author: Lewis, J".:

text:
    Guy Lamkin and Others, Respondents, v. Samuel M. Oppenheim, Appellant.

      Order of arrest — when allowable under Code of Oivü Procedure, § 549 — omission from an affidavit of the title of the action.

    Allegations sufficient to establish that the defendant was guilty of fraud in contracting or incurring the liability sought to be charged upon him, and that the plaintiff is entitled to an order of arrest under the provisions of section 549 of the Code of Civil Procedure.
    Under the provisions of section 728 of the Code of Civil Procedure, the omission of the title of an action from an affidavit does not impair its effect if the affidavit intelligently refers to the action in which it is made.
    Appeal by the defendant, Samuel M. Oppenheim, from an order of the Supreme Court, made by a justice at chambers and entered in the office of the clerk of the county of Erie on the 22d day of November, 1894, denying the defendant’s motion to vacate an order of arrest.

      B. F. Bake, for the appellant.

      George 3. Wardwell, for the respondents.
   Lewis, J".:

Tlie order of arrest was granted upon the complaint, the affidavits of Alfred S. Poster, one of the plaintiffs, and of George S. "Wardwell, one of plaintiffs’ attorneys.

It is the contention of the defendant’s counsel that the papers failed to make a case for an order of arrest.

It was stated in Mr. Poster’s affidavit that the plaintiffs were co-partners, carrying on business in the city of Boston, Mass.; that .an action was about to be brought by the plaintiffs as such co-partners against the defendant to recover damages to the amount of •$139.20.

The facts out of which the cause of action arose were stated in the affidavit as follows : “ That heretofore and on or about the 9th day of May and 16th day of May, 1894, the defendant ordered of these plaintiffs, as such co-partners, goods, wares and merchandise con•sisting of shoes of the value, and for which the defendant promised .and agreed to pay the sum of one hundred and thirty-nine dollars .■and twenty cents ($139.20), on a term of credit of sixty days; that no part of said amount has been paid; that for the purpose of inducing these plaintiffs to sell such goods to him said defendant, who was conducting a boot and shoe store in the city of Buffalo, N. Y., stated and represented to these plaintiffs, among other things, that he liad a stock of goods worth at least $7,000, $100 in good accounts; owned no real estate or other property except said stock of goods and accounts; was worth at least the sum of $5,000 over and above all debts and liabilities which he owed or had incurred, based on the assets of his business as aforesaid, less his business liabilities, as aforesaid; that his total indebtedness did not exceed $1,800, which amount was for merchandise, and that he was owing-no borrowed capital or money.”

The affidavit then refers to an affidavit of George S. Wardwell, :as annexed to the deponent’s affidavit, and in which it is alleged certain facts appear. It was further alleged that the said statements of the defendant were made for the purpose of inducing the plaintiffs to sell to him the said goods, and that the plaintiffs relied on said statements and believed them to be true, and were induced thereby to sell and deliver the goods to the defendant.

It is stated in the affidavit of Mr. Wardwell that he was one of tlie attorneys for tlie plaintiffs herein, and that on the 20th day of June, 1894, the defendant confessed a judgment in the Supreme Court in favor of Eachel Oppenheim, his wife, for the sum of §•±,458.20 damages and §16.81 costs; that the confession of judgment states that the whole amount of said damages was for money loaned by said Eachel Oppenheim to said defendant at various times between March 1, 1892, and December 19, 1898, each of which loans was made payable one year from the date thereof, and that according to said confession there was due and unpaid from said defendant to his wife for moneys loaned prior to March 1, 1894, the sum of §3,800 and interest, and §200 not yet due, with interest from December 19, 1893, as by reference to said confession filed in the Erie county cleric’s office will more fully appear.

It is further stated in Mr. Ward well’s affidavit that an execution had been issued upon said judgment, and the entire stock of goods, consisting of boots, shoes and rubbers, belonging to said defendant was sold by virtue of said execution by the sheriff to the plaintiff, Eachel Oppenheim, for exactly the amount of her judgment, with interest and expenses of sale added; that Mrs. Oppenheim thereafter carried on the business in her own name, and that the defendant had stated to deponent since said sale that he had no means whatever, and that he had paid none of his merchandise accounts, and that his wife had taken everything he had under said execution sale. These facts -would seem to bring the case fairly within subdivision 4 of section 549 of the Code of Civil Procedure, which provides for an order of arrest where it is made to appear that the defendant was guilty of fraud in contracting or incurring the liability.

The affidavit of the attorney, Mr. Wardwell, is criticised by the appellant’s counsel, first, for the reason that there is nothing in it .showing to what action or person it refers, except Eachel Oppenheim.

The affidavit was not entitled in any action, but the omission of the title does not impair its effect if it intelligently refers to the action in which it is made. (Code Civ. Proc. § 728.)

It was annexed to the affidavit of Mr. Poster, one of the plaintiffs, at the time it was used to obtain the order Poster's affidavit refers to. Mr. Wardwell’s affidavit was annexed to his, and the order of arrest recites that it was so annexed. Foster’s affidavit was entitled in tlie action. Wardwell’s affidavit fails to mention the defendant’s name, simply referring to him as tlie defendant in the action, without specifically stating what action is referred to. But it fairly appears from a perusal of the entire affidavit that it was made in the action the title of which was stated in Foster’s affidavit, and though it was unskilfully drawn we think it was properly used as a basis for the order, and that the papers made a case for the order.

The order appealed from should be affirmed, with ten dollars costs and disbursements of the appeal.

Dwight, P. J"., and Beadley, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Lewis, J.:

license: Public Domain

text:
    In the Matter of the Application of Emmons J. Gardner, a Stockholder of The Walker Tailoring Company, etc., Respondent, to Set Aside Certain Judgments Obtained by Julius L. Cohen and Others, Appellants.

      Application of section 28 of chapter 687 of 1892 — the interest is a pemnia/i'y one and, not that of relationship — relief under section 48 of chapter 688 of 1892.
    Section 28 of chapter 687 of the Laws of 1892 gives relief only in cases where the action therein referred to is in the interest or for the benefit of the director of a corporation against which it is brought, hut it is a pecuniary interest or benefit that the section contemplates, and not an interest arising out of relationship.
    "When relief can he granted under section 48 of chapter 688 of the Laws of 1892, prohibiting transfers by insolvent corporations.
    Appeal by Julius L. Cohen, and others from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 20th day of October, 1894, vacating and setting aside certain judgments obtained by said appellants against The Walker Tailoring Company, and directing the sheriff to deliver to the receiver of such corporation the property seized and taken by him by authority of the executions .issued upon such judgments.

      B. F. Bake, for the appellants.

      Edward L. Jellm.ek, for the respondent.
   Lewis, J.:

The "Walker Tailoring Company was organized under the Business Corporation Law of New Y ork as a domestic corporation, about the 1st day of May, 1894, for the purpose of doing a general tailoring business in the city of Buffalo. The capital stock was fixed at the sum of $15,000, divided into shares of the par value of fifty dollars each.

Mrs. Madge L. 'Walker had, prior to the time of the incorporating of the company, been engaged in the tailoring business in Buffalo, and had on hand a stock of goods. What its value was does not appear. She was insolvent and unable to pay her debts. The respondent, Emmons J. Gardner, and James L. Walker, the husband of Mrs. Walker, conceived and carried out the plan of organizing the corporation.

Gardner seems to have been the master spirit in the scheme. He was at the time about twenty-one years old, without means and entirely unacquainted with the business.

It is quite evident he was not acting in good faith in organizing the company. It was a scheme to make money for himself at the expense of any parties who might be induced to extend credit to the company. Ninety of the shares were issued to Gardner, for which he paid nothing at all. Seventy shares of paid-up stock were issued to Mrs. Walker, ostensibly as compensation for her stock of goods.

Ten shares were issued to a Mr. Fred Wuersmith, for which he paid their par value of fifty dollars a share. He seems to have acted in good faith. The concern started on in business. Gardner, Wuersmith and Mr. Walker were made directors. Gardner drew a weekly salary of twenty dollars from the business. He appears to have devoted his time during the brief existence of the corporation, not in doing anything for the business, but in efforts to trade off his stock with a view of realizing something for it. Mrs. Walker, at the time she transferred her stock to the corporation, was indebted to a firm in Buffalo, by the name of Cohen & Sinai, for goods which they had sold her.

About four months after the organization of the corporation, Colien & Sinai, by an arrangement witli Mr. Walker, wbo was at the time president and also a director in the corporation, assigned to the corporation its claim against Mrs. Walker, amounting to between $1,600 and $1,700, and Walker, as president, gave to them four notes of the corporation, three of them for the sum of $4-00 each, and the other for the sum of $431.38, and at the same time Walker, as president, gave three other notes of the company to other creditors of the corporation; one for the sum of $187.25; another for $283.69, and a third for $245.36.

The holders of these notes at once brought actions against the corporation in the Municipal Court of Buffalo, serving the papers upon Mr. Walker, and in six days thereafter they obtained judgments for their various claims, filed transcripts and issued executions to the sheriff, and he, by virtue thereof, seized the property of the corporation and advertised it for sale. The purpose of dividing the claim of Cohen & Sinai into four different notes was obviously so that they could be sued in the Municipal Court; the maximum sum for which that court could render judgment was $500, and judgments could be obtained in six days after service of summons.

Mr. Gardner, as a stockholder of the corporation, after learning of the recovery of the judgments, moved the court for an order setting them aside, and the order appealed from was granted. The motion was founded on section 28 of chapter 687 of the Laws of 1892, which is as follows: Stay of proceedings in actions collusively brought. If an action is brought against a corporation by the procurement or default of its directors, or any of them, to enforce any claim or obligation declared void by law, or to 'which the corporation has a valid defense, and such action is in the interest or for the benefit of any director, and tlie corporation has, by his connivance, made default in such action or consented to the validity of such claim or obligation, any member of the corporation may apply to the Supreme Court, upon affidavit setting forth the facts, for a stay of proceedings in such action, and on proof of the facts in such further manner and upon such notice as the court may direct,, it may stay such proceedings or set aside and vacate the same or grant such other relief as may seem proper and which will not injuriously affect an innocent party who, without notice of such wrongdoing, and for a valuable consideration, has acquired rights under sucli proceedings.” It will be observed that tlie section provides for relief, only in case “ such action is in the interest, or for the benefit of any director.” There was an entire absence of any evidence that any of these actions were in the interest, or for the benefit of Mr. "Walker. He had not the slightest interest in the corporation. II e -was, it is true, the husband of a person who held stock in the company, but it is a pecuniary interest or benefit that the section contemplates, and not an interest arising, as in this case, out of relationship.

It is stated in Gardner’s affidavit that these actions were prosecuted for the benefit of Mr. Walker, but there is an absence of any statements of facts or evidence to sustain the allegation, and, hence, it proves nothing. It is alleged in Walker’s affidavit, used in opposition to the motion, that he had no interest of any kind in the actions.

We do not see how the motion could be granted under the section of the statute quoted.

Can it be sustained under section 48 of chapter 688 of the Laws of 1892? That section prohibits any insolvent corporation, among other things, from making a conveyance or assignment or transfer of any property, or suffering a judgment to be obtained when the corporation is insolvent or its insolvency is imminent, with the intent of giving a preference to any particular creditor over other creditors of the corporation.

It may be doubted if the notes given to Cohen & Sinai had any validity as against the corporation, for want of consideration. But the validity of the notes given to the other creditors is not questioned ; it is claimed that the debts for which they were given were not, at the time, due.

It did not appear from Gardner’s affidavit, upon which the motion was based, that the corporation had, at the time, any other creditors than those mentioned, to whom these several notes were given, but it did appear from the affidavit of Mr. Walker, read in opposition to the motion, that there were other creditors having claims against the corporation; and it further appeared that the corporation was insolvent at the time the notes were given. Before the motion was made a receiver had been appointed for the corporation. Gardner was a director and a stockholder in tbe corporation at tbe time be made bis motion, but considering tbe manner of obtaining bis stock, he not having paid anything for it, and considering bis purpose in organizing tbe company, be was not entitled to much consideration.

It was made to appear pretty conclusively that tbe judgments were suffered to be recovered, and that the purpose of recovering them was to give the judgment creditors preference over other creditors of tbe corporation, and that they bad seized tbe property of tbe corporation under their executions.

It is provided by section 48 that every person receiving by means of any such prohibited act or deed any property of a corporation shall be bound to account therefor to its creditors or stockholders or other trustees. It may be doubted whether the levying upon the property of the corporation by virtue of these executions was receiving the property of the corporation by means of any act prohibited by this section. This motion was not in behalf of any creditor of the corporation; so far as was -made to appear they were content with the situation and did not care to have the judgments vacated.

This is not a proceeding to compel the judgment creditors to account for property which they had received; it was instituted under section 28 of chapter 687 of the Laws of 1892 above quoted, and, as suggested, the respondent having failed to show that the actions were in the interest or for the benefit of a director of the corporation, he was not entitled to the order appealed from; it should be reversed with ten dollars costs and disbursements.

Dwight, P. J., and Beadlby, J., concurred.

Order appealed from reversed with ten dollars costs and disbursements.


text:
    Killean Mastin, Appellant, v. The Rochester German Insurance Company, Respondent.

      IFire insurance policy ■ — • condition as to occupancy of the pi’emises.

    Upon the trial of an action brought upon a fire insurance policy, insuring a certain house while occupied by the insured or by his tenant, it was shown that at the time of 'the Are neither the insured nor any other person was living upon the premises, but that the insured had placed certain of his farming implements in such house.

      Held, that it was a personal occupancy that was provided for in the policy;
    That the presence of farming implements in such house was not an occupancy thereof, within the meaning of the policy, and that the plaintiff was not entitled to recover.
    Appeal by the plaintiff, Killean Martin, from a judgment of the Monroe County Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 21st day of December, 1894, upon the verdict of a jury rendered after a trial at the Monroe County Court, and also from an order entered in said clerk’s office on the 21st day of December, 1894, denying the plaintiff’s motion for a new trial made upon the minutes.

      John E. Robson, for the appellant.

      George A7. Yeoman, for the respondent.'
   Lewis, J.:

The cause of action as stated in the complaint is that the defendant, in and by the terms of an insurance policy, in consideration of the premium paid by the plaintiff, contracted and agreed with the plaintiff, among other things, that in case a certain house owned by plaintiff should be occupied by plaintiff or by a tenant during the three years next following the 9th day of April, 1892, and at any time during said period should be destroyed by lire without fault or negligence of the plaintiff, and in casé certain farming implements should be so destroyed, then defendant would pay to plaintiff the amount of his loss occasioned by said fire not exceeding the sum of $400 upon the said dwelling house, and that the house so insured and occupied was destroyed by fire to the damage of the plaintiff, etc.

The allegations of the complaint as to the insurance and the conditions thereof were not denied by the answer, and, hence, for the purposes of the trial must be considered to be the established facts. (Code Civ. Proc. § 522; Potter v. Smith, 70 N. Y. 299.)

At the time the policy was issued the dwelling house was occupied by a tenant of the plaintiff. He remained therein until the 5th day of April, 1893, when he moved his family out with the principal part of liis furniture, leaving, however, a few articles of furniture in the house. The plaintiff thereupon put into the house some farming implements which remained therein down to the time of the fire, which occurred on the 1st day of March, 1894. This was the only manner in which the house was occupied from the time the tenant left, as stated, down to the time of the fire. The plaintiff had a verdict for sixty dollars for his loss on farming implements.

The trial court held that the house was unoccupied within the meaning of the policy after the same was vacated by the tenant. The policy was read in evidence and from it it appeared that a portion of the property insured was a frame dwelling house described as “ Buildings situate in the town of Rush, county of Monroe, State of New York, and occupied by tenant and insured.” The policy further provided as follows : “ This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied, and so remain for ten days.”

It is the contention of the appellant’s counsel that the conditions of the policy as to the occupancy were complied with by the placing of the farming implements in the dwelling house after the removal of the tenant. We do not so construe the policy. The house was unoccupied within the meaning of the policy after the tenant removed therefrom. (Barry v. The Prescott Ins. Co., 35 Hun, 601; Herrman v. Adriatic Fire Ins. Co., 85 N. Y. 162 ; Halpin v. Phœnix Fire Ins. Co., 118 id. 165 ; Halpin v. Ætna Ins. Co., 120 id. 70.)

The plaintiff sought to introduce parol evidence to show that the agent effecting the insurance gave the construction contended for by the plaintiff to the language of the policy, but, as heretofore stated, the plaintiff in Ms complaint put a different construction upon the policy, the same as that given to it by the trial court. The language of the policy does not seem to us to be at all ambiguous. It was an occupancy by a family that was provided for, and in case the plaintiff’s tenant vacated the premises it was incumbent upon the plaintiff to see that it was occupied by another family. It is a matter of common knowledge that underwriters esteem a dwelling house not occupied as a residence to be more liable to destruction by fire than one thus occupied. Incendiarism is an important factor in insurance risks. The presence of a family in a house tends to protect it against the work of incendiaries. The presence of the plaintiff’s farming implements in the dwelling cannot be said to have in any manner protected it against fires.

The trial court properly held that the plaintiff was not entitled to recover the loss upon the dwelling house. That being the only question presented by this appeal, the judgment and order appealed from should be affirmed, with costs of this appeal to the respondent.

Dwight, P. J., and Bradley, J., concurred.

Judgment and order affirmed, with costs.


author: Bradley, J. :

text:
    Peter Scherer, Appellant, v. Holly Manufacturing Company, Respondent.

      Master and servant — duty of the foi'mer as to appliances— negligence not presumed -his liability for the negligence of his sei'vant.

    While a servant assumes the ordinary hazards incident to the service into which he enters, the master is bound to see that he is not subjected to perils arising from want of reasonable care in furnishing suitable and safe implements, machinery and appliances in and pertaining to the business in which he is employed. What is reasonable care in a given case is dependent, more or less, upon circumstances, and the burden is with the party charging negligence to prove it.
    The mere fact that a servant has suffered injury by reason of defective machinery does not raise the presumption of negligence on the part of the employer, nor is the master required to furnish the very best appliances for the service, nor does he absolutely guarantee the sufficiency or safety of appliances used.
    The master is required to use reasonable care, which may be defined to be such care as a prudent man, having- in view their suitableness and safety, would use in providing appliances if he personally were to be exposed to all the perils which might arise from their use in the service for which they were designed.
    The master is responsible to an employee for his injuries if they result solely from, the master’s failure to exercise reasonable care in furnishing suitable instruments for the service. If the reparation and adjustment of apparatus or machinery comes within the duty which the master assumes to perform, the servant who makes the repair or adjustment, whatever may be his grade in the general service, represents the master, and for the consequences of the negligence of such servant in the performance of such duty the master is responsible.
    Appeal by the plaintiff, Peter Scherer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Niagara on the 31st day of May, 1894, upon the verdict of a jury rendered by direction of the court after a trial at the Niagara Circuit dismissing the plaintiff’s complaint upon the merits, and also from an order entered in said clerk’s office on the 29th day of June, 1894, denying the plaintiff’s motion for a new trial made upon the minutes.

      Wallace Thayer, for the appellant.

      A. K. Potter, for the respondent.
   Bradley, J. :

The business of the defendant in the operation of its foundry and machine shop at Lockport, N. Y., has for many years been the manufacture of pumping engines and pumps for water works.

The plaintiff, employed by the defendant as a laborer in the molding department, was on June 30, 1892, injured by molten iron thrown out of a ladle or bucket suspended from a crane. The charge is that the cause was a defective condition of the apparatus attributable to the negligence of the defendant. The method of conveying melted iron from the furnace to the place of molding the castings, was in a large iron ladle by means of a steam crane or derrick. The bail upon which the ladle was hung was attached on two opposite sides to a trunnion a little below the perpendicular center of the ladle, so as to permit it to be turned with very little force, In fact it would not remain upright when suspended, unless held so by means of some appliance. To accomplish this there was a gear or cog wheel firmly keyed to the ladle, and a worm attached to the bail with a clamp held to its place by screws or bolts, The cogs oy teeth of the wheel and the thread of the worm, when in position, interlock.

In the proper adjustment of the apparatus is the safety of transporting the melted iron from the furnace to the molds. By means of a lever or crank the worm may be turned, and thus the gear wheel is correspondingly moved turning the ladle. In that manner, as occasion requires, the ladle may be turned and held at any angle and restored to its upright position. A few days before the day in question the gear wheel was broken, and then a new one was put in its place. To do this it was also necessary to loosen the clasp that held the worm in its place. And after it was repaired the ladle was taken to the cupola of the furnace, filled with 9,000 pounds of molten iron, and when it swung off it was tipped slightly and the refuse substance on the surface of its contents skimmed off by the workman having it in charge. Then it was observed by him that the thread of the worm did not interlap with the teeth of the cogwheel. The man at the lever was unable to bring them together, and as the consequence the ladle necessarily tipped over, spilling the contents, resulting in a serious permanent injury to the plaintiff. While the plaintiff assumed the ordinary hazards incident to the service in which he entered, the defendant owed the plaintiff the duty that he should not be subjected to perils arising from want of reasonable care in furnishing suitable or safe implements, machinery and appliances in and pertaining to the business in which he was employed. What is reasonable care in a given case is dependent more or less upon circumstances. And the burden is with the party charging it to prove negligence. The mere fact that he has suffered injury by reason of defective machinery does not raise the presumption of negligence of the employer. Nor is the latter required to furnish the very best known appliances for the service. Nor does the master absolutely undertake to guarantee their sufficiency or safety. As. has been suggested, he is in that respect required to use reasonable care, which may bo defined as such care as a prudent.man, having in Ariew their suitableness and safety, would use in providing the appliances if he personally were to be exposed to all the perils which might arise from their use in the service for which they were designed. (Devlin v. Smith, 89 N. Y. 470 ; Burke v. Witherbee, 98 id. 562 ; Stringham v. Hilton, 111 id. 388; Harley v. B. C. M. Co., 142 id. 31.)

The device of the gear wheel and worm had been in use many years in the defendant’s foundry with success and without any accident prior to the time in question, and so far as appears a similar apparatus is in use in other foundries where large castings are molded. There was nothing in the material, method of construction or operation of it when properly adjusted to permit imputation of want of due care on the part of the defendant in the application of it to the purpose for which it was used. The question is whether or not the conclusion is by the evidence permitted that the defendant was chargeable with negligence in not properly restoring the apparatus to a condition of safety for use after the gear wheel was broken.

The importance of having the apparatus properly adjusted is apparent for the protection of the employees as well as for the good of the service, when the ladle is swung five or six feet above the ground floor in passing from the furnace to the place of deposit of its contents.

This accident occurred the first time the ladle was used after the new wheel had been attached to it, and was the result of the first attempt to incline it in suspension by the use of the worm. And the evidence tends to prove that the failure of the apparatus to work properly was caused by the worm rising or slipping upon the bail, and thus taking it out of cog with the wheel; otherwise there could have been no danger apprehended, and that this could not have happened if the bolts of the clasp which held the worm to its place had been properly screwed up, appears by the evidence. The only way of accounting for the slipping up of the worm on the bail of the ladle, and thus separating the thread of it from the cogs of the wheel, was in the looseness of these bolts or screws. Yet the testimony of the machinist who did the work and of his assistant is that the bolts were screwed up tight, and the foreman also testified that he saw them screwing up the bolts. If this was well done as those who did it say it was then something must have occurred shortly after to w'eaken the firmness of the attachment of the worm to the bail at its proper place. But the evidence does not warrant the inference that anything was done or happened to the apparatus after its repair was completed and before the accident to loosen the clasp of the worm to the bail. The strain upon the fixture in the operation of the ladle is said to be but slight. And in this instance the only use made of the apparatus other than to hold the ladle upright in the start, was to tip it slightly for skimming, and thereupon the worm failed to perform the service for which it was intended.

This condition of it the jury were permitted to find was not consistent with the evidence of these witnesses, that the bolts were screwed up tightly or property. And in view of their relation as employees to the defendant at that time, the question whether or not the bolts were so screwed up was one of fact for the jury. (Dean v. Van Nostrand, 23 N. Y. Wkly. Dig. 97; Elwood v. W. U. Tel. Co., 45 N. Y. 549; Volkmar v. M. R. Co., 134 id. 418; Seybolt v. N. Y., L. E. & W. R. R. Co., 95 id. 562-567.)

As the duty was with the defendant to furnish and maintain suitable instrumentalities for the service and to supply a safe place for its employees to do their work, it is responsible to the plaintiff for his injuries if they resulted solely from the defendant’s failure to exercise reasonable care in that respect. The reparation and adjustment of the apparatus attached to the ladle for its use came within the duty which the defendant assumed to perform, and the servant who did it, whatever may have been his grade in the general service, represented the defendant, and for the consequences of his negligence in the performance of it the defendant is responsible. (Pantzar v. Tilly F. I. M. Co., 99 N. Y. 368; Bushby v. N. Y., L. E. & W. R. R. Co., 107 id. 374 ; Kranz v. L. I. R. Co., 123 id. 1; Hankins v. N. Y., L. E. & W. R. R. Co., 142 id. 416; Wannamaker v. City of Rochester, 44 N. Y. St. Repr. 45 ; 137 N. Y. 529.)

The view taken of the evidence is that it was such as to permit the jury to find that the plaintiff’s injury was occasioned by the failure of the person who sought to adjust the apparatus to screw' up the bolts sufficiently to Hold the worm to its place, and, if so, that the failure to do it was attributable to want of reasonable care on his part, for which the defendant was responsible, and that those questions should have been submitted to the jury. This inquiry would also involve the consideration of the question whether a reasonably practical test of the structure was applied to it after the reparation and before it was put into the service. The circurnstances under which, the thread of the worm left the cogs of the gear wheel, resulting in the unfortunate event, seems to have been such as to permit the inference that the worm was so loosely clasped to the bail of the ladle that it had substantially nothing other than its own gravity to hold it to its place.

The evidence warranted the conclusion that the plaintiff was free from contributory negligence, which was also a question of fact for the jury.

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

Dwight, P. J., and Lewis, J., concurred.

Judgment and order reversed and new trial granted, with costs to abide the event.


author: Bradlev, J.:

text:
    Holly Manufacturing Company, Respondent, v. Clarence H. Venner and Another, Appellants, Impleaded with Others.

      Discovery of boohs — affidavit that the party has neither the possession nor control of them — proof insufficient to justify a reversal of the order for discovery.

    Whether an order to produce and make discovery of books should be vacated, depends upon the circumstances of the particular case, and the order will not necessarily be vacated because the party required to produce the books makes, affidavit that he has neither possession nor control of the books in question.
    Proof that such a party had been in possession of the books of a firm in which he was a partner; that at his suggestion the books were sent to Boston and placed in the vault of his brother; that they have disappeared, and that his own individual account books, which were also material to the issues; were not to be found, presents a case for the affirmance of an order to make discovery.
    An affidavit by another partner that he left the firm on a certain date, had only occasionally visited the office of the partner who was in possession of the books; that he had no knowledge as to the whereabouts of the books, and that they were not in his possession nor under his control, is sufficient to excuse the affiant from making such discovery.
    Appeal by the defendants, Clarence H. Yenner and another, from an order of the Supreme Court, made at tbe Niagara Special Term and entered in the office of the clerk of the county of Niagara on the 13th day of August, 1894, requiring the defendants to make discovery and allow an inspection to be made of certain ledgers, journals and books of tlie firm of 0. H. Yenner & Co., and directing tlie defendant Clarence IT. Yenner to make discovery and allow an inspection to be made of certain of his individual books of account..

      E. G. Sprague, for the appellants.

      T. E. Ellsworth, for the respondent.
   Bradlev, J.:

The action is in the nature of a creditor’s bill founded upon judgments recovered by the plaintiff against the American Water Works-Company, an Illinois corporation, in June and July, 1892, upon an indebtedness existing prior to July 25, 1891. The plaintiff alleges-that on that day a transfer was made by that company of all its property to another company having the same name incorporated in New Jersey ; that thereupon tlie New Jersey company issued to the Illinois company its preferred and common stock, which was by the latter company distributed amongst its stockholders; that there was no other consideration for the transfer; that the firm of 0. IT. Yenner & Co., composed of the defendant Clarence H. Yenner and William A. Underwood, was one of such stockholders, and that each of these co-partners received a certain number of shares of the stock of the New Jersey company without consideration; that shortly thereafter the firm of C. H. Yenner & Co. was dissolved and another firm of the same name, composed of Clarence H. Yennerr George P. Toby and Frederick H. Mills, was organized; that this-firm assumed all of the debts and liabilities of the other, and, as a consequence, owed the Illinois company $40,000. These transactions are alleged to have been a- scheme intended to defraud the creditors of the Illinois company.

The purpose of the discovery sought is to furnish evidence in support of the matters alleged. - And it is represented by the petition that the plaintiff has no other means of obtaining the evidence to prove the facts essential to the substantial relief for which tlie. action is brought.

The provisions of the statute on the subject are substantially the. same as were those of the Revised Statutes.- It is provided that an order for discovery, and in default to show cause, may be vacated upon satisfactory proof by affidavit: (1) That it ought not to have been granted; or (2) that the party required to make the discovery, or permit the inspection, has not the possession or control of the book, document or other paper directed to be produced or inspected.” ■(Code Civ. Proc. § 806.)

The defendant Tenner, in his affidavit in answer to the matters alleged in the petition, states that the books mentioned in the petition were not nor were any of them in his possession or under his control. Under some circumstances the proof by affidavit of such facts would be deemed sufficient to fairly require the vacating of an order for discovery or for denial of the prayer of the petition on which it is obtained, because the question of possession or control or power to produce is a matter resting in the personal knowledge of the party against whom the proceeding is directed. (Hoyt v. Am. Exchange Bank, 1 Duer, 652; Woods v. DeFiganiere, 25 How. 523; Ahoyke v. Wolcott, 4 Abb. Pr. 41; Bradstreet v. Bailey, Id. 233; McIlhanney v. Magie, 13 N. Y. Civ. Proc. Rep. 16.)

In the present case the books in question of the firm of C. H. Tenner & Co. were, until sometime in 1893, in the office where the business of the firm had been transacted in the city of New York, and of which Tenner was an occupant. In the summer of that year the defendant Tenner was examined in proceedings supplementary to execution instituted by the plaintiff, and by subpoena duces tecum he was required to produce those books on his •examination. He there stated that, from three to five months before then, the books were removed to the vault of the office in the ■city of Boston, in charge of his brother George, for want of room in the New York office, and because they were not in active use. At a later day, to which his further examination was adjourned, he .stated, in substance, that he had been to Boston, and that, although the books had reached there and been placed in the vault, they could not be found; that he had made search and inquiry for them in vain. He said that the books were sent to the Boston office upon his suggestion.

In a proceeding to punish him for contempt for not producing the books pursuant to that subpoena, the reasons given by him for his default were not deemed satisfactory to the court, and the determination that he was in contempt was sustained on review. (Holly Mfg. Co. v. Venner, 14 Hun, 458 ; 60 N. Y. St. Repr. 480.) His statement on the subject in his affidavit in this proceeding adds substantially nothing to that in the other proceeding on the subject. He states that he has done everything in his power to discover the whereabouts of the books; has searched the vault in Boston and made diligent inquiry of all persons who would be likely to know about them. What he says about his inability to produce the firm books is applicable alike to his individual account books of which discovery and inspection are sought. He says that he lias no recollection of seeing them since October, 1892, at which time his office was moved from one set of rooms to another in No. 33 Wall street, New York. There is certainly some mystery about the disappearance of all those books which the plaintiff desires to inspect. There is no apparent reason, and none given, why any person hostile to the defendant Yenner would care to take away the books, or conceal them from him to his prejudice. The circumstances are such as to justify the inference that the disposition made of the books, whatever it may be, was not in hostility to him, nor intended to thwart any purposes desirable on his part.

It is not seen that the discretion of the urt was impro]3erly exercised by the conclusion that the defendant has not satisfactorily accounted for his non-production of the books, and that his failure to do so was evasion. (Hicks v. Charlick, 10 Abb. Pr. 129 ; Fenlon v. Dempsey, 21 Abb. N. C. 291; 22 id. 114; Perrow v. Lindsay, 52 Hun, 115.)

The relation of the defendant Toby to the books of the firm of C. H. Yenner & Co., of which he was a member, is somewhat different. His affidavit is to the effect that the firm was dissolved July 31, 1892, and since that time, and after August first of that year, he had been only an occasional visitor to the offices occupied by Yenner; that he has no knowledge whatever of the whereabouts of the books of the firm, or of the individual books of Yenner; that none of them have been in his possession or under his control since the 1st day of August, 1892; that he has no recollection of seeing them since that time, and that he is unable to produce them.

There are no facts or circumstances appearing to countervail the apparent effect of the affidavit of the defendant Toby in answer to the petition. And it is difficult to see how he can properly be charged personally with the failure to produce the firm books for inspection. It is .urged that Toby’s answer would serve the purpose of Yenner if .the .answer of the latter were stricken out. That ■can be so only to a very limited extent, and that is in the denial •that the defendants, Yenner, Toby and Mills, as co-partners under the firm name of G. H. Venner & Co., are indebted to the Illinois company in the sum of $10,000, or any sum. This is the only matter within the allegations of Toby’s answer which appears to be the subject of joint liability of these parties arising out of their alleged joint contract. There is no denial of the charge that the second firm of that name assumed the debts and liabilities of the former ■one. The complaint alleges substantially that the Illinois company transferred all its property to the New Jersey company, and that the certificates of stock of the latter company were delivered to the Illinois company, and were distributed by it before the first firm of •C. IT. Yenner & Co. was .dissolved, and that thereafter that corporation practically did no -business. It would, therefore, seem from the allegations of the complaint that the joint liability of the members who constituted the latter firm is dependent upon an indebtedness of the former firm to the Illinois company. The mere fact that Toby answered the -complaint cannot be given an effect prejudicial to him in the proceeding to obtain inspection of the books, -and to punish for contempt on his failure to produce them.

As the firm was dissolved in July, 1892, and the occupation of the office by Toby was then discontinued, and thereafter continued by Yenner, nothing appears from which complicity of Toby with Yenner in respect to the books can be inferred, nor does there s.eem to be any relation between them from which it may be assumed.

The order as to the defendant Toby should be reversed, and as against the defendant Clarence H. Yenner affirmed.

Dwight, P. J., and Lewis, J.., concurred.

Order reversed as to defendant Toby, and as against the defendant Clarence H. Yenner affirmed, without -costs of this appeal to ■either party.


text:
    In the Matter of the Judicial Accounting of John B. Fuller, as Executor, etc., of Sarah A. Tillman, Deceased. John B. Fuller, as Executor, etc., and Another, Appellants; Leonard H. Doty and Another, Respondents.

      Will — opening a decree of final settlement — proper parties thereto.

    Sarah A. Tillman left a will by the terms of which she gave to her husband the use of her real estate for life, and empowered her executors, in case its use should be insufficient, for his support, to apply, if necessary, all the proceeds of the real estate to that purpose. Her husband died before the testatrix.
    A further provision of the will was as follows: “The proceeds from the sale of my real estate, if any left, shall be divided equally, share and share alike, between my three children.” She also gave her executors power to sell her real estate. Her will was admitted to probate in 1887.
    In 1888 two of the children conveyed their interest in the real estate to a third child, one Ehoda Oxley, who, thereupon, mortgaged the same to Lorenzo B. Doty, and subsequently, in 1893, sold the fee to Martin Webster and John D. Arnold, the grantees assuming payment of the mortgage. The executor who alone qualified accounted in 1894. The decree made at that time declared that there was a deficiency in the personal estate; that certain claims specified in the decree were unpaid and were valid liens upon the estate, and directed the executor to pay them.
    Subsequently Doty and Webster (who had not been made parties to the accounting) petitioned the Surrogate’s Court to open the decree, alleging that one of the claims allowed w'as fictitious; that another was barred by the Statute of Limitations, and that their own claims as mortgagee and grantee respectively were superior to the claims of any creditors of the decedent upon the real estate. It was objected that it was not necessary to make the. petitioners parties to the proceeding because of the fact that at the time it was taken more than three years had elapsed after letters had been issued, and that the claims of creditors could not be charged upon the real estate.

      -Held, that, as the surrogate in making the decree had taken the view that under the language of the will there was a conversion of real estate into personalty, and as he had charged the claims now attached upon “ the estate,” this must mean the estate represented by the testatrix’s real estate; and that the petitioners, in this view, had a standing which entitled them to seek relief against the decree.
    Appeal by Jolm B. Fuller, as executor of tbe will of Sarali A. Tillman, and by Joseph H. Buell, a creditor of her estate, from an order of the Surrogate’s Court of Orleans county, entered in said Surrogate’s Court on the 28th day of August, 1894, setting aside a decree entered upon a judicial settlement of the accounts of said John B. Fuller as such executor, directing that a new hearing of said judicial settlement be had, and enjoining said Fuller, as such executor, from disposing of the real estate of said Sarah A. Tillman under the power of sale given to him by her will.
    The will of Sarah A. Tillman was admitted to probate on the 26th day of September, 1887. The conveyance by two of her children to the third, Rhoda Oxley, and her mortgage of the premises to Lorenzo B. Doty occurred on the 4th day of April, 1888. Rhoda Oxley conveyed the premises in question to Martin Webster, one of the petitioners herein, and to John D. Arnold, on the 30th day of January, 1893, by a warranty deed, in which it was stated that there was then unpaid upon the mortgage from Oxley to Doty the sum of $1,500, and the mortgage was in said deed assumed by Webster and Arnold. The surrogate’s decree, which is attacked in this proceeding, was made on the 5th day of March, 1894. The petition in this proceeding was verified on the 12th day of March, 1894.

      William E. Ilobby, for the appellants.

      James 8. Thompson, for the respondents.
   Bradley, J. :

The ultimate disposition of some of the questions in this matter may be dependent upon the effect of certain provisions of the will of the festatrjx. By it she gave to her husband the use during his life of all her real estate, and if that should be insufficient for liis support, the executors were directed to use a requisite portion, or, if necessary, the whole of the real estate for such purpose. Then followed the provision that “ the proceeds from the sale of my real estate,1 if any left, shall be divided equally, share and shaie alike, between my three children above mentioned. I give my executors hereinafter named full power and authority to sell, transfer and convey, by deed or otherwise, my real estate to the same extent I might do if living.” .

Only one of the two persons nominated by her to be executors accepted the trust. By the terms of the will he had all the powers given to both. The testatrix survived her husband. Within a year after her death two of the children joined in a cenveyance to the third, Rhoda Oxley, and she thereupon made to Lorenzo B. Doty her bond, with a mortgage on the premises, to secure the payment of a loan of $2,000 made by him. Of this money $150 was taken by the executor, and the residue was divided between the other two children, Mrs. 'McKeon and Charles 14. Tillman, by whom the conveyance was made.

The premises were afterwards conveyed by Mrs. Oxley to "Webster and Arnold, they assuming such mortgage, upon which there remained unpaid $1,600, and they thereafter made further payments upon it. Afterwards a judicial accounting of the executor was had and a decree of the Surrogate’s Court to that effect entered, in which it was ordered that there was a deficiency of $443.72 in the assets of the estate of the decedent, and that it remained a lien and charge on the estate; that part of said deficiency consisted of a claim of the executor amounting to $19.26, a claim of Charles Tillman of $211.56, and a claim of J. H. Buell of $156.85 ; that such three claims were unpaid and were valid and subsisting liens upon said estate and that the executor pay them.

The petition upon which this decree was opened was that of Doty, the mortgagee, and Webster, one of the grantees of the premises. They were not made parties to the proceeding in which the decree was made. And the petition contains various alleged reasons for the relief sought, amongst which are the charges that the claim of Buell was barred by the Statute of Limitations; that of Tillman' was fictitious and not a just claim against the estate, and that the mortgage to Doty and the deed to Webster and Arnold were superior to the claim of any creditor of the decedent upon such land.

On the part of the appellants it is said that there was no occasion to make the petitioners parties to the proceeding, because at the time it was taken the claims of creditors could not be charged upon the land of which the testatrix died seized, because when the proceeding for the judicial accounting was instituted more than three years had elapsed after letters testamentary had been duly issued. (Code Civ. Proc. § 2750.)

If, as claimed by the learned counsel for the appellants, the power of sale was given merely to divide the proceeds amongst the three children, they took title subject to the [execution of the power, and the three years’ limitation was a bar to a proceeding in the Surrogate’s Court in behalf of the creditors for disposition of the land to obtain payment of their claims from its proceeds. And upon that assumption the petitioners were not necessary parties to the judicial accounting. (Sayles v. Best, 140 N. Y. 368.)

But this evidently was not the view of the surrogate. He treated the power of sale as not thus limited, and concluded that by the will there was a conversion of the real estate into personalty. For that reason the decree declared that those claims were valid and subsisting liens upon the estate, and directed the executor to pay them. The estate referred to in the decree was none other than that furnished by the land before mentioned. Such determination ■and direction declared by the decree gave the petitioners a standing, which enabled them to seek relief against it. (Matter of Flynn, 136 N. Y. 287.) And there are matters alleged in the verified petition justifying the opening of the' decree of the Surrogate’s Court. Charles Tillman does not appeal. And as it is not claimed in behalf of appellants that any claim of the creditors can be effectually asserted against the land in question upon the idea that it can be treated as personalty there is no occasion to consider that question on this review.

The order opening the decree was authorized by the statute (Code Civ. Proc. § 2481) and was properly granted.

The order should, therefore, be affirmed.

Dwight, P. J., and Lewis, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Ward, J.:

text:
    Abram Shaver, Appellant and Respondent, v. Nelson B. Eldred, Respondent and Appellant.

      Costs on appeal to a County Court — stenographers’ fees — costs in the Court of Appeals — increased costs, in what courts taxable — Code of Civil Procedure, §§ 3073, 3256, 3251, subd. 5, 3258 — Laios of 1892, chaps. 185, 592.
    Section 3073 of tlie Code of Civil Procedure regulates the amount of costs upon an appeal to a County Court and fixes the trial fee at twenty dollars.
    Stenographers’ fees are not taxable; chapter 185 of the Laws of 1892, amending section 3256 of said Code and permitting such taxation, having been repealed by chapter 592 of the Laws of 1892.
    Section 3251, subdivision 5, of the Code plainly contemplates that the only costs to be allowed upon an appeal to the Court of Appeals are, before argument thirty dollars, for argument sixty dollars, and term fees; nothing can be taxed for making and serving a case.
    Whereupon the trial of an action it appears that the action'was brought in a Justice’s Court against the defendant by reason of acts done by him in aid or assistance of the Superintendent of Public Works of the State of New York touching the duties of the office which he was appointed to perform under the authority of the State, the defendant is, under section 3258 of said Code, entitled to increased costs, whether appellant or respondent, upon all appeals from the County Court to all higher courts. He is not entitled to increased costs in the County Court, upon an appeal thereto, the costs in such cases being regulated solely by section 3073 of said Code.

      Porter v. Cobb (25 Hun, 184), disapproved.
    Appeal by the defendant, Nelson B-. Eldred, from portions of an order of the Cayuga County Court, entered in the office of the clerk of Cayuga county on the 5th day of December, 189f, viz.:

      “ Erom that part thereof which directs ‘that the item of thirty dollars for making and serving case in Court of Appeals be stricken from said bill of costs, and that the sum of fifteen dollars be deducted from the amount of the item of increased costs on account thereof.’ “ Erom that part thereof which directs ‘ that the item for increased costs be further reduced by deducting therefrom the sum of eighty-seven dollars and fifty cents, being the amount charged for increased costs for proceedings in County Court,’ except in so far as the same directs the reduction of said item of increased costs by the sum of ten dollars.
    “ Erom that part of said order which directs the correction of the judgment, judgment roll and docket of judgment by changing the amount of $945.75 in each of them to the sum of $793.25 ; except in so far as it clire,cts the reduction of said sum of $945.75 by deducting therefrom the sum of thirty dollars.”
    Also an appeal by the plaintiff, Abram Shaver, from that part of said order, entered in the office of the clerk of the county of Cayuga on the 5th day of December, 1894, which is stated to have been made upon motion of Charles hi. Baker, attorney for the defendant.
    The papers in the case contained a certificate of the county judge before whom the case was tried, that upon the trial it appeared that the action was brought against the defendant by reason of acts done by him in aid or assistance of the, Superintendent of Public Works of the State of New York touching the duties of the office which he was appointed to perform under the authority of the State.

      Charles M. Baker, for the appellant.

      Hull Greenfield, for the respondent.
   Ward, J.:

This action was commenced in a Justice’s Court of Cayuga county in 1883. A new trial was taken in the County Court which resulted in a judgment for the plaintiff. Defendant appealed to the General Term of this court and judgment was affirmed. Defendant then appealed to the Court of Appeals, where the judgment was reversed, with costs to abide event, and a new trial granted in the County Court. Upon the new trial the plaintiff again recovered a judgment. Defendant appealed from this judgment to the General Term, and this judgment was reversed and a new trial ordered in the County Court, with costs to abide event. Upon a new trial in the County Court the plaintiff’s complaint was dismissed, with costs. The county judge before whom the cause was tried made a certificate, as provided by section 3248 of the Code of Civil Procedure, that defendant was entitled to increased costs under section 3258 of the Code for the reason that on the trial it appeared that the action was brought against the defendant by reason of acts done in aid or assistance of the Superintendent of Public Works of the State of New York affecting the duties of his office.

Final judgment was rendered in favor of the defendant in the County Court in the summer of 1894, and the clerk taxed the defendant’s bill of costs at tbe sum of $945.75. Several objections were taken by the plaintiff’s attorney upon the taxation, all of which were overruled. Those important to be considered were as follows:

Two items in bill of $30 each for trials in the County Court lasting more than two days.

For making and serving case in Court of Appeals, $30.

For increased costs under section 3258, $247.50.

For copies of stenographer’s minutes of the two trials in the County Court, aggregating $23.16.

Plaintiff moved for a review of this taxation before the County Court, which was had, and that court made an order reducing the two Rems of thirty dollars each for trial fees to twenty dollars each, striking out the item of thirty dollars for making and serving case in Court of Appeals and deducting fifteen dollars from the item of increased costs on account thereof; striking out eighty-seven dollars and fifty cents, being the amount charged for increased costs for proceedings in the County Court. These deductions left the bill taxed at $793.25, and the clerk was directed to correct it accordingly. Both parties appealed from that order, and the questions are here for review.

The reductions of the trial fees in the County Court from thRty dollars to twenty dollars must be sustained. Section 3073 regulates the costs of appeals in County Courts, and fixes twenty dollars as the trial fees.

The stenographer’s fees, being in the aggregate twenty-three dollars and sixteen cents, are not taxable as a necessary disbursement in. the cause. This was held by the General Term of the fifth department in Pfaudler Barm Extracting, etc., Company v. Sargent (43 Hun, 154), Judge Haight pronouncing the opinion, concurred in by Judges Bradlet, Angle and Childs. Section 3256 of the Code of.Civil Procedure, prior to 1892, did not in terms specify stenographers’ fees for minutes of testimony as a disbursement, but chapter 185 of the laws of that year amended that section and included as a proper disbursement stenographer’s fees for minutes of testimony before a court, judge or referee,” and provided that that act should take effect September 1, 1892. It was passed on March 24, 1892. On the fourteenth of May following the Legislature again amended this section by chapter 592 by simply omitting the provisions as to stenographers’ fees and providing that that should take effect on the 1st day of September, 1892.

Chapter 185, therefore, in fact never went into operation, as the Legislature, by the subsequent act, in effect repealed it and indicated as the final judgment of the Legislature that stenographers’ fees were not taxable disbursements.

Section 3251 of the Code (which provides for amount of costs generally) gives the successful party for making and serving a case twenty dollars and ten dollars in addition if the case contains more than fifty folios. By subdivision 5 of that section the successful party upon an appeal to the Court of Appeals is to recover before argument thirty dollars, for argument sixty dollars, and the section plainly contemplates that this is all the costs that shall be allowed except term fees. The bill as taxed allowed the defendant these two items in addition to the items complained of, and the County Court was right in striking them out.

The plaintiff contends there should be no allowance for increased costs that have accrued upon any of the appeals in which the defendant was appellant, and he relies upon several decisions under the Revised Statutes giving additional costs to public officers, among which are Wheelock v. Hotchkiss (18 How. Pr. 468); Dockstader v. Sammons (4 Hill, 546).

The Revised Statutes (2 R. S. 611, § 24) provided: “ In the following actions, if judgment be rendered for the defendant upon verdict, demurrer, nonsuit, non-pros, discontinuance of the plaintiff or otherwise in any action, certiorari, writ of error or other proceedings, such defendant shall recover the amount of his taxed costs, and one-half thereof in addition.”

This statute has been repealed.and section 3258 of the Code substituted. By that section a defendant, upon receiving a proper certificate under section 3248, is entitled to recover the costs prescribed in section 3251, and in addition thereto one-half thereof. The latter section fixes the costs which the successful party is entitled to under section 3228 and other sections of the Code, whether the defendant is appellant or respondent, and the additional allowance is based upon it. (Porter v. Cobb, 25 Hun, 184; Burkle v. Luce, 1 N. Y. 239.)

The serious question upon this appeal is whether the County Court was right in refusing the defendant the sum of eighty-seven dollars and fifty cents for increased costs in the County Court. In Porter v. Cobb (supra) the General Term of the third department held that such increased costs should be allowed for the reason that section 3347 embraced County Courts within the scope of section 3258. The position of the County Court was that as to appeals and the costs of trials on appeals to the County Court, they were regulated and controlled by section 3073, which provides a bill of costs in the County Court for such trials, and are, therefore, excepted from the operation of section 3251.

And, as increased costs are only given where costs have accrued under section 3251, they cannot be recovered with relation to said County Court trials.

All of the provisions of the Code bearing upon this subject should be considered in determining this question.

Section 3258 predicates the additional costs upon the costs recoverable under section 3251. The costs of appeals in County Courts are controlled exclusively by section 3073, which provides for all proceedings before notice of trial, fifteen dollars; for all subsequent proceedings before trial, ten dollars; for trial of an issue at law, fifteen dollars; for trial of an issue of fact, twenty dollars; for argument for motion for new trial, fifteen dollars and term fees.

There is no provision in this section for increased costs, and the section is entirely independent of section 3251. Authority must be found in the statute for the imposition of costs. Such authority will not be inferred, and certainly none is contained in the statute cited for imposing additional costs upon the plaintiff in proceedings-in County Court.

The defendant cites Porter v. Cobb (supra) as authority for this-extra allowance. The court in that case held that such increased costs should be allowed for the reason that section 3258 came under the second title of chapter 21 of the Code, and as subdivision 13 of section 3347 restricts the application of this second title to the action in one of the courts specified in subdivision 4 of section 3347. And as the County Court is one of the courts enumerated in subdivision 4, therefore, the section giving the increased costs applies to County Courts.

"With all due respect, this reasoning seems more specious than sound. The purpose of subdivision 13 was to restrict the general application of the second title of chajiter 21 to certain courts being the most important courts, and courts of record, and should not be construed as doing away with the obvious purpose of the other section of the Code bearing directly upon the question.

Section 3201, which is a part of the article embracing 3251 and 3258, provides : “ This article does not afEect any provision contained elsewhere in this act, or in any other statute remaining unrepealed * * * whereby the amount of costs is specially fixed in a particular case, otherwise than as prescribed in this article.” Section 3073, providing for costs upon appeal to County Courts, is not part of the article embracing sections 3251 and 3258, and, therefore, comes within the restrictive provision of section 3261 above quoted.

The attention of the court in Porter v. Cobb does not seem to have been called to section 3261, or to the exceptions to the operation of section 3247, stated at the very commencement of that section, and we are unable to concur in this respect with the learned court in Porter v. Cobb.

It is said that no reason exists why the County Court should be exempted from the operation of section 3258. The answer is that that suggestion should be addressed to the lawmaking power. There must be some statute authorizing costs before they can be imposed. (Equitable L. A. Society v. Hughes and Others, 125 N. Y. 108.)

The order of the County Court should be modified by striking out the stenographer’s fees of twenty-three dollars and sixteen cents, and, as modified, affirmed, without costs to either party.

Dwight, P. J., Lewis and Bradley, JL, concurred.

Order modified by striking out the stenographer’s fees of twenty-three dollars and sixteen cents, and, as so modified, affirmed, without costs.


author: Rumsey, J.:

text:
    The White Corbin and Company, Respondent, v. William Martin Jones, Appellant.

      Corporate stock issued fot'propé'ty under chapter 833 0/ 1853 — proof necessary to enforce the liability of a stockholder under section 10 of chapter 40 of 1848 — purchase)' of stock, liable if the certificate filed be false — motion for a new trial — affidavits of jurors as to their erroneous views of the lam.

    Where the trustees of a corporation have issued stock in payment of the purchase price of property necessary for its business, under the provisions of chapter 333 of the Laws of 1053, and a creditor of the corporation attempts to enforce the individual liability of a stockholder thereof, under section 10 of chapter 40 of the Laws of 1848, such creditor is bound to prove, first, that the stock issued exceeded in amount tho value of the property, in exchange for which it was issued, and, second, that tho trustees at the time deliberately, and with knowledge of the real value of the property, overvalued it,'and paid for it in stock an amount which they knew was in excess of its actual value, and that by reason thereof the assets of the company were deliberately impaired.
    The creditor must also show the value of the property at the time the stock was' issued therefor.
    Any testimony, such as proof of conversations and acts of parties who were at the same time directors of the corporation and owners of-the property purchased by its stock, which goes to show what was the. true value of the property, at that time or to show what contract was actually made by the trustees with the owners of the property bought; what consideration was paid to them and the way in which the consideration was paid, is competent as bearing upon the intention with which the trustees paid in stock more than the value of the property.
    Under section 10 of chapter 40 of the Laws of 1848, every person who buys stock of a manufacturing corporation is liable for the debts of the corporation until the certificate provided for in that section is filed.
    When the stock of a manufacturing corporation is issued under chapter 333 of the Laws of 1853 it becomes paid-up stock, not necessarily by the filing of a certificate but by the filing of a certificate which is true. Any one who has occasion to buy stock which is issued in that way is bound not only to see that the certificate has been filed, but, at his peril, to ascertain whether or not the certificate represents the truth, and whether the property which has been taken in payment of the stock is worth the stock which had been delivered for it.
    A motion for a new trial of a case on the ground of newly-discovered evidence, will not be granted where there is no statement in the moving papers showing that the newly-discovered evidence is of importance, and where there is no probability that the newly-discovered evidence would, if given on the’trial, have changed the result of the trial.

      The affidavits of jurors, offered to establish the fact that their verdict proceeded upon a mistaken view of the law, cannot be read; nor can such facts be established by the declarations of the jurors made', after the verdict has been rendered, to other persons who embody them in an affidavit used upon a motion, for a new trial.
    Appeal by the defendant, William Martin Jones, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 16th day of October, 1894, upon the verdict of a jury rendered after a trial at the Monroe Circuit, and also from an order entered in said clerk’s office on the 16th day of October, 1894, denying the defendant’s motion for a new trial made upon a case containing exceptions, and on the ground of surprise and newly-discovered evidence.

      W. Martin Jones, appellant, in person.

      Drnid Hays, for the respondent.
    Judgment and order affirmed, on opinion of Rumsey, J., at Circuit.
    Present- — -Dwight, P. J., Lewis, Bradley and Ward¿ JJ.
   The opinion was as follows:

Rumsey, J.:

This action was brought against the defendant, who was a stockholder in the Rochester Printing and Lithographing Company, to recover a debt of that company by reason of the defendant’s liability as a stockholder, under section 10 of the Manufacturing Cor porations Act (Laws of 1848, chap. 40, § 10). The language of that section is: “ All the stockholders of every company incorporated under this act, shall be severally individually liable to the creditors of the company in which they are stockholders, to an amount equal to the amount of stock held by them respectively, for all debts and contracts made by such company, until the whole amount of capital stock fixed and limited by such company shall have been paid in.”

The plaintiff, which was a creditor of the Rochester Printing and Lithographing Company, claimed that the liability of the defendant existed, because at the time of the organization of the company the stock was issued in payment for property sold to the company at a fraudulent overvaluation, and for that reason the stock was not in fact fully paid stock. The defendant himself, as was conceded, was no party to the fraudulent transaction, and did not become a stockholder until a considerable time after the organization of the company.

By chapter 333 of the Laws of 1853, the trustees of such a corporation were permitted to purchase the property necessary for their business, and issue stock to the amount of the value thereof in payment therefor. When that has been done, if one who is a creditor of the corporation, tries to insist upon the individual liability of the stockholder under section 10 of chapter 10 of the Laws of 1818, he is bound to prove, first, that the stock issued exceeded in amount the value of the property in exchange for which it was issued; and, second, that the trustees deliberately and with knowledge of the real value of the property, overvalued it, and paid in stock for it an amount which they knew was in excess of its actual value. (Lake Superior Iron Co. v. Drexel, 90 N. Y. 87, 92.)

It will be observed that the transactions, which are to be investigated to enable the plaintiff to establish these facts, must have taken place at the time when the property was bought and stock issued in payment for it, and the creditor is bound to establish that at that time there was an overvaluation to the knowledge of the trustees, by which the assets of the company were deliberately sacrificed. It follows that the evidence must be directed to the occurrences of that time, for those occurrences are the ones to be explained. The plaintiff must show the value of the property at that time, and he must also show by competent evidence that the trustees, knowing the actual value, intentionally overvalued it, and issued stock for it at the overvaluation. Any testimony which goes to show what was the true value of the property at that time is competent. So, also, it is competent to show what contract was actually made by the trastees with the owners of the property bought, and what consideration was paid to them, and the way in which the consideration was paid, because all those things are material as bearing upon the intention with which they paid in stock more than the value of the property. So, also, the knowledge of the trustees, and their deliberate intention at that time to buy the property at a fraudulent overvaluation must be proven, and any testimony which is competent upon that point is competent in the action.

These considerations necessarily dispose of nearly all the exceptions which were taken in the case as to the admission of evidence. For instance, Pitt, upon his examination, was asked what was his opinion of the-value of the assets of the Willard, Pitt & Moore business, which were turned over to the corporation, at the time when they were so turned over. That evidence called for precisely one of the facts which the Court of Appeals says must be proved by the plaintiff to establish his cause of action. It called for the opinion of the witness as to the value of certain assets which were turned over, at the time when they were turned over.

There were several exceptions to the conversations which were had between the different directors at the time when the property was bought and stock turned out for it. The persons between whom these conversations were had were owners of the property bought, and directors of the company as well. It was necessary for the plaintiff to show that these people knew at the time that the property was overvalued, and what was said and done at the time when they entered into the transaction was clearly competent to show not only their knowledge which they expressed at that time, but also their intention. (Loos v. Wilkinson, 110 N. Y. 195, 211, and cases cited.)

So, also, it was competent to show the disposition which was made •of the assets, as bearing upon the good faith of the whole transaction on the part of the trustees.

It was claimed on behalf of the defendant, that the good-will of the several partnerships which were turned over to the Rochester Printing and Lithographing Company, was of such value that, in .addition to the actual value of the assets of those establishments, it was equal to the amount of stock which was paid for them. To meet this claim on the part of the defendant, it was competent for the plaintiff to show that these partnerships and corporations which were consolidated into the Rochester Printing and Lithographing Company were doing a losing business, because that bore directly upon the value of their good-will. The other exceptions which were taken are covered by the considerations hereinbefore expressed. It is claimed by the defendant that no liability against him can exist under this section, because it is not alleged or proved that ho was a party to the overvaluation, but, on the contrary, it appears that he bought the stock after the property had been purchased and the stock had been issued to pay for it, and that the liability can only be based upon the fraud of the defendant. It would perhaps be sufficient to say upon this subject, that no such point is raised by any motion made by the defendant in the case. If it had been, it is possible that evidence might have been given to charge the defendant with a knowledge of the condition of affairs at the time he bought the stock.

But passing that point, I am of opinion that the liability existed against every one who purchased stock issued in the same way in which this was issued, without regard to any knowledge he may have had upon the subject. Section 10 of the statute which has been quoted above, establishes a liability against “all stockholders.’’ Under that section, every man who bought stock of a manufacturing corporation was liable for the debts of the company until the certificate provided in that section shall have been filed. All that it was necessary for him to know, to find out whether or not he was liable, was to ascertain whether the certificate had been filed. If it had, he was not liable, and if it had not, he was liable.

By the law of 1853, a new power was granted to the trustees. It was no longer necessary for them to require the payment in money of the stock which was issued. They might, under that statute, issue stock to the value of the property bought, in payment for such property, and in the certificate which they filed that the stock was paid up, the manner of payment must be reported according to the fact. (Laws of 1853, chap. 333.) When stock was issued under that permission of the statute, it became paid-up stock, not necessarily by the filing of the certificate, but by the filing of a certificate which was true. Any one who had occasion to buy stock issued in that way, was bound not only to see that the certificate had been filed, but was bound, at his peril, to ascertain whether or not the certificate represented the truth, and that the property which had been taken in payment of the stock was worth the stock which had been delivered for it. This construction of the statute is, it seems to me, plain and clear It was the one which was adopted by the judge in the case of Lake Superior Iron Company v. Drexel (supra), and it was the only construction upon which that case could have been submitted to the jury. I can find in no case which has been reported, any suggestion that a stockholder who buys stock issued in this way is not liable, if the stock was issued at an overvaluation.

In several of the cases cited by the defendant’s counsel the defendant himself was one of the parties consenting to the overvaluation, and in these cases the court says that it was necessary to prove that the defendant knew of it. But that was said because the defendant was one of the parties to the transaction. Undoubtedly the liability thus created is a grave one, and it may in some cases, as possibly it did in this case, work an injustice to the individual stockholder. But it is within the plain construction of the statute, and, therefore, it cannot be escaped.

So far as the motion for a new trial in this case is made upon the ground of newly-discovered evidence, the papers are fatally defective. There is no statement anywhere in the papers of what the newly-discovered evidence is, except the paper which is said to be in the handwriting of Pitt stating that there was a small amount of money on hand when a dividend was declared, at a time when he swore there was no money in the treasury of the company. But if it could be assumed that this paper established that fact, it would be a matter of no importance whatever. If the fact had appeared, according to the statement in the paper, there is no probability that it would have changed the result of the trial, and if it should be made to appear upon a new trial, I cannot see how it would have any effect whatever. There is no statement of any other evidence which was newly discovered.

The defendant also asks for a new trial upon the ground that the jury misunderstood the charge of the court, and that their verdict was based upon such a misunderstanding. To this part of the motion there are several serious objections.

In the first place there is no competent evidence to prove the fact. If the affidavits of the jurors had been offered to establish that their verdict proceeded upon a mistaken view of the law they could not have been read. (Clum v. Smith, 5 Hill, 560.) Nor can such facts be established by the declarations of the jurors, made after tlie verdict had been rendered, to other persons who embody them in an affidavit. (Mitchell v. Carter, 14 Hun, 448.) But passing that objection, it is very clear that no intelligent person could have misunderstood the direction given the jury. The charge upon the point referred to was clear and was reiterated, and it appears, from the testimony of one of the jurors, not only that he made no such declaration as is stated in the affidavits, but that the jury did understand the charge of the court and based their verdict upon the directions which they réceived.


author: Bradley, J.:

text:
    Henry Walbourn, Respondent, v. Edward J. Hingston, Appellant.

      JRelease — want of knowledge, insufficient to qualify it — mutual mistake or fraud — allegations in a reply insufficient to raise an issue.

    The fact that when a person executed a general release he was ignorant of certain matters, constituting the subject of a cause of action, is not alone sufficient to qualify the release or limit its terms and legal effect.
    The right to limit the effect of such written release by oral evidence is dependent upon the existence of a mutual mistake of the parties to the instrument in making and taking it, or a mistake on the part of the party seeking to offer oral evidence to limit the effect thereof, and fraud on the part of the other party to it.
    In the absence of mutual mistake or fraud, the operation of a written release cannot be made to depend upon oral testimony as to the knowledge of the creditor, when he executed it, of the liability which he subsequently seeks to enforce.
    The allegation contained in a reply that a certain release set forth in the answer did not embrace the matters constituting the cause of action contained in the complaint, but that it was made in relation solely to a certain other matter about which a controversy had arisen between the parties, does not relate to the terms of the instrument, but to its purpose and effect, and raises no effectual issue.
    Appeal by the defendant, Edward J. Hingston, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 23d day of July, 1894, upon the decision of the court rendered at the Erie Special Term overruling the defendant’s demurrer to the plaintiff’s reply, and also from an order made at tlie Erie Special Term and entered in said clerk’s office on the 23d day of July, 1894, adjudging that the plaintiff is entitled to an interlocutory judgment overruling the defendant’s demurrer to the plaintiff’s reply.
    The alleged cause of action is criminal conversation of the defendant with ¡plaintiff’s wife in the spring and summer of 1891.
    The new matter alleged in the answer is that in April, 1892, the plaintiff received from the defendant the sum of $500 in full satisfaction and discharge, amongst other things, of the damages mentioned and alleged in the complaint, and thereupon delivered to the defendant a release, in writing, made and executed by him, whereby, in consideration of the said sum of $500, the plaintiff remised, released and discharged the defendant “ of and from all and all manner of action or actions, cause and causes of actions, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims and demands whatsoever in law or in equity which against this defendant the plaintiff ever had, then had, or which he or his heirs, executors or administrators thereafter could, should or may have for, upon or by reason of any matter, cause or thing whatsoever from the beginning of the world to the day of the date of said release.”
    The plaintiff being required by order of the court to reply to such new matter, alleged, by way of such reply, that in October, 1890, an agreement, set forth, was made between him and the defendant, and “ that because of a disagreement over it and its terms the plaintiff and defendant had a dispute, and growing out of the same and solely relating thereto the release set forth in the amended answer of the defendant was executed * * * and the money so paid *'* * thereunder was paid and received only as and for damages or dues due from said Kingston upon and relating to said contract, and the money so paid by said Kingston in no way related to * * * the damages or matters set forth in the complaint,” and that at the. time of signing said release the “plaintiff had no knowledge of the wrongful acts alleged against the defendant in his complaint, and, therefore, could not have tried to settle his said alleged claim as claimed in the defendant’s amended answer. And he, therefore, denies each and every allegation of the defendant as set forth under-the third clause of the amended answer excepting as explained hereinbefore.”
    The defendant interposed a general demurrer to the reply.

      Henry B. Loveland, for the appellant.

      Edward L. JelVmek, for the respondent.
   Bradley, J.:

The plaintiff does not controvert the fact that he made the release set foftli in the answer, but alleges that it was not intended to and did not embrace the matters constituting the cause of action charged in the complaint, and that it was made in reference solely to a certain other matter about which a controversy had arisen between the parties. Those allegations of the reply relate, not to the terms of the instrument, but to its purpose and effect. And in support of the assertion in that respect the plaintiff alleges that when it was made he was ignorant of the matters which constitute the subject of the cause of action set forth in his complaint. This alone is not sufficient to qualify the release or limit its terms and legal effect. The right to do so by oral evidence is dependent upon the charge of mutual mistake of the parties to the instrument in making and taking it, or fraud on the part of the defendant and mistake on the part of the plaintiff. (Kirchner v. N. H. S. M. Co., 135 N. Y. 182.) The same facts which could be proved to reform it may be available to limit its effect to a like extent as would the reformation if made. In the present case, the plaintiff was, pursuant to the statute, put to his reply to the new matter in the answer. (Code Civ. Proc. § 516.) He did so. The question presented by the demurrer is one of pleading. And for the support of his reply it was necessary for the plaintiff to allege all the facts essential to overcome wholly or partially the effect which the terms of the release set up in the answer fairly import. This, the plaintiff failed to do, as he neither alleged facts to the effect that it was made in terms so broad and comprehensive as to include the cause of action alleged in the complaint by mutual mistake of the parties to it or by reason of any fraud on the part of the defendant. It is true that the plaintiff alleged in his reply that the release was made on settlement of a matter of dispute between the parties arising out of a certain agreement into which they had previously entered and in reference to that controversy only, and that the plaintiff was then ignorant of the facts upon which this action is founded. It is not competent by oral evidence of such facts merely, to contradict, qualify or limit the terms of the release. This was sought to be done in Kirchner v. N. H. S. M. Co., and the view of the General Term that it was permissible (59 Hun, 186) was disapproved by the Court of Appeals, where it was said “ the operation of such an instrument cannot be made to depend upon oral testimony as to knowledge of the creditor when he executed it, of the liability which he subsequently seeks to enforce.” (135 N. Y. 188.) Such is the general rule as between parties to written instruments in the absence of mutual mistake or fraud.

In Noble v. Kelly (10 N. Y. 415) the release was by construction held to have been so limited in its terms as not to embrace the entire subject of the action.

And in Rosboro v. Peck (48 Barb. 92) the question had relation to the consideration expressed in the release. This, as such, is always open to explanation by parol. (McCrea v. Purmort, 16 Wend. 460.)

It is unnecessary now to inquire how far and with what effect facts stated in the reply would be admissible if mutual mistake or fraud were alleged. As the reply charges neither, no effectual issue is tendered by it.

The judgment should be reversed, with leave to the plaintiff to amend his reply on payment of costs of the demurrer and of this appeal.

Dwight, P. J"., and Lewis, J., concurred.

Interlocutory judgment reversed, with costs and demurrer allowed, with leave to plaintiff to amend his reply within twenty days, on payment of the costs of the demurrer and of this appeal.


text:
    Mary A. Van Vranken, Respondent, v. The Village of Clifton Springs, Appellant.

      Personal injuries — the negligence of a driver not imputed to his companion.

    Where it is shown upon the trial of an action, brought to recover damages for personal injuries sustained by reason of the defendant’s alleged negligence, that the plaintiff sustained the injuries complained of while driving with another in a buggy, and that the plaintiff at the time of the accident had no control over the horse, the contributory negligence, if any, of the person with whom she was driving is not imputable to the plaintiff.
    Appeal by the defendant, The Tillage of Clifton Springs, from an order of the Supreme Court, made at the Ontario Circuit and entered in the office of the clerk of the county of Ontario on the 22d day of May, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Fckoin Hicks, for the appellant.

      Frank Hice, for the respondent.
   Lewis, J.:

The plaintiff recovered a verdict of $1,200 against the defendant, a municipal corporation, for personal injuries received by being thrown from a carriage in the night time, caused by the vehicle coming in contact with a pile of refuse in one of the streets of the village.

The proprietor of the Clifton Springs 'Sanitarium had been engaged in the construction of a building fronting upon the street, and had placed a large cpiantity of material, consisting of brick, stone, etc., alongside of the gutter in the traveled part of the main street of the village. It had remained there for a month or two prior to and at the time of the accident.

The plaintiff, at the invitation of a Mr. Newton, was riding with him at the time of the accident, about one o’clock in the morning of the 20th of September, 1893. The horse and buggy were owned by Mr. Newton and he was driving the horse at the time, the plaintiff being seated in the buggy with him. The right wheels of the carriage ran upon this pile of rubbish. The wagon was overturned and the plaintiff received quite serious injuries. The night was dark; the only light was that which came from the stars. The pile. of rubbish was in the shadow of trees and buildings. There was no lamp or other light upon it to give notice to travelers, and had not been during the night. The negligence of the defendant was established beyond any question.

As to the contributory negligence of the plaintiff, the horse was gentle, and was going at the time at a moderate gait. ■ It was a top buggy with side curtains and the top was up.

The circumstances of the accident, as testified to by the plaintiff, tended to show that she was free from negligence contributing to her injuries. The plaintiff being in the buggy at the invitation of Mr. Newton, and having no control over the horse, the negligence of Mr. Newton, if any, contributing to the accident would not be imputable to the plaintiff:. (McCaffrey v. D. & H. C. Co., 16 N. Y. Supp. 495.)

Whether Newton was guilty of negligence contributing to the accident was a question of fact for the jury and their verdict was conclusive upon that question.

We find nothing in the exceptions of the defendant calling for a reversal of the order. The verdict, we think, .was fully sustained by the evidence, and the order appealed from should be affirmed and judgment directed for the plaintiff upon the verdict.

Dwight, P. J., and Bradley, J., concurred.

Order affirmed and judgment directed on the verdict for the plaintiff.