author: Dykman, J.: Pratt, J.

text:
    John P. Handshaw, Appellant, v. John S. Arthur, Respondent

      Courts of Justices of the Peace — confined strictly to the authority conferred u/pon them — when acts of a justice in adjourning a case are mid and when midahle — in what case a justice is personally liable for the consequences of his acts.

    Courts of Justices of the Peace are courts of inferior and limited jurisdiction. They are confined strictly to the authority conferred upon them and can take nothing by implication.
    Where a justice of the peace has jurisdiction, but errs in its exercise, his acts are not void, but voidable only, and he incurs no personal liability therefor. Where, however, a justice of the peace has no jurisdiction whatever and undertakes to act, his acts are coram nonjudice and void and render him personally liable for their consequences.
    An action was commenced in a Court of a Justice of the Peace by the issuance of a summons. On the return day of the summons the attorney for the plaintiff appeared before the justice with a letter from the defendant, addressed to the justice, in which the defendant demanded a jury trial and requested the justice to adjourn the case until the fifth day of May. In accordance with the demand the justice drew a jury and issued a venire summoning the jury to appear on the fifth day of May, and adjourned the case to that day. The jury was not summoned owing to the neglect of the constable to whom the venire was delivered. The attorney for the plaintiff, having learned that the constable had failed to summon the jury, requested the justice to draw another jury, which the j ustice did on May fourth, and issued a venire therefor, returnable on the tenth day of May, and adjourned the case to that day. On May fifth neither of the paities appeared. On May tenth the plaintiff appeared with his counsel; the defendant did not appear. Judgment was rendered and docketed in favor of the plaintiff for the full amount of his claim. Execution was thereafter issued under which a levy was made upon certain personal property belonging to the defendant in that action and the property was sold.
    In the present action, brought by the defendant in the action before the justice of the peace, against the justice to recover damages for issuing the execution under which the levy and sale were made,

      Held., that the plaintiff in the previous action before the justice having failed to appear on May fifth, the day to which the case had been adjourned for trial, the action was unequivocally discontinued; that the justice had no jurisdiction to exercise in relation to the adjournment which he made in the absence of the parties, and that he -was liable to the plaintiff [the defendant in the previous action before him] for the damages sustained.
    Pratt, J., dissenting.
    Appeal by the plaintiff, Jolm P. Handsbaw, from a judgment of tlie County Court of the county of Suffolk, entered in the office of the clerk of the county of Suffolk on the 17th day of December, 1894, upon the dismissal of the complaint directed by the court after a trial before the court and a jury.

      Livingston Smith, for the appellant.

      Ackerly & Miles, for the respondent.
   Dykman, J.:

The defendant,- John S. Arthur, is a justice of the peace of the town of Smithtown,' in Suffolk" county, and on the 21st day of April, 1894, Charles 0. L’Hommedieu commenced an action before the defendant as such justice of the peace against John B. Handshaw, the plaintiff in this action, to recover twenty-eight dollars and fortv cents which he claimed Handshaw owed him. The summons in that action was signed on that day by the defendant Arthur and the same was made returnable on the 28th day of April,, 1894. It was delivered to the constable on the day it was signed,, and it was duly served on Handshaw on the same day by the constable, who made his return thereon to Justice Arthur before the return day thereof in the manner prescribed by law.

On the return day of the summons the attorney for the plaintiff L’Hommedieu appeared before Justice Arthur with a letter from • Handshaw addressed to Justice Arthur, in which Handshaw demanded a jury trial, and requested Justice Arthur to adjourn the case until May 5, 1894.

In accordance with the demand of Handshaw, Justice Arthur drew a jury and issued the venire summoning the jury to appear on the 5th day of May, 1894, and adjourned the case to that day.

In consequence of the neglect of the constable to whom the venire was delivered, the jury was not summoned and did not appear on the fifth day of May, and neither of the parties, either the plaintiff or the defendant, appeared on that day. When the lawyer for the plaintiff learned that the constable had failed to summon the jury, he called on Justice Arthur on Friday, May fourth, and told the justice that it would be necessary to summon another jury. The justice expressed some doubts to the lawyer as to the legality of the procedure, but finally yielded to his demands and drew another jury and issued a venire therefor returnable on the 10th day of May, 1894, and adjourned the caseto that day. The constable summoned the second jury, and on the tenth day of May the jury appeared, together with the plaintiff, L’Hominedieu and his counsel. The defendant Handshaw did not appear.

The jury was then drawn, and after hearing the evidence for the plaintiff returned a verdict in his favor for twenty-eight dollars and forty cents, the full amount of his claim against the defendant. The judgment was docketed by Justice Arthur, and in a short time thereafter, on demand of the attorney for the plaintiff, Justice Arthur issued an execution thereon under which the constable thereafter levied upon and sold certain articles of personal property belonging to the defendant Handshaw.

This action was then brought by Handshaw against the justice of the peace, Arthur, to recover damages for issuing the execution under which the levy and sale was made. The action was first tiled on the 28th day of June, 1894, before a justice of the peace and a jury, and the jury rendered a verdict for the defendant. Hand-shaw then appealed for a new trial to the County Court of Suffolk county, and the same was brought on for trial at the County Court on the 31st day of December, 1894, before the county judge and a jury, and after hearing the evidence the plaintiff was nonsuited and judgment dismissing the complaint was thereafter entered. From that judgment the plaintiff Handshaw appeals to this court.

Courts of Justices of the Peace are courts of inferior and limited jurisdiction and do not proceed according to the course of the common law.

They are confined strictly to the authority conferred upon them and can take nothing by implication. Such was the rule previous to the Code of Civil Procedure, and now the rule has been embodied in the Code by section 2861, as follows: A justice of the peace has such jurisdiction in civil actions and special proceedings as is specially conferred upon him by statute, and no other.” When they have jurisdiction their errors and irregularities cannot be reviewed collaterally, but if they proceed without jurisdiction over the person then their proceedings and judgments are void.

It was also settled in this State before the Code, that where the plaintiff failed to appear upon the return of the process, or upon the day to which the case had been adjourned for trial, the action was unequivocally discontinued, and the parties stood as if the same had never been commenced. (Wailing v. Toll, 9 Johns. 141; Hubbard v. Spencer, 15 id. 244.)

That rule has also been codified and is contained in section 3013 of the Code in this language: Judgment of nonsuit, with costs, must be rendered against a plaintiff prosecuting an action before a justice of the peace in either of the following cases: * * * (2) If he fails to appear within one hour after the summons is returnable, or within one hour after the time to which the trial has been adjourned.” When, therefore, the plaintiff failed to appear on the fifth day of May, the time to which the trial of that action had been adjourned, the jurisdiction of the justice over the parties ceased and he was then required by the peremptory demand of the statute to render judgment of nonsuit against the plaintiff, with costs. He retained control of the case for no other purpose. The failure of the plaintiff to appear on the adjourned day deprived the justice of jurisdiction over tlie defendant, and the adjournment of the case and the subsequent proceedings thereon were without jurisdiction and void. They were more than erroneous. The distinction is this : Where the justice of the peace has jurisdiction, but errs in its exercise, then his acts are not void but voidable only, and he incurs no personal liability therefor. But where he has no jurisdiction whatever, and then undertakes to act, his acts are cor mi non jiodice and void and render him personally liable for their consequences. (Butler v. Potter, 17 Johns. 145.)

It is very true that the defendant, as justice of the peace in the original suit, acquired jurisdiction of the parties down to the fifth day of May, but did lie have any jurisdiction or discretion over the question of adjournment ? If he did then the adjournment made by him on that day is only an error in judgment, and it is contrary to established principles to impose personal liability for a judicial act.

But reflection has conducted me to the conclusion that he had no-jurisdiction to exercise in relation to the adjournment which he made in the absence'of the parties on the fifth day of May. The plaintiff then failed to appear within one hour after the time to which the trial had been adjourned, and in that- case the statute commanded the justice to render judgment of nonsuit against the plaintiff, with costs; he had no power to do more or otherwise. "When, therefore, lie undertook to adjourn the case upon his own motion he exceeded his authority and jurisdiction. The conclusion seems to be inevitable, and we cannot vary general rules of law or refuse to apply them to meet extraordinary cases.

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

Brown, P. J., concurred.

Pratt, J.

(dissenting):

It is conceded that on May fifth, when the parties failed to appear, the justice should have entered a judgment of nonsuit. Mistaking his duty, he adjourned the cause on his own motion to May tenth. Of that adjournment both parties had notice, the plaintiff’s attorney giving notice to the defendant. On the adjourned day the plaintiff appeared, and in the absence of defendant proved his case; judgment was entered, execution issued, property sold, and the justice is now sued in trespass.

There was, obviously, no intentional injustice, and we think it clear that the action complained of was judicial in its character, for which the justice is not responsible in damages. (Lange v. Benedict, 73 N. Y. 12.)

The error was in failing to give a proper judgment. The remedy was by appeal.

The judgment should be affirmed, with costs.

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


source: Caselaw Access Project

author: Dykman, J.:

license: Public Domain

text:
    Thomas H. Lewis, Respondent, v. Emily N. Cook and Others, Appellants, Impleaded with Others.

      Probate of will — time of commencement of an action under § 2658» of Oode of Civil Procedure — •applies to all mils proved after Us passage.

    In an action brought to determine the validity of tlie probate of a will, under section 2653a of the Code of Civil Procedure, the defendants alleged as a defense that the action was not commenced within the time prescribed by said section; that the section had no application to a will relating to personal property, and was not applicable to the action because the testator died before its passage.

      The will in question was first admitted to probate July 27, 1891. On February 3, 1893, the probate was reversed by the Court oí Appeals; the will was admitted to probate a second time on October 9, 1893, and this action was commenced on June 1, 1894.
    Upon an appeal by the defendants from an interlocutory judgment sustaining the demurrer interposed by the plaintiff to the defense set up in the defendant’s answer on the ground that it was insufficient in law upon its face,

      Held, that the demurrer should be sustained; that by the judgment of the Court of Appeals the original status of the parties was restored, and they were placed in the same position as they were before the first probate of the will, and the action, having been commenced within two years after the will was admil ted to probate by the second decision of the surrogate, was commenced within the time prescribed by the statute;
    That section 2653a of the Code of Civil Procedure applied to all wills and codicils, whether of real or personal property, and also applied to wills which were proved after the passage of said act, even though the testator died before its passage.
    Appeal by the defendants, Emily N. Cook and others, from an intei’looutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk upon the decision of the court rendered after a trial at the Suffolk Special Term sustaining the plaintiff’s demurrer to the first defense set up in the amended answer.

      Thomas Young, for the appellants.

      Wilmot M. Smith, for the respondent.
   Dykman, J.:

This is an appeal from an interlocutory judgment sustaining the demurrer interposed by the plaintiff to the first defense -set forth in the amended answer of the defendants Cook and Codling. The action was brought to determine the validity of the probate of a will of Mary Snelling, deceased, under section 2653a of' the Code of Civil Procedure. For a first defense the defendants set up in their answer that the action was not commenced within the time prescribed by the section of the Code to which reference has been made. Second. That the section has no application to personal property. Third. That the section is not applicable to this action because the' testator died before its passage.

The plaintiff demurred to that defense on the ground that it was insufficient in law upon its face. The issue of law was tried at Special Term, and judgment was rendered for the plaintiff sustaining the demurrer, and from that judgment the said defendants appealed. The ease is under the control of the first part of section 2653a, which reads as follows : “ Any person interested in a will or codicil admitted to probate in this State, as provided by the Code of Civil Procedure, may cause the validity of the probate thereof to be determined in an action in the Supreme Court for the county in which such probate was had.”

The section requires that the action should be commenced within two years after the will has been admitted to probate. In this case the will was first admitted to probate July 27, 1891, but before two years from that date, and on February 3, 1893, the probate was reversed by the Court of Appeals.

Before two years had expired after the first probate of the will, the plaintiff was prevented from bringing this action by the judgment of the courts. By that judgment the original status was restored, and the parties were placed in the same condition as they were before the first probate of the will; they had the same rights before the surrogate, and the same rights to attack ..the will under section 2653a of the Code within two years from his second decision admitting the will to probate, which was October 9, 1893. This action was commenced June 1, 1894, within less than one year from the time the will was finally admitted to probate. It appears, therefore, that under a proper construction of the statute this action was commenced within the time prescribed by the section quoted. It is also contended by the defendants that the section in question has no application to personal property, but the contention is erroneous, for the language is general and applies to all wills and codicils, whether of real or personal property. It is also contended that the section doés not apply to this case, because the testator died before the section was enacted, which was in 1893, but we agree with the conclusion of the trial judge, that the section applies to wills which were proved after the passage of the act. The statute constituted a change in the mode of procedure, which is not violative of any vested rights.

Judgment should be affirmed, with costs.

Brown, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs.


text:
    Charles Coppock, Respondent, v. The Long Island Railroad Company, Appellant.

      Negligence — when a release from, liability ther.efoi' is ineffectual.

    Upon the trial of an action brought to recover the damages resulting from personal injuries sustained by the plaintiff, it appeared that the plaintiff was injured in a collision upon the defendant’s road which was the result of the negligence of its employees; that he was employed by one Wyckoff as a groom and was going from the summer residence of his employer at Southampton to-Long Island City; that he, in company with Wyckoff’s coachman, was to transport the horses of Wyckoff in what is known as a Wagner palace horse car upon, defendant’s road; that the coachman went to the ticket office at Southampton and paid a certain sum for the car, which covered the transportation of Wyckoff’s horses and carriage and two men in charge. It further appeared that the coachman at the time he paid for the car signed a printed release which exempted the railroad company from liability for any damage resulting to the persons in charge of the horses by reason of the negligence of its servants. The plaintiff testified that he supposed, and he was in fact so informed by the coachman, that he (the coachman) had bought his (plaintiff’s) ticket and paid his fare. , The jury found that the plaintiff did not know that a contract, had been made exempting the railroad company from liability for negligence towards him.

      Reid, that a verdict in favor of the plaintiff should be affirmed.
    Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of February, 1895, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 7th day of February, 1895,. denying the defendant’s motion for a new trial.
    The release executed by "Wyckoff’s coachman, referred to in the opinion, was as follows :

      “ Long Island Railroad.
    “ LIVE STOCK CONTRACT. (RELEASE.)
    “ Station, 189
    “ In consideration of the Long Island Railroad Company transporting the following described Live Stock, either by the head or by the carload, at reduced prices, upon the shipper assuming certain risks as specified below: I do hereby release said company from all liability for injuries which the animals, or either of them, may receive in consequence of any of them being wild, vicious, unruly, weak, escaping or maiming themselves or each other, or in consequence of heat, suffocation or other ill effects of being crowded either upon cars or in yards, or on account of being injured by the burning of hay, straw or any other material used for feeding the stock, or in any other way; and also for all loss or damage which may be sustained by reason of £|ny delay in the loading, transportation or delivery, or in consequence of the insecurity of the cars.
    “ And it is agreed that the shipper will load, transship and unload said stock at his own risk, the laborers of the Company assisting under his direction. Also, that if said stock is carried by the carload this Company is not responsible for the number or weight thereof, but only to deliver such animals as arrive at the place of destination. It is also agreed that the person in charge of the stock who accepts a pass (which is only issued to man in charge of stock in carloads) to obtain a ride free does so at his own risk of personal injury from any and every cause.”
    The ticket issued to the coachman was as follows:
    “LONG ISLAND RAILROAD.
    “ LIVE STOCK TICKET.
    “ Good for one Continuous Passage from Southampton, N. Y., to L. I. City, only when used by P. B. 'W'yckoee, Servant, and when accompanying Live Stock in accordance with conditions on the back of this ticket.
    “868. II. M. SMITH, G. T. M.

      “ CONDITIONS.
    “ This ticket is issued- to enable the holder to accompany Live Stock shipped by P. B. 'Wyoicoee over the Long Island Railroad under a Special Contract with said Company and at a reduced rate. This ticket is accepted subject to the provisions of that contract, and the person accepting the same, whether the shipper or his agent, hereby assumes all.risk of accidents and expressly agrees that the said Company shall not be liable for any injury to his person or liis property under any circumstances whether of negligence by the agents of this Company or otherwise.”

      William J. Kelly, for the appellant.

      Dailey, Bell & Crane, for the respondent.
   Dykman, J.:

This is an appeal from a judgment entered upon a verdict in favor of the plaintiff and against the defendant after a trial at the Circuit, and also from an order denying a motion for a new trial upon the minutes of the court. The case discloses the following facts:

On the 6th day of December, 1893, the plaintiff was in the employ of Dr. Wyckoff as a groom, and on that day was going from the summer residence of his employer at Southampton to Long Island City, upon the railroad of the defendant. The plaintiff, in company with the coachman, Thomas Adcock, was to transport the horses of his employer with them on the train from Southampton, in what was known as a Wagner palace horse car. About nine o’clock on the morning of December 6, 1893, Thomas Adcock, the coachman, went to the ticket office at Southampton to pay for the car, and he did pay for the car forty-eight dollars, which included Dr. Wyckoff’s horses and carriage and two men in charge. He asked the agent if that charge included everything, and was informed that it did. He hired the whole car, which included everything, and the agent told him it included the fare of two men; and he signed, as he says, at that time, the printed paper which he always signed for shipping, and, as appears on the cross-examination of the plaintiff, he supposed, and was informed by Adcock, that he, Adcock, had bought his ticket and paid his fare, so that when the plaintiff boarded the defendant’s train at twelve o’clock, noon, with the horses, lie supposed his fare had been paid by Adcock, who so informed him. The time at which the train left Southampton for Long Island City was two o’clock in the afternoon, but for the convenience of the defendant the plaintiff, the coachman and the horses were taken on a train at twelve o’clock which stopped at Southampton, coming from Long Island City and proceeding easterly to Sag Harbor.

This, as was explained, was for the reason that it was easier to load horses and carriages on trains going east than trains going west, and also for the sake of saving time on the western trip. The Wagner car into which the horses, were placed had the usual car seats for passengers. That ear was taken to Sag Harbor on the twelve o’clock train going east and there switched upon a siding to be made part of the train going west, due at Southampton at two o’clock.

While this palace horse car was on this siding at Sag Harbor the train to which it was to be attached came back from the main track on to the switch and collided with great force with the car in which the horses were at that time, and inflicted the injuries upon the plaintiff for which this action is brought.

There is no denial of the collision or of the negligence from which it resulted. The defense to the action is that the plaintiff made a special contract with the defendant, whereby it was relieved from all liability in carrying the plaintiff, even for the negligence of its servants.

Upon that subject the trial judge charged the jury that “although this blank contract was made between Dr. Wyckoff and the railroad company (that is, between Dr. Wyckoff, through his agent Adcock, or whoever did it, and the railroad company), nevertheless, if this plaintiff did not know that in the contract there was any clause exempting the railroad company from liability to him for any negligence of the railroad company, if yon find the plaintiff did not know it, and if you also find that he did not have the opportunity of knowing it, that it was not in any way called to liis attention, that he was not put on inquiry sufficient to make you say that he should have known it, if he did not know it, the' exemption would not hold in favor of the railroad company, and the plaintiff would be able to recover.

“ Traveling in this horse car, without having made any personal contract himself, it may well be that he knew or that he supposed, which I charge you would be the same thing, that Dr. Wyckoff had made some contract or provision for him. But I charge you that although riding as he was and knowing that Dr. Wyckoff must have done it, or presuming that he must have done it, which is the same thing, nevertheless, that in itself did not necessarily bring home to him the knowledge that in that contract which Dr. Wyckoff or somebody else had made for him or to cover his case, that did not necessarily bring home to him the knowledge that in that contract the negligence of the railroad company had been exempted, so that he could not recover for its negligence, because, gentlemen, the rule of law is that the company is liable for its negligence, and while I charge you that you can go to a railroad company and enter into a contract exempting it from any negligence if you see fit, nevertheless, the position that this plaintiff was in toward this company, riding on this road on that day, the fact that he knew or supposed that a contract had been made covering his case, did not necessarily carry home to him the knowledge that the railroad company had been exempted from the liability which the law casts upon it.”

This charge was a correct exposition of the law applicable to the case, and gave the facts fairly to the jury, and, therefore, in view of the fact that the verdict was rendered by the jury in favor of the plaintiff, it must be assumed that the facts were found in accordance with the charge, and, therefore, that the plaintiff in this action Avas destitute of knowledge that any contract had been made exempting the railroad company from negligence toward him.

The jury, in obedience to- the rules thus laid down, were the sole judges of the facts, and rendered a verdict in favor of the plaintiff. No principle of law has been violated, and the verdict is not excessive.

The judgment and order denying a new trial should be affirmed, with costs.

Brown, P. J., and Pratt, J., concurred.

Judgment and order affirmed, with costs.


author: Brown, P. J.:

text:
    Ann Kenney, as Executrix of the Estate of Patrick Kenney, Deceased, Appellant, v. The Livery Stable Keepers’ Association of Kings County, Respondent.

      Costs in Justice's Court of Brooklyn — additional costs allowed by § 3129 of the Code of Civil Procedure — must be paid to perfect an appeal from a judgment of such court.

    The plaintiff in an action brought in the Court of a Justice of the Peace of the city of Brooklyn recovered a judgment for §200 damages and §14.60 costs, §13 of the costs being recovered pursuant to section 3129 of the Code of Civil Procedure, -which sum is allowed by said section to the prevailing- party when a trial is had in a Court of a Justice of the Peace of the city of Brooklyn. The defendant appealed from said judgment to the County Court, and on so doing paid the justice two dollars and sixty cents for costs, and two dollars for making a return, but did not pay the sum of twelve dollars allowed for additional costs.

      Held, that under section 8047 of the Code of Civil Procedure the defendant, in order to perfect his appeal to the County Court, was compelled to pay the justice all the costs included in the judgment, including the allowance of twelve dollars, and that upon his failure to do so the appeal should have "been dismissed.
    Appeal by tlie plaintiff, Ann Kenney, as executrix of the estate of Patrick Kenney, deceased, from an order of tlie County Court of the county of Kings, entered in the office of the clerk of the county of Kings on the 1st day of May, 1895, denying the plaintiff’s motion to dismiss the appeal to the County Court from a judgment entered in the Justice’s Court in the above-entitled action on the 11th day of March, 1895.

      Edmund J. Tinsdale, for the appellant.

      William J. Courtney, for the respondent.
   Brown, P. J.:

The plaintiff recovered a judgment against the defendant before a justice of the peace of the city of Brooklyn for $200 damages and $14.60 costs. Of the costs, twelve dollars was recovered pursuant to section 3129 of the Code of Civil Procedure, which allows that sum to the prevailing party when a trial is had in a Justice’s Court of the city of Brooklyn. The defendant appealed from that judgment to the County Court of Kings county, and on so doing paid to the-justice two dollars and sixty cents for the costs of the action and two dollars for making the return, and did not pay the sum of twelve dollars allowed for additional costs as aforesaid.

Section 3047 of the Code of Civil Procedure requires that the appellant, at the time of serving the notice of appeal, pay to the justice of the peace or his clerk the costs of the action, and it is the appellant’s contention that this requirement compelled the defendant, in order to perfect his appeal to the County Court, to pay to the justice the full sum of fourteen dollars and sixty cents.

The term “ costs” is defined by the Code (§ 3074) and includes the allowance in question.

In the section which provides for appeals to the County Court no distinction is drawn between ordinary costs and those additional sums which may be recovered under section 3129.

All these allowances are denominated costs, and we are of the opinion that, in order to perfect an appeal to the County Court, all the costs included in the judgment must be paid by the appellant to the justice at the time of serving the notice of appeal. Such is the rule which prevails in New York and Albany under like provisions of law applicable to inferior courts in those counties. (Sherwood v. Travelers' Insurance Co., 12 Daly 137; Schwemmer v. Stratton, 22 N. Y. Supp. 523.)

Upon the argument it was contended that there was no way for the appellant (the present respondent) to recover the costs so paid in case he succeeded on his appeal, but section 3060 of the Code appears to be applicable to such a case, arid, under that provision, costs and fees paid to the justice may be included in the disbursements on appeal in case the appellant is awarded costs.

Ye are of the opinion that the County Court erred in denying the motion to dismiss the appeal, and the order appealed from must be reversed, with ten dollars costs and disbursements, and the appeal to the County Court dismissed, with ten dollars costs.

Dykman and Pratt, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs and disbursements.


text:
    Thomas W. Johnson, Respondent, v. William H. Synett and Charles H. Noxon, Appellants.

      Libel per se — proof of publication and circulation of a newspaper — when a question for the jury.

    In an action brought to recover damages for the publication of an alleged libel it was shown that a newspaper published the following article:
    “It is reported about town that Rev. Mr. Johnson, the M. E. colored minister from this place, was one day last week arrested in New York after he alighted from the train at the Grand Central Station. It is claimed that he was too much of a family man. He is still under cover.”

      Held, that such publication was libelous per se.

    Upon the trial of such action the plaintiff gave evidence that the newspaper was-generally sold on the streets of the place where it was published, but he proved no sales of the issue containing- the article in question. He, however, proved. an interview with the defendants in which they admitted the publication of the article and offered, if the same was untrue, to publish a retraction, and he produced a copy of the paper with the article therein.
    Held, that this proof was sufficient to carry the question of publication and circulation to the jury.
    Appeal by the defendants, "William H. Synett and another, from, a judgment of the Supreme Court in favor of tbe plaintiff, entered in the office of the clerk of the county of Westchester on the 18th day of December, 1894, upon the verdict of a jury rendered after a trial at the Westchester Circuit, and also from an order entered in said clerk’s office denying the defendants’ motion for a new trial.

      Charles H. Noxon, for the appellants.

      C. H. & J. A. Young, for the respondent.
   Brown, P. J.:

This action was brought to recover damages for an alleged libel. The appellants are the proprietors and publishers of the Westches-ter County Tribune, a newspaper published at New Bochelle in Westchester county.

On May 25, 1894, the following article appeared in that paper:

It is reported about town that Bev. Mr. Johnson, the M. E. colored minister from this place, was one day last week arrested in New York after he alighted from the train at the Grand Central Station. It is claimed that he was too much of a family man. He is still under cover.”

. At the opening of the case the appellants’ counsel moved to dismiss the complaint upon the ground that the article was not libelous, and at the close of the plaintiff’s testimony moved that a verdict be directed for the defendants on the ground that facts sufficient to constitute a cause of action had not been proven.

These motions were denied and exceptions taken to the court’s, ruling.

There is no doubt but that the publication is libelous per se. (Shelby v. Sun Printing Association, 38 Hun, 474; affd., 109 N. Y. 611; Moore v. Francis, 121 id. 199-204; Morey v. Morning Journal Association, 123 id. 210.)

Tbe defendants admitted that they were the publishers of the newspaper and that the article was published therein, but denied that it was published with malice or intended to injure the plaintiff.

The plaintiff gave evidence that the paper was generally sold on the streets of New Rochelle, but proved no sales of the issue containing the article in question. He, however, proved an interview with the defendants, in which they admitted the publication, and offered, if the article was untrue, to publish a retraction. A copy of the paper with the article therein was produced on the trial. This proof was sufficient to carry the question of publication and circulation to the jury, and the request to charge the jury that there was no evidence of circulation and that one copy was not evidence of circulation, was properly denied. (Marx v. Press Publishing Company, 34 N. Y. St. Repr. 316; affd., 134 N. Y. 563; Townshend on Libel & Slander [4th ed.], § 013.)

The judgment must be affirmed, with costs.

Dykman and Pratt, JJ., concurred.

Judgment and order affirmed, with costs.


text:
    The People of the State of New York ex rel. Robert Lee and Others, Respondents, v. The Village of College Point and Others, Appellants.

      Gertiorari — costs, when not taxable.

    An order of tlie General Term, made upon the return to a writ of certiorari issued to review an assessment, confirmed the assessment under review with costs to the defendants and against the relators to he taxed. Defendants sought to include in their hill of costs the sum of fifty dollars.

      Held, that although that sum was allowable in the discretion of the court, yet, as that discretion had not been exercised, the defendants acquired no right to insert the same therein.
    Appeal by the defendants, The Village of College Point and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 16th day of April, 1895, retaxing the costs in the above-entitled action and disallowing items of costs taxed, and which reduces the amount of the judgment entered in said action.
    The order of the General Term which provided for costs in this action was as follows: “ Ordered, that the determination and proceedings of said defendants in opening and otherwise improving said Third avenue, between Eleventh and Thirteenth streets in said village, and the levying of the assessment therefor, and which were sought to be reviewed herein, be and the same are hereby in all respects confirmed, with costs to the defendants and against the relators to be taxed.”

      John J. Gleason, for the appellants.

      O. B. Gould, for the respondents.
   Dykman, J.:

This is an appeal from an order of the Special Term reversing the taxation of fifty dollars as costs to the defendants, which was allowed by the clerk. The proceeding was by certiorari, and the only question presented by the appeal now before us is whether, under the order of the General Term confirming their proceedings with costs to be taxed, the defendants could include in their bill of costs the sum of fifty dollars. That sum was allowable in the discretion of the court, but as that discretion was not exercised, the defendants acquired no right to insert the same in their bill of costs.

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

Brown, P. J., and Pratt, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


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    In the Matter of the Application of The Trustees of the Non-Magnetic Watch Company of America, for the Voluntary Dissolution of said Corporation. Eidgenoessische Banque, Appellant; Charles S. McCulloh, as Receiver of The Non-Magnetic Watch Company of America, Respondent.

      Bill of lading — confers title on the person to whom, it is issued — contract for the purchase of an m’ticle not in existence — the huger acquires no title until delivery — manufacturers’ lien — goods may he pledged to the extent of the lien.

    A bill of lading confers the legal title to the goods upon the person in whose favor it is issued.
    A contract for the construction of an article is executory and remains so until the article is completed.
    If a person contract with another for a chattel not in existence at the time of the contract, though he pay him the whole value in advance, and the other proceeds to execute the order, the buyer acquires no property in the chattel until it is finished and delivered to him.
    A contract was entered into between Aeby & Co., a corporation engaged in the manufacture and sale of watches in Switzerland, and the Non-Magnetic Watch Company of America, by which the former company agreed to manufacture watch movements for the latter. By the terms of the contract Aeby & Co. agreed to manufacture solely for the Non-Magnetic Watch Company, and agreed to sell and let the said company have all they could make, and the Non-.Magnetic Watch Company agreed to order and accept all Aeby & Co. could make, up to 800 a day, at prices which were agreed upon in the contract. The Non-Magnetic Watch Company was not bound to accept or receive any watch movements unless they were made according to^ “ the specifications and the standard of excellence as agreed upon.” The materials of which the watch movements were to be made belonged to Aeby & Co. ; the Non-Magnetic Watch Company, however, supplied the hair springs and the balances, which it sold to Aeby & Co., and which constituted hut a small part of the material used in the manufacture of the watches.
    In December, 1889, Aeby & Co. shipped to America three cases of the watches manufactured by it under the contract, consigned to one Nathan Bushnel, at New York. The consignor drew two drafts against the consignment of §5,000 each, directed to the consignee, and later drew another draft against the consignment directed to the consignee, and attached to the drafts the bills of lading taken for the watches, and procured the Eidgenoessische Bank, a banking corporation at Berne, Switzerland, to discount the drafts, and at the same time transferred to it the bills of lading as security for the payment of the drafts. The drafts were accepted by the consignee and at maturity were duly presented for payment, which being refused, they were protested. The Non-Magnetic Watch Company in the meantime had gone into the hands of a receiver. The bank demanded the watches from the consignee and the receiver also demanded them.
    In a proceeding instituted to determine to whom the watches should be delivered,

      Held, that the firm of Aeby & Co. were the owners of the watch movements until they were delivered;
    That by the contract it was the intention of the parties that the title to the watch movements was not to vest in the Non-Magnetic Watch Company until their acceptance by it;
    That when the watch movements were consigned to Bushnel by Aeby & Co. they belonged to Aeby & Co., and the transfer and delivery of the bills of lading with the three drafts was a symbolical delivery of the goods, and the transferee thereby acquired title to the property and was authorized to hold it until the loan made by it thereon was paid;
    That the watch movements belonged to the Eidgenoessisclie Bank, and it was entitled to the possession of them, and that the receiver had no title to the property and no right to its possession;
    That Aeby & Co. also had a lien upon the watch movements for the labor bestowed upon them, and that, as such lienors, they also had a right to pledge the watch movements to the extent or amount of the indebtedness of the NonMagnetic Watch Company to it.
    Appeal by the claimant, the Eidgenoessisclie Banque, from a judgment of the Supreme Court in favor of Charles S. McCulloh, as receiver of the Non-Magnetic Watch Company of America, entered in the office of the clerk of the county of Westches-ter on the 12th day of January, T895, upon the report of a referee which adjudged that the receiver of the Non-Magnetic Watch Company of America was entitled to the net proceeds derived from the sale of certain watch movements, also from the report of said referee, and also from an order made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 1st day of December, 1-894, confirming said referee’s report and directing judgment to be entered in accordance therewith. ■

      E. H. Benn and Julius Goldman, for the appellant.

      Theo. H. Silkman, for the respondent.
   Dykman, J.:

The Non-Magnetic Watch. Company, which was a domestic corporation, filed a petition for a voluntary dissolution, and on the 12th day of October, 1889, Charles S. McCulloh was appointed temporary receiver, and afterward he was appointed permanent receiver of the property of the company.

The Eidgenoessisclie Bank (a name which in the French language signifies Banque Federal, and which in this opinion will be called the Federal Bank for convenience) is a banking corporation at Berne, Switzerland. Aeby & Co. was a corporation engaged in the business of manufacturing and selling watches at Madretsch, in Switzerland.

Contracts were made between Aeby & Co. and the watch company, by which the former agreed to manufacture watch movements of American sizes for the watch company only. By the contracts Aeby & Co. agreed to manufacture solely for the watch company, and agreed to sell and let the watch company have all they could make, and the watch company agreed to order and accept all they could make up to 300 a day, at prices which were agreed upon in the contract. The watch company was not bound to accept or receive any watch movements unless they were made according to “the specifications and the standard of excellence as agreed upon.”

The materials of which the watch movements were made belonged to Aeby & Co. The watch company supplied Aeby & Co. with the hair springs and the balances, but they were sold to Aeby & Co., and constituted but a small part of the material used in the manufacture of the watches. In December, 1889, Aeby & Co. had in their possession three cases of watches manufactured by them under the contract with the watch company, of the value of 28,600 francs, which they shipped to America, consigned to Nathan Bushnel, at New York, through L. W. Morris & Sons, forwarding agents, and took bills of lading therefor.

Aeby & Co., the consignors, drew two drafts or bills of exchange against the consignment of $5,000 each, directed to the consignee Bushnel, and on the 20th day of January, 1890, they drew another draft or bill of exchange against the consignment, directed to the consignee, and then attached the bills of lading to the drafts, and procured the Federal Bank to discount the drafts, transferring to the bank at the same time the bills of lading for or as security for the payment of the drafts. The drafts were accepted by Bushnel, the consignee, and at maturity were duly presented for payment, and payment being refused, they were protested for non-payment.

The bank then demanded of the consignee the three cases of watches, and the receiver of the watch company has also demanded them, claiming as such receiver to own them, on the ground that the watches were made by Aeby & Co. for the watch company, and consequently belonged to the latter company, and that Aeby & Co: had no right to pledge them or draw drafts against them, and that no title or right to the watches passed by the transfer of the bills of lading. It was to determine these conflicting claims that the referee was appointed. At the time of the appointment of the referee it was agreed between the parties that the watches should be sold and the proceeds held in their place to abide the event of these proceedings. The referee found and decided that Aeby & Co. were not the owners, but only bailees of the watches in question, and that the title was in the watch company. lie, therefore, concluded and decided that the bank, by the transfer to it of the bills of lading as security for the discount and advances made to Aeby & Co., did not acquire any right or title to the watches. Upon that report a judgment was ordered, and the Federal Bank has appealed from the judgment and also from the report of the referee upon which it was based, and from the order confirming the referee’s report, and directing judgment to be entered thereon. The report of the referee is not in accordance with the law which controls the case. The watch company contracted with Aeby & Co. to manufacture for it watch movements of American sizes for stipulated prices to be paid therefor.

Aeby & Co. furnished all the materials, for although the watch company supplied the hair springs and balances they were purchased of it by Aeby & Co., and so became the property of the latter. Under the well-settled principles of law, the firm of Aeby & Co., were the owners of the watch movements until they were delivered. A contract for the construction of an article is executory and remains so until the thing is completed. While it is competent for parties to a contract for the construction of an article to provide for the vesting of the title thereto at any time, im this case it is to be gathered from the contract that the intention of the parties was that the title of the article was not to vest in the watch company until •'their acceptance by it, for the company was not bound to accept any of the articles unless they were made according to the specifications and the standard of excellence as agreed upon.”

The following authorities support these conclusions: Andrews v. Durant (11 N. Y. 35); Gregory v. Stryker (2 Den. 628).

In fact, the decisions in this country are all in harmony upon the question. In the Andrews case one of the opinions stated the rule as follows: “ The general rule is that if a person contract with another for a chattel which is not in existence at the time of thó contract, though he pay him the whole value in advance, and the other proceeds to execute the order, the buyer acquires no property in the chattel till it is finished and delivered to him.”

When, therefore, the three cases of watches in question were consigned to Nathan Bushnel by Aeby & Co., the property belonged to the latter, and the transfer and delivery of the bill of lading with the three bills of exchange was a symbolical delivery of the goods, and the Federal Bank thereby acquired title to the property and was authorized to hold it until the loan it made thereon was paid. (Bank of Rochester v. Jones, 4 N. Y. 497; City Bank v. Rome, W. & O. R. R. Co., 44 id. 136; Mechanics & Traders’ Bank v. F. & M. Nat. Bank, 60 id. 47.)

A bill of lading confers the legal title of the goods upon the person in whose favor it is issued. (Farmers & Mechanics' Bank v. Logan, 74 N. Y. 568.)

As the drafts remained unpaid when the Federal Bank demanded the three cases of watches of the consignee, the property belonged to the bank, and it was entitled to the possession of the goods. The receiver had no title to the property and no right to its possession. He occupied the same position as the watch company, and the rights of the Federal Bank were paramount to both.

The .contention of the receiver was, that as the watch company 'furnished the springs and balances the watches belonged to that com■pany. The springs and balances composed but a small part of the movements required to be used in the construction of a watch.

It required upper and lower plates, pillars, train, dial, hands, pendants and jewels.

Upon the theory of the watch company, therefore, this would be -.-a case where the principal part of the materials were furnished by the manufacturer. In such a case the title to the article is in the maker until its completion and delivery. (Gregory v. Stryker, 2 Den. 628, and cases there cited.)

Upon either theory, therefore, the claim of the receiver is baseless. It is claimed further, in behalf of the watch company, that Aeby & Co. was indebted to the watch company in a large amount, and it could hold the property for that reason. That position is also untenable, for we have already seen that even a payment in .advance of the entire pifiee of the article to be made will not place the title in the buyer until it is finished and delivered.

That being the rule, certainly an advancement of money during the progress of the work will have no greater effect than an absolute payment of the entire price.

The errors disclosed by the examination already made require a reversal of the judgment, but even if all the claims of the watch company were conceded, and it stood admitted that all the materials used in the construction of the watches belonged to the watch company, the manufacturers would then have a lien upon the manufactured articles for the labor bestowed upon them. (Story on Bail-ments, § 440.)

As a party having a lien upon goods may pledge them to the extent of his lien, Aeby & Co., in this case, if they had no other rights than as lienors, had the right to pledge the goods to the extent or amount of §50,000, the watch company being indebted to them on the merchandise account in that amount. If the title to the watches was, as the receiver claims, in the watch company all the time, and the indebtedness to Aeby & Co. was for the work done and materials furnished by them all under one contract, then Aeby & Co. had a lien on those three cases of watches, not only for the work done and materials furnished in their manufacture, but for the sum remaining unpaid on the watches previously delivered. (Morgan v. Congdon, 4 N. Y. 552; McFarland v. Wheeler, 26 Wend. 467.)

It therefore follows, conclusively, that the watch company had no right or title in the property in question, and that the same belonged to the Federal Bank, and should have been delivered to it upon its ■demand.

The referee’s report, and the order confirming the same, and the judgment entered tbereon, must all be reversed, with costs, and as the facts are substantially undisputed, and cannot be changed upon a second trial, the judgment must be entered in favor of the Federal Bank.

Brown, P. J., and Pratt, J., concurred.

Judgment and order reversed, with costs, and fund directed to be paid to the appellant.


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    De Witt C. Bouker, Jr., Appellant, v. The Long Island Railroad Company, Respondent.

      Bailroads ■— their franchises are sovereign— they ean he compelled to use their property in the interest of the community — they can prescribe the time for the reception of freight— they are not liable for delay in transportation under extraordinary conditions — what is a reasonable time.

    While railroad companies are, in a certain sense, to he regarded as trading corporations, they are, at the same time, clothed witn useful public functions; their franchises are sovereign and their uses are public. They can be compelled to use their property iri the interests of the entire community, and it is their duty to furnish accommodations for the transportation of persons and property.
    Railroad corporations have the right to prescribe the times for the reception of freight for transportation. Due care and diligence is all that can be required of railroad companies in an emergency, and if they are careful to make pro ■ vision for the traffic upon their roads in ordinary times and under ordinary circumstances, no more can be required of them, and they are excused for delays in transportation when large and unusual quantities of freight are offered for shipment, and they have utilized all their facilities for the purpose of transporting the property offered to them for that purpose.
    The law contemplates that it may not always be in the power of a railroad company to dispatch its passengers or freight immediately upon their arrival at a station or junction, and it, therefore, allows the company a reasonable time after their arrival and the offer of property for transportation, to set it in motion from such starting point or junction.
    What is a reasonable time must depend upon the actual circumstances existing at the time the property is offered for transportation.
    Appeal by the plaintiff, De Witt C. Bouker, Jr., from that part of a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 14th day of November, 1894, which dismissed the plaintiff’s complaint as to the first cause of action therein contained, and also from an order made at the Queens County Circuit, bearing date the 10th day of October, 1894, and entered in the office of the clerk of the county of Queens, in which it was ordered and adjudged that the plaintiff’s complaint be dismissed, and the plaintiff nonsuited as to the first cause of action specified in the complaint, and also from that part of said order which denied the plaintiff’s motion for a new trial.

      George Wallace, for the appellant.

      William, J. Kelly, for the respondent.
   Dykman, J.:

The complaint of the plaintiff in this suit contains two causes of action. The first cause of action is against the defendant as a common carrier, for having wrongfully neglected and refused to transport certain stone delivered to it by the plaintiff, the allegation being that by reason of this wrongful act on the part of the defendant he-was prevented from completing in proper time a contract which he had in hand for macadamizing certain highways in Queens county.

For the second cause of action the allegation in the complaint was that at different times, between December seventh and December-fourteenth, the plaintiff shipped over the defendant’s railroad twenty carloads of stone, to be delivered at Arverne, a station on the line-of defendant’s railroad; that the stone were not delivered to the plaintiff, although he had paid the freight charges on the fifteen carloads first forwarded, and tendered payment on the last five carloads-forwarded, and demanded that the stone be delivered at Arverne as directed, and that the defendant had neglected to deliver it.

Upon the trial at the Circuit before a jury, at the close of the testimony on the part of the plaintiff, the counsel for the defendant, moved to dismiss the complaint on the ground that the plaintiff had. failed to make out a cause of action against the defendant, as the-evidence failed to show any undertaking on the part of the defendant to transport any given number of stones per day, and that the plaintiff failed to show any discrimination against him by the -defendant or any of its departments, or tbe violation of tbe duties of tbe defendant as a common carrier, in shipping and transporting tbe stone from Long Island City to tbe vicinity of the plaintiff’s contract. That motion was made with reference to the first cause of action. The motion was denied, and the defendant excepted.

After the introduction of some testimony on the part of the defendant, and at tbe close of tbe case, tbe counsel for the defendant renewed the motion made at the close of tbe plaintiff’s case to dismiss the complaint upon the same grounds as there stated in regard to the first cause of action, and on tbe ground that it then appeared affirmatively that tbe defendant had exercised due diligence in the transportation of freight, and tbe court granted tbe motion as' to the first cause of action/ but permitted tbe claim under tbe second cause of action to be submitted to the jury for determination.

The plaintiff excepted to the ruling of the court granting the dismissal of tbe complaint as to the first cause of action. The court then charged tbe jury in reference to the second cause of action, and a verdict was rendered in favor of the plaintiff for $510.08. The plaintiff thereupon moved for a new trial in regard to the issues contained in the first causé of action, and tbe defendant moved for a new trial on the ground of the issues contained in the second cause of action. The motion made by tbe plaintiff for a new trial was denied, and the motion made by the defendant for a new trial was denied also. The plaintiff appealed to tbe General Term from that part of the judgment entered in this action dismissing tbe plaintiff’s complaint as to tbe first cause of action, and the defendant has not appealed. Tbe only question, therefore, for consideration upon this appeal has reference to the dismissal of tbe complaint as to the first cause of action which it contained. While railroad companies are in a certain sense to be regarded as trading corporations, they are at the same time clothed with useful public functions. Their franchises are sovereign and their uses are public. They aré compellable to use their property in tbe interests of the entire community, and it is their duty to furnish accommodations for .the transportation of persons and property. The acceptance of a charter by it corporation constitutes an implied contract on its part for the performance of certain public functions. Actions for damages may be maintained for a breach of such implied contract. In fact, a railroad may be viewed as a public highway under the control of a corporate body which has assumed obligations to carry persons and property in consideration of exclusive rights to control the public thoroughfare. „ Such are some of the well-established rules in relation to common carriers and property, but like all legal rules they are to be construed and applied reasonably, and in the light of all the surrounding circumstances. If a large number of passengers demanded carriage at a given point where a railroad had not sufficient cars to comply with their request, no negligence could be assigned and no action for damages maintained. If a large quantity of property was presented to a carrier for transportation when it had not sufficient cars to carry it at that time and place, no negligence could be assigned for a failure- to- do so. (Angelí on Carriers,, § 125.)

In this case there was no special agreement for the transportation, of stone. The liability of the defendant must be measured by the duty imposed upon it by law. The delay was in unloading the stone from the scows, and the evidence makes it entirely clear that there was no negligence or undue delay.

' The defendant had ten derricks at the dock, and sometimes six were employed upon the stone. There was- an unusual collection of property for transportation in consequence of the unprecedented amount of macadamizing done in and around Hempstead in- 1892 and 1893.

Sometimes thirty scows were at the dock at a time, ten or fifteen of which would be loaded with stone. After the stone was loaded there was no unnecessary delay. In fact, it appears from the testimony of the plaintiff that the stone was sent forward faster than he unloaded them from the cars. Railroad corporations have the right to prescribe the times for the reception of freight for transportation. Dne care and diligence is all that can be required of them in an emergency. If they are careful to make provision for the traffic upon their roads in ordinary times and under ordinary circumstances,, no more can be required of them, and they should be excused for delay. The law contemplates that it may not always be in the power of a railroad company to dispatch either passengers or freight immediately upon their arrival at a station or junction, and it, therefore, allows the company a reasonable-time after their arrival and the-offer of property for transportation, to set it in motion from such starting point or junction. What is a reasonable period must depend upon the actual circumstances existing at the time the property is offered for transportation.” (Wibert v. N. Y. & E. R. R. Co., 12 N. Y. 250.)

It does not appear from the testimony ,in this action that there was any failure on the part of the defendant to furnish ample rolling stock for transportation of passengers and freight under all ordinary circumstances and conditions, and it does appear affirmatively that extraordinary conditions prevailed during the time in respect to which this complaint is made against the defendant. Large and unusual quantities of freight were offered for shipment, and the defendant utilized all its facilities for the purpose of transporting the property offered to it for that purpose, including the stone offered .by the plaintiff. There was no substantial dispute about the facts, and so the question whether the defendant was guilty of unnecessary delay was for the court. (Muckle v. Rochester Ry. Co., 79 Hun, 32.) It was decided in the Wibert case that where a railroad was fully equipped with engines and freight carriages, but more property was offered at a particular point than could be sent forward at once, the delay was justifiable, provided no unfair preference was given to other freight over that of the plaintiff.

In our view the proper disposition was made of the question, and the facts fail to show any negligence or want of care on the part of the defendant, and the complaint was properly dismissed in respect to the first cause of action which it contained, and the judgment and the order denying the motion for a new trial should, in all respects, be affirmed, with costs.

Brown, P. J., and Pratt, J., concurred.

Judgment and order affirmed, with costs.


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    John B. Pierano, Respondent, v. John L. Merritt, Appellant.

      Costs upon appeal to a County Court — Code of Civil Procedure, § 8070.
    Tlie plaintiff, in an action brought in a Court of a Justice of the Peace, recovered a judgment against the defendant for §200 and costs. Upon appeal to the County Court the plaintiff recovered a judgment for one dollar. Neither party made an offer of judgment as provided for in section 3070 of the Code of Civil Procedure.

      Held, that the plaintiff wa§ entitled to recover costs upon the appeal..
    Appeal by the defendant, John L. Merritt, from an order of the County Court of Westchester county, entered in the office of the clerk of the county of Westchester on the 21st day of May, 1894, vacating and setting aside the adjustment and taxation of costs and disbursements in favor of the defendant made by the clerk of the county of Westchester, and directing said clerk to tax and adjust the bill of costs offered by the plaintiff.

      Charles Haines, for the appellant.

      Jas. B. Lockwood, for the respondent.
   Dykman, J.:

This is an appeal from an order taxing costs of the plaintiff and respondent in this action, which was tried in the County Court of Westchester county on an appeal from a Justice’s Court, demanding a new trial in the County Court.

No offer was made by either party to take or allow judgment to be taken for a certain sum. The plaintiff recovered a judgment in the Court of a Justice of the Peace for $200 and costs. In the County Court the plaintiff recovered a verdict of one dollar, and the court ordered the county clerk to tax the plaintiff’s costs, which was done, at sixty-three dollars and six cents, and the defendant appealed to this court from the order directing such taxation. So it will be seen that the plaintiff recovered a judgment for more than fifty dollars in the Court of the Justice of the Peace, and the defendant appealed to the County Court and demanded a new trial therein. Neither party made an offer of judgment as provided for in section 3070 of the Code of Civil Procedure. On the new trial the plaintiff recovered a verdict for one dollar, each party claiming that he ivas entitled to costs. The county judge decided that the plaintiff should tax his costs, and this appeal is from that order, and it involves the construction of section 30?0 of the Code of Civil Procedure.

That section, after providing for making an offer of judgment after an appeal to the County Court, further provides: “ Where an offer is made as above provided, the party refusing to accept the same shall be liable for costs of the appeal unless the recovery shall be more favorable to him than the sum offered. If neither party makes an offer as provided herein, the party in whose favor the verdict, report or decision in the appellate court is given shall be entitled to recover costs upon the appeal.”

Our conclusion is that this case falls within the last part of the section quoted, because no offer was made, and that the party in whose favor the verdict was given was entitled to costs. That party was the plaintiff, and, therefore, the order allowing him costs was proper and should be affirmed, with costs.

Brown, P. J., and Pratt, J., concurred.

Order affirmed, with costs.


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    In the Matter of the Voluntary Dissolution of the Lewis & Fowler Manufacturing Company. Charles G. Dobbs, as Temporary Receiver, Appellant; John Boyle and W. H. Macy, Respondents.

      Corporation — voluntary dissolution thereof — receiver’s title vests only on the filing of his bond — levy on execution after his appointment but before the receiver's bond is filed.

    Upon an application for an order to set aside a levy made by the sheriff under an execution, it appeared that John Boyle and W. H. Macy obtained a judgment against the Lewis & Fowler Manufacturing Company on January 21,1895, that execution was issued upon said judgment the same day and a levy was made thereunder by the sheriff. The suit in which the judgment was obtained was commenced in the City Court of New York by the personal service of the summons on the Lewis & Fowler Manufacturing Company on January 12, 1895. The time to answer in said action expired on the 18th of January, 1895. and on the evening of that day a demurrer to the complaint was served on "behalf of the defendant upon the attorney for Boyle and Macy. On January 21, 1895, a motion was made for judgment upon the demurrer as frivolous, which motion was granted without opposition, and judgment was thereafter entered.
    A petition for the voluntary dissolution of the Lewis & Fowler Manufacturing' Company had been presented to the Supreme Court on January 18, 1895. On-the next day an order was entered appointing a temporary receiver and enjoining the prosecution of all suits against the company, including those already commenced. The temporary receiver, who was required by the order appointing him to file a bond, did not file his bond until the 22d of January, 1895.

      Held, that the interposition of the demurrer on behalf of the Lewis & Fowler Manufacturing Company in the action brought against it by Boyle and Macy was a fraud upon them and upon the due administration of justice;
    That Boyle and Macy acquired a lien upon the personal property of the company upon the delivery of tlieir execution to the sheriff;
    That although, when the receiver filed his bond, his title related back to the time of his appointment, still it did not relate back for the purpose of destroying vested rights, or for any other unjust purpose, and that it would be unjust and wrong to permit the vested rights of Boyle and Macy, which they had acquired by virtue of the execution upon their j udgment, to be divested thereby;
    That the lien of Boyle and Macy was not destroyed by the filing of the receiver’s bond, and that the receiver took title to the property sub j ect to that lien and subject to the rights of Boyle and Macy to have their judgment paid out of the property before any right of the receiver attached.
    Appeal by Charles G. Dobbs, as temporary receiver of the Lewis & Fowler Manufacturing Company, from so much of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the cleric of the county of Kings on the 8th day of February, 1895, as provides: “ And it is further ordered that the execution upon the judgment for $1,886.91, entered in the City Court of New York on January 21, 1895, in favor of John Boyle and W. H. Macy against the Lewis & Fowler Manufacturing Company, be also paid in like manner.”
    Moore, Wallace & Dudley, for the appellant.

      Daniel S. Remsen, for the respondents.
   Dykman, J.:

This is an appeal from an order denying a motion to set aside a levy made by the sheriff under an execution in favor of John Boyle and William H. Macy on a judgment entered in the Supreme Court of New York on the 21st day of January, 1895, which execution was issued to the sheriff of Kings county on the same day, subsequent to the filing of the order appointing a receiver, and prior to the time when the receiver filed the security required by law. A petition for the voluntary dissolution of the above-named company was presented to the Supreme Court at Special Term on the 18th day of January, 1895, and on the next day an order was entered directing all persons interested in the company to show cause on the 8th day of June, 1895, why it should not be dissolved, and appointing Charles G. Dobbs temporary receiver with a bond of $50,000, and enjoining the prosecution of all suits, including those already commenced.

The temporary receiver named filed his bond on the 22d day of January, 1895. Judgment for $2,841.06 in favor of I. T. Williams and others was entered on January 19, 1895, against the Lewis & Fowler Manufacturing Company, and a judgment for $1,529.10 in favor of -the Street Railway Publishing Company was entered on January 19,1895, against the Lewis & Fowler Manufacturing Company. On the same morning, but before the receiver was appointed, execution was issued on those judgments and a levy was made before the order of January nineteenth, appointing the receiver, was entered.

After the appointment of the receiver, but before he filed his bond, and on January 21, 1895, a third judgment was entered against the company for $1,886.91 in favor of John Doyle and W. IT. Macy. Execution was also issued on this judgment and delivered to the sheriff who claimed to hold possession of the property upon which he had levied by virtue of the three executions upon the three judgments. The receiver was in possession of funds of the company sufficient to pay all three of these judgments, but he desired to pay two and have the levy under the execution upon the Boyle and Macy judgment set aside.

The facts in relation to the recovery of the latter judgment are these:

The suit was commenced by the service of a summons on the company on the 12th day of January, 1895. The action was based upon a duly accepted draft for the payment of money. The draft was set out in the complaint, which was duly verified. The time to answer expired on the 18th day of January, 1895, and on the evening of that day a demurrer to the complaint was served upon the attorney for the plaintiffs. On the twenty-first day of January a motion was made for judgment upon the demurrer as frivolous. The motion was granted without opposition, and a judgment in favor of the plaintiffs was entered on the same day, January twenty-first, at ten-thirty-five o’clock in the forenoon of that day.

Immediately thereafter a transcript of the judgment was duly docketed in the office of the clerk of Kings county, and an execution was issued to the sheriff of the county of Kings at eleven-five o’clock on the 21st day of January, 1895. At that time the receiver had not qualified by filing the security required by law.

Boyle and Macy were delayed by the frivolous demurrer of the defendant to their complaint. If the'demurrer had not been interposed, their judgment would have been entered on the nineteenth day of January, before the order was made appointing the receiver, and then the execution upon their judgment would have been entitled to a priority. The interposition of the demurrer was a fraud upon the plaintiffs Boyle and Macy, and upon the due administration of justice. There was no defense to the action, and the complaint was sufficient. The execution upon the judgment of Boyle and Macy was executed and issued to the sheriff on the twenty-first day of January in the forenoon, as we have seen. The receiver liad not then taken possession of the property, and was not entitled to do so until he had filed his bond, which he did the next day. Boyle and Macy acquired a lien upon the personal property of the company upon the delivery of their execution to the sheriff, but when the bond of the receiver was filed, his title related back to the time of his appointment, which was anterior to the lien of Boyle and Macy under their execution. (Matter of Christian Jensen Co., 128 N. Y. 550.)

Their lien was, therefore, divested, if the doctrine of relation is allowed its full force against them. That doctrine is a fiction of law which was .adopted for 'the advancement of right and justice, and resort is made to it for no other purpose. It is not adopted where third parties, who are not parties or privies, will be prejudiced thereby. In fact, fictions in law are never to . be implied to perpetuate a wrong or defeat collateral acts which are lawful and concern strangers. (Pierce v. Hall, 41 Barb. 146; Jackson v. Davenport, 20 Johns. 551; Heath v. Ross, 12 id. 140.)

It will, therefore, be no violation of the principles which underlie the doctrine of relation to exempt the judgment of Boyle and Macy from its operation and subject the title of the receiver to the lien of their judgment. On the contrary, it would be quite inconsistent, with the doctrine of relation to subordinate the rights of Boyle and Macy to the title of the receiver. Fiction is not fact. It is not eqidvalent to fact. The fact was that plaintiffs Boyle and Macy acquired a lien upon the property of the defendant on the 21st day of January, 1895, at ten-thirty-five o’clock in the forenoon. At that time the receiver had no title to the property of the defendant,, and no right to interfere with it in any manner or for any purpose. On the 22d day of January, 1895, the receiver filed his official bond, and the title to thp property vested in him in fact and in law at that time. By a fiction of law, his title related back to the day of his appointment for some purposes, such as its preservation and protection, but not for the purpose of destroying vested rights, or for any other unjust purpose. It would be unjust and wrong to-permit the vested rights of the plaintiffs Boyle and Macy, which they had acquired by virtue of the execution upon their judgment,, to be divested by fiction.

Our conclusion, therefore, is, that the lien of the plaintiffs Boyle- and Macy was not destroyed by the filing of the bond of the receiver or in any other manner; that such lien continued, and the receiver took title to the property subject to that lien, and subject, to the rights of Boyle and Macy to have their judgment paid out of the property before any right of his attached.

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

Brown, P. J., and Pratt, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


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    Oliver W. Ingersoll, Appellant, v. Nassau Electric Railroad Company, Respondent.

      Injuries sustained by one person in common with the general public — cannot be redressed in an action brought by him — street railroads' — § 102 of chap, 565 of the Laws e/1890, as a/mended by chap. 698 of 1894 — § 18, mticle 3, of the New York Constitution applies only to a new street railroad.

    Injuries sustained "by one person, in common with the general public cannot be redressed in a private action brought by him.
    A street railroad company may operate its road in any legal manner consonant with the purposes for which it was organized. It may hire out its line, or it may permit other railroad companies to run their cars over its tracks by authority of section 102 of chapter 565 of the Laws of 1890, as amended by chapter 693 of the Laws of 1894.
    The provision in the Constitution of the State of New York (Art. 3, § 18), which provides that ‘ ‘ no law shall authorize the construction or operation of a street railroad, except upon the condition that the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having the control of that portion of a street or highway upon which it is proposed to construct or operate such railroad, be first obtained,” was directed against the construction and operation of a new street railroad without the proper consents, and there is neither a constitutional nor a statutory prohibition against the use of the tracks of one railroad by the cars of another without such consents.
    Pratt, J., dissenting.
    Appeal by tlie plaintiff, Oliver W. Ingersoll, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 12th day of January, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term.

      Wood & Hill, for the appellant.

      John J. Allen, for the respondent.
   Dykman, J.:

The plaintiff in this action is the owner of real property on the south side of Bergen street, between Rogers avenue and Nostrand avenue.

The suit is instituted for the procurement of an injunction to restrain the defendant from constructing, operating or maintaining any surface railroad or tracks through Bergen street, between thfe avenues above mentioned.

Bergen street, between tiiose two avenues, is included in the route of the defendant’s railroad, but there is in that street already a double-track railroad owned and operated by the Atlantic Avenue Railroad Company, and the defendant has obtained the permission of that company to run the cars of the defendant over the tracks of the Atlantic Company on that block.

At Rogers avenue aifd Nostrand avenue curved tracks are to be laid to connect the defendant’s track with the track of the Atlantic Company, but the complaint contains no claim of injury from the construction of such connecting track.

- The action is based upon the Constitution and the statute, and the constitutional provision invoked is this : “No law shall authorize the construction or operation of a street railroad except upon the condition that the consent of the owners of one-half in value of the property bounded on, ’and the consent also of the local authorities having the control of that portion of a street or highway upon which it is proposed to construct or operate such railroad be first obtained.” (Art. 3, § 18.)

Section 91 of the Railroad Law (Chap. 565 of the Laws of 1890), as amended by chapter 434 of the Laws of 1893, contains substantially the same interdiction.

The complaint alleges that the defendant, in pursuance of the consent of the common council of the city of Brooklyn, is constructing and preparing to maintain and operate -its tracks or road on Bergen street, between Rogers and Nostrand avenues, and that such construction and operation would irretrievably injure the value of the plaintiff’s property and infringe his rights.

The facts, however, fail to sustain those charges of the complaint, because, as we have seen, the defendant is not constructing, and does not propose or intend to construct or operate, its tracks or road on Bergen street at all.

The tracks of the Atlantic Avenue Company are laid there, and we must assume that the consent of the property owners and of the local municipal authorities has been obtained for the construction and operation of that road through Bergen street. All the constitutional and statutory requirements are, therefore, satisfied.

The Atlantic Company may operate its road in any legal manner consonant with the purposes for which it was organized. It may hire out its line, or it can permit other railroad companies to run their cars over its tracks according to statutory provisions upon that subject. (§ 102 of chap. 565 of the Laws of 1890, as amended by chap. 693 of the Laws of 1894.)

The legal use of the franchises of the Atlantic Company is untrammeled. The defendant does not intend to appropriate Bergen street to any new use. The interests of the locality have been consulted in relation to the construction and operation of the railroad already there, and the street is to be no further obstructed. The defendant does not intend to lay down or operate its railroad tracks in that street.

It is quite conceivable that the right to use the tracks of the Atlantic Company and operate its road may be transferred to another company by a voluntary or forced sale; but it will not be contended that any new consents from property owners or local authorities would be necessary in such a case to the continued operation of the railroad by a new transferee of the property and franchises of the old company.

The right to exercise the franchises of the Atlantic Company became vested upon the procurement of the necessary consents. (Matter of Application of Rochester Electric Ry. Co., 123 N. Y. 351.)

The constitutional inhibition under consideration is leveled against the construction and operation of a new railroad without the proper consents, but there is neither a constitutional nor a statutory prohibition against the use of one railroad by the cars of another without such assents.

Moreover, the question seems to be set at rest by the decision of the Court of Appeals in the case of The People v. Brooklyn, F. & C. I. R. R. Co. (89 N. Y. 15).

It was there decided that one railroad company could run its cars over the road of another compay without obtaining the constitutional consents.

In any view, however, the defendant intends to do nothing of which the plaintiff can complain in this suit. To sustain his action he must show that the defendant is doing or intends to do something in Bergen street that will be of special and peculiar injury to him or liis property. This is not a taxpayer’s suit to jnevent waste or injury, or a public wrong. It is a private action to restrain the defendant from doing an act in a public street in a great city, which is under the control of the municipal authorities for the benefit of the whole people, and in which the plaintiff has no peculiar interest. He does-not stand for the community. He must show an infringement of some private right, or, in other words, he must show that the defendant is doing or is about to do some act in Bergen street from which he will sustain some in jury peculiar to him or his property. Injuries sustained by the plaintiff in common with the general public cannot be redressed in a private action by him.

It already ajipears that the defendant has done nothing in Bergen street, and only intends to run its ears in that street over the railroad tracks now laid down and in use. N o change is contemplated, no additional space is to be occupied, and it is impossible to see how the plaintiff can sustain any peculiar injury from the use of the tracks which the defendant proposes to make.

The judgment should be affirmed, with costs.

Brown, P. J., concurred.

Pratt, J.

(dissenting):

I have been unable to satisfy my mind that the act of 1890 (Chap. 565) and the amendments of 1893 and 1894 do not prohibit any street railway company, organized under the several laws of 1890, from operating any railway in any street except on condition that it shall first obtain the requisite consent of property owners on the street. The defendant was organized under the General Railroad Law of 1890 (Chap. 565). Its route runs through Bergen street in front of ifiaintiff’s premises. It has obtained the consent of the local authorities to construct and operate its road, but it has obtained no consent of any property owners on Bergen street. The consent of the local authorities was conditioned upon its compliance with all the provisions of the “ Railroad Law ” and acts amendatory thereof. The Railroad Law requires consent of one-lialf in value of the property owners on the several streets on its route. The contention of the defendant is that such consents were imnecessary under that law, because it does not propose to construct any railway on Bergen street, but merely to use the tracks of the Atlantic Avenue Railway Company, already existing in that street, under a contract with the latter. As I construe the statute, the prohibition extends disjunctively to the building, extension or operation of street railways. It forbids the operation of a street railway quite as much as its construction or extension. Nor does it matter that the defendant does not propose to construct in Bergen street, or that the Atlantic Avenue railway was constructed before these special statutory provisions, or even the constitutional prohibition. The acts under which the Atlantic Avenue Company was organized rendered it subject to future legislation. The constitutional prohibition was aimed at the future. We find such future legislation in the acts of 1890, 1893 and 1894, aud in the Railroad Law, which, in effect, prohibits any street railway company organized since those acts took effect from operating a railway without such consent, unless, perhaps, as the successor of the owner of the pre-existing franchise of the pre-existing road. True the Railroad Law authorizes a contract by one company for the use of a part of its tracks by another, but that is subject to the other provisions of the law. Such a contract may be lawful, but the moment the hirer of the track attempts to use it, then, quoad hoe, it begins the operation of that railroad. For all practical purposes the portion thus used becomes the road of the hirer, and the act of running cars over it is the operation of the road.” Let ns test this question by an easy illustration of the design of these prohibitions, both in th,e Constitution and in the statute. Take the case of a railway constructed and operated by consent of local authorities and property owners. What did the property owner consent to ? Was it that his street should be thrown open to any use of the tracks to which the consentee might agree ? I think not. He consented to the construction and operation of the railroad proposed by the company which applied for and obtained the consent; a railroad having definite termini, a recorded route and plans; something which the judgment of the property owner could comprehend and upon which he might act intelligently; something from which he could form some estimate of the probable advantage of the scheme to his property and the probable burden or servitude which it would impose.

It is idle to say that any one consenting to the construction and operation of, say, the Bergen Street railway with its specific route,, plan, termini, etc., could have contemplated that the passenger traffic of a new cross-town line, from some grand central depot connection to the seashore, should be poured over that track in front of the consentor’s door. Tie might well have consented to the one, thinking that it would be an advantage to his property, when the other, either alone or in conjunction with the former, would be a positive injury. Instead of the ordinary street railway traffic involving one car in five or ten minutes, there might be as many cars as-congregate about the City Hall square; for, if this sort of thing may be done for one railway company, it may be done for a dozen. Thus-a totally uncontemplated burden or servitude would be imposed on the consentor’s property. His consent would be wholly misconstrued.

This, to my mind, illustrates the design of these constitutional and statutory provisions, namely, to give the property owner some sure guaranty against the encroachment of street railway corporations upon private property. Such a ruling in the case which I present would be simply to whittle away to nothing that which was-intended to be a safe and reliable guaranty, namely, the voice of a, majority in value of the property in any street. As I look upon this case, the defendant and this Atlantic Avenue Company, at the commencement of this suit, stood in precisely the legal relation to property owners which I put by the foregoing illustration. The defendant proposes to operate a part, of its Ivne of railroad, and that which, quoad hoo, is to become its railroad and railroad track, in direct violation of the spirit, if not of the very letter of these statutory and constitutional prohibitions, and without complying even with the conditions on which the consent of the local authorities was given.

These views lead to a reversal of the present judgment and to a new trial, with costs to abide the event of the action.

Judgment affirmed, with costs.


text:
    In the Matter of the Petition of The Trustees of the New York and Brooklyn Bridge to Acquire Title to Real Property in the City of Brooklyn, Belonging to Thomas J. Leary and Others.

      Dower •— divested by eminent domain but not extinguished.

    Where real property belonging to a married man is taken during coverture by the exercise oí the right of eminent domain, an absolute title is acquired divested of any right of dower existing in his wife, hut as between the wife and her husband the inchoate rights of the wife are not extinguished, but must be recognized and protected.
    Motion on behalf of Jessie Leary, made at the General Term in the first instance, for an order to 'compel restitution of the sum of $6,711, collected and received by the defendant, Thomas J. Leary, under and by means of an erroneous order entered in the above-entitled action on the 6th day of September, 1893.

      Grout, De Fere & Mayer, for the motion.

      Fromme Brothers, for Thomas J. Leary, opposed.
   Dykman, J.:

This is a motion addressed to the General Term in the first instance for an order to compel restitution of the sum of $6,711. Previous to 1893, proceedings were instituted for the condemnation of real property belonging to Thomas J. Leary, under the right of eminent domain, for the purposes of the New York and Brooklyn bridge, and they were conducted to completion. The sum of $31,000 was awarded to Leary as compensation for the premises so condemned. There was a mortgage upon the premises, and after deducting the amount of that mortgage, which was paid from the award, one-tliird of the remainder was $6,711.

Subsequent to the making of the award Leary made an application to the court for the payment of that sum to him. The application was opposed by his wife, who claimed that the money should be invested during the lifetime of the husband, and that her inchoate right of dower in the fund should be recognized and protected.

Her application was denied, and an order was made which directed the money to be paid to her husband.

Upon the appeal to tbe General Term that order was reversed and the order of the General Term, was subsequently affirmed in the Court of Appeals. In the meantime, however, Leary had obtained possession of the fund, and now a motion is made to the General Term for an order which shall compel him to make restitution, by the payment of the sum to the treasurer of Kings county, in accordance with the order made and entered upon the decision of the General Term.

The law applicable to. this motion was settled by the General Term and the Court of Appeals, that where real property belonging to a married man is taken by the exercise of the right of eminent domain during coverture, an absolute title is acquired divested of any right of dower existing in his wife, but her inchoate rights as between herself and her husband are not extinguished, but must be recognized and protected as between her and her husband. Such being the settled law applicable to this case, there remains nothing to be said on this application.

The rights of the wife can only be protected by an order such as is now sought by the wife.

The motion must be granted, with ten dollars costs.

Brown, P. J., and Pratt, J., concurred.

Motion granted, with ten dollars costs.