author:
Herjrioic, J.:
      Mayiiam, P. J.

text:
    The People of the State of New York ex rel. John I. Platt and Another, Respondents, v. Frank Rice and Others, Appellants.

      Contempt proceedings — punishment not limited by the relief dslced for — former decisions, when obligatory — what is a contempt — violation of a stipulation to abide the decision of the Court of Appeals —force of an order during an appeal therefrom — judicial knowledge of an order.

    Where an application is made for the punishment of a person for an alleged contempt, without defining its character, it is for the court to determine, upon the facts established, the nature of the offense committed ; although it is demanded that such person be punished as for a criminal contempt, the court is not necessarily confined to the form of relief or punishment demanded. (Mayham, P. J., dissenting.)
    Former decisions of the Supremo Court and of other courts are valuable, and should be respected as guides to the action of the Supreme Court, but they are not precedents to be followed by it, unless either the facts or principles involved in them are similar to those of the case in which thej1' are cited.
    It is the disobedience of the order of the court which constitutes a contempt, and not the failure to recognize the instrument by which it is enforced.
    In an action in which an. order was obtained directing the issuance of a mandamus, a stipulation was entered into by the parties interested providing that an appeal be immediately taken therefrom, that no action be taken in the matter regarding which the mandamus was granted until the decision of the Court of Appeals upon such appeal, and that such matter should then be acted upon in accordance with the decision of the Court of Appeals. The decision of the Court of Appeals was rendered about two o’clock p. m., and on the evening of the same day action was taken in the matter, contrary to that directed by the Supreme Court, before the issuance of a formal writ of mandamus, upon the decision of the Court of Appeals, preventing such action.

      Held, that the persons taking such action could not he permitted to shield themselves-from punishment for a contempt hy setting up the fact that the formal written mandate, issued to enforce the decision of the court, had not heen issued, if at the time of taking such action they knew what such decision was.
    Parties who have knowledge of the granting of an injunction may he punished for contempt in violating the same, although it has not been served upon them, and the same principle applies to the violation of an order for a writ of mandamus.
    In the interval that elapses between the decision of the Court of Appeals and the transmission of its decision to the Supreme Court, and the entering of an order making such judgment the judgment of the latter court, the appellant cannot lawfully do the act which was prohibited hy the Supreme Court, when such prohibition has been affirmed by the Court of Appeals.
    An order of the Supreme Court, although an appeal be taken therefrom to the Court of Appeals, still exists; the power of the court to enforce it is simply suspended pending the appeal, and the party against whom it is issued is not relieved from its mandate, although it is not enforcible against him until after being passed upon by the Court of Appeals.
    The Supreme Court at Special Term and at General Term will take judicial notice of an order made hy the Supreme Court in the proceeding pending before it, and upon the argument of a case before the General Term it may properly receive a certified copy of an order of the Special Term made in the action.
    Mayham, P. J., dissenting.
    Appeal by tlie defendants, Frank Rice and' others, from an order of the Supreme Court, made at the Columbia Special Term and entered in the office of the clerk of the county of Albany on the 6th day of April, 1894, adjudging them guilty of civil contempt and fining them therefor, also an appeal by the relators, John I. Platt and another, from so much of the said order as recites that the disobedience therein set forth was not willful.

      J. Newton Fiero, for the appellants.

      Edvmi E. Leavitt, for the respondents.
   Herjrioic, J.:

This is an appeal from an order of the Special Term adjudging the appellants guilty of contempt of court in disobeying an order of the Supreme Court theretofore issued, and fining them the amount of the relators’ costs and expenses.

This case has heretofore been before this court (74 Hun, 179) upon an appeal from an order refusing to grant -an order to show cause why the defendants should not be punished .for contempt; most of the material facts and the law relating thereto were discussed by this court in rendering its decision upon such appeal, and it is unnecessary to repeat them here.

The defendants made answer to the Special Term to the charges brought against them, and the Special Term has held that the facts show disobedience by the defendants to the order of the court, and adjudges them guilty of contempt, and I see nothing in the facts set forth in the case upon appeal that would warrant us in arriving at a different conclusion upon the facts than has the Special Term, unless it should be to hold that the defendants willfully and knowingly violated the order in question.

The appellants take exception to the findings of the Special Term in this, that it holds the defendants guilty of civil contempt only, whereas the relators move against the defendants as for a criminal contempt.

I do not think this contention of the appellants is well founded; the moving papers of the relators purport to set forth the alleged facts in the case, and ask the court to punish them for air alleged contempt, without defining the character. It was for the court to determine upon the facts the nature of the offense committed, and even if the relators had demanded the punishment of the defendants as for criminal contempt, that would not necessarily confine the court to the form of relief or punishment demanded; neither does it afford ground for relief to the appellants, if t-lie court found that they were guilty of a lesser offense than the relators claim; the question really is, have the appellants been guilty of any form of contempt, civil or criminal %

1 do not think that the answer of the defendants places them in any different situation from that in which they appeared when this case was last before us, except possibly in regard to the charge that they have willfully disobeyed the order of the court.

As before stated, the general questions, both of law and of fact, arising herein, were discussed upon the former appeal, and it is unnecessary to repeat such discussion here.

But there are some questions raised that perhaps were not disposed of at that time, which it is well to consider here.

The appellants contend that no mandamus was actually issued in this case, and that, therefore, they cannot be punished for not complying with its terms. I do not think that the appellants are in position to raise any such question in this ease. "We have been cited to authorities bearing upon the appellants’ contention in that behalf, but I do not think they are pertinent to the case now before us; former decisions of this and other courts are valuable and should be respected as guides to our action, but they are not precedents to be followed, unless either' the facts or principles involved in them are similar to those of the case in which they are cited. None of the cases cited have any similarity to the case now here.

In this case the order of the court directing the issuance of a mandamus was granted, and then and there a stipulation was entered into by the counsel for the parties that an appeal be immediately taken; that the canvass of votes for senator in the district in question be suspended until the decision of the Court of Appeals upon such appeal, provided such decision should be mader prior to December 30,1891, and that the certificate of the result of the election should be made and issued by the appellants in accordance with the decision of the Court of Appeals.

It appears that the decision of the Court of Appeals was rendered about two o’clock in the afternoon of the twenty-ninth of December. and that the canvass of votes was made by the appellants during the evening of the said twenty-ninth day of December.

It will thus be seen that the defendants, by their own act in entering into the stipulation, rendered unnecessary, and, indeed, prevented, the issuance of the writ of mandamus originally, and by their precipitation in canvassing the votes on the evening of the same day of the decision of the Court of Appeals, they performed the prohibited act before a remittitur from the Court of Appeals could be issued and before an order of the Supreme Court making the judgment of the Court of Appeals the judgment of the Supreme Oom-t, and directing the issuance of a formal writ of mandamus thereupon, would ordinarily, in the orderly and decent practice of the law, be accomplished.

Under "such circumstances, it does not seem to me that the defendants can be permitted to shield themselves from punishment by the fact that a formal written document, which is issued to enforce the order and decision of the court, has not been issued, they knowing at the time what the decision and order of the court is.

It is the disobedience of the order of the court which constitutes tlie contempt, not the failure to recognize the instrument by which it is enforced. In this case the order was that the returns in question should not be canvassed.

Again, the appellants assert that they should not be punished, because no order was in fact served upon them. As before stated in relation to the non-issuance of the formal writ of mandamus, it was rendered unnecessary by the stipulation entered into by them.

It is admitted that the appellants had knowledge of the order, and of its terms and conditions.

“ In administering the law in respect to the violation of injunctions, the Court of Chancery never lost sight of the principle that it was the disobedience to the order of the court which constituted the contempt, and, therefore, although it required of the party availing himself of its order a substantial compliance with the rules of practice upon the subject, it would not usually allow the effect of its orders to be wholly lost when the party sought to be bound by the order had actual knowledge or notice of its existence, although there might have occurred some slip in the formal method of bringing it home to him.” (The People v. Sturtevant, 9 N. Y. 263, 278.)

“ This court has upheld proceedings in the Supreme Court punishing parties for contempt in violating an injunction, who had knowledge of it, though not served.”' (Daly v. Amberg et al., 126 N. Y. 490-496, and cases cited. See, also, R. H. & L. R. R. Co. v. N. Y., L. E. & W. R. R. Co., 48 Hun, 190; Gage v. Denbow, 49 id. 42.)

In Hull v. Head (3 Edw. Ch. 236) the defendant was held gnilty of contempt where the court liad issued an order for an injunction, although the order was not entered, or the process served.

It is true that these cases I have referred to are all cases of violations of injunctions, but I can see no difference in principle between the violation of an injunction, or of an order for an injunction and the violation of an order for a writ of mandamus; the principle is the same; it is the order of the court that has been disobeyed, and it has been brought equally into contempt, whether that order be for an injunction, mandamus, writ of prohibition, or a.ny other writ or order which the court has power to grant or issue!

The appellants also contend that they cannot be punished,.because at the time of the canvass of the votes the proceeding in which the order had been issued was not in the Supreme Court, but was in the Court of Appeals, the remittitur not having been then filed, making the judgment of the Court of Apjieals the judgment of the Supreme Court, and that, therefore, their action was not a violation of the order of the Supreme Court. Except for the prominence of the parties and their counsel who urge this, I should hardly be inclined to spend time upon it. The proposition that by appealing to the Court of Appeals, the person ajopealiug may, in the interval that elapses between the decision of that court and the transmission of its decision to the Supreme Court, and the entering of an order making such judgment the judgment of the latter court, do the act which was prohibited by the Supreme Court, and such prohibition affirmed by the Court of Appeals, answers itself. To countenance such a proceeding would be a travesty of justice.

The order of the Supreme Court still exists, although it be taken to the Court of Appeals ; the power of the court to enforce it is simply suspended pending the appeal; the party against whom it issued is not relieved from its mandate, although it is not enforcible against him until after being passed upon by the Court of Appeals.

Again, the appellants urge that there is nothing in the record to show that at the time the proceedings were taken to punish them for contempt, the principal proceedings were not still in the Court of Appeals, and that, therefore, there were no proceedings pending in the Supreme Court.

Upon the argument there was produced before us a certified copy order of a Special Term of the Supreme Court, held by the presiding justice of this court,’ on the 30th day of December, 1891, making the judgmeut of the Court of Appeals in this matter the judgment of the Supreme Court; such certified copy order, we think, this court had power to receive, for the purpose, if necessary, of sustaining the order appealed from. (Day v. Town of New Lots, 107 N. Y. 148, and cases cited.)

And in addition to that, it seems to me that the court at Special Term, as also this court, can take judicial knowledge of an order made by the Supreme Court in the same proceeding.

The order appealed from should be affirmed, with ten dollars costs and printing and other disbursements of this appeal.

Putnam, J., concurred.

Mayiiam, P. J.

(dissenting):

Some of the questions argued on this appeal were considered and disposed of by this court on appeals taken from the orders of Justices Edwards and Barnard, refusing to grant orders requiring the appellants herein to show causé why they should not be punished as for contempt for alleged disobedience of the order of the Special Term of December 7,1891, reported in 74 Hun, 179. The facts set out in the answering papers on this motion were not before the court on that appeal, and so far as they vary the situation as then presented, they are entitled to be considered in the determination of this appeal.

The order of the Special Term of December seventh was based largely, if not entirely, upon the fact that the returns of the county canvassers of Dutchess county, then before the State canvassers, were signed by John Mylod, as secretary of the board of county canvassers, and not signed by the county clerk of Dutchess county, and such returns the order directed the canvassers to disregard, and instead thereof to consider only such returns from the county of Dutchess as might thereafter be filed containing the signature of the county clerk and issued under the seal of said county clerk. A careful examination of that order and of the facts upon which it was based seems clearly to indicate that the ground upon which that order was made vjas that the certificate was signed by Mylod and not by the county clerk.

That ground of objection to those returns was entirely removed by the decision of the Court of Appeals (People ex rel. Daley v. Rice, 129 N. Y. 459, 461), and when so removed the reason for disregarding the Mylod returns contained in the order went with it. Upon that question Peokiiam, J., in discussing the question of the sufficiency of the Mylod returns, says : “We think that under all the facts the steps taken to certify and authenticate the statements were valid, and the proceedings by which they were sent to and received by the Secretary of State and the other State officers were sufficient to entitle them to be filed and considered by the board of State canvassers as the properly certified result of the canvass of the board of county canvassers,” and he concluded by saying: “We think as a result that the order for the writ and the writ itself should be modified by striking out the provisions requiring the return to be certified by and to come from the county clerk of Dutchess county, and issued under his seal, and, as so modified, the order is affirmed/’

Here, then, we have the decision of the Court of Appeals holding that the Mylod returns “received by the Secretary of State cmd the other State officers were sufficient to entitle them to be filed and considered by the bocvrd of State ccmvassers.”

It is true that the order required the State canvassers to disregard the Mylod returns. But what became of that requirement in the order after the explicit determination of the Court of Appeals ? It may be said that that question was answered by this court when the case was before it on a previous appeal. But an examination of the record shows that many important facts were presented to the court, on the hearing of this motion, on the part of the appellants, which were not before the court on the application for an order to show cause, for a refusal to grant which the former appeal was brought, and which may well be considered in determining whether or not the appellants contumaciously violated the order of December seventh, as the same was modified by the decision of the Court of Appeals. Manifestly, the prohibitory part of that order which required the disregard by the canvassers of any return not signed by the county clerk was removed by the decision of the Court of Appeals modifying the order and allowing returns not signed by the clerk to be counted.

That left only the mandatory part of the order in force, which required the canvassers to consider such returns of the county of Dutchess as might thereafter be filed in pursuance of the statute or ■an- order of the court, and to certify and declare the persons appearing upon such subsequently-filed returns to have received the greatest number of votes.

This mandatory part of the order for mandamus, as will be seen by an examination of the papers of the appellants used on this motion, had nothing upon which to operate. No returns from the county of Dutchess were thereafter received and filed in pursuance of the statute, or any order of the court. On the contrary, the clerk of Dutchess county was, by a valid and uureversed order of the court, forbidden and restrained from filing or attempting to file any iurthei' returns with- the board of State canvassers.

The effect of the several orders which prevented the filing of any other or further returns, was not considered on the former appeal, as they were not at that time before the court, but were first used and presented to the court on the hearing of the application to punish the appellants as for a contempt of court.

The first was an order made by Mr. Justice Fursman, dated December 14, 1891, directing the county canvassers of Dutchess county to show cause before the Special Term, to be held in the city of Brooklyn on the nineteenth day of December, why an order should not be made granting a stay, and among other things why an order should not be made directing the county clerk of Dutchess county to refrain from sending a certified copy of the statement of votes cast for the office of senator, and the order concludes in these words : “In the meantime let all proceedings under and by virtue of said order be stayed, and the said county clerk of Dutchess county is hereby ordered not to transmit any copy of said statement hereinbefore mentioned until the further order of this court.” The motion directed to be made pursuant to this order to show cause seems to have been denied by Justice Cullen, holding the Brooklyn Special Term on the nineteenth day of December, and either the order vacated or motion denied, and on the twenty-first of December an order of the Special Term sitting in the First district was granted, which was followed by two successive orders granted in the Third department, of which the following are copies:

“ At a Special Term of the Supreme Court of the State of New York, held in and for the city and county of New York, at the Court House in the city of New York, on the 21st day of Decernber, 1891.

“ Present: Hon. George L. Ingraham.

“The People ex rel. Edward B. Osborne agst. The Board oe Supervisors oe the County oe Dutchess, sitting as a Board of County Canvassers, etc.

“ On reading and filing the affidavit of Delos McCurdy, the order made by Mr. Justice Cullen, Dec. 19, 1891, and all the papers and proceedings herein, it is ordered that the defendants, the Board of County Canvassers of Dutchess county, show cause before the Special Term in Kings county, at the Court House in Brooklyn, on the 23d day of December, 1891, at ten o’clock A. m., why the said order made by Mr. Justice Cuij/en on December 19th, 1891, and entered in the clei'k’s office of the county of Dutchess on the 21st day of December, 1891, should not bo vacated and set aside, and in the meantime and until the hearing and determination of said order, let all proceedings on the part of the defendants and of the county clerk of county of Dutchess be stayed, and said county clerk refrain from sending forward to the Board of State Canvassei’s the statement of the said Board of County Canvassers referred to therein. Service on or before the 22d day of Docembei', 1891, shall be sufficient.

“ GEORGE L. INGRAHAM.

Justice Supreme Court.

“New York, December 21 st, 1891.”

« SUPREME COURT — Albany County.

■“ The People ex rel. Edward B. Osborne agst. The Board op State Canvassers op the State op New York, and Prank Rice, Secretary of State; Edward Wemple, Comptroller; Chas. P. Tabor, Atty.-Gen.; Elliot Danporth, Treasurer, and John Bogart, State Engineer and Surveyor, as members thereof, and eacli of them, and Storm Bmans, County Clerk of Dutchess County.

“ On reading and filing the affidavit of Edward B. Osborne, and a stipulation made and entered into by Matthew Hale, of counsel, in the proceeding for a writ of 'mandamus against the Board of State Canvassei-s of the State of New York, together with the printed •case on appeal from the order granting a writ of mandamus made on the Yth day of December, 1891, by which it appears that a return was made and filed by the county board of canvassers of Duteliess county with the Board of State Canvassers of the State of New York, in and by which it appears that Edward B. Osborne, the relator herein, received a majority of votes cast for senator in the fifteenth senatorial district in the county of Dutchess, as shown by said return, and that a stipulation was made and entered into by and on behalf of the relators representing the interests of the persons opposed to the election of Edward B. Osborne as senator, in and by which it was agreed that the proceedings of the State Board of Canvassers relating to the canvass of votes for senator in the said fifteenth district should be suspended until the decision of the Court of Appeals upon such appeal, provided such decision should be made prior to December 30, 1891, and further providing that such canvass should be completed and the certificates of the result of election should be made and issued by the State Board of Canvassers in accordance with the decision of the Court of Appeals in the cases specified in the stipulation, the proceedings relative to the election of the said Osborne being one of said cases so submitted, and it further appearing that there has been a pretended copy of another return offered to be filed with the Board of State Canvassers, and that the county clerk of Dutchess county has in his possession another return made by the board of canvassers of Dutchess county, which is sought to be offered to be filed with the State Board of Canvassers in violation of such stipulation. Now, on motion of J. Newton Eiero, of counsel for Edward B. Osborne, relator, it is ordered that the Board of State Canvassers of the State of New York, and Storm Emans, county clerk of Dutchess county, show cause at a Special Term of this court, to be held at the Court House in the city of Albany on the 29th day of December at 11 o’clock a. m., why a writ of peremptory mandamios should not issue out of and under the seal of this court, commanding and requiring the said Board of State Canvassers to canvass the return of the board of county canvassers of the county of Dutchess, filed with it on or about the 23d day of November, in case the Court of Appeals shall reyerse the order appealed from ■ heretofore set forth, and declare the result of the election for senator in the fifteenth senatoiial district- in accordance therewith, and that Storm Emans, county clerk of Dutchess county, retain in his possession any other return made by such county canvassers, and refrain from filing, or attempting to file, the same with the Board of State Canvassers, or any member thereof, it appearing that by reason of the fact that the canvass must be completed by the 30th day of December, that notice of eight days cannot be given to such board, and that shorter notice is necessary, and in the meantime let the. said Storm Emans, county clerk, his agents or servants, be stayed from filing, or attempting to file, said return with such State Board of Canvassers, or any of them, and he is hereby forbidden from parting with the same or allowing it to be removed from his custody or control.

“ STEPHEN L. NATHAN,

Justice Supreme Oourt.”

The proof shows that this order was made on the 23d day of December, 1891. 1

“ At a Special Term of the Supreme Court held in and for the State of New York at the City Hall in the city of Albany, on the 30th day of December, 1891:

Present: lion. Stephen L. Nayham.

“The People ex rel. Edward B. Osborne agst. The Board oe State Canvassers oe the State oe New York, and Frank Bice, Secretary of State; Edward Wemple, Compt.; Chas. F. Tabor, A.tty.-Gen.; Elliot Daneorth, Treasurer, and John Bogart, State Engineer and Surveyor, as members thereof, and each of them, and Storm Emans, County Clerk of Dutchess County.

An order to show cause having been heretofore made returnable in this matter at a term of this court appointed to be held at the City Hall in the city of Albany on the 29th day of-December, 1891, at 11 o’clock a. m., among other things, why a writ of peremptory mandmrms should not issue out of and under the seal of this court commanding and requiring Storm Emans, defendant herein, county clerk of Dutchess county, why he should not retain in his possession any other return made by the county canvassers of Dutchess county than that heretofore filed, and refrain from filing, or attempting t© file, the same with the Board of State Canvassers, or any member thereof, and the matter having been adjourned until this day; now, on motion of J. Newton Fiero, counsel for relator, Hon. Isaac H. Maynard, Deputy Attorney-General, appearing on behalf of the Board of State Canvassers of the State of New York, making no objection thereto, it is ordered that a peremptory writ of mandamus issue out of and under the seal of this court directed to Storm Emans, county clerk of Dutchess county, commanding and requiring him to retain in his possession any return made by the board of county canvassers of Dutchess county, other than that filed with the Board of State Canvassers, and refrain from filing, or attempting to file, any return now in his possession with the Board of State Canvassers, or any member thereof.

“STEPHEN I. MAYHAM,

Justice Supreme Court.”

On the twenty-ninth day of December the Court of Appeals handed down its decision on the appeal from the order of the General Term, affirming in part the order of the Special Term of December seventh, and after the promulgation of the opinion of the Court of Appeals on the same day the appellants proceeded to canvass the Mylod returns, they being the only returns of the county canvassers of the county of Dutchess at that time on file in the Secretary of State’s office.

No appeal seems to have been taken from the oi-ders above set out, or either of them, nor does it appear that either of said orders has been set aside or modified. 'With these orders in full force and with affidavits used by the appellants in opposition to this motion, the case seems materially changed on this appeal from the manner in which it appeared on the former appeal.

The answer in this case to the moving papers on this motion consisted of a sworn statement, verified by the oath of each of the State canvassers, who are the appellants herein, by a separate affidavit of verification, which, in the most comprehensive way, and in detail, denies every allegation of fact set out in the moving papers tending to show any conspiracy on the part of the appellants or any contu- ' macious violation of the order of the Special Term of this court, unless the canvassing of the Mylod returns, without the certificate of the county clerk of Dutchess county, was such violation; and the answer expressly sets up that according to the interpretation of appellants and that of the Attorney-General, the opinion and decision of the Court of ■ Appeals did not prevent or prohibit the canvass of the Mylod returns; and in canvassing the Mylod returns, which was the only return presented to them as State canvassers, they and each of them acted in the utmost good faith in the discharge of a public duty, and interpreted the stipulation, opinion and decision according to their best judgment, after a careful examination and consideration of the whole matter, and they deny any disrespect to the court or its order or any intention to disobey or disregard such order.

The question argued on this appeal by the attorney for the appellants, to the effect that this court had not obtained jurisdiction of this matter by the filing of a remittitur from the Court of Appeals, making the judgment of that court the judgment of the Supreme Court, need not be considered here, as a majority of this court held adversely to that contention on a former appeal.

Nor need we consider here the effect of the stipulation by which the validity of the Mylod returns was submitted to and considered in the Court of Appeals. ~We are brought directly to consider the right, under all the circumstances of this case, to punish these defendants for an alleged contempt of an order of the Special Term, for a mandamus, which was modified on appeal and upon which no mandamus ever issued.

These appellants, acting as public officers, were, on the handing down of the decision of the Court of Appeals in the afternoon of December twenty-ninth, and on the verge of the expiration of their official terms, called upon first to interpret that decision and opinion and promptly to act in the discharge of their official statutory duty in canvassing the returns and declaring the result of that election, according to their best judgment, guided by the statutes, the orders and decisions of the court, honestly and in good faith. That proof on this motion shows that they did. That proof which appears by their return does not seem to be contradicted or challenged by any proof in the case, as most of the allegations of the relators are on information and belief, and the court granting the order appealed from finds that the alleged disobedience to the order of December seventh was not willful.

Under such circumstances I do not see how the appellants can be adjudged guilty of a contempt of court.

The determination of this question involves grave and substantial rights and cannot be disposed of as a matter of sentiment. High public officials charged with the performance of important public duties are involved in this case, and while no position can give to an official immunity for violation of his public official duty, still, when called upon in the discharge of that duty to exercise judgment, he should not be held amenable to the summary process of the court in a proceeding to punish him for contempt without the most positive and convincing proof of his contumacious disregard of an order of the court which has in clear and unmistakable terms directed his action in a given case.

In the case at bar the order of the Special Term of December seventh had been modified by the Court of Appeals before the performance by the appellants of the act which is alleged as a contempt, so that that order as it was originally made was not in force, nor had any order embodying the decision of the Court of Appeals been made and served upon the appellants at that time.

There was, therefore, at the time of canvassing the return of Dutchess county by the appellants, no order of the court operating upon the State canvassers, directing their action, and consequently no order was violated by them.

Before a party can be adjudged guilty of a contempt for the violation of a writ or order of the court, it must be made to appear that the writ or order with the violation of which he was charged was served upon such party, or- that with the knowledge of the existence of such writ or order he intentionally evaded or avoided the service of the same upon him.

In the case at bar no writ of mandamus ever issued, and consequently none was ever served. As we have seen, the order of the Special Term had been modified, and no modified order was made or served on the appellants at the time of making the canvass. The making of the canvass, therefore, was not a violation of any existing writ or order of the court.

Tlie canvass was made on the 30th of December, 1891, and on the twenty-ninth of that month the Court of Appeals directed as follows: “ It is ordered and adjudged that the order of the Special Term herein dated December 7th, 1891, and the order of the General Term affirming the same, and the same writ itself, be modified, by striking out the provisions requiring a return to be certified, to come from the county clerk,of Dutchess county, and issued under his seal, and that the said order as appealed from as so modified be affirmed, Without costs.”

The case does not show, not is it contended, that any order modifying the original order or writ was ever served on the appellants, or either of them, and yet it must be conceded that the only order authorized in the case at the time of making the canvass, was the modified order as specified and directed in the order of the Court of Ap23eals.

The rule is universal and elementary that personal service of the original jirocess claimed to be disobeyed is necessary to bring the party into contempt. (Jones ex dem. Griffiths v. Marsh, 4 T. R. [4 Durn. & East] 464; Hollingsworth v. Duane, 1 Wall. C. C. 141; Oswald on Contempt, 104; Knight v. Carey, 1 Cow. 39; Ex parte Wallis, 6 id. 581; Holcomb v. Jackson, 2 Edw. Ch. 620; Bank of Utica v. Kilby, 7 Cow. 148.)

It is true that article 3 of title 4 of the Code of Civil Procedure prescribes'the method of serving jiapers in an action and authorizes in most cases service of a copy on the attorney of the party to be served, but section 802 in that article excepts papers to bring a party into contempt, leaving that class of papers to be served as the practice heretofore existed.

In Sandford v. Sandford (40 Hun, 540) it was held that a party cannot be regarded as guilty of a contempt for failing to comply with the directions contained in an order until a copy thereof has been served upon him. In McCauley v. Palmer (40 Hun, 39) it was. held that in the absence of proof showing a service of the order upon the defendant personally, he could not be adjudged guilty of contempt for not complying with it. In that- ease Daniels, J., in delivering the opinion of the court, says: “ To bring a party into-contempt it is the practice of the court to require the order which he is charged with violating to be served personally upon him. This is to be clone by delivering to Iiim a copy of the order, and at the same time exhibiting to him the original. The consequences of a contempt are serious and often severe in the punishment pronounced by the court, and before a party can be subjected to* them, a strict compliance with the practice has been required to be observed.

“ The object of the rule is to furnish the individual himself with an ample opportunity to understand the charge made against him, and prepare to meet it as best he may. It is a sound and salutary rule for the protection of the party, the observance of which cannot be dispensed with, and it has accordingly been held by the General Term, in this department, that the order the party may be charged with violating must be served personally upon him before proceedings can be successfully instituted and carried on to punish him for the contempt arising out of its disobedience.”

And the judge cites in support of his opinion Mayer v. Noll (56 How. Pr. 214).

But it is insisted by the relators that the appellants were guilty of a contempt in violating the order of December seventh, and that the order was served by the delivery of a copy to each of the appellants. But the difficulty with that contention is that the order had no mandate addressed to the appellants. It only directed the issuance of a writ, which was to contain certain commands and conditions, and that writ was never issued or served on the appellants. The service of the order, while it was proper to give the appellants notice of the proceedings, and thus entitle them to appeal, or move to vacate, did not per se operate as a mandamus, or contain any direction or command enforcible against them, except through the operation of the wTrit, which it authorized. Any other construction would be giving to an order for a mandamus all the effect of the writ itself, and render the issuance of the writ unnecessary and nugatory.

No such practice could obtain, because to a writ of mandamus there must be a return, as required by sections 2073 and 2074 of the Code of Civil Procedure, and no return could be made to an order for a writ.

No writ having been issued in this case, there can be no contempt for a violation of the order, for the reason that the order only commands the defendants through the medium of the writ.

Before a party can be adjudged guilty of a contempt he must be served with the writ, and have the opportunity, under section 2075 of the Code, to make any of the motions indicated in that section or make or refuse to make a return to the same, and it is upon that return or refusal, or upon his refusal or neglect to obey the command of the writ, that he may be punished as for a contempt. The same is true of the modified order under the decision of the Court of Appeals. That decision required a modification of the order and of the writ. In that case, as in the original order of the Special Term of December seventh, no writ was ever issued or served. But as the modified order, which was directed to be made under the decision of the Court of Appeals, superseded the original order which it modified, so the writ, which was directed to issue under the original order, which was directed to be modified in accordance with that decision, superseded the writ directed to be issued by the original order.

Hence, the defendants could only be punished for disobedience to the command of the writ directed to be issued under the modified order, and that writ never issued. It was expressly held in United States v. Kendall (5 Cranch, 385) that: “ Upon the affirmance by the Supreme Court of the United States of the judgment of the Circuit Court awarding a peremptory mandamus, and upon the receipt of the mandate of the Supreme Court commanding ‘ that such further proceedings be had in the court below as, according to right and'justice and the laws of the United States ought to be had,’ the court will not issue an attachment against the defendant for contempt in not obeying the former peremptory writ of mandamus which was superseded by the writ of error, but will issue an alias writ of peremptory mandamus.”

The principle involved in the decision, the syllabus of which is quoted above, covers this case, although this case is much stronger for the appellants than that. In that case it does not appear that the judgment or order appealed from was modified on appeal. But it establishes the proposition that the decision on appeal supersedes the order appealed from, and that the liability of the party to be punished for contempt arises out of and must depend upon the order or decision of the appellate court.

But it is- said that the defendants are estopped by their stipulation, voluntarily entered into, from availing themselves of the position that no writ of mandamus was issued either under the order of the Special Term or the modified order directed by the Court of Appeals.

I cannot agree with that contention. I find nothing in that stipulation which renders these appellants amenable to punishment for an alleged 'violation of the mandate of the writ never issued, or of an order for the issuance of such a writ.

The entering into a stipulation before the writ was issued cannot take the place of the writ, especially when the stipulation made no provision for the issuance of such writ.

It is insisted by the learned counsel for the appellants that this is an application to punish a criminal contempt for a willful disobedience of an order of the court, and that when the Special Term reached the conclusion that the alleged disobedience was not willful the application should have been dismissed. It is quite apparent that the proceedings instituted for the punishment of the defendants for an alleged violation of the order of the court was for a criminal contempt under section 8 of the Code of Civil Procedure, the punishment for which is provided for in section 9 of the Code. That it was a proceeding under sections 8 and 9, above referred to, is manifest, not only from the petition and proof, but from the notice of motion upon which the proceedings were had at the Special Term, which notice is as follows :

“SUPREME COURT.

“The People ox reí. John I. Pratt and Another agst. Frank Rice et al.

“ Please take notice that hereto annexed is a copy of an order entered herein at the General Term of this court and filed in the office of the clerk of Albany county on December 21, 1893.

“And also hereto annexed are „ copies of the affidavits therein mentioned, the originals of which affidavits were filed in the office of the clerk of said county, as mentioned in the said order of the General Term, on the day therein stated.

“ You will further take notice that upon your failure to show cause, as required by the said order, of the General Term herein, a motion upon said affidavits will then aud there be made, to wit:

“ At a Special Term of this court, to be held in the county court house in the city of Hudson, in the county of Columbia, on the 13th day of January, 1894, at the opening of the court on that day, or as soon thereafter as counsel can be heard, for an order adjudging you, and each of you, respectively, 'in contempt of court, and imposing upon you, and each of you, respectively, a sentence of thirty days imprisonment in the county jail of Albany county, and a fine of $250, or such other sentence or fine as to the court may seem proper.

“Dated December ’Zlth, 1893.

“Yours, etc.,

“LEAVITT, "WOOD & KIETH,

Attyys. for the Relatm\

“ To Messrs. Prank Rick, Edward "Wemple, Ohas. E. Tabor, Euliot P. Daneortii, John Bogart.”

No claim for personal relief to the relators is made in this action or proceeding. The relators make the application only as citizens having a common interest with all other citizens having no personal claim to, or pecuniary interest in, the office of State senator, which was the subject leading up to this contro vei’sy. The punishment sought to be inflicted by the notice of motion was that prescribed in section 9 for offenses committed under the provisions of section 8 of the Code of Civil Procedure, which is a fine running to the people, and imprisonment as a punishment for an alleged offense against the people, and not one under section 14 of the Code, for indemnity to the party in a civil action, when the rights and remedies of the party are impaired or prejudiced in any of the cases mentioned in that section.

But it is answered to this contention that the notice of motion and papers set forth the facts, and that it was for the court to determine whether the facts justified it in finding either a civil or criminal contempt.

This, it seems to me, is too latitudinous a construction of the power of the court in a summary proceeding of this character, involving the property, character and liberty of defendants, especially when the court is acting under statutory authority.

The party brought into court to answer in a proceeding of this character should be apprised of the character of the charge made against him not only, but should be tried only upon the charge made against him and required to defend only against such charge. The courts of this State have repeatedly recognized the distinction between civil and criminal contempts.

In The People v. Cowles (4 Keyes, 45) Woodruff, J., in delivering the opinion of the Court of Appeals, says: “ The distinction between a commitment upon a precept issued for the disobedience of an order for the payment of a sum of money, and a commitment upon a conviction of misconduct, punishable by fine and imprisonment, is very clearly indicated in the statute, and has been repeatedly declared by the courts. The proceedings are unlike and the proceedings and penalties imposed different.” “ The process in the former case (civil) is strictly and purely remedial, in the latter (criminal) it is punitive and in most instances purely so.”

In The People ex rel. Negus v. Dwyer (90 N. Y. 406) Finch, J., in discussing the question of contempt, says: “ The Kevised Statutes distinguished and the Civil Code preserves the distinction between criminal contempt and proceedings as for contempt in civil cases.” The court in this case holds that a willful violation of an order is a criminal contempt. In this case, as has been observed, the charge in the complaint and notice of motion is of a willful contempt.

The same distinction between civil and criminal contempt is recognized in The People ex rel. Munsell v. The Court of Oyer and Terminer (101 N. Y. 245) wherein Judge Finch, in an elaborate opinion, points out the distinction in the proceedings, object and method of enforcement and punishing civil and criminal contempts. In King v. Barnes (113 N. Y. 480) Finch, J., again in discussing the difference between criminal and civil contempts, says: “ It is true, as we have elsewhere said, that the main line of distinction between criminal and civil contempts is that one is an offense against public justice, the penalty for which is essentially punitive, while the other is an invasion of private right, the penalty for which is redress or compensation to the suitor. But we also pointed out this distinction, while marked and obvious, was not complete and perfect, since behind criminal contempts often stood some trace of private rights, and in civil contempts was occasionally to be found the element of punishment, merely as distinguished from the bare enforcement of a remedy.”

It seems quite clear from the opinion of the Court of Appeals in this case, when the same' was before it on a former appeal, that that court treated the relator as representing the general public and not any private person or private right. (People ex rel. Daley v. Rice et al., 129 N. Y. 449.) I am, therefore, clearly of the opinion that these proceedings must be regarded as for a criminal contempt, which can only be sustained upon the theory and proof that the defendants willfully violated the order of the court, and that the learned judge at Special Term, on reaching the conclusion that the defendants had not willfully disobeyed the order of the court, should-have dismissed the proceedings, and that it was error to compel the defendants to indemnify the complainants as private citizens for their costs, and that that conclusion is not changed bjr the recital in the order that the defendants’ conduct was calculated to and actually did defeat, impair, impede or prejudice the rights and remedies of the relators, and that such recital cannot convert this into a proceeding to punish for a civil contempt. Clearly, if the court had imposed a fine under the notice of motion, such as is asked for in that notice, the relators had no claim personally against the defendants on which it could have been imposed under the provisions of section 14 of the Code of Civil Procedure. It was against a criminal contempt, therefore, that the appellants were asked to defend, and their successful defense of that entitled them to a denial of the motion. In Sherwin v. People (100 N. Y. 358) Miller, J., in discussing the question of contempt, uses this language : “ It should be averred and made to appear that the willful disobedience alleged was, within the terms of the statute, a direct and clear disobedience of the process or order of the court.” In People v. Gilmore (26 Hun, 1) it was held that to warrant a punishment as for a criminal contempt the mandate, process or order must have been lawfully issued.

In Sherwin v. People (100 N. Y., supra) the court quotes with approbation the following language: A solid and obvious distinction exists between contempts strictly such and those offenses which, go by that name, but which are punished as contempts only for the purpose of enforcing some civil remedy.”

Without pursuing the question involved in this appeal further, I am satisfied that, within the views herein expressed, the learned judge at Special Term erred in granting the motion, and that the order appealed from should be reversed, with costs.

Order affirmed, with ten dollars costs and printing and other disbursements.


source: Caselaw Access Project

author: Mayham, P. J.: Putnam, J.: Herrick, J.:

license: Public Domain

text:
    In the Matter of the Judicial Settlement of the Accounts of Sarah M. Ryalls, Administratrix, etc., of William H. Ryalls, Deceased, as to the Proceedings of the said William H. Ryalls, as Executor, etc., of Elizabeth Haney, Deceased.

      Accounting of an administratrix of an executor — the will of the decedent’s testator . is before the court —liability for property in the hands of the decedent as executor at the time of his death — burden of proof.

    Where, upon the accounting of an administratrix in a Surrogate’s Court, the-liability of the decedent as an executor can only be determined by the examination of the provisions of the will appointing him executor, the provisions of that will are before the court for judicial determination.
    Upon the accounting of an administratrix in a Surrogate’s Court the burden of proof is upon the contestants to show by competent proof the amount of the estate of another in the hands of the decedent as executor thereof at the time of his death, and his administratrix is chargeable upon her accounting only for the amonnt thus proved to have been in her hands.
    Reargument of an appeal by Sarah M. Ryalls, as administratrix of William H. Ryalls, deceased, who was the executor of Elizabeth Haney, deceased, from a decree of the Surrogate’s Court of Saratoga county, made and entered in the surrogate’s office of that county on the 19th day of January, 1893, on the judicial settlement of the appellant’s accounts of the proceedings of said William H. Ryalls, as executor.

      Grenville AT. Tngalsbe, for Sarah M. Ryalls, administratrix,, appellant.

      O. H. Sturges, for respondent Cowen.

      J. W. Houghton, for respondent Patterson.

      Hemvmg <& Me Call, for resj>ondent Ryalls.
   Mayham, P. J.:

I see no reason for changing the conclusion reached in this case when it was before us on the former argument, as reported in 74 linn, 205.

First. The liability of Wm. H. Ryalls, as executor of the will of his mother, , Elizabeth Haney, could only be determined by an examination of her will. The provisions of that will were, therefore, before the court for a judicial determination, for the purpose of ascertaining whether his estate was chargeable with all of her estate which came into his hands, or with so much of the same only as remained in his hands at the time of his death. By the terms of the will he was permitted to use the estate for his own benefit; and the amount not so used was bequeathed to the contestants.

Second. The burden was on the contestants of showing by competent proof the amount of the estate of Elizabeth Haney remaining in his hands at the time of his death, and his administratrix was chargeable in this accounting 'lor that amount only; and the contestants failed to show the sum left over at the time of his death. e

We still adhere to our views as expressed on the former hearing in reference to the error committed by the surrogate in the receipt of improper evidence offered by contestants, and received by the surrogate under the exceptions of the appellant. Also, to our views expressed as to the effect of the proof' tending to show the amount of the property owned by Elizabeth Haney some years previous to her death, and we hold that that proof did not cast upon the appellant the onus of proving the negative proposition, that she did not •die the owner and possessor of that amount, or that that amount did not come to the hands ®f her executor.

We, therefore, reiterate our former conclusion that the surrogate’s decree is erroneous, and must be set aside and a new trial or hearing be had before the surrogate, under section 2587 of the Code of Civil Procedure, with costs of this appeal against the contestants, to be paid out of their shares of the estate of Elizabeth Haney, bequeathed to them in and by her will.

Putnam, J.:

It is apparent from the findings of the surrogate that he placed no reliance on the testimony of the witness- Mary Hunter, as to the admission of William H. Ryalls that “he had already realized $15,000 ” from the estate of Elizabeth Haney, deceased. Had he credited the statement of that witness, his findings of fact would have been different from those actually made. I think the surrogate was justified in disbelieving the statement of the witness. All the other testimony in the case tends to show that she was mistaken.

The surrogate, therefore, in finding that Elizabeth Haney, at the time of her death, was possessed of $$,392.47 of property, which came to the hands of William H. Ryalls as her executor, must have based such finding, principally, upon the testimony of William F. Lighthall, the agent of said Elizabeth Haney, showing the payment to her of the sums mentioned in Liglithall’s account during the four or five years prior to her death. The surrogate assumed that the sums of money so paid to Mrs. Haney by Lighthall during the time in question, or the proceeds thereof, remained in her possession at the time of her death and were received by Ryalls as her executor, and that the evidence of the receipt by Haney from Lighthall of the property in question, and the presumption that said property continued in her possession at the time of her death, called on the administratrix of William H. Ryalls to account therefor.

I think that the surrogate in so holding erred, for the reasons stated by Mayham, P. J., in Matter of Ryalls (74 Hun, 205).

It is to be presumed, from the evidence in the case, that Mrs. Haney deposited the greater portion of the various sums received by her from Lighthall in the Hnion Savings Bank at Saratoga Springs. All the sums so deposited by her, except a small balance, were drawn out by her during her lifetime by checks. No proof was given on the trial below that the money so drawn out by Mrs. Haney from, the Hnion Savings Bank ever came into the possession of William II. Ryalls, or the proceeds thereof. No evidence whatever was given as to the disposition of the greater part of the money so drawn by Mrs. Haney from said bank. I think it was mere speculation to assume that Ryalls received the money so drawn out by deceased in the absence of all proof showing ^ that it came into his hands.

In the absence of other evidence showing that the property in question was received by Ryalls, I think the surrogate should have charged his estate only with the amount admitted by William IT. Ryalls in his account made and filed in 1881, together with the value of the stock of the Provident Loan Company.

For the reasons above stated, and also on account of the reception in evidence by the surrogate of the memorandum referred to in the opinion of Mayham, P. L (71 Hun, 209), I think there should be a new trial before the surrogate.

I have not considered the question as to whether the will of Elizabeth ILaney, deceased, gave to her son a mere life estate in the property in question, or the use of such property, with a right to expend the principal thereof. In the view I have taken of the case it is unnecessary to pass upon that question.

Herrick, J.:

I do not think that under the provisions of the will of Elizabeth Haney her executor and devisee, William H. Ryalls, was entitled to use any portion of the principal of the estate so as to diminish its .amount.

It seems to me that all he was entitled to was the use and enjoyment thereof by the receipt of its rent, income and profits during his lifetime.

Hpon the other questions discussed I concur with my associates, and concur in reversing the decree of the surrogate and directing a new trial.

Decree of the surrogate set aside, new trial directed, with costs and disbursements of this appeal against the contestants to be paid out of their share of the estate.


author: Per Curiam :

text:
    Ida S. Harrison, Respondent, v. The Union Trust Company of New York, Appellant, Impleaded with Others.

      Mortgage foreclosure, when pending — amendment of the judgment therein — it cannot be attacked collaterally — bonds secured by a trust mortgage — action to compel the conveyance by the trustee of the mortgaged premises — •parties thereto.

    In an action brought for the foreclosure of a mortgage, until the sale of the mortgaged property is consummated, and the order confirming the sale is entered, the action is pending before the court, and an}*- order made by the court for the amendment of the judgment therein, although erroneous and improperly granted, cannot, in another action in which the parties to the foreclosure action are parties, be treated as void, provided the court had jurisdiction of the parties, and the subject-matter embraced in tlie foreclosure action.
    The remedy is by motion to vacate such order, and a party who has acquiesced in the judgment, as amended, cannot question it in another action.
    The holders of bonds secured by a mortgage upon real estate are persons interested in having the sale of the mortgaged property consummated, and they are sufficiently interested to maintain an action to compel an accounting by the trustee named in such bonds and mortgage, and to obtain a judgment that such trustee shall execute and deliver a conveyance of the mortgaged property to a purchaser thereof, as directed by the judgment in an action brought for the foreclosure of tlie mortgage; tlie purchaser of the property at the foreclosure sale is a proper but not a necessary party to such action.
    Appeal by tbe defendant, Tbe Union Trust Company of New York, from an interlocutory judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of tbe county of Rensselaer on tbe 27th day of March, 1894, upon tbe decision of tbe court rendered after a trial at tbe Albany Special Term overruling tbe demurrer of tbe defendant, The Union Trust Company of New York, to tbe complaint.
    This action was brought by one of tbe holders of certain railroad bonds, secured by a mortgage on real estate, in behalf of herself and of tbe other bondholders, to compel an accounting of tbe trust property, and to obtain an adjudication that tbe trustee of such bonds and tbe mortgage which secured ^tbe same, execute and deliver a conveyance as directed by tbe judgment.in an action brought for the foreclosure of such bonds and mortgage.

      Wheeler II. PeeMam, for the appellant.

      E. W. Paige, for tbe respondent.
   Per Curiam :

The demurrer admits the allegations in the complaint, that in the action brought by Aaron R, Stevens against James C. Hall and others, in which defendant, the Union Trust Company of New York, the mortgagee in the mortgage sought to be foreclosed, was a party defendant, judgment was entered on November 10, 1891, and the order for the amendment thereof on April 5, 1892. That a copy of said judgment and order for the amendment were served on the trust company on May 20, 1892, after the foreclosure sale but before the consummation thereof. That the trust company had refused to obey the direction contained in the amended judgment except upon payment of $5,000.

Until the sale was consummated and the order confirming it entered the “Stevens” action was pending before the court, and we are of the opinion that any order made by such court for an amendment of the judgment, although erroneous and improperly granted, cannot in this action be treated as void. It was an order nlado in an action in which defendant was a party. The court had jurisdiction of the parties and the subject-matter of the action. If the order in question was erroneous the remedy of the trust company was by motion to vacate it. (Stannard v. Hubbell, 123 N. Y. 520, 526, 527; Audubon v. The Excelsior Ins. Co., 27 id. 221.) Having acquiesced in the judgment, as amended, it is not for the trust company in this action to claim that such amended judgment is void.

We are not prepared to hold that the order in question was. improperly or erroneously granted, if we could properly consider that question in this action. (See The Union Trust Co. of New York v. Wm. H. Olmsted, 102 N. Y. 729; Muller v. Dows, 94 U. S. 444, 449, 450.) But, as above suggested, the order of the Supreme Court in the “ Stevens ” action for the amendment of the judgment should not be reviewed in this action.

Therefore, when this action was commenced, a judgment in an action in the Supreme Court, in which the Union Trust Company of New York was a party for the foreclosure of the mortgage in question, required the trust company to execute a conveyance to the purchaser at the mortgage sale. It has refused to do so. Hence it is plain that the trust has not been fully executed, and also that the declination of the trust company to obey the order of the court to execute a conveyance affords a ground for its removal as trustee; at least a court on trial might deem such refusal of defendant to execute a deed, in connection with other facts stated in the complaint, sufficient to justify such a removal.

We are also of opinion that plaintiff, as owner of the bonds secured by the mortgage sought to be foreclosed in the “ Stevens ” action and entitled to her pro rata part of the proceeds thereof, had a sufficient interest to maintain the action. She is interested in having the-sale consummated. In . fact the holders of bonds secured by the mortgage in question are the only persons interested. The purchaser at the mortgage sale although, perhaps, a proper, was not a necessary party, and as no objection was made in the demurrer to the complaint on the ground of a defect of parties the omission of such purchaser as a party defendant does not prevent the maintenance of the action.

Without considering other questions involved, we think the judgment in the case should be affirmed, with costs. The appellant desiring to submit the question involved to the Court of Appeals the certificate provided for by subdivision 4, section 190 of the Code of Civil Procedure will be granted.

The same disposition should be made of the similar case of Aaron R. Stevens and Andrew A. Douglas v. The Union Trust Company of New York and Others.

Present — Mayham, P. J., Putnam and Herrick, JJ.

Judgment affirmed, with costs.


text:
    The People of the State of New York ex rel. Western Electric Company v. Frank Campbell, Comptroller of the State of New York.

      Corporate taa> under chapter 542 of the Laws of 3880, as amended — review of the Comptrollerdecision — hurden of proof of error.

    Where a corporation, during the years 1889,1890, 1891 and 1892, was not wholly engaged in the business of manufacturing, but was also engaged in selling, in a city within the State, goods manufactured by it out of the State, and also in selling articles not of its own manufacture, it is liable to the tax prescribed by the provisions of chapter 542 of the Laws of 1880, as amended by the Laws of 1881 (Chap. 361), 1885 (Chap. 359) and 1889 (Chaps. 353 and 463).
    In proceedings brought to review the decision of the Comptroller of the State of New York in assessing a tax upon a corporation pursuant to the provisions of chapter 542 of the Laws of 1880, as amended by the Laws of 1881, 1889 and 1889, the burden is upon the relator to show that the Comptroller erred in imposing the tax of which it complains.
    Certiorari issued out of the Supreme Court and attested on the 18th day of August, 1893, directed to Frank Campbell, Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all his acts and proceedings relative to the assessment of the Western Electric Company, with all other papers before him pertaining to the assessment of said relator and his statement of the facts showing the legality of such assessment.

      Edwin T. Rice, for the relator.

      T. E. Kcmcock, Attorney-General, John W. Hogcm, Deputy Attorney-General) for the respondent.
   Per Curiam :

The papers show that the business of the relator carried on in this State during the years 1889, 1890, 1891 and 1892 was not wholly that of manufacturing. It clearly appears that besides its manufacturing business it was engaged in selling in New York city goods manufactured by it out of the State, and articles not of its own manufacture. Hence, as we have already held in another case, the relator was liable to the tax under the provisions of chapter 542 of the Laws of 1880, as amended by the Laws of 1881, 1885 and 1889.

The only question then to be considered in this case is whether the tax imposed by the Comptroller was excessive.

The burden was on the relator to show the error of the Comptroller, if any, in imposing the tax of which it complains. (People ex rel. A. C. & D. Co. v. Wemple, 129 N. Y. 558, 565, 566; People ex rel. Osgood et al. v. Commissioners, etc., 99 id. 154; Laws of 1889, chap. 463.)

"We have examined the affidavits, papers and evidence submitted to the Comptroller on the motion for a revision, and without attempting to discuss the questions of fact involved, are unable to hold that the evidence so submitted made it apparent that the determination of the Comptroller, as to the amount of capital stock of the relator employed in this State during the years above mentioned, was erroneous.

The determination of the Comptroller must be affirmed, and the writ of certiorari quashed, with costs.

Present — MAyham, P. J., Putnam and Herrick, JJ.

Determination of the Comptroller affirmed, and writ of certiorari quashed, with fifty dollars costs and printing and other disbursements.


author: Putnam, J.:

text:
    Catherine Roach, as Administratrix, etc., of Thomas H. Roach, Deceased, Respondent, v. The City of Ogdensburg, Appellant.

      Damages resulting from the death of plaintiff’s intestate —judge’s ehm'ge — liability for a failure to repair and for the defective plan of construction of a sidewalk.

    Upon, the trial of an action, brought to recover damages resulting from the death of the plaintiff’s intestate, the evidence was such that the jury could have found that the defect in the sidewalk of the street which caused the death of the plaintiff’s intestate existed in consequence of the neglect of the defendant’s officers to make proper repairs thereon, or that the accident to the deceased was caused by the error or mistake of the common council of the defendant in the plan of the construction of the sidewalk.

      Held,, that it was error for the trial court to decline to instruct the jury that, if they should find that the death of the plaintiff's intestate was owing to the latter cause, the plaintiff could not recover.
    A city is not liable for damages resulting from an accident which occurs by reason of a defect in the plan of construction of a sidewalk adopted by it.

      Appeal by tbe defendant, Tbe City of Ogdensburg, from a judgment of the Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of tbe county of St. Lawrence on tbe 8th day of May, 1893, upon tbe verdict of a jury, rendered after a trial at tbe St. Lawrence Circuit, and also from an order entered in said clerk’s office on tbe 3d day of May, 1893, denying tbe defendant’s motion for a new trial made upon tbe minutes.

      Louis LTasbrouo7c, Charles A. Kellogg and’ Thomas TSpraM, for tbe appellant.

      Malhy <& Lueey, for tbe respondent.
   Putnam, J.:

Tbe evidence produced by the parties on tbe trial was such that tbe jury could have found that tbe defect in tbe street which caused tbe death of plaintiff’s intestate existed in consequence of tbe neglect of defendant’s officers to make proper repairs thereon, or that tbe accident to the deceased, which occurred at tbe crosswalk on Ford and State streets, in tbe city of Ogdensburg, was caused by the error or mistake of tbe common council of tbe defendant in tbe plan of tbe work.

Such being tbe case, we think tbe trial court erred in declining to instruct tbe jury that if they should find that tbe death of Roach was owing to tbe latter cause, tbe plaintiff could not recover; and in charging as follows: “ It is claimed by tbe defendant in this action that that crosswalk was so constructed under a resolution of tbe common council of tbe city of Ogdensburg, and that it having been so constructed, if they made a mistake in tbe plan, tbe city is not liable for it. A mistake in tbe plan of tbe work, of itself, wpuld be no defense to this action; but if it was simply a mistake of judgment on their part, and they bad adopted one of two plans, either one of which at tbe time they adopted it would seem to a reasonably careful, prudent man to be a proper plan to be used under the circumstances under which it was used, and it afterwards turned out that they bad made a mistake of judgment on them part, and that they had not adopted tbe best plan, they would not be liable. That would simply be an error of judgment. If they exercised their judgment as a reasonably careful and prudent man, charged with tbe duty of maintaining safe highways, would ordinarily do under the circumstances, the city cannot be made liable if it turns out after-wards that, although they had exercised their best judgment, they had not adopted the best plan. They are only bound to use such judgment as a reasonably prudent and careful man would exercise under the circumstances. * * * If they adopted a plan that was obviously dangerous, and that any man of ordinary prudence ought to know was dangerous, then the city is liable, though it was adopted by resolution of the common council. * *• * If it was a dangerous place, and one which any man of ordinary prudence in charge of a street, or who looks at it, would pronounce dangerous, it makes no difference how it got there. If it was there, and they had notice of it, that is sufficient, and the city would be chargeable with negligence in maintaining it there.”

The effect of this charge was to instruct thé jury that the corporation was liable for the accident that caused the death of plaintiff’s intestate, although occurring by reason of the defect of the plan of the crosswalk adopted by the common council of defendant, if such plan was not one that should be adopted by reasonably prudent and careful men. In other words, the court submitted to the jury the question as to the propriety of the plan of the crosswalk made by defendant. It instructed them, not as held in the authorities, that the city was not liable for the accident that caused the death of Roach if it occurred by reason of a defect in the plan of the sidewalk adopted by the city; but that it was not liable if such death was caused by a defect in the crosswalk mid the plcm thereof adopted by the common council was such as reasonable and careful men would approve. If this instruction to the jury by the trial court was correct, it is obvious that, in every similar case against a municipal corporation, it would be proper to submit to the jury the propriety of the plan adopted by its common council. In every case where there was a defective plan the jury could determine that it was one which reasonably careful and prudent men would not adopt.

"We think the authorities do not sustain such a doctrine. In Urquhart v. The City of Ogdensburg (91 N. Y. 61) it appeared that the accident which caused the injury to plaintiff, for which the action was brought, was owing to a defect in the plan adopted by the city in laying the sidewalk. The Court of Appeals held that the trial judge erred in refusing to charge that the defendant cannot be held liable for any fault in the plan of the work, and hence was not liable for the steepness of the slope or incline from the platform to the curbstone. The Court of Appeals also held that the trial judge erred in denying defendant’s motion for a nonsuit. The plan adopted in the case cited appeared to be dangerous; but, instead of determining that it should have been submitted to the jury to find whether it was such a plan as a reasonable and careful person should adopt, the Court of Appeals held that the dangerous slope in the street, which caused the injury, appearing to have been made pursuant to the plan of defendant’s common council, a nonsuit should have been granted.

I am not aware that the case above cited has been doubted or overruled. (See Urquhart v. City of Ogdensburg, 97 N. Y. 238; Garratt v. Trustees of the Village of Canandaigua, 135 id. 436, 442, 443; Betts v. The Village of Gloversville, 8 N. Y. Supp. 795.)

The correct doctrine applicable to this case is ably stated in Carr et al. v. The Northern Liberties (35 Penn. St. 324-329), when the question of the liability of a municipal corporation for an injury resulting from a defective plan adopted by its common council was under consideration, as follows: “ Municipal corporations have often been held liable for carelessness in the exercise of their functions; but if we undertake to correct the evil in such a case as this, on the ground of carelessness, we see not how to escape from the necessity of submitting the propriety of all acts of grading and draining in our towns, to the decision of juries; for even discretionary acts may be charged to have been ignorantly or carelessly resolved upon. Any street may be complained of as being too steep or too level; gutters as being too deep or too shallow, or as being pitched in' a wrong direction; and there may be evidence that these things were carelessly resolved upon, and then a tribunal that is foreign to the municipal system will be allowed to intervene and control the town officers. And the end is not yet; for if a regulation be altered to suit the views of one jury, the alteration may give rise to another case, in which the new regulation will be likewise condemned. This theory is so vicious that it cannot possibly be admitted.”

The above case was cited with approval and the same doctrine stated by Cooley, Cli. J., in Detroit v. Beckman (34 Mich. 125-128), and the last-named case was followed by the same judge in Lansing v. Toolan (37 Mich. 152), referred to and followed in Urquhart v. City of Ogdensburg (91 N. Y. 71).

Eor the reasons above stated, we conclude that the judgment should he reversed and a new trial granted, costs to abide the event.

Mayham, P. J., concurred ; Herrick, J., concurred in the result.

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


author: Herrick, J.:

text:
    The Citizens’ National Bank of Saratoga Springs, Respondent, v. Charles H. Hodges, Impleaded with John W. Crane and Others, Appellants. John P. B. Haberlin, Respondent, v. Edward A. Hodges, Impleaded with Augustus A. Trim and Another, Appellants.

      Fraudulent transfers— complaint in a creditor’s suit — allegation as to the return of an execution — an allegation that the plaintiff is without remedy is unnecessary —proof under the charge that the transfer was fraudulent.

    The complaint in a creditor’s action, brought to set aside a deed and mortgage and an assignment for the alleged benefit of creditors, after setting forth the recovery of several judgments and the docketing of the same in a specified county clerk’s office, alleged “ that thereafter and on the same day an execution upon each of said judgments was duly issued to the sheriff of said Sara-toga county, where said defendants then resided and yet reside, which executions were thereafter and before the commencement of this action duly returned by said sheriff unsatisfied, and said' judgments still remain wholly unpaid and unsatisfied.”

      field, that under such allegation proof might be giveu upon the trial, showing both the kind of an execution issued and against whom it was issued, whether against one or all of the defendants.
    In such an action it is not necessary to allege that the plaintiffs are without remedy because the defendants have disposed of all their property, when a fraudulent intent on the part of the grantor or grantee1 is averred.
    The general allegation that a conveyance or transfer of property was made with the,intent to hinder, delay and defraud creditors is broad and sweeping in its operation and effect. It involves many elements, and may, before it can he deemed established, require proof of many other facts and circumstances which may he given in evidence under the general charge without inserting them in the pleading.

      Appeals by the defendants, Jolm "W. Crane and others, and the defendants, Augustus A. Trim and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 13th day of March, 1894, after a trial at the St. Lawrence Special Term, overruling the defendants’ demurrer to the jilaintiff’s complaint, and also from an order made at the St. Lawrence Special Term and entered in the office of the clerk of the county of Saratoga on the 13th day of March, 1894, overruling said demurrer.
    This action was brought to obtain a judgment adjudging to be fraudulent and void as to creditors several instruments of transfer, assignment and mortgage.

      J. W. Grane, for the appellants.

      D. E. Wing, for the respondents.
   Herrick, J.:

It seems to me that the case of Kain v. Larkin (141 N. Y. 144) disposes of these cases.

That case lias been twice to the Court of Appeals, and the complaint therein been sub jected to the keenest scrutiny, and if that complaint is sufficient it seems to me that those in the cases now before us must be.

The complaints in these cases are much more full and complete in their allegations than was the complaint in the case of Kain v. Larkin. Both allege the ownership and possession of property by some of the defendants, and that while so owning and in possession of such property they became indebted to the plaintiffs; that the plaintiffs recovered judgments against them; that executions were issued upon such judgments, and returned wholly unsatisfied and unpaid, and that the judgments remain wholly unpaid and unsatisfied. They allege that after contracting such several debts such defendants conveyed away their property to others of the defendants; that upon one piece of property a mortgage was given, and allege that the several deeds and mortgages, and assignment of mortgages, were and each of them was made, given and executed without any actual consideration, or for a fictitious consideration, and with the intent on the part of the person so conveying and mortgaging to hinder, delay and defraud creditors, and with the intent to secrete and dispose of such property.; they also set forth the execution of a general assignment for the benefit of creditors, and allege that such assignment was made with the intent to hinder, delay and defraud the defendants’ creditors, and with the intent and purpose of subsequently acquiring title to such assigned property for much less than its full value; that is, nominally in the name of some other person, but really and actually for the benefit of the defendants, through a sale by the assignee. After making the sjiecific allegations of the transfer and mortgage of the real estate, the complaints allege that the debtor defendants, with the like fraudulent intent and purpose, have transferred and disposed of all their personal property and property of every kind subject to levy and sale under execution, so that neither of them has any property or the title thereto out of which plaintiffs’ said judgment and execution against them can be satisfied, and allege that unless defendants’ said property can be reached, to compel the payment of such judgments, the same must remain unpaid and the plaintiffs will be wholly remediless. The allegations, it seems to me, are sufficient.

In the case of Kain v. Larkin the court said : The complaint in this case clearly avers the recovery of a judgment by the plaintiff against one of the defendants and the return of an execution issued thereon unsatisfied ; that the judgment is still due; that after the cause of action accrued the defendant transferred his property which would be subject to the lien of an execution to his wife, daughter and brother, by instruments particularly described, and that by the death of the wife and through a satisfaction of the mortgage on the real estate by the brother, and a deed to her by the plaintiff, all this property has become vested in and is now held by the daughter, who has been made a defendant, and has answered the complaint. Tbe complaint then avers that the deed, mortgage and transfer of money in bank to defendant’s credit to his wife, daughter and brother wrere made without consideration, and with the intent to hinder, delay and defraud the plaintiff of her claim.”

It will be seen from this resumé of the complaint in that case by the court that, as I have before stated, such complaint was much more meagre than the ones we have now under consideration. It is claimed that there is no allegation in the complaint in the first-entitled action that the plaintiff has exhausted its remedy by execution ; that there is no allegation that an execution has been issued against the property of the defendants; that the complaint does not show what kind of an execution was issued; and it is claimed that it should appear from the complaint that an execution has been issued against the defendants’ property.

After setting forth the recovery of several judgments entered and docketed in the Saratoga county clerk’s office, the complaint then states: “ That thereafter and on the same day an execution upon each of said judgments was duly issued to the sheriff of said Sara-toga county, where said defendants then resided and yet reside, ■which'executions were thereafter and before the commencement of this action duly returned by said sheriff unsatisfied, and said judgments still remain wholly unpaid and unsatisfied.”

Under such an allegation it seems to me that evidence can be given showing both the kind of an execution issued and against whom it was issued, whether against one or all of the defendants.

An inspection of the record in the case of Kain v. Larkin shows that the complaint sets forth the issuing of an execution in that ease, in the following language :

“An execution on said judgment was duly issued and delivered to the sheriff of the county of Ulster, where Patrick Larkin resided and yet resides, and that the said sheriff has duly returned said execution wholly unsatisfied, and that said judgment remains wholly unpaid.”

It will be seen that the language is very similar to that used in the complaint in this case, and that it does not allege the issuing of an execution against property.

Another criticism of the complaints now before us is, that they do not show that the defendants have transferred all their property, so that they are wholly without means of satisfying the plaintiff’s judgments.

An inspection of the complaint in the case of Kain v. La/rkin shows that there is no such allegation in that case, whereas in these cases we have now under consideration there is the following allegation : “ That said defendants Hodges and Trim have with the like fraudulent intent and purpose transferred, delivered and disposed of all their personal property subject to levy and sale under execution, so that neither of them has any property or the title thereto out of which plaintiff’s said judgments and executions against them can be satisfied.”

The other defendants are the assignees and grantees named in the several instruments by which Hodges and Trim disposed of their property. It seems to' me that the allegation is sufficiently broad to admit proof under it, showing that they had disposed of all their property, and necessarily shows that the plaintiffs would be prevented by any ordinary process of law from recovering their claims against them.

But under the case of Kain v. Larkin, it does not seem necessary to allege that the plaintiffs are remediless because the defendants have disposed of all their property.

A fraudulent intent on the part of the grantor and grantee is averred. The evidence necessary to support these allegations of a fraudulent intent may be, and usually is, made up of many different facts and circumstances, but it is not necessary to insert them in a pleading, and it is generally improper to do so. The pecuniary condition of the defendant at the time, the extent of his property, the part transferred and that retained, as well as the nature and extent of the plaintiff’s claim, which subsequently ripened into a judgment, were all facts bearing on the general allegation of fraud. The plaintiff could prove all these facts and circumstances under her complaint. The general allegation that a conveyance or transfer of property was made with the intent to hinder, delay and defraud creditors, is broad and sweeping in its operation and effect. It involves many elements, and may, before it can be deemed established, require proof of many other facts and circumstances which may be given in evidence under the general charge, without inserting them in the pleading.”

The judgments appealed from should be affirmed, with costs.

Mayham, P. J., and Putnam, J., concurred.

Judgments affirmed, with costs.