author: Mayham, P. J.:

text:
    James Fitzgerald, Respondent, v. Burden Benevolent Association of the City of Troy, Appellant.

      Incorporated benefit association — eligibility to membership limited — an ineligible person admitted to membership not entitled to payment of benefits.

    A section of tlie constitution of “ The Burden Benevolent Association of the City of Troy,” an incorporated benefit association, provided that “The membership of this association shall he unlimited; ” a subsequent section provided that “ This Association shall be open to any employee of the Burden Iron Company, who shall have attained the age of eighteen, and who is not over fifty years of age. who is in sound health and of good moral character, and able to support himself and family.”

      Held, that the maxim expressio unius est exclusio alterius applied; that, consequently, the latter section-limited and qualified the former one; and, hence, that a person who was not an employee of the Burden Iron Company was not, under the constitution, eligible to membership;
    That the ultra vires act of the corporation in admitting to membership a person ineligible under its constitution did not bind the corporators so as to bind them to pay benefits to such person.
    Appeal by tbe defendant, tbe Burden Benevolent Association of tbe City of Troy, from a judgment of tbe County Court of Rensselaer county, entered in tbe office of tbe clerk of that county on tbe 21st day of December, 1891, affirming a judgment of tbe Justice’s Court of tbe city of Troy in favor of the plaintiff.
    Tbe action was brought to recover weekly benefits, amounting to twenty dollars, to which the plaintiff claimed to be entitled by virtue of membership in tbe defendant association.
    On the trial, it was admitted by plaintiff that, at the time be was admitted as a member of tbe defendant association, be was not and bad never been since in tbe employ of the Burden Iron Company. It was- admitted by tbe defendant that tbe plaintiff was proposed for membership on tbe 21st of June, 1890, and was admitted as a member on July 19, 1890, and bad paid bis initiation dues, and was not indebted to tbe association for fines or dues; that on tbe 25th day of April, 1891, be was injured, and for such injuries, if be was a member of defendant, he would be entitled to tbe sum of fifteen dollars benefit for which be could recover in this action; and that at the time be applied for membership in defendant be made no false representations.

      P. A. Parmember, for tbe appellant.

      John P. Gurley, for the respondent.
   Mayham, P. J.:

The appellant is a corporation organized according to law, and as such has adopted a constitution and by-laws for its government.

By section 3 of article 1 of its constitution it is provided the membership of this association shall be unlimited.

By section 1 of article 5 of the same constitution it is provided as follows, under the title “ Membership : ” “ This Association shall be open to any employee of the Burden Iron Company, who shall have attained the age of eighteen, and who is not over fifty years of age, who is in sound health and of good moral character, and able to support liimself and family.”

It is quite apparent that this latter provision limits and qualifies the provisions of section 3 of article 1 to the class of persons mentioned in article 5, and that within that class of persons membership is, by section 3 of article 1, unlimited.

■ No negative words or words of restriction are required in section 1 of article 5 to authorize that construction. The maxim exypressio v/nius est exclusio alterius clearly applies in the construction of that section, and a person not an employee of the Burden Iron Company would not, under this constitution, be eligible to membership.

But independently of this rule of construction of the two sections above quoted it is manifest from the whole tenor of the constitution and by-laws of this association that it is confined in its membership to the employees of that company.

We are of opinion, therefore, that the respondent was ineligible as a member of this association; and this brings us to the consideration of the question of the effect of the illegal admission by the association of one not eligible to membership when the subject of benefits arises between such member and the association.

Did this corporation as such bind itself by its illegal act so as to be compelled to pay benefits to one not eligible to membership % Upon this subject we are cited to authorities containing the familiar principle that an individual acting sui juris can waive a statutory or even a constitutional provision in his own favor affecting his own property or alienable rights not involving considerations of public policy. (Phyfe v. Eimer, 45 N. Y. 104.)

This is doubtless true, but acts by an individual which would be waivers of a reserved right, and which would be an estoppel as to him, would, when performed by a corporation which derives its existence from and can only act under and within its charter, be ultra vires and not binding upon the corporators without their individual consent.

. If, therefore, this corporation received a member not eligible, in violation of its charter, it is difficult to see how it could bind the corporators by that act in the nature of an executory promise to pay benefits to one not entitled to become a member.

I think, therefore; that the judgment of the justice in awarding the respondent benefits, and that of the County Court in affirming such judgment, were erroneous, and that both of said judgments should be reversed.

Putnam and Herrick, JJ., concurred.

Judgment of justice and that of County Court reversed, with costs.


source: Caselaw Access Project

author: Dwight, P. J.:

license: Public Domain

text:
    Thomas Budd, Respondent, v. John J. Allen, Appellant.

      School tax — land of same resident owner, lying partly in different school districts —> sections 66 and 71 of the Consolidated School Act of 1864.
    The provision of section 71 of the Consolidated School Act of 1864 (Laws of 1864, chap. 555), that “Every person owning or holding any real property within any school district, who shall improve and occupy the same by bis agent or servant, shall in respect to the liability of such property to taxation, be considered a taxable inhabitant of such district, in the same manner as if he actually resided therein,” applies only to land belonging to an owner who does not reside upon it, but occupies it by an agent or servant who lives upon it and works it for the owner; it does not apply when the land is occupied and improved by the owner himself, although the owner’s hired man lives upon it while the owner lives upon an adjoining parcel of land in another school district, used and worked with it as one farm under the owner’s direction, and assessed as one lot on the town assessment roll.
    The case of such a resident owner, whose farm is divided into two parcels on a school district line, is governed by section 66 of said act of 1864, as amended by’ chapter 828 of the Laws of 1889, which provides that “ land lying in one body and occupied by the same person, either as owner or agent for the same principal or as tenant under the same landlord, if assessed as one lot on the last assessment roll of the town after revision by the assessors, shall, though situated partly in two or more school districts, be taxable in that one of them in which such occupant resides.”
    Appeal by the defendant, John J. Allen, from a judgment of the County Court of Monroe county, entered in the office of the clerk of that county on the 26th day of September, 1892, affirming the judgment of a justice of the peace of the town of Webster, rendered on the verdict of a jury, in favor of the plaintiff.

      /8. D. Bentley, for the appellant.

      Hugh, MeKa/y, for the respondent.
   Dwight, P. J.:

The action was to recover the value of personal property of the plaintiff sold under direction of the defendant, in the collection of a school tax levied by the latter in the year 1891, as sole trustee of joint school district No. 10 in the towns of Ontario in "Wayne county and Webster in Monroe county, upion certain farm lands of the plaintiff of about seventy-five acres, lying within the bounds of that district and in the town of Ontario.

The plaintiff, for about three years before, and at the time of, the levying of the tax in question, lived on a piarcel of land of about fifteen acres, situate in the town of Webster and within the bounds of school district No. 11 of that town. The two parcels of land adjoined each other, the east line of the fifteen acres coinciding’ with the west line of the seventy-five acres for a distance of sixteen rods along the center line of the highway, which lay on the town and county line, and the whole ninety acres was used and worked as one farm by and under the direction of the pilaintiff. His hired man lived on the seventy-five acres and was piaid yearly wages in addition to the use of a house and garden spiot. In the years 1889 and 1890 and 1891 the whole ninety acres was assessed as one lot in the town of Webster, and no piart of the same was assessed in the town of Ontario in either of those years.

The foregoing are all the facts which are essential to the disposition of the main question in this case, viz.: Whether the seventy-five acres of the pilaintiff’s farm which lay within the joint district, No- 10, of Ontario and Webster, was taxable for school piurposes in that district. The question is one piurely of statutory construction, and the statutory provisions to be construed are found in the Consolidated School Act of 1864 (Laws of 1864, chap. 555)) as amended by chapiter 328 of the Laws of 1889.

By section 66 of that act, as so amended (Birdseye, pi. 567, §149), it is provided as follows: School district taxes shall be apportioned by the trustees upion all real estate within the boundaries of the district which shall not be by law exempt from taxation, excepit as hereinafter pirovided, and such piropierty shall be assessed to the pier-son or persons or coi’poration owning or possessing the same at the time such tax list shall be made out, but land lying in one body and occupied by the same person, either as owner, or agent for the same principal, or as tenant under the same landord, if assessed as one lot on the last assessment roll of the town after revision by the assessors, shall, though situated partly in two or more school districts, be taxable in that one of them in which such occupant resides.”

The case before us seems to be brought precisely within the later and exceptional provisions of this section by the facts above stated. The ninety acres of land lies in one body ; is occupied by the same person, as owner ; was assessed as one lot on the last assessment roll of the town in which the owner lived, and, therefore, though situated partly in two school districts, was, it would seem, taxable in that one of them in which such occupant resided.

But the appellant contends for the application to the case of section 71 of the same statute (Birdseye, p. 568, § 151), which reads as follows: “ Every person owning or holding any real property within any school district, who shall improve and occupy the same by his agent or servant, shall, in respect to the liability of such property to taxation, be considered a taxable inhabitant of such district, in the same manner as if he actually resided therein.”

It is very plain, we think, that this section has no application to the case before us. The distinguishing fact contemplated by the provision is that the land referred to is occupied and improved by an agent or servant of the owner, and that fact does -not exist when it is occupied and improved by the owner, himself. The section clearly has application only to land belonging to an owner who does not reside upon it, but occupies it by an agent or servant who lives upon it and works it for the owner, such agent or servant being distinguished equally from the owner of the land, and from a tenant who works it for his own account. The plaintiff is not a nonresident owner, but lives upon, occupies and works his own farm and the whole of it. The fact that his hired man lives on the other side of the district line can have no effect upon the status of the owner as a taxable inhabitant of the one district or the other.

The foregoing examination of the statute leaves, we think, no room for doubt that the whole of the plaintiff’s farm of ninety acres was taxable for school purposes in district No. 11 of Webster, and that no part of it was taxable in joint district No. 10 of Webster and Ontario. This seems to be the construction which has been uniformly put upon the statute by the Department of Public Instruction, as shown by decisions of several superintendents to which our attention is called by counsel for the respondent; and the quotation made by counsel for the appellant, from a note to section 71 {supra), contained in the Code of Public Instruction, published by the Superintendent in 1887, at page 353, is, we think, quite to the same effect.

The construction here given also brings the statute in question into harmony with the general statute in respect to the taxation of lands divided by town and county lines (1 B. S. 389, § 4; Laws of 1886, chap. 315, § 1; Birdseye, p. 2961, § 52), and with the decisions of the courts which have passed upon the effect of these provisions of law. (Saunders v. Springsteen, 4 Wend. 429 ; Wand v. Aylesworth, 9 id. 281; People ex rel. Vanderveer v. Wilson,.52 Hun, 388; Hampton v. Hamsher, 46 id. 144.)

Such being the law of the case the defendant acted without jurisdiction in assessing any part of the plaintiff’s land for taxation in district No.-10, and by issuing his warrant and directing the levy upon, and sale of, the plaintiff’s personal property to pay such tax was guilty of a trespass, for which a recovery was properly had in the Justice’s Court.

The only other question in the case which seems to require consideration arises upon the denial by the County Court of the defendant’s motion to strike out the allowance of costs in the judgment appealed from.

We are asked to review this order apparently upon the assumption that .the record shows a certificate made by the justice of the peace to the effect that it appeared upon the trial before him that the defendant acted in good faith in the mattérs out of which the cause of action arose. (Code Civ. Pro. § 3244.) But this assumption is a mistaken one. The record contains no such certificate, nor any evidence that such a certificate was ever presented to the County Court. On the contrary, it does appear that counsel for the appellant, on the hearing of the appeal in the County Court, moved for and obtained an order requiring the justice to make a special return certifying whether or not it appeared on the trial before him that the defendant, in the acts complained of, acted in good faith, and that the justice made such return certifying that such fact did not appear. It is true the justice went further in his return and narrated a transaction between himself and the defendant, in which his. signature was obtained to a paper which the justice afterwards, understood was a certificate of good faith, but which he did not. Understand to be such when it was signed, and which, if it was such, was untrue.

It is apparent why this return could not have been regarded by the County Court as equivalent to the certificate required by the statute, section 32M (supra), as a condition of exempting the defendant from liability for costs.

The judgment and order appealed from should be affirmed.

Lewis, Macomber and IIaight, JJ., concurred.

Judgment and order of the Monroe County Court appealed from affirmed, with costs.


text:
    John W. Banker, Respondent, v. William E. Knibloe, Appellant.

      Verdict directed by the court, after requests for a direction by both parties — existence of a question of fact fen’ the jury, not a ground, for granting a new trial.

    When, on a trial, at the close of the evidence both parties ask for the direction of a verdict by the court, and neither party asks to go to the jury upon any question in the case, and the court thereupon directs a verdict, a new trial is not to be granted upon the ground there was a question of fact in the case which should have been submitted to the jury.
    Appeal by the defendant, William E. Knibloe, from an order of the Supreme Court made at the Monroe Special Term and entered in the office of the clerk of Livingston county on the 5th day of January, 1893, granting the plaintiffs motion for a new trial, made after the rendition of a verdict for the defendant, by direction of the court, at the Livingston Circuit.

      L. 0. Reed, for the appellant.

      G. W. Daggett, for the respondent.
   Dwight, P. J.:

At the close of the evidence, both parties asked for the direction of a verdict by the court, and neither party asked to go to the jury upon any question in the case. The court thereupon directed a verdict for the defendant, but stayed the entry of judgment, and gave time to the plaintiff to move for a new trial. That motion was afterwards heard at a Special Term held by the same judge, and the order for a new trial was granted solely upon the ground, as appears from the opinion of the judge, that there was a question of fact in the case which should have been submitted to the jury.

The situation is peculiar. By the course taken by the parties on the trial both of them waived the right to go to the jury upon any question in the case, and submitted all questions — of fact as well as of law' — to the decision of the court. (Bank of Attica v. Pottier & Stymus Mfg. Co., 17 N. Y. St. Repr. 327, 332; Dillon v. Cockcroft, 90 N. Y. 649; Provost v. McEncroe, 102 id. 650 ; Reilly v. Lee, 41 N. Y. St. Repr. 559, 562.) It is plain, therefore, that no error was committed in withholding any particular question of fact from the jury, since all questions of fact were withdrawn from the jury by the parties themselves. In such a case the only questions reviewable on a motion for a new trial are those raised by exceptions taken on the trial, and the question whether the decision of any question of fact, necessarily involved in the direction of a verdict, was without evidence to support it. (Gregory v. The Mayor, 113 N. Y. 416; Kirtz v. Peck, Id. 222 ; Provost v. McEncroe, supra.) Manifestly, in such a case it is not open to either party on appeal, or on a motion for a new trial, to complain that there was any question of fact in the case which should have been submitted to the .iury-

In this case the only question of fact which was really litigated on the trial, or which is suggested by the plaintiff as an open question on this motion, is the question whether the plaintiff was a holder in good faith and for value of the promissory note in suit, and that is the question which the court at Special Term held should have been submitted to the jury.

Eor the reasons stated it is evident that the motion for a new trial should not have been granted on that ground, and we find no other ground in the case which justifies the granting of the motion.

The order must, therefore, be reversed, with costs, and judgment directed for the defendant on the verdict.

Lewis, Macomber and Haight, JL, concurred.

Order granting new trial appealed from reversed, with costs, and judgment ordered for defendant on the verdict.


text:
    John J. P. Read, Appellant, v. Louis Knell, Respondent, Impleaded, etc.

      Assignment of a mortgage by an administrator to himself— voidable, but not void.
    If an administrator assigns a mortgage belonging to bis intestate’s estate for a. nominal consideration to an intermediary, wbo assigns it to bim in bis individual name, sucb an assignment is not void but voidable only, and that at tbe instance of some person interested in tbe estate; and an objection to tbe validity of sucb assignment is not available to a stranger to tbe estate as a defense to tbe foreclosure of tbe mortgage by tbe assignee.
    Appeal by the plaintiff, John J. P. Read, from a judgment of the Supreme Court in favor of the defendant, Louis Knell, entered in the office of the clerk of Erie county on the 1st day of February, 1893, upon the findings and decision of the court at the Erie Special Term dismissing the complaint.

      O. O. Cottle, for the appellant.

      A. Moot, for the respondent.
   Dwight, P. J.:

The action was to foreclose a mortgage of real estate, made by one Joseph Armbruster to Elizabeth Read, the mother of the plaintiff, since deceased. The answer of the defendant, Louis Knell, the owner of the property, pleaded payment of the mortgage in full; denied on information and belief that the plaintiff was the owner of the mortgage, and alleged facts tending to show a defect of parties.

The proof was that the plaintiff was duly appointed and acted as administrator of his mother’s estate; that as such he assigned the mortgage for a nominal consideration to a friend who, in turn, for a similar consideration assigned it to him in his individual name. His mother left surviving her, one daughter and himself as her sole next of kin, and no husband ; the daughter died before the assignment of the mortgage to the plaintiff, without issue. She was reputed to have been married, and a person claiming to be her husband presented a paper purporting to be her will, to the surrogate of Erie county, by whom it was admitted to probate, but the decree was reversed by this court and issues were awarded to be tried by a jury. Such issues were twice tried, but no verdict was reached on either trial.

The learned court at Special Term made no finding whatever bearing upon the question of defect of parties, but found only ■ — • in substance — that the plaintiff held the mortgage in his representative capacity as administrator of his mother’s estate, and that-the assignment to him was absolutely void and vested in him in his individual- capacity no title whatever to the security. It was on this ground solely that the judgment was based, dismissing the complaint.

The judgment was clearly erroneous. The assignment was not void but voidable only, and that at the instance of some person interested in the estate. Perry on Trusts, 205 ; Hawley v. Cramer (4 Cow. 719); Forbes v. Halsey (26 N. Y. 53, 65); Harrington v. Brown (5 Pick. 519, 521), and all the authorities are to the same effect. It was not, therefore, competent for the defendant Knell to object to the validity of the assignment to the plaintiff. (Harrington v. Brown, supra.) He might, perhaps, have established his defense of the defect of parties, but that question, as we have seen, was not considered nor passed upon by the court at Special Term.

The judgment must be reversed for error in the conclusion of law upon which it was based, and which was duly excepted to. A new trial will be granted, upon which the other defense mentioned may receive consideration.

Lewis, Macomber and Haight, JJ., concurred.

Judgment appealed from reversed and a new trial granted, costs to abide the final award of costs.


text:
    Samuel K. Nester, Appellant, v. Thomas G. Craig, Respondent, Impleaded, etc.

      Contract made try a special agent in excess of Ms authority — risk assumed in dealing with a special agent.

    Authority conferred by a principal upon a special agent, to sell barley for cash, on immediate delivery, at Detroit, Michigan, at one dollar and fifty cents per hundred pounds, held, not to authorize the agent to contract for the sale of barley for delivery at Phelps, New York, at intervals of a week during a period of more than two months, at eighty cents a bushel, payable in installments after each delivery.
    One who deals with a special agent, specially authorized for that transaction, is put upon inquiry as to the extent of the agent’s authority and deals with him at the risk of his authority being exceeded.
    Appeal by the plaintiff, Samuel IL Nester, from a judgment of the Supreme Court dismissing his complaint, entered in the office of the clerk of Ontario county on the 26th day of September, 1892, on the direction of a nonsuit at the end of the plaintiff’s case, at the Ontario Circuit, and from an order denying the plaintiff’s motion for a new trial made upon the minutes.

      D. B. Backenstose, for the appellant.
    IF. S. JETuhbell, for the respondent.
   Dwight, P. J.:

The action was for damages by the failure of the defendants to perform an executory contract for the sale to the plaintiff of a large quantity of barley. The plaintiff was a maltster at Geneva, New York, and the defendants composed the firm of Gillett & Hall, grain dealers, at Detroit, Michigan. The contract of sale was made by one J. Blumenthal, a barley broker, assuming to act as agent for the defendants. His authority was derived solely from the following letter and telegram:

“ Gillett & Hall, Grain Commission Merchants.
“Detroit, Sept. 27th, 1890.
“ Mr. J. Blumenthal, Rochester, N. Y. :
“ Dear Sir : * * *

Ve express to you two samples and you can sell on sample, A ■6,000 bus. at $1.55 net here. B. 10,000 bus. at $1.56 net here. The weight of the barley is 46 & -J- lbs., but as we let them go through the cleaner in Elevator before loading, the weight will come to 47 and over. * * * Yours, &c.,

“ GILLETT & HALL. D.”
“ The Western Union Tel. Company.
“ Detroit, Mich., Oct. 4, 1890.
“ To J. Blumenthal,
Oa/re Agt. Geneva, W. Y.:
“ Will allow you to sell the two lot one fifty net, if not better, although the State is well cleaned out of barley and prices will shortly go much higher. * * *
“ GILLETT & HALL.”

The contract entered into by Blumenthal with the defendant was as follows:

“ 10, 6, 1890.
“Sold to S. K. Nester, Geneva, N. Y., 6,000 bushels sample A and 10,000 bushels of sample B Michigan State barley as per samples furnished me by Gillett & Hall, of Detroit, at the price of 80 a bushel delivered track, Phelps, N. Y., at the rate of 2,000 bushels a week, commencing October 20th (or faster if so ordered) till saléis filled, as stated in Mr. Dieterlie’s letter of September 27th. Barley to come recleaned and uniform. Payments to be made by N. Y. exchange as soon as each shipment arrives.
“ J. BLUMENTHAL.”
“ I accept above sale to me.
“ S. K. Nester.”

It was conceded that the prices named in the letter and telegram were for 100 pounds of barley, while that named in the contract was for a bushel of forty-eight pounds. “Mr. Dieterlie’s letter of September 27th,” mentioned in the contract, was the letter of the defendants by “ D.,” which is quoted above as defining the authority of the agent Blumenthal.

It seems very clear that the contract upon which the action is brought, was not within the ahthority conferred upon the agent who assumed to make it. The authority was to sell for cash, on immediate delivery, at Detroit, at $1.50 per 100 pounds. The contract was for delivery at Phelps, N. Y., at intervals of a week during a period of more than two months, at eighty cents a bushel, payable in installments after each delivery. These terms differ widely. Possibly the eighty cents per bushel might cover freight, insurance,, storage, elevator charges, etc., in addition to the $1.50 per 100' pounds net, which the defendants were to receive, though even that, is not demonstrated by the evidence; but there are other substantial respects in which the terms of the authority and of the contract differ. By the contract the defendants were charged with the responsibility of carrying this large amount of grain for an average period of five weeks, while they waited for their money, and bore the risk of loss and damage by fire, or other canses, except so far as they might provide for their own indemnity by insurance. They must, provide nearly $1,000 for freight charges and bear whatever risks, of transportation are not covered by the liability of the common carrier.

Altogether, it is difficult to see how the agent, who held only the authority conferred by the communications of the defendants of September twenty-seventh and October fourth, could have assumed to make the contract with the plaintiff of October sixth.

The plaintiff must be presumed to have known the extent and limitations of the agent’s authority, because the letter of September twenty-seventh, which controlled that authority, is specifically referred to in the contract itself; but even if such were not the case, he is. chargeable with such knowledge and limited by the terms of the authority actually possessed by the agent. He was a special agent,, specially authorized for this transaction, and the plaintiff was put-upon inquiry as to the extent of his authority, and dealt with the agent at his risk of that authority being exceeded. (Walsh v. Hartford Ins. Co., 73 N. Y. 10 ; Edwards v. Dooley, 120 id. 540, 541; Michael v. Eley, 61 Hun, 180.)

There was no essential fact in dispute in this case. The question whether the contract was within the authority to make it, was a. question of law. ¥e think it was correctly disposed of by the direction of a nonsuit, and the judgment entered thereon must be affirmed.

Lewis, Maoomber and Haight, JJ., concurred,

Judgment and order appealed from affirmed.


text:
    Edward L. Fuller and Another, Respondents, v. Arthur M. Artman, Appellant.

      The expression of a consideration in a sealed instrument is not subject to contradiction.

    Tie rule- — -that while the mere presumption of a consideration which arises from the use of seals in the execution of an instrument is subject to rebuttal the expression of a consideration in such an instrument is not subject to contradiction for the purpose or with the effect of invalidating the instrument — applied in an action for the specific performance of a contract under seal, whereby the defendant, “in consideration of one dollar and other valuable considerations, the receipt whereof is hereby acknowledged,” gave the plaintiffs’ assignors the refusal of his farm or certain mining privileges therein, at prices specified, and gave them a certain time in which to decide whether they would take either or neither.
    Appeal by the defendant, Arthur M. Artman, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of Genesee county on the 28th day of November, 1892, upon the report of a referee.

      M. H. MeMath, for the appellant.

      G. F. Bissell, for the respondents.
   Dwight, P. J.:

The plaintiffs are the assignees of the persons named as parties of the second part in the contract hereinafter set. forth, and they bring this action to enforce the specific performance by the defendant, the party of the first part named therein.

The contract was in the following terms :

“ This memorandum of agreement, made and executed this 23rd day of September, 1890, between Arthur M. Artman of the Town of LeRoy, County of Genesee and State of New York, of the first part and David J. Bissell and Emory Elmore of the Town of LeRoy, County of Genesee, and State of New York, associates or assigns, of the second part, witnesseth; that the party of the first part in consideration of one dollar and other valuable considerations, the receipt whereof is hereby acknowledged, hereby covenants and agrees to and with the said second party, his heirs associates or assigns, at any time which the said second party may designate within five months from the date hereof, that he will execute and convey to said second party, heirs or assigns a full covenant deed of the following described premises, situate in the Town of LeRoy afore-* said, consisting of about one hundred and twenty acres of land, and more particularly described as follows, to wit; being the premises now occupied by him as a homestead, reserving to party of the first part all growing crops at túne tender is made. In case the party of the first part having chance to sell above premises to a bona fide purchaser prior to time above mentioned, then party of the second part shall have first chance to purchase at same price upon receiving thirty days notice in writing or forfeit this option. At and for the agreed price of §135.00 per acre ; and that whenever the said second party shall notify him that he will purchase said premises above, that he, the said first party, will forthwith procure an abstract of the title of the said premises, and will, whenever a tender shall be made of such price of said premises, forthwith execute and deliver to said second party such deed of said premises as is above specified. Should there be any liens or encumbrances upon said premises, the amount of such liens or encumbrances shall be deducted from the amount of the purchase price. And the second party will take said premises subject to such liens or encumbrances. Provided, however, that at the option and election of said party of the second part and upon such tender of the sum of §15.00 per acre and notice as aforesaid within the time for that purpose above limited, instead of executing such absolute conveyance for such land, the party of the first part shall, and will, execute a proper conveyance to the party of the second part or to their assigns, of the right and privilege of mining for salt or other minerals under the same, but without the right of entry upon' or injury to the surface of the same in any respect whatsoever; unless second party shall give notice of or make tender of purchase price before the expiration of the time above mentioned, then this instrument shall be null and void.
In witness whereof, the said party of the first part has hereto set his hand and seal the-day and year above written.
“ Witnessed by ARTHUR J. ARTMAN [l. s.]
D. J. BISSELL [l. s.]
EMORY ELMORE [l. s.] ”

On the 18th day of October, 1890, the parties of the second part assigned all their interest in and rights under the contract to the plaintiffs, but the defendant was not informed of such assignment until the 21st day of February, 1891, mentioned below.

On the 3d day of January, 1891, the defendant personally served on each of the parties of the second part, a notice in writing as follows:

“ To David J. Bissell and to Emory Elmore, I, Arthur Artman, hereby withdraw any and all offers heretofore made by me to you or to either of you for the sale of my farm, and for sale of the rights and privilege of mining on said farm for salt or minerals, and particularly the offer in writing dated September 23, 1890.
“Dated January 3, 1891.
“(Signed) ARTHUR ARTMAN.”

On the 21st day of February, 1891, the jdaintiffs notified the defendant of the assignment of the agreement to them and that they had elected to take a conveyance of the mining rights specified therein, and to pay him the fifteen dollars an acre therefor, and tendered to him the full price thereof, viz., the sum of $1,815, in money, and at the same time presented to him an instrument purporting to be a deed prepared for execution by himself and wife, in due form, to convey such mining rights in accordance -with the alternative provisions of the agreement aforesaid.

. The defendant declined to accept the money or to execute the deed; he made no objection to the sufficiency of the tender made, nor to the form of the deed presented for execution, but declared that he had changed his mind and had decided not to make any conveyance under the agreement. The plaintiffs thereupon notified him that they should deposit the sum in a bank named, to be paid to him whenever he should execute the deed presented, and they did so.

On the trial of the action the defendant offered evidence to show that no consideration was, in fact, paid to the defendant under the agreement, for the option given by him thereby to the plaintiffs’ assignors. The evidence was objected to by the plaintiffs and was excluded. We think the exception to this ruling raises the only substantial question in the case.

It is apparent on the face of the agreement in question that as an executory contract it was wholly without mutuality. It contains no covenant or promise of the parties of the second part. They agree to clo nothing. The defendant proposes to let them have his farm or certain mining privileges therein at prices specified, and gives them five months in which to decide whether they will take either or neither. What they take under this contract, if it is a valid one, is simply a refusal of the choice. Of course if there has been no consideration for the agreement, it is nudum pactum, it is not valid and cannot be enforced; and the evidence now in question was offered for the purpose of showing that no consideration was, in fact, paid by the plaintiff'*’ assignors for the option and the refusal which the contract purports to assure to them.

The evidence was, no doubt, properly excluded. If admitted it ■would have done violence to some elementary principles of the law of .evidence bearing upon the credit and validity belonging to instruments in writing and uuder seal. The principles referred to may, perhaps, be embodied in a rule to the effect that while the mere presumption of a consideration -which arises from the use of seals in the execution of the instrument, is subject to rebuttal (Code Civ. Pro. § 840), the expression of a consideration in such instrument, is not subject to contradiction for the purpose or with the effect of invalidating the instrument. (Murdock v. Gilchrist, 52 N. Y. 246; Rockwell v. Brown, 54 id. 213.) The recital of a consideration in a deed is conclusive as to the fact that there was a consideration for the deed. (Grout v. Townsend, 2 Den. 335; Murdock v. Gilchrist, supra) The consideration actually paid or promised may be shown to have been other than that recited in the instrument, or the fact of payment of the consideration agreed upon may be contradicted in an •action for its recovery, but the existence of a sufficient consideration when expressed in an instrument under seal is not subject to dispute.

The contract in question, although without mutuality in its covenants, was not void for want of consideration, and the defendant was not at liberty to rescind it during the time given for the exercise of the option by the parties of the second part or their assigns.

The tender of the plaintiffs was sufficient in amount, as was admitted by the defendant, and the evidence shows that it was kept good in the manner proposed by the plaintiffs and not objected to by the defendant either at the time it was made or by his answer in this action or on the trial. (Halpin v. Phenix Ins. Co., 118 N. Y. 165, 178.) The conditions .annexed to the tender seem to have been only those upon which the plaintiffs had a right to insist, anti no objection was made to them at .any time. (See case last above, and cases cited at page 176.)

The objection to equitable relief is plainly not tenable in this action. In the nature of the case there could be no assessment of damages for the failure to perform the covenant to convey the mining privileges, the value of which could only be ascertained by their actual exercise.

"We find no error in the disposition of the case by the learned referee, and the judgment entered upon his report should be affirmed.

Lewis, Macomber and IIaight, JJ., concurred.

Judgment appealed from affirmed, with costs.


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    The People of the State of New York, Respondent, v. Benjamin F. Jewett, Appellant.

      Appeals from Courts of Special Sessions — review confined to errors alleged in the affidavit f or appeal — a valid, conviction not affected, by a subsequent invalid act of the justice.

    On an appeal from a judgment of a Court of General Sessions rendered upon an appeal from a Court of Special Sessions, the General Term will consider only the grounds of error alleged in the affidavit for appeal presented under section 751 of the Code of Criminal Procedure.
    Upon the conviction of a defendant on a trial in a Court of Special Sessions, concluded on Saturday evening, the justice who held the court pronounced a valid sentence of fine and imprisonment, and made out a certificate of conviction in ’ accordance therewith, but at the request of the defendant did not deliver the certificate to an officer that night, and the defendant was permitted to go at large for the time being. On the next day, Sunday, the justice assumed to modify the sentence so as to impose a fine, which was in excess of the limit of fifty dollars prescribed by section 717 of the Code of Criminal Procedure, and made out what purported to be a new certificate of conviction, and delivered it to a constable, but with a direction not to take the defendant into custody until Monday afternoon. On Monday morning the justice withdrew from the constable the certificate of conviction made on Sunday and delivered to him the valid certificate which had been made out on Saturday, and the defendant was arrested. The defendant was allowed an appeal on an affidavit which alleged as error that the sentence and certificate imposed and made on Sunday were void and of no effect.

      Held, that while the sentence and certificate referred to in the affidavit for appeal • • were void and of no effect, that fact did not affect the valid judgment and certificate rendered and made on Saturday, which ended the jurisdiction of the Court of Special Sessions over the case.
    Appeal by the defendant, Benjamin F. Jewett, from a judgment of the Court of Sessions of Wyoming county, entered in the office of the clerk of that county on the 31st day of January, 1893, affirming the judgment of a Court of Special Sessions of the town of Genesee Falls, convicting the defendant of the crime of assault in the third degree, also from an order denying the defendant’s motion to be allowed to amend his notice of appeal .to the Court of Sessions so as to show that some of the jurors on the trial drank strong and spirituous liquor.

      H. 11. Belyea, for the appellant.

      G. W. Botsford, District Attorney, for the respondent.
   Dwight, P. J.:

Counsel for the appellant in his brief and argument in this court propounded several alleged errors which were not mentioned in the affidavit presented to the county judge upon which the appeal to the Court of Sessions was allowed. (Code Grim. Pro. § 75Í.) These allegations of error could not properly have been considered by the court from whose judgment this appeal is taken, nor will they be considered here. The statute above cited requires that the affidavit of appeal must state “ the facts showing the alleged errors in the proceedings or conviction complained of,” and by provisions of the following section (§ 752) it is only when, in the opinion of the judge to whom the affidavit is presented, “ the question arising on the appeal should be decided by the Court of Sessions,” that the appeal will be allowed. Moreover, by the provisions of section 756 of the same statute, it is only to the matters stated in the affidavit ” that the magistrate or court rendering the judgment is required to make return.

Under these several provisions of the statute it has been well held that it is only the grounds of error alleged in the affidavit which will be considered on the appeal so allowed. (People ex rel. Baker v. Beatty, 39 Hun, 476 ; People v. McGann, 43 id. 55.)

In this case the only allegation of facts as ground of error, contained in the affidavit, which requires to be considered, is to the effect that after the Court of Special Sessions had sentenced the defendant to fine and imprisonment, on the rendition of the verdict on Saturday night, the justice who held the court assumed to reopen it on the next day (Sunday), and revoked the former sentence, and then sentenced the deponent to pay a fine of seventy-five dollars, and stand committed until paid, etc., and then and there delivered a ■commitment or certificate of conviction accordingly, to a constable ■of the town, and the errors alleged are that such conviction and •sentence is void and of no effect, for the reason that the court had no power to fine the deponent to exceed fifty dollars, under section Til of the Code of Criminal Procedure, and, second, no right to •sentence deponent on Sunday, and, third, no right to revoke his sentence in any manner.”

It is quite true that the sentence and certificate of- conviction here referred to are “ void and of no effect,” for the reasons, or some of them, above stated; but because they are so void and of no effect they do not affect the valid judgment which was pronounced on Saturday, and the proper certificate of conviction which was made out and signed on the same day, and was delivered to the proper officer on Monday morning.

The facts, as they appear by the return and further return of the justice, are as follows : The trial of the defendant was concluded and ■the verdict of the jury rendered on the evening of Saturday, August thirteenth. At that time judgment was pronounced sentencing the defendant to pay a fine of fifty dollars, and to be imprisoned in the county jail for the period of thirty days, and at the same time a certificate of such conviction was made out and signed by the justice, but at the request of the defendant and his ■counsel was not delivered to the-officer that night, and the defendant was permitted to go at large for the time being. That night and the next day the justice was urged by the defendant’s counsel to remit the sentence of imprisonment, and instead of it to increase the amount of the fine, which it was' promised should be immediately paid. On Sunday the justice, induced by the persuasion of the defendant’s counsel, and his advice that it was competent and lawful to do so, assumed to modify the sentence so as to impose a fine of seventy-five dollars without imprisonment, except until the fine was paid, and to make out and sign what purported to be a new certificate of conviction, and to deliver it to a constable, but with the direction not to take the defendant into custody until Monday at three o’clock in the afternoon ; this time being given at the request of the defendant’s counsel to enable him to raise the money with which to pay the fine of seventy-five dollars.

But on Monday morning the justice having learned that the whole of the action of Sunday was probably “void and of no effect,” withdrew the void certificate of conviction from the constable, and delivered to him the valid certificate which was made out on Saturday, and the defendant was arrested thereon.

It will be seen that there is nothing in this narrative which impugns in any degree the validity and binding effect of the judgment pronounced on Saturday evening, or of the certificate of such conviction made out at that time. Both were, so far as appears by the record before us, entirely regular and valid. The defendant stood lawfully convicted of the crime with which he was charged, lawfully sentenced to a fine and imprisonment which were within the limits of the statute, and a certificate of such conviction and sentence was duly prepared, and was subject to be executed whenever delivered to the proper officer.

This was the end of the jurisdiction of the Court of Special Sessions over the case. That court, organized pro hac vice, thereupon became fimotus officio, and the justice who had held it had no power to reorganize or reopen it for any purpose whatever in connection with this case. All the proceedings of Sunday were without jurisdiction, and were, indeed, void and of no effect. (Lattimore v. The People, 10 How. Pr. 336 ; The People ex rel. Cook v. Smith, 28 N. Y. St. Repr. 306.) The valid judgment in the case pronounced on Saturday, was unaffected thereby, and was properly affirmed by the Court of Sessions.

It follows that the judgment of the last-named court must also be affirmed.

Lewis, Macomber and Haight, JJ., concurred.

Judgment and conviction of the Court of Sessions of Wyoming county, appealed from, affirmed, and case remitted to that court to proceed therein.


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    Marcus Hirshfield, Plaintiff, v. Maria Ludwig ; Josiah Sullivan, Respondent; John H. Foley, Appellant, and Others, Defendants. (Two Actions.)

      Assignment of a fund by an order drawn against it— liability of the drawee — -Ms right to a lien upon security held by him, is independent of the time of payment of the order.

    When an order, drawn upon a particular fund named therein, has the effect pro tanto of an assignment of the fund, it binds the fund in the hands of the drawee from the date of the presentation or notice of such assignment, and this is so whether the fund is in the hands of the drawee at the time of the notice of the order or comes into his hands thereafter; in either case, the drawee becomes primarily liable to the payee for the amount of the order as in the case of an acceptance, and it is immaterial at what time the order is actually paid ; and the drawee will be entitled to maintain his lien by virtue of any security he holds therefor, from the date when the indebtedness becomes his own.
    A loan association, on making a loan to be used in building operations on certain premises, placed the money in the hands of its attorney to be advanced by him to the borrower; the attorney taking a mortgr ge from the borrower, on other premises, to secure whatever sums might become due him from the borrower. Subsequent to the execution and recording of this mortgage, a person who had furnished materials for a building on the mortgaged premises, filed a mechanic’s lien thereon, notwithstanding which lien an order which had been drawn by the borrower, on the mortgagee, against the loan from the association, before the filing of the mechanic’s lien, was paid by the drawee after such notice of lien had been filed.
    In a proceeding for the distribution of surplus moneys arising upon the foreclosure of a prior mortgage, the holder of the mechanic’s lien claimed that his lien was prior to that of the drawee of such order.

      Held, that the drawee of the order was entitled to a lien in preference to that of the mechanic’s lienor.
    Appeal by the defendant John H. Foley from an order of the County Court of Monroe county, in each of the above-entitled actions, entered in the office of the clerk of that county on the 2d day of January, 1892,-confirming as modified thereby the report of a referee and directing the distribution of surplus moneys arising on a sale in foreclosure.

      Geo. Truesdale, for appellant Foley.

      M. W. Morris for respondent Sullivan.
   Dwight, P. J.:

There were two mortgages made by the defendant Ludwig to the plaintiff on several premises on Colvin street, in the city of Rochester. The foreclosure of the first mortgage produced a surplus of $515.15 ; of the second a surplus of $540.15. The controversy here is between the two defendants Sullivan and Foley in respect to the priority of their respective liens, both having been made defendants as lienors subsequent to the plaintiff. The referee to whom the matters in difference in this proceeding were referred,, found and reported that the defendant Sullivan had liens by virtue of two mortgages on the premises in question, to the amount of $1,286.50, which were prior and superior to the liens of the defendant Foley. The County Court modified the report by striking out a single item of the defendant Sullivan’s claim — which, however, did not reduce that claim below the total amount of the surplus moneys in hand — confirmed the report as so ‘ modified, and ordered the whole amount of surplus moneys, after providing for the expense of the proceeding, to be paid to the defendant Sullivan. It is from that order in each action that this appeal is taken.

The liens of the defendant Sullivan were by virtue of two mortgages of $500 each, executed by the defendant Ludwig to him, on the same parcels of land, respectively, as those covered by the plaintiff’s mortgag.es. They ivere executed, respectively, on the 10th and 11th days of October, 1890, and were duly recorded — the former on the eleventh and the latter on the thirteenth day of the same month. They were given as general security for whatever sums might be or become due from Mrs. Ludwig to Mr. Sullivan.

The liens of the defendant Foley were for materials sold by him to Mrs. Ludwig and employed by her in the erection of buildings on the same lots, to the amount of $300 on each lot. His notices of lien were filed on the 16th day of October, 1890.

The defendants Sullivan and Foley filed the only notices of claim to the surplus moneys in question, and were the only parties represented on the reference herein.'

The indebtedness of Mrs. Ludwig, to the defendant Sullivan arose by way of advances made by him to her, or for her benefit in connection with building operations other than those which gave rise to Foley’s mechanic’s liens. She had procured loans from two loan associations in Rochester to the net amount of $4,210.15 on lots other than those covered by the plaintiffs and Sullivan’s mortgages. Mr. Sullivan was the attorney for both of these associations and the money loaned by them was put into his hands to he advanced to Mrs. Ludwig as the buildings on the lots covered by their mortgages should progress to completion. On the 13th day of October, 1890, the entire net avails of these loans had heen thus advanced to and for Mrs. Ludwig, and in addition thereto the sum of $390.50 from Mr. Sullivan’s own funds, and on and before the twenty-fourth day of November he had made further advances to the amount of $100, under an express agreement of Foley that it should have precedence as a lien, under the Sullivan mortgage, to the mechanic’s lien of Foley. This made the sum of $490.50 for which the lien of Sullivan’s mortgage was, unquestionably, superior to .that of Foley under his notice as a material man.

The sole question in the case relates to the effect of certain orders which were drawn by Mrs. Ludwig on the funds in Sullivan’s hands before the time when the liens of Foley attached, though not paid until after that time.

The facts hearing upon this question are that on the 24th day of June, 1890, Mrs. Ludwig drew on Mr. Sullivan in favor of a firm of lumber dealers, an order for the payment of $468.50, to be charged against the avails of the loan of the Monroe Avenue Association, and on the twenty-third day of August another order in favor of the defendant Foley himself, for $531, payable out of the fund arising from the loan of the Park Avenue Association. She also drew an order in favor of a firm known as Yogel & Binder for $2Y5, which was in general terms and not payable out •of any particular fund. Sullivan paid all three of these orders at dates varying from May to August, 1891. The referee classed the Yogel & Binder order with the other two and gave to it the same effect in determining the amount of Sullivan’s lien. The county judge, on the other hand, distinguished it from the others by the fact that it was not drawn against a particular fund. The question need not be discussed here, because to exclude the third order still leaves the amount paid by Sullivan in excess both of the surplus moneys upon which he asserts a lien and of the two mortgages upon which his lien is based.

Upon these facts we concur with the learned County Court in the conclusion that the defendant Sullivan was entitled to a lien in preference to that of the defendant Foley, to the full extent of the two mortgages held b.y the former. The ground of this conclusion, as already foreshadowed, is that each of the two orders first mentioned being drawn upon a particular fund named therein, had the effect of an assignment pro tanto of that fund and bound it in the hands of the drawee from the date of the presentation or notice, of such assignment (Brill v. Tuttle, 81 N. Y. 454; Lauer v. Dunn, 52 Hun, 191; S. C., 115 N. Y. 405); that such was the case whether the fund was in the hands of the drawee at the time of notice of the order, or came into his hands thereafter; that in either case the drawee became primarily liable to the payee for the amount of the order as in the case of acceptance; that it is immaterial at what time the order was actually paid and that the drawee is entitled to maintain his lien by virtue of any security he holds therefor from the date when the indebtedness thus becomes his own. These propositions seem to result necessarily from the doctrine of the cases cited, and they lead to an affirmance of the order appealed from.

Lewis, Macomber and Haight, JL, concurred.

Order of the County Court of Montgomery county appealed from affirmed, with costs.


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    William H. Huffman, Respondent, v. William Beever, Appellant, Impleaded with Fredrika Beever and William T. Lewis.

      Referee’s report — further findings — further direction of judgment.

    When every fact likely to be material to tbe judgment, covered by tbe plaintiffs requests to find, is embodied in tbe referee’s report besides being passed upon in response to requests to find, there is no occasion for a motion by the plaintiff for further findings, even if the practice affords that form of relief in any case.
    When the report of a referee directs judgment according to the conclusions of law stated therein, the deficiencies or errors of the judgment so to be entered cannot be corrected before entry of judgment by an order for a further direction, of judgment.

      Appeal by the defendant William Beever from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of Allegany county on the 24th day of February, 1893, upon the motion of the plaintiff, sending back a referee’s report with directions to make further findings, and to prescribe the form of judgment to be entered against the defendant William Beever.

      William Spwgur, for the appellant.

      Rufus Scott, for the respondent.
   Dwight, P. J.:

We are at a loss to understand why this order should have been asked for. At the time of the submission of the case the plaintiff’s attorney submitted to the referee a list of no less than fifty-one requests to find on matters of fact, and the referee has not only noted on the paper his disposition of each of such requests, finding as requested in all but three instances, but he has embodied such findings in his report to far greater extent than was at all necessary ; because many of such findings, while they may have been pertinent as matters of evidence, cannot have been material to support any judgment asked for by the plaintiff. We say “ any judgment asked for,” because the pleadings in the action are not before us and we ■do not know, except as we infer from the findings of the referee, what were the issues between the parties, nor what the judgment asked for in the complaint. But on a careful comparison of the report with the requests to find we are unable to discover any fact, likely to be material to the judgment, covered by the plaintiff’s requests, which is not embodied in the report of the referee besides being passed upon in response to the requests to find. There was, therefore, clearly no occasion for a motion for further findings, even if, as contended, the practice affords that form of relief in any case.

But counsel for the plaintiff are especially tenacious of that part ■of the order appealed from, which directs the referee to prescribe the form of a judgment against the defendant William Beever; and here again we deem the motion unnecessary and the order not to be upheld. The report of the referee, after finding with great fullness and particularity upon the matters of fact which we may suppose were in issue between tlie parties, proceeds separately'to find nine distinct conclusions of law and directs judgment accordingly — after providing for a dismissal of tlie complaint as to tlie defendant Lewis.

There can be no doubt about tlie effect of this direction. The judgment so directed is to be entered against both the defendants other than Lewis. It is judgment in accordance with the conclusions of law. Whatever matters aré found as conclusions of law are to be adjudged by the judgment to be entered. This may be less -.than the plaintiff is entitled to — and it may be more — nevertheless it is the judgment which either party is entitled to enter and from which either party is at liberty to appeal. Its deficiencies or its errors cannot be corrected beforehand by an order for a further direction of judgment.

We are unable to discern any good ground for the order appealed from and are of opinion that it should be reversed and the motion denied.

Lewis, Macomber and Haight, JJ., concurred.

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


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    The People of the State of New York, Respondent, v. Philip Mago, Appellant.

      Indictment foii unlawfully maintaining a feri'y — -an excursion boat distinguished from, a “ ferry.”

    On the trial of an indictment, under section 415 of the Penal Code, for maintaining a ferry without authority of law, the evidence showed that' the defendant used a small steam yacht owned by him, on Sundays and holidays when not chartered for excursions elsewhere, in conveying passengers for hire from the village of Tonawanda to a wharf at certain picnic grounds on an island in the Niagara river; that his route had no connection with a highway on either side of the stream; that the boat was incapable of transporting the property of its passengers beyond what they carried on their persons or in their picnic baskets; and that the defendant’s landing on the island was on private property, from which any of his passengers might be excluded at the pleasure of the owners.

      Held, that the evidence failed to show the maintenance of a “ferry,” within the established meaning of that word.

      Appeal by the defendant, Philip Mago, from a judgment of the Court of Sessions of Erie county, rendered on the 18th day of July, 1892, upon the verdict of a jury, convicting the defendant of the crime of maintaining a ferry without authority of law.

      T. G. Beolter, for the .appellant.

      Jno. Qunneen, for the respondent.
   Dwight, P. J.:

The judgment convicted the defendant of a misdemeanor, viz., of maintaining a ferry without authority of law, under section él5of the Penal Code. At and before the time named in the indictment and down to the time of the trial, the defendant was the owner of a small steam yacht which he employed, on Sundays and holidays mainly, in conveying passengers for hire from the village of Tonawanda across the east branch or channel of the Niagara river to a place of public resort on Grant island, known as Sour Springs Grove,” and back again, though he did occasionally charter his boat to take parties for the trip around the island. Sour Springs Grove was private property, comprising >i house of entertainment, picnic grounds, merry-go-rounds, and a wharf at which boats might land. The wharf was not connected with any" public highway, but was maintained by the proprietors for the accommodation, solely, of visitors to the grove. It was at the request of the proprietors that the defendant began to run his boat to the grove, and they gave him the use of the wharf for that purpose.

The boat’s berth, when tied up, was within the mouth of Tonawanda creek, at which place, when about to run to Sour Springs, the defendant took on such passengers as offered for the trip. After leaving the mouth of the creek, he steamed up the river along the water front of the village, three-fourths of a mile or more, stopping at any point where he was hailed to take on a passenger, and then passing diagonally across the stream to his destination.

We are of the opinion that the prosecution of the business or enterprise thus described was not the maintenance of a ferry within the intendment of the statute (supra)-, we think it lacked some of the essential elements which are included in late and authoritative definitions of a ferry. In the ease of The Mayor of New York v. Starin et al. (106 N. Y. 11), Judge Earl says: “ Iu a general sense it (a ferry) is a highway over narrow waters; ” and further, “A ferry is a continuation of the highway from one side of the water over which it passes to the other, and is for the transportation of passengers or of travelers with their teams and vehicles and such other property as they may carry or have with them.” And iu The Same v. New Jersey Steamboat Co. (106 N. Y. 31), the same judge remarks: “ There was nothing in the structure of the defendant’s boats which deprived them of the character of ferry boats; they were adapted to carry travelers with their horses, vehicles and other property and hence they could engage in a ferry business.”

The American and English Encyclopedia of Law (voJ. 7, p. 941) defines a ferry to be a public highway of special description, and its termini must be in places where the public have rights, as towns or vills, or highways leading to towns or vills. The right of the grantee is in the one case an exclusive right of carrying from town to town; in the other of carrying from one point to another, all who are going to use the highway to the nearest town or vill to which the highway leads on the other side.” (Citing Huzzey v. Field, 2 Crompt., M. & R. 442.) The same compendium of law also quotes the following definition and remarks from the authorities cited: “A ferry is nothing more than the continuation of a road, and, as far as regards the authority of the State and general governments, does not differ from a toll bridge.” (Steamboat James Morrison, Newberry’s Admty. 251.) “A ferry is a highway for all of the Queen’s subjects paying toll.” (Ferry Co. v. Barker, 2 Exch. 149.) Where a stream crosses a public highway the continuity of the highway is not broken; it does not end on the one side of the stream and begin again on the other, but continues across the stream, and the public for the purpose of travel have the same right to go on the water over the highway that they have to pass along other portions of it. But as a physical obstruction intervenes it is necessary that some convenient means of transportation shall be furnished and the simplest and most economical in many cases is a ferry.” (Sullivan v. Supervisors, 58 Miss. 799.) These and similar expressions of the courts seem to indicate some essential elements or characteristics of a ferry, which were absent from the enterprise conducted by the defendant. His route had no connection with a highway on either side of the stream; his boat was incapable of transporting the property of his passengers beyond what they carried on their persons or in their picnic baskets ; his landing was on private property from which any .of his passengers might be excluded at the pleasure of the owners; he ran only on Sundays and holidays, and, then, made the trip across the river only when his boat was not chartered for an excursion elsewhere. In short, he never carried travelers, but only excursionists, and his boat was a pleasure boat and not a ferryboat.

¥e think the case, as it stands upon the evidence before us, does not make out the offense of unlawfully maintaining a ferry, and that the judgment of conviction must be reversed and a new trial ordered.

Lewis, Macomber, and Haight, JJ., concurred.

Judgment of the Court of Sessions of Erie county reversed and a new trial granted, and for that purpose the case is remitted to that court.


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    Frank M. Hunting, Plaintiff, v. Ferdinand S. M. Blun, Defendant.

      Stockholder's liability under section 18 of chapter 40 of 1848 — action against the corporation excused, by a judgment of sequestration, enjoining it— the judgment of sequestration is not open to collateral attack.

    The existence of a judgment of sequestration against a domestic corporation, enjoining creditors of the corporation from bringing actions against it, rendered in an action brought for that purpose under section 1784 of the Code of Civil Procedure, and granted by a court having jurisdiction of the action and of the parties, during the year given to a creditor by the Manufacturing Corporations Act of 1848 in which to bring an action against the corporation as'a condition precedent to maintaining an action to enforce the personal liability of a stockholder for debts 'of the corporation under section 18 of that act, excuses a creditor from compliance with such condition precedent.
    When, in such an action to enforce a stockholder’s liability, the existence of such a judgment of sequestration is relied upon by the plaintiff as an excuse for his failure to bring a prior action against the corporation, such judgment is not open to collateral attack and rejection on the ground that the precedent judgment against the corporation, relied on in the action of sequestration as evidence of the right to maintain that action, was a void judgment.

      Motion by the defendant, Ferdinand S. M. Blnn, for a new trial on a case and exceptions ordered to be heard at the General Term in the first instance, after a verdict rendered for the plaintiff by direction of the court, at the Oaynga Circuit, on the 11th day of October, 1892.

      JS. T. Wright, for the motion.

      E. O. Aihin, opposed.
   Dwight, P. J.:

The plaintiff is the assignee of a number of claims for the wages of employees of the Bheubottom & Teall Manufacturing Company, and brings this action to enforce the statutory personal liability of the defendant as a stockholder of that company. (Laws of 1848, chap. 40, § 18.) But it was a condition precedent to the maintenance of such an action that an action for the same debt should have been commenced against the company itself, within one year from the time the debt was contracted, and that an execution against the company should have been returned unsatisfied in whole or in part. The due commencement of such an action against the company, the recovery of judgment therein and the return of an execution thereon wholly unsatisfied, was alleged in the complaint, and an attempt was made to prove it by the offer in evidence of a judgment in favor of the plaintiff against the Bheubottom & Teall Manufacturing Company recovered in the City Court of Auburn and docketed in Cayuga county clerk’s office February 20, 1891; also an execution issued thereon and the return of the same unsatisfied. It was conceded that the location and residence of the company Was the village of "W'eedsport and not the city of Auburn. The evidence was objected to on the ground that the City Court of Auburn had no. jurisdiction of the action; the objection was sustained and the evidence was excluded on the ground that the judgment was void.

The plaintiff then, having recourse to another allegation of his complaint^offered in evidence the judgment roll in an .action in the Supreme Court for the sequestration of the property of the company, the appointment of a receiver thereof, etc., in which action a judgment to that effect was entered April 10, 1891, by the provisions of which an injunction, which had been theretofore granted enjoining the creditors of the company from cringing any actions against it, was made perpetual. The object of this proof was to excuse compliance on the part of the plaintiff with the condition of the statute above stated, in respect to the commencement of an action, recovery of judgment, etc., on the principle that such condition having become impossible it was no longer in force. (Hardman v. Sage, 124 N. Y. 25, 32, and the cases cited therein.)

But upon inspection of the judgment roll so offered in evidence it was disclosed that the judgment alleged in the complaint as a foundation for the action of sequestration, was ■ — • like the one previously offered in evidence in this action and held to be void — a judgment of the City Court of Auburn, and thereupon the defendant objected to the reception of the judgment roll in the sequestration action in evidence, on the ground that the court was without jurisdiction to entertain that action for the want of a valid judgment upon which to found it. This objection was overruled; the action and judgment of sequestration and the order therein were held a sufficient excuse for not prosecuting an action against the company for the debt sought to be recovered in this action, and — the amount of that debt being admitted — a verdict therefor in favor of the plaintiff was directed by the court, and the defendant’s exceptions were ordered to be heard in the first instance at General Term.

The only exception which requires to be considered is that to the ruling of the court last mentioned, viz., to the admission in evidence of the judgment roll in the sequestration action. Ye think that-exception was not well taken. The objection did not go to the jurisdiction of the court in that action, but to the sufficiency and effect-of evidence which must have been given on the trial or application for judgment therein. The Supreme Court had unquestioned jurisdiction of the action, viz., for the sequestration of the property of a domestic corporation; and, equally, jurisdiction of the person of the defendant, by personal service of process on its president. Them was no question of jurisdiction of the court to entertain and determine the action, and the question whether the plaintiff was entitled to maintain the action under the Statute (Code Civ. Pro. § 1184) was not a question of jurisdiction but of proof ; and if in determining that question the court erred in the admission of evidence or based. its judgment upon illegal evidence the only remedy of any person aggrieved by the judgment is by appeal or by direct proceeding in the action in which it was rendered. (Moeschler v. Lochte, 12 N. Y. St. Repr. 855.) Certainly a party restrained by an order made vrvterloeutor in that action, and made permanent by the judgment, will not be justified in disregarding the order on the ground of such error, so long as the judgment stands neither vacated nor reversed.

The judgment of sequestration was rendered during the year which the statute gave to the plaintiff in which to bring his action against the company, and the order and judgment therein were a sufficient reason for his not complying with the condition precedent for the maintenance of this action.

¥e find none of the authorities so industriously collected by counsel for the appellant quite in point to support his contention in this case, but are of opinion that the motion for a new trial must be denied, and judgment directed for the plaintiff on the verdict.

Lewis, Macomber and Haight, JJ., concurred.

Defendant’s motion for a new trial denied, with costs, and judgment ordered for the plaintiff on the verdict.


author: Haight, J.:

text:
    Annie Reinhardt, Appellant, v. Frank Fritzsche and Others, Respondents.

      The Civil Damage Act of 1873 — not a penal statute — was not repealed, nor were vested rights acquired thereunder, affected by chapterr 403 of the Laws of 1892.
    The Civil Damage Act (Chap. 646, Laws of 1873), which gives a right of action for damages suffered in consequence of the intoxication of another, is not a penal statute.
    The Civil Damage Act of 1873 is preserved by the provisions of section 40 of the general revision of the laws regulating the sale of intoxicating liquors enacted in 1892 (Chap. 401), and was not repealed by implication by chapter 403 of the Laws of 1892, but the latter act was intended as an amendment and limitation of the provisions of the act of 1873.
    The provisions of chapter 403 of the Laws of 1892, making service of notice a prerequisite to a recovery of damages suffered by reason of the intoxication of any person, are not retroactive as regards the right of action given by the Civil Damage Act of 1873, and do not affect a right under that act which had accrued and become vested before the passage of said chapter 403 of the Laws of 1892.

      Semble, that the enactment of chapter 677 of the Laws of 1892, entitled “An act relating to the construction of statutes,” section 31 of which provides that the repeal of a statute shall not affect or impair any act done or right accrued prior to such repeal, would not restore a cause of action which had been lost by the repeal of the statute giving it before the enactment of said chapter 677.
    Appeal by the plaintiff, Annie Reinhardt, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of Monroe county on the 1st day of September, 1892, upon a dismissal of the complaint at the Monroe Circuit upon the pleadings.

      Walter 8. Ilubbell, for the appellant.

      George F. Yeoman, for the respondents.
   Haight, J.:

This action was brought under chapter 616 of the Laws óf 1873, known as “ The Civil Damage Act,” to recover damages for the loss of the plaintiff’s means of support by reason of the death of her husband caused from intoxicating liquors sold to him hy the defendants.

His death occurred on the 13th day of April, 1890. This action was commenced on the 19th day of May, thereafter, and the trial took place on the 27th day of June, 1892. The complaint was dismissed upon the ground that the Civil Damage Act of 1873 had been repealed.

By chapter 101 of the Laws of 1892, the Legislature revised and consolidated the laws relating to the sale of intoxicating liquors. By section 10 of that act, it is provided that “No recovery shall be had in any civil action brought to recover damages suffered by reason of the intoxication of any person against a person or persons who shall by selling or giving away any intoxicating drink have caused such intoxication, unless one of the persons who might have such a cause of action in case of such damage, shall prior to such sale or giving away have given written notice, to the person selling or giving away such intoxicating drink, forbidding such sale or giving away to the person whose intoxication shall have caused such damage.”

One hour after the approval of this act, chapter 403 of the Laws of 1892 was approved by the Governor. It is entitled “ An act in relation to Excise.” The first section authorizes the boards of excise in cities to appoint a clerk, etc. The second section is as follows : “A recovery may be had in a civil action of the damages suffered by reason of the intoxication of any person from any person or persons who shall, by selling or giving away intoxicating drink have caused such intoxication, or from any persons owning or renting or permitting the occupation of any building or premises wherein such selling or giving away shall have occurred, jointly with the person or persons selling, or giving away, or severally, if the person or persons suffering such damage shall, previous to such selling or giving awray, have given written notice to the licensee or his agents or the person or persons so selling or giving away forbidding such selling or giving away to the person whose intoxication, shall have caused such damage, and not otherwise.”

Chapter 646 of the Laws of 1873, known as the Civil Damage Act, provides that Every husband, wife, child, parent, guardian, employer or other person who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her, name against any person or persons who shall, by selling or giving away intoxicating liquors, caused the intoxication in whole or in part of such person or persons, and any person or persons owning or renting or permitting the occupation of any building or premises and having knowledge that intoxicating liquors are to be sold therein shall be liable severally or jointly with the person or persons selling or giving intoxicating liquors aforesaid, for all damages sustained, and for exemplary damages; and all damages recovered by a minor under this act shall be paid either to such minor or to his or her parent, guardian or next friend as the court shall direct; and the unlawful sale or giving away of intoxicating liquors shall work a forfeiture of all rights of the lessee or tenant under any lease or contract of rent upon the premises.”

Other provisions of the act give justices of the peace in the county jurisdiction to try and determine cases under this act where the amount of damages does not exceed $200, and to three justices of the peace jurisdiction where the damages claimed do not exceed $500.

The trial judge appears to have been of the opinion that the Civil Damage Act is a penal statute, and that it was repealed by chapter 403 of the Laws of 1802.

We differ with him. upon both propositions.

As to the first, it has been held by this court that the statute is not in any sense a penal statute. That it imposed no penalty and contemplated no violation of the law; but gave a remedy for damages suffered. (Hall v. Germain, 31 N. Y. St. Repr. 320, 321; Comstock v. Hopkins, 40 id. 568, 569.) That question must, therefore, be regarded as disposed of so far as this court is concerned.

As to the other proposition, it appears that chapters 401 and 403 of the Laws of 1892 were passed about the same time and were approved by the Governor on the same day, one within a short time after the other.

In chapter 401, there was a general revision and consolidation of the laws regulating the sale of intoxicating liquors, and yet by the provisions of that act there was no attempt to repeal .the Civil Damage Act. It in fact preserved it by the provisions of section 40 which we have quoted, and which, it will be observed, is based upon and refers to the Civil Damage Act in the clause : “ Unless one of the persons who might have such a cause of action in case of such damage,” etc.

No person could have “such a cause of action” except for the. Civil Damage Act. It is given by that statute, and would not exist without it. It is thus recognized, referred to and impliedly preserved, though greatly limited.

We.are consequently brought to the consideration of the provisions of chapter 403.

The rule is, that where there is no repealing clause in a statute and that and a former one can stand together, and both have effect, they will generally both be held to be in force, but where a revising statute covers the whole subject-matter of a prior statute, and such plainly appears to have been the legislative intent, the revised act is deemed to contain the entire law upon the subject and virtually repeals the former enactment. (In the Matter of N. Y. Inst. for Deaf and Dumb, 121 N. Y. 234; People v. The Gold & Stock Tel. Co., 98 id. 67-78; Heckmann v. Pinkney, 81 id. 211-215; Ellis v. Paige, 1 Pick. 43; Bartlett v. King, 12 Mass. 537.)

Tbe act under consideration contains no repealing clause. There is nothing in its provisions giving a right of action that is repugnant to the provisions of the Civil Damage Act. It limits the right to recover to the cases in which notice had previously been given by persons injured, to the person selling, forbidding the sale, etc. But this does not deprive persons previously injured or those subsequently injured, who have given the notice, of their right of action. It is not entitled, nor does it purport to be, a revision of the Civil Damage Act. It does not cover the whole subject-matter of that act. It provides that a recovery may be had in a civil action of the damages suffered by reason of the intoxication of any person, etc. It will be observed that it is silent as to the persons that may maintain the action and as to the damages that may be recovered. It is undoubtedly true that it was intended and that it should be construed as giving a right of action to any person who has suffered damages, but it contains no provision as to the kind or nature of damages that may be recovered.

A widow or child at common law could recover no damages because of the death of a husband or father from intoxicating drinks although they might both suffer by reason thereof in their means of support. Damages of that character were not known to the common law (Volans v. Owen, 74 N. Y. 526-529; Meed v. Stratton, 87 id. 493-496), but were given by the Civil Damage Act. Without that act they could not maintain an action, for the reason that they could not prove any damages. The word “ damage ” as used in the latter act would only permit evidence of such matter as constituted damage at common law, and at the same time there is nothing in the use of the word that is repugnant to the provisions of the former act giving damages to means of support.

The latter act contains no provision in reference to recoveries in behalf of minor children or as to the jurisdiction of courts before whom actions based thereon may be tried. It treats upon the subject embraced in section 10 of the revised act, is “ inpa/ri materia ” therewith and they should be considered together.

We think, under the circumstances disclosed, that it was not the legislative intent to repeal the Civil Damage Act, but that the later act was intended to and must be considered as an amendment and limitation of the provisions of the former act.

The rule doubtless was that actions could not be maintained upon penal statutes, or statutes creating criminal offenses after the repeal thereof. (Sturgis v. Spofford, 45 N. Y. 446-452; Knox v. Baldwin, 80 id. 610; Curtis v. Leavitt, 15 id. 1-229; Hartung v. People, 22 id. 95.)

Whether this rule has now been changed by the Laws of 1892, chapter 677, section 31, it is unnecessary to now determine, for as to statutes not penal, under which rights have accrued and become vested, the rule is that statutes amending the same have no retroactive force unless the legislature so declare. (In the Matter of Miller, 110 N. Y. 216-223; Reid v. The Mayor, etc., 52 N. Y. St. Repr. 69.)

In Dwarris on Statutes and Constructions (162, note 9) it is said: “The American authorities are quite uniform on the retroactive effect of statutes. The general rule is that no statute, however positive in its terms, is to be construed as designed to interfere' with existing contracts, rights of actions or suits, and especially vested rights, unless the intention that it shall so operate is expressly declared, and courts will apply new statutes only to future cases unless there is something in the very nature of the case, or in the language of the new provision, which shows that they were intended to have a retroactive operation. And although the words of the statute are broad enough in their literal extent to comprehend existing cases, they must yet be construed as applicable only to cases that may thereafter arise, unless a contrary intention is unequivocally expressed therein.”

In Smith v. The People (47 N. Y. 330), it is said that “ A statute should not be so construed as to work a public mischief unless required by words of the most explicit and unequivocal import. In' the construction of statutes effect must be given to the intent of the Legislature whenever it can be discerned, though such construction seems contrary to the letter of the statute.”

In Suburban Rapid Transit Co. v. The Mayor, etc. (128 N. Y. 510-523), Gray, J., says: “A construction' of an act should be avoided which would injuriously affect the rights of others, and that sense should be attached to its provisions which will harmonize its objects with the preservation and enjoyment of all existing rights.”

In Bullock v. Town of Durham (64 Hun, 380), the plaintiff was injured because of the failure of the town to maintain proper guards upon a bridge. The injury occurred on the 14th day of August,, 1890. In June, 1890, the Legislature passed an act requiring, as a prerequisite to an action against a town for such an injury, the presentation to the supervisor of the town of a verified statement of the cause of action within six months after it accrued, and that no action should be commenced until fifteen days after the'service of such verified statement. The act was to take effect on the 1st day of March, 1891. It was held that, inasmuch as the act did not go. into effect until March, 1891, it would not, in the absence of an express intention to that effect, operate upon a cause of action which accrued in August, 1890.

In Sanford v. Bennett (24 N. Y. 20), it was held that the statute of 1854, chapter 130, exempting from prosecution for libel the publishers of legislative debates, is prospective only, and is no defense for a publication prior to its enactment.

In Vanderkar v. The Rensselaer & Saratoga Railroad Company (13 Barb. 390), the action was brought to recover the value of an animal killed by an engine by reason of the failure of the defendant, to construct a cattle guard as required by chapter 140 of the Laws-of 1848. Hand, J., in delivering the opinion of the court, says: Neither the provisions of the act of 1850, or its repealing clause, took away the plaintiff’s cause of action, if he had any under the act of 1848. It was not a penalty that he claimed, but damages for an injury to his property, and if, by the law of the land, he had a right of action for that, it was not taken away by the repeal of the statute.”

The plaintiff has brought this action to recover the damages which she has sustained by reason of the death of her husband. The action is for damages. A right of action is given by the Civil Damage Act. Her right had matured and become vested before the passage of chapter 403 of the Laws of 1892. The provisions of that act are not by the terms thereof made retroactive, and we think they should not be construed so to be.

The Laws of 1892, chapter 677, is entitled “ An Act relating to the Construction of Statutes.” Section 31 contains the following provision: The repeal of a statute or part thereof shall not affect or impair any act done or right accruing, accrued or acquired, or liability, penalty, forfeiture, or punishment incurred prior to the time such repeal takes effect, but the same may be asserted, enforced, prosecuted or inflicted as fully and to the same extent as if such repeal had not been affected, and all actions and proceedings, civil or criminal, commenced under or by virtue of any provision of a statute so repealed and pending immediately 'prior to the taking effect of such repeal, may be prosecuted and defended to final effect in the same manner as they might if such provisions were not so repealed.”

This act was approved May 18, 1892, eighteen days after chapter 403.

It is claimed that this enactment would not have the effect to restore a cause of action which had been lost; that the repeal of the statute giving the right of action could not be restored under the provision of this section.

We quite agree with the respondent to this extent. But it will be observed that the chapter relates to the construction of statutes. It provides how statutes must be construed, and the effect that shall ■ be given to the repeal of a statute.

Under the view taken by us of this case the construction of this statute becomes unimportant, and we leave it with the remark that .actions of the character discussed are preserved unless we now have two rules for the construction of statutes —■ one for statutes existing prior to the passage of the act and another for those passed after.

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

Dwight, P. J., Lewis and Macomber, JJ., concurred.

Judgments appealed from reversed and a new trial granted, with costs to abide the event.