author: Learned, P. J.: Mayham, J.: L andón, J.

text:
    MINERVA J. BEAVER, as Executrix of ASAHEL G. BEAVER, Deceased, Appellant, v. CHARLES C. BEAVER and Another, as Administrators of JOHN O. BEAVER, Deceased, Respondents.

      Gift inter vivos — deposit in a sewings banhby a father for Ms inf ant son — retention of the pass-booh by the father — its delivery is not essential to the validity of the gift.

    A father, with the intention of giving a sum of money to his minor child, aged seventeen, made in July, 1886, in the child’s name, an application to a savings bank to receive a deposit, but signed the application in his own name. In the account-book of the bank, and in the pass-book given to the father, the account was opened in the child’s name, although the moneys were at first made payable to the father, but this latter provision was stricken out before the passbook was delivered. The rules of the bank required the production of the pass-book as a condition of the payment of a deposit, and also provided that drafts might be made personally, or by letters of attorney, or by an order in writing of the depositor. A further deposit was made to the credit of this account in October, 1866. •
    In 1867 the father drew from the account a sum representing interest. The son died in 1886, the father in 1888, having at all times kept possession of the pass-book
    In an action by the executrix of the son to recover such deposit:

      Meld, that the gift to the son was complete and executed; that, as the case did not show that the son had any testamentary or general guardian, the father, as guardian by nature, was the proper custodian of the pass-book, and his retention thereof did not prevent the gift from taking effect.
    That whether or not the son was informed of the gift, at the time it was made, was not material.
    That after the deposit was made it was payable only to the son, and that the mere possession of the pass-book by the father would not protect the bank in paying him the deposit.

      That the agreement of the bank to repay the money was made with the son, although the father furnished the consideration, the son having power to adopt a promise made for his benefit. (Landon, J., dissenting.)
    Appeal by Minerva J. Beaver, as executrix of Asahel G-. Beaver, from a judgment, entered in the office of the clerk of the county of Ulster on the 26th day of .February, 1891, dismissing her complaint, with costs, after a trial at the Ulster Circuit before the court, without a jury. (See 25 N. Y. St. Rep., 723; 53 Hun, 258, and 117 N. Y, 421.)
    The court found the following facts:

      First. That on the fifth day of July, 1866, an application was made to the Ulster County Savings Institution, a savings bank incorporated under the savings bank law of this State, and located and doing business at Kingston, Ulster county, in words and figures following:
    “ No. 3901.1, Asahel G-. Beaver, of Esopus, Ulster county, hereby request the officers of the Ulster County Savings Institution to receive from me the sum of $854 and and to open an account with me in said institution, which account shall be subject to all the regulations and restrictions contained in the by-laws, a copy of which I hereby acknowledge to have received, and bind and oblige myself, my heirs and representative^, to conform thereto and to be governed thereby in all respects.
    “Witness my hand this 5th day of July, 1866.
    “JOHN O. BEAYER.
    “ Residence, Esopus; age, 17.
    “ Place of birth, Esopus.”
    That the said deposit of $854.04 in said institution was made bv John O. Beaver, the father of said Asahel Beaver.
    That at the time of said deposit the said savings institution entered on its books an account with said Asahel Beaver, beginning:
    “ Dr Ulster County Savings Institution, in account with Asahel Beaver,” and crediting said Asahel Beaver with said deposit of $854.04.

      Second. That in said account so opened by said savings institution with said Asahel Beaver were written, under the name “ Asahel Beaver,” the words “payable to John O. Beaver.”

      That at the same time the said savings institution issued and delivered to said J ohn O. Beaver the usual savings bank pass-book in the same words as entered in its account book, to wit: “ Dr. Ulster County Savings Institution, in account with Asahel G-. Beaver,” and that thereunder were written the words “ payable to J ohn O. Beaver.” That at the same time, and before said pass-book was taken from said institution, the words “ payable to John O. Beaver ” were erased 'or stricken out by lines being drawn by pen and ink through said words so that they were scarcely legible or capable of being read.

      Third. That at said date the said Asahel .G. Beaver was a minor, under the age of twenty-one, to wit, of the age of seventeen years, and lived with his father, John O. Beaver, and so continued to live for two or more years, and, after that to the time of his death, about a mile from his father’s residence.

      Fourth. That on the 5th day of October, 1866, there was deposited in said Ulster County Savings Institution, to the credit of said Asahel G. Beaver, the further sum of $1J5.96, which was credited to said Asahel G. Beaver on said pass-book, and on the books of said institution on that day. There is no evidence as to who made such deposit, the only evidence being the credit on said pass-book and the account books of said bank of said sum to Asahel G. Beaver.

      Fifth. That John O. Beaver deposited said moneys in the Ulster County Savings Institution with the purpose and intent that such moneys should thereafter be and remain the property of said Asahel Beaver.

      Sixth. That said John O. Beaver after said deposit stated that it was made for Asahel.

      Seventh. That the said moneys were delivered by John O. Beaver to the Ulster County Savings Institution for his son Asahel, and with intent to pass the title thereto to said Asaliel.

      Twelfth. That on the day of , 1867, the interest due on the sum so credited on said books to Asahel G. Beaver on the 1st day of January, 1867, to wit, twenty-seven dollars and twenty-nine cents, was drawn from said bank, and on said pass-book the receipt for said sum of twenty-seven dollars and twenty-nine cents is signed John O. Beaver.

      Thirteenth. That Asahel G. Beaver died May 10, 1886, leaving his last will and testament, wherein the plaintiff, his widow, was named as the sole executrix thereof, and that thereby his estate was, after the payment of a legacy stated therein, devised and bequeathed to the plaintiff. That said Asahel G. Beaver left no children or descendants surviving him. The plaintiff was duly appointed executrix of said last will and testament of Asahel G. Beaver, deceased, and qualified and is acting as such.

      Fourteenth. That said John O. Beaver died in the month of March, 1888, intestate, and that defendants were duly appointed and are acting as administrators of his , estate. That at the time of the death of said John O. Beaver said pass-book was in the possession of Sarah E. Beaver, the wife of said John O. Beaver, and the mother of said Asahel G.'Beaver; and that, until his death, it was in the possession of John O. Beaver.

      Fifteenth. That on the 13th day of April, 1888, the plaintiff, as executrix of said Asahel G. Beaver, demanded payment of the sum then standing to the credit of said Asahel G. Beaver, deceased, on the books of said savings institution, the sum of $2,713.70, the amount of said deposits, with the accrued interest thereon, which was refused, the defendants, as administrators of said John O. Beaver’s estate, making claim that such moneys were part of the estate of said John O. Beaver.

      Sixteenth. That in April, 1888, plaintiff, as executrix as aforesaid, brought suit in this court against said Ulster County Savings Institution to recover said moneys, and that defendants were, by order of this court, substituted as defendants therein, as parties defendant in the place of said Ulster County Savings Institution. That at the time of said demand of payment by plaintiff, and at the time of the commencement of this action, said pass-book was in the possession of these defendants, as administrators of said John O. Beaver, deceased.

      Seventeenth. That by the order of this court the said moneys were left on deposit in said Ulster County Savings Institution to be paid to the successful party to this action, and that the amount now due therefor is $-.
    At the request of the defendant’s counsel the court found as facts:
    II. That at the date of said deposit Asahel G. Beaver was aged seventeen years, and lived at home with his father, who was a farmer.
    V. That at the time of such deposit John O. Beaver was furnished by said institution with a bank-book containing the amount of such deposit in the name of Asahel G. Beaver, with printed rules and regulations therein; one of which provides that the depositor on making the first deposit shall be required to subscribe a declaration of his assent to the by-laws of the institution, and his promise to abide by them, another of which provides that'all deposits shall be entered in the books of the corporation, and a duplicate given to each depositor, in which the sum by him deposited shall be entered, and which shall be the voucher and evidence of property in the said institution, and another of which provides that drafts may be made personally or by the order in writing of the depositor (if the institution have the signature of the party), or by letters of attorney duly-authenticated, but no person shall have the right to demand any part of his principal or interest without producing the original book.
    VI. That John O. Beaver on making said deposit subscribed the declaration and promise required by said by-laws.
    VII. That from the time of the said deposit and the delivery of the bank-book to him as aforesaid, John O. Beaver held and controlled the bank-book so delivered to him until the time of his death, after which it was delivered to the defendants as his personal representatives.
    VIII. That from the time of the said deposit the said institution recognized and dealt with John O. Beaver as the owner of the money so deposited, np to the time of his death.
    XII. That there is no evidence in the case to show that Asahel G. Beaver ever had said bank book in his possession.
    XIII. That Asahel G. Beaver, on the 28th day of May, 1870, opened an individual account in said institution in his own name, which continued until March 27, 1886, when he drew out $1,818.56, in full of said account; and that it was only as the holder of such account the said institution dealt with said Asahel G. Beaver.
    XIV. That on the 22d day of February, 1876, the said Asahel G. Beaver made, executed and delivered to his father, the said John O. Beaver, a receipt written by himself in the words and figures following, to wit:
    Esopus, February 22, 1876.
    Received of John O. Beaver two hundred dollars, being in full for all dues, debts and demands to date.
    ASAHEL G. BEAVER.

      XV. That at the time of making the deposit in the Ulster County Savings Institution of the sum of $854.04, in the name of his son Asahel G. Beaver, the said John O. Beaver had on deposit in the-said savings institution the sum'of $1,000 in his own name.
    XVI. That at the time of the making by the said John O. Beaver-of the said deposit in ,the name oLhis son, Asahel G. Beaver, the' said the Ulster County Savings Institution paid a less rate of interest, on deposits in the name of one person in excess of the sum of' $1,000 that it did pay on deposits in the name of one person to the' amount of $1,000 or less.
    XVII. That the said John O. Beaver, in addition to the book containing the deposit in the name of his son, Asahel G. Beaver,, had, at the time of his death, deposits in the said Ulster County Savings Institution in his own name in five several different books,, and that he also had at that time on deposit in the said Ulster County Savings Institution a deposit and book in the name of his son John O. Beaver, Jr., and'a deposit and book in the name of his son Peter A. Beaver, and that on the deposit and book in the name of his son, John O. Beaver, Jr., he had drawn, on the 30th day of March, 1872, the sum of $1,000, for which he gave his personal receipt to the said the Ulster County Savings Institution, and that the books containing such deposits were at the time of his death in the possession of the said John O., and had always been in his possession.
    FINDINGS QF LAW.
    • I. That the deposit made by John O. Beaver, under the circumstances found in the foregoing statement of facts, did not constitute a gift of the money from the father to the son.
    II. It did not create a trust in the father for the benefit of the son-
    III. The fund in controversy belonged to John O. Beaver at the time of his death, and as such passed to his personal representatives,, the defendants in this action.
    IV. The plaintiff’s complaint in this action should be dismissed, with costs of this action, and judgment for defendants should be ordered accordingly.

      F. L. <& F. A. Westbrook, for the appellant.

      Lawton ds Stebbms and A. T. Clearwater, for the respondents..
   Learned, P. J.:

The Court of Appeals, when this case was before it, seems to have taken judicial notice of a practice that persons deposit money-in savings banks “to the credit of real or fictitious persons with no intention of divesting themselves of ownership.” If such a practice exist, we find no proof of its existence in this case. No testimony was given showing suph a practice, and no reason is shown why John O. Beaver should have had any of the tricky objects in view which are mentioned by the Court of Appeals. The charter of the bank permitted deposits to the amount of $5,000. (Laws of 1851, chap. 152, § 6.) And it does not appear that John O. Beaver’s deposits had previously approached that sum. And since there might have been the laudable motive of parental affection, we do not see why a less praiseworthy motive should be assumed. The ■application to the bank to receive the deposit was in the name of Asahel G. The request in the application was to receive the money from him and to open an account with him. It states his age, place of birth and residence. Testimony was given showing that it is the custom for the person who brings the money to sign the application. Hence John O. signed the application, although it was made in behalf of Asahel G. The signature of John O. would be properly made by him as natural guardian of his son. The additional proof given on the second trial clearly establishes that John O. intended to give this money to Asahel G., as is found by the learned justice. We are relieved, therefore, from the necessity of attributing to him any of those evil intentions, such as evading rules of the bank or escaping taxation, which the Court of Appeals seems to suppose prevail “in the great majority of cases.” And the ground that there was no evidence of a gift, held by that court' in the former trial, no longer exists. We know now, by positive proof, what was the intention of John O. when he caused this money to be deposited to the credit and for the benefit of Asahel G. Starting, then, with the fact that John O. intended to give this money to Asahel G., we must inquire whether any rules of law compel us to defeat this lawful intention. And we must observe that the intention was not to make a future gift, but to give at that time. It is found by the learned justice that the moneys were deposited by John O. with intent to pass the title to Asahel. The words “payable to John O. Beaver,” which had been in the acconnt-book and in the pass-book, were erased before the pass-book was delivered by the savings bank. As Asahel Gr. was the son of the donor, the intention ought to be carried into effect if consistent with rules, of law.

The only objection is that John O. did not deliver to Asahel Gr. the pass-book.

In Martin v. Funk (75 N. Y., 134) the donor deposited money in a savings bank in her own name, adding the words in trust for L. W.” The donor retained the pass-book until her death, and the donee was not notified of the gift until after that event. In an action for the money by the donee (or cestui que trust) against the bank, she recovered. That case settled, first, that notice of the gift was not necessary; second, that retention of the pass-book in that case, and in similar-cases, did not prevent the gift from taking effect.

It appears, too, by that case, and by the similar cases of Willis v. Smyth (91 N. Y., 297); Mabie v. Bailey (95 id., 206); Scott v. Harbeck (49 Hun, 292), that the trust in such cases is treated ás what is sometimes called a passive trust. For the cestui que. trust is allowed to recover the trust funds; so that the so-called cestui que trust is held to be, at least after the decease of the donor, the absolute legal owner. Of course, if there were an active trust, the cestui que trust would not have the legal title. And on the death of the trustee, under the present statute, the property would not go to his personal representatives, but to the court to be managed by a new trustee. (Laws of 1882, chap. 185.) But in these cases, where the language of the deposit was as above stated, it has been held that the person for whom the deposit was' held in trust was entitled to recover 'it as legal owner. Therefore, the original transaction has been considered by the courts to be practically a gift by the donor to the person named as cestui que trust. And the transaction is described as a gift in Martin v. Funk. This is important, because it shows that the transaction is practically the ■same, whether the money is deposited in the name of the donee or in the name of the donor in trust for the donee.

What, then, is the reason why this mode of giving has been held to be effectual, notwithstanding the donor retained the book? Clearly this: The donor was, after the gift, the legal custodian of the voucher. Therefore, there was no person other than himself to-whom the donor could deliver the book. Thus it is said in Martin v. Funk: “ She must be deemed to have retained it as trustee. The book was not the property, but only the voucher for the property, which, after the deposit, consisted of the debt against the bank.” Notice this remark: “ The book was not the property.” The donor then had parted with her property by depositing it. The property, after the deposit, consisted of the debt against the bank. The bank-. book or voucher showed to whom the debt was payable, and possession of the voucher did not make the debt payable to the possessor. To whom, then, should the donor, in a case like that of Martin v. Funk, deliver the voucher? The donor is himself trustee, and as-such is entitled to the custody of the voucher. If in such a case the donor “A” had made a deposit in the name of “ B in trust for C,” then it might be said that a delivery of the voucher to B would be necessary.

Now, the principle thus settled in these cases is applicable here. Asahel G. was a minor. John O., as father, was natural guardian. He was entitled to the custody of this voucher for property belonging to his minor son. It is not meant by this that as such guardian he could dispose of the,property of his son. But it is plain that, in the absence of proof that any one else had been appointed guardian, he was the proper person to have the custody of this voucher. Let us suppose that Asahel G. had been only a year old, what could John O. have done with the pass book when, for the purpose of a. gift, he had deposited this money in Asahel’s name. Should he tie the book around the infant’s neck or fasten it to its apron string ? Plainly he could make no delivery of the book to a mere infant. Or if any other person had made the gift, would not such a person have delivered the book to the father of the infant ? To deliver the book to a mere infant would be folly. And the same principle must apply to a minor who is older. When the donee is a minor, younger or older, in the absence of any appointed guardian, the father must be the natural custodian of any such voucher.

There are cases in Massachusetts holding that an acceptance of a gift, or notice to the donee, is necessary to complete the gift. But in Gerrish v. New Bedford Institution for Savings (128 Mass., 151), it is pointed out that the decison in Martin v. Funk (ut supra). differs from the view of the Massachusetts court and holds a deposit, in trust to be valid though the donee knew nothing of it.

It is sufficiently established in this case, and is so found, that John O., at the time of the deposit, made it “ with the purpose and ' intent that such moneys should thereafter be and remain the property of said Asahel Beaver.” It is proved (if proof were necessary) that it is very general for parents to bring money and deposit it in the-name of their minor children. So that the only question is whether the continued possession by John O., of the voucher, defeats his-intention as a matter of law. ■ „

If he had had this money deposited in his own name, adding the words “ in trust for Asahel G-. Beaver,” and had retained the voucher,, this would have been a valid gift to Asahel, though Asahel did not. know of the transaction. (Martin v. Funk.) It would have been said, John O. retained the voucher as trustee. Now, when, with the-same intent and purpose, he deposits the money absolutely in Asaliel’s name, and retains the voucher, it is argued this is no gift The distinction between the two cases is thin, very thin, when used to defeat the laudable intent of a father to give money to a minor-child. And if the distinction is sound, then a father cannot validly give money to his minor child by deposit in a savings bank except through the fiction of calling himself trustee. If the retention of the voucher in the Funk case was held to be in the character of a-trustee, why was not the retention by John O. in this case held to be in his character of guardian by nature, after his intention to-give the money has been proved as a fact. '

Of course, the great object -of requiring delivery is to mark the distinction between a mere intention to give, at some future time,, and a present act of giving. That was marked by the deposit in Asahel’s name, with the intent, now established by other proof, of making a gift. The consideration is love and affection. The transferís made by putting the money in the bank payable to Asahel, and to-no one else. The bank, by its rules, agrees to endeavor to prevent frauds and impositions, and yet declares that payments to a person presenting the book shall discharge the institution. But that rule does not authorize the bank negligently to pay to a person other than the one in whose name the account stands. (Appleby v. Erie County Savings Bank, 62 N. Y., 12.) The courts have gone even farther than this and have said that payments to a stranger without the authority of the creditor are not valid. (Smith v. Brooklyn Savings Bank, 101 N. Y., 58.) And, under the decision in this last case, John O. Beaver could not, without the written order of Asahel, draw any of this money, although he did have possession of the pass-book. The language of the rules of the bank construed in that case is similar to that of the rules of this bank. And the court say, speaking of the pass-book “its possession constitutes in itself no evidence of a right to draw money thereon.” The mode of making payments is provided for by the rules, viz., personally, by order in writing and by letters of attorney. ' It was then only by Asahel personally, or by his written order or his letters of attorney, that this money could be drawn. If it is said that the donor must part with control over the gift, what control did John O. retain over this money ? lit was not payable to him. The possession of the bankbook did not authorize him to draw the money without authority from Asahel. (Crawford v. West Side Bank, 100 N. Y., 50.)

The case of Schoenwald v. Metropolitan Savings Bank (57 N. Y., 418), is referred to in the Smith case, above cited, and it is said that in that case the language of the contract was substantially different. Whether that case can stand against the decision of Smith v. BrooMyn Savings Bank we need not inquire. It is enough that the rules of the bank in the present case bring it within the later decision. And, under that decision, John O. could not, by virtue of possession of the pass-book, draw out any of this money. If the possession of the pass-book did not authorize him to draw the money, then such possession gave no control over the money, the thing given.

In Matter of Grawford (113 N. Y., 560) the deposit of money in a bank to the credit of another person was held to be a gift. As to the bonds in that case, they were coupon bonds, payable to bearer, and, therefore, passed by delivery. They had not been delivered, and the court say: “ Nothing appears in the case as to what was the effect of the so-called registry.”. And the registration had certainly no effect upon the coupons which remained still payable to bearer.

The pass-book in the present case was not negotiable paper, and the money entered on it was payable to no one but Asahel. And payment by the bank to Asahel, when of age (if not before; see the charter of the bank), would have discharged the liability of the bank. He was the depositor, and the agreement of the bank was with him. It is immaterial from whom the consideration came. The promise was to Asahel. He could adopt it, even though not a party. (Lawrence v. Fox, 20 N. A., 268.)

It seems to us that this subject of the delivery of the gift was not so decided in the Court of Appeals that the remarks in the opinion are controlling on the new and most important facts presented on the second trial, viz., the intention of Jolm O. to make a present gift, and his intention that the money should become and remain the property of Asahel. Nothing was said as io the possibility of making an actual delivery of the voucher, and nothing as to the inability of John O. thereafter to draw out the money legally.

"We think, therefore, that the judgment should be reversed and a new trial granted, costs to abide event.

Mayham, J.:

I think, on this trial, the' plaintiff has substantially overcome thé objection of the Court of Appeals in this case. (Reported 117 N. Y., 421.) The ground assumed for a reversal in that case was that the plaintiff had failed to prove the intention on the part of John O. Beaver to make a gift to his son at the time of making the deposit in the bank, and that the retention of the bank-book by him was evidence of a want of delivery.

The court now, upon sufficient evidence, finds that it was the intention of John O. to make a gift of the money deposited at the time of the deposit, and I think that my Brother Learned has established most successfully and completely upon, principle and authority, that the retention, by the father, of the bank-book when the gift is made, or intended to be made, by him to his infant son, is as much an executed gift as if he had delivered the book to the son, or to some other person for the usé and benefit of the son. ITe being the natural guardian and custodian of the property of his infant son in the absence of any general guardian, could not defeat his own executed gift by retaining the bank-book.

L andón, J.

(dissenting):

Upon the facts as now found, we think the trial court was obliged, by the opinion of the Court of Appeals upon its review of the former trial (117 N. Y., 421), to find in favor of tlie defendants. The Court of Appeals said (p. 429): “We are of opinion that there is lacking in this case two of the essential elements to constitute a gift by John O. Beaver to his son of the money deposited July 5, 1866, viz, an intent to give and a delivery of the subject of the alleged gift.” The plaintiff, upon this trial, has supplied the evidence of the intent to give, but no advance whatever has been made in supplying evidence of the delivery of the subject of the alleged gift. All the facts cited by the Court of Appeals in its opinion •(p. 432), to show that there was no proof of delivery are unchanged.

The learned counsel for the plaintiff now earnestly contends that because John O. Beaver intended, by making the deposit to the credit of Asahel, and did say that he had made a gift to him of the amount, that it should have been found, as a fact, that the gift was complete. There are cases, of which the early case of Orwngiae v. Arden (10 .Johns., 293), is one, in which the fact of delivery has been found, from the declarations of the donor, when the other evidence in the •case failed to show delivery. But, as we interpret the opinion of the Court of Appeals, the established fact of the non-delivery of the pass-book and the continued dominion of John O. Beaver over the deposit resulting from his form of making the deposit, his possession of the pass-book and the rules of the bank, which formed part of the contract of deposit, require the finding that there was no delivery of the subject of the gift. The effect of these facts is that the intent to deliver remained unperformed. The judgment must, therefore, be affirmed unless some error to the prejudice of the plaintiff occurred upon the trial. The burden rested upon the plaintiff'to show the delivery of the subject of the gift. Clearly so, after the particulars of the deposit had been shown by the cross-examination of her witnesses. Under the circumstances of this •case, it was needful to show the delivery by John to Asahel of the pass-book, or some equivalent act. So the Court of Appeals held. This tire plaintiff had not done and could not do. The defendants, however, called several witnesses whose testimony tended to show not only John O. Beaver’s occasional custody of the pass-book, but his continual custody of it. In view of the plaintiff’s failure to prove delivery of the pass-book, it cannot be important whether the defendant’s witnesses, who were unnecessarily called to establish the negative, were competent or not. But if we assume that delivery of the pass-book might have been inferred from John O. Beaver’s declarations, if there were no evidence except that extracted from the plaintiff’s witnesses — and this was probably the theory of the defendants — then it was material for them to show who had the pass-book. • Among other witnesses, the widow of John O. Beaver testified, under objection based upon section 829 of the Code, that on the day the deposit was made her husband and herself went together to Kingston, some seven or eight miles distant from their home; that her husband had the money in his pocket; that Asahel, then a lad of seventeen, remained at home; that she did not go with her husband to the bank, but that he brought the pass-book home with him, and thereafter and until her husband’s death the book was kept in the bed-room which she and her husband occupied; that she and her husband, or both of them, had the possession of the book. The substance of this testimony is that she saw her husband have the book on the day of the deposit and saw where he afterwards kept it, and that he did keep it until his death. Strictly speaking, this was the unilateral act of the husband which the wife observed. There is'no necessity to infer from it that the husband ever delivered the book to his wife, or that she was in any way such a participant in its custody as to make his custody of it derivable from or through any transaction between the two. Her testimony, therefore, falls neither within the spirit of the prohibition nor within its letter. As the book was kept in the bed-boom of herself and husband, she, doubtless, often performed some acts of care respecting it, just as she may have done in respect of the furniture in the same room; but such acts on her part supply no defect in the completeness of the husband’s custody of the book as shown by his placing it and keeping it in that room. His custody gains no Support from any transaction between himself and wife touching the book; and if any such transaction may be inferred from the testimony of the wife, it is incidental and collateral and is wholly inconsequent. The widow testified that she rode to Kingston with her husband on the day of the deposit; that undoubtedly was a transaction between herself and husband, but it was testimony incidental to the material part of her testimony; if the material part of her testimony was competent, it would be carrying the exclusion of section 829 beyond reason to condemn tlie material, because it was incidentally connected witli testimony which was justly regarded as merely incidental and preliminary.

Before the testimony of the widow of John O. Beaver was received she executed and delivered to Charles C. Beaver an assignment of all her interest in the subject-matter of the action. She thereby ceased to be “ a person interested in the event,” and as that was the only disqualification under which she rested its removal made her competent. This practice is open to abuse, but as it is authorized by authority we must recognize it. (Matter of Wilson, 103 N. Y., 374; Loder v. Whelpley, 111 id., 239.) It disposes of the objection to the testimony of Alice J. Beaver.

The judgment should be affirmed, with costs.

Judgment reversed, new trial granted, costs to abide event.


source: Caselaw Access Project

author: Mayhah, J.:

license: Public Domain

text:
    MATTHEW BARKER, Appellant, v. THE TOWN OF OSWEGATCHIE and Others, Respondents.

      Extra allowance — action by a taxpayer to restrain a town from ca/rrying out a contract to build a bridge — the contract-price is the proper basis therefor.

    Judgment was awarded to tlie plaintiff, in an action brought by a taxpayer of a town to restrain tlie town, and certain persons made defendants therein, from carrying out a contract which had been entered- into by the town, pursuant to an act, bill or resolution of a board of supervisors, with a corporation to construct a bridge, under which contract the town was to pay said corporation the sum of $5,670.
    A motion having been made for an extra allowance.
    Held, that the subject-matter of the action was the right of the defendants to perform a contract, by which a direct pecuniary liability would be created against the town, and that the contract-price was the proper basis upon which said allowance should be computed.
    Appeal by tbe plaintiff Matthew Barker from an order of the Supreme Court, entered in the office of the clerk of the county of St. Lawrence on the 13th day of June, 1891, denying a motion made by the plaintiff for an extra allowance.

      A. D. Wales, for the appellant.

      Daniel Magone, for the respondénts.
   Mayhah, J.:

The plaintiff and appellant prosecuted this action, as a taxpayer of the town of Oswegatchie, to restrain the defendants, and each of them, from taking any further action under or in pursuance of an act, bill or resolution of the board oí supervisors of St. Lawrence county, passed February 18, 1890. The wrongful act alleged in the complaint, and which the plaintiff in this action sought to restrain, was the carrying out or performance of an alleged contract, made by the town of Oswegatchie, through the agency of its supervisor and a committee (who are named as defendants), appointed by the board of supervisors of St. Lawrence county, with the defendant, the King Iron Bridge Company, for the construction of a bridge in that town, which the town was liable to build, and by which contract the town was to pay the bridge company the sum of $5,610. The plaintiff succeeded in the action, and, by the judgment, perpetually enjoined the performance of the contract, or the payment of the contract-price.

The court at Special Term held that the action was difficult and extraordinary, but that there was no definite sum in controversy upon which an additional allowance can be computed.

We think that was error. The subject-matter directly involved in this action was the right of the defendants to perform a contract by which a direct pecuniary liability would be or was created against the town, to protect whose interests this plaintiff, as a taxpayer, was authorized to maintain an action. It is quite true that, in determining the question whether or not this town should or could be liable for the contract-price agreed to be paid for the construction of this bridge, the court had to inquire whether the board of supervisors had power to appoint the commissioner and put in motion the train of events which led up to the creation of the liability. But the same would be true if a party sued or defended an action upon a contract made with an agent.

If A sued B on a contract made with B’s agent for $1,000, and B defends on the ground that the alleged agent has no power to contract, and succeeds in his defense, I think it would not be doubted that if the action were, in other respects, one in which an additional allowance would be proper, an extra allowance would be granted, estimated upon the $1,000, which-was the real subject-matter of the ' suit, although all the litigated controversy was upon the authority of the agent, and the thousand dollars in the case supposed would be the subject in controversy; then it is difficult to see why the $5,670 in the contract under consideration may not equally be taken as a basis for an additional allowance.

The appellant insists that this additional allowance should be computed upon the $10,000 which it is alleged the town voted. But •the commissioners and the supervisors only sought to use the $5,670. It is true that $10,000, according to resolution and the contention of the defendants, was the maximum sum which they were authorized by the resolution to use, but they could also, by the resolution, use a less amount, and that they undertook to do and were prevented by the judgment in this action.

¥e are of the opinion that the $5,670 embraced in the contract constituted the subject-matter of this suit, and as. the plaintiff has succeeded in the action, he is entitled to an additional allowance of five per cent on that amount.

Order must be reversed, with ten dollars costs and printing disbursements.

Learned, P. J., and Landon, L, concurred.

Order reversed, with ten dollars costs and printing disbursements, -and matter sent to Special Term for its discretionary action.


author: Learned, P. J.:

text:
    WALLACE M. KILBOURNE, as Supervisor of the Town of Liberty, Respondent, v. THE BOARD OF SUPERVISORS OF SULLIVAN COUNTY, Appellant.

      Towns — railroad bonds — application of taxes to their payment — when the cause of .action a/t'ises — relief granted in an equitable action — effect of the refusal of supervisors to levy a tax.

    It is provided, by chapter 398 of the Laws of 1866, that towns in counties along the line of the New York, Oswego and Midland Bailroad, including the county of Sullivan, might subscribe to its capital stock and issue bonds for such subscriptions; and by section 16 thereof said railroad corporation was exempted from all taxation. By section 4 of chapter 907 of the Laws of 1869, as amended by chapter 283 of the Laws of 1871, it is provided that in the case of all towns which have bonded themselves in aid of railroads, all taxes, except school and road taxes, collected upon the assessed valuation of such a railroad, shall be paid over to the county treasurer and constitute a sinking fund to pay off such railroad aid bonds.
    The exemption from taxation granted to' the New York, Oswego and Midland Railroad by the act of 1866 was repealed by the Laws of 1874 (chap. 296), the first section of which related generally to fhe taxation of that railroad, and the second section provided that all moneys collected upon its property for county takes should be appropriated to the towns which had issued bonds in aid of said railroad, and should be paid over to the-town railroad commissioners.
    In an action by the town of Liberty, which had issued certain bonds, under the act of 1866. to recover such State tax moneys alleged to have been improperly diverted by the county to county purposes:

      Reid, that the action could be maintained.
    That, under the act of 1869, the town acquired a right to have both State and county taxes, so far as the same had been assessed upon railroad property, applied to retire its bonds.
    That the act of 1874 modified the act of 1869, in that it directed the county tax thus levied to be paid to the town railroad commissioners, leaving the State tax to be paid over to the county treasurer, but in both cases for the purpose of retiring said bonds.
    That the act of 1874 did not, by implication, repeal the act of 1869, and' that they were not so inconsistent but that both might stand together.
    That, in an action of this character, the cause of action arose when the taxes were misappropriated, that is to say, when they had been actually used for the benefit of the county.
    That as the plaintiff, among other things,-demanded and obtained a judgment that the taxes in question be levied upon the taxable property of the county, the action was not one for money, but it was in its nature an equitable action.
    That it might include such relief as was proper upon the state of facts disclosed at the close of the litigation.
    That the phrase in the Laws of 1871 (chap. 288), “ all taxes, except school and road taxes, collected,” did not refer to the State school tax, but to local taxes for such purpose.
    That the fact that the supervisor of the town submitted the matter in controversy to the board of supervisors of the county at its annual meeting, and that said board considered the same and decided not to levy any tax, was not a bar to this action and did not compel the plaintiff thereafter to proceed by mandamus or certiorari directed to said board.
    Appear by the defendant, tbe Board of Supervisors of Snlbvan County, from a judgment of the Supreme Court, entered in the -office of the clerk of Sullivan county on the 22d day of September, 1890, directing a recovery for the plaint-ifl: of $1,504.08, besides costs, and ordering said board to levy and collect the same by tax upon the taxable property of the county, with notice of an intention to bring up for review upon such appeal an order granting to plaintiff an extra allowance of costs, after a trial by the court at the Sullivan Circuit.
    The following opinion, delivered by Mr. Justice Mayham on the trial of the above-entitled action and of three other actions, brought, respectively, by John F. Simpson, as supervisor of the town of Falls-burgh, by John F. Bennett, as supervisor of the town of Mamakating, and by M. N. Dodge, as supervisor of the town of Rockland, against the same defendant, was adopted by the General Term :
    Mayham, J. The above-entitled actions grew out of a similar state of facts, involving the same legal questions, and may properly be considered together, as the decision of one disposes of the legal questions raised in all the others.
    The actions are to recover money in each case collected by taxation on the New York’ and Oswego Midland Railroad Company and its successor, the New York, Ontario and "Western Railroad Company, in said towns, resjDectively, which was used by the county treasurer for the use and benefit of the county, which it is claimed by the plaintiff belonged to the individual towns.
    The case shows that in each of the years 1874 to 1887, both inclusive, the assessors of each of the towns in Sullivan county made, completed, verified and delivered to the supervisor of their town an assessment-roll of the real and personal property of their respective towns, as required by statute, including the property of the New York and Oswego Midland Railroad in the town through which it passed, which were the towns mentioned, respectively, in the above-entitled actions, and that such assessment-rolls formed the basis of the equalization of assessments made by the board of supervisors in each of said years.
    Upon the basis of such assessment and equalization the board of supervisors at its annual meeting, during the period above stated, levied such State taxes as were apportioned to the county ratably among the several towns thereof, including those for which the above-entitled actions are prosecuted.
    The money raised from such levy by the tax upon the aforesaid railroad, with all the other taxes collected in said towns, were by the several collectors thereof, as directed by the warrant issued to them by the Board, of Supervisors,- paid to the various persons and officers therein designated.
    The money raised for the support of roads and bridges to the commissioner of highways, the money to defray town expenses to the supervisor, the money to pay the interest on town bonds issued in aid of construction of such railroad, to the railroad commissioners, and the money raised for State and county tax and for town poor to the county treasurer of Sullivan county, and all the tax levied upon and collected from the said railroad in each of the said towns, in any of the years above specified, were paid over as above set forth. Each of the towns was duly represented each year in the board of supervisors of the county-and took part in the equalization of the assessments of the county and in levying the tax upon the property of the towns, including the railroad in the towns through which the railroad ran, which were bonded in aid of its construction. No proceedings were commenced dr prosecuted against the county treasurer to compel him to comply with the provisions of section 4 ■of chapter 907 of the Laws of 1869, or the act amendatory thereof. Chapter 296 of the Laws of 1874 was put in evidence.
    It is admitted that the New York and Oswego Midland Railroad was exempted from taxation prior to the passage of chapter 296 of the Laws of 1874, and that after that act was passed it was assessed.
    At the annual meeting of the Board of Supervisors of Sullivan ■county in November, 1888, the several towns above-named presented a ■statement of facts to said board, and demanded in behalf of such towns that the board ascertain the amount of State tax, so-called, collected from the railroad in the several towns, respectively, and used by the •county in payment of State tax, and that the board levy said amount upon the taxable property of the county, with interest from the time of using the same by the county, and collect the amount thereof and pay the same into the county treasury, to the credit of the respective towns in proportion to the amount collected from the railroad m ■said towps to the use and benefit of the same, which the board refused to do.
    The plaintiff in these actions,'respectively, demand the State tax ■collected in their respective towns on the railroad from 1874 to 1887, inclusive, and taken and used by the county of Sullivan in the payment of its proportion of the State tax, the same as money collected from other taxable property of said, county, be accounted for by said county and paid to the county treasurer for the use of such towns, for the purpose of purchasing or canceling its outstanding bonds of the town, issued in aid of the construction of the railroad, or for investment as a sinking' fund for that purpose.
    By chapter 398 of the Laws of 1866, the towns in several counties along the line of the New York and Oswego Midland Railroad, including the towns of Sullivan county, were authorized, upon conditions therein specified, to subscribe to the capital stock of that railroad, and to issue their bonds in payment for or to meet the obligation incurred under such subscription.
    Section 16 of that act exempted the railroad corporation from taxation for State, county, town or municipal purposes, until a single track of such road was completed and in operation for a period not exceeding ten (10) years, provided said railroad did not consolidate with any other railroad not wholly or partially' constructed.
    Section 4 of chapter 907 of the Laws of 1869 provides that “ All taxes, except school and road taxes, collected for the next thirty (30) years, or so much thereof as may be necessary, in any town, village or city, on the assessed valuation of any railroad in said town, village or city for which said town, village or city has issued, or shall issue, bonds to aid in the construction of said railroad, shall be paid over to-the treasurer of the county in which said town, village or city lies; and said money so paid over, including interest collected on bonds held by said treasurer as a sinking fund, shall be invested by said treasurer in State, city, town, county or village bonds issued pursuant to law of this State or United States bonds, within sixty days after receiving the same, and shall be held by said treasurer as a sinking fund for the redemption and payment of the bonds issued or to be issued by said town, village or city, to aid in the construction of said railroad.”
    This act was amended by chapter 283 of the Laws of 1871, and as so amended was held to apply to all towns which have been bonded in aid of railroads, and is, therefore, applicable to the towns in question in these actions, and is not limited to railroads constructed under the act of 1869. (Matter of Clark v. Sheldon, 106 N. Y., 104.) The law which exempted the real and personal property of this railroad was repealed by chapter 296 of the Laws of 1874.

      This repealing act was entitled “An act to subject the real and personal property cf the New York and Oswego Midland Railroad Company to taxation, and to appropriate the amount of the county tax thereon to certain towns, to be applied towards the payment of the interest or principal on certain town bonds.”
    The first section'of this act-repeals all laws so far as they exempt, real or personal property of the New York and Oswego Midland Railroad Company from taxation.
    The second section, in express terms, provides that all moneys collected upon real and personal property of said corporation for county taxes in any of the towns or municipalities by which bonds have been issued in aid of the construction of the New York and Oswego Midland Railroad, and appropriated to such towns and municipalities respectively, and directed the same to be paid over to the railroad commissioners of such town or municipality appointed under the authority of the act to facilitate the construction of said l’oad, passed April 5, 1866.
    It is insisted by the plaintiff that the act of 1874, above referred to, repealed chapter 398 of the Laws of 1866 in so far as that act exempted this railroad from taxation, and modified chapter 907 of the Laws of 1869 by directing that'the county tax on this railroad should be paid to the commissioners for the use of the town in liquidation or extinguishment óf the bonds, leaving the State tax, when collected, to be paid over to the county treasurer as provided by section 4 of chapter 907 of the Laws of 1869, and that that act, with the modifications suggested, is still in force.
    On the part of the defendant it is insisted that chapter 907 of the Laws of 1869 is repealed by implication by chapter 296. of the Laws of 1874; that their provisions are so inconsistent with each other that they cannot stand together.
    In determining this question it is necessary to examine the provisions of both, and thus determine to what extent-the latter is repug nant to the former, and to that extent only will the former be-deemed repealed; and in making that investigation we must keep in view the elementary rule of construction that repeals by implication are not favored in law; and at the same time give effect to that other equally well-recognized rule of construction, that when a later statute, not purporting to amend a former one upon the same subject, not repugnant to the former one in all of its provisions, covers the whole subject, and was plainly intended to furnish the whole law thereon, the former statute will be held to be repealed by necessary implication, although the later statute contains no repealing clause. (Liddy v. Long Island City, 104 N. Y., 218.)
    By the act of 1869 all taxes, excejDt school and road taxes, shall be paid over to the county treasurer, and the moneys so paid over shall be invested by him in a manner provided in the act to meet the liability on the bonds of the town at maturity.
    This act was clearly broad enough to cover tax levied as State and county taxes, and by its terms, but for the provisions of section 16 of the Laws of 1866, exempting such road from taxation, the town would be entitled to credit for all State and county tax collected from such railroad.
    When the limit fixed in that section expired, or when chapter 296 of the Laws of 1874 took effect, and the immunity of the railroad from taxation was taken away by section 1 of that act, the right •of the town to the tax became again fixed under the provisions of section 4 of the act of 1869.
    Now, if we could stop with that section, no question, it would seem, could arise as to the right of the town to the benefit of the State and county tax.
    Does section 2, which relates only to county tax, affect the right of the town to the State tax under the act of 1869 ? I think not. Section 1 of the act of 1874 deals exclusively with questions of the railroad .exemption from tax, and, in that respect, relates to the county tax, which is affected by that section, but also to the State tax, which is not referred to, or affected in terms by that section, and unless we import into that section something which is not found in it, and which is not necessary to give it effect, it can have no application to the State tax.
    The act of 1874 cannot, therefore, I think, be construed to repeal any part of the act of 1869 now under consideration. That act is general and applies to all bonded towns in the State.
    The act of 1874 is confined strictly to the Midland towns intersected by that railroad, and all the provisions of the act of 1869 must remain in force as to all railroads of the State which issued bonds under it to other railroads.

      All that was effected by the act of 1874 was the repeal of the exemption of the Midland Railroad from taxation and a modification of existing laws, so as to allow the county tax to be appropriated at once by the railroad commissioners to the payment of the interest on the town bonds, leaving in full force the provisions of the act of 1869, so far as it embraced or related to State tax, and leaving that tax to be invested under that act as a sinking fund for the ultimate redemption of such bonds.
    This construction does not, seem repugnant to the letter or spirit of the act of 1874, but is in harmony with the general scope of the legislation upon the subject, which seems to be to give the towns the benefit of the tax which was levied upon railroad property within their limits when such property was created or brought into existence by the aid of the indebtedness of such towns. (Bridges, Supervisor, v. The Board of Supervisors, 92 N. Y., 571.) These two statutes may be read together, and effect given to both, without any impairment of the provisions of either. That being so, they must be permitted to stand together and their provisions enforced.
    In People ex rel. Van Heck v. New York Catholic Protectory (101 N. Y., 20), the court, in discussing this general subject as applied to that case, says: “ The enactments can be read together and easily stand together without the least clash or conflict, and where that can be done our duty is to reconcile them and give to each its oiserative force.”
    Two statutes shall stand together and both have effect, if possible, for the law does not favor repeals by implication, and all acts in pari ■materia should be taken together as if they were one law.
    Laws in pari materia must be construed as if they formed part of the same statute, although enacted at different times; such laws are to be construed together as forming a united system and as one .statute.
    I am, therefore, of the opinion that the act of 1869 is in force as to the State tax, and that the plaintiff in each case is entitled to recover in these actions the State tax paid to and used by the county, with interest. All the other questions raised by the defendants have been settled by recent decisions adverse to the claims of the defendants and in favór of the plaintiff’s right to recover. (Clark v.
      Sheldon, 106 N. Y., 104; Hand v. Supervisors of Colombia Co., 31 Hun, 531; Strough v. Supervisors of Jefferson Co., 50 id., 54, affirmed, by Court of Appeals, 119 N. Y., 212, covering several questions; Bridges v. Supervisors of Sullivan Co., 92 N. Y., 571.)
    This last case seems to hold that as that action was brought to recover the county tax, under the provisions of section 2 of chapter 296 of the Laws of 1874, the State tax, assessed and collected of the railroad, could not be recovered in that action. But it does not. follow from that, that State tax which is clearly embraced in the-words “all taxes,” in section 4 of chapter 907 of the Laws of 1869, cannot be recovered in an action for that purpose when, by the-statute, the tax is expressly given to the town or for its use.
    As was said in Bo-idges v. Supervisors: “ The moneys thus specifically given to the town by the statute have been appropriated by the county to its own use.”
    Nor do I think this is a case where the plaintiffs are concluded by the submission of their claim to the board of supervisors and its-rejection by the board. The board did not pass upon and allow apart and reject a part in such a manner as to bind the defendants as a judicial determination. It is not such a case as, within the authorities, the plaintiff would be concluded by the acts of the defendants-in rejecting their claims.
    The plaintiffs are entitled to judgment.

      John F. Anderson and Lewis F. Carr, for the appellant.

      T. F Bush, for the respondent.

       See Barnum v. Supervisors, ante, page 190.

   Learned, P. J.:

The learned justice before whom this cause was tried wrote a. very full and careful opinion. Ve adopt his opinion and shall only examine a few points specially urged on this appeal.

First. It is urged that a recovery for the taxes of 1881 is barred by the statute of limitations. This action was commenced December 24, 1888. The cause of action arose when these taxes were-misappropriated. (Strough v. Supervisors, 119 N. Y., 212.) They were so misappropriated when taxes which should have been otherwise used were used for the benefit of the county. (Id.) The court, found that the money collected for the year 1881, now in question,, was so used by the county treasurer on or before February 1, 1883. The amount for that year was $100.50. The appellant urges that, inasmuch as the State tax had been paid by the county before November 10, 1882, the misappropriation must have been made before that time. But the money now in question was not kept separate. It went into the county treasurer’s hands, mingled with other money; and on the 10th of November, 1882, he had money on hand not expended, amounting to $248.68, which amount was more than the moneys in question. He could, therefore, at that time, have paid the money in question where it should have been paid. If he had once paid the State by this amount, still it cannot be said that there was a misappropriation, so long as the county treasurer had remaining in his hands moneys raised in the year out. of which he might have paid the present claim. There had been a deficit from the previous year, so that the money in his hands did not come from that year.

Again, the appellant claims that the taxes of 1887 could not be included in the recovery, because the finding of the court is that-they were misappropriated on or before February 1,1889, which was after the commencement of the action. There is a special finding that these taxes were not paid or used for the benefit of the county until after January 1, 1889.

The complaint demands a judgment for the amount of these taxes, and that they be levied and collected from the taxable property and paid to the treasurer to cancel bonds of the town, and for investment as a sinking fund. The judgment is to the same effect. This is, then, not simply an action for the recovery of money. It is to compel the levy of the amount; the payment thereof on bonds, and the investment of the same pursuant to statute. It is, then, an action in equity, according to the distinction made in Code (§§ 968, 969), and according to the old law. But it has always been the rule in equity cases that such relief may be granted as the facts existing at the close of the litigation may demand. That rule applies here.

The next point of the appellant is that in chapter 283, Laws of ' 1871, where the language is: “All taxes except school and road taxes collected,” etc., the words “ school taxes ” refer to the tax imposed by the State for the maintenance of common schools. Hence the appellant insists that the recovery should be reduced by $476.66, that being the aggregate of the State tax for those years levied to maintain common schools.

"We think it is plain that the words “school and road taxes” refer to local taxes for school purposes and for road purposes. The tax imposed by the State is called the State tax, not a canal tax or a school tax or a general fund tax. As remarked in Clark v. Sheldon (106 N. Y., 110), “it must always be easy for the collector to make the proper deduction of school and road taxes.” It would certainly be impossible for him, from any papers in his hands, to deduct that proportion of the State tax which is raised for the maintenance of common schools. The meaning, therefore, of the words “ school and road taxes ” is plainly intimated in that opinion. It is unnecessary to say more on this.

Another point is that the supervisor of this town, in 1888, submitted this matter to the board of supervisors at its annual meeting and it passed upon the same and decided not to levy the tax. Hence the appellant says that plaintiffs remedy was by certiorari or mandamus. That such an action as the present will lie is settled by the Strough Gase (uf supra) and by the Bridges Case (92 N. Y., 570) and by Newman v. Supervisors (45 id., 676). The question, then, is whether the application to the supervisors and their refusal is a bar. We think not. There was no adjustment of amount needed. The amount was settled. Possibly a mandamus might have issued to compel the board to act. J3ut the plaintiff was not limited to that ■ remedy.

These are the points which are specially brought to our notice. On the general, question involved in the case we follow the opinion of Justice Mayham at Special Term, without repeating what he has said.

The judgment should be affimied, with costs.

Landon, J., concurred.

Judgment affirmed, with costs.


author: Barnard, P. J.:

text:
    ADRIAN ISELIN, Respondent, v. SARAH SMITH and Others, Appellants, Impleaded with Others, Defendants.

      Discontinuance of action — terms imposed where the defendant asks affirmative relief.

    In an action brought to prevent interference with a fence, which it was alleged by the plaintiff inclosed a private road, the defendants answered, alleging that they had a right by deed and otherwise to use the road, and asked that the plaintiff be enjoined from rebuilding the fence.
    The plaintiff applied for leave, and was allowed, to discontinue the action on payment of costs.

      Held, error.
    That the answer set up a counter-claim which, if proved, would entitle the defendants to the injunction asked for by them.
    That the plaintiff should have been allowed to discontinue only on condition that he stipulated never again to close the access of the defendants to the road.
    Appeal by the defendants, Albert Smith, James Smith and Sarah "Wright, from an order made at Special Term, and entered in the office of the clerk of the coimty of Westchester on the 11th day of April, 1891, granting leave to the plaintiff to discontinue the above-entitled action on payment of costs.

      Cornelius E. Eene, for the appellants.

      Ma/rtin J, Keogh, for the respondent.
   Barnard, P. J.:

The plaintiff: fenced in what he asserts to be his private road. This road runs along in front of defendants’ premises. The fence cut them off from the road and they tore it down. The plaintiff •commenced an action to restrain the defendants from interfering with ,this fence. The defendants answer that they have a right to use the road by their deed,' and because the road was- a public .highway.

The defendants ask, by the answer, an injunction to restrain plaintiff from building up the fence. The plaintiff asked leave to discontinue on payment of costs and disbursements. Leave was granted, and the defendants appeal. By the answer a counter-claim is set up, and, if proven, will entitle the defendants to the affirmative relief of an injunction based upon a right to use the road shut up. The defendants should not be deprived of their right to prove .their title to the road. As the case now stands, the inference is very :strong against the plaintiff. He has shut up an open .road, claiming it to be his private property. The defendants assert a right, and the plaintiff commences an action for an injunction against them. ’The defendants admit the destructioii ■ of the fence by them, and .a determination to again destroy it if constructed. The plaintiff •ought not; to be permitted to discontinue his action unless, upon .stipulation, to never again close the defendants from access to the ■road. If he is not willing to do this, let the defendants have an •opportunity, under the answer, to prove their defense and get an .affirmative judgment.

Order reversed, with costs and disbursements, and motion denied, with costs.

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

Order reversed, with costs and disbursements, and motion denied, with costs.


text:
    JAMES H. ALBEE, Respondent, v. THE CHAPPAQUA SHOE MANUFACTURING COMPANY, Appellant.

      Negligence — Mowing a powerful steam whistle — liability to one whose horses are frightened —contributory negligence.

    A manufacturing company maintained a steam whistle, constructed so as to be beard for miles, very near to and nearly on a level with a platform of the freight station of a railroad. The sounding of the whistle three times in succession frightened the horse of one Albee, who was lawfully at the station; it ran away and Albee was injured.

      Held, that the manufacturing company was liable.
    That a person has no right to do upon his own premises an act which detracts from the safety of travelers, or renders the highway disagreeable.
    That under such a condition of affairs the negligence of the injured person is not material.
    Appeal by the defendant, the Chappaqua Shoe Manufacturing Company, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Westchester on the 14th day of March, 1891, upon a verdict for the plaintiff for $6,000, after a trial at the Westchester Circuit before the court and a jury; and also from an order made on the 10th day of March, 1891, denying a motion for a new trial upon the minutes.

      3. D. Donnelly, for the appellant.

      William P. Fiero, for the respondent.
   Barnard, P. J.:

The defendant, a manufacturing corporation, had a steam whistle on its factory at Chappaqua. The factory is close to the Harlem railroad station, and the platform for the delivery and receipt of freight from the railroad is but a few feet from the engine-room of the factory, and the engine-room is so low that the whistle is but a slight elevation above the platform. The whistle is one of great power, and from its name seems to have been constructed to carry sound seven miles While the plaintiff was at the station, in a wagon, with one Williams, who was getting his milk cans, at nearly one o’clock p. m., the whistle sounded. The horse ran away; the whistle, again sounded, making the horse more uncontrollable, and the whistle again sounded and the horse become so wild as to be ungovernable. Tbe plaintiff was thrown out and severely injured. The complaint avers a cause of action for negligence and one for maintaining a whistle so powerful that its noise was dangerous at the place at which it was used. The case was tried on the latter cause of action only. The action was well proven. It is an acknowledged principle of law that a party has no right to do upon his own premises an act which detracts from the safety of travelers or renders the highway disagreeable. (Francis v. Schoellkopf, 53 N. Y., 152; Heeg v. Licht, 80 id., 579; Bohan v. Port Jervis Gas-Light Co., 122 id., 18.)

These cases also settle the question that the negligence of the injured person has no importance. The action rests upon the wrong done, and not upon the negligent manner in which it was done. The numerous exceptions taken to the rulings upon the trial, excluding the question of the negligence of the plaintiff, all became unavailing under these cases. These exceptions must fail because of an entire lack of evidence upon which to rest a claim that plaintiff contributed to his own injury.

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

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

Judgment and order denying new trial affirmed, with costs.


author: Rarnard, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. AARON A. De GRAUW and Others, doing Business under the Name and Style of THE HEMPSTEAD AND JAMAICA PLANK—ROAD COMPANY, and Others, Respondents.

      Turnpike and plank-road companies — illegal reorganization — acts amounting to a dissolution — -when the road-bed becomes a public highway.

    In 1852 the Hempstead and Jamaica Plank-Road Company was organized, to exist by the terms of its charter for thirty years from March 11, 1852, and bought all the stock and the turnpike road of a turnpike company, incorporated under a special act of the legislature in 1812, took deeds of its lands and laid a plank-road under the authority of the easement which had been owned by it.

      In. 1890 the stockholders of the Hempstead and Jamaica Plank-Eoad Company-attempted to reorganize, pursuant to chapter 210 of the Laws of 1847, under the charter of the turnpike company and to collect tolls.

      Held, that such reorganization was illegal.
    That the statute of 1847 had no effect upon the status of the turnpike company beyond permitting it to abandon the road taken by the plank-róad company. That after the transaction of 1852 the turnpike company ceased to exist.
    That the Laws of 1857 (chap. 643), which amended the act of 1847, did not justify the action of the defendants, as the amending act only applied to such turnpike roads as connectéd with a plank-road.
    In June, 1879, the board of supervisors of Queens county attempted to extend the charter of the plank-road company for thirty additional years.

      Held, that their action was void because their power so to do had been taken away by chapter 254 of the Laws of 1879.
    That when, in 1882, the plank-road company was dissolved by the limitation of its charter its road-bed became a public highway under chapter 780 of the Laws of 1872, and chapter 337 of the Laws of 1881.
    Appeal by plaintiff, tbe People of the State of New York, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Queens on the 30th day of June, 1891, dismissing the complaint, with costs, after a trial by the court at the Queens County Circuit.
    The complaint in this action alleged, among other things:

      Third. On information and belief, that the defendants, without being duly incorporated, act as a corporation within the county of Queens and State of New York, under the name and style of the Hempstead and Jamaica Plank-Road Company, and exercise within said county corporate rights, privileges and franchises not granted to them by the law of the State, in that

      (a.) They exercise jurisdiction as a plank-road company over the public highway leading from the village of Hempstead to the village of Jamaica in said county.
    (5.) They maintain toll-gates on said public highway.

      (o.) They levy and collect toll from all persons riding or driving upon said public highway.
    And demanded judgment that the defendants and each of them, and their and each of their agents and their servants, be perpetually enjoined and restrained from acting as a plank-road or turnpike corporation, and be perpetually enjoined and restrained from exercising 01* claiming any jurisdiction or control over the highway leading from the village of Hempstead to the village of Jamaica, in the county of Queens; and be perpetually enjoined and restrained from maintaining toll-gates or toll-houses on said highway, and from levying and collecting tolls from persons using said road, and for the costs and disbursements of this action.
    The justice before whom the action was tried found, among other things, substantially as follows:
    In the year 1812, and for many years prior thereto, a road leading from the village of Jamaica to the village of Hempstead was a common and public highway.
    On March 20, 1812, the Hempstead Turnpike Company was incorporated by chapter 37 of the laws of that year, under the name and style of “ The President, Directors and Company of the Hemp-stead' Turnpike Road, to run and operate a turnpike road from the village of Jamaica to the village of Hempstead in perpetuity.”
    This turnpike company, pursuant to the terms of its charter, and under and by virtue of the general turnpike act of 1807, applied to one of the judges of the Common Pleas of Queens county to acquire, and, under proceedings duly taken, acquired the right to said highway, which it formed into a turnpike.
    In the year 1852 the corporation known as “ The Hempstead and Jamaica Plank-Road Company” was duly organized to construct a plank-road from the village of Hempstead, in the county of Queens, to the village of Jamaica, in the same county.
    Its corporate existence, as fixed by its charter, was to continue for thirty (30) years from March 11, 1852.
    The plank-road company in 1852, as a condition of the purchase which it made of the turnpike road, was obliged to, and did, purchase from the stockholders of the turnpike company all of the stock of that company, except the stock of one Platt Willetts, amounting to one hundred and fifty (150) shares; and thereafter said plank-road company, with the consent of the turnpike company, took possession of the road and road-bed of said turnpike company, and laid its plank thereupon, and subsequently, at the request of the plank-road company, two separate deeds were executed by the president and secretary of said turnpike company, as officers of said company, conveying said road-bed.

      On the 5th day of May, 1879, a petition was presented to the board of supervisors of Queens county, signed by all the officers of the Hempstead and Jamaica Plank-Road Company, and by over three-fourths (J) of all the stockholders (which petition was duly verified by its secretary), praying an extension of the charter of said plank-road company for thirty (30) years from the 11th day of March, 1882, under chapter 121 of the Laws of 1878. That, pursuant to said petition and prayer, the said hoard of supervisors did pass a resolution on the 5th day of June, 1879, a copy of which is submitted as follows, viz.:
    “At a regular meeting of the board of supervisors of Queens county, held at the Court-house, Long Island City, on the 5th day of June, 1879. Present — Hon. John M. Clark, Chairman, and all the members of the said board.”
    The board of supervisors of Queens comity do hereby, pursuant to chapter 121 of the Laws of 1878, by a majority vote of all the members elected to said board, being ascertained by taking the yeas and nays, resolve as follows:
    Resolution No. .4.
    Section 1. The corporation known as the Hempstead and J amaica Plank-Road Company, lying within the towns of Hempstead and Jamaica, ip the county of Queens, State .of New York, is hereby authorized and empowered, pursuant to the provisions of chapter 121 of the Laws of 1878, to continue its corporate existence for a period of thirty (30) years from the 1-1 th day of March, 1882, and by further complying with the provision of said chapter in relation thereto.
    Section 2. The clerk of this board shall file and publish this resolution as required by law.
    The resolution was filed by the clerk of the board of supervisors in the county clerk’s office, as required by law, and certified copies of the papers were made out to be filed with the secretary of State, but by oversight or neglect they were not filed in the secretary of State’s office, as required by law.
    Prom March 30, 1882, down to and including August last, the plank-road company defendant in this action continued to operate said highway as a plank-road and maintain toll-houses thereon, and claimed to be a plank-road company under tbe name and style of tbe Hempstead and Jamaica Plank-Road Company, and exercised all the rights, powers and privileges appertaining or belonging to duly incorporated plank-road companies.
    A meeting of the stockholders of the plank-road company, and those also claiming to be stockholders in the turnpike company, was called to reorganize and elect directors and officers of the old turnpike company, and, pursuant to the notice of said meeting, the said stockholders met at Hempstead, on the 27th day of August, 1890, and the following proceedings took place, viz.:
    “At a meeting of the stockholders of the old turnpike company and of the Hempstead and Jamaica Plank-Road Company, held at the Becar House, in the village of Hempstead, on the 27th day of August, 1890, the following business was transacted, viz.: ”
    “Rev. Hr. Moore was elected chairman and S. N. Snedeker secretary.”
    “ It was, by unanimous vote, resolved, that as the Hempstead and Jamaica Plank-Road Company, at its organization, purchased and acquired all of the stock of the old Hempstead Turnpike Company, that the said turnpike company be reorganized pursuant to section 10 of the plank-road and turnpike acts, as amended by the Laws of 1857.”
    “ It was further resolved that said turnpike company be known, and shall hereafter conduct its business, under the corporate names of the President and Directors of the Hempstead Turnpike Road, as provided in the original charter of said turnpike company.”
    “ It was further resolved that the capital stock of the turnpike company shall be the same as provided in the original charter.”
    “ It was also further resolved that the stock of the said turnpike company be issued, divided up and distributed to the stockholders of the Hempstead and Jamaica Plank-Road Company, in proportion to the amount of stock held by each in the plank-road company, as ordered and directed by a meeting of the directors and stockholders held in June last. And the secretary and treasurer of the turnpike company are hereby authorized to provide the usual stock or certificate book, and issue to said stockholders the certificates of stock to which they may be entitled, pursuant to this resolution.”
    “ It is also further resolved that the officers of said turnpike company shall consist of a president, one vice-president, secretary and treasurer, who shall hold office for one year and until their successors shall be appointed. And there shall be a board of directors elected annually, consisting of the same number as provided in the original charter of said turnpike company.”
    “ It was also resolved that said' turnpike companv shall operate a toll road from Hempstead to the village of Jamaica under the original charter of said turnpike company.”
    “The stockholders then'proceeded to elect directors of the turnpike company.”
    That the directors so elected there and then elected all the defendants who have appeared in this action, president, vice-president, secretary and treasurer of said turnpike company, and since that time said road has been run and operated under the directions of said turnpike companv as a toll road.

      F. H. Vcm Veehten, for the appellant.

      A. N. Weller, for the respondents.
   Rarnard, P. J.:

The legislature, by chapter 37, Laws of 1812, created a corporation known as The Hempstead Turnpike Company, to operate a road between Jamaica and Hempstead. This corporation accpiired by condemnation an old road between these two points, and by purchase certain other lands needed to make a good road. Under this charter the turnpike company erected gates and conducted the road according to the provision of its charter until 1852. The legislature had before this date, and in 1847, provided for plank-roads, and such roads at first were very popular. Much was expected from such roads and great powers were given them in respect to taking old roads for the purpose with the assent of the highway authorities and turnpike companies. A plank-road' corporation was formed in 1852 to construct and maintain-a plank-road between Jamaica village and Hempstead village. The plank-road company was designated in its articles of association as “ The Hempstead and Jamaica Plank-Road Company.” The general law in respect to plank-road companies (§ 10, chap. 210, Laws of 1847), authorized a turnpike company to abandon a road taken by a plank-road company. The turnpike company required, as a mode of assent to the making of the plank-road on its road, that the plank-road company should buy all the stock of the turnpike company.. This was done and the turnpike company by its officers transferred the road to the plank-road company. By the terms of the charter the plank-road company was to exist for thirty years, which period expired March 11, 1882. On the 5th of June, 1879, the plank-road company procured the assent of the supervisors of Queens county for an extension of its charter for the period of thirty additional years from March 11, 1882. The supervisors had no power to extend the charter. Such power was given by chapter 135, Laws of 1876, and taken away as to Queens county by chapter 254, Laws of 1879. No question was made as to the validity of the extensions, and the plank-road company continued to operate its road as a plank-road until August 27, 1890. This action was then commenced, and thereupon the stockholders of the plank-road company reorganized under the old turnpike charter and have since operated the road as a toll road. The change was made before this action was commenced, and the question is as to the validity of this reorganization. As has been stated, the plank-road company purchased all the turnpike stock, and by the assignment provision of section 10, chapter 210, Laws of 1847, under which the turnpike was taken, no provision was made as to the status of the turnpike corporation beyond permitting such corporation to abandon the road taken by the plank-road. It is impossible to see wha.t the turnpike company kept under the Laws of 1847. The stockholders had sold all its stock and the company had deeded its lands, and by the law it was absolved from its duties under its charter. In 1857, by chapter 643 of the laws of that year, section 10 of the Laws of 1847 was amended, and before the commencement of this action the plank-road company organized itself as a turnpike road under its provision, and has since operated the road as a toll road. The question is whether this is permitted by this amendment. The amendment has no application to the defendant. By it only such turnpike roads as connected with a plank-road were the subject of the amendment. If a turnpike connected with the plank-road, the plank-road corporation could buy its stock and then continue to run it as a turnpike, “ pursuant to the charter of such turnpike-road company.” On the dissolution of the plank-road the turnpike was to be represented, by stock according to the holding of the list of stockholders. It was not intended by the law to save the 'rights of the old turnpike company which was taken by the plank-road in 1852. The turnpike had been taken and paid for, and the holding of the stock was only had as a form of assent. The same right to abandon turnpikes where a plank-road was actually constructed and used is preserved in original section 10 of the act of 1847, and its amended condition under the Laws of 1857. When the plank-road was dissolved by its own limitation the road-bed became a public highway under chapter 780, Laws of 1872; chapter 337, Laws of 1881.

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

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

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


author: CtfLLEN, J. :

text:
    ISABELLA H. MITCHELL, Appellant, v. THE VILLAGE OF WHITE PLAINS, Respondent.

      Eminent domain — proceedings against the wrong person — what is an inadequate method of compensation.

    In an action brought by one Isabella H. Mitchell to recover damages for an alleged trespass upon her lands, the defendant, a town, set up as a defense that it had, under chapter 552 of the Laws of 1868, taken the premises in question under the power of eminent domain for a highway.
    On the trial of the action it appeared that, in the condemnation proceedings, the name of the plaintiff did not appear; that the same were carried on against her husband as owner, and that an award was made to him.

      Held, that the fact that the owner was erroneously named in such proceedings, or that the true owner had not received the award, would not invalidate the proceedings, provided that the statute authorizing them had given to her an adequate remedy to enforce payment of the value of the land if she had proceeded in time.
    The act of 1868 gave to the commissioners appointed under it the same powers, which wore vested in commissioners created by chapter 408 of the Laws of 1865, except that the damages awarded for taking the land for the highway were to be paid by assessing their amount “upon the strips of land lying within five hundred yards of either side of said avenue.” '

      Held, that the act of 1868, so far as it related to the method by ■which compensation was to be provided, was unconstitutional.
    That the limitation of the remedy for compensation to “strips of land lying within five hundred yards of either side of said avenue ” was not the adequate provision which a man is entitled to where his land is taken by the right of eminent domain.
    Appeal by tbe plaintiff, Isabella H. Mitchell, from a judgment of the Supreme Court, entered in the office of the clerk of Westchester county on the 14th day of July, 1891, dismissing the complaint, with costs, after a trial by the court at the Westchester Circuit.
    The action was brought to recover the damages resulting from alleged trespasses upon the plaintiff’s land, which the defendant claimed to have acquired title to under the exercise of the right of eminent domain.
    It appeared upon the trial that the proper name of the plaintiff’s husband was Charles Halsey Mitchell, and that his name appeared upon the map used in the proceedings for condemnation of the plaintiff’s land, and wherever else it .appeared in such proceedings, as Halsey Mitchell. An award was made to him both for benefits and damages under the name of Halsey Mitchell. Charles Halsey Mitchell was not the owner of the premises in question; which were owned and were in the occupation of the plaintiff, who became the owner in 1865, and was such at all times thereafter

      William P. Fiero, for the appellant.

      H. T. Dyhniam, for the respondent.
   CtfLLEN, J. :

That the award was made to the husband of the plaintiff instead of to the plaintiff would not invalidate the proceedings to open the highway in dispute in this case. The plaintiff would be entitled to the award despite the fact that the owner was erroneously named in the report of the commissioners of estimate and appraisal; nor would the fact that she has not received the award be fatal, provided that, under the statute authorizing this improvement, there was an adequate remedy given her, to enforce the payment of the award, had she proceeded in time. This highway was authorized to be laid out by chapter 552, Laws of 1868. The commissioners named in the act are given the same powers as those vested in a prior act for the laying out of another highway in Westchester county (chap. 408, Laws of 1865), “ except that the damages awarded for taking the lands necessary for laying out, making, grading and regulating said Mamaroneck avenue, shall be paid by assessing the amount thereof upon the strips of laud lying within five hundred yards of either side of said avenue.” The highway extends through several towns. By the act the money necessary to grade and improve the avenue was to proceed from the issue of bonds by such towns. The act of 1865 directed the commission constituted by that act to pay the awards, and such commission, doubtless, could have used any funds for that purpose. But, by the exception quoted, the commissioners under this act are deprived of such power, and limited to paying awards from one single source, that is, the local assessment. The act, therefore, seems to fall expressly within the principle laid down in Sage v. City of Brooklyn (89 N. Y., 189.) “A remedy for compensation, contingent upon the realization of a fund from taxation for benefits within a limited assessment district, does not meet the constitutional requirement.” It follows that the act of 1868, so far as its provision for compensation forlands taken for the improvement, is unconstitutional and void.

The judgment appealed from should be reversed and a new trial ■ordered, costs to abide event.

Pratt, J., concurred.

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


author: Pratt, J.:

text:
    IDA L. PHILIPS, Appellant, v. THE NORTHERN RAILROAD OF NEW JERSEY, Respondent.

      Negligence — railroad corporations — excursion ticket — troweling beyond its limitations— lease to operate a railroad — -when the lessor is not liable.

    One Philips' purchased an excursion ticket, issued in the name of the Northern Railroad of New Jersey, which entitled her to a passage from Norwood, in New Jersey, to Jersey City and return. On the return trip she went beyond Norwood to Sparkhill, and from there intended to return to Norwood by another train. In attempting to take that train as it was .standing at a place, not a station, she-was injured, as alleged, by tlie negligence of the servants of tlie railroad in starting tlie train.
    In an action brought by her to recover damages because of such negligence:

      Held, that after passing Norwood upon the return trip, and especially in attempting to board another train at Sparkhill, she enjoyed no contractual relations with the defendant and could not recover.
    That where a person without a ticket attempts to get on a train hastily, at a point outside of a regular station, with no conductor or brakeman in view, and the-train starts inadvertently, the railroad company is not liable for the consequences.
    That where another railroad corporation had leased the road of the defendant corporation and had undertaken to operate it, under a contract by which the parties, thereto were not to share in the profit and loss, but the lessor was to receive only a fixed share of the gross earnings, the fact that the lessor reserved in such contract the right to approve all passenger conductors and to supervise the receipts and the right to sell tickets did not make it liable to the plaintiff, but that the-lessee only was liable to persons injured in the operation of the road.
    Appeal by the plaintiff Ida L. Philips from an order, entered in the office of the clerk of the county of Kings on the 3d day of August, 1891, denying a motion for a new trial upon the minutes, after a trial at the Kings County Circuit before the court and a jury.
    A lease of the defendant railroad had been taken by the Erie,Railroad Company.

      W. Tazewell Fox, for the appellant.

      William O. Be Witt, for the respondent.
   Pratt, J.:

Assuming that the ticket purchased by the plaintiff was issued in the name of the Northern Railroad of New Jersey — a fact not as. well proven as might be expected — it was an excursion ticket providing for a ride only from Norwood to Jersey City and back. It gave no right to go elsewhere or farther. In traveling beyond Norwood, on her return from the city, and especially in attempting-to get upon the east-bound local train at Sparkhill, a point beyond the limitations of her ticket, the plaintiff enjoyed no contractual relations with the defendant whatever.

Her case arises ex delicto, and can only stand upon some duty towards her on the part of the persons controlling and operating the train, from the neglect or violation of which she received her injuries. It is difficult to see that the managers of the train owed her any undischarged duty under the circumstances of the case. The train had made its regular stop at the station, had received its. passengers and passed on to a side track where it was awaiting the passage of the western express to clear its way on the main track. The plaintiff was a passenger on that western express, and when it had gone by the train in question was due to proceed on its way. Under these circumstances, the plaintiff alighted from the express, when it stopped at the station, hurried 'backward to the side track where the east-bound train was standing, and undertook to get upon the rear platform of the rear car just as the train was about to move. No conductor or brakeman was in sight. It was her own act and at. her own risk and peril.

An effort is made to overcome this fatal defect in the plaintiff’s case by showing a custom on the part of persons going westward, by the express, of taking the eastward local train at this point, so as-to charge the railroad company with a duty of care in that particular. The evidence, however, is insufficient for the purpose. A custom is not shown to exist in respect to passengers like the plaintiff, nor does it appear that the change of cars took place under any custom in any other than the regular way at the station. We think that when a party undertakes, without a ticket, to get hastily on a train, at a place other than the station, with no conductor or brakeman in view, and at a moment when the train is liable to start, if such a-party is injured by the inadvertent starting of the train, a recovery cannot be had against the railway company.

But the ground upon which the learned trial judge bases his judgment is not answered by the appellant. As already stated, the-plaintiff’s cause of action rests solely, if it exists at all, upon some negligence on the part of those who were controlling and operating the train from which she received her injuries; and the train was being operated, and was, in its movements, under the control of the' Erie Railway Company alone. 'The lease or contract put in evidence by the defendant, in substance, transfers the control, management, and operation of the trains from the defendant to the Erie Railway Company at a compensation of sixty-iive per cent of the gross receipts, plus five forty-eighths of the remainder. As the contracting parties, were not to share in profit and loss, but were to receive simply a fixed share of the gross earnings, the agreement would scarcely constitute a partnership even, at common law. (Story on Partnership, § 34; Heimstreet v. Howland, 5 Denio, 68 ; Merrick v. Gordon, 20 N. Y., 93.)

Here, however, was an express statute authorizing such an agreement, and it would seem that the provisions of the contract rendering the Erie Railway exclusively responsible for the negligence of the conductors or other servants in the operation of the train had the support of legislative authority. Whatever may be the force of those provisions of the contract which reserve to the defendant a certain supervision over the receipts, or the right to sell tickets at specified points, or the power of approval of the enrployment of conductors, etc., it is still indisputable that the contract took from the defendant the management, operation and control of the trains, and placed that service and duty, with all its liabilities and consequences, absolutely upon the Erie Company; and this indisputable provision, which is all of the contract applicable to the case at bar, has plain validity founded upon the statute.

If, then, the plaintiff were, in truth, injured through any negligence of the conductor or brakeman of the train in question, she could not, under any head of the doctrine of respondeat superior, hold the defendant liable. The Erie Railway Company was the only principal responsible in such a case. (See Norton v. Wiswall, 26 Barb., 618, 621-623; Blake v. Ferris, 5 N. Y., 53-61; Ditchett v. S. D. and P. M. R. R. Co., 67 id., 425; Fisher v. Metropolitan El. R. R. Co., 34 Hun, 433; Abbott v. Johnstown, etc., Horse R. R. Co., 80 N. Y., 27.)

The difficulty with the appellant’s authorities is that they arise in ■cases where the transfer of the operation of the road had been without statutory authority or uldra vires, or where the plaintiff had, by the purchase of a ticket, enjoyed contractual relations with the defendant. A contract would make a j)arty liable, irrespective of its relations to the inculpated agent. But here there was no ticket ■or contract, and. the agents inculpated were, in fact and law, the agents of the Erie Company alone in the service under consideration.

For these reasons the judgment of the trial court must be affirmed, with costs.

Dykman, J., concurred; Barnard, P. J., dissented.

Judgment affirmed, with costs.