text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. HENRY SILKENS v. JOHN McGLYN and Others, Composing the Board of Excise of the Town of New Utrecht.

      Mvcise law — revocation of a license — the licensee is entitled to he hea/i'd — certiora/i'i.
    It is provided by section 8 of chapter 175 of the Laws of 1870, as amended by section 4 of chapter 549 of the Laws of 1878, that a board of excise may at any time, and upon a complaint must, summon before it any person having a license, and that if it shall become satisfied that such person has violated any provision of the act, or of the acts amended, it shall revoke said license.
    Upon the hearing had on the return to a writ of certiorari issued to review the revocation of a license:

      Held, that it was the intention of the statute to give the accused a hearing before revocation.
    That where the accused appeared before a board of excise and denied the charge that his house was disorderly, and the board, without proof other than such as could be inferred from the character and standing of the complainants, summarily revoked the license, its action was improper and should be reversed.
    Certiorari issued upon tbe relation of Henry Silkens to review tlie proceedings of John McGlyn, A. B. Bennett and Rupert Werner, composing the Board of Excise of tlie Town of New Utrecht, had on or about July 13, 1891, revoking the license of said relator to keep a hotel or tavern in Sixty-fifth street, near Fourth avenue, in the town of New Utrecht, in the county of Kings.

      John JI. Keinble, for the relator.

      James O. Ghureh, for the respondents.
   Barnard, P. J.:

The revocation 'of the license was without legal justification. The-license is granted on conditions. It may be revoked fora violation of these conditions, or a violation of any of them. Complaint was made against the relator to the board of excise, averring that the relator kept his saloon open at irregular hours, and that the house was disorderly. The hearing was set down for July 13,1891. The relator appeared and denied the charges. The board vacated the license without proof other than that inferred from the character and standing of the complainants. The excise act (chap. 549, Laws of 1873, § 4), intended to give the accused a hearing and power to obtain witnesses. Tbe board of excise must be satisfied of tbe relator’s violation of the term of his license. This does not mean that an assurance of guilt by men of good character should be sufficient when the guilt is denied by the accused party. The decision is subject to review. (People ex rel. Healey v. Forbes, 52 Hun, 30.)

The order of the board of excise should, therefore, be reversed, with costs.

Pratt, J., concurred.

Order reversed, with costs.


source: Caselaw Access Project

author: Barnard, B. J.:

license: Public Domain

text:
    In the Matter of the Judicial Settlement of the Account of PATIENCE C. LOGAN and Others, as Executors of WILLIAM J. LOGAN, Deceased.

      Will -7- who are the “ legatees mentioned ” in the residuary clause.

    In the will of a testator seven persons were named as legatees; the widow, a nephew and four sisters received absolute gifts, but as to the fifth sister, the gift was of a life estate in personal property, with remainder over to her two children. The legacies were all made payable out of the personal estate. After their payment and the conversion of the estate into money, the residue thereof was directed to be divided “to and among the legatees mentioned in this my will, to whom I hereby give and bequeath the same, share and share alike.”.

      Held, that it was the intention of the testator to divide said residue into sevenths, of which the fee of one share went absolutely to the fifth sister, and that the two children of the fifth sister were not “ legatees ” in the sense that they were entitled to share with the other legatees in the division of the residue of the estate.
    Appeal by Patience O. Logan, as executrix, and William E. Keyes and William Logan, as executors of the will of William J. Logan, deceased, from so much of a decree, entered in the office of the clerk of the Surrogate’s Court of Kings county on the 18th day of June, 1891, as ordered, in- regard to a balance shown by said decree to be in the hands of said executors for distribution, that the executors do divide the balance then remaining, to wit: the sum of eleven thousand three hundred and two and dollars into nine (9) equal parts; that they pay one of said parts, namely, the sum of twelve hundred and fifty-five j8^ dollars to Patience O. Logan; that they pay another of said parts, namely, the sum of twelve hundred and fifty-five dollars to Ann E. Earley; that they pay another of said parts, namely, the sum of twelve hundred and fifty-five dollars to Mary Isabella Gumming; that they pay another of said parts, namely, the sum of twelve hundred fifty-five dollars to Eleanor S. Keyes; that they pay another of said parts, namely, the sum of twelve hundred and fifty-five dollars to William Logan; that they pay another of said parts, namely, the sum. of twelve hundred and fifty-five dollars to Adaline B. Logan; that they pay another of said parts, namely, the sum of twelve hundred and fifty-five dollars to Jane Olanny; that they pay another of said parts, namely, the sum of twelve hundred and fifty-five -j8^ dollars to Mary Eliza Olanny; that they pay another of said parts, namely, the sum of twelve hundred and fifty-five dollars to Eleanor Eockfellow.

      Daniel G. Rolli/ns, for the executors, etc., appellants.

      William D. Veeders for Jane Glenny and others, respondents.
   Barnard, B. J.:

The testator William J. Logan died leaving real and personal estate. By his will certain real estate and personal property is given to the widow in lieu of dower. A money legacy of $8,000 is given to a nephew, and a legacy of a similar amount is given to four sisters. By the fifth clause of the will there is a gift of a life estate in a similar sum to another sister, Jane Glenny, with a gift over, after the end of the life estate, to the two children of Jane Glenny, Eleanor and Jane Eliza Glenny. All these legacies are made payable out of the personal estate. By the thirteenth clause of the will the rest, residue and remainder of the estate was to be sold, and after paying the several legacies in full to divide such remaining sum, if there should be any, “ to and among the legatees mentioned in this my will, to whom I hereby give and bequeath the same, share and share alike.” The question is whether the Jane Glenny family take their share in this residiré as only one. There is nothing in the will from which it can be inferred that the testator intended to treat the share to be given to his sister Jane in any different way from the other legacies, except that Jane’s share was given for life, with remainder to her children, and the other shares were given absolutely.

Strictly speaking, Jane and each of her children were legatees, but not such under the words and meaning of the will. In the same clause, thirteenth, the testator directs the payment of the “ several legacies,” and of the aforesaid legacies, which words only cover the amount of $8,000 to Jane, and then he speaks of his division among the legatees mentioned in the will. The evident intent is that the Jane Clenny share is one legacy, and she is the only legatee intended to be embraced in this first residuary clause. The judgment should, therefore, be so modified as to divide the estate in seven parts, and directing that Jane Clenny take the one-seventh thereof.

The executor has no right to keep this residue for Mrs. Clenny, as the trust is as to the $8,000 only. The children have no right to this residue as none is given them in any fund, except the remnant of the $8,000. /

Judgment modified, with costs to all parties out of the estate.

Pratt, J., concurred.

Decree modified so as to divide the estate in seven parts, and that Jane Clenny have one part. Costs to all the parties out of the estate. Order to be settled by Justice Barnard.


author: Barnard, P. J.:

text:
    ALBERT HOWE, Appellant, v. THOMAS J. LEAREY, Appellant, Impleaded with JESSIE LEAREY, Respondent.

      Foreclosure — examination before trial — 'when permitted — defense that the plaintiff and the husband of a woman an'e conspiring to defeat her dower.

    Tilomas J. Learey, the husband of one Jessie Learey, bought certain premises which were, at the time, subject to mortgages thereon held by a bank. These mortgages were assigned by the bank to one Iiowe, who, upon the next day, began' an action for their foreclosure.
    Upon an application made in such action by Jessie Learey to examine, before answer, the plaintiff and her husband, her affidavit alleged that she was on bad terms with her husband; that he treated her cruelly and had endeavored to get her to sign a mortgage which would have cut oil her right of dower; that the plaintiff was a friend of her husband;,that the husband's money had paid for the said assignments, and that the plaintiff and her husband were conspiring to-assert the validity of said mortgages, which in equity were satisfied, and thus-cut off her inchoate right of dower.

      Reid, that the orders to examine the plaintiff and the husband were properly granted.
    That if the facts alleged by Jessie Learey were proved they would amount to a defense to the action.
    That, under the circumstances, the provisions of the Code relating to an examination before trial should be liberally construed.
    Appeal by the plaintiff Albert Howe from an order, entered in the office of the clerk of the county of Kings on the 22d day of May, 1891, denying a motion to vacate an order for his examination before trial; also an appeal by the defendant Thomas J. Learey, from an order entered in the same office, upon the same day, denying a similar motion to vacate an order for his examination before trial.
    It was alleged in the complaint that an assignment from the Irving Savings Institution to the plaintiff of certain bonds and mortgages was recorded April 10, 1891; the complaint in foreclosure thereof being verified upon the same day, as appeared by affidavit of Jessie Leary, which further alleged that the plaintiff was a friend of her husband, and that the plaintiff and the defendant Thomas J. Learey were conspiring together to deprive the said Jessie Learey of her rights in the mortgaged premises.

      Thomas F. Donnell/y, for plaintiff, appellant.

      Fromme Brothers, for defendant Thomas J. Learey, appellant.

      Arnoux, JRiteh do Woodford, for defendant Jessie Learey.
   Barnard, P. J.:

This action is brought to foreclose mortgages on real property owned by the defendant Thomas Learey. The mortgages were acquired by the plaintiff by assignment from the Irving Savings Institution. The mortgages were on the property when Learey bought. The defendant Jessie Learey obtained an order to examine the plaintiff and her husband. The order was obtained before answer. The affidavit upon which the order was granted was sufficient under section 872 of the Code, subdivision 4. No objection is made to the affidavit in any other respect than that no defense is proven to the action, and no sufficient facts and circumstances are established to justify an order for the examination. There is a defense shown, if true, iearey has conspired with the plaintiff to'assert the validity of the mortgages, which were acquired with Learey’s money, for the purpose of cutting off the rights of his wife therein. If Howe merely holds the title to the mortgages by an assignment when the same are paid, in fact, by the owner of the title, it will make a defense on the trial if proven. The husband is on ill terms with his wife; treats her with cruelty; is attenrpting to obtain her signature to a mortgage to cut off her dower; while he is of substantial means, he supports his wife and children with great meagerness; he threatens to cut off his wife and children from his estate so far as permitted by law. These facts and circumstances are sufficient to justify the order. The wife is entitled to know the particulars of the transaction so as to frame her answer. The rigid rule that if a party do not actually know the facts which make the defense, no order to examine can be granted, would render the section of the case in question of little particular use. The section should have a broader scope. Where facts and circumstances are shown which justify an examination of a party so that a pleading may be framed for the trial of the issue, the order should be granted. The notice of the defense, and the facts and circumstances to show that an examination is material and necessary are sufficiently stated, and the order should be affirmed, with costs.

Hykman, J., concurred; Pratt, J\, not sitting.

Order affirmed, with costs and disbursements.


text:
    ROSALIE A. BLEAKLEY, Respondent, v. TIMOTHY J. SULLIVAN, Appellant, Impleaded with Others, Defendants.

      jLandloi'd cmd tenant — special lien for rent on brieh made on the premises — its validity — subsequent mortgagee — confusion of goods.

    One Bleakley leased a "brick-yard to certain persons, who associated with themselves another party and formed a corporation for the manufacture and sale of brick. The lease granted the right to enter upon the property and take material for the brick; and further provided that after the first quarter’s rent became due, the lessees should at all times have and keep upon the yard enough good hard brick to pay one quarter’s rent, and upon default in the payment of the rent, the lessor was authorized to take and sell the brick and discharge the rent from the proceeds thereof.
    The lessees mortgaged all the brick on the premises to a third party.
    Rent having become due and remaining-unpaid, an action was brought to compel the execution of the covenants in the lease so far as respected brick sufficient to pay the rent due.

      Held, that the covenants were valid, and that under them Bleakley, not having parted with the ownership of the material from which the brick was made, had always been in possession of the brick in an amount sufficient to discharge the rent.
    That the third party holding the mortgage was in no better position than his mortgagors, who could not sell the brick below an amount which would satisfy one quarter’s rent.
    That if the brick which the lessees should have reserved had become confused with other brick the lessor should not suffer because thereof, and was entitled to take from any brick in stock sufficient to pay her rent.
    Appeal by the defendant, Timotliy J. Sullivan, impleaded with others, from a judgment entered, in the office of the clerk of the county of Westchester on the 19th day of May, 1891 (after a submission upon an agreed statement of facts at the Westchester Special Term), restraining him and others from removing certain brick from a brick-yard belonging to the plaintiff.

      G. W. Horton, Galvin Frost and Frcmldi/n Gouch, for the appellant.

      David W. Travis, for the respondent.
   Barnard, P. J.:

The plaintiff executed a-lease to McGuire & Griswold of a brickyard at Verplanck’s Point, in Westchester county. The lessees took in another party and formed a corporation under the name of McGuire & Cq., for the manufacture and sale of brick. The lease granted the right to enter upon the plaintiff’s property and take the material for the manufacture of the brick. The lease provided that at all times, on and after the first quarter’s rent became due, the lessees should have and keep upon the yard good hard brick, enough to pay one quarter’s rent. In case of default in payment of rent, the lessees were authorized to take the brick and sell the same, and discharge the rent due, with expense of sale. There is rent due and the lessees have mortgaged to Sullivan, one of defendants, all the brick in the yard. The action is brought to compel the execution of the covenants in the lease so far as respects brick sufficient to pay the undue rent. The lease was not a chattel mortgage. It did not convey property with a defeasance, and it operated on no specific property. The landlord never parted with the title and her claim rests upon her personal right thereon.

She owned the yard and the materials with which brick was made. She gave the right to the brickmakers to take her property and make it into brick, but no sale could be made below an amount sufficient to pay her rent. The lessees never had a right to sell and could not sell to Sullivan without observing this covenant. A mortgagor can give no title greater than he has. The lessees were always in possession of the brick reserved; this possession followed her title to the land and to the product of the land, so far as such product was reserved for her own safety, until the covenant of payment was fulfilled. It was the fault of the lessees if this reserved amount of brick was mixed with other brick, and when a confusion of goods is thus made the lessee gets no benefit.

The landlord can take out of the confused goods an amount equal to his demand. The agreement was good in law; was beneficial to the tenants, and they could onot evade it in the manner shown by the case.

The judgment should be affirmed, with costs.

Puatt, J., concurred; DyKMAN, J., not sitting.

Judgment affirmed, with costs.


author: DyeMAn, J.:

text:
    GEORGIANNA BIGELOW, Appellant, v. WILLIAM H. DAVOL, Respondent, Impleaded with Others, Defendants.

      Foreclosw'e — failure to make the holder of a second mortgage a party — he may foreclose and need not redeem.

    ■Where the holder of a first mortgage forecloses it and becomes the purchaser at the sale, but fails to make the assignee of a seco.nd mortgage, whose assignment is of record, a party to such action of foreclosure, the assignee of the second mortgage is entitled to foreclose his mortgage, and his remedy is not limited to an action to redeem the premises.

      Salmon v. Allen (11 Hun, 39) and Boss v.' Bom’dman (33 id., 537), criticised.

      Walsh v.The Mutger’s Wire Insurance Company (18 Abb. Pr., 88), followed.
    Appeal by the plaintiff Georgianna Bigelow from a judgment, entered in the office of the clerk* of the county of Kings on the 20th day of July, 1891, dismissing the complaint, with costs, after a trial at the Kings County Special Term, with notice of an intention to bring up for review upon such appeal an order, dated on the 8th day of April, 1891, directing the aforesaid judgment, and vacating and canceling the Ms pendens filed in this action, and directing the clerk of Kings county to mark the same and its record accordingly.

      A. P. Bates, for the appellant.

      William Man, for the respondent.
   DyeMAn, J.:

The facts in this case, so far as they control the questions of law involved, are. few and simple, biit there are some important questions respecting the premises, and also respecting an old mortgage which appears to be destroyed by lapse of time.

The question upon which the determination of this appeal must turn is whether the holder of a second mortgage, whose assignment was duly recorded, can maintain ah action for the foreclosure of her mortgage, where the holder of a prior mortgage has foreclosed his mortgage by an action in the Sirpreme Court, without making the holder of the second mortgage a party to his action, and has become the purchaser of the premises at the sale under the judgment.

The following are the facts: In August, 1884, Richard B. Duyckinck and Alexander T. Ai’thur made a mortgage for $20,000 to Henry J. Smith and John E. Smith upon the premises in question, which was recorded the same day as its date. That mortgage was assigned to Henry C. Hutchinson.

On the 8th day of September, 1887, Cecilia Y. Arthur and Archibald Arthur executed a bond and mortgage upon the premises to Joseph M. Pray, which mortgage was recorded on the 8th day of October, 1887. Joseph M. Pray assigned that mortgage to the plaintiff, by a written assignment, on the 8th day of October, 1887, which was recorded November 21, 1887..

About April, 1889, Hutchinson commenced an action in tbe Supreme Court and made Pray a party defendant, but did not make the plaintiff in this action a party. The action proceeded to judgment, and the premises were sold subject to an old mortgage to the plaintiff Hutchinson.

This action to foreclose the second mortgage was tried before the court and decided against the plaintiff, and the court found, as a conclusion of law, that the only remedy of the plaintiff was by an action to redeem the premises, and dismissed the complaint, with costs. We are unable to concur with the learned trial judge in his disposition of this case.

It is a fundamental principle that no person can be bound, concluded or affected by any judicial proceedings to which he is not a party and in which he has been afforded no opportunity to assert his interests or defend his rights.

As a legitimate deduction from this universal principle, the plaintiff in this action cannot be affected by the foreclosure suit to which she was not a party, and she stands in relation to it as if there had been no such action; as to her the suit is anullity. (Miner v. Beekman, 50 N. Y., 344; Walsh v. Rutgers Fire Ins. Co., 13 Abb. Pr., 33; Brainard v. Cooper, 10 N. Y., 356.)

If, therefore, the plaintiff remains unaffected by the foreclosure of the prior mortgage, then there is no reason why she should not be permitted to enforce her security, and she has done nothing to forfeit her rights or estop her from the collection of her mortgage.

It would be a new and somewhat startling doctrine to establish that the holder of a prior mortgage, by omitting to make the holder' of a second mortgage a party to his action to foreclose the first mortgage, could thus deprive him of his right to foreclose his mortgage, and drive him to a redemption by paying off the prior mortgage. Such, however, is the principle for which the defendant and respondent necessarily contends, and he cites the case of Salmon v. Allen (11 Hun, 29), in support of his position.

It is true there were some remarks, in the opinion in that case, which are favorable to the appellant, but the case was peculiar and is not an authority for anything. It was the purpose of the court, in that case, to point out irregularities and to show that the proper-judgment had not been entered, and to place the action in a position to straighten the title by the judgment finally to be entered. Sucli was the view of the judgment which the Court of Appeals took when the case was there. (Salmon v. Gedney, 75 N. Y., 480.) If it went further or intended to dp so, it is antagonistic to both principle and authority, and will not be followed.

The case of Ross v. Boardman (22 Hun, 527), was also peculiar, but the judge, who prepared the opinion of the court, was careful to say that the omission to make the woman claiming dower a party to the action to foreclose the senior mortgages, left her interest in the property the same as though no such action had been prosecuted.

The case of Walsh v. The Rutgers Fire Insurance Company (13 Abb. Pr., 33), decided by the General Term in this district, is precisely like this, and is a controlling authority in favor of the plaintiff.

In that case, as in this, the premisés had been sold under a judgment upon a prior mortgage held by the defendant, and bought in by it. The plaintiff was not a party to that action, although the original holder of the mortgage was made a defendant. He had assigned the mortgage to the plaintiff and the assignment was on record. In a well-considered opinion in that case it was decided that the utmost effect of the foreclosure and sale was to transfer the equity of redemption from the mortgagor to the plaintiff in the foreclosure. Also, that it was regular and necessary for the holder of the second mortgage to institute a suit to foreclose his mortgage, and the plaintiff in the first foreclosure was properly made a party defendant. That the prior mortgagee in possession was entitled to have a sufficient portion of the proceeds of the sale applied to the payment of his debt, but no offer to redeem the premises or pay the first mortgage was necessary. This latter point, of course, proceeds •upon the theory that as to the holder of the second mortgage, the first mortgage is still subsisting and unforeclosed.

¥e think the examination has proceeded sufficiently far to manifest the error, and the judgment should be reversed, with costs to abide the event.

Barnard, P. X, and Pratt, J., concurred.

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


author: DyeMAN, J.:

text:
    RUSSELL BRUSIE, Respondent, v. PECK BROTHERS & CO., Appellant.

      Entry of judgment in an action to recover royalties — when only a general (not a limited) judgment earn, he entered.

    An action was brought by a patentee to recover royalties under a written contract, made with a foreign corporation, by which the latter acquired the right to manufacture and sell lawn sprinklers under the patent. The complaint demanded both legal and equitable relief. The case was sent from the Special Term to the circuit, where, upon the trial, no claim was made for equitable relief. The plaintiff recovered for royalties only. In entering judgment the plaintiff’s attorney inserted therein clauses, the effect of which was to declare that the recovery embraced only claims for royalties which had accrued up to the time when the action was begun.
    Upon a motion to strike these clauses from the judgment,

      Meld, that, as there was nothing before the clerk to justify their insertion, the clerk had power only to enter a general judgment; after having done which, his power was exhausted, and that said clauses must be stricken out.
    Appeal by the defendant, Peck Brothers & Co., from an order made at Special Term, and entered in the office of the clerk of the ■county of Kings on the 8th day of January, 1891, denying defendant’s motion to strike out the words “ thus limiting any recovery to claims arising prior, to the commencement of the action; ” and also the words “ down to the time of the commencement of the action ” in the judgment and postea in this action ; and that said judgment •andposteabe so amended, and from each and every part of said order The action.was brought by one Russell Brusie, in order, among other things, to recover royalties under a written contract with Peck Brothers & Co., a corporation incorporated under the laws of Connecticut, by which it acquired the exclusive right to make, use and sell a lawn sprinkler. The complaint set up both legal and equitable grounds of action. It demanded an injunction; that said contract be annulled for fraud, and asked for damages and an accounting. The case was first noticed at Special Term, where the court, by order, sent the case to the circuit, where the jury rendered a verdict for the plaintiff for $7,674.02; and also answered one specific question submitted to them relating to the device or idea embodied in the lawn sprinkler. The verdict contained nothing else.

      Robert Sewell, for the appellant.

      Robert L. Wensley, for the respondent.
   DyeMAN, J.:

"When the plaintiff came to enter his judgment upon the verdict he obtained at the circuit, he did so in these words:

“ The issues in this action having been sent by order from the Special Term to the circuit for trial [thus limiting any recovery to •claims arising prior to the commencement of the action], and the issues having been tried at circuit, and a verdict having been rendered in plaintiff’s favor, assessing his damages [down to the time of the commencement of this action] at $7,674.02, and the costs having been taxed at $1,521.59, now, on motion of Robert L. Wensley, plaintiff’s attorney, it is

“Adjudged that plaintiff do have and recover of the defendant "the sum of $7,674.02 as damages, and $1,521.59 costs, amounting, in all, to $9,195.61, and that plaintiff have execution therefor.

“WE J. KAISER,

“ OlerJe.”

The defendant made a motion to strike out the words included ■above in brackets, and the motion was denied, and the defendant has appealed from the order.

We think the motion was erroneously denied; there was nothing before the clerk to justify the interpolation of the objectionable words. He had authority to enter a general judgment in favor of the plaintiff against the defendant, and then his power was exhausted. His duties in making the entry were ministerial, and he could neither enlarge nor abridge the scope or operation of the judgment he was authorized to enter.

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

BabNAbd, P. J., concurred; Pratt, J"., not sitting.

Order denying motion to correct judgment and postea reversed,, with costs and disbursements, and motion granted, with costs of motion.


author: DyKMAN, J.:

text:
    MARY B. VAN CLEAF, Respondent, v. CATHARINE BURNS, Appellant, Impleaded with Others, Defendants.

      Dower — a divorce in a foreign State for a cause not sufficient in New York — its effect as to tarring dower in land in New York.

    In an action brought for the recovery of dower it appeared that the plaintiff's, husband had brought an action against her in Illinois for willful desertion, in which she, although a resident of the State of New York, appeared; that the court, of Illinois had-jurisdiction of the subject-matter of the action a^d of the parties; that the husband was granted an absolute divorce; that such a divorce, under the statute of Illinois, was a bar to any claim for dower in real estate in Illinois.

      Meld, that the same effect miist be given to the foreign judgment of divorce upon real estate situated in .this State, and that the plaintiff could not recover dower’ in land against her husband’s grantee thereof.
    Appeal by tbe defendant Catharine Burns from a judgment,, entered in the office of the clerk of the county of Kings on the 28th day of July, 1891, decreeing dower to the plaintiff in premises, in the State of New York, being the land described in the complaint, and ordering a sale thereof, after a trial by the court at the Kings. County Special Term.
    The court found as facts that on or about the 6th day of July,, 1875, Mary B. Yan Cleaf, the plaintiff, was lawfully married to-.David Yan Cleaf, and that during the period between said marriage and the death of the said David Yan Cleaf, which occurred on or about the 12th day of November, 1884, he was seized in fee simple- and possessed of the premises in question, which were situated in the city of Brooklyn.

      That by a conveyance dated February 29,1884, David Yan Cleaf, named in tbe complaint, conveyed to tbe defendant, Catharine Burns, tbe premises described in tbe complaint for the consideration of $6,000, which, for tbe purpose of this action, is to be deemed tbe then value of said premises, and tbe plaintiff did not unite in said conveyance.
    That in an action in the Circuit Court of Cook county, Illinois, in which David Yan Cleaf was plaintiff and said Mary B. Yan Cleaf was defendant, brought for a divorce and dissolution of the marriage for the cause and ground that said Mary B. Yan Cleaf had willfully deserted and absented herself from said David Yan Cleaf, her husband, without any reasonable cause, for the space of more than two years before the commencement of such action, which, by the laws of Illinois, was a ground for absolute divorce and dissolution of the bond of marriage, such proceedings were had that on April 9, 1891, judgment was granted and perfected therein in favor of said David Yan Cleaf against said Mary B. Yan Cleaf,. dissolving the bond of marriage 'between them for the cause and ground aforesaid, which cause and ground was, by said judgment,, adjudged to exist.
    That said court, in pronouncing said judgment, had jurisdiction of the subject-matter of the action and judgment, and of the parties thereto.
    That said David Yan Cleaf was, at the time of said action and judgment, domiciled in Chicago, in the State of Illinois, and said Mary B. Yan Cleaf,'on October 18,1880, appeared in said action in person and filed her answer in writing to the complaint, having first received notice of the commencement of the suit by the service on her in this State of the summons and complaint.
    That the plaintiff was, during all the time above mentioned, a resident of the city of Brooklyn, in the State of New York.
    That at the time of the pendency of said action in the State of Illinois, and at the time of the entry of said judgment, the following was a portion of the statute law of said State:

      “ If any husband or wife is divorced for the fault or misconduct of the other, except where the marriage.was void from the beginning, he or she shall not thereby lose dower nor the benefit of any such jointure; but if such divorce shall be for his or her own fault or misconduct, such dower or jointure, and any estate granted by tbe laws of this State in the real or personal estate of the other, shall be forfeited.” (1 Ill. R. S., p. 90 § 14.)
    That by the laws of Illinois, during the period of the marriage between the plaintiff and David Van Cleaf, and at the time of said divorce, a wife was, upon the death of her husband, endowed of one-third the lands of which her husband had been seized of an estate of inheritance during coverture.
    That the cause for which the said divorce was granted was, at the time of the said divorce and of the pendency of the action therefor, by the law of Illinois, “ misconduct ” within the meaning of said statute; and the said divorce, by virtue of said statute, worked a forfeiture of and terminated and extinguished all dower and right of dower of this plaintiff in the lands of said David Van Cleaf in the State of Illinois.
    That at the time of the death of said David Van Cleaf the plaintiff was of the age of forty-seven years, and the plaintiff has, as required by statute, consented to accept a gross sum in lieu of dower.
    The court found, as matters of law, that the plaintiff was entitled to recover her dower in said premises, with damages for withholding the same and for the costs of this action against the defendant, Catharine Burns, and an additional allowance of $250 was granted.

      Josiah T. Mcurecm, for the appellant.

      John JET. Kemble, for the respondent.
   DyKMAN, J.:

We think this judgment, in favor of the plaintiff, should be reversed.

By the case, as it is now presented, it expressly appeal’s that the judgment of divorce granted by the court in the State of Illinois has the effect to deprive the plaintiff of dower in that State, and the case is thus free from the decision of the Court of Appeals.

In the opinion of that court it was said: “ No other misconduct (than adultery) is here permitted to deprive a wife of existing dower rights, even if it is the basis of a judgment of divorce lawfully rendered in another State, unless it expressly appears that such judgment has that effect in the jurisdiction where it was rendered, and as to that we express no opinion.” (Van Cleaf v. Burns, 118 N. Y., 556.)

As, therefore, the judgment of divorce has the effect to deprive the plaintiff of dower in the State of Illinois, the jurisdiction where the judgment was rendered, we think it should be permitted the same operation, in this State.

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

BARNARD, P. J., and.PRATT, J'., concurred.

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


author: DykmáN, J.:

text:
    JOHN MITCHELL, Appellant, v. EDWARD LANE, Respondent.

      Hfjectment — an assessment is void where the statutory powers are exceeded — former adjudication. — when it will be disregarded — costs and ext/m allowance.

    In an action of ejectment the plaintiff claimed title under a deed to him, dated September 11,1871, from certain commissioners, appointed under chapter 781 of the Laws of 1866, as amended by chapter 558 of the Laws of 1867, to open a drain in the town of Fishkillupon premises described in the act. It appeared that the commissioners opened the drain, and also built to the lands of the defendant a lateral ditch, which was not named in the act, and included in their assessment the cost of both. In January, 1871vthe defendant took proceedings by certiora/ri to review the action of the commissioners, which was declared in such proceeding to be regular.
    Subsequent to January 20,1871, the commissioners sold the lands of the defendant for non-payment of the assessment laid for said drains.

      Held, that the powers of the commissioners were purely statutory, and that they had exceeded them by including in their assessment the cost of the lateral ditch, and that the assessment was void and that a sale under it conveyed no title to the purchaser.
    That the adjudication in the proceeding by certioran'i must have proceeded upon some misconception of the facts, and the court would not consider itself bound thereby.
    That as the defendant had received the benefit of the lateral ditch he should not be allowed costs or an extra allowance.

      Appeal by the plaintiff John Mitchell from a judgment, entered in the Dutchess county clerk’s office on the 24th day of June, 1891, •dismissing the complaint, with costs, after a trial before the court in Dutchess county; also from the findings and order in the action •ordering judgment for the defendant, with costs and an extra allowance.
    The action was ejectment. Commissioners to open, enlarge and •straighten a drain in Bishkill were appointed by chapter 781 of the Laws of 1866, as amended by chapter 558 of the Laws of 1867, who 'completed their work on July 25, 1870 ; their assessment on August 16, 1870, and on December 8, 1870, filed their report. They gave notice to Lane, the defendant, that they would, on January 20, 1871, sell his lands for non-payment of the assessment. On January 19,1871, he procured a writ of certiorari to review these proceedings. The commissioners made a return. The General Term of the second •department, in July, 1891, declared the proceedings regular. The judgment on this decision was .signed July 11, 1871. Between this ■date and September 11, 1871, the date of the deed by the commissioners to the plaintiff, a sale was made.

      H. H. Hustís, for the apjtellant.

      Schlosser c& Wood, for the respondent.
   DykmáN, J.:

On the 24th day of April, 1866, the legislature of the State of New York passed a law appointing three commissioners who were named in the act, for the purpose of opening, enlarging and straightening a drain in the town of Fishkill, which was particularly described.

The commissioners executed the work and performed their duties •specified in the law, and in addition thereto they cut and dug a lateral ditch, not specified in the law, and included the expense of both in the assessment which thej'- made for such expense under the .statute. The lands of the defendant were sold under the assessment and purchased by the plaintiff, who received a conveyance therefor from the commissioners, and now brings this action of ejectment ’ for the recovery of the land. , The powers conferred upon the •drainage commissioners by the statute were qualified and special, and it became necessary for the plaintiff, who claims title to the premises under a conveyance from them, to show that they had in all things followed the statute without exceeding or violating its provisions. They could take no power or authority by implication, and proof of their strict pursuit of the statute was an essential prerequisite to his recovery. Instead, however, of producing proof of strict observance of the statute, it appears that the commissioners exceeded their power and opened two ditches instead of one. The statute authorized them to open, enlarge and straighten one drain and they opened two, and included the expense of both in their assessment. "Within well-settled rules of law the inclusion of the expense for the second ditch in the assessment levied by the commissioners vitiated the same and rendered it absolutely void. The assessment being thus void, the sale under it was a nullity and conferred no title upon the purchaser.

It appeared, from the record before us, that the proceedings of those commissioners were brought before the Supreme Court by certíorari for review in the year 1811, and that their proceedings were adjudged to be regular and valid, and that adjudication is now set up as conclusive and binding upon this court in this action. We think there was some misconception of the facts induced by the returns in that proceeding, for the decision is plainly erroneous, and we cannot follow or be led by it. There was an additional allowance to the defendant in this action of $100, which was excessive in any view, five per cent upon the highest amount claimed would amount to only twenty-nine dollars, but we think there should have been no allowance.

The defendant occupies quite an ungracious position. His land has received the benefit of the drainage, and we have no difficulty in finding that he induced the plaintiff to buy in the land for him and promised to repay him his bid.

The judgment should be modified by striking out the additional allowance of $100, and as go modified affirmed, without costs to either party on this appeal.

PRAtt, J., concurred; BaeNAbd, P. J., not sitting.

Judgment modified by striking out extra allowance, and affirmed otherwise, without costs.


text:
    JULIA MORRIS, Respondent, v. JOHN MORRIS and Others, Appellants.

      Fraudulent conveyance — action to set it aside — evidence of sufficient personal property of the debtor in the hands of the creditor to pay the claim.

    One' Julia Morris made an agreement with her son that, in consideration of a transfer of personal property made by liér to him, he would support her and his father on his farm. The son broke the contract, and Julia Morris recovered a judgment against him for damages and costs, amounting- to $252.06, upon which an execution was issued, and was returned nulla bona. She then brought an action to set aside a fraudulent transfer of a farm made by the son before the entry of her judgment, but recorded after it.
    Upon the trial the defendants offered to show that Julia Morris took away from the son’s farm, when she left, some or all of the property which she had transferred to him as the consideration of his agreement to support her and his father; that the property so taken was worth $800, and that the sheriff had been directed to levy upon it in the possession of Julia Morris.

      Held, that it was error to exclude the evidence.
    That the case, as presented upon appeal, must be decided upon the assumption that when Julia Morris issued execution upon her judgment, she was in possession of personal property of her son sufficient to pay her judgment against him in full.
    Appeal by the defendants, John Morris, S. Marie Morris and Marie S. Crowe, from a judgment, entered in tlie clerk’s office of Rockland county July 10,1891, in favor of the plaintiff and against the defendants, after a trial before the court and a jury at the Rock-land Circuit, with notice of an intention to bring up for review • upon such appeal an order made July 20,1891, appointing a receiver.

      Garrett Z. Snider, for the appellants.

      ArtTvu/r S. Tom/pKns, for the respondent.
   Barnard, P. J.:

The plaintiff made an agreement with her son, the defendant John Morris, that in consideration of a transfer of personal property 'to the son by the mother, that he, the son, would support the mother and her husband on his farm. The son broke the contract and the plaintiff obtained a judgment against him for damages and costs, $252.06, on the 6th of October, 1890. An execution was returned unsatisfied, and the plaintiff by this action seeks to set aside a transfer by the son of his farm made the 20th of September, 1890, but not recoi’ded until after the trial of the action for breach of contract. The defendant John Morris transferred the farm to his. mother-in-law, the defendant, Mrs. Crowe. An express agreement was shown that the transfer was made to prevent; the plaintiff from collecting her judgment. The consideration was not real, and the transaction was not done in good faith. The only question, therefore, is whether the trial was had without error. The defendants offered to show that the plaintiff took away from the farm in question, when she leit, some or all of the property she had assigned to her son as the consideration of her agreement with him. That this property was worth $800 as claimed by John Morris. That the sheriff was told to levy on this property in the possession of his mother. The evidence should have been received. (Cuyler v. Moreland, 6 Paige, 273; Storm v. Badger, 8 id., 130; Forbes v. Waller, 25 N. Y., 430.)

The case must now be decided upon the assumption that, at the time of the issuing and return of the execution against John Morris, the plaintiff had abundant personal property of his in her possession out of which to pay the same, with all costs.

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

Pratt, J., concurred.

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


author: Barnard, P. J.: Dykman, J.

text:
    MATTHEW GAUNT HEPWORTH, Respondent, v. THE UNION FERRY COMPANY OF BROOKLYN, Appellant.

      Corporations — dissolution — an action for a tort su/i'nives — it may be continued against the directors as statutory trustees for creditors.

    One Matthew Gaunt Hepworth handed to the ticket seller of aferry company money for a passage upon its hoat. The employee kept the money, refused to give a ticket and assaulted Hepworth, who thereafter began an action against the ferry company to recover the damages resulting from the assault. While the action was pending the charter of the ferry company expired by its own limitation.

      Upon an appeal irom an order, made on tlie plaintiff’s application, continuing tlie action against tlie directors of tlie ferry company, acting as trustees for creditors, under tlie Revised Statutes, in the settlement of the affairs of the company:

      Held, that the order was proper.
    That, under the Revised Statutes, a claim arising out of a tort committed by the corporation stood upon the same basis as one resting on a contract with it.
    That as the charter of the company pledged its property to pay all damages for the misfeasance of its employees, it was the duty of its managers or directors to pay all of its debts.
    That the court had, of necessity, power to continue the action.
    'That the statutory trustees of the company were the proper parties defendant.
    (Dykman, J., dissenting.)
    Appeal by the defendant, the Union Ferry Company of Brooklyn, from an order, dated tbe 30th day of July, 1891, and entered in tbe office of the clerk of the county of Kings, granting a motion to ■revive the action and making the late directors of said company the .statutory trustees, under the Revised Statutes, parties defendant.
    The petition of the plaintiff; contained, among others, the following-allegations :
    That in and by the terms of the charter of said defendant it is provided, in substance and effect, that “ out of the issues and profits should be paid all costs, damages and expenses of every kind arising from injuries by collision, or injuries of any kind from accident or neglect, or misfeasance of persons employed in and about the business of the ferry or ferries of said company. The directors of the -.said company shall be authorized to retain and reserve therefrom ” (that is to say, the net capital of said company), “ such amount as in ■the discretion of the directors may be just and proper to meet all claims or demands then made or which may be anticipated, and for •which the company may or can in any manner be liable.”

      ,B. D. Silliman, for the appellant.

      ■James K Averill and E&wwd V. B. Kissam, for the respondent.
   Barnard, P. J.:

On the 9th of June, 1889, the plaintiff handed to the defendant’s ticket seller, in New York, money for a passage across the river to Brooklyn. The defendant kept his money, refused a ticket and committed an assault on him, and forcibly put him in the street. The plaintiff commenced an action for the assault in October, 1889. The corpoi’ation denied the facts on which the plaintiff based his complaint, and while the action was at issue and untried, the charter of the defendant expired by its own limitation. The Revised Statutes provide that on a dissolution of a corporation, the directors shall be trustees for the creditors and stockholders, with full power to settle the affairs of the corporation. A power to continue the action against the corporation, when its charter expired, pending an action against it, was given by chapter 295, Laws of 1832. This law was repealed in 1880. (Ghap. 245, Laws of 1880.)

The tort stands upon the same basis as a contract. (Martin v. Walker, 12 Hun, 46; Ford v. Johnston, 7 id., 563; Baker v. Gilman, 52 Barb., 26.) These cases either hold or approve of the principle that a conveyance made during a pending litigation to defeat the collection of a judgment for a tort can be set aside as if it was a contract debt. In other words, the statute creditor embraces those persons whose claims are based upon torts.

The charter pledges the' property of the corporation to pay all damages for misfeasance of the company’s employees. The law makes the directors trustees to settle' the affairs of the corporation and to pay all debts against the corporation. The court has the power to continue the action which was pending at the dissolution of the corporation, of necessity. Such power existed before the act of 1832, and exists since the repeal of 1880.

A judgment taken against a corporation whose charter had been dissolved by decree, and after notice by the attorney for the corporation that he had no further power to appear in the case, was held void by the Court of Appeals. (McCullock v. Norwood, 58 N. Y., 562.)

In the present case the order makes the statute trustees defendants, and this seems to be the rule recognized in McCulloch v. Norwood (supra).

The order is, therefoie, right and should be affirmed, with costs and disbursements.

Pratt, J., concur-red.

Dykman, J.

(dissenting):

This is an appeal from an order continuing an action for assault and battery against the trustees of an incorporated company after the expiration of the time limited for its continuance in its articles of incorporation.

The action was commenced on the 19th day of October, 1889, and the charter of the Union Ferry Company expired, by limitation of the time specified in its charter, on the 9th day of November, 1890.

On the 23d day of May, 1891, a motion was made at the Special Term to revive and continue this action against the directors of the corporation, who were in office at the time of its dissolution, and an order to that effect was made on the 30th day of July, 1891, from which the defendant has appealed.

Under the common law there was no provision for winding up the affairs of a dissolved corporation, but its personal property was forfeited to the crown, and the real property of which it was seized at the time of its dissolution reverted to the grantor. But that severe rule of the common law was unsuited to modern times, and especially to this country, and with us it was ameliorated by our statute as follows : l£ Upon the dissolution of any corporation created, or to be created, and unless other persons shall be appointed by the legislature, or by some court of competent authority, the directors or managers of the affairs of such corporation at the time of its dissolution, by whatever name they may be known in law, shall be trustees of the creditors and stockholders of the corporation dissolved, and shall have full power to settle the affairs of the corporation, collect and pay the outstanding debts, and divide among the stockholders the moneys and other property that shall remain after the payment of debts and necessary expenses.” (1 R. S., 600, § 89.)

Then the law of 1832, to prevent the abatement of suits by or against corporations, was enacted, and while it was in force all suits and proceedings against corporations which had been dissolved, which were pending at the time of such dissolution, could be continued until final judgment, with the same effect upon the rights of the parties as if such corporation had not been dissolved. (Laws of 1832, chap. 295, § L) But that statute was expressly repealed in 1880. (Chap. 215 of the Laws of 1880, p. 369, § 10.)

It does not appear that any other persons have been appointed, either by the legislature or by any court, and we, therefore, assume that the directors of this corporation at the time of its dissolution are, by virtue of the statute quoted, trustees of the creditors and stockholders of the confpany, with the powers conferred upon them by the statute.

They are, therefore, trustees of the creditors and stockholders of the company, with power to collect and. pay the outstanding debts and divide the money and property which shall remain after the payment of debts and necessary expenses among the stockholders. But they are not trustees of the plaintiff, because he is neither a creditor nor stockholder of the company. The corporation never owed him any money, and nothing was ever due to him from it, and the directors of this company possessed no power to pay him, although they are clothed with' ample authority to pay outstanding debts of the corporation.

A cause of action for a tort is not an indebtedness, and it would be contrary to all the analogies of the law to consider it so. If it was a debt, it would survive the death of the claimant, whereas the universal rule is that it dies with him.

It required a special statute to enable actions for wrongs to the property rights or interests of another to be maintained against the executors or administrators of a deceased wrong-doer, and from that statute is expressly excepted actions for slander, libel, assault and battery, false imprisonment and actions for injuries to the person. (3 R. S. [5th ed.], 746, §§ 1, 2.) -

The claim ”of the plaintiff is not assignable, as it would be if it created a liability against the company.

So it required a statute to prevent the abatement of an action for the recovery of damages for personal injuries by the death of a party after verdict or decision. (Code of Civil Procedure, § 764.)

Provision is made by law for "the enforcement of payment of liabilities of deceased persons by a sale of their real property, but that law could never be applied in favor of a person who held an unliquidated claim for damages sounding in tort.

The argument of the plaintiff, that his claim is against the prop- ■ erty of the defendant. and founded on contract, is built up on the theory that the law implied an undertaking, on the part of the defendant, to protect the plaintiff from injury arising from the misconduct of its servants while in the performance of a duty which the defendant owed to him during the continuance of the relation of passenger and carrier between the plaintiff and the defendant, and because the defendant was bound to'use ordinary care for his safety while he was such passenger, the misconduct of the servant of the defendant was a breach of the contract of the defendant. So far as this assumption embodies the law it is correct, but the deduction made from it by the plaintiff is not legitimate.

It is assumed that the relation of passenger and carrier existed between the plaintiff and defendant, not because the fact is conceded, but because that is the most favorable view for the plaintiff, and it is in consequence of such relation that the defendant becomes responsible for the wrongful act .of its servant. An assault and battery was committed upon the plaintiff by a servant of the defendant, and if the plaintiff had not been a passenger of the defendant the company would have incurred no liability for the act, but because the plaintiff was a passenger the defendant is responsible for the assault and battery, and the action of the plaintiff is for the wrong perpetrated upon him. The assault furnishes the plaintiff with a cause of action and his suit is based thereon.

In the case of Stewart v. Brooklyn, etc., Railroad Company (90 N. Y., 590) it was the object of the court to show in the opinion that common carriers were responsible for injuries resulting to passengers from the negligence and willful misconduct of their servants while engaged in the performance of duties which the carrier owes to the passengers, and to manifest the reasons for such responsibility.

The court there decided that willful misconduct of the servant imposed the same liability as negligence, but that action was for a personal assault upon the plaintiff, and there is nothing in the case which conflicts with the views we have expressed, and nothing to indicate that the court considered the action itself to be based upon contract. In that case, as in this, the damages are claimed for the wrong, and not for a breach of contract.

It would be considered a great abuse of legal terms, if not a perversion of law, to say that an equitable action in behalf of a judgment-creditor, to set aside a conveyance for the fraud of the judgment-debtor in its execution was an action in tort, because it was basedupon fraud, and fraud is a wrong, and yet it would be equally as plausible as the argument of the plaintiff. It seems plain, therefore, that the plaintiff is not a creditor of this corporation, and that his action is not based upon contract in any legal sense. It is equally plain that the statute which constitutes the directors trustees of the creditors and stockholders of the dissolved corporation is not sufficiently comprehensive to include this cause of action among the: liabilities to be discharged by such trustees. These trustees are no* more than the appointed executors of the dead corporation, and as the cause of action does not survive the death of the company, the-suit cannot be contined against the trustees. There is no provision in the Code for the continuance of an action after the death of a-sole plaintiff or a sole defendant unless the cause of action survives, and as this suit is based upon a cause of action which does not continue after the death of either party, there is no provision for its-continuance.

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

Order affirmed, with costs and disbursements.


author: Pbatt, J.:

text:
    In the Matter of the Claim of the PHŒNIX IRON COMPANY v. THE VESSELS “HOPATCONG” and “MUSCONETCONG," their Tackle, etc. In the Matter of the Claim of the CHESTER ROLLING MILLS v. THE SAME.

      Costs — under the act for the collection of demands against ships and vessels — effect upon said act of the repeal of the Code of Procedure — extra allowance.

    By section 24 oí chapter 482 of the Laws of 1862, “An act to provide for the collection of demands against ships and vessels,” it is enacted as follows: “Judgment for costs shall be rendered in favor of the successful party as in. personal actions, and the successful party shall be entitled to recover the costs and allowances provided for in the Code of Procedure in civil actions.” The portion of the Code of Procedure relative to costs was repealed by the Code of Civil Procedure, which, in its provisions relating to costs, went into effect on the 1st day of September, 1880.
    In 1885 two claimants began proceedings by petition under the act of 1862, the decisions in which on appeal were reversed, new trials were had, the decisions on which, unfavorable to the claimants, were reversed at General Term, and upon a final appeal to the Court of Appeals the claimants were successful and judgment absolute was ordered for the claimants, with costs.
    Upon a motion made at Special Term for an extra allowance the appellant took the objections that this was not an action, but a special proceeding, and that in any event the court had no power to grant an extra allowance.

      Held, that tlie provisions as to costs and. allowances were as effectually incorporated into tlie act of 1862, by tlie reference to tlie Code of Procedure, as though, the provisions thereof were set out in lime verba, and that the subsequent repeal of the Code had no effect in this regard.
    That the extra allowances were proper.
    Appeals by the Hoboken Land and Improvement Company, the owner of the vessels “ Hopatcong ” and “ Musconetcong,” from two orders, each entered in the office of the clerk of Orange county on the 7th day of August, 1891, granting an extra allowance to the Chester Rolling Mills and to the Phoenix Iron Company, respectively.
    The proceedings in each ease were taken under the Laws of 1862 (chap. 482) against the vessels u Hopatcong ” and “ Musconetcong,” and the question of costs arose under section 24 thereof. The proceedings were begun in 1885 by both claimants and went on together. The first trial was had at Special Term, and the decrees there entered were dated July 31, 1885. Both claimants appealed to the General Term from certain portions of the decrees, and were successful in their appeal. A new trial was liad at Special Term, and the decrees entered thereon were dated November 7, 1888. Prom these decrees both claimants appealed to the General Term, which reversed the decrees, with costs to abide the event. Thereupon the Hoboken Land and Improvement Company appealed to the Court of Appeals, giving the usual stipulation. The Court of Appeals affirmed the order of the General Term in each case and rendered judgment absolute against the Lloboken Land and Improvement Company, with costs. Thereupon each claimant moved at Special Term for an extra allowance. The appellant objected to this in each case on the ground that the proceedings were special proceedings and, further, that there was no power in the court to make any allowance. The allowance to the Chester Rolling Mills was of five per cent on $12,426.63, and to the Phcenix Iron Company of five per cent on $6,325.27.

      Abbebb & Sohmitb, for the appellant.

      K A. Brewster, for the claimants.
   Pbatt, J.:

These proceedings are based upon the act of 1862, and the allowances from which these appeals are brought were such as were authorized by that act.

The cost and allowances granted by that act were not set forth bodily in the statute. They were incorporated into it by a reference to the Code of Procedure, then in existence, and became a portion of the act as effectually as if they had been set forth in words. ■

The subsequent repeal of the Code of Procedure did not affect the act of 1862. That stands as it did before.

The allowances made were, therefore, proper and are affirmed.

Dykman, J., concurred.

Order granting extra allowance affirmed, with costs and disbursements.


author: Pratt, J.:

text:
    In the Matter of the Application of the PIERCE, BUTLER & PIERCE MANUFACTURING COMPANY v. FREDERICK W. BLECKWENN, City Treasurer of Long Island City.

      Charter of Long Island City — claims for articles furnished to the bowl'd of education— mandamus — Laws of 1871, chap. 461, tit. 9, chap. 2; 1887, chap. 519.
    Upon an application for a mandamus to compel tlie city treasurer of Long Island City to pay warrants received by the claimant from the city board of education for the value of a heating and ventilating apparatus furnished to a new city school-house, the treasurer denied that he had any funds “ applicable ” to the payment of said warrants, or that the claims were founded upon contract.

      Reld, that such a denial involved a question of law, was evasive, and raised no issue of fact.
    That the charter of the city (chap. 461 of the Laws of 1871, tit. 9, chap. 2) conferred ample power upon its board of education to erect and furnish schoolhouses, and to pay the expenses thereof from the city revenues.
    That chapter 519 of the Laws of 1887 was not passed to limit the powers of that board in erecting or repairing school-houses, but to enable the city to issue bonds, and that there was nothing in that act which required that school-houses should be completed solely with the money derived from the sale of such bonds.
    That, in order to recover it was enough for the claimant to show that an appropriation of $50,000 had been made in the annual tax levy, covering, among other things, the very work furnished, especially as it was not denied that such appropriation was not exhausted.
    That the provisions of said charter (§ 9, tit. 9, chap. 2) relative to the amount to be raised annually for school purposes, limiting such amount to one-half of one per cent on $100 of taxable valuation, related to the current expenses of the schools, and had no application to an extraordinary expense incurred in erecting a new school-house.
    That, even assuming that the appropriation of $50,000 was invalid, as it did not appear to what extent it or the ‘ ‘ current expenses ” appropriation were exhausted, the claim should be paid up to a point at which all drafts upon either fund would amount to one-half of one per cent on the assessed valuation of the city.
    Appeal by the Pierce, Butler & Pierce Manufacturing Company from an order, dated on the 10th day of June, 1891, and entered in the office of the clerk of the county of Queens, denying its motion for a peremptory writ of mandamus directed to Frederick W. Bleckwenn, treasurer of Long Island City, commanding him to pay two warrants, the property of said corporation, drawn by the board of education of said city upon him as its treasurer. ,
    The appellant corporation furnished heating and ventilating apparatus for a new school-house in the Third ward'of said city under an agreement with the department of public instruction of that city. A similar contract was made as to a school-house in the Fifth ward of said city. The two warrants were, respectively, for the respective sums of $2,302 and for $4,000, The claims had been duly audited by the board of education. Upon their presentation to him the treasurer refused to pay them and the corporation aj>plied for a. mcmdamus, which was refused by the Special Term.

      George W. Stephens, for the appellant.

      A. T. Papne, for the respondent.
   Pratt, J.:

The relator’s claim is a just one, and if the defendant can be made to pay it without violating any principle of law, it should be done.

We do not think any issue of fact was raised by the respondent’s denial that he had any funds applicable to the payment of the warrant presented, or that the claim was founded upon contract. Such an answer was evasive, and involved a question of law. He did not say he had no money in hand, but was careful to say applicable to-pay the warrant.” It was incumbent upon him to state facts, and not his conclusions of law upon that subject.

Each of the warrants was drawn against an appropriation of $50,000, made in this year’s tax levy of Long Island City for the furnishing of the goods mentioned in relator’s bills.

The respondent did not deny that he had in his hands that money so appropriated, but he,claimed the contracts were void because they were made prior to the tax levy, and, second, that the appropriation was void because it was in excess of the limitations imposed by the charter.

The contracts were valid. The charter (chap. 461, Laws of 1871, tit. 9, ch. 2), confers ample power on the board of education to erect and furnish school-houses, and to make all needful repairs and pay the expenses out of the revenues raised pursuant to the act.

The act of 1887 (chap. 519), upon which the court below based its decision, was passed, not for the purpose of limiting the powers-of the board of education or the city authorities in building schoolhouses or making repairs, but for the purpose of enabling the city to issue bonds, and there is nothing in that act that requires that the school-houses shall be completed solely with the money derived from a sale of the bonds. • J

The only effect of that act was to authorize certain sums to be raised in that manner and applied towards the purchase of lands and the erection of school-houses. It did not act, and cannot be construed, as a limitation of the powers of the board of education and the common council in regard to building school-houses. Tf the money so appropriated was insufficient to complete the school-houses, I see-no objection to the municipal authorities proceeding to complete the same under the provisions .of the charter as above quoted. (People ex rel. Murphy v. Kelly. 76 N. Y., 475.) If such is a fail-construction of the act of 1887, chapter 519, with its amendments — chapter 143 of 1889 and chapter 300 of 1890 — then it was not incumbent upon the relator to show that the respondent had in his hands money derived from the sale, of the $50,000 of bonds referred to in that act. It clearly appeared that by the tax levy an appropriation was made of $50,000 for furnishing said steam heating, and there was no pretense in the answer of the respondent or his affidavits that such appropriation had been exhausted. The respondent claims, under section 9, title- 9, chapter 2 of charter (chap. 461, Laws of 1871), that the appropriation of- $50,000, was illegal because that specific appropriation was in addition to another for precisely such a percentage of the assessment.

The section reads as follows: “The common council of Long Island City shall annually raise and collect, by tax upon all the taxable property of said city, a sum of money equal to the sum specified in the estimated amount required by the board of education, for public school purposes, not exceeding one-half of one per cent on one hundred dollars valuation of such taxable property, in the same manner as the contingent charges of the said city are levied and collected, to be applied to the purposes and benefit of the public schools of the said city; and the board of education shall apportion the money so raised to the public schools according to the number of children, over four and under twenty-one years of age, who were actual residents of Long Island City at the time of their attendance in such schools, without charge the preceding year. * * * The sum apportioned to any school under the charge of the board* of education shall be paid by the treasurer of said city upon the drafts drawn on him by the board of education.” * * *

It is very plain that the money thus appropriated is intended to provide for the current expenses of the schools, and not for the extraordinary ones incident to erecting new school-houses. That the expenses of erecting new school-houses was not intended to be a charge on the moneys appropriated under the section quoted above; it is only necessary to refer to sections 13 and 14 quoted in our first point. The closing paragraph of the latter section expressly provides how such expense is to be met, namely, it shall be paid out of the revenues levied and raised pursuant to the provisions of this act.” This does not mean that it is to be paid out of the per capita allowance to the schools already in existence in the ward in which the new school is located, but out of the general fund of the city. This is the only possible construction of the law which would ever enable a new school-house to be erected or new schools to be established.

It is clear, even under the respondent’s contention, that if the common council had no right to make the additional appropriations, still these claims should be paid, as all drafts made upon either fund should be paid until all the drafts should have aggregated the one-half of one per cent of the assessed valuations.

The common council had a right to appropriate up to the one-half of one per cent, and until this amount was expended it did not lie with the treasurer to question the right to draw upon funds in his hands.

It is to be observed that the -respondent makes no pretense that he has paid out on the drafts of the board of education to the extent of the one-half of one per cent on the assessed valuations.

We think it clearly appeared that the contracts for which payments were demanded on the drafts were valid and regular, that the respondent had funds properly applicable thereto.

Order reversed, mandamus to issue as prayed for.

Barnard, P. J., and Dykman, J., concurred.

Order denying motion-for a mandamus reversed and mandamus ordered.


author: Barnard, P. J.: Pbatt, J.:

text:
    DUNCAN F. CAMERON and Another, Respondents, v. THE NEW YORK AND MOUNT VERNON WATER COMPANY and Others, Appellants.

      Corporations — consolidation — existing rights saved — combinations — public policy— acquiescence.

    In 1878 a company was incorporated under the village water-works act, with a capital of $25,000. It was known as the Mount Vernon Water Company, and ■ was to furnish water to the village of Mount Vernon. In 1886 a company, known as the New York and Mount Vernon Water Company, was formed under the general manufacturing act, with a capital of $200,000, for the same purpose. It purchased at par the stock of the first-mentioned company, which thereafter ceased to carry on business. In 1891 another company, known as the
    • New York City Suburban Water Company, and designed to furnish water to the village of Mount Vernon and adjoining places, was incorporated under the general manufacturing act, with a capital of $1,500,000. On April 28, 1891, the trustees of the two latter companies having entered into an agreement to consolidate such companies, a stockholder in the New York and Mount Vernon Water Company began an action and obtained a temporary injunction enjoining the proposed consolidation, which he alleged would be detrimental to his rights.

      3eld, that the statutes authorizing consolidation (chap. 960 of the Laws of 1867, chap. 874 of the Laws of 1877, chap. 867 of the Laws of 1884, and chap. 567 ■ of the Laws of 1890) were not repealed by the business corporation law (chap. 567 of the Laws of 1890), nor by the stock corporation law (chap. 564 of the Laws of 1890).

      That the existing rights of existing corporations were saved by section 22 of chapter 567, section 24 of chapter 568 and section 71 of chapter 564 of the Laws of 1890.
    That the right to consolidate was an existing right when said last-mentioned acts were passed. *
    That it was not against public policy for two corporations doing the same business to consolidate into one new corporation; the evil condemned being the combination of two or more corporations to preveht competition between themselves or between themselves and others.
    That, as the stockholders of the New York and Mount Vernon Water Company had, at the time of the purchase of the stock of the Mount Vernon Water Company, assented to such purchase, and had long acquiesced in it, it was too late for either party to the transaction to question it now.
    That, upon such purchase, said stock became part of the general assets of the vendee.
    Appeals by the defendants, the New York and Mount Yernon Water Company, its trustees, the Mount Yernon Water Company and the New York City Suburban Water Company, from an order, ■entered in the office of the clerk of the county of Westchester in June, 1891, denying their motion to vacate an injunction restraining them and each of them, during the pendency of • this action, from making any transfer, assignment or other disposition of the cajiital stock of the Mount Yernon Water Company; and from making or entering into any arrangement, contract or agreement for the consolidation of the three defendant corporations, or any two of them; and from making or entering into any arrangement, contract or .agreement by which the management or control of the stock, rights or franchises of the New York and Mount Yernon Water Company or the Mount Yernon Water Company shall be transferred, pledged or disposed of to the defendant, the New York City Suburban Water Company, or any other water company formed or organized for the purpose of supplying water to the village of Mount Yernon aforesaid.
    The Mount Yernon Water Company was incorporated under the village water-works act passed in 1873. The other companies, the New York City Suburban Water Company and the New York and Mount Yernon Water Company, were incorporated under the general manufacturing act (chap. 40, Laws of 1848). The capital stock of the New York and Mount Yernon Water Company was $200,000, and the date of incorporation was January 25, 1886; the capital stock of the New York City Suburban Water Company was $1,500,000, and tbe date of incorporation was March 26, 1891. The Mount Vernon Water Company ceased to carry on business after March 1886, about which time its stock - was purchased at its par value by the New York and Mount Vernon Water Company. The latter company still retains said stock.
    The complaint alleged that the consolidation would depreciate the value of the plaintiff’s stock in the New York and Mount Vernon Water Company, and of his stock in the Mount Vernon Water Company (in which he also claimed an interest) by preventing competí' tion, and for other reasons stated in the complaint.
    A preliminary injunction forbidding consolidation was granted. A motion to vacate it was denied, and from the order denying the motion the companies appealed as above stated.

      John B. Gleason, for the appellants.

      ATbertus Perry, for the respondents.
   Barnard, P. J.:

In 1873 a company to furnish pure water to the village of Mount Vernon was incorporated under the village water-works act, with a capital of $25,000, under the name of the Mount Vernon Water Company. In 1886. the defendant, the New York and Mount Vernon Water Company, was incorporated under the general act authorizing the formation of corporations for manufacturing and other purposes. This company obtained a contract from the village in March, 1886, to furnish water, if pure, for twenty years. An exclusive privilege for establishing and maintaining water-works within and near the village was given by ordinance of the village. The stock of the Mount Vernon Water Company was purchased by the new company and held for the stockholders in the same. The stockholders in the old Mount Vernon Water Company were paid the full par-value of their stock, and as the object was to exterminate the prior company and merge it in the New York and Mount Vernon Water-Works Company, no right exists in the stockholders of the old company to demand new scrip for the stock for which they have been paid. No new right exists in respect' thereto beyond whatever advantage may result, from the purchase of the old stock, to the stockholders in the new company. The consolidation appears to have been mutually agreed upon, and the acquiescence of the old company has been so long continued that justice cannot be now done after the use of the franchise and the property of the corporation has been delivered over to the new company. The village of Mount Vernon is not a party, and the plaintiffs have no duty in respect to the rights or obligations of the village. The sole question, therefore, is whether the Mount Vernon Water-Works Company can consolidate with a corporation known as the New York City Suburban Water Company, incorporated under the general law in respect to the formation of manufacturing corporations. The corporations are of the same nature and they cover the same territory. In such a case the consolidation is authorized, or was at the jiassing of the resolution by the two companies, to be consolidated under chapter 374, Laws of 1877. All the steps taken towards consolidation were in conformity with the act permitting the consolidation, and the repeal of the consolidation act, subsequent thereto, in' 1891, reserved, as to such inchoate and incompleted acts, the right to perfect them to completion.

. The order should, therefore, be reversed, with costs and disbursements, and the motion to dissolve the injunction granted with costs.

Pbatt, J.:

The injunction was continued in this case on the assumption that the proposed consolidation of the two water-works corporations was without lawful- authority. Respondent’s counsel justify the injunction solely on those grounds. They contend that the laws in force prior to May 1, 1891, so far as they authorized consolidation, have been repealed by the new business corporation law (chap. 567), and the stock corporation law (chap. 564) passed in 1890. They insist that consolidation cannot be effected under the stock corporation law because its tendency would be to prevent competition, and because it would be against public policy. The facts are substantially undisputed.

I am unable to accept the respondent’s view. The consolidation of corporations engaged in the same general line of business is not against public policy. The legislature has permitted it for years, and still permits it. (Laws 1867, chap. 960 ; Laws 1877, chap. 374; Laws 1884, chap. 367; Laws 1890, chap. 567, § 13.) There is a great difference between the consolidation of two corporations into one new corporation, and the combination between two existing corporations for the prevention of competition. The former is permitted and the latter is condemned.

It is not necessary to point out the distinction so far as the public or private good is concerned. It is enough that the legislature has drawn the distinction. (See § 13, chap. 567, Laws 1890; § 7, chap. 564, Laws 1890.)

I do not think that the new acts have repealed the old provisions which authorized consolidations. They have simply continued them. True, the old acts appear to be included in the schedule of acts repealed ; but the saving and construction clauses of both acts, when read in connection with those provisions of the new act which authorize and provide for consolidation, clearly show that there has been no material change in the law. ' Existing rights of existing corporations are all saved by section 22, chapter 567, section 24, chapter 563 and section 71, chapter 564, Laws of 1890. Certainly two new corporations might be organized- now under the new law to do the business of supplying water for a village, because that is a “lawful business.” (Sec. 2, chap. 567, Laws 1890.) The effect of the repealing clause is to require new corporations to organize under the new general law instead of under the old laws. Certainly two new corporations like the two in question might consolidate under this new law, but they could not maintain their separate existence and combine to prevent competition between them, or between themselves and others; and if such new ones could consolidate under this new law, then the express provisions.of section 13 authorize the same thing by old corporations doing the same business as new ones organized under the new laws.

Turning, now, to the saving clause (1890, chap 567, § 22), we read that the repeal of a law by that act “shall not affect nor impair any * * * right accruing, accrued or acquired * * * prior to May 1, 1891, under or by virtue of any law so repealed; but the same may be asserted * * * as fully and to the extent as if such law had not been repealed.” Hence, if the old corporation had a right to consolidate under the old laws, that right would seem to be saved by this clause. And, again, we read, in section 23, that where the provisions of this new law are substantially the same as those existing April 30, 1891, they shall be continued as a continuation of sucb old laws, and hot as new enactments; and, so far as they differ, they are to be deemed mere modifications or amendments of old laws. I regard it as plain that the object of all these new provisions was simply in the line of codification. It, therefore, seems to me that the injunction proceeds upon an erroneous theory.

Perhaps some question might have arisen as to the right of the New York and Mount Vernon Water Company to hold the stock of the Mount Vernon Water Company by purchase, if the complaint had not alleged that that purchase was made with the assent of the stockholders of the former. But it appears that such purchase was made with the assent of those stockholders. Hence the purchase itself cannot be the subject of complaint by any of those stockholders. They are estopped to question the purchase, nor can any stockholder of the Mount Vernon Water Company be heard to question the purchase or holding. All the individual holders of that company have sold out. It has all been purchased by the New York and Mount Vernon Water Company.

The complaint assumes that that purchase was made for the purpose of a distribution of that stock among the stockholders of the New York and Mount Vernon Water Company. Ido not so understand their rights. Such a distribution would have been a dividend in property which had been purchased and paid for with capital of the New York and Mount Vernon Water Company. In other words, it would have been a dividend out of capital which could not have been contemplated. On the contrary, the purchase of that stock made it a part of the property of the company, and not as a special trust for its stockholders. Their interests in that property were the same as in any other property of their company, and, since that •company has the right to consolidate with the New York City and 'Suburban Water Company, it would seem that that stock or its proceeds will have to abide the event of the effort to consolidate.

The order should be reversed, with ten dollars costs and the disbursements on this appeal to the defendants, and the original injunction should be vacated.

Barnard, P. J., concurred; Dykman, J., not sitting.

'Order reversed, with costs and disbursements, and motion to vacate injunction order, granted, with costs.