author: Van Brunt, P. J.: O’Brien, J.:

text:
    GEORGE F. LOUGH and Others, Respondents, v. A. EMILIUS OUTERBRIDGE and Others, Appellants.

      Corporations — discrimination in freights — what is not — the right of a carrier to protect itself against a competitor.

    The Quebec Steamship Company, a Canadian corporation of which Outerbridge & Co. were the New York agents, carried freight for many years between New York and the Windward Isles at from forty to fifty cents per dry barrel.
    George F, Lough & Co., export commission merchants, who traded to the Windward Isles, brought an action to restrain the steamship company and its agents from exacting more than twenty-five cents per barrel upon a consignment by them to Barbadoes, and in the action obtained a permanent injunction.
    It appeared from the complaint, and from affidavits read upon the motion for an injunction, that there was another steamer, “El Callao,” which touched at Barbadoes, and was, as alleged by the defendants, subsidized by the government of Venezuela; that she offered to take freight at thirty cents per barrel, a rate, which the defendants alleged, was not a living rate; that, however, in order to retain their trade the defendants offered to the trade’to carry freight to Barbadoes, upon days when “El Callao” sailed thither from New York, at twenty-five cents per barrel, provided that shippers would for that week ship exclusively by the defendants’ line.
    The plaintiffs alleged that they had chartered “El Callao;” that her freight space was full, and that having further freight which must be shipped at once they applied to the defendants, whose ship was not full, and were informed that the rate would be forty cents unless the plaintiffs would agree to ship exclusively by the defendants’ line.
    Upon an appeal by the defendants from an injunction order which restrained the defendants from exacting more than twenty-five cents per barrel from the defendants for freight from New York to Barbadoes:

      Held, that the plaintiffs did not present a case entitling them to reliei in equity.
    That if excessive rates of freight were charged they could recover the excess at law.
    That there was no unjust discrimination shown to have been made by the defendants against the plaintiffs.

      That defendants were ordinary common carriers, offering to all the same rates which were not unreasonable; and provided they did so offer that they had a right to protect themselves against competitors in the trade. '
    Appeal by the defendants, A. Emiiius Outerbridge, Adolphus J. Outerbridge and the Quebec Steamship Company, from an order of the Supreme Court, entered in the office of the clerlj of the city and county of New York on the 3d day of June, 1892, continuing, during the pendency of this action, a preliminary injunction which restrained the defendants from exacting from the plaintiffs, for the receipt and transportation of 1,700 barrels from New York to Barbadoes, more than twenty-five cents freight per barrel without further condition.
    The complaint alleged that the plaintins were partners, composing the firm of G. E. Lough & Co., engaged m business at the city of New York as shippers of merchandise to the Windward Islands; that the defendants, A. Emiiius Outerbridge and Adolphus J. Outerbridge, were partners, composing the firm of A. Emiiius Outerbridge & Co., engaged in business at the city of New York as agents or managers of the steamship line of the defendant, the Quebec Steamship Company, a foreign corporation, organized and existing under the laws of the Dominion of Canada, engaged in business as a common carrier between the port- of New York and the Windward Islands, and that the said steamship line is the only line engaged in the business of regular transportation between the port of New York and the Windward Islands; that the defendants have arbitrarily refused and omitted to give and now threaten to refuse to grant to the plaintiffs’ terms, facilities and accommodations for the transportation of merchandise by said line equal to those granted by the defendants to other shippers of merchandise in equal or smaller quantities, and have arbitrarily exacted from the plaintiffs, and now threaten to exact a much greater rate of freight than they have at the same time exacted from shippers generally, as a condition of receiving and transporting merchandise by said line; that by reason of the premises the plaintiffs have suffered and will suffer irreparable injury.
    It further appeared by the affidavit of George F. Lough, one of the plaintiffs, that the plaintiffs have recently chartered the steamship El Callao, to transport merchandise from the port of New Y ork, to certain of their correspondents at Barbadoes, one of the Windward Islands; and are shipping merchandise thereby; that the •defendants have advertised the steamship “ Trinidad,” of the Quebec Steamship Company’s Line to sail from the port of New York, on May 4, 1892 ; that the plaintiffs having orders from certain of their correspondents for upward of one thousand and seven hundred barrels of merchandise at Barbadoes, to be shipped to them at Barbadoes, and having the said merchandise ready for shipment, on May 27,1892, offered the same to the defendants to be transported from the port of New York, to Barbadoes; that the defendants have written to the plaintiffs, as appeared by the letter thereto annexed, that although there is on the said steamship “ Trinidad,” unengaged cargo space, they would not transport the said merchandise by the said steamship, at a less rate than forty cents per dry barrel, though they have offered to transport the merchandise of shippers generally who are not making a shipment by the steamship “ El Callao,” at the rate of twenty-five cents per dry barrel; that there is now no steamship advertised to sail from the port of New York, for Barbadoes, except the said steamships “El Callao,” and “ Trinidad,” and that the cargo space in the “ El Callao,” for Barhadoes is now all engaged; that the said merchandise which the plaintiffs have offered to the defendants for transportation is for shipment to certain of the plaintiffs’ correspondents who have ordered the same by cable, and directed it to be shipped by first steamer. That the plaintiffs are in danger of losing the business of their said correspondents if, because of the unjust discrimination on the part of the defendant against the plaintiffs, they shall be •obliged to pay as agents for their correspondence forty, per dry barrel freight, while other shippers by the same steamer for the same voyage pay but twenty-five cents per dry barrel. That for this reason the plaintiffs ask for an order to show cause returnable before June fourth, why a mandatory injunction directing the defendants to receive and transport the said cargo, or so much thereof as there shall be room for on the said steamship “ Trinidad,” at any time before sailing on or about June 4, 1892, to Barbadoes, in the Windward Islands, at the rate of twenty-five cents per barrel, should not issue, with a preliminary injunction until further order.

      Wilhelmus Mynderse, for the appellants.

      Treadwell Cleveland, for the respondents.
   Van Brunt, P. J.:

The Quebec Steamship Company is a foreign corporation, and the firm of Outerbridge & Co., the other defendants, have for several years been its agents in New York. This company has for many years been engaged in trading between New York and the "Windward Islands, and has maintained a fleet of steamers engaged in "the transportation of passengers and merchandise, sailing periodically. Up to December, 1891, the standard rate of freight to Barbadoes was on a basis of fifty cents per dry barrel; at which time the standard rate of freight was reduced to forty cents, which rate the defendants claim is fair and just, and affords but a bare subsistance to the steamers engaged in that traffic. This rate has ever since been maintained upon all sailings, and for all shippers except as hereinafter stated.

The plaintiffs were engaged in the export business to the Windward Islands to a considerable extent, and claim that, from time tO’ time, they have been obliged to, and have chartered steamers not belonging to the defendants to transport merchandise to their correspondents in the Windward Islands, and that such employment has interfered with the monopoly which the defendants have hitherto enjoyed. The defendants, upon the other hand, claim that the plaintiffs did not transport any cargo by ship under charter to-them, but that a steamer called the El Callao, engaged in trade between New York and Venezuela, making sailings at intervals of about five weeks, under concessions from the Venezuelan government, which concessions enabled her to maintain the service between New York and Venezuela, offered herself for cargo, and has received and carried cargo from New York to Barbadoes; that her sailings have been regularly advertised to the trade .by the agents of the-steamship in New York, who were not the plaintiffs; that said steamer El Callao was seldom full of cargo which she had to carry between New York and Venezuela, and, as in the regular course of her voyage she ran near Barbadoes, she was able to carry as freight to Barbadoes, in spaces which would otherwise have been emptyj, merchandise, at rates at which vessels engaged in the regular trade to the Windward Islands could not maintain themselves; .that the defendant company accordingly, when one of its steamers has sailed from New York at the same time with El Callao, offered in trade competition with and for the purpose of retaining custom which had been built up by them to carry freight at the rate of twenty-five cents per barrel for shippers who would give their shipments for that week exclusively to the ship of the defendant company in preference to the El Callao; and that the rate of thirty cents, fixed by the El Callao, is one upon which vessels engaged in the regular trade could not maintain themselves. The defendants, having refused to receive freight from the plaintiffs at a less rate than forty cents per barrel at the time they were shipping by the El Callao, and having offered to take freight at the rate of twenty-five cents, provided they would stipulate not to ship to Barbadoes by steamers other than those of the defendants, the plaintiffs brought this action for an injunction restraining them from exacting from the plaintiffs, for the transportation of some seventeen hundred barrels by a particular steamer, a greater rate of freight than twenty-five cents per barrel, without further conditions. The plaintiffs obtained a preliminary injunction which was made permanent, and from the order thereupon entered this appeal is taken.

We do not think this preliminary*order should have been granted, as the plaintiffs did not present a case entitling them to relief in a court of equity. It is claimed upon the part of the plaintiffs that they would have suffered irreparable damage were an injunction not issued. It is difficult to see how the impossibility of obtaining redress exists, in view of the fact that, if improper rates of freight were charged and paid by them, the excess might have been recovered in a proper action brought for that purpose.

But, further, we are unable to see that any unjust discrimination has been made by the defendants against the plaintiffs. They have offered to the plaintiffs precisely the same terms which they have done to everybody else; and we have not been able to find any rule obtaining in the case of simple common carriers which prevents them from protecting themselves against their rivals or competitors in trade, so long as, substantially, the same terms are offered to all. The mere fact that it may be more inconvenient to one to accept the terms than to others does not constitute discrimination. The plaintiffs are studying entirely their own interests, and the defendants have some right to protect theirs*

A large number of authorities have been cited by the counsel for the respondents to support the proposition that a common carrier is bound to accept all freight offered to it at the same rates and with the same facilities. But an examination of those cases will show, with but one or two exceptions, that the common carrier was a corporation which had exercised the right of eminent domain, and had thereby become a public servant which had exercised the highest right known, to the law for the purpose of affording facilities for the transportation of freight, and that, therefore, it had no right to refuse or to make any terms or conditions in respect to transportation, except fixing the rate of freight; and if this rate discriminated, then they were not performing the public functions for the performance of which they had been allowed to exercise these extraordinary powers, Such stringency of rule does not obtain where no such rights have been exercised. Hence there is a manifest distinction between the duties to the public of that character of common carriers who have exercised the right of eminent domain, because of their undertaking, and those who have not had conferred upon them any such powers. In the case at bar the defendants are ordinary common carriers. They have offered to treat the plaintiffs upon precisely the same footing as the other shippers who were their customers, and, therefore, there is no discrimination.

If any authority is needed to support what seems to be a self-evident proposition, the case of the Mogul Steamship Company v. McGregor, etc. (21 L. R., Q. B. D., 544), is one singularly in point, notwithstanding the claim upon the part of the respondents that the case at bar and the case cited have nothing in -common. It seems to us that the principle which controlled that case was precisely the question which is involved in the case at bar. It is urged upon the part of the respondents that the English case was an action for conspiracy brought by one steamship company against others, alleging an unlawful combination to ruin the plaintiff’s business, and that in sustaining the judgment for the defendants, entered by direction of the court, the appellate court decided merely that an unlawful conspiracy was not made out. And why ? Simply because no element of unlawfulness was found in the combination which was established. Now, what was that combination? It appears that the plaintiffs were a company of ship owners, trading between Australia and England, Taking China by the way, and desirous of participating in the benefits of the transportation of tea during what is termed the tea harvest. The defendants were a number of shipping companies and private partnerships trading for the most part between England and China, and who, being desirous of keeping this valuable trade in their own hands to prevent, if they could, the ruinous lowering of freight which they contended would follow from absolutely unrestricted competition, entered into what they called a conference for the purpose of working the China tea trade by offering a rebate of five per cent upon all freights paid by shippers to the conference vessels, such rebate not to be paid to any shipper who shipped tea in any vessels but those belonging to the conference, The plaintiffs in that action thereupon commenced the same, alleging a conspiracy to ruin their trade, to recover the damages alleged to have been sustained. It was held that there being no element of unlawfulness in the combination mentioned, the action would not lie, and that the defendants had a right to combine with a view of keeping the trade in their own hands, such combination not being entered into with the intention of ruining the trade of the plaintiffs, nor through personal malice or ill-will towards them. It would seem, therefore, that a simple common carrier has the right to adopt such rules as are necessary to protect his trade, so long as those rules apply to all and do not discriminate.

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

O’Brien, J.:

I concur in the result, but think that the court’s right to interfere is not dependent upon the questionyvhether the corporation sought to be enjoined has received any franchise or authority from the State.

As stated in Menacho v. Ward (27 Fed. Rep., 533) it is “not alone because the business of common carriers is so largely controlled by corporations exercising under franchises the privileges which are held in trust for the public benefit, that the courts have so strenuously resisted their attempts, by special contracts or unfair preferences, to discriminate between those whom it is their duty to serve impartially.”

This case, which is relied upon in the court below, I think, upon examination, will be found to support the conclusion arrived at by the presiding justice.

The obligation upon a common carrier is well stated by Wallace, J., in that case, as follows, at page 532: These decisions proceed upon the ground that the carrier is entitled to take into •consideration the question of his own profits and interests in determining what charges are reasonable. He may be able to carry a large quantity of goods, under some circumstances, at no greater expense than would be required to carry a smaller quantity. His fair compensation for carrying the smaller quantity might not be correctly measured by the rate per pound, per bushel, or per mile charged for the larger. If he is assured of regular shipments at given times, he may be able to make more economical arrangements for transportation. By extending special inducements to the public for patronage he may be able to increase his business, without a corresponding increase of capital or expense in transacting it, and thus derive a larger profit. He is, therefore, justified in making discriminations by a scale of rates having reference to a standard of fair remuneration of all who patronize him. But it is impossible to maintain that any analogy exists between a discrimination based upon the quantity of business furnished by different classes of shippers, and one which altogether ignores this consideration, and has no relation to the profits or compensation which the carrier ought to •derive for a given quanimm of service.”

In this case it is not disputed but that the rate fixed by the defendant, and which he asks the plaintiff to pay, is a fair and reasonable rate for the services to be rendered, and the fact that he has made, or proposes to make, with one individual, a rate which is less than the fair and reasonable rate for the service, is no reason why a court of equity should take out of the hands of the carrier the power to regulate his business, and to receive from those asking for the service such fair and l’easonable rate as he has established, and requires all to pay equally alike. I think the reasoning in the case of Mogul Steamship Company v. McGregor, referred to by the presiding justice, is conclusive upon tlie question presented by tliis appeal in favor of tbe view contended for by appellants.

Order reversed, witb ten dollars costs and disbursements, and tbe motion for injunction denied, witb ten dollars costs.


source: Caselaw Access Project

author: O’Brien, J.:

license: Public Domain

text:
    CHARLES G. DOREMUS, Plaintiff and Respondent, v. ARRIEANNA M. DOREMUS, Individually and as Administratrix of PETER C. DOREMUS, and Others, Defendants and Respondents. In the Matter of MAX LANG, a Purchaser, Appellant.

      Partition sede — merchantable title — what constitutes a release of a dower right— a secret trust — an erroneous description — amendment—an insufficient notice to creditors.

    Max Lang, who had purchased certain premises at a sale under a judgment, in an action brought for the partition of property which, at the time of his death, belonged to Peter O. Doremus, deceased, after an examination of the title objected to it and refused to complete the purchase.
    In proceedings taken to compel him to pay the purchase-price it appeared that George F. Wing, who was the predecessor of Peter O. Doremus in the title, died in 1875 leaving a widow and a daughter, that he had been a lunatic, and that, in April, 1874, his wife had released her inchoate right of dower for value to the committee of her husband; that, in 1878, Wing’s daughter, Marion F. Rockwell, had conveyed the premises to Doremus, which constituted his only title thereto, the committee never having conveyed to Doremus , that both the widow and the daughter were living, and that neither had been made a party to the partition suit.

      Held, that as the widow had retained the consideration which she had received seventeen years before the commencement of this action from the committee of her husband, and had made during that period no claim of any kind for dower in the premises, her right to dower was bavred.
    It further appeared that Marion F, Rockwell, Wing’s daughter, had notified the purchaser that she claimed to own the premises upon the ground that Doremus had, in fact, never paid her any consideration therefor, and had agreed to devise, or otherwise in some manner secure, the same to her; that judgment was entered in the partition suit in February, 1890, and that, in June, 1892, she had begun an action to enforce her claim against the heirs of Doremus. It was conceded that between the time when her deed to Doremus was given, in 1878 and June, 1892, other parties had acquired rights, in good faith for value and without notice, in the premises.

      Held, that, as against such parties, Mrs Rockwell could not allege or sustain a secret trust.
    Another objection was based upon the fact that the premises were erroneously described in all the papers in the partition suit, the description reading southwesterly from the southerly corner of Smith and Livingston streets, instead of south-easterly therefrom. There was no error in the deed to Wing, or in the one from Mrs. Rockwell. After the sale and before its confirmation the error was corrected by an order made in the action nunc pro tunc, and by the final judgment the necessary amendments were ratified.

      Held, that the objection was untenable.
    A further objection rested upion an alleged inefficiency in the notice to creditors, as to which it was shown that there were judgments docketed in the county against a part owner of the premises in favor of parties who never appeared before the referee, and who were not parties to the action, and that some part owners were omitted from the notice given by the referee. It appeared, however, that the only judgment-creditors of a party to the action, who were not brought in, were creditors of the plaintiff, who was named in such notice, and the referee reported that judgment and mortgage-creditors of the plaintiff appeared before him and proved their claims; that he had published the notices, caused official searches to be made, and had passed upon the claims against the plaintiff, and that there was no other general lien by judgment or decree upon the undivided share or interest of either of the parties, and that no creditor not a party to the action, having any general lien on any undivided share or interest in the premises by judgment or decree, had appeared before him on the reference to establish his claim in pursuance of the notice which he had published.

      Held, that the defects in the notice were cured.
    That while a purchaser will not be compelled to take a doubtful or unmarketable title, he'cannot demand a title absolutely free from all suspicion or possible defect.
    Appeal by Max Lang, tbe purchaser of a piece of land sold by a referee in the above-entitled action of partition, from an order of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 2'Tth day of July, 1892, denying his motion to be relieved from his purchase.

      Edward Eemp>ton, for the appellant.

      George Bliss, for the plaintiff, respondents.

      Benjamin T. Eissam, forthe defendants, respondents, Y. E. Doremus and another.

      Joseph Fettreteh, for the defendants, respondents, Crosby and others.
   O’Brien, J.:

The action was brought for the partition and sale of various parcels of land and premises of which one Peter C. Doremus was alleged to have been in his lifetime the owner, and to have died, seized and possessed. At the sale, Max Lang, this appellant, purchased for $5,600 the house and lot situated on the south-westerly-side of Livingston street in the city of Brooklyn, distant one hundred and thirty-four feet and eleven inches south-easterly from Smith street..

After examination of the title the purchaser served upon the referee a notice in writing of his objections and made formal demand for repayment of all moneys paid and expenses incurred by him on account of the purchase.

The objections still adhered to by the purchaser are :

First objection. One George F. "Wing, a predecessor in the title,, died intestate, seized and possessed of the premises on the 13th day of November, 1875, leaving him surviving Annetta Wing (now Annetta Curry), his widow, and Marion F. Derby (now Marion F.. Rockwell), his only child and heir-at-law. On the 8th day of May, 1878, Marion F. Derby conveyed the premises to Peter O. Doremus. The widow never released to him or his grantor her dower right. George F. Wing, the decedent, had been however, prior to his death, a lunatic under commission, and his wife, in his lifetime, to wit, on the 2d day of April, 1874, executed and delivered to Samuel EL Crook, as committee of the lunatic’s estate, an instrument purporting to release to him her right of dower. But the committee was never authorized to and never did convey away the fee in the premises, and the only title of Peter C. Doremus was such as he had acquired from the heir-at-law of the lunatic. The purchaser, therefore, objected that said widow being still alive the dower right still attaches. The widow was not a party to the partition suit.

This objection to the title presents the question as to whether or not it was competent for a wife to release to the committee of her lunatic husband.her inchoate right of dower in her husband’s lands, so that said lands should descend to her husband’s heirs-at-law, free and acquitted from her dower right therein.

The deed, dated April 2, 1874, between Annetta Wing and Samuel EL Crook, as committee of the person and estate of George F. Wing, lunatic, and which was properly acknowledged and recorded in 1874, shows that the release of dower was made in consideration of certain articles of household furniture and the payment to her of the sum of $3,500. The question thus presented on these facts is, in principle, governed by the case of Jones v. Fleming (104 N. Y., 430), wherein the court said: “ It is provided in the Revised Statutes (3 R. S. [7th ed.], 2198, § 12) that, ‘if before her coverture, but without her-assent, or if after her coverture, lands shall be given or assured for the jointure of a wife, or a j>ecuniary provision be made for her, in lieu of dower, she shall make her election whether she will take such jointure or pecuniary provision, or whether she will be endowed of the lands of her husband, but she shall not be entitled to both.’ ” *

In this, as in that case, the contract was made with the committee of the lunatic, and it here appears that t-lie widow retained, and still retains, the consideration given her by the committee of her husband, and that she has never made, during the seventeen years since her husband’s death, any demand for an admeasurement of her dower or any claim in regard thereto. The case of Jones v. Fleming is, therefore, an authority holding that, under such circumstances, her right of dower is barred.

Second Objection. Actual notice was given the purchaser by Marion F. Rockwell that she claimed to be the owner of the premises in question, and that Peter O. Doremus had never, in reality, paid her anything as a consideration for her conveyance to him, but at the time of his death held the property in trust for her, and under an agreement to secure the same to her by his last will and testament or otherwise.

In further urgency of such claim, said Marion F. Rockwell has commenced an action in this court to compel a conveyance to her of the premises by the heirs-at-law of said Peter C. Doremus, and the summons and complaint in such action and notice of pendency of the same were filed in the office of the clerk of Kings county on the 29th day of June, 1892.

Marion F. Rockwell was not a party to the partition suit, and her mights, if any, have thus not been concluded.

In answer to this objection it was shown that the deed given to Peter O. D'oremus was a full covenant warranty deed for a valuable consideration expressed therein, which deed was recorded in May, 1878. It is not claimed that any notice, actual or constructive, was given in any way, or that she made any claim until June, 1892, when she commenced the action referred to in the objection. It was shown that between the date and recording of the deed in May, 1878, and the beginning of the suit by Marion F. Rockwell in June, 1892, third persons had, in good faith, without notice and for a valuable consideration, acquired interests in the property. It also appears that the summons, complaint and notice of pendency of action were filed in this cause on May 9, 1888, and that judgment directing sale by a referee was entered in February, 1890- The purchaser concedes that the third parties who, either by purchase or by taking mortgages, acquired interests in the property, did so in good faith and without any notice, actual or constructive, of the claimMow made by Marion F. Rockwell, and “ that the deed made by her to Peter C. Doremus * * * -was given to or received by the said Peter O. Doremus under any agreement in her favor, express or implied and without any notice, actual or constructive, that the said deed was anything other than, on its face, it purported to be, namely, an absolute conveyance in fee simple for a good and valuable consideration.”

This concession as to the knowledge possessed of any such claim by third persons who acquired interests in the property seems to dispose of this objection, because under such circumstances Mrs. Rockwell, having voluntarily made an absolute conveyance, could not be permitted as against them to allege a secret trust.

Third Objection. The complaint and all the papers throughout the partition suit erroneously describe the premises and place them a block away from their real location, namely, south-westerly from the southerly corner of Smith and Livingston streets instead of south-easterly therefrom.

The referee’s published notice to lienors gives the names of only two shareowners and describes the property erroneously. And there are judgments of record in Kings county against shareowners in favor of parties who never appeared before the referee, and who were not parties to the action.

The referee sold the premises on February 29, 1892, under the notice of sale containing the error of location.

After sale, but before confirmation, an order nimo fro fame, dated April 2, 1892, was entered in New York county purporting to cure this error of location.

It is conceded that the deed to "Wing correctly described the premises as the one from Mrs. Rockwell to Doremus. And the error which crept into the preliminary proceedings in this action was due to a clerical mistake in describing the property as a certain distance south-westerly instead of south-easterly, from the southerly corner of Smith and Livingston streets. This error in the description was subsequently corrected by amendment, so as to describe the premises in question just as the purchaser claims it ought to be; and it is conceded that upon such amendment, and by the referee’s supplemental report of sale, the error in the description was corrected, and subsequent to this, by final judgment, this report of the referee and the amendments made in the proceedings, with reference to the description, were ratified, confirmed and approved.

The most serious question presented upon this appeal lias reference to- the alleged insufficiency in the notice to creditors. But this, we think, was cured by the steps taken to correct the error. The affidavit in support of this objection shows that “there are judgments docketed in Kings county against Charles G. Doremus, the plaintiff, in favor of persons not parties to the action, which were not presented to, considered by or reported upon by the referee in this action.” *

So far as Charles G. Doremug is concerned, and creditors having claims against him, we think the notice was sufficient, for he was, in express terms, named in the caption of the notice published, and it appears from the referee’s report that judgment and mortgage-creditors of Charles G. Doremus, not parties to the action, appeared and proved their claims pursuant to such notice. In addition, the referee reported that he had published the notices and caused official searches to be made; and after having passed upon the claims presented against the interest of Charles G. Doremus, he finds, with respect to the shares of the other parties, as follows: “ That there is no other general lien or incumbrance by judgment or decree upon the undivided share or interest of either of the parties in the premises. And no creditor not a party to this action having any general lien on any undivided share or interest in the premises by judgment ■or decree appeared before me on such, reference to establish his claim in pursuance of the notice published by me as aforesaid.”

It appearing that the objection of the purchaser was based upon judgments and claims outstanding as against Charles G. Doremus, ■one of the parties, with reference to whom, as we have shewn, the notice was sufficient, resulting in the presentation of certain claims before the refeiee, and it not being made to appear that there are ■any claims outstanding as against him or any other person having an incerest or share in the premises, we fail to see how this objection can be upheld, It would, no doubt, have been the better practice to have had the notice contain the names of all the parties to the action. But whatéver injury might have resulted from á failure sc to publish, it seems reasonably certain that this was cleared up by the official searches which were made by the referee with respect to the interests of all the parties to the suit. • In view of the conclusion reached by the referee that there were no other liens against the premises than those reported by him, and in the absence of evidence ■showing that any other liens existed, we think this objection untenable.

It is true, as claimed by appellant, that the court will not compel a purchaser to take a doubtful title oi an unmarketable one, nor will he be required to complete his purchase in case of reasonable doubt. But the decisions which support this view do not go to the ■extent of holding that a purchaser can d.emand a title absolutely free from all suspicion or possible defect.

Li this case the questions presented are somewhat involved and require a marshaling of the facts and deliberation thereon for their solution. Having such facts before us, while questions respecting the title may, from time to time, arise, we do not think they are sufficiently grave to affect the title to the property or place the rights ■of the purchaser in jeopardy.

We are of opinion, therefore, that the order appealed from should be affirmed, with costs and disbursements.

Barrett, J., concurred.

Order affirmed, with costs and disbursements.


author: O’Brien, J. :

text:
    In the Matter of the Estate of JOHN CALLAHAN, Deceased.

      Executors and administrators — when a creditor can compel an accounting — a claim in dispute — order to account — service of such order on the executor not necessary— appeal from a decision upon which no order wets entered.

      A petition was presented to a surrogate showing that, although more than eighteen months had elapsed since her appointment, an executrix had not filed an account, and asking that a citation issue requiring her to show cause why she should not do so. A citation was issued, and thereupon the executrix presented an affidavit tending to show that the petitioner had no valid claim against the estate. The executrix also showed that she was the residuary legatee, was ready to pay all just claims; that after certain actions relative to the.claim in question had been disposed of the claim was presented to her, was rejected by her, and that six months had elapsed since its rejection.
    The petitioner denied, by affidavit, that the claim had been rejected. Thereupon the surrogate ordered an account, from which order the executrix appealed. Subsequently, no account having been filed, the petitioner applied for an order that the executrix show cause why a warrant of attachment should not issue. Upon the hearing on the return day it appeared that the order to account had never been served on the executrix. The surrogate made a decision, upon which no order was entered, that the executrix account by a certain date or that a warrant of attachment should issue; and the executrix assuming that this decision was an order appealed from it.

      Held, that there could be no appeal from a decision upon which no order was entered. • '
    That if such an appeal could have been entertained there would have been no-merit in the objection that the order to account was never served upon the executrix, inasmuch as section 2727 of the Code of Civil Procedure provided that such an order bound the executrix without service.
    That the order to account was valid.
    That, under sections 2724, S726 and 2727 of the Code of Civil Procedure, a surrogate must, upon the petition of a creditor, make an order directing an account' unless good cause to the contrary be shown; and that none was shown in this case. That if the claim had been in dispute, this afforded no ground for denying the application.
    Appeal by Mary A. McGuire, executrix of John Callaban, deceased, from an order of the Surrogate’s Court of the city and county of New York, made on the 14th day of April, 1892, directing-her to account as such executrix; and also from a decision, described in the notice of appeal as an order of the said surrogate, made on the 26th day of May, 1892, deciding that an order to account need not be served, and directing the executrix to file an account by May 31, 1892, and that on default thereof an attachment against her should issue.

      Thomas J. McKee, for the executrix', appellant.

      W. W. Niles, for the petitioner, respondent.
   O’Brien, J. :

In this proceeding a petition was presented to the surrogate showing that the executrix of the deceased had not filed any account,, though more than eighteen months had elapsed since her appointment, and asking that a citation issue requiring the executrix to appear and show cause why she should not render and settle her accounts as such executrix. A citation having been issued, the executrix, on the return thereof, submitted an affidavit in which she asserted that the petitioner had no valid claim against the estate, and in support of this allegation revietved certain steps taken by the petitioner to establish the validity of the claim, The first of these was an action brought by the petitioner against the deceased in his lifetime, which, upon his death, resulted in the substitution of the executrix as defendant in his place and stead, who thereupon interposed her answer denying the petitioner’s right to recover in the action. This action, after issue joined, was, upon the application of the petitioner, discontinued upon the condition that the petitioner pay the costs. The executrix further shows that afterwards an action was brought against the auctioneers who sold the property f out of which this claim is alleged to have arisen, and that this-action, after issue joined, came on for trial, and a judgment upon the merits was rendered in favor of the auctioneers and against the petitioner. The executrix also swears that under the will she was made the residuary legatee, and, as such, took and holds possession of all the property of the estate, and avers her readiness to pay any and all just claims due, and assigns as a reason for not filing an account that all debts due by the deceased have been fully liquidated. She also states that after the disposition of the actions above referred to, a claim was presented by the petitioner, which claim was rejected, and that six months have elapsed since such rejection.

The answering affidavits dispute the statement made by the executrix with respect to the rejection of the claim; and while the presentation of the claim is conceded, a question upon the conflicting statements was presented as to whether or not it was ever rejected by the executrix.

Upon *the proceedings thus had, the surrogate made the order directing the executrix to file an account of her proceedings, and from this order the first appeal is taken.

Thereafter, upon failure to comply with the terms of this order, an application was made for an order to show cause why a warrant of attachment should not issue against the executrix, which was granted. In answer to such order to show cause, many of the facts averred in her former affidavit were presented as reasons why an account should not be filed, and the special point was made that the order of the surrogate requiring her to account had not been served. Upon this motion the surrogate made his decision as follows : “ On examination, I find the statute does not require service of the order. (See § 2727.) The account must be filed on or before May 31, 1892, or a warant of attachment will issue.”

No order was entered upon this decision of the surrogate. The appellant, however, assuming that this decision was an order, has appealed therefrom.

This last appeal, purporting to be from an order of the surrogate, when no such order, so far as appears, is in existence, must be dismissed, as we are aware of no practice which will permit an appeal from an opinion rendered by a surrogate or judge, in the absence of an order, decree or judgment made thereon and properly entered. Were the question presented upon this appeal, however, before us, it would be without merit, for the reason that, if the original order directing the executrix to account was proper, the surrogate, upon her failing to comply with the directions contained in the order, would be justified in granting a warrant of attachment. The point relied upon of non-service of the order was correctly disposed of by the surrogate, as will be found by a reading of the section referred to by him (Code of Civ. Pro. § 2727) which states: The executor or administrator is bound by such an order without service thereof.”

This brings us to the main question presented upon this appeal, as to the validity of the order of the surrogate directing the executrix to file an account. As shown by the case of Thompson v. Thompson (1 Brad., 26), the Revised Statutes authorized the surrogate of his own motion to enforce the return of an inventory after three months from the date of letters. (2 R. S. [3d ed.], § 18, p. 149.) Whether this power still exists in the surrogate it is unnecessary for us to determine, it appearing here that the order was made upon the petition of a creditor, and the authority of the surrogate under such circumstances to make the order'is expressly conferred by the Code of Civil Procedure, sections 2724,2726,2727. By the latter section, upon a petition being presented by a creditor, the surrogate must make an order directing an account, unless good cause to the contrary is shown.

The appellant insists, however, that good cause is shown, by reason of the circumstances set forth in the answering affidavit, to the effect that all other claims against the estate have been liquidated, and that she lias sufficient moneys in her hands, and stands ready and willing to pay all just debts due; and that the further fact that the petitioner’s claim is disputed is a good reason why she should not be compelled to file an account. Notwithstanding the proceedings resorted to by the petitioner to enforce payment of a claim, which it would appear were ineffectual, it is conceded that subsequent thereto the petitioner filed the claim with the executrix; and whether the same was rejected or not, we think, upon the affidavits presented, was undoubtedly and properly resolved by the learned surrogate in the petitioner’s favor. If, however, we were to assume that the claim of the petitioner was in dispute, this would be no reason for denying the application. This question has been directly passed upon by the Surrogate’s Court in the Estate of Cowdrey (8 N. Y. St. Kep., 774), wherein it was held that eighteen months having elapsed since the executrix had obtained letters testamentary, she must be directed to account; and further held that the fact that the petitioner’s claim is in dispute, was no ground for denying her application for an accounting. While this decision is in no way controlling upon' us, an examination of the reasons for the conclusions reached by the surrogate in that case, and of the authorities relied upon by him, will show that it is well supported.

Upon examining this record, we find no reason to interfere with the disposition giade by the learned surrogate, and the orders appealed from should be affirmed, with costs and disbursements.

Barrett, J., concurred.

Order affirmed, with costs and disbursements.


author: Barrett, J.:

text:
    In the Matter of the Petition of GEORGE W. McLEAN, as Receiver of Taxes in the City of New York, to Enforce the Payment of the Tax for Personal Property Imposed upon the WYANDANCE BRICK AND TERRA COTTA COMPANY.

      Corporations — place of taxation of — effect of a certificate of incorporation not locating tlie principal office.

    The Revised Statutes provide that the personal property of a corporation shall be assessed in the town or ward where the “ principal office or place for transacting the financial concerns of the company shall be; ” or, if it has none, then where the operations of the corporation shall be carried on. The Wyandance Brick and Terra Cotta Company, whose certificate of incorporation was filed in Suffolk county, and stated that its operations were to be carried on in the town of Babylon, in that county, was assessed for personal property in New York city. Upon a motion, made by the receiver of taxes of New York city for an order enforcing payment of the tax, the petition of the receiver of taxes of New York city alleged that the corporation was a moneyed or stock corporation, having its principal office or place for transacting its financial concerns in New York city. This statement was not denied, and was supported by a return of the company, filed in the office of the commissioner of taxe^and assessments.
    The affidavit of the treasurer of the corporation stated that the certificate of incorporation, filed in Suffolk county, stated that “the name of the town and county in which the operations of the said company are to be carried on are town of Babylon, Suffolk county," but the certificate of incorporation was not presented. Upon an appeal by the corporation from an order directing payment of the tax, interest and costs:

      Held, that, in the absence of the certificate of incorporation, or of proof that it located the principal office of the corporation in Babylon, the corporation must be taxed in New York city, where the evidence showed that its financial concerns were transacted.
    That where the principal office of a corporation is located, by its certificate of incorporation, it is taxable only at that location.
    Appeal by tlie "Wyandance Brick and Terra Cotta Company from an order of tlie Supreme Court, entered in the office of the clerk of the city and county of New York, on the 19th day of May, 1892, fining the company, for its failure to pay a person®! tax assessed and confirmed against it for the year 1890, the amount of the tax and the interest and costs, and directing payment thereof to the clerk of the city and county of New York, and the payment thereof by such clerk to the petitioner.

      F. C. JSarrwian, for the company, appellant.

      John G. H. Meyers, for the receiver of taxes, respondent.
   Barrett, J.:

The appellant claims that it is not taxable in this county for the reason that its certificate of incorporation was not filed here, but was filed in the clerk’s office of the county of Suffolk, and that such certificate states that: The name of the town and county in which the operations of the said company are to be carried on are town of Babylon, Suffolk county.”

Upon this state of facts, the appellant contends that its case comes within the authorities holding that the location, for the purpose of taxation, of a manufacturing corporation, organized under the general act of 1848 (chap. 40), is the place designated in its certificate as that where the operations of the company are to be carried on. (Oswego Starch Factory v. Dolloway, 21 N. Y., 449; Union Steamboat Co. v. City of Buffalo, 82 id., 351; Chesebrough Manufacturing Co. v. Coleman, 44 Hun, 545.)

This contention is not well founded for two reasons : First. The appellant fails to show that it was incorporated under the act of 1848; and, second, no copy of the certificate having been presented in opposition to the motion, we cannot assume that such certificate is silent as to the company’s principal office or place for transacting its financial concerns. It may well be ’that the certificate fixes the company’s principal office or place for transacting its financial concerns as well as the county in which its operations are to be carried on. The respondent’s petition states that: In the year 1890 the ’W’yandance Brick and Terra Cotta Company was a moneyed or stock corporation, having its principal office or place for transacting its financial concerns in the city of New York.”

This statement is not denied, and it is supported by the return made by the company for the year in question, which was filed in the office of the commissioner of taxes and assessments.

The case is thus taken out of the rule laid down in Oswego Starch Factory v. Dolloway (supra) and is brought within the Revised Statutes and the case of McLean, Receiver, v. Couper Milling Company (38 N. Y. St. Rep., 893; affirmed, 133 N. Y., 603).

The provision of the Revised Statutes is as follows: “All the personal estate of every incorporated company liable to taxation on its capital shall be assessed in the town or ward where the principal office or place for transacting the financial concerns of the company shall be; or if such company have no principal office or place for transacting its financial concerns, then in the town or ward where the operations of such company shall be carried on.” (2 R. S. [Bank’s 8th ed.], 1094, § 6.)

The facts of this case are almost precisely similar to those in McLean, Receiver, v, Couper Milling Company (supra).

The petition of the receiver of taxes there, as here, stated that the company was a moneyed or stock corporation, having its principal office or place for transacting its financial concerns in the city of New York. The latter statement was denied by the president of the company, but the court held that his statements were discredited and overcome by a return made, to the commissioners similar to that which was made in this case. Here the affidavit of the treasurer, filed in opposition to the motion, fails to meet the material averments of the petition either by positive denial or by the statement of affirmative facts. It is not necessary, therefore, to discredit his affidavit in order to sustain the proceeding.' The proof is clear as to the company’s principal office or place for transacting its financial concerns, and we are not informed whether this principal office was or w#as not fixed in its certificate. The language of Finch, J., in Union Steamboat Company v. City of Buffalo (supra) is, therefore, applicable : “ If the company had a principal office, fixed by its certificate, that, and that only, was its residence for purposes of taxation. If it had no principal office, so located by its certificate, then it was to be taxed where its financial concerns were transacted.”

The point with regard to the defects in the petition need not be specially considered. It is the same form of petition as was sustained in McLean, Receiver, v. Couper Milling Company (supra), and it is sufficient.

The order- appealed from should, therefore, be affirmed, with ten dollars costs and disbursements.

O’Brien, J"., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    CHARLES G. DOREMUS, Respondent, v. DARIUS G. CROSBY and Others, Appellants, Impleaded with Others, Defendants.

      Mvtra allowance — subject-matter of a pcwtition suit — what allowed to a wife with inchoate dower right — what to a guardian a<l litem — rents collected pendente lite.
    In an action for partition the “ subject-matter " involved, within the meaning of I section 3253 of the Code of Civil Procedure, is the property partitioned, and it is upon its value, and not upon the plaintiff’s share in it, that an extra allowance should be computed.
    The extra allowances made to all parties cannot exceed five per cent upon the value of the property.
    Such allowance should not be made to the wife of the plaintiff where she has only an inchoate right of dower, nor to the guardian ad litem of the infant daughter of the plaintiff, where such infant has no interest in the land. Such a guardian, unless the infant has an interest in the land, is only entitled to his costs.
    Where a receiver has been appointed pendente Hie to receive the rents of the property, and no provision in regard to them is made in the interlocutory or in the final judgment, the value of such rents cannot be considered in determining • the subject-matter upon which an extra allowance is to be calculated.
    The rule as to extra allowances is not affected by the fact that the action of partition resulted from the successful contest of a will.
    Appeal by the defendants, Darius G. Crosby, Estelle Warren and Emma Derby, from a judgment of tlie Supreme Court, entered in the office of the clerk of the city and county of New York on the 3d day of May, 1892, and particularly from that part thereof which directs the payment to the defendant Louisa D. Rathbun of one-seventh of the net proceeds of sale of the premises sold under the interlocutory judgment herein, and which directs the payment to the defendant Darius G. Crosby of only two-sevenths of the net proceeds of sale, instead of two-sixths claimed by said defendant; and also that part of said judgment which awards costs to the defendant Louisa D. Rathbun, and which awards and fixes amount of allowances to the several parties to the action, in addition to costs, with notice that upon such appeal the said defendants will bring up for review the interlocutory judgment made in the above-entitled action, and entered in the office of the clerk of the city and county of New York on the 2Stli day of April, 1891, and particularly that part of said interlocutory judgment which, adjudges that the fourth and fifth clauses of the will of Peter C. Doremus, deceased, are void and of no effect, and which adjudges that the defendant Louisa D. Ratlibun is entitled to an interest in the premises described in said judgment, or in the proceeds thereof, and which adjudges that the defendant Darius Gr. Crosby is only entitled to an- undivided two-sevenths, instead of two-sixtlis of said premises.

      Theodore II Silkmcm, for the appellants.

      George Bliss, for the respondent.
   Barrett, J.:

We do not agree with the appellants in their first contention, that the value of the plaintiff’s interest is the sole subject-matter here involved.

This is an action for the partition of real estate, and the property sought to be partitioned is the subject-matter involved within the meaning of section 3253 of the Code of Civil Procedure. The question is not affected by the fact that the partition follows a successful attack upon a will. It is still an action for the partition of real estate. In such an action the plaintiff does not, as in ejectment, seek to recover his interest from the defendants. The parties are tenants in common, and the action is necessarily in the interest and for the benefit of all such tenants in common. The plaintiff in his complaint prays that the interests of all parties, plaintiff and defendants, may be settled and determined by the court, and that an actual partition in accordance with such determination may be made according to law and the practice of the court. . In ease such actual partition cannot be made without material injury, then the plaintiff further prays that the property may be sold and the proceeds divided among the parties to the action, according to their respective rights and interests. In the cases cited by the appellants (Struthers v. Pearce, 51 N. Y., 365; Adams v. Arkenburgh, 106 id., 615; Weaver v. Ely, 83 id., 89; Abell v. Bradner, 15 N. Y. Supp., 64) the plaintiffs sought no judgment for the benefit of the defendants or in their interest, but demanded rights which were withheld from them by the defendants. Even in Adams v. Arkenburgh (supra), which was an action for the dissolution of a partnership and an accounting, the plaintiff in his complaint demanded from the defendant, who it is averred had appropriated joint funds of the partnership and had possession of what were claimed to be assets of the firm, his one-half share of all “the property, securities and money mentioned as the assets of the partnership.” (See opinion of Danfoeth, J., p. 618.)

The action was, therefore, for the recovery from the defendant of this one-half share, and the court held that such one-lialf share was the subject-matter involved in the action. The same distinction will be found in the other cases cited by the appellants. The view contended for, if sustained, would lead to great practical inconvenience, for we know that these cases frequently involve a great deal of work and responsibility, and that the plaintiff’s attorney has the laboring oar very much for the benefit of all concerned. The action is exceptional in the particulars pointed out, and we think the legislature intended by the language used in section 3253 to make special provision for just such a case.

We agree, however, with the appellants in their second contention, namely, that the court cannot allow to the parties in the aggregate more than five per centum upon the whole value of the property sought to be partitioned. Section 3253, as it bears upon this question, reads as follows : “ In an action * * * for the partition of real property * * * the court may also, in its discretion, award to any party * * * a sum not exceeding five per centum upon * * * the value of the subject-matter involved.” Clearly, the words “any party,” as here used, do not mean “ each party.” Otherwise, the court might, if there were twenty parties, allow 100 per centum. The object was to give the court discretion as to the proper distribution of whatever allowance should be granted within the limit fixed. But such limit was' to be five per centum upon the value of the property. It was so held in Fraser v. McNaughton (58 Hun, 31), and we concur in the conclusion there arrived at. Our construction is not in conflict with the views expressed in Weed v. Paine (31 Hun, 10). It was there held that the restriction in amount contained in section 3251, applied only to each side of the litigation, and that, consequently, the court had power, in a proper case, to award $1,000 in the aggregate. This is entirely consistent with a primary limitation of five per centum upon the subject-matter involved in the action. Hndoubtedly, what the court meant was that where the value of the subject-matter equaled or exceeded $80,000, the court had power to award $2,000 to each side.

"We also think that allowances should not have been granted to the plaintiff’s wife, nor to the guardian ad litem of his infant daughter, nor to the plaintiff’s mortgagee. The appellant has a right to complain of the reduction of the fund in this manner. The plaintiff’s wife had merely an inchoate right of dower in the plaintiff’s one-seventh part, for which she has been allowed by the decree $123. Iier costs, together with the allowance complained of, amount to $156.24.

The allowance to the guardian ad litem was entirely unauthorized. He was entitled, out of the estate, to his taxable costs and to no more. It was expressly adjudged that this infant had no interest whatever in the estate. Her interest under the will was taken by her father through this decree which he procured, and he certainly cannot charge upon his tenants in common the expenses of his daughter’s unsuccessful contest with himself.

There is nothing in the case of Weed v. Paine (supra) which would justify the court in awarding to the guardian of this infant an extra allowance out of other people’s money. The court was there speaking of a case where the infant had an interest in the subject-matter. Here she has no interest whatever in the estate nor in the money realized upon the sale. Under such circumstances the utmost that the guardian can be allowed out of the fund is his taxable costs. (Union Ins. Co. v. Van Rensselaer, 4 Paige, 87; Gott v. Cook, 7 id., 544; Downing v. Marshall, 37 N. Y., 391, 395; In re Holden, 126 id., 596.) In the case first cited the chancellor said : If any extra allowance is made to the guardian ad, litem of the infants, it must' be paid out of their share in the surplus; as nothing but the taxable costs can be charged upon that portion of the fund which belongs to other parties.”

And in Gott v. Cook he again observed : “ The infant children of Mrs. Kane, having no vested interest in the estate, there is nothing out of which any counsel fees for them can be allowed. And the court is not authorized to charge a fund which may eventually all belong to others, with anything more than the taxable costs of their guardians ad litem.”

In the Matter of Holden the Court of Appeals referred to the fact that the ward had only a contingent and reversionary interest in the share of one of the beneficiaries. This, said Huger, Ch. J., gave them no present interest in the trust fund, and under the cases of Union Insurance Company v. Van Rensselaer (4 Paige, 87) and Downing v. Marshall (supra) an allowance to their guardian could, be made only out of the shares of the infants.”

In arriving at the value of the subject-matter involved in the action, the rents collected by the receiver pendente lite should not be added to the amount realized from the sale of the property. Neither the interlocutory nor the final judgment makes any provision with regard to these rents. Their collection was pursuant to a provisional remedy and was a mere incident to the partition. The subject-matter of the action proper was the real estate sought to be partitioned; and its value, or the proceeds of the sale, was the value of such subject-matter.

The judgment appealed from should, therefore, be reversed, so far as it awards extra allowances to the several parties to the action, with ten dollars costs and disbursements to the appellants, payable out of the fund, and without prejudice to a fresh application at Special Term upon the principles stated in this opinion.

O.’Brien, J., concurred.

So ordered.


author: Putnam, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE EICKEMEYER-FIELD COMPANY and Others, Appellants, v. FRANK RICE, Secretary of State of the State of New York, Respondent.

      Tax upon incorporation — consolidanon of three corporations which home paid the tax — when no further tax is changeable

    Three corporations, incorporated subsequent to 1886, had paid the tax, laid by chapter 143 of the Laws of 1886, which is made a pre-requisite of the filing by the Secretary of State of a certificate of incorporation, and in June, 1892, they agreed to consolidate.
    The first section of chapter 668 of the Laws of 1892 provides: “ In case of the consolidation of two corporations into a new corporation said new corporation shall be required to pay the tax hereinbefore provided for (being the tax fixed by chapter 143 of the Laws of 1886) only upon the amount of its capital stock, in excess of the aggregate amount of capital ‘ stock of said two corporations ’ upon which said tax shall have theretofore been paid.”
    The Secretary of State insisted, and it was decided at Special Term, that the statute applied only to the consolidation of two corporations, and did not apply to a consolidation of three corporations.
    Upon an appeal from an order, denying an application for a mandamus against the Secretary of State, by the corporations consolidating:
    Meld, that such decision was erroneous.
    'That the object of the act of 1892 was to prevent a double taxation, so that where two or more corporations, each of which had paid the tax in question, consolidated, they should not be compelled to pay the tax again after consolidation.
    That the legislature had used the word “ two ” in the sense of “ two or more. ”

      Appeal by the relators, the Eickemeyer-Field Company, the Eickemeyer Dynamo Machine Company, the Yonkers Machine Company and the Eickemeyer-Field Manufacturing Company, from an order of the Supreme Court, entered in the office of the clerk of the county of Albany on the 26th day of July, 1892, denying the application of the relators for a writ of peremptory mcmdamus, requiring Frank Rice, as Secretary of S'tate of the State of New York, upon payment of his lawful fees, to receive and file in his office the agreement made between the three first-named several corporations, the relators, for a consolidation, and also the proceedings of the stockholders of the said last-named corporations, without payment of any incorporation tax prescribed by chapter 143 of the Laws of 1886, and the acts amendatory thereof.
    It appeared upon the motion that the capital of the consolidated ■company was not in excess of the aggregate amount of the capital stock of the three corporations, but, on the contrary, was less than that aggregate amount.

      J. Hampden Dougherty, for the appellants.

      Simon W. Dosendale, attorney-general, for the respondent.
   Putnam, J.:

The relators, the Eickemeyer-Field Company, The Eickemeyer Dynamo Company and the Yonkers Machine Company, three corporations duly incorporated under the laws of this State, subsequent to 1886, who had each, on filing a certificate of organization in the ■office of the Secretary of State, paid the tax required by chapter 143 ■of the Laws of 1886, on or about June 13, 1892, agreed to consolidate into one corporation, the Eickemeyer-Field Manufacturing Company, also one of the relators. On presenting to the Secretary of State the papers showing such consolidation, he declined to file the same until the fees, as required by the act of 1886 and amendments thereto, were first paid. At the time of the consolidation in ■question chapter 668 of the Laws of 1892, amending chapter 143 of the Laws of 1886, was in force, section 1 of said act containing the following provision: “ In case of the consolidation of two corporations into a new corporation, said new corporation shall be required to pay the tax hereinbefore provided for, only upon the amount of its capital stock in excess of the aggregate amount of capital stock of said two corporations.” The State insists, and the court below held, that the above-quoted provision of the act of 1892 does not apply to a case like this of the consolidation of three corporations. That the statute should be construed to mean two only, and not two or more.

The word “two,” as in ordinary use, is sometimes intended to mean only two, and sometimes two or more. Instances are cited by respondent where the word should have the former meaning, and the appellants call our attention to cases where the word two, as used, is evidently intended to mean two or more.

The question before us to be determined is, what meaning should be given to said word as used in the above-quoted provision of the act of 1892.

The rules to be followed in the construction of statutes are well settled. It is held that “the great principle which is to control is the intention of the legislature in passing the same, which intention is to be ascertained from the cause or necessity of making the statute, as well as other circumstances. A strict and literal interpretation is not always to be adhered to, and where the case is brought within the intention of the makers of the statute it is within the statute, although, by a technical interpretation, it is not within its letter. It is the spirit and purpose of a statute which are to be regarded in its interpretation. * * * A reasonable construction should be adopted in all cases where there is a doubt or uncertainity in regard to the intention of the lawmakers.” (People ex rel. Wood v. Lacombe, 99 N. Y. 49; Smith v. The People, 47 id., 336; McKuskie v. Hendrickson, 128 id., 558.)

Applying the above doctrine to the case before us, it is to be presumed that the intent of the legislature in enacting the above-quoted provision contained in chapter 668 of the Laws of 1892, was to prevent a liability on the part of a corporation which ha’d paid the tax required by the act of 1886, on a consolidation with another corporation, which had also paid said tax, to again pay the same tax. The object of the law was to prevent a double taxation. To hold, therefore, that on consolidation of two companies the new corporation was not required to pay a tax under the act of 1886, while on the consolidation of three or more the tax could be legally imposed, would result in making the statute unreasonable and absurd, and in not carrying out what may be presumed to be the intent of the legislature in enacting it. If, on consolidation of two companies, the tax under the act is not required to be paid, there is no reason why the same exemption from taxation should not follow the combination of three or more corporations.

I think, therefore, that, under the rule laid down as to the construction of statutes in the above-quoted authorities, the word ■“two,” as contained in the above-quoted provision of the act of 1892, should be deemed to mean two or more in order to carry out the apparent purpose of the legislature.

To give this construction of the law we are not compelled to go beyond the letter of the statute as is sometimes done; we are merely giving to the word “two” a meaning often given to it as in common use. The meaning of the word as used in the statute is doubtful, and in such a case it is proper to resort to the intent of the lawmakers in order to determine the sense in which the word was used. (Chamberlain v. The Western Trans. Co., 44 N. Y., 309; People v. City of Buffalo, 57 Hun, 582; Donaldson v. Wood, 22 Wend., 397.)

It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the mandamus asked for by the relators granted, with fifty dollars costs and disbursements.

Herrick, J\, concurred.

Order appealed from reversed, with ten dollars costs and disbursements, and the mandamus asked for by relators granted, with fifty ■dollars costs and disbursements.


text:
    DARIUS A. MOORE and Another, Appellants, v. WILLIAM McLAUGHLIN and Others, Respondents.

      Mechanic’s lien — notice of lien, under chapter 842, Laws of 1885, need not he signed— form of verification.

    A notice of mechanic's lien, filed under chapter 842 of the Laws of 1885, began .by stating that “Darius A. Moore and William A. Moore * * * have a claim,” etc. Then followed a statement of the facts and a description of the property affected, and at the end was a verification, made and signed by one of the •claimants, who were copartners. The notice itself was not signed by the lienors. In an action brought to enforce the lien the plaintiffs were nonsuited and appealed. Held, that the statute only required a notice of lien, and that the notice in question was sufficient.
    That a verification which followed the words of the act was sufficient.
    Appeal by the plaintiffs, Darius A. Moore and William A. Moore, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Franklin on the 29th day of March, 1892, dismissing the complaint after a trial by the court at the Franklin Circuit.

      John A. Vance, for the appellants.

      John P. Kellas, for the respondents.
   Putnam, J.:

This action is brought to foreclose a mechanic’s lien filed in pursuance of the provisions of chapter 342 of the Laws of 1885. On the trial plaintiff was nonsuited on the ground as stated in the case, that the notice of lien was not properly signed. Defendants now claim that the disposition of the case below was right, not only on the ground stated, but also for the reason that the verification to the notice of liens is defective. It is as follows:

“ County of St. Lawrence, ss. :
William A. Moore, being duly sworn, says he is one of the firm of D. A. & W. A. Moore, and one of the persons making the foregoing claim, and that the statements therein contained are true to his knowledge or information and belief.
“ WILLIAM A. MOORE.
“ Subscribed and sworn to before me ) this 2d day of September, 1891. )
■ “ A. B. Hamilton, J. PP

This point was not taken by the defendants on the trial, and, therefore, I think should not be entertained. But, if otherwise, it has been determined that a verification following the words of the statute is sufficient. (See Boyd v. Bassett, 40 N. Y. St. Rep., 658; Kealy v. Murray, 15 N. Y. Supp., 403; Schwartz v. Allen,, 24 N. Y. St. Rep., 912.)

Section 25 of the.lien law of 1885 is as follows:

“ This act is hereby declared to be a remedial statute, and is to be construed liberally to secure the beneficial interests and purposes-thereof; and a substantial compliance with its several provisions shall be sufficient for the validity of the lien or liens hereinbefore provided for, and to give jurisdiction to the courts to enforce the same.”

Construing the notice of lien filed by the plaintiff as required by the above section, I think it is sufficient. It states at the commencement that “ Darius A. Moore and William A. Moore, comprising the firm of D. A. Moore & W. A. Moore, * * * have a claim,” etc. Then follows the statement of the facts and a description of the property affected by the lien, and at the end is the verification.

Section 4 of the lien law does not require the notice of lien to be sigúied or subscribed by the lienor. It requires a notice of Hen in writing. The statement at the commencement of the notice in question that Darius A. Moore and William A. Moore have a claim, etc., gives as full and perfect a notice of who the parties are that claim the lien as if their names, instead of being stated at the commencement of the paper, were signed at the end.

At the end of the notice is the verification above set out, subscribed and sworn to by one of the lienors and verified. This verification states that the affiant is one of the firm of D. A. & W. A. Moore, and one of the persons making the foregoing claim, and, therefore, shows, if it did not otherwise appear, who are the persons who filed the notice. Construing this paper as required by section 25 of the lien law, I think it is sufficient. It is a notice of lien in writing as required Toy the act.

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

Mayham, P. J., and Herrick, J., concurred.

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


text:
    ANN ARTHUR, as Administratrix of MICHAEL ARTHUR, Deceased, Appellant, v. THE VILLAGE OF GLENS FALLS, Respondent.

      Villages — action for negligence — notice of the claim and the p'esentation required by statute must be alleged in the complaint — when a bill is not private or local.

    Ann Arthur brought an action against a village, incorporated under the general village act (chap. 291 of the Laws of 1870), to recover the damages resulting from the death of her husband, which was caused, as alleged, by the negligence of the village. The said act, as amended in 1889, forbids such an action unless it is begun within two years after the claim has accrued, and unless it has been presented, and notice of the time and place at which the injuries were received has been filed with the village clerk or presented to the board of trustees within one year after the cause of action has accrued.
    The action in question was begun November 9, 1889, and the complaint alleged that the accident occurred upon August 8, 1889, but contained no. allegation that the claim had been presented, or notice filed or presented, to the village, as ■ required by the statute.
    On the trial the complaint was dismissed upon the ground that it did not, because of this omission, state a cause of action.
    Upon an appeal by the plaintiff from the judgment dismissing the complaint,

      Held, that the complaint was properly dismissed.
    That a compliance with the statute must be alleged in the complaint.
    That the statute must be construed to mean that if an action was brought within one year from the time of the injury the complaint must allege presentation and notice; while if commenced more than a year after the injury a presentation and notice within one year of its occurrence must be alleged.
    That a bill which embraced all those villages of the State which elect to take advantage of its provisions is not a private nor a local bill.
    Appeal by the plaintiff Ann Arthur, as administratrix of Michael Arthur, deceased, from a judgment of the Supreme Court, entered in the office of the clerk of the county of "Warren on the 28th day of October, 1891, dismissing the plaintiff’s complaint, after a trial, at the Warren Circuit before the court which denied a motion to draw a jury; with notice of an intention to bring up for review upon such appeal the refusal of the court to permit the plaintiff to introduce certain evidence.
    The action was begun November 9, 1889, and the complaint alleged that the accident to recover the damages resulting from which the action was brought occurred August 8, 1889.

      D. S. Potter, for the appellant.

      U. P. 'King, for the respondent.
   Putnam, J.:

This action was brought by plaintiff, as administratrix of her deceased husband, to recover damages for his death, which the complaint alleged was caused by a negligent act on the part of the respondent.

The village of Glen Palls is organized under the general village act. Section 9, title 3 of said act was amended by chapter 440, Laws of 1889. The title of the amended act, and the section, as amended, is as follows: “ An act to amend section 9 of title 3 of chapter 291 of the Laws of 1870, entitled cAn act for the incorporation of villages.5 55

“No action shall be maintained against the village for damages for personal injuries or injury to property alleged to have been sustained by reason of the negligence of the village, or of any officer, agent or employee thereof, unless the same shall be commenced within two years after the cause of action therefor shall have accrued, nor unless the claim shall have been presented and notice of the time and place at which such injuries were received shall have been filed with the village clerk or duly presented to the board of trustees within one year after such cause of action shall have accrued.55

There was no allegation in the complaint that the claim had been presented to the board of trustees, or filed with the village clerk, or that the notice required by the act had been served. On the trial defendant’s counsel moved to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The court granted the motion, plaintiff’s counsel excepting. Counsel for plaintiff stated that they could prove that upon the service of a summons and complaint within a year from the accruing of the cause of action the board of trustees of the village was convened, the complaint read to them and considered, and by them referred to the village attorney, who was authorized to defend, and has put in a defense, which facts are now offered to be proved.

Defendant objected to the offer, and the court refused to permit the plaintiff to make the proof, .plaintiff excepting.

The question is presented whether, under the act of 1889, if the action is commenced within a year from the time of the injury, it is necessary to present the claim therefor and serve notice of the time and place of the accident before the action is commenced, and to allege such presentation and notice in the complaint.

I think the view of the statute taken by the trial judge was correct. The language of the act requires the construction he placed upon it. That “ no action shall be commenced * * * unless the claim shall have been presented,” etc., means that the presentation, etc., must precede the action. Section 9 (supra) seems so to read. It should be construed to mean that if an action is brought within a year from the injury, the complaint niust allege presentation and notice. If commenced more than a year after the accruing of the cause of action, a presentation and notice within a year must be stated in the pleading. This construction of the act is the only reasonable one.

Actions against municipal corporations are generally brought for some negligent act of subordinate officers or servants of the municipality committed without the knowledge of the governing authorities. The object of the act is presumably to require the presentation of a claim and a notice of the time and place of the injury complained of, within a reasonable time after its occurrence and before the commencement of an action, so that the corporate authorities can examine into the circumstances and adjust the claim, if desired, and thus prevent the making of unnecessary costs. The construction placed upon the act by the appellant would render that part relating to the presentation of claims and notice of the time and place of the injury, to a great extent, meaningless.

These views are sustained in Bauer v. The City of Buffalo (44 N. Y. St. Rep., 814), and Mertz v. The City of Brooldyn, 33 id., 577). The last case was affirmed by the Court of Appeals (128 N. Y., 617). These cases construe chapter 572 of the Laws of 1886, which requires notice of intention to commence an action, and of the time and place of the injury, to be filed within six months from the time of the accruing -of the cause of action. In each of the cases cited the action was commenced within six months, and it was decided that it was necessary to file the notice required by the act prior to the commencement of the action, and to allege such filing in the complaint.

Although the notice required by the act of 1889 (supra) differs somewhat from that prescribed by the act of 1886, the language of both acts as to the filing of the notice a/re substantially alike. Both require a notice of the time and place at which the injury complained of was received to be filed in' substantially the same language. I conclude, therefore, that the cases cited sustain the holding of the trial judge and lead to the conclusion that, under section 9 of chapter 440 of the Laws of 1889, the presentation of the claim and the filing of the notice of the time and place at which the injuries were received must precede the commencement of the action, although the action is commenced within a year from the date of such injuries.

The appellant insists that chapter 440 (supra) is a “ local bill,”' and hence violative of the constitutional provision that “no private or local bill which may he passed by the legislature shall embrace more than one subject and that shall be expressed in the title.”

The answer to this position is that the act in question is not a local or private bill. It applies to the whole State. The cases cited by counsel for appellant show quite clearly the distinction between a local or private bill and a general act, and do not sustain his contention. (People v. The Supervisors of Chautauqua Country, 43 N. Y., 10; Ferguson v. Ross, 126 id., 459-464.)

In the latter case, in the opinion, the following language is used : “ Another rule evolved by the discussion of the subject is that an act embracing within its scope all the cities of the State or all things of a certain class is a general and not a local act.”

So a bill that embraces all the villages of the State, which elect to take advantage of its provisions is a general and not a local act.

The judgment should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concurred,

Judgment affirmed, with costs.