text:
    ANNA R. HARLOW, Respondent, v. ABNER MILLS, Appellant.

      An administrator who negotiates a sale of the real estate of his intestate, conveyed by the deed of the heirs, is liable for the money received by him therefor cmd deposited, in a bank which fails.

    An administrator of an estate, who negotiates the sale of a farm which belonged, to his intestate, and which is conveyed by a deed signed by the children of the intestate, the purchase-price of which is received by the administrator, and is deposited by him in a bank which subsequently fails, is liable for the money lost through the failure of the bank. ...
    It is the duty of the administrator, in such a case, to at once pay over the money to the parties entitled thereto, and in receiving and depositing such money he does not act within the rule that a trustee or public officer, who deposits money, in a bank of good standing, without negligence on his part, will not be liable if the bank fails.
    Appeal by tbe defendant from a judgment of tbe Supreme Court, entered in the office of tbe clerk of the county of Orange on tbe' 1st day of April, 1890, in favor of tbe plaintiff after a trial before-a referee, with notice of an intention to bring up for review the' evidence given upon tbe trial of tbe action, tbe rulings of tbe court thereupon, bis findings of fact and conclusions of law.

      T. A. Mead, for the appellant.

      William Vanamee, for tbe respondent.
   Barnard, P. J.:

William D. Harlow died intestate in 1874, leaving four children.. The plaintiff is one of them. He left a widow, who has since died. He left a farm of land which was sold in September, 1884, for $14,341.25. There was personal property sold to tbe amount of $1,670.75. The whole of the proceeds of the real and personal estate went into the hands of the defendant at the time. He managed the sale which was perfected by a deed signed by the children of the deceased. There was no arrangement between the plaintiff and defendant under which the defendant took the money for the farm.. He was a cousin of the plaintiff and took the moneys for the children. He was administrator of the estate. Partial payments were made to plaintiff at different times.

This action is brought to recover the balance due her from the proceeds of her father’s property. The personal estate was settled before the surrogate in 1880.- The defendant deposited the moneys he received in the Middletown National Bank, with the exception of a small sum represented by a note given for a part of the personal property. The bank failed, and some twenty per cent of the money was lost by the defendant. The money had been in the bank about two months before the failure. When the defendant received the money it was his duty to pay it over at once, and for that purpose to seek his creditor. (Mills v. Mills, 115 N. Y., 80.)

The deposit of the money for two months was wholly without authority, and the defendant cannot throw the loss occasioned thereby upon the plaintiff, who did not assent to the same. There is nothing in the proof which will justify an inference that the plaintiff assented to defendant’s custody of the money. He claimed to keep it as administrator, and the plaintiff was not informed that he could not keep it as administrator until quite recently, and some years after he was discharged as administrator of the personal estate. The case thus shows a detention of money without authority, and within the line of cases which hold defendant’s obligation to require immediate payment over. A loss by the failure of the bank in such a case falls upon the debtor. There are cases which hold a trustee or public officer who deposited money in a bank of good standing, and without negligence on his part, will not be liable if the bank fails. (People ex rel. Nash v. Faulkner, Exr., 107 N. Y., 477.)

The facts found do not bring this case under the principle governing the liability of trustees or public officers. The complaint is one upon contract. The words averring a wrongful holding and a wrongful conversion are not inconsistent with an averment of a contract, and such words may be disregarded upon the trial. ( Conaughty v. Nichols, 42 N. Y., 83.)

Assuming a liability, there is no reason why the legal rate of interest should not be added. The case cited for a contrary rule, King v. Talbot (40 N. Y., 76), was as to the liability of a trustee and executor.

The defendant is liable, if at all, like any other debtor, and it is no defense to payment that a bank in which he deposited money failed.

The judgment should be affirmed, with costs.

Dykman, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Barnard, P. J.:

license: Public Domain

text:
    JOHN SIMPSON, an Infant, etc., Respondent, v. CHARLES GRIGGS, Appellant.

      Vicious dog — an employer is not liable for the acts of one Tcept by his employee on the formers land.

    Griggs, a tenant in occupation of a farm, employed in working it one Wood, who was allowed to occupy a farm-house on the premises as a part of the compensation for his labor, the products of which were received by Griggs. Wood brought a dog upon the premises, which, in the course of his employment, Wood occasionally used to churn butter which was made for Griggs. The dog was vicious and bit one Simpson, who brought an action against Griggs to recover damages for the injury thus inflicted.

      Held, in the absence of knowledge upon the part of Griggs of the bad disposition of the dog, that he was not liable.
    The employer does not harbor a dog, because he knows that his hired man has one in his family which occupies a separate residence on the farm.
    Appeal by the defendant Charles Griggs from a judgment of the Supreme Court, entered in the Dutchess county clerk’s office on the 14th day of June, 1890, in favor of the plaintiff, after a trial before the court and a jury at the Dutchess County Circuit, at which a verdict was rendered in favor of the plaintiff for the sum of $500, and also from an order denying a motion for a new trial made upon the minutes of the court.
    The action was brought to recover the damages resulting to the plaintiff from having been bitten by a vicious dog upon the premises leased and occupied by the defendant.

      B. B. Bustis, for the appellant.

      Schlosser dk Wood, for the respondent.
   Barnard, P. J.:

The defendant and others occupied, under a lease from Mrs. Hunt, a farm in Wappingers, Dutchess county. There was a brick-yard on the farm which was operated by Griggs & Company. They employed one Wood to work the farm. Wood occupied a farmhouse on the premises, and the defendant and his partner had the proceeds of the farm. Wood occupied the house as a hired man, and the occupancy was a part of the compensation for the labor of Wood. Wood brought a dog with him when he went there, and this dog was kept by Wood at the house he occupied on the farm of Grigg’s land in Newburg.

While Wood denied his ownership of the dog, it is manifest that he did own him and had absolute and sole control over him. The dog was vicious and bit the plaintiff. The defendant knew nothing of the bad disposition of the dog, other than is implied from a knowledge by Wood that the dog was savage and .would bite mankind. The defendant’s liability was based upon the proof that he employed Wood and Wood brought the dog with him, and that the defendant’s firm had the proceeds of the farm, and that the employee Wood occasionally used the dog to churn butter which was made for the. farm. The employer does not harbor a dog, because he knows that his hired man has one in his family, which occupies a separate residence. (Auchmuty v. Ham, 1 Denio, 495.) The defendant knew nothing of the evil qualities of the dog personally, and had no power over him.

The judgment and order denying a new trial should,- therefore, be reversed, with costs to abide event.

Pratt, J., concurred; Dykman, J., not sitting.

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


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. EMMET MYERS v. THE MASONIC GUILD AND MUTUAL BENEFIT ASSOCIATION, Appellant.

      Mandamus — to compel a mutual benefit association to make an assessment.

    Alter a judgment has been recovered, upon a certificate of insurance, against a. mutual benefit association which has refused to make an assessment for the purpose of paying an amount payable under the terms of the same, and an execution issued thereon has been returned unsatisfied, the' association will be compelled by a mandamus to make an assessment for the purpose of obtaining the fund with which to pay the certificate.
    Appeal by tbe Masonic Guild and Mutual Benefit Association-from an order of the Supreme Court, entered in the office of the clerk of tbe county of Orange on tbe 16th day of June, 1890, directing that a peremptory mandamus issue directed to and commanding tbe said Masonic Guild and Mutual Benefit Association to-make and call an- assessment upon all the members of its company or association, in tbe usual way of making such calls or assessments, and to continue calling or making tbe same, to an amount sufficient to equal the judgment recovered in said court on tbe 19th day of February, 1889, in favor of Emmet Myers and against the Masonic Guild and Mutual Benefit Association, for tbe sum of $2,247.40 damages and costs.

      Adolphus D. Pope, for tbe appellant.

      John W. Lyons, for the respondent.
   Barnard, P. J.:

Tbe defendant issued to Isaac Myers a certificate entitling tbe plaintiff to $3,000 on tbe death of Isaac Myers. Isaac Myers died and tbe plaintiff brought his action to recover the amount. By tbe judgment of this court tbe plaintiff recovered a judgment for the sum of $1,600, with interest from the 10th of August, 1884, that being the amount unpaid on the certificate. By the agreement between Isaac Myers and the company defendant, an assessment was to be made on all the members so as to pay the full sum of $3,000 within thirty days after notice of death. This has not been done. An «execution fails to obtain property to satisfy the judgment. The case is one without remedy if the company cannot be compelled by mandamus to perform an act which, by the contract, was to produce the fund. The duty is clear. It is the contract. The society is a mutual one, and an assessment is the method by which the benefits -of the association are attainable. There is no remedy by action; that has been tried and, except so far as it overruled the question now waged as a defense, was fruitless. It is not collecting a debt hy mandamus. The effect of the writ is only to make a board of masters do a certain duty which they owe to the plaintiff. The plaintiff has a clear legal right and no other remedy. Mandamus is not the proper remedy until after judgment. (Doty v. N. Y. State Mutual Benefit Association, 29 N. Y. St. Rep., 896.)

The judgment should, therefore, be affirmed, with fifty dollars costs.

Dykman, J., concurred; Pratt, J., not sitting.

Order granting mandamus affirmed, with fifty dollars costs.


text:
    THE DIAMOND BRICK COMPANY, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      •Gate in a fence inclosing a railroad company’s troclea — the company is not hound to leeep it shut.

    Where a gate has been built, in accordance with law, by a railroad company, in the fence inclosing its tracks, for the use of the owner of the adjacent land, the railroad company is not bound, as between it and the landowner, to close the gate even though its officers have noticed that it is open.
    Where the owner leaves the gate open, neither the owner nor his employees nor lessees have any right of action against the railroad company because of an injury to a horse which passes through such open gate onto the tracks of the railroad company and is injured.
    Appeal by the defendant, the New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Rockland on the 20th day of May, 1890, after a trial before the court and a jury at the Rockland County Circuit, at which a verdict tvas rendered in favor of the plaintiff for the sum of seventy-five dollars; and also from an order denying the defendant’s motion for a new trial made upon the minutes of the court, entered in the office of the clerk of said county on the 10th day of May, 1890.

      Ashbel Oreen and Herbert E. Kiirney, for the appellant.

      George W. Weiant, for the respondent.
   Barnard, P. J.:

The West Shore Railroad runs through the farm of Emma Reed. The railroad fenced its track and left a gate for the use of the farm owners. The Diamond Brick Company, by the permission of the owner, had pastured a horse upon the Reed farm. The field in which the horse was pastured ran back to the railroad. The gate in question was a part of the fencing when it was shut. In September, 1886, the horse got upon the railroad track and was killed by an engine of defendant which operates the West Shore Railroad. The fence was a wire fence four wires high, fastened to upright posts, and was three or four feet high. There was some claim made that the fences were made without sufficient; strength of wire and staple, but the claim was so entirely unaccompanied by any evidence that the horse got on the railroad track through these defects, that the judge told the jury that the evidence was insufficient to justify a finding on the ground that the fence was insufficient. Under the evidence the gate was continually kept open, at least there is evidence which justifies the jury in so finding. The only question is, therefore, whether or not, as against the land owner, the railroad company is bound to close the gate when its officers have notice that it is open. There seems to be no basis for a charge of negligence against the defendant. The gate was built for the owner, and it was built in accordance with law for the use of the owner. The railroad could not control the use of the gate. After use the owner either did not shut the gate or permitted it to remain open for long intervals of time. If this is neglect on the part of the company arising from a failure to shut the gate, why is it not neglect on the part of the owner to leave it open while using it for the purpose of the farm from day to day all summer or a great portion of the summer ? She took her risk as to the cattle getting on the railroad by the open gate, and she hired the pasturage to the plaintiff upon the same condition. It .would have been unwarrantable in the defendant to shut the gate '.on the day of the accident if the owner was using the crossing; and a failure to inquire whether or not the gate was open by the farm employees using the same is not a negligent act. The proof, therefore, fails to show any neglect in respect to the gate in question. The owner for her own convenience left the gate open, and neither she or her employees or lessees can complain of the railroad company for not shutting it.

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

Dykman, J., concurred.

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


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    LUDLOW W. VALENTINE, an Infant, etc., Appellant, v. SUSAN A. AUSTIN and ELIZABETH H. LUNT, Respondents, Impleaded, etc.

      Lis pendens—'when canceled by order of the court—notice.

    Where a notice of lis pendens, filed in the county clerk’s office in a pending action, has been canceled by an order of the court, a party examining the title to real property described therein is not bound to examine the complaint in the action, or to take notice of what such an examination would disclose.
    When a Us pendens is canceled by an order of the court it ceases to be notice to any one.
    Appeal by the plaintiff from so much of a judgment of the Supreme Court, dated May 26, 1890, as dismissed the complaint as to the defendants Austin and Lunt, or either of them.
    The action was brought to trial at Special Term, after certain issues had been submitted to the jury, and a decision or findings were rendered and filed, which followed the verdict of the jury.
    The action was brought by the plaintiff, as an heir-at-law of Catherine A. Valentine, deceased, to set aside a deed of certain premises from her to the defendant Bichardt; also a deed from Richardt to the defendant Austin, and a mortgage from Austin to the defendant Lunt.

      Horace Secor, Jr., for the appellant.

      James D. Bell, for the respondent Austin.

      W. G. Beecher, for the respondent Lunt.
   Barnard, P. J.:

The defendant Austin is a grantee from one Herman T. Richardt, and the defendant Lunt is a mortgagee from Austin of the same premises. Richardt acquired the title to the land by- fraud and undue influence from one Catharine A. Valentine. Catharine A. Valentine was sane when she made the conveyance. Both of these defendants took their conveyances in good faith and for value. This fact is found by the jury and also by the court at the request of the plaintiff. No evidence is returned, but the appeal is taken from the findings and judgment therein, so far as the same dismisses the complaint upon the merits as to the defendants Austin and Lunt. The facts found destroy the plaintiff’s claim.

A purchaser, in good faith and for value, is one who takes without notice of any outstanding equity or lien not of record, or defect of title in any way. (Simpson v. Del Hoyo, 94 N. Y., 189.)

There is no conflict in the findings. It is found that Catharine' A. Valentine, by a next friend, commenced an action to set aside the Richardt conveyance, because it was obtained from her by fraud and undue influence and without consideration. This action had been dismissed “ before the plaintiff opened or offered any testimony,” and judgment was entered accordingly. There was a lis pendens filed in this action. When the defendants Austin and Lunt took the conveyance they caused a search to be made, and the search returned the finding of the lis pendens, and that it was canceled by order of the court on the 6th of September, 1886.

The appellants claim that it was the duty of these defendants to examine the complaint in the Richardt action and to take notice of what such an examination would ’disclose. This is too stringent a rule of constructive notice. The record was clear, and while there had been a lis pendens which affected the title, it had been discharged by a judgment which the evidence does not question. They knew of no facts which should have put them upon inquiry, and in such a case the want of diligence is not want of good faith. (Parker v. Conner, 98 N. Y., 118.)

The finding of good faith is irreconcilable with this constructive notice, which is claimed to have been sufficient to put the parties on inquiry. The canceled lis pendens was not notice except in the action in which it was filed, and all who dealt with the title while it was in force would be deemed bound equally as if they were parties to the action. (Lamont v. Cheshire, 65 N. Y., 30.)

"When the lis pendens was canceled by order it ceased to be notice to any one, and those who subsequently dealt with the title could rely upon the record. They were not bound to examine the complaint in an action which from the record had no basis.

The judgment should, therefore, be affirmed, with costs of appeal to each respondent.

Dykman, J., concurred ; Pratt, J., not sitting.

Judgment affirmed, with costs of appeal to each respondent.


author: Dykman, J.:

text:
    In the Matter of the Estate of CHARLES H. BUTLER, Deceased.

      Collateral inheritance tan— a child adopted under the laws of Massachusetts is not liable to.

    In February, 1878, a boy about two years of age was taken by one Butler from a charitable institution under an agreement on Butler’s part to adopt him as his son, and, in 1884, he was formally and legally adopted by Butler, with the consent of his wife, under the laws of the State of Massachusetts, which are substantially the same as those of the State of Hew York. The boy lived with Butler for eleven years, and until the latter’s death. He was treated as a son, and was given by his will some $50,000.

      Held, that this sum was not chargeable with the collateral inheritance tax under section 1 of chapter 718 of the Laws of 1887, amending chapter 483 of the Laws of 1885 of the State of New York.
    That, to entitle an adopted son to exemption from this tax, it was not necessary that the proceedings for adoption should have been taken under the laws of the State of New York.

      Appeal by Edward Knapp Butler from an order of the Surrogate’s Court of the county of Westchester, made on the 23d day of July, 1890, which affirmed the report of an appraiser, dated March 24, 1890, so far as the same taxed a. legacy, left by one Charles H. Butler to the said Edward Knapp Butler, under chapter 713 of the Laws of 1887 and chapter 483 of the Laws of 1885, and the acts amendatory thereof and supplementary thereto.

      Calvin Frost, for the appellant.

      William P. Platt, for the County Treasurer, respondent.
   Dykman, J.:

Charles H. Butler died in September, 1889, leaving a last will and testament, which has been officially proved and is now in full force and operation. The will contained, among other provisions, á bequest of a legacy in these words: To my adopted son, Edward K. Butler, five hundred shares of stock in the corporation known a3 Butler Brothers.” It turns out now that the value of the stock so bequeathed is about $50,000.

This adopted son was taken by the testator and1 his wife from a charitable institution in the city of Boston, in the month of February, 1878, when he was about two years old, with a desire and design and under an agreement with the officers of the institution to adopt him as a son and provide him a home, and the child was immediately taken into the family of the testator, where he remained down to the time of the death of the latter, a period of more than eleven and a half years, during all of which time the boy was cared for; supported and maintained solely by the testator, and treated in all respects as a son. He was always spoken of by the testator and all the members of his family as his child, and he was held out to the world as the child of the testator, and supposed himself to be such, and did not know to the contrary until after the death of .the testator.

In July, 1884, the boy was formally and legally adopted by the testator, with the consent of his wife, under and in pursuance of the laws of the State’ of Massachusetts, which are substantially the same as our own statutes upon this subject, as we gather from the record before us. Such are the uncontroverted facts which appeared before the surrogate of Westchester county in a proceeding to charge the legacy with a tax under the law for the taxation of gifts and legacies in this State. The legatee claimed immunity from the tax under the exemptions allowed by the statute upon which the proceedings were based, and the surrogate decided against his contention and made an order for the imposition of the tax upon liis legacy, and he has appealed from the order.

The statute which is to dictate the decision of this appeal, so far as it has application to this case, is this: “After the passage of this act all property which shall pass by will or by the intestate laws of this State from any person * * * other than to or for the use of his or her father, mother, husband, wife, child, brother, sister, * * * or any child or children adopted as such in conformity with the laws of the State of New York, or any person to whom the deceased for not less than ten years prior to his or her death stood in the mutually acknowledged relation of a parent * * * shall be and is subject to a tax of five dollars on every hundred dollars of the clear market-value of such property.” (Laws of 1887, chap. 713, § 1, amending chap. 483 of the Laws of 1885.)

It was the design of this statute to impose a burden upon all property which should pass by will or by the intestate laws of this State to any person or persons or body politic or corporate, other than to or for the use of certain persons, among whom are adopted children. The section is somewhat awkwardly constructed, but the intention of the legislature to exempt adopted children’ from the operation of the law is plainly manifested. In fact, there is no controversy upon that point in this case, but the appellant has thus far been deprived of the benefit of the exception in this statute because he was not an adopted son of the testator who gave him the legacy.

The question for our determination, therefore, is whether this appellant stands within the class of persons who are relieved from the burdens imposed by this statute. “Any child or children adopted as such in conformity with the laws of the State of New York, or any person to whom the deceased for not less than ten years prior to his or her death stood in the mutually acknowledged relation of a parent,” is within the exemption provided by the law, and this appellant was both adopted in conformity with the law of our State, and tlie deceased stood for more than ten years prior to his death in the mutually acknowledged relation of a parent to this appellant.

This statute does not require the proceedings for adoption to be under the laws of.this State or within this State, but to be in conformity with them, to be like them and to correspond in character and manner with them, wherever they are conducted; and an examination of the proceedings in Boston for the adoption of this child shows that they conform substantially to the requirements of our statute. There is no reason for a severe construction of this statute. This boy was legally adopted under laws substantially similar to our own, so far as the mode of procedure is concerned, and that is sufficient to answer the requirements of this law. Moreover, the deceased stood in the mutually acknowledged relation of a parent to this appellant for eleven years and a half prior to his death. No evidence of adoption is required by this portion of the statute, but mutual acknowledgment, and that is proven in this case by all the facts and circumstances which cluster round these parties from the commencement of their relation to the death of the testator.

The appellant, from his earliest recollection, believed the testator to be his father, recognized him as such and knew no other, and the testator took him to his home as a child and treated him in all respects as a son. Their relations were parental and their entire conduct was a mutual acknowledgment of their relation. The child was taken in helpless infancy with no expectation of compensation or services. He was treated as a son and was obedient to his foster father and dependent upon him, and the statute requires no higher proof of mutual acknowledgment. The word mutual in this statute has no abstruse signification. It means and requires reciprocity of action, correlation and interdependence, and finds its best illustration and application in the relations existing between parents and children, which are always mutual. This construction of the statute was adopted in the Matter of Spencer’s Estate (4 N. Y. Supp., 395), in a very able and exhaustive opinion by Mr. Kennedy, Surrogate of Madison county. Our common experience teaches us that children at three years of age recognize their parents and are able to designate them by words and actions, and we find no difficulty in concluding from the record before us that the appellant recognized the testator as his father, and that the testator recognized him as Ms adopted son for more than ten years before the death of the testator; and the mutuality of the recognition of such relations between them was abundantly established.

Our conclusion, therefore, is that the order appealed from is erroneous and should be reversed, with costs to be paid from the estate by the executors.

Barnard, P. J., and Pratt, <L, concurred.

Order of surrogate reversed, with costs to appellant out of estate.-


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    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. EMMA FISHBOUGH, Appellant.

      Game law — chap. 534 of 1879, chap. 584 of 1880—forbids the sale of live as well as of dead, birds.

    Under section 12 of chapter 534 pf the Laws of 1879, as amended hy chapter 584 of the Laws of 1880, providing that “ no' person shall at any time, in this State, kill or expose for sale, or have in possession after the same is killed, any eagle, woodpecker, night-hawk, yellow bird, wren, martin, oriole or any song bird, under a penalty of five dollars for each bird so killed, exposed for sale or had in possession,” a person who exposes for sale any of the birds mentioned in said act is liable to the penalty imposed thereby.
    The act is to receive the same construction as if it had read: "No person shall expose for sale any eagle,” etc.
    The said statute was not repealed by section 1 of chapter 427 of the Laws of 1886.
    Repeals of 'statute by implication are not favored in law, and the earlier statute will remain undisturbed unless the language of the latter act indicates an intention to abrogate the former, or to prescribe the only rule which shall govern the case for which provision is made, or unless the two statutes are incompatible or repugnant. .
    Appeal by the defendant Emma Fishbough from an order of the Supreme Court, entered in the office of the clerk of the county of Richmond on the 28th day of May, 1890, in favor of the plaintiff, after a trial at the Richmond Circuit, at which the court found, upon an agreed statement of facts, that the plaintiff was entitled to judgment for the sum of eighty-five dollars, besides costs.

      Josiah T. Marean, for the appellant.

      Thomas W. Fitzgerald, for the respondent!
   Dykman, J.:

This was an action for the recovery of a penalty under the following statute: “No person shall at any time, in this State, kill or expose for sale, or have in possession after the same is killed, any eagle, woodpecker,1 night-hawk, yellow bird, wren, martin, oriole or any song bird under a penalty of five dollars for each bird só killed, exposed for sale or had in possession.” (Laws of 1879, chap. 534, § 12, as amended by chap. 584, Laws of 1880.)

The action was tried before á judge without a jury, and he found, upon facts made and stipulated by the parties, that the defendant had in her possession for sale seventeen live yellow birds on the 18th day of May, 1889, at the city of .Brooklyn, ánd thereupon decided that the plaintiff was entitled to- judgment against the defendant for eighty-five dollars, besides the costs of the action.

The defendant has appealed from the judgment entered upon such decisión, and her' contention is that the statute received an improper construction and application at the circuit, her insistence being that the words expose for sale,” ás well as the words “ have in posséssion,” áre qualified and limited by the words “ after the same is killed.”

The statute, like many others, is obscure, and its intent is uncertain. Whether the exposure for sale, as well1 as the possession, relates to dead birds, or whether the exposure for sale has relation to birds which are alive as -well as such as are dead, is by no méans clear.

When this law was made it had become customary and fashionable to ornament the bonnets of ladies with birds of gay and gaudy plumage, and the great demand thus created led to the procurement of such birds in quantities which threatened their extinction. The eagles and the song birds had also become scarce, and were rapidly diminishing in numbers, and it was the design of the legislature in the enactment of this law to preserve all such birds. Such being the evil at which this statute was aimed, it should be allowed full scope and operation, and receive a construction which will secure the execution of the intention of the legislature.

One mode of obtaining birds for ornamentation seems to have been to capture them alive and sell them to dealers, who can then supply the trade as the birds are required; and if that can be done with impunity without falling under the condemnation of the law, then the statute fails to prevent the capture of live birds or their sale, and so fails to prohibit one method of their destruction. We think the statute should receive a broader construction, and one which will condemn the exposure for sale of any of the birds covered by the language of the law, the same as if it had read “ no person shall expose for sale any eagle,” etc.

We do not think section 1 of chapter 427 of the Laws of 188& repeals the statute under consideration. That section interdicts the exposure for sale of the enumerated birds after they have been killed, whereas, according to our understanding, this statute inhibits the exposure for sale of live birds.

Repeals of statutes by implication are not favored in law, and the earlier statute will remain undisturbed, unless the language of the later act indicates an intention to abrogate the former or to prescribe the only rule which should govern the case for which provision is made or the two statutes are incompatible or repugnant. It is only where the later of two statutes relating to the same subject is intended to prescribe the only rule which shall govern, that it repeals the earlier by implication, though they are not in terms repugnant or inconsistent. (Matter of N. Y. Institution, 121 N. Y., 284.) As these two statutes are compatible and harmonious, and may both be executed and carried into effect, we do not think the former is abrogated.

The judgment should, therefore, be affirmed, with costs.

Pratt, J., concurred; Barnard, P. J., not sitting.

Judgment affirmed, with costs.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ABRAM J. MILLER, Respondent, v. HILLYER RYDER, as County Treasurer of the County of Putnam, Appellant.

      Distribution of unclaimed proceeds of sale in partition suits— Code of Civil Procedure, secs. 1582, 841 — chapters 39 and, 40 of 1889 are constitutional.

    Sections 1582 and 841 of the Code of Civil Procedure, as amended, respectively, by chapters 39 and 40 of the Laws of 1889, relating to the distribution of unclaimed moneys arising from the proceeds of sale of real property in actions of partition in certain cases, are not in violation of the constitutional provision which prohibits the deprivation of persons of their property without due process of law. They simply establish a new rule of evidence, the creation of which is within the authority of the legislature.

      Semble, that if these laws made the lapse .of time conclusive evidence of the death of the unknown heirs, and precluded them from establishing the truth of their existence, the laws could not be upheld as a legitimate exercise of legislative power because they might destroy rights and work a confiscation of property; that as they simply shifted the burden of proof in the proceedings to obtain 'a fund in the hands of the county treasurer, they operate upon the remedy merely, and not upon a vested right.
    Appeal by tbe defendant Hillyer Ryder, as county treasurer of tbe county of Putnam, from an order made at tbe Dutcbess County Special Term, August 16, 1890, and entered in tbe office of tbe clerk of tbe county of Putnam on tbe 19tb day of August, 1890, directing that a writ of mandamus issue to said county treasurer requiring bim to pay to Esther Jane Griffen and others, in the proportions therein named, certain moneys in tbe custody of tbe said treasurer.

      Clayton Ryder, for tbe appellant.

      Abram, J. Miller, relator in person, respondent.
   Dykman, J.:

This is an appeal from an order directing the issuance of a peremptory writ of mandamus to the defendant, requiring bim to pay over to certain persons money brought into court over twenty-five years since for unknown owners, in an action for tbe partition of land.

The facts upon which the proceeding is based are substantially as follows: Louis B. Griffen died intestate, seized and possessed of a farm of land in Putnam cóunty, and an action was commenced •in the Supreme Court for the partition of the land, which resulted in a judgment for the sale of the premises, and the share of the descendants of Deborah Ann McCormick, a deceased sister of Louis B. Griffin, who died twenty years before him, being one-fiftli of the net proceeds of the sale, was brought into court and deposited with the county treasurer of Putnam county December 19, 1863, where it has since remained, accumulating interest.

The relator and other parties in interest presented to the Supreme Court at Special Term, on the 8th day of February, 1890, a petition setting forth the above facts, and alleged that more than twenty-five years had elapsed since the payment of the money into court; that ho claim had been made therefor by any person entitled thereto, and that due inquiry for the unknown heirs of Deborah Ann McCormick had been made; and upon such petition and the subsequent proceeding thereon, -the court, on the 19th day of July, 1890, made a decree in the action of . partition, declaring that the unclaimed portion of the proceeds of the sale, with ail accumulations of interest, was vested at the time of such payment in the then known heirs of Deborah Ann McCormick, deceased, and directing the county treasurer of Putnam county to pay over said sum, now amounting to about $18,000, to the known heirs and the persons claiming under or, through them, as set forth in such decree.

The defendant refused to make such payment, on the ground that the decree was without other authority of law than that conferred by sections 1582 and 841 of the Code of Civil Procedure, as amended by chapters 39 and 40 of the Laws of 1889, and that such chapters were unconstitutional and void.

On the 16th day of. August, 1890, an order was made at the Special Term, on notice to the defendant, that a peremptory writ of mandamus issue out of the court, directed to the defendant, -requiring him to make such payment, and from that order the defendant has appealed to the General Term.

Chapter 39 of the Laws of 1889 is entitled “An act to amend section 1582 of the Code of' Civil Procedure, relative to the distribution of unclaimed moneys arising from the proceeds of sales of real property in actions of partition in certain cases.” It is as follows:

“Where a person has been made a defendant as an unknown person, or where the name of a defendant is unknown, or where the summons has been served upon a defendant without the State, or by publication, and he has not appeared in the action, the court must direct his portion to be invested in permanent securities at interest for his benefit until claimed by him or his legal -representatives, but after the lapse of twenty-five years from the time of the payment into court, or to the treasurer of any county,- of any portion of the proceeds of the- sale of real property for unknown heirs, in any action -of partition without any claim therefor having been made by a person entitled thereto, and upon there being made and presented to the court, at a Special Term thereof, proof by petition or otherwise, showing to -the satisfaction of the court that -due inquiry for such unknown heirs has been made, and that no claim has been made for such portion of said proceeds by any person entitled thereto, the said court shall have power to decree that such unclaimed portion of such proceeds was vested at the time of such payment in the lmownhéirs of the common ancestor of such unknown heirs, and their heirs and assigns, and shall make an order in such action directing the payment tothem or their assigns-of the respective shares or portions of, or interest in such proceeds, to which they are entitled; and upon serving on the county treasurer a certified copy of such order the treasurer shall so pay over and distribute the same after deducting' his lawful commissions, and' shall thereupon be exempt from all liability on account thereof.”

Chapter 40 of the Laws of 1889 is entitled “An act to amend section 841 of the Code' of Civil Procedure relative to the presumption of the death of unknown heirs, in actions of partition, in certain cases,” and is as follows. “A person upon whose life an estate in real property depends, who remains without the United States, or absents himself, in the' State or elsewhere, for seven years together is presumed to be dead in an action or special proceeding concerning the property in which his death comes in question, unless it is affirmatively proved that he was alive within that time. And where, in any action of partition in this State, any portion of the proceeds of the sale of real property is, or has been, paid into court, or paid to the treasurer of any county for any unknown heirs, and is unclaimed for twenty-five years, the lapse of twenty-five years after such payment, raises the presumption of the death of such unknown heirs, and they are and shall be presumed to be dead, in any action or proceeding for the purpose of distributing and paying over such proceeds.”

So far as these statutes have application to the present proceeding, their provisions are substantially similar and they are to be construed together. It is the claim of the defendant, however, that they are violative of the constitutional prohibition which inhibits the deprivation of persons of their property without due process of law. In our view, however, they simply establish a new rule of evidence, which the legislature often does, and which is fully within the legislative authority. The competency of the legislature to make new rules of evidence or change the common-law rules existing, unrestricted by the provisions in the Constitution, which interdict the appropriation of private property without due process of law, has been frequently considered by the courts and is now firmly established. (People v. Turner, 117 N. Y., 233; Hand v. Ballou, 12 id., 541.)

So the legislature may enact laws affecting civil rights and allow them retroactive operation, while laws relating to crimes and their punishment may not be made to retroact; the interdiction of the Constitution of the United States and of this State applies only to criminal law. In our State, all legislative power is vested in the legislature, which, within its sphere, possesses the omnipotence ascribed to the British Parliament, except where its exercise is restricted by the Constitution. (Dash v. Van Kleeck, 7 Johns., 477; People v. Turner, supra; Mongeon v. People, 55 N. Y., 613; People ex rel. Collins v. Spicer, 99 id., 233.)

Returning again to the statutes in question, we think they must be understood as affecting the remedy by which civil rights are to be enforced and not as destroying vested interests. All rules and regulations respecting legal remedies are subject to the modification and control of the legislature, and the rules of evidence are no exception. (Howard v. Moot, 64 N. Y., 268.)

If these laws made the lapse of time conclusive evidence of the death of the unknown heirs, and precluded them from establishing the truth of their existence, they could not be upheld as a legitimate exercise of legislative power, because then they might destroy vested rights and work a confiscation of property.

Legislation similar to this is by no means infrequent in this State. The Code of Practice wrought very Radical changes in the proceedings in civil actions in this State, and its provisions were applied to existing causes of action where suits had not been commenced before their enactment. Put they have not been held to impair or trench upon the obligations of contracts or to destroy vested rights. Familiar instances of the constitution of presumptive evidence by certain facts are the recitations in tax leases from which the regularity of certain proceedings are presumed. The possession of various weapons concealed upon the person is made presumptive evidence of carrying them with intent to use the same in violation of the statute. (Penal Code, § 411.)

Possession of a dredge in the waters of Long Island sound is made presumptive evidence of intent to use the same in violation of the provisions of the statute prohibiting such use. (Chap. 234 of the Laws of 1870, § 4.) Our conclusion, therefore, is that these statutes operate upon a remedy and not upon a vested right. They shift the burden of proof in a proceeding to obtain the fund in the hands of the county treasurer, and thus operate upon the method of procedure. They render proof of death unneessary in the first instance, after a court is satisfied that due inquiry for such unknown heirs has been made, and that no claim has been made for such fund by any person entitled thereto. Such is our construction of these statutes, but they are new and have not passed the scrutiny of the Court of Appeals.

It is difficult to draw a dividing line between statutes which affect remedies only and those which pass beyond the limits of legislation, and impair vested rights or antecedent contracts. "We, therefore, find the county treasurer justified in obtaining the opinion of the courts before he yields up the possession of the large fund in question.

The order should be affirmed, but, under the circumstances, without costs.

Pratt, J., concurred ; Barnard, P. «L, not sitting.

Order granting mandamus affirmed, with costs.

        .sio.


author: Dykman, J-

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THE LONG ISLAND RAILROAD COMPANY, Appellant.

      Flagman at railroad crossing—constitutionality of an order of court requiring it, undsr chapter 439 of 1884
    The provisions of chapter 439 of the Laws of 1884, authorizing the Supreme Court or a County Court to order that a flagman he stationed at a railroad crossing upon a street, highway, turnpike or plank-road, where the same is crossed at the same level hy a railroad, are not unconstitutional as delegating legislative power to • the judges of these courts.
    Appeal by the defendant, the Long Island Railroad Company, from a judgment of conviction of the defendant, rendered December 4, 1889, under section 154 of the Penal Code, of a misdemeanor tinder an indictment charging the Long Island Railroad Company with the crime of willfully omitting to perform the duty of stationing- a person or persons at or near gates erected across the traveled roadways of Bridge and Water streets, in the village of Sag Harbor, in the county -of Suffolk, to open or close the same when an engine or train passed or repassed between May first and November first in each year.
    The indictment further alleged that on or about the 10th day of ¿Tune, 1887,’by order-of the County Court of Suffolk county, dated on that day, the defendant was required to perforin certain duties spécifíed in such order which required the Long Island Railroad Company to immediately erect gates across the traveled roadway of Bridge street, on the southerly side of the main track of the said, the Long Island Railroad Company, and also across the traveled roadway or roadways of Water street, upon, or about upon, a line in continuation of'the westerly side of Bridge street, and that a person or persons, from’ May first to November first in each year be stationed by'the said, the Long Island Railroad Company, at or near said gates, to open and close the same when an engine or train passed and repassed.

      E. JB. Hinsdale, for the appellant.

      Wilmot M. Smith, district attorney, for the respondent.
   Dykman, J-

“ At any point where a street, highway, turnpike, plank-road or traveled way is crossed at the same level by a railroad, or at any point where a horse railroad is crossed by a steam railroad, the Supreme Court or County Court may, upon the application of the local authorities, and upon ten days’ notice to the railroad corporation whose road so crosses, order that a-flagman be stationed at such point, or that -gates shall be erected across such street, highway, turnpike or plank-road, and that a person be stationed to open and close such gates when an engine or train passes, or make such other order respecting the same ■ as it deems proper. Such order shall only be made after the refusal or neglect of such corporation to station such flagman or erect such gates after having been requested so to do by such-local authorities.” (Laws of 1884, chap. 439, § 3.)

The Long Island Railroad Company operates a portion of its railroad through the village of Sag Harbor, and under the statute above recited the county judge of Suffolk county, on the 10th day of January, 1887, made an order requiring the Long Island Rail road . Company to immediately erect- gates across the traveled road-way of Bridge street, in that village, on the southerly side of the main track of the company, and also across the traveled roadway of Water street, in the same village, and to station a person or persons, from May first to November first in each year, at or near such gates, to open and close the same when an enginé or train passed or repassed. The gates were erected in obedience to such order, but upon complaint of neglect and omission to operate the same an indictment was found by the grand jury of Suffolk county against the company for a willful omission to station a person at or near such gates to open and close them when engines and trains were passing. A trial was had under such indictment and the company was convicted and fined $500 for such offense. From that conviction the company has appealed. The indictment was based upon section 154 of the Penal Code,-which is as follows:

“Where any duty is or shall be enjoined by law upon any public officer, or upon any person holding a public trust or employment, every willful omission to perform such duty, where no special provision shall have been made for the punishment of such delinquency, is punishable as a misdemeanor.”

Tlie section of the law placed at the head of this opinion prescribes no penalty for disobedience of any order made by the county judge, and provides no method for its enforcement, and, therefore, so far as any order is made in pursuance of its provisions, imposing a duty upon any public officer, or any person or corporation holding a public trust. or employment, obedience thereto must be enforced under section 154 of the Penal Code. Under such construction and application of the statutes, the indictment charges an offense and is sufficient to sustain the conviction.

The great objection raised to section 3 of the Laws of 1884 is that it delegates legislative power to the judges, and is, therefore, unconstitutional.

It is quite true that the duty of posting flagmen and placing gates at railway crossings can only be imposed by the legislature, but, as we understand the statute in question, it only provides a means to determine the necessity of a flagman or a gate at any particular place; and when such necessity is found by the judge the law requires their presence. In the same way the legislature must authorize the location and construction of railroads; but there is a statute which prohibits the construction of a railroad upon and along any highway without the order of the Supreme Court (Laws of 1864, chap. 582), but it has never been supposed that any legislative power was delegated to the court by that statute. Such laws are only designed to provide for a judicial determination of the cases in which legislative enactments shall have operation, or, in other words, to determine the necessity for such operation.

In relation to the indictment and the testimony we find both sufficient to sustain the conviction, which should be affirmed.

Pratt, J., concurred; Barnard, P. J., dissenting.

Conviction and judgment affirmed.


text:
    AMMUND TONNESEN, Appellant, v. P. SANFORD ROSS and JOSEPH B. SANFORD, Respondents.

      Negligence — when a question for the jury.

    In an action brought to recover damages alleged to have resulted to the plaintiff, who was employed on a scow which received mud from a dredging machine ' owned by the defendants, it appeared that after the plaintiff had been at work a few days for the defendants, one Delamater, the captain in charge of the dredging machine, swung the bucket over and struck a shaft which the plaintiff was turning with a wrench, as a result of which the plaintiff was seriously injured. The evidence tended to establish the fact that the captain was drunk at the time; that the plaintiff had seen him drunk on three occasions during his employment of eight days; that the captain always ran the dredging machine, and that the plaintiff did not tell the defendants of the fact that the captain was addicted to • drink, nor did he leave their employment on that account.
    No direct proof was given that the defendants knew of the habits of Delamater, although it appeared that the defendants’ superintendent was at 'Weehawken where the dredge was at work every other day, and was there on the day on which the accident happened.

      Seld, that it was a question for the jury, under the circumstances of this case, whether the defendants or their superintendent had knowledge of the habits of Delamater, and also whether the plaintiff was guilty of omissions which precluded his recovery.
    Appeal by tbe plaintiff Ammund Tonneson from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 27th day of May, 1890, in favor of the defendants, dismissing the plaintiff’s complaint on the merits.
    The action was brought to recover damages alleged to have been sustained by the plaintiff through the alleged negligence, and while he was .in the employ, of the defendants, and was tried at the Kings County Circuit before the court and a jury.

      J. Edward Swanstrom, for the appellant.

      Robert I). Benedict, for the respondents.

      The following dissenting opinion was written by Judge Piíatt both in the above-entitled case of Ammund Tonnesen v. P. Sanford Boss and Joseph B. Sanford, and also, and more particularly, in a case of similar character of John Thompson v. The Same Defendants, in which latter case there was an appeal by the defendants from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 19th of April, 1890, in favor of the plaintiff, after a trial at the Kings County Circuit before the court and a jury, at which a verdict was rendered in favor of the plaintiff for the sum of $1,900; and also from an order denying a motion for a new trial made upon the minutes of the court.

        Bobert D. Benedict, for the defendants, appellants.

        J. Edward Swanstrom, for the plaintiff, respondent.

        Pratt, J. (dissenting):
      The verdict for plaintiff went upon the sole ground that defendants employed in their business an overseer or “captain,” who was by his habits of intoxication rendered an improper person to be intrusted with such work, and that defendants were chargeable with notice of his incompetence.
      In answer to this it is shown by plaintiff’s testimony that he was fully aware of the captain’s incompetence, and continued thereafter to work under him without objection or complaint.
      It appears that plaintiff’s brother worked under the captain two years before the plaintiff entered on the employment, and he testifies that during these two years the captain was an habitual drunkard.

        Plaintiff testifies that, before he went there, he had often been told that tha captain was drunk, and that during his term of service and before the accident he had himself been a witness to the captain’s intoxication. Speaking of tha captain, he says. “I saw him like a crazy man pretty near every day;. * * * he looks drunk pretty near of every day,” and goes on to say that, before he went there, his brother many a time told him the captain was drunk.
      Upon this testimony it must be held that the plaintiff took the hazard of working under an intoxicated man. The motion for nonsuit should have been granted.
      The judgment must be reversed and new trial granted, with costs to appellant.
      Judgment and order denying new trial affirmed, with costs,

   Barnard, P. J.:

The defendants were contractors engaged in dredging the bottom of the Hudson river near 'Weehawken. The superintendent was one Vincent, and the captain in charge of the dredging-machine was one Delamater. The plaintiff was an employee of the defendants, working on the scow which received the mud from the dredging-machine. The dredging was done by steam, and the buckets were handled from the mud machine or dredger. The plaintiff had been at work but a few days for the defendants, from the 21st to the 29th of September, 1888. On the 29th of September, 1888, while the plaintiff was at work on the scow, the captain, Delamater, who controlled the same from the pilot-house of the dredge, swung the bucket over and struck the shaft which the plaintiff was turning with a wrench. The wrench was made thereby to spring up so that it struck the plaintiff and seriously injured him, paralyzing his arm and breaking his jaw. The evidence tended to establish that the captain was drunk at the time. The plaintiff had seen him drunk on three occasions during the employment of eight days. The captain always ran the machine. The plaintiff did not tell the defendants of the fact that the captain was addicted to drink, and did not leave the employment on that account. It is easily to be inferred from the evidence that but for the recklessness caused by strong drink the accident would not have happened. The captain had full view of the situation and could regulate the bucket with certainty and precision if his judgment was not affected by his condition. Proof was given tending to show that the captain was in an intoxicated condition as often as two or three times a week, and this was his usual condition for nearly two years before the accident* during all the time he worked for the defendants. The defendants’ superintendent, Yincent, was at "Weehawken every other day, and was there the day on which the accident happened. No direct proof was given that the defendants knew of the habits of Delamater. The plaintiff was nonsuited. The rule of liability in the case is, that the master was bound to use reasonable care, to provide and employ competent and skillful servants, and to discharge on notice or knowledge, or the means of knowledge, any who fail to continue such. (Laning v. N. Y. C. R. R. Co., 49 N. Y., 521.)

The case of Chapman v. Erie Railroad (55 N. Y., 579) does not change this rule. The point decided in that case was, that a master did not owe the same care in finding out bad habits after employment as he did in the original employment. There was proof in the case that the defendants’ division superintendent knew of the drunkenness of the employee, and the court held that the action was made out so far as to go to the jury. The superintendent was so frequently at the dredge during its use by Delamater, and the habits were proven to be so settled and continuous that it was a question for the jury to pass upon as to his knowledge or means of knowledge.

Negligence is a question of fact usually, and whether the plaintiff was guilty of omissions which permitted his recovery, assuming the master’s negligence to be proven, was also a question for the jury. .The character of the act, the circumstances of the case and the con.dition of the parties were things to be considered in determining .-the question of contributory negligence. (Thurber v. Harlem, B. M. and F. R. R. Co., 60 N. Y., 331.)

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

Dykman, J., concurred; Pratt, J., dissenting.

Judgmént dismissing complaint reversed and new trial granted, costs to abide event.


author: Van Brunt, B. J.:

text:
    EDWARD E. GOLD and FREDERICK W. WRIGHT, Appellants, v. JAMES CLYNE and Others, Respondents.

      Liability of- the directors of a corporation for a failure to file an annual repm't— effect of the expiration of the existence of the corporation before the debt, under the terms of a contract made by it, beca/me due. •
    Ik an action brought to charge the directors of the Central Park Building Company (Limited), with an alleged liability of said company, because of a failure to file an annual report of its financial condition, it appeared that the company had been incorporated in 1883, under chapter 611 of 1875, to continue for two years from the date of filing its certificate, which was filed on June 6,1883; that, on April 33,1884,- the corporation entered into a contract with the plaintiffs, by which the latter were to furnish and put up a steam-heating apparatus in the buildings of said company, and made all payments called for under the terms of the contract, up to and until the payment which was to be made on the final completion of the work, which was finished on the 7th day of December, 1885.

      Held,, that as the existence of the corporation ended in June, 1885, by the terms of its certificate, and as at that time no debt was due to the plaintiff from the corporation, that the defendants were not liable.
    That the provisions of section 38 of chapter 611 of 1875, to the effect that “ The dissolution, for any cause whatever, of any corporation created as aforesaid, shall not take away or impair any remedy given against such corporation, its stockholders or officers, for any liabilities incurred previous to its dissolution,” did not cover this case, as no liability had been incurred by the corporation for the amount sought to be recovered in this action until the contract had been fulfilled, before which time the corporation had ceased to exist.

      Appeal by the plaintiffs from a judgment of the Supreme Court,, entered in the office of the clerk of the county of New York on the 14th day of November, 1889, in favor of the defendants, dismissing the plaintiffs’ complaint on the merits, after a trial before a, referee.

      Ira D. Warren, for the appellants.

      Henry Thomson and George A. Strong, for the respondents.
   Van Brunt, B. J.:

The defendants viere directors of the Central Park Building Company (Limited), and the action was brought to charge them with liability for an alleged debt of the company as a penalty for a failure to file the annual report of 1885. The corporation was organized in 1883 under the business act of 1875 (chap. 611), and was, by its articles of incorporation, to continue for two years from the date of filing its certificate. This was filed on or about the 6th of June, 1883, and no annual report was ever filed. On the 23d of April, 1884, the corporation entered into a contract with the plaintiffs to furnish and put up steam-heating apparatus in four buildings known as the Navarro Flats, for which said company agreed to pay the plaintiffs $25,000 in four separate payments. The plaintiffs at once commenced work on their contract and received payments from time to time until the sum of $15,333.32 had been paid, which comprised all the payments which were to be made under the contract prior to the final completion of the work.

The plaintiffs completed their woi’k according to the terms of their contract on or about the 7th of December, 1885.

Upon this state of facts the learned referee found in favor of the defendants, and from the judgment thereupon entered this appeal is taken.

The decision of the learned refei’ee was put upon the ground that the existence of the corporation ended in June, 1885, by the terms of its certificate, and at that time no debt was due to the plaintiffs from the corporation.

It is claimed, however, that, by virtue of section 38 of the act of 1875, notwithstanding the dissolution of the corporation, their remedy still existed. - Section 38.is as follows:

“ Section 38. Tlie dissolution for any cause whatever, of any corporation created as aforesaid, shall not take away or impair any remedy given against such corporation, its stockholders or officers, for any liabilities incurred previous to its dissolution.”

And it is urged that, by section 18 of the act in question, the directors must, within twenty days from the first of January in each year, file an annual report, and if they fail to do so a liability is imposed upon them generally and severally to pay all debts then existing or that shall be contracted before such report shall be made.

Attention must be called to the words of the statute making the directors liable for all debts then existing,” and it is probable that the meaning of this term is the one which must control the decision of this case. It is easy to see the reasons why section 38, above quoted, was passed because it had been held in’ the cases of McCulloch v. Norwood (58 N. Y., 562) and Sturges v. Vanderbilt (73 id., 384), that the dissolution of a corporation, even, terminated an action then pending, and that all subsequent proceedings against the defendant were void unless the action was continued by an order' of the court as provided by the Laws of 1832 (chap. 295). If an action actually pending against a corporation terminated by the expiration of the term óf its existence, it is clear that no action could be commenced against a corporation after its dissolution; and the dissolution referred to in this case was a dissolution by expiration of time, and the action had to be revived by order of the court precisely the same as in the case of the decease of an individual, pending action.

In order to avoid this condition of affairs, undoubtedly, section 38 was inserted in the statute to which attention has been called. This brings ns to a consideration of what section 18 means when it imposes a liability to pay all debts then existing and that shall be contracted before such report shall be made.

It is urged, upon the part of the appellants, that even though the debt may not have existed during the existence of the corporation, yet it had been contracted during such existence. "Upon that point the case of Garrison v. Howe (17 N. Y., 458), seems to be conclusive, and our attention has not been called to, neither have we been able to find, any adjudication interpreting in a different manner the language of the statute there construed, which is precisely the same ns that of the section referred to in the case at bar.

In tlie case cited a contract had been entered into by the corporation with the plaintiff to furnish lumber for which they were to pay. a certain price. Subsequent to the entering into the contract there-was a default in the filing of the annual report, but such omission: was repaired prior to the time of the delivery of the lumber, and the court held that the debt for the lumber furnished under the contract’ subsequent to its execution was not contracted when the agreement, was signed. And the court say: “If the statute were simply a' remedial one, it might be said that the plaintiffs’ case was within its"' equity; * * * but the provision is highly penal, and the rules of law do not permit us to extend it by construction to cases Hot’ fairly within the language,” and that the statute contemplated the simple case of a debt contracted during the default in making the report.

Attention may be called to the case of Leggett v. Bank of Sing Sing (24 N. Y., 283), where a different interpretation was placed upon words of similar signification, but yet of a different character. It was there held that a provision in the articles of a banking association that the shares of its stock should not be transferable until the shareholder shall discharge all debts due by him to the association, includes liabilities of the shareholder which have not yet matured; and that such a provision creates a valid lien as against the assignee of the shareholder who takes with knowledge thereof while the shareholder is under a contingent liability as indorser, and gives no notice to the bank of his claim until the indorser’s liability had become fixed. In that case the shareholder was an indorser upon the note held by the bank which at the time of the transfer of the stock was not due. After the transfer he became charged as indorser, and it was held that the language in the articles of association included the liability of an indorser who had not been charged as indorser, the note not having become due.

It may be claimed that the case of Garrison v. Howe is not applicable to the case at bar, because at the time that the debt became due in the case cited the default did not exist, the trustees of the corporation having filed the annual report, whereas in the case at bar no such annual report was ever filed. ~We think, however, that this makes no difference, because at the time at which the debt became due and the liability arose the corporation was dead; so dead that even, actions against it abated. No action could be commenced against it except by the permissive force of the statute passed for the purpose of meeting this contingency. But for all purposes of corporate action, and of the action of its directors or trustees as such, it had ceased to exist, and consequently there was no corporation in being which could perform the act of filing the annual report.

We think, therefore, that the corporation having ceased to exist before the debt arose, that there was nothing to which the statute could apply, as it was evidently not intended that a default having occurred there was no possibility of its ever being repaired.

Even if it were not for the rule laid down in the case of Garrison v. Howe, above cited, we think, upon principle, it would be necessary to come to the same conclusion. The ground upon which the appellant bases his appeal seems to be that, in the case of an executory contract, the debt arises from the moment that the contract is signed. This, clearly, cannot be so, because, non constat, the con-' tractor may never complete his contract. In the case at bar the payment, which forms the subject-matter of this action, was not to be due until the completion of the contract, and it was uncertain at the time of the death of the corporation whether anything whatever would become due to the contractor, because he might never complete his contract. In other words, a debt cannot be contracted until a liability has been incurred, and no liability had been incurred by the corporation until the contract had been fulfilled.

Under all the circumstances, therefore, we are of opinion that the statute did not intend to impose a penalty upon the trustees of a corporation for not doing a corporate act after the corporation had ceased to exist.

The judgment appealed from must be affirmed, with costs.

Brady and Daniels, JJ., concurred.

Judgment affirmed, with costs.


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

text:
    ALBERT P. MILLER, Respondent, v. THE NEW JERSEY STEAMBOAT COMPANY, Appellant.

      Common carrier—what constitutes a refusal to give accommodations to colored persons.

    In an action brought to recover the damages alleged to have resulted to the plaintiS from the refusal of the defendant, a common carrier, to furnish the plaintiff with accommodations on its steamboat, it appeared that the plaintiff, a colored minister, had applied to the defendant and obtained for himself and family berths upon the boat. Subsequently he applied to the purser to exchange the berths for state-rooms, and, at the suggestion of the purser, saw the captain, with whom he had some conversation, after which he was informed by the purser “ no oilier arrangement will be made.” The plaintiff thereafter stated to the purser that if he could get no state-room accommodations he would have to leave the boat and asked for his money, which was refunded to him. It appeared upon the trial that the purser had given state-rooms, after the application made by the plaintiff, to other parties.
    Upon the trial the court charged the jury: “ I am inclined to think that the plaintiff has made out a cause of action of about this width and extent,” to which the defendant excepted and requested the court to charge that if the plaintiff voluntarily left the boat, then no cause of action accrued to the plaintiff, which request was refused.

      £eld, that the court erred in such refusal, as the evidence did not show that there was any demand for a state-room, except in exchange for the berths which the plaintiff had already secured, which exchange the defendant was not bound to make.
    Semble, that the case should have been submitted to the jury upon the question whether the refusal to exchange the berths for state-rooms was made on account of the plaintiff and his family being colored persons, and whether, for that reason, they were refused the privileges extended to the white passengers. (Per Daniels, J.)
    Appeal by the defendant, the New Jersey Steamboat Company, from a judgment of the 'Supreme Court, entered in the office of the clerk of the county of New York on the 1st day of March, 1890, in favor of the plaintiff; and also from an order, dated the 26th day of February, 1890, which denied defendant’s motion for a new trial on the minutes of the court, and that the verdict be set aside, as against the weight of evidence and for excessive damages, after a trial at the New York Circuit before the court and a jury, at which a verdict was rendered by the jury in favor of the plaintiff for the sum of $500.

      W. P. Prentice, for the appellant.

      H. L. Brant, for the respondent.
   Van Brunt, P. J. :

This action was brought to recover damages for the refusal by the defendant, a common carrier, to furnish the plaintiff accommodations on its steamboat.

The facts sworn to by the plaintiff are briefly these: The plaintiff, a colored minister, on the afternoon of August 10, 1887, applied to the defendant for passage for himself and family, consisting of his wife, two children and mother-in-law, from New York to Albany on defendant’s boat the “ Drew.” And having ascertained at the purser’s office what the tickets would cost, and desiring to save expense, and at the same time to be as comfortable as possible, he concluded to take berths, the wife, children and mother-in-law going to berths in the ladies’ compartments and the plaintiff having a berth elsewhere. The plaintiff found that these berths would cost two dollars apiece, passage and everything, and accordingly paid for the berths and was immediately directed to the ladies’ saloon, where he and his family were met by the stewardess, who conducted them to the ladies’ cabin to some berths in the rear, where berths were assigned to his wife, mother-in-law and two children. They sat down their little bundles and were told by the stewardess they could not keep them there because there were others who were to come there and there was no room.

The plaintiff further testified that there was only a small passageway, and that they turned around and said: “ These berths are so very small; we don’t see how we can get along with two children and two women,” whereupon his wife said, “ Suppose, Albert, you go to the purser and get a state-room; they only cost fifty cents more. Get two state-rooms.” He then returned to the purser and said : “ "Well, Mr. Purser, I would like to exchange these berths; we find them too small for comfort, inadequate for proper accommodation; we want things as comfortable as we can; we cannot make ourselves comfortable in those berths because we have children, and have no place to put little bundles for them or anything of the kind.” The purser, said: “ I cannot make tlie change without the consent of the captain.” The plaintiff then sought out the captain and had some conversation with him, and the captain saw the purser and had some conversation with him, whereupon the plaintiff asked the purser “ What is the pleasure of the captain, sir ? ” His reply was “No other arrangement will be made.” After waiting a little while the plaintiff sought out the purser again and said : “ If you cannot do better than this, sir, and you have not had us to understand that you had no state-room accommodation, we will have to leave the boat and you will please give me my money. We would rather leave the boat than go up in this shape.”

The witness further testified that at the time he came back he saw the purser give state-rooms to other parties. The purser replied “I cannot do that without the consent of the captain.” The. plaintiff went after the captain again, who returned with him to the' purser’s office, and after a while his money was refunded to him. The plaintiff then said “ I cannot help the color of my skin any more than you can the color of your eyes. It seems too mean that an American citizen shall be treated in- this manner right in the city of New York.” He had some further conversation in regard to the officers of the company and then left the boat. The plaintiff further testified that he had never been told by any of the officials that there were no state-rooms.

Upon the trial the learned court charged the jury: “ I am inclined to think that the plaintiff has made out a cause of action of about this width and extent,” to which the counsel for the defendant duly excepted; and requested the court to charge that if the plaintiff voluntarily left the boat, there was no cause of action, which was refused.

We think that the learned court below fell into an error in supposing that the evidence showed that there was any demand for a state-room except in exchange for the berths which the plaintiff had already secured.

We have searched the case in vain to find any proof of this description. The demand upon the part of the plaintiff was to exchange the berths which had been assigned to him, and for which he had paid, for a state-room, which seemed to him, after examination, to be preferable and better suited to his wants. The evidence shows that when the money paid for these berths was returned he left the boat, and made'no demand after that time for a state-room.

We think, under these circumstances, no cause of action was. made out. Whatever, may have been the duty of the defendants toward the plaintiff they' were not bound, after he had bought and pgjd for these berths, to exchange them for a state-room. They were under no such legal obligation, although they may have been under a legal obligation to furnish the plaintiff with a'state-room the same as other travelers upon a demand made by him for the same and an offer to pay. But there is no offer to pay for a state-room, except by the return of tickets which he had received for the berths, and possibly offering to pay the difference in-price between the berths and the state-room. The plaintiff had bought the berths and the defendants were willing to comply with, the contract which the payment of the plaintiff called upon them to fulfill. But the plaintiff was not satisfied with those-accommodations and desired others. He demanded an exchange, and nothing else but an exchange. After having sold these berths to the plaintiff, and he having secured them, the defendants were not bound to rescind this contract and buy back the berths and run the risk of selling them over again. If, for his convenience, the plaintiff desired more ample accommodations, it was necessary that he should pay for them, and this he did not offer to do except upon the condition that the defendants would rescind the contract which they had already entered into with him by the sale of the tickets for the berths.

We think, for this reason, that there was a failure to make out a. cause of action, and the learned justice erred in charging the jury that a cause of action had been made out in favor of the plaintiff.

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

Brady, J., concurred.

Daniels, J.:

I concur, as the plaintiff failed to make out his right to maintain the action with such a degree of clearness as to justify the court in holding that he was entitled to recover. It was for the jury to-decide whether the refusal to- exchange the berths for state-rdoms was made on account of the plaintiff and his family being colored persons, and for that reason refusing them the privileges extended to the white passengers. The evidence was sufficient to submit that question to them, but not to sustain the court in ruling that a cause of action, as matter of law, had been proved.

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


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

text:
    HENRY HENTZ and Others, Respondents, v. ELIZABETH F. MINER, Appellant.

      General denial—in an action on contract proof may he given, under a general denial, that it was a wager contract.

    In an action to recover upon an account for money laid out and expended, and for commissions earned in the purchase and sale of wheat and coffee by the plaintiffs, as the agents of the defendant, the defendant interposed a general denial. Upon the cross-examination of one of the plaintiffs’ witnesses, who had conducted the transactions out cf which the alleged indebtedness arose, the ■defendant attempted to prove that it was the understanding of the parties, at the time that all orders were given for the purchases in question, that no merchandise whatever was to be delivered, but that the purchases and sales were "to be settled for upon the basis of the differences in the market-prices. This evidence was objected to upon the ground that it was incompetent, irrelevant and immaterial and was excluded.

      Meld, that the defendant had a right, under a general denial, to prove anything tending to show that no valid contract was ever entered into, and, therefore, was entitled, in the case in question, to show that the purchases and sales were mere wager contracts and consequently illegal, and that the evidence was, therefore, improperly rejected.
    Appeal by the defendant Elizabeth F. Miner from a judgment ■of the Supreme,Court, entered in the office of the clerk of the-■county of New York on the 27th day of December, 1889, after a trial before the court and a jury at the New York Circuit, at which a verdict was rendered in favor of the plaintiffs by direction of the court for the sum of $2,513.53.

      Samuel Ashton, for the appellant.

      T. IS. Dewey, for the respondents.
   Van Brunt, P. J.:

The complaint in this action was for a sum due upon an account for money laid out and expended, and commissions in the purchase and sale of wheat and coffee by plaintiffs as the agents of the defendant. The defense alleged in the answer was a general denial.

Upon the cross-examination of one of the witnesses on the part of the plaintiffs, who conducted the transactions out of which the alleged indebtedness arose, it was sought to prove that it was the understanding of- the parties, at the time the orders were given for the purchases in question, that no merchandise whatever was to be delivered, but that the purchases and sales were to be governed by the differences in the market-prices. This evidence was objected to upon the ground that it was incompetent, irrelevant and immaterial, and the same was excluded and an exception duly taken.

There was no claim that the evidence could not be offered under the pleadings as they stood; but it was objected to generally and excluded apparently as affording no answer to the claim made by the plaintiffs.

This, we think, was error. The defendant had a right to show, • as matter of fact, if such was the case, that it was the understanding and intention of the parties at the time of these alleged purchases and sales that no actual deliveries were to be made or were contemplated; and, therefore, the contract was simply a speculative contract depending upon the result of the market, and that it was never intended to purchase any merchandise, but that the contract should be settled according to the differences in the market-prices. This would be a wagering contract and contrary to the statute. That such is the case is expressly recognized in Bigelow v. Benedict (70 N. Y., 202) and Story v. Salomon (71 id., 420), and no recovery could be had for losses or supposed losses thereunder.

It is urged upon the part of the respondents, however, that this was an affirmative defense which must be setup, and various authorities are cited which they claim establish this proposition. We have examined all those which were decided by the courts of this State, not thinking that authorities of a foreign State can construe the rules of pleading in this State authoritatively, and we find no such proposition whatever laid down in any of the cases.

Under a-general denial of a complaint alleging a contract a defendant has a right to prove anything tending to''show that no valid contract was ever entered into. It is only in those cases where there is a confession and avoidance that it is necessary to plead the special facts constituting the defense. If the so-called contract forming the basis of the action never was in law a contract, because contrary to the law, a general denial authorizes the defendant to prove that fact. Therefore, in the case at bar, the defendant had a right to show that no valid contract for the purchase of merchandise was ever entered into between these parties, or ever contemplated in this transaction, and that they were merely wagering contracts intended to be settled by the payment, upon the one side or the other, of differences without the delivery of ahy merchandise. The evidence which defendant sought to introduce by the cross-examination of plaintiffs’ witness tended to show this, and thereby the defendant brought herself within the rule laid down in Bigelow v. Benedict and Story v. Salomon (supra), in which it was held that contracts were not to be presumed to be illegal, but it was necessary to prove it.

We think, therefore, that because of the exclusion of this evidence, error was committed which calls for a new trial.

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

Brady, J., concurred.

Daniels, J.:

The plaintiff did not object to the form of the questions intended to elicit answers showing that the business out of which the claim arose was made up of gaming transactions. Neither was the objection taken that this evidence was not admissible under the pleadings; when that objection is intended to be relied upon it must be presented at the trial. The general objection which was presented to these questions, that they were incompetent, irrelevant and immaterial, did not justify the exclusion of the evidence offered as not being within the issue. (Schwarz v. Oppold, 74 N. Y., 307.)

The evidence was competent, relevant and material, and it could not be legally rejected as not being of that character. For these reasons the judgment should be reversed and a new trial ordered, as the opinion of the presiding justice concludes.

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


author: Van Brunt, P. J.:

text:
    JOHN WHALEN, Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.

      Railroad crossing where the view is obstructed — contributory negligence of one crossing the tracks—absence of flagman.

    A party crossing in a wagon the tracks of a railroad, which are so obstructed by embankments that it is impossible for him to see an approaching train before reaching the tracks, is, nevertheless, bound, after he gets to the tracks and in a position to see, to look up and down as far as he is able, and his failure to do so constitutes contributory negligence on his part.
    The fact that a party injured upon a railroad had, at times, seen a flagman at the place where he was injured, in the absence of evidence that he had habitually seen a flagman there, does not justify his assuming, in the absence of the flagman, that it is proper for him to cross the tracks.

      Kellogg v. The New York Central and Hudson River Railroad (79 N. Y., 72) distinguished.
    Appeal by the plaintiff John Whalen from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 15th day of April, 1889, after a trial before the court and a jury at the New York Circuit, at which the plaintiff’s complaint was dismissed upon the merits, with costs.

      M. J. Keogh, for the appellant.

      F. Loomis, for the respondent.
   Van Brunt, P. J.:

This action was brought to recover damages for personal injuries sustained by the plaintiff because of the negligence of the defendant. Upon the trial the complaint was dismissed apparently on the ground of the contributory negligence of the plaintiff.

It appears from the evidence that the defendant is engaged in operating the New York Central and Hudson River Railroad, and that on the 27th of May, 1887, the plaintiff was driving an ice wagon, drawn by two horses, along Two Hundred and Sixth street, and while traveling upon that part which is crossed by the tracks of the railway was struck by defendant’s engine and injured.

It further appeared that the plaintiff was going to deliver ice to a customer, whose store was on the west side of the track, and the plaintiff was obliged to cross the track to get to the store to deliver ice. The street through which he was traveling descends to the track at a steep incline, running east and west and the defendant’s tracks north and south. On the northerly side of the street there is a cut in the rock and trains in this cut are not visible to persons coming down the incline, and defendant’s trains passing through this cut could not be seen for any great distance on account of the embankments, except from a point 100 feet east of the east rail of the easterly track, so that after a person passed that point there was no view along the tracks until the tracks themselves were reached.

The plaintiff swore that he had delivered ice at this store many times, and that he had before, at times, seen a flagman where this street crossed the track ; that there was no flagman at the crossing at the time of the accident, and as he approached the track he was on the lookout for all signals and did not know anything until he was struck by the train. It further appears from his evidence that he was driving his horses upon a jog, not exactly a trot, faster than a walk, and had a big ice wagon; that he did not hear anything; that he was on the track before he saw the train; and that he neither stopped before crossing the tracks, nor did he look up or down after he got to the tracks, but that he looked straight ahead and went straight ahead. It further appears, from the construction of his wagon, that, without making some effort, it was impossible for him to look other than straight ahead, and that the first that he noticed the train, the horses were across the west track, and the next instant the plaintiff was hit. In another place he says the first he saw of the train was when the horses were between the rails of the track. This evidently refers to the rails of the west track, he having crossed the east track and having got on the west track before the accident occurred.

It seems to us that here was conclusive evidence of contributory negligence. Conceding that, until plaintiff reached the track, it was impossible for him to see an approaching train, yet he was bound, after he got to the tracks and in a position where he could see, to look up and down as far as he was able. This he utterly failed to do, or to make any use of his eyes whatever, looking straight ahead. It is clear that if, after he got beyond the cut, he had looked to see whether any trains were approaching he could have seen them. But lie took no suck precaution. He took the risk and the accident was the result.

It is claimed, because he saw no flagman there and because he had before seen a flagman there, he had a right to assume that the passage was clear. But the difficulty is, that he had not habitually seen a flagman there. He testified that he had seen a flagman there at times, and, therefore, he knew that it was not the habit to keep the flagman there, and the absence of the flagman under such circumstances offered no invitation to him to cross the track without using ordinary precautions.

It is claimed that the case of Kellogg v. New York Central and Hudson River Railroad Company (79 N. Y., 72) is almost identical with the case at bar. An examination, however, shows a very material difference between that case and the case at bar. The deceased approached the track in a one-horse wagon; he was driving on a slight trot with one hand and holding a pail of butter in the other; that he was familiar with the locality, living near the crossing, and that he approached it when trains were due from both north and south, the wind was blowing from the north. The deceased was seen a moment before he was struck looking towards the north from which a train was then due; that the train approaching from the south struck and killed him. It was claimed that if he had looked towards the south he would have escaped harm. A verdict for the plaintiff was set aside by the General Term on the ground that the complaint should have been dismissed because of the contributory negligence of the deceased. The Court of Appeals held this was error, upon the ground that it was not proved that he was heedless; that the evidence showed that the deceased was apparently aware of the danger and that a train was at that time to be expected from the north, and there was also some obstruction interfering with sight in that direction. For a moment before the collision he was looking in that direction and the court say: “¥e cannot say that at that particular time he should have looked toward the south.” And, under all the circumstances, the court thought that it was for the jury to determine whether he exercised that care which the law required of him.

In the case at bar the evidence absolutely fails to show the slightest attempt upon the part of the plaintiff to ascertain whether any trains were approaching, but he looked straight ahead, and his view straight ahead was limited by the construction of his wagon. He drove across the track heedlessly, taking no precautions whatever to look out for passing trains.

The facts are, therefore, essentially different from those of the Kellogg Case; and as the burden of prCof is upon the plaintiff to show that he was not guilty of contributory negligence, there was no evidence from which a jury could infer that he had not been so guilty. The court was, therefore, right in dismissing the complaint and the judgment should be affirmed, with costs.

Brady and Daniels, JJ., concurred.

Judgment affirmed, with costs.