text:
    The People of the State of New York ex rel. Hecker-Jones-Jewell Milling Company, Appellant, v. Edward P. Barker and Others, as Commissioners of Taxes and Assessments of the City of New York, Respondents.

      Assessment for tarnation of a foreign corporation — what proofs an'e conclusive — indebtedness not deducted — objections must be made to the assessors.

    Where proofs presented by a foreign corporation are full, uncontradicted and credible, and it does not appear that the commissioners of taxes and assessments had or acted upon any other information, a refusal of the commissioners to decide in accordance with such proofs amounts to legal'error.
    The proofs submitted by a foreign corporation to the commissioners of taxes and assessments to be used for the purpose of assessing the valuation of their personal estate within the State of New York are conclusive upon such corporation, and even if shown to be false, cannot be corrected by proof on a reference to reduce or cancel the assessment.
    No grievance will be considered upon a proceeding, instituted to review the action of assessors in assessing the value of personal property of a foreign corporation, not urged upon the assessors in the application to them for the reduction and correction of the assessment under review.
    It is within the right of commissioners of taxes and assessments to assess and tax all sums invested in any manner in the business of a foreign corporation in the State of New York, without giving such corporation credit for the indebtedness incurred in purchasing the assets or property going to make up the amount so invested.
    Appeal by the relator, the Iiecker-Jones-Jewell Milling Company, from an order of the Supreme Court, granted at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of January, 1895, dismissing a writ of certiorari issued to review the action of the respondents in assessing tlie sum invested in business by the relator in tlié State of New York, for the purpose of taxation for the year 1894.

      John M. Bowers, for the appellant.

      James M. Wa/i'd, for the respondents.
   O’Brien, J.:

The writ was sought under chapter 269 of the Laws of 1880, to review, vacate, set aside or modify the assessed valuation of the personal estate of the relator, levied by.tlie commissioners of taxes of the city of New York for the year 1894, at the sum of $2,313,000. This amount was arrived at by the commissioners from a statement filed with them, in which the relator showed that it was a corporation organized under the laws of the State of New Jersey, having its principal office at Jersey City; and for the purpose of showing its condition for the purposes of assessment in this State it alleged that its total gross assets were $3,466,919, and its total liabilities $4,020,500.

Of the total gross assets there were, in the State of New York, at the said date, the following assets, and none other:

Real estate............................. $453,800 00
Machinery and tools........................... 600,000 00
Mercantile stock, etc.......................... 1,669,650 00
Office furniture............................... 8,500 00
Horses and trucks............................. 32,000 00
Cash........................................ 2,912 90
Total.................................. $2,166,862 90

The commissioners instituted no inquiry to controvert the information furnished by the relator itself, but they justify their assessment upon the statement so furnished, and from the total assets as given deducted the assessed value of the real estate, viz., $453,800, holding that the balance, $2,313,060.90, was subject to taxation. It appeared that the machinery, tools, office furniture, horses and trucks were acquired in exchange for the stock and bonds secured by the mortgage issued by the corporation, the bonds amounting to $1,680,000 ; that its indebtedness, exclusive of mortgage liens, was $1,520,500, and that the mortgage liens more than covered the entire value of the property acquired by the issuing of mortgage bonds and stock. The relator insists that the sum of $730,000 was the only sum ever invested by it in business in the State of New York; that all its other personal property within this State was obtained for its bonds and stock in the manner stated.

Further to analyze the statement would tend to prove that the relator on the date named was insolvent; but it is unnecessary to go into that question here, since the matter to be decided is the amount the relator has invested in business in this State. If the mortgage indebtedness and the indebtedness exclusive of the mortgage liens are just offsets, or if so much of it as was incurred in this State in the purchase of property is to be deducted, then it is evident that the conclusion of the commissioners is erroneous, because it does not appear that they had anything before them upon which to make the assessment other than the statement of the relator, or, as held in the case of People ex rel. Edison Electric Illuminating Co. v. Barker (139 N. Y. 55), where the proofs presented by the relator are full, uncontradicted and credible, and it does not appear that the commissioners had or acted upon any other information, a refusal of the commissioners to decide in accordance with such statement amounts to legal error. It appearing, therefore, that the commissioners did not act upon any other information than that furnished by the relator, they could not disregard such information and act capriciously or arbitrarily; and where, as here, they did not show that they had any different information, it will be presumed that their deductions were based upon that furnished. On the other hand, it has been held, in People ex rel. German Looking Glass Plate Co. v. Barker (75 Hun, 6), that the statement thus submitted is conclusive upon the relator, and cannot, even if shown to be false, be corrected by proof on a reference to reduce or cancel the assessment ; and that case is also authority for the further proposition, which has been affirmed in many of these proceedings, that no grievance will be considered upon such a proceeding not urged upon the assessors in the application to them for the reduction and correction of the assessment under review.

This, we think, disposes of the claim made by relator that it was entitled to offer evidence showing how much of its indebtedness was due on account of the acquisition of its New York assets or incurred in the purchase thereof, it having made an application upon the return of the writ to the court below to receive such evidence. It is true that section 4 of chapter 269 of the Laws of 1880 confers upon the court power to take evidence, or appoint a referee for that purpose, whenever it is necessary for the proper disposition of the proceeding. In this case, however, we think the testimony proposed to be offered by the relator tending to prove the indebtedness, if it was thereby sought to vary or contradict the statement made to the commissioners, was improper, and as we think will appear, upon a consideration of the question involved, wholly immaterial.

It is insisted by the relator that the sum invested in this State was the surplus of its assets in this State after deducting the indebtedness incurred by it in the acquisition of such assets. The statute under which the assessment was levied (Chap. 37 of the Laws of 1S55) is in this language: All persons and associations doing business in the State of New York as merchants, bankers or otherwise, either as principals or partners, whether special or otherwise, and not residents of this State, shall be assessed and taxed on all sums invested in any manner in said business, the same as if they were residents of this State, and said taxes shall be collected from the property of the firms, persons or associations to which they severally belong.” This has been construed in several recent cages,, and whether they are controlling upon the questions here raised can be more clearly determined when we state the position assumed by the relator. In addition to the proposition already advanced we have the further claim that, on the face of the statement filed, the assessment could not have been made at a greater sum than §730,000, which it is claimed was the entire amount of cash capital ever invested in its business in the State of New York ; that, without inquiry as to what proportion of its general indebtedness should be offset against its New York items, the assessment could not have been made at a greater sum, and that it was due to the error of the court below in refusing to permit evidence to be introduced showing how much of its indebtedness was on account of the acquisition of its New York assets, or incurred in the purchase thereof, that the assessment now claimed to be erroneous was made.

All these different propositions, however, at last resolve themselves down to the question whether or not it was within the right of the commissioners to assess and tax all sums invested in any manner in the business of the relator in this State without giving it credit for the indebtedness incurred in purchasing the assets or property going to make up the amount invested in this State. This, as we understand it, was the precise question presented in People ex rel. Thurber-Whyland Co. v. Barker (141 N. Y. 118). There, as here, the relator was a foreign corporation and complained of the amount of its assessment because its indebtedness was not deducted therefrom. There the amount invested in this State, exclusive of imported goods in original packages (which were exempt from taxation), was stated to be $750,000, while it owed in New York city a total indebtedness of $1,218,901.12. Referring to chapter 37 of the Laws of 1855, the court says: “"We are of the opinion that this act does not contemplate the deduction of debts from the sums invested in this State by non-residents. As the person is a non-resident, it is to be assumed that he will, at the place of his domicile, have all of what might be termed his equities adjusted, and that if entitled to it anywhere it will be at such domicile that he will claim and be allowed the right to have such deduction. * * * In a general way it may be said that he (that is, a resident) is to be charged with all his personal property,* and from that total he may deduct his debts. This cannot be done in the case of a non-resident, although it may [as we may assume] be done at his domicile. All we are to do is to assess and tax the sum here invested, and the equities must, as we have said, be adjusted. at the domicile of the person. The assessment of a domestic corporation is made after a deduction for debts, because its capital and surplus are to be assessed at their actual value, which cannot be arrived at without considering and deducting debts. A foreign corporation is not to be thus taxed, and no inquiry is made as to the actual value of such capital or surplus, and as such value is not to be assessed or taxed, the debts should not be deducted from specific property here invested.”

In support of the view that the sum invested is to be regarded as the surplus after deducting the indebtedness, we are referred to the case of Clark v. Bailey (12 Blatchf. 156). There a statute of the United States was involved, which in many respects was dissimilar to the act of 1855, and even if there be some clashing between the two decisions, which we do not concede, we are bound, in passing upon our own statute, to follow the construction tliat lias been given to it by our highest court, which we think is the construction that would be given to it were that statute under consideration in the courts of the United States.

The claim advanced by the relator, that the sum actually invested in business in this State is only to be ascertained by deducting from the total gross assets invested in business in this State the debts of the corporation or the liens upon its 'investments in business within this territorial jurisdiction, we regard as having been finally disposed of by the Court of Appeals in People ex rel. Thurber-Whyland Co. v. Barker (supra).

The order appealed from, therefore, should be affirmed, with ■costs.

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

Order affirmed, with costs.


source: Caselaw Access Project

author: O’Brien, J.:

license: Public Domain

text:
    Jacob Ringle and Another, Respondents, v. The Wallis Iron Works, Appellant, Impleaded with Another.

      Findings of fact — not disturbed on appeal — personal judgment on the foreclosure of a mechanics lien — Lams of 1885, chap. 842, § 15.
    Findings of fact in a plaintiffs favor should not be disturbed where they are not against the weight of evidence or where it cannot be said that the evidence so clearly preponderates in the defendant’s favor as to justify with reasonable certainty the conclusion that the trial court has erred.

      ■Semble, that in a proceeding taken under the Laws of 1885, chapter 842, relative to mechanics’ liens, where the claimant establishes a valid lien he is entitled not only to a judgment against the property, but also against the person primarily liable.

      ■Semble, that the provision of section 15 of said act, that when in an action brought under it a claimant fails to establish a valid lien he may still recover judgment in the action for such sum as may appear to be due him and which ho might recover in an action upon contract, was not intended to limit this remedy of a personal judgment against the party liable, to those persons only who had failed to establish a valid lien upon the property.
    Appeal by the defendant, The Wallis Iron Works, from a judgment of the Supreme Oourt in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of October, 1894, upon the decision of the court rendered after a trial at the New York Special Term.
    The judgment contained the following provision :
    “ It is further ordered, adjudged and decreed that so much of this judgment as is against the said premises and as declares that the said plaintiffs now have a lien and claim against said premises is in form only, and has been directed and is now entered for the purpose of enabling the said jilaintiffs to recover upon a certain bond given by the Wallis Iron Works as principal and the American Surety Company of New York as surety, and which was filed in the office of the clerk of the city and county of New York on the 28th day of May, 1892, for the purpose of discharging the said mechanic’s lien or claim as against the said real estate as provided by a certain order of the Supreme Court of the State of New York bearing date the 28th day of May, 1892.”

      William G. Wilson, for the appellant.

      E. L. CJollier and Thomas 0. Ermever, for the respondents.
   O’Brien, J.:

In this action, brought for the foreclosure of a mechanic’s lien, and resulting in a judgment for the plaintiffs, the grounds, among others, urged for reversal are, that there is no evidence to support the finding that the plaintiffs performed their contract, or that the defendant ever accepted what the plaintiffs did as a full and complete performance thereof, either of which it was essential to prove to entitle the plaintiffs to the judgment. The plaintiffs were subcontractors of the Wallis Iron Works under a contract made by the latter with the J. L. Mott Iron Works to do certain work on a boiler house.

As to whether the sub-contractors completed their work there was some evidence tending to show that they completed it in the latter part of November, 1891, one of the plaintiffs testifying: I saw this work after it was completed; saw that it was completed.” Upon the question of whether it was accepted or not by the Wallis-Iron Works, we have the letters of the latter written to the J. L. Mott Iron Works, in one of which they state that their superintendent visited the works and “ the work was all finished and in first-class condition.” And in answer to the complaint of the J. L. Mott Iron Works that it was not properly or completely finished, the second letter was written by the Wallis Iron Works, in which they say : “ Upon investigation we find that the trouble is not due to-any neglect on our part, but it is caused by putting the steam pipes through the roof by other parties after the completion of our work.” These questions of fact, therefore, having been resolved in plaintiffs’1 favor, such findings- should not be disturbed where, as here, they cannot be said to be against the weight of evidence, or that the evidence was so clearly preponderating in defendants’ favor as to justify with reasonable certainty the conclusion that the court below erred.

The only additional question pressed upon our attention is the claim that the judgment is erroneous in that it assumes to award both judgment for the enforcement of a lien and a personal judgment against the Wallis IronWorks. It is doubtful if the question is before us for review, because no exception was taken to the form of the judgment either at the time of entry or subsequently. But upon the merits we do not think the contention is good. The statute reads : “ Whenever, in any action brought under the provisions of this act, any claimant shall fail for any reason to establish a valid lien, he may. nevertheless, recover therein judgment against the party or parties to the action for such sum or sums as may appear to be due to him and which he might recover in an action upon a contract against the said party or parties.” (Laws of 1885. chap. 342, § 15.) The construction sought to be given to this section by the appellant is that the only case in which a claimant can recover such a judgment as he might recover in an action upon a contract is where he fails to establish a valid lieu; and that where there is a judgment upholding the lien as valid, no personal judgment can be granted. Such a construction, we think, is too narrow. When a claimant establishes a valid lien he is entitled to a judgment in form commensurate with the relief to which he thus shows himself entitled, which not only raises a personal claim against the one primarily liable, but also against the property upon which the work has been done. To some extent the judgment is thus assimilated in form to a judgment upon the foreclosure of a mortgage, wherein the right to proceed against the land is accompanied by a judgment against the principal debtor for any deficiency. There is nothing in the section quoted which prevents one establishing a lien from obtaining his full relief, which includes his right to enforce it, not only out of the property against which the lien is filed, but for any deficiency against the person who for the amount thereof is indebted to the claimant. Without discussing this question further, however, we think it has been disposed of in the action between these same parties, decided at the March term of this court. (N. Y. Law Jour., Mar. 22, 1895; S. C., 85 Hun, 279.)

We think the judgment was right, and,that it should be affirmed, with costs.

Yan Brunt, J?. J., and Barker, J., concurred.'

Judgment affirmed, with costs.


text:
    John W. Clark, Respondent, v. Ellen A. Farrell, Appellant.

      Injunction pendente lite ■ — ■ laches will prevent its vacation.

    The main question involved in an action was as to the rights or easements the respective parties had in a certain gangway or alley, involving the construction of the deeds to the premises in question and the examination of witnesses as to the character of the use to which the gangway or alley was put.
    An order to show cause wlijr an injunction should not be granted was made in such action under date of September 10, 1894, and was served a short time thereafter, argument thereon was adjourned until November, 1894, and an injunction pendente lite was granted under date of November 9, 1894, from which an appeal was taken November 13, 1894, and the defendant, appellant, neglected from that date until April, 1895, to move the appeal.

      Held, that, in view of the circumstances of the unexplained delay, the appellate court would leave the issue involved in the action in the situation in which the appellant herself had left it for so many months, until such time as, upon a trial, the issue could be deliberately passed upon, and that the injunction would not be vacated.
    Appeal by the defendant, Ellen A. Farrell, from an order of the Supreme Court, granted at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of November, 1894:, enjoining the defendant and her agents, attorneys and servants, and each of them, from building a roof over the gangway adjoining premises No. 1 Batavia street in the city of New York, and from closing the gate of said gangway opening on said Batavia street, and from nailing or attaching or annexing to the rear of the premises No. 86 Roosevelt street anything whatsoever, and from in any manner interfering with the free and unobstructed use" of the plaintiff’s premises, No. S6 Roosevelt street.

      Charles 1. MoBurney, for the appellant.

      James K. Kelly, for the respondent.
   O’Brien, J.:

The injunction order appealed from restrains the defendant from building a roof over a gangway, and from closing a gate, and from otherwise interfering with the gangway or alley, which is about four feet wide, extending the whole length of the rear of three houses and lots on Roosevelt street and one on Batavia street. The plaintiff owns the center one of the three houses oil Roosevelt street and the defendant owns the corner of Roosevelt street and also the property on Batavia street. This latter property was conveyed to defendant in July, 1894, and the former, No. 84 Roosevelt street, in 1883. The plaintiff’s property, No. 86 Roosevelt street, was. purchased in 1892. Prior to the latter date it would appear that the three houses on Roosevelt street had been residence properties, with buildings designed for residences fronting on Roosevelt street, and with large yards in the rear abutting on the alley or gangway, with gates opening upon the alley; and that the property No. 1 Batavi'a street was a tenement property, the entrance to which opened upon the alley. Soon after the plaintiff took possession he added to his premises, No. 86 Roosevelt street, a brick extension from the rear of the former building to the side line of the alley. The wall of such extension abutting on the alley has no door or other entrance through or by which the extension may be entered from the alley, but has in the upper part a door opening above the alley for the hoisting or lowering of articles from or to the said alley, the plaintiff in this way adapting the building and premises to the business in which he is engaged of a carpenter and builder. On the first floor of his building, as extended, plaintiff has a window opening into the gangway, and on the second floor, as stated, a double doorway or hoistway, by which to allow lumber aud building material to pass from the building into the gangway and thence into Batavia street.

If, as claimed by plaintiff, and as would appear from the description in his deed, he has the right to half the alleyway; and if he can sustain his further contention that he has a right to adapt it to a use consistent with his business as a carpenter, then there can be no question but that the acts complained of — which consisted of placing boards on the side and constructing a roof over the alley, and putting a permanent gate at the entrance — would be an interference with the plaintiff’s rights. The main question as to just what rights or easements the parties respectively had in the gangway or alley, involving as it does a construction of the deeds and the examination of witnesses as to the character of the use to which it was put, it would have been entirely proper to reserve until, after a trial, a complete determination of the respective claims could be had.

The order to show cause why the injunction should not be granted is dated September 10, 1894, and was served within a short time thereafter, and argument thereon was adjourned until November, the date of the injunction order being November ninth. The appeal was taken November 13, 1894, and the defendant and appellant has neglected from that date to the April term (1895) of this court to move the appeal. If she had been diligent, not ■only would there have been an opportunity of disposing of the appeal, but there could have been a trial of the action. We think that the circumstance of this unusual and unexplained delay should leave the question in the situation in which the defendant herself has left it for so many months, until such time as, upon a trial, the issues cair be deliberately passed upon.

The order should be affirmed, with ten dollars costs and ■disbursements.

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

Order affirmed, with ten dollars costs and disbursements..


text:
    Helen Agnes Keane, Respondent, v. Hugh L. Keane and Others, Appellants.

      Settlement of an action —■ attorney’s lien for costs — unassignable cause of action — . what costs are included.

    An action was brought by a wife against her husband to set aside certain deeds of real property, on the ground that she had been induced to release her inchoate right of dower therein by false and fraudulent representations. Subsequently a settlement was made between the wife and her husband, in good faith, without notice of any lien for his compensation claimed by the attorney for the wife.
    Held, that such settlement would be recognized and made effectual, upon such terms, however, as were just to the attorney for the wife, and that an order should bo granted discontinuing the action upon the payment to the plaintiff’s attorney of the taxable costs of the action.
    The lien given to an attorney by section 66 of the Code of Civil Procedure is presumptively measured-by the amount of the taxable costs, and where more is claimed such claim must be protected by notice.
    A settlement between the parties and a release of a cause of action in its nature not assignable is a bar to an action 'thereon, although the plaintiff and his attorney have made an agreement under which the latter became entitled to a share of the recovery.
    Semble, that a lien cannot attach to a cause of action which, in its nature, is not assignable.
    Appeal by the defendants, Hugh L. Keane and others, from an order of- the Supreme Court, granted at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of December, 1894, denying the defendants’ motion to discontinue the action.

      Frank W. Miller, for the appellants.

      Myron II. Oppenheim and J. H. Cohn, for the respondent.
   O’Brien, J.:

The plaintiff commenced two actions against her husband, the defendant, one in the Superior Court for a separation, and the other in this court to set aside deeds to property on the ground that she had been induced to release her inchoate right of dower by false and fraudulent representations. Subsequently, the wife and husband, having resumed marital relations and settled their differences, exeexited stipulations for tlxe discontinuance of both actions, without costs to either. Upon the application by the defendant to plaintiff’s . attorney for a consent to discontinue both actions it was refused, and thereupon defendant made the motions, one in the Superior Court and one in this, the former of which was granted, and the latter in the case in this court was refused, with leave to plaintiff’s attorney to prosecute the action for his own use and benefit, upon the claim by the attorney that by agreement with his client he -was entitled to one-half the recovery. From this latter order this appeal is taken.

It is true that in answer to the application pxlaintiff’s attorney stated that the settlement was collusive, but outside of such statement there is nothing in the pxapers to show, nor does it appxear, that the settlement was any other than one made in good faith and with a view to reconcile the differences between man and wife. And it would bo indeed extraordinary if, under those circumstances, this court should interfere and pxrevent such settlement and permit an attorney, for his own benefit, to proceed with the litigation, thus compelling the husband and wife, against their consent, to remain as litigants in the court, not alone for the purpose of costs, but also to enable the attorney to get his conrpensation, which was contingent upxon his success in the action. "Where a settlement has been made collusively between pxarties for the pxurpose of cheating an attorney out of his costs or condensation, and particularly after notice of his lien upxon the cause of action to the adverse pxarty, the courts have gone far in protecting the attorney, even to tire extent of denying the discontinuance of the action to enable him to obtain his rights. But we have been referred to no case, nor do we think it has been held by any court, where, as here, a settlement has been made in good faith between husband and wife, and where it has been entered into without notice of -any lien claimed, that such settlement will not be recognized and effectuated ■— upon such terms, however, as to the attorney are just. The order such as was here made seems to us, therefore, to be against sound principle, established practice and pxxblic policy.

It is claimed, however, that support for the order is to be found in the language of section 66 of the Code of Civil Procedure. That provides that the attorney “ has a lien upon his client’s cause of action or counterclaim * * * and cannot be affected by any settlement between the parties before or after. judgment.” The lien thus given is presumptively measured by the amount of taxable costs, and where more is claimed, we think it must be protected by notice. It is not claimed that any notice was given by plaintiff’s attorney of any lien upon the cause of action; and as we have already said, there is no evidence of any collusion or attempt to defraud the plaintiff’s attorney, and we think, under these circumstances, that upon the payment of the taxable costs the defendants should have been granted a discontinuance. And that this was the proper order to have been made in this case we think further appears from the character of the action itself. It was a cause of action which in its nature was not assignable, and, therefore, under the authority of Coughlin v. N. Y. C. R. R. Co. (71 N. Y. 443), not susceptible of a lien. That case is authority for the proposition that a settlement between the parties, and a release of a cause of action in its nature not assignable, is a bar to an action thereon, though plaintiff and his attorney had' made an agreement giving the latter a share of the recovery. While, therefore, if section 66 of the Code is to be construed as extending the lien not only for costs, but also for compensation, even though no notice has been given, this does not change the rule of law laid down in the case cited, that a lien cannot attach to a cause of action like this, which in its nature is not assignable.

We think the order should be reversed, with ten dollars costs and disbursements of this appeal, and that the order for a discontinuance should be granted on condition of the payment of the taxable costs in the action to the date when the motion was made for discontinuance.

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

Order reversed, with ten dollars costs and disbursements, and motion for the discontinuance granted on payment of taxable costs in the action to the date of the motion for discontinuance.


author: Follett, J.: Yan Brunt, P. J.:

text:
    George Bliss and Others, as Executors, etc., of Elizabeth Fogg, Deceased, Appellants and Respondents, v. Charles B. Fosdick, Individually and as Executor, etc., of Elizabeth Fogg, Deceased, and Others, Respondents; Hiram H. Fogg and Others, Respondents and Appellants.

      Gifts ca/usa mortis — a gift du/ring sickness Resumed to take effect after, the donor’S death— revocation.

    Sound policy requires that the laws regulating gifts causa mortis should not be extended and that the range of such gifts should not be enlarged.
    The presumption is that a gift made during a last sickness is intended to take effect at the donor’s death even though it be not so declared.
    Where a gift is made in apprehension of death it is a gift causa mortis, and such gift can be revoked by the donor in his lifetime. A revocation can be effected by a change of purpose and by undoing what has been done.
    Cross-appeals by the plaintiffs, George Bliss and others, as executors, etc., of Elizabeth Fogg, deceased, and by the defendants, Hiram H. Fogg and others, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 6th day of February, 1895, upon the decision of the court rendered after a trial at the New York Special Term.
    This action was brought to. determine the title to 1,000 shares of the capital stock of the Gutta Percha and Rubber Manufacturing Company. The appellants claim that the title is in the executors of Elizabeth Fogg, and the respondents assert that the title is in Charles B. Fosdick, as trustee.
    July 2, 1888, Elizabeth Fogg executed her last will and testament, in which George Bliss, Henry Parish and Duncan Smith were nominated as executors. After making various bequests, she devised and bequeathed the remainder of her estate to Hiram H. Fogg and John A. Phipps.
    On November 12, 1890, the Gutta Percha and Rubber Manufacturing Company issued a'certificate, No. 31, to Elizabeth Fogg for 1,000 shares of the stock of that corporation.
    At some time prior to December 19, 1890, Mrs. Fogg’s pastor, the Rev. Mr. Williams, handed to her a piece of paper on which he had written the following:

      “ I desire to bequeath the one hundred thousand dollars, which is now in the keeping of to the Young Women’s
    Christian Association of New York city. This property is my private fortune and not a part of my late husband’s estate, and I make this disposal thereof because I desire of my own act to make a gift to God’s poor.”
    On the 19th of December, 1890, Mrs. Bogg executed a transfer of said shares printed on the back of certificate No. 31, of which transfer the following is a copy:
    “ Bor value received I have bargained, sold, assigned and transferred by these presents, and do hereby sell, assign and transfer, to Charles B. Bosdick the capital stock named in the within certificate, and I do hereby constitute and appoint Charles B. Bosdick my true and lawful attorney, irrevocably for me, and in my name and stead, to use, to sell, assign, transfer and set over all or any part of the said stock, and for that purpose to make and execute all necessary acts of assignment and transfer to one or more persons, to substitute with like full power.
    “ Dated 19¿/¿ December, 1890.
    “(Signed) ELIZABETH BOGG.

      “ Signed and acknowledged \ in the .presence of )
    “Annie Julia Norton.”
    This transfer was executed in the forenoon of the day of its date at 359 Bifth avenue, and handed to Charles B. Bosdick. At this time Mrs. Bogg was confined to her bed by a sickness, from which she did not recover. The witness to the transfer — Annie Julia Norton- — was the attendant of Mrs. Bogg, her confidential friend, and had the care of her from early in September, 1890, until her death, which occurred January 3, 1891.
    After receiving the transfer of the above-mentioned certificate, Mr. Bosdick went directly to the Bifth Avenue Safe Deposit Company, where he had 'a conversation with Geoi’ge Montague, the president of that corporation, in which Mr. Bosdick told Mr. Montague of the purpose of Mrs. Bogg to give the avails of this certificate to charitable corporations, and thereupon Mr. Montague wrote on a small piece of paper: “ Training School for N urses, N. Y.,” “ Aged and Infirm Clergy Fund, N. Y.,” as two worthy charitable corporations and handed the memorandum to Mr. Fosdick,'who, later in the day of December nineteenth, left it with Mrs. Fogg.
    The night of December nineteenth and twentieth was wholly spent by Mrs. Fogg and Miss Norton in selecting charitable corporations among which the avails of the aforesaid shares of stock should be divided. After making several memoranda, Miss Norton wrote the names of the corporations selected, aside from the names of the two corporations written by Mr. Montague, on a single piece of paper. Upon another piece of paper she wrote the names “John Peterson, Carl, his sister-in-law, Thomas Doran, Sallie Neilson, and a small breastpin.” Miss Norton entered no sums opposite the names of those persons.
    December 20, 1890, at about nine a. m., Mr. Fosdick called on Mrs. Fogg, having with him a writing which he devised, which had been copied by his bookkeeper, and which Mrs. Fogg then signed, of which the following is a copy:
    “New York, 20th Dedr, 1890.
    “ Mr. Charles B. Fosdick :
    “ Dear Sir. — ■ I this day place in your individual possession, conveying to you, all my right, title and interest in One thousand (1,000) Shares Stock of the Gutta Percha and Kubber Manufacturing Company.
    “ From the proceeds thereof, I desire that you do appropriate the sum of One hundred thousand dollars, in the name of Elizabeth Fogg, in sums of Five thousand dollars each, to the various Charity Organizations of which a list is hereto annexed.
    “Very truly yours,
    “ELIZABETH FOGG.”
    This paper has remained in the possession of Mr. Fosdick since its execution. While Mr. Fosdick was in Mrs. Fogg’s room he received from some one (from whom does not appear) the memorandum written by George Montague, the paper on which Miss Norton had written the names of certain corporations, and the paper on which she had written the names “ John Peterson, Carl, his sister-in-law, Thomas Doran. Sallie Neilson, and a small breastpin.”
    Mrs. Fogg occupied a room on the second floor of the house. Just as Mr. Fosdick was leaving the residence he met Miss Norton in the reception room on the first floor, and handed to her the three pieces of paper, and charged her to keep them safe, and thereafter she gave them to Firs. Fogg.
    After Miss Norton received the three papers from Fir. Fosdick he left the house and went to the Fifth Avenue Safe Deposit Company, where he placed the stock certificate and the transfer indorsed thereon in Mrs. Fogg’s private box, where, after her death, it was found by her executors. No consideration was received by Firs. Fogg for the transfer, and the shares have not been transferred on the books of the Gutta Percha and Rubber Flanufacturing Company.
    Later in the day of December 20, 1890, Fliss Norton copied the names of the corporations from the two pieces of paper (one written by her the night before and one written by Mr. Montague) on to the paper on which the Rev. Fir. Williams had written the words above quoted. The following is a copy of the new or transcribed list' of corporations, which is known in this litigation as Exhibit No. 3:
    Exhibit No. 3.
    “ I desire to bequeath the one hundred thousand dollars which is now in the keeping of to the Young Women’s Christian Association of New York city. This property is my private fortune and not a part of my late husband’s estate, and I make this disposal thereof because I desire of my own act to make a gift to God’s poor.
    “ Diet Kitchen, N. Y.
    “ Training School for Nurses, N. Y.
    “ Aged and Infirm Clerg. Fund, N. Y.
    “No” (in pencil.) “St. John’s Guild, of N. Y.
    “ Home for Working Girls, W. Eleventh street, N. Y.
    “ N. Y. Homeopathic Fiedical College and Hospital, N. Y.
    “ Unitarian Employment Society, N. Y.
    “ Home for the Aged, N. Y.
    “ Old Ladies’ Home in Charlestown, Mass.
    “ Original.” \

      Miss Norton at the same time copied the names of persons onto another piece of paper, which is known in this litigation as Exhibit
    L, and of which the following is a copy:
    “ Exhibit L.
    “ John Peterson............................ $4,000
    “ Carl Anderson (his sister-in-law)............. 3,000
    (The words his sister-in-law erased in pencil and Anderson written above in pencil.)
    “ Thomas Doran........................... 500
    “ Sallie Neilson......................... 500
    “And a small breastpin.
    “ Hassie Lamont (in pencil).................. 500 (in pencil.)
    “'Women’s Emplt. Socy. (in pencil)...........
    “ Original.”
    As copied by her, this list closed with the word “ breastpin.” She then pinned the two pieces of paper, Exhibits No. 3 and L, together and gave them to Mrs. Fogg, and burned the pieces from which Exhibits No. 3 and L were copied.
    In the afternoon of December twentieth Mr. Fosdick called on Mrs. Fogg, and, at her request, wrote a letter to Mr. William M. Prichard, a lawyer, asking him to call on Mrs. Fogg. On the next day (Sunday, December twenty-first) Mr. Prichard called, pursuant to the letter, Exhibits No. 3 and L were handed him, and he drafted a codicil, of which the following is a copy:
    “I, Elizabeth Fogg, residing at number 359 Fifth Avenue, in the City of New York, having heretofore made and duly executed my last will and testament, do now make, publish and declare this codicil to the same.

      “First. I give and bequeath to John Peterson four thousand dollars, to Carl Anderson three thousand dollars, to Thomas Doran five hundred dollars, to Sallie Neilson five hundred dollars, to Hassie Lamont five hundred dollars.

      “Second. Out of the proceeds of sale of one thousand shares of the Gutta Percha and Rubber Manufacturing Company, which I regard as representing my own private fortune, and not a part of my late husband’s estate, and to transfer. which a power has lately been given to Mr. Charles B. Fosdick, I do hereby give and bequeath the sum of one hundred thousand dollars, to be equally divided among the following charitable associations, to be applied to the benevolent uses administered. by them, respectively, that is to say:

      “ 1. The Young Women’s Christian Association of New York City.
    “ 2. The New York Diet Kitchen.
    “ 3. The Training School for Nurses connected with Bellevue Hospital.
    “4. The Fund for Aged and Infirm Clergymen, New York.
    “5. The Home for Working Girls situate in West Eleventh Street, New York.
    “ 6. The New York Homoeopathic Medical College and Hospital.
    “ 7. The Society for the Employment and Belief of Boor Women.
    “8. The Home for the Aged, New York.
    “ 9. Old Ladies’ Home, Charlestown, Massachusetts.
    “ I make these bequests because I desire of my own act to make a gift to God’s poor, and it is my will that the same stand good to the beneficiaries intended, whether the above designations are or not their correct legal names, respectively.

      “ Third. I name and appoint my friend, Mr. Charles B. Fosdick, to be one of the executors of my will, in connection with the executors already named therein, or such of them as shall qualify and act as my executors.
    “ Fourth. In all other requests I do hereby ratify and republish my said will, and declare the same, as modified by this codicil, to be my last Will and Testament.
    “ In witness whereof I have hereunto set my hand and seal, at the City of New York, the twenty-first day of December, one thousand eight hundred and ninety (1890).
    “ Sd. ELIZABETH FOGG, [seal.]
    “ Subscribed at the end thereof by the said Elizabeth Fogg, and by her published and declared to be a codicil to her last Will and Testament in the presence of us, who in her presence and in the presence of each other and at her request, have hereunto subscribed our names as witnesses this 21st day of December, 1890.
    “ Sd. Timothy F. Allen, 10 East 36th Street.
    “Sd. Annie J. Norton, 228 Warren St., Brooklyn.
    “ Sd. Wi. M. Prichard, 128 E. 29th St., New York.”

      While preparing the codicil Mr. Prichard wrote in pencil the word “No ” on Exhibit No. 3 at the left of the words “ St. John’s Guild of N. Y.” On Exhibit L he canceled in pencil the words “ his sister-in-law,” wrote above the word “ Anderson,” and also wrote between the heavy black line and the word “ original ” the two lines now a part of Exhibit L.
    By the codicil bequests are made to all the persons mentioned in Exhibit L, and to all the corporations mentioned in Exhibit No. 3, except that no bequest is made to St. John’s Guild of New York.
    After the codicil was executed Exhibits No. 3 and L were handed by some one to Miss Norton, who retained them for more than a year, and then gave them .to Mr. Duncan Smith, one of the executors, who asked her for all of the papers left by the testatrix.
    January 3, 1891, thirteen days after the execution of the codicil, the testatrix died, and April 15, 1891, her will and codicil were duly admitted to probate and letters testamentary thereon were issued to the four pprsons nominated in the will and codicil as executors thereof. She left a large estate, more than sufficient to pay all of the legacies. May 15, 1891, the residuary legatees and devisees executed and delivered to the executors the following instrument:
    “Whereas, Elizabeth Fogg, late of the city of New York, on or about the 20th day of December, 1890, delivered to Charles B. Fosdick, Esquire, of the city of New York, now one of the executors of her will, one thousand shares of the stock of the Gutta Percha and Bubber Manufacturing Company, properly endorsed for transfer upon the books of the said company, accompanied by a paq>er conveying to him all her right, title and interest in said stock, and desiring him, from the proceeds thereof, to appropriate the sum of one hundred thousand dollars, in the name of Elizabeth Fogg, in sums of five thousand dollars each, to the various charity organizations of which a list was in said paper stated to be thereto annexed, while in fact no such list was annexed to said paper or delivered to said Charles B. Fosdick; and
    “Whereas, thereafter, and on the 21st day of December, 1890, the said Elizabeth Fogg executed a codicil to her last will, which will and codicil were, on the loth day of April, 1891, proved and admitted to probate before the, surrogate of the county of New York as the last will and testament of tlie said Elizabeth Eogg, deceased, in and by which codicil the said testatrix, among other things, gave and bequeathed out of the proceeds of sale of the said one thousand shares of the GuttaPercha and Rubber Manufacturing Company one hundred thousand dollars, to be equally divided among certain charitable associations enumerated in said codicil; and
    “Whereas, the validity of said charitable bequests, or some of them, may be called in question by reason of the fact that the said codicil was made and executed less than two months before the death of the tfestatrix ;

      “Now, therefore, we, Iiiram H. Eogg and John A. Phipps, residuary legatees under the last will and testament of the said Elizabeth Eogg, deceased, in consideration of - the premises and of ■our mutual signatures hereto, do hereby consent to the payment by the said executors of each and all of the said bequests to charitable corporations made in and by the said codicil, irrespective of the validity or invalidity of any of said bequests, and authorize the executors of the said last will and testament to pay each and all said bequests, and we hereby waive all our and each of our claim to all and every part of the said one hundred thousand dollars so given and bequeathed by the said codicil of the said testatrix, but upon the understanding that the said Charles B. Fosdick shall relinquish all claim to the said stock so delivered by the said testatrix to him during her lifetime and execute all such papers as shall be necessary to vest the title to the same fully and completely in the executors ■of the said last will and testament.
    “ In witness whereof we have hereto set our hands and seals this 15th day of May, 1891.
    “HIRAM H. EOGG. [seal.]
    “ JOHN A. PHIPPS, [seal.] ”
    Hpon this evidence the learned judge at Special Term held that by the transfer of certificate No. 31; executed December 19,1890, by "the writing dated December 20,1890, and by the list of beneficiaries, Exhibit No. 3, and by the delivery by Elizabeth Fogg to Charles B. Eosdick of those three papers, “ there ivas created an absolute and perfect gift of the said stock or of the proceeds thereof to the extent of $100,000, and of the dividends thereof, from the said Elizabeth Eogg to the defendant Fosdick, in trust” for the following charitable corporations, that is to say, the ten corporations mentioned in Exhibit No. 3, to be divided equally among them.

      J. Hampden Dougherty, for plaintiffs, appellants.

      Levi 8. Tenney, for residuary legatees and devisees, appellants.

      James E. Chandler, John W. Weed and William LLildreth Field, for St. John’s Guild, respondent.

      Edward B. Hill and W. N. Gromwell, for Charles B. Fosdick, respondent.

       This was on a small piece of paper. -On one side was the writing to and including " Training School for Nurses, N. Y.” On other side of page was all ' that follows.

   Follett, J.:

Under the release of May 15, 1891, the only parties having a pecuniary interest in this litigation are St. John’s Guild and the residuary devisees and legatees, unless it should happen that a division, under the alleged trust, of the proceeds of the 1,000 shares among the ten corporations would give every one of the nine corporations mentioned iu the codicil a greater sum than would the division of $100,000 among said nine corporations. The plaintiffs and Charles B. Fosdick are interested simply in carrying out the wishes of Elizabeth Fogg and in relieving themselves from liability.

There is no evidence, and, indeed, it is not asserted that Exhibit No. 3 was ever delivered to Charles B. Fosdick, or that he ever saw it until after the death of the testatrix, unless he saw it when the codicil was drafted, but at about nine a. m., December twentieth, he did see and hold in his hands for a few moments the three pieces of paper, the contents' of which were afterwards and on the same day copied on to Exhibits No. 3 and L. In reaching the conclusion that the list of beneficiaries was delivered to Mr. Fosdick, the learned trial court must have held (1) that the three pieces of paper were handed by Mrs. Fogg to him, and (2) with the intent on her part to deliver them to him for the purpose of effecting a gift by means of the transfer of the shares of stock and those papers. The fact that the three papers were subsequently copied and burned in the presence of Mrs. Fogg, militates against- the theory that she understood tha,t they had been delivered to Mr. Fosdick and formed part of a completed transaction. Mr. Fosdick testified on this trial, as he did on the first trial, that he did not consider that the list had been delivered to him, but supposed that the codicil would do away with all that had been done between them. The first paper relied on to establish a trust is the transfer of the shares, which is absolute in form. The second paper is the letter of December twentieth,, signed by Mrs. Fogg and addressed to Mr. Fosdick. The first paragraph of this letter refers to the transfer made the day before, which Mr. Fosdick had with him when the letter was signed and delivered. The second paragraph reads as follows :

“From the proceeds-thereof I desire that you do appropriate the sum of one hundred thousand dollars in the name of Elizabeth Fogg, in sums of five thousand dollars each, to the various charity organizations, of which a list is hereto annexed.”

No list was ever annexed to this letter and no list naming twenty corporations was ever made by -or for Mrs. Fogg. Mr. Fosdick testified that this letter was devised by himself and copied by his bookkeeper; that he (Fosdick) stopped at Mrs. Fogg’s on his way downtown on the morning of December twentieth, when the letter was signed. Therefore, he must have been informed December nineteenth of her purpose to divide $100,000 among twenty charitable corporations. Mrs. Fogg and Miss Norton spent the night of December nineteenth and twentieth in a vain attempt to name twenty charitable corporations which should receive the sura, but abandoned the attempt, and Mrs. Fogg concluded to divide the sum among ten corporations. In order to uphold the trust declared by the judgment of the Special Term the letter of December twentieth must be eliminated from the case, as it is entirely inconsistent with the trust adjudged to exist. The only evidence left of an intent to establish a trust consists of the transfer' of the shares of stock of Exhibit No. 3, and the testimony given by Miss Norton. From the time Mrs. Fogg’s pastor wrote for her that which subsequently became the caption of Exhibit No. 3 down to the time when her codicil was executed, the idea of Mrs. Fogg, plainly disclosed by the evidence, was to bequeath the shares, or the avails of them, to charitable corporations, which she finally did. That which was-done by the testatrix during the night of December nineteenth and twentieth, and during the day of the twentieth, was preparatory to the execution of the completed codicil, and, perhaps, she was in hopes that in case she died before the codicil was executed her wishes would in some way be carried out. The codicil refers expressly to the shares as those transferred to Mr. Fosdick, and it names every person and corporation mentioned on Exhibits No. 3 and L, except St. John’s Guild, -which, for some reason, she omitted from the list of her beneficiaries.

The interview between Mrs. Fogg and Mr. Fosdick on the morning of December twentieth occupied about one-half hour, in which time, according to the theory of the respondents, she completed the execution of a trust in favor of the ten corporations mentioned on Exhibit No. 3, and during the same half hour executed a declaration of trust dividing the avails of the shares “in sums of five thousand dollars each to the various charity organizations of which a list is hereto annexed.” Thus, in the same half hour an attempt was made to establish two wholly inconsistent trusts. Trusts are not to be established by such evidence. The evidence, read in the light of the circumstances surrounding the transaction, does not support the conclusion that Mrs. Fogg intended absolutely to vest the title of the shares in Mr. Fosdick as trustee, for the benefit of St. John’s Guild and the other corporations mentioned in Exhibit No. 3.

But, assuming that at the close of the interview between Mrs. Fogg and Mr. Fosdick on the morning of the twentieth she intended to vest him with the title of the shares for the purpose of giving the proceeds to the ton corporations after her death, the judgment cannot be sustained. It is not asserted and cannot be successfully maintainéd that Mrs. Fogg intended this gift to take effect in her lifetime.

Miss Norton testified that during the night of December nineteenth and twentieth Mrs. Fogg believed that she was about to die, and expressed the opinion that she would not live until morning. The witness testified: “ During that night she was apprehensive of dying before morning. That is what she said, and so expressed herself to me, although I personally did not think there was any immediate danger of her death. She did, however, express a danger of dying before morning. She was then in bed, and she remained continuously in bed until the time of her death, on the 3d of January, 1891. She had been in bed several days previously. Q. And she died dimng this same illness? A. Yes. Q. ’Without ever recovering? A. Yes. Q. Attended by both night and day nurses right along? A. Yes. Q. And continuously failing to the end? A. Yes.”

“ Sound policy requires that the Lavs regulating gifts causa, mortis should not be extended, and that the range of such gifts should not be enlarged.” (Ridden v. Thrall, 125 N. Y. 572, 581.) Such gifts are not favored by the courts. (Delmotte v. Taylor, 1 Redf. 417; Rockwood v. Wiggin, 16 Gray, 402; Michener v. Dale, 23 Penn. St. 59 ; Hatch v. Atkinson, 56 Maine, 326.)

The presumption is that a gift made during a last' sickness • is intended to take effect at the donor’s death, even though it be not so declared. (Pom. Eq. Juris. § 1146.) If there was a gift it was made in apprehension of death — a donatio causa mortis. Such a gift can be revoked by the donor in his lifetime. (Merchant v. Merchant, 2 Bradf. 432, 444; Bloomer v. Bloomer, Id. 339, 347 Parker v. Marston, 27 Maine, 196 ; Basket v. Haskell, 107 U. S. 602; Pom. Eq. Juris. § 1146 ; 3 Redf. Wills [3d ed.], 343 ; 2 Kent’s Com. 444.) A revocation can be effected by a change of purpose and undoing what has been done. Mrs. Fogg had burned the papers which were shown to Fosdick December twentieth, and the copy- — -Exhibit No. 3 — had been altered by writing the word “No” against the words “ St. John’s Guild,” which, under the circumstances, was as potent evidence of her intent to revoke the gift previously intended, or made to that corporation, as though the word “ revoked ” had been written in the place of “ No ” or the exhibit burned. The stock certificate and the transfer indorsed thereon were then locked in her private box in the safe deposit company, and were as effectually in her possession and under her control as they would have been had they lain under her pillow. She declared in her codicil that the assignment of the shares to Mr. Fosdick was intended as a power to transfer them, and Fosdick testified that the codicil Avas read to him before it was executed and that he assented to its terms. Under the evidence we think, assuming that Mrs. Fogg intended, on December twentieth, to make a gift to St. John’s Guild of $10,000, by means of a trust to take effect after her death, that it was effectually revoked on December 21, 1890.

It does not seem necessary to discuss the question whether a gift 'cow morfe's may be made subject to a trust. (Story Eq. Juris. [13th ed.] § 607.)

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

O’Brien, J., concurred.

Yan Brunt, P. J.:

I concur in the result. I do not think there is any sufficient execution of the trust declaration by the delivery of the list. I think that the evidence shows that the creation of the trust was never completed and it was abandoned, and the codicil to the will took its place.

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


author: Follett, J.:

text:
    The People of the State of New York ex rel. Thomas J. Kelly, Relator, v. George D. Scott and Others, Members Composing the Examining Board of Plumbers of the City of New York, Respondents.

      Return to a writ of certiorari ■ — ■ examination by the examining board of plumbers under chapter 602 of 1892 — rights of the applicant — such boa/rd acts judicially — review by certiorari — undenied allegations in the petition deemed admitted.

    Where the determination of a board as to the qualifications of an applicant, founded on answers to questions relating to the science or art of a profession, trade qr business, is challenged by a writ of certiorari, the return of the board should show wherein the answers are incorrect or defective.
    An applicant for a certificate of competency to conduct the business of a master plumber under the statute (Chap. 602 of the Laws of 1892) is entitled to be examined as to his experience in the plumbing business as well as to his knowledge of the theory or science of the trade, and in case the examining board of plumbers refuses so to examine him and fails to consider his experience when it makes its final determination, the command of the statute is disobeyed and an error prejudicial to the applicant is committed.
    The statute requires the board to act upon the evidence relative to the experience and qualifications of the applicant, and in making its examination and determination it acts, not ministerially, but judicially, and its determination may be reviewed by the courts by means of a writ of certiorari.

      TJndenied allegations contained in a petition for a writ of certiorari are to be taken as true, and where in a petition certain specific and grave charges are made against the members of the examining board of plumbers, and it is alleged therein that the determination of the board sought to be reviewed was influenced by improper and illegal motives, the allegation in the return that the board’s determination was based on their best judgment and discretion is entitled to little or no weight.
    Certiorari issued out of the Supreme Court and attested on the 2d day of December, 1893, directed to George D. Scott, John McKenna, Horace Loomis, Joseph O’Brien and Michael Byan, members composing the examining board of plumbers of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their acts and proceedings, with all things appertaining thereto in relation to the denial of the relator’s application for a certificate of competency as master plumber.

      Barnard J. Felly, for the relator.

      Francis M. Scott and Terence Farley, for the respondents.
   Follett, J.:

By chapter 602, Laws of 1892, an examining board of plumbers” is created in the cities of New York, Brooklyn and Albany, and “ an examining and supervising board of plumbers and plumbing” in all other cities of the State. By the 4th section of the act the powers and the duties of such boards are defined:

“ Sec. 4. The several boards of examiners constituted under this act shall have power, and it shall be their duty :
“1. Meetings.— To meet at stated intervals in their respective cities ; they shall also meet whenever the board of health of such city or the mayor thereof shall, in writing, request them so to do.
2. ExaoninaUons.— To have jurisdiction over and to examine all persons desiring or intending to engage in the trade, business or calling of plumbing as employing plumbers in the city in which such board shall be appointed, with the power of examining all persons applying for certificates of competency as such employing or master plumbers or as inspectors of plumbing, to determine -their fitness and qualifications for conducting the business of master plumbers or to act as inspectors of plumbing, and to issue certificates of competency to all such persons who shall have submitted to and passed a satisfactory examination before such board, and shall be by it determined to be qualified for conducting the business as employing or master plumbers or competetent to act as inspectors of plumbing. * * *
“ Sec. 5. Any person desiring or intending to conduct the trade, business or calling of a plumber or of plumbing, in any of the cities of this State as employing or master plumber, shall be required to submit to an examination before such board of examiners as to his experience and qualifications in such trade, business or calling; and after the first day of March, eighteen hundred and ninety-three, it shall not be lawful in any city of this State for any person to conduct such trade, business or calling, unless he shall have first obtained a certificate of competency from such board of the city in which he conducts or proposes to conduct such business.
“ Sec. 6. On and before the first day of March, eighteen hundred and ninety-three, every employing or master plumber carrying on his trade, business or calling in any of the cities of this State, shall register his name and address at the office of the board of health of the city in which he shall conduct such business under such rules and regulations as the respective boards of health of each of the cities of this State shall respectively prescribe, and thereupon he shall be entitled to receive a certificate of such registration, pro; vided, however, that such employing or master plumber shall, at the time of applying for registration, hold a certificate of competency from an examining board. * * * And after the first day of March, eighteen hundred and ninety-three, it shall not be lawful for any person to engage in or carry on the trade, business or calling of an employing or master plumber in any of the cities of this State, unless his name and address shall have been registered as above provided.”

By chapter 66 of the Laws of 1893, which was passed and took effect February 28, 1893, the word “ September ” was substituted for the word “March” in sections 5 and 6. Otherwise the sections are unchanged.

On the 27th of February, 1893, the relator filed a written application with the examining board of plumbers of the city of New York for a certificate of competency to conduct the business of a master plumber in that city. This fact is alleged in the application and is admitted by the return.

Among other things, the respondents, in obedience to the writ, returned as follows:

Third. That thereafter the above-named relator presented himself for examination to these respondents for a certificate of competency under the provisions of the statute, and thereupon certain questions in writing were propounded to him, a copy whereof is hereto annexed marked B.’
Fourth. That to said questions in writing so propounded as aforesaid the said relator made answers in writing, a copy whereof is hereto annexed marked £ C.’
“Fifth. That thereafter and after a due consideration of the questions propounded and answers given as aforesaid, and the plan for the drainage of a building accompanying the same, which was a part of said examination, and pursuant to the power and authority conferred upon them by the aforesaid statute, these respondents determined, not arbitrarily or capriciously, as alleged by the relator, but in the exercise of their best judgment and discretion, and in the manner provided by said statute, that the relator herein was not qualified for conducting the business as employing or master plumber, or competent to act as inspector of plumbing, and thereupon passed the following resolution:
££ £ Resolved, That the application of Thomas J. Kelly for a certificate of competency be rejected.’ ”

It will be observed that neither the date of the relator’s examina' tion nor the date of the determination by the board is returned, but it is alleged in the application and not denied in the return that an official notification in writing of the determination has never been furnished to the relator, though frequently demanded, and that four calendar months have not elapsed since the determination was made.

Twenty questions were propounded to the relator which are annexed to the return and marked B.” The relator answered all of the questions in writing, which answers are annexed to the return and marked ££ C,” but it is not alleged in the return that any of the questions were incorrectly answered. The eighth and ninth questions relate to mensuration.

“ 8. ILow would you determine the area of a pipe 6 in. in diameter, and one 3 in. in diameter %

Answer of relator. “ To determine the area of 6" or a 3" pipe you must square the diameter and multiply 1729 x.”

If this question calls for the rule for determining the area of pipes the diameters of which are known, an incorrect answer was returned. The arithmetical rule is : “ Multiply half the diameter

by half the circumference, and the product is the area; or, which is the same thing, multiply the square of the diameter by .785398, and the product is the area.”

“ 9. What are the cubic contents of a tank 6 ft. long, 44 ft. wide and ft. high % How much water in gallons would said tank hold and what would water weigh ? ”

Answer of relator. “ 9. Cubic contents of a tank 6 ft. long, 44 wide, 24 high. The tank will hold 504-ff- gall. The tank will be 81 cubic ft. The weight of it is 5,062£ lbs.”

A tank of the dimensions given contains 67-J cubic feet, but it holds 504-|-if- gallons, as stated in the answer. The number of gallons being correctly stated, it may well be that the relator’s figures were misread.

Under our statute a wine gallon of distilled water contains 231 cubic inches and weighs 8.355 pounds avoirdupois, which would make the total weight of 504-^-| gallons 4,218.732 pounds. The weight of a gallon of undistilled water is more.

The question is indefinite in not defining the kind of gallon referred to, whether imperial or statutory, or whether the weight is to be computed upon the basis of distilled or undistilled water. The answer given seems to be as accurate as the question is definite.

“ 20. Why does a pump draw water and how far can it be drawn ? ”

Answer of relator. “ 20. Pump draws water by the action of the piston, causing a vacuum, the vacuum causing siphon, and the water runs through. A pump can draw 34 feet, but for practical use 24 or 25 ft. is enough.”

We assume that the question relates to the common or suction pump, and if it does the answer is approximately correct. The height to which such a pump will raise water depends upon the altitude above the level of the sea at which it is operated, and it is stated in scientific works to be thirty-two feet (12 Ency. Britan. [8th ed.] 174), thirty-three and eight-tenths feet (14 Am. Clyc. 82), and at not more than thirty-four feet (Wells’ Nat. Ph. 182 ; Avery’s Nat. Ph. 176).

The other questions relate to the mode of doing plumbing, and, as before stated, it is not asserted that any of the answers are incorrect.

When the determination of a board as to the qualifications of an applicant, founded on answers to questions relating to the science or art of a profession, trade or business, is challenged by a writ of certiorari, the return of the board should show wherein the answers are incorrect or defective.

It is alleged in the petition that the relator has been engaged in the business of plumbing for the past thirteen years at 406 Canal street, which is not denied. The relator certainly had had considerable experience in his trade.

Section 5 of chapter 602, above quoted, requires the board to examine an applicant as to his experience and qualifications in such trade, business or calling.” None of the questions propounded relate to the*experieuce of the relator, and it does not appear that he was examined in respect thereto. An applicant for a certificate under the statute is entitled to be examined as to his experience in the plumbing business as well as to his knowledge of the theory or science of the trade, and in case the board refuses so to examine' him and fails to consider his experience when it makes its final determination, the command of the statute is disobeyed, and an error prejudicial to the applicant is committed. The statute requires the board to act upon evidence relative to the experience and qualifications of the applicant, and in making its examination and determination it acts, not ministerially, but judicially, and its determination may be reviewed by the courts by means of a writ of certiorari.

Among other allegations the relator’s petition contains the following:

“IV. That said members composing said board, or a majority of them, did not exercise their judgment and discretion upon examination and evidence, but refused to exercise their discretion on deponent’s application, for the alleged reason that deponent had no place of business, which was contrary to the fact, and said members composing said board, or a majority of them, acting not judicially, but arbitrarily and upon illegal grounds and principles, to the prejudice of deponent, denied, without good or valid reasons therefor, deponent’s application for said certificate of competency. * * *
“ Y. That deponent has never received an official notification in writing of said board’s determination in his case, although frequently demanded, and deponent has lost thousands of dollars by having been forced by said board to give up his plumbing business and has been ‘ boycotted ’ by said board.
“ YI. That Joseph O’Brien, one of the members composing said board, told deponent after deponent applied as aforesaid for said certificate: ‘ I will vote against your obtaining a certificate of competency because you interfere with my plumbing business and secure my customers for yourself; I know you are a qualified and competent plumber, but I will see to it that you do not obtain a certificate from the board, and the Supreme Court has no power to interfere with the board’s action in refusing you or any other plumber a certificate, no matter how well qualified you or they may be.’
“ YII. That John McKenna, another of the members composing said board, told deponent: ‘I will vote against your obtaining a certificate of competency because you have refused to employ men from my society, the New York Journeymen Plumber Benevolent and Protective Association, and because you have refused to join the Master Plumbers’ Association.’
“YIII. That George D. Scott, Chairman of said Board, told deponent: I know nothing about the merits of your application. I will leave Messrs. McKenna and O’Brien to decide whether the Board will grant you a certificate. They can settle the matter as they please.’ ”

The board in return denies that it acted arbitrarily or capriciously as alleged by the relator,” and denies that a certificate was refused the applicant because he had no place of business, or because he would not join the Master Plumbers’ Association or employ men from the New York Journeymen Plumbers’ Benevolent and Protective Association.” But the averments in paragraphs 6, J and 8, that the action of O’Brien, McKenna and Scott was influenced by improper and illegal motives, are not denied, nor is it anywhere denied that these three persons made the statements attributed to them, and, in the face of such specific and grave charges, undenied, the allegation in the return, that the board’s determination was based on “ their best judgment and discretion,” is entitled to little or no wnight. Had the board been able to have denied truthfully these specific and highly-incriminating statements it would undoubtedly have done so. If these statements were made by three of the' members of the board it is presumptively shown that the plaintiff’s case was determined upon illegal instead of upon valid and honest grounds. Hndenied allegations in the petition are to be taken as true. (People ex rel. Peck v. Commissioners, 106 N. Y. 64.)

The examining board of plumbers of this city is an important body, created to protect the health of the public, and if its great powers are wisely and impartially exercised, pursuant to fixed and proper regulations, it may be productive of good, but, on the other hand, if its duties are not so discharged it will surely become a means of oppression, destructive of the rights of competent mechanics and of all citizens who have occasion to employ them, and will end in building up a monopoly for the benefit of a few, ’ and endangering, instead of promoting, the public welfare.

It does not appear by the record before this court that rules regulating the examination of applicants prescribing the subjects on which they are to be examined, and stating the percentage of questions which must be correctly answered to entitle the applicant to a certificate, have been adopted. This board, exercising, as it must, highly important judicial functions affecting the rights of persons and property, should, for its own protection, and for the protection of the rights of applicants, keep a record of its proceedings in every case, and for the further reason that in case determinations are reviewed, -a full return may be made of all the facts and evidence on which the determinations are founded.

For the reasons given the determination in this case must be annulled, and the board is directed to rehear the application of the relator. Fifty dollars costs and disbursements are awarded in favor of the relator and against the board.

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

Proceedings annulled and rehearing directed, with fifty dollars costs and disbursements to relator.


author: Parker, J.:

text:
    The Schillinger Fire Proof Cement and Asphalt Company, Respondent, v. William H. Arnott and Another, Appellants, Impleaded with Others.

      Mechanic’s lien — constitutionality of chapter 842 of 1885 — personal judgment — architect’s refusal to give a certificate.

    An action to foreclose a mechanic's lien, begun under the provisions of chapter 342 of the Laws of 1885, is triable at Special Term, and that act in depriving the parties of the right to a trial by jury is not unconstitutional.
    In an action brought for the foreclosure of a mechanic’s lien, the right to a personal judgment is not affected by the fact that in the first instance the parties liable paid into court the amount of the lien, and that this in turn was withdrawn und the personal responsibility of the parties liable was substituted as a condition imposed by the court of permitting the lienor to amend his complaint.
    The unreasonable refusal of an architect to give a certificate of the performance of a building contract will not bar a recovery by a lienor, and such refusal must be deemed unreasonable where, upon the same work, the architect gives a certificate to a contractor and refuses it to a sub-contractor to whom the con- ■ tractor is indebted.
    Appeal by the defendants, William H. Arnott and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the llth day of August, 1894, upon the decision of the court rendered after a trial at the New York Special Term, anu also from an order entered in said clerk’s office on the 30th day of August, 1894, denying the said defendants’ motion to strike the cause from the equity calendar.

      Carlisle Norwood and Chandes B. Beid, for the appellants.

      B. Lewimson, for the respondent.
   Parker, J.:

In May, 1890, the defendants, William H. Arnott & Co., entered into a contract with Rachel Cohnfeld as owner, for the erection of a building upon her premises in the city of New York.

Subsequently Arnott & Co. sublet a portion of the work to the plaintiff, “the Schillinger Fire Proof Cement and Asphalt Company.” On the 19th day of January, 1891, and within ninety days after the completion of the contract, the plaintiff filed a notice of lien in the clerk’s office of the city and county of New York, in pursuance of the provisions of chapter 342 of the Laws of 1885.

Two days later, and on the 21st day of January, 1891, Arnott & Co., under subdivision 2 of section 24 of said act, deposited with the county clei'k a sum of money, equal to the amount claimed in the lien, with interest to the time of said deposit, .and thereafter a suit to foreclose the lien was commenced. The suit coming on to be tried at a Special Term of this court in November, 1892, the plaintiff made a motion to amend its complaint, which was granted, one of the conditions being that the plaintiff should consent to Arnott & Co.’s withdrawal of the sum of money which they had deposited with the county clerk and accept in lieu and place thereof their personal responsibility, provided they should give a stipulation to that effect, which they did, and the moneys were thereafter withdrawn. When later the suit came on for trial a motion was made to strike the cause from the equity side of the calendar, on the ground that the defendants were entitled to a trial by jury.

Section S of the Lien Law expressly provides that “ The manner and form of instituting and prosecuting any such action to judgment, or an appeal from such judgment shall be the same as in actions for the foreclosure of mortgages upon real property, except as herein otherwise provided.”

And it has uniformly been held, so far as we have observed, that suits to foreclose mechanics’ liens under the act of 1885, like suits to foreclose mortgages, are triable at Special Term.

But the appellants urge that if it be conceded that the statute authorizes the trial of such suits at Special Term, the act is, in such respect, unconstitutional.

The grounds for this contention are so clearly stated and fully met in the opinion of Andrews, J., at Special Term, in overruling the demurrer interposed by the defendants to this complaint (14 N. Y. Supp. 326), that there is no occasion for us to do more than to say that we concur in the views therein expressed.

The appellants further contend that in any event their motion should have been granted, because this case is within the rule stated in Burroughs v. Tostevan (75 N. Y. 567), and Dudley v. Congre gation of St. Francis (138 id. 451), that in an action in the nature of a proceeding in rmn to foreclose a statutory lien, in which case a personal judgment against some of the parties may follow as incidental to the general relief, such judgment cannot be rendered if the plaintiff fails to establish the lien.

Bxvrroughs’ case asserts just that proposition, and arose under a mechanics’ lien statute, but since then, chapter 342, Laws of 1885 has been passed, section 15 of which provides that, notwithstanding a failure to establish a valid lien, the claimant may recover “ against the party or parties to the action for such sum or sums as may appear to be due him and which he might recover in an action upon a contract against said party or parties.” Again there -was no failure of lien in this action; on the contrary, the right to enforce it was established by the judgment, and the property was only saved from sale to satisfy the amount due under the lien, because the defendants Arhott & Co. deposited, in the first instance, with the county clerk the sum of money equal to the amount claimed to be due in the notice of lien with interest to the date of deposit, for which was subsequently substituted their stipulation of personal responsibility by command of the court. The deposit of the moneys did not change the character of the suit to be brought by the plaintiff. In order to recover it was necessary for the plaintiff to establish the validity of its lien, which could only be done by a suit to foreclose it, which should result in a judgment in plaintiff’s favor. This question was before this court in Sheffield v. Robinson (73 Hun, 173), and arose under subdivision G of section 24, in which case a bond was given to discharge the lien instead of a deposit of moiicj' as in this case, but the decision in that case and the reason for it is alike applicable to this one. As the case stood when the court required the plaintiff to accept the stipulation of the defendants, to become personally responsible for the payment of any judgment which should be recovered, and permit defendants to withdraw the money to be used in their business, the plaintiff would become entitled to the moneys after it had been determined by a judgment of foreclosure that it had a valid lien, and not before or otherwise. This situation was not changed by the act of the defendants in substituting their undertaking in place of the moneys then on deposit.

Upon the merits two questions were presented: (1) "Whether plaintiff had substantially performed its contract with Arnott & Co. (2) If so, whether the refusal of the architect to give the certificate of performance, provided for by the contract, should prevent a recovery.

The first question the court answered in the affirmative, and the facts adduced, which were the subject of elaborate discussion in the opinion of the Special Term, justified the conclusion readied. As to the second, it was decided that the refusal of the architect to give the certificate was unreasonable, and, therefore, not a bar to .plaintiff’s right to recover. (Nolan v. Whitney, 88 N. Y. 648 ; Thomas v. Stewart, 132 id. 580 ; Crouch v. Gutmann, 134 id. 46.)

It is a significant fact that the architect issued to Arnott & Co. the necessary certificate covering the very work which the plaintiff performed, and which entitled it, under the contract, to payment from the owner. Confronted with this fact upon his cross-examination, the architect attempted to explain how it was that he came to issue the certificate to the contractors, Arnott & Co., that the work had been properly performed, in order that they might collect of the owner, and at the same time refused to issue a certificate to this plaintiff in order that it might, under its contract, recover from Arnott & Co.

His explanation was, in effect, that he issued the certificate to the defendants at the request of the owner in order that a settlement between defendants and the owner might be effected. But this explanation was a most unsatisfactory one, for the owner did not need a certificate in order to settle with the defendants. If she was satisfied with the work which had been done, she needed not the assistance of the architect’s certificate in order to pay for it. If she was not satisfied and proposed to insist upon a deduction from the contract price, by reason of faulty work, it certainly did not strengthen her position to have the architect make a certificate, which, under the terms of the contract, bound her to pay the defendants in full. The fact that the work was substantially performed, as found by the trial court, in which finding we concur, together with the other facts contained in the record, and which were, to a ■considerable extent, commented upon in the opinion of the court at Special Term, justified the holding that the refusal of the architect to give the certificate, called for by the contract between, plaintiff and. the defendants, was unreasonable.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    Louis Ullman and Others, Appellants, v. Solomon Jacobs, Respondent.

      Pleadings —conforming them, to the proof — notice of protest and waiver of protest.

    Upon the trial of an action brought against the indorser of a promissory note, the-answer put in issue the allegation of due notice of protest, and the court found that such notice had not been given; but evidence was given by one of the plaintiffs, from which it might have been inferred that such notice was waived. No motion was made by the plaintiffs at any time to substitute in the complaint an allegation of waiver of notice of protest for the allegation of due notice. After the evidence was closed, and the plaintiffs’ motion for judgment on the evidence had been denied, the plaintiffs’ counsel moved to conform the pleadings to the proof and to make the action one against the defendant as a surety. This was denied, and judgment was ordered for the defendant.
    Subsequently the plaintiffs presented requests for findings, among which was one that the court find as matter of law that notice of protest was waived, the plaintiffs’ evidence upon this point not having been contradicted. The court refused to so find, and the plaintiffs appealed.

      Held, that the issue as to waiver of protest was not within the pleadings;
    That, as upon the pleadings there could have been no recovery against the defendant as a surety, the discretion of the court was properly exercised when it denied the motion to make the action one against the defendant as surety.
    Appeal by the plaintiffs, Louis TJllman and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of New Yoi’k on the Jtli day of April, 1894, upon the decision of the court, rendered after a trial before the court, without a jury, at the New York Circuit, and also-from an order entered in said clerk’s office on the 13th day of April, 1894, denying the plaintiffs’ motion for a new trial.

      George M. Pwiney, Jr., for the appellants.

      Uermcmx Aa/ron, for the respondent.
   Parker, J.:

The complaint alleged the making and delivery by one Brodsky of a promissory note payable to himself; its subsequent indorsement before maturity by the defendant, Solomon Jacobs, for a valuable consideration, and delivery to these plaintiffs who thereupon became, and still are, the lawful owners and holders thereof; presentation anct. demand of payment at maturity at the place where the same was made payable; refusal of payment and protest, with due notice thereof to the defendant.

The answer, among other things, put in issue the allegations of the complaint relating to notice of demand of payment, and the giving of notice of protest or dishonor to the defendant.

Upon the trial the plaintiffs attempted to establish the allegations of the complaint in such respect, but the trial court held that notice of protest was not given to the defendant until twelve days after the maturity of the note. The case was tried before the court without a jury, a jury being waived, and the evidence fully justified the finding made. One of the plaintiffs was called as a- witness with the view of establishing, by his testimony, that due notice of dishonor was given to the defendant, and in the course of his evidence he related a conversation had with the defendant a few days prior to the maturity of the note, which, if true, would have supported a finding that the defendant had waived notice of protest.

This testimony was not contradicted by the defendant, and subsequently the plaintiffs requested the fact to be found, as plaintiff had testified, and as a conclusion of law, that notice of protest or dishonor was duly waived, which was refused, and plaintiffs insist upon this appeal that such refusals constituted error, entitling them to a reversal of the judgment.

The difficulty with this contention is, that while this testimony was brought out upon the examination .of one of the plaintiffs, an effort was then being made to show by the witness that the defendant had received due notice of protest in conformity to the pleading, which alleged that notice of dishonor was duly given to the defendant, and not that the defendant had waived notice thereof. No motion was .at that time made, or afterwards, to amend the complaint by substituting an allegation of waiver of protest in the place of the one alleging that due notice of protest had been given to the defendant.

After the evidence was closed and the plaintiffs’ motion for judgment on the evidence had been denied by the court, plaintiffs’ counsel addressed to the court the following motion: “I make a motion to conform the pleadings to the proof, and to make this an action against the surety.” It is urged-that both the court and defendant’s counsel were informed by the motion that the plaintiffs relied upon the testimony bearing upon an alleged waiver of protest by tlie defendant, and that being so, that this court should consider whether, under all the circumstances, the discretion of the court was properly exercised in denying the motion. But the form of the motion suggests that the counsel had a very different proposition in mind than the one which he now urges. That having failed to persuade the court to direct a judgment in his favor, and having obtained an exception to the ruling, he conceived the idea that if the defendant could not be held as an indorser, he might be as surety, and so he moved the court to conform the pleadings to the proof, and to make this an action against the surety.

It is not even claimed now, that if the motion had been granted there could have been any recovery against the defendant as surety, and the motion as made presented that question to the court, and nothing more. Having denied that motion, judgment was ordered for the defendant, after which the plaintiffs presented requests to find, both of fact and law, and among them were the requests to which we have referred relating to the alleged waiver of protest.

The court refused to find them, and in so doing- did not err, because the facts requested to be found in regard to the alleged waiver of protest were not within the issues presented by the pleadings, and which both court and counsel supposed were on trial.

The judgment should be affirmed, with costs.

Yan Brunt, P. J., and (TBrien, J., concurred.

Judgment affirmed, with costs.