author: Barnard, P. J. :

text:
    In the Matter of the Application of The City of Brooklyn to Acquire the Property and Franchises of The Long Island Water Supply Company.

      Water company — what gives it an exclusive right in a town — eminent domain— when the report of the commissioners will he upheld — •appraisal of lands at a less sum than a mortgage thereon.

    The Long Island Water Supply Company was organized in 1881, under chapter 737 of the Laws of 1873 and the amendments thereto, to furnish water to the town of New Lots, which was then adjacent to the city of Brooklyn. By chapter 335 of the Laws of 1886 the Legislature annexed that town to the city of Brooklyn, and in the annexation act provided that the city of Brooklyn should not distribute or furnish water for consumption or use within the territory of the annexed town, or lay any pipes or mains for the distribution or supply of water therein, until the expiration of the charter of the company, or until the city should purchase the property rights of the company. The charter of the company provided for its existence for the term of fifty years from August 17, 1881.
    By chapter 481 of the Laws of 1892 the city of Brooklyn was permitted to acquire title by condemnation to all the property of the Long Island Water Supply Company. Commissioners were appointed in conformity with the provisions of the act to ascertain the compensation to be made therefor, and an appraisal was made by the commissioners, which was not based upon the exclusive right of the water company to furnish water to the territory within the old town of New Lots.

      field, that the basis adopted by the commissioners in their appraisal was not erroneous, as chapter 737 of the Laws of 1873 did not give to the Long Island Water Supply Company the exclusive right to furnish water to the territory included in the limits of the former town of New Lots, nor the exclusive right to maintain water pipes and hydrants in such territory.
    Where witnesses are not harmonious in their views the ¡report of commissioners of appraisal will be upheld, unless it is so clearly against the weight of the body of the evidence as to justify a reversal for that reason.
    A water company has no exclusive right, by force of the permission of a town authorizing it to lay and maintain w^ater pipes and hydrants and to supply the town and its inhabitants with water; nor does a contract made between such towrn and such company, whereby the company agrees to furnish the town with water and to lay and maintain pipes and hydrants therein, but which does not require a distribution of water to all the inhabitants of the town, and calls for only fifteen miles of pipe, where there were over 100 miles of street in the town, give such right.
    It is not obligatory upon a commission appointed to appraise lands taken for a public use that an award shall be made greater than the mortgage on the property appraised; the value only is to be assessed, and the money will go where justice requires it to go and no further.

      Appeal by the City of Brooklyn from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 29th day of June, 1893, denying a motion -to confirm the report of commissioners of appraisal; reversing, setting aside and vacating their report and appraisal; appointing new commissioners and fixing the time and place for their first meeting.
    On the 1st day of August, 1881, the supervisor, town clerk, justices and highway commissioners of the town of New Lots passed a resolution authorizing certain persons, and their successors, by and through a corporation to be formed by them (viz., the Long Island Water Supply Company), “to supply this town and the inhabitants thereof with pure and wholesome water, and also authorize them and their successors, by and through such corporation, to lay and maintain their pipes and hydrants for delivering and distributing water in any of the streets, highways or public places of said town, upon the condition and obligation that such pipes shall be laid and placed below the surface of such streets, highways or places, and that where-ever any street, highway or public place shall be disturbed or broken in laying or maintaining such pipes, such corporation shall restore the same to as good a condition as the same was in before.”
    The following is the contract entered into between the town of New Lots and the Long Island Water Supply Company :
    “ Articles of Agreement made and entered into this fifteenth day of September, A. X)., 1881, by and between the town of New Lots (by O. Washington Colyer, the supervisor; Emil Schiellein, Charles Gertune, James II. Spencer and William Sherlock, the Justices of the Peace; Louis Biedermann, the Town Clerk; Philip L. Jardín, Henry II. Adams and Stephen G. Conover, the Commissioners of Highways of said town, the said persons being the Board authorized and empowered by Chapter 737 of the Laws of 1873 and the laws amendatory thereof and supplementary thereto), party of the first part, and the Long Island Water Supply Company (a corporation duly authorized and empowered under said laws), party of the second part, witnesseth as follows :
    “ Whereas, the party of the first part has duly authorized the party of the second part to lay pipes and mains in the streets, avenues and highways in said town for the purpose of supplying water to said town and the inhabitants thereof, and

      “ Whereas, the said party of the second part has represented that it is now about to proceed to the construction of the work necessary to procure a supply of water as aforesaid, and
    “ Whereas, the said town is desirous, under the authority conferred by said laws, of procuring a proper supply of water to be delivered through hydrants upon its streets, avenues and highways, and is desirous that said company shall immediately proceed with the work under the consent given as aforesaid,

      “ Now, therefore, it is mutually agreed as follows:
    “ The party of the second part agrees with said party of the first part to lay pipes and mains in the streets, avenues and highways of said town wherever there are a sufficient number of residents to make a supply of water from those sources necessary or convenient, but nothing in this contract contained shall compel the party of the second part to lay pipes or mains through highways where the adjacent property is occupied wholly or principally for farming purposes, or to lay or keep supplied such pipes or mains through more than fifteen miles of such streets, avenues or highways in said town.
    “ The party of the first part, by an instrument in writing executed by the persons hereinbefore named, as representing the said party of the first part, or their successors, may at such time or times as they may elect, designate streets, avenues and highways or. parts thereof in said town, in which it prefers pipes or mains shall be laid and supplied, and thereupon the party of the second part shall, within a reasonable time, lay pipes or mains on the streets, avenues and highways so designated, and continue from time to time to lay and maintain pipes or mains on the streets, avenues and highways therefor from time to time designated as aforesaid, until pipes or mains shall have been laid in the streets, avenues and highways as hereinbefore provided; but nothing herein contained shall prevent the party of the second part from proceeding to lay pipes and mains or from erecting fire hydrants to the number of two hundred in the event of the party of the first part failing to designate therefor as herein provided. Prom the pipes or mains so laid water shall be supplied to all persons living on .the line of the streets, avenues or highways where the same are laid at prices not greater than those now charged in the city of Brooklyn; but the said party of the second part shall have the right of reserving to itself the sole and exelusive privilege of tapping or making incisions into the pipes and mains by it laid, and charging and collecting a reasonable compensation therefor from all persons desiring to have their property connected with such pipes or mains, and as a condition for such connection being made.

      “ The party of the second part shall also erect in the streets, avenues and highways of said town, at its own expense, hydrants of the kind or construction ordinarily known as fire hydrants, and keep the same in repair and furnish the party of the first part, or the fire department of the town of New Lots, proper appliances for opening the same.

      “ The party of the second part shall keep the said pipes and mains and said hydrants supplied with water, so as to have at all times a sufficient pressure, and shall at all times keep such pipes and mains supplied with pure and wholesome water sufficient to provide the citizens using the same, as hereinbefore provided, with a sufficient amount of water, and also provide a sufficient supply so that water may be drawn from said hydrants as may be necessary for the extinguishment of fires, or for sanitary or other purposes, except when prevented by the elements, or by causes against which, with reasonable precaution and forethought, they could not provide.
    “ And the said party of the second part also agrees to furnish all necessary drinking hydrants and keep the same supplied; such hydrants shall be for the use of men and animals as shall be required by said persons representing the party of the first part and their successors in office; such hydrants and fire hydrants to be located upon such streets, avenues and highways in said town and at such points and distances thereon as said persons representing the party of the first part, or their successors, shall require, but not more than fifteen of such drinking hydrants shall be provided during the first year water is being supplied, nor more than twenty-five such drinking hydrants in all. The number of fire hydrants to be furnished and supplied as herein provided shall not be less than two hundred; compensation as provided herein for such fire hydrants and each of them shall commence to be earned at the time that such company shall commence to furnish and supply water thereto. And the party of the second part shall furnish such further or additional number of fire hydrants as may be called for by said persons represeating said party of the first part by a certificate in writing over their signature, or the signatures of a majority of them, made at a meeting duly called. For said fire hydrants so to be erected and supplied the said town shall and will pay the said company, in equal quarter-yearly payments, the sums following: For each of the first one hundred hydrants so to be erected the,sum of one hundred dollars per annum; for each of the next fifty hydrants the sum of seventy-five dollars per annum, and for all fire hydrants beyond one hundred and fifty in number the sum of thirty-five dollars per annum; but all drinking hydrants shall be furnished and supplied' with water free of charge.
    “ The party of the second part also agrees immediately to proceed with all dispatch to erect its works for procuring such supply of water and giving the requisite pressure thereto, and to lay pipes and erect and supply hydrants in the streets and highways within the limits of said town, and to have the same in full working order without any unnecessary delay and as designation therefor may be made as hereinbefore provided.

      “ It is hereby further agreed between the parties hereto that said party of the second part shall furnish to said party of the first part for the use of its town buildings and engine houses, and also to its school houses, when situated in locations where pipes or mains are laid, a sufficient and proper supply of water free of charge, and whenever the receipts of said company from private consumers shall be sufficient to pay its legitimate expenses and seven per cent per annum upon its capital stock and six per cent per annum upon its bonded indebtedness, then and from thenceforth all rental for hydrants as herein agreed shall cease andAletermine, and the said party of the first part shall have the use of the same free from all charge whatever, and the said party of the second part shall continue and maintain the same at their own cost and expense.
    “ The hooks of said party of the second part shall be subject to the inspection of said party of the first part at all reasonable times for the purposes of enabling it to ascertain the time when the rental for said hydrants shall cease.
    “ Said party of the second part further agrees to repair and restore to its original condition all the streets, avenues and highways which it may have cause to disturb in the laying of its pipes and mains.

      “ All pipes and mains and hydrants to be laid and furnished shall be of sufficient capacity to supply all necessary water for the uses and purposes herein contracted for.
    “ This contract may be altered or amended by the consent of the parties hereto, given in writing and executed by the proper authorities or officers of the respective parties.
    “ The terms, covenants and conditions of this contract shall bind the parties hereto and their successors and assigns, and shall continue in full force and effect for the full term of twenty-five years from the date hereof.

      “ In witness whereof, the said town, party of the first part, has caused these presents for it and on its behalf to be executed by Emil Schiellein, James H. Spencer, William Sherlock, Justices of the Peace of said Town, and Philip L. Jardin, Henry H. Adams and Stephen G-. Connover, Commissioners of Highways of said Town, by their hands and seals thereto set; and the said Company, party of the second part, has also executed the same by causing its corporate seal to be affixed thereto, and these presents to be signed by its President and Secretary, this 15th day of September, A. I). 1881.
    “ EMIL SCHIELLEIN, [l. s.]
    “ JAMES H. SPENCER, [l. s.]
    “ WM. SHERLOCK, [l. s.]

      “ Justices of the Peace.

    “PH. L. JARDIN, [ns.]
    “ HENRY H. ADAMS, [l. s.]
    “ STEPHEN G-. CONNOYER, [l. s.J
    “ Commissioners of Highways.

      “ GEORGE H. HENRY,

      “Pres. Long Island Water Supply Co.

      “ WM. DINSMORE, Secy. [l. s.]
    “ Sealed and delivered in 1 presence of f
    “ Chas. Y. Yak Doren.”

      Abnet F. Jenks, Corporation Counsel, George G. Reynolds and Albert G. McDonald, for the city of Brooklyn, appellant.

      William C. De Witt and Thomas F. Pecvrsall, for the Long Island Water Supply Company, respondent.
   Barnard, P. J. :

The Legislature, by chapter 737, Laws of 1873, and amendments thereto, authorized by a general act the formation of water companies in towns and villages within the State. Under these laws the Long Island Water Supply Company was organized in 1881 to furnish water to the town of New Lots, which was then adjacent to the city of Brooklyn, but was not a part of it. By chapter 335, Laws of 1886, the Legislature annexed the town to the city of Brooklyn, and in the annexation act provided that the city of Brooklyn should not distribute or furnish water for consumption or use within the territory of the annexed town, or lay any pipes or mains for the distribution or supply of water therein until the expiration of the charter of the water company, or until the city should purchase the property rights of the water company. The charter was taken for the term of fifty years from the 17th of August, 1881. By chapter 481, Laws of 1892, the city of Brooklyn was permitted by law to acquire a title by condemnation to all the property of the Long Island Water Supply Company, consisting of the reservoir, machinery, water pipes and franchises, for the public use. The act provided that commissioners should be appointed to ascertain the just compensation to be made therefor. The commissioners, appointed in the manner provided for by the act, have heard the testimony of the parties, and have made their report. This report was set aside by the Special Term, and this appeal presents the question whether or not the award gives just compensation for the property taken for the public use. The subject of the appraisal is an unusual one, and the proof is very conflicting as to value. The case is one which easily falls within the settled principle that where the witnesses are not harmonious in their views the report of the commissioners will be upheld unless it is so clearly against the weight of the body of the evidence as to justify a reversal for that reason. This award must be affirmed unless an erroneous basis was adopted by the commissioners in their appraisal. The commissioners have made a statement of the rule which governed them, and the important question is whether or not this rule was one which should have been followed. The commissioners state that their appraisal -was not based upon the exclusive right of the water works company to furnish water to the territory within the old town of New Lots. This-was a correct view. The act, chapter 737 of 1873, gives no such exclusive right to a corporation formed under its provisions. The town made a contract with the water company, but this contract did not even require a distribution of water to all of the inhabitants of the town. There are over 100 miles of streets, and the contract calls for only fifteen miles of pipes. The fact is not very material, but it will become important when the effect of the legislative restriction in the annexation act is considered. The water company had no exclusive right in the town by force of the town permission and the contract. (Syracuse Water Company v. City of Syracuse, 116 N. Y. 167.)

The restriction in the annexation act gave no additional power to the water company. It does not purport to do so. The restriction is to be considered with respect to the facts which existed when it was inserted. The town water company existed and had made expenditures under its charter. The restriction was designed only to protect the water company from injurious competition until the city made it a just compensation for its property. The water company seeks to use this humane provision to confer an absolute right to supply the district of New Lots with water for the entire period of the chartered life of the company and to have this exclusive right assessed as part of the franchise of the company. The commissioners of appraisal took the proper view of the restriction. • • It conferred no additional right and it could, at any time, be repealed, and no error of principle can be based upon an expectation that a repeal of the restriction would be made, if its effect was to greatly increase the value of the franchise of the water company as it existed at the date of annexation. The water company was not bound to supply the district annexed and the city was forbidden to do so for a very long term of years. The Legislature intended no such result and the restriction is not to be so read. The city competition with the water company is stayed until it gets title to the water company property such as it was before the annexation act was passed. This is the construction of the Court of Appeals in Ziegler v. Chapin (126 N. Y. 342) on the effect of restriction. The case does not hold that the value of the franchise was increased thereby and must be paid for by the city. The case of The People v. O’Brien (111 N. Y. 1) holds no. such doctrine. The right of the water company cannot be taken away, but what the right was which was to be paid for was not determined by that case and no such question was in it. It is not obligatory upon a commission appointed to appraise lands taken for public use that an award shall be made greater than the mortgage on the property. The value only is to be assessed, and the money will go where justice requires it to go and no further. Otherwise an excessive mortgage would prevent condemnation for public use. The evidence as to value is very full, and even if under strict rules of evidence something was improperly admitted or rejected it did not affect the result.

The order refusing a confirmation of the report of the commissioners should be reversed, with costs and disbursements, and the motion to confirm granted, without costs of that motion.

Dykman and Cullen, JJ., concurred.

Order setting aside award of commissioners and appointing new commission for a reappraisement reversed, with costs and disbursements, and report of commissioners confirmed.


source: Caselaw Access Project

author: Barnard, P. J.:

license: Public Domain

text:
    John Gillies, Respondent, v. The Manhattan Beach Improvement Company (Limited), Appellant.

      Action lased on a quantum meruit — when the certificate of an engineer is a prerequisite to recovery — effect of the delivery thereof directly to the defendant.

    An action was brought to recover on the basis of a quantum meruit the balance due on a sealed contract made between the parties to tire action, whereby the plaintiff was to perform certain labor and furnish certain materials for the defendant at an agreed price, it being provided that the work was to be completed to the satisfaction of the defendant’s engineer, and was to be certified by him before any payments were due.

      Held, that the form of action was not fatal to the plaintiff’s claim, and that, after full performance, such an action would be supported and the contract price would be the measure of damages;
    That the form of the action did not dispense with the certificate of the engineer which was a prerequisite to a recovery.
    In such case it is not an important fact that the engineer’s estimate was delivered directly by him to the defendant by reason, as stated by the engineer, of a possible claim for the delay in the completion of the work.

      Appeal by tlie defendant, tbe Manhattan Beach Improvement Company (Limited), from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of March, 1892, upon the report of a referee.

      William J. Kelly, for the appellant.

      Payne, McGuire da Low, for the respondent.
   Barnard, P. J.:

The plaintiff, in his complaint, avers that he performed labor and furnished materials for the defendant, and claims a balance of $25,730.76. The answer avers payment in full, and further, that the work was done under a sealed contract to build a wooden bulkhead, with tide gates, on the south side of Sheepshead Bay at Manhattan Beach, Coney Island; that the work was to be completed by the 8th of April, 1884, to the satisfaction of the defendant’s engineer, and was to be certified by him before any payment was due ; that in case of failure, the engineer was empowered by the plaintiff to fix the just and reasonable damages sustained by the defendant, and charge the same against the plaintiff; that the plaintiff failed to perform in time, and the engineer assessed the defendant’s damages at the sum of $10,000, and that the engineer had not certified the work to be done. The reply avers that the delay in the completion of the work was caused by the changes in the work made by the defendant, and that the delay was assented to by defendant. The reply further avers that the clause in the contract permitting the engineer to assess damages was abrogated by mutual consent, and the reply denies all loss and damages to defendant by the delay in the completion of the -work.

Upon the trial the amount and value of the work and its completion, to the satisfaction of the engineer, were fully, established by the letter from the engineer to the defendant’s president, July 10,1884. The engineer states that the work was completed July 5, 1884, and that there was due the plaintiff a balance of $7,884.70, not inchiding extra work. The engineer made a final statement of the amount due the plaintiff in July, 1884, to be $9,149.97, which included the extra work ordered by the engineer from time to time.

There is abundant proof in the case that the delay was caused by extra work ordered by the defendant. There is proof, also, that the plaintiff was directed by'the engineer to stop a part of. the work to await the dredging company’s work,, which was employed by defendant, and that this work was not done until about July 1, 1884. The evidence shows that the plaintiff was entirely able to finish the contract in time but for these interruptions, and the finding that the delay was solely caused by the defendant is well supported. The form of the action is not fatal to the plaintiff’s claim. He sued upon a quantum meruit. After full performance such an action will be supported and the contract price be the measure of damages. The form of the action did not dispense with the certificate of the engineer, which was a prerequisite to a recovery. (Byron v. Low, 109 N. Y. 291.)

When proof of final completion of the work is given, a recovery may be had upon a complaint framed upon a qua/nbum meruit. ( Williams v. Slote, 70 N. Y. 601; Swan Lamp Manufacturing Co. v. Brush-Swan E. L. Co., 18 N. Y. Supp. 869.)

The fact that the final estimate was sent to defendant direct, instead of being delivered to plaintiff and by him carried to defendant, is not an important fact in the case. The final estimate was to come from the engineer to the company, and he, in it, states that he has not delivered it to the plaintiff, because of a possible claim for the delay in the completion of the work.

The judgment should, therefore, be affirmed, with costs.

Pratt, J., concurred.

Judgment affirmed, with costs.


text:
    Charles S. Mott and Another, Appellants, v. William Underwood and Others, Respondents.

      JSTatmal oyster bed — rights of co-tenants therein — licensees of one co-tenant restrained from talcing oysters therefrom — when possession is of a moiety only.

    The right of each one of two tenants in common of a natural bed of oysters extends to the use and enjoyment of all the common property, which right can only be - qualified by an agreement between the parties that one of the joint owners may occupy exclusively the whole or a portion of the common property.

      The fact that the licensees of one co-tenant plant oysters in such bed gives them no right greater than their lessor could himself exercise without the assent of his co-tenant.
    The heirs of one Smith and the town of Brookhaven were equal owners and tenants in common of a natural bed of oysters. Prior to June, 1892, the heirs of Smith executed to certain parties a lease of a portion of the joint property. In August, 1892, the town gave leases conferring the right to take oysters from the common property, whereupon an action was brought by Smith’s lessees to restrain by injunction the licensees of the town from taking oysters from such oyster bed.

      Hdd, that the action was not maintainable;
    That the possession of such property by Smith’s lessees was the possession of a moiety only.
    Appeal by tbe plaintiffs, Cbarles S. Mott and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Suffolk on the 3d day of April, 1893, upon a decision of the court rendered at the Suffolk County Special Term dismissing the plaintiffs’ complaint and dissolving an injunction theretofore granted therein.

      A. A. Sjpecv.r, for the appellants.

      Nieoll Floyd, for the respondents.
   Barnard, P. J.:

There is a natural bed of oysters in the Great South Bay in the town of Brookhaven in Suffolk county, known by the name of “ Reef & Swash.” The right to take oysters from this bay is owned by the town of Brookhaven and by the heirs of Robert R. Smith, deceased, equally, as tenants in common. By an agreement between the owners the control and management of the common property was committed to the town in 1767, and this management was acquiesced in until June, 1892, when the owners were restored by a judgment of this court to their individual rights. Before the filing of the judgment the Smith heirs executed a lease of a portion of the joint property. In August, 1892, the town gave leases of the right to take oysters from the common property. This action is brought by the licensees under the Smith title to restrain by injunction the licensees of the town from taking oysters from the Reef & Swash ” oyster bed. Such an action will not be supported. The right of each tenant is to the use and enjoyment of the common property and of all the common property. This light can only be qualified by an agreement between the parties that one of the joint owners may occupy exclusively the whole or a portion of the common property. (Zapp v. Miller, 109 N. Y. 57; le Barron v. Babcock, 122 id. 153.)

The planting of oysters in the Swash gave the plaintiffs no right greater than the Smith heirs could exercise themselves without the assent of the town authorities. None such is claimed in the ease. The plaintiffs’ lease, therefore, gave them no exclusive right to take oysters from the property in question even though they had expended money aüd labor in making the oyster bed' productive. The town had uniformly refused to give any exclusive right of fisheries in and upon the bed. The cases of Hand v. Newton (92 N. Y. 88) and Robins v. Ackerly (91 id. 98) do not hold that a lease by one tenant in common of a natural oyster bed excludes one who is an owner in common without his consent. A right of action for a proportion of rents received by one owner who receives it for all is without relevancy upon the question whether such owner may be dispossessed by injunction without his consent. If the possession of the plaintiffs’ licensees was proven it was a possession of a moiety only. (Wood v. Phillips, 43 N. Y. 152.)

The case of Le Barron v. Babcock (122 N. Y. 153) only holds that where a tenant in common who occupies a farm exclusively with the assent of his co-tenants, owns the products from it while he occupies. Under the case if the licensees of one co-tenant had gathered oysters from the leased premises, they could not be held liable for the same at the suit of a co-tenant in common.

The judgment should, therefore, be affirmed, with costs.

Pkatt, J., concurred.

Judgment affirmed, with costs.


text:
    Edward Miller, Respondent, v. The Manhattan Railway Company, Appellant.

      Elevated railroad — verdict that is not excessive —proof of the plaintiff’s wages before and after his injury — statement by the court to the jury — evidence.
    Where an elevated railroad company receives a person as a passenger, and its car is so overcrowded with passengers that there is difficulty in opening and shutting the gates, a guard in the railroad’s employment cannot, without notice to •such passenger, push him off the car in order to remedy the defect of the overcrowding, and, if he does so, the railroad company is liable for the damages resulting from such act.
    The complaint in an action brought to recover damages sustained by the wrongful act of an employee of the defendant, stated that the plaintiff was disabled and had suffered a loss of power to labor.
    Upon the trial, testimony was given showing that the plaintiff was a shoemaker, and was earning twenty-five dollars per week prior to his injuries; that by reason of- his injuries he was confined to his bed for ten days, and was prevented thereby from doing his work for some five weeks; that his earning power was reduced from twenty-five dollars per week to seven or eight dollars a week. Held, that a verdict for the plaintiff for $2,000 damages was not excessive;
    That proof of the wages the plaintiff was earning before the accident and since was proper;
    In such action there was proof from which a jury could find that the guard intended to push the plaintiff.

      Held, that a statement by the trial judge that it was not justifiable to do so was proper;
    It is proper fora judge to instruct a jury that where a witness has testified falsely his entire testimony may be discredited.
    Appeal by the defendant, the Manhattan Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 31st day of January, 1893, upon the verdict of a jury for $2,000, rendered at the Kings County Circuit, and also from an order entered in the said clerk’s office on the 31st day of January, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      Frederic A. Ward, Julien T. Davies and Gha/rles A. Ga/rdmer, for the appellant.

      Charles J. Patterson, for the respondent.
   Barnard, P. J.:

The case shows that the plaintiff is a man of over sixty-eight years of age; that on the 10th of May, 1891, he was carried as a passenger by the defendant to the City Hall station. The car was crowded on the inside and the plaintiff stood upon the platform because he could not get in the car. Upon an arrival at a station the platform passengers crushed up so as to let the train deliver and receive passengers. At one of the stations, either Eighteenth or Fourteenth street, the defendant’s guard suddenly, and without notice, gave the plaintiff a violent push that carried the plaintiff off the train upon the platform and threw him violently down so as to throw him upon the back of his head. The guard did this in closing the gate. The plaintiff did what he could to crowd himself away from the gate, but the pressure was so great that he could not do so. The act of the guard has no justification. The carrier received him as a passenger and overcrowded the car so that there was difficulty in opening and shutting the gates. The guard could not, without notice in some way to the passenger, throw him off the caito remedy the effects of the overcrowding. The defendant was liable for his act. (Dwinelle v. N. Y. C. & H. R. R. R. Co., 45 Hun, 139.)

The damages are not excessive. The plaintiff was a shoemaker and was earning twenty-five dollars per week. He was prevented by his injuries from doing his work for some five weeks, and he was confined to his bed for ten days. Iiis earning power was reduced from twenty-five dollars per week to seven and eight dollars a week. The proof of the wages the plaintiff was earning before the accident, and since, was proper. The complaint states that the plaintiff was disabled from his labor and suffered a loss of power to labor. The evidence is directly in support of the complaint.

The admission of the testimony of Dr. Woodworth was not erroneous under the case of Strohm v. N. Y., L. E. & W. R. R. Co. (96 N. Y. 305).

The evidence of the expert was not to the effect that the results of the injury were possible or contingent. The medical opinion was clear that the tenderness of the muscles, which he found on plaintiff, was the result of. the injury in question. The charge was free from objection. If the plaintiff was correct in his narrative of the injury, there was no defense for it. If he refused to get out of the way of the gate when he could do so, he could not recover. There was proof from which the jury could find that the guard intended to push the plaintiff, and the statement of the judge that it was not justifiable to do that, was proper under our view of the testimony. The request, in respect to an intentional endeavor by plaintiff to make the company liable for ailments which existed before the accident, was proper. It is not the rule in such a case that the jury must disregard his entire statement. The jury were told that if the witness was false they might discredit his testimony entirely.

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

Pratt and Dykman, JJ., concurred.

Judgment and order denying new trial affirmed, with costs.


text:
    Edward Miller, Respondent, v. The Manhattan Railway Company, Appellant.

      New trial — cumulative evidence • — adjournment of a trial.

    A new trial will not be granted for the purpose of allowing cumulative evidence to be given.
    What circumstances are sufficient to justify a court in refusing to grant an adjournment of a case.
    Appeal by the defendant, the Manhattan Railway Company, from an order made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 3d day of April, 1893, denying the defendant’s motion for a new trial.

      Frederic A. Ward, Jul/ien T. JDmies and Charles A. Gardi/ner, for the appellant.

      Charles J. Patterson, for the respondent.
   Barnard, P. J.:

This action was at issue and was upon the Circuit calendar for trial and announced to be ready by both parties on the 23d and 24th of January, 1893. It was postponed by the court to the 26th of January, 1893, wlien the case was ready, except that defendant’s counsel was absent. The case was postponed on this account until the next day, with the announcement by the court that no further delay would be given. On the next day, January 27,1893, the case was again ready, except that the counsel who was to try the case was about to try a case in New York. This excuse was overruled, and the plaintiff was told he could take an inquest. The defendant’s representative asked a further adjournment until the 30th of January, 1893. The parties differ as to whether or not an absolute promise to be ready was made by defendant. On the 30th of January, 1893, application was made to postpone the case on account of the absence of the guard, who was supposed to be the person who shoved the plaintiff off the platform of the defendant’s car, and for which .act the action was brought. This guard, Hopper, lived in Brooklyn, and the proof fails to show any earnest wish to subpoena him as a witness. He was not subpoenaed during the days when the case was ready for trial without him, and his place of residence was known to the defendant, and that he worked for a doctor in New York. He left his home very early in the morning and returned very late at night. He could not have escaped any real effort to subpoena him. The defendant went to the house when he was away, and was satisfied to take Hopper’s mother’s statement, that he had moved away and she did not know of his address. The defendant knew on the twenty-seventh and twenty-eighth of January that Hopper still lived with his mother. The witness Hopper had made a statement of the occurrence, and had named two persons as witnesses, who saw the transaction. These witnesses were called on the trial, and gave evidence tending to show that the plaintiff pulled back himself so suddenly and with such force as to throw himself down. Hopper can give but cumulative evidence, and a new trial will not be given for evidence which is but an addition to evidence of the same kind which was given on the trial. The witness Hopper can testify to nothing beyond or additional to the witnesses the defendant called on the trial.

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

Pratt, J., concurred.

Order denying motion to set aside verdict and grant new trial for surprise affirmed, with costs and disbursements.


author: Dykman, J.:

text:
    John McPhillips, Jr., Respondent, v. John H. Jones, Appellant.

      Promissory note — relation between the payee and indorser— liability of an indorser to the payee, not as indorser, but as surety for the maker.

    The contract which the law makes for the indorser of a promissory note is with the subsequent indorsers; he cannot be made liable, as indorser to prior parties, including the payee.
    "When a third party indorses a note before it is indorsed by the payee, the presumption that he intended to become liable as second indorser only, knowing that his indorsement would be nugatory until the payee should indorse the note, is, however, prima facie only, and may be rebutted by proof, under a sufficient complaint, that the indorsement was made under an agreement to become security for the maker for the payment of the note, and to give the maker credit with the payee; and, in such case, a recovery on the note may be permitted in favor of the original payee or his assignee, against such indorser.
    Appeal by tbe defendant, John. II. Jones, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 17th day of April, 1893, upon the report of a referee.

      Wm. Douglas Moore, for the appellant.

      Roger M. Sherman, for the respondent.
   Dykman, J.:

This is an appeal from a judgment entered upon the report of a referee.

The action was brought on a promissory note, of which this is the form:

“New York, August 25th, 1890.
“One year after date I promise to pay to the order, of John McPhillips, one hundred and twenty-five dollars, with interest, at 121 and 125 East 22nd street, N. Y. City. Yalue received.
“W. II. DUNN.
“ Due 8, 28, ’91.” .

The note was indorsed by John H. Jones, the defendant. Before the commencement of this action the instrument was assigned to the plaintiff.

The referee held the defendant liable as an indorser of the note, upon hi's obligation as such, and that was erroneous. The defendant cannot be made liable as an indorser simply. In this connection it must be borne in mind that the note is payable to John McPhillips, and while it was assigned to' the plaintiff, as we have already stated, yet he assumes the same position in respect to the indorser as that occupied by the original payee.

The defendant, therefore, sustains the attitude of a second indorser, and it would be violative of the legal principles which have always prevailed in relation to commercial paper to allow a preceding indorser to recover against one subsequent. An indorser can never sue his indorsee. (Strong v. Sheffield, 66 Hun, 350.)

The defendant knew, as we must assume, that his indorsement would be nugatory until the note was indorsed by the payee (Herrick v. Carman, 12 Johns. 160), and when he made his indorsement he became the second indorser, and that assumed that he would have the responsibility of the payee before him as the first indorser.

The fact that the note was unindorsed when he wrote his name on the back was immaterial. (Bacon v. Burnham, 37 N. Y. 614; Coulter v. Richmond, 59 id. 480; Phelps v. Vischer, 50 id. 69.)

So we have the concurrence of authority, coinciding with principle, that the contract which the law makes for the indorser of a promissory note is with the subsequent indorsers, and that he cannot be made liable to prior parties.

Subsequent indorsers of a pi’omissory note are not liable to previous ones. The liability of all parties is from the maker downwards.

So much has been written to show that the decision of the referee was placed upon untenable grounds, but yet we find in the record a meritorious cause - of action in favor of the plaintiff against the defendant.

The evidence of the intention of the defendant, as measured from the instrument in question, that he was to become liable only as second indorser, is prima facie only, and the presumption may be rebutted by proof that the indorsement was made to give the maker credit with the payee. (Coulter v. Richmond, 59 N. Y. 478.)

Therefore, a recovery may be permitted in favor of the original payee of a promissory note against an indorser who indorsed a paper under an agreement to become surety for the maker and for the purpose of securing credit for him. (Moore v. Cross, 23 Barb. 534; Meyer v. Hibsher, 47 N. Y. 268 ; Coulter v. Richmond, supra.)

Yet such a recovery can only be had under a complaint which sets out sufficient facts to permit the proof. We must, therefore, examine the record and see if we have such a case before us. The plaintiff, after setting out the making and delivery of the promissory note and giving a copy thereof, and stating the demand and refusal of payment, states that it was by and between said Dunn, the maker, and said defendant, at and prior to the delivery of the instrument, agreed that the said defendant should pay said obligation, and that said Dunn should not be liable therefor, and should make no contribution thereto or thereupon to said Jones, and that said Jones should have no recourse to said Dunn thereupon, but that the proceeds thereof should be and the same were paid to and upon the order of said defendant, for his sole benefit.

Then there is a further allegation, that the plaintiff on the day of the date of the note loaned to the defendant the sum of twenty-five dollars, which he promised to pay in one year.

Upon the trial, John McPhillips, the payee of the note, testified that when the note was made, Dunn, the maker, owed him twenty-five dollars, and wanted a little more money, and that he understood Jones owed Dunn money. That Dunn said in the presence of Jones that he had $125 of his; that he, McPhillips, gave Dunn $125 on the note, the twenty-five dollars he owed him and $100 in cash.

Dunn, the maker, testified that Jones, the defendant, owed him $125 at the time of the making of the note. That he then owed McPhillips, the payee, some money, for which the latter held a note; that when McPhillips wanted the money, he told him he would make arrangements for it; that thereupon he applied to Jones, the defendant, for some of the money he owed him, and J ones told him he could not pay it just then, and thereupon Dunn told him he (Dunn) could obtain the money by Jones indorsing the note.

The defendant, upon his examination as a witness, testified: “ Mr. Dunn asked me for some money that he wanted to use at home; lie said, ‘If you haven’t got it, I can get it from John McPhillips, if you will indorse my note.’ He made out the note and I indorsed it.” The complaint was sufficiently comprehensive to admit the foregoing testimony, and the evidence is sufficient to show that the defendant indorsed the note in question under an agreement to become security for the maker for the payment of the money, and to give the maker credit with the payee of the note. The plaintiff, therefore, as the assignee of the note, has a meritorious cause of action against the defendant upon all the facts of the case.

He is not held upon the implied contract of an indorser, but upon his agreement to become security, and thus secure a credit for the maker. Ilis indorsement is the consummation of the contract. Justice is, therefore, wrought out by the judgment, and it should not be reversed because an erroneous reason was assigned for its rendition, nor because it was placed upon untenable grounds.

The judgment should be affirmed, with costs.

Barnard, P. J., concurred; Pratt, J., concurred in the result.

Judgment affirmed, with costs.


text:
    Harry R. Elliott and Another, Respondents, v. The New York Endowment Company, Appellant.

      Counterclaim for an unpaid stock subscription — controlling effect of the terms of the contract of subscription.

      When, in an notion brought to recover from a domestic stock corporation the value of goods sold and delivered to it, the corporation defendant interposes as a counterclaim an alleged unpaid balance claimed to be due upon a subscription by plaintiff to-its stock, the contract of subscription can be enforced only according to its terms.
    Where such a counterclaim is interposed by the defendant corporation, and it appears that the.plaintiff’s subscription was accompanied by a letter to the effect that he agreed to subscribe for a certain amount of the stock and pay a certain percentage thereon in cash (which had been done), ahd pay the balance by deducting a certain percentage from his monthly accounts with the corporation, the contract of subscription is to be deemed in writing, and the counterclaim for an unpaid balance on the stock so subscribed for can be maintained only in accordance with the terms of such contract, namely, by proof of what the plaintiff’s monthly accounts were and of what the specified percentage thereon amounted to.
    Appeal by the defendant, the New York Endowment Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of Kings county on the 24th day of May, 1893, upon a verdict directed by the court at the Kings County Circuit.

      John, L. linson, for the appellant.

      John Andrews, for the respondents.
   Dykman, J.:

This is an appeal from a judgment entered upon a verdict made by direction of the court upon a trial at the Circuit.

The complaint of the plaintiffs stated: First, that they were co-partners in business; second, that the defendant is a domestic corporation; third, that between the 1st day of January and the 1st day of September, 1892, the plaintiffs sold and delivered to the defendant goods, consisting of stationery, and did printing and lithographing work of the value of $1,665.75; fourth, that the defendant had paid $900 on account of the claim, leaving a balance of $764.75, for which the plaintiffs demanded judgment. The answer of the defendant stated: First, that it had no knowledge or information of the facts stated in paragraphs 1, 3 and 4 of the complaint. Then set up a counterclaim against the plaintiffs upon an allegation that they had subscribed the sum of $1,000 to the stock of the defendant, and paid the sum of $100 on account thereof, and demanded judgment in its favor. There was a reply in which the plaintiffs denied that they subscribed the sum of $1,000 for the stock of the defendant, or that they ever received any notice of assessment, but admitted that the defendant retpiested the plaintiffs to take $1,000 worth of stock of the defendant upon the following terms : That the plaintiffs should pay ten per cent of the amount of stock in cash, the balance of said stock to be paid for by the deduction of fifteen per cent from the amount to be paid by the defendant to plaintiffs each month for goods to be sold and delivered, and work and labor to be performed by the plaintiffs; that they paid $100, and that the defendant failed to perform its agreement. Afterwards the defendant withdrew its denial to the third paragraph of the complaint, which alleged the performance of the work and the sale of the property. TTpon the trial a witness was called by the plaintiffs who proved the amount of interest due upon the demand, and upon cross-examination was handed a paper, the signature to which was proved by him to be that of one of the plaintiffs. Thereupon the plaintiffs rested, and the counsel for the defendant asked leave of the court to amend his answer. Counsel for the plaintiffs objected to the amendment because the application should have been made to the Special Term, as the defense related to matters which had arisen since the commencement of the action, and it would be necessary to serve a supplemental pleading setting up such new matter. Thereupon the judge denied the motion • to amend. The counsel for the defendant then read the deposition of a witness taken upon commission, which showed, among other things, a letter from the plaintiffs as follows :

“ In reference to our conversation of this p. m., we find the best we are able to do will be to subscribe now for $1,000 of stock with the privilege of two thousand, 10$ down and the balance to be paid as follows: 15$ to be deducted from our account with you each month and credited toward the payment of balance. Trusting this will be satisfactory to you, we are
“Yours very truly,
“H. R. ELLIOTT & CO.”

At the close of the testimony the counsel for the plaintiffs requested the court to direct a verdict in their favor, and the court stated: “ No doubt it is true that stock cannot be paid for so as to make it full-paid stock by any arrangement to pay for it in this way, but it seems to me equally plain that in a litigation between a company and the plaintiff who has sold and delivered goods to the company, and performed labor for the company, where a counterclaim is interposed by reason of a subscription on the part of the plaintiffs to that company’s stock, that contract to subscribe can be enforced only according to its terms. Now, the contract to subscribe here was made really in writing, that is to say, under the rules of evidence, as I understand them and feel bound to apply them in this case, in order to get at what the real transaction between the company and these plaintiffs was, we must look at the letter they wrote, and at the subscription written, as I must assume at this stage of the case, in the absence of any further evidence,’ with the authority of these plaintiffs.

“ Taking the letter and the subscription together, it amounts merely to this, that they agreed to subscribe for this stock and to pay all that they did not pay at once by deducting 15$ from their monthly accounts. If you, the defendant, had proved here what the monthly accounts were, and liad asked a deduction of 15$ from each of these monthly accounts on the part of your counterclaim as a set-off or deduction, I think you would be entitled to have it, but in the absence of any proof as to what the monthly accounts were, and what the 15$ was, I think the plaintiffs are entitled to a verdict for the entire amount^claimed, and I direct a verdict accordingly for $830.62,” to which there was an exception.

We concur in the views so stated and find no difficulty in affirming the judgment, with costs.

Barnard, P. J., and Pratt, L, concurred.

Judgment affirmed, with costs.


text:
    Thomas Farmer, Appellant, v. National Life Association (of Hartford, Connecticut), Respondent.

      Life inswrance policy — examination of the plaintiff before answer — objection that the examination may criminate the plaintiff.

    In an action brought against a life insurance company to recover the amount payable under an insurance policy, upon the life of a third party, alleged to have been assigned to the plaintiif, where the defense is that at the time of the issuing of the policy the insured and the plaintiif intended that the insurance should be taken out for the benefit of the latter only, that the plaintiif paid the premium and that the policy was obtained by false representations and fraud, an order for the examination of the plaintiif before trial to enable the defendant to ascertain the insurable interest of the plaintiif in the life of the insured, and whether it was the intention of the plaintiff that the policy should be issued to the insured and assigned to him, is proper to enable the defendant to frame its answer.
    When it is not apparent that the matters upon which it is sought to examine the plaintiif involve any criminality on his part, the objection to such an order for examination, that under it the plaintiff may be required to give answers which would subject him to a criminal prosecution, is premature, until the plaintiff has submitted to the examination, and it appears that his answers to questions asked may criminate him.
    . Appeal by tlie plaintiff, Tilomas Farmer, from an order of tlie Supreme Court, made at Special Term and entered in tbe office of tbe clerk of Kings county on tbe 29tb day of May, 1893, denying the plaintiff’s motion to vacate an order theretofore made by a justice of the' Supreme Court for the examination of the plaintiff before trial to enable the defendant to prepare its answer.

      James P. Judge, for the appellant.

      ■Poger Foster, for the respondent.
   Dykman, J.:

This is an appeal from an order denying a motion made by the plaintiff to vacate an order for his examination before trial to enable the defendant to frame its answer. The affidavit upon which the order for the examination was obtained states, among other things, that the action is upon a policy of life insurance, for the recovery of $3,000, made by the defendant to one Thomas J. Brady upon his life, which, it is alleged, was assigned by Brady to the plaintiff in this action. The defense to the action is, that at the time of the issuance of the policy it was the intention of the assured and of the plaintiff also that such insurance should be taken out for the benefit of the latter only; that the plaintiff Avas the person who paid the premium upon the policy of insurance, and that he had then and had thereafter no insurable interest in the life of Brady; that Brady never applied for a policy, and that it was obtained by fraud; that another man who falsely represented Brady was examined by the defendant’s medical examiner before the policy was issued, and that it was so issued upon an application therein referred to which contained warranties and representations respecting the health and occupation of Brady, which warranties and representations were intentionally false, and that the policy never had a lawful inception, and Avas null and void.

It is further alleged that the examination of the plaintiff is material and necessary for the defendant to enable it to draw an ansAver and make its defense to the action. The affidavit is sufficient to justify the issuance of the order for the examination of plaintiff. The information essential to enable the defendant to draw an ansAver which can be intelligently and honestly verified is in the possession of the plaintiff, and the defendant has no means for the acquisition of such knowledge except by an examination of the plaintiff. The vacation of the order was sought principally upon the ground that upon the examination of the plaintiff he might be required to give answers which would subject him to a criminal prosecution, but that objection is premature. The plaintiff must submit to the examination, and if it appears then that answers to questions propounded to him may criminate him, that will be the time to raise the objection and have the point determined; but it is not apparent that the matters upon which it is sought to examine the plaintiff involve any criminality; it is merely sought to ascertain the insurable interest of the plaintiff in the life of Brady and whether it was the intention of the plaintiff that the policy should be issued to Brady and assigned to him.

Our conclusion, therefore, is that the refusal to vacate the order for the examination of the plaintiff was justifiable and should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., concurred; Pratt, J., not sitting.

Order affirmed, with costs and disbursements.


text:
    Ann Eliza Wilcox, Respondent, v. Charles J. Quinby, Individually and as Executor of the Will of Daniel Quinby, Deceased, and as Trustee under said Will, Appellant, Impleaded with Others.

      Testamenten•]/ trustee of a life estate — •separation of income and principal — what interest eha/rgeable.

    "Where a will gives tlie net income of the residue of the testator’s estate to a party for life, the estate of the life tenant must bear the burden of the taxes and ordinary repairs and the payment of interest upon liens, if any exist.
    The testamentary trustee of such a life estate must distinguish, in his accounts, the income derived from the estate and the charges thereon, from the principal or corpus of the estate and payments made on account thereof.
    When a testamentary trustee is liable to be called upon for the net income of the trust estate at any time, and is under an obligation to pay it to the life tenant whenever it is demanded, and his account is running and uncertain, he should not be charged with interest thereon.
    When the money composing a testamentary trust fund is invested within a reasonable time by the trustee, he should not be charged with more interest than he has received, and if, at the time of his accounting, the interest receivable is not due, he should not be charged with interest up to that time.

      Appeals by the defendant, Charles J. Quinby, individually and as executor of the will of Daniel Quinby, deceased, and as trustee under said will, from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of Westchester county on the 26th day of May, 1893, modifying, and confirming as modified, the report of a referee upon an accounting by the defendant of all his proceedings, and from a judgment rendered in accordance with said order at Special Term, and entered in said clerk’s office on the 17th day of June, 1893.
    In 1869 Daniel Quinby died, leaving a will in and by which he appointed the defendants, Charles J. Quinby and James D. McCabe, executors and trustees, and directed them to sell and convert his estate, principally real property, into money, and invest the same, and pay the income to his three children, of whom the plaintiff is ozze, ízl equal paz'ts during their lives, the ozie-third of the principal of each child to go to the clzildz-en of such child at his or her death, oz’, if he or she has no children, then to the childz-en of the othez’s.
    James D. McCabe qualified but never acted, and the property was all takezz possession of and managed by Charles J. Quinby as sole acting executor and trustee. He kept the real estate uzzsold until, in December, 1890, the plaintiff brought this action to z’eznove the trustees for not doing their duty, and for an accounting. The couz’t, at Special Term, decided in favor of the defendants, but the General Tez-zn, on appeal, reversed the judgment in so far as it disznissed the complaint and awarded costs against the plaintiff, and directed the defendants to sell and convert the property into money, and to pay the plaintiff her shaz-e of the income, and directed them to render azi account of the rents, profits and proceeds of the sale of the real pz’opezty, and appointed a referee to take such account and report the same to the couz’t, directing that on the coming in and cozifirmation of said repoz’t, jzzdgmezit be entered. Costs were givezr to both paz-ties, payable out of the pzdncipal of the estate. The account was taken and the referee’s repoz't was filed, and the defendant, Charles J. Quinby, the appellant, then moved at Special Term for the confirmation of the repoz-t, and for judgment. The couz-t modified the repoz-t in some respects, and as modified, confirmed it, and ordered judgment accordingly, with costs, and an additional allowance to each party. That order was entered in the Westchester county clerk’s office on the 26th of May, 1893, and three days afterwards the defendant appealed from it to the General Term.
    After that the defendant’s attorney served on the plaintiff’s attorney a bill of costs, including the additional allowance to the defendant, with notice that the same would be taxed on the seventeenth of June, then instant, and the amount thereof inserted in the entry of judgment; and on that day the clerk eiitered the judgment, and at the request of the defendant’s counsel, the amount of the costs so taxed and awarded to the defendant (this appellant) was inserted in the judgment, and thereafter, on the 5th of July, 1893, the defendant appealed to the General Term from the said judgment, and from the whole and every part thereof, and these are the two appeals now brought up for review.

      M. M. Silliman and William P. Fiero, for the appellant.

      James Ftyrm and F. II. Berm, for the respondent.
   Dykman, J.:

There is no controversy as to facts. The plaintiff is entitled under her father’s will to one-third of the net income of the residue of the estate after payment of legacies. The estate of the life tenant must bear the burden of the taxes and ordinary repairs and the payment of the interest upon the liens, if any exist. The defendant Quinby is the trustee under the will, and his account confounds the income derived from the estate and the charges thereon with the principal or corpus of the estate, and the judgment appealed from does not seem to have made the proper distinction, between the two accounts. The referee, in stating the account of the defendant as executor and trustee, has charged him with all moneys received, whether on account of the principal or interest, and has credited him with all moneys paid without regard to the fact as to whether the payment was on account of the fund or income.

In figuring the amount for which the trustee is liable to the plaintiff he should first be charged with the amounts received by him for rents which, according to his account, after deducting the rent belonging to Mrs. Quinby, was $5,591.54. From this must be deducted the amount paid by him during the same time for repairs and insurance, which is $3,752.28, leaving a net income of $1,839.26. As there is no proof respecting their character we must assume that they were ordinary repairs which are chargeable to the life tenant.

As the trustee was liable to be called .upon for the net income at any time, and was under an obligation to pay it to the life tenant whenever it was demanded, and as the account was running and uncertain, he should not be charged with interest thereon.

From the above balance, $1,839.26, must be deducted the commissions of the trustee on the total amount received, $5,591.54, which amounts to $164.78, making the amount due to the life tenant $1,674.48, of which the plaintiff is entitled to one-third.

As to the principal of the fund the defendant is to be charged with the amount received by him from the sale of stock and the rent collected, $943.33; from this is to be deducted the amount adjudged to be dire by the surrogate’s decree, $849.91, leaving $92.42 in his hands belonging to the trust fund.

To this sum must be added the amount received for stone and dirt sold, $279.70, with the damages received for diverting the water of Bronx river, $750, which makes $1,123.12 ; out of this he paid $500 legacy, leaving $623.12 belonging to the trust funds. He is also chargeable as trustee with the amount he received upon the sale of the farm, which, after making the deduction for the land included in Sound Yiew avenue, was $83,295. Upon this he is to be credited with $2,316.38 for the amounts paid for commissions on the sale of the farm, for the survey and for legal services, leaving chargeable to him on this account $80,978.62. Add this to the above amount', $623.12, and we have the total amount of the trust fund, $81,601.74. As the money was invested in a reasonable time by the trustee he should not be charged with more interest than he has received, and as at the time of the accounting this interest was not due he should not be charged with interest up to that time.

The judgment should be modified in accordance with this opinion, without costs to either party on this appeal.

Order to be settled by Justice Dunman.

A-motion was made to dismiss the appeal because the defendant had taken the benefit of the judgment and order and was, therefore, concluded by the same.

We do not find the fact to be as claimed by the respondent, and the motion is, therefore, denied, with tén dollars costs and disbursements, to be retained by the appellant from the funds in his hands.

Barnard, P. J., concurred; Pratt, J., not sitting.

Judgment modified in accordance with opinion and order to be settled by Judge Dykman. Motion to dismiss appeal denied, with costs.


author: ■JDykman, J.:

text:
    The Troy Waste Manufacturing Company, Respondent, v. Ellen Harrison, Appellant, Impleaded With Others.

      Extra-judicial submission of a question for decision — transfer by a corporation in contemplation of insolvency — section 48 of chapter 564 of the Laws of 1890.
    There is no authority for the submission of an abstract question to a judg’e for decision (as distinguished from the submission of a controversy to a court, under section 1279 of the Code of Civil Procedure), nor for an appeal to the General Term from a decision rendered by a judge on such a submission, and the consideration of such a submission is extra-judicial.

      Semble, that the prohibition of section 48 of chapter 564 of the Laws of 1899 (the Stock Corporation Law) — to the effect that no officer, director or stockholder of a stock corporation shall make any transfer or assignment of its property, or of any stock therein, to any person in contemplation of its insolvency — extends to the making of such an assignment by the corporation itself.

      Semble, that under the law of the State of New York, as it stood in September, 1891, a manufacturing corporation organized under the act of 1848, could not make, in contemplation of insolvency, a general assignment for the benefit of creditors, without preferences.
    Appeal by tbe defendant, Ellen Harrison, from a decision made under the provisions of a stipulation by which there was submitted to a justice of the Supreme Court the question whether, under the law of New York, as it stood in September, 1891, a manufacturing corporation organized under the act of 1848 (Chap. 40) could, in contemplation of insolvency, make a general assignment for the benefit .of creditors, without preferences.
    The stipulation for submission was as follows:

      Cúrreme"” court!
    “The Troy Waste Manufacturing Company against Ellen Harrison and Others.
    “ It is hereby stipulated that the following question, arising in tlieaetion entitled above, shall be submitted to Hon. Alton B. Parker, a Justice of the Supreme Court of the State of New York, at Chambers, in the city of Kingston, New York, on the 15th day of April, 1893, at 11 o’clock a. m., or as soon thereafter as counsel can be heard, and that his decision thereon shall be final and conclusive upon the parties to said action represented by us, except that within thirty days after a copy of such decision is served on us by mail, the party feeling aggrieved by such decision' may appeal therefrom to the General Term of said court:
    “ Question. Under the law (of New York), as it stood in September, 1891, could a manufacturing corporation organized under the act of February, 1848, in contemplation of insolvency, make a general assignment for the benefit of its creditors, without preferences ?
    “MERRITT & RYAN,
    “ Attorneys for Plaintiff,\

    “ (The Troy Waste Mfg. Company).
    “ WALTER O. ANTHONY,

      “ Attorney for Ellen Harrison!

    The decision made under the above stipulation was “ that a general assignment made by a corporation through the action of its officers and directors comes within the condemnation of the statute..’7

      W. O. Anthony, for the appellant.

      James H Pyam,, for the respondent.
   ■JDykman, J.:

In pursuance of a written stipulation an abstract question of law, involving the construction of an obscure statute, was submitted to a justice of the Supreme Court.

The stipulation was not accompanied by a statement of facts upon which a controversy was dependent, nor by an affidavit that the controversy was real, and it did not appear that there was any controversy, or that the submission was for the purpose of determining the rights of the parties.

The judge decided the question and wrote an opinion, but no order or judgment has been entered upon such decision, yet the defendant has appealed from the decision of the judge, in pursuance of a right so to do reserved in the stipulation.

Upon this statement the proceeding is plainly extra-judicial.

There is no authority for the submission of a question to a judge as such. By section 1219 the parties to a question in difference which may be the subject of an action, may agree upon a case containing a statement of the facts upon which a controversy depends, and present a written statement thereof to a court of record, but the case must be accompanied by an affidavit that the controversy is real and that the submission is in good faith, for the purpose of determining the rights of the parties. None of these requirements received compliance in this case, and the submission was not to the court.

There was, therefore, no case in court. The parties agreed to request a judge to answer a legal question, and he complied with their solicitation.

Even less have we any jurisdiction. This is an-appellate tribunal, and cases come to us upon appeal from orders or judgments in actions or special proceedings.

There is no statute or practice, to our knowledge, authorizing an appeal from a mere decision.

We can make no judgment upon this appeal that can be enforced, and courts do not act as advisory tribunals.

However, as the question of jurisdiction or irregularity was not raised upon the argument, and the parties may abide by our opinion, we have concluded to examine the question submitted, which is this : Under the law of New York, as it stood in September, 1891, could a manfacturing corporation organized under the act of February, 1848, in contemplation of insolvency, make a general assignment for the benefit of creditors, without preferences ?

The answer to this question depends upon the interpretation to be placed upon section 48 of chapter 564 of the Laws of 1890, which is this: “No corporation which shall have refused to pay any of its notes or other obligations when due, in lawful money of the United States, nor any of its officers or directors, shall assign any of its property to any of its officers, directors or stockholders, directly or indirectly, for the payment of any debt, and no officer, director or stockholder thereof shall make any transfer or assignment of its property or of any stock therein to any person in contemplation of its insolvency; and every such transfer or assignment to such officer, •director or other person, or in trust for them, or for their benefit, shall be void.”

This statute must be construed so as to effectuate the intention of its framers and obviate the evils anticipated by the Legislature.

At the head of the section preceding the lines quoted are these words: Certain transfers of stock and property prohibited.” Then follows the language quoted. The first part of the section applies to corporations as bodies politic, and the second to the officers and stockholders of such bodies. Both paragraphs commence with negative and prohibitive words. The first prohibits corporations which have refused to pay their obligations when due, and their officers and stockholders, from assigning any of its property to its officers, directors or stockholders for the payment of any debt. So far all is plain and no effort at interpretation can make it more perspicuous.

The question for our solution springs from the second paragraph, which prohibits officers and stockholders of a corporation from making any transfer or assignment of its property or any stock therein to any person in contemplation of its insolvency.

The contention of the appellant is that while this portion of the section prohibits an assignment by the officers and stockholders of a corporation from making an assignment of the corporate property and stock, yet the prohibition does not extend to the body corporate and it may yet make such an assignment.

We cannot yield our assent to such a construction of this portion ■of the section. In our view it was the intention of the Legislature to prohibit an assignment of the property of an insolvent corporation to any person in contemplation of insolvency. Corporations are artificial, intangible bodies, and can only act through their officers or agents, and as the officers are prohibited from acting it was the plain intention to prohibit the action.

While it is conceivable that a corporation may exist without officers, and may act by agents who are not officers, yet it is inconceivable that the Legislature would prohibit ail assignment by officers and yet entertain a latent intention to permit such assignment by the corporation in some unusual and undefined manner.

If the Legislature intended to permit an assignment by a corporation in contemplation of insolvency, it was an idle ceremony to prohibit the execution of the instrument in the usual manner by the. officers of the company.

The statute must be allowed a wider range. Its design was to prevent the transfer of corporate property in fraud of creditors, and it would be poor protection to them to prohibit an assignment by officers and allow it by the corporation.

"Without further pursuit of the question we concur in the views of Mr. Justice Parker and conclude that the question submitted, should be answered in the negative.

Barnard, P. J., and Pratt, J., concurred.

Question submitted answered in the negative.


text:
    In the Matter of the Application of Edmund Van Derzee to Compel Melville E. Wygant and Others, Executors of John H. Van Clief, Deceased, to File and Judicially Settle an Account of the Proceedings of said Van Clief as General Guardian of said Van Derzee.

      Action to compel an accounting by a general gua/rdian — Statute of Limitationsu
    An action brought by a ward to compel an accounting by a general guardian is based upon the implied contract of the guardian to pay over the. moneys belonging to the ward, and the six years’ Statute of Limitations applies to the action.
    Appeal by the petitioner, Edmund Yan Derzee, from an order or decree of the Surrogate’s Court of the county of Richmond, entered in the office of the clerk of said court on the Uth day of April, 1893, denying the application of the petitioner to compel the executors of John H. Yan Olief, deceased, to render and judicially settle the account of said John H. Yan Olief as general guardian of the petitioner.

      Herbert F. Andrews, for Edmund Van Derzee, appellant.

      De Groot, Iiawson & Stafford, for the executors of Van Clief, respondents.
   Dykman, J.:

This is an appeal from a decree of the surrogate of the county of Richmond, dismissing the application of the appellant to compel the respondents to file an account of the proceedings of their decedent as general guardian of the appellant. The appellant Van Derzee presented a petition to the surrogate of Richmond county, in which he stated, among other things, that he was thirty-four years of age ; that on the 13th day of January, 1864, letters of guardianship were granted by the surrogate of Richmond county to John H. Van Clief in said county, appointing him general guardian of the person and estate of the petitibner.

That John IT. Van Clief died on the 22d day of January, 1892, at Port Richmond in said county, without having made any settlement of his accounts as such general guardian of the petitioner; that Van Clief left a last will and testament which was admitted to probate by the surrogate of Richmond county, and on the 18th day of March, 1892, letters testamentary were granted thereon to Melville E. "Wygant, John Croak and Lewis Eloss. Then the petitioner prays that a citation may be issued to such executors requiring them to show cause why they should not, as executors of the last will and testament of Van Clief, render a judicial settlement and account of the proceedings of said Van Clief as general guardian of the petitioner.

The executors answered the petition, denying the allegation in the petition that the guardian Van Clief died without having-rendered and settled his accounts as such general guardian, and alleging on the contrary two several accountings by him, one on the 15th day of January, 1869, and the last on the 14th day of June, 18Y5, in which he fully accounted for all the matters concerning his guardianship. They then stated that the petitioner ought not to maintain this proceeding because more than ten years have elapsed after the petitioner became of full age, and before the death of Van Clief, and because more than twenty-nine years have elapsed since the original appointment of the guardian.

When the matter came before the surrogate he made a decree denying the application of the petitioner, and if is to be gathered from the language of the decree that his decision was based upon the Statute of Limitations, or, in other words, that he decided that the right to the relief was barred by the ten years’ statute, inasmuch as more than that time had elapsed since the petitioner became twenty-one years of age. From the date stated in the petition it is to be gathered that Van Derzee became df full age on the 15th day of June, 18J9, when he could have maintained the action against Van Clief, as guardian, for the settlement of his accounts or for the money in his hands, if any remained at that time.

That being so, the relation existing between the petitioner and his guardian from that time was that of debtor and creditor, and the six years’ Statute of Limitations would apply because such an action would be based upon an implied contract to pay over money belonging to the plaintiff.

Our conclusion is that the surrogate properly applied the Statute of Limitations to the proceeding, and his decree should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concurred.

Decree of surrogate denying application for accounting affirmed, with costs.


text:
    The People of the State of New York, Respondent, v. Benjamin S. Van Zile, Appellant.

      Abortion — conviction thereof — sufficiency of the evidence — opening by the pi'osecuting officer — evidence.
    On the trial of a person charged -with, the crime of abortion under an indictment containing two counts, the first charging the use of instruments for the procurement thereof, and the second charging the prescription and administration of drugs to procure the same result, it is sufficient-to justify a conviction, where the verdict is general, if the evidence is sufficient to prove that the defendant gave the prescription for the purpose of causing a miscarriage.
    ■What evidence is sufficient to justify a jury in convicting a person of the crime oí abortion.
    There is no legal rule for the measurement of an opening either in a criminal or civil action. Its legitimate office, in a criminal action, is to give the charge against the accused and the evidence to be presented by the public prosecutor to establish the commission of the crime and its perpetration by the defendant. Its scope and general extent must be controlled by the trial judge in the exercise of his discretion, and it would require a plain violation of the rights of the defendant to induce an appellate tribunal to reverse a conviction because of an erroneous opening for the prosecution.
    Upon the trial of a person for abortion it was stated by the district attorney, in hi» opening, that the defendant had been jointly indicted with another, that upon the trial of the latter the defendant became a witness for him, that the indictment upon which such other person was tried contained but one count, charging that abortion had been committed by means of mechanical appliances, that upon the trial it was disclosed that the defendant had given a prescription which was to aid in producing the abortion, that it then became necessary to reindict the defendant, and that at the time of the trial he was charged, in two counts,, with having brought about the abortion by means of mechanical appliances and also with giving a prescription for the purpose of bringing about the abortion.

      Held, that the opening afforded no reason for reversing the judgment of conviction. Upon such a trial it is not erroneous to take proof of the death, from miscarriage,. of the woman upon whom the abortion was performed.
    Nor upon such a trial, is it error to allow a physician to testify that he would look for a miscarriage if the whole prescription of the defendant was taken at one dose, after he had said that the doses prescribed were too small.
    Any testimony respecting the effect of the medicine prescribed by the defendant, is relevant.
    Appeal by the defendant, Benjamin S. Van Zile, from a judgment of the Court of Sessions in and for the county of Kings, rendered on the 10th day of February, 1893, upon the verdict of a jury convicting the defendant of the crime of abortion.

      Jamies <& Thomas II Troy, for the appellant.

      James IV. Ridgway, District Attorney, for the People, respondent.
   Dykman, J.:

The defendant in this prosecution was indicted by the grand jury of Kings county in October, 1891, for the crime of abortion.

The indictment contained two counts, one charging the use of' instruments for the procurement of an abortion and one charging-the prescription and administration of drugs to procure the same result. The indictment charges the commission of the offense on. the 9th day of December, 1889.

The defendant was tried at the Court of Oyer and Terminer in Kings county in February, 1893, and the jury rendered a general verdict of guilty. A careful examination of the testimony leaves mo reasonable doubt of the guilt of the defendant.

While it is true that the evidence is circumstantial and leaves the question of guilt to be determined by inferences drawn from established facts, yet the facts proven are not only entirely inconsistent with the innocence of the defendant but they can be reconciled upon no theory except that of his guilt.

The law under which the defendant was indicted and convicted is this : “ A person who, with intent thereby to procure the miscarriage of a woman, unless the same is necessary to preserve the life of a woman or of the child of which she is pregnant, either, 1. prescribes, supplies or administers to a woman, whether pregnant or not, or advises or causes a woman to take any medicine, drug or substance; or, 2. uses or causes to be used any instrument or other means is guilty of abortion and is punishable by ■imprisonment in a State prison for not more than four years or in a county jail for not more than one year.” (Penal Code, § 294.)

Under this statute the crime is perpetrated either by prescribing, supplying or administering to a woman, whether pregnant or not, ■any médicine, drug or substance with intent thereby to procure a miscarriage, or advising or causing a woman to take any medicine, ■drug or substance, unless the same is necessary to prolong the life of the woman or the child with which she is pregnant. Or, second, using or causing to be used any instrument or other means to ■accomplish the same result.

In this case the evidence tended to prove the defendant guilty, under the first part of the statutory inhibition, of prescribing medicine and drugs with intent to procure a miscarriage.

It will be sufficient, therefore, for the justification of this conviction if the evidence was adequate to prove that the defendant gave the prescription set out in the case for the purpose of causing a miscarriage, because the second count in the indictment contains that charge, and the verdict was general.

An outline of the material facts is this: On the 8th day of November, 1889, Howard S. Terrell went to the office of the defendant, who was a practicing physician in the city of Brooklyn. Terrell was accompanied by a young woman named Lillie M. Cook, and tbe object of his visit was to procure an examination of tbe young woman by tbe defendant to determine whether she was pregnant. The visit Lad been previously arranged between Terrell and the defendant, except that no time for it bad been specified. Tbe defendant made an examination of tbe girl, pronounced her pregnant and advised Terrell to marry her.

For that examination tbe defendant charged and received twenty-five dollars. Three days after that, and on the 11th day of November, 1889, tbe defendant and Terrell met at Munson’s drug store in tbe city of Brooklyn, and after a conversation in tbe corner, which was not heard by tbe clerk, tbe defendant asked for pen, ink and paper, and wrote a prescription which he gave to tbe drug clerk and said, put it up and give it to this young man, meaning Terrell, and tbe clerk did so. .

Tbe prescription specified several drugs, which were required to be compounded and made into twenty capsules, one of which was to be taken after each meal.

Such compound was pronounced by a professor of materia medica to be an abortive mixture.

On tbe 19th day of December, 1889, Lillie M. Cook bad a miscarriage, and at her request her sister went to tbe office of tbe defendant and left a request for him to call at tbe bouse, and be came there about eight o’clock in tbe evening. ’When be reached tbe room tbe following conversation ensued, according to tbe testimony of the defendant: Tbe girl said, £ You don’t remember me,’ and I says, £ No, who are you? ’ and she says, £I am tbe girl that Terrell bad at your office,’ and I says, £ Wliat is your trouble ? ’ and she said, £ I am all through with my trouble.’ When did it occur ? ’ and she says, Last night.’ ”

Tbe girl died on tbe 25th day of December, 1889, and in tbe evening before her death Doctor Topham, tbe family physician, was called in at tbe request of tbe mother of tbe girl, and the following conversation ensued between him and tbe defendant, according to tbe testimony of Doctor Topham : “ Q. Wliat was tbe conversation, please ? A. He (Van Zile) told me that be bad been called into the case, I think, the Thursday previous, and that she bad been getting rapidly worse, and was now in a very bad condition. He did not seem to understand wliat the matter — what the trouble was. Q. Did he say so to you ? A. He said so.”

On the night of the girl’s death the defendant fled from the city atod remained absent about three months, but before he left he called upon Munson, the druggist, and informed him that the girl had died, and he thought if Munson would lend him $250 he could pay the funeral expenses and satisfy the mother and settle with her in that way.

This general statement is amply sufficient to show that the jury was justified in finding the defendant guilty of making the prescription with intent to produce a miscarriage.

In fact, the guilt of the defendant became so evident upon an examination of the record that no doubt remains upon that subject.

It becomes necessary now to examine the legal questions raised by the defendant at the trial and again upon this appeal.

When the assistant district attorney1 was about to open the case for the People the counsel for the defendant requested the court to direct him to omit from his opening any reference to any former trial of any one in respect to this case. The request was denied, and the counsel for the defendant excepted.

Then the assistant district attorney proceeded with the opening, and stated that the defendant had been jointly indicted with Terrell, and upon the trial of the latter the defendant became a witness for him. That the indictment upon which Terrell was tried contained. but one count, charging that the abortion had been committed by means of mechanical appliances, but upon the trial it was disclosed that the defendant had given a prescription which was to aid in producing the abortion, and then it became necessary to reindict the defendant.

That now the defendant was charged in two counts with having brought about the abortion by means of mechanical appliances, and also with giving a prescription for the purpose of bringing about the abortion that was successfully brought about upon the person of Lillie M. Cook.

Now, it is claimed that such opening was erroneous, and violative of the legal rights of the defendant to a fair and impartial trial.

It is to be observed preliminarily that there is no legal rule for the measurement of an opening, either in a criminal or civil action.

It is the legitimate office and purpose of an opening in a criminal action to give the charge against the accused and the evidence to be-presented by the public prosecutor to establish the commission of the crime and its perpetration by the defendant.

Its scope and extent must be controlled by the trial judge, in the exercise of a wise discretion, and it would require a plain violation of the rights of a defendant to induce an appellate tribunal to-reverse a conviction for an erroneous opening for the prosecution.

What is said in an opening has no binding force, and it is designed only to give a general acquaintance with the case to enable the jury to understand and appreciate the testimony as it falls from the lips of the witnesses.

The complaint here is against the statement in the opening of any connection between the defendant and Terrell in relation to the abortion.

But it was the intention and right of the public prosecutor to-establish the complicity of the defendant with Terrell, and, therefore, he had the right to state it fully. Also, it was his intention to-read to the jury the testimony of the defendant, given voluntarily upon the trial of Terrell, and, therefore, it was proper in the opening to state that Terrell had been previously tried. Also, as it was a fact that the defendant had been reindicted, it was proper to state that as a reason why he was now tried for giving the prescription and producing the miscarriage. We, therefore, fail to detect any error in the opening.

Neither was it erroneous to take proof of the death of the girl from miscarriage. It was a part of the history of the case, and may well have had a legitimate bearing upon the effect of the examination of the girl by the defendant.

He said in his testimony that he used a sponge, and the effect of such use was in 'question all through the trial.

Even the disclaimer of the assistant district attorney, for which the defendant contends, does not include the use of a sponge. But the disclaimer seems to have been misunderstood. The disclaimer was of any insistance that the abortion was produced by a puncture of the membranous sack of the womb.

A physician was permitted to say that he would look for a miscarriage if the whole prescription of the defendant was taken atone dose, but that was after lie had said the doses prescribed were too small. We do not think the testimony erroneous; any testimony respecting the effect of the medicine prescribed by the defendant was relevant.

The exceptions to the charge of the court, and the refusals to charge, have all received careful examination, and we find no question raised by them sufficiently serious to require a separate examination.

They present no error and we find none in the record.

The trial was full and fair and the conviction should be affirmed.

Barnard, Pt J., concurred.

Conviction and judgment affirmed.


author: Barnard, P. J.: DykmaN, J.

text:
    Alexander M. Conway, Appellant, v. Edward O. Carpenter, Respondent.

      Termination of the lease of a church —forcible removal of the pastor.

    "When the termination of the lease of a church is uncertain, its determination is no justification for the forcible removal of the pastor of the church, who has had no notice of the determination of such lease, from the pulpit and his expulsion from the church edifice. (Dykman, J., dissenting.)
    Appeal by the plaintiff, Alexander M. Conway, from a judgment .•of the Supreme Court in favor of the defendant, entered in the office •of the clerk of the county of Westchester on the Utli day of June, 1893, upon a dismissal of the complaint at the Westchester Circuit.
    The action was brought to recover $10,000 damages for injuries to the plaintiff’s person and dignity.

      William liiley, for the appellant.

      James M. Hunt, for the respondent.
   Barnard, P. J.:

The plaintiff is a minister of the gospel. On the 6th of March,1 1892, he was attached as minister to the Messiah Baptist Church of Yonkers. The church edifice did not belong to the Messiah Baptist Church, but was held under a lease from the owner, the Warburton Avenue Baptist Church, at a nominal rent. There was a clause in this lease that if there should arise any serious disagreement in the Messiah congregation, the landlord might forthwith re-enter. The plaintiff, on the 6th of March, 1892, on Sunday, went to the Messiah Church to preach. One worshipper entered with the pastor upon his going into church or soon after; some one locked the door on the outside. The pastor began to preach to his small congregation, and suddenly, soon after he commenced, the door was unlockéd and the pastor was forcibly removed from the pulpit and church, and put out of the edifice by the direction of the defendant, who was a trustee of the lessor church. The justification for the act is contained in a resolution passed on March 5, 1892, as follows: In closing the Messiah Colored Baptist Church on Sunday last, on motion, it was resolved that the keys be returned to Mr. Pollard and that he have permission to open the house for religious purposes only, and in case of any disturbance he return the keys to Mr. E. O. Carpenter.” Mr. Pollard was an officer in the Messiah Church, and he aided in the force used on the occasion. There was no proof of the surrender of the lease dr of its termination, except by the resolution. There were no keys shown to have been in possession of the Warburton Church or of Mr. Pollard, and if such fact existed, no justification is thereby made for this violent assault on a pastor who had no notice of the fact that the Warburton Church had taken possession of the house of worship.

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

Pratt, J., concurred.

DykmaN, J.

(dissenting):

This action was commenced for the recovery of damages for ' assault and battery by the defendant upon the plaintiff.

The complaint of the plaintiff was dismissed at the Circuit, and he has appealed from the judgment.

The plaintiff is a minister of the gospel, and had been the pastor of the Messiah Baptist Church in the city of Yonkers in Westchester county, but he had resigned his charge in December, 1891, and his resignation was accepted.

On "the 6th day of March, 1892, however, the plaintiff entered the meeting house and commenced to preach a sermon from the pulpit therein.

The defendant was a member of the Warburton Avenue Baptist Church, the owner of the building, and received authority from the trustees of that church to protect the building and prevent the plaintiff from trespassing upon the premises.

In pursuance of such authority he went to the building with a policeman and found the plaintiff there and caused his removal, and that is the assault of which the plaintiff complains. Under this state of facts the plaintiff obviously has no cause of action. He was a trespasser and intruded himself into the church building without authority or right, and the defendant was authorized by its owner to remove him. In doing so no unnecessary force was exerted, and the defendant acted within his authority and rights.

The record discloses no error, and the judgment should be affirmed, with costs.

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