author: Yan Brunt, P. J.:

text:
    WILLIAM L. REYNOLDS, Respondent, v. SYLVESTER H. KNEELAND, Appellant.

      Negligence — of fellow-servants — their knowledge of defective tools originally perfect— the duty of the master. *
    In an action brought to recover damages alleged to have been caused by the negligence of the defendant, who was engaged in repairing a railroad, it appeared that in control of the gangs of men employed on the work were, first, a superintendent of construction, then a general foreman, and last the plaintiff, who had charge of a gang. Upon the day of the accident the general foreman had put the plaintiff in charge of the work.
    In making up a train of hand-cars, upon which the men were to return from their work, a car, which was known by many of the men to be then defective, was put in the front part of the train, and as a consequence the train was thrown from the track and the plaintiff was injured.
    The proper place for a defective car, if it were put in a train, was at the rear. There was evidence tending to show the employment of a competent superintendent and workmen, and that the car from which the injury resulted was not defective when originally furnished. The evidence was conflicting as to whether the workmen had ever complained of the car as defective.
    Upon the trial the court held, as matter of law, that the plaintiff was a fellow-servant with the members of the gang with which he was working.
    The defendant requested the court to charge that if the jury believed that the defendant had employed competent men or a competent superintendent, and that the latter employed competent men under him; that no complaint relative to the car had ever been made to the superintendent; that the latter would have repaired any defect had any complaint been made to him, and that the workmen used tlie car, knowing it to he out of repair, then the defendant, if he had no personal knowledge of the matter, was not liable to the plaintiff, which request was refused.

      Held, that the refusal was error.
    That if the defendant had fulfilled the conditions stated in the request, he would have performed his whole duty.
    That the use of the car under such circumstances would establish negligence in his fellow-servants for the injury resulting from which the plaintiff could not recover against the master.
    Appeal by the defendant Sylvester II. Kneeland from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on or about the 19th day of January, 1891, upon a verdict in favor of the plaintiff for $10,000, after a trial at the New York Circuit before the court and a jury; and also from an order, entered in said clerk’s office on or about the 30th day of January, 1891, denying a motion for a new trial.

      JR. G. Ingersoll, for the appellant.

      H. Fiske, for the resjiondent.
   Yan Brunt, P. J.:

This action was brought to recover damages for an injury suffered by the plaintiff by reason of the alleged negligence-of the defendant.

The defendant was, at the time of the accident on the 20th of June, 1887, and for some time prior thereto, engaged in repairing, reconstructing and widening the gauge of the Toledo, St. Louis and Kansas City Railroad, which he owned. The plaintiff was in the defendant’s employ as a foreman in charge of a gang of men engaged in the work, and on the twentieth of June was employed near Michigantown in the State of Indiana. A Mr. Calhoun was the immediate superior of the plaintiff, as a sort of general foreman, and above him was a Mr. Goodrich, superintendent of construction. Some three days before the accident the plaintiff was put in charge of the work by Mr. Calhoun in his absence according to the orders of Mr. Goodrich, and the plaintiff had charge and control of the gangs at work when Mr. Calhoun was not present. All of these men at the time of the accident lived at Michigantown, with the exception of one foreman, Downhour, who lived at Russiaville, seven miles further on. Downhour’s gang were accustomed to go in the morning1 from Russiaville to Michigantown on a hand-car. and then lift the hand-car on one of the cars of the train, which was drawn by a locomotive, and come up with the other gangs, and in the evening they would go down on the train to Hichigantown and then take their hand-car on to Russiaville. The plaintiff testified that he never had occasion to use a hand-car while in the defendant’s employ, until the day of the accident, except once for a few ■miles under the charge of another man. On the morning of the accident the general foreman Calhoun saw the gangs at work, between seven and nine and again at five. He was at that time traveling on a three-wheel car, and remained at the place where the men were working about ten minutes, having a general conversation with the plaintiff. On the evening of the twentieth of June the construction train was not present to convey the workmen home, but there were a number of hand-cars and one or two push-cars at the station. Thereupon the several gangs proceeded to construct a train out of the hand and push-cars, and the car that Downhour used to return to Russiaville was placed in the middle of this train. One of the witnesses testified that Mr. Calhoun stated that the train would not be there to carry the men home and that they would have to lash the cars together and all the men go down on the cars. When the men quit work they proceeded to prepare the train, including therein a car which was known to many of them to be out of order. After the cars were lashed together the men, among whom was the plaintiff, got on and the train started. After going about a quarter of a mile some one shouted that he had lost a dinner-pail and the train was stopped to alloMr him to pick it up. The plaintiff, with another foreman, got off the train and walked ahead about a quarter of a mile. During the stoppage, in consequence of the defective condition of this car which had been placed in the middle, it was determined to change its location in the train and it was placed in front and the train started again. . If the car was defective, there was evidence tending to show that the proper place to have placed this car was on tbe rear of the train, and not in the front. When the train overtook the plaintiff he took his seat in front of the train, some one making room for him as the train came along. After it had run a little way it began to go down hill at a pretty high rate of speed, when the car which was out of repair gave way and the plaintiff was thrown over in front of the car and tlie whole train ran over him. He was terribly injured and brought this action to recover his damages. A recovery having been had, appeal was taken from the judgment thereupon entered, and' from the order denying the motion for a new trial.

It is claimed upon the part of the appellant, as a ground of this appeal, that the accident happened because of the negligence of fellow-servants of the plaintiff, and that, therefore, no recovery could be had.

It does not need the citation of any authorities to support the proposition that there is no liability because of an accident caused by negligence of fellow-servants. It is well settled, and there is no dispute in repect thereto, the distinctions arising in the various cases from the determination as to whether the party injured was a fellow-servant of the person guilty of negligence.

It appears from the record that this subject of fellow-servants was not distinctly brought before the jury until after the charge, and in pursuance of certain requests made by the defendant. ' Among other things charged at the request of the defendant, the court charged that, in respect to fellow-servants, no distinction arises from the different grades or rank of the employees, nor from their being engaged in different work, provided the service tends to accomplish the same purpose; that the foreman of a gang employed by a contractor is a fellow-servant of. one of the gang; and that the various ■men who were employed and were working on the railroad in the gangs under Reynolds were fellow-servants of said Reynolds. This last proposition took away from the jury all question as to the relation of the plaintiff to the persons who were associated with him in the work which they were there conducting.

It will be observed that there was evidence tending to show that Reynolds had been put in charge of the work in the absence of Calhoun, and that Calhoun was not present at the time the various gangs stopped work on the day on which the accident occurred; and Reynolds was, therefore, the general superintendent of all the gangs and their foreman. And the court charged, thus not leaving it to the jury, that all these men were the fellow-servants of Reynolds. And in the consideration of the questions raised upon this appeal it is necessary to treat of the relations of the parties upon that basis.

The court was thereupon requested to charge “ That, if Down-hour knew of the defect in the car, and if he put the defective car in the train and changed the train, putting. the defective car in. front, and that the injury occurred by reason of the defective car and putting it in front, then the defendant is not responsible, as Downhour was a fellow-servant, and his knowledge was the knowledge of the plaintiff.” This request was refused, and the defendant excepted.

The court was further requested to charge:

That the only thing incumbent upon the defendant in this case was, in the first place, to supply good machinery, proper tools, and also to employ competent and proper men to superintend the workmen; and that if they believe he did do so, purchased proper machinery and did employ competent and proper men to superintend the work, and that although it may appear from the evidence that the persons, or some of them using this hand-car, found it was defective and persisted in using it afterwards — then that the defendant is not responsible.” The court declined so to charge, and the defendant excepted.
“ That if the jury believed that the defendant had employed competent men or a competent superintendent, and that he employed competent men under him, that no complaint ever was made to this superintendent, and that the superintendent would have repaired any defect had complaint been made to him, and that the men, the fellow-servants of this plaintiff, used the car knowing it to be out of repair, then the defendant, having no personal knowledge, is not responsible.” This request was also refused and the defendant excepted.

It is to be observed that the action is based upon the negligence of the defendant. It may not be always necessary to establish personal negligence upon the part of the defendant, but there must be negligence upon the part of somebody who stands in the position of the defendant, and for whose negligence the defendant may be held responsible. The duty of the defendant was to employ proper machinery and competent workmen, and to exhibit care and prudence in the selection of the men to be employed; and if injury results from the carelessness or recklessness of a fellow-servant, under such circumstances, the employer cannot be said to be guilty of negligence. An employer is not an insurer of the safety of the men employed, although the business may be of a hazardous, character. But he must exercise care and prudence in the conduct of the business in order that his employees may not be unduly exposed to the risk of injury.

In the case at bar the evidence tended to show that the persons whom the defendant had placed in charge of this work were careful, prudent and competent men, and that the car in question was originally entirely suited to the purpose for which it was used, namely, the carrying of a few men along the line of the road. There was evidence tending to show that no complaint in regard to the condition of the car had ever been made to any person in charge of the work, nor any request to repair the same; and although there was evidence to the contrary, perhaps, yet still that necessarily remained a question for the jury, and was embraced in the request which was refused. With evidence of this character, tending to show prudent and careful selection of men and machinery, the fact that such machinery got out of repair, was used when out of repair, and such use resulted in accident, seems to indicate negligence upon the pai’t of the parties who were using this machinery, and failed to report its condition and to procure its being put in proper condition. And the persons who are chargeable with this knowledge, which resulted in an accident, were held by the court to be the fellow-servants of the plaintiff.

By reference to the requests, it will be seen that the counsel requested the court to charge: “ That if the jury believed that the defendant had employed competent men or a competent superintendent, and that he employed competent men under him, that no complaint ever was made to this superintendent, and that the superintendent would have repaired any defect had complaint been made to him, and that the men, the fellow-servants of this plaintiff, used the car knowing it to be out of repair, then the defendant, having no personal knowledge, is not responsible.”

The refusal to charge this proposition was equivalent to charging the jury that, although the defendant had employed competent men and competent superintendents, and that no complaint was ever made in regard to this car, and that if it had been made it would have been repaired, and the men used the car knowing it to be out of repair and dangerous, notwithstanding these facts the plaintiff could recover. This seems to be error, because, if those facts existed, the defendant had performed his whole duty.

But it may be said that this proposition did not embrace the original furnishing of proper machinery. But the evidence showed that this car, when originally furnished for this work, was proper for the use to which it was intended to be put; and that it only became unfit for service because of its having got out of repair. And, therefore, it was not necessary to include in that proposition the question of proper machinery, as there was no evidence to show, as already stated, that at the time this car was originally furnished it was out of repair.

It is, therefore, apparent that if there was a failure to report this ear as being cut of order, and no request for its being put in order, and the accident happened because of its defective condition, there was negligence upon the part of the persons using the car, who were the fellow-servants of the plaintiff.

In the case of Loughlin v. The State (105 N. Y., 159), it appears that the plaintiff was employed upon the State boat upon Lake Champlain, While so employed, he was engaged, under the direction of the captain, in digging and wheeling clay from a bank near the canal into the boat. The captain of the boat had loosened the overhanging earth, and while the plaintiff was under it, it fell and he was injured. It was found that the injury resulted from the negligence of the captain of the boat; and it was held that although captain of the boat, with power to direct those under him, he was nevertheless a co-servant within the rule; and that it was the ordinary case of mismanagement by a co-employee of a superior grade, and under such circumstances no recovery could be had. So, in the case of Byrnes v. New York, Lake Erie and Western Railroad Company (113 N. Y., 251), where a car had been improperly loaded and it was being moved by the engine from the switch to the main track, the deceased got upon it to stop it, but in consequence of the improper manner in which the car was loaded the brake was rendered useless, a collision occurred and the deceased thrown from the car and killed. It further appeared that the car was in good condition before it was loaded, and that a'proper system of .inspection liad been adopted, but which system was not followed out, and it was held that having provided a safe car, and a system of inspection and competent men therefor, the defendant was not liable- for injuries resulting to a co-employee. Many other cases of like character might be cited, but these seem to be sufficient to illustrate the principle.

We think, upon au examination of the manner in which this case was submitted to the jury, that it was a virtual direction upon the part of the court that the plaintiff was entitled to recover if he had not personal knowledge of the condition of the car in question, no matter how negligent his employees may have been, not only in using the car at all, but in placing it in the position in the train which they did.

This presented the case in an erroneous form to the jury, and deprived the defendant of that protection which the exercise of due care had thrown around him.

We think that, for these errors, the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Lawrence, J., concurred; O’Brien, J., concurred in the result.

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


source: Caselaw Access Project

license: Public Domain

text:
    ISAAC FROMME, Appellant, v. ABRAHAM LISNER, Respondent.

      Practice — inspection and copy of a paper — requisites of application — Code of Civil Procedure, sec. 803.
    Au application was made before answer, by a defendant, for tlie inspection of a paper material to liis defense. The petition was verified by his attorney, and not by the defendant, no reason therefor being assigned except a statement that the defendant did not reside in the attorney’s county. The petition did not contain an affidavit of merits.

      Meld, that the application was defective in both of these particulars, and should be denied.

      Appeal by the plaintiff Isaac Fromme from an order of the Supreme Court, entered in the office of tlie cleric of the city and county of New York on the 5tli day of January, 1892, granting a motion of the defendant for leave to inspect an agreement referred to in the complaint in the action, and to take a copy of it.

      A. L. Fromme, for the appellant.

      HomoUz da IJersehfield, for the respondent.
   Yan Brunt, P. J.:

The complaint alleges, in substance, that, by an instrument in writing, the assignor of the plaintiff was employed to procure a purchaser for certain property, and that therein a certain compensation was promised; that a purchaser was procured and the compensation earned; and that prior to the commencement of the action an assignment of the claim was made, and judgment is prayed for.

The defendant, before answer, made a petition asking for an inspection of the agreement. The petition was sworn to by the attorney, and not by the defendant, and simply alleged that the agreement was not set foi’th in the complaint; that it related to the merits of the action, and was indispensable to the deponent for the preparation of the answer; that the agreement is in the possession of the plaintiff or his attorney, and the attorney has been requested to allow the deponent to inspect the same, which was refused ; that deponent had no copy of said instrument in his possession, and is informed by the defendant that he has no copy thereof, and does not know the terms and conditions thereof, or whether the plaintiff has performed the same as alleged in the complaint.

In the jurat of the petition it is stated that the reason the attorney makes the affidavit is, that defendant does not reside in the city and county of New York, where deponent resides, but that defendant informed deponent that he had no copy of the instrument, and does not know the terms and conditions thereof.

No affidavit of merits accompanies the papers, and upon this petition an order was granted for the inspection, and from such order this appeal is taken.

In the first place there is no sufficient reason why the affidavit was not made by the defendant. The mere fact that the defendant does not reside in the city and county where the attorney resides is no ground whatever for accepting an affidavit from the attorney. The statement might be entirely true, and the defendant have been in the company of the attorney when he made the affidavit. In applications of this character the person to make the affidavit is the. party to the action; and there must be some good ground presented to the court in order that the absence of his oath can be excused. The mere fact that he does not reside in the county where the attorney resides is not sufficient. It would be very convenient for a party, simply because he resides in another county, to get rid of the chances of being indicted for perjury by having his attorney make his affidavit for him upon declarations not made under oath. Something must be shown to demonstrate the impossibility of getting the affidavit of the client, and something more than the mere statements of the client, to justify any of these remedies.

And, furthermore, the papers do not show that there are any merits upon the part of the defendant, nor that he has any defense. The petition was entirely insufficient, and the order should have been denied.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied.

Patterson and O’Brien, J J., concurred.

Order reversed, with ten dollars costs and disbursements, and the motion denied. ' '


text:
    ADDISON D. O’NEILL, as Executor of AGNES L. JONES, Deceased, Appellant, v. THE MASSACHUSETTS BENEFIT ASSOCIATION, Respondent.

      life insurance — jurisdiction—a foreign corporation doing business in this State — when service of proofs of death made by a physician is excused.

    In an action brought to recover upon a policy of life insurance, the amount secured to be paid thereby on the death of the assured, it appeared that the person insured had died; that she was a resident of the State of New York; that the application for the insurance was made, and the policy was delivered in New Y5rk, and that the defendant, a foreign corporation, was doing business in New York, having complied with its laws on that subject.

      Held, tbat tbe fact tbat the attestation, clause of tbe policy stated that it was signed and delivered in Boston, Mass., and that the plaintiff, the executor of the insured, lived in New Jersey, did not oust the courts of the State of New York of jurisdiction.
    The policy required certain proofs of death, one by the attending physician, who refused to make the proof because his bill for services to the deceased was unpaid, although proper effort was made to induce him to do so:

      Held, that his refusal was unjust; and it being impossible for the plaintiff to procure proof of death by him, the executor of the assured was excused from producing it, and was not for that reason debarred from recovering in the action.
    Appeal by tbe plaintiff Addison D. O’Neill, as executor of Agnes L. Jones, from a judgment of tbe Supreme Court, entered in the office of tbe clerk of the city and county of New York on the 15th day of June, 1891, upon a verdict for tbe defendant directed by tbe court, after a trial at tbe New York Circuit before tbe court and a jury; and also from an order, entered in said clerk’s office on tbe 10th day of June, 1891, denying a motion for a new trial.

      W. M. Marmitón, for tbe appellant.

      J. K. Mmjward, for tbe respondent.
   Yan Brunt, P. J.:

This action was brought to recover upon a policy of life insurance or certificate of membership issued by tbe defendant to tbe plaintiff’s testatrix.

Tbe defendant is a Massachusetts corporation, organized for tbe purpose of carrying on tbe business of life insurance, and having an ■office and place of business at the city of New York, having complied with tbe laws of this State in respect to foreign life insurance ■companies.

In June, 1887, one Agnes I. Jones, a resident of this State, made an application in writing to tbe agent of tbe defendant, at the company’s office in New York city, for a certificate of membership.

Upon this application tbe defendant issued certain policies or ■certificates. Some time prior to her death, which occurred on the 8th of July, 1889, an application was made by one O’Neill, on behalf of tbe assured, for a change in one of these policies, to tbe agent of tbe company, at tbe company’s office in New York city, tbe loss to be made payable to her executors instead of her husband. The new policy was made out and dated in Boston, sent by mail to tbe agent here, and by him mailed apparently to the assured and received, after her death, by her husband. Mrs. Jones left a will which was offered for probate in July, 1889, before the surrogate of New York county, and her husband filed objections to such probate.- Thereupon a contest was had, which resulted in a decision in August, 1890, and a decree for probate was entered on the 16th of September, 1890. Soon after the. death of Mrs. Jones the plaintiff’s attorney gave information to the defendant of her death, the fact of their being retained as attorneys by the executors, the offering of the will for probate, their inability to find the policy among the papers, and their expectation of finding it in the possession of the husband, and asking that blanks be furnished for making out proofs, of claim. Blanks were forwarded, and in July, 1889, they were sent to the attending physician, Dr. Fowler, at Albany, N. Y., to fill out and return, which he failed to do. In the meantime a temporary administrator had been appointed and proofs ' were sent to the defendant, accompanied by affidavits showing the efforts made to get a certificate from Dr. Fowler, his refusal to furnish the same, and his assigning as a reason therefor the non-payment of his bill for attending Mrs. Jones. In answer, the company, through its assistant treasurer, replied : Your favor of the 4th is at hand. Inasmuch as the proof papers you sent us are in' such form that we cannot act upon them, and you state that a decision of the facts in controversy is expected shortly, I will defer consideration of the claim as }3resented until I hear from you again.”

Upon the termination of the contest over the will, the company were notified and were requested to make payment, and i'n reply stated that only partial proofs had been filed, and that the certificate of the physician was absent, and enclosing two blanks for such feertificate to be filled up, the letter reserving all rights which had been acquired, and informing the attorneys of a clause in the policy to the effect that no claim could "be maintained in law after the expiration of one year from the date of the death of the member. To this letter the attorneys replied that the policy had not come into their hands, and they were surprised to hear that there was such a clause in the policy.

The plaintiff, not being able to get a certificate from Dr. Fowler, commenced this action by the service of a summons upon the Superintendent of Insurance. The defendant- appeared and moved to have the case transferred to the Circuit Court of the United States, but was unsuccessful. Upon the trial the plaintiff proved, substantially, the foregoing facts.

- At the end of the plaintiff’s case the defendant’s counsel moved to dismiss the complaint upon the ground that the court lacked jurisdiction, because it appeared that the plaintiff resides in New Jersey and the defendant resides in Massachusetts, and the cause of action arose in Massachusetts, and also upon the ground that the cause of action had not matured. This motion was granted and the complaint dismissed, and from the judgment thereupon entered this appeal is taken.

It is to be noticed that the case shows that the complaint was dismissed, and that the postea to the judgment-roll recites that a verdict for the defendant was directed. In the absence of the clerk’s minutes it seems to be impossible to tell which is right. By what authority the clerk entered the judgment in question, in the absence of the minutes of the trial, we are unable to imagine.

The defense’s claim of want of jurisdiction seems to be one of the most unconscionable that any corporation has ever, heretofore, liad the temerity to assert. The defendant, a foreign corporation, by the courtesy of the laws of this State, comes into this State and does its business here, upon the condition that it subjects itself to the laws of this State, and upon the condition that process may be served in this State which.shall be binding upon it, and having done every particle of the business in connection with the claim in this State, when called upon to pay, asserts that, it being a foreign corporation, the courts of this State have no jurisdiction as the contract was delivered in Boston.

The application for the policy in question was made here, the policy was received here from the agent of the corporation here, and all the business was done within this State. But it is claimed that because the testatum clause of the policy says that it was signed and delivered in Boston, that, therefore, the contract was made in Boston. We hardly think that the courts of this State will permit a foreign corporation doing business in this State to escape payment of its just obligations under so frivolous a plea.

A very considerable space in tbe argument of tlie questions presented upon tbis appeal is devoted to the one-year limitation contained in this policy. It does not seem necessary to discuss this proposition, because no such point was made upon the trial. It is true the defense was set up -in the answer, but it was not one of the grounds upon which the complaint was dismissed, the grounds being want of jurisdiction and that the cause of action had not matured, which latter claim was founded upon the failure to present the physician’s certificate.

It does not seem necessary to discuss the proposition that when, through no fault upon his part, a party having a claim against another is unable to present the particular kind of proof which the contract between them calls for, that the failure may be excused. As, for example, in actions upon building contracts, it has become familiar law that, although the contract requires the presentation of an architect’s certificate in order to entitle the builder to payment, yet, if the certificate is unjustly withheld by the architect, a recovery may be had without its production. So, in the case at bar, although the contract requires the production of the doctor’s certificate, yet, if he unjustly refuses to give such evidence, and proper effort is made to obtain the same, we see no reason why the same reason should not apply, and the party be excused from its production.

Some point is made in regard to the failure to produce the certificate of Dr. White. But Dr. White was not the physician who attended the deceased in her last illness, and Dr. Fowler was ; and it appears that application was made to Dr. Fowler for his certificate and he refused to give the same, assigning as a reason the nonpayment of his bill.

The claimants, under a policy of insurance, are not required to perform impossible conditions. They are bound to use diligent efforts to comply with the stipulated conditions, but if prevented from doing so without fault or negligence on their part, they are not thereby precluded from recovery in a contested case.

Applying this principle to the case at bar, it is evident that Dr. Fowler refused to give this certificate unjustly and improperly. The defendants were acquainted with all the facts, and there is no intimation or proof that the certificate was not procured by the plaintiff because of fear of what would be the nature of its contents.

We think, under all the facts, the plaintiff made out a frima facie case, and the motion to dismiss should have been denied.

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

O’Brien and Lawrence, JJ., concurred.

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


author: Patterson, J.:

text:
    Dr. JAEGER’S SANITARY WOOLEN SYSTEM COMPANY, Appellant, v. GEORGE Le BOUTILLIER, Respondent. Dr. JAEGER’S SANITARY WOOLEN SYSTEM COMPANY, Appellant, v. FREDERICK LOESER and Another, Respondents.

      Extra allowance — a trade-mark affords no basis fin’ an allowance.

    In an action brought for the infringement of a trade-mark the real contest was as to the right to the trade-mark, and no sum of money was claimed by the plaintiff, except as incidental damages arising from alleged profits made by the defendants out of the infringement. It was determined that the plaintiff had no right to the trade-mark.

      Held, that there was no basis for an extra allowance to the defendant under section 3253 of the Code of Civil Procedure.
    That no “ sum ” was “ recovered or claimed.”
    That “the subject-matter involved” was the trade-mark, which, so far as the proof showed, had no “ value "per se, and which it had been adjudged did not exist at all.
    Appeals by tlie plaintiff, Dr. Jaeger’s Sanitary Woolen System Company, in each of two separate actions respectively brought by it against George Le Boutillier, and against Frederick Loeser and another, from two several orders, entered in the office of the clerk of the city and county of New York on the 12th day of February, 1891, appointing in each action a referee to report the value of the trade-mark of the plaintiff, and what services were rendered by the defendants’ attorney, and his opinion as to what would be a reasonable amount for an extra allowance to the defendant or defendants in each action.

      Root dé Clarke, for the appellant.

      Coepel dé Raegener, for the respondents.
   Patterson, J.:

These are appeals from orders in two actions brought for infringement of an alleged trade-mark right claimed by the plaintiff. Judgment in each action was for the defendant. In the case against Le Boutillier a temporary injunction was granted. The defendants in each ease moved for an extra allowance, and the court below directed a reference in each case to take proof of the value of the plaintiff's alleged trade-mark, with a view to granting such additional allowance, and, in connection with the order in the Le Boutillier case, the referee was authorized to ascertain the damages caused by the injunction. No objection is made to that part of the order last referred to, and the only question requiring consideration is as to the ordering of the reference in aid of the motions for an extra allowance, and that, of course, depends upon the power of the court to grant such an allowance in.cases of this character.

We are of the opinion that such power does not exist. The whole subject is regulated by statute. Section 3253 of the Code of Civil Procedure confers the only authority'the court has concerning it, and it is expressly stated there that, in all cases not otherwise provided for, an extra allowance may, in the discretion of the court, be granted upon a sum recovered or claimed or the value of the subject-matter involved.” There was no sum claimed by the plaintiff, except as incidental damages arising from alleged profits made by the defendants out of the infringement of the trade-mark claimed, but the real contest was as to the trade-mark right; and it having been determined that no such right existed, there was no question in the case at ail as to damages. They could only have resulted from an accounting after a determination that the plaintiff was entitled to judgment on the real issue, and Weaver v. Ely (83 N. Y., 89) is quite in point. That was an action for an accounting, and for the payment of any amount found due on such accounting. The complaint was dismissed on findings which showed the defendants were not liable to account. Extra allowances were awarded them, but the Court of Appeals held, in reversing the orders, in substance, that where undefined and unascertained interests, dependent wholly on the result of previous inquiry, are in question and the main relief is denied, there is nothing upon which an allow-, anee may be based. Conaughty v. Saratoga County Bank (92 N. Y., 401) defines, also, what is meant by the word “ involved ” in the section of the Code above alluded to. It means the possession, ownership or title to the property or other valuable 'thing which is to be determined by the result of the action. That, in these eases, was the trade-mark, and nothing else. There are several cases on this subject more recent than those cited by counsel, and among them is Adams v. Arkenburgh (106 N. Y., 615), and in that case a distinction is made between it and Weaver v. Ely (supra). The opinion in each of those cases was written by the same Judge (Danforth) ; but it was held in the latter case that there was a specific value to be fixed upon the result of an accounting under the peculiar facts of the case — it was for a copartnership accounting — and that the matter should not have been disposed of as a question of law. Here the subject comes up distinctly as a question of law, and our decision is put upon the plain ground that in such a case as this an extra allowance cannot be granted to a defendant on the dismissal of a complaint seeking an accounting where the judgment of the court is final, that such an accounting cannot be had, and for the reason that any further claim is merely incidental. (Moore v. Appleby, 108 N. Y., 231.)

But it is further contended that there was a value to the trademark, and that, therefore, something existed and was in controversy, coming within the requirement of the law, as above stated. What possible value a mere trade-mark right can have per se, ascertainable by a money standard, it is difficult to understand in the absence of proof. But when it is adjudged that no trade-mark right exists at all, it is more difficult to comprehend what value can be attached to that which is non-existent. Nothing was really involved but the right to the trade-mark. The case of Munro v. Smith (23 Abb. N. C., 278), is referred to as being an authority in favor of the granting of an allowance to the defendant; no such deduction is to be fairly drawn from that case. The learned judge who wrote the opinion there, made careful reference to Coates v. Goddard (34 Supr. Ct., 118), in which it was held that no money-value could be assigned to a trade-mark, and it is quite evident that the allowance was made in the Munro case on the undisputed testimony that the trade-mark was worth the sum of $50,000.

The orders, so far as they provide for a reference as to an extra. allowance, are reversed, with costs and disbursements, but in the Le Boutillier case so much of the order as provides for ascertaining damages on the injunction is affirmed.

Van Brunt, B. J., and O’Brien, J., concurred.

So ordered.


author: Van Brunt, P. J.:

text:
    ELIZA M. SLOAN, Respondent, v. THE NEW YORK ELEVATED RAILROAD COMPANY and Another, Appellants.

      Elevated railroads of New Toi'k city — damages ma/y be recovered although the rental value has not decreased — smoke—the proximity of a station as a benefit.

    In an action brought to restrain the «operation and maintenance of an elevated railway in New York city, the court found that the rental value of the plaintiffs land, in front of which it ran, had not been diminished, but that the easements had a value of $3,500, which it allowed as damages.

      Held, that the decision was proper.
    That the fact that the rental value had not been decreased was not conclusive upon the question of damages.
    That a proper fact to consider was the permanency of the elevated structure, and the possibility that the owner might put her premises to other uses with which the operation of the railroad might conflict.
    That it was proper to take into consideration incidental annoyances like smoke, dust and cinders, etc.
    That it could not be assumed that the proximity of a station was an advantage to property for which the railroads should be allowed, since it might, if it choose, alter the location of a station at any time.
    Appeal by the defendants, tlie New York Elevated Railroad Company and tlie Manhattan Railway Company, from a judgment of the Supreme Court, entered, after a trial by the court at the New York Special Term, in the office of the clerk of the city and county of New York on the 13th day of July, 1891, in favor of the plaintiff, restraining the defendants from operating a railroad in front of the plaintiff’s premises, No. 212 Ninth avenue, in the city of New York, unless they acquired the plaintiff’s easement's within thirty days by paying her therefor $3,500.

      A. O. Townsend, for the appellants.

      G. A. B. Pratt, Jr., for the respondent.
   Van Brunt, P. J.:

This action was brought for an injunction restraining the defendants from maintaining and operating their elevated railroad in Ninth avenue in front of the plaintiff’s premises. The court held that there had been no diminution, in the rental value of the premises in suit, shown to have been caused by the acts of the defendant up to the time of the trial, and, consequently, that the plaintiff had sustained no damage to the rental value of the premises; but that the easements taken by the structure of the defendants were of the value of $3,500, upon the payment of which amount the defendants might acquire the easements in question.

The principal ground upon which this appeal is based arises from the fact that the court found that the plaintiff had not sustained any rental damage up to the time of the trial, and that, therefore, there was no basis for the finding as to the value of the easement. There is no question that the court will not grant an injunction merely for the purpose of protecting a technical or unsubstantial right; and, therefore, unless it was shown that the easements taken by the defendants were of some value as connected with the plaintiff’s property, the complaint should have been dismissed. But we think that the fact that there had been no diminution in the rental value for the past, was by no means conclusive proof that the premises in question were as valuable with the easements severed therefrom as they would be with the easements attached.

It is true that it is claimed that the improvements upon the property are of a permanent character and not likely to be changed. But it is also equally true that the question as to the impairment of value is to be considered in view of the fact of the permanency of the structure of the defendants and of any purposes to which the premises in question might be applied. The market-value of premises is determined by the uses to which they may possibly be put, not necessarily by the uses to which they are put; because changes may occur from which it might be more profitable to apply the premises to other uses; and these considerations always have an effect upon value.

It is alleged that the court erred in taking into consideration the incidental annoyances from the running of trains in the future. But these all related to the effect upon the light, air and access to the plaintiff’s premises, smoke, dust, cinders and the like. They were elements which the court was justified in taking into consideration, and have been recognized as proper in numerous cases which have been heretofore decided. It is claimed, however, that, if no error was committed in considering the incidental facts and estimating the future damages to be paid for the land not taken, then it was error not to consider all such facts, including those which were beneficial to the property. And our attention, in this connection, is called to the refusal to find certain requests to the effect that the proximity of the defendant’s station to the premises in suit is advantageous to the business portion of said premises, etc.

Upon this question of the advantageous proximity to stations being a subject to be taken into consideration, it seems to me we are very liable to fall into an error. The station may be there to-day and it may be removed to-morrow, as has been done in respect to at least one of the stations of these elevated railroads, leaving the premises damaged by the structure without the advantageous proximity of the station. The railroad company is under no obligation to maintain the station in the position in which it is placed, and, as this is a question which is to settle the rights of these parties as to all the future, the proximity of a station which may be removed at any time does not seem to be a very permanent element of benefit.

There was evidence which supported the finding of the court in reference to the damage to these premises, and we see no reason for interfering with the conclusion arrived at by the court.

The judgment should be affirmed, with costs.

O’Brien and Lawrence, JJ., concurred.

Judgment affirmed, with costs.


author: Lambert, J.:

text:
       WASHINGTON H. TAYLOR, Appellant, v. CATHARINE TAYLOR and Another, Respondents.

      Former adjudication a bat — where the complaints, in each of two actions between the same parties, each alleges embezzlement, and they differ only in the disposition made of the money embezzled.

    In an action brought by a husband against his wife to recover certain real estate, it was alleged in the complaint that the wife unlawfully and wrongfully took and embezzled large sums of the plaintiff’s money, and without his consent bought, with a part thereof, a house on Broad street in New York city.
    In a prior action between the same parties the allegations of the complaint were precisely similar, except as to the manner in which the wife was alleged to have invested the moneys of the plaintiff, which in that instance was declared to be in property on West Twenty-third street, in said city, and the relief sought was to have the title to that property declared to be vested in him.
    Upon the trial of the earlier action the court found, as matter of fact, that his wife did not do the acts complained of and dismissed the complaint.

      Held, that the former action was a bar to tiie second one.
    That the gravamen of the complaint, and the indispensable fact to be proved, i. e., the embezzlement of the money, was the same in both actions, and that the allegation as to the manner of investment was immaterial, except as it bore upon the remedy.
    Appeal by the plaintiff Washington H. Taylor from an order made at tbe New York Special Term, February 16,1891, overruling a demurrer to the answers of the defendants, and from the judgment entered thereupon, on the 28th day of February, 1891, in the office of the clerk of the county of New York.
    The complaint in a prior action between the parties set forth, in substance, that between the 23d day of June, 1879, and the 3d day of February, 1883, the defendant unlawfully and wrongfully took and embezzled large sums of money, the property of the plaintiff, and without his consent invested the sum of about $15,000, in the purchase of a house and lot in West Twenty-third street in the city of New York. By appropriate and sufficient allegations the plaintiff sought, as a part of his remedy, to recover the title to the real estate alleged to have been purchased by the moneys charged to have been embezzled. The court, upon the trial of the issues joined, among other things, decided, as matters of fact, that the defendant Catharine Taylor did not during the period alleged take and embezzle large sums of money, the property of the plaintiff, or invest the same, and dismissed the complaint upon the merits.
    In the case at bar the plaintiff for his cause of action alleges, that the defendant Catharine Taylor, during precisely the same period mentioned in the former complaint, unlawfully and wrongfully took and embezzled large sums of money, the property of the plaintiff, to wit, the sum of about $40,000, and used the sum of about $16,000 thereof in the purchase of a house and lot on the southerly side of Bond street in the city of New York, and for relief asks that the title thereof be decreed to be vested in him. The defendants set up the former judgment in bar of this action, to which the plaintiff demurred, and the trial court decided, as matter of law, that the findings and judgment in the former case operated as a conclusive barrier to the alleged cause of action. From the judgment entered upon such decision this appeal is taken.

      Noah Davis and Charles Wehle, for the plaintiff, appellant.

      William Fullerton and Bervjamim /Soharps, for the respondents.

       Decided December, 1891.

   Lambert, J.:

' Counsel for the appellant concedes the rule, that every material question of law or fact involved in the issue in the, former action must be regarded as determined by the final judgment in that action, and cannot be made the subject of judicial investigation in this case, but claims that the plaintiff in either case was but pursuing a remedy in the nature of an action in rem; that the judgment sought in the respective actions was the determination of title to distinct and different parcels of land, and that, therefore, as a necessary conclusion, the finding by the court that the defendant’s wife did not, between the 23d day of June, 18J9, and the 3d day of February, 1883, embezzle large sums of money of the plaintiff was not the determination of a material or indispensable fact to the plaintiff’s right of action. To this proposition we cannot lend our assent.

The gravamen of the complaint was the wrongful taking of the money, and whether it was invested was immaterial, so far as the right of action for the money was concerned,' and simply because the plaintiff sought to pursue the avails of the money wrongfully taken as a means of restoration, instead of relying upon a judgment for damages, could not deprive the case of the fundamental elements upon which his right of action was based. Upon the theory that the ■ moneys invested were his, an equity would be established in the .land in his favor as between him and the wrong-doer; and, for the purpose of affording relief as against the wrong-doer the court, by legal requirement, would adjudge the title to be in him. The investment of the moneys by the defendant’s wife did not create a cause of action independent of the act of wrongful taking, and the allegation respecting the investment was immaterial, except for the purpose of reaching the property as a means of redressing the injury resulting from the wrongful taking of the money. It follows, as a necessary result, that the allegation of embezzlement was not only an indispensable fact to be alleged and proven to sustain the action for the recovery of the land, but was the foundation for the shpport of the judgment demanded. It was, therefore, one of the issues litigated by the parties upon the former trial, and is conclusive as a bar to this action within the rule established by the case of Lorillard v. Clyde (122 N. Y., 41), and the cases cited. It is there held that a defeated party is concluded from litigating the issue's upon which a judgment upon the merits is rendered, and every other matter directly at issue by the pleadings which the defeated party might have litigated.

The conclusion reached necessarily disposes of the suggestion made by the learned counsel for the appellant, that the only moneys in controversy in the former action were those invested in the purchase of the Twenty-third street property, and that, therefore, the judgment entered upon the finding, that the defendant did not embezzle large sums of money, does not preclude the plaintiff from showing that other moneys were embezzled by the defendant and invested in lands on Bond street. The principal issue in either case being whether or not the defendant did embezzle large sums of money as the basis of his action, the finding by the court that the defendant did not embezzle large sums of money, and'the judgment entered thereupon, becomes conclusive upon that issue within the rule stated in the case cited, that the defeated party is concluded by all the issues which might have been litigated, and we may assume that had the plaintiff established the fact that the defendant did embezzle moneys of the plaintiff, other than those in the Twenty-third street property, the court would have so found, and the judgment entered in the action upon such findings would have saved this action from the conclusive operation of that judgment.

The judgment should be affirmed, with costs.

Daniels, <T., concurred.

Judgment affirmed, with costs.


author: Lawrence, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WILLIAM P. CANNON, Appellant.

      Laws of 1887, chap. 377, sec. 2; 1888, chap. 181 — the act to protect owners of bottles is constitutional — good faith is nota defense to the purchaser — the restrictions of the act are reasonable.

    The second section of chapter 377 of the Laws of 1887, as amended by chapter 181 of the Laws of 1888, being an act to protect the owners of bottles used in the sale of soda water and other beverages, which prohibits the selling, buying, giving, taking or trafficking in such bottles without the written consent of, or unless the same shall have been purchased from, the person or corporation whose mark or device shall be, or shall have been, in or upon the bottles, is constitutional and does not deprive the vendee of his property without due process of law.
    Upon the trial of an indictment for a misdemeanor, under this section, it appeared that the defendant purchased the bottles in open market and in good faith; that he did not purchase them from the corporation complainant, and that he did not know how the person who sold them to him became possessed of them.

      Held, that these facts constituted no defense.
    That the act did not place unreasonable restrictions upon the vendee’s lawful business.
    That the restriction was analogous to that created by a trade-mark.
    That the object of the act was not only to protect the owners of bottles, but also to prevent the public from being imposed upon by strangers who might fill the bottles and palpi them off as.baving been filled by their real owners.
    Appeal by the defendant William P. Cannon from a judgment, rendered against him in the Court of General Sessions of the city and county of New York on the 25th day of May, 1891, convicting him. of a misdemeanor, under an indictment drawn under section 2. of chapter 377 of the Laws of 1887, as amended by chapter 181 of the Laws of 1888, and sentencing him to be imprisoned in the penitentiary of the city of New York for the term of sixty days, and to pay a fine of twelve dollars and fifty cents.

      A. W. Tenney, for the appellant.

      Thomas G. E. Eeolesine, for the respondent.
   Lawrence, J.:

The defendant was tried and convicted of a misdemeanor before the recorder and a jury for having in his possession twenty-five bottles -with the following words and figures blown or impressed thereon, to wit: “A. Liebler Bottling Co. Registered 402 and 404 ~W. 126th St., N. Y.,” and a monogram of the letters “A. L..B. Co.”

He was sentenced to pay a fine of' twelve dollars and fifty cents, and to be imprisoned in the penitentiary for a term of sixty days.

The indictment, under which the defendant was tried and convicted, was found under the second section of the act entitled, “ An act to protect the owners of bottle's, 'boxes, syphons and kegs used in the sale of soda water, mineral or aerated waters, porter, ale, cider, ginger ale, milk, cream, small beer, lager beer, weiss beer, beer, white beer, or other beverages,” being chapter 377 of the Laws of 1887, as amended by chapter 181 of the Laws of 1888.

The first section of the act of 1887, as amended, provides that, “ Any and all persons and corporations, engaged in manufacturing, bottling or selling soda waters * * * lager beer, weiss beer, etc., * * * in bottles, syphons etc., with his, her, its or their name, or names, or other marks or devices, branded, stamped, engraved, etched, blown, impressed, or otherwise produced upon such bottles, etc., used by him, her, it, or them, may file in the office of the clerk of the county in which his, her, its or their principal place of business is situated, and also in the office of the Secretary of State, a description of the name, or names, marks or devices, so used by Mm, her, it or them, respectively, and cause such description to be printed once in each week, for three weeks successively, in a newspaper published in the count}'- in -which said notice may have been filed as aforesaid, except that in the city and county of New York, and tlie city of Brooklyn, in the county of Kings, such publication shall be made for three weeks, successively, in two daily newspapers, published in the cities of New York and Brooklyn, respectively.”

Section 2 of said act, under which this indictment is found, is as follows:

“ It is hereby declared to be unlawful for any person or persons, corporation or corporations, to fill with soda waters, mineral or aerated waters, porter, ale, cider, ginger ale, milk, cream, beer, small beer, lager beer, weiss beer, white beer, or other beverages, or with medicine, medical preparations, perfumery, compounds or mixtures, any bottle, box, syphon, tin or keg so marked or distinguished, as aforesaid, with or by any name, mark or device, of which a description shall have been filed and published, as provided in section 1 of this act, or to deface, erase, obliterate, cover up, or otherwise remove or conceal any such name, mark or device thereon, (or to sell, buy, gi/oe, take or otherwise dispose of or fraffia in the same, without the written consent of, or unless the same shall ha/oe been purchased from, the person or persons, corporation or corporations, whose mark or device shall be, or shall hme been i/n or upon the bottle, box, syphon, tin or keg so filled, trafficked in, used or ha/hdled as aforesaid. . Any person or persons or corporations offending against the provisions of this section shall be deemed guilty of á misdemeanor, and shall be punished for the first offense by imprisonment not less than ten days nor more than one year, or by a fine of fifty cents for each and every such bottle, box, syphon, tin or keg, so filled, sold, used, disposed of, bought or trafficked in, or by both such fine and imprisonment, and for each subsequent offence by imprisonment not less than twenty days, nor more than one year, or by a fine of not less than one dollar, nor more than five dollars, for each and every bottle, box, syphon, tin and keg so filled, sold, used, disposed of, bought or trafficked in, or by both such fine and imprisonment, in the discretion of the magistrate before whom the offence shall be tried.”

Upon the trial a stipulation between the people and the defendant was read in evidence, which is as follows:

(1.) The defendant William P. Camion, now is, and, at all the times herein mentioned, was a dealer in second-hand articles, to wit: In second-hand bottles in the city and county of New York.

(2.) In tlie month of September, 1887, the A. Liebler Bottling Company was duly organized and incorporated under and by virtue of the laws of the State of New York, to wit: Pursuant to and ih conformity with the act of the legislature of the State of New York, passed, on the 17th day of February, 1848, entitled “An act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes,” and the several acts of the legislature amendatory thereof; and said corporation was so as aforesaid organized and incorporated under the corporate name and style, “A. Liebler Bottling Company.”

(3.) At all the times mentioned herein, the said corporation has had, and now has, its principal place of business in the city and county of New York; and at all said times has been, and is now, •engaged in bottling, selling and delivering lager beer, soda waters and aerated waters, in bottles with its name and certain marks and devices blown and impressed thereon.

(4.) Prior to the 1st day of March, 1888, the said corporation did duly file in the office of the clerk of 'the county of New York, and also in the office of the Secretary of State of the State of New York, a description of the name, marks and devices so used by it, and did duly cause said description to be printed and published for three weeks successively in two daily newspapers published in the said city of New York, to wit, in “The Daily Register” and in the “New York Journal of Commerce,” as provided by a certain act of the legislature of this State, entitled “An act to protect the owners of bottles, boxes, syphons and kegs used in the sale of soda water, mineral or aerated watei's, porter, ale, eider, ginger ale, milk, cream, small beer, lager beer, weiss beer, beer, white beer, or other beverages,” passed May 18, 1887, and known as chapter 377 of the Laws •of 1887.

(5.) That the description of the.name, marks and devices so filed and published as aforesaid is and was as follows, to wit: “A. Liebler Bottling Co., Registered, 402 and 404 W. 126th street, N. Y.,” and a monogram of the letters “A. L. B. Co.”

(6.) On the 30th day of September, 1890, at the city and county of New York aforesaid, the said defendant, ‘William P. Cannon, had in his. possession, and there was then and there found in his possession, twenty-five certain bottles, which, and each of which, were and was then and there marked and distinguished with and by the name- of the said corporation, and the said marks and devices of which a description had been filed and published as aforesaid, and upon which and each of which said bottles there was then and there the said name, marks and devices- of the said corporation, as above described, blown and impressed.

(1.) Said corporation has never given or granted to any person or persons, corporation or corporations, a written or oral consent that said person or persons, corporation or corporations, or any one, could or should sell, but give, take or otherwise dispose of, or traffic in, any bottles having blown and impressed upon them the name, marks and devices aforesaid.

(8.) Said corporation has never sold or given away any bottle or ■bottles having blown and impressed upon them the-name, mark and devices aforesaid.

(9.) The said defendant, William P. Cannon, prior to the 30th day of September, 1890, purchased, at the city and county of New York, the said twenty-five bottles.

(10.) When said defendant so purchased said twenty-five bottles he did not then know in what manner or from whom said bottles had been obtained by said person from whom he purchased the same.

' (’ll.) Said twenty-five bottles were purchased as aforesaid by said defendant in the open market, in the same manner and way in which he was accustomed to purchase bottles in the course of his business as a dealer in second-hand bottles, to wit, from any one bringing bottles to his place of business for sale.

(12.) None of said twenty-five bottles were in existence prior to the 1st day of April, 1888.

The only other proof presented upon the trial was the evidence of one Linker, a detective, who testified that on the twentieth day of September he found in the possession of the defendant twenty-five bottles, which were then produced and admitted in evidence. Thereupon the prosecution rested, and the defendant’s counsel moved that the jury be directed to acquit the defendant on the ground that the facts proved have shown the commission of no crime by the defendant, for the reason that the statute declaring it to be a misdemeanor to use or traffic in bottles so marked as indicated is unconstitutional, and that its provisions are in violation of the provisions of the Constitution, which secures to every man the right to his property, the right to keep it, and not to have it taken away from him without due process of law.

The defendant’s counsel also asked the court to dismiss the indictment, and acquit the defendant on the further ground that the acts under which the defendant is indicted place restrictions upon lawful and legitimate business, and prefer one class of business to another, which is ‘ against public policy and is unconstitutional. He also asked the court to dismiss the indictment and acquit the defendant on the further ground that the acts under which the indictment had been found are unconstitutional in authorizing the searching of defendant’s premises, and the seizure and removal therefrom of said twenty-five bottles by virtue of a search warrant, when said bottles had not been stolen or purloined, but had been purchased and paid for by the defendant in the open market and in the regular course of his business.

These several motions were denied and proper exceptions taken to the ruling of the recorder. The defendant was then examined as a witness in his own behalf, and having testified as to his business, and its location, further stated that he purchased the twenty-five bottles in question prior to September 30, 1890; that he did not know from whom he purchased them ; that he did not purchase them from the A. Liebler Bottling Company, nor did he know how the person from whom he purchased them became possessed of them. He further testified that he purchased the bottles in the course of his business and in the open market.

The defendant then rested and the court was asked by his counsel, upon the facts conceded in the stipulation as well as upon the facts established by the oral evidence in the case, to charge the jury that the act of the legislature, under which the indictment was framed, is unconstitutional, and that, therefore, the defendant had committed no crime.

Upon the grounds stated in his original motion to dismiss, he again asked the court to advise the jury to acquit; and on the same ground he also asked the court to dismiss the indictment and acquit and discharge the defendant.

These several requests being refused, exception was duly taken to such refusal, and after the charge by the recorder the jury found the defendant guilty, and the judgment already -referred to was pronounced against him.

As long ago as 1847 the legislature passed an act in relation to the sale of bottles used by the manufacturers of mineral waters and others, which, after providing that the descriptions of the bottles should be filed' in the office of the Secretary of State, and of the cleric of any county in which said articles should be bottled or sold, and for the publication in a newspaper of the description of the name and marks so used and sold, imposed a penalty upon any person who should sell any bottles marked or stamped as in the first section of the act described, and gave a right of action therefor to the person whose mark shall be stamped on the bottles so sold, who should have complied with the provisions of the first section of the act, and any bottle dealer or keeper of a junk shop who should purchase such bottle from any person was made liable to the penalties imposed by the second section.

The act of 1847 was amended by chapter 117 of the Laws of 1860, which declared it to be unlawful for any person or persons thereafter, without written consent of the owner thereof, to fill with mineral waters, etc., any such bottles so marked or stamped, or to sell, dispose of, buy or traffic in any such bottles so marked or stamped, etc.; and, in addition to the penalty prescribed by the previous act, it was provided that: “ The fact of any person, other than the rightful owner thereof, without such written permission, * *• * using such bottles for the sale therein of any mineral water or other beverage, shall be presumptive evidence of the unlaxoful use and purchase of such bottles ; ” and the section went on to provide that any owner, or agent of such owner, who should make oath or affirmation that he had reason to believe that any of his bottles, stamped and registered as aforesaid, were being unlawfully used by any person or persons selling or manufacturing mineral waters, etc., or that any junk dealer or vendor of bottles shall have any of such bottles secreted upon his premises, or in any other place, the magistrate might issue a search warrant to obtain the same, and should have power, in a summary way, to bring the person accused before him, and if the magistrate should find, on summary examination, that such person had disobeyed or violated any of the provisions of the act, he might proceed to impose a fine, and if the same be not paid, to commit said person to prison for a term not to exceed fifteen days.

Under this last act the case of Mullins v. The People (24 N. Y., 399) arose, and the only remark that we find in regard to the constitutionality of the act under consideration was made by Selden, C. J., in delivering the opinion of the court, in which, after stating that “ at common law the presumption from the facts proved would clearly be that Mullins came lawfully into possession of the bottles,” the learned judge said: “ Hence, although in view of the interpretation which I have given to the statute, there is no objection to its constitutionality, still I see no evidence in the case upon which the conviction can properly rest.” And the court held, that the judgment appealed from, reversing the conviction of the magistrate, should be affirmed. This case, which is referred to by the counsel for the people in his points, gives us very little aid in determining the question presented on this appeal. It was, however, held by Mr Justice Barrett (In re Griffenhagen, N. Y. L. J., May 27, 1890,) that the act under which this defendant was indicted was constitutional.

In the case of the People ex rel. Fellows v. Hogan (123 N. Y., 219), the Court of Appeals, in disposing of the case, held that it was needless for them to consider the constitutional question, as to which they expressed no opinion.

It will be observed that this case does not arise under section 4 of the acts of 1881 and 1888, relating to the proceedings by the magistrate upon the application for the issuance of a search warrant, and the only question which is presented by the record before us is, whether the second section of the act and amendatory act, prohibiting the selling, buying, giving, taking or trafficking in said bottles without the written consent of the persons from whom they shall have been purchased, is constitutional.

Although it may seem harsh that an innocent vendee of bottles, stamped and registered as required by the acts, should be deemed guilty of a misdemeanor, we cannot say that the provisions of the second section are in conflict with the Constitution. It does not deprive the defendant of his property without due process of law, because, upon the fair construction of the stipulation upon which this cause was tried, tire bottles in question had been the property of the said corporation, which had never given a written or oral consent that any one should sell, buy, etc., the same, nor had said corporation sold or given away any bottles, having blown and impressed upon them the names, marks and devices referred to in the stiqiulat.ion and in the indictment. The fact that the defendant purchased the property in the due course of his business, and in open market, cannot avail him as a defense in this action, there • being no such thing as a market overt in this country. The defendant, therefore, could obtain no better title to the property than that which was possessed by the person from whom he purchased them, and we do not think it was unconstitutional for the legislature to declare, as it has done by the third section of the act as amended, that the possession of the bottles having the name, mark or device thereon of such owner without his written consent, should be presumptive evidence of the unlawful use, purchase and traffic in such bottles, etc. Nor do we think that it can be successfully urged that the acts in question placed unreasonable restrictions upon the defendant’s lawful business. It is conceded by the record that the filing and publication of the marks were complete prior to the 1st day of March, 1888, and that none of these bottles were in existence before April 1, 1888, and that the purchase was made by Cannon prior to the 30th clay of September, 1890, on which day the bottles were found in his possession. "We think the counsel for the people is, therefore, right in his contention, that the only restriction which was placed upon the conduct of the plaintiff’s business is similar to that which exists in an ordinary trade-mark case, which prohibits one party from selling goods bearing the trade-mark of or the color-able imitation of the trade-mark of another party. Neither does the fact that the defendant purchased the property in question, without any criminal intent or guilty knowledge, aid him on this appeal. (See People v. Kibler, 106 N. Y., 321; People v. West, 106 id., 293.)

The cases of the People v. Marx (99 N. Y., 377); Matter of Application of Jacobs (98 id., 99); The People v. Gillson (109 id., 389), and similar cases relied upon by the appellant’s counsel, do not, in our opinion, have any application to the case at bar, for the reason that in those cases the court proceeded upon the fact that the obnoxious legislative enactment prohibited a branch of industry not injurious to the community, and not fraudulently conducted, solely for the reason that it competed with another. No such element exists in this case.

The object of the legislation under consideration was not only to protect the owners of bottles, stamped as specified in the act, but to prevent the public from being imposed upon by having those bottles filled or sold, or bought by other parties who might use them and palm them off upon the public as being filled by the owners who had registered them, or by parties who had lawfully derived their title from such owners. Although the act may, in some of its features, seem to be harsh in regard to an innocent purchaser, we cannot, in the language of Andrews, J., in delivering the opinion in Bertholf v. Reilly (74 N. Y., 516), pronounce a law invalid “'for the reason simply that it violates our notions of justice, is oppressive and unfair in its operation, or because, in the opinion of some or all of the citizens of the State, it is not justified by public necessity or designed to promote the public welfare. We repeat, if it violates no constitutional provision, it is valid and must be obeyed. The remedy for unjust or unwise legislation, not obnoxious to constitutional objections, is to be found in a change by the people of their representatives according to the methods provided by the Constitution.”

It follows, therefore, that the judgment of- the court below should be affirmed.

Yan Brunt, P. J., and O’Brien, J., concurred.

Judgment affirmed.


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

text:
    NICHOLAS W. WALSH, as Executor and Trustee of HUGH WALDRON, Deceased, Respondent, v. MARIE WALDRON and Another, Appellants, Impleaded with Others, Defendants and Respondents.

      Will — suspension of the power of alienation — a single trust with several beneficiaries.

    A testator, by his will, devised all his estate to his executors in trust, giving them a power of sale and directing them to invest all the property in securities, and to pay the income in such sums as they deemed proper to his six children until they, respectively, reached majority, for their maintenance and education. He further directed that the interest of each of the four sons should cease at majority, both in the income and in the principal. The will further provided that when the youngest son, named Daniel, reached majority the income should be equally divided between the two daughters during their lives; that if either died leaving issue one-lialf of the whole estate should be disposed of as the daughter dying should direct by will; that if one or both of the daughters died without issue, then one-half or the whole estate, as the case might be, should be equally divided between the sons.
    At the time of the testator’s death all the children were living, and only one, a son, had reached majority.
    In an action brought to obtain a construction of the will:

      Held, that there was no separate trust for each child, nor any definite share of the indome allotted to it, but that all the property was to be held in one trust, each child to receive so much income as the trustee thought proper.
    That whether the estate w'jis to be regarded as real or personal property, and, assuming that the word “minority” was equivalent to “life,” the trust was void because a final distribution was made dependent upon more than two lives in being at the death of the testator.
    Appeal by the defendants, Marie Waldron and. Ellen Waldron, by Charles Jones, their guardian ad litem,, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 21st day of August, 1891, declaring void the trusts in the will of one Hugh Waldron, deceased, except from .that part of the judgment which adjudged that the costs and allowances of the parties, and of the guardian ad litem, be paid out of the estate of flugh Waldron, deceased.
    The will in question was, in part, as follows;

      “ II. I give and devise all my real and personal estate, including all sums realized from life insurance policies now upon my life, of what nature or kind soever, to Nicholas W. Walsh and Flavius J. Allen, my executors, hereinafter appointed, in trust, for the execution of my will, with power to sell and dispose of my real and personal estate at such times and upon such terms, and in such manner as to them shall seem meet.
    “ III. I direct that my said executors, hereinafter appointed, shall invest any sum and all sums arising from my personal and real property, including any and all sums accruing from life insurance policies now upon my life, of what nature or kind soever, in good and substantial interest-bearing securities, bonds or mortgages.
    “ IY. I direct that the interest and income arising and accruing from the investments aforesaid directed, be paid by my executors, hereinafter appointed, in such sums as may meet with the judgment and discretion of my said executors, to my daughters Marie and Ellen, and to my sons James, William, Hugh and Daniel, until they respectively reach the age of twenty-one years, fort-heir maintenance and education.
    “V. I further direct that as each of my sons mentioned herein-before, attains the age of twenty-one years, that his interest in my estate, or in the income arising therefrom, shall cease. I so direct because I believe that boys of the age of twenty-one should and ought to be able to care for themselves.

      “ VI. I further direct that when my youngest son, whose name is Daniel, shall have attained the age of twenty-one years, that the income arising from all of my estate shall then be equally divided between my daughters Marie and Ellen, during their lives, and in the event of either of my said daughters dying leaving issue, then, and in that event, one-half of my said estate in the hands of my said executors to be disposed of as she might direct by will ;■ and in the event óf one or both of my said daughters dying without issue, then the one-half or the whole of my estate, as the case might be, is to be divided between my sons, or their heirs, share and share alike.”
    At the death of Hugh Waldron all his children were living, and but one, James Waldron, was of age. He appointed two executors, named Nicholas W. Walsh and Flavius J. Allen, of whom Allen renounced.

      Michael J. Scanlon, guardian acl litem for Marie Waldron and Ellen Waldron, infant defendants, appellants.

      John Delahwnty, for the plaintiff, respondent.

      Mmid M. Newberger, for the defendants, respondents.

      Ezekiel Fixman, for the guardian ad litem for infant defendants, respondents.
   Lawrence, J.:

The learned justice who decided this case below rendered the following opinion:

“ O’Brien, J. In construing the will of Hugh Waldron, deceased, no doubt as to his intentions exist. The language used is unambiguous, and the scheme proposed clearly indicated.
“ He intended that each child, during minority, should receive such a portion of the entire income as, in the discretion and judgment of the executors and trustees, would be requisite for his or her support and education, and that as each son attained his majority his interest in the income should cease, and even in the principal he should not thereafter participate, except in the event of either of his daughters dying without issue, or, perhaps, in the event of the daughters dying, though leaving issue, without having made a will.
„ “ His two daughters were the primary objects of his solicitude, as evidenced by the provisions which gave to each of them, upon the youngest son, Daniel, attaining his majority, one-lialf of the entire income for life, with the right to each upon her death, having issue, to dispose of one-lialf of the principal.
“To effectuate these intentions a conversion of the real estate Avould be necessary, and in determining the validity of the trusts created by the will, Ave must assume the real estate to be equitably converted into personal property. Should the trusts, hoAveA'er, be declared void, and the testator be held to have died intestate, then the necessity for resorting to the doctrine" of equitable conversion likewise fails by becoming immaterial.
“ Are the trusts of personalty created by the will valid? Under the Devised Statutes, the absolute ownership of personal property shall not be suspended by any limitation or condition whatever by will for a longer period than two lives in being at the death of the testator.
“ By the fourth clause of the will the ownership is suspended during the minority of at least four of testator’s children ; and even if we construe minority to mean lives, Ave have still the ownership suspended for a period longer than the statute allows. There is no separate trust in favor of each child, nor any aliquot or proportionate share of income allotted, but the principal and income are to be held in a single trust, and each child receives such proportion of the income as the trustee thinks proper to give.
“The fourth clause being void, can the sixth clause be upheld? This provides “ that Avhen my youngest son, whose name is Daniel, shall have attained the. age of twenty-one years, that the income arising from all of my estate shall then be equally divided betAveen my daughters, Marie and Ellen, during their lives, and in the event of either of my said daughters dying leaving issue, then, and in that event, one-half of my said, estate in the hands of my said executors to be disposed of as she might direct by will,” etc.

“ In determining the validity of limitations of estates under the Revised Statutes, as said by Judge Grover in Schettler v. Smith (41 N. Y., 328): “ It is not sufficient that the estates attempted to be created may, by the happening of subsequent events, be terminated within the prescribed period, if such events might so happen that such estates might extend beyond such period. In other words, to render such future estates valid they must be so limited that in every possible contingency they will absolutely terminate at such period or such estates will be void.” (Haynes v. Sherman, 117 N. Y., 433.)

It has repeatedly been held that the period of suspension must depend upon lives. Every suspension for a definite or indefinite period, however short, is void. If the court were at liberty to make a will other than the testator himself made, it might indulge in a construction which would give a meaning to the sixth clause, holding that, the trust is one for the life of lianiel as to the whole fund, and then a.trust as to one-half of the fund for each girl for life, and then the entire fund to vest.

It is evident, however, that the period of the minority of Daniel, as said in Titus v. Weeks (37 Barb., 136), “ is not a minority dependent upon life, but is a definite term extending until the time when the minority would terminate, or, in the event of his death, which has happened, would have 'terminated. * * * The name and the minority of * * * are used in this will simply to indicate the period of distribution and as a measure of time. It is plain that the testatrix had in mind a definite period during which she desired that the four nephews, whom she named, should receive the benefit of the whole income of her estate, and that she also intended that the final distribution of her estate should not take place until the end of that period. It would be doing violence to her intention, and to the whole structure of the will, to hold that all its provisions should be changed, and the distribution of her estate so materially accelerated by an event she does not seem to have contemplated.”

This language is equally applicable to the will under consideration. The suspension, therefore, attempted by the sixth clause having been not for a' life or lives, but for a definite period, tbe whole disposition of the estate made by the will is void. There should be a decree accordingly.”

We fully concur in the views expressed in the foregoing opinion, and, therefore, affirm the judgment rendered at the Sjiecial Term.

Van Brunt, P. J.:

I concur in the result. It is apparent from a reading of the will in question whether the subject-matter of the trust is to be considered as real or personal estate, the trust is to continue as to the ivliole of the estate as long as any of the children remain minors. Because if the youngest son dies before attaining the age of twenty-one years, and during the minority of the other children, or any of them, the trust for the others continues until all the minorities of the sons cease, and after that the final distribution of the estate is dependent upon the life of a sister.

Thus, if Daniel should die during his minority and before James, William and Hugh had become of age, the trust must continue during the minority of each of these or until all had died during minority, or had attained their majority ; and also until the death of one of the daughters, before distribution could be had of any part of the estate.

It might happen, therefore, that five lives must terminate before distribution, a clear violation of the statute.

Judgment affirmed.


author: O’Brien, J. ': Van Brunt, P. J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ALICE STOBO, Respondent, v. JAMES S. EADIE, as President of the GLOBE FIRE INSURANCE COMPANY, and Another, Appellants.

      Corporations — inspection of transfer-book — the power to grant it is not confined to the statutory period.

    Alice Stobo obtained a peremptory writ of mandamus allowing her to inspect the transfer-book of a corporation, upon an affidavit alleging that she held stock of the company in certificates which ran in the name of her deceased husband
    The application was not made within thirty days of an election of directors and officers, as specified in section 199, chapter 409, Laws of 1883, although the applicant believed berself to be within such time, information as to the date of the annual meeting having been refused her by the corporation.

      Held, that such an application was addressed to the discretión of the court, and although not made within the period during which the statute gives to the stockholder an absolute right of examination, the present was a proper case for a favorable exercise of discretion. (Van Brunt, P. J., dissenting.)
    Appeal by James S. Eadie, as president of the Globe Fire Insurance Company, and also by said company, from an order of the Supreme Court, made on the 29th day of December, 1891, directing that a peremptory mcmdamus issue permitting Alice Stobo, or her attorney, to examine and inspect the transfer-book of the Globe Eire Insurance Company, or such book kept by it as contained the names of its stockholders.

      Lemuel Skidmore, for the appellants.

      Jmnes J. Allen, for the respondent.
   O’Brien, J. ':

From the order that a peremptory writ of mcmdanws issue out of this court, directed to appellants Eadie, as president, and the Globe Eire Insurance Company, commanding them to permit the relator, Alice Stobo, or James J. Allen, her attorney, to examine and inspect the transfer-book of the company, or such book kept by it as contains tho names of the' stockholders, this appeal is taken.-

The application was made upon affidavits in which it was stated that the Globe Eire Insurance Company was a domestic corporation; that Alice Stobo, the relator, held, in certificates, seventy-five shares of the capital stock of said company, which certificates were made out in the name of her deceased husband, Robert Stobo; that she went with her counsel to the office of the company for the purpose of obtaining an inspection of the transfer-book or book containing a list of the stockholders of said company, in order that she might be able to vote intelligently at the approaching meeting of the stockholders of said company; that she requested the president to permit her to examine the same, which was refused. It also appears that Mrs. Stobo’s attorney had, prior to that time, called and made the same request, which was refused; and on another occasion he again called and requested to be informed as to the date of the annual meeting, which information was also refused.

In her affidavit Mrs. Stobo further states that she was informed and believed there was to be a meeting of the stockholders of the company for the election of directors and officers some time between the 1st and 5 th days of January, 1892.

It will thus be seen that after information as to the real date of the meeting was refused, and acting upon the information which the relator received and believed, that the election of directors and officers would occur within thirty days after her application for permission to inspect the book containing the names of stockholders, she made this application intending to take advantage of the provision of the statute which gives the absolute right to a stockholder, within thirty days prior to an election, to make an examination of the books containing the names of stockholders. (Chap. 409, § 199, Laws of 1882.)

Upon the argument of the motion it appeared for the first time that the application was not made within thirty days of an election. The court, however, held that the papers disclosed sufficient to authorize it to exercise its discretion, and accordingly the order appealed from was made.

It must be apparent, from the papers themselves, that if the court had any discretion it was wisely exercised in granting the application. The principal ground upon which the appellant relies is that the court has not the power, or that if it had it will not enforce it in any case in favor of the right of a stockholder to inspect the books of a corporation, except at the time and in the manner specified by the statute governing the corporation. To sustain this ground the appellant relies upon two cases, that of People ex rel. Hatch v. The Lake Shore and Michigan Southern Railroad Company (11 Hun, 1), and the People ex rel. Field v. Northern Pacific Railroad (18 J. & S., 459).

An examination, however, of those cases will show that the ground of the refusal to allow an inspection of the books recognized the power of the court, and the right to exercise its discretion to either grant or withhold a ma/ndamus, and thus the contention of the appellant is disposed of.

In the case of Hatch v. The Lake Shore and Michigan Southern Railroad (supra), this court said: “ The object of this statute ” (1 R. S., 601, § 1) ” is quite apparent. It intends to put it in the power •of every stockholder, for thirty days previous to any election of •directors, to ascertain the names of all stockholders of the company so that he can exert such influence or use such lawful means as he may deem proper to effect the election of such directors, but the statute does not, we think, cut off all rights'of the stockholders of a corporation to examine its transfer-books for proper purposes, and on proper occasions at other times. There are no words in the statute indicating such an intention, nor any negation of the rights of stockholders, which requires that construction. We think, therefore, that it is within the power of the court, whenever a case is presented that requires it to be done for the purpose of preserving the rights and interests of stockholders, to interfere by ma/ndamus and compel the exhibition of the transfer-books of the coloration or the books containing the names of its stockholders.”

The Court of Appeals expressly approved of this language in affirming the decision of this court in The Matter of the Application of Sage v. The Lake Shore, etc., Railroad (70 N. Y., 222).

It being, therefore, a matter of discretion which, upon the facts, was properly exercised, the order appealed from should be affirmed, with costs and disbursements.

Patterson, J., concurred.

Van Brunt, P. J.

(dissenting):

I dissent from the foregoing conclusions. In the first place, the applicant is not a stockholder of the corporation? Upon the books of the company no stock stands in her name, nor has she made any application for a transfer which has been refused.

Her husband was the owner of stock which she alleges she has transferred to herself, but she nowhere alleges that such stock was ever transferred on the books of the company. It seems to me that, as the only way a company can determine who are stockholders is by their books, that unless a party apjDears upon their books to be a stockholder, they are not compelled to recognize such person as such.

In respect to case of Sage v. Lake Shore Railroad (70 N. Y., 220), it seems sufficient to say that no question of the kind now presented was before the court, and what was said upon the subject was entirely obiter.

If sucli general right existed, what was the necessity of the legislation contained in 1 Revised Statutes (601, § 1); as it did not exist it was necessary to confer it by legislation.

Order affirmed, with costs and disbursements.