text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel JOSEPH C. HIGGINS, Respondent, v. HUGH J. GRANT, Mayor, etc., and Others, Composing the Board of City Record, Appellants.

      Return to a writ of certiorari—part of it cannot be stridcen out by the court as irrelevant—if incomplete a further return may be ordered.

    While tlie officers of a board, to which a writ of certiorari is directed, are required to return no more than a full account of the proceedings to be reviewed by means of the writ, no authority has been given to the court to strike out any part of the return because it may be irrelevant.

      Where omissions exist in the return, so that a full and complete return of the proceeding has not been made, the power has been conferred upon the court to order the making of a further return.
    Appeal by tbe Mayor, Aldermen and Commonalty of tbe City of New York from an order made at a Special Term of the Supreme Court and entered in tbe office of tbe clerk of tbe county of New York on tbe 9th day of May, 1890, wbicb granted tbe relator’s motion and directed that tbe return to a writ of certiorari issued in tbe above-entitled matter be amended, by omitting therefrom certain resolutions or proceedings, and by including therein certain requests made by tbe relator at a meeting of September, 1889, “to be confronted with the proofs and witnesses against him, and to call witnesses in bis behalf.”

      Woolsey Ccvrmalt, for tbe appellants.

      John Jeroloman, for tbe respondent.
   Daniels, J.:

The course of proceeding to be taken and followed in applications for and proceedings upon writs of certiorari are now regulated and governed by tbe statute. And while tbe officers or boards to wbicb tbe writ shall be directed are required to return no more than a full account of tbe proceedings to be reviewed by means of tbe writ, no authority has been given for striking out any part of tbe return because it may be irrelevant. Tbe officers and boards to wbicb tbe writ is frequently directed are not so accustomed to preside over legal proceedings as to ensure a strict observance of tbe directions and province of tbe writ in making their return. They are liable to transcend as well as to fall short of tbe directions in making their return. And when they have returned matters not relevant to tbe review of their proceedings, it has not been tbe practice to strike them out, but to disregard such matters in tbe bearing of tbe return. Tbe court is more competent to do that than the persons usually are who are required to make tbe return. Tbe statutory provisions contain no authority for correcting tbe return on motion by striking from it irrelevant statements. But the practice has been to permit them to remain in tbe return, and to review tbe decision made upon what took place upon and in connection with tbe hearing and decision. That, too, is the safer course to be followed, for if the court, on motion, were permitted to strike out portions of the return it might be induced to extend its corrective authority to the exclusion of what might be very essential to a correct determination of the case. There is, at least, danger that the practice might result in injury to the relator’s case, while there can be none in the exercise by the court of review of its unquestioned authority to consider only what may legally be pertinent to the case itself.

As to omissions, by which a full and complete return of the proceeding has not been made, there the case is clearly different. For the relator is then deprived of the right secured to him of a complete review of the proceeding against him. To avoid that the power has been provided for the court to order a further return. (Code of Civ. Pro., § 2135.) And it previously existed as fully as it, has been here provided.

To entitle him to a further return the relator has sworn that the return is defective in the respects ordered to be supplied. It is not entirely clear that he is right, but, to avoid the possibility of injustice, a fuller statement from the board of the requests made by and on behalf of the relator, and the disposition made of them, are proper, for upon them and the disposition made of them his case may very considerably depend. The part of the order requiring the further return as to these matters was proper, and it should be maintained.

The order should, accordingly, be modified by reversing that part of it which directs any portion of the return to be stricken out, and denying so much of the motion, and affirming so much as directs the further return to be made. And this modification should be without costs of the appeal to either party.

Van Brunt, P. J., and Brady, J., concurred.

Order modified as directed in opinion, and, as modified, affirmed, without costs of the appeal to either party.


source: Caselaw Access Project

author: Daniels, J. :

license: Public Domain

text:
    TAENDSTICKSFABRIKS AKTIEBOLAGET VULCAN, Appellant, v. ELIJAH MYERS and J. HARBY MOSES, Respondents.

      Evidence—denial of knowledge as to incorporation—trade-mark—proof required in an action to prevent its use.

    Upon the trial of an action, in which the complaint alleges that the plaintiff was a corporation organized and doing business under and by virtue of the laws of the Kingdom of Norway and Sweden, and the answer of the defendants is, “upon information and belief, they deny the plaintiff ever was or now is a corporation,” it is not necessary for the plaintiff to prove its existence as a corporation.
    By section 1776 of the Code of Civil Procedure, such proof is not required, unless the answer is verified “and contains an affirmative allegation that the plaintiff or the defendant, as the case may be, is not a corporation; ” and by section 1779 it is provided that “an action may be maintained by a foreign corporation in like manner, and subject to the same regulations as where the action is brought by a domestic corporation, except as otherwise specially prescribed by law.”
    In order to maintain an action to prevent the use of a trade-mark by another, the law does not require proof that the trade-mark used by the defendant is a perfect or complete simulation or resemblance of that of the plaintiff.
    Where the evidence is such as to present the question whether the resemblance of one trade-mark to another'is such as will probably deceive purchasers, it is not necessary for the plaintiff to present further proof showing that purchasers have, in fact, been deceived by the defendants’ simulations of his trade-mark.
    Appeal by the plaintiff, upon questions of law and upon the facts, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the Mth day of February, 1890, after a trial at the New York Special Term, and, also, from an order dismissing the complaint in the above-entitled action, entered in said clerk’s office on the same day.
    The complaint, among other things, alleged “ that, at the dates hereinafter mentioned, the plaintiff was, and still is, a corporation organized and doing business under and by virtue of the laws of the kingdom of Norway and Sweden.” The answer, among other things, alleged as follows: “ and, upon information and belief, they deny the plaintiff .ever was or now is a corporation.”
    The action was brought by the plaintiff to obtain an injunction restraining the defendant from using a box containing matches, because, as alleged, it infringed upon a label or trade-mark used by the plaintiff.

      H. Arlington, for tbe appellant.

      Michael II. Oa/rdozo, for tbe respondents.
   Daniels, J. :

Tlie parties to this action are manufacturers and dealers in matches. They have been put up and sold in boxes accompanied with labels, designated to be trade-marks. The label of the plaintiff is alleged to have been unlawfully imitated by that of the defendants, which is stated to have been devised and used to divert and obtain its trade, and to injure it in its business by the use of this label. At the trial of the action proof was given from which it is contended that the court would have been warranted in finding that these allegations had been sustained, but it was not definitely acted upon by the court, for the complaint was dismissed at the close of the plaintiff’s evidence, on the motion of the defendants. This motion was made on the ground that the allegation that the plaintiff was a corporation, which the answer denied, had not been proved; that no cause of action had been proved; “ that there is no such similarity between the plaintiff’s trade-mark or label and the defendants’ as would warrant a court of equity granting an injunction m the absence of proof that people have been deceived,” The justice presiding then responded: “ My impression is that in the absence of such proof you have not made out a case, and I, therefore, dismiss the complaint.

It was alleged in the complaint that the plaintiff was a corporation organized and doing business under and by virtue of- the laws of the kingdom of Norway and Sweden. The denial of the defendant was “upon information and belief they deny the plaintiff ever was or now is a corporation.” This denial would be wholly insufficient to require proof of the existence of the plaintiff as a corporation if it had been alleged to have been created under the laws of this State. For by section 1776 of the Code of Civil Procedure, it has been enacted that such proof need not be given unless the answer is verified, “and contains an affirmative allegation that the plaintiff, or the defendant, as the case may be, is not a corporation.” This was not •an affirmative allegation within this section, and would not have entitled the defendants to insist upon this proof, if the plaintiff had been alleged to have become incorporated under the laws of this State. But the absence of that allegation was not important as long as it was alleged that the plaintiff was created a corporation under the laws of the kingdom of Sweden and Norway. For by section 1779 of this Code, it has been further declared that “ an action may be maintained by a foreign corporation, in like manner, and subject to the same regulations as where the action is brought by a domestic corporation, except as otherwise specially prescribed by law.” To dispense with proof of the corporate existence of the plaintiff, in the absence of this affirmative allegation of an answer, was a regulation of the action in the case of a domestic corporation. It defined and prescribed the course of proceeding in the action. And as there was no specific provision requiring a foreign corporation to make proof of its corporate existence under this denial, it follows that proof of the plaintiff’s incorporation could not be exacted without some regulation requiring it; that would be an invidious, as well as unwarranted distinction, needlessly embarrassing to the course and transactions of trade and business, so largely at the present time carried on in the commercial world by means of corporations formed under the laws of'other States of this Union and of foreign countries. As there is no such regulation as required this proof, there was no ground presented for the dismissal of this complaint because of the absence of this evidence.

To maintain this or any other action for the use of the trade-mark of another, the law does not exact a peifect or complete simulation or resemblance. But what has been made necessary is, that there shall be such an imitation of the plaintiff’s trade-mark by the defendants as is calculated to, and probably will, deceive purchasers into the belief that, in buying the defendants’ articles, they are really obtaining those manufactured or dealt in by the plaintiff, and in that manner induce them to purchase the defendants’ productions for those of the plaintiff. The law, to that extent, intends to afford the plaintiff protection against the artful and ingenious wrongs of rival dealers. This was so clearly stated in Colman v. Crump (70 N. Y., 573) as to justify a repetition of what was there said by Judge Allen, for it is specially applicable to and states the principle governing this case. It was then said that a party may have a property in, that is, an exclusive right to use a ‘ name, symbol, figure, letter, form or device ’ to distinguish goods manufactured and sold by him from those manufactured and sold by others, or to indicate when or by whom, or at what manufactory the article to which it is affixed is manufactured. This property right the courts will protect by injunction, and for its invasion the law gives compensation in damages. It is an infraction of that right to print or manufacture, or put on the market for sale and sell for use, upon articles of merchandise of the same kind as those upon which it is used by the proprietor, any device or symbol, which, by its resemblance to the established trade-mark, will be liable to deceive the public and lead to the purchase and use of that which is not the manufacture of the proprietor, believing it to be his. It is not necessary that the symbol, figure or device used or printed, and sold for use, should be a fac simile, a precise copy of the original trade-mark, or so close an imitation that the two cannot be distinguished except by an expert, or upon critical examination by one familiar with the genuine trade-mark. If the false is only eolorably different from the true — if the resemblance is such as to deceive a purchaser of ordinary caution, or if it is calculated to deceive the careless and unwary, and thus to injure the sale of the goods of the proprietor of the trade-mark, the injured party is entitled to relief.” (Id., 578.) And it may be added that the action will not necessarily be defeated by such points of difference as will be observable by placing the labels or trade-marks side by side, if the general appearance and prominent features prove to be so far identical as to induce dealers not having them both present, to accept the defendants’ for the plaintiff’s. And these principles have the approval and support of many other authorities. (Munro v. Beadle, 55 Hun, 312; Kinney Tobacco Co. v. Maller, 53 id., 340.) And it was not in the least impaired or undermined by what was decided in Morgan's Sons v. Troxell (89 N. Y., 292), where the attributes of resemblance were too slight to produce the deception of even the unwary.”

When the evidence is such as to present the question whether the resemblance of the one symbol, or trade-mark, to the other is such as will probably deceive purchasers, then it is not necessary that further proof should be added that'purchasers have been, in fact, deceived by tbe defendants’ simulation. Tbe facts required to maintain an action to enjoin the infringement of a trade-mark were fully examined and discussed in Manufacturing Company v. Trainer (101 U. S., 51); and among tbe points accepted by tbe court is tbe conclusion that it is not “ necessary to show that any one has, in fact, been deceived if tbe imitation is such as to prove that it is calculated to deceive ordinary purchasers using ordinary caution.” (Id., 65.)

But tbe defendants bad precluded themselves from resting upon tbe objection that proof bad not been given that persons bad not been deceived into tbe belief that tlieir label was that of tbe plaintiff, for its agent was asked, After that match was placed upon tbe market by the defendants, wliat effect, if any, did it have upon your trade of Tbe Vulcan Match ? ’ ” And “ Did tbe placing upon tbe market of The Vulture Match ’ have any effect upon tbe sales of ‘ The Vulcan Match ’ through you ? These questions were not correct in point of form. But that deficiency in them could well have been removed if they bad been objected to on that ground. But they were not. The objections were made in tbe most general form. They were each only “ objected to by defendants’ counsel.” And this objection was sustained and tbe evidence excluded, and tbe plaintiff excepted. These exceptions were well taken, for the plaintiff was at liberty to prove, if that could be done, that its sales had been reduced by placing tbe defendants’ matches in this manner upon tbe market. And these general objections did not warrant tbe exclusion of tbe evidence expected to be.obtained by these questions. (Bergmann v. Jones, 94 N. Y., 51.) But as it bad been so excluded tbe defendants could not make tbe absence of this proof a ground for dismissing tbe complaint.

A very decided effort has been made to sustain this dismissal on tbe ground that tbe differences between tbe labels were such as to prevent tbe plaintiff from maintaining tbe action. But that position is not tenable, for it did not enter into the disposition of the case at tbe trial. Tbe learned presiding justice, 'on tbe contrary, dismissed the action because of tbe absence of proof that tbe plaintiff was a corporation, and that people bad been deceived by the defendants’ label. As has already been seen, this proof was not required to be made, and tbe defendants by their own conduct had prevented themselves from insisting that the latter fact should be sustained by evidence, even if that could be otherwise held to be necessary.

There are important features of difference as well as resemblances in these labels, as will be seen by their inspection. But whether thé plaintiff’s label has been unlawfully infringed by the defendants is not a question now to be determined. The matches were shown to be exhibited for the purposes of sale, by the single box, although sold in packages. These boxes were each accompanied with the plaintiff’s label. And there is reason to believe that the defendants’ matches were sold in the same general manner with their labels. The following are two of these labels, each attached to the same wooden back-ground.

rPlaintiiTs label here appears in] ["Defendants’ label here appears ini *- original opinion. J *■ original opinion.

And followed by a fold presenting these appearances : Friction, space and words.

[Plaintiff’s exhibit here apeara-] [Defendants’exhibit here appears"] L In original opinion. J *- in original opinion.

But as the complaint was dismissed for the causes which have been stated, and without considering whether there was any unlawful simulation of the plaintiff’s label by the defendants, that question is not now presented for decision by the appeal. It is enough that the case was dismissed, because of the absence of proof on the facts which have been mentioned, and that these defects were unimportant. Whether the case did or did not, as the evidence was given, so present this fact of resemblance between the labels as to entitle the plaintiff to maintain the action, was not denied or considered at the trial, and, therefore, it has not been brought by the appeal before this eourt to be reviewed. (Place v. Hayward, 117 N. Y., 487.)

But as the case was disposed of the judgment cannot be sustained. It should, therefore, be reversed and a new trial ordered, with costs to the plaintiff to abide the result.

Beady, J., concurred.

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


author: Daniels, J.:

text:
    MARY A. P. TUCKER, Plaintiff, v. CORNELIA GILMAN, Respondent.

      Assignment of judgment—liability of the assignee for costs, where the judgment is

    Where a judgment, recovered before the trial court, is assigned, together with “all sums of money that may be had or obtained by means thereof, or on any proceedings to be had thereupon,” and such judgment is reversed on an appeal, the assignee of the judgment is liable for the costs recovered by the defendant' by reason of the failure of the plaintiff’s cause of action, and an order is properly made by the court directing the payment of such costs by such assignee.
    The liability is not limited to the costs accruing after the assignment, but extends to all the costs of the action.
    This rule is applicable to an action brought by the assignee of the receiver of a manufacturing company, incorporated under the laws of the State of New York, to recover the balance of sixty per cent of the defendant’s unpaid subscription for the stock of such company, where the plaintiff fails to recover judgment by reason of the complaint setting forth a claim for the recovery of the amount unpaid and owing by the defendant on the shares of stock of the corporation subscribed for, instead of a cause of action for the ascertainment and adjustment of the amount which is properly payable by such stockholder in order to satisfy the debts of the company.
    It is only when the judgment attempted to be assigned has been recovered upon a cause of action, not itself assignable or transferable, that the attempted assighment will not operate to charge the assignee with the costs of the action where such judgment shall be subsequently reversed on appeal.
    The liability cannot be avoided by the omission of the assignee to take active charge of the prosecution of the action, as it results from the assignment itself, by which the assignee becomes entitled to the advantages of the litigation in case of its success.
    Appeal by Preble Tucker from an order of the Supreme Court, entered in the office of the clerk of the county of New York on the 2d day of July, 1890, as amended by an order, entered July 3,1890, directing that the said Preble Tucker, as a person beneficially interested in the recovery in this action, pay to George II. Eletcher, attorney for the defendant herein, the costs recovered by the said defendant Cornelia Gilman against the plaintiff herein, amounting to the sum of $970.11.
    The action was brought by the plaintiff, as the assignee of the receiver of the Kings County Manufacturing Company, to recover $9,000 alleged to be a balance unpaid upon stock which the defendant held in a certain corporation known as the Kings County Manufacturing Company. Judgment was recovered against the defendant at the circuit for $10,323.34, and an appeal was taken therefrom, pending which appeal Preble Tucker took an assignment of the judgment.
    Upon the appeal to the General Term the judgment below was reversed, and on appeal to the Court of Appeals judgment absolute was rendered against the plaintiff and the costs were taxed at $970.11.

      Charles J. Hardy, for Preble Tucker, appellant.

      George H. Fletcher, for the respondent.
   Daniels, J.:

The plaintiff, as the assignee of the receiver of the Kings County Manufacturing Company, a corporation formed under the manufacturing laws of this State, brought this action to recover the balance of sixty per cent of the defendant’s unpaid subscription for the stock of the company. The receiver was appointed on the petition of the assignees in bankruptcy of Frances Mirick, who was a judgment-creditor of the corporation. She recovered a judgment at the trial for the amount owing by the defendant on her subscription. And after it had been entered she made a written assignment of the judgment, and all sums of money that may be had or obtained by means thereof, or on any proceedings to be had thereupon.” An appeal was taken from the judgment, which was afterwards heard by this General Term, and the judgment was reversed and a new trial ordered. An appeal was then taken to the Court of Appeals, where this decision was affirmed. Both decisions proceeded upon the construction of the statute declaratory of the liability of shareholders for their unpaid subscriptions, holding an action in equity, and not an action at law as this was, to be the appropriate remedy for the enforcement of the liability. The statute has made the shareholders liable upon their unpaid subscriptions so far as to pay on each share the sum necessary to complete the amount of the share as fixed by the charter of the company, or for such proportion of that sum as shall be required to satisfy the debts of the company. (2 B. S. [6th ed.], 391, § 5.) And to ascertain and adjust these amounts is the province of an action in equity. And the plaintiff failed to secure redress for the reason that she failed to acquire the right to' maintain that action, and did not, in fact, proceed in that form. Bat the cause of action presented by her complaint was for the recovery of the unpaid amount owing by the defendant on the shares of the corporation taken by her. And it is the costs, recovered by the defendant on this failure of the plaintiff’s action, that the assignee has been ordered to pay.

This order was made under the authority of section 3217 of the Code of Civil Procedure, which has provided “ where, after the commencement of an action, the cause of action becomes, by transfer or otherwise, the property of a person, not a party to the action; the transíerree, or other person so interested, is liable for costs, in the like cases, and to the same extent, as if he was the plaintiff; and where costs are awarded against the plaintiff, the court may, by order, direct the person so liable to pay them.” And this assignment had the effect of transferring to the assignee the cause of action on which the plaintiff endeavored to maintain her action. For, by section 1912 of the Code of Civil Procedure, a judgment for a sum of money, which this judgment was, may be transferred by assignment, and it is only when it may have been recovered upon a cause of action not itself assignable or transferable, that it will fail to transfer the cause of action in case the judgment shall be afterwards vacated or reversed. This was not such a cause of action. It was for a debt owing by the defendant and recoverable by the creditors of the corporation, so far as it might be necessary to satisfy the debts of the company, and proportionately with the liability similarly existing against other shareholders for their unpaid subscriptions. The liability was in no sense a penalty, but it was for what the subscribers had rendered themselves liable to pay in purchasing the shares of the company. And that was transferable before j udgment under the general principles of the law concerning the assignability of choses in action. The assignment of the judgment, therefore, did assign the cause of action asserted by the plaintiff as the foundation of her suit. And that is the effect which such an assignment of a judgment was held to have at common law. It operated as an assignment of the cause of action itself. (Bolen v. Crosby, 49 N. Y., 183; Spears v. Mayor, etc., 87 id., 359, 369.) And both by this section of the Code, as well as the principle supported by these authorities, the assignee became, by the assignment made to him, the owner of this cause of action and liable to pay the costs of defending the action.

This liability has not been limited to the costs accruing after the assignment. But it includes all the costs, for section 32é7 has declared that the transferree “ is liable for costs in the like cases, and to the same extent, as if he was the plaintiff; ” and that plainly includes all the costs which shall be recovered by the defendant.

It is no legal answer to this liability that the plaintiff, in the end, proved to have no well-founded cause of action. If it were, then the assignee would in all cases escape the liability which the statute has declared, for where the plaintiff has a good cause of action the assignee would not be liable at all; and if he were not, when the plaintiff failed to establish a cause of action the statute would provide the way to defeat its own enactment, which plainly could not be the intention of the law. It is only when the plaintiff fails that the assignee is liable for the costs. And an actual right of action could not have been intended to be necessary to produce that liability. The most that the statute can be held to have required is that the assignment shall be of the alleged cause of action which by the result of the litigation shall be defeated. The design evidently was to declare the assignee liable for intermeddling or dealing in the unfounded legal controversies of other persons. He can, by the assignment to him, acquire all the chances of success, but after he shall have done that and they fail then, under this law, he may be ordered to pay the costs of the defendant. The liability follows the assignment of the asserted, not a real, cause of action.

Neither can this liability be avoided by his omission to take the active charge of the prosecution of the action. For it has been made to result from the assignment itself, by which the assignee becomes entitled to the advantages of the litigation in case of its success. All that is requisite is that the cause of action, whatever it may be when it is capable of being transferred, shall become the property of the assignee. And that property will be derived from the ássignment alone.

By taking the assignment the assignee made himself a party to the litigation. From that time it was carried on wholly for his benefit. If it had resulted favorably, the proceeds would have belonged to him. It was his suit, and it was by his permission that it afterwards went forward in the name of the plaintiff. He voluntarily assumed that relation to the action. And the merits were as fully heard for him as they could have been if he had been in name, as he was, in fact, the party prosecuting. He acquired the litigation with all its consequences, one of which was this liability.

There is no foundation whatever for the objection that this section of the law is in conflict with the Constitution of the State. It has gone no further than to permit the assignment, subject to the condition that the assignee shall assume the payment of the costs when there shall be an adverse result. And he accepted this condition when he took the assignment. The law has deprived him of no right whatever, but he has done that himself" by his own voluntary act. He was at liberty to subject himself to this liability or not as he himself elected. And as he chose to do so for the expected advantages, he must abide by the result the law declared might follow his failure. There was no constitutional restraint standing in his way. It was a matter of pure volition on his part whether he would take this risk which the statute had declared. He did take it, and cannot complain that the law is now enforced against him.

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

Van Brunt, P. J., and Brady J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Yan Brunt, P. J.:

text:
    In the Matter of the Estate of ALFRED G. McQUEEN, Deceased. BENJAMIN J. BLANKMAN, Respondent, v. J. McQUEEN, as Administrator, etc., Appellant.

      Costs on the reference of a disputed claim against an estate.

    The proceedings in the case of a disputed claim against an estate, which is referred under the provisions of the Revised Statutes, are controlled hy the Revised Statutes, as regards the allowance of costs therein, and not by the Code of Civil Procedure.
    Under the Revised Statutes the costs are represented hy the disbursements, and do not necessarily include the allowances provided for in the fee hill in actions.
    Appeal by the defendant, as administrator, from so much of an order of the Supreme Court, entered in the office of the clerk of the county of New York on the 27th day of June, 1890, as awarded costs and disbursements to the plaintiff therein.
    By the order in question, which was made upon the report of a referee, in proceedings under the statute, in reference to a claim against the estate of Alfred G. McQueen by an alleged creditor thereof, it was ordered “ that the said report of the referee herein be, and the same is in all things, confirmed, and that judgment be entered for the plaintiff herein for the amount found due him, and that plaintiff recover his taxable costs and disbursements in the proceedings before said referee.”

      Allen McDonald, for the appellant.

      D. G. jynggs, for the respondent.
   Yan Brunt, P. J.:

In the cases of disputed claims against an estate, which are referred under the statutes, it was held in the case of Denise v. Denise (110 N. Y., 568) that these proceedings were governed by the Revised Statutes, and their provisions controlled the question of costs. Therefore, where a claimant is entitled to costs in these proceedings, it is the costs .referred to in the Revised Statutes, and not costs as mentioned in the Code. Costs under the Revised Statutes were the disbursements, and not necessarily the allowances provided for in the fee bill in respect to actions. The order appealed from seems to contemplate the allowance of costs as taxable under the Code. This was error, and the order should be modified in this respect.

The cases of Hopkins v. Lott (111 N. Y., 579) and Hauxhurst v. Ritch (119 id., 621) in no respect modify Denise v. Denise.

The order appealed from should be modified by striking therefrom, the words taxable costs,” and, as modified, affirmed.

Brady and Daniels, JJ., concurred.

Order modified as directed in opinion, and, as modified, affirmed.


author: Daniels, J.;

text:
    In the Matter of the Petition of MATILDA MYERS for an Allowance out of the Estate of ALFRED G. MYERS, Deceased. In the Matter of the Petition of LOUISA MYERS for an Allowance out of the Estate of ALFRED G. MYERS, Deceased.

      Liability of a firm, which continues after the death of one of its members to use the securities of such member in its business.

    A testator left his estate in trust to certain trustees, one of whom was his partner in business. "Upon the death of the testator a new firm was formed and all the accounts of the old firm were charged to the new firm, which continued to carry on the business theretofore transacted by the firm of which the testator was a partner.
    The personal estate of the testator was represented by stocks and securities held and carried for customers by the firm of which he had been a member, which stocks and securities passed into the control of the new firm and were after-wards mainly employed in carrying on the business transacted by it, of dealing in stocks and securities. A large amount of money held by the firm was deposited in a trust company, which paid two per cent interest on the deposit, which deposit, however, was subsidiary to the business of the new firm.

      Held,, that the new firm was properly charged with interest upon such assets of the estate of the testator at the rate of six per cent per annum.
    That as all the partners of the new firm were aware of the fact of this use of the trust estate, or if they were not aware of it, were chargeable with the duty of ascertaining the .use so being made of it, and neglected to perform their duty, that they were all obligated to pay the interest, and that such obligation was not satisfied by the payment of the two per cent interest received upon the deposit in the trust comp'any.

      Appeals by R. Baring Gould, Jolin A. Rutherford, Richard Ring and J. Champlin Morris from the decrees of the surrogate of the county of New York, entered in his office January 29, 1889, confirming the report of a referee, and directing them to pay to the attorney of the petitioner in the firstabove-entitled proceeding the sum of $6,176.31 on account of her share of the income of the estate of Alfred G. Myers, deceased, andtlie.sum of $183 out of the principal of the estate for one-half the referee’s and stenographer’s fees on the reference ordered on the petition, and answer made to the same; and from a like order directing the executors to pay to John W. Thomson, as committee of the person and estate of Louisa Myers, or to his attorneys, the sum of $6,176.31 on account of the income arising out of the same estate, and the sum of $183 out of the principal of the estate for one-half the referee’s and stenographer’s fees on the reference ordered on the issues framed by the answer of the executors to her petition.

      Edgar M. Johnson, for the executors, appellants.

      George M. Thomson, for the respondent Matilda Myers.

      Foster & Thomson, for the respondent Louisa Myers.
   Daniels, J.;

These proceedings were commenced at different times, but they were finally heard and decided together. The referee, to whom the .issues in them were referred, made one report equally applicable'to and disposing of the issues framed by the answers of the executors to each of the petitions. The report was confirmed by two different orders or decrees directing the moneys to be paid for and on account of each of the petitioners. The proceedings have not been strictly regular, neither have the directions contained in section 2545 of the Code of Civil Procedure been complied with. But as no objection has been taken to them in either respect, and the evidence, as well as the facts proved by it, are fully and clearly before the court, the case may still be considered and decided and these appeals determined.

The petitioners are sisters of the deceased testator, who .departed this life on the 4th day of March, 1887, unmarried, leaving them and an only brother surviving him.. And the orders or decrees from which the appeals have been brought have disposed of the income of the estate, from the decease of the testator to the 28th day of September, 1888. This was found to be tlie sum of $19,050, from which the executors had made previous payments to and on behalf of the petitioners, and for the payment of taxes, amounting to the sum of $6,757.19, leaving a present balance of $12,292.31, which was directed to be divided equally between the petitioners.

Proceedings were pending to revoke the probate of the will, but the brother, by whom they were commenced, consented in writing that the income of the personal estate should be paid to his sisters, but without prejudice to those proceedings. Their pendency, therefore, in no way interfered with the success of the petitioners’ applications.

They claimed the income of the personal estate as the beneficiaries in a trust directed to he created for them by the testator. His directions as to this trust, as well as the final disposition of the property, were as follows:

“After payment of the specific legacies hereinafter bequeathed, I give and bequeath all my personal property of whatever kind, and also the proceeds of my seat in the Stock Exchange, except as hereinafter disposed of, to Richard King, R. Baring Gould, J. Champlin Morris and John A. Rutherford, in trust to collect, invest and reinvest the same, and pay the income thereof in equal shares to my sisters Matilda Myers and Louisa Myers, and I direct that executors should receive the compensation allowed by law, and that no bond or other security be required of them, or either of .them, for the proper performance of their duty. At the death of the last surviving of my sisters I direct that one-half of the principal of my estate be given to my friend and partner, John A. Rutherford, forever, and that the other or remaining half shall be given to William Walton Rutherford forever.”

And no question has been made as to their right to the payment of this income, but the executors claimed that they had already paid over all that the beneficiaries were entitled to receive from them. This was contested and denied by the petitioners, and they were sustained by both the referee and the surrogate in the proceedings following the issues in this manner produced. The executors, however, contend that injustice has been suffered by them through the decisions which have been made. In arriving at the result they have been charged with interest, or income at the rate of six per cent, while they have conceded less than half that rate as the income realized from the personal estate by themselves.

The testator was a member of the firm of Myers, Rutherford & Co., which was composed of himself and the executor, John A. Rutherford, who were engaged in business as brokers and dealers in securities and stocks, and the personal estate of himself was in that firm. Upon the occurrence of his decease a new firm was formed under the name of Myers, Rutherford & Co., in liquidation, in which the executor, John A. Rutherford and his brother, are members. This firm commenced business the next day after the testator’s decease, and all the accounts of the old were changed to the new firm, which thereupon went on with the same business. In this manner it acquired the stocks, bonds and other securities of the preceding firm, and continued its dealings in stocks and securities for responsible customers, for whom it carried these securities, and charged them a uniform rate of six per cent for doing that. On the 2d of May, 1887, the personal estate of the testator was appraised at the sum of $180,852.02, and, so far as it consisted of stocks and securities, this passed into the new firm in the manner already mentioned, and was afterwards mainly employed in carrying on that business.

A large amount of money was deposited in a trust company which paid a very low rate of interest on the deposit. But it is quite plain, from the evidence, that the executors cannot be relieved from the liability to pay a greater rate of interest than that which they received from that source, for the deposits were, in fact, subsidiary only to the business of the new firm. The certificates themselves are proof that they were not taken on account of the executors, bnt were, in fact, the property of the firm up to the time of their assignment, which was not earlier than the commencement of these proceedings, and then was evidently intended to be no more than colorable. These deposits were no more than incidents of the business, and supplied in part tbe means of carrying it on. And so far as capital was employed, the firm received for that employment this return of six per cent. For that object it had the use and benefit of this personal estate, and that entitled these beneficiaries to that rate of income. It was earned by the estate devoted to the trust, and where that is the fact the rule generally followed is to charge the trustees so employing it at least with simple interest. (Perry on Trusts [2d ed.] § 471 [4.])

And while the capital was in this way employed under the direct authority of but one of the executors, they are all subject to the" obligation of making payment of this rate of interest, for all seem to-have been aware of the fact of this use of the trust estate, or if they were not, they were chargeable with the duty of ascertaining what use was being made of it, and neglected the observance of that, duty. This liability was considered in Wilmerding v. McKesson (28 Hun, 184) and (103 N. Y., 329), and an obligation as strict as that was held to be incurred by each of the trustees under such directions as were given to them by the will of this testator.

Nor was it in any degree improper to extend the liability back to' the time of the decease of the testator, for it was from that time that his estate had, in this manner, been employed and this rate of. interest had been realized. That was the rate obtained by the firm which was dissolved by his decease, and, by carrying the same business immediately into the firm formed the next day, the same rate continued to be chargeable and collectible by it. And as the customers were responsible persons no reason presents itself for doubts.' ing that it was, in fact, collected. ' 1

This rate of interest was allowed upon the round sum of $180,000,'. being within' $832.08 of the appraised amount of the testator’s, personal estate. In the appraisement made the sum of $ 14,000 was the value of his undivided half of a seat in the New York Stock Exchange which had not. yielded any income. The sum of $10,503,. the appraised value of suspended securities, also went to make up the amount of the appraisement. And so did specific articles of jewelry, silver, plate, horses, vehicles and other articles, producing no income. These articles were appraised at the value of $1,891.

The referee has stated in his report that the seat in the Stock' Exchange, and the suspended securities and other items from what has been called the I. R. account, had not been included by him-in his valuation of the personal estate. And to reach his valuation, after rejecting them, he must have considered that the remaining part of the estate so far exceeded the appraisement in value as still to be worth the amount of the appraisement. But, while the evidence of the surviving partner indicated that the personal estate would finally exceed the appraisement, it was not satisfactorily proven that such was its condition when the hearing was had. Certainly not to the extent of equalling these deductions. The presumption is that the appraisement was approximately accurate, and it was the safer course to act upon that as long as the evidence left it indefinite to what extent the valuation would finally be found to go beyond that amount. The evidence before the referee was in that condition. The personal estate may considerably exceed the appraisement in value, or it may still remain neai-ly at that amount. And, for the present purposes, that should be adopted as the valuation of the personal estate. And that will reduce the amount on which the six per cent should be paid to no more than $154,458.08, instead of $180,000, assumed by the referee and finally sanctioned by the surrogate.

The surrogate has directed the fees of the referee and stenographer to be paid out of the principal of the estate of the decedent. This direction should be so modified as to exclude what has been devoted to the creation of the trust. For that has been made inalienable during the continuance of the two lives for which the trust has been provided. (3 R. S. [5th ed.], 22, § 84.) And this section has been made applicable to a trust created in personal property. (Id., 75, § 2.) And a like rule previously prevailed.

The surviving partner, who was one of the executors, was asked whether he had been carrying securities for any of the other executors, since the death of Mr. Myers. This was objected to as an inquiry into the private business of the executors. The objection was not sustained, and the counsel for this executor excepted. And he answered that the account which was called Harney, was the account of Mr. Baring Gould, who is an executor of this estate. This was an irrelevant inquiry. But at the same time the exception is unimportant. For the right of the petitioners to the percentage allowed to the extent, or nearly to the extent which has been mentioned, was proved beyond all ground of reasonable controversy, bv the evidence obtained from the executors themselves. And they were in no respect injured by this answer, which did not and could not enter into the final decision of the applications.

No other objections appear to merit attention in the determination of the appeals. But the orders or decrees should be modified by reducing the amount on which the six per cent is calculated to the sum of $154,458.08. And the referees and stenographer’s fees should be directed to be paid out of that part of the estate, not included in the trust or its income, directed to be maintained for the benefit of the petitioners. And neither party should have costs on these appeals.

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

Orders or decrees modified as directed in opinion, and as modified, affirmed, without costs on these appeals.


author: Brady, J.:

text:
    THEODORE HAEBLER and Others, Appellants, v. ELIJAH MYERS and Others, Respondents.

      Attachment set aside—effect of a reversal of the judgment vacatingit upon the rights of subsequent attaching creditors.

      A number of attachments having been issued in different actions, levies were made thereunder upon the same property. The earlier attachment was thereafter set aside on the motion of a subsequent attaching creditor, and the property was sold under the subsequent attachment, and the proceeds thereof were paid over by the sheriff to the parties obtaining such subsequent attachment.

      Held, that the attachment so set aside could not be revived by the reversal of the judgment which vacated it, so that it would be reinstated as a lien upon the property, or upon the proceeds of the sale of the property attached.
    That the subsequent attaching creditor, who had received the proceeds of sale of the property, could not be required to pay it over to the creditor whose prior attachment hasbeen restored by the reversal ón appeal of the judgment which vacated it.
    Appeal by tlie plaintiffs from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 24th day of February, 1890, and from an order, entered in said office on the 24th day of February, 1890, by which judgment and order it was directed that the complaint in the above-entitled action be dismissed and that the defendants recover from the plaintnfs the costs of the action.
    The complaint alleged that the plaintiffs had brought an action against John J. Bernheartli and others, in which a warrant of attachment had been procured and levied upon the property of the defendants in that action; that Elijah Myers and I. Harvey Moses, subsequent lienors upon the attached property, had obtained an order to show cause why the plaintiffs’ attachment should not be vacated, on the return of which an order was entered vacating the plaintiffs’ attachment. After the vacating of the plaintiffs’ attachment the sheriff paid over to the defendants Elijah Myers and I. Harvey Moses, the subsequent lienors, the sum of $900 realized from the attached property. The order vacating the plaintiffs’ attachment was subsequently reversed on an appeal to the Court of Appeals. The complaint demanded judgment for the restitution of the said sum of $900 obtained by the defendants by reason of the vacating of the plaintiffs’ attachment.
    To this complaint the defendants demurred on the ground that it did not state facts constituting a cause of action.

      M. P. Stafford, for the appellants.

      M. H. Gardozo,- for the respondents.
   Brady, J.:

Aside from the reasons given by the presiding justice at Special Term, it may be said that the plaintiffs’ duty, if they hoped to protect their lien by a successful appeal, required them to obtain a stay of proceedings, for which application should have been made, and which would doubtless have been granted. The plaintiffs and defendants were both lienors, the right of each dependent upon the validity of the attachment by which the lien was created, and both subject to such disposition of it as might be made by the courts. When the plaintiffs’ attachment was set aside the defendants took priority, indeed, of all the remaining attachments, if there were any, and it became the duty of the sheriff to pay the money to them. They did not receive money which belonged to the plaintiffs, inasmuch as their supposed lien was declared worthless. It was the money of the judgment-debtor which they received, and to which they were entitled by the law as then.declared.

There is no provision of law by which an attachment discharged by competent authority can be revived by the reversal of the judgment destroying it with all its primitive advantages intact. The subsequent attaching creditor does no wrong in accepting the money under such circumstances. He avails himself of the law as declared, the result of which might be prevented by the diligence of the defeated attaching creditor in obtaining a stay of proceedings as already suggested.

The judgment appealed from should be affirmed, with costs.

'Daniels, J., concurred.

Judgment affirmed, with costs.


text:
    WILLIAM W. DUDLEY, Appellant, v. THE PRESS PUBLISHING COMPANY, Respondent.

      A plaintiff avoiding service of an order—will not he heard on a motion to vacate it.

    It is the duty of the plaintiff in an action, to obey the orders of the court, made for the purpose of promoting the proceedings in the litigation, and where an order is obtained for the examination of the plaintiff as a witness before trial, and the plaintiff intentionally avoids placing himself where he may be personally served with the order, he will not be heard by the court on an application to vacate it.
    In such case the plaintiff is not entitled to the assistance of the court, either by having it consider the grounds upon which the order has been made, or determine whether or not they are supported by the facts which the affidavits, upon which such order was obtained, establish.
    Appeal by the plaintiff from an order of the Supreme Court, entered in the office of the clerk of the county of New York on the 13th day of May, 1890, by which it was ordered that the plaintiff’s motion to vacate and set aside an order, dated February 15, 1890, and to vacate and set aside an order, dated January 20,1890, be and the same hereby is denied, with ten dollars costs, to be paid by the plaintiff to the defendant.

      George BUss, for the appellant.

      JDe Lcmeey Nicoll, for the respondent.
   Daniels, J.:

This action is for the recovery of damages for the publication of an alleged libel, and it was commenced in November, 1888. On the application of the defendant an order was thereafter, made directing the plaintiff; to appear and submit to an examination, for the purpose of supplying the defendant with such information as was sworn to be necessary to enable it to frame and serve its answer, and an order was made extending the time to answer for the purpose of taking this examination of the plaintiff.

The order for his examination was not served upon him for the reason,.as it was there stated, that he could not be found within the State to make this service upon him, and' an application was made in his behalf to vacate the order extending the time for the defendant to answer. This motion was denied because of the inability h> serve the order for the examination of the plaintiff upon him on account of his continued absence from this State. And upon an appeal from that order to the General Term, the order was affirmed substantially for that reason. (Dudley v. Press Publishing Co., 53 Hun, 347.)

Since that time other orders of the same character have been made to obtain the examination of the plaintiff and to extend the time for the defendant to answer, until the information desired to’ be obtained shall be secured by his examination. They were continued to the 1st of January, 1890, when the order for the examination of the plaintiff was made, which it was the object of this motion to vacate and set aside.

On the 23d of January, 1890, the further order followed allowing the order for the examination of the plaintiff to be personally-served upon him wherever he might be found. This service, as-well as others made upon the plaintiff, was to comply with the suggestion contained in the decision of the preceding appeal, that the order for his examination should be served upon his attorneys, and also upon himself, even though he should not be found within the limits of the State. The object of this was not to obligate the plaintiff to appear and submit to the examination as he would have been obligated to do if the service had been made upon him in this State pursuant to the directions contained in section 873 of the Code of Civil Procedure; but it was with the expectation that if he did not intend to evade the regular service of the order, and was willing to comply with the directions given by the court, he would arrange in some way for his voluntary appearance in the proceeding, and thereby comply with the directions contained in the order. But that he has failed to do, and what has been accomplished by the service of the orders upon him out of the State is to prove that the defendant has performed all that was within its power to bring about the plaintiff’s appearance and secure his examination. But this has proved unsuccessful, for the plaintiff at no time has indicated any disposition on his part voluntarily to appear and answer in compliance with the directions. Not only has the service suggested been made of orders, but applications have been made to the attorneys for the plaintiff to secure his voluntary appearance for his examination ; but all these have alike proved to be unsuccessful.

As to one of the orders it is stated in the affidavit of Mr. Keatinge, with apparent reliability, that the plaintiff was present in the city of New York, and registered as a guest at the Everett House on Sunday, November 24, 1889; that he had been served, personally, on the 16th of November, 1889, with an order requiring him to appear on Monday, the twenty-fifth of November, and submit to this examination. And that the order was made and served upon him as well as upon his attorneys are facts that are clearly established. But he did not appear as required by the order but left the city either on Sunday evening or Monday morning. These are facts, together with the others, establishing the service of other orders upon him, clearly indicating his intention to be not to comply with the orders made in this manner by the justices of this court. His disposition has been clearly manifested to avoid the obligation of complying with either one of these orders.

In support of the application to vacate the two orders, it has been stated in the affidavit of Mr. Bliss that, for some months past, the plaintiff had been in the city of New York at frequent intervals, and openly, and could have been served with the order by the use of reasonable'diligence. And there is no reason for doubting the correctness of the statement of Mr. Bliss as to the presence of the plaintiff in the city of New York; but the fact is equally as well confirmed by the other affidavits made in the case, that information of his presence in this manner never has been brought to the attention of either the attorney for the defendant or any of the defendant’s officers, and neither of these persons appear to have had any reason for supposing that the plaintiff was present in the city of New York at any time while he remained here.

No opportunity, therefore, was afforded to the defendant to make a personal service of this order upon the plaintiff. But, from the other circumstances in the case, especially those occurring in November, 1889, it is evident that the plaintiff has been actuated with the Intention, when he has visited this city, of avoiding the service of the order and practically declining to obey its mandate. And under these circumstances the court could not, with any just respect for its own proceedings, listen to his application to vacate either of these orders. It is his duty, as a suitor in court, to obey the directions given by its justices for the purpose of promoting the proceedings in the litigation, and as long as he intentionally avoids placing himself where he may be personally served with the order, he cannot consistently expect to be heard in an application to vacate it. That it has been his intention to avoid the personal service of this order is further sustained by his omission to make any affidavit whatever explanatory of his failure voluntarily to appear, or of his successful -avoidance of the personal service of the order.

That it is the duty of the court not to listen to an application of a party affected by this misconduct to vacate orders adversely to him has been considered and held, under somewhat like circumstances, in Keenan v. O’Brien (53 Hun, 30) and Matter of O’Byrne (55 id., 438), as well as in the preceding decision made upon the plaintiff’s appeal.

If it shall be the intention of the plaintiff to submit himself to the personal service of an order for his examination, the least he can do will be to extend the information of that fact to some person interested in making or bringing about the service. For without information of that character from himself or' some other source, the officers and attorney of the defendant have no reason to believe that any efforts they may make will result in bringing about the personal service of this order.

Under the facts as they are now presented, the plaintiff is not entitled .to the assistance of this court either in considering the grounds upon which the orders have been made, or determining whether or not they are supported by the facts which the affidavits establish. As long as he intentionally avoids the personal service of the order, he must be contented to have the proceedings in the action suspended and practically stayed. And it may be, if this continued disposition to avoid service of the order for bis examination shall be hereafter prolonged, that the court will consider it its duty altogether to dismiss his action. It is not necessary to determine that point at the present time, but it is sufficient that the facts which are proven do not entitle the plaintiff to any consideration of the merits of his application at. the hands of the court.

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

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

Order affirmed, with ten dollars costs and disbursements.


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

text:
    JEROME BUCK, Respondent, v. W. SEWARD WEBB, as President of the WAGNER PALACE CAR COMPANY, Appellant.

      Loss of a drawing-room, car ticket — right of the passenger, notwithstanding the loss, to occupy the seat — costs payable as a condition of granting a new trial, where a verdict is set aside as against evidence.

      A passenger, who had purchased a ticket entitling him to a seat in a drawing-room car from Saratoga Springs to the city of New York, having lost the ticket applied to the agent who had issued it for another. The agent declined to issue another ticket, but gave the passenger his personal card with the statement thereon: “This gentleman holds seat in "Nokomis,’ this p. m. Mislaid. C. E. Benedict.” With this card and his passage ticket the passenger took his seat in the drawing-room car, and when called upon by the conductor for his drawing-room car ticket explained the facts and produced the card of the agent. No other person appeared to claim the seat in question, but the conductor of the car declined to accept the card of the agent, with the explanation offered, and informed the passenger that he must then pay for the seat or leave the car. The passenger declined to pay and went into a common car.
    In an action brought' by the passenger to recover the damages arising from his removal from the drawing-room car:

      Held, that as no other person made claim to the seat in the drawing-room car, and the particular ticket issued therefor could not be used at any other time on this or any other car, the conductor should have acted on the report of the agent and have allowed the passenger to remain in his seat, and that the railroad company was liable for the damages resulting to the passenger by reason of his removal therefrom. (Van Brunt, P. J., dissenting.)

      A party entitled to relief against a verdict not supported by the evidence, is properly required, as a condition of bis obtaining a new trial, to pay the costs of opposing the motion and the costs of the trial, including witness fees and disbursements, but not to pay all the costs of the action, as a condition of the granting of a new trial.
    Appeal by tbe defendant from a judgment, entered in the office of the clerk of the county of New York on the 18th day of December, 1889, and from an order, entered in said clerk’s office on the 22d day of November, 1889, granting a new trial upon the ground that the damages were excessive, upon the payment of all the costs and disbursements of the action, and also from an order of the Circuit Court, dated December 18, 1889, entered in the office of the clerk of the county of New York on the 7th day of January, 1890, denying a new trial, on the ground that the defendant had refused to pay such costs and disbursements.

      Saunders, Webb <& Worcester, for the appellant.

      G. W. Gotterill, for the respondent.
   Daniels, J.:

The verdict was for the sum of $1,000, for the damages which the jury concluded the plaintiff had sustained by his exclusion from seat 23, in the drawing-room car Nokomis, for which he had paid one dollar and fifty cents, for his passage from Saratoga Springs to the city of New York. The ticket had been obtained by him from an agent representing the company in the village of Saratoga Springs. And it in form entitled him to that seat, but only on this train and for the day on which it was issued. His evidence, which the jury must have credited to render the verdict they did in his favor, was that, after the purchase, the ticket had been lost. And he then repaired to the office of the agent for another, but as the diagram of the car, showing the seats for which tickets had been issued, had, in the meantime, passed out of his possession the agent declined, as he very well might, to issue another. He did, however, supply the plaintiff with his personal card, with the statement added that, “ This gentleman holds seat in £ Nokomis,’ this p. m., mislaid. C. E. Benedict.” And with that and his passage ticket he took the seat. "After the train had started the conductor of the car called upon the plaintiff for his drawing-room car ticket, and the explanation of these, facts was made to him, with the production of the card of the agent containing the indorsement which has been mentioned. But the conductor of the car declined to accept this, card with the explanation, for the occupancy of the seat, although it had been marked on the diagram as having been sold, and no-other person had appeared to claim it by virtue of the lost ticket. The plaintiff was informed that he must then pay for the seat or leave the car. He declined to pay, and complying with the order of the conductor of the car he passed into a common car, which he testified was to some extent uncleanly, and continued there until the arrival of the car at the city of New York in the evening. It further appeared that the money paid by the plaintiff to the agent for the ticket was returned to and, it is to be presumed from the evidence, retained afterwards by the company, which, in this manner, had the advantage of the price of the seat without rendering the service. If the conductor had permitted the plaintiff to-occupy the seat, it would have been his duty to issue a check for it, which the porter would have taken up and delivered to an officer of the company, when it would have been charged to the conductor. And it was the apprehension of the loss of-the fare in this manner which seems to have induced him to withhold his consent to the occupancy of the seat by the plaintiff. But it is by no means sure that this loss would have been made to fall upon him if he had allowed the plaintiff the seat. The officers to be dealt with are-usually reasonable, practical and fair men, and by the presentation of the agent’s card, and information of the fact that this seat appeared on the diagram to have been sold, and remained unclaimed by any other passenger, they would, without doubt, have ratified the act of the conductor if he had allowed the plaintiff his seat. But, if they would not, that fact would not displace the plaintiff’s right to it, and the loss, if it had occurred, must have been an incident of the conductor’s employment.

By the facts that the seat appeared in the diagram to have been sold, and it was claimed by no other person, and the conductor was made aware of the fact by the presentation of the agent’s card that the plaintiff was the purchaser, he had perfectly satisfactory evidence before him that the latter was entitled to this seat. It could not have been more so if the ticket itself which the agent sold, had been produced. If another person had appeared with it and claimed the seat, or if it could have been used on any other train or car, or on this car at any other time, the case would have been different, and have sustained the act of the conductor. But as no other person did claim the seat, and this particular ticket could be used at no other time on this or any other car, the conductor should have acted on the report of the agent and given this seat to the plaintiff. What the law exacts from carriers of passengers is reasonable conduct on the facts brought to their knowledge, or that of their agents and employees. And it was not reasonable to deny his seat to the plaintiff when his title to it was supported by all these facts.

'A large'array of authorities have been brought to the attention of the court by the defendant’s counsel, as cases tending to shield the defendant from liability. But neither arose upon any state of facts bearing any substantial analogy to those now presented. They were either passage or fare tickets, not restricted to any car or train, or were detached in such a manner as to deprive the passenger of his right to the passage, or the time to which their use had been limited had previously expired, neither of these facts existed here, for the ticket had been sold for this seat on this trip by this car, and the conductor was assured of that fact by the report of the agent, and that the plaintiff was the purchaser. It was an improper use of his authority after that to send him into another car.

Certain rules of the company were introduced to sustain the action of the conductor. But they did not do. that, for neither expressly nor by-implication did they include it. Whatever wrong was suffered by the’ plaintiff was done by the employee of this company. There was no default whatever on the part of the company moving the train and carrying the plaintiff. But it was wholly confined to the defendant, which should be held liable to make adequate indemnity to him for the failure to perform its obligation with him. He was not bound to pay the price of the seat again, for he had already acquired the right to-it, and was entitled to stand, as he did, on that right.

But while he was subjected to an indignity which could not fail to be attended with a disturbance of sensibility as well as mortification, he was not personally injured, nor were his rights further invaded than by his exclusion from this seat, and the moral compulsion to which he then submitted of passing to and making his passage in another car. The company .was liable to compensate him by way of damages for this injury. The case clearly is one for indemnity only, and not for punishment. In that respect the jury misjudged its duty by rendering their verdict for $1,000. It exceeded all legal bounds of the injury, and that was considered to be the case by the justice presiding at the trial. But he was in erre r in directing the payment of all the costs of the action as one of the conditions on which a new trial was ordered. For the rule established by the authorities is, that the party entitled to relief against a verdict not supported by the evidence, shall pay the costs of opposing the motion and the costs of the trial, including witness fees and disbursements. Oases do arise where the court itself can, with reasonable fairness and intelligence, by its own action, determine the amount which should not be exceeded by the verdict. But this 'is not one of them. It is peculiarly adapted to the jury, whose discretion, however, should be restrained and guarded against unwarranted extravagance. That was not done.

And the order made should be so far modified as to direct a new trial on payment of the costs and disbursements of the trial, including the fees of witnesses, to be ascertained by adjustment after notice, before the clerk, and ten dollars costs of opposing the motion, and the defendant, in that event, should be allowed ten dollars costs and its disbursements on this appeal. If the defendant fails to pay such costs within the time designated by the general rules of practice, then the order should be affirmed, with the costs and disbursements, already mentioned, to the plaintiff on this appeal. But if the costs shall be paid, including the fee for opposing the motion, then the judgment should also be vacated with the verdict.

Brady, J., concurred.

Yan Brunt, P. J.:

I dissent from the result arrived at, because I do not think that any cause of action was made out.

Order modified as directed in opinion, and, as modified, affirmed.