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

text:
    Charles Lex Brooke, as Receiver, etc., of William C. Rogers, Plaintiff, v. The Tradesmen’s National Bank, Defendant.

      Dismissal of a complaint — what objections a/i'e available at General Term —failure of a bank to pay a depositor’s cheek or note — measure of damages

    An. objection to tbe sufficiency of a complaint, not raised in the trial court, and which might have been avoided by amendment if taken there, and which was not stated as a ground for the dismissal of the complaint, is not available at General Term on the hearing of exceptions ordered to bo heard there in the first instance on the dismissal of the complaint.
    But in such a case, an objection to the complaint which shows that the action can ■ not be maintained at all is available at General Term, although not raised below,
    The measure of damages for the unauthorized refusal of a bank to pay the note of a depositor who has funds on deposit sufficient for the purpose, is the amount of the actual loss sustained by the depositor, naturally resulting from the breach of contract arising from the relation of debtor and creditor existing between a bank and its depositor, according to the usual course of things, namely, the amount of the debt, with interest and costs.
    The complaint, in an action brought by the receiver of a judgment, debtor against a bank, alleged that the bank wrongfully neglected to pay a note for 8517.51, drawn by the debtor and made payable at the banK, where he had funds on deposit to the amount of §611.08 ; and that by reason thereof, certain creditors of the debtor entered judgment against him for §8,000, and issued execution, by means of which his business, valued at $50,000, was ruined, for which amount judgment was demanded.

      Held, that the damages claimed were not those which naturally arose from the breach of contract between a debtor and creditor, and, hence, that the action was not maintainable, and that a dismissal of the complaint should be upheld.
    Motion by the plaintiff, Charles Lex Brooke, as receiver of the property of William C. Rogers, a judgment debtor, for a new trial, upon exceptions ordered to be heard at a General Term in the first instance, by an order made oil the dismissal of the complaint at the New York Circuit, and entered in the office of the clerk of the city and county of New York on the 16th day of January, 1893,

      II. R. Lea/oitt, for the plaintiff.

      O. R. Rushmore, for the defendant.
   Van Brunt, P. J.:

This action is brought by the plaintiff as receiver of one William C. Rogers, a judgment debtor, to recover damages sustained by said Rogers because of the failure of the defendant to pay a note of said Rogers which had been made payable at the defendant’s bank, the said Rogers having at the time of such refusal on deposit with the defendant more than sufficient money to pay said note.

The plaintiff does not claim to recover as such damages the amount of the deposit, but certain special damages arising from the fact that in consequence of the failure of the bank to pay the note in question, certain creditors of Rogers had the right to enter judgment for some $8,000 immediately and issue execution thereon, which they . did, under which execution the sheriff levied upon the stock and fixtures of said Rogers at his store and remained in possession thereof for a period of about three weeks, by reason whereof it is-claimed that said Rogers was unable to attend to his business, and did not attend to the same, and said business was thereby ruined and the credit of Rogers lost, and said Rogers was forced thereby to, and did, give up business, and that the value of said business was the sum of $50,000, for which sum judgment was demanded.

Upon the case coming on for trial the counsel for the defendant moved to dismiss tlie complaint upon tlie ground that the complaint did not state facts sufficient to constitute a cause of action, in that it disclosed a cause of action which could not be maintained by the plaintiff as receiver of tlie property of the judgment debtor, and set forth a cause for damage for tort, and is one to which such receiver could not succeed, hut was-personal to the judgment debtor, being not transferable in its nature. The court dismissed tbe complaint and tbe plaintiff duly excepted, and this is the exception which was ordered to be heard in the first instance at the General Term.-

This case having heretofore been before tlie court upon a previous, occasion and argued but not decided because of defects in tlie papers, tbe question arose as to whether the plaintiff could maintain this action in any event without more specific allegations showing some duty upon the part of the defendant to pay the note in question other than that disclosed by the complaint, and in tbe points submitted upon this argument, the counsel have addressed themselves somewhat to this point.

But it seems to us tliat tliis question cannot be considered upon this motion for tlie reason that no sncb ground was stated upon the-dismissal of the complaint, and it being a ground _ which might have been avoided by amendment, which if objection had been taken the court might have allowed upon proper terms, it cannot be made available here.

■ The plaintiff disclaims that the action is an action ex delicto, but that on the contrary it is simply an action for damages for the breach of a contract, and although it is alleged in the complaint that the bank wrongfully, negligently and unjustly refused to pay the note and that by reason thereof said Rogers suffered special damages, the use of these terms does not turn the complaint setting forth a contract and a breach thereof into an action sounding in tort.

Treating, therefore, the complaint as it is interpreted by the counsel' for the plaintiff, can the special damages alleged be recovered against the defendant ?

There seems to be no dispute between the parties but that the relation existing between a bank and its depositor is that of debtor and creditor, and that the law implies a contract upon the part of the bank to disburse money standing to the depositor’s credit, only upon his order and in conformity with his directions.

It is Undoubtedly the rule that the refusal to pay a check upon presentation gives the drawer a right of action in case he has funds in the bank to meet the check, and the refusal to pay was without authority, and that the measure of damages will be the amount of actual loss the party has sustained, and that damages which may fairly and ‘reasonably be considered as naturally arising from the breach of contract according to the usual course of things are always recoverable.

In applying this rule to the case at bar, how can it be claimed that because the bank neglected to pay the note of Rogers for $511.51, he having on deposit with the bank at the time $611.08, the result which in the usual course of things would follow was the immediate entry of a judgment against Rogers for over $8,000, and the seizure of his business by the sheriff ? This condition of things arose because of an agreement made between Rogers and his •creditors, of which the bank had no notice, and which they had no reason to suppose existed.

Now, as has already been stated, the relation between the bank .and its depositor is that of debtor and creditor, and that only; and the ordinary liability to which a debtor subjects himself for nonpayment of a debt in an action for damages for tbe breach of his contract to pay is that he be mulcted in damages to the amount of his debt with interest and costs, and these are the only damages which in such case might fairly and reasonably be considered as naturally arising from the breach of the contract according to the usual course of things.

As well might it be said that if A. promises to pay B. a certain sum on a given day, and B. had agreed with 0. to make a payment to him upon that date or subject himself to a forfeiture which would be very detrimental to his interest, and B. relied upon receiving the money from A. to make the payment, that A., upon making default in payment, would be liable in damages for the whole interest which B. had forfeited because he was unable in consequence of A.’s default to B., to make his payment to 0.

The damages claimed in this action are clearly not those which naturally arose from the breach of a contract between debtor and creditor, and, therefore, cannot be recovered. '

It may be said that this question was not raised in the court below, and the point is subject to the same criticism that is made in reference to the duty of the bank to pay the note'in question. But it does not stand upon the same footing, as, if the action cannot be maintained at all, the court having dismissed the complaint the appellate court will not interfere with such dismissal even though it was upon an erroneous ground.

The exceptions should, therefore, be overruled, and judgment entered upon the dismissal, with costs in this court and in the court below.

O’Brien, J., concurred.

Ingraham, J.

There being no cause of action alleged in the complaint, I think the court was required to dismiss the complaint. I, therefore, concur.

Exceptions overruled, and judgment entered upon the dismissal, with costs in this court and in the court below.


source: Caselaw Access Project

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

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Alfonso Bracco, Appellant.

      Assault committed by throwing vitriol — identification of the defendant.

    Upon appeal from a conviction under an indictment which charged the defendant with having committed an assault by throwing oil of vitriol upon the complainant, the evidence showed that the complainant was injured by vitriol, but the testimony of the complainant identifying the defendant as the thrower of the vitriol, upon which the conviction depended, was uncertain and contradicted. It appeared, however, that there was no physical impossibilities present which: proved beyond doubt that his account of the assault was not true.

      Held, that the uncertainty of the evidence did not raise a doubt as to the justice of the verdict sufficient to call upon the General Term to set the verdict aside.
    Appeal by tlie defendant, Alfonso Braceo, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York, rendered and entered on the 30th day of December, 1891, upon the verdict of a jury convicting the defendant of the crime of assault in the second degree.

      Chas. JE. La Barbier, for the appellant.

      Henry B. B. Steepler, Assistant JDistriot Attorney, for the respondent.
   Ingraham, J.:

The defendant was indicted for assault upon one Luigi Mastrangelo by throwing upon said Mastrangelo a quantity of oil of vitriol, .and was tried and convicted at the Court of General Sessions before the recorder.

The defendant, on the appeal, strenuously insisted that the evidence offered on the part of the People was so uncertain and contradictory that it Avas not sufficient to sustain the verdict of the Pu7-

Upon a careful examination of the whole testimony, however, we are of the opinion that the verdict was sustained by the evidence. The fact that Mastrangelo was very seriously injured by oil of vitriol that was thrown upon his face, which caused severe burns upon his face and neck and the loss of one eye, is conceded, and the only question at issue was whether the defendant threw the vitriol.

According to the complainant’s story, on the 8th of January, 1891, as he was walking up First avenue at half-past six in the morning, on the corner of Fifteenth street and First avenue, he saw the defendant, who threw something in his face; that it was just daybreak, and he recognized the defendant and that he then put his hands to his face and fell down, when the defendant ran away.

It further appeared that the complainant went to his house and was subsequently taken to the hospital; that he charged the defendant with the commission of the offense; that the defendant was brought to the hospital and identified by him as the person who threw the vitriol upon him, and that the defendant was well known to him, having been married to his daughter. It also appeared that the defendant and complainant had had trouble before on account of a dispute between the defendant and his wife, the daughter of the complainant.

The complainant was cross-examined at considerable length, and it is claimed that his. testimony on this trial was contradictory to that made before the police magistrate and statements made to witnesses who called upon him immediately after the accident.

Both the defendant and complainant were Italians, and the complainant's testimony was given through an interpreter. A careful examination of all the complainant’s testimony fails to shew such serious contradiction of his testimony as would justify us in holding that the case should not have been submitted to the jury.

It is clear that the complainant was injured, and it is hardly possible to imagine that he inflicted these injuries upon himself for the purpose of revenge upon the defendant, and the fact that he claimed to recognize the defendant immediately after the injury, and while he was suffering great agony, and identified him when produced at the hospital within a few hours of the time of the occurrence, is inconsistent with the claim that he did not recognize the defendant, and after the injury made up the story for the purpose of injuring him.

The defendant was sworn as a witness, and testified that on the morning of the occurrence he was in bed until seven o’clock, and produced several witnesses to corroborate his story, but I think, conceding that these witnesses testified to substantially the truth, it was not inconsistent with the commission of the crime by the defendant.

The defendant lived at 283 Mott street, and it was not at all impossible for him to have gone from First avenue and Fifteenth street to his residence in a half hour.

One Lampiazi was called as a witness for the defendant, and swore that he went to the defendant’s residence at about a quarter to seven on the morning the crime was committed to purchase some wine; that the defendant was then in bed, and called the witness up to his bedroom and asked him to come later, and that he (the witness) returned about a quarter-past seven and found the defendant dressing.

The witness does not attempt to fix the time with any degree of certainty; he did not look at a watch or clock, and only says it was about a quarter to seven.

The defendant himself testified that he was in bed on that morning asleep at half-past six, and did not awake until a little after seven, and that he then saw the witness Lampiazi.

None of the other witnesses called by the defendant testified to seeing him before seven o’clock. There were two witnesses called who swore that on a morning early in January of that year they Were walking down First avenue, and sawr a man on First avenue and Fifteenth street writh his hands to his face, apparently injured, and at the same time saw another man running down Fifteenth street, and that the man running down Fifteenth street was not the defendant.

There is no certainty that these witnesses saw the defendant on that morning, or that the man that they saw running away was the person who committed the crime, and one of these witnesses stated that the complainant in the case did not look like the man he saw who was injured.

It also appeared that the defendant was engaged in the manufacture of soda water; that he used sulphuric acid, and had before that time used oil of vitriol in his business.

From this statement of the evidence it seems to be clear that a fair question was presented for the jury as to whether or not they were satisfied beyond reasonable doubt that the defendant was the person who coiiimitted the assault, and that the verdict should not be disturbed.

There are several exceptions to the admission and rejection of evidence, but they are clearly without merit and do not require notice-

I think, therefore, the judgment should be affirmed.

Van Brunt, P. J.:

I cannot concur with Mr. Justice Ingraham in the conclusion arrived at by him in his opinion as to the strength of the "evidence offered upon the part of the People in the case at bar. The conviction of the defendant necessarily depended upon the evidence of the complainant, and if we are to believe his testimony in regard to his recognition of the defendant prior to the assault, then there would be no doubt of the guilt of the defendant, because the complainant testifies to a complete recognition of the defendant. It further appears from the evidence that ill-feeling had existed between the defendant and the complainant; and whether some portion of this recognition did not arise from the conclusion that because of this ilfiwill the assault had been made by the defendant, does not, to my mind, seem clear.

It appears from the evidence that the complainant was not a particularly reliable witness. He testifies that it was daybreak at half-past six on the morning of the eighth of January. And I suppose that the court may take judicial notice of the fact that the sun does not rise until about half-past seven in that season of the year, and the day does not break at half-past six, but it is substantially the darkest part of the night. Furthermore, the evidence of the witness in ' respect to subsequent recognition of the defendant is shown to be false by the proof as to his condition, which showed that it was impossible for him to have seen the defendant at the times at which he stated he did subsequent to the happening of the assault.

The point that the defendant was accustomed in his business to use vitriol, does not seem to me to be of the slightest importance upon the question of his guilt. As well might an apothecary be accused and convicted of the crime of poisoning because he was in the habit of handling poison daily in his business.

The alibi attempted to be proved upon the part of the defendant was not at all satisfactory. In fact alibis are the least reliable species of evidence offered in courts of justice. They are so easily fabricated — -the change of a day or of a very short period of time, or a mere lapse of memory, will all establish an apparent alibi. But in the case at bar there seems to be no proof of so exact and convincing a character as would necessarily lead the court to the conelusion that the defendant was in bed when the assault occurred, as he claims to have been. But upon a consideration of the whole of the evidence, although, perhaps if I had been on the jury, I might not have come to the conclusion that the evidence established the guilt of the defendant beyond a reasonable doubt in view of tlie infirmity of the evidence offered upon the part of the People, I do not think there is sufficient doubt as to the justice of the verdict to call upon this court to set the same aside. The jury had the benefit of the oral testimony of the witnesses, and they were better able to judge as to the credibility to be given to such testimony, and notwithstanding the contradictions of the witness upon whose testimony the conviction depends, there were no physical impossibilities present which proved beyond doubt that his account of the assault was not true.

The conviction should be affirmed.

O’Brien, J., concurred.

Oonviction affirmed.


author: Per Curiam :

text:
    Sells E. Woodhull, Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York and The City of Brooklyn, Appellants.

      Case on appeal must be settled and signed, a/nd ordered filed — effect of an omission— what brought up fm■ review.

    When a case on appeal has neither been settled and signed by the judge who tried the action, as required by section 997 of the Code of Civil Procedure, nor been ordered to be filed with the clerk and annexed to the judgment roll, as ’ prescribed by rule 35 of the General Rules of Practice, it forms no part of the judgment roll and is not brought up for review by the General Term by a notice of appeal from the judgment and from an order denying a motion for a new trial.
    Under such circumstances, a notice of appeal from the judgment and from an order denying a motion for a new trial made upon the minutes, brings up for review the judgment roll and the order only, and when no error appears upon the face of either, the judgment and order must be affirmed.
    Separate appeals by the' respective defendants, the Mayor, Aldermen and Commonalty of the city of New York and the city of Brooklyn, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 12th day of December, 1892, upon a verdict in favor of the plaintiff rendered at the New York Circuit, as reduced in amount, and from an order entered in said clerk’s office January 6, 1893, denying a motion for a new trial.

      Theodore Gonnoly and Terence Fcvrley, for the appellants.

      Paul A. De Fere and Willimn J. Qaynor, for the respondent.
   Per Curiam :

December 8, 1892, a verdict in favor of the plaintiff for $4,000 damages was rendered. On the next day, the defendants moved on the judge’s minutes for a new trial, “ on all the grounds specified in section 999 of the Code of Civil Procedure.” On the same day an order was entered granting the motion, unless the plaintiff consents to the reduction thereof to the sum of $1,500, and if such consent be made, that said motion for a new trial be denied.”

December tenth, the plaintiff filed a stipulation reducing the verdict to $1,500, and on the 12th of December, 1892, a judgment was entered for $1,500 damages and $221.01 costs — total, $1,121.01. On the 6th of January, 1893 (twenty-five days after the entry of judgment), a further order was entered reciting that “a verdict having been rendered on the second cause of action in favor of the plaintiff for the sum of four thousand dollars ($4,000), and the said verdict having been reduced to fifteen hundred dollars ($1,500), and defendants having moved to set aside said verdict, and for a new trial on all the grounds specified in section 999 of the Code of Civil Procedure,” and directing, “that the said motion be and is hereby in all respects denied.” One of the grounds mentioned in section 999 is that “the verdict is for * * * insufficient damages.” Afterwards, and in the month of January, 1893, the defendants severally appealed from the judgment and from the order entered January 6, 1893. The record before us contains the judgment roll, the order of January sixth, the notices of appeal and what purports to be a case containing exceptions. This case sets forth the questions put to the witnesses and the answers given by them, and is evidently nothing but a copy of 'the stenographer’s minutes of the proceedings which took place on the trial. This is a violation- of general rule No. 3h This so-called case has never been settled by the judge who tried it, as required by section 997 of the Code of Civil Procedure. No. 35 of the General Buies of Practice provides that “no case or exceptions to be annexed to the judgment roll shall hereafter be filed by the clerk of the court, unless the same is so ordered by the judge or referee who tried the cause.” The so-called case not having been ordered filed with the clerk and annexed to the judgment roll, it forms no part of the roll and is not brought, by the notice of appeal from the judgment, before this court for review. The case not having been settled nor signed by the judge who tried it, we cannot review the order of January 6, 1893, denying a motion for a new trial, even if we assume it was made “ at the same term ” at which the action was tried. Heretofore the court has often simply declined to hear cases presented by such records, and has allowed them to be withdrawn for correction. But this has not been sufficient to stop this irregular practice. The notices of appeal do bring before this court for review the judgment roll and the order of January sixth, but nothing else. No error appearing-upon the face of either, both must be affirmed, with costs.

Present — Van Brunt, P. J., and O’Brien and Follett, JJ.

Judgment and order affirmed, with costs.


text:
    The People of the State of New York ex rel. Henrietta Fisk v. The Board of Education of the City of New York.

      Removal of the principals of public schools in New York — Section 1042 of the New York City Consolidation Act.

    Section 1042 of the New York City Consolidation Act of 1882 (Chap. 410) which provides that “ Any teacher may be removed bj^ the Board of Education upon the recommendation of the city superintendent, * * * but only by a vote of three-fourths of all the members of said board,” applies to principals of the public schools.
    The Board of Education has the power and right to remove any teacher, upon the recommendation of the city superintendent of schools, without giving any hearing or assigning any cause.

      In acting on the removal of a teacher, the Board of Education is not confined to a direct vote upon that question, hut may effect the removal hy adopting hy a vote of the requisite majority, a report of one of its committees, accompanied by a resolution for such removal, where it appears that it was the intent and purpose of the board to include the passing of the resolution in the adoption of the report.
    An employee of a municipality does not, by simple appointment to employment, acquire a vested right to the continuance of such employment, unless it is so given by statute.
    Certiorari to review the proceedings of the Board of Education of the city of New York in removing the relator, Henrietta Fisk, from the position of a principal of the primary department of public school No. 71 in the city of New York.

      B. O. GhePioood, for the relator.

      JR. G. Bem'dslee, for the respondent.
   Per Curiam :

The relator was a principal in a public school of this city, and was removed from her place by a vote of three-fourths of all the members of the Board of Education upon the recommendation of the city superintendent, for conduct unbecoming a teacher.

Section 1042 of the New York City Consolidation Act of 1882 (Chap. 410) provides as follows:

“ Any teacher may he removed by the Board of Education upon the recommendation of the city superintendent, or of a majority of the trustees for the ward, or of a majority of the inspectors for the district, but only by a vote of three-fourths of all the members of said board.”

, This language, as applicable to a teacher, is so plain as to admit seemingly of but one construction. It is insisted, however, hy the appellant that it ‘does not apply to principals ; but a reference to sections 1042, 1035 and 1038 of the Consolidation Act shows very clearly that principals are expressly included as teachers in all provisions of the statute relating to their appointment and removal. Section 1042, therefore, authorized the Board of Education by a three-fourths vote to remove a principal upon the recommendation of the city superintendent, and in the case of Reople ex rel. Gorlitz v. Board of Education (52 N. Y. Super. Ct. 520) it was held that such removal may be without cause asserted or shown or opportunity to be heard against the removal. The reasoning of that case and the authorities referred to therein justified the conclusion reached by that court in the construction thus given to this section of the Consolidation Act, and it is needless to refer to such author, ities ór to say more than that we regard the reasoning and the conclusion there reached to be decisive of the power thus claimed for the Board of Education. But we do not think that it requires the citation of any authorities to establish the right of the Board of Education to remove any teacher upon the recommendation of the city superintendent without giving any hearing or assigning any cause, for the simple reason that the statute plainly says that they shall have that power.

We should rest our decision upon the statute, were it not that, we deem it proper to correct what we regard to be an error in the statement of counsel for appellant. In his brief he says that “ without any pretext or reason given, Mr. Jasper again recommended her removal. The committee on teachers held a meeting six days later without the examination of a single witness or any opportunity to accused to produce one. The relator and her counsel were excluded, and the committee forthwith made a report recommending the removal of relator, and to that end reporting a resolution to that effect.”

The return to the writ shows — and, there is nothing in the record to the contrary — that the recommendation of the superintendent was referred by the Board to its committee on teachers, and that after its consideration by such committee the relator was notified to attend, and did attend with her counsel, and had an opportunity to be heard and to produce Avitnesses and testimony in her behalf, and that it was after examining the relator herself that the committee, with the knowledge thus derived, and the knowledge which they had from a prior investigation of charges against the relator, all of which are fully set forth in the return, deemed it proper to adopt a resolution for her removal in accordance with the recommendation of the superintendent.

The only serious question upon this appeal is as to the procedure of the Board in acting upon the report of the committee. The com-, mittee on teachers, in their report to the Board, after reciting the facts of the recommendation for removal and the result of their deliberations, say, “Your committee, therefore, submit for adoption the following resolution: IZexolved, that Miss Henrietta Fisk, principal of Primary Department No. II, upon the recommendation of the City Superintendent of Schools, be and she is hereby removed.” In executive session, the president announced for consideration this report of the committee on teachers, and the return shows that, after some time spent in consideration of the report, “ the president put the question whether the Board would adopt said report, and it was decided in the affirmative ” — more than three-fourths voting therefor.

The appellant now insists that under the true construction to be given to section 1042, the vote should be a direct one, and that the mere adoption of the report did not carry the resolution, and that, therefore, the- resolution was not passed, and no direct vote was taken on the removal.

As to the necessity for a direct vote, we find no language in the section which would require such a procedure; but in the other suggestion there is much force, viz., that the adoption of the report did not necessarily include the passage of the resolution, which was what was needed to determine its action. In our opinion, however, it would be giving too forced and strained a construction to the acts of the Board if, contrary to what appears to have been the intent and purpose, it should be held that the adoption of the report did not include the passage of the resolution, but that the latter should have been presented and directly voted upon, or that it should have been referred to by the president in putting the motion. Ve think that no doubt arises as to what was intended, and that ho different result would be reached by sending the matter back to the Board to have them vote directly upon it, except possibly litigation arising out of the question of salary and a renewal of a controversy between the Board and the relator, which seemingly had extended over some years prior to her final removal. Taking the entire proceedings together, we think that the presentation of the report embodying tli s resolution, and the adoption of the report by a three-fourths vote, carried with it an adoption of the resolution itself, which was sufficient evidence of the action of the Board, and resulted in the removal of the relator.

As to the constitutional question, by simple appointment to employment an employee does not acquire a vested right to such employment unless so given by statute.

We are of opinion, therefore, that the writ should be dismissed, with costs.

Present — Yan Brunt, P. J., and O’Brien, J.

Writ dismissed, with costs.


author: Van Brunt, P. J.:

text:
    William Baumgarten, Appellant, v. William G. Nichols and Others, Defendants; Herter Brothers and William S. Nichols, Respondents.

      Conveyance to q corporation — condition therein as to its control, by the majority stockholder — combination to prevent it.

    A complaint, in an action brought to set aside a conveyance of partnership assets to a corporatmn organized by the members of the firm and a third party, made under an agreement that such supposed independent trustee and stockholder should act “in the interests of the corporation,” alleged that the third party, a supposed independent trustee and stockholder in the business corporation, whose holding cf stock, gave him the balance of power, had combined with the stockholder holding stock next largest in amount to that held by the plaintiff, who was the largest stockholder, to transfer the control of the management from the plaintiff to the majority created by such combination, but did not allege that the combination had done anything in the management of the business of the corporation detrimental to its interests, or allege a return or offer to return to such third party the money invested by him in the stock of the corporation on the faith of such conveyance of the partnership assets to it by the plaintiff and the next largest stockholder.

      Held, that the complaint did not state facts sufficient to constitute a cause of action for an annulment of the conveyance to the corporation.
    Appeal by the plaintiff, William Baumgarten, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 12th day of January, 1893, upon a decision rendered at the New York Special Term sustaining the demurrers of the defendants, William S. Nichols and Herter Bros., a corporation, to the plaintiff’s amended complaint.
    The demurrers were upon the ground that the complaint did not state facts sufficient to constitute a cause of action.

      A. L. Pvncoffs, for the appellant.

      J. Thomson and J. H. Seymour, for the respondents.
   Van Brunt, P. J.:

This action is brought to set aside a conveyance made to the corporation of Herter Bros, by the plaintiff and one "William G. Nichols, on or about the 2d of Febuary, 1891.

The complaint alleges that prior to said date the plaintiff and said William G. Nichols wrere copartners in business under the firm name of Herter Bros., and that in said copartnership the plaintiff was the senior partner and owner of a majority interest therein, the plaintiff being entitled to sixty per cent of the profits, and the defendant Nichols to thirty per cent thereof, they being the only partners in the firm; that the defendant Norton had been for several years in the' employment of the plaintiff as salesman, and familiar with the affairs and business of said firm; that during the year preceding the said deed mentioned, the said William G. Nichols repeatedly expressed to the plaintiff his desire to retire from the active participation in said business, and proposed to the plaintiff the formation of a corporation in the nature of a stock company to which the business of said firm should be transferred, and that the plaintiff and said William G. Nichols should receive shares of stock in said corporation representing their proportionate interest in the assets thereof, which proposition was accepted by the plaintiff; that said Nichols further proposed that said Norton should be asked to contribute to the assets of said corporation by paying for and receiving stock in said" corporation so that said Norton should be independently interested in the assets' and business of said corporation; that the plaintiff assented to the proposition, and thereafter proposed to said Norton that he should invest a certain sum in cash in the stock of said corporation, and Norton accepted the proposition and agreed with the plaintiff to make such investment on his own behalf, and to pay for an interest in the stock of the corporation to be formed the sum of $50,000 in cash; that it was thereupon agreed between the plaintiff, Nichols and Norton, that a corporation should be formed to which should be transferred the capital account of th§ plaintiff as the same stood upon the books of said Herter Bros, on the 1st of February, 1890, and also the capital account of said Nichols, and the good will of the old firm of Herter Bros., including the right to use the-firm name of Herter Bros., and to which corporation there should also be transferred and paid over an additional sum of $50,000 in cash; that such corporation should have a capital stock, in all, of $375,000, of which the plaintiff was to receive $175,000 on the transfer by him of his interest in said firm, and the defendant Nichols was to receive $115,000 on a like transfer by him,'and the defendant Norton, on the payment and investment by him on his individual behalf of the sum of $50,000, should receive shares in the capital stock of said corporation to the amount of $60,000 par value. (There seems to be some discrepancy in the figures here stated, but they are so contained in the complaint.) The complaint further alleges that it was further agreed between the plaintiff and the defendants, Nichols and Norton, that the trustees who were to conduct the business of the corporation for the first year thereof “ should be the defendants, William G. Nichols, and William S. Nichols, the father of the said William G. Nichols, who should represent upon said board the interests of said defendant, William G. Nichols, and this plaintiff, William Bauingarten, and the brother of this plaintiff, Emile Bauingarten, who should represent the interests of this plaintiff in said corporation, and the defendant, Arthur Norton, who should represent the separate individual interest of said Norton, consisting of his individual investment in the stock and assets thereof,” the parties seeming to have the idea which too commonly pervades trustees of corporations that they were made such trustees for the purpose of looking after individual interests, instead of the interests of the corporation which they were supposed to represent.

The complaint further alleges that pursuant to this agreement, and for the purpose of carrying the same into effect, the plaintiff united with Nichols in making and filing a certificate for the incorporation of a stock company to he known as Herter Bros., the names of the trustees who were to conduct the business for the first year being inserted as above stated to have been agreed upon, and subsequently the plaintiff united with Nichols in the execution of the conveyance and transfer to such corporation, of the property and business of such copartnership ; that at the first meeting held for the purpose of organization of such corporation the defendant Norton stated that he Avas not able to comply with his agreement to pay the sum of $50*000 in cash for an interest in the assets of said corporation, and Avas prepared to pay only the sum of $30,000; ” that said Norton thereupon paid over to said corporation $30,000 in cash as his OAvn indiAÚdual payment, and representing the individua^ investment of said Norton in the assets of said corporation, and the remaining capital stock of said corporation, to Avit,, the sum of $345,000, was issued to the plaintiff and the defendant, "William G. Nichols, in consideration of the conveyance by said plaintiff and said Nichols to the corporation of the business and property of said Herter Bros.

The complaint further alleges that in joining in the making and execution of such conveyance the plaintiff relied upon the agreements hereinbefore set forth and the facts hereinbefore stated as to the respective interests to be taken and paid for by the parties named, the-allotment and payment for such interests being material facts in said agreement as affecting the action of the plaintiff with respect to the carying out of the same.

The complaint further alleges that owing to the premises there existed between the plaintiff and the defendants, William G. Nichols and Arthur Norton, relations of trust and confidence, they being engaged in a common enterprise^ and that this plaintiff relied in consenting to the formation of such corporation and to the conveyance of the property of the firm of Herter Bros, thereto on the good faith of such defendants, and on the fact that they owed to this plaintiff the duty of disclosing to him all material facts relating to their connection with each other and said corporation.”

The complaint then alleges that the true facts and relations, between the parties to said agreement were not those stated to and relied upon by the plaintiff as hereinbefore stated; that Norton did not and did not intend to become interested in said corporation by the investment therein of money on his individual behalf, and did not intend to and did not acquire as independent owner thereof, the interest in said corporation agreed to be transferred to him; that it was not true that Norton paid his OAvn money for an interest in said corporation, but said money Avas given or advanced by the defendant, William G. Nichols, and was in fact the money of Nichols, and that the fact Avas that Nichols intended to and did acquire an additional interest in the property, sufficient, when added to his interest, to confer upon said Nichols the control of the corporation as against the plaintiff: and that all these things were concealed from the plaintiff, the object of such concealment upon the part of Nichols being to take away from the plaintiff the control of the business of Herter Bros, and obtain the same himself. These allegations are amplified in the ■ complaint, but it is not necessary to refer to them more at length.

The complaint then alleges that .the reason he consented “ to the formation of the corporation in which Norton was to be a stockholder, and the conveyance of the property of the firm of Herter Bros, to such corporation, was that plaintiff relied on the fact that the defendant Norton would act as such stockholder in the interests of sand corporation” (which seems to be the only allegation in this complaint that any trustee was to act in accordance with the duties Which his office devolved upon him), “ and that there was nothing-in his relation, either to this plaintiff or to the defendant, William G. Nichols, which could in any way influence him, or which might ■tend to prevent him from acting with impartiality in any conflict which might arise between this plaintiff and the defendant, William G. Nichols.” Then follows the allegation:

“ That no money has been paid into the treasury of the corporation by any persons except the plaintiff and the defendants, William G. Nichols and Arthur Norton, and that all other persons apj>earing as stockholders of record on the books of such corporation, and any persons to whom certificates may have been transferred, hold their stock without having paid any consideration for the same, or with full knowledge of the said fraudulent concealment, and of the deceit practiced on this plaintiff, or both.”

To this complaint, the defendants, Herter Bros, and the defendant, William S. Nichols, demurred upon the ground that it did not state facts sufficient to constitute a cause of action. These ■demurrers being sustained, from the interlocutory judgment thereupon entered this appeal is taken.

It may be sufficient answer to this complaint to say that Norton had paid $30,000 in cash into this corporation on the strength of the transfer to it of the business of the firm and of property belonging to the plaintiff and the defendant Nichols, and until that money is returned to him, it is difficult to see how the plaintiff can have annulled and set aside the transaction in which Norton advanced this money. As far as this point is concerned, it is entirely immaterial as to whether Nichols advanced the money to Norton or not. Even if he did, it was Norton’s individual money, and he would be liable to Nichols for the repayment thereof. And certainly before the corporation, into which he has put this money upon the strength of the receipt of this property, can be deprived of that property and his money rendered valueless, Norton must be reinstated in the position he occupied prior to the payment in of the money. One of the first principles in the law of rescission is that what has been received must be returned, and this seems to have been entirely lost, sight of in the previous consideration of this case.

But aside from this, no ground for setting aside this conveyance: is set out in this complaint. It is manifest that the plaintiff supposed when Norton was given the balance of power in this corporation that he was going to use this balance of power for the purpose of: keeping the plaintiff in, and he has found himself mistaken. ■

The defendant Nichols seems to have captured the independent; trustee, who alone was to look out for the interests of the corporation. And if the result of the combination of the majority is-, that the minority must lose their control, that is only the natural result which always happens in the management of corporate affairs-— the majority of the stock controls.

Now it is to be observed that as far as the defendant Norton is. concerned all the allegations in the complaint are that he was to put. in $30,000 as his own individual payment. There is no allegation that he represented or that the plaintiff supposed that he had $30,000 of his own to put in. But the plaintiff assumes that, although Norton might borrow the money from all the world, he. was precluded from borrowing the same from Nichols. And.yet we fail to find, in all the allegations in relation to the condition of' affairs upon which plaintiff alleges that he relied, that there was any representation upon the part of Norton or Nichols as to how Norton should get the money which he was to put into this corporation.

The allegation that there was any relation existing between the. parties which required a disclosure as to the means by which Norton was to procure the money that he was to put into this business is a. clear assumption. There is nothing in the complaint which bears out any such conclusion. Certainly if Norton had gone to the plaintiff to borrow this money Nichols would have had no cause for complaint. How then can it be assumed that because he borrowed the money of Nichols a fraud has been perpetrated 1

There is no allegation that either Nichols or Norton have done anything in the management of the business of this corporation detrimental to its interests.

It is alleged that this combination between Nichols and Norton Was made to take away from the plaintiff the control of the business theretofore carried on by Herter Bros., and to obtain the same himself. The complaint contains no evidence of the carrying out of any such design; and if it did the plaintiff asserts the fact to be that the defendant Norton was to act as such stockholder in the interests of the corporation, and he might think such action was necessary in the interests of the corporation, and who is to dispute his judgment ?

It would thus appear that the whole atmosphere of the case indicates that the plaintiff was of the opinion that Norton would act in his interest, but for some reason he has concluded that he is mistaken in that regard, and that Norton will probably transfer his allegiance to the other largest stockholder in the concern.

We do not see how, under such a state of facts, the plaintiff can claim to set aside a conveyance made to the corporation.

The judgment should be affirmed, with costs.

O’Brien, J., concurred.

Judgment affirmed, with costs.


author: Follett, J.:

text:
    The People of the State of New York, Respondent, v. John F. Evans, Appellant.

      La/rceny — obtaining money by trick or device as security, from one seeking employment —form of the indictment.

    The crime of larceny, within the first paragraph of section 528 of the Penal Code, is committed when a person, by trick or device, with the intent to deprive the owner thereof, and convert it to his own use, obtains possession of money deposited with him by the owner thereof as security, and not as a loan, to be returned at tlie termination of a contract for the employment of the owner of the money.
    In such a case an indictment which charges that the defendant “feloniously did steal, take and carry away ” the property of the complainant described therein, without charging the means by which the property was obtained, is sufficient to support a conviction.
    An indictment which charges that the defendant took *$300 in United States notes and also “divers other” bank notes of the value of $300, charges the taking of $600, and will, in respect to the amount, sustain a conviction for grand larceny.
    Appeal by the defendant, John F. Evans, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York, rendered and entered on the 11th day of August, 1892, upon the verdict of a jury, convicting the defendant of the crime of grand larceny in the first degree.

      JP. J. McManus, for the appellant.

      Henry JB. JB. Stapler, for the respondent.
   Follett, J.:

The following facts were established by uncontradicted evidence, indeed, the defendant, who was a witness in his own behalf, testified to the most of them :

In 1892 the defendant was engaged in the laundry business at No. 2160 Seventh avenue and in the stove business at No. 35 Peck slip, but whether this latter business was carried on on his own account does not appear. In the latter part of March, 1892, either on the twenty-eighth or thirty-first, the defendant caused to be published in the World newspaper an advertisement, of which the following is a copy : “ Manager. A young man as manager, who can loan or invest $600 to $800; salary $18 ; money secured; experience unnecessary.”

The complainant, Carl Sopliers, who came to this country from Denmark in April, 1891, saw the advertisement and wrote the defendant, who replied. The result of the correspondence was that the complainant and his wife called on the defendant at No. 35 Peck slip on the 1st day of April, 1892. Later in the day, the three in company went to the laundry at No. 2160 Seventh avenue. On that day an oral contract was entered into between the complainant and the defendant, by which the former was engaged to superintend the laundry for 'eighteen dollars per week, and at the same time the complainant agreed to deliver to the defendant $600 as security, he testified, for his good conduct and integrity in the management of the business. The defendant testified that the contract was that the sum should be loaned to him. This was the issue of fact on which the case turned, and about which more will be said later on.

The parties agreed to meet on Monday, April fourth, at the office of "William King Hall, who was defendant’s legal adviser. His office was on the corner of Warren and Church streets in this city. The complainant, his wife and the defendant met at the time and place mentioned. Hall drafted and the defendant executed and delivered to the complainant a mortgage on all his right, title and interest in the machinery, furniture and fixtures, and all other goods and chattels in the premises occupied by him as a laundry at No. 2160 Seventh avenue, t.o secure the payment of $600 on or about July 4, 1892. It will be observed that the mortgage does not provide for the payment of interest. It was then agreed that the complainant should begin work on the following Monday, April eleventh, at which time he went to the laundry to begin service, but, the defendant saying that certain repairs were being made which were uncompleted, the time of the commencement of the complainant’s employment was postponed until Wednesday, the thirteenth, on which day, at the defendant’s request, the time of beginning-work was again postponed until Monday, April eighteenth, when the complainant began work. At the end of the first week the complainant was paid eighteen dollars, his stipulated wages; at the end of the second he was paid fifteen dollars; at the end of the third, twelve dollars; and at the end of the fourth, ten dollars. Immediately after this, the complainant stopped working for the defendant, and demanded the return of his money, which has never been returned.

June 22, 1892, the defendant was arrested on the charge of having stolen the $600. * On his person four advertisements were found, all of which had been published in the World, and of which the following are copies:

“ For sale. $300 cash; profitable business; experience unnecessary ; plenty of machinery; exoerienced hands; call to-day. Purdy, 2160 Seventh Avenue.”
“Wanted. Active young man as delivery driver; must have $300 cash; salary to commence $10; quick advancement for smart man. Marvin, World.”
“Wanted. Young man as office assistant and delivery driver; must furnish $250 cash; salary to commence $10; advancement. Andrews, World Office.”
“ For sale. $300 cash necessary to establish a profitable business; great chance for lady or gentleman; call to-day. Purdy, 2160 Seventh Avenue.”

The defendant was indicted on June twenty-eighth, and convicted July 19,1892, of grand larceny. He testified on cross-examination that on April J, 1892, he had in his employ a Miss Mann and a Miss Kessler, both of whom he secured through advertisements, and that he borrowed of one $150 and of the other $200, and never had paid them. It was also shown that the defendant had no legal title to the property mortgaged, having purchased it on executory contracts, the title to remain in the vendors until the purchase price was paid. The defendant did not testify that he disclosed to the complainant the fact that he had no title to the property. The complainant testified that defendant represented the property as free from all incumbrance except a mortgage for $350, which was to be paid the next day, and, perhaps, was paid. The defendant does not deny having made this representation. By the uncontradicted evidence and the testimony of the defendant, he obtained possession of the $600 by fraudulent and false representations and pretenses, and was guilty of larceny as described by the second paragraph of section 528 of the Penal Code, and it appeared that he was at about the same time engaged in the commission of similar wrongs upon others.

Under such circumstances, the jury was justified in disbelieving him and all others who were so closely connected with the transaction that they probably knew his purposes. The complainant and his wife testified that there was no agreement to loan the money, but that it was deposited with the defendant as security that the complainant should honestly and faithfully discharge his duties, and that when either party elected to end the contract of employment the $600 should be returned. On the contrary, the defendant, his lawyer and a person present in the office when the mortgage was drawn, testified that the $600 was loaned by the complainant to the defendant. The learned recorder submitted this question to the jury in a charge to which no exception was taken. The jury was instructed that if they found that the transaction was not a loan, but a mere deposit of money as security, to be returned at the termination of the contract of employment, and that if they further found that the defendant obtained possession of the money by a trick or device, with intent to deprive the complainant of it and convert it to his own use, the defendant was guilty of grand larceny.

These instructions are justified by many cases decided before and since the adoption of the Penal Code.

The jury having found these issues of fact in favor of the People, the crime committed fell within the first paragraph of section 528 of the Penal Code, which provides: “ A person who, with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person, either (1) takes from the possession of the true owner * * any money * * * is guilty of larceny.” The section also provides that whoever “ takes from the possession of the true owner * * * or obtains from such person by color or aid of fraudulent or false representation or pretense * * * any money, personal property * * * is guilty of larceny.”

The indictment charges: The said John P. Evans, late of the city of New York, in the county of New York aforesaid, on the 4th day of April, in the year of our Lord one thousand eight hundred and ninety-two, at the city and county aforesaid, with force and arms, in the day time of said day ” (hereof follows a description of the property taken) the goods, chattels and personal property of one Carl Sophers then and there being found, then and .there feloniously did steal, take and carry away, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity.”

Section 275 of the Code of Criminal Procedure provides that the indictment must contain * * * (2) a plain and concise statement of the act constituting the crime, without unnecessary repetition.”

Section 284, subdivision 6, provides that an indictment shall be held sufficient when the act or omission charged as the crime is plainly and concisely.set forth.”

This indictment is not sufficient to authorize the People to show that the defendant acquired possession of the property by color or aid of fraudulent or false representation or pretense. (People v. Dumar, 106 N. Y. 502.) In order to sustain a conviction under that sentence of the statute, the indictment must charge the means by which the property was obtained.

In People v. Morse (99 N. Y. 662), the defendant obtained possession of $600 by substantially the same means adopted by the defendant in the case at bar. An indictment was found charging him with grand larceny under the first provision of section 528. An examination of the record on the appeal in that action shows that the indictments in that case and in the present case are identical. Morse gave the complainant a chattel mortgage as security for the payment of the money, with interest. Nevertheless a conviction under the indictment was sustained, it being held that the acceptance by the complainant of a promise that the money should be repaid was not conclusive evidence that he- intended to part with liis title to it.

In People v. Gottschalk (66 Hun, 61), the indictment charged, as in the case at bar, the defendant with having taken from the owner $200, intending to deprive him of it and to appropriate it to fhe use of the taker. The means by which it was acquired were not set forth. The offense charged in that indictment was committed in the same way as the crime in this case, and the jury having found that the transaction was not a loan but a deposit, and also having found the guilty intent of the defendant, a conviction was had which was sustained.

The indictment in the case at bar charged the defendant with larceny, and the evidence was sufficient to convict him of the crime charged. There is no variance between the offense charged and the crime proved.

It is insisted that the indictment charges the defendant with taking only $300 — -petit larceny instead of grand larceny. The indictment charges that the defendant took $300 in United States treasury notes and also divers other ” bank notes of the value of $300. This plainly charges the taking of $600.

The evidence of Danmyer that defendant never had the title to the mortgaged property bore upon the intent of the defendant in obtaining the money and was competent. The contract between "Wilcke and the defendant of April 8, 1892, was not • received in evidence, and the preliminary testimony by which the existence of a contract of that date was shown could not have q>rejudiced the defendant. The defendant was a witness in his own behalf, and it was shown by his cross-examination that he had, through advertisements, obtained money from Miss Mann and Miss Kessler, employees in his laundry, which he had not repaid, and also that he obtained money from others by like means. This evidence bore on the credibility of the defendant, and besides it tended to show that about the time this crime was charged to have been committed he was engaged in the commission of similar offenses, and it was competent as bearing upon the question with what intent did he obtain the $600. Further, the questions by which the evidence was elicited were simply objected to, no ground being .stated.

No error was committed on the trial which affected “ the substantial rights of the parties,” and the judgment should be affirmed.

Yan Brunt, P. J., and O’Brien, J., concurred.

Judgment affirmed.


text:
    Daniel Daly, Plaintiff, v. Mendel W. Greenberg, Defendant.

      Meaning of the word “ issue" in a will.

    A testator, by bis will, devised certain real estate to bis daughter as follows, viz., “ during her natural life and if at the time of her death she shall have lawful issue then living I devise to such child or children the said house, lot of ground and appurtenances, to them, their heirs and assigns forever.”

      Meld, that by this clause, when considered in connection with other provisions of the will, the testator intended to use the word “issue” as synonymous with “children,” and not as including grandchildren or descendants generally.
    Submission of a controversy pursuant to section 1279 of the Code of Civil Procedure, for tlie purpose of obtaining a construction of a will and enforcing the specific performance by the defendant of a contract for the purchase of real property. The question presented was whether the plaintiff acquired a title in fee simple to a certain lot of land by the conveyance thereof to him set forth in the submission, and whether the plaintiff is entitled to judgment against the defendant for the performance by the defendant of the contract mentioned in the submission.

      Dcmiel Daly, for the plaintiff.

      Samuel OwnvpbeU, for the defendant.
   Follett, J.:

January 1, 1817, Ithamar Healy died seized of a lot in the city of New York, the title to which is the subject of this controversy. He left a last will and testament, which was duly probated, by which he devised to his eldest daughter this lot “ during her natural life and if at the time of her death she shall have lawful issue then living I devise to such child or children the said house, lot of ground and appurtenances to them, their heirs and assigns forever.” Ann Healy and John Dick intermarried. John Dick died many years ago and Ann Healy Dick died March 20, 1890, leaving a last will and testament, by which she devised and bequeathed all of her estate to her two daughters, Louisa A. Brush and Clarissa A. Jackson. Said Ann Healy Dick had a son, Thomas Scott Dick, who died before her, leaving two sons, Joseph 0. Dick and Arthur W. Dick. These sons were the only heirs of Thomas S. Dick. February 23, 1880, Arthur ~W. Dick left his home, saying that he was going to kill himself, since which time he has not been heard from. He had a wife, who is still living, but had no childi’en. Afterwards Louisa A. Brush, Clarissa A. Jackson and Joseph C. Dick conveyed the lot to the plaintiff. January 24, 1893, the parties to this controversy entered into a written contract whereby the plaintiff agreed to sell and convey to the defendant, who agreed to purchase and pay for this land. The defendant now refuses to perform his contract on the ground that the plaintiff is not the owner of the entire fee. The .question submitted is, did the plaintiff acquire title in fee simple by the conveyance from Louisa A. Brush, Clarissa A. Jackson and Joseph C. Dick? Otherwise stated, the question is, does the word “ issue,” as used in the sixth clause, by which the lot was devised to Ann Healy Dick, embrace all of her descendants living at her death, or only her children then living ? If the term embraces all of her descendants living at her death it is possible that Arthur "W. Dick, her grandson (a great-grandson of testator), was alive at the date of her death, March 20, 1890, in which event he took an interest in. the property. It seems to us that by the terms of the sixth clause the word “ issue ” was defined by the testator to mean children and that it does not include grandchildren. The words are : “ If at the time of her (Ann ITealy Dick) death she shall have lawful issue then living, I devise to such child or children the said house, lot of ground and appurtenances to them, their heirs and assigns forever.”

That the word “ issue ” was understood by the testator to mean children is made apparent by the language of the fourth, fifth and seventh clauses. By the fourth clause, real estate was devised by the testator to his son William Healy “ during his natural life, and if at the time of his death he shall have lawful issue then living, I devise to such child or children then living, the house, lot of ground and appurtenances to them or their heirs and assigns forever.”

By the fifth clause the testator devised to his son Ezra, a lot of land during his life, and the remainder was disposed Of in the same words quoted from the fourth and sixth clauses. By the seventh clause the testator devised real estate to his daughter during her natural life and disposed of the remainder in the same language employed by him in the fourth, fifth and sixth clauses. Here we have four independent clauses, each devising a piece of real estate for life to a child, with the remainder disposed of by the same language. The words issue ” and “ children ” as used in this will have the same meaning and are synonymous. The case falls within the rule laid down in Palmer v. Horn (84 N. Y. 516), where it was said: “ The word ‘ issue ’ is an ambiguous term. It may mean descendants generally, or merely children ; and whether in a will it shall be held to mean the one or the other depends upon the intention of the testator, as derived from the context of the entire will, or such extrinsic circumstances as can be considered.” Here it is clear, from indications found in this will, that the testatrix used the term “ issue ” as synonymous with children. She did so in several clauses of the will, and in every clause under consideration the words “ said children ” refer to the “ lawful issue ” before specified. By the word “ children ” the testatrix, herself, has interpreted the word “issue.” ■,

It is urged that in the following clause the word “ issue ” is used in. a broader sense, embracing all descendants, and, therefore, it should be held that it was used in the same sense in the fourth, fifth, sixth and seventh clauses of the will. The clause referred to is as follows : “And further, if any or either of my said children (referring to the four mentioned) should die leaving no lawful issue, then I will and ordain that the part or parts hereby devised to such one or more as shall so die, shall be equally divided among the survivor or survivors of them, their heirs and assigns forever.”

This clause wras designed to provide for an event which has not happened, for Ann Ilealy Dick did hot die without issue, but left her surviving two children, and the language of the sixth clause, “ I devise to such child or children,” carried the entire remainder to them. It follows that the plaintiff by the conveyance mentioned, acquired the absolute fee in the land, and that the defendant must perform his contract, with costs.

Yan Brunt, P. J., and O’Brien, J., concurred.

Judgment for plaintiff, with costs.


author: O’Brien, J.:

text:
    William Knox, an Infant, etc., Respondent, v. The Hall Steam Power Company, Appellant.

      freight elevator — injury received by falling down the shaft —intention of using it as a passenger elevator, without right — breakage of a chain across the shaft opening — contributory negligence.

    In an action brought by a boy about twelve years old, against the party upon whom devolved the care and management of an elevator in a building used for manufacturing purposes, to recover damages for personal injuries sustained by falling down the elevator shaft, the evidence showed' that the elevator was a freight and not a passenger elevator, although persons sometimes rode upon it . accompanying freight or by permission of the elevator boy ; that there were stairs throughout the building ; that the shaft openings were guarded by gates which could be opened from either side, and also by a chain held across by a hook.
    The plaintiff, who was in the employ of a tenant of an upper floor of the building, testified that on being sent out on an errand, which it appeared did not require or entitle him to the use of the elevator, he went to the shaft and, the gates being open, threw his weight upon the chain and looked over to see if the elevator was coming, instead of shaking the elevator rope, which it appeared, he knew was the usual means of summoning the elevator; that the chain broke with his weight and he fell down the shaft, receiving the injuries complained of.

      Held, that in deliberately placing himself in danger by putting his weight upon a chain which was not intended for that purpose, in an attempt to use the elevator without right, the plaintiff was guilty of contributory negligence.
    Appeal by the defendant, the Hall Steam Power 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 11th day of May, 1892, upon a verdict rendered at the New York Circuit, and from an order entered on the 16th day of May, 1892, denying the defendant’s motion for a new trial made upon the minutes, and entered in said clerk’s office on the 16th day of May, 1892.

      Jamen Dwrme, for the appellant.

      James M. Smith, for the respondent*
   O’Brien, J.:

This action was brought by plaintiff, a boy about twelve years old, to recover damages for injuries sustained in falling down an elevator shaft on premises leased by defendant. In the building was a freight elevator, the care and management of which devolved on defendant, and which was used by the several tenants who occupied portions of the premises. In front of the opening to the shaft was a chain fastened by a hook, and in addition two iron gates about six feet high, which could be opened when needed for placing freight on the elevator, and when not so needed could be closed. These gates when closed were fastened with a piece of iron, hook shaped, which could be removed from either the inside or the outside of each landing, and when removed would permit of the opening of the gates. The building was also provided from top to bottom with a staircase connected with each floor, and affording the means to tenants and their employees of reaching their several floors. The manner in which the elevator was constructed and the uses to which it was put, as shown by all the witnesses, demonstrates that it was a freight and not a passenger elevator, and while it is true that frequently tenants or their employees rode upon such elevator, their presence there was usually in connection with freight which they were engaged in taking -up to or down from the various floors in the building. Occasionally, too, the elevator boy would permit other boys, or even tenants, to ride on the elevator, in which, however, there was a cardboard sign bearing the following printed notice : “ This is not a passenger elevator ; all persons riding on it do so at their own risk.” The elevator boy testified that this sign had been called to the attention of the plaintiff; but without attaching any weight to this testimony, which was denied by plaintiff, we have the plaintiff’s own statement to the effect that the elevator boy sometimes prevented him from riding on the elevator, and compelled him to walk up the stairs, and that when he did ride it was only after obtaining the elevator boy’s consent. Plaintiff was asked if he had ever been told by his employer to ride on the elevator, to which he made answer: “Yes, if I had any freight with me, he told me.” Plaintiff’s employers occupied a portion of the fourth floor of the building, and were engaged in the manufacture of looking glasses, and plaintiff’s occupation consisted of sweeping about the premises and running errands.

With these facts showing the character of the building, occupied as it was by persons engaged in manufacturing or similar business, and the construction of the elevator, the guards placed about it on each floor and the use to which it was applied in moving freight for tenants, we are brought to a consideration of the question of defendant’s responsibility for the injuries suffered by plaintiff under the circumstances narrated by him.

The plaintiff testified that at ten o’clock in the morning he was going out for beer ; that he did not go on the stairs and “ rattle the chain ” — which was the means resorted to by those who desired to 1 attract the attention of the boy in the elevator for the purpose of having it either hoisted or lowered — but that, finding the gates which protected the elevator shaft open, he went toward the shaft and looked over the chain to see if the elevator was coming up; that he leaned on this chain, and as Jie did so it broke; that he held on to it until “ it slapped me against the wall and I let go of it, and it knocked me down four stories.” He further testified that he went for beer three times a day ; that he rode on the elevator, but that sometimes the elevator boy would refuse to let him ride, and that then he walked. The chain upon which the plaintiff leaned was fastened by a hook which was so placed that it could be removed and let down when necessary for the purpose of permitting freight to be taken on or off the elevator. He further testified that on occasions Vhen he either got on or off the elevator the gates were shut by the elevator hoy, who also put the chain up.

By plaintiff’s witness, one of his employers, it was shown that on the evening before the accident the gates on that floor were closed and fastened, and that next morning prior to the accident they were in the same condition. No testimony was given to show that these gates were left open by defendant’s employees, nor was there any testimony in the case showing just how the gates, which were closed prior to the accident, happened to he open at the time the plaintiff Was proceeding on his errand. He testified that when he went out the doors were open, but, as stated, his employer testified that when he saw the gate that morning it was locked, and that one standing on the landing could open the door by lifting the latch from the inside and the outside; “ this was a regular steel wire; it may have been iron.” This testimony, therefore, did not furnish proof of negligence on the part of defendant in leaving such gates open, and this ground may be disregarded.

Apart, however, from the gates being open, it was shown that the proximate cause of the injuries was the imperfect and defective condition of the hook to which the chain was attached upon which the plaintiff leaned. The only notice of such defect brought home to defendant was the fact that the day before the elevator boy called the attention of the engineer of the building to the insecurity of such hook. That defendant had actual notice of the defective hook is not claimed, and it is doubtful if this evidence is sufficient to prove constructive notice of such defect or to present the question of defendant’s negligence. But assuming such to be the case, there is the remaining question as to whether or not the burden placed upon the plaintiff of showing freedom from contributory negligence was sustained. The plaintiff was over eleven years old, and, according to the testimony, had gone to different schools seven years, and was regarded as a bright boy, “pretty smart when he went to work in that building.” One of the witnesses testified respecting plaintiff that he found him an exceedingly intelligent hoy. And as shown by the plaintiff’s own examination, he was familiar with the methods employed to summon the elevator, and knew the uses to which it was applied. Notwithstanding such knowledge, he purposely refrained from either walking down the stairs or, if he was-desirous of soliciting a ride, summoning the elevator by going up on the steps and shaking the elevator rope or chain, but, the gatés protecting the elevator being open, he saw fit to place his weight upon the chain and look down the shaft to ascertain if the elevator was. coming up.

As said in Greany v. Long Island R. R. Co. (101 N. Y. 423): “ It would, be error for a trial court to grant a nonsuit if by any allowable deduction from the facts proved a cause of action might be sustained by the plaintiff, and when such a ruling has been upheld by reason of the contributory negligence of the person injured, it appeared that such negligence was conclusively established by evidence which left nothing either of inference or of fact in doubt or to be settled by a jury.” Upon appeal, for the purpose of sustaining a judgment, the court will indulge in every fair inference or presumption, and where, as here, the question relates to whether or not there was sufficient evidence as to plaintiffs freedom from, contributory negligence, the nile just referred to should be applied. But applying this rule, which is as .strongly in plaintiff’s favor as language could express it, to the facts as shown by the plaintiff’s own testimony, we fail to see how this judgment can be sustained. No-inference that can be drawn from the testimony and no presumption that can be indulged in is consistent with the exercise of that care and prudence which the law exacts from a boy of the age and intelligence of the plaintiff. At the time of the accident he was not. engaged in handling any freight for his employers, but had been sent upon an errand for beer, which should have been discharged by going down the stairs, instead of waiting to see if he'could obtain permission from the elevator boy to ride. This latter desire was. seemingly so strong with him that, disregarding the ordinary precautions of prudence and care, he proceeded to the elevator shaft and leaned the weight of his body upon a chain for the purpose of looking down and ascertaining if the elevator was coming up. Such conduct cannot be regarded as furnishing evidence that he was free-from negligence that contributed to his injuries, but on the contrary* we fail to see why his leaning upon the chain did not constitute negligence on his part in depending upon the security of an appliance on which, under the circumstances shown, he had no right to rely.

Had this been a passenger elevator for the use of tenants in the building and their employees, then there might be some argument based upon the claim that the failure to provide suitable and properly secured chains or other safeguards across the opening was such negligence that one who had a right to use such elevator, and who, relying on the invitation and the right to enter upon the same, was injured, could recover the damages which he sustained by the failure to perform the obligations thus imposed upon those having the care and management of such elevator. But where, as here, the plaintiff proceeded to the opening in the elevator shaft, which, when the elevator was not at that floor, was secured by iron gates six feet high, closed and fastened with a latch, and thus deliberately, without having a right when going on errands to ride on such elevator, placed himself in a position of danger, and did more by putting the weight of his body upon a chain which was not intended for that purpose, so that he might look over and down the shaft, we fail to And any such case as justified inferences favorable to the burden which the law places upon a plaintiff of showing freedom from contributory negligence.

Upon this ground the defendant'moved for a dismissal of the •complaint, and subsequently for a direction in its favor, which motions, having been denied, were duly excepted to, and thus the question which we have discussed was directly presented. Having reached the conclusion that the disposition of these motions made by the trial judge was erroneous, we are of opinion that the judgment appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.

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

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


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    Thomas M. Hart, Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York, Appellant.

      Attorney and client — contingent fee — settlement of the suit by the client — proseeution of the suit by the attorney for his own benefit.

    The provisions of section 66 of the Code of Civil Procedure, which make an attorney’s compensation a matter of agreement, and give him a lien therefor upon his client’s cause of action which cannot he affected hy any settlement between the parties, do not prevent a party, who has given his attorney a right, to a specific share in any amount that may he recovered hy judgment or settlement, from settling the action, in good faith, without the attorney’s consent, and after notice of his lien to the opposite party.
    Where, however, the client is not responsible, and the payment of the whole amount of the settlement to him might result in prejudice to the attorney, it is the duty of the court to permit the attorney to proceed with the action for his own benefit, unless his share of the amount of the settlement is paid to him within a specified time.
    Appeal by the defendant, the Mayor, Aldermen and Commonalty of the city of New York, from an order of the Supreme Court, made at the New York Special Term at Chambers, and entered in the office of the clerk of the city and county of New York on the 3d day of March, 1893, granting leave to the plaintiff’s attorney, John C. Robinson, to prosecute the suit to final judgment, for his own benefit, in order to recover the amount of his lien for services.

      Sidney J. Go wen, for the appellant.

      L. JE. Ghittenden, for the respondent.
   O’Brien, J.:

This action was brought for the recovery of $2,040, plaintiff’s salary as an inspector of masonry. An agreement was made between the plaintiff and his attorney, Robinson, that in consideration of professional services to be rendered in the action the attorney was to have half of the claim or fifty per cent of the recovery. Notice of' this agreement was served on counsel for defendant.

The latter endeavored to reach a settlement with the plaintiff and his attorney, but an impediment to this was encountered in the person of the' attorney, who refused to assent to a settlement. Subsequently the defendant settled with plaintiff, in the face of the attorney’s notice of lien, for the sum of $800. This settlement and the release to defendant were then interposed by an amended answer. The plaintiff’s attorney then moved for an order to be permitted to prosecute the action for his own benefit, which at first was denied upon the ground that no leave was necessary and that the attorney could proceed with the action. Thereafter, on the case being reached for trial before the same judge who denied the motion, he concluded, contrary to his former opinion, that leave of the court was necessary, and thereupon granted leave to apply anew, which was done, and such leave was granted by an order, from which the defendants now appeal.

The question of an attorney’s lien and the mode of its enforcement have frequently been before our courts, and many cases might be cited which carefully review these subjects as they existed prior to and since the enactment of the present section 66 of the Code of Civil Procedure. As the latter is now controlling, it would be useless to go over the ground already covered, it being sufficient upon the facts here appearing to refer to a few of the cases which have come before the courts since the enactment of the section of the Code referred to and deduce therefrom our conclusion. Section 66 of the Code provides that, “the compensation of an attorney or counsellor for his services is governed by agreement express or implied.” In addition, it gives the attorney a lien upon the client’s cause of action, and prescribes that it is not to be affected “ by any settlement between the parties before or after judgment.

The construction placed upon this section is that the lien which thus attaches in the attorney’s favor cannot be impaired or destroyed by collusion or fraud, and in cases where this is made to appear the court has undoubted power, and will exercise it, to set aside a judgment, if such has been procured in an action, to the end that an attorney may proceed and enforce the lien or claim upon the cause of action. The authorities, therefore, which bear upon cases wherein the element of fraud or collusion is present are to be carefully distinguished from a case which presents facts similar to those in the case at bar. There is no suggestion here of fraud or collusion, but a question as to whether or not a person who has given to his attorney a right to one-half of any amount that may be recovered by judgment or by way of settlement as and for his compensation, is thereby debarred and prevented from settling the action without such attorney’s consent; and if the client makes such settlement in good faith, whether the action can thereafter be prosecuted for the benefit solely of the attorney.

As already shown, the section (66) provides that the compensation is to be determined by agreement express or implied. The notice served upon, and which binds the defendant, states that the attorney has “ a lien on the cause of action herein to the amount of one-lialf of any judgment, settlement or recovery therein, for professional services rendered to the plaintiff in this action, and I request you to make no settlement thereof with any person except myself without due notice to me and provision for the payment of the amount of said lien.”

We do not think that it can be seriously contended that this form of notice should be so construed as to be extended in favor of respondent’s view that the plaintiff had divested himself of all right of settlement. Its language is plain that the attorney was to have one-half of the amount of any settlement for 'his professional services, and this is followed, it is true, by a request that the defendant should make no settlement except with the attorney. After having attempted, however, to negotiate such a settlement with the attorney and failed, it was entirely legal for the defendant to settle with the plaintiff and thus buy its peace. As said in Lee v. V. O. Co. (126 N. Y. 587): “We are of the opinion that the existence of such a lien in favor of the attorneys does not confer a right on them to stand in the way of a settlement of an action which is desired by the parties and which does not prejudice any right of the attorneys. We do not think that such an agreement deprives a party of the right to control the management of his own cause and to determine when the litigation shall cease and how far it shall be extended. The client still remains the lawful owner of the cause of action and is not bound to continue the litigation for the benefit of his attorneys when he judges it prudent to stop, provided he is willing and able to satisfy his attorneys’ just claims. In fact, the lien under the agreement was intended for and operates only as a security for the attorneys’ legal claims, and unless those are prejudiced by the client’s contract she has unrestricted control of the subject of the action and the terms upon which a settlement shall be effected.” And in Pool v. Belcha (131 N. Y. 204), it is said : “ The lien secured to an attorney by section 66 of the Code does not prevent the party who owns the judgment from receiving payment thereof and executing a discharge. When it is shown that such payment or discharge will operate to deprive the attorney of his costs, the court has power to protect him, but it cannot be assumed that a settlement is in fraud of his rights. Until the lien of the attorney is asserted in some way the judgment remains the property of the client.” And in the same case it is said: “ In order to warrant the court in disregarding a settlement and release made in an action, it must be shown that to give full effect to them will operate as a fraud upon the attorney or at least to his prejudice, by depriving him of his costs or turning him over to an irresponsible client.”

Here it is made to appear that the plaintiff is^not responsible and the payment of the whole amount of $800 might result in prejudice to the attorney, and we think that upon this fact appearing, it was the duty of the court to have permitted the attorney to' proceed with the action unless, within a time to be fixed in the order, one-half of the amount given upon .the settlement was paid to the attorney.

The order should, therefore, be so modified, and as thus modified affirmed, without costs to either party.

Yan Brunt, P. J., concurred.

Order modified as directed in opinion, and as modified affirmed, without costs to either party.