author: Rapallo, J.

text:
    Giles Everson, Respondent, v. The City of Syracuse, Appellant.
    In order to make a municipal corporation liable for an unlawful levy and sale of property to pay a tax, it must be made to appear that the acts of the collector were authorized by the corporation, or were subsequently ratified by it in such a manner as to make it liable therefor ab initia.

    A tax-roll and two warrants, one issued by the proper officer of the city of S. (defendant), the other by the board of supervisors of the county, were delivered to a constable duly authorized to collect the city, county and local assessments. The warrants directed the constable to collect from persons named in the schedule annexed and in the assessment and tax-roll the sums opposite their names, being the amounts assessed to them. In the schedule and assessment-roll the name of plaintiff did not appear, but to collect a tax which did appear thereon assessed to other persons, plaintiff’s property was levied upon and sold. The check given by the purchaser was paid into the city treasury by the constable. Held, that an action for an unlawful' conversion of the property was not maintainable against the city; that the city was not bound by the tortious acts of the officer outside of the directions given in the warrants; that the receipt of the proceeds of sale, in the absence of notice that the collection had not been made from the proper person was not a ratification of the unlawful acts of the officer; nor was a resolution of the common council agreeing to save the constable harmless in collecting the tax, in case he proceed in such collection according to law, an authorization or adoption of any illegal or tortious act committed by him.
    (Argued October 30, 1885;
    decided December 8, 1885.)
    Also held, that a refusal of the mayor of the city to pay on demand of the plaintiff the val ue of the property seized and sold was not a ratification.
    Resort may be had to evidence given on a trial showing facts not found, for the purpose of sustaining the decision of a referee, but not to reverse it where there was no request and refusal to find.
    Appeal from order of the General Term of the Supreme Court, in the fourth judicial department, made April 14, 1883, which reversed a judgment in favor of defendant, entered upon the report of a referee.
    This action was brought to recover for the alleged unlawful taking and conversion of certain property belonging to plaintiff.
    The referee found in substance the following facts :
    In the year 1876 the assessors of the city of Syracuse assessed certain real estate, situate in the Sixth ward in that city, to Allen Munroe.and two other persons, who then owned the same as tenants in common; Munroe being the owner of an undivided three-eighths thereof. After the assessment, and on or about the 22d of August, 1876, Munroe sold arid conveyed his interest in the property to the plaintiff and one Jacob Crouse who then entered into, and ever since have been in the possession thereof. In October following, the city taxes of that year were extended by the common council, and in December the State and county taxes were extended by the board of supervisors of the county. The owners of the other five-eighths of the property paid their proportionate share of the tax, leaving the three-eighths which was assessed to Munroe unpaid.
    In March, 1877, the common council by resolution approved of the selection of one Booth to collect city, county and local assessments, remaining unpaid, and thereupon the tax-roll and two warrants were delivered to him, one executed by the board of supervisors, the other by the common council directing him to collect from “the several persons * * * named in the schedule hereunto annexed (and named upon the assessment and tax-roll of the Sixth ward of said city for the year 1876) the several sums mentioned opposite their names,” etc. In the schedule and the assessment-roll the names of the persons assessed for the taxes in question were stated as “ Townsend, Lansing and Allen Munroe.” Booth levied upon and sold the property in question, which was then on the premises, but in plaintiff’s possession.
    Further facts are stated in the opinion.

      Louis Marshall for appellant.
    All proceedings relating to the assessment of the property, the levying of the taxes, for the collection of which warrants were issued, were regular and valid in every respect, and the taxes when levied became a valid lien upon the property to which they related, and which was owned by the plaintiff at the time of the collection of the taxes. (Barlow v. St. Nicholas Bk., 63 N. Y. 399; Rundell v. Lakey, 40 id. 514.) This action, being one sounding in tort, based upon the alleged wrongful conversion by Booth of plaintiff’s property, cannot be maintained against the defendant, the act of Booth being unauthorized by it, and being directly contrary to express instructions. (W. R. R. Co. v. Nolan, 48 N. Y. 518 ; Cooley on Torts, 129; Wilson v. Tumman, 6 M. & G. 244; Whitmore v. Green, 13 M. & W. 104; Walley v. McConnell, 13 Q. B. 911; Averill v. Williams, 1 Den. 501; 4 id. 295; Welsh v. Cochran, 63 N. Y. 181;
      Campbell v. Brown, 2 Wood’s C. C. 349; Hyde v. Cooper, 26 Vt. 552; Lewis v. Reed, 13 M. & W. 834; Roe v. B. Ry. Co., 7 Exch. 36; Lorillard v. Monroe, 11 N. Y. 392; Chegaray v. Mayor, etc., 13 id. 221; Bank of Commonwealth v. Mayor, etc., 43 id. 184; Newman v. Livingston Co., 45 id. 682; De Grauw v. Supervisors, 13 Hun, 385; McLanahan v. Syracuse, 18 id. 259; Fox v. Northern Liberties, 3 Watts & Serg. 103; Wallace v. Menasha, 48 Wis. 79.) It must appear that the officers were expressly authorized to do the acts by the city government, or that they were done fide in pursuance of a general authority to act for the city on the subject to which they relate; or that in either case the act was adopted and ratified by the corporation. (Thayer v. City of Boston, 19 Pick. 511; 2 Dill, on Hun. Corp. 3d ed.], § 972; Boom v. City of Utica, 2 Barb. 104; N. Y. & B. S. M. Co. v. Brooklyn, 71 N. Y. 580 ; Vanderbilt v. R. T. Co., 2 id. 479 ; Lorillard v. Monroe, 11 id. 392; Chegaray v. Mayor, etc., 13 id. 222; McLanahan v. City of Syracuse, 18 Hun, 259; People v. Esopus, 74 N. Y. 310.) A municipal corporation is not liable for the misfeasance or non-feasance of one of its officers, in respect to a duty specifically imposed by statute upon him. (Martin v. Mayor, etc., 1 Hill, 145; Lorillard v. Mayor, etc., 11 N. Y. 392; Maximilian v. Mayor, etc., .62 id. 160; Ham v. Mayor, etc., 70 id. 459; Smith v. City of Rochester, 76 id. 506; Walcott v. Swamscott, 1 Allen, 191; Bank of Chemung v. City of Elmira, 53 N. Y. 53 ; Weismer v. Village of Douglas, 64 id.. 105 ; Horton v. Thompson, 71 id. 524.) The property of the plaintiff was rightfully seized by virtue of the warrant held by Booth, because he was one of the owners of the real estate upon which the taxes were assessed when they became a lien thereon, and he was, therefore, one of the persons, who, within the meaning of the ¡Revised Statutes, “ ought to pay the same'.’ ’ (Barlow v. St. Nicholas Bank 63 N. Y. 399 ; Dowdney v. Mayor, etc., 54 id. 186; Buel v. Boughton, 2 Den. 92; Barber v. Carey, 11 Barb. 549; Nelson v. Mayor, etc., 63 N. Y. 544; State v. Phoenix Bank, 33 id. 9; Swift v. Poughkeepsie,
      37 id. 511; Foster v. Van Wyck, 4 Abb. [N. S.] 409; Sheldon v. Van Buskirk, 2 N. Y. 478; 2 R. S. [7th ed.] 1008, § 2.)

      M. M. Waters for respondent.
    The signing of the warrants, receiving the money into the treasury, applying the same in satisfaction of the taxes, as well as the seizure of the property by virtue of the warrants, were corporate acts. (Conrad v. Village of Ithaca, 16 N. Y. 158; Newman v. Supervisors, etc., 45 N. Y. 576.) A municipal corporation is liable in an action of tort for the tortious acts of its officers if it appear either that the officer was expressly authorized to do the act, or that the acts were done bona fide in pursuance of a general authority to act for the corporation on the subject in relation to which they were performed. (Lee v. Sandy Hill, 40 N. Y. 442; B. & H. T. Co. v. Buffalo, 58 id. 639; N. Y. & B. S. M. & L. Co. v. Brooklyn, 71 id. 580; Conrad v. Trustees of Ithaca, 61 id. 158.) It is no defense that the acts of the officer were not authorized by the warrants under which he acted. (Howell & Co. v. Buffalo, 15 N. Y. 512; Bennett v. Buffalo, 17 id. 383; N. Bank of Chemung v. City of Elmira, 53 id. 49.) The authority to the collector contained in the warrant “ to levy, etc., by distress and sale of the goods and chattels of the delinquent, or of any goods and chattels in his, her or their possession,” does not authorize the seizure of the property of any person not named in the assessment and tax-roll, which property is in possession of the owner. (L. S., etc., v. Roach, 21 Alb. L. J. 258; 80 N. Y. 339.) The person who was not assessed and whose name did not appear either in the warrants, assessment or tax-roll, is not the person who ought to pay the same. (Randell v. Lakey, 40 N. Y. 513.) The collector’s act in seizing property of persons not named in the warrant cannot be justified on the ground that plaintiff purchased August 22, 1876, after the assessment. (40 N. Y. 513; Burr, on Tax. 258.) The answer is itself a ratification of all the unlawful acts, or as it claims and asserts them to be lawful acts, claims the benefit of them, and acknowledges the receipt of the fruits of the conversion, and.this with full notice of all the facts. (Herman, v. Gilbert, 8 Hun, 253; Dill, on Corp., § 972; L. S. & M. S. R. R. Co. v. Roach, 80 N. Y. 339.) The test by which- to determine whether this act of the officer was a corporate act has been said to be determined by the question, “ where the acts are done for the public benefit or for the defendant in its private corporate character.” (Maximillian v. Mayor, etc., 62 N. Y. 160.)
   Rapallo, J.

It may be conceded that, for the reasons stated in the opinion at General Term in this case, the personal property of the plaintiff was unlawfully seized and sold for the payment of the tax in question herein, and that if this action had been brought against the constable who made the seizure and sale, he would have been liable. But whether the city of Syracuse is liable for his acts is a different question, which is not touched upon in the opinion of the court at General Term. The decision of the learned referee dismissing the complaint appears to have been reversed on the sole ground that the plaintiff was not personally liable for the tax, and that his property had been unlawfully taken for its payment.

To entitle the plaintiff to recover against the city for this wrong it was necessary to show further that the acts of the constable committing it were authorized by the corporation of the city, or had been subsequently ratified by it in such manner as to make it liable therefor db initia.

The only authority from the city to the constable found by the referee was that Booth, who made the seizure and sale, was one of the constables of the city of Syracuse; that the common council of that city had, on the 19th of May, 1877, approved of his selection as one of the officers to collect the city, county and local assessments and taxes remaining unpaid for the fiscal year 1876, and that thereupon the tax-roll and two warrants, one executed by the board of supervisors and the other by the common council of said city, were delivered to said constable for the collection of said taxes.

By these warrants, which were proven to have been issued by the tax receiver and treasurer of the city, the constable was directed to collect from the persons named in the schedule thoroto ttllllúXod, Mid named upon the assessment and tax-roll of the Sixth ward of the city for the year 1876, the several sums mentioned opposite to their names, being.the amounts assessed to them respectively, with the fees, etc,, and, in default of payment, to levy the same by distress and sale of the goods and chattels of the delinquent, according to said assessment and tax-roll, and of any goods and chattels in his possession in the city of Syracuse.

In the assessment-roll and in the schedules attached to the warrants the names of the persons assessed for the taxes in question were stated to be Townsend,o Lansing and Allen Munroe. The name of the plaintiff does not appear in either. And it was found by the referee that at the time of the seizure the property seized belonged to the plaintiff and was in his possession. The only other fact found by the referee tending to establish a liability on the part of the city was that the purchasers of the plaintiff’s chattels at the constable’s sale gave their check to him for the amount of the unpaid city and county taxes which was paid in by said constable to the deputy treasurer in the treasurer’s office.

Upon these facts the conclusion of the referee was that an action for the tortious taking and conversion of the property of the plaintiff, could not be maintained by the plaintiff against the defendant in this action, and that the complaint should be dismissed.

These findings of fact disclose no error in- this conclusion. Uo direction or authority from the city to the constable appears except the warrants, and they certainly did not authorize the constable to take the property of the plaintiff. The city, therefore, was not bound by the tortious act of the officer outside of the authority conferred upon him by his warrant. The payment of the proceeds of the sale to the city treasurer, or his deputy, unaccompanied by any notice to them, or' either of them, that the collection had not been made from the proper persons, or their property, but had been made by the unlawful seizure of the plaintiff’s property, would not, even if those officials bad power, in view of the ] ravisions of its charter, to bind the city in that manner, have been a ratification of the illegal acts of the constable, and the conclusion of the learned referee that, upon the facts, the city was not liable for such acts, was clearly correct.

Some other facts appeared in evidence which it is claimed show a ratification of the acts of the constable, but these facts are not available to the plaintiff for the purpose of sustaining the reversal by the General Term. It not being stated in the order of reversal that it was made on any question of fact, it must be deemed to have been made on questions of law only, and so regarded was clearly erroneous. The facts now referred to were not found by the referee, and there was no request to find them. Eesort can be had to the evidence for the purpose of sustaining the decision of the referee, but not for the purpose of reversing it. But even if the facts appearing in the evidence could be resorted to they would not aid the plaintiff. The resolution of the common council agreeing to save the constable harmless was in express terms conditioned that he proceed in such collections according to law, and did not authorize or adopt any illegal or tortious act committed by him. Nor was the refusal of the mayor of the city to comply with the demand made upon him by the plaintiff in May, 1877, a ratification. That demand was for the immediate payment to the plaintiff, not merely of the money collected out of his property for the city tax, but of the entire value of the property seized and sold by the constable, which largely exceeded the amounts collected both for the city and the county taxes. A refusal' comply with such a demand was not a ratification of the tious and illegal act of the constable. No other fact ap the case in any form upon which to predicate a liabi' city in this action.

The order of the General Term should be re judgment entered on the report of the refer costs.

All concur, except Ruger, Ch. J., not

Order reversed, and judgment affirr


source: Caselaw Access Project

author: Finch, J.

license: Public Domain

text:
    John C. Spencer, Appellant, v. John Merchant, Respondent.
    (Argued October 30, 1885;
    decided December 8, 1885.)
    The legislature has power to determine the amount of a tax for a local improvement, and the property to be assessed therefor ; and its action in these respects is conclusive. It may also impose one portion of the cost upon one designated district and the balance upon another.
    Where, therefore, after an assessment for a local improvement had been adjudged invalid, because of the unconstitutionality of the act under which it was made  (Chap. 217, Laws of 1869, as amended by chap. 619, Laws of 1870), the legislature, by statute (Chap. 689, Laws of 1881) fixed the amount of the cost and expenses remaining unpaid by reason of the cancellation of the original assessment not paid, and directed the same to be apportioned among and levied upon the several parcels of lands originally assessed, the assessments against which had been so canceled, and directed due notice to be given to the land-owners of the time and place of making the apportionment. Held, that the act was constitutional; that the land-owners were not entitled to a hearing as to the aggregate to be collected, as the legislature had determined this and its determination could not be reviewed or changed; and that the hearing provided for was all' to which they were entitled.
    Appeal from, judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made December 10,1884, which directed judgment in favor of defendant upon a case submitted under section 1279 of the Code of Civil Procedure.
    Plaintiff sought to compel defendant to perform a contract for the purchase by him of certain premises in the town of New Lots, Kings county. Defendant refused to take title and complete the purchase because of an assessment upon the land, imposed under and in pursuance of chapter 689 of the Laws of 1881. Plaintiff claimed this act to be unconstitutional and the assessment void.

      Matthew Hale for appellant.
    The act of 1881 is unconstitutional, inasmuch as it transcends the power of the legislature in the attempted discrimination between the different parcels of land benefited by the improvement. (Stuart v. Palmer, 74 N. Y. 183; In re N. Y. Prof. E. Public School, 75 id. 324; 74 id. 189.) In the case of the imposition of a local tax upon a community the benefit sought to be obtained therefrom must be direct and immediate to the members of such local. taxed community, and not remote, collateral or consequential. (Weismer v. Village of Douglas, 64 N. Y. 91; Horn v. New Lots, 83 id. 100.) The law of 1881 is void as not expressing its object in its title, and as including two objects within its scope. (People v. Briggs, 50 N. Y. 550; In re Van Antwerp, 56 id. 267.) Chapter 689, Laws of 1881, is void upon general constitutional principles, being an attempt to levy a tax not on a certain district or locality, but upon certain individuals, without any opportunity to be heard as to the total amount of the assesssment. (Cooley on Const. Lim. [4th ed.] 616, 617; Cooley on Tax. 182, 157, 288; 2 Kent’s Com. 331; Gordon v. Carnes, 47 N. Y. 608; Stuart v. Palmer, 84 id. 188 ; Cooley on Const. Lim., §115; Denny v. Mattoon, 2 Allen, 861; Mayor, etc. v. Thorn, 26 Md. 194; Butler v. Saginaw, 26 Mich. 25 ; Tifft v. Buffalo, 82 N. Y. 204, 210.) The legislature cannot validate an unconstitutional act or any act which it might not have previously authorized. (Cooley on Const. Lim. [4th ed. p. 477], 381; Albany City Nat. Bank v. Maher, 9 Fed. Rep. 884.). The sums attempted to be levied on the lands in question are so levied without reference to special benefits to the lots assessed. (O’Brien v. Young, 95 N. Y. 428.)

      M. G. Swart for respondent.

       See Stuart v. Palmer, 74 N. Y. 183.

   Finch, J.

Two objections to the constitutionality of the act of 1881, which authorized the assessment in dispute, lie at the foundation of this appeal; and are in substance that the statute gives no hearing to the land-owner as to the amount to be realized and paid; and that the assessments are levied irrespective of benefits to the lots assessed. By the act of 1869 (Chap. 217) as amended by that of 1870 (Chap. 619), Atlantic avenue, was opened through the town of Hew Lots, and the compensation for the land taken, and the expense of grading and regulating were imposed by two separate assessments upon a designated district determined by the legislature to have been specially benefited by the improvement. The assessment for grading and regulating gave no notice or hearing to the land-owner and for that reason was held to be invalid. {Stuart v. Palmer, 74 1ST. Y. 183.) Some of these assessments appear to have been paid, but a portion of them were canceled, and as a consequence returned by the collector to the treasurer of Kings county, and by him to the State comptroller, whereby the State became the creditor of Kings county for an amount which it was the object of the act of 1881 (Chap. 689) to collect and pay with the interest accrued thereon.

The act of 1881 determines absolutely and conclusively the amount of tax to be raised, and the property to be assessed and upon which it is to be apportioned. Each of these things was within the power of the legislature whose action'cannot be reviewed in the courts upon the ground that it acted unjustly or without appropriate and adequate reason. (Litchfield v. Vernon, 41 N. Y. 123, 141; People v. Brooklyn, 4 id. 427; People v. Flagg, 46 id. 405; Horn v. Town of New Lots; 83 id. 100; Cooley on Tax. 450.) The legislature may commit the ascertainment of the sum to be raised and of the benefited district to commissioners, but is not bound to do so, and may settle both questions for itself; and when it does so its action is necessarily conclusive and beyond review. Here an improvement has been ordered and made; the expense of which might justly have been imposed upon adjacent property benefited by the change. By the act of 1881, the legislature imposes the unpaid portion of the cost and expense with the interest thereon upon that portion of the property benefited which has thus far borne none of the burden. In so doing it necessarily determines two things, viz., the amount to be realized, and the property specially benefited by the expenditure of that amount. The lands might have been benefited by the improvement, and so the legislative determination that they were, and to what amount or proportion of the cost, even if it may have been mistakenly unjust, is not open to our review.' The question of special benefit and the property to which it extends is of necessity a question of fact, and when the legislature determines it in a case within its general power, its decision must of course be final. We can see in the determination reached possible sources of error and perhaps even of injustice, but we are not at liberty to say that the tax on the property covered by the law of 1881 was imposed without reference to special benefits. The legislature practically determined that the lands described in that act were peculiarly benefited by the improvement to a certain specified amount which constituted a just proportion of the whole cost and expense; and while it may be that the process by which the result was reached was not the best attainable and some other might have been more accurate and just, we cannot for that reason question an enactment within the general legislative power. That power of taxation is unlimited except that it must be exercised for a public purpose. (Weismer v. Village of Douglas, 64 N. Y. 91.) Certainly if the acts of 1869 and 1870 had never been passed but the improvement of Atlantic avenue had been ordered, the legislature might have imposed one part or proportion of the cost upon one designated district and the balance upon another. Practically just that was done in this case. In the Matter of Van Antwerp to Vacate (56 N. Y. 261) an assessment for a street improvement had been declared void by reason of failure to procure necessary consents of property owners. The legislature made a reassessment, imposing two-thirds of the expense upon a benefited district and one-third upon the city at large. The act was held valid as a new assessment and not an effort to validate a void one.

These views furnish also an answer to the objection that the only hearing given to the land-owner relates to the apportionment of the fixed amount among the lots assessed, and none is given as to the aggregate to be collected. Mo hearing would open the discretion of the legislature, or be of any avail to review or change it. A hearing is given by the act as to the apportionment among the land-owners, which furnishes to them an opportunity to raise all pertinent and available questions and dispute their liability, or its amount and extent. The precise wrong of which complaint is made appears to be that the land-owners now assessed never had opportunity to be heard as to the original apportionment, and find themselves now practically bound by it as between their lots and those of the owners who paid. But that objection becomes a criticism upon the action of the legislature and the process by which it determined the amount to be raised and the property to be assessed. Unless by special permission that is a hearing never granted in the process of taxation. The legislature determines expenditures and amounts to be raised for their payment, the whole discussion and all questions of prudence and propriety and justice being confned to its jurisdiction. It may err, but the courts cannot review its discretion. In this case it kept within its power when it fixed, first, the amount to be raised to discharge the improvement debt incurred by its direction, and second when it designated the lots and property which in its judgment by reason of special benefits should bear the burden, and having the power we cannot criticise the reasons or manner of its action. The land-owners were given a hearing, and so there was no constitutional objection in that respect. Nor was that hearing illusory. It opened to the land-owner an opportunity to assail the constitutional validity of the act under which alone an apportionment could be made, and that objection failing, it opened the only other possible questions, of the mode and amounts of the. apportionment itself. W e think the act was constitutional.

The judgment should be affirmed, with costs.

All concur, except Rapallo and Earl, JJ., dissenting.

Judgment affirmed.


author: Ruger, Ch. J.

text:
    The People of the State of New York, Respondent, v. August Plath, Appellant.
    (Argued November 23, 1885 ;
    decided December 8, 1885.)
    To support a conviction under the Penal Code for abduction (§ 282 as amended by § 2, chap. 46, Laws of 1884), it must be proved, both that there was a ‘' taking ” within the meaning of the act, and that such taking was for the purposes of prostitution.
    The word “taking” implies some persuasive inducement on the part of the accused, not a mere permission or allowance to follow a life of prostitution.
    A conviction cannot be sustained upon the unsupported evidence of the female alleged to have been abducted, as to' either element constituting the crime, i. e., the taking or the intent. (Penal Code, § 283.)
    Proof must be given, aside from her testimony, tending to establish the commission of the crime, and that it was perpetrated by the accused.
    Upon the trial of an indictment for abduction, it appeared that the defendant kept a dance hall or concert saloon in the city of New York. The testimony of K., the female alleged to have been abducted was to the effect that she was about fifteen years of age, of somewhat dissolute character, living with her parents in Newark ; that in company with a young companion, a former inmate of a house of prostitution, she went to New York without the consent of her parents, and in strolling about came to and entered defendant’s saloon ; after sitting in the bar room for a while she asked defendant “ how much it was to see the entertainment.” He answered “ nothing, my little dear! come in,” and asked if they had come to stay, to which K. replied that she had. He then invited them up stairs, took indecent liberties with their persons, and offered K. a dress, which she refused. She remained in the place voluntarily for about a month, leading the life of a prostitute. No evidence was given that defendant knew K.’s true name, her place of residence, or that he had any previous acquaintance with her or her family, their circumstances or condition. Other witnesses testified that they visited the saloon while K. was there ; that there were a number of men and women dancing and drinking, and'among them K.; that they asked defendant if he had a young girl from Newark, by the name of K., but he denied any knowledge of such a girl, and offered to allow them to search the premises. While they were talking K. disappeared. They inspected the upper rooms, the appearances, as described, indicating they were used for purposes of prostitution. A physicial examination of K.’s person showed that attempts at sexual intercourse had been made, but that it had not been accomplished. Meld, that the evidence failed to sustain a conviction.

      Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made May 11, 1885, which affirmed a judgment of the Court of General Sessions of the Peace in and for the city and county of New York, convicting the defendant of the crime of abduction.
    The material facts are stated in the opinion.

      William, F. Howe for appellant.
    The prisoner should have been acquitted, as there was no evidence to support the testimony of the female alleged to have been abducted. (Penal Code, § 283; People v. Courtney, 28 Hun, 589 ; Cohmam v. State, 44 Tex. 109 ; State v. Thornton, 26 Iowa, 80; People v. Williams, 29 Hun, 520; Ormsby v. People, 53 N. Y. 474; Kenyon v. People, 26 id. 209 ; Boyce v. People, 55 id. 645 ; Armstrong v. People, 70 id. 38 ; Conroy v. People, 97 id. 71; Home Ins. Co. v. W. T. Co., 61 id. 93; Stapenhorst v. Wolf, 65 id. 596.) There was no taking as contemplated by statute. (Beyer v. People, 86 N. Y. 369; People v. Parshall, 6 Park. 130; Reg. v. Primelt, 1 Fost. & Pin. 50; Regina v. Meadows, 1 Car. & Kir. N. P. 398.) Error was committed in charging: “ It is immaterial for which of these prohibited purposes she was taken. If she was, at the time of the taking, under the age of sixteen years, and was feloniously taken for the purposes of prostitution or of sexual intercourse, the person who does so violates the provisions of the statute, and is guilty of the crime of abduction.” (Penal Code, § 282; Carpenter v. People, 8 Barb. 603 ; People v. Parshall, 6 Park. 129; Murphy v. People, 3 Hun, 114; McKenna v. People, 81 N. Y. 360).

      De Lancey Nicoll for respondent.
    The evidence establishes a taking for the purpose of prostitution within the meaning of the statute. No force is necessary to constitute a taking. (Beyer v. People, 86 N. Y. 369; Schurcker v. People, 88 id. 192; Reg. v. Mankelow, 6 Cox’s C. C. 143.) Provided the female is within the statutory age — i. e., sixteen years, it is immaterial whether she consents to the taking or not; and,

      indeed, even if she herself proposes it, it is still a taking. (Reg. v. Mankelow, 6 Cox’s C. C. 143; Reg. v. Robbins, 1 C. & K. 456; Reg. v. Kipps, 4 Cox’s C. C. 117 ; Reg. v. Biswell, 2 id. 279; Reg. v. Baillie, 8 id. 238; Bish. on Stat. Cr., § 634; Slocum v. People, 90 Ill. 274; Reg. v. Robb, 4 Fost. & Fin. 59 ; Reg. v. Timmins, 8 Cox’s C. C. 401; Reg. v. Olivier, 10 id. 403; People v. Seeley, 3 N. Y. Crim. Rep., No. 3, 225.) There was sufficient corroboration of the testimony of the' female abducted to satisfy section 283 of the Penal Code. (Kenyon v. People, 5 Park. 254; Peoples. Courtney, 28Hun, 592; Armstrong v. People, 70 N. Y. 44; People v. Ryland, 97 id. 132.)
   Ruger, Ch. J.

The defendant was indicted and upon trial convicted of the crime of abduction, in that he “ with force and arms feloniously did take one Katie Kavanaugh for the purpose of prostitution, she the said Katie Kavanaugh being then and there a female under the age of sixteen years.” It was essential to the support of this conviction that the people show, not only a taking by the defendant within the meaning of the statute, but also that such taking was for. the purpose of prostitution. (Penal Code, § 282 ; as amended by § 2 chap., 46, Laws of 1884.) If the evidence establishes only a taking and fails to show that it was for the prohibited purpose it is insufficient to sustain the conviction, and so proof of the fact that the person of the female was used for purposes of prostitution without proof of the abduction would not bring the accused within the condemnation of the statute. It is elementary, when a specific intent is required to make an act an offense, that the doing of the act does not raise a presumption that it was done with the specific intent. (Lawson on Presumptive Evidence, 472.) Neither can a conviction under this act be sustained upon the unsupported evidence of the female abducted. (Penal Code, § 283.) In cases where corroboration is required there has been some diversity of opinion in the authorities, as to the particular facts which should be corroborated, and the extent of the corroboration needed in order to comply with the rule; but it is now conceded to be the general rule, that it should tend -to show the material facts necessary to establish the commission of a crime, and the identity of the person committing it. When an offense was formerly proven by accomplices it was the usual practice of trial courts, to advise an acquittal, unless such evidence was in some respects corroborated by other testimony (although at common law a conviction upon the evidence of the accomplice alone was sustainable). In those cases the extent and degree of corroboration rested in the discretion of the trial court, and necessarily varied according to the circumstances of the case. Although such cases are not strictly analogous to those where corroboration is required by statute, they yet furnish some help in determining the degree of proof required in the latter case. The rule as to the corroboration of an accomplice is stated in Eoscoe’s Criminal Evidence, 122, as follows: “ That there should be some fact deposed to, independently altogether of the evidence of the accomplice, which taken by itself leads to the inference not only that a crime has been committed but that the prisoner is implicated in it.” Eussell on Crimes, 962, says: “ That it is not sufficient to corroborate an accomplice as to the facts of the case generally, but that he must be corroborated as to some material fact or facts which go to prove that the prisoner was connected with the crime charged.” 1 Greenleaf on Evidence, § 381, lays down the rule as. held by some, that it is essentia] that there should be corroborating proof that the prisoner actually participated in the offense, and that when several prisoners are to be tried, confirmation is to be required as to all of them before all can be safely convicted ; the confirmation of the witness as to the commission of the crime being regarded as no confirmation at all as it respects the prisoner.”

The policy of the statute under consideration would seem to forbid the conviction of a person of the crime of abduction, upon the unsupported evidence of the subject of the crime, and a conviction founded upon the evidence of the abducted female alone as to one of the elements constituting the crime* would be contrary to its implied prohibition. Such evidence must, therefore, tend to prove each of the facts constituting the crime, for otherwise a person might be convicted of an offense as to one of whose elements there existed no proof except that of the alleged abducted female. If the corroborative evidence goes to the support of the alleged purpose alone it is apparent that there is no legal proof of the commission of a crime, and it would be the same if the corroboration was confined to a support of the taking alone, and the proof as to the purpose was uncorroborated. It is not indispensable that such corroboration should be furnished by positive and direct evidence, but proof of circumstances legitimately tending to show the existence of the material facts will be sufficient to authorize a conviction. In one form or the other, however, proof must be given, aside from-that of the female, tending to establish the commission of a crime, and that it was perpetrated by the person accused before a conviction can be lawfully had.

An examination of the proof in this case fails to disclose any evidence corroborating the testimony of the female alleged to have been abducted, as to the participation of the defendant in the abduction, assuming that her evidence established a taking within the meaning of the statute. We have, however, grave doubts as to the sufficiency of such evidence to establish such taking. (Regina v. Olifier, 10 Cox’s C. C. 403.) But passing over that question we will examine the evidence which it is claimed corroborated the testimony of the abducted female.

Her evidence was to the effect that in July, 1884, the defendant kept a dance hall or concert saloon and drinking place in Chatham street, New York, and had no previous acquaintance with, or knowledge of the witness, her friends or family; that she was a young girl about fifteen years of age, of somewhat dissolute character, residing with her parents at Newark; 'that some time in the latter part of July in company with a young companion, the former inmate of a house of prostitution, of her own free will, she visited New York without the consent of her parents, and in strolling about the streets came to the defendant’s saloon and entered. After sitting in the bar room for awhile she saw the defendant go behind the bar, and asked him “ how much it was to see the entertainment; ” he 'replied “ nothing my little dear, come in.” He then treated the girls to soda water and asked them if they came to stay, to which Kavanaugh replied that she did. He then invited the girls to go up stairs and while there offered Kavanaugh a dress which she declined. He also took indecent liberties with the persons of both girls, and after remaining there about twenty minutes left them. Both girls voluntarily remained in the place several days, and the Kavanaugh girl for about one month, during which time she had intercourse with a large number of men. Ho evidence was furnished hy the prosecution showing that the defendant knew the true name of the girl or the place of residence of herself or family, or that he had had any previous acquaintance with her or knowledge of her family, or their circumstances or condition. Ho direct proof was given to establish the existence of any fact testified to by Kavanaugh, but she was attempted to be supported by circumstances alone. Two witnesses testified that they visited defendant’s saloon the latter part of August and found quite a number of women and men assembled there engaged in dancing, drinking and sitting around together, among whom was Kavanaugh. They asked defendant if he had there a girl by the name of Kavanaugh who came from Hewark. Defendant denied any knowledge of such a girl, and offered to allow them to search the premises for her. While they were talking Kavanaugh disappeared. It nowhere appeared that defendant was acquainted with the true name of Kavanaugh, or that she came from Hewark. The witnesses also inspected the upper rooms of the saloon and there found a number of small apartments filled with beds and bunks; they" saw women intoxicated and some quarreling and fighting going on. Afterward in September, one of the witnesses saw a man and woman in bed together there, and the man stated that he was not the husband of the woman. A physical examination of the girl revealed appearances indicating that attempts at sexual intercourse with her had been made, but that in fact it never had been accomplished. Beyond this no evidence was given looking toward corroboration of the testimony of the alleged abducted female.

We are utterly unable to see how this evidence tends to prove any of the facts going to show the agency of the defendant, in inducing Kavanaugh either to come to or remain in his place, unless a presumption of criminal persuasion is always to be imputed to a person with whom a dissolute female is domiciled. That he kept a disorderly house and was engaged in a vile and. reprehensible occupation is quite sufficiently demonstrated, and that the object of Kavanaugh’s residence in his house was presumably for the purpose of prostitution; but there is nothing in the corroborative proof inconsistent with the theory that her stay there was the result of her own will, uninfluenced by any persuasion, allurement or device of the, defendant. The evidence does not tend to show that the influences inducing Kavanaugh to come or remain at the defendant’s house were any different from those operating upon the other inmates of the place or upon females generally, who had not become inmates.

It is a lamentable fact, that a life of prostitution presents attractions to some young and inexperienced females and that many are induced to enter upon it by the expectation of pleasures to be derived, wants to be supplied, or disagreeable social conditions to be escaped, and that from some or all of these causes combined, 'the haunts of vice and immorality are too largely supplied ; but the statute in question was not intended to. provide a remedy for this evil, or prescribe a punishment for those who keep such places. There is nothing in the section of the act under which defendant was convicted making the employment of a female under sixteen years of age for purposes of prostitution or sexual intercourse a criminal offense, except where it is accompanied with a talcing of her person by some active agency for such purpose. The word “ takes ” seems to be used to distinguish the act prohibited, from those where the female is merely received, or permitted and allowed to follow a life of prostitution without persuasive inducement by the person accused.

The statutory age under which the consent of the female does not deprive the act of sexual intercourse of its criminal effect is fixed at ten years, but over that age the act in question does not make such intercourse a crime if effected without persuasion or device, by the free will and consent of the female. The same evidence which has been produced against the defendant in this case could doubtless be given as to every keeper of a brothel or disorderly house in Hew York, and it would tend to impair confidence in the administration of the law and confound the distinction in crimes made by statute to permit this conviction to be upheld upon the proof shown by the record. Every criminal, however vile, has a right to require that the elements of his offense shall be clearly defined by law and established by legal proof before he can be convicted thereof, and until then he may safely assert his immunity from punishment for any offense which is not thus defined and proved. The defendant in this case is entitled to the same presumption of innocence which prevails in other cases, and we are constrained to say that evidence has not been given here rebutting such presumption.

We think the evidence was insufficient in the absence of the proper confirmatory proof to warrant his conviction, and that the judgment of the General Term and Sessions should be reversed and a new trial granted.

All concur.

Judgment reversed.


author: Miller, J.

text:
    The People, ex rel. The Butchers’ Hide and Melting Company, Appellant, v. Thomas B. Asten et al., as Commissioners, etc., Respndents.
    It is not a controlling fact in the assessment of the capital stock of a corporation that the whole capital was originally invested in real estate; it is the duty of the assessors to ascertain the present value of the stock, and from this to deduct “ the assessed value of the real estate ” (§ 3, chap. 456, Laws of 1867), and such other items as are specified.

      (Argued November 24, 1885;
    decided December 8, 1885.)
    While the indebtedness of the corporation is a proper subject for consideration in estimating the value of the stock, there is no authority for its deduction from the value after an estimate of the same has been made.
    Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made October 31, 1884, which affirmed the proceedings of the commissioners of taxes and assessments of the city of New York in assessing the capital stock of the'relator for the purposes of taxation for the year 1884, which proceedings were brought up for review by certiorari.

    The material facts are stated in the opinion.

      Louis C. Waehner for appellant.
    The capital stock of every corporation liable to taxation, except such part as shall have been exempted by law, together with its surplus profits or reserved funds exceeding ten per cent of its capital, after deducting the assessed value of its real estate, and all shares of stock actually owned by such corporation, etc., shall be assessed at its actual value, and taxed as the other personal and real estate of the county. (Laws of 1857, chap. 456, § 3; People v. B'd of Assessors, 39 N. Y. 81; Oswego Starch Factory v. Dilloway, 21 id. 449; People v. Com'rs of Taxes, 95 id. 554.) For the purpose of taxing corporations under the statute, as amended in 1857, their stock is to be assessed at its actual value, whether above or below the nominal par. (Laws of 1857, chap. 456, § 3; Oswego Starch Factory v. Dilloway, 21 N. Y. 449; People v. B’d of Assessors, 39 id. 81; People v. Com’rs of Taxes, 95 id. 554.) The relator is entitled to have deducted from the assessed value of .its capital stocky which, of course, means its market value, the amount actually paid by it for real estate, as distinguished from the assessed value of such real estate. (People v. B’d of Assessors, 39 N. Y. 81.)

      D. J. Dean for respondents.
    The method of assessment adopted by the commissioners is in exact conformity to the statute prescribing their duties. (Laws of 1857, chap. 456; Oswego Starch Factory v. Dilloway, 21 N. Y. 458.) The relators were entitled to no greater reduction from their capital stock, on account of investment in real estate, than the assessed value of that real estate. (People v. Tax Com'rs, 95 N. Y. 560.)
   Miller, J.

The relator’s capital stock was fixed at the sum of $200,000, and by the return of the company made to the assessors it was shown that the whole of that amount was invested in real estate.

It appears from the record that the commissioners arrived at the amount of the capital stock to be taxed in the following manner: they took from the whole of the capital stock, $200,000, the sum of $100,000, the assessed value of the real estate, and $36,500, the value of stocks held in other companies, leaving a balance of $63,500 on which the assessment was made. It is also shown that the real estate was subject to a mortgage of $80,000.

It is insisted by the relator that the commissioners of taxes erred in two particulars, namely:

First. That the deduction for real estate should be the amount paid therefor, viz., $200,000, instead of the assessed value thereof, $100,000.

Second. That the commissioners should have deducted from the value of the capital stock, as ascertained by them, the further sum of $80,000, which the relators owe upon bond and mortgage, which is a lien on their real estate.

The assessment was, no doubt, intended to have been made in conformity with the provisions of section 3, chapter 456, Laws of 1857, which are as follows: The capital stock of every corporation liable to taxation, except such part of it as shall have been excepted in the assessment-roll, or as shall have been exempted by law, together with its surplus profits, or reserved fund exceeding ten per cent of its capital, after deducting the assessed value of its real estate and all shares of stock in other corporations actually owned by such company, which are taxable upon its capital stock under the laws of this State, shall be assessed at its actual value and taxed in the same manner as the other personal and real estate of the company.”

Under this statute the commissioners were required to ascertain and determine the actual value of the stock and make the deduction as provided. This was done by placing an estimate on the capital stock at its par value. The commissioners did this in the performance of their judicial duty which conferred upon them authority to act in accordance with their own knowledge and with such information as they were able to obtain, as to the real value of the stock, from sales in the market or otherwise, and by ascertaining the value of the property which the stock represented and by determining the dividend earning power of the corporation. There is no evidence in the record before us which establishes that the value fixed by the commissioners was incorrect or unauthorized, and it does not appear unqualifiedly and beyond question that the value of the capital stock was less than par.

Conceding that the whole amount of the capital was expended in the real estate, it by no means follows that the valuation made was in any respect erroneous. The stock may still have been at a par value in the market and might have brought that figure if exposed for sale. No reason, therefore, exists why it should not pay taxes on what it was reasonably worth. The assessment of the real estate at one-half of what it actually cost does not affect the value of the stock, which it is easy to see might well be worth double the assessed value of the real estate.

The deduction of the assessed value of the real estate from the amount of the capital stock appears to have been made in strict conformity with the act of 1857, already cited, which requires that the deduction shall be the asessed value of the real estate. The claim of the relator that the commissioners should have deducted the full amount paid for the real estate and not the assessed value thereof, rests on the provision of chapter 654 of the Laws of 1853, which, among other things, provides that in the fourth column of the assessment-roll shall be entered the amount of the capital stock and of surplus profits or reserved fund exceeding ten per cent, after deducting sums paid out for the real estate of such company, and also upon the provision of the Revised Statutes which requires that in the statement to be made by the company to the assessor the sum actually paid for real estate shall be stated.

Without considering the effect to be given to these provisions it is sufficient to say that the question considered is settled by the decision of this court in People, ex rel. Twenty-third St. R. R. Co., v. Commissioners of Taxes of New York (95 N. Y. 554) in which it was held that, under the provisions of the act of 1857 * * * the capital stock of a corporation is to be assessed at its actual value,” from which is to be deducted “ the assessed value of its real estate ” and such other items as are specified in the act, and that the provisions of the prior statute regulating the details of assessments of the property of corporations are to be deemed amended so far as is necessary to make them conform to and give effect to the act of 1857. The case cited is, we think, decisive and further elaboration is not required.

The learned counsel for the appellant claims that a distinction exists between the case cited and the one at bar, but we are unable to perceive any such difference as would authorize the application here of a rule different from the one there laid down.

Although it is stated in the papers, upon which this proceeding is founded, that the whole capital was invested in real estate and that the company owed $80,000, for which a mortgage was given; that the company has but little personal pz’op.. erty of any value; that its business of late has yielded no dividends, and that by the sworn statement of its officers, its capital stock has no value, these statements are by no means conclusive, as it is well known that the stock of corporations znay have a market value even although for the time being they are unable to pay dividends. While such facts were subjects for consideration it still remained for the commissioners to determine in their judgment and from the knowledge and information they had, whether the stock had any or what its actual value was.

There is no provision of law which authorizes a deduction from the capital stock by reason of the indebtedness of the company. While this indebtedness is a proper subject for consideration in estimating the value of the stock there is no authority for its deduction from the value of the stock after an estimate of the same has been made. It cannot, we think, be said, in view of the circumstances, that the commissioners acted arbitrarily or contrary to law in placing a valuation upon the stock.

The order and judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


author: Per Curiam.

text:
    Edward J. Kelsey, Respondent, v. James Sargent, Appellant.
    A defendant may be required to serve a bill of particulars as to matter set forth i'n his answer, which is effectual only as a defense, as well as to matter set up as a counter-claim.
    Where the matter is left uncertain, by reason of general averments, it is for the court below to determine whether further information required by plaintiff shall be given by a more specific answer or by a bill of particulars, and its determination is not re viewable here.
    (Submitted November 24, 1885 ;
    decided December 8, 1885.)
    Appeal from order of the General Term of the Supreme Court, in the fourth judicial department, made April 23, 1885, which affirmed an order of Special Term, requiring defendant to serve a bill of particulars.
    This action was brought to- compel the surrender of certain stock which the complaint alleged had been pledged by plaintiff to defendant as security for the payment of a promissory note, and also to save defendant harmless from certain guaranties executed by him. The complaint alleged payment of the note and upon information and belief that defendant “ was made free and discharged from all his contracts as guarantor.” The answer denied said averment and alleged “ that the defendant has not been released from liability on said guaranties and is still liable on three or more of such guaranties.” The order appealed from requires defendant to serve “a bill of particulars of the guaranties upon which he claims to be liable as alleged in the answer.”

      J. & Q. Van Voorhis for appellant.
    The plaintiff cannot require the defendant to furnish a bill of particulars of his denial. (Code, § 531.)

      Theodore Bacon for respondent.
    The order appealed from is not re viewable in this court. (Code of Civ. Pro., § 190; Hilton v. Beecher, 59 N. Y. 176 ; Dwight v. Germania Life Ins. Co., 84 id. 493; Witkowski v. Paramore, 93 id. 467.)
   Per Curiam.

If the answer is true the plaintiff will be defeated, because the defendant remains liable as guarantor upon certain obligations referred to in that pleading, but not described. It can make no difference whether the matter is left uncertain by general averments constituting an adverse claim, or by allegations of matter effectual only as a defense. In either case the plaintiff might require further information before trial, and whether it should be obtained from a more specific answer, or a bill of particulars, was for the Supreme Court to determine. (Witkowski v. Paramore, 93 N. Y. 467.)

It follows that the appeal should be dismissed.

All concur.

Appeal dismissed.


author: Earl, J.,

text:
    Francis W. J. Hurst, Respondent, v. The New York Produce Exchange et al., Appellants.
    (Argued June 23, 1885;
    decided October 6, 1885.)
    This was an appeal from an order of General Term affirming an order of Special Term granting a temporary injunction.
    The action was brought by plaintiff, a member of defendant, the New York Produce Exchange, and an agent of the National Steamship Company, to restrain said defendant from entertaining a complaint against him by defendant Carbart, an agent of the New York, Lake Erie and Western Railroad Company. The complaint and affidavits upon which the temporary injunction was granted alleged, in substance, that said railroad company delivered at the wharf of the steamship company certain goods to be shipped by one of its steamers, which was unloaded at the wharf. An accidental fire broke out on the wharf, which destroyed the same, with the merchandise thereon, including the goods so delivered. After the fire, the railroad company claimed payment for freight and charges, which plaintiff, as agent, as aforesaid, refused to pay, on the ground that under the bills of lading his company was not liable. Carhart thereupon presented to the complaint committee of the Exchange, a complaint accusing plaintiff of proceedings inconsistent with just and equitable principles of trade, and because of such refusal plaintiff was summoned before said committee. He appeared and entered a protest that the case was not within its jurisdiction, on the ground that his liability was doubtful as matter of law, and the questions involved were then being litigated in the courts. The committee proposed an arbitration, which plaintiff declined. The complaint was then referred to the board of managers of the Exchange, who summoned plaintiff to appear before them. He repeated his protest as to jurisdiction. The board, however, threatened to proceed with,the matter.
    "The principal question discussed was as to the jurisdiction of the board of managers to entertain a complaint in such a case. Three of the members of the court who voted for a reversal of the order held that the board had jurisdiction, and that the court had no right to interfere in advance of any action' on its part violating any right of plaintiff. The three dissenting members held that the board had no jurisdiction, and its threatened action authorized the order appealed from. Andrews, J., without passing upon the question of jurisdiction, concurred for reversal on the ground that “ upon the facts the remedy by injunction would not lie, as no violation of plaintiff’s rights had happened, or may ever happen, arid no injury thereto is threatened in such a sense as justifies a preventive remedy.” As a majority of the court did not concur in either opinion the case is not reported in full.

      Benjamin H. Bristow for appellants.

      John Chetwood, for respondent.
   Earl, J.,

reads for reversal of order and dissolution of temporary injunction; Ruger, Ch. J., and Miller, J., concur; Andrews, J. concurs in result (on ground above stated).

Danforth, J. (dissenting), reads for affirmance; Rapallo and Finch, JJ., concur.

Order reversed.


text:
    The National Steamship Co., Limited, Respondent, v. The New York Produce Exchange et al., Appellants.
    (Argued June 23, 1885;
    decided October 6, 1885.)
   This ease presented substantially the same facts, and was argued with and disposed of on the same grounds and by a similar vote as the preceding one.


author: Rapallo, J.,

text:
    In the Matter of the Appointment of a Temporary Guardian of the Person of Ludlow W. Valentine, an Infant, etc.
    (Submitted June 2, 1885 ;
    decided October 6, 1885.)
    This was an appeal by Catharine A. Valentine, the mother of the infant above named, from an order of General Term affirming a decree of the surrogate of the county of Kings, appointing George W. Bergen guardian of the person of said infant. The surrogate’s decree also imposed costs upon the appellant individually.
    As to the facts, the court say: “ The decisions of the surrogate upon the questions of fact involved in this case, although reviewable in the Supreme Court, are not reviewable in this court, provided there is any evidence to support his findings. (Code of Civ. Pro., § 1337; In re Will of Ross, 87 N. Y. 514.) * * * We have carefully examined the testimony and are unable to say that it is so destitute of evidence in support of the findings of the surrogate as to justify us in reversing them.”
    As to the costs, the court say: “¥e think that the award of costs against the appellant personally was erroneous. The proceeding was ostensibly for the benefit of the infant. The petition alleged that he was without a legal guardian, and prayed that some person other than his mother be "appointed guardian of his person. The mother was cited because she was prima facie entitled to the custody of the infant, but she was not a party to the proceeding in such a sense as to subject her to liability for costs.”

      George Hill and William, Fullerton for appellant.

      Horace Secor, Jr., for respondent.
   Rapallo, J.,

reads for modification of order of General Term so as to reverse that part of the surrogate’s decree which awards costs against appellant, and as modified affirmed.

All concur.

Ordered accordingly.


author: Per Curiam

text:
    Henry R. Pierson, as Receiver, etc., Appellant, v. Richard A. McCurdy, Respondent.
    (Argued June 10, 1885;
    decided October 6, 1885.)
    This action was brought to recover certain moneys which the complaint alleged defendant received from the officers of the company of which plaintiff is receiver, and which defendant had unlawfully applied and used in the purchase of the stock of another insurance company.
    The transaction complained of occurred in October, 1871; the action was commenced in 1879. Among other things the statute ot limitations was pleaded as a defense.
    The case was decided here upon the ground that the statute was a bar.

      B. F. Tracy for appellant.

      John E. Develin for respondent.
   Per Curiam

mem. for affirmance.

All concur.

Judgment affirmed.


author: Finch, J.,

text:
    Hieronymus Breunich, Appellant, v. Sarah Weselman, Respondent.
    (Argued June 11, 1885;
    decided October 6, 1885.)
    This was an action to foreclose a mortgage, executed by defendant to one William Race, and by him assigned to plaintiff. It was accompanied by a certificate made by defendant, to the effect that the principal stated in the bond accompanying the mortgage was due thereon free from all defense. An affidavit,- also made by defendant, was given in evidence by plaintiff, which was to the effect that the certifi cote had been read to her and she signed with full knowledge' that she thereby induced plaintiff to take the assignment.
    The trial court found as facts that “ The loan for which the bond and mortgage was given was made by the plaintiff through one Pretzfelder acting in his behalf; that it was made upon a corrupt and usurious agreement, and that the selection of a nominal mortgagee and the purchase by plaintiff from him, and the affidavit procured from the defendant, were all mere covers for the usury, and devices to clothe with an appearance of validity what was in fact void.”
    On the trial plaintiff proved an admission of defendant to him in substance that the mortgage was all right; he offered to prove that Wagner communicated to plaintiff this admission; this was objected to and rejected. The court here held that regarding the facts as found by the trial court, the evidence was immaterial. After the trial on motion an amendment of the answer was permitted. The portion of the opinion in reference thereto is as follows:
    “ In the original answer the defenses alleged, if there were more than one, were inconsistent. Usury was first averred, its details being that out of $1,800 which the mortgage purported to secure, but' $1,435 was in fact advanced, and the balance was retained as an agreed premium over and above the lawful interest. This defense, if true, invalidated the whole security, and amounted to a plea that the defendant owed nothing. Then came an averment that in June, 1877, and so before the commencement of the foreclosure action, the defendant had tendered and offered to pay the sum of §1,435,” with the interest then due and unpaid., being the same sum for the payment of which the said bond and mortgage was given. It is doubtful whether this amounted to a plea of tender at all. It would certainly have been ineffectual as a defense at law to an action for the recovery of the debt, since the money was not brought into court and the fact averred in the answer. (Becker v. Boon, 61 N. Y. 317.) And besides, no precise or definite sum was tendered, but only the principal accompanied by an offer to pay the accrued interest. The most that can by possibility be claimed for the averment is that it defended against the lien of the mortgage though not against the debt. It has been held that an offer to. pay the amount due on the mortgage, either at the law day or thereafter before foreclosure, will extinguish the security, although the tender is not kept good and the money brought into court. (Kortright v. Cady, 21 N. Y. 354.) But that rule does not apply where the affirmative relief of a cancellation of the security is sought and granted, as was the case here. (Tuthill v. Morris, 81 N. Y. 99.) But if the plea amounted to a defense against the enforcement of the mortgage lien it gave no right of recovery for the amount tendered to the plaintiff, but on the contrary merely extinguished his equitable cause of action, and left him only a remedy at law upon the bond. And then the defense was inconsistent with the plea of usury. It necessarily assumed that there was no usurious agreement, but a promise to lend $1,800, fulfilled only to the extent of the tender, and creating a debt for that amount and no more. There was much in the case upon which such a theory could have been very fairly predicated. But the two defenses were inconsistent. Both could not he true, and it was impossible that they should stand together., The mortgage could not be wholly void and partly valid at one and the same' time. It was the right of the defendant to choose upon which ,of the defenses she would rely, and having chosen it was proper to conform the pleading to her choice. She chose to rely upon the usury. Nobody was misled as to that determination, and that question was made the sole issue. The amendment allowed merely struck from the pleading one of two inconsistent defenses. Eo right of the plaintiff depended upon its remaining. Its presence gave him no right to a judgment, and it could have no force for his benefit except as an admission tending to negative the defense of usury. Striking it from the pleading did not take away that admission, since it was still available in the proofs. The amendment, therefore, was proper, and the order allowing it must be affirmed. The result is that only the amended answer is before us, and no question of tender arises on the record.
    “ But it is claimed to have arisen on the proof, and the evidence relied on is defendant’s own statement ‘that in July, 1877, she tendered plaintiff $1,435, with interest, and told him she would not pay the bonus, and plaintiff would not take it:’ It seems to us very clear that this was not an admission of the debt as valid and enforceable, for it in terms insists upon the fact of usury. In referring to the ‘bonus’ it asserts the usury, and the offer cannot be construed as at the same time confessing its non-existence. The defendant did not mean a self-contradiction. What she did mean was a willingness to refund what she had received notwithstanding the usury, and notwithstanding that she was not liable at all. She does not admit that any thing is due, but while insisting upon the usurious character of the contract, she offers to waive that if the plaintiff will be content with the money loaned and its lawful interest. The offer rested upon a consciousness of an honorable and moral obligation, but did-not confess a legal one. If it had been accepted there would have been no controversy. Having been refused, the defendant had still the legal right to insist upon the usury and defend against the entire claim. For these reasons we think the General Term committed no error in affirming the judgment. In doing so they held that the effect of a tender applies only to the case of a lawful contract, and not to the case of one made void by statute. We do not adopt that doctrine, nor yet assume to condemn it, since its consideration is unnecessary in the view which we have taken of the questions involved.”

      Lewis Sanders for appellant.

      P. Mitchell for respondent.
   Finch, J.,

reads for affirmance.

All concur.

Judgment affirmed.


text:
    William Watson, Appellant, v. James W. Smith, Respondent.
    (Submitted June 19, 1885;
    decided October 6, 1885.)

      Horace Barnard for appellant.

      M. W. Devine for respondent.
   Agree to affirm; no opinion.

All concur, except Andrews, J., absent.

Judgment affirmed.


text:
    William Corning, Respondent, v. Nathan P. Pond, Assignee, etc., Appellant.
    (Argued June 22, 1885 ;
    decided October 6, 1885.)

      John Van Voorhis for appellant.

      Edward Harris for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Thomas Luce, Respondent, v. Julius D. Alexander, Appellant.
    (Argued June 23, 1885;
    decided October 6, 1885.)

      Joseph E. Newburger for appellant.

      Charles N. Judson for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Thomas T. Ahrenberg et al., Respondents, v. James A. Wright et al., Appellants.
    (Argued June 24, 1885;
    decided October 6, 1885.)

      John A. Parsons for appellants.

      W. W. Goodrich for respondents.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Emeline F. Tooker, Respondent, v. Joseph S. Winston, Appellant.
    (Argued June 26, 1885;
    decided October 6, 1885.)

      Joseph Hallock for appellant.

      John Linn for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Jane Myers, Appellant, v. James C. Martin et al., Respondents.
    (Argued June 26, 1885 ;
    decided October 13, 1885.)

      A. Van Etten, Jr. for appellant.

      Lewis E. Carr for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Fabiano R. Francke et al., Appellants, v. Kate L. Youmans et al., Respondents.
    (Argued June 26, 1885 ;
    decided October 13, 1885.)

      Joseph, A. Shoudy for appellants.

      J. Alfred Davenport for respondents.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Anna B. Cavalry, Respondent, v. Judson Jarvis, Appellant.
    (Submitted October 6, 1885;
    decided October 13, 1885.)

      John H. V. Arnold for appellant.

      George G. Hall for respondent.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


text:
    The People, ex rel. Anthony S. Woods, Appellant, v. The Board of Police Commissioners of Long Island City, Respondent.
    (Argued October 6, 1885 ;
    decided October 13, 1885.)

      William H. Secor for appellant.

      Alvin T. Payne, for respondent.
   Agree to affirm ; no opinion.

All concur.

Order affirmed.


author: Per Pariam

text:
    John J. Nathans, Respondent, v. Anthony S. Hope, John Satterly, Surety etc., Appellant.
    (Argued October 6, 1885 ;
    decided October 13, 1885.)
    This was an appeal from an order of General Term, affirming an order of Special Term adjudging the appellant Satterly, who was surety on the undertaking given by defendant on appeal in this action, guilty of contempt in willfully and falsely stating in his affidavit to the undertaking that he was worth a sum specified over and above all indebtedness. The court here held that the evidence was insufficient to sustain the charge, and without considering other questions presented, reversed on that ground.

      T. C. Cronin for appellant.

      Chauncey S. Truax for respondent.
   Per Pariam

opinion for reversal of order of General and Special Terms and for denial of motion.

All concur.

Ordered accordingly.


text:
    Benjamin Wright, as Receiver, etc., Respondent, v. Mary A. Nostrand et al., Appellants.
    (Argued October 6, 1885 ;
    decided October 13, 1885.)
    This was a motion for restitution.
    The action was brought by plaintiff as a receiver appointed in supplementary proceedings to set aside as fraudulent against creditors a conveyance made by the judgment debtor. He succeeded at Special Term, but the judgment was reversed by the General Term. On appeal to this court the order of General Term was reversed, and the judgment affirmed “ with costs.” (See 94 N. Y. 31.) The remittitur was sent down and judgment perfected for costs, which was collected. A motion was subsequently made for reargument. The remittitur was recalled and reargument ordered, upon which the judgment was modified in some respects, among others as to costs, no costs being allowed to either party. (See 98 N. Y. 669.)
    The court say: “ This motion for restitution is based upon section 1323 of the Code. We entertain doubt whether restitution in this ease can properly be awarded under that section, and we will, therefore, deny the motion. The plaintiff has undoubtedly collected from Mrs. Nostrand $486.48 to which he is not entitled. The judgment which authorized its collection has been entirely swept away, and she, having paid that amount to save her property from sale, has undoubtedly the' right, in some form, to recover it back. She could probably' recover it by action; but the Superior Court upon whose execution the money was paid, and whose officer the plaintiff as receiver is, has undoubted jurisdiction over the whole matter, and can compel the repayment of the money either by the plaintiff or his attorney. Mrs. Nostrand must, therefore, seek her remedy by action or by proceedings in the court below as she may be advised.

      “ The motion is denied, without costs.”

      E. P. Wilder for motion.

      H. D. Betts opposed.
   Per Curiam

mem. for denial of motion.

All concur.

Motion denied.


text:
    Amelia Plopper, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    (Argued October 6, 1885 ;
    decided October 20, 1885.)

      Forces, Brown & Tracy for appellant.

      Louis Marshall for respondent.
   Agree to affirm; no opinion.

All concur, except Ruger, Ch. J., taking no part.

Judgment affirmed.


text:
    Henry C. Rosenbaum, Respondent, v. The Union Pacific Railroad Company, Impleaded, etc., Appellant.
    (Argued October 6, 1885 ;
    decided October 27, 1885.)

      Artemus H. Holmes for appellant.

      Edward L. Andrews for respondents.
   Agree to affirm; no opinion.

All concur.

Order affirmed.


text:
    James C. Chambers, Appellant, v. William H. Appleton et al., Respondents.
    (Argued October 7, 1885 ;
    decided October 27, 1885.)

      W. A. Beach for appellant.

      Edward W. Paige for respondents.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Ambrose E. Barnes, Appellant, v. Peter B. Decker et al., Impleaded, etc., Respondents.
    (Argued October 7, 1885 ;
    decided October 27, 1885.)
    L. A. Gould, for appellant.

      Abner C. Thomas for respondents.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Alfred Curry, Respondent, v. John W. Adams, Appellant.
    (Submitted October 7, 1885 ;
    decided October 27, 1885.)

      Eugene B. Travis for appellant.

      Travis & Smith for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Edward Fox, Respondent, v. Michael H. Fitzsimons, Appellant.
    (Argued October 8, 1885 ;
    decided October 27, 1885.)

      Henry W. Conklin for appellant.

      Marrenus H. Briggs for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Adolphe M. Weiss, Respondent, v. Harvey Farrington et al., Appellants.
    (Argued October 9, 1885 ;
    decided October 27, 1885.)
    The question in this case was simply as to the construction of a contract of employment.

      Edwin Kempton for appellants.

      Stern & Myers for respondent.
   Earl, J.,

reads for reversal.

All concur.

Judgment -reversed.


text:
    Charles S. Millington, Respondent, v. Welthy T. Dorn, Appellant.
    (Submitted October 9, 1885 ;
    decided October 27, 1885.)

      Bentley & Jones for appellant.

      C. A. Moon for respondent.
   Agree to affirm ; no opinion.

All concur

Judgment affirmed.


text:
    Edward Flaherty, Appellant, v. David Henderson et al., Respondents.
    (Argued October 12, 1885;
    decided October 27, 1885.)

      Hermon S. Shook for appellant.

      Joseph A. Shoudy for respondent.
   Agree to affirm ; no opinion.

All concur.

Judgment affirmed.


text:
    Richard Rollins, Respondent, v. Patrick Farley, Appellant.
    (Argued October 9, 1885;
    decided October 27, 1885.)
    This action was brought to recover damages for injuries to plaintiffs building, caused by an explosion of dynamite cartridges, which were being used by defendant for blasting' purposes. Plaintiff claimed that the cartridges were negligently placed in contact with a hot steampipe which ignited them and caused the explosion. The question on the appeal was simply as to whether the evidence was sufficient to sustain the verdict of the jury.

      Edward P. Wilder for appellant.

      John P. Reed for respondent.
   Earl, J.,

reads for affirmance.

All concur.

Judgment affirmed.


text:
    Andrew H. H. Dawson, Respondent, v. George Sloane, Appellant.
    (Argued October 9, 1885;
    decided October 27, 1885.)

      Anthony R. Dyett for appellant.

      Andrew H. H. Dawson, respondent, in person.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    The National Ice Company of the City of New York, Appellant, v. William I. Preston, Respondent.
    (Argued October 12, 1885;
    decided October 27, 1885.)

      Alexander Blumenstiel for appellant.

      Henry Brodhead for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Frederick Voss, Jr., an Infant, by Guardian, Respondent, v. The Third Avenue Railroad Co., Appellant.
    (Argued October 13, 1885;
    decided October 27, 1885.)

      Samuel Hand for appellant.

      Benjamin M. Stilwell for respondent.
   Agree to affirm ; no opinion.

All concur.

Judgment affirmed.


author: Andrews, J.,

text:
    Christiana Harrison, Respondent, v. The Brooklyn, Bath and Coney Island Railroad Co., Appellant.
    (Argued October 14, 1885;
    decided October 30, 1885.)
    The following is the mem. of opinion in this case:
    “It is not material to consider the sufficiency of the complaint as setting forth a cause of action in ejectment, in view of the fact that the court ruled on the trial that the plaintiff had failed to establish a right to recover in that aspect of the case. The objection taken to the generality of the description of the premises demanded became by that ruling immaterial. The objection that the complaint did not justify a recovery in trespass is, we think, under the circumstances, untenable. The defendant at the outset of the trial moved to dismiss the complaint as to lots 35, 36 and 37, on the ground that the complaint was in ejectment, and that the averments showed a trespass only, and this motion having been denied, he asked the court to require the plaintiff to elect whether he would proceed for a cause of action in ejectment or trespass, which motion was also denied. And at the conclusion of the plaintiff’s case the motion to dismiss was renewed on the ground that the only-acts proven were trespass. The defendant in making the first motion assumed that the complaint charged acts of trespass, and in his second motion that a trespass had been proved. It is not necessary to decide whether the motion to compel the plaintiff to elect as between ejectment and trespass should have been granted. The court at the close of the evidence treated the action as an action for trespass only, and directed a nominal verdict for the plaintiff on that cause of action, and the defendant was not prejudiced by the disposition made of the original motion." It is now claimed that the complaint did not set up a cause of action in trespass, and that it was error in the trial judge to direct a verdict for that cause, although the evidence might have warranted a recovery in trespass under an appropriate complaint. The complaint is very inartificial and indefinite in form. The defendant in his motion to dismiss treated it as averring a mere trespass when he sought to have it declared as insufficient to support a claim for the recovery of the possession of the land described, and afterward as containing averments appropriate to both ejectment and trespass, on his motion to compel the plaintiff to elect. The structure of the complaint as a whole is more appropriate to an action of ejectment than trespass, but the averments are so mingled and confused that, taking into consideration the pleading together with what occurred upon the trial, we think it should be held that a recovery ill trespass was justified, if the evidence established the necessary facts, and that it did, is scarcely disputed. " There was no error in the direction of a, verdict for nominal damages, as there is no doubt that a trespass was proved.”
    The judgment should be affirmed.

      George W. Roderick for appellant.

      D. P. Barnard for respondent.
   Andrews, J.,

reads for affirmance.

All concur.

Judgment affirmed.


text:
    Francis C. Gruning, Appellant, v. Tobias Richter et al., Respondents.
    (Argued October 15, 1885 ;
    decided October 30, 1885.)

      Elial F. Hall for appellant.

      John B. Mayenborg for respondents.
   Agree to affirm ; no opinion.

All concur.

Judgment affirmed.


text:
    Ann Kenney, Respondent, v. The City of Cohoes, Appellant.
    (Argued October 15, 1885;
    decided October 30, 1885.)
    The question in this case was simply as to the sufficiency of the evidence to sustain the judgment.
    The court say: “ There were questions for the determination of the jury, and their verdict having been approved by the trial judge and the General Term we have no jurisdiction to interfere therewith. (Goodfellow v. Mayor, etc.,

       ; Bullock v. Mayor, etc., 99 N. Y. 654.”

      E. Countryman for appellant.

      R. A. Parmenter for respondent.

        Ante, p. 15.

   Per Curiam

mem. for affirmance.

All concur.

Judgment affirmed.


text:
    Jose Ma Menendez, Respondent, v. Jose Menendez, Appellant.
    (Submitted October 16, 1885;
    decided October 30, 1885.)

      Thomas Darlington for appellant.

      Roger M. Sherman for respondent.
   Agree to affirm; no opinion.

All concur;

Judgment affirmed.


text:
    Samuel F. Cowdrey et al., Appellants, v. Jeremiah O’Connell, et al., Respondents.
    (Argued October 16, 1885 ;
    decided October 30, 1885.)

      S. F. & F. H. Cowdrey appellants in person.

      G. B. Van Wart for respondents.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    The Seneca Nation of Indians, Respondent, v. Henry Folts, Appellant.
    (Submitted October 16, 1885;
    decided October 30, 1885.)

      W. H. Henderson for appellant.

      B. F. Congdon for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    George W. Farnam et al., Appellants, v. Hall F. Baldwin et al., Respondents.
    (Argued October 19, 1885;
    decided October 30, 1885.)

      Pelton & Poucher for appellants.

      Theodore Fitch for respondents.
   Agree to affirm ; no opinion.

All concur.

Judgment affirmed.


text:
    Samuel B. Duryea, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent.
    (Argued October 19, 1885 ;
    decided October 30, 1885.)

      Edward J. F. Werder for appellant.

      Arthur H. Masten for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Jacob Huyler, Appellant, v. The Knickerbocker Ice Company, Respondent.
    (Argued October 19, 1885 ;
    decided October 30, 1885.)

      B. Doran Killian for appellant.

      Albert E. Mudge for respondent.
   Agree to affirm ; no opinion.

All concur.

Judgment affirmed.


text:
    In the Matter of the Attorney-General v. The Atlantic Mutual Life Ins. Co.
    (Argued October 20, 1885;
    decided October 30, 1885.)

      N. C. Moak for appellant.

      William Barnes for respondent,
   Agree to affirm; no opinion.

All concur.

Order affirmed.


author: Danforth, J.,

text:
    Barker Place, as Executor, etc., Respondent, v. Jedediah K. Hayward, Appellant.
    Whether a court shall modify or change an order already.made by it is a question addressed to its discretion, and over its exercise an appellate court has no control.
    (Argued October 20, 1885 ;
    decided October 30, 1885.)
    The following is the mem. of opinion herein:
    “ On the 16th of April, 1881, the Supreme Court, at Special Term, upon affidavits, and after hearing counsel for both parties, made an order giving an allowance and costs to the defendant, against the plaintiff as executor, adding ‘ not to be paid by plaintiff personally.’ The defendant afterward, upon affidavits and other papers, and a notice to the plaintiff, applied to the court to modify that order by striking therefrom the words ‘not’ and ‘as executor.’ This was denied by the Special Term, and upon appeal to the General Term the order was affirmed. The appeal to this court is from the order. It cannot succeed. Whether a court shall modify or change an order already made by it is a question addressed to its discretion, and over its exercise an appellate court has no control. The appeal should, therefore, be dismissed, with costs.”

      J K. Hayward, appellant, in person.

      Charles F. Wells for respondent.
   Danforth, J.,

reads for dismissal of appeal,

All concur.

Appeal dismissed.


text:
    Alfred Nelson, as Executor, etc., Respondent, v. Sutherland Tenney, as Assignee, etc., impleaded, etc., Appellant.
    (Argued October 20, 1885 ;

    decided October 30, 1885.)

      John Lindley for appellant.

      Francis Forbes for respondent.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


text:
    The Farmers’ Loan and Trust Co., Respondent, Francis H. Campbell et al., Appellants, v. The Southern Telegraph Co.
    (Argued October 20, 1885 ;
    decided October 30, 1885.)

      John S. Smith for appellants.

      Herbert B. Turner for respondent.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal d smissed.


text:
    In the Matter of the Petition of Charles R. Purdy et al., Executors, etc., Appellants, v. Orlando L. Stewart, an Attorney, etc., Respondent.
    (Argued October 20, 1885 ;
    decided October 30, 1885.)

      J. S. Millard for appellant.

      Orlando L. Stewart, respondent, in person.
   Agree to affirm; no opinion.

All concur.

Order affirmed.


author: Danfobth, J.,

text:
    The Equitable Life Assurance Society of the United States v. Emma L. Bostwick et al., Appellants, John Donovan, Respondent.
    A personal obligation on the part of a grantee to pay a mortgage upon the premises conveyed may not be implied from a statement in his deed that the conveyance is subject to the mortgage, and that the amount thereof “ forms part of the consideration, and is deducted therefrom.”
    (Argued October 21, 1885 ;
    decided November 24, 1885.)
    The following is the opinion in this action:

      “ The action was brought to foreclose a mortgage executed to the plaintiff by one W. P., the then owner of the premises. Through several mesne conveyances the title vested in Emma L. Bostwiclc, who assumed payment of the mortgage as part of the consideration for which the deed to her was made. The debt was not paid, and the plaintiff had judgment of foreclosure, and for the payment by her of such deficiency as might remain after application of the proceeds of the sale. The propriety of the proceedings so far is not questioned, but one Donovan was made a party as having an interest in the premises subsequent to the mortgage, and Mrs. Bostwiclc and Josephus, her husband, by their answer to the complaint, set out a variety of circumstances as creating a liability on the part of. Donovan to pay the deficiency,- and asked that the plaintiff first exhaust its legal remedy against him. Donovan by answer put in issue these allegations, and the decision having been in his favor, Mrs. Bostwick and her husband appeal therefrom. We find no ground on which it can succeed. First. So far as it rests upon the assumption by the appellants’ counsel that they have paid the deficiency judgment it must fail, for there is neither finding by the court, nor evidence, however slight, that such is the fact. Second. Donovan was properly made a party to the action because he was in possession of the premises affected by the foreclosure, and if as to the appellants he had, by assuming payment of the mortgage debt, become principal debtor, it may be that the plaintiff would have been bound upon request to proceed against him in that capacity. (Colgrove v. Tallman, 67 N. Y. 95.) But the difficulty with the appellants’ case, and a complete answer among others to this appeal is that there is no evidence that such relation existed. The agreement of April 1, 1878, was between Donovan and Mr. Bostwick; under it the latter was to give a title to the mortgaged premises, and the former was to pay therefor in part by assuming the mortgage. Bostwick has conveyed no title, nor had he any to convey. It was in Mrs. Bostwick, and she was not a party to the agreement. The learned counsel for the appellants contends that the deed of April 15, 1878, from Mrs. Bostwick and her husband, is not valid. It is, therefore, unnecessary to consider that question. If, however, it be valid, it contains no assumption of the mortgage debt or agreement to pay it, and such obligation cannot be implied from the statement that the conveyance is subject to the mortgage, and that the amount thereof forms ‘ part of the consideration, and is deducted therefrom.’ (Belmont v. Coman, 22 N. Y. 438.) Third. Some other points are made by the appellants, that the deed should be reformed; ‘ that under any circumstances Donovan should pay so much interest as accrued before the appointment of the receiver.’ I find no allusion to either matter in the case, and whether the appellants have rights which by any mode of proceeding may be enforced, cannot be answered upon the record now before us. Upon that the judgment is right and should be affirmed.”

      J. Wray Cleveland for appellants.

      B. F. Tracy for respondent.
   Danfobth, J.,

reads for affirmance.

All concur.

Judgment affirmed.


text:
    Philip Ebling et al., Respondents, v. Paul Bauer, Appellant.
    (Argued October 22, 1885 ;
    decided November 24, 1885.)

      Edward Fitch for appellant.

      Edward Salomon for respondents.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    James V. Haviland et al., Appellants, v. William H. Sohmohl, Impleaded, etc., Respondent.
    (Argued October 22, 1885 ;
    decided November 24, 1885.)

      G. A. Seixas for appellants.

      Philip L. Wilson for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Mary Garvey, Respondent, v. The City of Buffalo, Appellant.
    (Submitted October 22, 1885 ;

    decided November 24, 1885.)

      Edward C. Hawks for appellant.
    Lewis, Moot & Lewis for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    William Gleason, Respondent, v. Calvin H. Bell, Appellant.
    (Argued October 22, 1885 ;
    decided November 24, 1885.)

      Calvin H. Bell, appellant, in person.

      J. B. Gleason for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Hiram Clark, Appellant v. Sidney Stillman et al., as Commissioners, etc., Respondents.
    (Submitted October 23, 1885 ;
    decided November 24, 1885.)

      Daniel W. Guernsey for appellant.

      W. Farrington for respondents.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    The Bank of Nova Scotia, Respondent, v. James G. Hamilton et al., Appellants.
    (Argued October 26, 1885;
    decided November 24, 1885.)

      William J. Hardy for appellants.

      John B. Whiting for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    John Baizley, Respondent, v. James H. Workman et al. Appellants.
    (Argued October 27, 1885 ;
    decided November 24, 1885.)

      Joseph A. Shoudy for appellants.

      William G. Cooke for respondent.
   Agree to affirm; no opinion.

All concur, except Danforth, J., not voting.

Judgment affirmed.


text:
    William H. Parsons et al., Respondents, v. Daniel J. Sprague, Impleaded, etc., Appellant.
    (Argued October 27, 1885;
    decided November 24, 1885.)

      Ira D. Warren for appellant.

      Edward C. James for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Amzi B. Davenport, Appellant, v. The Brooklyn City Railroad Company, Respondent.
    (Argued October 28, 1885 ;
    decided November 24, 1885.)
    This action was brought to recover damages for injuries sustained by plaintiff in endeavoring to get on to one of defenddant’s street cars, alleged to have been caused by defendant’s negligence. Plaintiff was nonsuited on trial.
    The following is the mem. of opinion:
    “We think the plaintiff was properly nonsuited. We do not perceive how it was possible for him to be injured without some carelessness on his part. At the place where he was injured there were two railway tracks in Fulton street, running north and south. A car of the defendant was upon the easterly track going north, and a De Kalb avenue car was upon the westerly track going south. The plaintiff in the month of August, when it was perfectly light, being desirous to take the De Kalb avenue car, passed from the easterly side of Fulton street over both tracks to see if the car was coming, and saw it coming. He then recrossed both tracks to the easterly curb of the street, and then as the car came near him he signaled for it to stop, and crossed over the easterly track into the space between the tracks, and then, as the De Kalb avenue car stopped to let him on, and as he was in the act of getting on, he looked southerly and saw the defendant’s car coming, fifty or seventy-five feet from him. Before he got on he was hit by that ear and injured. The horses attached to the defendant’s car were trotting at the rate of about five miles an hour. After seeing the defendant’s car coming he testified that he paid no more attention to it until he was hit by it. It further appeared that defendant’s car could be seen as it was approaching the place where the plaintiff stood for a distance of at least two hundred and fifty feet. When the plaintiff was on the westerly side of the tracks he was in a place of entire safety, and he could have entered the car on that side without any risk of injury, and why he recrossed the tracks does not appear. It does not appear how much space there was between the two tracks. If there was space enough so that the cars could pass without hitting a person carefully st .ing between them, then it is impossible to perceive how me plaintiff was injured without carelessly exposing himself to the collision. If there was not space enough then plaintiff, knowing that cars were almost constanly passing that point, should not have put himself in a place of danger; and ! ««wing that it was a place of danger he should have guard.' dust the w-ill when he was able to see an approaching car for two Imudivd m;Í feet. He actually saw the defendant’s car coming when her took his place between the tracks, in time to escape collision. He could have returned to the easterly side of the street out of danger, or he could have got upon the De Kalb avenue car before defendant’s car could have traversed the distance of from fifty to seventy-five feet. The defendant’s car was upon a track'where it had a right to be. It was in plain sight as it approached the plaintiff, and he was bound to use his eyes and to exercise vigilance to keep out of its way. There was certainly no basis in the evidence for a finding by a jury that the accident was due solely to the carelessness of defendant.
    “ The judgment should be affirmed.”

      Jerry A. Wernberg for appellant.

      Winchester Britton, for respondent.
   Earl, J.,

reads for affirmance.

All concur, except Danfobth, J., dissenting.

Judgment affirmed.


text:
    William H. Abell et al., Respondents, v. The New York, Lackawanna and Western Railway Company, Appellant.
    (Submitted October 27, 1885;
    decided November 24, 1885.)
    Rogers, Lock & Milburn for appellant.

      Spencer Clinton for respondent.
   Agree to affirm; no opinion.

All concur.

Order affirmed.


text:
    Daniel Sweeny, Respondent, v. Joanna L. St. John et al. Appellants.
    (Argued October 29, 1885;
    decided November 24, 1885.)

      A. J. Dittenhoefer for appellants.

      A. J. Vanderpoel and Robert S. Green for respondent.
   Agree to affirm order and for judgment absolute, on stipulation ; no opinion.

All concur.

Judgment accordingly.


text:
    Ellen Nichols, Respondent, v. The Brooklyn City Railroad Company, Appellant.
    (Argued October 29, 1885;
    decided November 24, 1885.)

      Winchester Britton for appellants

      Charles J. Patterson for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Franklin Warren, Respondent, v. John Chadwick, Appellant.
    (Submitted October 29, 1885;
    decided November 24, 1885.)

      Ellsworth da Potter for appellant.

      F. I. Clark for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Annie E. Cornell, Respondent, v. Augustus H. Ward et al., Appellants.
    (Argued October 29, 1885;
    decided November 24, 1885.)

      Mark D. Wilber for appellants.

      A. H. Dailey for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    George A. Smith, Respondent, v. Joseph Kenyon, Appellant.
    (Submitted October 30, 1885;
    decided November 24, 1885.)

      McDowell & Lewis for appellant.

      Canniff & Perine for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Charles Dittberner, Jr., Appellant, v. Stephen Rogers, Respondent.
    (Submitted October 30, 1885;
    decided November 24, 1885.)

      A. Simis, Jr. for appellant.

      Peckham & Tyler for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.