source: Caselaw Access Project

author: Yan Beunt, P. J.:

license: Public Domain

text:
    FRANK WALTON, Respondent, v. PARKE GODWIN, Appellant.

      Interrogatories to a commission to examine a witness — 'when so clearly irrelevant as to he disallowed.

      Although, as a general rule, all interrogatories which may he propounded under a commission for the examination of a witness should he allowed, leaving the question as to the admissibility of the evidence to he determined at the trial, where it can he much better and more intelligently done than upon the settlement of the interrogatories, yet where an interrogatory is clearly irrelevant, and is apparently put for the purpose of eliciting information in no way connected with any issue presented by the pleadings in the action, such interrogatory should not he allowed.
    Appeal by tbe defendant from order entered in tbe clerk’s office of tbe county of New York, July 2,1889, allowing certain cross-interrogatories to be attacked to a commission to be issued for tbe examination of Jacques Bouby a witness for defendant.

      Welson Smith, for tbe appellant.

      W. W. Badger, for tbe respondent.
   Yan Beunt, P. J.:

Although it is true that tbe general rule is to allow all interrogataries wbieb may be propounded under a commission, leaving tbe question of tbe admissibility of tbe evidence to be determined at tbe trial where it can be much better and more intelligently done than upon tbe settlement of tbe interrogatories, yet where an interrogatory is clearly irrelevant, and is apparently put for tbe purpose of eliciting information in no way connected with any issue presented by tbe pleadings in tbe action, such interrogatory should not be allowed. Applying this rule to tbe .interrogatories now before tbe court and which are put by tbe plaintiff by way of cross-examination, it would appear that no error was commited in tbe allowance of tbe eighth, ninth and the fli’st paragraph of tbe tenth. There were issues presented which related to the good faith of tbe opera company in tbe charge of plaintiff’s assignment, and also to tbe truth of the statements contained in tbe report signed by tbe defendant as to tbe assets of tbe opera company, and these interrogatories were pertinent to these issues. The last clause of the tenth interrogatory and the whole of the fourteenth seem to be improper. The fourteenth in no way tended to elicit any evidence in any way connected with the issues presented in this action, but seems to have been put for the purpose of procuring information which might affect other claims which had been or might be presented against the signers of the report in question.

The order appealed from should be modified, disallowing the last clause of the tenth interrogatory and the whole of the fourteenth, and as so modified affirmed, without costs.

Beady and Daniels, JJ., concurred.

Order modified, as stated in opinion and as so modified affirmed, without costs.


author: YaN BeuNt, P. J.:

text:
    JENNIE M. THOMPSON and Another, as Executors of the Last Will and Testament of JOHN B. THOMPSON Appellants, v. EDWARD H. HAWKE, Respondent, Impleaded with MAX DANZIGER.

      Action to compel a pm'ty to present a claim to executors — remedy of the executors where a testator has deposited collaterals loith a surety who has signed his bond, conditioned to pay any sum owing to am alleged creditor of the testator, and such creditor refuses to present his claim.

    The defendant in an action, as a condition of his being allowed to substitute another attorney to act on his behalf therein, was required to give a bond with a surety conditioned to pay one Hawke, the attorney who had formerly acted for him in the action, such sum as might be recovered in any action which might be brought by Hawke against him .for professional services in such action.
    The required bond was given and certain railroad bonds were given to the surety who executed it, to hold as an indemnity against his liability thereunder, and thereafter the plaintiff died, and some two years thereafter, and nearly three years after the giving of the bond, his executors requested Hawke to present his claim against their testator’s estate. Thereafter they commenced to advertise for the presentation of claims existing against the estate and, Hawke having failed to present a claim, the executors brought an action to require him to do so within three months from the entry of the decree therein, or to be debarred from bringing a suit on the bond in case of his failure to do so, alleging as a reason for so doing that unless Hawke should present his claim, or bring an action to recover the amount thereof, the executors would be unable to distribute the assets of the estate in accordance with the will, or to obtain from the surety upon their testator’s bond the railroad bonds which had been pledged and delivered to him .as an indemnity against the liability thereby assumed by him.

      Meld, that a demurrer, interposed to the complaint upon the ground that it did not state a cause of action, was properly sustained.
    Appeal by the plaintiffs from a judgment entered in the office of the clerk of the county of New York July 31, 1889, sustaining a demurrer interposed to the complaint, on the ground, among others, that it did not state a cause of action.

      Lewis Sanders, for the appellants.

      Lawton <& JLew, for the respondent.
   YaN BeuNt, P. J.:

In April, 1886, John B. Thompson, plaintiffs’ testator, as a condition for substituting another attorney in place of his attorney, the present defendant, Edward II. Hawke, in a suit then pending in the Court of Common Pleas, brought by Bichard J. Capron and another, was required to give a bond with a real estate surety in the penal sum of $10,000 to well and truly pay said Hawke, his heirs or assigns, such sum of money as said Hawke would recover in any action which might be brought by him against the said Thompson, for professional services and disbursements in the suit of Capron and Merriam against Thompson. Thompson gave the bond, with the defendant Danziger as his surety, on the 21st of May, 1886. To secure Danziger, Thompson pledged with him $10,000 in the bonds of the Columbus and Indianapolis Central Bailroad Company. Thompson died on the 12th of November, 1886, and plaintiffs, were appointed his executors. In March, 1889, two years and a half after Thompson’s death, and nearly three after giving the bond, plaintiffs requested the defendant Hawke to present his claim against their testator’s estate, and, on the 26th of March, 1889, plaintiffs commenced advertising the usual executor’s notice for the presentation of claims, and, on the eleventh of April they commenced this action to require the defendant Hawke, within three months from the entry of the decree herein, to present his claim for services in the Capron and Merriam case, or to be debarred from bringing suit on the bond, because, as plaintiffs allege, unless Hawke should present his claim or bring an action to recover the amount thereof, they will be unable to distribute the assets of the estate in accordance with the will, or to obtain from said Danziger the railway bonds pledged to him as security.

It seems to be conceded by the learned counsel for the appellant that, Thompson living, this action could not be maintained, but Thompson dead, it is claimed that equities arise in the plaintiffs’ favor out of their trust relation to the property of the deceased and the statute governing claims against executors. But it is difficult to see how the court can step in and add additional or other provisions to the contract between Thompson and Hawke, simply because Thompson has died. Simply because Thompson indemnified his surety upon the bond, in no way affected the- right of Hawke under his contract. He was not a party to such indemnification and had nothing to do with it. That was a private arrangement between Thompson and his surety.

The statutes have fixed Hawke’s right under his contract, and certainly this court cannot intervene and' impose new conditions which the court, under whose ruling the contract was given, has not imposed. Thompson having accepted a favor, upon the condition of making this contract, simply because he has died his estate cannot claim exemption from the full liability assumed by him.

The judgment appealed from should be affirmed, with costs.

Beady and Daniels, JJ., concurred.

Judgment affirmed, with costs.


author: Barrett, J.:

text:
    JAMES N. BRADLEY, Plaintiff, v. MARY A. LEAHY and Others, Defendants. JOHN J. BURCHELL, Purchaser, Appellant.

      Pu/rchase at a mortgage foreclosure sale subject to a prior mortgage — misstatement in the te/rms of sale as to the date at which the prior mortgage was due — o?'al statements by the auctioneer, in contradiction of the terms of sale (not liea/rd by the ’purchaser), that it was in fact under foreclosure, dis/regarrded.

    Where, under a decree for the foreclosure of a second mortgage, by the terms of sale, as read by the auctioneer and signed by the purchaser, “ the property is sold subject to a first mortgage of $5,000, due September, 1888; ” and it appears that at the time of the sale the prior mortgage was in process of foreclosure, and a decree for the foreclosure thereof and the sale of the premises had 'actually been entered, before the time at which the purchaser was to take his deed, the purchaser is entitled to be relieved from his purchase.
    Although the plaintiff’s attorney and the auctioneer testify that at the time of the sale a statement was made by the auctioneer, publicly and aloud, that the prior mort. gage was then in process of foreclosure (which the purchaser states that he did not hear), the purchaser will not be compelled to complete the purchase of the property.
    Appeal by John J. Burchell, the purchaser at a judicial sale, from an order, denying his motion to be relieved from the purchase and granting the plaintiff’s motion to compel him to complete it, entered in the clerk’s office of the county of New York June 14, 1889.

      Chcerles Uncmgst, for the purchaser, appellant.

      John Broohs, for the plaintiff, respondent.
   Barrett, J.:

The sale was under a decree for the foreclosure of a second mortgage. The terms of sale, as read by the auctioneer, and signed by the purchaser, contained this provision : Seventh. The property is sold subject to a first mortgage of $5,000 due September, 1888.” The sale took place on the 28th day of January, 1881. The property was struck down to Mr. Burchell for $1,050 over and above, and subject to, the first mortgage. Mr. Burchell thereupon paid $605 on account of the purchase-money, and signed the terms of sale containing the above provision. It appears that at the time of the sale the prior mortgage was in process of foreclosure, and the decree therein was actually entered before the time fixed for Mr. Burchell to take his deed. Upon this state of facts Mr. Burchell asked to be relieved. There is no doubt that the provision which we have quoted from the terms of sale was a substantial misrepresentation. The prior mortgage was then due, and the statement that it would not be due until September, 1888, was inaccurate and misleading. Mr. Burchell purchased upon the faith of that statement. He purchased the premises for immediate sale or exchange, and he relied upon the margin of eighteen months, which, according to the terms of sale, he would have to effect such sale or exchange before the maturity of the prior mortgage. By reason of this misrepresentation, the premises were practically worthless for the purpose for which they were purchased, and Mr. Burchell really acquired nothing more substantial than a claim to the surplus moneys which might result from the impending sale under the decree of foreclosure of the prior mortgage. ■

The plaintiff, however, claims that Mr. Burchell should be held to his purchase because of a statement said to have been made publicly and aloud at the time of the sale that the prior mortgage was then in process of foreclosure. The plaintiff’s attorney testifies that this announcement was made, and he furnishes certain details tending to give probability to the statement. He is corroborated by the auctioneer. Upon the other hand, Mr. Burchell distinctly affirms that he heard no such announcement; that he heard the terms of sale read by the auctioneer and noted the repetition of the provision therein, that the property in question was “ sold subject to a first moi’tgage of $5,000, due September, 1888.” In this he is inferentially corroborated by the referee, who maltes no affidavit, but who states in his report that he attended the sale in person and sold the premises for the sum of $1,050, “ over and above and subject to a first mortgage on said premises for $5,000, due September 1, 1888, and on which there was stated to be due on the day of sale the sum of $5,312.83.” Mr. Burchell says that he understood this $312.83 to refer to interest, while the plaintiff’s attorney and the auctioneer say that it referred to interest and costs of foreclosure. The referee is silent upon the latter head and also as to the alleged announcement that the prior mortgage was then in process of foreclosure. Upon the whole, then, the fact of the latter announcement is in doubt (for the testimony is somewhat evenly balanced), and it is, at all events, impossible to attribute negligence to the purchaser in not hearing and noting a statement which was in direct conflict with the terms of sale. He had a right to rely upon the terms of sale, and he had no reason to exercise extraordinary vigilance to see that they were not suddenly varied at the last moment. If this were a private contract between individuals, clearly the terms of sale would govern. They were carefully prepared for the purpose of embodying the contract — the entire contract. They were carefully read and scrutinized before they were signed. A court of equity would never enforce such a contract where there is a material misrepresentation therein to the prejudice of the vendee. Nor should the court compel the purchaser to take under its decree where such a misrepresentation is made by its own officer.

It is plain that, owing to this misrepresentation, JVIr. Burchell cannot get what he bargained for. It is equally plain that had he known the true condition of things, he would have declined to bid. Under such circumstances, specific performance will not be decreed (Waterman on Specific Performance, § 501; Bingham on Sales of Beal Property, 666; 2 Pomeroy’s Eq. Jur., §§ 889, 890), still less will a judicial sale, be enforced.

The order should, accordingly, be reversed, with ten dollars costs and disbursements, the plaintiff’s motion denied and the purchaser’s motion granted, with ten dollars costs. The order will also contain a provision canceling Mr. Burchell’s bid, directing the return of the sum paid by him to the referee, and, in addition, payment of $102, the expense of examining the title.

Yan Brunt, P. J., and Brady, J., concurred.

Order reversed, with ten dollars costs and disbursements, the plaintiff’s motion denied and the purchaser’s motion granted, with ten dollars costs.


author: Yan Brunt, P. J.:

text:
    JENNIE M. THOMPSON and Another, as Executors, etc., Appellants, v. ST. NICHOLAS NATIONAL BANK, Respondent.

      Tarnation of costs — set aside in order to allow an application to be made for can additional allowance.

    Although an application for an additional allowance can only he made before the final costs are adjusted, yet the court may, upon a proper application, for the purpose of allowing a motion for such extra allowance to he made, set aside the taxation of costs heretofore made.
    Appeal by the plaintiffs, from an order of the New York Special Term setting aside a taxation of costs and directing a retaxation, and granting an extra allowance.

      Lewis Sanders, for the appellants.

      John A. Taylor, for the respondent.
   Yan Brunt, P. J.:

It is undoubtedly true that applications for additional allowance can only be made before final costs are adjusted, but it is also true that the court may set aside a taxation of costs upon a proper application for the purpose of allowing a motion for an extra allowance to be made.

This is what was done in the case at bar. The defendant having been mistaken in his view that he was entitled to tax the allowance which had been previously granted, asked to have the taxation opened in order that he might make a new application for an allowance, which request was granted, and we see no reason to interfere with the discretion thus exercised.

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

Brady and Daniels, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Van Brunt, P. J.:

text:
    THE BOWERY NATIONAL BANK OF NEW YORK, Plaintiff, v. CATHERINE SNIFFEN, Defendant.

      Husband and wife — note, given by the wife, and indot'sed by bier bmsband, the payee, with intent that bie discount a/nd tabee the proceeds of it, does not create a contract between them — 1884, § 2, chap. 381.
    In an action brought upon a promissory note, given in 1887 by a married woman, payable to the order of her husband, who had indorsed the same before its maturity to the plaintiff in the action, a defense was interposed that the maker of the note was a married woman, the wife of the payee, and that the same was delivered without consideration therefor.

      Held, that the note was either given for value received by the maker, in which case it would have been given for the benefit of her separate estate, or it was a loan of her credit by the wife to the husband, in which latter case it would not constitute a contract between the husband and wife within the exception contained in section 2 of chapter 381 of 1884.

      Although the ordinary rule is that a promissory note is a contract between the maker and the payee, yet if the parties to the instrument intend differently there cannot exist any contract relation between them.
    In a case in which the maker and payee are wife and husband, and the paper is made for the accommodation of the latter, with the intention that the paper shall be discounted and the proceeds be received by the husband, a contract does not exist until such discount takes place.
    That the plaintiff in this case was entitled to recover.
    Motion for a new trial on exceptions ordered to be heard in the first instance at General Term, after a trial and direction of a verdict for the plaintiff at the New York Circuit before the court and a jury, November 23, 1888.

      J. B. Marvin^ for the plaintiff.

      D. T. Walden, for the defendant.
   Van Brunt, P. J.:

The complaint alleges that the defendant, Catherine Sniffen, made her certain promissory notes in 1887 and 1888, in writing, and copies of such notes are set forth therein. Each of said notes was in the same form, but varied in amount. The form was as follows:

“ Eour months after date I promise to pay to the order of John Sniffen, $2,500, at the Bowery National Bank, value received.
“CATHERINE SNIFFEN.”

The plaintiff alleged that the defendant delivered the said notes to the payee, who thereafter, and before maturity, indorsed the said notes and for. value delivered the same to the plaintiff. The defendant set up that, at the time of the making and delivery of the said notes to Sniffen, the payee thereof, the defendant was a married woman and the wife of said Sniffen, the payee of said notes, and that the same were made and delivered without consideration. The only evidence offered at the trial were the notes and the testimony of the cashier of the defendant, that they were presented for discount by John Sniffen and discounted for him and credit given therefor to him in his account with the bank. And it was admitted that the defendant was a married woman and the wife of John Sniffen. Upon these facts being established, the court directed verdict for the plaintiff and ordered the exceptions to be heard in the first instance at the General Term. The plaintiff is undoubtedly a Iona fide holder of the notes in question, having paid full value therefor to the payee. But, notwithstanding this fact as the law stood prior to the enactment of chapter 381 of the laws of 1881, no right of recovery existed.

In the case of the Second National Bank of Watkins v. Miller (63 N. Y., 639) it was definitely held that where a married woman had made certain notes payable to the order of her husband, which were presented by him for discount to the plaintiff, the notes were nullities, and no implication, presumption or impression that she was to be benefited by them in her business or estate could be drawn from their form, or from the fact that she had given them to her husband for the purpose of having them discounted, but that in order to charge her it must be made to appear by evidence aliunde the instrument that they were, in fact, made in her separate business or for the benefit of her separate estate. This same rule was laid down in the Saratoga County Bank v. Pruyn (90 N. Y., 250).

The question, then, presented is whether the enactment of chapter 381 of the Laws of 1881 has made any change in the law which will support a recovery upon the part of the plaintiff. The statute is as follows:

‘‘ § 1. A married woman may contract to the same extent, with like effect and in the same form as if unmarried, and she and her separate estate shall be hable thereon, whether such contract relates to her separate business or estate or otherwise, and in no case shall a charge upon her separate estate be necessary.”

It is clear that by this section the rules laid down in the cases cited have been abolished, except so far as exceptions arise under the next section, to which attention will be hereafter called; and that it is no longer necessary, in order to hold a married woman upon her contracts, to prove that the obligation was created by her in or about carrying on her trade or business, or that the contract relates to or is made for the benefit of her separate estate, or that the intention to charge her separate estate is expressed in the instrument by which the liability is created.

The exception, to which attention has been called, is contained in section 2 of the act, which provides that this act shall not apply to any contract that shall be made between husband and wife.

As already stated, unless the obligation which is the subject-matter of this suit is found to come within the restriction of the section last quoted, the plaintiff has a right to recover. The notes in question were either given for value received by the maker, in which case they would have been given for the benefit of her separate estate, and she would be liable upon them, within the principles laid down in Tiemeyer v. Turnquist (85 N. Y., 516), or it was a loan of her credit by the wife to the husband. The cases already cited show that there is no presumption that the notes were given for value, and, therefore, it must be assumed that they were mere accommodation paper and that they were a loan of her credit by the wife to the husband. If that is the case, then the notes were no contract between the husband and wife. There was no obligation which could be enforced by the husband against the wife under any circumstances. Where two parties execute an instrument without any intention of creating an obligation between them there is no contract. An intention to contract is an essential element of every contract. Therefore, if these were accommodation notes, there was no intention on the part of the maker to contract with the payee, and no intention on the part of either of the parties that any obligation, as between themselves, should be entered into because of the giving of the notes.

Although the ordinary rule is that a promissory note is a contract between the maker and the payee yet, if the parties to the instrument intend differently, it is difficult to see how a contract can spring into existence when neither intended that the act done should result in a contract as between them.

It follows from this, then, that the making of this promissory note by the defendant, and the giving of it to her husband, was not the making of any contract between them and was not intended so to be. When, therefore, did the contractual relation spring into existence ? Clearly not until the plaintiffs had discounted the paper in question and given the proceeds of such discount to the husband of the defendant. It was then for the first time that a contract did, actually spring into existence, and it was not intended by the parties to this paper until that event took place, that any contract because of the making and delivery of the paper should arise. In the loaning of her credit to her husband the wife took this method, and in so doing, as already stated, no contractual relation was formed between tbe husband and the wife, nor was any contract whatever made between them by reason thereof. It would not be contended for a moment that if the husband and wife had been joint makers of this paper, payable to their own order and indorsed by them, that any contract within the exception of section 2 of the act of 1884, would have been entered into. But although the form of the paper is different, yet the substantial liability to the holders of the paper of the husband and wife is the same, each being liable to be pursued for the recovery of the amount agreed to be paid upon the face of the paper.

It may be a question whether it was the intention of the legislature to exempt contracts of this description from the action of the first section of the act of 1884. It may very well be, and probaby was, the intention of the legislature to guard the wife against the making of contracts between herself and her husband which might be enforced by him against her separate estate, and that the policy of the law was not to promote traffic between the two except under the same restrictions that had heretofore existed, and that it was contracts of this character to which the exception in the statute was intended to apply, and not to those transactions which were contracts in form between husband and wife, but which could not be enforced until the right of some third party had intervened. That this interpretation of the act of the legislature is in accord with its intention seems to be fortified by them passage in 1887 of the act (chap. 537), which permits husband and wife to convey directly to each other real estate without the intervention of a third person. By the passage of this act the legislature indicated that it was their policy to allow husband and wife to do directly that which heretofore they had been only enabled to do through the intervention of some third party who really had no interest in the transaction.

It seems to be reasonably clear, that if these notes had been made by the defendant to the order of herself and indorsed by her and given to her husband, and he had had them discounted, that a liability would have arisen; and there could be no question as to its being a contract between husband and wife, and thus within the exception contained in the statute of 1884, and yet, so long as the husband was the holder of the notes, the relation between the husband and wife in respect to the paper was precisely the same and her obligation under the paper to her husband in no manner varied from what it was in the case at bar. Now, if the notes had been made in that form, and had been discounted by the bank for the benefit of the husband, a recovery could be had, and it would not be deemed a contract between husband and wife merely because they could not be used by the husband for the purpose of having them discounted without his indorsement.

It seems, therefore, that there being no rights whatever conferred upon the husband by reason of the making and delivery of this paper to him, that the notes were not contracts between husband and wife, although, in form, they appeared so to be. The prohibition of the act is against contracts between husband and wife; that is, agreements or instruments made between husband and wife which would be valid contracts under the provisions of the first section. The alleged contract between the husband and wife arising out of the notes in question, being no contract at all, would not be valid even under the broad provisions of the first section of the act in question, and, therefore, the exception contained in the second section can have no application. No contract, therefore, between the husband and wife springing into existence until the plaintiffs became the holder of the paper, and there being ño contract between the husband and wife, the provisions of section 1 of the act becamé applicable.

We are of opinion, therefore, that the plaintiff was entitled to recover, and that the exceptions of the defendant should be overruled and judgment ordered for the plaintiff upon the verdict.

Beady and Daniels, JJ., concurred.'

Judgment ordered for the plaintiff upon the verdict.


author: .Barrett, J.:

text:
    In the Matter of the Application of the NEW YORK AND LONG ISLAND BRIDGE COMPANY.

      Statute of 1885 authorising the laying of railroad trades, by a corporation a/uthxn'ised by acts of 1867 and 1879 to build a bridge, after a forfeiture of the franchise to build the bridge — condition of forfeiture in an original act applied to a violation of the provisions of an amendatory act.

    In proceedings to condemn and determine tlie compensation to be made to the city of New York for a portion of Blackwell’s Island for the purpose of the construction of a proposed bridge over the East river, from the city of New York to Long Island, by the New York and Long Island Bridge Company, it appeared that the petitioner was incorporated under chapter 395 of 1867, and thereby authorized to construct a bridge, and thereafter, by chapter 392 of 1885, was authorized to construct a railway.
    At the time the act of 1885 was passed the petitioner’s charter had been forfeited by its failure to comply with chapter 426 of 1879 (amending the act of 1867), which provided that the construction of the bridge should be commenced, “under contract for the entire structure, within two years" from May 30,1879, before which time nothing was, in fact, done by the petitioner towards such construction. By the original act of 1867 the penalty for a non-compliance therewith was declared to be that “this act, and all rights and privileges granted hereby, shall be null and void.”

      Held, that the condition contained in the original act of 1867 extended and attached itself to the case of a non-compliance with the act of 1879 enlarging or extending the term of the first-mentioned act.
    That while the legislature had power to waive the forfeiture, it had not the power, under the guise of this waiver, and under the semblance of reviving the forfeited charter, to confer distinctly new rights never before thought of, namely, the right to complete the bridge for railway travel.
    That the conferring of such new rights was an evasion of the provisions of section 18 of article 3 of the Constitution of the State of New York, to the effect that the legislature shall not pass a private or local bill granting to any corporation, association or individual the right to lay down railroad tracks, nor providing for building bridges, and chartering companies for such purpose.
    That the right conferred by the act of 1885 to build the bridge in question for railway travel, plainly implied a grant of the right to lay down railroad tracks and was thus in violation of the constitutional prohibition.
    Appeal from an order, entered in tbe office of the clerk of the county of New York, March 25, 1889, denying the petitioner’s application for the appointment of commissioners to ascertain and appraise the compensation to be made to the city of New York for so much of Blackwell’s Island as may be required by the New York and Long Island Bridge Company, for the purpose of constriietmg and operating the proposed bridge over the East river, from the city of New York to Long Island.

      Francis M. Scott, for the petitioner, appellant.

      Devoid J. Dean, for the City of New York, respondent.
   .Barrett, J.:

In denying the petitioner’s application at Special Term, Presiding Justice Yan Brunt filed a careful opinion which, in my judgment, demonstrates tbe unconstitutionality of tbe act (Laws of 1885, cbap. 392) under which these proceedings are instituted. But little need be added to this opinion. The original act under which the petitioner was incorporated (Laws of 1867, chap. 395) conferred upon it no authority to construct a bridge for railway travel. That act plainly contemplates an ordinary bridge for the passage of “ persons, animals, carriages and vehicles.” In section 6 of the act, provision is made for the usual toll-gates and rates of toll. In section 7 the purchase of tbe bridge by the counties of New York and Queens is authorized “provided the said bridge be made free to be passed by travelers and vehicles without toll or other charges.” There is not a suggestion of any other than the ordinary and well-understood use. Railroad bridges, or bridges for railway purposes, were entirely different structures, created for different purposes, governed by different rules, and requiring, as a prerequisite to their construction, legislative authority. A bridge of the latter character was never' contemplated by this act, nor, indeed, by any of the numerous amendments thereto, down to that of 1885. The appellant misapprehends the language of the presiding justice in this regard. He nowhere intimates that the act of 1867 authorized the building of a bridge for railway travel. On the contrary, referring to all the acts passed prior to that of 1885, he declares that in none of them does any power to build a bridge for railway travel seem to have been conferred, He does say that but for the constitutional inhibition of 1875, there seems to be no reason why the bridge might not have been built, capable of accommodating railway travel. Clearly, what he means by this observation is, that but for the constitutional inhibition, the act of 1885 would be valid and the bridge might then have been built for railway travel under its express authority.

Such is the view I take of his opinion, and this view is borne out by these various statutes. The first attempt to bring in the railway element is in this act of 1885. "When it was passed the petitioner’s charter had been forfeited by the failure to comply with the act of 1879 (chap. 426). This latter act was a legislative waiver of previous forfeitures, but it provided that the construction of the bridge should be commenced “under contract for the entire structure within two years” from the 30th of May, 1879. (Sec 1.) Nothing was done by the petitioner towards the commencement of construction within the time so limited, and, consequently, the forfeiture declared by the original act (§ 12 of chap. 395, Laws 1867) became operative. (Matter of Brooklyn, W. and N. R. R. Co., 72 N. Y., 245.) This case distinctly holds that the penalty for non-compliance with such a condition, declared in the original act, attaches to non-compliance with the act enlarging or extending the term. The penalty for non-compliance, specified in the act of 1867, is that “ this act and all rights and privileges granted hereby shall be null and void.”

Now, while the legislature in 1885 had power to waive the forfeiture of May, 1881, just as it had waived previous forfeitures, it had not the power, under the guise of this waiver and under the semblance of reviving the forfeited charter, to confer a distinctly new right never before thought of, namely, the right to build the bridge for railway travel. It is entirely apparent that this was an evasion of the Constitution. The act, with this new right speciously embodied in it, was evidently applied for and obtained because of a complete change in the petitioner’s original scheme.

The proofs show that the idea of a bridge for the passage of persons, animals, carriages and vehicles, as contemplated by the original act, had been entirely abandoned. ■ The bridge and its approaches are now designed for a double track-railway. It is simply a railway viaduct upon which both through and local trains are to be run. There are to be no carriage-ways, and even the “ limited ” foot-way is to be mostly for bridge service. I do not doubt that the power of the legislature to grant special charters for the building of bridges over the East river is limited by the constitutional prohibition against the passage of a, private or local bill granting to any corporation, association or individual the right to lay down railroad tracks.' The right conferred by the act of 1885 to build the bridge in question for railway travel plainly implies a grant of the right to lay down railroad tracks and thus runs counter to the constitutional prohibition. The presiding justice^ reasoning on this head is quite satisfactory and needs no amplification. The same observation applies to his treatment of the petitioner’s effort to sever this grant from what would otherwise have been a valid waiver of the existing forfeiture. The unauthorized grant was so interwoven with the other provisions and purposes of the act that it cannot be severed therefrom and rejected, leaving the revival of the old charter to stand. (Cooley on Const. Limitations, 213; In re N. Y. Dist. Ry. Co., 107 N. Y., 54, 55; Allen v. Louisiana, 103 U. S., 80.)

There is still another and an equally fatal difficulty in the petitioner’s way, and that is that it has again forfeited all its rights and privileges. I mean the very rights and privileges attempted to be conferred by the act of 1885. Section 3 of the act provides that the actual construction of the bridge shall be commenced on or before the 30th day of May, 1888. The evidence is clear and conclusive that this provision was not complied with. The petitioner’s own proofs fail to show anything more than preparation prior to the 30th of May, 1888, while the affidavits read on behalf of the city give the 7th of June, 1888, as the precise date when the first cargo of stone was placed upon Blackwell’s Island by any representative of the petitioner. It follows, on the authority of the case previously cited (72 N. Y., 245), that upon the failure of the peti tioner to commence the' actual construction of the bridge within the time limited by the act of 1885, the penalty attached to the -original condition (declared in the act of 1867) became operative and all rights and priviliges granted to the relator became null and void.

It is not necessary, therefore, to consider the question whether the legislature intended to appropriate any part of Blackwell’s Island to the use of this bridge company, nor to consider any of the other questions which were so thoroughly discussed.

The order appealed from for the reasons assigned, as well as those furnished by the presiding justice, should be affirmed, with costs.

Daniels, J., concurred.

Order affirmed, with costs.

       Application upon the part of the New York and. Long Island Bridge Company to acquire certain lands belonging to the city of New York.
      Van Brunt, P. J. Various grounds of objection were raised by the counsel for the city upon the argument of the application of the New York and Long Island Bridge Company.
      In view of the conclusion to which I have arrived, in reference to one of the points raised by the counsel for the city, it is not necessary that any other objections should be considered.
      It is urged that by section 3 of chapter 392 of the Laws of 1885, the authority to construct a railway is conferred in violation of the provisions of section 18 of article 3 of the Constitution of the State of New York. The provisions of the Constitution are that the legislature shall not pass a private or local bill granting to any corporation, association or individual the right to laydown railroad tracks, nor providing for building bridges and chartering companies for such purpose, except on the Hudson, below Waterford, and on the Bast river or other waters forming a part pf the boundaries of the State.
      The answer to the objection which is offered by the petitioners is that the clause of the Constitution claimed to be violated is that which forbids the legislature, from passing any private or local bill granting corporations, associations or individuals the right to lay down railway tracks, but that the same section expressly confers the right to build bridges over the Bast river, and the right to so construct the bridge as to permit the running of a railway over it is a necessary incident to such bridge; and that, at most, all the statute amounts to is to permit the company to construct the bridge, and, after it is built, some one who is authorized to do so may lay down railway tracks upon it; and that if this company has not the right to do so it can be acquired by some company having unquestioned right.
      And it is also urged that if these provisions were unconstitutional the petitioners have still the unquestioned right to build a bridge for foot and carriage traffic; and that the only question now before the court is whether the company has the right to build the bridge at all; that the uses to which it is to be put, when constructed, are not before the court at present, and that it will be time enough to discuss them when the question is properly presented.
      We think that the validity of the legislation under which the petitioners propose to act is clearly before the court upon the present application, and if they have no standing, because of the invalidity of such legislation, clearly they have no power to initiate proceedings by which the right of eminent domain is to be exercised. It is not the case, therefore, of a property owner raising an objection before he is hurt, as is claimed by the counsel for the petitioner; but it is the case of a property owner challenging the right of a'corporation to deprive him-^because of legislation — of property of which he is the owner.
      The present rights of the petitioners are conferred by the various acts of the legislature, the first of which appears to be chapter 395 of the Laws of 1857, incorporating the New York and Long Island Bridge Company. There is a pro vision in that act that the bridge shall be commenced within two years from its passage, and shall be continued, without unreasonable delay, until it is completed, or the act and the rights and privileges granted thereby shall be null and void. In the year 1871 additional powers were conferred upon the New York and Long Island Bridge Company, and the time for the completion of the bridge was extended to the 1st of June, 1879, the work to be commenced within two years from the passage of the act. In 1879, the time for the construction of the bridge was enlarged to the 1st day of June, 1885.
      In none of these acts thus far does any power to build a bridge for railway travel seem to have been conferred, nor in its character for carriage in any way specified.
      In 1885, by chapter 392, the period for the commencement of the actual construction of the bridge was extended to the 30th of May, 1888, and it was provided that said bridge should be built for railway, foot and carriage travel. This it would seem is a clear attempt to confer, by means of an amendment of the charter of the corporation, rights which had not previously existed, viz., that the bridge should be built for the purposes of railroad travel.
      Prior to this time there was no designation as to the kind of bridge to be built, and were it not for the inhibition contained in the Constitution in respect to the granting of rights to lay down railway tracks to any corporations, associations or individuals, there seems to be no reason why the bridge in question might not have been built capable of accommodating railway travel.
      The claim made upon the part of the petitioners that the words in question did not confer any right to lay down railroad tracks, but only to build a bridge suitable for railway travel cannot prevail, because if the bridge is to be suitable for railway travel it must have the appliances which are necessary for the conducting of a railroad. But I imagine that if these petitioners were defending their right to maintain the railway upon this bridge they could shelter themselves with perfect safety under the grant contained in this act. Were it not for the prohibition contained in the Constitution, we would have a different argument presented, and one to which there does not seem to be any answer, namely, that the making of provision for railroad travel which they were required to do, implied .the power to do everything necessary to carry on the railroad business.
      But it is said that the city is crying before it is hurt, because they have not built any- bridge and have not attempted to lay any rails, and, as a consequence, if they have not the power to lay rails there, they can be prevented and nobody will be hurt.
      The difficulty with this proposition is that the requirements of the act are that the bridge shall he of a certain character, and it is to be presumed that the extended time granted by this act for the consummation of the construction of the bridge and the many other concessions were induced by the fact that the bridge was to be of a particular character; that additional obligations were placed, upon this corporation by the legislature as a condition of these concessions. Now, it cannot be that when it turns out that the corporation cannot comply with the conditions upon which the extension was granted, that they can claim the benefit of the extension. It will not do, therefore, to say that the corporation has the power to build the bridge for carriage and foot travel and abandon the railroad project, and thereby bring themselves within the requirements of the law.
      The provision of the law is that they build a bridge for railroad travel, and if the legislature had no power to make such a concession and exact such a requirement, then the extension dependent upon these changes necessarily falls with the want of power of the legislature to put upon these petitioners these additional requirements which were the consideration for the concession in respect to time.
      It is undoubtedly true that where the parts of an act are independent and not related one to the other, and where some are unconstitutional and others constitutional, the unconstitutional ones may fall, and the constitutional provisions still remain. But in the case at bar it is a single piece of legislation relating to a single subject. The concessions and the obligations are mutual; and when you take away the right to fulfill one of the obligations the consideration for the concessions necessarily falls. The provision of the act is that such bridge shall be built for railroad travel, and, therefore, if the corporation have no power to build the bridge for railroad travel, they are unable to comply with the conditions upon which their right of construction depends.
      It seems to me, therefore, that for the reasons stated that the objection is well taken, and the application for the appointment of commissioners should be denied, with costs.
      Filed March 7, 1889.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOSEPH MURRAY, Appellant.

      Assault in the second degree — what acts justify a conviction thereof — when a man running through the street with an open jack-knife in his hand is guilty of disorderly conduct.

    Upon a trial had under an indictment charging the defendant with an assault in the second degree, it appeared that he was seen by an officer running through the streets with an open jack-knife in his hand, the handle of which was about two and a half inches long, and the blade of about the same length, attempting to escape from a police officer, who requested the complainant to assist him in securing the defendant. The complainant thereupon got behind a wagon, and as the defendant approached jumped out in front of and reached for him, whereupon the defendant struck out at the complainant three times with the open jack-knife before the complainant’s hand had actually been placed upon him.

      Reid, that the defendant was properly convicted of an assault in the second degree, because of his unnecessary attempt to stab the complainant.
    That the fact that subsequently the complainant drew' his club, and in order to protect himself struck the defendant, did not condone the original assault made by the latter.
    That while a man may run through the streets, holding in his hand an open jackknife, when pursued by an officer, without being guilty of disorderly conduct, as prescribed in section 1458 of chapter 410 of the Laws of 1883, yet the circumstances attending such acts may be such as to constitute “threatening behavior” within the provisions of that act.

      Appeal by tbe defendant from a judgment of tbe Court of General Session of the Peace, convicting the defendant of assault in the second degree on September 28, 1888.

      Ambrose II. Purdy, for the appellant.

      McKenzie Semple, for the respondent.
   Barrett, J.:

Murray’s case clearly came within the fourth subdivision of section 218 of the Penal Code, namely, willfully and wrongfully assaulting another by the use of a weapon or other instrument or thing likely to produce grievous bodily harm. Murray was seen by an officer running through the streets with an open jack-knife in his hands.. The handle of this knife was about two and one-half inches long and the blade. was of about the same length. The officer attempted to stop him whereupon Murray sought to stab the officer, making three lunges at him with the open knife. There was no defense upon the facts. I mean that no testimony was offered by the prisoner. He relied and now relies upon the point of law that the officer had no right to arrest him without a warrant. "While it must be conceded that there was no evidence from which the officer could reasonably infer the commission of a felony, yet there was, in my judgment, enough to go to the jury upon the question of disorderly conduct. Section 1458 of the consolidation act (Laws 1882, chap. 410) declares that every person (in the city of New York) who shall use any threatening, elusive or insulting behmior, with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned, shall be guilty of disorderly conduct. By the same act (§ 277) the members of the police force are authorized to arrest, without warrant, any person who shall commit or threaten or attempt to commit in the presence of such member, or within his view, any breach of the peace or offense directly prohibited by act of the legislature or by any ordinance of the city. The question then is whether Murray’s conduct came within the definition of disorderly conduct given in section 1458. It, is true that a man may run through the streets without being guilty of threatening behavior, even when pursued lawfully or unlawfully by an officer. It is equally true that he may lawfully hold in his hand an open jackknife. But the circumstances attending these acts may be such as to bring the case within the statute.

In other words, a man may run through the streets wielding an open knife in such a manner as to threaten the' public peace. Whether he did so in the present instance, whether the prisoner’s “behavior” was “threatening,” whether it tended to provoke a breach of the peace, whether it was such that a breach of the peace might be occasioned thereby, were questions to be determined by the jury upon all the facts and circumstances of the case.

There was not enough here to warrant the court in directing the jury one way or the other as matter of law. The evidence, though uncontradicted, was susceptible of two views or inferences, and, upon the whole, I think the question was properly left to the jury as one of fact, under appropriate instructions. Such instructions were given, and the prisoner cannot complain of their fairness.

It is also contended that the arrest was not, in fact, made upon the ground of disorderly conduct. This, however, is a pure assumption. The jury, too, have found the other way, in substance, that the prisoner was lawfully arrested by one (an officer) in whose presence he was committing a misdemeanor.

The conviction can properly be sustained upon another ground. It seems that Murray, when stopped, was running away from one Mitchell, also an officer. That officer requested the complainant Holahan to assist him in seeming Murray. Holahan then got behind a wagon and, as- Murray approached, jumped out in front of •and reached for him. This was all that Holahan did prior to Murray’s assault.

Upon the undisputed facts, therefore, Murray lunged at Holahan three times with the open jack-knife before even a hand had actually been placed upon him. Holahan managed to retreat; and to escape being stabbed, he subsequently succeeded in tripping Murray, who fell, and the arrest followed.

What transpired afterwards, namely, Holahan’s drawing his club and striking-Murray to protect himself, as he said, against the still open knife, did not condone the original assault.

That assault cannot be justified, even upon the theory of an illegal arrest. Holahan had, apparently, no weapon. He had not then drawn his club. He simply attempted, with open hands, to seize Murray’s person. If he thus erred in doing what he supposed to be his duty, Murray had no right to use greater force than was essential to maintain his freedom. He was certainly responsible, on the facts stated, for the unnecessary attempt to stab, and for that wrongful and willful act he was justly convicted.

The judgment should, therefore, be affirmed.

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

Judgment affirmed.


author: Brady, J. :

text:
    TIMOTHY M. SPELMAN and WILLIAM C. SPELMAN, Respondents, v. MORITZ FREEDMAN and CHARLES J. FREEDMAN, Appellants, Impleaded with Others.

      Assignment — invalid where, in contemplation thm'eof andimmediateby prior thereto, judgments a/re confessed and executions an'e levied on thepyropm'ty — 1887, chap. 503.
    In an action, brought to set aside certain judgments and executions, upon the ground that the judgments were in violation of chapter 503 of the Laws of 1887, in reference to assignments for the benefit of creditors, the complaint alleged that the plaintiffs were general creditors of the assignor, that an assignment was made by her of all her property for the benefit of her creditors, but that immediately prior to the execution thereof she confessed judgments in favor of certain of her creditors, who were also preferred by the terms of the assignment, upon which judgments executions were issued to the sheriff, who made a levy thereunder on the entire stock and property of the assignor just before the delivery of the assignment; that these judgments, and the proceedings taken thereunder, were for the purpose of preferring the judgment-creditors to the extent of more than one-third in value of the assigned property.
    That the plaintiffs had notified the assignee of these facts and requested him to bring an action to set aside the judgments, executions and levies, which he had refused to do, and they asked, on behalf of themselves and other creditors, that the judgments, executions and levies be set aside, that the property levied upon in the hands of the sheriff be directed to be turned over -to the assignee for distribution to the creditors of the assignor, including the plaintiffs, pursuant to the directions of the assignment.

      Held, that as this was not a creditor’s bill seeking the application of property to the plaintiffs’ debt exclusively, but was brought to secure the appropriation of the assignor’s property, according to the terms of the assignment, to the creditors generally, it was properly brought.

      Where a debtor has formed the determination to voluntarily dispose of his whole estate, and has entered upon the execution of that determination, it is immaterial into how many parts the execution thereof may be divided. The law will regard all his acts, having for their object and effect the disposition of his estate, as parts of a single transaction.
    It was the intention of the legislature, that when a general assignment for the benefit of creditors was contemplated, it should provide for the disposition of all the debtor’s property at the time of the formation of the determination to make the assigment, and that it should not in its general effects, be anticipated by a partial and preferential distribution of the estate.
    Appeal by tbe defendants from an interlocutory judgment entered in tbe office of tbe clerk of tbe county of New York November 2, 1888, overruling demurrers interposed to tbe complaint, in an action brought to set aside a judgment and execution.

      A. Blwmenstiel, for tbe appellants.

      J. W, BooiKby, for tbe respondents.
   Brady, J. :

Tbis action is brought to set aside a judgment and execution entered and issued in favor of tbe above-named defendants, upon the ground that tbe judgment was a violation of chapter 503 of the Laws of 1887, inreference'to assignments for tbe benefit of creditors. The plaintiffs are general creditors having no judgments or liens of any kind.

The plaintiffs, on tbe 14th of May, 1888, were, as already suggested, creditors of the defendants. On that day the defendant Sowsman made an assignment of all her property to tbe defendant Phelps for tbe benefit of her creditors, including tbe plaintiffs. On tbe same day, immediately prior to tbe execution of tbe assignment in which they were also preferred, and while it was in contemplation, she gave to tbe defendants, E. S. Jaffray & Co., Sigismund & Friedman Bros, judgments, by confession, amounting together to tbe sum of $6,996.95, which was greater than tbe onetliird of tbe assets of tbe assignor. Executions were issued on these judgments to tbe sheriff, who made a levy under them on tbe entire stock and property of tbe defendant, tbe assignor, just before the delivery of tbe general assignment, and proceeded to advertise the stock so levied upon for sale. Tbe plaintiffs claim that these judgments and the proceedings taken to enforce them were for the purpose of preferring the judgment-creditors named in them out of the assignors assets for more than one-third thereof, after the assignment had been determined upon, and for the purpose of preferring such persons out of her property in fraud of the assignment, and to prevent its assets from going into the hands of the assignee and being distributed to the plaintiffs and other creditors pursuant to the statute. It is also alleged that the plaintiffs notified the defendant assignee of these facts and requested him to bring an action as such, to set aside the judgments executions and levies, and that he refused; and they asked, on behalf of themselves and other creditors, that the judgments, executions and levies be set aside; that the property levied upon, in the hands of the sheriff, be directed to be paid over to the assignee, for distribution to the creditors of the defendant Sowsman, including the plaintiffs, pursuant to the directions of the assignment.

It is objected that the plaintiffs not being judgment-creditors have no lien upon the property seized, and cannot, therefore, maintain this action. It will be observed that the plaintiffs claim no special advantage for themselves, but that the property levied upon be secured for the assignee and to be distributed under the terms of the assignment. It is not a creditor’s bill seeking the application of property to the plaintiff’s debt exclusively, and the right to maintain such an action as this, the object of which is to secure the appropriation of the property according to the assignment to the creditors generally, has been declared in several cases. .

In the case of Dewey v. Moyer (72 N. Y., 78), which was an action brought to set aside a fraudulent conveyance of a bankrupt made prior to his bankruptcy, the court said: “ If the assignee should refuse or neglect to sue for and reclaim property fraudulently transferred it is abundantly established that the .creditors may commence an action to reach the property, making the assignee the debtor and his transferees parties defendant; and in such an action the property will be administered directly for the benefit of the creditors,” citing a number of cases to sustain the proposition, and the same doctrine was reiterated in Crouse v. Frothingham (97 N. Y., 113).

In such an action as this the object is to secure for general distributton property fraudulently disposed of by tbe assignor and place it in the hands of the assignee that it may be distributed according to the general provisions of the assignment. Such a right, if it did not exist by adjudication, should be established and jn-onouneed, not only as very reasonable, having all the attributes of a common sense view, but as important to the administration of justice. The plaintiffs having the right to establish their assertion that the judgments were fraudulently executed, as in contravention of the Laws of 1887, as already suggested, the question is whether that proposition is maintained. ' Section 30 of chapter 503 of the Laws of 1887, amending the act in relation to assignments is as follows? “In all general assignments of the estates of debtors for the benefit of creditors hereafter made, any preference created therein (other than for the wages, etc.) shall not be valid except to the amount of one-third in value of the assigned estate left after deducting such wages or salaries, and the costs and expenses of executing such trust; and should said one-third of the assets of the assignor or assignors be insufficient to pay in full the preferred claims to which, under the provisions of this section, the same are applicable, then said assets shall be applied to the payment of the same pro rata to the amount of each said preferred claims.”

It is to be observed that this provision has reference to preferences in general assignments, the language beingin all general assignments of the estates of debtors for the benefit of creditors hereafter made any preference created therein,” etc. Here the alleged violation of the statutes is not in anything in the assignment, but relates to confessions of judgment made prior to the execution and delivery of the assignment. A great many cases have been cited by the respective counsel in reference to the provisions in different States relative to general assignments, and great industry has been displayed in the collation of them bearing upon the subject. But the proposition advanced on behalf of the appellant seems to be established, namely, that while in many States of the Union there are provisions prohibiting preferences in general assignments, nevertheless it has been held that confessions of judgment and other securities. given prior to their execution and in contemplation thereof are not in violation of the provisions of the. statutes. For example, In re Gallagher’s Appeal (7 Atlantic Rep., 237) the assignment was executed on the morning of the 17th of March, 1885. On the day prior thereto, and probably in anticipation thereof, the assignor confessed two judgments in favor of two firms, aggregating about $40,000, and the court held, although by the laws of Pennsylvania the debtor had no right to prefer any creditor in the deed of assignment, this did not preclude him from preferring a creditor prior to its execution while he still retained dominion,of his property, and the decision of the ease rests upon that doctrine. (See, also, Lake Shore Banking Co. v. Fuller, 1 Cent. Rep., 109; Gallagher’s Appeal, 5 id., 725; 114 Penn. St., 353; Gage v. Perry, 69 Iowa, 605; Gilbert v. McCorkle, 8 Western Rep. [Ind.], 916; Gummersell v. Hanbloom, 1 id. [Mo.], 717; Blakey’s Appeal, 7 Penn. St., 449; Hutchinson v. McClure, 20 id., 63; Garretson v. Brown, 26 N. J. L., 425; Bates v. Coe, 10 Conn., 280; Perry v. Holden, 22 Pick., 269; Fairbanks v. Haynes, 23 id., 323; Lampson v. Arnold, 19 Iowa, 479; Van Patten v. Burr, 52 id., 518).

On the other hand in. the case, however, of Preston v. Spauldmg (120 111., 208), where a kindred question was considered and disposed of, it must be said that a different conclusion was arrived at by the court, although it seems to have been based chiefly upon the ground that the statute was silent as to the form of the instrument or instruments by which the insolvent debtor might effectuate an assignment. The court however, said, in discussing the statute, “It will be observed this act does not assume to interfere, in the slightest degree, with the action of a debtor while he retains the dominion of his property. Notwithstanding this act, he may now, as heretofore, in good faith sell his property, mortgage or pledge it to secure a bona fide debt- or create a lien upon it by operation of law, as by confessing a judgment in favor of a bona fide creditor. But when he reaches the point where he is ready and determines to yield the dominion of his property, and makes an assignment for the benefit of his creditors under the statute, this act declares that the effect of such assignment shall be the surrender and conveyance of all his estate, not exempt by law, to his assignee, rendering void all preferences and bringing about the distribution of his whole estate, equally, among his bona fide creditors; ” and the court held that it was within the spirit and intent of the statute, that when the debtor has formed the determination, to voluntarily dispose of his whole estate, and has entered upon that determination, it is immaterial into how many parts the performance or execution of his determination may be broken; the law will regard all his acts, having for their object and effect the disposition of his estate, as parts of a single transaction. And this case is referred to in White v. Cotzhausen (129 U. S., 343) with approbation. And in the consideration of the statutes of other States prohibiting assignments containing preferences and acts kindred to those charged against the assignor in this case, it has been held that the statute was violated, and the reasoning of Preston v. Spaulding seems to have commended itself as the more convincing upon the subject than that contained in the Gallagher case. (Clapp v. Nordmeyer, 25 Fed. Rep. [Mo.], 71; Berry v. Cutts, 42 Me., 445; Holt v. Bancroft, 30 Ala. [N. S.], 195; Van Patten v. Burr, 52 Iowa, 518; Fuller v. Hasbrouck, 46 Mich., 81; Hememan v. Hart, 20 N. W. Rep., 792-798; Perry v. Holden, 39 Mass. [22 Pick.], 277; Livermore v. McNair, 34 N. J. Eq., 478.)

Our statute, however, is different from those of other States, for the reason that it allows a preference to the amount of one-third in value of the assigned estate, after deducting certain things enumérated, thus recognizing, but limiting the right which existed before the prohibitory statute was passed, of a debtor’s appropriating his property by preference, if' he chose to do so. But it was evidently the intention of the legislature that if a general assignment for the benefit of creditors were contemplated, it should embrace the disposition of all the debtox-’s px-operty at the time of the formation of the determination to make the assignment, and that it should not, in its broad and general effects, be anticipated by a partial and preferential distribution of his éstate. The right to the preference, in other words, must be exex-cised in the assignment, and not otherwise. This would place the whole estate in the hands of the assignee, subject to the preferences as expressed, and would enable him to make a better disposition of it than could be accomplished by a sale under judgment and execution, and would thus caxvry out the design of the legislatixre and effectuate the legal purpose of the assignor in making his assignment. The defendants are not deprived of their interest, under the statute, in the proceeds of the estate, by reason of their attempt to obtain an illegal preference. They can still participate in such proceeds to the extent to which they are entitled by the legal terms of the assignment relative to them, or the provisions of the statute. (White v. Cotzhausen.)

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

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

Judgment affirmed, with costs.


author: Brady, J.:

text:
    SUSAN R. LAWTON, Respondent, v. GEORGE B. LAWTON and GEORGE B. LAWTON, Jr., Defendants. JENNIE MULL ALLAIRE, Petitioner, Appellant.

      Application by a party in interest to be made a party to a mortgage foreclosure 'suit— no conditions should be imposed.

    Upon the application of a person, having a substantial interest in the subject-matter of an action brought for the foreclosure of a mortgage, tobemade a party to the action, it is improper to impose, as a condition thereof, that the applicánt pay to the referee appointed to sell the mortgaged premises his fees; file a bond to pay all costs that may be awarded against her in the action; stipulate to refer, and consent to try the case before the referee on short notice.
    Under the provisions of 452 of the Code of Civil Procedure, it is the duty of the court, upon the application of such á party, to direct that he be brought in as a party to the action by proper amendment, without the imposition of any conditions.

      Earle v Hart (20 Hun, 75); Wood v. Swift (81 N. Y., 34) followed.
    Appeal by Jennie Mull Allaire from that part of an order, allowing her to become a party to this action, which imposes conditions, which order was entered in the office of the clerk of the county of New York May 31, 1889.

      E. W. Chamberlain, for the appellant and petitioner.

      A. J. Perry, for the respondent.
   Brady, J.:

This is an action to foreclose a mortgage made by the defendant George B. Lawton, to his wife, the plaintiff. The complaint was served on the defendant, George B. Lawton, who voluntarily appeared on the same day. The defendant George B. Lawton, Jr., did not appear. Neither answer nor demurrer was served herein, and judgment was entered by the plaintiff’s attorney on the 26th of April, 1889. The appellant, by petition verified May 11, 1889, obtained an order to show cause why the judgment should not be opened and she made a party to this action. Upon the argument which followed an order was made at Special Term on May 31, 1889, granting the petition on terms, but on failure to comply with them the motion was denied.

The learned justice in the court below, under the provisions of section 452 of the Code, granted the application upon the ground that the petitioner had a vested interest in the property which was described in the complaint, declaring in his opinion that the extent of the interest it was not necessary to determine; it was enough that she had a substantial interest, and that she had such an interest was clear. The learned justice, however, thought it should be granted upon the conditions which he imposed, namely, paying the referee’s fees, giving a bond for the costs of the action that might be awarded against her, and, if the plaintiff desired it, consenting to refer the issues raised by her answer and try the same on five days’ notice. If she failed to comply with these conditions the application was denied.

The learned judge erred in imposing the conditions. The section of the Code mentioned declares that when a person, not a party to the action, has an interest in the subject thereof, or in real property, the title to which-may, in any manner, be affected by the judgment, and makes application to the- court to be made a party, it must direct him to be brought in by proper amendment.

In Haas v. Craighead, decided in this department, and reported in 19 ITun, 396, it was said that the section referred to was very comprehensive and peremptory. And in Earle v. Hart (20 Hun, 75) the General Term of this department said: As to persons having an interest at the time of the filing of the lis pendens, the right (to be made a party) is absolute.” And the right being absolute the court had not the power to impose the conditions mentioned. (Wood v. Swift, 81 N. Y., 34.) In that case a condition was imposed where the right to the remedy asked was absolute, and it was discarded as unlawful. See, also, Tompkins v. Smith (62 How. Pr., 499; 89 N. Y., 602) declaring a kindred doctrine. The question involved herein has, therefore, been decided against the respondent. No successful answer to this view is presented on the record. Perhaps the only suggestion that could be made would be laches on the part of the petitioner; but this criticism m this proceeding cannot be made.

For these reasons that part of the order appealed from should be reversed, with ten dollars costs and disbursements.

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

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


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    THE UNITED STATES LAND INVESTMENT COMPANY, Appellant, v. THE MERCANTILE TRUST COMPANY, Respondent.

      Bill of particulars — when proper in an action to compel specific performance of a contract.

    In an action brought to compel a guaranty company to add its certificate to certain bonds given by the defendant, in pursuance of an agreement so to do, and to recover the damages occasioned by its failure to do so, the complaint alleged the making of the agreement; a compliance therewith on the part of the plaintiff; that the plaintiff had entered into large and important business contracts and enterprises, and contracted large pecuniary obligations which were greatly to its advantage, and from which it expected to realize large pecuniary profits, and that by reason of the defendant's refusal to perform its part of the agreement, the plaintiff was subjected to great pecuniary damages.
    Upon the application of the defendant for a bill of particulars, to be furnished by the plaintiff, of these contracts and enterprises set forth in its complaint, the plaintiff claimed that the action, being one simply to enforce the specific performance of a contract that the bill of particulars should have been denied, alleging that the plaintiff, after the adjudication upon its demand for equitable relief, would seek, by subsequent proceedings in the action, to recover damages for the defendant’s breach of contract:

      Held, that the bill of particulars was proper in this description of action, where the circumstances are such that justice demands that the party should be informed of the matter for which he is to be tried with greater particularity.
    That the whole subject could then be brought before the trial court, which could award damages, if the plaintiff’s cause of action was sustained in that respect, and thus avoid the circuity of action which would be involved in sending the question of damages to be investigated by a referee.

      Appeal by tbe plaintiff, from an order made at tbe New York Special Term and entered in the office of tbe clerk of New York county, September 9, 1889, directing tbe plaintiff to furnish tbe defendant a bill of particulars.

      Walter 8. Cowles, for tbe appellant.

      Alim McCnlloh, for tbe respondent
   Brady, J.:

This action was brought to compel a specific performance of an alleged agreement relative to tbe certification of tbe plaintiff’s bonds by the defendant, and to recover damages suffered in consequence of tbe defendant’s alleged refusal to perform tbe agreement. Tbe complaint, after stating tbe making of tbe agreement suggested, and compliance with its terms, alleges that tbe plaintiff bad entered into large and important business contracts and enterpises and contracted large pecuniary obligations, which were contracts and enterprises greatly to its advantage and from which it reasonably expected to and would .realize large pecuniary profits if the defendant bad performed its contract; and, further, that by reason of tbe defendant’s refusal to perform its part of tbe contract, tbe plaintiff bad been and was subjected to great pecuniary loss and damage. Upon these allegations tbe learned justice in tbe court below thought tbe defendant entitled to a bill of particulars, as sought, of these contracts and enterprises, and of what profits were expected therefrom.

Tbe learned counsel for the respondent seems to contend that tbe action being one seeking only to enforce tbe specific performance of a contract, tbe application for tbe bill of particulars should have been denied in toto, urging, in reference to tbe prayer for damages, that tbe plaintiff would, after an adjudication upon bis demand for equitable relief, seek, by subsequent proceedings in tbe action, to obtain damages for tbe defendant’s persistent and continued breach of the contract, and thus to avoid multiplicity and circuity of action. But this view cannot be sustained. A bill of particulars is proper in all descriptions of actions where the circumstances are such that justice demands tbe party should be informed of tbe matters for which be is to be tried, with greater particularity. (Tilton v. Beecher, 59 N. Y., 176, 184; Dwight v. The Germania Life Ins. Co., 84 id., 493, 505; Cunard v. Francklyn, 111 id., 511.)

Without considering, therefore, the discretionary element involved in directing the order, it is quite apparent that it should have been granted. The defendant should not be subjected to a trial or called upon to answer charges so indefinite as those contained in the complaint, and to which reference has been particularly made; nor should the defendant be required to go to trial, as long as the claim for damages remains, without a full exposition of all the elements of which they are composed. The whole subject, that view being carried out, would be before the trial court which could award damages if the plaintiff’s cause of action was sustained in that respect, and avoid circuity of action by not sending the subject of damages to a referee for investigation. The direct mode of disposing of the issues presented by the pleadings is that which the courts will favor, invariably, as the most speedy and the least expensive way to determine them.

For these reasons the order appealed from should be'affirmed, with ten dollars costs and the disbursements.

Daniels, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


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    CHANCEY STEVENS, Appellant, v. BRIDGET M. REYNOLDS, E. H. OGDEN and A. P. BIGELOW, Respondents, Impleaded with Others.

      Mechanic’s lien under chapter 342 of 1885 — a payment in advance of the time of the amount falling due under the contract is not in violation of this act' — the sum paid must represent materials furnished os’ work done on the bsdlding.

    In an action, brought by one Stevens to enforce a mechanic’s lien filed under the provisions of chapter 342 of the Laws of 1885, to recover the price of materials furnished towards a certain building, on the 15th day of February, 1887, it appeared that the firm of Ogden & Bigelow, between October 7 and November 6, 1886, had furnished to the contractor lumber of the value of $909, a portion of which, of the value of $400, was used in the building.
    On November 15, 1886, the following order was given by the contractor to Ogden & Bigelow, addressed to the owner:

      “New York, Nov. 15, 188G.
    “ H. M. Reynolds, Esq.:
    . “Please pay to the order of E. H. Ogden & Go. nine hundred and nine and 49-100 dollars, and charge to account of my contract with you for the carpenter-work, at 115-1 Waverly place, it being for lumber materials used in construction of the same, the amount to be paid of the last payment of $1,900.
    “ALEXANDER ANDERSON.”

      Held, that this order was an equitable assignment, pro tanto, of the amount of the last payment due by Reynolds, the owner, to Anderson, the contractor.
    That there was nothing in the mechanic’s lien law (chap. 842 of 1885) which in any way affected the right of Ogden & Bigelow to receive the amount mentioned in this assignment, to the extent, however, only of the value of the materials actually furnished by them for the building.
    That it was not within the power of the contractor to pay in advance out of the fund in the hands of the owner a sum in excess of the amount due for materials furnished to the building, except subject to the operation of the lien law. Chapter 478 of the Laws of 1802, the mechanic’s lien law for Kings county, distinguished from chapter 842 of the Laws of 1885 by the fact that under the provisions of the latter act collusion must be shown, both where the payment is made for the purpose of avoiding the provisions of the act, and where it is made in advance of the terms of the contract, while under the former act it is not necessary to show collusion in the latter case.

      Post v. Campbell (83 N. Y., 279) distinguished.
    Appeal by the plaintiff from a judgment, entered in the office of the cleric of the county of New York July 11, 1888, adjudging that the defendants, E. H. Ogden and A. P. Bigelow, were entitled to $909.94.
    The action was brought to enforce a mechanic’s lien. Upon the trial of the issues the parties affected by the appeal agreed upon the following state of facts.

      First. The defendant, Bridget M. Reynolds, was, September-1, 1886, and still is, the owner in fee of the premises described in the complaint known as number 115^- Waverly place, in the city of New York.

      Second. The defendant, Hugh M. Reynolds, was, and is, the husband of said Bridget M. Reynolds, and was her duly authorized agent to make contracts affecting said property.

      Third. The defendant Anderson, on or about September 21, 1886, made a contract with the defendant, Hugh M. Reynolds, as agent of said Bridget M. Reynolds, to do certain carpenter work on tbe building erected on said premises, and to furnish certain materials therefor.
    The contract called for the completion of the work on or before October 20, 1886, and the payments to be as follows :
    When all the trimmings should be done, except the basement .......................................... $1,000
    When all the doors and sash should be hung” vestibule' set up and hardware on.............................. 1 > 000
    Thirty-five days after the completion of all the work.... 1 > 900
    Making a total of..............................' $3,900

      Fourth. That said Anderson entered on the performance of said contract, and received payments on account amounting to $1,950. That he failed to complete the work by October 20, 1886, and continued, with Reynolds’ consent, to work on the building until about the 22d day of December, 1886, at or about which time the work was completed.
    That certain portions of the work called for by the contract were omitted by Anderson and completed by Reynolds.
    That the trial court has allowed $404.52 therefor. That certain other portions of the work were either waived by the owner or off-set by other work furnished. That the amount adjudged to be due said Anderson on said contract, after making said deduction, is $1,545.48.

      Fifth. That the plaintiff,.between September 13 and December 4, 18S6, furnished for and delivered to defendant Anderson, lumber to the value of $1,097.93, which lumber was used in the construction of said building; that no part of said claim has been paid.

      Sixth. That on the 15th day of February, 18S7, and after the said lumber had been fully furnished, and within ninety days after the final furnishing thereof, the plaintiff duly filed in the office of the clerk of the city and county of New York, a notice of lien¿ duly verified, against the said premises for the value of said lumber materials, as above set forth, under and in pursuance of the provisions. of chapter 342 of the Laws of New York, passed May 27, 1885.

      Seventh. That between October 7th and November 5, 1886, the defendants, Odgen & Bigelow, furnished to the defendant Anderson lumber of the value of $909.94, a portion of which, to the value of about $400, was used in said building. No part of said $909.94 has been paid.

      Eighth. That on or about November 15,1886, defendant Anderson executed and delivered to the defendants Ogden & Bigelow (who were copartners in business under the Ann name of Ogden & Oo.), an instrument in writing as follows :
    “New York, Wov. 15, 1886.
    “ II. M. Reynolds, Esq.:
    “ Please pay to the order of E. H. Ogden & Co., nine hundred and nine 94-100 dollars and charge to account of my contract with you for the carpenter work at 115J 'W’averly place, it being for lumber materials used in construction of same, the amount to be paid of the last payment of nineteen hundred dollars.
    “ALEXANDER ANDERSON.”
    This paper writing was given and accepted as payment for the lumber furnished as aforesaid. That said writing was presented to said Hugh M. Reynolds, in the presence and at the request of said Anderson, on the 15th day of November, 1886, and due notice thereof was given said Reynolds, hut no acceptance i/n writing was given.

   Brady, J.:

■ The learned justice held in the court below that the order given to Ogden & Oo. for $909.94, was an equitable assignment pro tanto of the amount of the last payment due by Reynolds to Anderson, the contractor, and that there was nothing in'the mechanic’s lien act of 1885 (chap. 342) which in any way affected their right to be paid the amount mentioned in the assignment, and this is really the only question which requires consideration for the reason that the conclusion of the learned justice that the order given to Ogden & Oo. was an equitable assignment, pro tanto, is clearly established by the case of Brill v. Tuttle (81 N. Y., 457), inasmuch as the sum mentioned in it was made payable out of a particular fund which was clearly a distinguishing characteristic of the order referred to. There is nothing in the case of Gunther v. Damstadt (Daily Register of March 20,1888) which conflicts with this view. There it was held that the paper in question was a mere, draft and that the circumstances attending the drawing and delivery did not indicate an intention to assign any part of tlie fund.

The act of 1885 (chap. 342) declares that if the owner or person in interest shall, for the purpose of avoiding the provisions of the act, or in advance of the terms of any contract, pay by collusion any money or any other valuable thing on such contract, he shall be liable for the amount that would have been unpaid to the contractor, sub-contractor or assignee had the owner or other person in interest made no such payment or given no such mortgage or effected no lien or incumbrance at the time of filing the notice of lien prescribed in the fourth section of the act. The appellant’s contention seems to rest upon the misunderstanding of the provisions just referred to, and illustrated by liis dependence upon decisions relating to the mechanic’s lien law of 1862 for Kings county (chap. 478), and the case of Post v. Campbell (83 N. Y., 279) in which the Court of Appeals construed that act and held that payments in advance of the terms of tbe contract, although without fraud or collusion, could not be-held against a lienor. It is conceded by the appellant’s counsel that in that act the word collusion did not appear in the precise connection that it does in the act of 1885. An examination of the different sections will show that by the act of 1862 two classes of payment were provided against, first, a payment by collusion for the purpose of evading the provisions of the act; and, second, in advance of the terms of any contract; which is entirely different from the language employed by the legislature in the act of 1885, which applies the word collusion to both classes of payment referred to in the act of 1862, the language being shall “ for the purpose of avoiding the provisions of this act, or in advance of the terms of any contract, pay by collusion any money, ” etc. The reasoning, therefore, of Justice Rapallo in the case mentioned does not apply. Indeed, the learned judge said: “But when provision is made against payments in advance, I find none which requires that such payments in advance be made by collusion or fraudulently.” It should be observed that Post v. Campbell was decided in 1881, several years, therefore, before the passage of the act of 1885.- In Munger v. Curtis (42 Hun, 466), in discussing section 2 of the act of 1885, Justice Pbatt said that section only applies to cases where the money is paid or tbe incumbrance put on by tlie owner for the purpose of defrauding the contractor or sub-contra.ctor. There being no evidence in the case establishing collusion, as to the entire sum covered by the assignment, it was proper that the assignees should recover of that amount a sum equal to the value of the lumber furnished by them towards the construction of the building, and nothing more.

It is true that the learned justice in the court below proceeded upon the doctrine affecting equitable assignments, declaring the assignee to be entitled to the whole sum embraced in the assignment. But this view cannot be sustained in view of the provisions of the act of 1885, and which were in existence prior to the assignment, and, indeed, prior to the contract between the owner and the builder herein.

The fund which was provided for by the contract in payment of materials to be furnished and services to be rendered, was, by the act, appropriated upon certain conditions; being applied to the payment of claims for services rendered and materials furnished to the building, and, although payments in advance by collusion were prohibited, nevertheless, the spirit of the act, breathing in every section, is that the sum to be paid shall be secured to the labor and materialmen. It was not in the power, therefore, of the contractor to pay in advance, by assignment or otherwise, out of that fund a sum in excess of the amount due for materials furnished for the work done upon the building, except subject to the operation of the lien law, the provisions of which were equally binding upon him and his assignee. There does not seem to be any room for doubt that it was the intention of the legislature to secure the amount of the contract for the payment of materialmen and laborers, giving to them a lien upon it, upon their compliance with the necessary requirements.

For these reasons it is thought that the assignee should be limited to the amount of the material actually furnished for the building to which the lien relates, and the judgment should .be so modified as to secure that result.

Ordered accordingly, without costs to either party.

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

Judgment, as modified by opinion, affirmed, without costs to either party.