author: Pollett, J.:

text:
    In the Matter of the Petition of David E. Austen, as Receiver of Taxes in the City of New York, Respondent, v. The Hudson River Telephone Company, Appellant.

      Personal taxation — domestic corporation — ■principal place of business named in articles of incorporation ■ — change of residence — residence, for purposes of personal taxation, of a telephone convpamy incorporated under chapter 265 of the Laws of 1848.
    When the statute under which a domestic corporation is organized does not fix its residence or require the location of its place of business or principal office to be stated in its articles of incorporation, a statement in such articles of a place at which its principal office shall be located is binding neither upon the corporation nor the taxing officers, for the purpose of fixing the place where the corporation shall be assessed for personal taxation under the statute (1 R. S. 389, § 6), but its residence is deemed to be where its principal place of business is actually situated.
    When the residence of such a corporation is not fixed pursuant to statute, it may change its principal office or place of business from the place at which it was first established to any place within the State where it is actually engaged in carrying on its business pursuant to authority conferred by its charter or articles of incorporation.
    The articles of incorporation of a telephone company organized in 1883 under the Telegraph Companies Act of 1848 (Chap. 265), which act does not require articles of incorporation under it to state where the principal office of the corporation shall be located, stated that its principal office should be in the city of New York. The corporation constructed and operated lines within the counties, including Albany, mentioned in its articles, but never had a line or station in the city of New York. From the date of organization the office of the general manager and cashier was at the city of Albany, where the principal financial business of the corporation was transacted. From 1883 to May, 1890, the company maintained an office in the city of New York, where the stock book, stock ledger, corporate seal and the records of its secretary were kept and directors’ meetings were held. In May, 1890, the New York office was abandoned, and on September 24, 1890, it was resolved at a stockholders’ meeting that the office of the corporation be removed to the city of Albany, and on the same day all its books and property were removed to Albany, at which place the office of the company was thereafter kept. In 1891 the corporation was assessed by the taxing officers of the city of New York for personal taxation for that year. The law is to the effect that only persons and corporations who are residents of the city of New York on the second Monday of January in any given year are liable to be assessed there on their personalty for that calendar year;

      Meld, that the statement in the articles of incorporation did not fix the residence of the corporation in the city of New York;

      That it appearing that the corporation had removed its office from the city of New York and ceased to transact any business therein prior to the second Monday of January, 1891, it was not a resident of that city and, consequently, not taxable therein.
    Appeal by the Hudson River Telephone Company from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the city and county of New York on the 6th day of June, 1893, imposing a fine for the nonpayment of a personal tax.
    In April, 1883, the Hudson River Telephone Company was incorporated pursuant to chapter 265 of the Laws of 1848, and the acts amendatory thereof and supplementary thereto, for the purpose of constructing and operating telephone lines within certain counties in this state which are named in the articles of incorporation. It was stated in the articles filed April 26, 1883, in the office of the clerk of the city and county of New York, and April 21, 1883, in the office of the Secretary of State, that “ the principal office of the association shall be in the city of New York, State of New York.” The corporation constructed and is now operating lines within the counties mentioned in its articles (Albany being one. of them), hut it has never had in the city of Ñew York a line or station for the reception or transmission of messages. From the-date of the organization to the present time the office of its general manager and cashier has been kept at the city of Albany, at which office the principal financial business of the corporation has been transacted. From 1883 to May, 1890, the corporation maintained an office in -the city of New York, where the stock hook, stock ledger, corporate seal and the records of its secretary were kept, and at which office the meetings of the directors were held.
    In May, 1890, the New York office was abandoned, and all of the property and books, except the stock book and secretary’s minutes, were removed to Albany. September 24, 1890, at a meeting of the stockholders of the corporation, it was resolved that the office of the corporation be removed to the city of Albany, and on the same day all of its books and property were removed to Albany, at which place the office of the corporation has since been kept.
    In 1891 the personal property of the corporation was, valued by the taxing officers of the city of New York at $200,000, and a tax of $3,372 for that year was assessed against the corporation on its personalty. The tax was not paid; a warrant was issued for its collection, which was returned (the date not appearing) unsatisfied, and in April, 1893, an order was granted requiring the corporation to .show cause why it should not be fined for the non-payment of the tax; and, June 6, 1893, an order was granted (the corporation appearing and opposing) pursuant to section 857 of the Consolidation Act, fining it the amount of the tax, and $394.85, costs and disbursements of the proceedings. This appeal is taken from that order.

      Iler/ry G. Atwater, for the appellant.

      •John G. II. Myers, for the respondent.
   Pollett, J.:

Between the first Monday of September and the second Monday of the following January the deputy tax commissioners are required to list in the city of New York real and personal property for taxation. (Consolidation Act, § 814.)

Only persons and corporations who are residents of the city on the second Monday of January in any given year are liable to be assessed on their personalty for that calendar year. (Sisters of St. Francis v. Mayor, etc., 51 Hun, 355 ; affd., 112 N. Y. 677; Matter of Babcock, 115 id. 450.)

All the personal estate of every incorporated company liable to taxation on its capital shall be assessed in the town or ward where the principal office, or place for transacting the financial concerns of the company, shall be; or, if such company have no principal office or place for transacting its financial concerns, then in the town or ward where the operations of such company shall be carried on.” (1 R. S. 389, § 6.)

The sole question is, was the corporation a resident of the city of New York on the second Monday of January, 1891 %

The record does not show whether it had been taxed in previous years at Albany or New York, and no presumption arises under section 2 of chapter 392 of the Laws of 1883, that it resided in either city in 1891.

It is insisted in behalf of the city that the statement in the articles of incorporation, that “ the principal office of the association shall be in the city of New York, State of New York,” fixed the residence of the corporation in that city, and that its residence had not been changed prior to the second Monday of January, 1891.

"When a statute under which a corporation is organized requires that it be stated in the articles of incorporation in what place the principal office for the management of its affairs is to be situated, and the location of its principal office is stated in the articles, the statement is conclusive evidence of the residence of the corporation for the purposes of taxation under the section of the Revised Statutes before quoted. (Western Transportation Company v. Scheu, 19 N. Y. 408 ; The Oswego Starch Factory v. Dolloway, 21 id. 449; Miner v. Village of Fredonia, 27 id. 155 ; Matter of Metcalf v. Messinger, 46 Barb. 325; Chesebrough Mfg. Co. v. Coleman, 44 Hun, 545 ; The Union Steamboat Comparvy v. City of Buffalo, 82 N. Y. 351.)

The statute (Chap. 265, Laws 1848, repealed by chap. 566, Laws 1890) under which the appellant was incorporated does not require that it shall be stated in the articles of incorporation where the principal office of a corporation organized under that act shall be kept or located, nor does it contain any provision on this subject. Because the statute does not require the location of the principal •office of the corporation to be stated, it is urged in behalf of the appellant that the statement in its articles that its principal office shall be in the city of New York is surplusage, and that the decisions before cited do not control this case, and our attention is called to the following extract from the opinion in the case last cited:

The general statute prescribing where corporations are to be taxed was framed to meet two classes of cases: First, those which had a principal office fixed by their certificate, in accordance with the mandate of their charter, or the general law under which they were organized; and, second, those which had no such principal office fixed by their certificate of incorporation, because their charter did not require it. The former was to be taxed in the locality of their principal office. The latter in the ‘ place for transacting the financial concerns of the company.’ Thus all possibility of mistake or oversight was prevented. If the company had a principal office fixed by its certificate that, and that only, was its residence for purposes of taxation. If it had no principal office so located by its certificate, then it was to be taxed where its financial concerns were transacted.”

This corporation belongs to the second class mentioned in this quotation. If the statement in the articles is binding on the corporation, it is also binding on the taxing officers. The location of its principal office not having been fixed pursuant to any statute, it does not seem to us that the statement is binding on the taxing officers of other towns or cities, and that the appellant is taxable “where the operations of such company shall be carried on.” Ve do not think that a corporation without statutory authority can, by a statement in its articles that its principal office shall be kept in some remote town, escape taxation in the town or ward where its business is carried on. In this connection the language used by Judge Denio in Oswego Starch Factory v. Dolloway (21 N. Y. 454) seems quite pertinent:

“The Western Transportation Company, respecting which a question lately came before us, as to the place where it was to be taxed, was formed under a general act which provided for the incorporation of navigation companies. That species of business could not generally be carried on in a single local jurisdiction, and,, hence, such a company could not be located in any city or town in the manner adopted in respect to manufacturing corporations, by requiring its certificate to state the place where its operations should be carried on. If no statement of mvy locality had been required,, the provisions of the Revised Statutes would ha/oe applied to the case, a/nd the assessors would have been obliged to i/nqui/re where, in point of fact, its principal financial office had been established.”

Had the sentence contained in Judge Denio’s opinion, which we have italicized, been necessary for the decision of that case, it would be decisive of the one at bar, and the same may be said of the language quoted from 82 N. Y. supra. While these decisions are not decisive of the question now presented, yet they are persuasive, and our views accord with those expressed in the two judgments last referred' to.

When a statute under which a domestic corporation is organized does not fix its residence, or require that its place of business or of its principal office shall be stated in its articles of association, its residence or domicile is deemed to be where its principal place of business is situated (Conroe v. National Protection Ins. Co., 10 How. Pr. 403; Hubbard v. National Protection Ins. Co., 11 id. 149; Thorn v. Central Railroad Co., 2 Dutch. 121; Ang. & Ames Corp. § 107; Boone Corp. § 33; Dicey Dom. 7-110); and when the residence of such a corporation is not fixed pursuant to statute it may change its principal office or place of business from where it was first established to any place within the State wherein it is actually engaged in carrying on its . business pursuant to authority conferred by its charter or by its articles of association.

There is no statute in this State forbidding a corporation authorized to carry on its business in several counties from removing its office or place of business from where it was first established to some other county in which it is authorized to transact business, unless the place where its principal office is to be kept is required to be stated in its articles of incorporation, and in some cases corporations which are required to fix their principal business office in their articles may remove their office to other places. In case a business corporation is organized under chapter 567 of the Laws of 1890, the location of its principal place of business must be stated in its articles; but it is provided by the 9th section of the act that such a corporation may change its principal office with the consent of its stockholders owning two-thirds of the capital stock.

We think, the evidence being uncontradicted, that this corporation had removed its office from the city of New York, and had ceased to transact any business therein prior to the second Monday of January, 1891; that it was not a resident of that city and not taxable therein.

The order should be reversed and the application denied, with ■costs.

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

Order reversed and application denied, with costs.


source: Caselaw Access Project

author: Eollett, J.:

license: Public Domain

text:
    Ephraim Drucker, Respondent, v. The Metropolitan Elevated Railway Company and The Manhattan Railway Company, Appellants.

      Elevated street railroads — damages to abutting property — nominal value of easements — findings and refusals to find — hearsay evidence on the question of value.

    In an action brought to recover damages arising from tlie diminislied rental value of the plaintiff’s premises, caused by the operation of an elevated railroad in the street on which the premises abut, where the plaintiff does not own the fee of any part of the street, and to obtain an injunction restraining the future operation of the road, a technical error of a referee in refusing to find, at the request of the defendant, that the easements appurtenant to the plaintiff’s land, taken for railway uses, aside from any damages to the land from the taking, have in themselves only a nominal value, is harmless when it is apparent from the referee’s findings and conclusions that the damages awarded, both rental and fee, were consequential only and not for any supposed value of the easements in and by themselves, and that the benefits resulting to the property from the construction and operation of the road were considered and taken into account in assessing the damages.
    When hearsay and incompetent general statements, bearing upon the question of value, have been called out by the defendant in such an action, the defendant cannot complain if the plaintiff is permitted to elicit from the witness the particulars of such general statements.
    Appeal by the defendants, the Metropolitan Elevated Railway Company and the Manhattan Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 22d day of April, 1893, upon the report of a referee.

      R. L. Maynwrd, for the appellants.

      Roger Foster, for the respondent.
   Eollett, J.:

Since April 28, 1887, the plaintiff has been the owner in fee of a lot fifty feet square, situate on the northeast corner of South Fifth avenue and Grand street, but he does not own the fee of any part of either street. On this lot is a brick building, the first floor of which is occupied by stores and saloons, and the upper floors mainly as abiding places for persons .occupying rooms. The defendants’ elevated road extends through South Fifth avenue in front of the plaintiff’s premises, and at the corner of the avenue and Grand street the defendants maintain a station for passengers.

This action was begun June il, 1890, to recover damages for the diminished rental value of the property since the plaintiff became its owner, caused by the operation of the road, and for an injunction restraining its future operation.

The liability of the defendants for the damages caused, if any, is not denied, but it is alleged that by the construction and operation of the road, with a station at that place, the value of the property has increased and also its rental value. The referee found that the rental value from April 28, 1887, to February 25, 1893, the date of his report, was diminished by $1,536.86, or at the rate of about twenty-two dollars per month. Fie also held that the plaintiff was entitled to an injunction restraining the operation of the road,, unless the defendants paid to the plaintiff $4,500 for the decreased value of the property.

The main point relied on for a reversal of the judgment is that the damages awarded, both rental and fee, are excessive. After reading the record, we are of the opinion that this position is untenable, and that the evidence is sufficient to sustain tire report in this respect. The referee was asked by the defendants, but refused to find: “ 12. The said easements, appurtenant to the plaintiff’s land, taken for the said railway uses, aside from any damages to said land from the said taking, have in themselves only a nominal value.”

This was a technical error, but it is apparent that the defendants, were not harmed thereby. The referee found :

“ IX. That by the injuries done and committed by the defendants, •as aforesaid, the rental value of the plaintiff’s said premises has been damaged over and above any benefit resulting from the construction,, maintenance and operation of the defendants’ railroad and station,, to the amount of two hundred and sixty-five dollars ($265) per year' from April 28,1887, to the date of this report, or in the total off one thousand five hundred and thirty-six and dollars ($1,536 ■££$)■
X. The value of the easements of light, air and access of the-plaintiff in said South Fifth avenue, appurtenant to the premises-above described, taken, appropriated and used by the defendants in-the maintenance and operation of said elevated railroad and station,, and the damage to the fee value of plaintiff’s said property iii consequence of said talcing, appropriating and use, is the sum of four thousand five hundred dollars ($4,500), over and above any benefits resulting to said premises from the construction, maintenance and ■operation of said railroad and station.”
“ XXII. The existence and operation of the defendants’ railroad in South Fifth avenue, together with the station at South Fifth .avenue and Grand street, has rendered the premises in suit far more accessible than they otherwise would be.”

He held as a conclusion of law:

“ 3. Plaintiff is not entitled to recover damages in this action except to the extent, if any, by which the disadvantages of the defendants’ railroad have exceeded the advantages thereof to said premises.”

By the three findings quoted, which are quite consistent with the ■other facts found, and the conclusion of law, it is apparent that the damages awarded were consequential only, not for any supposed value of the easements in and by themselves, and that the benefits resulting to the property from the construction and operation of the road and its station were considered and taken into account in assessing the damages.

Victor Levi,i a real estate agent, sworn in behalf of the plaintiff .-as an expert in real estate and rental values, testified on his cross-examination: “About 1870 to 1872 or 1873 there was a considerable •of a boom in Sonth Fifth avenue property. There was talk about that ¡time among real estate men of South Fifth avenue becoming a second Broadway.”

On the redirect examination the following occurred: “ Q. Please state all that was said in your hearing in regard to South Fifth avenue becoming a second Broadway, as testified by you in your cross-■examination % [Objected to as incompetent, immaterial and irrelevant, calling for hearsay evidence, and improper. Objection overruled. Exception to defendants.] A. Well, the different hat and cap men were coming into South Fifth avenue, putting np buildings, and they were immediately occupied, and owners and speculators said and told me at the time that they expected that lots on South Fifth avenue would be as high as Broadway would be, on account of its being a continuous street, running through from Chambers street up through the city, and in consequence of its breadth.”

It is difficult to see why the opinion of real estate men called out by the defendants in the first instance was important, but if the general statements were relevant the particulars were not irrelevant. It is urged that the ruling above set forth was error. The evidence was clearly hearsay and incompetent, but it was first called out by the defendants, and they cannot complain that the plaintiff was permitted to give the particulars.

The other exceptions to the rulings upon the trial require no comment.

The judgment should be affirmed, with costs.

Parker, J., concurred; Yan Brunt, P. J., concurred in the result.

Judgment affirmed, with costs.


author: Follett, J.:

text:
    Richard Fitzpatrick, Plaintiff, v. William D. Tweddle, as Executor of and Trustee Under the Will of Thomas B. Tweddle, Deceased, Defendant.
    Jfegligence— loss of a horse and cart off a dock — alleged defective condition of the dock — contributory negligence of the driver.

    Tlio driver of a horse and cart used in unloading material from a boat at a dock, instead of expending a little labor in removing the refuse material which had accumulated against a string piece at the outer edge of the dock, so that the string piece would prove a sufficient barrier, took the chance of using the dock in the obviously dangerous condition in which he found it, and backed the cart against the string piece alongside of which the refuse material had accumulated.' The cart, instead of being stopped thereby, went off the dock and was lost, together with the horse and harness.

      TIeid,- that the driver was guilty of contributory negligence, which would prevent his employer from recovering damages for the loss of the horse, cart and harness, from the person in possession of the dock, on the ground that the latter was negligent in permitting refuse material to accumulate along the string piece.
    Motion by the plaintiff, Richard Fitzpatrick, for a new trial, made on a case containing exceptions ordered to be beard in the first instance at General Term, on the dismissal of the complaint at the New York Circuit on the 11th day of May, 1893.

      Michael J. Scanlcm, for the plaintiff.

      Maurice Untermyer, for the defendant.
   Follett, J.:

This action is for the recovery of damages for the loss of personal property caused, it is alleged, by the negligence of the defendant. On the 10th of December, 1891, and for five years previous thereto, the defendant was the owner, as trustee, and in possession of a dock on the north side of East Forty-eighth street, which had a frontage-of 100 feet on East river, and extended westerly from the river 188 feet. A string piece from eight to ten inches square was fastened along the east edge of the dock to prevent carts from being backed into the river.

Campbell & Co. were dealers in broken stone and sand, having- a place of business on the south side of Forty-eighth street, and 100 feet west of the river. Before the accident Campbell & Co. had used the dock for the purpose of unloading their material from, boats lying by it. Refuse material had been permitted to accumulate on the dock, covering a space of about sixteen feet in width, and. to such an extent that the upper surface of the string piece was but about two inches above the surface of material which lay against the-stringer. This accumulation was at the place where the material of. Campbell & Co. was discharged from the boats to the carts for-removal to their yard. A derrick for hoisting material from the boats to the carts stood near the place where the material had accumulated, and the part of the dock which was not incumbered by refuse material was not as convenient for the purposes of Campbell & Co., but it might have been used by them. On the 10th of' December, 1891, the plaintiff, through his employees, was engaged with two carts in taking the material from a boat to the yard of" Campbell & Co., which work was begun on the day previous. The empty carts were driven on the dock and then backed down to its edge for the purpose of receiving the material from the derrick. On this stringer there was a cleat two feet and four inches long and about five inches high, which was used for the purpose of fastening; vessels to tbe dock. At tbe time of tbe accident tbe driver of one of tbe plaintiff’s carts backed down towards tbe edge of tbe dock, intending tbat one of tbe wheels of tbe cart should strike against tlie cleat and so check its motion, but, by a miscalculation of tbe driver, tbe wheel did not strike squarely against tbe cleat, but passed by one end of it, and tbe horse, cart and harness went into tbe river and were lost. Tbe only negligence complained of istbat tbe defendant permitted tbe refuse material to accumulate against tbe string piece so tbat it did not present a sufficient barrier for tbe carts. Tbe accident occurred about two o’clock in tbe afternoon. Tbe driver bad been engaged during all of tbat day and tbe day before in unloading tlie boat. It was testified tbat the situation of tbe dock was apparent and tbe danger obvious. Instead of expending a little labor in removing this refuse material to one side so as to have uncovered the stringer, which would have presented a sufficient barrier, tbe plaintiff’s employees preferred to use the dock in its then condition. At the close of tbe plaintiff’s evidence, tbe complaint was dismissed on the ground that tbe negligence of tlie plaintiff’s driver contributed to tbe accident. This is plainly so. He took the chances of using tbe dock in tbe condition in which be found it, and made a miscalculation by which tbe plaintiff’s property was lost.

Tbe judgment should be affirmed, with costs.

Yak Bbunt, P„ J., and Paekeb, J.,.concurred.

Judgment affirmed, with costs.


author: Paeker, J.:

text:
    David S. Brown and Another, Appellants, v. John H. Doscher, Respondent.

      Action for infringement of a trade mark — when, although the trade ma/rk and its use are established, a complaint should be dismissed.

    In an action brouglit to restrain the use by the defendant of the word “Blizzard,” as an alleged infringement of the plaintiffs’ trade mark on the wrapper used on their soap, the trial court held that the plaintiffs were entitled to the exclusive use of the word “ Blizzard”, as a trade mark for laundry soap, and the exclusive-use of the wrapper which they employed to inclose the cakes of soap, and. found, as one of the facts upon which it based the conclusion that the complaint should ho dismissed, that the wrapper made use of by the defendant was not calculated to deceive the plaintiffs’ customers, nor intending purchasers of the plaintiffs’ Blizzard Soap nor the public, and that the wrapper had not actually misled any person to buy soap manufactured by the defendant, believing that it was of the plaintiffs’ manufacture.

      Held, that the judgment dismissing the complaint was proper.
    Appeal by tbe plaintiffs, David S. Brown and Delaplaine Brown, from a judgment of tbe Supreme Court, entered in tbe office of tbe cleric of tbe city and county of New York on tbe 6tb day of ■June, 1893, dismissing the plaintiffs’ complaint, rendered upon a decision of tbe court after a trial at the New York Special Term.

      Howla/nd Oox, for the appellants.

      John Henry IIull, for tbe respondent.
   Paeker, J.:

This action was instituted to restrain tbe use by the defendant of •an alleged infringement of plaintiffs’ wrapper. On tbe appeal from 'the order denying a motion for an injunction pendente lite, this court ¡expressed tbe opinion that tbe wrapper complained of could not be regarded as such an imitation of tlie plaintiffs’ wrapper as would be likely to deceive. The trial court, while bolding that tbe plaintiffs ¡are entitled to tbe exclusive use of tbe word “ Blizzard ” as a trade mark for laundry soap, and tbe exclusive use of tbe wrapper which they employed to inclose cakes of soap, found as one of tbe facts upon which it based tbe conclusion that tbe complaint should be dismissed, that tbe wrapper made use of by the defendant “ is not calculated to deceive plaintiffs’ customers nor intending purchasers ■of plaintiffs’ Blizzard Soap and the public.”

And further, that the wrapper has not actually misled any person to buy soap manufactured by defendant in the belief that it was of plaintiffs’ manufacture.

After an examination of tbe wrappers, we agree with the trial judge that the resemblance is not such that it is calculated to ■deceive the ordinary buyer making his purchase under the ordinary conditions which prevail in the conduct of the particular traffic to which this controversy relates. And a review of the evidence requires a concurrence in his further finding that buyers have not been deceived by it.

Plaintiffs were not, therefore, entitled to succeed. (Fischer v. Blank, 138 N. Y. 244.)

The judgment should be affirmed, with costs.

VaN BeuNt, P. J., and Follett, J., concurred.

Judgment affirmed, with costs.


author: Parker, J.:

text:
    Mary A. Hann, Appellant, v. Weeks W. Culver and Another, Respondents.

      Statute of Limitations — not avoided by a plaintiff electing to pursue an equitable-instead of a legal remedy — when the claim is bwrred.

    When there is an adequate remedy at law the election "by a plaintiff to ask equita- - hie relief does not avoid the Statute of Limitations, which would have governed had he sought legal redress.
    In an action brought to compel the defendants to render an account of the proceeds of the sale of certain land alleged to have been received by the defendants, it appeared that the plaintiff, on July 28,1881, conveyed to the defendants a tract of land, and on the same day the defendants, by an instrument in writing, not under seal, agreed to convey to the plaintiff 100 acres of such land, any part thereof which the plaintiff might select, except a certain tract, which land the agreement declared had already been fully paid for by the plaintiff. During the latter part of the year 1881 or the spring of 1882, the plaintiff selected the 100 acres which she desired to have conveyed to her, and caused to be tendered to the defendants for execution a deed, as provided by the contract. The defendants refused to execute the deed or to make a conveyance to her. Subsequently, and on November 16, 1883, the defendants conyeyed to the Barnegat and Long Beach Improvement Company all the land which the plaintiff deeded to them.
    Thereafter, on July 23, 1891, an action was commenced, the complaint in which set forth the making of the contract, the defendants’ refusal to perform, the conveyance by them to third parties of the 100 acres, which was the subject of the contract, the purchase price of the entire property conveyed, and that the 100 acres were proportionally of greater value than the residue of the tract, and concluded with a prayer that the defendants be adjudged to have received for the plaintiff such part of the entire purchase money as the court might find to-be the portion thereof apportionable to the 100 acres selected by the plaintiff, and that the defendants be required to show in what securities they had invested such sums, and to account to the plaintiff for the proceeds of such investments, or for the moneys received by the defendants therefor, with interest.

      The plaintiff’s complaint, on a trial at Special Term, was dismissed upon the merits.

      Held, that the plaintiff’s claim was harred by the Statute of Limitations;
    That specific performance could not be sought because, according to the allegations of the complaint, the defendants had not been in a position to perform for a period of more than six years.
    Appeal by the plaintiff, Mary A. Hann, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the city and county of New York on the 19 th day of January, 1893, upon a decision of the court rendered on a trial at the New York Special Term dismissing the plaintiff’s complaint upon the merits.

      Raphael J. Moses, for the appellant.

      Thomas Allison, for the respondents.
   Parker, J.:

The court rendered judgment dismissing the complaint on the ground that the cause of action pleaded and proved was barred by the Statute of Limitations.

On this appeal that Question and none other, is presented for determination.

The plaintiff Hann, on the 28th day of July, 1881, conveyed to the defendants a large tract of land in Ocean county, State of New Jersey. On the same day, and in the city of New York, her vendees, these defendants, by an instrument in writing, not under seal, agreed to convey unto the vendor in said deed, this plaintiff, one hundred (100) acres of the land conveyed by plaintiff to the defendants. Said one hundred (100) acres to be any part of the land so conveyed which the plaintiff might select, except a tract known as the “ Health Mansion Tract.” The conveyance to be “ a quit-claim or bargain or sale deed,” without warranty.

The agreement further declares that such land has already been fully paid for by the party of the second part. Thereafter, and during the latter part of the year 1881 or spring of 1882, the plaintiff made selection of the one hundred (100) acres which she desired to have conveyed to her, and in addition caused to be prepared and tendered to the defendants for execution a deed without warranty, as provided by the contract.

The defendants refused to execute the deed or to make conveyance to her, as they had promised by their contract. And subsequently, and on November 16, 1883, they conveyed to the “Barnegat and Long Beach Improvement Company ” all the land which plaintiff deeded to them, including the 100 acres which they had agreed to reconvey.

July 23, 1891, considerably more than six years after the happening of either of the events to which we have referred, this action was commenced. The complaint, after alleging the making of the contract, defendants’ refusal to perform, the conveyance by them to third parties of the 100 acres, which was the subject of the contract, stating the purchase price of the entire property conveyed, and asserting that the 100 acres were proportionally of greater value than the residue of the tract, concluded with a prayer for relief ; that the defendants be adjudged to have received for the plaintiff such part of the entire purchase money as the court may find to be the portion thereof apportionable to the 100 acres selected by the plaintiff, and that the defendants be required to show in what securities they have invested such sums, and to account to the plaintiff for the proceeds of such investments or for the moneys received by the defendants therefor, with interest.

Plaintiff’s right to an action at law for the damages sustained, because of the breach of the contract, was barred by the Statute of Limitations at the time of the commencement of this suit, which •does not seek specific performance of the contract, because, according to the allegations of her complaint, the defendants have not been in a position to perform for a period of more than six years.

The plaintiff attempts to escape the bar of the statute by praying for an adjudication that the defendants be adjudged to have received the purchase money as trustees, and that they be required to account therefor.

An action at law for the damages sustained by the plaintiff by reason of defendants’ breach would undoubtedly have proven an adequate remedy. But assuming, as the plaintiff contends, that the proceeds of the land in the hands of the defendants were impressed with a trust in favor of the plaintiff, or that the relation existing between them had a trust character, equity would not have had exclusive jurisdiction to afford relief.

In such a case, while the remedy can be pursued on the equity side of the court, a court of law has jurisdiction to give relief in the form of an action for money had and received. (Roberts v. Ely, 113 N. Y. 128-132.)

And when the action for money had and received is barred so is-the equitable action.

The rule is that when there is an adequate remedy at law, the election by plaintiff to ask equitable relief does not avoid the limitation, which would have governed had he sought the legal redress. (Butler v. Johnson, 111 N. Y, 204; Roberts v. Ely, supra; Mills v. Mills, 115 N. Y. 80.)

In Butler’s case the court say: “ "When the Legislature prescribed,, for instance, six years in which to commence an action upon a liability or obligation, express or implied, we think it meant to include-in such description an action which might formerly have been prosecuted in either court, upon or by reason of such obligation, and where the remedy would have been adequate in either, and if the form of the remedy chosen were such as would formerly have been cognizable in Chancery, yet the limitation applicable to the remedy at law would apply. There can be no sense- in enlarging the time by a mere change of the form of the remedy sought, where the subject-matter of the action is precisely the same, and the remedy in either was adequate.”

Under the rule established in the foregoing cases, we think, the learned trial court rightly concluded that the plaintiff’s remedy at law was adequate, and that she could not relieve her cause of action from the bar of the Statute of Limitations by pursuing a remedy in a court of equity.

The judgment should be affirmed, with costs.

Van BRUNT, P. J., and Follett, J., concurred.

Judgment affirmed, with costs.


author: Parser, J.:

text:
    In the Matter of the Revocation of Probate of the Alleged Will and Testament of Martha K. Peaslee.

      Estoppel — operation thereof against a legatee, who, having received a portion, of her legacy, seeks to revoke the prohate — -the burden of pmof that the reason for a rule does not exist —jurisdiction of a surrogate.

    It is a well-settled proposition, in law as well as in equity, that he who accepts and retains a benefit under an instrument, whether deed, will or other writing, is held to have adopted the whole, and to have renounced every right inconsistent therewith.
    "Where a legatee named in a will is paid a portion of her legacy by the executors thereof, she is not in a situation to attack the will until she puts the parties in a position where, whatever the result may be, no one can be the loser, because of the payments originally made to her.
    Where a person asks that a rule be not applied on the ground that the reason upon which it is founded was not present, the burden rests upon him to establish clearly the facts which he relies on to support his contention.
    A surrogate has the right to determine, in a proceeding for the revocation of the probate of a will, whether the person presenting the petition is a person interested in the estate of the decedent, and if from the facts before him, it appears that under well-settled rules of law the petitioner is estopped from claiming in hostility to the will, it necessarily follows that he must determine that the petitioner cannot be allowed to proceed further in the direction of revocation because of a want of interest in the estate of the decedent.
    Appeal by tlie petitioner, Frances M. Peaslee, one of the heirs at law and next of kin of Martha II. Peaslee, deceased, from an order and decree of the surrogate of the county of New York, entered in the office of the clerk of said court on the 25th day of July, 1893, denying the application of the petitioner to revoke the probate of the last will and testament of Martha K. Peaslee, and dismissing the proceedings instituted therefor.

      William II. Arnoux and John R. MacArthiir, for Frances M. Peaslee, petitioner, appellant.

      Robert JErmter McGrath, Jr., and Remiel G. Rollins, for the executors, respondents.
   Parser, J.:

By a decree of the Surrogate’s Court of New York, dated January 25, 1892, there was admitted to probate an instrument adjudged to be tbe last will and testament of Martha Ii. Peaslee. It contained a bequest to Frances M. Peaslee, a daughter of the testatrix, on account of which the executors made payments to her on the dates and in the amounts following: January 28, 1892, $2,500; May 24, 1892, $4,500; in all $7,000.

Subsequently, and within the time allowed by law, Frances M. Peaslee filed a petition in the Surrogate’s Court of New York, praying for a revocation of the probate of such will.

Citations were thereupon issued. The executors appearing in response thereto, answered that they had made the payments above referred thereto; that the petitioner had not refunded nor offered to refund the same, and demanded a dismissal of the proceeding.

It is a well-settled proposition in law, as well as in equity, that he who accepts and retains a benefit under an instrument, whether deed, will or other writing, is held to have adopted the whole, and to have renounced every right inconsistent with it.

The rule has found expression in many actions and with widely differing facts. A few of them only will be referred to.

In Chipman v. Montgomery (63 N. Y. 234), which was an action in the Supreme Court to obtain a judicial construction of a will, and for an accounting, Judge AlleN, speaking for the court, said: “ Two of the plaintiffs have received in whole or in part the legacies given them by the will, and having accepted the benefits of the provision made for them, cannot be heard in opposition to other parts of the instrument, except by proof of circumstances showing that they had not intelligently elected to take under the will, rather than in opposition to it, and a return of all that has been received by them." And he quoted with approval Lord Redesdale’s decision, in Birmingham v. Kirwan (2 Sch. & Lef. 444), that this rule of election is applicable to every species of instrument, whether deed or will, and to be a rule of law as well as equity.

The rule is also asserted in Havens v. Sackett (15 N. Y. 365).

In Mills v. Hoffman, (92 N. Y. 181), which was an appeal from a decree of the Surrogate’s Court compelling an administrator to account, the objection overruled by that court being that the petitioner was barred, because of an entry of judgment, in which she was a party defendant, although an infant, and the subsequent distribution of the estate in pursuance of the judgment by which tbe moneys came into the hands of her guardian and upon her majority to her. After this latter event the judgment was vacated and set aside as to her, on the ground that the appointment of a guardian ad litem to represent her had been irregular, and the Court of Appeals held that she was estopped from controverting in the Surrogate’s Court the judgment under which she had received benefits.

In Matter of Soule (1 Connolly, 18), the right of a legatee who had received moneys under a will to claim revocation of probate without making full restitution to the executors was denied.

Numerous cases have arisen under wills where this principle has been applied. (Hamblett v. Hamblett, 6 N. H. 333 ; Van Duyne v. Van Duyne, 14 N. J. Eq. 49 ; Weeks v. Patten, 18 Maine, 42; Smith v. Guild, 34 id. 443; Hyde v. Baldwin, 17 Pick. 303; Smith v. Smith, 14 Gray, 532; Bell v. Armstrong, 1 Adams, 365 ; Braham v. Burchell, 3 id. 243.)

The learned counsel for the appellant, while citing no authorities asserting a contrary proposition, lias’ carefully analyzed and elaborately discussed nearly all the cases we have cited, in order to make it appear that they are distinguishable from the case at bar. In their facts they are different from this case and they differ from each other, but they all tend to make good the assertion which maybe found running through the books, that he who receives money or property, or a benefit of any kind under an instrument, whatever its character, or his relation to the maker of it, cannot question the instrument in whole or in part. But the appellant urges that the reason for the rule does not' apply in this case, and, therefore, the rule should not obtain. Here he says no injury can result to the executors or any one else, because the petitioner is permitted to contest the will while retaining the $7,000 which she received from the executors, because if the will be set aside she, as one of the next of kin, Avill be entitled to receive a larger sum of money than $7,000, and, therefore, the executors can be amply protected by the surrogate. It may be true that if the contest should proceed it would so turn out, but of that we are not assured.

It does not appear that should the petitioner be successful in her contest, that as a result her mother’s intestacy will be established.

There may be other and prior wills in existence, the validity of one of which may be established, with the possible result that the petitioner will not receive thereunder a legacy sufficient in amount to make good the advancement to her by these executors. Certainly the contrary cannot be safely assumed.

The fact that the petitioner received this money, and expended it before becoming aware of the facts which encouraged her to enter upon a contest of the will, may perhaps be unfortunate for her. If misfortune it be, it arises of course from the necessities which induced her to expend the money. Where a person asks that a rule be not applied, on the ground that the reason upon which it is founded is not present, the burden rests upon him to establish clearly the facts which he relies on to support his contention. The petitioner took the money and used it, and until she puts the parties in a position where, whatever the result may be, no one can be the loser, because of the payments originally made to her, she is not in a situation to attack the will. But the appellant urges that, granting the existence of the principle contended for, and its applicability to the petitioner’s situation, still the Surrogate’s Court, not being a court of equity, was without authority to determine the question.

Section 264/T of the Code, which provides who may petition for the revocation of a will, confers, we think, upon the Surrogate’s Court the authority to pass on the proposition presented here. It does not provide that any one of the next of kin may within one year petition for a revocation of the probate, in which event the proceedings described in that and the following sections shall be had. On the contrary, it provides that a*person interested in the estate of the decedent may * * * petition.”

This clearly means that the person making the application must have a substantial interest in the result at the time he files his petition. The fact that he is one of the next of kin is not sufficient, if, by assignment or otherwise, he has disabled himself from sharing in the estate should the will be revoked. The aim of the statute is not to encourage vexatious contests, but to secure to a party who, but for the will, would receive a larger share of the estate than bequeathed to him by it, a year in which to ascertain all the facts surrounding its execution, and to determine whether to assume the responsibility of making a contest. In order to avail himself of the privilege tiras afforded, lie must be in sncli a position that he is “ a person interested in the estate.”

That such is the purpose of the statute seems to be apparent from the mere reading of the provision, but if doubt remains, it must certainly give way after a comparison of the section with the provisions of the Revised Statutes which it stands in the place of. (3 R. S. [6th ed.] 61, §§ 27, 28, 29.)

Those sections provide that any of the next of kin to the testator may at any time, within one year after such probate, contest the same.” It will be observed there was no restriction placed upon the next of kin whatever.

According to its terms one of the next of kin, although he might have disposed of his interest in the estate, or by other acts placed himself in such a position that he could not share therein, might still carry on a contest which would greatly annoy, and perhaps result in considerable injustice to others.. The change in the statute was intended doubtless to do away with the opportunity thus afforded for mischievous contests.

Its beneficial features were retained, the right to make application for a revocation of the will being limited to those only having a present interest in the estate; necessarily, therefore, the statute confers upon the surrogate the right to determine, before proceeding with a contest, whether the person presenting the petition is a person interested in the estate of the decedent.”

If from the facts before him it appears as it did in this case that, under well-settled rules of law, the petitioner is estopped from claiming in hostility to the will, then it necessarily follows that he must determine that the petitioner cannot be allowed to proceed further in the direction of revocation because of a want of interest in the estate of the decedent.

The order should be affirmed, with costs and printing disbursements.

VaN Brunt, P. J., concurred.

Order affirmed, with costs and printing disbursements.


text:
    The People of the State of New York ex rel. Jennie Isaacs and Another, Appellants, v. The Warden of the District Prisons, Respondent.

      When a Court of Special Sessions is legally constituted — form of commitment,

      A designation of justices to hold a given term of a Court of Special Sessions, made by all the justices met in convention, is not essential to the creation of a legal court, and if, at a duly appointed term of the court, three of the justices present themselves and proceed in its business, the court is legally constituted, although an assignment of justices has not been made, or, if made, for some reason the justices assigned are unable or neglect to appear.
    A commitment which consists of a transcript of the entry of conviction from the minutes of the Court of Special Sessions, and of the sentence therefor duly certified by the deputy clerk of said court, is sufficient.
    Appeal by the relators, Jennie Isaacs and Abraham Isaacs, from an order of the Supreme Court, made at the New York Special Term on the 19th day of September, 1893, and entered in the office of the clerk of -the city and county of New York, dismissing the writ of habeas corpus obtained on their behalf, and remanding them to the custody of the warden of the district prisons.

      Morris Gooclha/i-t, for relators (appellants).

      Delcmcy Nicoll and limdolph B. Martina, Jr., for the respondent.
   Parker, J.:

The commitment under which the relators have been committed to the district prisons of New York recites that they were convicted of a misdemeanor and ordered imprisoned therefor for the term of six months. After it was delivered to the proper officer for execution, the relators petitioned for and obtained a writ of habeas' corpus, commanding the warden of the prison to have the relators, together with the time and cause of their imprisonment and .detention, before a Special Term of this court. At the Special Term, where the writ was dismissed, as here, the relators and appellants assigned several grounds of error of procedure, either of which, they claimed, require a determination that they are illegally detained, and command the issuing of the writ which the Special Term ordered dismissed. They were:

First. Tbe Court of Special Sessions which pretended to try and convict the relators, was not legally constituted and its acts were, therefore, of none effect.

Second. The commitment is defective because not attested in the name of any justice or signed by the clerk of the Court of Special Sessions.

The first ground is founded upon an alleged failure of the justices to meet in convention and assign justices to hold the court in question, as provided by chapter 410, Laws of 1882, section 1572.

That section reads: The Court of Special Sessions may be held as often and at such times as the justices thereof may think expedient. It may be held by any three of the police justices, who shall sit alternately, except that one of their number shall be selected to preside, and the said justices shall meet in convention and assign the'justices to hold the several terms of said court.”

What the justices did do was to pass the following resolution: “ Three justices shall be assigned to hold the Court of Special Sessions for terms of six months, beginning January 1 and July 1, respectively, and during the period of such assignment they shall not be required to hold Police Courts. In case of the absence or disability of any justice so assigned, any other justice may act as-a member of said court. Two justices shall be assigned to each Police Court for terms beginning January 1st and July 1st, respectively. The justices holding the Police Courts in the first, second and third districts for the month of August shall also hold the Court of Special Sessions.”

And subsequently to meet in convention, and assign justices to the several courts, for terms beginning January 1 and July 1, 1893, respectively, but as the latter part of the resolution quoted provided that the justices holding police courts in the first, second and third districts for the month of August should also’ hold the Court of Special Sessions, an assignment of justices by name was not made.

The court was, in fact, held by the three police justices assigned to hold the first, second and third districts for the month of August. It would seem as if that which was done amounted to an assignment of the justices for the August term, assuming that an assignment was necessary to constitute a legal court. It was as effectual to accomplish the desired, purpose as if the justices were named.

The statute does not require that they should be named, but simply assigned, which is accomplished by the doing of an act which operates to fix, specify or select.

Declaring by resolution that the three justices holding Police Courts for that month shall also hold the Court of Special Sessions during the same time, when they have already been selected for the first-named purpose, specifies, we think, the justices with sufficient definiteness. But we prefer to rest our decision upon the broader ground, that a designation of justices to hold a given term, made by all the justices met in convention, is not essential to the creation of a legal court. That if at a duly appointed term of the court, three of the justices present themselves and proceed in its conduct, the court is legally constituted, although an assignment of justices has not been made, or, if made, for some reason the justices assigned are unable or neglect to appear.

A brief examination of the section will furnish sufficient support to this position.

The first sentence commits to the discretion of the justices thereof the authority to determine when the court shall be held.

They are not required, as are some courts, to designate in advance, and for a fixed period, the number of terms which shall be held in a county or judicial district, and fix the time when said terms are to begin. But they may at any time when they deem it expedient cause such a court to lie held. Having clothed the justices with absolute authority to hold the court whenever they should deem it expedient to do so, the statute next declares who may hold it. It does not say that three justices selected by a convention of all the justices, met for that purpose, shall hold the court, but that “it may be held by any three of the police justices.” So, if at a Court of Special Sessions, which the justices thereof have deemed expedient to hold, any three of their number sit, the court is legally constituted under the statute. The further provision of the section, that the “ justices shall meet in convention and assign the justices to hold the several terms of the said court,” does not in any wise qualify the express provision preceding it, that the court may be held by any three of the police justices.

The object which the framers of the section had in view in providing for a convention, of the justices to assign the members thereof to hold the several terms of court is apparent.

Upon them collectively devolved the duty of providing for such a number of terms of court, with justices to hold them, as will dispose of all the cases within the jurisdiction of the courts over which they are required to preside.

As all are charged with equal responsibility, and vested with equal authority, no one of them would assume to map out the work of his associates, and if he should, his labor would, quite likely, be wholly ineffectual.

The statute, therefore, provides an orderly way in which the work of such courts may be apportioned among the justices, not for any fixed period, but for such time as they may deem wise. That being done, it is subject to such changes by arrangement among themselves as the justices may be compelled to make on account of sickness, or prompted to bring about for their personal convenience.

Illness may prevent all of the justices assigned to a given term from holding it; but as we read the statute it will not result in a failure of the term if three other justices appear and sit.

The commitment which the officer was proceeding to execute consisted of a transcript of the entry of conviction on the minutes of the Court of Special Sessions, and of the sentence thereof, duly certified by the deputy clerk of said court. The contention that it is defective in that it is not attested in the name of any justice, or signed by the clerk of the Court of Special Sessions, is sought to be founded on chapter 410, Laws of 1882, section 1569, which provides that the Court of Special Sessions has jurisdiction “by warrant attested in the name of any one of the justices authorized to hold the court, signed by the clerk thereof, and entered in the minutes of the court, to enforce its judgments and orders. * * * ”

Subsequently and by chapter 269 of the Laws of 1889, section 1515 of the Consolidation Act was so amended as to provide that the clerk or deputy clerk is authorized to make and deliver to the sheriff a transcript of the entry of conviction from the minutes of the Court of Special Sessions, and of the sentence therefor, duly certified by the said clerk or deputy clerk, which shall be sufficient authority to such sheriff or deputy to execute such sentence.

This is precisely what was done, and even if section 1575 was-originally intended to. provide for such a case as this, which we do not decide, it is inconsistent with section 1575 as it now stands, which, being a later amendment, must control.

The suggestion that under section 1575 a certification of the sentence if made by the deputy clerk must be in the name of the clerk, by the deputy clerk, is without force, for the statute distinctly authorizes either the clerk or the deputy clerk to certify the sentence.

The further points made by the appellant have been considered, but do not merit discussion.

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

Van Brunt, P. J., and Follett, «T., concurred.

Order affirmed, with ten dollars costs and printing disbursements.


author: Yan Brunt, P. J.:

text:
    Louis F. Martin and Others, Respondents, v. Eliza Jane Adams and Others, as Executors, etc., Appellants.

      Case on appeal — calling upon the respondent to complete the appellants ease, so that it may contain all the evidence.

    When a case on appeal, as settled by the trial referee after the submission of amendments by the respondent, does not contain all the evidence and the referee is not then asked to certify that it does contain all the evidence, and the referee, on being thereafter asked by the appellant to order the case on file, is asked to certify that it contains all the evidence, it is improper to compel the respondent to add such testimony as may be necessary to enable the referee to make the desired certificate.
    Appeal by the defendants, Eliza Jane Adams and others, as executors of the will of Henry Adams, deceased, from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the city and county of New York on the 1st day of June, 1893, upon the motion of the plaintiffs, permitting the defendants to add by way of amendments any testimony in the case, upon the plaintiffs’ appeal, that might be necessary to enable the referee to make a certificate that it contains all the evidence and exhibits in the case.

      Pugh Porter, for the appellants.

      J. J. Adams, for the respondents.
   Yan Brunt, P. J.:

The papers in this case show that it was tried, before a referee, who dismissed the complaint on the merits, and thereafter a judgment was duly entered against the plaintiffs, and that an appeal was taken by plaintiffs to the General Term of this court, which is still pending. After the case on appeal had been printed, pursuant to notice to the defendants and respondents’ attorney, the parties appeared before the referee for the purpose of having said printed case ordered on file. At the end of this printed case was a statement that it contained all the evidence and exhibits, to which statement the attorney for the defendants respondents objected, that while the case embraced all the evidence and exhibits as settled by the referee pursuant to a case proposed on behalf of the appellants and amendments proposed by the respondents, .some evidence taken on the trial proposed neither by appellants nor respondents was not inserted; and that, therefore, the referee could not give a certificate that the printed case contained all the evidence and exhibits given and produced on the trial.

It further appears that the referee had settled the case, but that it contained no statement as settled that it contained all the evidence in the case given by either party, nor did it in fact contain such evidence; and on such settlement the referee was not requested to give any such certificate.

Upon the making of this objection, when the referee was requested to sign the case containing this statement, the appellants on that appeal consented to print in the case any additional testimony that the respondents might choose to have inserted. Whereupon, the referee postponed the final settlement of the case to permit the plaintiffs appellants to make application for a resettlement so as to allow respondents an opportunity, if they so desired, to introduce such additional testimony, in order to enable the referee to certify that the case contained all the evidence taken on the trial, so that tiie appellate court might review the facts upon the appeal. Thereupon the plaintiffs obtained an order to show cause why they should not have leave to have the case on appeal resettled for the purpose of permitting the respondents to add by way of amendment, etc. This motion was opposed upon the ground that the respondents were not interested in having the additional evidence inserted in the case, neither were they at all interested in having the facts reviewed, and that if anybody desired to have the additional evidence in, it was the appellants and not the respondents. The court, however, granted the motion permitting the respondents to add by way of amendment any testimony that might be necessary to enable the referee to make a certificate that it contained all the evidence in the case, and that the referee be required to make such certificate. And from this order this appeal is taken.

It is certainly difficult to see upon what theory any such order could be made. The papers show that at the time of the settlement of the case, the then attorney for -the plaintiffs appellants did not desire any such certificate, and did not pretend that he was entitled to the same. Subsequently, there having been a change of attorneys, the substituted attorney found it necessary for the purposes of the appeal to have that certificate. Accordingly when the referee is asked to order the case on file, he is asked to give this certificate — which if given it is admitted on all sides would have been untrue. The referee having refused, the respondents are called upon to say what they want additional in order that this certificate might be given.

It seems that if the appellants desired any such certificate, it was their duty, and not that of the respondents, to supply omissions; particularly where, when the respondents’ amendments were submitted, it was not pretended that there was any claim that the case would contain all the evidence. This, in other words, would be compelling the respondents to make up the appellants’ case — a practice which, so far as the knowledge of this court extends, has not yet obtained.

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

Rollett and Parker, JJ., concurred.

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


author: Van Brunt, P. J.:

text:
    William R. Laidlaw, Jr., Appellant, v. Russell Sage, Respondent.

      Personal injury— damages for the wrongful act of the defendant in using the plaintiff’s body as a shield against an anticipated danger from a third party.

    An action brought to recover damages for a personal injury, claimed to have been sustained by the plaintiff by reason of the alleged wrongful act of the defendant in using the plaintiff’s body to protect himself from the effects of an anticipated explosion of dynamite, is maintainable when the plaintiff’s evidence warrants the inference that the defendant, being in great fear lest a third party would carry out a threat to explode dynamite concealed in a bag then in liis hand, touched the plaintiff, who was an innocent bystander, and caused him to change his position, with the intention of using the plaintiff as a shield against the apprehended danger of .which he knew the plaintiff to be ignorant; that the third party then exploded the dynamite, and the plaintiff was injured..
    In such a state of facts the burden is thrown upon the defendant of establishing that his wrongful act in causing the plaintiff to change his position with the intention of using him as a screen from the apprehended danger did not in the slightest degree contribute to any part óf the injury which the plaintiff sustained by reason of the explosion; and it is not necessary for the plaintiff to show that he would not have been so severely injured if he had been left standing in his original position.
    Appeal by tbe plaintiff, William R. Laidlaw, Jr., from a judgment of tbe Supreme Court in favor of tbe defendant, entered in tbe office of tbe clerk of the city and county of New York, on the 24th day of June, 1893, upon tbe dismissal of tbe complaint at tbe close of the plaintiff’s evidence on tbe trial at tbe New York Circuit.

      Noah Davis, for tbe appellant.

      E. O. James, for the respondent.
   Van Brunt, P. J.:

This action was brought to recover damages because of certain alleged wrongful acts of the defendant. Tbe answer admitted some of tbe acts, but denied that any wrong bad been done by tbe defendant to tbe plaintiff.

The facts appearing upon tbe trial seem to be substantially as follows:

The plaintiff had, for a number of years, been accustomed to call upon the defendant at his office on business, two or three times a week and sometimes oftener. On the morning of the 4th of December, 1891, he went to call on the defendant at the request of his employer. Dpon entering the office occupied by Mr. Sage, he found Mr. Sage and a person having a little satchel in his hand (who was a stranger to him, but whose name was subsequently ascertained to be Norcross) standing by the entrance of the anteroom talking. The plaintiff passed in without speaking to Mr. Sage, and entered the anteroom to there await the termination of the conversation, lie stood near the center of a table at the end of the room furthest from the door at which Mr. Sage was standing, which table stood next to a railing in which there was a gate opening into a small space between the railing and a window looking upon Eector street, in which small space was a door opening into Mr. Sage’s private office. While standing at the table the plaintiff did not hear any of the conversation between the defendant and the other man. A iter he had stood there facing the window half a minute, or a minute at the outside, Mr. Sage came from behind, away from his visitor but still looking at him, and placed his hand upon the plaintiff’s shoulder without speaking to him. He then took his left hand down from the plaintiff’s shoulder, and took plaintiff’s left hand in both of his, and drew the plaintiff gently towards him, and gently turned him around and stood with one thigh resting upon the outer corner of the table. The plaintiff testified that the defendant did not use any force whatever on him, and that the only exercise of power on the part of Sage of which he was conscious at the time was that it was just sufficient to move him, but without any idea of force or anything of the sort; and that he moved voluntarily, because he offered no resistance, and that he was not conscious that Sage was pulling him at the time. The result of this change of position was to bring the body of the plaintiff between the defendant and the visitor, the body of the plaintiff covering the front of Sage’s body. After Sage had been in this position for a second or two, he spoke to the visitor and said, as the plaintiff testified: “If I trust you why can’t you trust me ? ” or, “ If you can’t trust me I can’t trust you.” At that moment an explosion took place, and the plaintiff and Mr. Sage were thrown upon the floor, a person who was standing by the Hector street window was blown through the window and killed, the visitor with whom Mr. Sage was talking was blown to pieces, and the rooms were a general wreck.

It further appears from the evidence that the stranger who stood in the doorway when the plaintiff entered had handed to the defendant the following letter: This carpet bag I hold in my hand contains ten pounds of dynamite, and if I drop this bag on the floor it will destroy this building in ruins, and kill every human being in it. I demand $1,200,000 or I’ll drop it. Will you give it? Yes or no.”

The plaintiff was severely injured by the explosion, and this action was brought to recover damages claimed to have been sustained by reason of the alleged wrongful act of the defendant in using the plaintiff’s body to protect himself from the effects of the anticipated explosion. And the question presented upon this appeal is whether this action can be maintained.

It is urged upon the part of the defendant that the plaintiff’s case wholly failed to establish that the defendant’s action was either wrongful, or that it was a proximate cause of plaintiff’s injury, or an efficient cause without which the injury would not have happened; and that Norcross being the sole cause of the injury, Sage’s act was not a proximate cause of the accident or of the damage to the plaintiff; that it did not even contribute to the accident or the damage, and hence Sage is not liable; that it was not even proved to be one of several concurring acts that produced the explosion, which explosion was the only and sole cause of plaintiff’s damage; and that the plaintiff’s testimony affirmatively establishes that his injuries were caused by the unlawful act of Norcross in exploding the dynamite, an act with which the defendant was not in any way connected, and for which, therefore, he was not responsible.

Numerous cases are cited to support the propositions which have been advanced; and the principle is invoked that an act of force done in necessary self-defense, causing injury to an innocent bystander, is da/rrmum absque i/n/¡uria,¡ for no man does wrong or contracts guilt in defending himself against an aggressor. In support of which proposition attention is called to the celebrated /Squib case, which would only tend to hold Norcross liable for the damage which he had committed.

The defendant also cites the case of Ring v. The City of Cohoes (77 N. Y. 83); Searles v. Manhattan Ry. Co. (101 id. 661); Taylor v. City of Yonkers (105 id. 203); Ayres v. Village of Hammondsport (130 id. 665); Grant v. Pa. & N. Y. Canal & R. R. Co. (133 id. 657), and other cases in support of the proposition that when several proximate causes contribute to an accident, and each is an efficient cause, without the operation of which the accident would not have happened, it may be attributed to all or any of the causes, but it cannot be attributed to a cause, unless without its operation the accident would not have happened. These cases, however, seem to us to have no application to the case at bar. Those were cases in which the question arose as to whether the plaintiff could recover because of alleged negligence of the defendant, and the proof showed that there were two causes, from either one of which the accident might have occurred, in respect to one of which the defendants were chargeable with negligence, and in respect to the other they were not. And the court held that a recovery could not be had unless it was jn’oved that the injury resulted from the cause in respect to which the defendants were chargeable with negligence.

Our attention is also called to the language of Mr. Justice Holmes in his work on the Common Law (p. 94), where it is laid down that “ the general principle of our law is that Joss from accident must lie where it falls, and this principle is not affected by the fact that a human being is the instrument of misfortune.” And the language of Mr. Justice Nelson is cited, where he says: “No case or principle can be found, or if found can be maintained, subjecting an individual to liability for an act done without fault on his part, -x- * -* All the cases concede that an injury arising from inevitable accident, or which in law or reason is the same thing, from an act that ordinary human care and foresight are unable to guard against, is but the misfortune of the sufferer, and lays no foundation for legal responsibility.” (Harvey v. Dunlop, Hill & Denio [Lalor], 194.)

The case of Brown v. Kendal (6 Cush. 292), before Chief Justice Shaw, is also cited, in which it appeared that the defendant, while trying to separate two fighting dogs, raised his stick over his shoulder in the act of striking, and accidentally hit the plaintiff in the eye, inflicting upon liim a severe injury, and in which the court held that although defendant was bound by no duty to separate the dogs, yet if he was doing a lawful act he was not liable, unless he was wanting in the care which a man of ordinary prudence would use under the circumstances, and that the burden was on the plaintiff to prove the want of such care.

These cases, also, do not seem to us to be applicable to the one at bar. There the party proceeded against was held to be without fault, and while doing a lawful act accidentally inflicted an injury upon another.

About the correctness of such a proposition we do not think there is any room for doubt. But the facts of the case at bar do not necessarily place the defendant in the position of a person doing a lawful act, and thereby causing the plaintiff to be injured. In the consideration of the testimony offered upon the part of the plaintiff, those inferences which are most favorable to the cause of action attempted to be established by him must necessarily be drawn, and the ruling of the court below can only be sustained in case upon no theory of the proof a cause of action was made out. The jury would have a right to infer from the evidence in this case that the-defendant, being in great fear lest Norcross would carry out the threat contained in his written memorandum to him, and explode the dynamite which he had in his bag, placed the plaintiff between himself and the apprehended danger as the best possible screen which he had at hand. Now, if the defendant put his hand upon, or touched the plaintiff, and caused him to change his position with that intent, he was guilty of a wrongful act towards the plaintiff ,- and if the plaintiff was injured by the happening of the anticipated catastrophe, then the burden is thrown upon the defendant of establishing that his wrongful act did not in the slightest degree contribute to any part of the injury which the plaintiff sustained by reason of the explosion. It is not necessary for the plaintiff to show that he would not have been so severely injured if he had been left standing in his original position; but the defendant having wrongfully placed him in the changed position with the intent of using him as a shield, and he being injured by the explosion which was-anticipated by the defendant, in order to escape liability for this wrongful act towards the plaintiff in thus using him as a shield, he is bound at least to show to the satisfaction of the jury that the plaintiff would have been injured to the same extent had he been left untouched.

There is no question of proximate cause. The court cannot say from the evidence introduced upon the trial that the plaintiff would have been injured to just as great extent if he had been left untouched; and the defendant -having perpetrated this wrong against the plaintiff, having done so with the wrongful intent of saving himself from injury by exposing the plaintiff to injury, cannot be heard to say that there is no proof but that he would have been injured anyhow. Being the wrongdoer in attempting to make this improper use of the plaintiff’s body, he must clear his skirts of ¡any possible inference that some at least of the injuries of the plaintiff may have resulted from his wrongful act.

The whole groundwork of the respondent’s argument is that the motion to dismiss was [iroperly granted because it was incumbent upon the plaintiff to establish that without Sage’s act he would not have been injured, thus completely turning around the question as to the burden of jn’oof. If Sage had been acting innocently, if it could not be found from the evidence that he intentionally placed this man between himself and the expected danger, this rule might ¡apply. But where his very act of placing the plaintiff in the position mentioned may have been a wrong towards the plaintiff, and may have been done by defendant with the intent of shielding himself from injury, if so done we fail to conceive why the burden of proof is not upon the defendant, rather than upon the plaintiff, to show that without defendant’s act the plaintiff would have been equally injured. And it seems to us that there is where the fallacy of the defendant’s argument lies. In all the cases cited, the party proceeded against was doing a lawful act, or was attempting to protect his property or person in a lawful manner and injury resulted.

We are of opinion, therefore, in view of the fact that from this evidence the jury might find that the defendant used this plaintiff as a shield against apprehended danger of which he knew the plaintiff to .be ignorant, that a dismissal of the complaint cannot be sustained.

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

Follett and Parker, JJ., concurred.

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


author: Patterson, J.:

text:
    John King McLanahan, Appellant, v. Jordon L. Mott and Others, Respondents.

      Lottery — corporate bonds to be redeemed before maturity, as determined by lot — what corporation is subject to the United States laws — if located in the State of New York alone it is a domestic corporation — query, if located also in another State.

    Tlie bonds of a corporation were to be issued to run 450 years, bearing interest at six per cent per annum, two per cent payable on the first day of January and two per cent on the first day of July in each year, and the remaining' two per cent to be paid with the principal upon the maturity of the bonds; it was provided that certain of the bonds, determinable by lot, were to be retired on each semi-annual interest day, and paid at their maturity value, and the directors and stockholders declared the maturity value of each bond designated by lot for retirement to be the amount of the bond and annual interest thereon at two per cent from July 1, 1893, for 450 years.

      Held, that the scheme of redemption of the bonds adopted by the corporation constituted a lottery, and was invalid and unlawful under the statutes of the United States. ■
    A corporation created by Congress for the purpose of carrying out an object respecting which it has the exclusive power to legislate, if it is located in the State of New York alone, is a domestic corporation, but, whether a domestic corporation or not, as it derives its powers and faculties from the United States, and from no other source, it is bound by whatever limitations, and is subject to whatever disabilities, grow out of the United States laws.

      Query, whether such a corporation created by Congress, and located in the State of New York and in another State, would be a domestic corporation.
    Appeal by the ■plaintiff, Jobn King McLanahan, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the city and county of New York on the 16th day of May, 1893,. upon the decision of the court rendered after a trial at the New York Special Term, sustaining a demurrer interposed by the defendants to the plaintiff’s complaint, and dismissing the complaint, with notice of an intention to bring up for review on such appeal th,e order or decision of the N'ew York Special Term, entered in said New York county clerk’s office on the 16th day of May, 1893.

      Burton N. Ha/rrison, for the appellant.

      Ba/vid MoOVu/re, for the respondents.
   Patterson, J.:

The appeal in this case is from a judgment directed at Special Term, sustaining a demurrer and dismissing the complaint to which it was interposed. The plaintiff is a stockholder in the North River Bridge Company, a corporation organized and existing under an act of the Congress of the United States (Chap. 669, Laws 1890 ; 26 Stat. at Large, 268), and authorized by its charter to construct a bridge and its approaches over the Hudson river from New York city to New Jersey, and to issue bonds and secure the same by mortgage on its property, rights and franchise. It is alleged in the complaint that the corporation, assuming to act under the authority conferred upon it by the Congress, intends and threatens and is about to issue its bonds, secured by a trust deed, to the amount of, not exceeding in the aggregate, one hundred million dollars, the principal to become due on the first day of July, A. D. 2343, and to bear interest at the rate of six per centum per annum, of which two per centum shall be payable on the first day of January, and two per centum on the first day of July in each year, and the remaining two per centum shall be payable with the principal on July 1st, A. I). 2343; the payment of the principal and interest of said bonds to be secured by a first mortgage or deed of trust upon said company’s-bridges, approaches, terminals, appurtenances and works connected therewith, and on said company’s property and rights of property of all kinds and descriptions now held, or that may hereafter be (acquired, and upon its franchise to be a corporation, and said bonds to be gradually liquidated, and to that end to be gradually paid off and redeemed on interest days at their maturity value, according to the numbers called in and designated by the trustee at least one month before each interest day, said bonds to be registered and in denominations of one hundred dollars, and to be numbered from one to one million inclusive,” etc. The general outline of a plan for raising money by putting out. a loan being thus stated, the pleader proceeds to set forth certain of its details, and that the corporation by resolution adopted the form of a bond, which was also approved by a majority of the stockholders of the company; but that the company or its directors have modified the form of the bond as proposed and adopted, and instead thereof purpose and threaten to issue a bond containing the following provision, viz.: That this bond is subject to be redeemed before maturity at its maturity value, in accordance with the provisions of the said mortgage or deed of trust.” It is then alleged in the complaint that the clause of the mortgage referred to respecting the redemption of bonds is as follows, viz.: “ Third. A sinking fund shall be created and maintained for the gradual payment or redemption of the bonds hereby secured. It shall consist of and be maintained by a payment by the said company to the said trustees, before each interest day, of $400,000, together with an additional sum of money equal to the semi-annual interest at two per centum on the total number of bonds previously redeemed and canceled as herein provided, and the said trustee shall, at least one month prior to each interest day, designate by lot as many bonds for redemption at their maturity value as the moneys in said sinking fund on such interest day will suffice to pay, and said bonds so designated shall, on such interest day, be paid and redeemed at their maturity value,” etc. It is further stated in the complaint that the directors and stockholders of the corporation have declared a certain meaning to be attached to the words, “ at their maturity value,” used in the clause of the mortgage quoted, which meaning is that for each bond of $100, designated by lot for redemption prior to maturity, there shall be paid the sum of $1,000, such fixed maturity value being arrived at by adding to the principal of $100 the items of annual interest at two per cent, from July 1, 1893, for 450 years. It is also averred that the said directors, etc., of the company, “ intend and threaten, if it should be necessary or expedient to facilitate the floating of said bonds, to make a supplemental agreement that such (ás has been stated) is the meaning (of the words maturity value,” in the instruments above mentioned); that the plaintiff has remonstrated in vain against this scheme as unlawful, and he insists that it is contrary to public policy, an abuse of the corporate powers of the defendant company, and contrary to the statutes of the State of New York, in this, among other things, that it is in violation of the statutes prohibiting lotteries and lottery schemes.” The relief prayed for is a perpetual injunction, restraining the execution of any deed of trust containing the provision referred to respecting the redemption of bonds “ at their maturity value.”

The right of the plaintiff to maintain this action is not challenged. The demurrer proceeds on the ground only that the complaint does not state facts sufficient to constitute a cause of action, and on the argument the whole subject of the legality of the scheme devised by the corporation for raising money has been brought up for judicial consideration. The general inquiry is, does the scheme adopted come under the condemnation of any statute, principle of law or well-grounded dictate of public policy ? It does not require much analyzing to ascertain that the plan objected to by the plaintiff is one which seeks to unite, in a very ingenious manner, investment, with what is wonderfully like gambling, if it is not gambling pure and simple. There is nothing unlawful in the long term the bonds have to run, although they would be practically irredeemable if all were not to mature until after the expiration of 450-years. But it is perfectly obvious that the redemption feature is the real and only attraction connected with the scheme, and that the inducement offered to purchase the bonds is the chance of holding lucky numbers, and receiving on a determination to be made by lot $1,000 for $100, possibly in six months or a year, or in one of the earlier semi-annual drawings to be made by the mortgage trustee, or, in other words, that the holder of one bond may by mere chance get in six months what would not be realized on another in 450 years. That this scheme is a lottery; that to the mere decision of chance is to be left what bonds shall be retired at the enormous increase contemplated, is as plain as if the loudest proclamation were made of it. It is not at all likely that the whole, or any considerable part of an issue of $100,000,000 of bonds in the denomination of $100 each, bearing interest at four or at six per cent, and having nearly five centuries to run, and Avith no other property or security behind it, at the date of issue than a mere mortgage on a franchise, would be marketable without some special inducement to purchasers, and that has been provided here. The redemption feature, which holds out the hope to a purchaser of speedily obtaining tenfold for his outlay, and as it were by the turn of a wheel or the casting of lots, is the real attraction. It defines the whole plan, stamping it with the charaeter of a lottery, all the real qualities of which it possesses. The element of selecting bonds for redemption is not of itself an objectionable feature. It is the chance of winning at an early drawing ten times the face value of a bond that constitutes illegality if there is any illegality in the scheme. There are various definitions of the word lottery given in the books, no one of which includes each and every known or conceivable scheme that properly may be designated by the term. It would serve no useful purpose to refer to them here. Let it suffice that we are satisfied that the scheme of redemption of the bonds adopted by this corporation constitutes a lottery in the popular as well as in the technical sense of the term, and that it is apparent that on that feature reliance is placed for finding a. market for the bonds.

There is no rigid rule of law independent of legislation, nor do we know of any requirement of a universal public policy, which absolutely condemns the plan of this particular corporation for raising money by the sale of bonds secured by mortgage, although that plan does involve a feature of redemption at enormous increase by chance. Lotteries were once not only tolerated, but were authorized and regulated by law in many countries and in States of this Union, and they exist and have recognition in at least two of such States to-day. They have been used in times past by civil governments, by ecclesiastical authorities, by academic and charitable institutions, to raise money for many of the most laudable and beneficent objects known among men. But the evils arising from the vice of gambling, of which they are a species, have induced most States to place them, under the ban of the law, and to .attach heavy penalties to the violation of statutes interdicting them. Such laws exist in the State of New York, and there are on the statute books of the United States enactments directly affecting the subject. We think the legality of the scheme under consideration must be determined by legislation affecting it, and the question, therefore, arises, what law is applicable,, that of the State of New York or of the United States %

It is earnestly urged in argument that the legality of the device under consideration must be determined by the law of the State of New York, and that as the statutes of the State relative to lotteries have been explained and interpreted by the courts, it is free from ■any taint of illegality. We suppose that the claimed application of the law of New York is based upon the circumstance that the company is regarded by the plaintiff as a domestic corporation. Undoubtedly, being created by the Congress for the purpose of carrying out an object respecting which it had the exclusive power to legislate, if it were located in the State of New York alone it would be a domestic corporation. The Code of Civil Procedure declares it to be so. (§ 3343, subd. 18.) But this corporation is located in two States, and, therefore, possibly it may not come under the designation of a domestic corporation. We do not decide that point, but ■even if it were a domestic corporation it does not follow therefrom that it possesses tlie same powers that corporations of a like kind, chartered or organized by State authority have, or that it is to be regulated or controlled by the laws applicable to them. It derives its powers and faculties from the sovereign creating it, and from no ether source, and is bound by whatever limitations and is subjected to whatever disabilities grow out of the laws of that sovereign. Indeed, it is a familiar precept that every rule of law of the sovereign creating a corporation and affecting the corporate rights and acts .and business, is just as much a part of its being as if written in its ■charter. Hence, in this case there being legislation of the Congress, which, by necessary relation, applies to this scheme, we do not consider it would be either desirable or profitable to trace the history of, or critically examine the adjudications relating to, lotteries in this ■State.

The validity of the provisions of the proposed mortgage is no.t to be tested by our law, but by the effect to be given to ■ a certain ■statute of the United States, and by that statute this scheme must be pronounced unlawful.

By section 3894 of the United States Bevised Statutes, it is made a misdemeanor, punishable with fine and imprisonment, for any person to use the mails for the purpose of sending by them a lottery ticket or of circulating any newspaper, pamphlet, circular or other publication of any kind containing any advertisement of any lottery or gift enterprise or prize scheme depending upon chance, and as this statute has been construed in the case hereafter cited, it is entirely immaterial whether the lottery, etc., is considered elsewhere legal or illegal. This emphatic denunciation of lotteries it is true has taken but the one particular form and direction, but it is 'perhaps the only way in which the Congress, with its exclusive power to regulate post offices and'the postal service, could effectively, and within its competency, legislate upon the subject at all. But the necessary result of such an enactment is to bringeschem.es like that of this corporation under the condemnation of the law. Ve do not consider it necessary to elaborate the subject. It has been treated at large in the opinion of the court by Mr. Justice Blatcheord in the Austrian bond case (Horner v. United States, 147 U. S. 449). The language quoted in that case from Judge Blodgett in United States v. Zeisler (30 Fed. Rep. 499), has a singular appropriateness, mutatis mutandis, to the case at bar. If these drawings determined only the time when the bonds would be paid, I should say that the mere determining of that time by lot or drawing would not give them the characteristics of a lottery; but when a city or a government, in order to make an inducement for péople to buy their bonds, holds out large prizes to be drawn by chance or determined by lot in the manner in which prizes are usually determined in even an honestly conducted lottery, it seems to me it comes clearly and distinctly within the inhibiting clause of the statute,” etc., “ and hence it seems to me that the purpose of the scheme was not only to determine by lot when the bonds were to be paid, but also to determine certain exPraordvncury chances to the holders of the fortunate numbers drawn? In the present case one of the “extraordinary chances” is that of afortúnate holder getting 450 years’ interest at two per cent in six months.

The judgment at Special Term is reversed and judgment directed overruling the demurrer, and for the relief demanded in the complaint, with costs.

Follett and Parker, JJ., concurred.

Judgment reversed and judgment directed overruling demurrer, and for the relief demanded in the complaint, with costs.