text:
    KUNIGUNDE ODE, Respondent, v. THE MANHATTAN RAILWAY COMPANY and THE METROPOLITAN ELEVATED RAILWAY COMPANY, Appellants.

      Estoppel — by acquiescence in the construction of an elevated railroad — measv/re of the damages recoverable by an abutting owner.

    In view of the early condition of the decisions, in respect to the rights of abutting owners upon a public street, an owner will not be held by the court to be estopped from claiming the damages resulting from the construction of an elevated railroad company in front of his premises, because of an acquiescence in the construction and continued maintenance and operation of said railroad.
    In order to effect an estoppel the acquiescence must be with knowledge of the wrongful acts themselves and of their injurious consequences; it must be voluntary, not the result of accident, nor of causes rendering it a physical, moral or legal necessity, and it must last for an unreasonable length of time, so that it would be inequitable, even to the wrong-doer, to enforce the peculiar remedies of equity against Mm after lie has been suffered to go unmolested and Ms conduct has been apparently acquiesced in.
    "Where it appears that an abutting owner intended to rely upon legal remedies in redress of his rights, and had no intention to do otherwise than to claim from the courts such remedy as he could obtain, no estoppel arises.
    "Where an elevated railroad has been constructed in a public street, and has created an unauthorized and illegal burden thereon, as against an abutting owner, the damages recoverable by such owner include whatever of injury or inconvenience results from the structure itself, or are incidental to its use, and proof of every kind of damage which results to the abutting owner from the operation and management of the road is admissible.
    Appeal by the defendants from a judgment entered, in the office of the clerk of the county of New York on the ljth day of June, 1889, whereby it was adjudged that the plaintiff recover of the defendants the sum of $4,982.22 for the damages wbicb the plaintiff bad sustained by reason of the construction and operation of the defendants’ railroad in front of the plaintiff’s premises from November 2, 1882, to the date of tbé findings in tbis action, together with costs, and that the defendants be enjoined from further maintaining or operating their railroad in front of the plaintiff’s premises, unless within a period of sixty days the defendants cause the plaintiff’s easement to be condemned or taken for railroad purposes, etc.

      Ed/mard 8. Ra/pallo and BrainmE Tolies, for the appellants.

      E. W. Tyler, for the respondent.
   Yan Brunt, P. J.:

Tbis action was brought to recover damages arising from the interference by the defendants with certain easements in South Fifth avenue, wbicb the ifiaintiff claimed to enjoy as the owner of a lot abutting upon said street, and upon wbicb street the defendants bad erected an elevated railway.

The court, upon the trial, found that, subject to the rights of the city of New York and the public to use the same for the ordinary purposes of a public street, the plaintiff is the owner in fee of the easterly half of Laurens street, immediately in front of said premises. South Fifth avenue was a street wbicb was formed by the widening of Laurens street; and it is claimed by the defendants that the main portion of their railroad structure was not situated upon the portion of South Fifth avenue which formerly formed the easterly part of Laurens street, and upon which the court has found that the lot of the plaintiff abutted, but that, with certain exceptions specified in the findings, the structure is wholly situated, and the trains are wholly run, on that part of South Fifth avenue which constituted the westerly half of the old bed of Laurens street.

The defendants claim error on the part of the trial court, in that no recovery should have been had, because the plaintiff had acquiesced in the construction and continued maintenance and operation of the defendants’ railroad, and had elected not to reclaim the specific enjoyment of the easements appurtenant to her property taken for that purpose, as found by the court; and that certain elements of damage were considered by the court and evidence received in relation thereto for which the plaintiff had no right to recover.

In respect to the first proposition, it is true that the finding of the court would be broad enough, standing by itself, to sustain the contention of the defendants; but taken in connection with the other findings in the case, and the nature of the action, and the circumstances under which it was commenced, it is clear that the learned ■court did not intend to find that there was any such acquiescence ■on the part of the plaintiff as precluded her from recovering damages for the invasion of the easements which she enjoyed as an abutting owner upon the street in which the railroad was constructed.

It is a matter of legal history that, at the time of the construction of these roads, it was the prevailing ojfinion that, in view of the decisions heretofore made in respect to the construction of street railways, abutting owners had no rights which these railroads need respect; and it was not until the decision of the Court of Appeals in the Story Case that there was any certainty that it would be finally held that any of these abutting owners had any right of action as against these railroad companies. And then even, that decision in favor of an abutting owner was pronounced by the Court of Appeals only by a majority of one. The plaintiff, therefore, in view of the condition of the law, did not resist the erection of these railroads; and because she did not suppose she had any legal rights which she could enforce, she so far acquiesced in the' maintenance and operation of the railroad; but when it became evident that she had such legal rights, proceedings were taken for the purpose of enforcing them. And, notwithstanding the decisions which have been cited, we do not think that under such circumstances any estoppel can possibly arise.

It is a familiar principle that, in order that the effect of an estoppel may be produced, the acquiescence must be with knowledge of the wrongful acts themselves, and of their injurious consequences; it-must be voluntary, not the result of accident, nor of causes rendering it a physical, moral or legal necessity, and it must last for an unreasonable length of time, so that it would be inequitable, even to the wrong-doer, to enforce the peculiar remedies of equity against-him after he has been suffered to go unmolested and his conduct-apparently acquiesced in. And Pomeroy, in his Equity Jurisprudence (§ 811) says that what will amount to a sufficient acquiescence in any particular case must largely depend upon its own special circumstances. We are of opinion that the early condition of the-decisions in respect to the rights of abutting owners, justified th& delay in the commencement of the proceedings which is shown in the case at bar. And we think that all that was intended by the learned judge in the finding to which attention has been called, was that the plaintiff intended to rely upon legal remedies in redressing-her wrongs, and had no intention to do otherwise than claim at the hands of the courts such remedies as she might obtain.

It is urged that the learned trial justice erred in awarding damages for injuries to the plaintiff’s vault. It is true that the court found that one of the columns of the railway was placed in the sidewalk adjoining plaintiff’s premises, and in front of the same, and entered into plaintiff’s vault, and occupied at the bottom thereof a space about eight feet square. But it also appears by another finding that no allowance whatever of damages was made because of the bottom of the column being in the vault, because the court expressly finds that the defendants have interfered with no other property rights of the plaintiff than her easements of light, air and access, if any, in South Eifth avenue. And it appears further, by the twenty-first finding, that the easements of the plaintiff of light, air and access from through and in the avenue in front of plaintiff’s premises are, by the maintenance and operation of the railroad, interfered with, impaired and partially destroyed to such an extent that the future damages to the plaintiff’s easements aforesaid will be $7,000, and that the fee of said real estate is by reason of the premises diminished $7,000.

It is clear from these findings that the learned judge did not take into consideration or award any damages whatever for the space-occupied in the vault by the foot of the column.

The other objection made to the award for damages is the consideration of the noise, made by defendants’ trains as an element of damage.

The learned trial justice found by his eighteenth finding that, in passing plaintiff’s premises, engines and trains of defendants produce a loud and disagreeable noise, to the great annoyance of plaintiff and her tenants.

Although it does not clearly appear that award was made because-of the annoyance caused by the noise, yet it seems that if such had been the case, it would have been no error under the principles laid down in Drucker v. Manhattan Railway Company (106 N. Y., 157), which case is cited as an authority against the proposition that-an award of damages for noise caused by defendants’ trains may be made.

We think, however, that the true construction of the opinion authorizes an allowance for all the evils which result to the abutting owner from the maintenance and operation of this railroad. It is the aggregation of the discomforts suffered by the abutting owner for which compensation may be granted.

It is true that the use of the street by the railways is a public use, yet it has been distinctly held in the case of Lahr v. Metropolitan Railway Company (104 N. Y., 268) that it was not a street use, and that its operation imposed upon a street an unauthorized burden, and was illegal and wholly a trespass as against abutting owners not duly compensated. And the court say that, as a logical consequence, the damages recoverable include whatever of injury or inconvenience result from the structure itself, or are incidental to its use. This rule opened the door to the proof of every injury traceable to the railroad or its operation, and it is stated to be that, “ however the damage may be inflicted, provided it be effected by an unlawful use of the street, it constitutes a trespass rendering the wrong-doer liable for the consequences of his acts.”

It is true that this rule did not receive the approbation of the whole court, and that a minority favored a more narrow rule of damages, but we think that the true construction which must necessarily follow the principles laid down, in view of the illegal operation of these railroads, authorizes proof of every kind of damage which results to the abutting owner from the operation and management ■of the roads.

Until the highest courts lay down a narrower rule apparently in conflict with the general rule pervading the proof of damages in cases of trespass, we think the more liberal measure of damages to be most in consonance with justice.

We see no reason, therefore, for interfering with the judgment, and the same must be affirmed, with costs.

Barrett and Bartlett, JJ., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Yan Brunt, P. J.:

license: Public Domain

text:
    JOSEPH SIMONS, Respondent, v. SAMUEL GOLDBACH and FRANK M. SIMONS, Defendants. (SIGMUND ASHNER, Appellant.)

      Fraudulent confession of judgment — it cannot he amended, it must he set aside wholly.

    "Where a judgment has "been confessed fraudulently for an amount in excess of the obligation then due by the party confessing it, the court has no power to amend the judgment by reducing the amount thereof to the actual indebtedness. In such case the whole judgment is invalid, and should be set aside.
    Appeal by Sigmund Ashner from an order, entered in the office ■of the clerk of the county of New York on January 20, 1890, denying the motion of said Sigmund Ashner to vacate the judgment and execution theretofore entered and issued in the above-•entitled action.

      John, Fennel, for the appellant, Sigmund Ashner.

      O. Hahn, for the plaintiff, respondent.
   Yan Brunt, P. J.:

On the 4th. of December, 1889, the defendants confessed a judgment in favor of the plaintiff for $4,117.58, and the same was duly entered and an execution issued thereon on that day.

The appellant having obtained an attachment against the property of the defendants, and caused the sheriff to levy upon the identical property levied upon under said execution, made a motion to vacate-the said judgment and execution upon the ground that such judgment was fraudulent and void, and was entered pursuant to a scheme-to cheat and defraud the creditors of the defendants, and that the execution was irregular in that it was issued for the whole amount of the judgment, while only a part of the sum secured by the judgment was due.

The learned justice in the court below reduced the judgment to-$3,081.19 for damages and costs, and allowed the same to stand for the balance.

In arriving at this conclusion the learned justice allowed a claim for $835.81 for merchandise due from the plaintiff to the defendants,, and $200 for money loaned, an item put in the books by the defends ant Simon. There was also included in the judgment a note dated. November 8, 1889, payable thirty days after date, for $302, and hence not due when judgment was confessed, which was allowed, to remain, and from the order thereupon entered this appeal is. taken.

There is no doubt as to the power of the court to amend the judgment and execution if an honest mistake had been committed as to-the amount. But it is clear from the circumstances attending the entry of the judgment in question, and from the fact that a fraudulent item of $200 was included in the judgment, that the confession was not made in good faith, but was made with intent to hinder, delay and defraud creditors, and if this was the fact, then it is entirely immaterial whether the plaintiff, in the confession, was cognizant of the fraud’ or not. The judgment would be equally invalid. In the case of an assignment with preferences, where a preference has been made for a fraudulent amount, under the statute, such a fraudulent, preference invalidates the whole assignment; or where, in a judgment, there is included intentionally more than is actually due, such judgment is void, not to the extent of the fraud, but wholly, according to the provisions of the statute. Section 1, volume 2, page 137 of the Revised Statutes reads as follows:

“ Every conveyance or assignment in writing or otherwise of any •estate or interest in lands, or in goods or things in action, or of any rents or profits issuing therefrom, and every charge upon lands, goods or things in action, or upon the rents or profits thereof, made with intent to hinder, delay or defraud creditors or other persons •of their lawful suits, damages, forfeitures, debts or demands, and ■every bond or other evidence of debt given, suit commenced, decree oi-judgment suffered with the like intent as against the person so hindered, delayed or defrauded, shall be void.”

The learned court below, upon sufiicient evidence, having found ■that, as to a portion of this judgment, it was fraudulently entered, was bound under the provisions of the statute to vacate the judgment, because such judgment, entered under such circumstances, is declared by the statute to be absolutely void.

If the defendants included in their confession of judgment more than the plaintiff was entitled to receive, there can no claim be made that it was an honest mistake. They were upon the verge of bankruptcy. They could not continue their business, and they confessed this judgment for the purpose of securing the father of one of the defendants, and the evidence seems to be that, at least, a large proportion of the amount covered by this judgment was not due. Of this fact they were well aware, and yet the judgment is entered for the full amount. This was a fraud upon the creditors which rendered .such judgment void pursuant to the statute.

There was evidence adduced by the affidavits that there was a .scheme upon the part of these defendants to remove their property from the reach of their creditors, and that the attorney who issued this execution, and who was the attorney for the entry of the confession of judgment, was cognizant of this intention. The entry of the judgment and the carrying out of the intention were evidently one scheme, but it is urged that the knowledge of this attorney ■ of this attempt cannot affect the plaintiff, because his action cannot be said to involve the plaintiff in a scheme to cheat the creditors of the defendants so as to have his honest judgment set aside.

In this proposition the learned counsel forgets that it is not necessary, in order to invalidate this judgment, that the plaintiff had cognizance of the scheme to defraud the creditors. It is sufficient, even if this judgment was confessed upon an honest debt, that it was part and parcel of a plan by which some portion of defendants’ property was to be removed and concealed from their creditors, to render such judgment absolutely void, because all the acts of the defendants in the carrying out of such a scheme are necessarily tainted with the same infirmity. In the case of an assignment with preferences, although honest debts may be preferred, yet if any portion of it is tainted with the intent to defraud creditors, the whole assignment falls. So in the case of the confession of a judgment, if it is part and parcel of a scheme to remove property from the reach of creditors, although the plaintiff in the judgment may be entirely innocent, and although his debt may be entirely honest, the judgment is tainted by the intent of the parties confessing the same. It is not necessary that the plaintiff should be involved in the fraud in order that he may lose the security which he has obtained by the entry of the judgment. It is only hotia fide purchasers for value who are protectéd by their own good faith, and a judgment-creditor does not stand in that relation toward his judgment-debtors.

Upon the whole case, therefore, instead of reducing the judgment because of the insertion therein of a fraudulent amount, the court should have vacated the same entirely.

The order should he reversed and the judgment vacated, with ten dollars costs and disbursements.

Beaut and DaNiels, «TJ., concurred.

Order reversed and judgment vacated, with ten dollars costs and disbursements.


author: Brady, J.: Daniels, J.:

text:
    CORNELIUS B. MITCHELL and Others, Respondents, v. ALFRED OLIVER, Appellant.

      Reference — a counter-claim setting up numerous items of damiage as'ising from misconduct and neglect does not present a long account.

    In an action brought to recover a balance of account and interest due for moneys advanced, the complaint contained a single item of balance of cash loaned, followed by a credit of four items, representing a balance of account of sales made on different dates. The defendant denied that there was any money due from him, and alleged, by way of counter-claim, that he entered into a contract with the plaintiffs by which they were to act as agents in selling goods; “that, owing to plaintiffs’ neglect and misconduct, in and about selling said goods as directed, and making sales of same at less prices than directed, under and in accordance with said agreement, and at less than their market value, defendant was prevented from obtaining for goods of the same character prices which he otherwise would have obtained, and also lost many sales thereby, and was otherwise damaged.”

      Held, that the provisions of section 1013 of the Code of Civil Procedure authorized a compulsory reference to hear and determine all actions where the trial will require an examination of a long account, but that such account must be the immediate object of the action or the ground of defense. It must be directly, not collaterally, involved.

      Oamip v. Ingersoll (86 N. Y., 433) followed.
    That the complaint in this action did not involve the examination of a long account; that the defendant’s counter-claim consisted of numerous items, but they resulted collaterally from the agreement between the parties in regard to the sales of merchandise, and depended upon charges of disobedience and neglect in reference thereto, which were clearly matters not of account, but of damage resulting from alleged improper conduct.
    Appeal by the defendant from an order, entered in the office of the clerk of the comity of New York on the 6th day of January, 1890, whereby the above-entitled action was referred to Eugene H. Pomeroy, Esq., to hear and determine the issues therein ; and also from an order, entered in said office on the 20th day of January, 1890, whereby Robert E. Deyo, Esq., was appointed referee to hear and determine all the issues thereof.

      Francis Forbes, for the appellant. >

      William Mitchell, for the respondents.
   Brady, J.:

This action was brought to recover a balance of $1,798.60 and interest due for moneys advanced and loaned by the plaintiffs as commission merchants in the city of New York. The complaint alleged the loan and advance of money to the defendant as per schedule A annexed to the complaint. Schedule A contains one item: June thirtieth, balance cash loaned prior to date, $7,361.57. Then follows a credit of four items, being balances of account of sales made on different dates, $5,562.99, tiffs leaving the amount due, as alleged in the complaint, according to schedule A, $1,798.60. The defendant denies that there is any money due, and then alleges, by way of counter-claim, that in May, 1886, he entered into a contract with the plaintiffs, by which they were to act as agents in selling goods, wares and merchandise manufactured by him to be consigned and shipped to them for sale, and were to use due diligence in selling the same, and in exhibiting and offering the same to purchasers, and offering facilities for selling the same, and were to obey the reasonable directions of the defendant in regard to the sales; that, subsequent to the date mentioned, the defendant gave directions which were reasonable, and- which, if obeyed, might have resulted in a sale of the goods at the prices mentioned; that plaintiffs did not use reasonable diligence, but unreasonably delayed and neglected to sell the same in accordance with the directions, and with the terms of the contract, and sold certain goods, without authority or direction, at less than the prices at which the plaintiffs were directed to sell the same, and at prices less than their market-value; that they never accounted for certain goods so placed in their hands, and “ that, owing to plaintiffs’ neglect and misconduct in and about selling said goods as directed, and making sales of same at less prices than directed, under and in accordance with said agreement, and at less than their market-value, defendant was prevented from obtaining for goods of the same character prices which he otherwise would have obtained, and also lost many sales thereby, and was otherwise damaged. That defendant, by and on account of said neglect and misconduct on the part of plaintiffs, as above set forth, suffered damage to the amount of $12,000.

The provisions of the Code (§ 1013) authorize a compulsory reference to liear and determine all actions where the trial will require the examination of a long account, but the account must be the immediate object of the action or the ground of defense. It must be directly, not collaterally, involved, Camp v. Ingersoll, 86 N. Y., 433.) In that case, Folger, J., refers to the case of Van Rensselaer v. Jewett (6 Hill, 373), in which it was said that a case could not be referred, although there were many items of damage, unless there is an account between the parties in the ordinary acceptation of the term, which is one made up of the dealings of the parties with one another, though the account may be that of one party only. The learned justice also refers to Kain v. Delano (11 Abb. [N. S.], 29), where it was held that the account to be examined must be the immediate object of the action or the ground of •defense, and must be directly, and not collaterally, involved.

I The plaintiffs’ demand clearly does not involve the examination •of a long account. Indeed, there is no allegation to that effect. The defendant’s counter-claim consists of numerous items, but they result collaterally from the agreement between the parties, which was to loan, advance and sell on the one hand, and on the other to manufacture and consign for sale, and for the reason that they ■depend upon charges of disobedience in reference to the mode of sale, and are put expressly uqion the charge with which the answer ■concludes, namely, that the defendant had, on account of neglect •and misconduct on the part of the plaintiffs, suffered damage. They are clearly matters not of account, but of damage resulting from alleged improper conduct.

This theory m regard to references was carried out also in the case of Untermyer v. Beinhauer (105 N. Y., 521), where it was said the fact that a bill of particulars had been furnished by plaintiff, specifying a number of items of damage, did not bring the action within the provisions of the Code. And further, in answer to an objection, that the counter-claim set up in the answer, although it might require the examination of a long account would not make the action referable ; the character of the action was to be determined by the complaint ; the answer could not change it. (Welsh v. Darragh, 52 N. Y., 590.) And Townsend v. Hendricks (40 How. Pr., 143) was cited and approved, holding that a defendant had a constitutional right to a trial by jury of the issues presented by the complaint, and he did not waive that right by setting up, in addition to his defense, a counter-claim.

It seems to be clear, under these authorities, that this action is not one in which a reference can be enforced, even though the counter-claim might require the examination of a long account.

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

Daniels, J.:

I concur in the conclusion that the issues in this action could not be referred without the consent of each of the parties. Where, however, a long account in favor of the defendant may be in issue, a reference may now be ordered by the court without such consent. Section 1013 of the Code of Civil Procedure has been so amended as no longer to make the power of the court to order a reference dependent on the complaint alone. Now, where the trial will require the examination of a long account on either side, a reference may be ordered without the consent of either party. But this is not such an action, and the order of reference being resisted by one of the parties, was erroneously made, and should be reversed and the motion denied.

"Van Brunt, P. J., concurred.

Order reversed, with ten dollars costs and disbursements.


author: Daniels, J.:

text:
    WILLIAM M. WALTON, Plaintiff, v. THE GRAND BELT COPPER COMPANY, Defendant. THE FARMERS’ LOAN AND TRUST COMPANY, Appellant.

      Receive?' appointed in this State — made a pa/i'ty to an action of mortgage foreclosure brought in another State — only a party to cm action am be enjoined.

    A receiver of the property of a corporation, appointed in the State of New York, who is made a party to an action of foreclosure, brought in another State, of a mortgage given by such corporation, is not entitled to an injunction restraining the prosecution of such foreclosure suit where the question involved therein relates, not to the regularity of the appointment of the receiver, but to the priority in riglit of payment, over the mortgage, of certain notes or certificates issued by the receiver.

      Where the plaintiff in the foreclosure suit is not a party to the action in which the receiver was appointed, an injunctionis not properly issued in such latter action, as section 603 of the Code of Civil Procedure requires that the party enjoined should be a party to the action, or one who acts under his authority or employment.
    Appeal by the Farmers’ Loan and Trust Company from an order, made in the first above-entitled action, entered in the office of the clerk of the county of New York on the 21st day of February, 1890, which enjoined the appellant from assailing, in a foreclosure suit brought by it in the State of Texas against the Grand Belt Copper Company and others, the regularity of the appointment or powers of the receiver, and further provided that said order should not be construed as enjoining the Farmers’ Loan and Trust Company from contesting in the foreclosure suit in Texas any claim that might be asserted of priority of the receiver, or of any one claiming under him, as such question might arise in said foreclosure suit, irrespective of the question of authority conferred upon the receiver by the court.

      David MeGl/are, for the appellant.

      Fielding D. Marshall, for William Belden, receiver, etc.
   Daniels, J.:

The respondent, William Belden, was appointed receiver of the property of the Grand Belt Copper Company in March, 1887, by a judgment recovered in this action. In July, 1884, the Grand Belt Copper Company executed a mortgage to the Farmers’ Loan and Trust Company upon real estate situate in Texas, and secured thereby the sum of $400,000 in corporate bonds of $1,000 each, issued by the Copper Company. That company made default in the payment of the indebtedness, and in September, 1889, the. Farmers’ Loan and Trust Company commenced an action in the District Court of Hardeman county, in the State of Texas, for the foreclosure of this mortgage and the sale of the property on which it was given.

It is alleged in the complaint for the foreclosure, that William Belden had been appointed receiver of the Grand Belt Copper Company, and that the order appointing him was of no force or ■effect, so far at least as the interests of the Farmers’ Loan and.Trust Company were concerned, and that its rights as mortgagee in trust were in no way affected by this action, or the appointment of the receiver or any indebtedness he might have incurred; but upon information it was alleged that the receiver claimed to have issued and negotiated notes and certificates of indebtedness as receiver, and that Hiram Pool claimed to be the owner of the notes or certificates. It is further averred that the Farmers’ Loan and Trust Company, the mortgagee, never consented to the making or issuing of the certificates ; that it was no party to this action, and that any right or claim of either the receiver or Pool must be subsequent, subsidiary and junior in lien to the lien of the mortgagee under its mortgage or trust deed. These two persons were made defendants in the foreclosure case, to extend to them the opportunity of setting up such rights and claims therein as they might be advised. And it was upon this part of the complaint in the foreclosure action that the application was made by the reciver in this action, for an injunction restraining the prosecution of the action pending for the foreclosure of the mortgage in the State of Texas. Hpon a hearing of the motion the court made an order enjoining the Farmers’ Loan and Trust Company from assailing in the foreclosure suit the appointment or powers of the receiver, but declaring that the order should not be construed as enjoining the company from contesting in the foreclosure suit in Texas any claim of priority which might be asserted by the receiver or of any one claiming under him, irrespective of the power and authority conferred upon him by this court.

No cause or ground for the injunction was presented by the facts in this manner alleged in the complaint in the suit in Texas. For it was not a part of the design of the allegations set forth, to question the regularity of the appointment of the receiver in this action, but what was intended to be contested under this part of the complaint, was his right to issue notes or certificates, having a priority by way •of lien or right to payment, over the preceding mortgage executed and delivered to the trust company. That was an entirely legitimate subject of litigation incident to the complete disposition of the foreclosure suit in the State of Texas. And it is not the practice of this court, by way of injunction, to interefere with the proceedings in the court of another State, unless they may appear to be vexatious or oppressive or . instituted to obtain some unjust or inequitable advantage. (Claflin v. Hamlin, 62 How. Pr., 284; Bowers v. Durant, 43 Hun, 348; Cowper v. Theall, 40 id., 520.)

Where no fact of that nature can be presented to support the right to an injunction, the party is ordinarily left to vindicate his right in the action brought against him by the party desired to be enjoined. (Savage v. Allen, 54 N. Y., 458.)

So far as the receiver’s rights and powers were intended to be brought into controversy in the suit in Texas, they necessarily affected the rights of the trust company under the mortgage, and should, in that action, be contested and determined.

The Farmers’ Loan and Trust Company was not a party to the action in which the receiver by the judgment recovered had been appointed. Neither was any action brought by him against the company to obtain' the injunction; but it was issued wholly upon affidavits and an order to show cause, without in any manner making the trust company a defendant in this suit. And the Code has provided, in regulating and prescribing the practice for obtaining an injunction, for issuing it only against a party to the action. By section 603 of the Code of Civil Procedure the injunction is allowed to be issued where it appears from the complaint that the plaintiff is entitled to a judgment against the defendant restraining the commission or continuance of an act, etc. And by the following section also, where it appears by affidavit that the defendant, during the pendency of the action, is doing or procuring or suffering to be done, or threatens to do an act in violation of the plaintiff’s right respecting the subject of the action, and tending to render the judgment ineffectual; or where it appears that the defendant, during the pendency of the action, threatens, or is about to remove or dispose of his property with intent to defraud the plaintiff. This language clearly contemplates the intention to have been to provide for the injunction only against a party to the action, and, constructively, those who may act in his employment or under his authority. The Farmers’ Loan and Trust Company sustained no such relation to any party to this action, and it was in no sense made a party to it by the proceedings which were taken. And for that, as well as the other reason already assigned, no case for an injunction was made out. It is true, as the order was made, it might not interfere in any serious degree with, the prosecution of the foreclosure suit in the State of Texas. But the trust company was not obliged to submit to the risk of its doing so or not, inasmuch as the case made required no injunction, and the order itself was irregular.

It should, therefore, be reversed, with ten dollars costs and the disbursements, and the motion denied.

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

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


text:
    STEPHEN VOISIN, Plaintiff, v. THE COMMERCIAL MUTUAL INSURANCE COMPANY, Defendant.

      Appeal from an order denying a motion for a neto trial, may be taken after the time to appeal from, the judgment has expired — what notice of entry of order necessa/ry to limit the time to appeal.

    Alter the entry oí a judgment upon the verdict of a jury, and service of a notice of the entry thereof upon the attorney for the defendant, and after the expiration of the time prescribed for an appeal from the judgment, a notice of appeal was served from an order denying a motion for a new trial which had been made at the trial upon the minutes of the court.
    Upon an application to dismiss the appeal, upon the ground that after judgment was entered, and the time to appeal therefrom had expired, an appeal could not be taken from the order denying the motion for a new trial:

      Held, that, under section 1347 of the Code of Civil Procedure, in the Supreme Court the right exists in the defeated party to bring to a hearing on appeal, and dispose of, the motion for a new trial, although final judgment may have been entered, the time to appeal therefrom may have expired, and the judgment itself may have been enforced.

      Semble, that the practice is otherwise in the Court of Appeals.

      HerlethY. De Graff (104 N. Y., 661); Hess v. Third Avenue Sailroad Company (109 id., 645) distinguished.
    Motion to dismiss an appeal from an order entered in the office of the clerk of the county of New York, denying a motion for a new trial, made upon the minutes of the judge before whom the action was tried.

      Frederick R. Goudert and William Mitchell, for the plaintiff.

      Treadwell Cleveland, for the defendant.
   Daniels, J.:

The motion for a new trial was made after the recovery of the verdict, and denied by the court.

Judgment was afterwards entered upon the verdict, and a notice of the entry served upon the attorney for the defendant, and after the time prescribed for an appeal from the judgment had expired, in case the notice was sufficient for this purpose, the notice of appeal was served from the order denying the motion for a new trial. And in support of the application to dismiss the appeal, the objection lias been taken that, after the judgment was entered, and the time had expired for appealing from it, an appeal could not be taken from the order itself denying the motion for a new trial; and the case of Derleth v. DeGraff (104 N. Y., 661) has been presented as an authority supporting this objection. In that case the appeal was taken from an order of the General Term affirming an order denying a motion for a new trial. At the time of the decision an appeal which had been taken from the judgment was also decided, resulting in an affirmance of the judgment, and a motion was made in the Court of Appeals to dismiss the appeal from the order for the reason that no appeal had been made from the judgment. And the court, considering this motion to be well founded, dismissed the appeal from the order of the General Term affirming the order denying a new trial. And this conclusion was deemed to be warranted by the fact that, upon an appeal from the order to the Court of Ajipeals, that court, by its reversal of the order, would leave the judgment itself undisturbed, and consequently would not dispose of the litigation. This decision seems to have been likewise followed in the dismissal of a similar appeal in the case of Ross v. Third Avenue Railroad Company (109 N. Y., 645).

But these cases relate alone to the practice in the Court of Appeals,‘which is unaffected by legislative enactments relating to the Supreme Court. In this court a different practice has been prescribed. Prior to its adoption a motion for a new trial upon a case could not be made after a final judgment had been entered. But this was changed by chapter 128 of the Laws of 1832, which provided that in any personal action where a bill of exceptions should be taken, or demurrer to evidence put in, or a case should be made, or notice of motion given for a new trial on newly-discovered evidence, and the proceedings should not be stayed, the party in whose favor the verdict was rendered might perfect his judgment and issue execution. But it was further declared that it should, nevertheless, be lawful for the other party to proceed to obtain a hearing before the Supreme Court upon the matters in question in the manner therein-after mentioned; and in case the judgment should be in his favor they might set aside the proceedings, with the verdict, and order restitution, which might be enforced by such writs of restitution as were used in cases of reversal in error, or by motion and attachment, etc. It was then declared that the cases mentioned in this, the first, section of the act, should, in the' first instance, be heard and decided by the circuit judge of the circuit in which the cause was tried, or such other circuit judge as should hold the courts mentioned ■ in its fifth section. And that provided for a session of the court once in every three months for hearing arguments upon bills of exceptions, cases, etc., mentioned in the first section. It was further provided, also, by section 4 of the same act, that in these cases either party might bring the cause to a hearing thereon before the Supreme Court by appeal after the circuit judge should have decided the same. This act changed the preceding mode of practice and permitted the defeated party in all personal actions tried at the circuit to move for a new trial upon exceptions or a case, or demurrer to evidence, or for newly-discovered evidence. But the proceedings which it authorized were restricted wholly to the circuit in the first instance, and then, by way of appeal, to the Supreme Court. The case could go no further. Bor the act provided for no other proceedings by way of review. And this practice provided for by the act was considered to remain in force after the enactment of the Code of Procedure.

This subject was before the Court of Appeals in Tracey v. Altmyer (46 N. Y., 598), where it was held that a motion for a new trial might be made in the action after the entry of judgment, and that the General Term had the power to review this order upon the merits and upon any and every ground connected therewith,” and it was its duty so to do.” (Id., 604.) And that certainly continued to be the law upon this subject until the enactment of the Code of Civil Procedure; and that has been made to include the same practice, for by section 1005, which, in its language and effect is very much the same as the proceeding permitted in section 1 of the act of 1832, it has been declared that the entry of final judgment and the subsequent proceedings to collect or otherwise enforce it, are not stayed by an exception or the settlement of a case or a motion for a new trial, without an order directing a stay. But it has been added that “ the entry, collection or other enforcement of a judgment does not prejudice a subsequent motion for a new trial. Where a new trial is granted, the court may direct and enforce restitution, as where a judgment is reversed upon appeal.” This section is applicable only to the courts before which issues of fact may be tried by a jury, and they are empowered, after the rendition of a verdict, to entertain a motion for .a new trial. It has no application to the Court of Appeals, and, therefore, has worked no change in the power to review an order granting or denying a new trial in that tribunal. But in the Supreme Court and other courts of co-ordinate jurisdiction, it has plainly secured the right to bring on and dispose of the motion, although final judgment may have been entered, and the judgment itself may have been enforced or satisfied. The section is complete and ample for this object, and when an order shall be entered upon the decision of a motion mentioned in this section, it has been further provided by section 1347, that an appeal may be taken from it to the General Term of the same court. The authority prescribed for this purpose is entirely unqualified, and is in no respect made dependent upon the omission to enter a final-judgment in the action. An exception has been made to the right to appeal mentioned in subdivision 2 of this section, but as this case is not within the exception it does not require to be considered in the disposition of the motion. The practice which has been in this manner created, was designed, as it has been expressed, to provide for a review of the trial after the judgment may have been entered and even collected. And this practice includes not only the motion itself for a new trial, which may be made either before or after the entry of final judgment, but for an appeal to the General Term of the court in which the action may be pending. And so it was considered in Luddington v. Miller (36 N. Y. Supr. Ct. [4 J. & S.), 1), and this has been generally followed in Lane v. Bailey (45 Barb., 119); Valton v. National, etc., Society (19 How. Pr., 515); Pumpelly v. Village of Owego (22 id., 385); Gannon v. Campbell (19 Abb. Pr., 164, note); and by this General Term in the case of Ross v. Third Avenue Railroad Company, already mentioned. But it was denied in Soverhill v. Post (22 How., 386) and by other decisions, which, as they are not now controlling, do not require to be noticed; for, by the statutory provisions which have already been referred to, there appears to be no reasonable ground for doubting the authority of the court at the trial or the Special Term, to hear a motion for a. new trial either before or after final judgment, or the authority of the General Term to review the decision made upon such motion..

The practice is different in the Court of Appeals, but that does-not affect the course of proceeding under these statutory enactments, in the Supreme Court or in other courts of local co-ordinate jurisdiction. Neither does section 1200 of the Code of Civil Procedure; stand in the way of the defendant’s right to have the appeal heard which has been brought from the order. Por that is necessarily qualified by the other sections securing this right to review the-order denying a new trial. And if that shall prove to be successful, then the control which the court' has over its judgments will supply all needed authority to vacate it and conform it to the order setting aside the verdict. Por without a verdict to support a judgment it would be a practical nullity.

It has been objected, that the notice of the entry of the judgment: did not limit the time to take an appeal from it, according to the recent decision of Good v. Daland (23 North East. Rep., 474). Whether it did or not, it is unimportant to inquire, inasmuch as sufficient authority is found to entitle the defendant to take this, appeal even though the notice may have been in full compliance, with the provisions of the Code permitting it to be served.

The motion to dismiss the appeal should be denied, with ten dollars costs.

Brady, J., concurred.

Motion to dismiss appeal denied, with ten dollars costs.


text:
    HENRY WOODS, Appellant, v. HENRY GLEDHILL, Respondent.

      Husband and wife — the husband is competent to testify in an action for the debcmching of his wife.

    .A husband, the plaintiff in an action to recover damages for the debauching of his wife, is a competent witness to prove any fact tending to establish the charges of misconduct alleged in the complaint; although it may implicate.her in the transaction.
    Section 831 of the Code of Civil Procedure applies only where the wife is a party to the action.
    Appeal by Henry Woocls, the plaintiff, from a judgment, entered in the office of the clerk'of the county of New York on the 19th day ■of October, 1889, after a trial before the court and a jury at the New York Circuit, at which the plaintiff’s complaint was dismissed.

      WilUam H. Reid. for the appellant.

      Re Laneey JSFieoll, for the respondent.
   Daniels, J.:

The action was to recover damages for seducing and debauching ■the plaintiff’s wife. He was sworn as a witness to establish bis right to maintain the suit, and the court held him to be incompetent to prove any fact tending to establish the misconduct alleged as the ground of the action. But by the provisions contained in section 828 of the Code of Civil Procedure it has been enacted that a person shall not be excluded from being a witness by reason of bis interest in the ev.ent of the action, or because be is a party thereto, or the husband or wife of a party, except as otherwise prescribed in the same title. The. effect of this section is to make the party competent unless by some other special provision that competency has been denied to him. The only provision which can have this effect is that contained in the first part of section 831 of this Code. By that it has been declared that “A husband or a wife is not competent to testify against the other upon the trial of an action or the bearing upon the merits of a special proceeding founded upon an allegation of ■adultery, except to prove the marriage or disprove the allegation ■of adultery.” But the plaintiff was not within this exception, for lie was not offered as a witness to give evidence against his wife, but: his evidence was proposed to be given against the defendant in the-action. It is true that it might have the effect of implicating her in the misconduct charged, but, as the action was not against her, but against another person, the evidence proposed to be elicited would be against him and him alone. The case accordingly was not within this prohibition of section 831 of the Code. And the same-point has been disposed of in this manner by the General Term of the second department. (Smith v. O’Brien, 6 N. Y. Suppl., 174.)

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

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

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


text:
    GEORGE H. HARDY, Respondent, v. STEPHEN A. MAIN, Appellant.

      Evidence — cross-examination, competent where it tends to contradict the toitness on a. material point.

    In an action brought to recover for services rendered in the construction of the-stairs in a building, the fact' of the plaintiff’s employment by the defendant was denied. The plaintiff testified that he was employed by the defendant to build the stairs, which had been constructed by him, and called to establish the fact of such employment a witness, Joseph Coat, who had also been employed upon the-premises, and who, upon his cross-examination, was asked whether he was- not doing the work there as a contractor for the entire job. This question was objected to by the plaintiff and excluded.

      Held, error.
    That the defendant had a right to" prove by the witness any fact or circumstance inconsistent with the evidence the witness had given, or tending to establish a bias on his part, in favor of the plaintiff.
    That if the witness had answered that he had the entire job, it would have discredited his statement that the plaintiff was employed by the defendant to construct the stairs.
    Appeal by the defendant Stephen A. Main from a judgment entered, in the office of the clerk of the county of New York on. the 15th day of October, 1889, in favor of the plaintiff, for $194.16, .after a trial before the court and a jury at the New York Circuit; .and also from an order, entered in said office on the 10th day of October, 1889, denying a motion made upon the minutes of the judge to set aside the verdict and grant a new trial in the action.

      Jones c& Roosevelt, for the appellant.

      Theodore F. Samsscuy, for the respondent.
   Daniels, J.:

The verdict was recovered for the expenses of labor and material in constructing stairs in a building owned by the defendant. The performance of the work and the supplying of the material were not controverted upon the trial, but the defendant denied the plaintiff’s employment. In his evidence the plaintiff testified positively that he was employed by the defendant to build the stairs which had been constructed by him. To further substantiate his ■case he called Joseph Coat as a witness, who was also employed in the performance of work upon the premises for the defendant, and ■upon his cross-examination he was asked whether he was not doing the work there as a contractor for the entire job. This was objected to by the plaintiffs counsel, and the witness was not permitted to .answer the inquiry; and to the ruling then made the defendant ■excepted, and this exception seems to have been well taken. For "the defendant had the right to prove by this witness any fact •or circumstance inconsistent with the evidence he had given, or tending to establish any bias on his part in favor of the plaintiff. And if the witness had answered that he had taken the entire job ■of this work from the defendant, then, without further explanation, that would have subjected his statement, that the plaintiff was ■employed by the defendant to construct and put up the stairs, to .some degree of doubt or discredit. For the position might well be taken, if the witness had answered that he did take the entire job •of the work, that his evidence stating the plaintiff’s employment for building the stairs was consistent with this circumstance. And when a witness is examined in favor of one party the other party to the action has the right to interrogate him concerning any material fact or circumstance which may tend to reduce the weight ancl effect of his testimony. (Dubois v. Baker, 30 N. Y., 355, 362; Richardson v. Northrup, 66 Barb., 85, 90; O'Hagan v. Dillon, 42 N. Y. Sup. Ct. [10 J. & S.], 456, 461; Wallace v. Marks, 13 N. Y. Week. Dig., 399; Starr v. Cragin, 24 Hun, 177.) And if the witness had denied the making of the agreement mentioned in the question, his evidence might have been contradicted on the part of the defendant for the purpose, in that manner, of affecting the weight of his testimony.

This is sufficient, without considering the other point made, for the disposition of this appeal.

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

Brady, J., concurred; YaN Brunt, P. J., concurred in result.

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


author: Bartlett, J.:

text:
    In the Matter of the Estate of CHARLES A. PLATH, Deceased.

      Pempm’a/ry administrator —selection of, not limited as in the ease of a permanent administrator.

    Dl appointing a temporary administrator a surrogate is not required to make liis selection of sucli administrator from among those persons designated hy statute as entitled to he appointed to the position of permanent administrator.
    Appeal by Jacob Rieser, a creditor of the decedent Charles A. Plath, from an order, entered in the office of the clerk of the Surrogate’s Court of thecountyof New York on May 16,1889, appointing Charles Welde temporary administrator of the estate of said Charles A. Plath, deceased.

      Edward W. S. Johnson, for Jacob Rieser, a creditor, appellant.

      Ashbel P. Fitch, for Ernst Plath, respondent.
   Bartlett, J.:

This appeal presents the question whether the surrogate, in .appointing a temporary administrator, must make his selection in the manner prescribed by statute for tlie appointment of a permanent administrator, that is to say, from among the persons ordinarily entitled to administer, or may appoint a person in no wise connected with the decedent or bis estate as relative or creditor. Two applications were made to the surrogate of the county of New York for letters of administration upon the estate of diaries A. Platb, deceased; one by Lizzie Platb, claiming to be bis widow, and the other by Ernst Platb, claiming to be bis brother, and alleging in bis petition that the deceased was unmarried at the time of bis death and left no widow. Subsequently Ernst Platb applied to the Surrogate’s Court for the appointment of a temporary administrator of the estate of the deceased ; and upon the return of the citation issued on this application, Jacob Rieser, claiming tó be a creditor of the deceased, appeared and joined in the request that a temporary administrator be appointed, saying, in bis affidavit, that “a disinterested and neutral creditor or other person as temporary administrator is almost absolutely requisite in this case in order to preserve the estate from waste and prevent great loss.” Mr. Rieser, however, desired to be appointed himself. The surrogate concluded not to appoint either ap2ilicant, but did make an order appointing Mr. Charles Welde temporary administrator of the estate of Charles A. Platb, deceased; and from that order Mr. Rieser has appealed.

The principal point upon which the appellant relies is, that a temporary administrator must be chosen from among those absolutely or contingently entitled to permanent administration ; that Ernst Platb, the only relative of the deceased who applied to be appointed temporary administrator, was not qualified; and, therefore, that Mr. Rieser, a large creditor of the estate, was entitled to be appointed, inasmuch as the public administrator bad not intervened in the matter. A number of cases are cited in behalf of the appellant to the effect that a surrogate lias no right to exclude from administration a person entitled to preference, except for some of the causes specified in the statute. All these eases but one, however, relate not to temporary administration, but to applications for appointment as permanent administrator. The exception is a decision by the Prerogative Court in New Jersey to the effect that, under the law of that State, a brother has no claim to temporary administration on the ground of kinship, inasmuch as the statute establishing the right to administration does not apply to administrations pendente lite. (Dietz v. Dietz, 38 N. J. Eq., 483.) It is difficult to see bow tbis case can be regarded as an authority in favor of the appellant. In our own State the powers of the surrogate with reference to the appointment of a temporary administrator must be determined by reference to the provisions of the Code of Civil Procedure on that subject, and no qualification can be required in addition to those specified in the statute. Section 2668 prescribes, that, upon the application of a creditor or person interested in the estate, the surrogate may, in bis discretion, in either of the cases specified in that section, issue to one or more persons competent and quahfied to serve as executors,” letters of temporary administration. The class of persons from whom the surrogate may make bis selection of a temporary administrator is here clearly and definitely pointed out. He must choose from those who possess the capacity and qualifications to act as executors. Any one thus quahfied may be appointed by the surrogate in the exercise of bis judicial discretion. He is not limited in making bis selection to persons entitled to ordinary administration under the statute. To bold that be was, would be to introduce into the law a limitation or restriction which is not expressed in the language of the Code or to be implied therefrom. It is important that the person entrusted with temporary administration should be not only competent and honest, but disinterested, and if be bad to be either a relative or a creditor of the deceased, it might often be very difficult to select a temporary administrator who should be indifferent as between the parties to a contest among applicants for permanent administration or a contest over the probate of a will.

It seems to us clear that the surrogate bad the power to make the appointment which is attacked in tbis case, and there is nothing before us to indicate that bis discretion was not fairly and wisely exercised.

The order from which the appeal was taken purports to have been made at the instance of the appellant himself. It recites that it is granted on motion of Johnston & Johnston, attorneys for the said Jacob Rieser.” If we supposed that the entire order, including the name of Mr. Welde, was proposed by the attorneys for the appellant, we should dismiss the appeal, as a party cannot appeal from an order made upon his own motion. But we assume that there was a blank in this order when submitted to the surrogate, in which he was expected to insert the name of the appellant as temporary administrator, and hence that the order, so far as Mr. "Welde’s name is concerned, was not, in fact, granted at the instance of the appellant. It is upon this assumption that we have considered the merits of the appeal.

The order of the surrogate must be affirmed, with ten dollars costs and disbursements.

Nan Brunt, P. J., and Barrett, J., concurred.

Order of surrogate affirmed, with ten dollars costs and 'disbursements.


author: Pee Cueiam :

text:
    GEORGE E. ARMSTRONG, Appellant, v. HUGH J. GRANT, Mayor, etc., and Others, Respondents.

      Taxpayer’s suit — when it can be maintained to prevent the signing of a contract by municipal authorities.

    In an action brought by a taxpayer in the city of New York, to prevent the execution of a proposed contract between the Standard Electric Sub-way Company and the Board of Electrical Control of that city, it appeared that the Board of Electrical Control, in the year 1886, had entered into a contract with the Consolidated Telegraph and Electric Sub-way Company for the construction and maintenance of certain sub-ways in that city, which, as subsequently modified, was made valid, except as to a few of its features, by the act (chap. 716 of 1887). The Consolidated Telegraph and Electric Sub-way Company had not refused to proceed with the work, but, in consequence of an arrangement entered into by it with the Standard Electric Sub-way Company, the former proposed to surrender and assign its rights and interest in certain portions of the contracts above mentioned, and in the work which it had already performed, to the latter company.
    Previous to this time a resolution had been adopted by the Board of Electrical Control, containing a statement of the streets and avenues in which it was intended that these sub-ways should be constructed, in which it was stated that they should be built within the current year of 1890. This resolution was not made a part of the contract which it was proposed should be entered into between the Standard Company and the Board of Electrical Control; nor was the Standard Company, by said contract, obligated to comply therewith, nor was there any specification in the proposed contract concerning the time within which the sub-ways were to be laid, nor any definite specification of the streets within which they were to be laid.
    This proposed contract also provided, that should any dispute arise between the Standard Company and any company occupying the sub-way it should be referred to the members of the Board of Electrical Control, whose decision should be final, although, by section 7 of chapter 716 of 1887, the power to hear and settle disputes as to the use of sub-ways had been conferred upon certain courts or the judges thereof therein mentioned. Section 8 of said act authorized a purchase of such sub-ways on behalf of the city, but no provision therefor was made in the contract.

      Held, that the omission to bind the Standard Company to construct the sub-ways, and to do it within the time mentioned in the resolution, and the direct hostility of certain provisions of the contract to the act of the legislature, justified a taxpayer in bringing an action to prevent the execution of this contract, certainly until it should be made entirely definite and clear that the rights of the public would be subserved and effectually secured thereby.

      Quiere, whether or not such a condition of affairs existed as authorized the Board of Electrical Control to enter into a new contract for the construction and maintenance of sub-ways.
    That, in this action, the court was not called upon to determine whether the Standard Company incurred any loss by this disposition of the case, as its decision under the act (chap. 673 of 1887) was to be determined entirely by the public interests.
    Appeal by the plaintiff from an order entered, in the office of the clerk of the county of New York on March 22, 1890, and particularly from so mucb thereof as denied plaintiff’s motion to continue the injunction in this case, and as vacated and set aside the injunction order made therein by Mr. Justice PatteesoN.
    The order appealed from was made at a Special Term of the Supreme Cburt, held at chambers in the city of New York on March 21, 1890, denying a motion to continue an injunction, whereby the defendants, Hugh J. Grant and others, constituting the Poard of Electrical Control of the city of New York, were enjoined and restrained until the further order of the court from making the contract with the Standard Electrical Sub-way Company, in the complaint mentioned, or any contract for the construction, Maintenance and operation of sub-ways for electrical conductors in the streets, avenues and highways of the city of New York, and, further, from relieving the Consolidated Telegraph and Electrical Sub-way Company from any of its obligations.
    It was further provided in the order that the operation of the order, and all proceedings thereunder, be stayed until the bearing and determination by the General Term of an appeal by the plaintiff, referred to therein, provided that a bond should be given, etc.

      JElihu Boot and De Lcmoey Niooll, for the appellant.

      W. H. Peolcham, W. JST. Gohen and D. J. Deem, for the respondents..
   Pee Cueiam :

This action has been brought by the plaintiff, who is a taxpayer of the city of New York, upon property assessed for an amount exceeding the sum of $1,000. The object of it is to prohibit and enjoin the making and execution of a contract proposed to be made between the Standard Electric Sub-way Company and the Board of Electrical Control in ahd for the city of New York, created and authorized to act under chapter 716 of the Laws of 1887. The plaintiff placed his right to maintain the action upon the authority created by chapter 673 of the Laws of 1887. This act authorizes any person, or number of persons, whose assessments for the payment of taxes upon their property shall exceed $1,000, upon giving the security therein mentioned, to prosecute and maintain an action against all officers, agents, commissioners, and other persons acting for or on behalf of any county, town, village or municipal corporation in this State, and each and every of them, to prevent any illegal official act on their part, or to prevent any waste or injury to, or to restore and make good, any of the property, funds or estate of such county, town, village or municipal corporation.

The act, as it has been in this manner adopted, is very broad and comprehensive in its provisions. Its object seems to have been to vest the taxpayer with the authority of restraining not only municipal corporations in the State, but their officers, from violating the obligations and duties of their trusts by any illegal official act, or any act which would cause waste or injury to the funds, property or estate of the municipality; and if the contract, which is proposed to be made between the Board of Electrical Control and the Standard' Electric Sub-way Company, would be either illegal, or produce waste or injury to the property of the municipality, then the plaintiff, as a taxpayer, is invested with the right to maintain and prosecute the action.

The objection lias been taken tbat other parties should have been brought into the action to enable the plaintiff to maintain it under the authority of this statute. But if this objection should be held to be well founded, it would be no answer to the right to maintain the action, for, by section 452 of .the Code of Civil Procedure, ample provision has been made to supply any defect which may be found in the action in this respect. It has been there declared, that where a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in. But as no vested rights have been acquired there would seem to be no ground for this objection.

The case, accordingly, is not one on this account for the dismissal of the complaint or the denial of such relief as will prevent the consummation of the illegal acts which the statute has intended to avoid. The members of the Board of Electrical Control have been made parties to the action, whose object is to prevent them from doing that which may be found to be intended to be done without lawful authority; and if a case has been presented from which it can be seen that such an illegal and wasteful act is contemplated or intended by the members of this board, they may be prevented from consummating it by an injunction; that board having no general authority to act, but' deriving all their authority from the provisions of tire statute.

The object of the legislation concerning the action of this board has been to provide the means for placing the electric and telegraphic wires used in the city in sub-ways to be constructed and maintained under the surface of the streets of the city. This legislation, so far as it is required to be considered in this action, is contained in chapter 499 of the Laws of 1885 ; chapter 503 of the Laws of 1886, and chapter 716 of the Laws of 1887. The latter act has defined and declared more particularly the manner in which this object shall be attained through the action and authority of the members of the Board of Electrical Control.

In the year 1886 they entered into a contract with the Consolidated Telegraph and Electric Sub-way Company for the construction and maintenance of the sub-ways mentioned and referred to in it. A further agreement was also entered into, modifying and changing this contract in respects not necessary to be considered in the disposition of this appeal, which contracts were validated, except as to a few of their features, by the act of 1887. This company proceeded in the construction of the sub-ways mentioned in this contract ; but they have not been completed, and the company has announced that, in their opinion, the sub-ways cannot be completed in less than two years. It has not refused to proceed with the work, but, in consequence of an arrangement or understanding entered into with the Standard Electric Sub-way Company, it proposes to surrender and assign all its rights and interests in certain portions of these contracts, and the work it has already performed, to the latter company; and to carry this arrangement or understanding* into effect a contract has been proposed by the Standard Electric Sub-way Company and sanctioned by the counsel for the city of New York; and whether this contract, in this manner accepted, is one which the acts, already mentioned, will allow to be executed and carried into effect, is the more important part of the controversy now before the court.

Previous to the time when the form of the contract was'determined upon, and on or about the 19th of February, 1890, a resolution was adopted by the Board of Electrical Control containing a statement of the streets and avenues in which it was intended that these sub-ways should be constructed, and by this resolution it was stated that they should be built within the current year of 1890. This was the obvious as well as the expressed purpose of the board as to the time. It was designed that the work should be done with the greatest possible expedition, and the streets mentioned in the resolution, thereby provided with an adequate system of lights by corporations or individuals who might be authorized to use the sub-ways. But this resolution has been made no part of the contract which it is proposed shall be entered into. It has, it is true, been generally referred to therein, but nowhere has it been made a part of this contract; neither has the party with whom it is proposed to make the contract been in any manner obligated, by its terms or its necessary implications, either to construct the sub-ways within the current year or in the streets and avenues mentioned in the resolution. This part of the contract, as it is recited is, that it is deemed reasonable, advisable and proper for the purpose of carrying into effect the provisions and intent of the act of 1887 that the contract should be made; and tliat act certainly contemplates the construction of the sub-ways with, all possible dispatch, and the removal of the poles and wires from the streets, and the placing and operating of these wires in the sub-ways.

The immediate object of the board was that the sub-ways should be made to include the streets and avenues mentioned in the resolution and be completed within the current year. But that object the contract, as it has been drawn and is proposed to be executed, in no manner secures to be accomplished. Certain recitals 'are contained in the preceding part of the proposed contract. But none are so expressed as to include the construction and maintenance of subways in the streets or avenues or within the time mentioned in the resolution. Its recitals refer to the fact that a contract had been entered into with the Consolidated Sub-way Company for the building of sub-ways, and that certain sub-ways had been built by that company ; and that the company had conveyed to the Standard Sub-way Company, all the sub-ways, conduits and ducts it had built except those appropriated to the use of the Edison Electric Illuminating Company; and that the Consolidated Company had applied to the board for such a modification of its own contract, as would relieve it from the obligation to manage and maintain and operate the sub-ways, and from the further obligation to build súb-ways for electric-light and power conductors; and that the members of the board had modified the contract of the Consolidated Company by an instrument of even date; and that the Standard Sub-way Company were desirous to enter into a contract for building, etc., of such further sub-ways. ’What these further sub-ways which the latter company was to enter into a contract to build, is not mentioned in the recitals or anywhere in the proposed contract. But, by the references afterwards made, these further sub-ways have been generally referred to without the addition of any language so far extending them as to include the sub-ways mentioned in the resolution. The contract then proceeds with the covenant that the party of. the second part, (the Standard Company) agrees to provide, build, equip, maintain and operate, as herein provided, the sub-ways in this contract mentioned and referred to. What these sub-ways were intended to be was here no further expressed than that they were those mentioned and referred to in the contract, and the contract had mentioned and referred to no more than further sub-ways; and the language of the contract, in its subsequent provisions, has been confined and applied in the same manner. By article 2 of the proposed contract it has been declared that the subways aforesaid, as the Standard Company shall be directed by the party of the first part to build, shall be built in accordance with the plans and specifications theretofore furnished, or to be furnished, by the board. But no language has heen employed in this part of the contract, or, indeed, in, any other, by which this company agreed that it would build such suh-ways as the board should direct it to build. Power to make modifications and changes which might he reasonably necessary has been reserved to the board, but that power extends only to the said sub-ways or their mode of construction. The next division of the contract uses the language in the same way of “said sub-ways,” and so does the paragraph immediately following, with the additional right to the board, in case such sub-ways shall not be sufficient for the companies or corporations applying to use them, that then additional sub-ways sufficient therefor should be constructed and laid. But this does not enlarge the extent of the streets or avenues in which the additional sub-ways should be placed. It merely provides for making the additions where those already constructed shall prove to be insufficient for the corporations applying to use them. The board then reserve'to themselves the right to permit any other company or corporation to build the sub-ways not previously ordered to be built by the Standard Sub-way Company. It further proceeds, in its reference to the sub-ways, to use the same language of “ said sub-ways,” in no manner enlarging the work to be constructed so as to include any or either of the avenues and streets mentioned in the resolution. In this respect the proposed contract is radically defective, and not within the limits imposed upon the board by its own resolution, adopted, defining and declaring the territory over which the sub-ways should be built and maintained.

A similar defect is found in,the contract as to the entire want of any specification concerning the time within which the sub-ways are to he laid. By the'resolution which was adopted, the contract to he entered into should limit this to the period of the current year. But there is absolutely no provision in the contract subjecting it to this limitation.

By section 7 of the act of 1887, the power to bear and settle disputes as to the use of the sub-ways bas been conferred upon the justices of the Supreme Court, any judge of the Court of Common Pleas or of the Superior Court of the city of New York, or upon the courts themselves. "When any difference may arise as to the terms upon wbicb tbat use should be granted, this act requires the difference to be settled under its provisions, while by subdivision 10 of the proposed contract it bas been provided tbat, in case any dispute shall arise between the party of the second part (wbicb is the Standard Company) and any company occupying or desiring or requb’ing to occupy said sub-ways, the same should be referred to the members of the board or their successors for settlement, whose decision should be final. This part of the contract was inserted without authority, for the only power wbicb the board bas over the subject is tbat defined and delegated by these different acts.

The eighth section of the act bas conferred upon the commissioners of the sinking fund the power to purchase the sub-ways by making the payments mentioned in the section. This provision bas been in no way complied with in the contract now under consideration.

By section 15 of the contract the city, at any time after January 1, 1897, would have the right to buy the sub-ways wbicb bad been theretofore constructed under the contract, subject, however, to all leases, mortgages or contracts theretofore lawfully made within the limits imposed by section 12 of the contract. Section 12 imposes no bmitation as to the amount of mortgages or incumbrances wbicb might be placed by the company upon the sub-ways constructed by it. The limitations therein contained, apply only to the case when the city should take possession of the sub-ways by reason of the failure of the contracting company to comply with the terms of the contract. The result would be tbat the Standard Company might mortgage to any amount tbat they pleased, as long as they did not fail to comply with the terms of their contract, so as to make themselves liable to the forfeiture contained in the twelfth paragraph of the contract. The city, if it desired to become the purchaser, would, by the terms of the contract, be required to assume this mortgage, no matter how large it might be, wbicb is in direct conflict with, section 8 of the act, which, declares that such mortgages at the time of the purchase shall not exceed fifty per cent of the cost, and the company by the terms of the contract would be enabled, by the placing of excessive mortgages upon the property,, to prevent the city from becoming a purchaser.

It has also been declared in'the proposed contract that the rights of the Standard Company shall be subject to any liability subsequently enacted by. the legislature, and no qualification of that description was included in the resolution, or any action taken by the board.

It is true that some of these defects are not so fundamental as to justify, if they stood alone, the prohibition of the court that this contract should not be entered into. But there are others of so radical a nature as to involve an entire want of authority in the action authorized to be taken by the board.

These attributes consist mainly of the omission to bind the Standard Company to the construction of the sub-ways mentioned in the resolution, and to do that within the period of one year, which, in the judgment of the board, would be sufficient for that purpose, and sections 10 and 15 of the contract, which are in direct hostility to the provisions of sections 7 and Sof the act of 1887. Experience has demonstrated the necessity of requiring corporations in their contracts with municipal bodies or their officers to clearly and explicitly define their obligations, and leave as little as possible to future uncertainties; for, after the agreements or privileges may be obtained, the exacting disposition of the parties contracting with these bodies is such as to exclude all possible concessions or understanding which may be essential to promote and protect the interests of the public.

These contracts cannot be made in language too plain or concise to prevent the possibility of future disputes and controversies. And while the granting of an injunction against the execution of a contract, such as the one proposed, will be attended with some delay in securing the accomplishment of the object intended to be produced by the action of the board, it will, in the end, be much more advantageous to the public that its interests shall be clearly and expressly limited here, than to permit the contract now proposed to be entered into to be executed, which could not fail to engender disputes, and would leave it to the volition of the Standard Company to construct sub-ways or not as it might afterwards determine to be: most expedient for its own interests.

The plaintiff is in a position, as a taxpayer, to prevent this illegal contract from being subscribed and completed; certainly until it shall be made entirely definite and clear that the rights of the public will be subserved and effectually secured.

We express no opinion as to whether or not, as the facts appear in this case, such a condition of affairs exists as authorizes the Board of Electrical Control to enter into new contracts for the construction and maintenance of sub-ways, because, in case it should hereafter be finally determined that such authority did not exist, the Standard Company would be the only party which would be injured, having' expended its money in structures under the streets of New York, to-which they had acquired no title.

As to any loss which the Standard Company may incur, the court cannot be concerned in the disposition of the case. It is with those-rights that inhere in the public, and which, by the act first referred to, are designed to be protected, that the court is now called upon to deal.

Neither of these objections, except that as to the time for the completion of the work, seems to have been brought to the attention of the court at Special Term, and they were singularly omitted in. the points of the counsel on the argument of the appeal.

The order will be reversed, with ten dollars costs and disbursements, and an injunction issued in the form to be fixed at the time, of the settlement of the order.

Present — YaN BeuNT, P. J., Beady and DaNiels, JJ.

So ordered.


author: MacoMber, J.:

text:
    CLARK WOODWORTH, Respondent, v. THOMAS C. HODGSON and Another, Appellants.

      Bill of sale, without definite haA’gain as to 'price, etc., considered to he a chattel mm'tgage.

    An instrument, in the form of a bill of sale of chattels, in the absence of evidence that there has been a bargain between the parties, by which one should sell and the other should buy them, where it appears that the party receiving the bill of sale has signed, but has not been obliged to pay, negotiable paper for the accommodation of the party giving the bill of sale, is to be treated as a chattel mortgage, and must be filed in accordance with the statute in order to be valid as against creditors.
    Appeal by the defendants from a judgment of the County Court of Monroe county entered, in the office of the clerk of that county on August 30, 1889, and from an order denying a motion for a new trial, made upon the minutes of the court, entered in said office on the same date.

      M. W. Cooke and WilUmn B. Hale, for the appellants.

      J. M. Dunning, for the respondent.
   MacoMber, J.:

This action is brought against the defendants, who are, respectively, the sheriff and deputy sheriff of Monroe county, to recover for the value of a certain stock of groceries claimed by the plaintiff, and alleged to have been converted by the defendants to their own use. The answer justifies the seizing and disposal of the goods under a judgment and an execution properly issued, the particulars of which it is not necessary to detail. The position of the defendants, is, that the property, the value of which is thus claimed by the plaintiff, was fraudulently disposed of by one William A. _Woodworth, a son of the plaintiff. The case turns upon this issue.

William A. Woodworth had resided with his father in the town of Gates, adjoining the city of Rochester, when, in the month of November, 1887, he began the business of conducting a grocery store on the corner of Kent and Platt streets in the city of Rochester. To enable the son to start in business the plaintiff executed for his benefit two promissory notes in the sum of $600, upon which the money was. obtained for the use of the son. Subsequently the plaintiff signed two letters of credit to certain wholesale grocers in the city of Rochester, by which the son was permitted to purchase goods to the-amount of $300, and the payment of the same was guaranteed by the plaintiff. Within a short, time the fact was developed that the business was unremunerative, and this was known to the plaintiff. It continued, however, until the evening of the twenty-third of July, when a bill of sale, absolute in its terms, of all the property of the son was executed and delivered to the plaintiff. Thereupon, as is claimed in his behalf, the plaintiff took possession of the store and its contents. It is at this point where the two questions in the case-come in. At the close of the plaintiff’s case, as well as at the close of the whole testimony, a motion was made in behalf of the defendants, in the one instance for a nonsuit and in the other for the direction of a verdict for the defendants, upon the ground that the taking of the property by the plaintiff under the bill of sale was fraudulent, and that there had been no transfer of possession of it within the meaning of the statute. (2 R. S., chap. 7, tit. 2, §§ 5, 9 [vol. 3 of 6th ed.], p. 143.)

Treating, for a moment, the hill of sale as an instrument, which upon its face it purports to be, a fair question of fact was presented whether or not there had been such a change of possession of property from the son to the father as to satisfy the conditions of the statute. After the bill of sale had been executed by the son at the law office of the plaintiff’s attorney, in the evening, the father and the son and the clerk of the latter went to the store together, and -shortly thereafter the father locked the door and handed the key thereof to the son. This was on the evening of the twenty-■third of July. The bill of sale was executed about seven o’clock in the evening. After the locking of the door and the delivery of the key to the son, and before the son had opened the store on the ■following morning, the property had been seized under the execution •already mentioned

The learned county judge did not see in this situation of affairs that there was any question of fact cognizable by the jury. In this we think he was in error. The testimony of these two witnesses, father and son, even if they had not been interested in the event of the action, was of such a character, in the most favorable construction of it, as to require the same to be submitted to the jury, and for them to determine whether or not there was an actual change of ■possession. (Adams v. Davidson, 10 N. Y., 309; Bullis v. Montgomery, 50 id., 352; Tilson v. Terwilliger, 56 id., 273; Steele v. Benham, 84 id., 638.)

But there is another and more comprehensive reason why this judgment must be reversed. The instrument executed by the son to the father, as has already been stated, was in form a bill of sale, jet it was claimed upon the trial, in behalf of the defendants, that it was designed, at the most, only as security to the plaintiff for the liabilities which he had incurred in behalf of his son, and that it was a chattel mortgage only. The same was not, at any time, filed -as a chattel mortgage, and consequently it is insisted, with great force by counsel for appellants, that the instrument was void as to the defendants who represent creditors. Whether or not this was a security or an absolute transfer of property was the most serious question in the case. The plaintiff testified that the first time his son ever spoke to him about a bill of sale or about securing himself for his liability was at his (the son’s) house. The fact that the son was doing a constantly losing business was known to the plaintiff. Indeed, the son, according to his testimony, spoke to him two or three times to the effect that he ought to be secured. On the fifteenth of July he says that they came to the conclusion that they would do something about it. The plaintiff then continues : “ He had spoken two or three times, not a great while before that, about securing me. Tlie interview of July fifteenth was at bis bouse. The substance of bis remarks was like this, tbat.be was sure be was losing ground and wasn’t picking up, and be didn’t think be could go through; and as I bad furnished means for bis getting almost everything be bad, I ought to be secured. The security which be wanted to give me was for the letters of credit and notes which I have testified to. Tie spoke to me about securing me with a chattel mortgage. * * * I told him to go and see Mr. Dunning and counsel with him as to the method be should pursue.”

It appears, therefore, from the plaintiff’s own testimony, that there bad been no conversation between him and his son except for bis security. The case is devoid of any evidence, that there bad been any bargain between the parties by which the one should sell and the other should buy the stock of groceries. How could there be a sale without a bargain of some sort ? The talk of the parties seems to have been wholly for the purpose on one side to proffer, and on the other to receive, some instrument, as security only. When, therefore, this instrument, though absolute in its terms, was executed, and delivered by the son to the father it was as between them a chattel mortgage only; the circumstance that it is in the form of a bill of sale is unimportant. The true inquiry is, what was it, in fact, as understood by the parties to it at that time ?

No moneys were advanced to his son by the plaintiff at anytime, but he was liable to be called upon for such advances by reason of his connection with the business paper, and as a guarantor of his son’s indebtedness. The statute is imperative, that an instrument of this description, which is designed for the security of a debt, must be filed in order to be good against creditors. A bill of sale absolute upon its face, transferring property to be held as security for the payment of a debt due to the vendee, is in character and effect a mortgage, and is to be treated as such. (Smith v. Beattie, 31 N. Y., 542.)

The judgment appealed from should be reversed and a new trial granted, with costs to the appellants to abide the event.

Dwight, P. J., and Corlett, J., concurred.

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


author: Macomber, J.:

text:
    In the Matter of the Petition of ALBERT HOSLEY for the Removal of JOHN MULLINS from Certain Premises Therein Described.

      Landlord and tenant — summary proceedings cannot be instituted in the name of am, attorney as landlord.

    In order to sustain summary proceedings for the recovery of the possession of real property, under section 2231 et seq., of the Code of Civil Procedure, the technical relation of landlord and tenant must exist.
    Where the owner of real property gives to a party holding a mortgage thereon a. power of attorney to rent the premises and collect the rents thereof, and the party receiving such power of attorney orally rents the premises, he does not thereby create between himself and the tenant the relation of landlord and tenant.
    The proper party in such case to institute summary proceedings for the removal of the tenant is the owner himself.
    Appeal by Jobn Mullins from an order made in the above-entitled proceeding by the county judge of Cattaraugus county, and entered in the office of the clerk of that county on the 16tb day of August, 1889.
    By the order in question it was “ ordered and determined that there was due the petitioner from said Jobn Mullins, on the 9th day of July, 1889, for rent of the premises described in the petition, the sum of sixteen dollars, and that said sum remains unpaid, and that the said Jobn Mullins bolds over and continues in possession of said property, after default in the payment of said rent, without permission of the petitioner. That the possession of the said property be delivered to Albert Hosley, petitioner.”

      Inman c& Odie, for the tenant, appellant.

      Ansley c& Dmie,■ for the petitioner, respondent,
   Macomber, J.:

The only question arising on this appeal is, whether the petitioner sustained to Jobn Mullins, the tenant, the relationship of landlord. If be did, the order made by the county judge was correct, and should be affirmed ; if be did not, then, clearly enough, the wrong-party called for the possession of the premises, and the same should have been withheld from him.

The petitioner, in the month of November, 1882, held a mortgage upon the premises in question for the sum of $1,700, upon which, at the time of the beginning of these proceedings, the sum of about $1,000 remained due and unpaid. The premises were owned at that time, as well as now, by a man by the name of Butterfuss, who had executed the above-mentioned mortgage. In the year 1886 the owner gave to the respondent in this appeal a power of attorney as follows: Know all men by these presents, that I, Jacob Butterfuss, of the town of Salamanca, county of Cattaraugus and State of New York, have made, constituted and appointed, and by these presents do make, constitute and appoint Albert Hosley my true and lawful attorney for me and in my name, place and stead, for the purpose of renting for me my dwelliug-house, situate on the south side of Church street in the village of Salamanca, N. Y., and for the purpose of collecting the rents accruing thereon; that he shall use and apply such rents, first, in paying the taxes and insurance upon said property, and other necessary expenses of keeping same in a tenant-able condition, and the surplus shall by him be applied on real estate mortgage now held by said Hosley on said property; also for the further purpose of selling and conveying said proj>erty for a sum not less than the incumbrance thereon; giving and granting unta him,” etc., concluding in the usual form.

This was a power of attorney by the owner to Hosley, and nothing-more. The paper writing did not put the attorney in possession of' the premises as mortgagee under which he could claim the rights of a. mortgagee in possession; it gave him the power to rent for the landlord, and in the name of the landlord and for his benefit, the property in question. The right to use the surplus, after paying taxes, etc., was specifically defined, namely, its application upon the mortgage held by the attorney against the true owner.

The petitioner, however, has proceeded upon the assumption that this paper made him the landlord, and that when he verbally let the premises to the appellant the relation of landlord and tenant began to exist between him and the appellant. In this we think he is mistaken.

In order to maintain summary proceedings for the recovery of the possession of real property under section 2231 et seq. of the Code of Civil Procedure, the technical relation of landlord and tenant must exist. (The People v. Simpson, 28 N. Y., 55.)

The tenant dealt with the attorney on the assumption that he was obtaining the premises under a lease from the true owner, Butter-fuss, under a contract with Hosley, as agent. Under these circumstances it matters not whether the power of attorney contained an .assignment of the accruing rents for the purpose of extinguishing the mortgage or not. For the question before us is, not whether the mortgagee can, by any proceeding, compel the application of the rents upon this indebtedness, but it is rather the simple question : "Who is the proper party to institute summary proceedings for the possession of real property for the non-payment of rent ? Under the .authority cited, and in the language of the provisions of the Code preferred to above, and, under the contract as disclosed by these papers, the person to institute such proceedings was the owner himself, and not the agent or attorney in fact.

It follows, therefore, that the order appealed from should be reversed, with costs.

Dwight, P. J., and Coelett, J., concurred.

Order appealed from reversed, with costs.