author: Yan Brunt, P. J.':

text:
    EUNICE A. BIGELOW, Plaintiff, v. WILLIAM J. BAILEY, Appellant, Impleaded, etc.

      Mechanic’s Ken under chapter 342 of 1885 — when it expires, if continued, by oi'der under section 6 of said act — a referee in surplus-money proceedings should make findings of fact in his report,

      A mechanic’s lien on property in the city of New York, filed under chapter 342 of the Laws of 1885, was about to expire when, pursuant to section 6 of said act, it was continued by an order made by a court of record, and a new docket of the lien was made hy the clerk of said court stating that fact.

      Meld, that as the legislature had not limited the time when a lien, so continued by order, should expire, it must exist until the order was vacated by the court, or until the lien was disposed of in the way provided by the statute.

      Harrow v. Morgan (65 N. Y., 333) distinguished.

      A referee, in surplus-money proceedings, must state in his report the facts which he has found at the request of either party, to the end that the defeated party, if he so elects, may found his appeal upon the report, and upon the judgment -or order entered thereon, without making a case.
    ■ Appeal by the defendant William J. Bailey from tile report of a referee, in proceedings to reach surplus moneys on a mortgage foreclosure and from an order confirming sucli report, entered in the clerk’s ■office of New York county on the 21st day of November, 1890.

      James P. Campbell, for the appellant.

      John C. Shaw, for Bloomingdale Store and Apartment Company, respondent.
   Yan Brunt, P. J.':

■ The facts material to the point raised upon this appeal are as follows :

Sarah J. Doying, being the owner of premises situated at Ninth avenue and Sixty-ninth street in the city of New York, mortgaged the same to John C. Shaw, which mortgage was duly assigned to the plaintiff in this action by Shaw. In October, 1887, the appellant ■duly filed a lien against said premises for labor and materials ■furnished for buildings which were being erected on said premises, which was duly docketed in the office of. the clerk of the city and county of New York. In May, 1888, the said Sarah J. Doying conveyed the said premises to the said John C. Shaw. In July, 1888, ■one Meyer, who had also filed a lien against these premises, commenced an action to foreclose the' same making the appellant Bailey a party defendant as a lienor, and Bailey duly filed a notice of lis pendens. In October, 1888, Bailey procured an order from the Court of Common Pleas which provided that his lien “ be and hereby is continued pursuant to section 0, chapter 342 of the Laws of 1885,” and the clerk of the city and county of New York was directed to make a new docket of the hen continued by said order, which he did. In November, 1888, John C. Shaw conveyed the premises in question to the Bloomingdale Store and Apartment Company. In February, 1889, this action to foreclose said mortgage was begun, the above-named lienors being parties defendant, and such proceedings were had therein that, in April, 1890, the premises were sold under a decree of foreclosure and sale entered in this action, and in May, 1889, a surplus resulting upon such sale was paid to the chamberlain. In June the lien suit brought by Meyer was discontinued by consent, and the notices of lis pendens canceled. The appellant then filed his claim to the surplus moneys. In July the appellant Bailey moved to set aside the order discontinuing the action of Meyer, which was denied, and in August, upon the application of the said Bloomingdale Store and Apartment Company, an order of reference was made referring it to a referee to determinq the priority of claims upon said surplus moneys; and,.after a hearing, the referee reported in favor of the Bloomingdale Store and Apartment Company, which report being confirmed at Special Term, from the order thereupon entered this appeal is taken.

It should be observed that the referee, in the making up of his report, has totally failed to comply with the requirements of the Code, which requires the court or referee trying the cause to-incorporate in the decision the facts found, so that a party may found his appeal upon the report and judgment or order entered thereon, if it is claimed, as it is in the case at bar, that upon the facts found the conclusion is erroneous, without the unnecessary labor of making a case. The referee in the case at bar has incorporated in his decision none of the facts found at the request of the appellant, and his report ought properly to be sent back to him, in order that he frame proper findings. The very object of requiring requests to find to be submitted before decision is that all the facts found may be included therein.

It seems to us clear that the referee erred in holding that the appellant’s lien had expired after the expiration of one year after its continuance. The statute under which this lien was filed (Laws of 1885, chap. 342, § 6) provides as- follows:- “No lien provided for in.this act shall bind the property therein described, for a longer period than one year after the notice of lien has been filed, unless within that time an action is commenced to enforce the same * . * * or unless an order be made by a court of record continuing such lien and a new docket be made stating such fact.”

There is no provision whatever in this act as to the length of the time that the order shall be operative, but there are methods provided by which an owner may compel a discharge of a lien or the commencement of an action to foreclose the same. The order continuing the lien in the case at bar simply continued the lien for no definite time, but for such time as the statute permitted. It seems to us clear that it was the intention of the legislature that after such a lien was continued, generally, without any limitation as to time, it should continue until the vacation of the order of continuance or until the lien was disposed of in the other manners provided by the statute. The court continuing the lien could, of course, vacate such continuance upon proper cause shown.

. This view is sustained by the fact that, in the lien law of 1882, although not applicable to the city of‘New York, successive orders of continuance are provided for, while in the act of 1885 there is only one order of continuance allowed. We cannot see why the effect of the order of continuance should.be limited to one year any more than to one month, the statute being silent upon the subject. It was evidently the intention to leave the matter to the discretion of the court making the order, to limit its operation if they saw fit.

In the case of Newell v. Warren (44 N. Y., 244) a similar statute was construed. This case arose under the act relating to chattel mortgages. The act provides that a chattel mortgage shall be void as to creditors, unless the mortgage or a copy thereof is filed as directed in the statute. It is then provided that the mortgage shall cease to be valid after the expiration, of one year, unless within thirty days preceding the expiration of that year a true copy be again filed, and it was held that a mortgage once refiled was valid ■ forever, or until some statute of limitations should run against it.

So in the case at bar there is one of two conditions which must be complied with in order that a lien may be continued beyond a year, viz., the commencement of an action to enforce the lien, or procuring an order continuing the same. When either of these conditions are complied with, the lien is continued until the action or order is disposed of. In the event of the granting of an order, the court can, of course, limit the length of continuance, or in a proper case entirely refuse to continue it.

It is urged by the respondent that the case of Darrow v. Morgan (65 N. Y., 333) is an authority to the contrary. This case arose under the lien law of 1863, in which the language is of similar-import to that of the act of 1885. It may be true that the court, in the case cited, may have used language in hostility to this view, but no such question was before the court, and no attempt is made to-adjudicate upon it. An examination of the original record of the-case filed with the Court of Appeals shows that the order continuing the lien was general in its language, and did not attempt to confine the continuance to any particular time. This case would, therefore,, have been an authority in favor of the position of the respondents-in respect to the lien- law of 1885 had there been any question to be determined by the Court of Appeals in respect of the continuance-of the lien mentioned in that case.

But the opinion of the court, as has already been suggested, had! no reference to the question as to whether the lien had been legally continued or not; but only related to the question before it, whether a court of original jurisdiction had a right, under such circumstances,, viz., where a lien had expired, to enter a personal judgment. We think, therefore, that the case cited is not an authority which overruled the principle laid down in the case of Newell v. Warren (supra)y and, therefore, cannot control in the disposition of the question now-before the court.

The claim that the proceeding in the Court of Common Pleas to' vacate the order of discontinuance in the case of Meyer v. Doying - in any way affects the right of the apj>ellant to raise the question as-to the existence of his lien in this proceeding cannot be sustained, if for no other reason, because it does not appear in the order of the Court of Common Pleas that any adjudication, whatever was made upon that point. Reference, it is true, is made to it in the course of tlie opinion, but it is well settled that an opinion cannot be adverted to in order to ascertain the grounds upon which an order has been made.

It may very well be questioned, had the order expressly proceeded upon the ground that the lien of .-the appellant had expired, whether such adjudication in that proceeding by the Court of Common Pleas would have been binding upon this court in the proceedings now before it.

The exceptions to the referee’s report should be sustained, and the order confirming the same reversed, and .a reference ordered to a new referee to determine the priority .of the liens upon the sur-' plus moneys, with costs to the appellant to abide the event of the future reference.

Daniels and O’Brien, JJ., concurred.

So ordered.


source: Caselaw Access Project

author: Yan Brunt, P. J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ANNA MARIA DEAN v. THE BOARD OF ASSESSORS OF THE CITY OF NEW YORK, Defendants.

      Assessors of New York city — acting under chapter!697, Laws of 1867, act judicially — the owners a/re entitled to notice — measure of damages.

    Chapter 697 of the Laws of 1867, providing for the laying out of the entire district, between Fifty-ninth and One Hundred and Fifty-fifth streets, west of Eighth avenue, in the city of New York, directs that all damages to lands or buildings by reason of closing a street or altering, its grade shall be ascertained and paid in the manner specified in sections 3 and 4 of chapter 52, Laws of 1852.
    The act of 1853 makes it the duty of the assessors of said city “ to estimate the loss and damage” which each owner will sustain by a change of grade, and to “ make a just and equitable award of the amount of such loss or damage ” to the owner, but does not direct the manner in which this shall be done.

      Held, that the board of assessors, proceeding under the act of 1867, occupied the position of commissioners appointed to assess the value of land taken under the power of eminent domain.
    That their functions were judicial, and as such, contemplated the giving to the parties interested notice of a hearing, and an opportunity to be heard before an ■ award was made.
    That it was error for the board of assessors first to make an awai'd, the owner not having been heard, and thereafter to give her notice of it in order that she might object to it if so advised.

      That it was also error for such assessors in making their award to consider what benefit the owner had received from the opening of new streets, their powers being confined to the damages sustained by closing the old road.
    That it was also error for such assessors to deduct the value of the land which the owner obtained by the closing of the road; that, on the other hand, the assessors might consider the benefit resulting to the owner from the fact that her land was relieved from the public easement which had existed thereon before the old road was closed.
    The road in question was theoretically closed when the assessors filed a certain map; it was not, in fact, closed until many years later.

      Held, that the owner was not entitled to an award as of the date of the filing of the map, but that the value of the land should be determined as of the time when the assessors made their report.
    Writ ok certiorari granted, upon the petition of Anna Maria Dean, on the 16th day of October, 1889, to review the acts of defendants, done under chapter 697 of the Laws of 1867, in the matter of ascertaining or estimating the loss and damage to her property as shown by their award made September 17, 1889.
    The proceeding sought to be reviewed related to the appraisement of the loss and damage sustained by the relator by the closing of the Kingsbridge road.

      J. A. Deering, for the relator.

      G. L. Sterling, for the City of New York.
   Yan Brunt, P. J.:

In view of the conclusion at winch we have arrived, it will not be necessary to discuss in detail many of the questions presented by the counsel to the court. It would seem, from an “examination of the authority conferred upon the board of assessors, that there has been an entire misapprehension, by the board, of the nature of their duties and of the rights of claimants to damages.

It seems to have been assumed that the powers and duties conferred upon them in reference to passing upon claims for damages, because of the closing of streets, were similar to those strictly pertaining to their office, viz., the making of estimate and assessment for paving, regulating and repairing streets, relaying pavements, constructing sewers, etc. A very brief examination of the law under which the respondents were carrying on these proceedings will show that such a view was entirely erroneous. By the act of 1867 (cbap. 697), which provided for the allowance of compensation for the closing of streets, it was provided that all damage by reason of the closing of a street should be ascertained and paid in the maimer specified in sections 3 and 4 of the act entitled “An act to malic permanent the grades of the streets and avenues of the city of New York,” passed March 4, 1852 (chap. 59). The act of 1852 provided that “ in all cases where the grade of any street or avenue now established * * * shall be changed or altered, in whole or in part, it shall be the ■duty of the assessors appointed to estimate and assess the expenses of conforming to such change of grade, and regulating the street or avenue in accordance therewith (namely, the board of assessors) to estimate the loss and damage which each owner of land fronting on such street or avenue will sustain by reason of such change to bu eh lands, or to any improvements thereon"; and make a just and equitable award of the amount of such loss or damage to the owner or owners of such lands,” etc. The act contains no provision as to the method in which they are to proceed in ascertaining this damage and making this award. It will be at once seen that under these circumstances the board of assessors occupied the position of commissioners to ascertain the damage done by á public improvement, and their proceeding seems to be of the same character as that of commissioners appointed to assess the value of land taken under the power of eminent domain.

This view of the duties of this board, under these circumstances, is especially recognized in the case of the People ex rel. Heiser v. Gilon et al. (121 N. Y., 551), where, under a special act in reference to the change of grade of the Eighth avenue, the board of assessors proceeded to award compensation to owners fronting upon the avenue. In that case the authority conferred upon the board of assessors, being the same as is conferred by the legislation above referred to, the court held that the duties which the board was required to perform were essentially judicial in their nature, and that these judicial functions could not be properly performed in contemplation of the law, without giving the parties interested some notice of the time and place of the hearing and an opportunity to be heard. And it is plainly intimated in that case that this time and place of hearing and opportunity to be heard shall be before an award shall be completed, for the court say that the notice in that case was defective because it called for objections to the assessment made, not for proof or arguments in support of a claim for damages. In other words, the party affected is entitled to notice to present his. claim, and not to notice to present his objections toan award already determined upon. In this the proceeding is entirely different from those which the board pursue under the statute in the levying of an assessment. The board levies the assessment in the latter case and then notifies the parties affected by the assessment to come in and present their objections, and they pass upon the objections. But in a case of the character of that at bar this board is bound to-notify claimants to present their claims. The claimant is entitled to present his proofs, and after hearing the proofs the board makes its-award. It follows from this authority conferred upon the board of assessors, that the board cannot take proof except upon due-notice to the claimants.

It is one of the essential features of a judicial proceeding, that the suitor shall have notice of all proceedings which may affect his. rights, and that he cannot be barred by an adjudication rendered upon evidence taken without his knowledge, and which he may have had no opportunity to refute.

It appears, from the return of the board of assessors in this case,, that they, in the absence of the claimants, took evidence, and that there was proof given in the case which is not in the return, of which the claimants had no notice, and of the character of which they ar.e not even now informed. In assuming that they had the right to base their award upon any information that they could get from any source whatever, or in any manner which may seem proper in their own eyes, we think, as already stated, that the board erred; they attempting to assimilate this proceeding to that which the-statute prescribes in the case of the levying of an assessment. It follows, therefore, that the whole proceedings have been governed by an erroneous theory.

It is to be observed that the board is to make a just and equitable award of the amount of damage, not to levy an assessment for damages. It may well be claimed that they occupied the position of arbitrators selected under the act to determine, as between the State- and the owner, what, will be a just amount to pay for the damages, inflicted upon the owner.

There are one or two other points which it seems to be necessary to consider in order that, npon a new proceeding, the board should not fall into some errors, in reference to the method of ascertaining the damage, which seem to have pervaded the present proceeding.

It appears from the return that, in determining the amount of loss resulting to the relator by the closing of the road, they have considered the benefits arising from the opening of the new streets, and this they have deducted horn the amount of the loss. This would appear to be compelling the owner to pay twice for the same benefit. In the proceedings for the opening of the new streets the owners were assessed for benefit, and now in the proceeding for the closing of the old road they are compelled to pay another assessment for benefit. There cannot be two benefits arising from the opening, of the same street.

In this proceeding, therefore, the board of assessors had no right to consider the question as to what amount of benefit the owner had received from the opening of the new streets. The question which they were to consider was the damage which the owner would sustain by the closing of the old road. The question of access by the new streets had, of course, some relation to that question, because, if no access to the property could be gained by the new streets, greater damage would necessarily be sustained by the closing of the old road than would occur if access could -be obtained by the new street. But whatever benefit may have resulted to the owner could not be considered, except so far as the existence of the new streets, giving new access to the property would affect the amount of damage sustained by the owner by the closing of the old means of access.

It follows that the board, in taking into consideration the benefits-conferred by the opening of the new streets, erred, and that they should have made their award independent of that fact.

There is also an objection taken to the fact that the board of assessors deducted the value of the land which the owner obtained possession of by the closing of the street. This was clearly incorrect. The abutting owner was the owner of that land all the time. She did not acquire title thereto by the closing pf the street. But it was subject to a public easement, which undoubtedly affected its-value, and the board had the right to consider what benefit it was to the owner to have that portion of her land which was situated within the road relieved from the easement which existed over it prior to the closing of the old road. This, necessarily, is a circumstance to be considered in determining the amount in which the abutting owner is damaged by reason of the closing of the street.

The only other question is the point which is made that the assessors erred in not making the compensation as of the date when the road became closed upon the map, although not closed, in fact, until many years later. We do not think, although the road may not have had any legal existence after the filing of the map, no proceeding whatever having been taken in reference to the matter, that the relator was necessarily entitled to have his damages assessed as of the time of the filing of the map, as though the street had then been actually closed.

It is a familiar principle, in reference to the assessment of damages for the taking of land for street opening, that the value, as of the time of the commissioners making the report, is the true rule to be followed; and this proceeding is analogous in that respect. It would seem, therefore, that the same rule of damages would apply. And this, of course, disposes of the question of interest. Even if the foregoing rule should be wrong, it does not seem to be possible that interest could run until the amount of the award had been determined; because up to that time the damages were unliquidated and there was no power upon the part of the city to pay an unascertained obligation.

We do not think it necessary to discuss further the questions which were presented by the elaborate points of counsel. The proceedings should be reversed and sent back to the board of assessors in order that they may proceed in accordance with the views herein expressed, without costs.

Barrett and Bartlett, JJ., concurred.

Proceedings reversed and sent back to board of assessors as expressed in opinion, without costs.


author: Daniels, J.:

text:
    CHARLES GILPIN, Jr., Appellant, v. JOHN DALY, Respondent, and JOHN DOE and RICHARD ROE, Defendants.

      Gaming — Penal Code, section 343, applies to action to recover the moneys lost— examination of defendant before trial.

    Section 343 of chapter 9 of the Penal Code, providing .that a person shall not be excused from testifying in any investigation or proceeding for a violation of that chapter because his testimony would tend to convict him of a crime, and, further, that such testimony shall not be received against him in any criminal investigation or proceeding, will be deemed to have been enacted in aid of the policy of this State, adopted from an early date, to force the winner of money lost by gaming to give evidence in order to support an action for its recovery.
    Such section was intended to combine in one general provision all the previous legislation on the subject, including 1 Revised Laws (153, § 3) and 1 Revised Statutes (663, 664, §§ 18, 19).
    A complaint in a civil action which alleged that the treasurer of a fdreign corporation had wrongfully taken its moneys and lost them at a gambling-house charged to have been maintained by the defendant in the action, and by other persons unknown, constitutes an “investigation” or “proceeding,” within the meaning of the statute, and alleges a violation of section 343 of the Penal Code.
    In such an action the plaintiff is entitled to an order to examine the defendant before trial.
    As section 343 of the Penal Code forbids the use of defendant’s answers against him in any criminal proceeding, he is not excused, on the ground that his answers will criminate him, from answering the questions put to him upon such an examination.
    Appeal by the plaintiff Charles Gilpin, Jr., from an order, entered in the office of the clerk of the county of New York on the 19th day of November, 1890, vacating an order requiring the defendant John Daly to appear and submit to examination before trial, which latter order was granted October 8, 1890.

      John I. Oadwalader, for the appellant.

      John Graham, for the respondent.
   Daniels, J.:

This action has been brought to recover the sum of $5,500, moneys owned by the Glamorgan Iron Company, a corporation existing under the laws of the State of Pennsylvania, and charged to have been lost by gaming at a gaming establishment; in whole or in part, maintained by the defendant at No. 39 West Twenty-ninth street, in the ■city of New York. It is alleged that these moneys were wrongfully taken by the treasurer of the company and lost by gambling at that establishment, and won by and paid to this defendant and other persons intended to be included with him as defendants in the action. After the moneys had been lost in this manner the company made an assignment for the benefit of its creditors to the plaintiff, and it is under the title so acquired that he has brought this action for an accounting and recovery of these moneys. And if they w'ere in this manner lost and won, either by the defendant alone, or acting in concert with other persons, then there seems to be no well-founded objection standing in the way tó prevent the plaintiff from maintaining the action. •

The affidavits, on which the order for the examination of the defendant was made, have complied in their formal statements with all the requisites prescribed for that 'object by the Code of Civil Procedure. And it is shown by that of the plaintiff that he is depehdent upon the information expected to be obtained from the defendant for his ability to connect him with this establishment as one of the proprietors thereof, and to subject him to a liability to refund this money. His examination before the trial is shown to be necessary to obtain evidence to support the action, and there is á probability that it can be derived from no other source. It is not liable, therefore, to the objection taken to its general insufficiency, for the affidavit has complied with all that has been exacted by the case of Jenkins v. Putnam (106 N. Y., 272) and the other authorities brought, on behalf of the respondent, to the attention of the court.

The order for the defendant’s examination was not vacated because of any formal defect in the affidavits on which it was made. But that was ordered upon the objection stated in the affidavit of the defendant, that he is not obliged to answer under oath, generally or specifically, any of the allegations implicating or connecting him with gambling, or the pretended gambling transactions charged in the moving affidavits. And it has been declared by the law in general terms, that a person will not be required to give evidence, having a tendency to prove that he has been guilty of a crime. And the principle has been applied to suits in equity, where it has been held that a defendant would not be directed to answer on oath when his answer must have that effect. (McIntyre v. Manetus, 16 Johns., 592.) But the protection of the public, as well as of its individual members, has from time to time induced the enactment of legislative exceptions to this general rule. They have been framed more effectually to discover the existence of offenses committed in seclusion and concealment, by bringing their participants before the courts and compelling them to disclose their own participation in and knowledge of these offenses, but at the same time excluding the use of their disclosures as evidence against the person or persons making them in any criminal prosecution. And the loss and gain of money by gaming or gambling has been considered to be a proper subject for this description of legislation. Accordingly, in the Revised Laws of this State in 1813, after declaring gaming to be unlawful and providing a remedy for the recovery of the money thereby lost, and following an enactment to the same effect in 9 Anne (chap. 14, § 3) it was provided that every person liable to suit under its provisions should be compelled to answer, upon oath, such bill as should be exhibited in the Court of Chancery against him, for discovering the money or other things won at play, contrary to the intent and meaning of the act. And in the action the court was thereby empowered to proceed and decree thereupon, and enforce the decree as was usual in other causes in the court. (1 Rev. Laws, 153, § 3.) And that was made to operate as a discharge of the defendant from further punishment, forfeiture or penalties incurred in or about the subject-matter of the suit.

These provisions disclose it to have been the policy of this State, at that early day, to provide for the redress of the wrongs produced by gaming, by extorting from the winner the evidence he might be able to give in the way of supporting an action for the recovery of money lost by gaming. And they were followed by others, made a part of the Revised Statutes in 1830, enlarging and rendering them still more effectual., For, in addition to the continuance of the obligation of the winner to answer a bill of discovery, and the power vested in the court by its decree to compel the return of the money, it was declared that no person, other than the parties in the cause, should be incapacitated or excused from testifying touching any offense committed against any of the preceding prohibitory provisions of the law, by reason of bis having played, bet or staked,, at any game; but his testimony should not be used in any suit or prosecution thereby authorized against himself. (1 R. S., 663, 664, §§ 18, 19.) These two sections provided for securing a complete discovery of alleged gaming transactions, first, by the evidence of all persons having knowledge concerning them, who should not be parties to the action, and, secondly, by the answer, on oath, of the party proceeded against to the bill of discovery. And the answer was not deprived of any of its effect by the next section declaring that it should not be used as testimony in any case against the person making the-discovery. For that must have been intended to relate to any other suit than the suit in which the discovery should be made, as the decree in that suit was allowed to compel the party to it to return the money it should be brought to obtain. By these sections complete authority was supplied for obtaining the evidence of all persons participating in or having knowledge of gaming transactions and for the recovery of the money won thereby. They included all that could be required or provided. For in this class of cases every person was required to give his evidence, either when sworn and examined as a witness or by answering on oath the bill of discovery.

And it was in this state of the law that the Penal Code was enacted in 1861, which, by section 342, declared that: “No person shall be excused from giving testimony upon any investigation or proceeding for a violation of this chapter, upon the ground that such testimony would tend to convict him of a crime; but such testimony cannot be received against him upon any criminal investigation or proceeding.” It could not have been intended that this section should, in any respect, abridge the efficiency of what had previously been enacted upon this subject. But as the bill of discovery had been generally abolished, the intention was to combine in one general section, as this is, all that had previously existed in these two sections of the Revised Statutes. There was no cause for reducing or restricting the preceding law, but there was for changing its form, to render it harmonious with the progress which had been in other respects attained. And that is probably all that was designed to be accomplished by this change of language. This probability is also confirmed by chapter 593 of the Laws of 1886, which, by its first section, repealed the two sections already mentioned of the Pevised Statutes. That certainly would not have-been done without the legislative understanding that this section of the Penal Code comprehended all that had been included in the preceding law. Any different conclusion would necessarily support the conviction that the legislature intended to tolerate gaming transactions by excluding the ability to obtain the evidence of their existence, and that, there can be no reason for believing. What appears to have been intended, and what was, in fact, accomplished, was to combine the preceding law in one section, which, by its general language, was made to include all the participants in, and parties to, gaming transactions. " And this action is directly within the section, for it is a proceeding and includes an investigation for a violation of the provisions of the chapter of the Penal Code containing this section. This language, while not the most artistic, is ■still entirely comprehensive, including, as it does, all possible investigations and proceedings. And that this was the understanding of its effect is further disclosed by the last clause .of the section, •declaring that the testimony so obtained shall not be received against the person giving it upon any criminal investigation or proceeding. This last-mentioned investigation or proceeding can only be such as may be taken for the examination, indictment or punishment of crime, and, consequently, must have been intended to include those proceedings. And the effect of this clause is to apply, with equal reason, the preceding part of the sentence to all personal actions, and prosecutions for the recovery of money lost by gaming.

These actions are, as the phrase has here been used, investigations and proceedings for a violation of the other sections of the same chapter of the Penal Code. And similar phraseology employed in another part of the-Penal Code'was, in this manner, construed and applied in People v. Sharp (107 N. Y., 437).

This chapter of the Penal Code has made it unlawful for a person to exact or receive from another, either directly or indirectly, any money or valuable thing by reason of the same having been won by playing at cards, faro, or any other game of chance, or for any bet or-wager upon the hands or sides of the players. And has declared it to be a misdemeanor for any person to keep a room, shed, teneinent, tent, booth, building, float or vessel, or any part thereof, to be used for gambling, or for any purpose, or in any manner forbidden by this chapter. (Id., §§ 340, 343.) And the complaint in this .action charges the defendant with a violation of each of these sections. And to maintain this charge, an examination of the defendant before the trial has been shown to be necessary-by the way of obtaining evidence to establish its truth. An investigation is to bo made in the action to prove this charge. And that places this suit within the language, as well as the spirit, of the section, depriving every person of the privilege of refusing to testify in it on the ground that his testimony will tend to convict him of a crime. The •testimony obtained cannot be used to bring about his conviction of a criminal offense, and for that reason he has been obliged to give his evidence when it may be required in support of a civil action.

This legislation is in complete harmony with the general policy which has been adopted to secure the discovery of other secret and fraudulent violations of the law. "When that may be successfully concealed by the contrivances and artifices of the parties, the policy has been to oblige them, under the solemnity of their oaths, to appear and disclose the facts, exposing their transactions to the discovery of the tribunals empowered to investigate them. And as a part of this policy, not only betting and gaming practices are to be brought to the light of judicial scrutiny and correction, by the evidence of the parties to or concerned in them, but the same principle of unlimited discovery has been also applied to fraudulent dispositions of the property of debtors. Provisions for that object were -enacted soon after those for the discovery by the evidence of the parties in civil'actions of losses by gaming and betting. They are -found as early as chapter 17 of the Laws of 1823, requiring every person to answer as to such transactions, but at the same' time guarded by the same protection that the evidence obtained shall mot be used against the person giving it in any prosecution for the criminal misdemeanor committed by his fraudulent misconduct. And this, in substance and effect, has ever since then remained the law applicable to the disposition made by a debtor of his property, with the intention to defraud his creditors. (Laws of 1833, chap. 14; ‘2 E. S., 174, § 41; Code of Civil Pro., § 2460.) A similar practice lias also been made applicable to usurious transactions and their .•discovery. (2 B. S. [6th ed.], 1166, § 11.) And to the purchase of things in action by attorneys and others to institute suits thereupon. (3 B. S. [6th ed.], 449, §§ 59-70.) And which still remains the law, ■except so far as it may have been qualified by the questionable policy of the Code of Civil Procedure, allowing attorneys to become interested in the fruits and proceeds of suits prosecuted by them.

This legislative policy requires- that the section contained in the Penal Code, which has already been examined, shall be construed with a reasonable degree of liberality to promote the remedy it has been designed to advance, and under that construction this action is within its language and intent. The defendant is, therefore, legally bound to appear and submit to an examination, on oath, to verify, as far as he may be able to do that, the facts brought in issue by his answer in this action, and thereby to supply the plaintiff with the evidence which has become requisite to maintain this suit.

It is but just to the court making the order from which the appeal has been brought to add that the statutes affecting the question involved were not referred to by the counsel when the application to vacate the order for the defendant’s examination was heard, as, indeed, they were not on the argument of the appeal. If they had been, that order would not then have been vacated, for the law, as it is now in force, does supply all needed authority for subjecting the defendant to a full, searching and complete examination for the •discovery of the facts included in the issue in this action.

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

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

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


author: Daniels, <T.:

text:
    HARMON H. HART, Appellant, v. THEODORE W. MYERS and EDWARD H. MYERS, Respondents.

      Partnership — where one partner agrees to give his sermces, and these could be performed equally as well by another, the firm may, in case of his sickness, hire a substitute at his expense.

    In an action brought to procure an accounting in reference to partnership assets, it appeared that the plaintiff and defendants formed a partnership to do business as stockbrokers under an agreement which provided that the party of the second part (the plaintiff), and the party of the third part (one of the defendants), bound themselves to give their entire time and attention to the business of the said copartnership, “ the party of the third part to attend to all the business upon the New York Stock Exchange, and the party of the second part agreeing to give his time and attention to the office business.” The plaintiff (the party of the second part) was ill for a long time, and the other partners hired a person to do his work. '
    Upon an accounting between the partners his share of the firm assets was charged with this expense.

      Held, proper; that as the services to be rendered by the plaintiff were not personal-in the sense that they could not be rendered equally as well by another, and as in fact they were so rendered, the illness of the plaintiff did not excuse his nonperformance, and the expense of procuring a substitute was a proper charge against the plaintiff’s interest in the firm.
    Appeal by the plaintiff from a judgment, entered in tbe clerk’s office of the county of New York on the 16th day of October, 1890, in favor of plaintiff, in so far as said judgment failed to award plaintiff i the further sum of $1,842.22, with which plaintiff was debited by the fourteenth finding of the referee’s report.

      Michael U. Cardoso, for the appellant.

      Simpson & Werner, for the respondents.
   Daniels, <T.:

The principal object of this action was to settle the accounts of a partnership previously existing between the plaintiff and the defendants. It was formed by a written agreement, made on the 31st of December, 1888, and to continue to, and terminate on, the 31st of December, 1890, with the privilege, however, to end the partnership on the last day of December, 1889. In the settlement of the affairs of the partners the plaintiff was charged with the sum of $1,742.77, besides interest, for the expenses which were paid for the services of an assistant in the business during the period of his illness and inability to take charge of and manage the part of it which had been assigned to him. He was the party of the second part in the agreement. And by the fifth subdivision of the articles it. was covenanted that: The said parties of the second and third parts do bind themselves to give their entire time and attention to the business of the said copartnership, the party of the third part agreeing to attend to all the business upon the New York Stock Exchange, and the party of the second part agreeing to give his time and attention to the office business.”

And it appeared by the evidence in the case that the plaintiff, from the last of October until the close of the year, failed to perforar the duties in the business which had been in this manner .assigned to him. This failure was caused by his personal illness, rendering him incapable of giving his efforts and attention to the business for most of this interval of time. And during that period another person was employed by the other two partners who performed the services which were within the scope of the plaintiff’s •obligation. He was charged, in the manner already stated, with the amounts paid to that person, and- it is to review the legality of that charge that this appeaTlias been taken from the judgment.

To maintain the appeal the legal principle has been referred to, which has frequently been applied, to absolve persons from the performance of their contracts for the rendition of their services when that has been prevented by illness. As a legal proposition this principle has become very well settled in the law, but it has been applied only so far as to relieve the party from the obligation to perform his agreement when the services required from him are personal in their nature, and necessarily to be rendered by himself. That was the fact in Boast v. Firth (L. R., 4 C. P., 1). There the party who was bound by the agreement was an apprentice, and failed by reason of illness to proceed with his service. And it is evident from the service he was to render that no other person was capable of fulfilling the agreement. In Robinson v. Davison (L. R., 6 Exch., 289) the services to be rendered were those of a pianist, which were as strictly personal in their character as those mentioned in the other case. And that seems to have been the nature of the services brought in controversy. in the case of Wolfe v. Howes (24 Barb., 174; 20 N. Y., 197). They were considered and held by the court to be services capable of being rendered only by the individual who had agreed to perforin them. And for that reason the party obligated was absolved from the performance when that became impractical by reason of his illness.

But the services which the plaintiff in this case undertook and agreed to perform, as a member of the firm, were not strictly of this character, for they could be, as by the evidence they appear to-have been, adequately jierformed by another person skilled in and acquainted with the business which the firm transacted and carried on. And where that is proven to be the fact, there this general principle becomes inapplicable. By entering into the agreement which he did, the plaintiff assumed as broad an obligation with his partners for the rendition and performance of these services as though it had been created under a different agreement not constituting the relation of partners between the parties to it. And the other parties were entitled to insist upon its observance by him in the same manner and to the same extent as though it had been an agreement, with him as a subordinate agent. And in this class of cases it has accordingly been held as a general proposition, where one of the-partners may have failed to perform the obligation in this manner created, that he is chargeable in the settlement of the partnership-affairs with the expenditures that may have been incurred and made because of that circumstance. (Stegman v. Berryhill, 72 Mo., 307;. Marsh’s Appeal, 69 Penn., 30 ; Leighton v. Hosmer, 39 Iowa, 594; Airey v. Borham, 29 Beav., 620 ; McDonald v. Richardson, 10 L. T. Rep., 166.)

And the party can relieve himself from the obligation to render the services by reason of his illness only when that service is personal in its nature and cannot be equally as well performed by another person. If that cannot be done, then this general principle, maintained by these authorities will require the partner disabled by illness to indemnify his copartners against the expenses incurred by them in securing the performauce of the same services by another: person. This principle ■ was sanctioned in the case of Wolfe v. Howes (20 N. Y., 197), in which the statement was approved, “that, where the contract is for personal services which none but the promisor can perform, there inevitable accident, or the act' of God,, will excuse the non-performance and enable the party to recover upon a quantum meruit. But where the thing to be done or work to be performed may be done by another person, then all accidents are at the risk of the promisor.” (Id., 201, 202.) And this was likewise sanctioned in Williams v. Vanderbilt (28 N. Y., 217, 223). And so it was indirectly, also, in Spalding v. Rosa (71 N. Y., 41), where it was said that “ contracts of this character for the personal' services, whether.of the contracting party or of a third person, requiring skill, and which can only be performed by the particular individual named, are not in their nature, of absolute obligation under all circumstances,” but “ are subject to this implied condition that the person shall be able at the time appointed to perform them, and if he dies, or without fault on the part of the covenantor becomes disabled, the obligation to perform is extinguished.” (Id., 44.) And to the same effect is the case of Wheeler v. Connecticut Mutual Life Insurance Company (82 N. Y., 543), in which it was held that “ where the contract is for personal services, which none but the person contracting can perform, inevitable accident, or the act of God, will excuse non-performance. But when the thing or work to be performed may be done by another person, then all accidents are at the risk of the promisor.” (Id., 550.) And Hunter v. Little (17 Weekly Dig., 500) maintains the same point. This qualification of the principle, invoked to sustain the appeal, is directly applicable to this action, for it appeared beyond controversy that the services which the plaintiff had obligated himself to render as a member of the firm were capable of being performed by other persons. And as that was the fact, this principle imposed upon him the duty of securing performance in that manner. And when he failed to do that, it followed that the other members of the firm were entitled to provide for that performance as they did, and to charge him with the necessary expenses to which they were subjected in securing that end.

The charge made against the plaintiff in the settlement of the partnership accounts was, therefore, legal and proper, and the judgment should be affirmed, with costs.

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

• Judgment affirmed, with costs.


text:
    JOHN J. MOLLOY, Respondent, v. THE LONG ISLAND RAILROAD COMPANY, Appellant.

      Malicious prosecution— burden of proof — when “probable cause’’ is a question of law — when it is established.

    In actions ior malicious prosecution tlie burden is upon the plaintiff to show want of probable cause and malice upon the part of the defendant.
    Where there is no dispute as to the salient features of the case, the question of probable cause is one for the court, and not for the jury.
    Where the evidence is such that a reasonable man would think a person to be guilty of a felony which has been proved to have been committed, and where the fruits of the crime are found in the possession of the accused, and such possession is not explained or qualified by the accused when they are so found, nor for a considerable time thereafter, probable cause is established, and the person or corporation wronged is protected in making a complaint against the person in whose possession the fruits of the crime are found.
    Appeal by the defendant, tlie Long Island Railroad Company, from a judgment, in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of April, 1890; and also from an order denying defendant’s motion for a new trial, entered in said clerk’s office on the 21st day of April, 1890, after a trial at the New York Circuit, at which a verdict was rendered in favor of the plaintiff for $5,000 damages.

      E. E. Sprague, for the appellant.

      P. A. Hen&rieh, for the respondent.
   Yan Brunt, P. J.:

This is an action for malicious prosecution. In the month of April, 1877, a boy, by the name of Thomas Keenan, procured from the defendant a set of commutation books, for a year’s travel between Lawrence and Long Island City. The books were procured in the name of Arthur M. Jones and paid for by a check signed by the ■same name. The check proved to be a forgery. The defendant corporation then caused the arrest of Keenan, who, upon being ai’raigned, apparently made a full and frank confession of his own share in the transaction, and stated that he obtained the check from the plaintiff; .that he saw the plaintiff write it, and the plaintiff gave it to him with instructions to do precisely as he did, and that plaintiff was then in possession of some of the commutation books which had been obtained by means of the check, and that the plaintiff could be found at a Third avenue saloon which he ■frequented. Thereupon a complaint was made by one Cody, a ¡special officér in the defendant’s employ, and a warrant was issued by the justice for the plaintiff’s arrest upon a charge of forgery. Cody took the warrant to New York and plaintiff was arrested by a ■city detective.

At the time of his arrest the plaintiff produced four of the commutation books and handed them to the officer. He claims to have told the detective officer of the company that he was innocent of the charge, hut he made no explanation of how he came into possession of the books. He was taken to Long Island City and .arraigned the next day, and an examination was had subsequently, when the procuring of the book, the giving of the check and the fact that the check was forged was proved ; and the boy Keenan repeated, under oath, the story which he had previously related. 'The examination was adjourned upon one or two occasions and finally the plaintiff, by his counsel, waived examination and elected to go before the grand jury. The plaintiff, in his evidence upon this trial, stated that he had no chance to make an explanation and that he did not waive examination, but the record shows that such ■examination was waived, and it must have been done by his counsel.

The plaintiff was committed by the magistrate; he was twice indicted by the grand jury, and on his trial at the Sessions a motion was made' to dismiss, which was denied. At the close of the trial the plaintiff was acquitted.

There was evidence tending to show that, in consequence of certain statements made by Cody, the officer in the defendant’s employ, to the person who had gone bail for the plaintiff in the criminal proceeding, he was surrendered and remained in custody until dis•charged at the end of his trial.

This action was brought for malicious prosecution, and the case was submitted to the jury upon the questions of probable cause and malice.

During the progress of the charge the court instructed the jury that, if they found there was a want of probable cause for suspecting or believing that this man was really the perpetrator of this crime, or connected with its perpetration, and that the charge was inspired by malice, then the plaintiff would be entitled to recover.

The counsel for the defendant excepted to that portion of the charge in which the court said it was for the jury to say whether the defendant had probable cause in this case, and also requested the court to charge that, under the circumstances, as matter of law, there was probable cause, and excepted to that part of the charge in which it was stated that malice could be inferred from want of probable cause in any case.

The jury found a verdict in favor of the plaintiff, and from the judgment, and from an order denying a motion for a new trial, this appeal was taken.

The rule is well settled that, in actions for malicions prosecution,, the burden is upon the plaintiff of showing want of probable cause and malice upon the part of the defendant, and that where there is-no dispute as to the facts the question as to the existence of probable cause is one for the court. (Anderson v. How, 116 N. Y., 336 ; Thaule v. Krekéler, 81 id., 428.)

In the case at bar there is no dispute as to the salient features of the case, and, therefore, the question of probable cause was a question of law for the court, and not for the jury. The fact that this; boy Keenan had procured from the defendant a set of commutation books upon a forged check was established without contradiction. Upon the arrest of Keenan he pretended to make a full and frank confession of his connection with the transaction, and that he had obtained the check from the plaintiff, had seen him write it, and that the plaintiff was then in possession of some of the commutation books which had been'obtained by means of the check, and upon the plaintiff’s arrest certain of these books were found in his possession.

Now, it is a familiar rule that the possession by a person of property recently stolen raises a presumption of guilt which may be considered by a jury, and, in the absence of explanation by such person,, authorizes it to infer a criminal connection with its acquisition. (People v. Weldon, 111 N. Y., 569.)

In the case at bar we have the proof that a felony had been committed and that the plaintiff was in possession of a portion of the fruits of the felony, and that he made no explanation of how such fruits came into his possession. "We think that, under these circumstances, any 'reasonably prudent man might safely assume that the story of the boy Keenan was true. It is true that with the books was enclosed a letter in these words: Jim, I do not want to buy these books. I am afraid they are not all right. J. Molloy.”

But, in the absence of any explanation as to how he came into-possession of the books, this letter contained not the slightest evidence of his innocence. On the contrary, it might safely be presumed to be the mere scheme of a guilty man to attempt to establish an innocent possession. It would appear from the evidence in the-case that the plaintiff never opened his mouth for the purpose of saying how he came into possession of this property obtained upon this forged cheek until his trial on the indictment, contenting himself with stating that he was innocent.

We think if, under circumstances such as have been stated, a party has not reasonable cause to lodge a complaint, then no complaint can be made unless followed by conviction with any degree of safety. This is not the law. If the evidence is such that a reasonable man would think a person to be guilty of a felony which has been proved to have been committed, probable cause is established and he is protected in making the complaint.

It may be all very true, as claimed upon the part of the counsel for the respondent) that to arrest a person for the crime of forgery upon the statement of a self-confessed criminal, admittedly guilty, of having passed the forged instrument, without seeking to substantiate his story, warrants a finding of want of probable cause. But there is a material feature in the case which is omitted from this statement, and that is that the plaintiff was shown to have been in possession of a part of the fruits of the crime. It is undoubtedly true that the detective, Cody, in procuring the bail to surrender the-plaintiff after he had been bailed, acted in a manner which is-deserving of the highest censure; but such acts cannot make the-defendant guilty of malicious prosecution in lodging a complaint which they had reasonable grounds for believing to be true.

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

Beady and Daniels, JJ., concurred.

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


text:
    JOSEPH LIBMANN and Another, Respondents, v. THE MANHATTAN RAILWAY COMPANY and Another, Appellants.

      Action to enjoin the operation of an elevated railway — election of remedies — waiver of exception — right to a jury trial not taken away by the form of the action.

    In an action to enjoin the operation of an elevated railroad in front of plaintiffs’ premises, in the city of New York, the allegations of the complaint were sufficient to sustain either an action to restrain the railroad from the further commission of a continuing trespass or one to abate a nuisance, the latter action being triable by jury:

      Held, that the defendants had a right to compel the plaintiffs to elect, upon the trial, under which form of action they would proceed in order that it might be determined whether defendants were entitled to a jury trial.
    The court refused to compel the plaintiffs to elect and the trial proceeded

      Held, that the defendants, having taken a valid exception, did not waive it by proceeding with the trial of the case.
    While a plaintiff entitled to a jury trial may ordinarily waive that right by proceeding in equity, he cannot by bringing a bill in equity, in • a case where the Constitution secures to the defendant a trial by jury, deprive the latter of that right.
    Appeal by the defendants, the Manhattan Railway Company and the Metropolitan Elevated Railway Company, from a judgment, entered in the office of the clerk of the county of New York on the 5th day of May, 1890, in favor of the plaintiffs.

      E. G. James, for the appellants.

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

This action was brought to enjoin the continuation and operation of the defendants’ elevated railroad in front of certain premises in the city of New York, the allegations of the complaint being that said structure, as it now exists and as above described, has been erected and maintained without legal right, and is a special nuisance and injury to the plaintiffs and their premises; and the complaint demanded that the amount of the damages sustained by reason of the existence of said road and structure should be ascertained, and that the plaintiffs have judgment against the defendants therefor, and, also, for an injunction perpetually enjoining and restraining the continuation of the nuisance.

At the commencement of the trial the counsel for the defendants moved to strike the case from the equity calendar, upon the ground that it was substantially an action for damages, and that it be sent to the circuit for trial by jury.

This motion was denied and the defendants excepted. The defendants’ counsel also made the same motion upon the ground that it was an action for a nuisance, which was denied and an exception taken. Thereupon the defendants’ counsel moved the court to compel the plaintiffs to elect whether they would proceed upon the basis that the construction and operation of the elevated road was a nuisance, or on the basis that the legislative authority was irrelevant and no defense, and, therefore, the defendants’ acts were in the nature of a trespass. The court denied the motion and defendants’1 counsel duly excepted.

The latter ruling, we think, was error. If this was an action for a nuisance, the defendants were entitled, as matter of right, to a jury trial. (Hudson v. Caryl, 44 N. Y., 553.) It was also held in that case, that if the complaint is, in form, as for equitable relief against the continuance of a nuisance, and the prayer for damages may be regarded as incidental thereto, yet, as the existence of an alleged nuisance and the amount of damages were both inquired of by a jury before the adoption of the present Constitution, the constitutional guaranty of trial by jury applies to such an action as one of the cases in which it has been heretofore used.

Under these circumstances, there being allegations in this complaint which entitled the plaintiff to proceed as for a nuisance as well as for a trespass, and the defendants being entitled to a jury trial if the action proceeded as one upon a nuisance, it was matter of right, before proceeding with the trial, that it should be determined upon which ground the plaintiffs proceeded. Therefore, when the defendants' asked that the plaintiffs should elect whether they proceeded as for a nuisance or as upon a trespass, such election should then have been made by the plaintiffs, in order that it might be determined as to whether the defendants were or were not entitled to a jury trial. The defendants were not compelled to go into the trial, the case to be treated at the option of the plaintiffs as an action for a nuisance or as an action for a trespass, and they might with perfect safety have stopped, tlieh and there, and refused to go on, and relied upon their exception. Merely because they did thereafter go on in no way impaired their rights or took away the valid exception which' they had taken at the commencement of the trial. They were placed in a position in reference to the trial •of the cause which they should not have been made to assume.

They were entitled to know, at the outset, whether the plaintiffs were proceeding upon a cause of action entitling the defendants to •a jury trial or not.

There are many cases to be found in the books, in which it has ■been held that where a plaintiff brings suit in equity, although ordinarily he may be entitled to a jury trial, he has thereby waived the .same and cannot demand, as. matter of right, under these circumstances, the benefit of a trial by jury.

But no case has been found, and we do not see how it could be followed if it had been, which holds that, because a plaintiff has filed •a bill m equity for relief for a cause of action in respect to which the Constitution provides that the defendant is entitled to a jury trial, he can by so doing deprive the defendant of such jury trial.

We think, therefore, that for the error which was committed, without considering the other questions in the case, the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Brady and Daniels, JJ., concurred.

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


text:
    WILLIAM E. DODGE STOKES, Plaintiff and Respondent, v. ANSON PHELPS STOKES and Others, Defendants, and JOHN A. STEWART and Others, Executors of ISAAC N. PHELPS, Deceased, Appellants, Impleaded, etc.

      Pa/t'tnership — the assignee of a partner’s interest is entitled to an accounting after dissolution — the executors of a deceased partner a/t'e necessary parties to such an accounting.

    One of tlie members of a firm, having assigned to one Stokes an undivided one-fifth of his interest in the firm, and in all profits which had at any time accrued thereon, the assignor died, and subsequently another partner, Phelps, died, where upon the assignee brought an action for an accounting against the executors of Phelps and others, to the complaint in which such executors demurred on. the ground that it did not state, as to them, facts sufficient to constitute a cause of action,

      Reld, that the assignee was entitled to an accounting.
    That the surviving partners were trustees of the partnership funds for such assignee, and also for the executors of Phelps, and that, consequently, these executors were necessary parties who must be brought into court before the fund could be distributed.
    Appeal by the defendants, John A. Stewart, Anson Phelps Stokes and John IJarsen Rhoades, as executors of Isaac N. Phelps, deceased, from an order overruling a. demurrer and directing judgment thereon, entered in the office .of the clerk of the county of New York on the 4th day of December, 1890; and also from an interlocutory judgment, rendered upon said demurrer and entered in said clerk’s office on the 8th day of December, 1890.

      JB. W. Sheldon, for the appellants.

      W. O. Choate, for the respondent.
   Yan Brunt, P. J.:

This action was brought by the plaintiff for án accounting in respect to the copartnership dealings and transactions of the firm of Phelps, Stokes & Go. from the time of the commencement thereof to the time of its dissolution.

It appeared from the complaint that James Stokes, Isaac N. Phelps and Anson P. Stokes entered into copartnership, the articles concerning which were in writing and which provided that said copartnership should commence on the 1st of January, ls79, and continue for five years, unless terminated by the death of Anson P. Stokes, or by a written notice of either of the partners to the other-members of the firm, of at least six months, of the termination of said firm. Shortly after its formation the defendant Olcott was admitted as a copartner in said firm, but such admission presents no question raised by this demurrer. On the 18th of November, 1880, James Stokes assigned and transferred to his son, William E. D. Stokes, the plaintiff, an undivided fifth part, of his interest in said firm, together with all profits accrued thereon since January 1, 1879, the formation thereof.

In 1881 James Stokes died, leaving the defendants, Anson P. Stokes and Frederic P. Olcott and Isaac N. Phelps, the sole surviving partners, and the said Phelps died in August, 1888, leaving Anson P. Stokes and Frederic P. Olcott sole surviving partners; and also leaving a will, which was duly proved, upon which letters of administration were issued to the appellants. The defendants, the executors of Phelps, interposed a demurrer to the complaint upon the ground that the complaint, as against them, failed to state facts sufficient to constitute a cause of action. This demurrer was overruled and from the judgment thereupon entered this appeal is taken. From an examination of the authorities cited by the appellants it appears that they claim that because the plaintiff, by reason of the assignment from his father, did not become a partner in that firm, he had no right to maintain this action.

It is clear that by such assignment lie obtained no rights as a partner, and was not responsible for the debts of the firm, as is held in the case of Burnett v. Snyder (81 N. Y., 555). And in none of the cases cited upon the part of the appellant is it held, that the assignee of the interest of a partner, upon the dissolution of the firm, has no rights which he may enforce against the survivors. In the case of Hooleyv. Gieve (9 Daly, 104)7 affirmed upon the opinion of the court below (73 N. Y., 599), it is expressly held that upon the death of a copartner the surviving partners become trustees of the partnership fund, not only for the creditors, but for the personal representatives of the deceased partner; and that the entire assets of the firm, subject to the payment of its debts, became impressed with a lien in favor of the representatives of the deceased partner, to the extent of the share of the deceased partner in the firm’s assets.

Now, in the case at bar the plaintiff is a representative of the deceased partner, James Stokes, by assignment; and if the assets, in the hands of the surviving partners are impressed with a lien in favor of the deceased partner, it is clear that he has a right and interest in the assets belonging to the firm, and having such right or interest as one of the personal representatives of James Stokes, deceased, he certainly can maintain the action for an accounting, in order that that interest may be ascertained.

It is an elementary rule of law that a cestui que trust may call his trustee to an account, and that is precisely the relation which existed between these surviving partners and the plaintiff, as assignee of James Stokes, deceased.

But it is insisted that the appellants are the executors of a partner who, surviving James Stokes, died since his decease, and, therefore, they have no interests in this controversy. Upon the contrary, these executors are cestuis que trust precisely the same as the plaintiff.

Anson B. Phelps and Frederic P. Olcott, the sole surviving partners of the firm, hold the assets of the firm as trustees of the representatives of the deceased partners, of whom Isaac N. Phelps is now one. In order that the accounts of the firm, as between the various claimants upon the same, may be settled, it is necessary that all the cestuis que trust be before the court, and, therefore, these executors are necessary parties defendants. The plaintiff has stated a cause of action as against them ; he has shown by the allegations in the complaint that they are necessary for a complete determination of these accounts.

If there had been any doubt in regard to the proposition herein-before stated, it is distinctly held in the case of Menagh v. Whitwell (52 N. Y., 146) that the assignee of the interest of a partner is entitled to an account of the dealings of the firm from its other members, and to share, to the extent of the assignment, in the surplus of the property of the firm.

It seems to us, therefore, both upon principle and authority, that the plaintiff is entitled to an account, and that he is entitled to bring in all those who are interested in the surplus of the property, after the payment of the debts, in order that there may be a complete -determination of the rights of all tire parties ; and the fact that, by the'assignment, he never became a partner in no way deprived him -of this right.

It would be difficult to say why a partner has not the right to assign his interest in a firm, and if he has that right, why his assignee has not the right to call upon a court of equity to determine the extent of his interest, which can only be done upon a settlement of the affairs of the firm.

We are of opinion, therefore, that the judgment should be affirmed, with leave to the defendants to answer within twenty days upon payment of the costs of the demurrer in the court below, and of this appeal.

Beady and Daniels, JJ., concurred.

Judgment affirmed, with leave to the defendants to answer within twenty days, upon payment of the costs of the demurrer in the court below and of this appeal.


author: Yan JBront, P. J.:

text:
    WALTER LANGDON, Plaintiff, v. THE MAYOR, ETC., OF THE CITY OF NEW YORK and THE BOARD OF THE DEPARTMENT OF DOCKS, Defendants. MARION LANGDON and Another, Plaintiffs, v. THE SAME.

      .Sminent domain — measure of damages — evidence — admissions of a party.

    In proceedings for the condemnation of property, under the exercise of the power of eminent domain, the plaintiff was awarded for the taking of his bulk-head, on the North river, by the city of New York, a sum based simply on a capitalization of the amount received for wharfage and cranage.
    Under chapter 261, Laws of 1858, there had attached to such bulk-heads in said city, what is termed the right of “ a preferential use” of said bulk-heads by certain •steamship lines, and that right had been declared by the (,'ourt of Appeals to be both vested and valuable.

      Meld, that, however problematical or difficult of estimation said preferential right might be, it was an element of value, and as such it was error to exclude evidence tending to show such value.

      That, in such proceedings, the owner of the bulk-head was entitled to its market value; that is, what the property could be sold for, there being included in the price the value of all rights connected with the property of any nature whatever.
    Reports of the dock department showing what it had paid for similar property on the North river were offered in evidence by the plaintiff and were objected to upon the ground that the deeds of conveyance should be produced, as they might show that in those cases more property was taken than in the present case.

      Held, that the reports should not have been excluded on the ground stated.
    An admission by a party that he has bought property at a certain price is evidence against him, and if he desires to limit the admission by showing the property to be different from what such admission would imply, the burden is upon him to establish the limitation.
    Motion on the part of the defendants to confirm a referee’s report, and motions by the plaintiffs to set aside the referee’s report and for .a new hearing.
    The action was brought to enjoin the defendants from building any structure in front of a bulk-head on West street, adjoining the Hudson river, between King and Leroy streets, in the city of New York, at which the plaintiffs had certain wharfage rights, and to recover damages for alleged loss of profits. The dock department of New York, claiming the right to do so without compensating the plaintiffs, had commenced to build a new wharf under plans prepared in accordance with chapter 574 of the Laws of 1871. By this act the dock department of the city of New York was authorized -to determine upon a plan of water front for the city, and also to •acquire in the name of the city all wharf property to which the city had not title, and any rights, terms, easements and privileges pertaining to any wharf property in said city.
    By chapter 261 of the Laws of 1858, it was provided that whenever the owners of any wharves and slips on the East river should lease the same to any of certain lines of steamers mentioned in the .act, “ the wharves and slips so leased shall during the term of the lease be kept and reserved for the exclusive use and occupancy of the steamboats of the lessees ■ to the extent necessary for the conducting and doing the business in which they are engaged.”

      W. IT. Peckham and W. J. Ma/rrim.., for the plaintiffs.

      Thomas P. Wickes, for the defendants. '
   Yan JBront, P. J.:

It has been determined in this action that the plaintiff was entitled to recover from the defendant the value of the property which was taken by the defendant in the construction of its new bulk-head wall in front of plaintiff’s bulk-head ; and the reference which has resulted in the report now before us was to take proof and report the same, with the opinion of the referee, as to the value of the property so taken, both at the time of the taking of the property and also at the time of the hearing before the said referee.

The referee, having heard the proofs, reported that, in his opinion, there was no difference in value between the time of the taking of the property and the time of the hearing, and reported in favor of the plaintiff for a very small amount of the sum which was claimed by him; and the question which comes before this court upon the presentation thereof is what judgment should be rendered upon the facts established.

The claims of the parties were very wide apart, and it seems to-us, upon an examination of the evidence, that the investigation has proceeded to a considerable extent upon an erroneous theory. It seems to be considered that as this right to the bulk-head was a right to collect wharfage and cranage, that therefore the measure of compensation to be paid to the plaintiff was to be necessarily limited to a capitalization of the amount which might be received at such bulk-heads for wharfage and eran,age, and, in the opinion of the learned referee, very copious references are made to the opinions of the Court of Appeals in these bulk-head cases to sustain this view.

"We think, however, that these opinions do not bear this construction, but'that the language used is to be interpreted in view of the question which was being discussed by the court and presented at the time. When these cases were before the Court of Appeals the court held that upon the question of damages error had been committed, because it appeared that the experts, who were examined as witnesses for the purpose of determining the value of the property taken, had included (and the referee had done the same) an erroneous element in fixing such value, and all that was decided was that a report, based upon evidence which had taken into consideration an erroneous element of valuation, could not be sustained.

There seems to be no reason, why the plaintiff, because of the peculiar nature of the property, stands in any different relation to the power exercising the right of eminent domain than the owner of any other property, namely, that he is entitled to compensation for the property of which he has been deprived. And the ordinary rule governing such measure of compensation is, that he shall be paid the market-value of the property. Market-value is ordinarily arrived at by conclusions deduced from transactions in property of a like character. Persons familiar with the property, and with dealings in property of a like character, are called upon to testify as to their opinion of its value, such opinion being based upon knowledge acquired by other transactions. Market-value is a plain definite term. A market signifies not only that there shall be sellers, but also that there shall be buyers, because there can be no market where everybody wants to sell and nobody wants to buy, or where everybody wants to buy and nobody wants to sell.

Therefore, in the case at bar the question to determine was, what in the market could the plaintiff have obtained for these rights which he had ? The fact that they produced a certain amount of income may have been some evidence of value. But it was by no means conclusive, nor was it the best evidence. A man might own a lot on Fifth avenue and be able to derive very little r.ent from it, and yet, for the purposes of sale it would be of great value. So it is established by the evidence in the case at bar that the mere right of collecting wharfage and cranage was but a small incident in what was the market-value of the ownership of such right. And it was shown and proven in this case, that to a certain class of the trade which came to the port of New York these bulk-heads were almost a necessity, and that this had been so early recognized that, in 185S, the legislature had passed an act, whereby the exclusive use of piers and bulk-heads or wharves and slips might be given to certain classes of commerce, to the extent necessary for the conducting and doing the business in which they were engaged.

It appeared that the large steamship companies, which were located in and about this property, were desirous of acquiring these bulkheads in order that their access to their slips might not be interfered with, And it is to be observed that this exclusive use, which is authorized by the act of 1858, does not refer only to the time of -the actual occupancy of the wharf and slip by the vessel itself, but such exclusive use may be kept and reserved, to the extent necessary for the conducting and doing the business in which the companies were engaged. If it is necessary to keep the slip vacant for an incoming-boat, although not actually there, in order that the business in which they are engaged shall be properly conducted, clearly such right can be reserved under that act, and the result of the ownership of this bulk-head right by these large steamship companies was, substantially, to prevent their being interfered with in the occupation of the slip by any other crafts entering for the purpose of getting to the bulk-head, which exclusive use was an absolute necessity for the proper conduct of the business in which these companies were engaged. This gave a substantial value to those bulk-heads far in excess of the right of collecting wharfage and cranage.

The learned referee states that, if the estimate of value presented on the part of the plaintiffs is adopted, he does not think a reasonable measure of compensation for the destroyed wharfage rights of tlie plaintiffs, as they have been limited by the courts, and the value of the incident of preferential use which, under the suggestion of the Court of Appeals, may be attached thereto, could be honestly ascertained and fairly measured; and he further states: “ I do not understand that what is stated in the Kingsland Case, concerning this incident of preferential use, necessarily requires that I should determine that it is so related to the wharfage rights of the plaintiffs in these cases, as to justify a compensation therefor, tremendously in excess of the value of their simple and uncomplicated wharfage rights.”

But the evidence in this case showed beyond question, that the market value of these bulk-heads was far in excess of the simple wharfage rights; and if that arose from these preferential rights,, however problematical they might be, the city had no power to deprive the plaintiff of his property without paying that which this-property was reasonably worth • — - that for which it could have been sold, whether such value arose from preferential rights or the right-to .collect wharfage. • Due compensation means paying the full value, and value is determined by what a thing can be sold for.

In view of the condition of the evidence in this case, at the time-it was submitted to the learned referee, we concede that it was impossible to make a just and fair estimate of tlie value of these rights. The evidence upon the part of the plaintiff undoubtedly gave a greatly exaggerated estimate of the value of these privileges ; and the estimate on the part of the defendant was, on the other hand, ridiculously small. The plaintiff does not seem to have been entitled to receive an award as large as is claimed by him; neither was the city to be allowed to appropriate this property for the mere bagatelle of the capitalization of the wharfage rights.

There was evidence offered, however, which was stricken out by the learned referee, which might have afforded a fair ground upon which an estimate of value might have been founded.

The plaintiff offered in evidence the reports of the dock department showing that they had bought what, in some instances, was described as bulk-head property and wharf rights, and in others bulk-head and wharf property, at various places upon the North river. This evidence was objected to solely upon the ground that the deeds should be produced, as they might show that the property referred to in the report comprised more than that which had been taken from the plaintiff. This objection was sustained and the offer of evidence was refused. This, we think, was error. If the plaintiffs had a right to show these facts upon the question of the value of these rights, then this evidence was competent; and if it was to be limited, it was the defendants who were called upon to limit the same. The nature of the evidence is not objected to; but the only objection is that the deeds should be produced. Now, if a party makes an admission that he has bought certain property at a certain price, that admission is evidence ; and if he wants to limit the admission, by showing that the property is different from that which the admission would imply, he has to offer evidence to show the limitation.

Thus it would appear that evidence which was very important in determining the value of these rights was excluded from consideration by the referee; and such evidence not having been admitted or considered, and not being in the record as far as this court is concerned, it cannot be considered by us; because, if the evidence is to be considered, the defendants should have the opportunity to show that, notwithstanding those admissions, the property purchased was differently situated and of a different character from that taken from the plaintiff, and that, consequently, the evidence could have no-bearing upon the question under investigation.

The value of this evidence is peculiarly great in a case like the ene at bar, where it appears that it is difficult to fix a market-value ■dependent uj>on actual transactions, these rights not being the subject of frequent barter and sale, so as to enable parties familiar with the market to speak from actual transactions, but their opinions being of necessity largely dependent upon ideas to some extent speculative.

"We think, therefore, that there having been an exclusion of evidence which was competent, and the investigation in respect to the value of this property having proceeded upon an erroneous theory, this report should be sent back in order that the parties may introduce additional evidence upon which a judgment may be rendered.

Barrett and Bartlett, JJ., concurred.

[Report sent back in order that the parties may introduce additional evidence upon which a judgment may be rendered.