text:
    JACOB RAUTH, Plaintiff v. WILLIAM B. DAVENPORT, as Executor of SAMUEL CARDWELL, Jr., Deceased, Defendant.

      Landlord and tenant — a tenant remaining, because of the landlord’s promise to repair, may recover damages resulting from his failure to do so.

    The property of a tenant had been damaged by rain from a defective roof which was under the control of the landlord, who promised to repair it properly, in consideration of which promise the tenant consented to remain in occupation of the premises. The roof was thereafter slightly and insufficiently repaired.

      Held, that the tenant could recover, because of such promise, the damages resulting to him from a subsequent rain.

      Semble, that where the roof of demised premises is under the control of the owner, and is maintained for the general benefit of its several tenants, such owner owes to the tenants the duty of keeping such roof in a reasonably safe condition, at least after notice that it is defective.

      Exceptions of the plaintiff Jacob Rauth directed to be heard in the first instance at the General Term, after a dismissal of the complaint upon a trial had October 30, 1890, at the New York Circuit before the court and a jury.

      Albert I. Sire and Chauneey Shaffer, for the plaintiff.

      Charles H. Otis, for the defendant.
   Daniels, J.:

The plaintiff was the lessee of a store, situate in the building known as No. 325 Third avenue, in the city of New York, from the 1st of September, 1886, until the 1st of February, 1889. The lease was for the period of three years and eight months, but the premises, were vacated by the plaintiff because of the condition of the roof of the building, by which the water passed through the story above, which was occupied by another person, into the store of the plaintiff, who was a pawnbroker, and wet and injured his goods. And the-action was brought by him to recover the damages which, in this manner, were alleged to have been sustained. The building consisted of two stories and an attic, and neither of these occupants-were under any obligation to repair or keep the roof in a sound and water-tight condition. The evidence given upon the trial by the-plaintiff, and witnesses sworn in his behalf, was to the effect that, after the commencement of the term, and in August, 1888, the water passed through the roof down into the store, and that the testator and his agent, Mr. Reynolds, were notified of the fact and informed that in case the roof was not fixed the plaintiff would be bound to vacate the premises. His testimony is that he had then arranged to move at that time, and was about to do so, and that he told the-testator that he was about to move, who replied to him that he should, remain, that he was going to fix the roof. And said he would put it in a proper condition; that the plaintiff would not sustain any more damage, even if he had to put on a new roof. And upon that promise the plaintiff stated that he consented to and did remain in the occupancy of the store. But instead of placing the roof in a water-tight condition, slight repairs appear to have been made to it, in no manner preventing the water from passing through the roof in rainy weather. And that a heavy storm afterwards following, and in or about the month of November, 1888, the water passed from the roof' through the second story into the store in such quantities as to seriously wet and injure the plaintiff’s property, and that the accumulation was so great that the goods could not be placed where they would be protected from the water. This condition of affairs is also stated to have been reported to the agent of the testator, who again promised to put the roof in repair. But that was not done, and the plaintiff was finally obliged by a repetition of the injury to abandon his possession of the store.

After this evidence had been given, and proof had been added of the extent of the injury suffered by the plaintiff, an application was made to dismiss the complaint, and that disposition was made of it by the court at the trial. It was considered that neither this state of facts nor the additional fact that the testator repaired the premises from time to time, nor the covenant for quiet enjoyment which was in the lease, were sufficient to impose upon him the obligation to put this roof in a reasonably fair and secure condition. And upon the effect of Doupe v. Genin (15 N. Y., 119) the dismissal of the complaint was directed. But that case in its leading facts is so entirely different from the circumstances which hme just been mentioned, and which the jury were at liberty to find to have been established by the proof, as to render it wholly inapplicable to this controversy. The claim there made was that the landlord was obliged to rebuild or repair premises, which had been injured by fire, for the benefit of his tenant. But the court held that no obligation of that description existed. There was nothing said or intimated in the case which would relieve the landlord from liability under circumstances of the description of those which this evidence tended to support. The roof of the building was under the entire control of the testator and his agent. It was no part of the premises leased to the plaintiff, or the tenant of the story above. And it was maintained clearly for the general benefit of the occupants of the building under the control and management of the testator. And that would seem to be sufficient to impose upon him the obligation of maintaining the roof in a reasonably safe condition for the benefit not only of the plaintiff alone, but of the other occupants of the building, who were equally affected by the passage of the water from it through their apartments, down into the store. (Alperin v. Earle, 27 N. Y. St. Rep., 806.)

But the right of the plaintiff to maintain the action is not dependent upon the existence of such an obligation arising out of the control of the roof for the benefit of the tenants by the landlord, for he was notified that the plaintiff was about to leave the premises because of the unsafe and injurious condition of this roof. And to prevent that occurrence he promised to put it in repair. And that promise was stated to have been repeatedly made both by himself and his agent, Mr. Reynolds. Upon the faith and expectation of its observance the plaintiff remained in the use and ■occupancy of the store. To induce him to do so was the object of the promise itself. And his- consent to, and the fact that he did afterwards, remain, was a consideration supporting this promise on the part of the landlord and the landlord’s agent. It was placing the plaintiff in a position of risk and danger to his property, against which he accepted the assurance of the landlord that the roof should be placed in a secure condition. And under the case of Vann v. Rouse (94 N. Y., 401) that would seem to be sufficient to impose the observance and faithful performance of this obligation upon the landlord. There the premises were flowed with water from other parts of the building owned by the landlord and under his control, and were thereby made untenantable. And this was held to be sufficient to justify the tenant in vacating the premises and to justify his surety in resisting the payment of rent. It was there added “ that the tenants were justified in abandoning the premises, and that they did sustain damages by reason of the plaintiff’s omission to keep in order water pipes and closets in rooms under his •control, after notice that they were defective and causing injury to the plaintiff. He might have been held liable for a breach of covenant for quiet enjoyment which the law implies in a lease of that kind, * * * or for failing to keep his promise after notice to ■remove the cause of damage.” (Id., 407.) This is a plain recognition of the obligation, on the part of the landlord, to observe and fulfill a promise made by him to his tenant under circumstances of ■this description. And of his liability for damages caused by his omission to perform. And the cases of Henkel v. Murr (31 Hun, 28) and Marsh v. Chickering (25 id., 405), follow tlie same principle.

The complaint sufficiently presented this phase of the plaintiff’s case to entitle the proof to be received as it was upon the trial, for it was alleged that the roof was under the control of the testator, and that he exercised that control in such a careless and negligent manner as to permit the water to leak through the roof and pass into the plaintiff’s premises and thereby injure and destroy his 'goods. The duty had been assumed by himself, and the proof would have warranted the jury in concluding that he had negligently omitted to perform that duty, And with those facts established, and the injury which was sustained by the plaintiff, he would be entitled to recover in the action.

The verdict should, therefore, be set aside and a new trial ordered, with costs to the plaintiff to abide the event.

Yan Brunt, P. J., concurred.

Yerdict set aside and a new trial ordered, with costs to the plaintiff to abide event.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    MARIA STELTZ, Plaintiff, v. MINNIE SCHRECK and Others, Defendants.

      Husband and wife — tenants by the entirety — after an absolute divorce they become tenants in common — evidence that the husband furnished the purchase-money is immaterial.

    Where a husband and wife, seized of real property as tenants by the entirety, are absolutely divorced because of the wife’s adultery, they are thenceforth seized of the premises as tenants in common.
    Where, after such divorce, the husband remarries and dies, his widow is entitled to be endowed in one-lialf of the premises.
    In an action by the widow to enforce her dower rights, evidence that the purchase-money of the premises was paid by the husband is immaterial; the rights of the husband and wife, the grantees in the deed, depend only upon the deed to them, jointly and upon their marital relations.
    Appeal by tbe plaintiff Maria Steltz from so muck of ail interlocutory judgment, entered, on tbe lOtb day of December, 1890, in tbe clerk’s office of tbe county of New York, as declared her to be entitled to dower in one equal undivided half of the premises described in the complaint in this action, and an appeal by the defendant Minnie Schreck from the same direction of said interlocutory judgment, after a trial before the court at Special Term; also motions at the General Term for a new trial, under section 1001 of the Code of Civil Procedure, by each of such parties.

      George II. Kraeht, for the plaintiff.

      Edward 8. Johnston, for defendant Schreck.

      8. Jones, for guardian ad litem.

   Daniels, J.:

The land in question was conveyed b.y deed jointly to "William Stelz and the defendant Minnie Schreck, who were then husband and wife. The effect of this deed was to vest each of the grantees, with the entirety and the right of absolute ownership in the survivor. (Jackson v. McConnell, 19 Wend., 175; Washburn v. Burns, 34 N. J. Law, 18; Bram v. Bram, 34 Hun, 487; Zorntlein v. Bram, 100 N. Y., 12; Chandler v. Chency, 37 Ind., 391.) As to these results-of the conveyance, the law has been uniform in its determinations.

After this conveyance had in this manner taken effect, William Stelz obtained a divorce from his wife Minnie Stelz, now Minnie Schreck, because of her adultery. And soon afterwards he married the plaintiff, and he died on the 8th of February, 1889, leaving a will which has been admitted to probate by the surrogate of the county of New York. The plaintiff then brought her action for dower in this real estate, and the court at the trial sustained her right to be endowed in the equal undivided half of the land, on the ground that after the divorce the parties to that action became tenants in conimon. This view has failed to meet the approval of" either party, and each has appealed from the interlocutory judgment, and uselessly added a motion for a new trial.

The statute has not declared that a decree of divorce, on the ground of adultery, shall affect or change the seizin of the former husband and wife under a deed to them jointly. It has. extended no further than to exclude the delinquent wife from dower in her husband’s real estate, and from all participation in his personal property. (3 R. S. [6th ed.], 157, § 61.) And forfeited every jointure, devise and pecuniary provision made for her in lieu of dower. (2 R. S. [6th ed.], 1122, § 15.) Whether the seizin and estate created by this deed has been changed must, accordingly, be determined from the effect the decree necessarily had on the relations of the parties.

After it was recovered they were no longer one person in law. From that time they ceased to be husband and wife, and became as completely two persons as though they had not been married. The joint seizin by the entirety resulted, in judgment of law, from the deed having been made to them as husband and wife. It .arose out of, and depended upon, that relation. That was its legal foundation, and that was completely removed and abrogated by the ■decree of divorce.

The basis of this seizin wholly disappeared when the divorce was recovered. And, logically, it followed that as the grantees in the ■deed could no longer hold under the tenure resulting from the marriage, that the estate in the land must have been thereby changed. And as they had become in law two persons, that the deed to them from that time created a tenancy in common, the same as it would if they had been unmarried when it was delivered. They were no longer seized in the entirety, for the marriage on which that depended had been dissolved. And when that was done then the deed had its effect as a joint conveyance to two persons, creating the only estate permitted under its language of a tenancy in common. It is an incidental consequence resulting from the separation of the grantees into two legal and distinct individuals. This subject, under similar circumstances, was examined in Ames v. Norman (4 Sneed, Tenn. Reps., 683), and this result was held to follow a decree for divorce. And it has been further followed in Lash v. Lash (58 Ind., 526) and Harrer v. Wallner (80 Ill., 197). And this view has been commended in 2 Bishop on Marriage and Divorce, section 716. While the principle cannot be affirmed to be free from doubt, it seems to legally follow from the radical change made in the relations of the parties by the decree of divorce.

The exclusion of the evidence offered to prove that the purchase-price of the land was paid by the husband was not erroneous. For that fact could have worked no change in the title. It was created by the deed and tlie marital relation of these persons. In the action for the divorce it might have been entirely pertinent in the way of excluding the guilty wife from all interest in the land.. (Renwick v. Renwick, 10 Paige, 421.) But upon this trial that, could not be done. ' The offer came too late.

The case seems to have been disposed of as it should be. by the Special Term, and the judgment should be affirmed and the motions for a new trial denied. And as neither party succeeds, it. should be without costs.

Yan Brunt, P. J., concurred.

Judgment affirmed and motions for a new trial denied, without costs.


text:
    JOSEPHINE STEPHENSON, Respondent, v. EQUITABLE GAS-LIGHT COMPANY OF NEW YORK, Appellant.

      Contributory negligence — care required of a foot passenger in passing along a sidewalk in which a trench has been dug.

    A corporation had dug a trench a foot deep and a foot and a half wide across a sidewalk, of which the two flags nearest to the curb had been taken up in making the trench, but the third and innermost flag was not disturbed, leaving over it a passage-way for the public.

      Held, that a foot passenger, who approached the trench in the day-time and attempted to step across it, instead of walking upon the undisturbed flag, and was thrown back into it, as alleged, by reason of her stepping upon the handle of a tool lying under the excavated soil, was guilty of contributory negligence and could not recover against the corporation.
    Appeal by tlie defendaut, tlie Equitable Gas-Light Company of New York, from a judgment, entered, on tlie 18th day of October, 1890, in the clerk’s office of the county of New York, in favor of the plaintiff, after a trial at the New York Circuit before the court and a jury, at which a verdict -was rendered in favor of the plaintiff for $2,000.

      F. R. Ooudert, for the appellant.

      Fdwin R. Leavitt, for the respondent.
   Daniels, J.:

Tlie verdict was recovered for tlie sum of $2,000 for damages to the plaintiff in falling into á trench on or about the 12th of November, 1887 She was passing easterly on the southerly side of Little Twelfth street, in the city of'New York, and this trench had been opened to connect a building fronting upon the street with the gas main in the street. The trencli is stated to have been from a foot to fourteen inches deep, and the plaintiff, in her testimony, states the apparent width to have been not to exceed one and a half feet. It was opened and closed the same day. As the plaintiff approached it from the west she saw the trench and stepped across it, when, as she states, her foot struck upon a bar or shovel-handle under the dirt which had been thrown out on the easterly side, and she fell back into the trench, receiving the injury for which the verdict was recovered. Nothing existed, as she approached the trench, to obstruct it from her immediate view. And the sidewalk at that point consisted of three rows of flagging, two of which had been removed, but the inside or farthest flagging from the street had not been taken up. There was nothing whatever to obstruct the appearance of the situation to any person approaching the trencli as the plaintiff did. Her testimony was that she approached it upon a natural gait, and that there was no other passage-way without going into the street. She was then interrogated whether there was not a passage between the end of the trench and the stoop line, and testified that she did not know. Also that she did not notice there was any danger, and, in fact, did not think anything about it. She added: “ I was not jiaying any attention to the trench ; I was anxious to get home, and I was going about my business; I didn’t expect to get hurt when I left the house in the morning.” And no controversy arises upon the evidence as to the inside flagging affording a safe and sufficient means for persons passing and repassing along the sidewalk. At the close of the proof an application was made to the court to direct a verdict for the defendant, but this was denied, and an exception was taken.

The manner in which the plaintiff approached and endeavored to cross the trench without first observing whether that would become necessary or not, and thereby subjecting herself to the risk of an accidental misstep, indicated an indisposition upon her part to obtain anything like a knowledge of the situation of things at this locality. She did not endeavor to discover whether any avenue existed for avoiding the trench, but passed immediately to it, and endeavored to step across it, and thereby met this accident. The entire condition of things was in plain sight, capable of being observed at a glance if a desire existed or any effort had been made to avoid this trench. In this respect the case in its leading circumstances appears to be quite similar to that of Welch v. Wilson (101 N. Y., 254). There the defendant had extended a pair of skids from the steps of his store to a truck across the sidewalk, and the plaintiff turned towards the store and attempted to pass around the skids, in doing which she slipped and was injured. And it was held by the court that she was chargeable with negligence and could not maintain an action to recover damages for the results of the injury. The present case is still more favorable to the defendant, for a sufficient avenue had been preserved by it to enable persons passing along the sidewalk to use it with the utmost' safety and freedom from all personal risks. And yet the plaintiff, by her indifference to the situation, failed even to notice this fact, or to avail herself of the means of safe passage in this manner secured. In this respect the case differs from those which have been brought to the attention of the court where obstacles in the highway and upon sidewalks were encountered in the' night-time, or under circumstances from which an accurate' knowledge of the situation could not be at once obtained. The case more especially applicable to the consideration of the point here. presented is that of Pomfrey v. Village of Saratoga Springs (104 N. Y., 459), where, in the daytime, the plaintiff was injured by endeavoring to pass over a ridge of ice extending from the inside to the outside of the sidewalk. This ridge was about three feet in thickness above the surface of the ground and two and one half above the snow upon the sidewalk. But in that case there.appeared to be no other means of passing over the locality, and in that respect it became a necessity for persons using the sidewalk to attempt to pass over this ridge. If a passage-way had been cut into the embankment of ice affording a level surface and a sure means of avoiding it, and escaping the risk of injury, and then a person had undertaken to cross outside of that passage-way over the embankment itself, a question similar to that presented in this case would then have arisen. But that was not the fact, and its omission from that case distinguishes it in principle from the present action. For here such a means of passage had been retained, and was accessible for use, readily discoverable to all persons making even a casual use of their eye-sight before attempting to cross this trench. Some care, certainly, was required on the part of the plaintiff to avoid the needless exposure of herself to the risk of stepping across the trench. That care was not observed, and it was sufficient to charge her with negligence contributing to the production of the injury. And a verdict consequently should have been directed, as that was requested, in favor of the defendant.

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

Yan Brunt, P. J., concurred.

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


author: Yan Brunt, P. J.:

text:
    In the Matter of the Application of GEORGE W. McLEAN, as Receiver of Taxes in the City of New York, Respondent, v. NEW YORK AND SOUTH BROOKLYN FERRY AND STEAM TRANSPORTATION COMPANY, Appellant.

      Taxes — demand, under section 848, chapter 410 of 1883, by the receiver of taxes of the city of New York, of a tax assessed upon anineorporated company, before taking proceedings to collect it.

    Section 848 of chapter 410 of the Laws of 1883, the consolidation act, relative to the city of New York, requires the receiver of taxes to "demand payment of all taxes assessed on incorporated companies in the said city from the president or proper officer of such companies ” before enforcing their collection ; and, by section 853 thereof, he is authorized to issue a warrant and to collect unpaid taxes by distress and sale. The receiver of taxes before making a demand therefor issued a warrant to a marshal against a corporation for certain unpaid taxes, and the marshal’s clerk thereafter demanded payment of. them from the corporation.

      Held, that the statutory demand should have preceded the issuing of the warrant, and that the latter was void.

      Appeal by the defendant, the New York and South Brooklyn Ferry and Steam Transportation Company, from an order, entered in the clerk’s office of the county of New York on the 11th day of February, 1891, fining the defendant the sum of $606.30 for its misconduct in neglecting to pay a personal tax assessed upon it by the city of New York for the year 1888.

      G. ZabrisT&ie, for the appellant.

      John G. U. Myers, for the respondent.
   Yan Brunt, P. J.:

This proceeding was instituted to punish the appellant for its misconduct in neglecting and refusing to pay a tax imposed upon its personal property. The petition upon which the order to show cause was founded alleged the imposition of the tax, demand of payment, refusal, return of warrant issued to marshal unsatisfied, and that the tax is still unpaid. The appellant admits non-payment of tax; avers want of knowledge of return of warrant unsatisfied; denies demand and refusal to pay, and avers that at all times it had goods and chattels belonging to and in its possession upon which said tax might have been levied by distress and sale according to law. In answer to the denial of demand, the respondent, the receiver of taxes, averred that on the 16th of January, 1889, a warrant was. issued to one of the marshals of the city of New York for the= collection of said tax, and which had been returned unsatisfied, and. also submitted the affidavits of one John Long to the effect that he1 was the cashier and clerk of said marshal, and while said warrant was in said marshal’s possession in force and unreturned, he, acting for said marshal, duly demanded from the president of the appellant the amount of the said tax.

Upon these facts the court fined the appellant for its alleged misconduct, the amount of the tax and interest and the costs of these proceedings, and from the order thereupon entered this appeal is taken. The consolidation act, section 818, provides: “The said receiver (meaning receiver of taxes) shall demand payment of all taxes assessed on incorporated companies in the said city from the president or proper officer of such companies, and if not paid, shall proceed in the collection and payment thereof, in the same manner as in other cases, and his receipt shall be evidence of the payment of said tax.”

Section 853 provides for the issuance of his warrant by the receiver of taxes for the collection of unpaid taxes. It seems to be clear that before the receiver can issue his warrant under section 853, against a corporation which has neglected to pay a tax imposed upon it, the demand required by section 848 must be made. The only proof of demand is that made by the clerk of the marshal, whose whole authority, if he had any, to make the demand sprang from the warrant issued to the marshal. This warrant was void because no demand for payment required by section 848 had been made, and consequently, being void, could confer no authority to make a demand of any kind.

"Without passing upon the questions as to whether this demand could be made by any other person, duly authorized, than the receiver of taxes or his deputy, or whether a marshal could authorize a deputy to execute a warrant duly issued to him, we are of the opinion that there is no proof that the demand contemplated by section 848 has ever been made, and that the court had no jurisdiction to entertain this application.

The order appealed from should be reversed, with costs, and the motion denied, with costs.

Daniels and Lawrence, JJ., concurred.

Order reversed, with costs, and the motion denied, with costs.


author: Lawrence, J.:

text:
    In the Matter of the Estate of SAMUEL LYMAN, Deceased.

      Executors and administrators — a judgment recovered, against a person who subsequently dies is conclusive upon his administratrix — it is not barred because not sued within six months after it is disputed by the administratrix.

    A judgment was recovered against a person who subsequently died, the claim was presented to his administratrix, was by her disputed, and an offer was made by her to refer the claim, and thereafter the claimant took no action for over six months, and subsequently took proceedings to compel the administratrix to render an account.

      Held, that the six months’ limitation within which, under section 1822 of the Code of Civil Procedure, disputed claims must be sued had no application to the case of a judgment, that being a final adjudication between the parties to it.
    That, upon the basis of the judgment, the judgment creditor might properly proceed to compel the administratrix to account.
    Appeal by Lydia A. Lyman, as administratrix of Samuel Lyman, deceased, from an order of tbe Surrogate’s Court of the county of New York, entered in the office thereof on the 31st day of January, 1891, directing said administratrix to render and file an account of her proceedings.

      Baekett c& Bennett, for the administratrix, appellant.

      Miller & Wells, for the Stuyvesant Safe Deposit Company, petitioner, respondent.
   Lawrence, J.:

The Stuyvesant Safe Deposit Company alleges in its petition that the estate of the deceased is indebted to it on two certain judgments, recovered in the Court of Common Pleas of the city and county of New York, by one De Forrest Fox against the said Samuel Lyman, in his lifetime, and that the petitioner is the owner and holder of said judgments by virtue of assignments thereof, duly made by said Fox to said petitioner, and is a creditor of said deceased.

The answer to the petition is, that the administratrix, more than ■six months after letters of administration had been granted herein, under an order of the Surrogate’s Court, duly advertised for claims once a week for the period of six months; that the proof of claim of the petitioner was presented to the administratrix, who disputed the same and gave notice thereof to the petitioner, which notice ■contained an offer to refer said claim under the statute; that said offer has not been accepted, and that more than six months have expired since said claim was disputed, and that said claimant has not commenced an action for the recovery of said claim, wherefore the administratrix claims that the claimant is barred from maintaining this action.

It is further alleged, as a separate defense, that Fox held certain collateral securities belonging to the decedent, from the sale of which he realized a very large sum of money, for which neither he nor the petitioner has accounted, but which was applicable to the payment of said claim, if any existed. The surrogate ordered the administratrix to account.

It was held by the Court of Appeals, in McNulty v. Hurd (72 N. Y., 518), that a judgment against a deceased person, although disputed or rejected by his personal representatives, need not be sued over _in order to authorize a decree for its payment by the surrogate. If this be so, it is difficult to see how the claim arising upon the judgment can be barred by the statute of limitations upon a refusal to refer.

In McNulty’s Case, Church, C. J., says : “We think that there is a distinction between judgments against the testator or intestate and other claims. A judgment is an adjudication of the rights of the parties in respect to the claim involved. It imports absolute verity. It cannot be disputed in the sense contemplated by the statute any more than a judgment against the administrators. In that sense it is final and conclusive. The statute recognizes a distinction by giving priority to judgments over each other according to date of recovery, and over other debts. (§ 21.) This right of priority might be interfered with, if a new judgment was necessary in case of dispute, and thus a right secured by statute might be seriously impaired or entirely destroyed by the construction claimed. We are of opinion, therefore, that a judgment against a deceased, even if disputed or rejected by executors or administrators, need not be sued over in order to authorize a decree for its payment by the surrogate.”

It is doubtful whether the other matters set up by way of defense could be tried by the surrogate. (Stilwell v. Carpenter, 59 N. Y., 414; McNulty v. Hurd, 72 id., 518.)

Even if cognizance could be taken of them, an account between the parties would still be necessary.

We are of the opinion, therefore, that the order of the surrogate-should be affirmed, with costs.

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

Order of surrogate affirmed, with costs.


author: Daniels, J. :

text:
    EUGENE SMITH, as Executor of the Will of RICHARD PATRICK, Deceased, Respondent, v. FREDERICKA RENTZ, Appellant.

      Evidence — when books and accounts, produced on notice and inspected, become evidence —■ the books of one dealing only in money are competent evidence of loans— checks, when evidence.

    Upon an examination before trial a party produced, under a notice requiring them, the books and papers of his testator, and the attorney for the opposite party asked leave, and was allowed, to inspect them.

      Meld,, that such books and papers, thus inspected, thereby became, at the option of the party producing them, evidence in his favor upon the trial of the action. Where books of account, kept by one dealing only in money, relate only to transactions in money, entries made in them, accompanied by the usual proof required in such cases, are competent évidence of the facts stated, to the same extent as in the case of the books of other traders.
    Where an action was brought to recover moneys paid, as alleged, by plaintiff’s testator for the benefit of the defendant, checks of the testator, given to pay what appeared to be debts of the defendant, and coincident with charges made against her in his accounts rendered, are slight but competent evidence in support of such charges.
    Appeal by the defendant Fredericlca Rentz from a judgment entered in tbe office of tbe clerk of the county of New York, on the 1st day of August, 1890, after a trial had before a referee.

      Leopold Leo, for the appellant.

      LI. B. Olosson, for the respondent.
   Daniels, J. :

The action was brought to recover an alleged balance of account for money paid out by the testator for the defendant. It was proved, to a reasonable degree of certainty, that she deposited moneys with him from time to time, and that he paid them out for taxes, repairs and other expenses for her, incurred in and about her property and the management of her household affairs. He died on the 24th of September, 1887, and for a period of years before that, he is stated, by the defendant’s witness Zimmerman, to have been at her house three or four times a week, and when persons were working there he directed them what they should do. For bills sanctioned by her lie made payments to her creditors, and the same thing took place as to other bills which were authenticated by persons performing the services and delivering materials, which were not expressly sanctioned by her. And to make definite proof of the amounts from time to time paid on her accoum, the books of the testator were produced and offered in evidence. In support of the offer, evidence was given tending to establish the facts that the testator himself kept these books, or directed the entries to be made in them, when that was done by another person, and that the books were correct, so far as other persons had settled their accounts with the testator from them. It was also proven that the plaintiff was examined as a witness on behalf of the defendant, under an order obtained by her before the trial. And on that examination the books and papers of the testator were produced in compliance with a notice, requiring them, served by the attorney for the defendant upon the plaintiff’s attorney. "When they were produced before the justice, and the examination was in progress, the defendant’s attorney asked leave to inspect them, and he was permitted to do so in compliance with his request, and did examine the ledgers and other papers. The referee after proof of these facts received the books in evidence. But, afterwards, when it was agreed that there had been no inspection of the cash-book, he struck that out as evidence, on the motion of the defendant’s counsel. It is evident, therefore, that the ledgers were retained solely because of their production under the notice and their inspection by the attorney and counsel of the defendant. The other evidence relating to the casli-book as well as the ledgers, in the final judgment of the referee, must have been considered insufficient to render the books admissible. -If it had not been, it is clear that it would not have been excluded from the case, because of the fact that it had not been inspected after it had been produced. The admissibility of the ledgers must, therefore, depend upon this production and inspection of those books.

That these facts rendered them evidence for the plaintiff has not been clearly sustained by the authorities in this State. The rule allowing books and papers to be received, after their inspection by the adverse party, was not approved by Spencer, J., in Kenny v. Clarkson (1 Johns., 385, 394), nor by the justice writing the opinion in Carradine v. Hotchkiss (120 N. Y., 608). But the point was there left undecided, as it was not important to settle it for the purposes of the decision. But in the case of Williams v. Davis (7 Civ. Pro. Rep., 282) the fact that the testator’s books were present and made the subject of reference in the course of a conversation between the executor and the defendant was held sufficient to entitle them to be used as evidence against the latter on the trial. And that authority goes far towards sustaining the ruling of the referee in this case. That production, pursuant to notice, and the subsequent inspection, would not, without further proof, entitle the party producing the books or papers to read them in evidence, was held in Withers v. Gillespy (7 Serg. & R., 10) and in Austin v. Thomson (45 N. H., 113), where a very full examination of the authorities then existing on the subject was made.

But in the later cases of Calvert v. Flower (7 C. & P., 386) the rule was so declared by Lord Denman as to entitle the evidence to be received. And the same conclusion was followed in Anderson v. Root (8 Sm. & M. [Miss.], 362), and a very decided approval of it was expressed in Jordan v. Wilkins (2 Wash. C. C., 482). The rule, as it was given in the opinion in Penobscot, etc., Company v. Lamson (4 Shep. [16 Me.], 224) is : “ That if a book or document be called for by a notice to produce it, and it be produced, the mere notice does not make it evidence, but if the party giving the notice takes and inspects it, he takes it as testimony, and it may be used if material to the issue.” And that was adopted as a correct statement of the law in the later case, before the same court, of Blake v. Russ (33 Me., 360). And the same result was reached, after a consideration of earlier eases, in Long v. Drew (114 Mass., 77). The preponderance of authority was, therefore, with the referee, and the exception to this ruling cannot be sustained.

The testator had no clerk in the sense in which that word has been used in the cases defining the proof under which the books of the party will be received as evidence. The entries made by his brother were, by the • direction of the testator when made in the cash-book, of original entry. And so were the postings made in the ledgers. And those services rendered by another will not exclude the books as evidence. (McGoldrick v. Traphagen, 88 N. Y., 334.) In all other respects the evidence brought these books within the general rule entitling them to be received as evidence. But the referee probably acted under the impression, when he rejected the cash-book, that the books were inadmissible under the established rule because the accounts were wholly of transactions in money. And in the case of Case v. Potter (8 Johns., 211), it was passingly said that the books kept by the party himself were not evidence of money lent. But the entry there was of a single transaction, being a loan of ten dollars. The question was not presented whether the books of a party kept by himself would be evidence when his business was dealing in money, as that of the testator was. If it had been, there is a probability that such books would have been held to be evidence. For the rule, broadly stated, was declared to apply “ to the regular entries of the party in the usual course of his business.” (Id., 213.) And the entries in these books were of that description. And no sound reason presents'itself requiring their exception. They were equally the books of a trader carrying on his business and keeping his accounts himself with his customers, which included others besides the defendant. And so it has already been held in Burke v. Wolf (38 N. Y. Supr. Ct., 263) and Young v. Jones (8 Iowa, 219). And the principle was applied to cash items not exceeding six dollars and sixty-seven cents in Bassett v. Spofford (11 N. H., 167). But if the books are admissible to that extent, then there is no other than an arbitrary dictum for that restriction, and they should be allowed as evidence so far as to comprehend all the entries strictly in the course of the business of the party. The necessity and reason for the latter is equally as decisive as it is in the other case. These books should all, therefore, have been retained as evidence by the referee. But as the items in the cash-book were all posted into the ledgers he did, notwithstanding the exclusion of the cash-book, have all the evidence before him'which the books cordd furnish. The ledgers were the complement of the cash-book, and as such legally forming a part of this species of evidence to be produced. (Bonnell v. Mawha, 37 N. J. L., 198.) And the defendant could not object to their use without the cash-book, as long as that book had been excluded from the evidence upon the' motion of her own counsel. The ledgers contained all that was essential, and could be intelligently acted upon as the evidence. And as the true construction of the rule will include the books of a money dealer, and these books were proved as that requires it should be done (Dooley v. Moan, 57 Hun, 535), they were evidence in the case, although their, admissibility was finally placed upon the fact of their inspection by the counsel for the defendant.

The accounts, as they have been transcribed from the ledgers, appear to have been consecutively as well as carefully entered, and they exhibited the balance found by the referee to be owing from the defendant. To subject these books to discredit, the defendant produced and proved a statement made by the testator that he had received from her the sum of $2,500, and had placed it to her ■credit on his books. And the antecedent credits contained in the accounts confirm this statement. After that he added to the statement the acknowledgment of five additional sums of $100 each, and they appear by corresponding credits to her in his accounts. This evidence, therefore, rather confirmed than disaffirmed the correctness of the books.

A further statement made by the testator, extending from the 12th of January, 1887, on the credit side, to the last of May, in the same year, and on the debit side from July 10, 1886, to April 18, 1887, was produced in evidence by the defendant. A balance in her favor of twenty-one dollars was brought down as the result ■of the items. This was commenced with a credit of $100 on the day of the last credit for the same amount on the preceding statement ; and it was probably for the reason that it was a repetition that a line had been drawn through it. But all the items on this statement formed parts of the accounts supplied by the books, which .stated a balance in the testator’s favor on the 20th of January, 1887, eight days after the first credit on the statement, of $3,951.59. It is apparent, therefore, that this was not intended as a full or ■complete statement of the condition of the accounts, but only of certain items contained in it. The accounts on the books showed a larger balance then than finally remained, and was allowed by the referee. That was fully maintained by the items, and it cannot be presumed, with any degree of probability in favor of its correctness, that the testator designed to disclaim his right to this balance by this partial and incomplete statement. It is mnch more probable that it was made and delivered to answer some special inquiry or object not now capable of being clearly developed by evidence.

A large number of checks drawn by the testator were allowed, against the objections and exceptions of the defendant’s counsel, to be given in evidence. They were undecisive evidence at the most, where they were unattended with any act on her part. But many were given to pay what appeared to ‘be her debts, and, generally, they were coincident with charges made against her. They were paid with funds subject to his order, and were admissible, certainly, to prove that these moneys had been paid out by him. To some slight extent, at least, they supported his charges, and the rulings under -which they were received cannot be held to have been erroneous.

Questions were asked of the defendant, as a witness in her own behalf, which in several instances she seems to have been competent but at first was not allowed to answer. But her evidence was after-wards received and the exceptions in that manner obviated. Proof was also given of the payment of the testator’s check for $17,100 on the purchase-price of the residence of the defendant. The sum of $15,000 of this amount was shown to have been obtained from the sale of a dwelling on Fifteenth street, which she had sold. She was asked where the residue of the money came from, and answered that it was saved money I had.” This was, on motion of the plaintiff’s counsel, stricken out And in a subsequent answer she testified that the rest was her money, and that also was stricken out on like motion. But it is not necessary very especially to discuss the regularity of these rulings, for the reason that the answers standing by themselves would have been of no advantage to the defendant. In a general sense it was her money that was paid for the place, but that this difference was, in fact, paid by her to the vendor, or placed specially with the testator for that payment, these answers did not tend to prove. If it was designed by them to create the impression that she had given the difference to the testator, and that made the full amount of his check, then it was incompetent for her to give the evidence against the plaintiff as the representative of the other party to the transaction. But in no view was the defendant injured by rejecting these answers.

A very large number of other exceptions were taken to the rulings of the referee and to his final decisions. But they do not. seem to merit special consideration, for the referee seems to have been right in his determination, which really depended upon the principles which have been applied.

The judgment should be affirmed, with costs.

Van Brunt, P. J., concurred.

Judgment affirmed, with costs.


author: Van Brunt, P. J.:

text:
    In the Matter of the NORTH RIVER BANK.

      Receiver — banking corporations — recovery of a deposit upon the ground that the• bank was insolvent when the deposit was made— proof that the receiver received the-identical -moneys — summary applications of this nature discouraged.

    Where a depositor in an insolvent banking corporation applies for an order directing its receiver to repay him moneys which were deposited therein two hours befure its failure, as alleged, upon the representation of its president that the bank was solvent, the depositor must show that the identical moneys came into the hands of the receiver.
    The practice of deciding such claims upon summary applications is to be discouraged, and the claimant should ordinarily be remitted to his action at law, wherein the receiver, as representing the creditors, may require the claim to be' established by common-law proof.
    Appeal by Francis Higgins, as receiver of the North River Bank, in the city of New York, from an order, entered in the clerk’s office-of the county of New York on the 13th day of March, 1891, requiring him, as such receiver, to pay to the petitioners in this proceeding, Thomas B. Kniffin and George W. Tooker, the sum of $533.42, with interest thereon from November 12, 1890.

      Durntn <& Hendrick, for the receiver, appellant.

      Gharles H. Johnson, for the petitioners, respondents.
   Van Brunt, P. J.:

The respondents presented a petition to the court setting out the appointment of the appellant as receiver of the North River Bank, a domestic corporation ; that they had kept an account in said bank for several years, and that on the 12th of November, 1890, they sent, by their bookkeeper, a note to the president of the bank and the sum of $533.42 to be deposited in case a favorable answer to said note was received. That by said note inquiry was made as to the truth of certain rumors affecting the solvency of said bank, and the bookkeeper, upon being assured of the solvency of the bank, deposited said sum of money between 12.30 and 1 o’clock p. m. of that day; that on the same day, at 2.15 p. m., the bank closed its doors and was insolvent and demanded that the court should order a repayment of said sum of money by the receiver.

This petition was supported by the affidavit of the bookkeeper, wherein he states that the president assured him of the solvency of the bank, and that, relying upon such assurance, he deposited the said sum of money with the bank. The receiver, in opposition to the motion, produced the affidavit of the president of the bank denying any recollection of any inquiry by the bookkeeper of the petitioners ■as to the solvency of the bank, and stating that if he did represent the bank to be solvent that he did so in good faith, without any fraudulent intent. The court granted the motion, and from the order thereupon entered this appeal is taken. The court below seems to have granted the motion upon the authority of Cragie v. Hadley (99 N. Y., 131). "We think that upon an examination of that case it will be seen that, even if for no other reason, the motion should have been denied because one of the elements stated to be essential by that case was absent in the case at bar. The amount deposited by the petitioners had gone into the general funds of the bank; there is no proof that it ever reached the hands of the receiver and there is no proof but that it has lost its identity. There is no pretense that any particular $533.42 which came into the hands of the receiver was the $533.42 deposited by the plaintiffs; non constat, but that it may have been paid out during the one to two hours that the bank was doing its business.

Unless the money can be traced the petitioners could claim no preference: But beyond that we do not think that preferences of this kind should be established in this summary way. The party should be remitted to his action, upon the trial of which the witnesses ■could be duly examined and cross-examined, and the truth of the ■claim should bo established in the ordinary way. It is true that the receiver is an officer of tbe court, and in tbe disposition of the funds in his hands is subject to the order of the court, but he also represents the creditors of the corporation, and they should not be deprived of the right of having claims, which may have seriously affected them, established by common-law proof. This summary proceeding has been too often resorted to to establish priorities of claims which would not for a moment stand the test of investigation in open court.

"We think, therefore, that the order was improperly granted and should be reversed, with ten dollars costs and disbursements and the motion denied, with leave to the petitioners to bring an action to establish the claim made herein.

Daniels, J., concurred.

Order reversed, with ten dollars costs and disbursements, and the motion denied, with leave to the petitioners to bring an action to establish the claim made therein.


text:
    ANNIE M. DELANEY, Plaintiff, v. ANNIE A. McGUIRE Respondent, Impleaded with JAMES SMYTH and Others, Appellants.

      Will — devise by implication.

    The will of a testatrix devised certain premises to a trustee, with directions to use-the income thereof during the minority of her niece, to pay interest upon a mortgage, taxes and repairs; and further provided as follows: “ And, after paying said charges, to use the balance, if any there should be, for the support, maintenance and education of my said neice; but in case my said niece should die before the age of twenty-one years, without lawful issue, and should not, at the time of her death, have lawful issue, then I give the said house and lot to my lawful heirs.” The niece was of age and unmarried.

      Held,, that there was no devise of the fee by implication to the niece upon her reaching her majority.
    That the testatrix intended that the niece should have a life estate in the property, and that, if she left issue her surviving, she should have the right to dispose of such property, but failing this that it would pass upon her death to the lawful issue of the testatrix.

      Appeal by the defendants, James Smith, or Smyth, Jane Smith, or Smyth, and by Stephen B. Porter, their guardian ad Utem, from .an order, entered in the office of the clerk of the county of New York on the 16th day of March, 1891, so far as the same adjudges the fund in question in this action to be the property of the respondent Annie A. McGuire, and overrules exceptions taken by .said appellants to the referee’s report, and denies the right of said .appellants to share in said fund.

      Hamilton B. Squier, for the appellants.

      William J. lardner, for the respondent.
   Yan Brunt, P. J.:

This proceeding was to ascertain the priorities of lien upon certain surplus moneys arising from the sale under foreclosure of a house and lot No. 125 East Seventy-third street, in the city of New York, which was owned by one Margaret B. Duffy at the time of her death. The said Margaret died on the 14th day of March, 1882, leaving a last will and testament which was duly proved before the surrogate of the county of New York, and letters ■testamentary issued therein to one James Boyle, the father of the testatrix. In September, 1883, the said Boyle died, and thereafter, on February, 1884, letters of administration, with the will annexed, were duly issued to one Thomas Smyth, the brother-in-law of the testatrix. At the time of these proceedings the respondent Annie A. McGuire, and Jane Smyth and James Smyth, infants, were the only lieirs-at-law and next of kin of the testatrix, and said infants claim a share in said surplus moneys, the whole balance of which has been, by the order appealed from, awarded to the said Annie A. McGuire. The claims above mentioned arise under the said will of Margaret B. Duffy, which is, so far as it affects this controversy, ■as follows:

First. That I hereby direct my executor hereinafter named to pay all my just debts, funeral expenses and testamentary charges •as soon after my decease as the same can be done.

Second. I hereby give, devise and bequeath unto James Boyle, as trustee of my niece Annie McGuire, my house and lot of land situated on the northerly side of Seventy-third street, between Lexingtou and Fourth avenues, and now known by the street number one hundred and twenty-five East Seventy-third street, in the city of New York, to use the income thereof during the minority of my said niece, to pay the interest on the mortgage now on said property, and the taxes, insurance, water rents and repairs necessary on said premises, and after paying said charges to use the balance, if any there should be, for the support, maintenance and education of my said niece, but in case my said niece should die before the age of twenty-one years without lawful issue, and should not at the time of her death have lawful issue, then I give the said house and lot to my lawful heirs. I hereby authorize aud empower the aforesaid trustee of my said niece to sell and convey, by good and lawful deed, the house and lot, if in his judgment it will be for the best interest of my said niece at any time, for all cash, or part cash and part mortgage. And I hereby authorize and empower him to mortgage or lease the said house and lot as such trustee, if needful or necessary in his judgment, at any time. If the said trustee should exercise the power of sale contained herein as to the said house and lot, the same may be at public auction or private sale.

Third. I hereby authorize, empower and direct my executor, hereinafter named, to sell and convey by good and lawful deed or deeds all the rest, residue and remainder of my real estate at public or private sale as soon after my death as the same can be done for cash or part cash, and part on bond and mortgage may remain as shall be agreed upon, the same to remain at lawful interest, and the proceeds of the sale of such real estate shall be invested by my executor in good real estate in the city of New York, and the income thereof used for the support of my father and the support, maintenance and education of my niece Jane Smith, my nephew James Smith and my niece Annie McGuire; and my executor here-' inafter named is hereby appointed trustee to receive and disburse the said income and invest the said principal.

It is urged, upon the part of the appellants, that by the second clause of the will Annie McGuire only took an estate during her minority in the premises, out of which the surplus proceedings arose; and it is claimed by the respondent, and was so reported by the referee, that upon her arrival at twenty-one years of age she became seized and possessed in fee simple of the premises in question.

There are no words of gift to Annie McGuire contained in the. clause in question, but it is claimed that it was the manifest intention of the testatrix to give these premises to her upon her attaining the age of twenty-one years, and, therefore, she takes by implication. And we are cited to various cases in English courts and in our own, going to show that such construction is correct.

An examination of these cases, however, will show that in all of them there was some plain indication of an intention that the devisee should enjoy the whole estate. The latest case in our courts, upon this subject is Masterson v. Townshend et al. (123 N Y., 462) where it was held that there was a devise by implication. In that case the will contained a power of sale with a direction to pay, upon the happening of a certain contingency, the whole of the proceeds to the person to whom it was held there was a devise by implication. It was the plain intention that the party should take absolutely upon the happening of the contingeney, and although there were no express words of gift except upon a sale, it was held that a gift was plainly intended.

In the case at bar there is not only no intention expressed of an absolute gift, but the language of the will expressly excludes such ail intention.

The testatrix gives the premises in question to his executor as. trustee of her niece, Annie McGuire, to use the income during the minority of her niece in the manner specified, and then says: “But in case my said niece should die before the age of twenty-one years without lawful issue, and should not., at the time of her death, have lawful issue, then I give the said house and lot to my lawful heirs.”' The said niece has arrived at the age of twenty-one years and is unmarried. It is plain that the time of death intended by the testatrix did not mean death during her lifetime, because the language is inapplicable to any such construction. Death at any time before twenty-one years, of age, without lawful issue, gave the estate to the lawful heirs of the testatrix. The testatrix intended evidently that Annie McGuire , should, during her life, have the use of this property, and upon her death it would go to her children, if she left any; if not, it was to go to the heirs of the testatrix. This construction, it seems to us, is reinforced by the clause of the will next occurring after the provision referring to death during her minority; it says: “and should not, at the time of her death, have lawful issue, then I give,” etc. If the word “or” is substituted for the word “and” the meaning at once becomes apparent, and such was undoubtedly the intention of the testatrix. If she should die during minority without lawful issue, or should not at the time of her death, whenever it might occur, leave lawful issue her surviving, then the estate would go to. the lawful heirs of the testatrix. This shows an intention upon the part of the testatrix that Annie McGuire should enjoy this estate during her life, and if she left issue her surviving, that she should have the right to dispose of the same as she saw fit; but if she died, without lawful issue her surviving, she could' only enjoy the estate-during her life, it going upon her death to the lawful issue of the testatrix.

This interpretation is in harmony with the views expressed by the court of last resort in the case of Matter of New York, Lake Erie and Western Railroad Company (105 N. Y., 89). If the referee had seen that Rule 64 of the General Rules of Practice had been complied with, as was his duty, and had required certificates of the clerk as to the apjiearances in the action and notice of claim to-the surplus moneys and proof of service of notice of the proceedings-before him upon such persons, so that we could have seen that the proper parties had received notice of these proceedings, we might now make the proper order distributing this surplus; but as no attention seems to have been paid to the requirements of the rules as to notice, we can simply reverse the order appealed from, with ten dollars costs and disbursements, and remit the proceeding to the-Special Term for further action, where it is to be hoped that it will be seen to, that the proper evidence is produced that the parties entitled to notice have received the same. This result to be, however, without prejudice to the right of Patrick J. Lynch to claim payment of his debt out of the surplus, upon such proof as would charge the heir with the payment of this debt because of receipt of assets.

Daniels and Lawrence, JJ., concurred.

Order reversed, with ten dollars cost and disbursements, and proceedings remitted to the Special Term for further action.


author: Wan Brunt, JP. J.:

text:
    In the Matter of the Application of JAMES BROWN, Appellant, for a Writ of Mandamus, v. JAMES C. DUANE, as President of the BOARD OF AQUEDUCT COMMISSIONERS OF THE CITY OF NEW YORK and Others, Respondents.

      Mandamus — not a proper remedy for an anticipated injury — judicial notice of the acts of the Croton Aqueduct Commissioners — method of selecting employees prescribed by the Croton Aqueduct Act not repealed by section 40, chapter 490, Laws of 1883; chapter 312, Laws of 1884; chapter 464, Laws of 1887.
    The office of a wilt of mandmnus is not to redress an anticipated wrong, but to remedy one which has been already suffered.

      It is not a ground for the issuing of a writ of mandamus that an honorably discharged soldier of the war of the rebellion, in office under the Croton Aqueduct Commissioners of the City of New York, who propose to abolish his grade, is not permitted to compete for entrance into a higher grade whose creation is contemplated.
    The court will not take judicial notice of the proceedings of the Board of Aqueduct Commissioners of the City of New York.

      Semble, that where the legislature passes an act (the Croton Aqueduct Act, § 40, chap. 490, Laws of 1883) relative to a particular public work, and the qualifications of persons employed thereon, such act will not be deemed repealed by implication by the passage of a general act giving precedence, in the matter of ■appointment to office in this State, to honorably discharged Union soldiers and sailors.
    Appeal by the petitioner, James Brown, from an order made at the New York Special Term, and entered in the office of the clerk •of the connty of New York on the 11th day of January, 1891, ■denying a motion for a peremptory mandamus.

      Roger Foster, for the petitioner, appellant.

      I). J. Fern., for Aqueduct Commissioners and others, respondents.
   Wan Brunt, JP. J.:

This application was founded upon a verified petition, in which the appellant alleges that lie was an honorably discharged Union soldier; that he was a practical mason, and that on or about the 18th day of July, 1888, lie was appointed to the position of inspector of masonry upon the new Croton aqueduct, having, prior to the appointment, passed the civil service examination; that after such appointment he entered upon the duties of such inspector and has ever since performed such duties, and is now engaged therein; that in July, 1889, the aqueduct commissioners passed resolutions that the office or grade of superintendent of dam construction be created, to rank next above inspectors of masonry, and that it should be the duty of such superintendent to superintend the construction of all dams, subject to the order and instruction of the chief engineer, etc.; and such resolution requested the chief engineer to prepare rules for the guidance and instruction of the superintendents of dams, and requested the civil service board to make provision for the examination of candidates for appointment or promotion to the grade named, and further provided that before any person should be appointed as superintendent he should pass a special examination under the direction of the chief engineer of the commission, in addition to the examination of the civil service boardthat pursuant to said resolution, on notification from the commissioners, twenty-nine persons were permitted to appear before the civil service board at an examination held at the request of the aqueduct commissioners; that only five of such persons were honorably discharged Union soldiers holding office or employment under said commissioners, and the petitioner was not one of the persons thus notified and examined; that eleven honorably discharged soldiers and sailors, including th¿ appellant, who were then in the employ of the commissioners, were excluded from such examination; that such examination was not held in accordance with the rules of the civil service board: and that no one except persons authorized by the commissioners were allowed to be examined; that the commissioners are about to appoint a certain number of superintendents of construction of dams, and that all the work upon the construction of the aqueduct, except the construction of dams and reservoirs, is nearly completed and will be completed in a very short time; and that the appellant and such'other inspectors as are not appointed superintendents of construction of dams will thereupon be discharged from employment when no work other than the construction of dams and reservoirs remains to be done; and that the duties of superintendent of dam construction are the same as those performed by the appellant as inspector of masonry.

The answer of the commissioners alleges that thirty-two inspectors had been notified and permitted to be examined before the civil service board for promotion to the grade of superintendent of dams, and they aver that all of such inspectors were then holding office under the commissioners, and not discharged for misconduct, and they admit that only those who were certified were examined by the civil service board. They deny the failure to comply with the rules of the civil service board; and they admit that the work upon the construction of the aqueduct, except the construction of dams and reservoirs, is nearly completed, and aver that the duties of superintendent of construction of dams require more experience and knowledge of all that pertains to hydraulic masonry than is required to be possessed by inspectors of masonry.

It further appears that the appellant was not certified for examination, and never applied to the Board of Aqueduct Commissioners for certification for examination by the civil service board; nor has the appellant ever applied to the commissioners for the position of superintendent of construction of dams, and no official action has been taken with respect to the abolition of the force of inspectors of masonry on the new Croton aqueduct.

The affidavit of the secretary of the civil service board is to the effect that the examination was held in accordance with the rules of the board in relation to promotion. Upon this state of facts the motion of the appellant was denied, and from the order thereupon entered this appeal is taken.

It appears from the facts upon this application that the appellant is asking for a mandamus against the Board of Aqueduct Commissioners in anticipation of the cessation of the work in which he is at present employed, and that in view of such cessation he desires to be appointed to another position.

Now, it has been determined In re McGuire (50 Hun, 203) that the provisions of the civil service law do not apply to promotions, and that they only apply to original appointments. The appellant, therefore, being in the employ of the commission, the requirements ' of the civil service law have been complied with; and although it is claimed by the appellant that such employment will soon cease, until tliat event happens it is clear that lie has no standing in court. The office of a mandamus is not to redress an anticipated evil or wrong, but can be only invoked to remedy a wrong which has been suffered.

This is a principle which has been repeatedly asserted in applications for mandamus, and in actions brought to reinstate parties in various organizations, or to prevent a threatened expulsion from such organization, in which eases it has been repeatedly held that until the wrong has been suffered the court cannot intervene. (Thomas v. Musical Protective Union, 121 N. Y., 45.)

The court below, therefore, if for no other reason, was right in denying the application of the appellant because he was in the employment of the Croton Aqueduct Board at the time of the application, and was not entitled, as matter of right, under any circumstances, to be appointed to another position at his will.

It might not be necessary to say anything further upon this point, in the disposition of this case, were it not for the claim made by the appellant that the court should take judicial notice that the Croton Aqueduct Board have, since the initiation of these proceedings, abolished the office of inspector of masonry, there being no further duties for officers of that character to perform.

We are not aware that the proceedings of the Croton Aqueduct Board are of that dignity which authorizes the court to take judicial notice thereof. Consequently, in the disposition of this application, that fact cannot be considered by the court. But, even if it were, it would make.no difference in the position of the appellant. By section 40 of chapter 490 of the Laws of .1883, it was provided as follows:

“No person shall be appointed by the said aqueduct commissioners as inspector or superintendent, who shall not be certified by at least three members of the commissioners to be competent and fit for the duties of the position for which he is an applicant, and experienced in the subject-matter of the employment.”

There is no pretension that there has been a compliance with this provision of the law. But it is urged, upon the part of the appellant, that this provision has been superseded by the civil service act, which provides that, in every public department and upon all public works in the State of. New York, and all cities, towns and villages thereof, and also in non-competitive examinations under the civil service laws, rules and regulations of the same, wherever they apply, honorably discharged Union soldiers and sailors shall be preferred for appointment or employment; and that thus the provisions of the act above referred to have been repealed.

It does not seem to us that this position can be maintained. The act first referred to was a special act intended to provide for a particular work in respect to which the legislative regulations were particular and precise.

It is a familiar rule of construction that where a general act conflicts with a special act the special act is not to be deemed repealed by implication. Applying this rule to the statutes in question, it will be clear that the provisions of the Croton aqueduct act in regard to the appointment of inspectors and superintendents cannot be deemed to be repealed by the civil service act.

There is no such intention manifested in the civil service act that, in appointments -of this character, which were considered of such importance as to require at least three members of the commission to certify to the competency of the applicant, that such safeguards should be repealed by its general language.

It is undoubtedly true that those persons who were certified by the members of the commission as competent and fit for the duties of the position must also undergo a civil service examination. But it is equally clear that it was the plain intention of the legislature that no person should have the responsible position of inspector or superintendent without making at least a moiety of the commission personally responsible for his appointment. They are required to certify that the applicant is competent and fit for the duties of the ofiice and experienced in the subject-matter of the employment, and the responsibility is thus placed upon them for the quality of appointees of this class.

The statute is peculiar in its language in relation to these pai’ticu. lar appointees, the responsibility of the position being thereby expressly recognized, and the necessity of more than ordinary care in making appointments being manifested.

It seems to us it would be straining the view of a repeal by implication to assume that, after the legislature had established such safeguards against the abuse of the appointing power in reference to appointments of this important character, it should have intended to place these appointments upon the same level as all others to which the civil service act could apply.

Upon the whole case, therefore, it seems to us that the application for mcmdamus was properly denied, and that the order should be affirmed, with costs.

Daniels, J., concurred.

Order affirmed, with costs.


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    BERNHARD COHEN and Another, Appellants, v. EZEKIEL PLONSKY and AARON ANSPACH, Respondents

      Fraud — assignment by a debtor for value — creditors’ action to set it aside — sufficiency-of the complaint.

    In an action brought to set aside an assignment, for value, of bills receivable, made, as alleged, by the defendant Anspach to the defendant Plonsky with intent to-hinder, delay and defraud the creditors of Anspach, the complaint alleged that Anspach was largelyinsolvent; that, in addition to the said assignment to Plonsky he, about the same time, assigned all his other bills receivable, and confessed judgments, and also executed to the partner of Plonsky a second mortgage upon certain property; that executions were issued upon the judgments which, in connection with the assignments, exhausted all the property of Anspach and left him still indebted to creditors in the sum of $75,000; that Plonsky realized upon the bills receivable more than he had paid for the demand against Anspach, to pay which they were assigned, and had shared this profit with Anspach.

      Held, that it was error to dismiss the complaint upon the ground that it did not state a cause of action.
    That such a dismissal presupposed that there was no question for the jury, whereas, in this case, conceding that the demand purchased by Plonsky was valid, it could not be said that the facts would not justify a finding by the jury that the assignment of the bills receivable was made to defraud creditors, and there was, therefore, a question of fraud to be considered by the jury.
    Appeal by the plaintiffs Bernard Cohen and Isidore Sonnenthal,. copartners doing business under the firm name of Charles Semon & Co., from a judgment, entered in the clerk’s office of the county of New York on the 30th day of January, 1891, dismissing the complaint after a trial by the court at the New York Special Term; also-from a judgment, entered in said clerk’s office on the 16th day of February, 1891, in favor of the defendant Aaron Anspacli for •seventy-nine dollars and ten cents costs, and in favor of the defendant Ezekiel Plonsky for eiglity-one dollars and eighty-five cents costs.

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

      M. Wailey Platzek and Blumenstiél <& Hirsch, for the respondents.
   Daniels, J.:

The plaintiffs recovered judgment against the defendant Aaron Anspach, upon which an execution, issued to the sheriff of the •county in which he resided, against his property, had been returned unsatisfied. This action was then brought to set aside an assignment of bills receivable to the amount of $5,429.58, made by the judgment-debtor to the other defendant in the action. It was charged in the complaint that this assignment was made with intent to hinder, delay and defraud the creditors of the debtor. This was •denied by the answers of the defendants.

When the trial was brought on, a motion was made by the defendants to dismiss the complaint, on the ground that no cause of action was therein alleged. And the justice presiding stated that he did not think that the complaint stated a cause of action. But as it was alleged that the assignment of the bills receivable was made and received with the intent to hinder, delay and defraud creditors, this was probably a misapprehension of its effect. (Billings v. Russell, 101 N. Y., 226.) But the action was not disposed of on that motion. And the plaintiffs’ counsel then made a full statement of his case, and, in compliance with his request, he was allowed to amend his complaint by stating in it what he expected to be able to prove. And that was that the debtor was insolvent to a large amount; that on the same day this assignment was made he made another for about $5,000 of accounts; that on the same day he executed another assignment of accounts, amounting to about the sum of $1,800, to the firm of which the other defendant was a member, and> confessed two judgments amounting together to about $6,500. And two days before these assignments and confessions of judgments he also executed to the partner of the other defendant a second mortgage on his property for the sum of $5,000. Executions were issued on the confessed judgments, upon which there was collected the sum of a little over $2,500. By these assignments and the sales under the executions, all the property of the debtor was disposed of, leaving unsatisfied judgments against him of upwards of $75,000. It was also proposed to be proved that the defendant Plonsky received the assignment to him for a demand of $5,300, which he purchased against the debtor for $4,000. That he received on the bills assigned to him more that he paid for the demand against the debtor, which he bought, and that part of this profit was turned over to the debtor. The court considered these facts insufficient to maintain the action, and dismissed the complaint. It was held that no cause of action was shown against the defendants. And the plaintiffs counsel excepted to the decision.

The legal effect of what, in this manner, took place was that there was no question of fraud presented, or which could be inferred by the court from the case the counsel offered to prove. And that is the nature of the order entered on which the judgment was recovered. If, by any view of the proof offered, the action could be maintained, then the dismissal was erroneous. The dismissal as it was ordered was the same as a nonsuit at the circuit, which cannot be sustained when the evidence presents a question of fact for the jury. It has that effect, and no other, when it becomes the subject of review upon an appeal. (Scofield v. Hernandez, 47 N. Y., 313; Van Derlip v. Keyser, 68 id., 443; Rousseau v. Bleau, 8 N. Y. Supp., 823; Noyes v. Morris, 56 Hun, 501, 506.)

The question, therefore, arises whether the court could not infer from this offer of proof, even though the demand purchased by Plonsky was a valid debt, that the assignment was made of the bills payable by the debtor to him, with the intent to hinder, delay and defraud the other creditors of the debtor, as that was sufficiently alleged in the complaint. It is not requisite that the proof offered should absolutely require that conclusion to be adopted, but the inquiry is whether that might not fairly be done.

The case disclosed is that of a person in business, who proves to be insolvent in nearly the sum of ninety thousand dollars, at the same time and after mortgaging his property transferring by assignments his bills receivable and accounts to three different parties, and confessing two judgments, under the executions on which all his other property was sold, realizing but little over fifteen hundred dollars, and sharing with the assignee the profits secured by the assignment in controversy. It would probably do no violence to these facts, unexplained, to infer that the assignment of the bills receivable -was both made and received with intent to defraud the creditors of the assignor. The facts carefully weighed and considered would sustain that conclusion. -It is not necessary that they shall certainly require it to be drawn, but that they will sustain it by close and careful scrutiny as a fair and rational result. And as the proffered evidence was sufficient for that object, a dismissal of the complaint, without considering the effect which, as a matter of fact,' could be given to the offered proof, was erroneous.

The question arising does not dejiend upon chapter 503 of the Laws of 1887 forbidding preferences of more than one-third of the assets of an insolvent debtor. To present a case under that act, the other assignees, and the plaintiffs in the confessed judgment, should have been made parties, for without them the court would not be at liberty to consider and decide whether this act had been violated. That was not the plaintiffs’ case, but it was that the assignment of the bills payable was fraudulent, and that is all there was of the plaintiffs’ action; upon that they were entitled to have their proofs received and deliberated upon by the court to ascertain whether this alleged fraud had been maintained.

That was not done, and the judgment should be reversed and a new trial ordered, with costs to the plaintiffs to abide the result.

Yan Brunt, P- J., and Lawrence J., concurred.

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


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THOMAS CECIL, Appellant, v. THE BELLEVUE HOSPITAL MEDICAL COLLEGE OF THE CITY OF NEW YORK, OF THE STATE OF NEW YORK, Respondent.

      Medical college — an arbitrary refusal of a degree to a student who has complied with the terms stated in its circulars is improper — mandamus is the proper remedy.

    A medical college, incorporated under tlie Laws of the State of New York for the purpose of giving instruction in medicine, issued a circular specifying the fees to be paid by students; their course of study and the qualifications they must possess to entitle them to the degree of doctor of medicine.
    A student, who entered the college for the purpose of taking a regular course of study and procuring the degree of doctor of medicine, completed the course of study, having fulfilled all the conditions entitling him to present himself for final examination. The college refused to allow him to pass the final examination or to give him a' degree, and assigned no reason for such refusal.

      Held, that the circular issued and the matriculation of the student thereunder constituted a contract between him and the college; and that, upon complying with its terms, he was entitled to his degree.
    That an arbitrary refusal to give the degree was unjustifiable, and that the proper remedy of the student aggrieved was by mandamus.

    Appeal by the relator, Thomas Cecil, from an order, entered in the clerk’s office of the county of New York on the 24th day of April, 1891, denying his motion for a writ of mandamus to compel the officers of the defendant to permit him to he examined upon his final examination, and if found duly qualified to permit him to graduate and to give him the degree of doctor of medicine.

      Seaman Miller, for the appellant.

      Allen MeOulloh, for the respondent.
   Van Brunt, P. J.:

The respondent is a medical college, duly incorporated under the laws of the State of New York for the purpose of giving instructions in medicine, and, by its circular? issued, it specifies the fees which are to be paid by students, their course of study and the qualifications which they must possess in order to entitle them to the ■degree of doctor of medicine.

The relator entered said college for the purpose of taking the regular course of study in that institution and procuring the decree •of doctor of medicine. At the end of such course, and having fulfilled all the conditions entitling him to present himself for final ■examination, he was informed by the secretary of the faculty that he would not be allowed to present himself for final examination, nor would said corporation grant him the degree of doctor of medicine.

In answer to this application the respondent presents no ground whatever for its action, but insists that it has the right arbitrarily, without any cause, to refuse the relator his examination and degree.

It seems to us clear that such a position cannot for a moment be entertained. The circulars of the respondent indicate the terms upon which students will be received, and the rights which they were to acquire by reason of their compliance with the rules and regulations of the college in respect to qualifications, conduct, etc. 'When a student matriculates under such circumstances, it is a contract between the college and himself that if he complies with the terms therein prescribed he shall have the degree, which is the eiid to be obtained. This corporation cannot take the money of a student, allow him to remain and waste his time (because it would be a waste of time if he cannot get a degree), and then arbitrarily refuse, when he has completed his term of study, to confer upon him that which they have promised, namely, the degree of doctor of medicine which authorizes him to practice that so-called science.

It may be true that this court will not review the discretion of the corporation in the refusal, for any reason or cause, to permit a ■student to be examined and receive a decree : but where there is an absolute and arbitrary refusal, there is no exercise of discretion. It. is nothing but a willful violation of the duties which they have assumed.

Such a position could never receive the sanction of a court in which even the semblance of justice was attempted to be administered.

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

Daniels, J., concurred.

Order reversed, with ten dollars costs and disbursements.