed value of the real estate, doubtless, had primarily in view domestic corporations with real estate located here, said “ but the assessed value of real estate is, in theory, its actual value, and where a corporation liable' to taxation under the Laws of 1857 has real estate in another State.or country, the just construction of the statute, as applied to a corporation so situated, requires that the deduction shall be measured by its actual value.” And the case in 95 New York (supra), was quoted as sustaining such a rulé.

It is thought by the counsel for the appellant that the question of the assessed value was not before that court, a proposition which cannot be sustained. Unless he means by that that the assessed value in figures was not mentioned. The difference between the assessed value and the actual value, and the application of the different modes suggested by these different valuations, was considered and, applied. We do not purpose to enter into a discussion of the propriety of these decisions, but to apply them in all kindred cases as the learned justice in the court below did, and as we think properly. Indeed the order appealed from might very well be affirmed upon the opinion rendered in the court below.

Ordered accordingly; judgment affirmed, with costs.

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

Judgment affirmed, with costs.