author: Van Brunt, P. J.: Daniels, J.

text:
    HERMAN STEIN and MONROE L. SIMON, Respondents, v. JULIUS A. LEVY, Appellant.

      Attachment — false representations —offering to allow judgment to be taken— acceptance of the offer and a levy upon the entire stock in trade of the debtor.

    On an application to vacate a warrant of attachment, it appeared by the affidavits, upon which the attachment was granted, that certain representations made by the defendant, that he was perfectly solvent; that the plaintiffs were his largest creditors; that, outside of the money owing to them, he owed only one or two thousand dollars, were false; because at the time they were made defendant had made and delivered to his son a promissory note for $6,400, which he knew he could not pay, which fact he concealed from the plaintiffs, permitting his son to commence an action upon such note, offering to allow judgment to be taken therein for $6,000, which offer was accepted, and judgment was entered thereon, and a levy made thereunder upon the whole stock in trade and fixtures of the defendant.
    It was further alleged that the concealment and the levy of the execution were a part of a scheme, on the part of the defendant, to dispose of his property with intent to cheat and defraud his creditors.
    Held, that, if the defendant was indebted to his son, the latter had a right to commence an action, and the defendant to offer to allow judgment to be taken therein in order that his son might secure a preference over other creditors by the levy of his execution.
    That the fact that the whole of the stock in trade of the defendant had been levied upon by virtue of the execution did not violate the provisions of chapter 500 of the Laws of 1887 denying the right of an insolvent debtor, in making a general assignment, to prefer one creditor or class of creditors to the extent of more than one-third of his estate.
    That the provisions of this act had no application to the case of a judgment and the execution levied thereunder, and related only to cases of general assignment.
    That the provisions of said act only applied to the confessions of judgments where they constituted apart and parcel of a scheme resulting in a general assignment, whereby all the debtor’s property was devoted to the payment of his debts. (Daniels, J., dissenting.)
    Appeal by tlie defendant from an order made at a Special Term, held in the county of New York, and entered in the office of the clerk of the county of New York on the 8th day of November, 1889, denying the defendant’s motion for an order vacating and setting aside a warrant of attachment granted in the above-entitled action against the property of the defendant.

      Samuel Greenbaum, for the appellant.

      Benno loewy, for the respondent.
   Van Brunt, P. J.:

Upon the affidavit of one of the plaintiffs showing a cause of action against the defendant for damages, because of alleged fraudulent representations made by the defendant at the time of the sale of certain goods, wares and merchandise upon credit, an attachment was issued against the property of the defendant upon the ground that the defendant had disposed of his property with intent to cheat and defraud his creditors. •

A motion having been made upon the papers upon which the attachment was granted to vacate the same, such motion was denied, and from the order thereupon entered this appeal is taken.

A good cause of action was set out in the affidavit, and the only question presented upon this appeal is whether there were any facts stated in the affidavit which justified the justice who issued the attachment in concluding that the defendant had disposed of his property with intent to cheat and defraud his creditors. The affidavit in question alleged certain representations made by the defendant as to his financial standing at the time he obtained the credit for the goods in question, and that, relying upon such representations, the plaintiff sold and delivered to the defendant such goods upon credits that had not then expired.

Among the representations made by the defendant, alleged in the affidavit, were that he was perfectly solvent; that the plaintiffs were his largest creditors, and that outside of the moneys due and owing to them he owed only to the amount of one or two thousand dollars, and solely for merchandise. These representations, it is claimed, were false, because, at the time they were made, the defendant had made and delivered to one Charles F. Levy, his son, a promissory note for $6,400, which note the defendant, at the time, knew he could not pay, and which was not made for goods sold and delivered. The affidavit further states that the defendant having concealed the fact of his alleged indebtedness to his son, Charles F. Levy, as aforesaid, from the plaintiffs, on or about the 11th of October, 1889, permitted and caused the said Charles F. Levy to commence an action in this court upon said note and indebtedness, and thereafter, for the purpose of expediting judgment in said action, offered judgment in the sum of $6,000, which offer was accepted and judgment was thereupon entered in favor of said Charles F. Levy against the defendant, for the sum of $6,011.90; and that an execution was issued upon said judgment, and the sheriff thereupon levied upon the whole of the stock in trade and fixtures of the defendant under the said execution.

The affidavit contains the further averment that this concealment of the promissory note and the levy upon the execution was part of a scheme on the part of the defendant to dispose of his property with intent to cheat and defraud his creditors, especially these plaintiffs. It is apparent, upon the face of the affidavits, that most of the allegations in regard to the fraud connected with the entry of the judgment are mere surmises upon the part of the affiant, and there is no evidence whatever to support the same. There is nothing from which we may infer that the holder of the promissory note, in the proceedings which he took, did anything more than that which the law allows in endeavoring to secure the payment of the just claim which he had against the defendant. And the question thus presented is whether the offer to allow judgment upon the part of the defendant, in the action brought by Charles F. Levy to secure the payment of the indebtedness due to him, is such a fraud upon the creditors of the defendant as to warrant the issuing of an attachment upon the ground that such offer resulted in a disposition of the property of the defendant with intent to defraud his creditors.

It is clear that, in pursuing the remedies which the law affords to both creditors and debtors for the entry of judgment, no inference of fraiid or corrupt intent can obtain. If the defendant was indebted to Charles F. Levy, which must be conceded or otherwise no cause of action is set out in the affidavits, the latter had a right to commence his action and the defendant had a right to offer to allow judgment in order that Charles F. Levy might secure a preference over other creditors by the levy of his execution.

It is urged, upon the part of the respondent, that the fact that the defendant permitted the plaintiff’s charge of fraud to go uncontradicted and unexplained, while in his affidavit, used in support of his motion, he had full opportunity for explanation; should induce the court to indulge in every inference unfavorable to his case, and, in view of that fact, the charges must be considered fully proved.

It will be perceived upon an examination of the affidavit upon the part of the defendant, that it was the mere formal affidavit to entitle the party to obtain an order to show cause rather than to suffer the delay attendant upon the making of a motion, and that the application to vacate the attachment was made upon the plaintiff’s affidavit alone, there being no attempt on the part of the defendant to introduce any evidence as to the merits of this application. Under these circumstances, fraud is not to be presumed. Fraud must be proven, and the allegations contained in the plaintiff’s affidavit, upon which the attachment was granted, in no way show any fraud or anything further than an attempt upon the part of a creditor of the defendant to obtain that priority which the law entitles him to seek.

It is, however, suggested that the whole of the stock of the defendant having been levied upon by virtue of the execution, such seizure in favor of one of the creditors of the defendant, brought about with his consent, is opposed to the policy created by chapter 503 of the Laws of 1881, and that by that act the right of an insolvent debtor to prefer one creditor or class of creditors to others has been restricted to one-tliird of his estate, and that the provision there made was enacted to prevent abuses of this description, which had so frequently arisen in the disposition of estates of insolvent debtors. By that act it is provided that im, all general assignments of the estates of debtor's for the benefit of creditors any preference created therein (other than for wages or salaries) shall not be valid except to the amount of one-third of the assigned estate after deducting such wages or salaries and the costs and expenses of executing such trust; and shoidd said one-third be insufficient to pay in full the preferred claims to which, under the provisions of the section, the same are applicable, then said assets are to be applied to the payment of the same pro rata to the amount of each of said preferred claims.

It will be seen that the act relates entirely to general assignments. It provides that in all general assignments any preferences therein created shall not be valid except to the amount of one-third in value of the assigned estate, etc. The fact of an excess of preference in no way affects the validity of the assignment. It only requires that the preferences shall be reduced pro rata until the same shall not exceed one-third of the assigned estate. If the policy of the law, as therein declared, should be held to apply to the judgment in question, it clearly would not render the judgment totally void, because the law in no case makes any preference inoperative, except so far as it exceeds one-third of the estate. Now, there is noway in which it is possible to ascertain, in the case of a judgment and execution, as to what one-third of the estate would be, and, as a consequence, it seems to be clear that the provisions of the act in question can have no application to the case of a judgment and an execution levied thereunder.

The provisions of the law in reference to remedies of that description remain unaltered and unabridged, and it seems to us that it would be a violent assumption to hold that, because of the provisions of this act in reference to general assignments, the provisions of the law in regard to the entry of judgments by offer should substantially be repealed, and that which the law had hitherto permitted to be done in that respect should be held to become fraudulent acts when, by the provisions of the act itself, if there is such an excess of preference in an assignment, it in no manner makes such assignment fraudulent and void as against creditors.

It is said, in the opinion of Mr. Justice Daniels, handed down herewith, that this General Term has already decided, in a case not yet reported, the proposition that a debtor will not be allowed to evade or avoid this policy by confession of judgments, or the allowance of judgments to be taken against him in this manner. We think that the learned judge is mistaken in reference to the scope of the decision in the case referred to.

It was held in that case that judgments which were confessed as part and parcel of a scheme resulting in an assignment, whereby all the debtor’s property was devoted to the payment of preferred creditors, should not be allowed to stand, as the assignment and confession of judgment must necessarily be considered together, they having been part and parcel of a single scheme, and were plain violations of the law in question. But where no assignment has been made, where the confessions of judgment are not a part and parcel of a scheme in reference to an assignment, we cannot see that the act in question has made any change in the rights which both the debtor and his creditor have in reference to the entry of judgment to secure the payment of the creditor’s claim. The law permits a creditor to sue, and the debtor to offer to allow judgment to be taken against him, and thus secure judgment without the delay incident to the ordinary procedure. Therefore, from the mere fact of a debtor permitting the creditor to obtain this preference which the law recognizes, no presumption against him is to arise. We think, therefore, that there was no ground for the issuing of the attachment in question, and that the motion to vacate the same should have been granted.

The order appealed from should be reversed, with ten dollars costs and disbursements and the attachment vacated.

Brady, J., concurred.

Daniels, J.

(dissenting):

The attachment states the grounds upon which it was issued, to be, that the action was for damages for fraudulently obtaining and converting merchandise, and for the disposition by the defendant of his property with intent to cheat and defraud his creditors.

In support of these facts it was stated, in the affidavit made by one of the plaintiffs, that they had a good cause of action against the defendant for damages for a fraud and for fraudulently obtaining and converting the goods, wares and merchandise of the plaintiffs. The affidavit then proceeded to state that the defendant applied to the plaintiffs for the purchase of a quantity of tobacco. He had previously been a purchaser from the firm, but at this time desired to increase his purchase to so large an extent that a statement was required from him of his financial condition. Such a statement was made by the defendant, and in the statement he is sworn to have represented to the plaintiffs “ that he was perfectly solvent; that the plaintiffs herein were his largest creditors; that, outside of the moneys due and owing them, he owed only to the amount of one or two thousand dollars, and solely for merchandise, and that they might well trust him since his business was prosperous and increasing, so that he needed those goods for sale.”

The affidavit then proceeded to state that the plaintiff relied upon this statement and sold and delivered to the defendant goods, wares and merchandise of the value and at the price of $2,828.21, upon a credit ranging from fívé to nine months. This sale took place in the month of May, 1889, and no payment upon the purchase-price of the goods was made by the defendant. The affidavit then proceeded to state that the defendant received the goods and disposed of them with the intent to cheat and defraud the plaintiffs, and that when he received them he did not intend to pay for them. It is then added that the statements made by him concerning his financial condition were false and untrue, in the fact that he was not at the time solvent, and that the plaintiffs were not his largest creditors, but that at the time when he made the statements he had made and delivered to his son a promissory note for the sum of $6,430, payable in four months from its date, which was the 8th of April, 1889, and that the defendant knew at the time when his representations were made that his statements were false and untrue, and designed to cheat and defraud the plaintiff. This was sufficient to establish a cause of action upon which an attachment under the provisions of the Code might be issued against his property. For it is provided by subdivisions 2 and 3 of section 635 that an attachment may be issued when the action has been brought for damages for the wrongful conversion of personal property, or for any other injury to such property in consequence of negligence, fraud or other wrongful act. And obtaining property in the form of a sale and purchase by one person from another by means of fraudulent representations, has been held to be such an injury to personal property as will present a case within the language of these subdivisions. (Bogart v. Dart, 25 Hun, 395; Whitney v. Hirsch, 39 id., 325; Campion Card & Paper Co. v. Searing, 47 id., 237.) And the case of Fleitmann v. Sickle (13 N. Y. St. Rep., 399) is not in the slightest respect in conflict with this construction of these subdivisions of the section. For there the attachment was issued to recover an indebtedness for goods sold and delivered, and upon the sole other ground that the defendant had assigned, disposed of or secreted his property with intent to defraud his creditors. The same observation is also applicable to Kibbe v. Herman (51 Hun, 438; S. C., 21 N. Y. St. Rep., 235). For this last case in no manner brought into controversy these provisions of the Code, neither was anything stated or decided in the case which would prevent an attachment issuing for the cause of action mentioned and set forth in the affidavit in this action. What it established was, that the defendant, by means of false and fraudulent representations, had, in the form of a purchase, obtained the property of the plaintiff for tlie price, and amounting to the value mentioned in the affidavit, and that the representations inducing the sale of the property to him in this manner were at the time, and must have been known to him to have been, false when he made them. The cause of action was, therefore, sufficiently set forth to answer all the requirements prescribed by the law to entitle the plaintiffs to an attachment.

The only other or further requirement is that contained in section 636 of the Code of Civil Procedure, and that has provided, to entitle the party to an attachment, in addition to the cause of action, that it shall be made to appear either that the defendant is not a resident of the State, or that he has departed from the State with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed in the State with the like intent, or that he had removed or is about to remove from the State with intent to defraud his creditors, or has assigned, disposed of or secreted, or is about to assign, dispose of or secrete his property with the like intent. And to bring this case within this provision of the Code, and establish the fact that the defendant had assigned or disposed of his property with intent to defraud his creditors, it was further shown by the affidavit that an action had been commenced and judgment recovered against him by his son upon the note which has been mentioned.

This action was commenced on or about the lltli of October, 1889, and on the fourteenth of the month an offer was made to allow the plaintiff in the action to take judgment against the defendant for the. sum of $6,000, with costs. This offer was, on the same day, accepted by the plaintiff in that action, and judgment was thereupon, and on the same day, entered against the defendant, as that was mentioned in the offer which was served. An execution is stated in the affidavit to have been at once issued upon this judgment, and a levy under the execution was made -on the same day “upon the whole of the stock in trade and fixtures of the defendant,” which were still held for the purpose of satisfying the judgment. This levy is stated to have been made upon the property with the intention to dispose of it, and with intent to cheat and defraud the other creditors, and especially the plaintiffs; and it is then added, that by reason of the levy substantially all the property of the defendant, including part of the merchandise from the plaintiffs, had come into the possession of the sheriff for the purpose of being applied upon the judgment.

These proceedings indicate a decided probability that the plaintiff, who made the affidavit upon which the attachment has been issued, was right in his conclusion that the intention actuating the proceedings in the action in favor of the defendant’s son was really to seize and appropriate his property, and prevent other creditors from resorting to it for the satisfaction of debts owing by the defendant to them. It is to be inferred from the affidavit that substantially all the property which the defendant had was seized and appropriated by the execution in this manner; and such a seizure in favor of one of the creditors of the insolvent debtor, brought about with his assent, is opposed to the policy created by chapter 503 of the Laws of 1887, for, by that act, the right of an insolvent debtor to prefer one creditor, or class of creditors, to others to whom he may be indebted, has been restricted to one-third of his estate. The provision there made was enacted to prevent abuses of this description which had so frequently arisen in the disposition of estates of insolvent debtors, and it was deemed necessary by the legislature to check and restrain it to such an extent that after the enactment of this statute no more than one-third of the property of the debtor should be disposed of, by way of preference in favor of any of his creditors, after payment of the amounts that may be due from him for wages and salaries to persons in his employment. The policy of the act is entirely clear, and that is, to take away from the insolvent debtor the power previously possessed by him of appropriating all his property to the payment of favored creditors, and allowing the others no means whatever for the payment of any part of the debts owing to them. It is true that the defendant has not made an assignment within the language of this act, but the policy of the act is to prevent him from making a preference in favor of Ms creditors beyond the one-third mentioned therein. And that the debtor will not be allowed to evade or avoid this policy by the confession of judgments or the allowance of judgments to be taken against him in this manner has been held already in cases heard and decided by this General Term but not yet reported. This principle, under a statute still broader in its language and effect, came before the Supreme Court of the United States for the consideration and construction of that tribunal in White v. Cotzhausen (129 U. S., 329). An attempt had there been made to evade the restraints of the statute by voluntary transfers of property by the insolvent debtor for the benefit of particularly specified and favored creditors. And they were held by the court to be illegal and in contravention of the spirit and policy of the act of the State of Illinois. And the principle was sanctioned that no matter by what name the end is sought to be effected, it is in violation of the statute. “You may call it a mortgage or you may make a confession of judgment, or use any other contrivance by whatever name known, if the purpose is to dispose of an insolvent debtor’s estate whereby a preference is to be effected, it is in violation of the statute.” (Id., 3M.) And to dispose of the prop erty pursuant to an intention to evade the language and effect of an act of this description is a fraud upon the other creditors of the insolvent debtor. He cannot, either directly or indirectly, deprive them of the rights intended to be secured by this statute for the satisfaction or partial satisfaction of the debts owing to them. And to attempt to do so, whatever may be the form of the proceeding by which the object is to be accomplished or effected, is an evasion and fraud upon the law, and presents such a disposition of the debtor’s property as is forbidden by this section of the Code. That has prohibited him from assigning or disposing of his property with the intent to defraud his creditors. It was a fraud upon the other creditors to permit his son, by his own participation and consent, to obtain judgment upon this note in the manner in which that was done, and to seize and appropriate substantially all the property of the defendant for the purpose of paying that judgment; and if that should be permitted or allowed to succeed, it would be a device by which the entire effect and policy of this statute could be evaded and defeated by a fraudulent and dishonest debtor. The law will permit the success of no such artifice, but will require the policy upon which the enactment of this statute has proceeded to be observed and maintained by insolvent debtors.

The affidavit upon which the attachment was issued was sufficient to' sustain it, and the order denying the motion was right and should be affirmed, with costs.

Order reversed, with ten dollars' costs and disbursements, and the attachment vacated.


source: Caselaw Access Project

author: Van Brunt, P. J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN R. FELLOWS, District Attorney of the County of New York, Appellant, v. EDWARD HOGAN, one of the Police Justices of the City of New York, Respondent.

      Section 4 of chapter 181 of the Laws of 1888 does not confer exclusive jurisdiction upon the magistrate to try the offense of refilling lottles ma/rked, with a special name or device.

    Section 4 of chapter 181 of the Laws of 1888 does not confer upon the magistrate therein named exclusive jurisdiction to try an offender for the offense of refilling bottles marked with a device or name under the provisions of said act; and the magistrate, in his discretion, may require the defendant to give security to appear at a Court of Special Sessions.

      Queere, whether, if such act did confer exclusive jurisdiction, it would not be unconstitutional as depriving an accused person of his right to trial by jury.
    Appeal by tbe relator from an order, bearing date June 13, 1889, and entered in tlie office of the clerk of the county of New York on the 20th day of November, 1889, denying a motion made by the relator that a mandamus issue out of and under the seal of this court, directed to one Edward Hogan, one of the police justices in the city of New York, commanding him to inquire into the circumstances of the possession of the property mentioned in Exhibit “ B,” attached to the petition of one Philip H. Adler, and if, upon inquiry, he, the said Edward Hogan, should find him, the said Philip H. Adler, guilty of a violation of chapter 377 of the Laws of 1887, as amended by chapter 181 of the Laws of 1888, or of section 2 of chapter 377 of the Laws of 1887, as amended by chapter 181 of the Laws of 1888, to impose upon the said Philip H. Adler the punishment by said last-mentioned statutes prescribed.

      W. T. Jerome, for the appellant.

      De La/ncey JJiooTL, for the respondent.
   Van Brunt, P. J.:

By section 1 of chapter 181 of the Laws of 1888 any persons engaged in manufacturing, bottling or selling soda water, etc., in bottles with his name or other marks or devices branded or stamped upon such bottles, may file in the office of the clerk of the county in, which their principal place of business is situated, and of the Secretary of State, a description of the name or names so used by him, and may make certain publications provided for by the act. By section 2 of said act it is declared to be unlawful for any person to fill with soda water, etc., any bottle with any name, mark or device thereon, of which a description shall have been filed or published as provided by section 1; and that any person offending against the provisions of the section shall be deemed guilty of a misdemeanor and punished as prescribed in the section. By section á it is provided that whenever any person mentioned in section 1 shall make oath before any magistrate that he has reason to believe, and does believe, that any of his bottles, boxes, etc., a description of the names, marks and devices whereon has been published as aforesaid, are being unlawfully used or filled, or had, by any person, the said magistrate must thereupon issue a search warrant to discover and obtain the same; and may also cause to be brought before him the person in whose possession the same shall be found, and inquire into the circumstances of such possession; and if such magistrate finds that such person has been guilty of a violation of section 2, he must impose the punishment therein described and award the property taken on such warrant to the owner thereof.

Messrs. Bolen & Byrne were engaged in the manufacture, bottling and selling of soda water, having their names and other marks and devices produced upon the bottles, a description of which was duly filed in the office of the clerk of the county, and also of the secretary of State, and duly published. Their agent duly made oath before the respondent that Bolen & Byrne were the owners of certain property described in the affidavit, and that he had reason to believe, and did believe, that said property, namely, divers siphons so marked and distinguished as aforesaid, were being unlawfully used by one Philip IT. Adler, who was manufacturing and selling soda, mineral and aerated waters, and that he had been unlawfully using, buying, selling and trafficking in said siphons so marked upon certain premises occupied by him without having obtained the written consent of said Bolen & Byrne. The affiant prayed the magistrate to issue a search warrant for said property, and that he cause to be brought before him the said Adler, in whose possession the said bottles might be found, and to inquire into the circumstances of such possession as to whether Adler had been guilty of a violation of the act aforesaid. The respondent thereupon issued his search warrant and also directed that if any part of said property was found, that the officer should bring the same, together with said Adler, or the person in whose custody the same should be so found, forthwith before him. The officer executed the warrant and brought certain property and said Adler before the magistrate. The district attorney appeared for The People and moved that the charge be tried by the magistrate, and if the prisoner be convicted that the punishment prescribed be imposed by the magistrate. The respondent denied the motion, declaring the offense to be a misdemeanor, and that the defendant could not be deprived of his constitutional right to a trial by jury. The magistrate examined the charge and found that the crime, as charged, had been committed, and that there was reasonable ground to believe defendant guilty, and thereupon ordered the defendant to find security in the sum of $300. The defendant waived his right to a trial by jury and elected to be tried by the Court of Special Sessions, giving a bond for his appearance at said court. The respondent thereupon sent the case to the Court of Special Sessions for trial. The district attorney thereupon applied for a writ of mandamus against the police justice, commanding him to inquire whether said Adler had been guilty of a violation of the act aforesaid, and to impose upon him, if so guilty, the punishment by said statute provided. This motion, coming on to be heard before the Special Term was denied, and from the order thereupon entered this appeal is taken.

The questions presented are whether the magistrate had, under section 4 of the act in question, exclusive jurisdiction to try said Adler for the offense alleged to have been committed by him, and if so, whether* such provision is not unconstitutional as depriving the said Adler of his constitutional right to a trial by jury. These questions are not entirely plain. It will be observed, upon a reading of the section in question, that it is entirely discretionary whether if the magistrate issues a search warrant he shall also cause to be brought before him the person in whose possession such property may be found.

It is clear that this provision of the section is not at all mandatory, and, therefore, it seems to be the plain "intent of the legislature that the jurisdiction of the magistrate, in case the misdemeanor had been committed, should not be exclusive. The having in possession and use of bottles, under the circumstances described in the act, is proclaimed to be a misdemeanor; and if the construction claimed by the appellant was correct, then, if the magistrate exercised his option, not to cause the person in whose possession the projierty might be found to appear before him, there would be no method whatever of punishing the offender for the misdemeanor. It is clear that this was not the intention of the legislature.

Consequently, courts having a general discretion in the matter of trying all complaints for misdemeanors had jurisdiction to entertain the complaint. By section 64 of the Code of Criminal Procedure, the Court of Special Sessions is given jurisdiction to try all complaints for misdemeanors, unless the defendant elects to be tried by the Court of General Sessions or the Court of Special Sessions sends the case to the Court of General Sessions to be tried. The magistrate refusing to cause the person in whose possession the property is found to be brought before him for examination, it is clear that the Court of Special Sessions would have jurisdiction to try the defendant for that which under the act of 1888 is declared to be a misdemeanor, unless the defendant elected to be tried at the Court of General Sessions.

It is true that the subsequent language of section 4 provides that in case the magistrate causes the person to be brought before him, that he shall then inquire into the circumstances of such possession, and if he finds that such person has been guilty of a violation of the act, he must impose the punishment therein prescribed. But, as already observed, the question being entirely within his discretion as to whether he shall cause the person to be brought before him at all, and it being clear that he has not the exclusive jurisdiction of punishing offenses of this character, the use of the words shall ” and “ must ” are necessarily to be construed in accordance with the permissive portions'of the section, and the magistrate must be held to have the right to allow the proceeding to take the ordinary course relating to the punishment of misdemeanors rather than to exercise the extraordinary power attempted to be conferred by the provisions of the act in question. In fact, it does not seem to be claimed upon the part of the appellant that if the magistrate has not exclusive jurisdiction, but that his action is entirely protected by the other provisions of the law.

As has already been seen, the act proclaims certain things to be a misdemeanor. Courts have the general power to try all complaints for misdemeanors, and, consequently, have a right to try this complaint for a misdemeanor. The magistrate has the right to refuse to bring such person before him for the purpose of being convicted in that summary way for a misdemeanor, and to isssue his warrant and bring the person before him, and then to proceed in the manner which the Code of Criminal Procedure points out. It seems, therefore, to be clear, that if the person has been brought and examined before him, the magistrate, if the law in question is constitutional, has the right to impose the punishment, or, under the provisions of the Code of Criminal Procedure, to send the case for trial before the Special Sessions if the defendant so elect.

Under this view of the case, it is .not necessary to consider the question as to whether the magistrate would have the constitutional right to fine and imprison the defendant upon conviction before him under the act in question. There are other provisions of the act which are certainly unconstitutional, but it is needless, in view of the conclusion at which we have arrived, to decide the constitutional question.

We think, therefore, that the jurisdiction of the magistrate was not exclusive, and that the provisions of the Code of Criminal Procedure might apply and were made to apply by the action of the magistrate under the complaint filed before him.

The order should be affirmed.

Beady and Daniels, JJ\, concurred.

Order affirmed.


text:
    MECHANICS AND TRADERS’ BANK, Respondent, v. JAMES LOUCHEIM and CHARLES E. VIRTUE, Appellants.

      Positive allegations in an affidavit — when circumstances establishing personaljmwwledge must beset forth in support thereof— allegations of an affidavit as distinguished from those of a complaint.

    The fact that, the allegations of an affidavit are made positively, as apparently within the knowledge of the affiant, does not oblige the court to accept the statements as true in a case in which, from the situation of the parties, the presumption is that the affiant had not personal knowledge of the facts alleged; but it is its duty to reject the' allegations unless the affiant sets forth the facts and circumstances establishing his personal knowledge in the premises.
    The office of an affidavit is to set forth the evidence from which the court may draw conclusions of fact, while in the case of a complaint the conclusions of fact, and not the evidence of their correctness, are to he set forth.
    Appeal by tbe defendants from an order made at a Special Term held in the city of New York, and entered in the office of the clerk of the county of New York on the 20th day of November, 1889, denying the defendants’ motion to vacate an attachment issued in the above-entitled action.

      Franhlm Bien, for the appellants.

      A. J. Dittenhoefer, for the respondent.
   Van Brunt, P. J.:

It would be undoubtedly true that if the conclusions sworn to by the person who made the affidavit upon which the attachment in this case was granted had evidence to support them, the attachment would have been properly granted.

The office of an affidavit is to set forth the evidence from which the court may draw conclusions of fact, differing in this respect radically from a complaint which should only set forth conclusions of fact, and not the evidence of the correctness of these conclusions. The affidavit in question states that, on or about the 5th of October, 1889, with intent and design of defrauding creditors, the defendant Virtue purported to sell, assign and transfer to the defendant Loucheim for a nominal consideration all his right, title and interest in the entire stock, assets and property and business of the firm of Loucheim & Co., of which he was a partner. This allegation is simply a conclusion of the affiant, without there appearing in the affidavit a particle of evidence to support it. It is claimed that because the allegation is made positively, apparently upon the knowledge of the affiant, that the court is bound to act upon it. We do not think that this is the rule; upon the contrary, where, from the situation of the parties, the presumption is that the affiant has not personal knowledge of the facts alleged, it is the duty of the court to reject the allegation unless the affiant sets forth the facts and circumstances showing why he has personal knowledge. (Tim v. Smith, 93 N. Y., 91.)

The situation of the president of the plaintiff and his relations to the defendants were not such as that he would be likely to have personal knowledge of the transactions taking place between the defendants; and if he had such knowledge, he was bound to set forth how he had acquired it and what it was, so that the court could draw its conclusions, and not be obliged to accept the affiant’s.

The affidavits contain other conclusions as to the effect of the assignment made by the defendant Loucheim for the benefit of creditors, which may be true or not, dependent upon other facts which are not set forth in the affidavits. The only evidence of the truth of these allegations is the assignment itself, which is annexed to the papers; and if it should so happen that Loucheim had no individual debts, then the conclusion in the affidavit would be untrue. We are furnished with no evidence upon this point. Fraud is not to be presumed. If a party claims fraud, he must put before the court legal evidence of the fraud, and not merely his conclusions that fraud has been committed.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the attachment vacated.

Brady and Daniels, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and the attachment vacated.


text:
    BERTHA R. KENKELE and JOHN P. KINKEL, as Surviving Trustees under the Last Will and Testament of PHILIP A. KENKELE, Deceased, Respondents, v. THE MANHATTAN RAILWAY COMPANY and THE METROPOLITAN ELEVATED RAILWAY COMPANY, Appellants.

      Eminent domain — easements in a street sought to be acquired after the completion of an elevated railroad — measure of damages,
    In proceedings by eminent domain, instituted by an elevated .railroad company after tbe erection and completion of its road in a city street, tbe value of tbe easement sought to be condemned is to be determined as of tbe time of tbe trial. Tbe measure of damages in such a case is the difference between tbe value of the property to which tbe easements are appurtenant with tbe easements, and its value without them.
    Appeal by the defendants from a judgment rendered at a Special Term held in the county of New York, and entered in the office of the clerk of the county of New York on the 5th day of July, 1889, by which it was adjudged that the plaintiffs recover of the defendants the sum of $3,5J2, as and for the damages which the plaintiffs have sustained by reason of the construction and operation of the defendants’ railroad from February 4,1883, to February 4,1889, the time of the commencement of this action, and together therewith the costs. The defendants were, also enjoined from the further maintenance or operation of their elevated railroad in front of the plaintiffs’ premises situated on the westerly side of South Fifth Avenue, in the city of New York, unless within sixty days from the entry of the judgment, the defendants cause the plaintiffs’ easement in South Fifth Avenue, appurtenant to said premises, to be condemned and taken for railroad purposes in the manner prescribed by law, or to be acquired as hereinafter mentioned ; and by which it was further provided that no injunction should issue restraining the defendants from maintaining or operating their elevated railroad, except upon condition that the same should be wholly inoperative, unless the plaintiffs shall have tendered to the defendants, within fifty-five days from the entry of judgment, a conveyance and release of all the easements or other interests in said South Fifth Avenue appertaining to the premises mentioned in the complaint, taken, appropriated or interfered with by the defendants, or either of them, duly executed by the proper parties, and the defendants should have failed and refused to accept the same and pay or tender to the plaintiffs, in behalf of the parties executing such release, the sum of $6,852.50, with interest from the date of the judgment.

      Henry T). Sedgwick, Jr., for the appellants.

      E. W. Tyler, for the respondents.
   Van Brunt, P. J.:

Most of the questions presented upon this appeal have been considered in cases which have been heretofore argued, and conclusions arrived at adverse to the claims made by the appellants.

It is claimed that the learned judge who presided at the trial adopted an erroneous measure of damages and admitted incompetent evidence upon the subject of damages. It seems to us that in the discussion of the rules applicable to the question of damages in these cases the peculiar position of the defendant is too often lost sight of.

If the defendant before or immediately after the building of its road had taken the necessary measures provided by law for the acquisition of the easements necessary for the maintenance of its structure and the operation of its road, undoubtedly, the measure of damages would have been the value of those easements at that time. But, instead of pursuing this course, they have, without authority, seized upon these easements, maintained their unlawful structure and operated their road utterly regardless of the rights of those upon whose property they were trespassing, and without showing any disposition to acquire the title to that which .they had seized.

It became necessary for the owners of these easements to appeal to the courts for protection from this wanton invasion of their rights, and the courts would have been justified, under these circumstances, in compelling the absolute cessation of the operation of these roads until they had taken measures to condemn to their use the property which they had already seized upon. Instead of doing this, because of the great public inconvenience which such a course would entail, they have, in these proceedings, proceeded to determine what would be a fair compensation to be paid for these easements; upon the payments of which, and the annual damage already sustained, the operation of the road might continue.

Under these circumstances, of what time is the'value of these easements to be ascertained % Clearly as of the time of the trial. The right to recover for the damage theretofore done rests tqDon a different basis. The permanent damage is to be determined as of the time of the trial. If proceedings under the statute were initiated now, the present value of these easements would necessarily be allowed, not what their value was when the road was constructed. The defendants could have had this latter rule of damages if they had commenced their proceedings to acquire title when they began the construction of their road. They have not done this, but have refused to pay until compelled to do so by the strong arm of the law, and hence, as they only pay now, they must pay what the property taken is wqrtli now.

The evidence as to the value of these easements is necessarily, from the very nature of the case, somewhat conjectural, and stringent and strict rules are not to be applied where they would dejmve an owner of all ¡woof of damage, as we are dealing with the damage done by a trespasser; and while damages should be proven with reasonable certainty the rights and interests of the owner of these easements should not be sacrificed. TIow are we to andve at the value of these easements taken by the defendant ? To the plaintiffs they are of no value except because of the enhanced value which they give to the property they own fronting upon the streets. By themselves they are worthless, have no intrinsic value. Then what more certain evidence of their value can be given than by proof of what the property to which they are appurtenant would now be worth with the easements and what it is worth without these easements. But it is said that this rule is contrary to that laid down by the Court of Appeals. If the Court of Appeals have held that such evidence in these cases is incompetent, then we know of no way in which the plaintiff can prove the damages to which the law says he is entitled, and the amount of such damages must be left to be guessed at by the court or jury. As we have seen, the easements have no value severed from the abutting land except to the defendants. They have been severed by the defendants from the abutting land. What damage is the owner of this abutting land entitled to receive as a condition of allowing the trespasser to enjoy the fruits of this trespass % Clearly the amount by which his property is at the time of the trial injured by the trespass. The trial is the time at which the estimate should be made and its damages fixed. We do not think that the Court of Appeals has as yet condemned the rule; until they do-, justice seems to require that it should be followed.

It is claimed that the plaintiffs only had a life estate and coiild not recover beyond that. An examination of the will under which they hold shows that they held the fee with a power of sale. They, therefore, can convey to the defendants a title to these easements which will be binding upon the remainderman. It does not seem • necessary to consider the other points raised in the case, as they have already been passed upon, as has been stated in other cases.

The judgment should be affirmed, with costs.

Brady and Daniels, JJ., concurred.

Judgment affirmed, with costs.


author: Van Brunt, P. J.: Daniels, J.:

text:
    JOSEPHINE M. McBRIDE, Appellant and Respondent, v. ROBERT P. McBRIDE, Respondent and Appellant.

      Alimony in an action for diroi'ce, pending an appeal — a judgment appealed from is not a final judgment— Code of Oiml Procedure, sec. 1769.
    After final judgment in an action for divorce no allowance can be made for alimony and counsel fees; but a judgment, which is appealed from by a husband, the defendant, who gives security to perfect his appeal, obtains a stay of proceedings, and refuses to pay anything under said judgment for the support of the plaintiff or her child, is not a final judgment within the meaning of this rule.
    A judgment becomes final only when there is no longer any right to interfere with the same, or to review the same as matter of right. >
    Under the provisions of section 1769 of the Code of Civil Procedure the court is authorized, during the pendency of such an appeal, to make orders directing the husband to pay such sums as may be necessary to enable the wife to prosecute or defend the action, and to live pending the appeal.

      Beadleston v. Beadleston (103 FT. Y., 402) followed.
    An action is pending as long as an appeal taken therein is undetermined.

      Appeal by the plaintiff from so much of an order made at a Special Term held in tbe county of New York, and entered in the office of the clerk of the county of New York on December 7, 1889, as denied a motion for an allowance and counsel fees, upon the ground of a want of power to grant the same; and by the defendant from so much thereof as granted leave to plaintiff to apply to the justice who granted the final judgment in this action for such relief as might be just or proper.
    The order was made upon a motion for an allowance of alimony and counsel fees pending the defendant’s appeal from a judgment entered in this action on August 9, 1888, against the defendant for a separation from bed and board, with an allowance of $5,000 per year for the plaintiff’s support and $1,000 a year for that of the child of the parties to this action.

      W. Bourhe Ooehrcm and Samuel G. Adams, for the plaintiff.

      Preston Stevenson, for the defendant.
   Van Brunt, P. J.:

On the 9th day of August, 1889, the plaintiff recovered a judgment, after a trial, upon which the defendant appeared and defended, against the defendant for a separation from bed and board, with an allowance of $5,000 a year for her support and $1,000 a year for that of the child of the parties. The defendant appealed therefrom, and it is stated by the plaintiff1’s attorney that the defendant gave the security required by law to perfect his appeal and obtain a stay, although such fact does not appear by the papers printed upon this aj>peal. An undertaking appears but no order appears fixing the security.

The defendant has refused, since the judgment, to pay anything for the support of the plaintiff or her child. Prior to the rendition of the judgment he had been paying alimony. The plaintiff thereupon made an application at the Special Term, upon an affidavit showing these facts and also the fact that an allowance for counsel fees was necessary to enable her to defend the appeal and to compensate her counsel for the services to be rendered therein, for an allowance for the support of herself and her child pending the appeal, and also for an allowance with which to pay counsel.

This application was denied by the learned justice at Special Term, lie holding that under the rule laid down in Erkenbrach v. Erkenbrach (96 N. Y., 456), the court had no power to make such an order, and gave leave to apply to the judge who had made the final judgment. From that part of the order denying the motion the plaintiff appeals, and from that part of the order granting leave to .apply to the judge who gave the final judgment the defendant appeals.

The learned counsel for the plaintiff .urges that, if the court can find no authority in the law to grant his motion, because of the manifest hardship of his case, it should assume the place of the lawmakers and supply the omission of the legislature.

If the decision of the appeal of the plaintiff in her favor depends upon the assumption of any such power it should certainly fail, notwithstanding the fact that in the past courts have, and, probably, in the future, will, in direct hostility to the whole spirit of our government, arrogate to themselves the right to legislate where the hardships of the case seem to demand it.

The decision in the court below was based upon the case of Erkenbrach v. Erkenbrach (96 N. Y., 456) and Kamp v. Kamp (59 id., 212). In those cases it was held that after final judgment no allowance ■can be made for alimony and counsel fees, and this is concededly the rule. But in the case at bar there never has been a judgment which has become final in the manner in which the judgments in the cases cited had become final. It is true a judgment has been ■entered, but it has never become final, as an appeal is pending from it, and it may be reversed or modified. A judgment becomes final only when there is no longer any right to interfere with the same •or review the same as matter of right. Costs are often made to depend upon the final event of the action. This clearly means the final determination of the action by which the rights of the parties .are irrevocably fixed. As long as there is any uncertainty as to the final result, because of a pending appeal, the judgment ordered at the trial is not the final result of the action. If a judgment is a final judgment, it is the final result of the action and it ends the action. An action is not ended as long as an appeal, of which the appellate ■court has jurisdiction, is pending. The very use of the words “ final judgment” shows that it is the judgment which fends all the proceedings.

The provisions of the Code, therefore (§ 1769), which authorizes the court, during the pendency of the action, to make orders directing the husbands to pay such sums as may be necessary to enable the-wife to prosecute or defend the action, etc., confers ample power upon the court to act until the final determination of the action. It is as necessary for the wife to live pending an appeal and to be-able to defend an appeal as it is to be able to try her action and to-live until the trial; and when the legislature gave the court power to act during the pendency of the action, it was undoubtedly intended that this power should exist until the final determination of the action.

This right in the court is expressly recognized in the case of Beadleston v. Beadleston (103 N. Y., 402). In that case an allowance for past services was granted, and this order the court reversed, the court saying: “ The purpose of the statute is to furnish the wife means to-carry on her action or defend the same during the pendency thereof. The allowance looks to the future. There can be no necessity for an allowance to make a defense which has already been made or solely to-pay expenses already incurred.” In the case cited it did not appear, nor was it claimed that any further sum was necessary to carry on her defense. Her sole claim was that she needed the money to pay expenses theretofore incurred, and the sole ground upon which the order was reversed was, as already stated, that the court had no power to make allowances for past expenses. It is plainly intimated, we-might almost say stated, that if- this allowance had been made for future expenses under the circumstances of that case, the court would have had jurisdiction to make the order. Whatever, if anything,, may have been said in Winton v. Winton (31 Hun, 290) and Fagan v. Fagan (39 id., 531), cannot override the plain intentions of the Court of Appeals in the case of Beadleston v. Beadleston. As-long as the judgment is not a final judgment, the rules laid down in Erkenbrach v. Erkenbrach and Kamp v. Kamp have no application..

It seems to us that, pending an appeal, the action is pending and express authority is given to act. The contrary view would lead to-the result that, if the husband appeals and is able to give security to procure a stay upon a judgment in favor of the wife, the wife-would be worse off than she was before she had successfully established her cause of action.

By section 1327 of the Code the defendant, upon giving security as required by that section, is entitled to a stay upon the judgment. against him as a matter of right, and the court cannot enforce the judgment; and if the power to give alimony, etc., pending the action, as prescribed by section 1769, ends when a judgment is entered, although an appeal be pending, then, by giving security, the wife may, until the Court of Appeals have finally passed upon the case, be deprived of all the fruits of success. Such was not the intention of the legislature and such is not its language.

An action is pending as long as an appeal is undetermined; and the right given by section 1769 to make these allowances during the pendency of the action clearly contemplated the fact that, as long us the litigation continued so that the wife could not reap the results of a judgment in her favor, the court should have the right to protect her interests. The appeal of the defendant is without merit; no right of the defendant is in any way interfered with.

The order appealed from, should be reversed, with ten dollars costs and disbursements, and the motion remitted to the Special Term for further action.

Daniels, J.:

I concur on the authority of the decision made by the Court of Appeals in Beadleston v. Beadleston, conceding, in its effect, that during the pendency of an appeal from the judgment this court may, on motion of the wife,' provide her with necessary alimony and expenses to furnish her with support and defray the expenses of resisting the appeal.

Brady, J., concurred.

Order reversed, with ten dollars costs and disbursements, and the motion remitted to the Special Term for further action.


author: Brady, J.:

text:
    PAULINE HECKEMANN, Plaintiff, v. JOHN B. YOUNG, Defendant, Impleaded, etc.

      Judgment entered against two partners set aside as to one for irregularity — rohcnflie entire claim, is merged in the judgment remaining entered against the one partner
      — Code of Civil Procedure, seos. 738, 1278.
    In an action brought to recover a sum of money against two copartners the defendants appeared by separate attorneys; one of them withdrew his answer and consented to the entry of judgment by default; the other being already in default, because of his failure to answer, judgment was entered against both defendants, which was subsequently vacated as to the latter because of irregularity, and he was given twenty days within which to answer, which he did, setting up that a judgment had been entered in the action against his copartner, and that, thereupon, the debt which the action was brought to recover against him and his copartner, as joint-debtors, became merged in that judgment and the same was a bar to any further proceedings.

      Held, that the facts set forth in the answer established a merger of the claim in the-judgment entered against the one partner.
    That section 788 of the Code of Civil Procedure was expressly limited to the case of' two or more defendants when the action could be severed, and did not contemplate the case of joint-debtors.
    That section 1278 of the Code of Civil Procedure had no application to this case.
    Exceptions ordered to be heard in the first instance at the General Term, after a decision dismissing the complaint made at a trial at the New York Circuit.
    The following opinion was delivered upon a reargument ordered by the General Term. (For the first decision on this appeal, see 22 N. Y. St. Kep., 600.)

      Gilbert R. Hawes, for the plaintiff.

      A. E. Woodruff, for the defendant Young.

       See Harbeck v. Pupin, page 835.

   Brady, J.:

This action was brought to recover the sum of $5,892.28 witlr interest from May 1, 1886, due from the defendants as copartnersBoth of the defendants appeared, but by separate attorneys, the complaint having been amended in the meantime. The defendant Adams on the 19th of January, 1881, withdrew his answer and consented to the entry of judgment by default. The defendant Young already being in default for his failure to answer, judgment was entered against both defendants on the 20th of January, 1887. Subsequently, and on the 2d of May, 1887, an order was made vacating the judgment as to Young, and giving him twenty days to-answer, and it would appear from the language of the order that there was some irregularity in the entry of the judgment, inasmuch as the order directs that the judgment be vacated with ten dollars costs to the defendant Young, which would not be the case where the motion to vacate was predicate of an appeal by the defendant to the favor of the court.

The defendant Young then set lip by way of answer that a judgment had been entered in this action against the defendant Adams, and that thereupon the debt which the action was brought to recover against him and Adams as joint-debtors became merged in that judgment, and was a bar to any further proceedings. The question presented is whether the answer thus described is, as claimed, a bar to this action, the learned counsel having so contended upon his motion to dismiss the complaint when the plaintiff rested. The complaint was dismissed, the learned judge entertaining this view, but directing the plaintiff’s exceptions to be heard in the first instance at the General Term. In order to overcome the effect of the answer interposed as a bar to any further proceedings section 738 of 'the Code has befen invoked by the plaintiff, and the opinion of Chief Justice McAdam in Kantrowitz v. Kulla (13 Civ. Pro. P., 74), is relied upon. The learned chief justice regards the section just mentioned as a substitute for the former cognovit by which a defendant who had no defense gave to the plaintiff a written confession, and then proceeds to express his views to the effect that there is no cogent reason why the new rule introduced by section 1278 as to confessions by one of several joint-debtors should be limited in its application to confessions technically so-called, and declared that section 1278 applied to the case then in hand, and by force of its provisions judgments against one joint-debtor upon his offer of judgment did not merge the debt or bar the creditor against the other debtor not included in the offer of judgment.

The learned justice seems to have been misled by his interpretation of section 738. That provision is expressly limited to two or more defendants tohen the action cam, be severed. It does not, therefore, contemplate joint-debtors. If there are two or more defendants and the .action can be severed, an offer may be made, etc. Besides that, when a confession of judgment is made, it must be made under the forms prescribed by the statute, and it is a proceeding wholly separate and entirely different from an offer made under the provisions of section 738.

Section 1278, which it was sought to combine with section 738, provides that when one or more joint-debtors may confess a judgment for a joint debt where all do not unite in the confession, the judgment must be entered and enforced against those who confessed it; and it is not a 'bar to an action against all the joint-debtors upon the same demand. But the confession must conform to the requirements of section 1274, namely, a written statement signed by the defendant, verified, stating the facts out of which the debt arose, and that the same is justly due or to become due; and if given for the purpose of securing the plaintiff against a contingent liability, it must concisely state the facts constituting the liability.

"We have, therefore, presented as bearing upon the question suggested, the fact that the judgment entered against the defendant Young was improperly entered and vacated, and time given to answer; and offer of judgment provided for by section 738 which does not relate to joint-debtors, and a so-called confession which is invalid for the reason that it does not comply with the statute governing such acts.

The consequence is that the plaintiff took a judgment against one of two joint-debtors and the debt was merged in the judgment. His error was in entering the judgment until he had the right to do so against the other defendant, when he might have used the offer under section 738, in conjunction with a default or a verdict or the report of the referee as to the other defendant. He did not do so, and the consequence is, on well established authority, that tlie judgment merged the claim.

In Candee v. Smith (93 N. Y., 352) it was distinctly held that when the holder of a joint promissory note, prior to the Code (§ 1278), took judgment by confession for the whole amount against one of the makers, the liability of the other makers was discharged by the judgment, the note as to the others having been merged therein. In that case the court recognized the rule stated as to joint-debtors •and said that the current of authority had been for a long course of years uniform and unbroken.

When this case was formerly considered it was supposed that the application to open the judgment as to Young was addressed to the merciful consideration of the court, resting upon no right, therefore, •and that it was ungracious after the favor liad been extended to the ■defendant Young that he should set up as a defense the existence •of the judgment. But a closer examination of the record shows this point to be erroneous, and that the vacation of the judgment and the ■leave to answer left the rights of the defendant Young wholly intact.

For these reasons the exceptions should be overruled and judg.ment ordered for the defendant, with costs.

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

Exceptions overruled and judgment ordered for the defendant, •with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY, Appellant.

      .Police powers — right of the legislature to prescribe the method of heating cars — the acts relating thereto cover railroads of fifty miles, although homing less than that number in this State.

    'Tlie provisions of chapter 616 of the Laws of 1887, as amended toy chapter 189 of the Laws of 1888, which, toy the terms of. the act, do “not apply to railroads less than fifty miles in length,” cover a railroad company in this State having fifty miles and upwards of road in use, although fifty miles of such road are not within the limits of this State.
    A railroad corporation which owns and uses the territory of this State for the purpose of traffic, thereby subjects itself to the laws of this State and to its police regulations.
    Under the police powers vested in the legislature it has authority to prescribe the method of heating passenger cars upon any steam railroad doing business within the State.
    Appeal by tlie defendant from an interlocutory judgment, entered in tlie office of tlie clerk of tlie county of New York on tbe 5th day of June, 1889, after a trial of the issues of law raised by a demurrer-interposed to the complaint in this action.

      JZ. G. Bobmson, for the appellant.

      W. A. Poste, for the respondent.
   Brady, J.:

This action was brought to recover penalties to the amount of $7,000, for alleged violations of the provisions of chapter 616 of the Laws of 1887, as amended by chapter 189 of the Laws of 1888. The defendant is a corporation organized and existing under the laws of the State of Connecticut. By an act of our legislature the company was authorized to extend its line to the city of New York, and has run its cars for many years into the city over the tracks of the New York and ILarlem Railroad Comqiany, and its passenger trains run over twenty-six miles of railroad in this State. The Acts of which violation is complained relate principally to the heating of steam passenger cars, and declare that:

“ It shall not be lawful for any steam railroad doing business in this State, after the first day of November, eighteen hundred and eighty-eight, to heat its passenger cars, on other than mixed trains, by any stove or furnace kejit inside the car or suspended therefrom,, except it may be lawful, in ease of accident or other emergency, to temporarily use such stove or furnace with necessary fuel. Provided, that in cars which have been equipped with apparatus to' heat by steam, hot water or hot air from the locomotive, or from a special car, the present stove may be retained to be used only when the car is standing still. And provided, also, that this act. shall not apply to railroads less than fifty miles in length, nor to ■ the use of stoves of a pattern and kind to be approved by the railroad commissioners, for cooking purposes in dining-room cars.”

And by the amendment of 1888 it was provided that:

“ In special cases, the board of railroad commissioners may extend the time for a period not exceeding one year from November first, eighteen hundred and eighty-eight, for any steam railroad doing business in this State, to heat its passenger cars by any stove or furnace kept inside the ear or suspended therefrom.
“ § 3. This act shall take effect immediately.”

The defendant failed and refused to comply with the statute, and' after the 1st day of November, 1888, heated, and continues to-heat, its passenger cars run daily as aforesaid on said railroad, both on through trains and over that part thereof lying within the State of New York on other than mixed trains, by stoves and furnaces-kept within said cars, as the regular and usual method of heating said cars, and in cases other than those of accident and other emergency.

And it appears that the railroad commissioners have not extended the time of the defendant to heat its passenger cars by stoves or furnaces. The complaint contains all the necessary allegations to present the claim urged against the defendant, namely, the penalties-incurred by the alleged violations of the statute. The defendant demurred upon the ground that it appeared upon the face of the' complaint that it did not state facts sufficient to constitute a cause of action. The defendant, in maintenance of the demurrer, insisted that the act was not intended to apply to cars on railroad lines-without the State, and that it would be unjust to compel the defendant to comply with its provisions for the reason that a. construction was not to be given to a statute which would lead to unjust or inequitable results, and, further, that the defendant was an interstate railroad, and if the construction of the act was doubtful, it was to be construed in its favor. The defendant, as is-the wont of similar organizations, struggled with great zeal to avoid the alleged responsibility, but without success. The various propositions mentioned, although ably presented on defendants’ behalf, were overruled at Special Term, and from that decision this appeal was taken.

It is hardly necessary to say that the statutes under consideration were enacted in order to decrease the number of accidents resulting' in the destruction of human life which had occurred under the system of car heating by stoves and furnaces, and which was justly condemned by public opinion. Indeed, it may be said that a substitute of some kind insuring greater safety was imperatively demanded. It is not necessary to cite authorities to show that evils-theretofore existing may be recalled and employed as factors in the effort to determine the intent of particular legislation; and if it be obviously directed against such evils, it is fairly to be presumed that the remedy provided was designed to overcome them. (See People ex rel. Peake v. Supervisors, 43 N. Y., 132; Ayers v. Lawrence, 59 id., 195; Hudson Iron Co. v. Alger, 54 id., 175.) Nor can there be any question about the right of the legislature to exercise its police power especially where it relates to the preservation of life. As was said by the United States Supreme Court (Slaughterhouse Cases, 16 Wall, 62): “ This (police) power is, and must be from its very nature, incapable of any very exact definition or limitation. Upon it depends the security of social order, the life and health of the citizen, the comfoi-t of an existence in a thicklyfettled community.” And the court, cites, with approval, the case of Thorpe v. Rutland and Bennington Railroad (27 Vt., 149), which declared: “ This police power of the State extends to the protection of the lives, limbs, health, comfort and quiet of all persons, and the protection of all property within the State.”

And this police power gives a perfect right to the legislature to impose restraints and burdens upon persons and property in order to •secure the general comfort, health and prosperity of the state and its •citizens, no question about it ever was, or, upon acknowledged' general principles, ever can be made, so far as natural persons are •concerned. (Thorpe v. R. and B. R. R. Co., 27 Vt. 149.)

Indeed, all property is held, subject to the general police power of the State to regulate and control its use, to secure the general safety •and the public welfare. (Bertholf v. O'Reilly, 74 N. Y., 509; Munn v. Illinois, 94 U. S., 113.) Having arrived at these conclusions, the only question for consideration is, what was intended by the legislature in naming the limit of fifty miles as contained in the statute. It is justly observed by plaintiff’s counsel that a road fifty miles in length seldom, if ever, had a sleeping car attached to its trains. He •says: “ The terror that has been felt for the car stove is usually associated with the sleeping car, or with long trains of ¡passenger ■coaches. On short lines, used only for local traffic, there are no long trains of coaches to be telescoped into each other.

The reasons are most abundant, however, in favor of the intention ■of the legislature to embrace within its acts all cars used by railroad companies in this state having fifty miles and upwards of road in use although not all within its limits. A reference to the statute itself seems to be conclusive upon that subject. Section 1 provides •expressly that “ it shall not be lawful for any steam railroad doing business in this state,” etc.

It is impossible for tbe defendant to escape from the truth and effect of the statement that it is doing business in this state. It has-stations here from which its trains start and to which they return, and it is absolutely necessary, in order to accomplish the object of its present business, as declared, that its trains should go through apart of the state in order to carry persons to their destination out of the state, and beyond fifty miles, who take their places in its coaches-in the city of New York. And it was the intention of the legislature that these persons, especially if residents of the state, who leave it through the instrumentality of- defendant’s cars, should be afforded the protection which is given to all- other passengers traveling within the state, by compelling the use of a heating apparatus other than stoves and furnaces, no matter what the distance may be, provided it extend beyond fifty miles. It was thus designed to require-the security of the passenger, his greater safety, to exist at the start, and thus establish a protective system which might not otherwise be adopted. The language of the act to which-attention has been called is, therefore, very emphatic, very comprehensive, and very conclusive — it shall not be lawful for any steam railroad doing business in this state,” etc.

The defendant does business in this State as already suggested. Its business, starting from another State, is to reach its depot here- and land its passengers, for which service it receives compensation,, and also to receive passengers at its station here to be carried beyond the State line, and for a compensation proportioned, no doubt, to the= distance its trains travel over the area of our state.

It seems unreasonable to argue that a person resident in this State, who becomes a passenger on one of defendant’s trains to go to a-point beyond its limits, should not have his safety secured, as far as-may be, by the enforcement of the statute considered. If the railroad corporation seeks to enter the State and uses its territory for the pm-pose of trafile it necessarily subjects itself to the laws of the State, and, therefore, if a road more than fifty miles in length, to the provision that when it starts it shall be in such a condition as' our law requires. There can be no doubt that such a statute, expressive of such laws, should be liberally construed for the public good, and, more than that, the railroad company should cheerfully comply with its requirements. The defendant is doing business, it-must also be said, within this State only by permission of the State, and, of course, such business may be regulated in its operation yithin the State or driven from it by the act of sovereignty..

The acts considered are in their nature police regulations, and are not an infringement of interstate commerce or of the Federal Constitution. It is the exercise of a power intended to promote the .safety and comfort of our citizens and traveling public. It is reasonable and salutary, tending to increase the passenger traffic -over the defendant’s road, and therefore, benefit it, and it embraces a subject as to which Congress had made no provision. There can be no doubt that in such a case the State may adopt the necessary measures by legislation. (See Sherlock v. Alling, 93 U. S., 99; Smith v. Alabama, 124 id., 465; Nashville, etc., R. R. Co. v. Alabama, 128 id., 96.)

It may be that this somewhat elaborate consideration of the subject is a waste of time, but the various propositions of the learned counsel of defendant, and respect for him, have rendered it necessary.

For these reasons the judgment should be affirmed, with costs.

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

Judgment affirmed, with costs. .


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    THE FIRST NATIONAL BANK OF JERSEY CITY, Respondent, v. ARCHIBALD LAMON Appellant, Impleaded, etc.

      Annual report by a corporation — unnecessary where pi’oceedings home been initiated for its dissolution.

    After tlie commencement of proceedings for the dissolution of a corporation, on an application made by the trustees thereof to the attorney-general, followed by an action for that purpose commenced before the expiration of the twentieth day of January, until which time the trustees thereof had the right to file the annual report required by law, the trustees are not required, in order to shield themselves from personal liability for the debts of the corporation, to make the annual report showing the financial condition of the corporation.
    ‘The case is brought by such proceedings within the general principle that the report is not necessary where the corporation has ceased to do business and is actually dissolved.

      Appeal by tbe defendant Archibald Lamon from a judgment, ■entered in tbe office of tbe clerk of tbe county of New York on tbe 5th day of July, 1889, in favor of tbe plaintiff and against tbe the defendant Archibald Lamon, for tbe sum of $1,569.99, after a trial before a referee.
    Tbe referee found that tbe corporation, known as tbe Atlantic Steam Engine Works, created under tbe manufacturing act of 1848, of which tbe defendants were trustees, did not, within twenty days from tbe 1st day of January, 1887, make an annual report as required by law, and did not, within said time, file tbe same, or ■cause it to be filed, in tbe office iff tbe clerk of tbe county of Kings. Tbe referee also found:

      Eleventh. That on the 29th day of December, 1886, an application was made by Alexander T. Arthur, Archibald Arthur and William T. Arthur to tbe attorney-general to bring an action to dissolve tbe corporation; that tbe bearing upon tbe appbcation was adjourned until tbe 6th day of January, 1887, when a bearing was bad upon such application, and on or about tbe 15th day of ■January, 1887, tbe attorney-general commenced an action in tbe Supreme Court, in the name of the People of the State of New York against tbe Atlantic Steam Engine Works, to dissolve such corporation, and on tbe 18th day of January, 1887, an order was granted by a Special Term of the Supreme Court, returnable January 20, 1887, that said company show cause why a receiver should not be appointed; and that thereafter, and on or about tbe 7th day of March, 1887, in such action, an ordei; was entered appointing Joseph Annin receiver of tbe property of said corporation, with the usual powers of such receiver.

      W. J. Townsend, for tbe appellant.

      Hamilton WalUs, for tbe respondent.
   Brady, J.:

This action was brought against tbe defendant, as one of tbe trustees of tbe Atlantic Steam Engine Works, to recover a penalty for tbe failure to file tbe annual report in January, 1887.

Tbe defense interposed was two-fold: First. That tbe defendant was not a trustee during tbe time necessary to charge him in the action. Second. That the trustees were under no obligation to file a report in January, 1887. It appeared that the defendant was-hired by the company as foreman in 1862, and thereafter was elected as a trustee, his last election taking place in 1880, after the date of one year, from which time he had nothing to do with the management of the affairs of the corporation, and never attended any of its meetings, and was never informed or notified of any of them, nor was he consulted by the other trustees; and, indeed, it may be said that there is no proof that he did any act or assumed any authority as trustee after his term of one year, by virtue of the election in 1880, had expired, except his opposition to the proceedings instituted by the attorney-general in 1886 to dissolve the company, when in an affidavit for the purposes of such opposition he stated that he was a trustee of the company.

It also appeared that the company stopped doing business about the 10th or 15th of December, 1886, their shop being closed and locked, the men discharged, from which time no work or business of any kind was done by it or its representatives. On the 29th of December, 1886, an application was made by three of the trustees to the attorney-general to bring an action to dissolve the corporation. ■ The hearing upon that proceeding was adjourned until the 6th of January, 1887.

On the fifteenth of that month an action was commenced in this court by The People to dissolve the corporation, and on the eighteenth of January an order was granted, returnable on the twentieth, for the company to show cause why a receiver should not be appointed, and that order contained a temporary restraining clause prohibiting all creditors of the corporation from issuing executions against the defendant’s property, and on the 17th of March, 1887, an order was entered appointing a receiver of the property of the company, with the usual powers in virtue of these proceedings.

"It may be that, notwithstanding the passive character of the defendant’s connection with the company as trustee, his opposition to its dissolution, attended by the statement that he was a trustee, would be sufficient, under the authorities, to subject him to responsibility as such, although it is by no means certain that such would be his legal attitude. The question is not discussed, however, because for the purpose of this appeal it is unnecessary.

The proceedings instituted in the month of December, 1886, by the acting trustees, to dissolve the corporation, applying to the attorney-general, followed as they were by the action commenced before the expiration of the twentieth of January, until which time the trustees had the right to report, and the insertion in the order to show cause of the prohibitory clause already suggested, was, at least, the initiation of a proceeding to wind up the corporation, and was, in effect, a prohibition against any business transaction or any act on the part of the trustees indicating a continued existence, or an intention to transact any business. After the commencement of such proceedings to require the trustees, in order to shield themselves from personal liability, to make a report, the design of which is to advise the public of the condition of the association with a view to business transactions with it, seems to be at variance with the whole purpose and design of the statute, and within the general principle that the report shall not be necessary where the corporation has ceased to do business, and is actually dissolved.

It seems to be clearly within Van Amburgh v. Baker (81 N. Y., 46), and certainly within the reasoning of that case. There the defendants were elected trustees of a manufacturing corporation, which, before the expiration of the year, had become insolvent and discontinued its business, and passed a resolution that the corporation should cease to transact business, resigning their offices, to take effect at the end of that term, after which they did not act as trustees. The court held that they were not liable, as trustees, for the failure to file the annual report. It is also within the principle of the Huguenot National Bank of New Paltz v. Studwell (74 N. Y., 621), where it was held that where a receiver was appointed before the expiration of the twenty days in which the trustees were required to report they were not liable to the penalty imposed for a failure to make and file the same.

It was held, also, in Bruce v. Platt (80 N. Y., 379), that when the company had ceased to exist, in fact, it was in a sense dissolved within the meaning of the act as regards creditors. And reference is made to the case of the Bank of Poughkeepsie v. Ibbotson (24 Wend., 473), where Nelson, Ch. J., said, in discussing the act of 1811, which imposed upon persons composing the company an individual responsibility for its debts : “ It lias been repeatedly held that the dissolution here spoken of in order to subject the shareholder may be shown short of judicial proceedings for that purpose. Having ceased to act, and being without funds and indebted, it is to be deemed dissolved so far as to give the remedy to the creditor.”

The court says in Bruce v. Platt, referring to the case cited, that under the act of 1811 the liability of the stockholder began upon dissolution, and that occurred the moment the corporate property was disposed of and the corporation ceased to act. Under the act of 1848 the obligation of the company to report as to its affairs ceases upon the happening of the same event, viz., upon dissolution effected by the same cause for it then is carrying on no business and is deprived of the means of carrying it on.

In Kirkland v. Kille (99 N. Y., 390), it appeared that the company was formed in 1874, and that it incurred no debts after November, 1875, did no business after that time, and that everything that was done after that by the company, after the middle of January, 1875, was in connection with the foreclosure proceedings that had been taken about that time, and after that all that was done was to foreclose that mortgage and sell out the property of the company. ■ It is true that in that case it was declared that there was no evidence that any other than formal acts were performed by the company in furtherance of the objects of its organization. But it was proven, without contradiction, that it never carried on any business. Nevertheless, it was regarded as dissolved, and it was considered that, under the circumstances, no report in 1876 was required of the company.

The court said in that case: “ The statute invoked by the plaintiff has often been declared to be highly penal and not to be extended by construction. We think the ease made by him cómes neither within its phraseology nor its intent.”

Here a kindred case is presented. The action of the trustees in December, 1876, was declarative of an intention to abandon the further transaction of any business, made emphatic by asking the attorney-general to consummate that intention by an absolute legal dissolution ; and by that act the corporation surrendered its existence to the people of the state, a surrender accepted by the institution of proceedings for its dissolution, which were begun during the twenty days in January, and subsequently accomplished. It certainly never was in the contemplation of the legislature, and, therefore, not within the intention of the act, that trustees, under such circumstances, would be bound to make a report when the dissolution of the company was virtually accomplished by the circumstances detailed.

The judgment should be reversed and new trial ordered, with costs to appellant to abide event.

YaN BetjNt, P. J., and Beady, J., concurred.

Judgment reversed and a new trial ordered, with costs to appellant to abide event.


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    GEORGE MUNRO, Respondent, v. ORMOND G. SMITH, GEORGE C. SMITH and CORA A. SMITH, Appellants.

      Trade-ma/rk — in a figure, some of the peculicwities of wMali are used in each of the frontispieces of each of a smes of publications.

    The use of a figure, in the pictures used as the frontispieces of the stories in a series of publications, certain peculiarities of which figure are presented in each of. the different scenes illustrated by each of such frontispieces, does not create a trade-mark or exclusive right to the use of the figure.
    Appeal by the defendants from a judgment, entered in the office of the clerk of the county of New York on the 10th day of April, 1889, adjudging that an injunction contained in the interlocutory judgment theretofore entered in this action be continued forever, and that the plaintiff recover of the defendants the sum of $1,526.41.

      A. L. Sessions and George H. Adams, for the appellants.

      Roger Foster, for the respondent.
   Van Brunt, P. J.:

This action was brought to restrain by injunction, the use of a certain picture as well as the phrase Old Sleuth, the Detective ” or the word “ Sleuth.”

Upon the trial it was held that the plaintiffs were not entitled to the exclusive use of the name Old Sleuth,” and that the defendants were entitled to its use. The court also held that the picture of Old Sleuth upon -the first number of the “ Old Sleuth Library, ” published by the plaintiff, was .a trade-mark of the plaintiff, and that be bad tbe exclusive right to tbe use of sucb picture; and that tbe acts of tbe defendants in publishing tbe said picture constituted an infringement of tbe plaintiff’s trade-mark, and a reference was ordered to ascertain tbe damages sustained by tbe violation of tbe trade-mark in tbe picture. And from tbe final judgment entered upon tbe coming in of tbe referee’s report this appeal is taken. Tbe main question presented, then, is : Had tbe plaintiff a trademark in tbe said picture ? A trade-mark has been defined to be a symbol, emblem or mark which tbe tradesman puts upon or wraps or attaches in some way to tbe articles be manufactures or causes to be manufactured for tbe purpose of distinguishing them from tbe productions of other manufacturers.

There is no question but that tbe plaintiff could have obtained a trade-mark in tbe picture in question for tbe purpose of distinguishing tbe series of books which be chose to call tbe “ Old Sleuth Library.” But it does not appear upon an examination of these publications that tbe picture in question was in any way intended to be a trade-mark or a symbol distinguishing this particular library. It is spoken of in tbe complaint as an illustration — as the frontispiece of tbe story; and in tbe subsequent publications it would appear that some peculiarities of this picture were represented by one of tbe figures among many appearing in pictorial illustrations of scenes depicted in these publications.

We fail to see upon what theory a trade-mark can arise out of tbe circumstances which are here mentioned. Tbe illustrations were different in character, representing different scenes, and simply contained, as a more or less important feature, some of tbe peculiarities of the figure represented in tbe frontispiece of tbe series. In tbe other pictorial illustrations in which tbe character appeared, it was in connection with different characters, objects and scenes, and, therefore, appears to have been used as an illustration merely in tbe other stories of tbe Old Sleuth Library.

The picture or design which appeared as tbe frontispiece of tbe first story published never was attached to any other book or story, but in all instances was used as a frontispiece for tbe same book or story, and seems only to have been an illustration of that particular story. It never was used in connection with the subsequent numbers of tbe said library or any other stories, except, as has already been stated, in pictorial illustrations, in wliicb tbis same character appeared in connection with different characters, objects and scenes.

Now, it is clear, it seems to us, that no trade-mark can be established by any such proof as this. The whole design is changed with the requirements of each particular story, for the purpose of illustrating some incident of that story, and merely because a particular character may have been in each one of these stories in no manner changes the fact that these pictorial designs were intended as illustrations, and illustrations alone.

In order that a party may claim property in a trade-mark it must be a symbol or a design which in itself characterizes and distinguishes the particular goods to which it is attached. If it is so changed in general appearance, by reason of its surroundings, that it bears no longer any resemblance to the original symbol or design, it loses its characteristic as a trade-mark, because it loses its distinguishing features. It might as well be claimed that if ail author put a felt hat upon a figure which was used as an illustration in one story, and used a similar felt hat for the covering of figures used in illustration of other stories written by him, nobody would have a right to use a felt hat upon a figure appearing in an illustration, because this was a trade-mark of this author tending to designate his particular work. And this is substantially all that is done or claimed to have been done by the plaintiff in this action. In the first story of the series he represented a figure in a particular dress. In subsequent stories he introduced a figure bearing some slight resemblance to it, in a different attitude, with different surroundings and conveying an entirely different impression; and he insists that he has the right to call that figure his trade-mark. ¥e cannot see that upon any principle which governs the rights of parties to trade-marks the plaintiff can establish a trade-mark in illustrations in a book or story which he publishes. That must be protected by copyright, if at all.

The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Beady and DaNiels, JJ., concurred.

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