text:
    PETER J. FLINN, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Railroad company—right of, to run trains on any of its tracks, although the track used is immediately adjoining a dwelling-house and its use is peculiarly prejudiciaZ thereto.

    The owner of a lot, one end of which abutted upon land used by a railroad company for its tracks, brought an action against the company, alleging that he had ahouseon the said lot; that the railroad, after it had been in operation many years, had constructed two additional tracks upon its land, which brought its tracks very near to the plaintiff’s house; that sparks and smoke were thrown into the windows, and that the house was finally set on fire and so much injured as to be practically destroyed; that the defendant, the railroad company, drew heavy freight trains up this part of its road where the grade was very steep, and that such trains were frequently “stalled,” and that in the effort to draw such heavy trains great showers of sparks were thrown out; and that there was an unlawful interference with his rights in laying the additional tracks near his house.

      Meld, that whether the railroad company should run its freight trains on one track or on another, or on the track nearest to plaintiff’s house, was a question to he decided by the company itself, and that the jury had no right to say that the use of one or the other track was a negligent or improper use thereof.
    That the company might lawfully lay its tracks on any part of the lands owned by it, and that, in the absence of further proof of negligence on its part, it was not liable for incidental damages arising from the location of its tracks.
    That the fact that the defendant ran long and heavy freight trains on the track nearest plaintiff’s house, and that more than one engine was sometimes required for running those trains, was no evidence of negligence on its part, nor was the fact that at times trains were “ stalled ” thereon.
    Appeal by the defendant from a judgment of tbe Supreme Court, entered in tlie office of the clerk of the county of Albany op the 11th day of November, 1889; and also from an order of the court denying a motion for a new trial, entered in said clerk’s office on the 18th day of October, 1889, after a trial before the court and a jury at the Albany Circuit, at which a verdict was rendered in favor of the plaintiff tor the sum of $1,600.

      Sale & BuTkley, for the appellant.

      S. Gouni/ryman, for the respondent.
   Learned, P. J.:

The rear end of plaintiff’s lot abuts on lands used by the defendant for its tracks. This land was purchased or procured by the city of Albany, for the purpose of enabling the defendant (or defendant’s predecessor) to build thereon its tracks; and it was leased by the city to the defendant (or its predecessor) for that purpose.

It is still so held and used, defendant having a perpetual lease. Although thus leased and used, a part of the land is generally called Railroad avenue. Rut this is a mere local designation. It is not a street or a highway ; but it-is only, as above stated, property leased by the city to the defendant (or defendant’s predecessor), in accordance with certain statutes for its tracks. The plaintiff’s deed hounds his land upon the land conveyed to the defendant’s predecessor for the track of their road.

When plaintiff bought his land in 1867 there were but two tracks. Two additional tracks were laid in 1874. There were houses which fronted on this so-called Railroad avenue, and the ^occupants passed up and down on this land to get to Yan Woert street and Broadway. The plaintiff had a house on the end of his ■lot abutting this so-called Railroad avenue. His claim is, that since the construction of the twó additional tracks, which brought the tracks near to his said house, sparks and smoke have been thrown into the windows; the house has been set on fire, and finally that ■ the house was so much injured .in 1884 as to be practically destroyed.

The plaintiff claims that the defendant drew heavy freight trains up this part of the road where the grade is very steep and that such trains were frequently “ stalled,” and that in the effort to draw such , heavy trains great showers of sparks were thrown out to his injury. He,also claims that the defendant was negligent in not using the best spark-arrester. It will be seen from the pleadings, the case ••and the briefs of counsel that the plaintiff did uot rest his ground of action simply,on the usual ground in such cases, that the defendant was negligent in using imperfect engines.. He .claimed also that there was an unlawful interference with his rights in laying the additional tracks near his house. Hence is apparent the appro priateness of certain request's made by the defendant to' the court.

The defendant’s counsel asked the court to charge that the fact that the defendant used the track nearest the plaintiff’s building for freight trains, instead of using some other track for that purpose, is no evidence of neglect. The court declined and said that they had a right to use théir property as they pleased, and it is for the jury to say whether thát was an improper or negligent use of' it.

There is nothing in this case to show that defendant was not authorized to lay additional tracks. The fact that when the property was first acquired by the city for the railroad company the intention of the company was to lay a double track is not the least evidence that the company might not lay four tracks if it chose. 'And certainly when business increased it was the right, if not the duty, of the company to increase its facilities. ' Whether the company should run its freight trains on one track or on another was for it to decide. Running such trains on the track nearest to plaintiff’s house was no evidence of negligence.

The jury had no right to say .that that was a negligent or improper use of the track. The land belonged to the company for the purpose of laying its tracks, and it might lawfully lay its tracks on any part. It had the right by statute to run its engines .on its tracks, and to lay its tracks on the land it had lawfully acquired. It is not liable for incidental damages unless it is shown that such damages are occasioned by its, negligence. We cannot see how negligence can be predicated, in respect to an abutting or adjacent owner of land from the fact that the railroad company placed its, track on one part or on another of its own land, acquired .for the purpose of laying its tracks.

Cases are cited by the plaintiff’s counsel where heaps of combustible material have been placed or allowed to remain on the land of the railroad company, and have caught fire and.caused injury to adjacent property. But such cases are not analogous to this. It is no necessary, part of defendant’s business to .leave, heaps of combustible material on its land. But it is a necessary part of its business to lay tracks and to run cars over those tracks. The land in question and the whole width of the land were procured for that business and may lawfully be used therefor.

To say that negligence could be imputed to the company for laying its tracks near to the boundary line of its land would deprive it of the lawful use for which the lease was acquired.

Again, the defendant’s counsel asked the e/mrt to charge that the fact that the defendant ran long and heavy trains on the track nearest plaintiff’s building, and that more than one engine was sometimes required for running the train, was no evidence of any negligence on the part of the defendant. The court declined and defendant excepted.

We think the defendant was entitled to that charge. A good deal of stress was laid on the fact that heavy freight .trains were run on this track; that more than one engine was sometimes needed ; that at times trains were “stalled,” that is, could not rpove. It was, therefore, important that the charge thus requested, -if correct, should have been made.

It cannot be negligence, as to adjacent owners, that the defendant , should run long and heavy trains. How long and how heavy a train should be must be a matter for the railroad to decide. And the mere fact that trains were long and heavy and needed two engines could be no evidence of negligence.

The court had charged that if defendant “ wantonly overloaded their trains and you (the jury) believe it was an imprudent manner of using trains over land and their own property by overloading the trains, perhaps they would be liable.” This was excepted to by defendant.

We do not see any evidence that there was a wanton overloading. If it was meant that willfully, and in order to injure plaintiff, the defendant had overloaded its trains, possibly defendant might be liable for such a wrongful act. But nothing of that kind is shown. The utmost that is shown is simply that sometimes the trains were heavy and became “ stalled ” at this place and needed more than one engine.

It does not appear that there was any carelessness in making up trains, or that the person who attended to that business was incompetent or anything other than the mere fact that trains were sometimes heavy and were sometimes stalled ” on this steep grade. It was not correct to permit the jury to predicate negligence on this fact alone.

It is a common observation that rails may at times be slippery so that it is difficult for engines to move. Some one must judge as to the proper number of cars to be placed in a train, and if unforeseen causes should show the train to be too long, there would not necessarily be evidence of negligence in respect to the adjacent owners of land.

Whether there was any ground for recovery on account of imperfect spark-arresters we need not discuss. The jury were permitted to find negligence from other circumstances than the alleged defect in the spark-arresters and from circumstances which, as we think, could not legitimately show any negligence whatever.

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

Landon, J., concurred; Mayham, L, not acting.

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


source: Caselaw Access Project

author: Landon, L,:,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. BENJAMIN RYALL, Respondent. SAME v. SAME.

      What is not an omission to perform his duty by a public officer, within the meaning of section 154 of the Penal Code.

    One Ryall, the superintendent of public works of Saratoga Springs, was indicted for having willfully omitted to make oath and execute an affidavit that he had not been interested pecuniarily in any contract, work, materials or other matter connected with his official duties, as prescribed by chapter 257 of the Laws of 1874, before receiving a portion of his salary or compensation provided for by section 5 of that act.
    The indictment was found under section 154 of the Penal Code, which provides that “where any duty is or shall be enjoined by law upon any public officer, or upon any person holding a public trust or employment, every willful omission to perform such duty, where no special provision shall have been made for the punishment of such delinquency, is punishable as a misdemeanor.”

      Held, that chapter 257 of the Laws of 1874 required the making of the oath, not in the defendant’s official, but in his personal, capacity, and that the omission to make the oath was his individual, and not his official, omission.
    That the law did not require the defendant to make the oath, but left it optional with him, suspending his right to receive a salary until he should do so.
    That the wrong done by the defendant consisted not in the omission to take the oath, but in his receiving his salary before his right to receive it was complete.
    Appeal by the People of .the State of New York, from a judgment rendered at the Court of Sessions, in and for the county of Saratoga, on the 28th day of May, 1890, sustaining demurrers-interposed by the defendant to two indictments charging that the defendant, being the superintendent of public works in and for the village of Saratoga Springs, willfully omitted to make oath and execute an affidavit that he had not been interested pecuniarily in any contract, work, materials or other matter connected with hiss official duties, as prescribed by chapter 257 of the Laws of 1874,. before receiving a portion of his salary or compensation, as provided for by section 5 of said chapter 257 of the Laws of 1874, as such superintendent of public works.
    The first indictment contains one count and recites that the grand jury “ accuse Benjamin Ryall of the crime of willful omission to perform a public duty enjoined by law upon a public officer committed as follows: The said Benjamin Ryall, on the fifth day of February, in .the year.of our Lord one thousand eight hundred and ninety, at the town of Saratoga Springs, in the county of Saratoga aforesaid, being the superintendent of public works in and for the village of Saratoga Springs, Saratoga county, New York, duly appointed by the trustees of the village of Saratoga Springs, and as such, being a public officer and a person holding a public trust and employment, willfully omitted to make oath and execute an affidavit that he had not been interested pecuiiiarly in any contract, work, materials or other matter connected with his official duties as prescribed by 'chapter 257 of ’the Laws of 1874, before receiving a portion of his'salary or compensation provided for by section 5 of said chapter 257 of Laws of 1874, as such superintendent of public works, to .wit, .the sum of two hundred dollars received by him on that day, contrary,” etc.
    The second indictment consists- of tw-o counts, the first of which is in the same words as the ábove,’except that the omission is charged with respect to his salary received on the 12th day of August, 1889. The second .count is, in substance, the same as the first, except that his appointment to -and -acceptance -of the office are more fully set forth.’

      T. F. Hamilton, district-attorney, for the appellant.

      John Foley, for the'respondent.
   Landon, L,:,

The indictments are under section 154, Penal Code, which is as follows: “ Omission of duty by public officer. — Where any duty is or shall be enjoined bylaw upon any public officer, or upon any person holding .a public trust or employriient, every willful omission to perform such, duty, where no special provision shall have been made for the punishment of such delinquency, is punishable as a misdemeanor.” ,

The office of superintendent of public works for the village of Saratoga Springs is created by chapter 257, Laws of 1874. His duties are prescribed by. the act and are substantially as follows: He has charge of all the streets, sidewalks, alleys, bridges, culverts, etc., and if they are .out of repair, it is his duty to fix them. It is his duty to remove all obstructions from the streets, etc., to report to the board of trustees the condition, of such streets,, etc,, and to do many other things connected with the; streets, and he shall be personally responsible to the public for neglect of duty to the same extent as the commissioners of said village. He has a salary of $800.

The duty which he' is charged with omitting is described in section 6 : “ Section 6. Before said superintendent shall receive any portion of his said salary or compensation, he shall make oath and execute an affidavit that he has not in any manner been interested pecuniarly in any contract, work, materials or other matter connected with his official duties, as prescribed by this act; which oath- or affidavit shall be filed with the receiver of taxes and' assessments of said town or village.”

The indictments charge no omission of duty with respect to the streets. The only omission charged is the omission to make the oath and execute the affidavit prescribed in section 6. The making such oath- and executing such affidavit cannot be doné' in an official capacity, but must be done by the defendant in his personal capacity. It is his conscience that is challenged. As an individual he knows whether as an officer he has done anything forbidden, and as an individual he must make oath. The omission to make the oath was his individual not his official1 omission. The law does not' require the defendant to make the oath and execute the affidavit; It leaves - that optional with him, and suspends his right to receive his salary until he shall make the oath and execute the affidavit. It follows that the wrong done consisted in defendant’s receiving his salary before his right to receive it was complete. If that-is a crime, it is not the one of which he is accused.

The judgments should be affirmed.

Learned, P. J., and Mayham, J., concurred.

Judgments affirmed.


author: Landon, J.:

text:
    THE VILLAGE OF BALLSTON SPA, Appellant, v. CHARLES A. MARKHAM, Respondent.

      License to sell meat in a village—penalties for selling without a license, authorized by section 3, title 3 of chapter 291 of 1870.
    In an action to recover three penalties of ten dollars each, alleged to have been incurred by the defendant because on three different days he peddled meat in the village of Ballston Spa, not having obtained a license therefor, it appeared that the plaintiff, the Tillage of Ballston Spa, was incorporated under the general act for the incorporation of villages (Laws of 1870, chap. 291), and that its board of trustees had passed the following ordinance: “ All persons within the corporate limits of this .village who shall hawk or peddle meat * * * in any of the streets of this village shall pay a license ” of thirty dollars therefor, and had also prescribed a penalty of ten dollars for selling without a license.
    Held, that the ordinance was authorized by section 3 of title 3 of said chapter 291 of 1870.
    That this ordinance tended to restrain and prevent the hawking or peddling of meat; and that although it also imposed a tax it was not, therefore, prohibited.
    That the matter was of a purely domestic character, and that the power exercised was valid and within the constitutional competency of the legislature.
    Appeal by tbe plaintiff, tbe Village of Ballston Spa, from a judgment of the Saratoga County Court, entered in the office of tbe clerk of tbe county of Saratoga on tbe 21st day of September, 1889, reversing and setting aside a judgment theretofore rendered in a Justice’s Court in favor of the plaintiff; also from an order of tbe Saratoga County Court, entered in said clerk’s office on the 21st day of September, 1889, reversing and setting aside, with costs, tbe judgment of tbe Justices’ Court herein.
    Tbe action was brought to recover thirty dollars from tbe defendant, that being the amount of three penalties for tbe violation of an ordinance enacted by the plaintiff, which required hawkers and peddlers of meat to pay a license of thirty dollars.
    These penalties were alleged to have been incurred by the defendant because, on three different days, he peddled meat in the village of Ballston Spa without having obtained a license therefor.
    The plaintiff was incorporated under the general act for the incorporation of villages, chapter 291, Laws of 18J0, and the acts amendatory thereof. Its board of trustees passed and promulgated the following ordinances: “ Sec. 34. All persons within the corporate limits of this village who shall hawk or peddle meat * * * in any of the streets of this village shall pay a license therefor as follows: Hawkers and peddlers of meat, thirty dollars. * * * Licenses here mentioned, when issued, shall continue in force for one year.” Section 35 prescribes a penalty of ten dollars for selling without a license. Various other licenses are in like manner provided for. The evidence showed that the defendant violated the ordinance and the plaintiff recovered judgment for thirty dollars and costs before the justice, which judgment, upon appeal, was reversed by the County Court.

      J. W. Verbech, for the appellant.

      W. J. Miner, for the respondent.
   Landon, J.:

The learned county judge reversed the judgment of the Justice’s Court upon the ground that the license fee here exacted by the ordinance, thirty dollars, was too excessive to be regarded as a reasonable police regulation for the protection of life, health or property, or for the promotion of good order ; that it must, therefore, be considered as a tax, and that the legislature had not conferred upon the village the power to tax occupations for the purpose of producing revenue, or, at most, for any greater revenue than would defray the expense incident to granting the license.

We think the statute authorized the board of trustees to pass the ordinances in question establishing the price of the license, prohibiting peddling meat without a license, and fixing the penalty for each violation. Section 3 of title 3 of the village general act (2 R. S. [8th ed.], 967, chap. 291, Laws of 1870), provides that “the trustees shall have power, as to acts and matters within the corporate bounds, to make, publish, amend and repeal rules, ordinances and by-laws for the following purposes: ”

Subdivision 22. “ To restrain, regulate or prevent hawking and peddling in the streets ; to regulate, restrain or prohibit sales by auction, and grant licenses to peddlers and auctioneers and fix the amount to be paid therefor,” amended by chapter 281, Laws of 1878.

Subdivision 27. “ The board of trustees shall have power to make and establish all legal by-laws, rules and ordinances necessary to carry out the purposes ■ of this act' * ' * * and 'to enforce such, by-laws, rules and ordinances. * *' *' The trustees shall also-have power to prescribe penalties for a violation 'thereof not exceeding $100 for each offense.”

Section 9, article 8 of the Constitution provides : ’ “ It shall be the-duty of the legislature to provide for-the organization of cities and incorporated • villages, and- to restrict - their-power of taxation, * * * so as to prevent abuses‘in assessments and contracting-debt.”

It is plain that the above legislative grants of power are within the Constitution, and are ample in their terms to embrace the ordinances of the village of Ballston Spa above cited. Undoubtedly the ordinance must be within the legislative grant of power or it is-void. Here the power is “ to restrain and prevent hawking and peddling in the- streets,” and “to grant licenses to peddlers, * * * and fix the amount -to be paid therefor.” Any one could peddle meat upon paying for the license.

In City of Brooklyn v. Nodine (26 Hun, 512) it -was said that the power to regulate and1 license does not carry the power to tax. We need not question this. Here the power with respect to peddlers is to restrain and prevent and to license. The license fee exacted tends to restrain and prevent. It is also a tax, but it is not,- therefore, prohibited. It is competent for the law to- provide that a. peddler who enjoys the benefits of the trade of a village shall contribute something in discharge of its burdens. Cases are cited in which ordinances designed to confer arbitrary power upon the-authorities to do injustice to a class because of race or religious-prejudices have been condemned. In Yick Wo v. Hopkins (118 U. S., 356) the Chinese were discriminated against. In Austin v. Murray (16 Pick., 121), the Roman Catholics. These have no-application. Cases cited in which, under a false pretense of promoting health or good order, oppressive burdens have been imposed, do not apply. Nor do the cases cited from the Supreme Court of the United States, in which it has been held that a license imposed by State authority upon a non-resident trader of the State because he was a non-resident, was void; or upon a trader because he dealt in the productions of other States; or upon merchandise because-it was imported from other States. These were attempts by the-State to invade the exclusive power of congress to regulate commerce among the States, orto prevent interstate commerce from being free.

The matter here is purely of a domestic character, and the power exercised is valid because authorized by the legislature within its constitutional competency. (Village of Carthage v. Frederick, 33 N. Y. St. Rep., 383; Village of Deposit v. Pitts, 18 Hun, 475; People ex rel. Dorr v. Thacher, 42 id., 349; City of Brooklyn v. Breslin, 57 N. Y., 591; People ex rel. Larrabee v. Mulholland, 82 id., 324.)

The answer raises no issue as to the incorporation of the village.

The judgment of the County Court should be reversed, with costs.

Learned, P. J., and Mayham, J., concurred.

Judgment of County Court reversed and that of justice affirmed.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN BELKNAP, Appellant.

      Action for penalties under the law to protect fish—the authority of the proper officer must appear.

    An action to recover penalties imposed for violating the laws for the protection of fish (secs. 23, 24, chap. 534 of 1879; chap. 127 of 1884 and chap. 11 of 1886), cannot be brought in the name of the people unless it appears that such action was brought by authority of the proper officer.
    It cannot be presumed that any officer authorizes an action in which his name does not appear, and in which his authority to bring it is not claimed.
    Such an action is a penal action, and the statutes authorizing it must be construed and pursued strictly.
    The people have no capacity to sue for penalties, except as authorized by law, and not then except through the officer or person authorized to bring the suit.
    Appeal by the defendant John Belknap from a judgment of the Supreme Court, entered in the office of the clerk of the county of St. Lawrence on the 22d day of October, 1889, with notice of an intention to bring up for review, upon such appeal, an ord§r, entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial made on the minutes of the court, and the ruling and exceptions to defendant’s motion for a dismissal of the complaint.

      The action was brought to trial at the St. Lawrence Circuit, before the court and a jury, and a verdict was rendered in favor of the plaintiff for $200.
    The action was to recover several penalties of twenty-five dollars each for violating the laws for the protection of fish.
    The summons and complaint were not signed by any district attorney, and there was no allegation or claim that the action had 'been commenced under the direction of any fish or game protector or other officer.

      Whitney dk Whitney, for the appellant.

      R. E. Waterman, for the respondent.
   Landon, J.:

The defendant incurred the penalties to the amount of the verdict. The point which he raised by his answer and motions for the dismissal of the complaint is that this suit against him in the name of the People of the State of New York as plaintiff, was not shown by the complaint or otherwise to have been brought under any .statutory authority, and that without such authority and a compliance with it the people have no capacity to sue, and no attorney or .individual has the right to use their name as party plaintiff. Neither the complaint nor the evidence showed by what authority the people were made plaintiff.

Undoubtedly, the People of the State of New York have the capacity to sue, (1) where enabled to do so by statute; (2) where the property or pecuniary rights vested in the people of the State are involved. But in either case such a suit must be brought by some officer or person duly authorized by law to use the name of the people as a party plaintiff. As was said in People v. Ingersoll (58 N. Y., at page 17), “such a committal of power should be the act of the legislature, who can hedge it about with all necessary safeguards.” Again, “ whenever the legislature, by statutory enactment, has conferred upon State officers or public bodies authority to represent the body of the people in the exercise of any prerogative right no question can arise, for in those matters, except as restrained by the Constitution, the legislature is supreme.” (See People v. Fields, Id., 491; People v. Booth, 32 N. Y., 397.) Following the Ingersoll and Fields cases, chapter 49, Laws of 1875 (now Code Civil Pro., §§ 1969 et seq.), conferred upon the people of the State the right to bring such actions as were defeated in those cases, and conferred upon the attorney-general the power to bring them. The Code of Civil Procedure, sections 1893, 1894, provides that when a penalty is given by statute to an individual he can sue for it in his own name. When the penalty is given to the people the attorney, general or district attorney must bring the action. (Id., § 1962.) These general provisions do not supersede special provisions of the statute authorizing actions for penalties in special cases, but they indicate the policy of the State, that no one shall use the name of the people of the State as a party plaintiff except in pursuance of some enabling law. • ■

It is urged that this is not a question of the capacity of the people of the State to sue, but one of authority. But the people of the State are in this respect unlike an individual or domestic corporation. An individual not laboring under disability has a capacity to sue in whatever action he chooses to bring in his own name, however unsound his cause of action may be. So of a domestic corporation. But the people have no such general capacity. They have no capacity to sue for penalties except as authorized by law, and not then except through the officer or person authorized to bring the suit. If the proper ageuev is absent, the capacity is absent. In fact the people, as a body aggregate, under a constitutional government, are practically in ward, the public officers being their guardians. The people, strictly speaking, have no capacity to use their own name, the proper officers use it as the law permits. Hence the name of the people as party plaintiff in an action brought by an unauthorized attorney, simply as plaintiffs’ attorney,” is the name of a party without capacity to sue in that suit, and without capacity to sue for the penalties therein specified, except upon the condition precedent lying at the foundation of its capacity, namely, that it shall be brought into court by the proper agent of the law. But whether the defect is one of capacity or of authority, this action, if either defect exists, is not maintainable. If, without authority, the action rests upon usurpation, and the defendant is punished, in the name of the people, when they have not moved against him.

The penalties in question were incurred under sections 23, 24, chapter 534, Laws of 1879. Section 23 was amended by chapter 127, Law of 1884, and section 24 by chapter 11, Laws of 1886. Section 33 of the act of 1879, provided that “ all penalties imposed by this act may be recovered, with costs of suit, by any person in his own name; ” and the district attorney was also authorized to bring actions for their recovery in the name of the people. We have examined all the statutes subsequently enacted to which we have been cited, especially chapter 591, Laws of 1880, and chapter 317, Laws of 1883, the provisions of which relative to the bringing of actions, were expressly repealed by section 10, chapter 577, Laws of 1888; also, chapter 429, Laws of 1886. Chapter 577, Laws of 1888, makes it the 'duty of the game and fish protectors to enforce the laws of the State for the protection of game and fish. They are authorized to direct the commencement of suits for the purpose.

Section 3. Such suits shall be commenced on the order of any game and fish protector, in the name of the people, by any district attorney where the offense shall be alleged to have been committed^ or by the district attorney of an adjoining county. * * * If it shall appear in any case that the business of the office of the district attorney of any county where suits may be thus commenced is so pressing that the. district attorney cannot give to such suits prompt and necessary attention, the game and fish protector having authority to direct the prosecution may, with the approval of the chief game and fish protector, employ other ceunsel in the same county to commence and conduct such suits to termination.” It may be that, under section 2, chapter 429, Laws of 1886, game constables, sheriffs and deputy sheriffs have the same powers in this respect as game protectors.

As the law stands, an individual may bring the suit in his own name, and, of course, at his own expense. District attorneys may bring the suits in the name of the people, either upon their own motion or upon the direction of the proper officer. Counsel, other than the district attorney, may in the exceptional cases mentioned in chapter 577, Laws of 18S8, bring such actions in the name of the people. But no presumption can be entertained that this action was authorized by the proper officer. We cannot presume that any officer authorized an action in which his name does not appear and his authority is not claimed.

Tbis is a penal action and tbe statutes authorizing it must be construed and pursued strictly. As tbe record stands, tbe case never bad any lawful existence, and, of course, could not result in a lawful judgment against tbe defendant. (Seward v. Beach, 29 Barb., 239.)

Judgment is reversed, witb costs.

LeabNed, P. J., and Mayham, J., concurred.

Judgment and conviction reversed.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. WILLIAM H. COUGHTRY, Respondent.

      Change of venue—not prohibited in an action for penalties under the game law, chapter 577 of 1888.
    The provisions of section 3 of chapter 577 of the Laws of 1888, relating to suits for the recovery of penalties for violations of the game law, to the effect that “ such suits shall he commenced on the order of any game and fish protector, in the name of the people, by any district attorney, where the offense shall be alleged to have been committed, or by the district attorney of the adjoining county, and such suits shall be prosecuted to determination in the county where they shall be commenced, unless for a good cause appearing a discontinuance shall be directed by the chief game and flsli protector,” do not prevent the Supreme Court from changing the venue in actions where the convenience of witnesses or the ends of justice demand it.
    Appeal by tbe plaintiff, tbe People of tbe State of New York, from an order made at a Special Term of tbe Supreme Court held in Albany county on tbe 26th day of August, 1890, and entered in the office of the clerk of the county of Columbia on tbe 2d day of September, 1890, changing tbe place of trial in tbe above-entitled action from tbe county of Columbia to the county of Albany.
    Tbe order was made upon a motion to change tbe place of trial for tbe convenience of witnesses and for tbe promotion of justice.

      A. B. Gardenier, for tbe appellant.

      F. M. Danaher, for tbe respondent.
   Landon, J.:

The action is for the recovery of penalties for alleged violations by the defendant of the game laws. The violations are alleged to have been committed in the county of Albany. The action was brought by the district attorney of Columbia county, and the place of trial laid in that county. The appellant’s sole contention is that, under the statute, the court had no power to change the place of trial. Section 3 of chapter 577, Laws of 1888, provides that “ such suits shall be commenced on the order of any game or fish protector,, in the name of the People, by any district attorney where the offense shall be alleged to have been committed, or by the district attorney of an adjoining county; and such suits shall be prosecuted to determination in the county where they shall be commenced, unless for good cause appearing a discontinuance shall be directed by the chief game and fish protector.”

Unquestionably, the intent of the legislature was to authorize, in proper cases, these actions to be brought in a county adjoining that in which the violation of the law occurred, but we do not think the-legislature, by the provision, “ and such suits shall be prosecuted to determination in the county where they shall be commenced,” intended to deprive the Supreme Court of the power to change the place of trial from the adjoining county to the county where the-alleged offense occurred. The jurisdiction to change the venue in actions where the convenience of witnesses or the ends of justice demand it, is ancient and useful. The learned counsel for the respondent points out in his instructive brief its antiquity, and the bench and bar would probably unite in attesting its usefulness.. The Constitution (art. 6, § 6) confers upon the Supreme Court “general jurisdiction in law and equity.” The eighth section of the same article provides that “ except as herein otherwise provided, the legislature shall have the same power to alter and regulate the jurisdiction and proceedings in law and equity that they have heretofore exercised.” The power “ to alter and regulate ” implies that the old jurisdiction shall in some degree continue in an altered or regulated form. Many cases affirm the inability of the legislature to abridge the general jurisdiction of the court. (De Hart v. Hatch, 3 Hun, 375, 380; People ex rel. Hill v. Supervisors, 49 id., 481; Brooklyn v. New York, 25 id., 612; People ex rel. Mayor v. Nichols, 79 N. Y., 590; Alexander v. Bennett, 60 id., 206; Popfinger v. Yutte, 102 id., 42; Hutkoff v. Demorest, 103 id., 380.) Ordinarily an action to recover a penalty must be tried in the county where the cause of action arose. (Code Civ. Pro., § 983.) "Where the legislature authorizes such actions to be brought in .another county, the propriety of the jurisdiction of the court to change- the place of trial to the county where the cause of action arose, if justice requires it, would seem to be clear. A legislative attempt to deprive the court of it would be an attempt to replace judicial functions with legislative mandates.

We need pursue the subject no further than to say that we decline to impute to the legislature an intention, by the use of the language here employed, to deprive the court of its accustomed jurisdiction. The real intent of the act is manifest when the whole provision is read: “ Such suits shall be prosecuted to determination in the county where they shall be commenced, unless for good cause appearing a discontinuance shall be directed by the chief game and fish protector.” The main intent is to prevent a discontinuance except under the direction of the chief game and fish protector. If there had been an intention to abridge the jurisdiction of the court, we think it would not have been disguised under an enlargement of the powers of this officer.

Order affirmed, with ten dollars costs and disbursements.

MayhaM, J\, concurred; LeaeNed, P. J"., taking no part.

Order affirmed, with ten dollars costs and disbursements.


author: LearNed, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE AMERICAN SURETY COMPANY v. EDWARD WEMPLE, Comptroller of the State of New York.

      Insurance company — when a “surety company’’ is an insurance company and subject to a tax on its premiums.

    The American Surely Company, incorporated under chapter 463 of the Laws of 1853, and chapter 485 of the Laws of 1879 amendatory thereof, is an insurance company, although not so designated in its name, and is subject to the tax of eight-tenths of one per cent on the gross amount of its premiums under section 5 of chapter 361 of the Laws of 1881.
    The provisions of section 4 of chapter 679 of the Laws of 1886, to the effect that ' the personal property, franchises and business of all insurance companies shall be exempt from taxation, except as provided in that act, are limited to fire and mai'ine insurance companies, and do not apply to the American Surety Company.
    Certiorari to review an adjustment and assessment of taxes made by the comptroller of the State of New York upon the relator, August 11, 1S90, under the corporation tax law. (Laws of 1881, chap. 361, § 5.)

      John J. Crawford, for the relator.

      I. U. Maynard, for the respondent.
   LearNed, P. J.:

The relator is incorporated under chapter 463 of the Laws of 1853 and amendatory acts. The second part of the first section of that act, as amended by chapter 485, Laws of 1879, includes companies for guaranteeing the fidelity of persons holding places of public or private trust. And that is the business of the relator, as appears by its certificate.

It is quite clear, then, by the relator’s own certificate, and by the statutes above cited, that it is an insurance company, although it does not so designate itself in its name. But the statutes mention the guaranteeing fidelity as one branch of insurance for which companies may be incorporated.

Section 5 of chapter 361, Laws of 1881, imposes a tax of eighteenths of one per cent of gross amount of premiums of every insurance company, except life insurance companies and purely mutual beneficial associations. This relator is not one of the excepted companies, and is, therefore, liable to the tax, unless relieved by some other statute. The relator relies on chapter 679, Laws of 1886, section 4. The latter part of that section provides that the personal property, franchise and business of all insurance companies shall be exempt from taxation, except as provided in the act. Hence the relator claims to be exempt from the tax above mentioned.

The relator’s conclusion is correct, if that section really includes all insurance companies. To understand its meaning Ave must examine the whole act. The title is “An act to provide for the taxation of fire and marine insurance companies.” Thus the object, as expressed in the title, is limited to fire and marine insurance companies.

Section 1 enacts that every fire and marine insurance company shall pay a tax of one-half of one per cent on the gross amount of its business.

Section 2 enacts that every such insurance company shall make an annual return of the amount of its premiums.

Section 3 imposes a penalty on any officer of a company required to make such return who neglects to do so, and gives an action to recover the tax.

Section 5 declares the taxes imposed shall be paid into the treasury for account of the general fund.

Section 4 begins by declaring that “ the lands and real estate of such insurance companies shall continue to be assessed and taxed,” etc. Then follows the clause relied on by the relator, “ but the personal property, franchise and business of all insurance companies incorporated under the laws of this State or any other State or country * * * shall hereafter be exempt from all assessment or taxation, except as in this act prescribed.”

Now, no argument is needed to show that this act has reference only to fire and marine insurance companies. The very section 4 begins by stating that the lands and reai estate of such, that is, fire and marine insurance companies, shall be assessed and taxed. This, of course, has no reference to such a company as the relator. Then it proceeds, “ but the personal property, franchise and business of all insurance companies,” etc. Now, although the word “such” is omitted before the words insurance companies, yet the meaning is plain.

The statute was dealing solely with fire and marine insurance companies, and its provisions apply to those companies only. This is made more plain by the latter part of this section where it says “ shall hereafter be exempt from all assessment or taxation, except as in this act prescribed.”

No assessment or taxation is prescribed in the act for any insurance companies other than fire and marine. ' When, therefore, the act declares that companies shall be exempt from all assessment or taxation, except as in the act prescribed, it evidently referred only to those companies for which assessment and taxation were prescribed by the act.

The final clause of the section enforces this view. It provides that the section shall not affect the fire department tax. This is a tax which has nothing to do with such companies as the relator. We think there is no question as to the meaning of the statute. The language of all the sections points plainly to fire and marine insurance companies as the only subjects of the legislation. It substituted a new rate of taxation in respect to those companies for previous rates. Having done this, it exempted those companies (except as to land) from other taxation. But it did not establish any new rate of taxation for such companies as the relator, and did not exempt such companies as the relator from other and existing taxation.

Whether the word such ” was omitted by stratagem or by accident, or whether the person who drafted the statute thought its meaning sufficiently clear without that word we do not know.

But we have no doubt that the action of the comptroller was legal and correct, and his proceedings are confirmed, with fifty dollars costs and disbursements.

Landón and Mayham, JJ., concurred.

Proceedings of comptroller confirmed, with fifty dollars costs and disbursements.


text:
    ANNA L. GREER, Appellant, v. THOMAS H. GREER and Others, Respondents; BARRINGTON LODGE and Another, Executors of WILLIAM B. SCOTT, Deceased, Appellants.

      Evidence as to a personal transaction with a person, since deceased, as to his having been present—privileged communication to an attorney —stipulation as to objections.

    To state the names of the persons in a room at a certain time is not testimony concerning a personal transaction between the witness and one of them, and such testimony is admissible, although the witness may be interested in the action and one of the parties who was in the room has died before the trial.
    The testimony of an attorney that he drew a deed for one Scott and took his acknowledgment, and that the description in the deed embraced a certain parcel of land, is not a privileged communication where it appears that the deed was drawn, executed and acknowledged in the presence of the grantee.
    Astipulation “that all objections and exceptions to evidence be considered as taken by all the parties whose interests are antagonistic to that of the party offering the "evidence, and that all available objections, under sections 829 and 835, were taken, and when overruled, that exceptions were taken,” is not available on an appeal.
    Appeal by the plaintiff Anna L. Greer, and also by the defendants Barrington Lodge and William W. Crannell, as executors of the last will and testament of William B. Scott, deceased, from so much and such parts of a judgment of the Supreme Court, entered in the office of the clerk of Albany county on the 7th day of February, 1890, as decreed:
    XII. That said parcels of land secondly and thirdly described in the complaint herein were conveyed by said William B. Scott to said defendant Thomas H. Greer, by deed dated November 21,1885, duly executed and acknowledged on that day and delivered to said Greer, and at the time of the death of said Scott he had no title thereto or interest therein; nor had the plaintiff any title thereto either as tenant in common with said Thomas H. Greer, or otherwise, or any interest therein, other than an inchoate right of dower, as the wife of said defendant Thomas H. Greer, at the time of the commencement of this action.
    XIII. That the complaint herein be and the same hereby is dismissed as to the second and third pieces or parcels of land described therein, and that the defendant Thomas EL Greer recover of the plaintiff Anna L. Greer the sum of $ as his costs and disbursements herein.
    "William B. Scott, the father of the plaintiff, had been the owner of the two parcels. Ele died in February, 1887. By his will he devised all his real estate to the plaintiff and .to her husband, the defendant Thomas EL Greer, as tenants in common. The plaintiff brought this action to partition the lands so devised, alleging that the two parcels were included. The defendant Thomas EL Greer answered claiming to be the sole owner of the two parcels. Upon the trial he introduced testimony tending to show that the testator "William B. Scott, on the 21st of November, 1885, conveyed the same to him by deed; that the deed was delivered to him and placed in his safe, and was not recorded; that Scott had access to his safe; that the deed was abstracted therefrom or lost or destroyed. The referee decided that he was the sole owner of the two parcels;

      Alden Chester, for the plaintiff, appellant.

      W. Frothwigham, for the executors, appellants.

      JD. C. Herriek, for the respondents.
   Landon, J.:

We think this judgment should be affirmed upon the facts, unless alleged errors in the admission of incompetent evidence materially affecting the issue require a reversal.

It was an important question upon the trial whether a deed which, it was shown by. evidence satisfactory to the referee, embraced the two parcels in question, and was executed and acknowledged by Scott on the 21st day of November, 1885, was delivered to the defendant by Scott. It was shown that on that day Scott and Greer were together in the office of Mr. Frothingliam, who with Mr. Crannell was also present. A judgment for $23,4.00 had been recovered against Scott in an action in the Supreme Court, and Mr. Frothingham was his counsel with respect to an appeal. Greer was to become one of the sureties upon the undertaking upon appeal. The undertaking was then executed by Greer. Mr. Crannell, who was an attorney and notary public, taking Greer’s acknowledgment. At the same time Cranneil, at the request of Scott, drew the deed of the two parcels of land in question and Scott executed it and Cranneil took his acknowledgment. Greer’s claim was that Scott did this in order to enable Greer to justify as one of his sureties upon the undertaking. Greer had previously owned the two parcels of land, and in 1S83 had conveyed them to Scott. The defendant Greer was permitted to testify substantially as follows: I was present when the acknowledgment was taken; Scott, Cranneil and Frothing-ham were present when I got possession of the paper (deed); I got possession of it immediately after it was acknowledged; I took it home ; had it in my safe.

It is important to ascertain how much of this testimony was objected to. There is a statement in the case in these words: “ It is stipulated that all objections and exceptions to evidence be considered as taken by all the parties whose interests are antagonistic to that of the party offering the evidence, and that all available objections under sections 829 and 835 were taken, and, when overruled that exceptions were taken.” "We do not think that that stipulation is available for any purpose on this hearing. In Briggs v. Waldron (83 N. Y., 582) there was a statement by defendant’s counsel in these words: “"We will have it understood that an exception follows every objection on this trial,” and this was not dissented from. Yet the court held that this simply entitled the defendant, on the settlement of the case, to have exceptions entered to such rulings as he might desire to have reviewed. And the court said: “ If it went further and was intended to govern the action of the appellate tribunals and require them to review rulings to which no exception was entered in the case, we cannot give effect to it. The provisions of law which require a party desiring to review rulings upon a trial to take exceptions in proper form are established for the convenience of the courts as well as for the protection of the parties; and the latter cannot by stipulation have their cases heard on appeal without regard to those provisions.”

The same doctrine is asserted in People v. Buddensieck (103 N. Y., at page 501). The rule is more forcibly applicable in this case where the parties have endeavored to stipulate away the need of objections as well as of exceptions. We do not think that can be done. "We are to review rulings alleged to be erroneous; and a ruling lipón evidence can only be made upon an objection. If evidence was not objected to when offered, then it came in by consent. If no objection was made, then the learned referee’s attention was not called to the question of its admissibility, and, therefor^, no error was made; and we are not bound to examine questions which might have been properly decided if they had been raised in the court below. To stipulate that objections and exceptions may now be considered as taken ” is an attempt to create errors which never existed on the trial; and we shall give no effect to any such stipulation. It is enough for us to review actual decisions upon objections to evidence duly excepted to. Applying this rule, then, the case shows that nothing was objected to except the names of the persons present when he got the paper; no other specific objection was taken. He did not say that he got it from Scott, deceased, or that Scott delivered it to him, or that Scott knew of his getting it. No inference is to be drawn that Scott delivered it, any more than might have been drawn from the mere fact that Greer had it in his possession ; and this had been proved without objection.

If he had said that no one but Scott was present, another phase would exist. But the fact that three persons were present, one of whom was Scott, does not show a transaction with Scott. Whether or not Greer took it stealthily and without the knowledge of any one is not shown. The paper could not be found, and it was necessary to prove its contents. And to permit this it was necessary to show that it had once been in Greer’s hands and that he had searched for it in vain. He might, as was said in Simmons v. Havens (101 N. Y., 421), have received it from some other person ; from Crannell or from Frothingham, or he might have taken it without delivery by anyone. If he took it without Scott’s consent, then there was no transaction between Scott and Greer. To state the names of the persons in a room at a certain time cannot be called testimony concerning a personal transaction between two of them; suppose there had been fifty persons in the room. We think the testimony was properly admitted.

The appellant insists that the testimony of Crannell to the effect that upon the request of Scott he drew the deed and took his acknowledgment of it, and that the description in the deed embraced .the two parcels, was incompetent because in violation of section 835 •of tbe Code of Civil Procedure, prohibiting an attorney from disclosing any communication made to him by his client in the course of his professional employment. The deed was drawn, executed and acknowledged in the presence of the defendant Greer. Greer was a party to the deed. Such a transaction is not privileged. (Whiting v. Barney, 30 N. Y., 330; Hebbard v. Haughian, 70 id., 54.) Besides, the only material matter involved was whether at the end of the whole transaction a deed from Scott to Greer existed, and if so, what were its contents. If the deed had not been lost it would speak for itself. Being lost, its existence and contents could be proved by any witness who had read the deed.

Upon defendant’s theory it was his property when lost, and what he sought by Crannell’s testimony was a description of his lost property. The witness was a reluctant one, and by his method of testifying seemed to succeed in raising the issue of a violation of privilege. But it was a false issue.

The judgment must be affirmed, with costs.

Learned, P. J., concurred; Mayham, J., not acting.

Judgment affirmed, with costs.


author: Mayham, J.: LearNed, P. J.: . LaNdoN, J.:

text:
    GEORGE R. SHERMAN and Others, Survivors, Respondents, v. JOHN D. SLAYBACK and Another, Appellants.

      Chattel mortgage—sale of the chattels in bulk, and at aplace where they were notin mew of the purchasers—such a purchase by the mortgagee does not extinguish the equity of the mortgagor—effect of the mortgagee retaining possession without a sale.

    In an action brought to charge the directors of a corporation, organized under chapter OH of the Laws of 1875, with liability for its debts, by reason of their failure to file the annual reports required by that act for the years 1880 and 1887, it appeared that the corporation was, on August 24, 1880, indebted to the plaintiff in the action in the sum of $17,080.84, and on that day mortgaged its furnace, etc., held by it under lease, to secure such indebtedness and surrendered the same to the plaintiffs, who took possession thereof, and thereupon the corporation ceased to transact business.
    On August 18, 1880, the corporation, by its treasurer, executed and delivered to the plaintiffs an instrument in writing, in which it acknowledged itself indebted to the plaintiils, and, in consideration of an extension of time of payment of the debt and other considerations, it released and surrendered to the plaintiffs its said furnace, adjacent premises and property, of which the paper recited that the plaintiffs had taken possession at six o’clock on that day, and on August twenty-fourth, to secure the indebtedness to the plaintiffs, a bill of sale or chattel mortgage was executed by the corporation of certain chattels therein mentioned, providing for the payment of such sum on or before the 1st day of January, 1887.
    The corporation having defaulted in its payment the chattels were sold on January 18, 1887, at the door of one of the mills. The sale did not take place in sight of all the property, which was offered for sale in bulk, and not in parcels, and was struck off to one of the plaintiffs for $1,000, no one except the secretary of the company being present. The property covered by the mortgage exceeded in value the amount of the plaintiffs’ claim.
    On the 13th day of June, 1887, the present action was brought to charge the defendants, as directors, with the balance of the indebtedness of the company.

      Held, that as the object of the sale was to cut off the defendants’ right to redemption in equity, that the sale, in order to effect that purpose, must, in all respects, be regular and fair and bona Me, and one that would be upheld as a valid sale at common law.
    That as this sale was made of personal property which was not within the view of the bidders, and was not sold in separate parcels, that it could not be sustained.

      Semble, that by reason of the invalidity of the sale the mortgagee continued to hold, in his capacity as mortgagee, possession of the chattels, in which the mortgagor still had the equity of redemption, and that the possession and retention by the mortgagee of property of sufficient value to pay the debt without making a valid sale thereof, would operate as a payment and satisfaction of the plaintiffs’ claim pending the continuance of such possession thereof by the mortgagee.

      Semble, that, as the debt, for which, as directors, the defendants were sought to be made liable, could not have been recovered against the corporation if an action had been brought against it, while this condition of affairs existed, that the directors could not be held liable therefor.
    Appeal by the defendants John D. Slayback and Frank B. Robinson from a judgment of the Supreme Court, entered in the office of the clerk of the county of Essex on the 18th day of June, 1889, and from an order granting an extra allowance to the plaintiffs, which order was also duly entered in the office of the clerk of the county of Essex.
    The action was brought for the purpose of enforcing the individual liability of certain directors of the Port Henry Steel and Iron Company (Limited), because of the failure of the board of directors to file an annual report, and because of their having made a false certificate. The action was tried before a referee, upon whose report judgment was entered in favor of the plaintiffs.

      Bacon da Merritt, for tbe appellants.

      Waldo (& McLaughlin, for tbe respondents.
   Mayham, J.:

Tbis is an appeal from a judgment in favor of tbe plaintiffs, entered upon tbe report of a referee for $19,689.44, recovery and costs. The action was brought to charge tbe defendants as directors of tbe Port Henry Steel and Iron Company (Limited), with a debt alleged to be due to tbe plaintiff from that company. Under tbe pro1visions of chapter 611 of tbe Laws of 1875, under which the company was organized', on tbe grounds, first, that tbe defendants, as directors, bad failed to file tbe annual reports required by that act for the years 1886 and 1887; and, secondly, for making an alleged false certificate that tbe capital stock of the company bad been actually paid in, in cash, before tbe making of such certificate'. Tbe referee found that tbe certificate that tbe capital stock bad been paid in full was true, and disposed of that question in favor of the defendants; so‘that the only real question in controversy on tbis appeal is, as to whether or not these defendants are bable for not filing their annual report required to be filed under tbe provisions of chapter 611 of Laws of 1875, within twenty days after tbe 1st day of January, 1886 and 1887.

On tbe 23d of April, 1885, tbe copartnership known as tbe firm of “Witherbee, Sherman & Co., consisting of Silas H. Witherbee, George E. Sherman, Frank S. Witherbee, George D, Sherman and'Walter C. Witherbee, leased to John D. Slayback, Charles M. Eaymond, Frank B. Eobinson, Andrew Dickey and Thomas F. Witherbee, their blast furnace, known as the “Cedar Point Furnace,” at Port Henry, Essex county, N. Y., lease to run from the 15th day of June, 1885, for five years, for the rent and royalty of one dollar per ton of pig iron which the lessees shall make, the lessees covenanting that it shall amount to not less than $1,200 in any one year. The lease also provides for the time and manner of payment. The lease also provides that the lessees might, at any time before the 1st of June, 1885, form a corporation under the general manufacturing laws of the State of New York, with a capital of not less than $100,000;, and in tbat case the lessees had the right to transfer the lease to such corporation.

On the twenty-first day of May the lessees filed in the Secretary of State’s office articles of incorporation as provided in said lease, and the pleadings admit that the defendants are the directors and officers of such corporation, and had been such directors and officers and continued to act in that capacity from the time of its organization until June 7, 1887.

The name of the corporation was the Port Henry Steel and Iron Company (Limited).” Immediately after the incorporation the lessees assigned to it the lease and the corporation took possession, and in June, 1885, commenced operations under this lease.

The referee finds, and the case shows, that no annual report was made by the directors and officers of this corporation within twenty days after the 1st of January, 1880, as required by section 18 of chapter 611 of the Laws of 1875. The referee also found, upon the request of the defendants, that, on the 24th day of August, 1886, this corporation was indebted to the plaintiff in the sum of $17,086.84, and that on that day it mortgaged its property to secure such indebtedness and surrendered its plant to the plaintiffs, who took possession, and thereupon the company ceased to manufacture and never resumed, and that the company was then bankrupt. The referee also found that the indebtedness has never been paid or satisfied, except one thousand dollars ($1,000), and that there remains due $16,496.00, to which finding the defendants duly excepted.

On the 13th of August, 1886, the corporation, by its treasurer, executed and delivered to the plaintiffs an instrument in writing, in which it acknowledged itself indebted to the plaintiffs, and in consideration of an extension of time of payment and other considerations,’' it released and surrendered to the plaintiffs said furnace, adjacent premises and property, and all its interest in the property, and reciting that the plaintiffs have taken possession thereof at six o’clock on that day.

The instrument also provided for the return of the property to the company on the 1st day of January, 1887, provided the company perform certain stipulations mentioned in the writing on demand of the company. No rent to accrue while the plaintiffs held possession, and if not demanded before that time the right of tbe company under the lease and to all of the property is surrendered, and the same was to be regarded as the property of the plaintiffs.

It also provided that the corporation was to have the use of the yard and grounds on which their iron or steel was piled until the 1st of January, 1887.

This instrument was acknowledged on the 24th day of August, 1886, and on that day a bill of sale or chattel mortgage was executed by this corporation, by its treasurer, to secure an indebtedness of the company' to the plaintiffs of $17,086.84, on all the jiroperty of the company in the “ Cedar Point Furnace,” and all scraps or scrap iron, conditioned for the payment of that sum on or before the 1st of January, 1887, and also all other indebtedness of the company to the plaintiff: and in case of non-payment at that time plaintiffs were authorized to take possession and sell the same at public or private sale for the satisfaction of such indebtedness.

On the twelfth of January, the company having failed to pay such indebtedness, the plaintiff gave notice of a sale to take place on the eighteenth of that month.

On that day the plaintiff, by an auctioneer, at the door of one of the mills, and not in sight of all the property, offered the mortgaged property for sale in bulk, and not in parcels, and the same was struck off and sold to one of the plaintiffs for $1,000, no one except the secretary of the company .being present, and no one, as is claimed, authorized to represent the company on such sale.

This action was commenced on the 13th day of June, 1887. As the same is in the nature of a penal action as to these defendants, personally and ex delicto in its character, it is incumbent on the plaintiff to prove a state of facts clearly bringing the case within the statutory provisions which give the right of action. (Carr v. Rischer, 119 N. Y., 117.)

The first point made by the appellant is that the plaintiffs failed to prove an indebtedness of the corporation at the time of the commencement of the action or at any time before the trial. If this contention be true, in fact, then the plaintiffs could not recover.

The rule is well settled upon authority, and it would seem to be well founded in principle, that unless the corporation were indebted so that an action was maintainable against it at the time of the commencement of the action against the directors, no action would be maintainable against them.

In the Rector, etc., of the Trinity Church v. Vanderbilt (98 N. Y., 174): “ If there be no obligation giving a present right of action against- the company, there is no debt which can be demanded as a penalty against the trustee.”

"We must, therefore, first determine whether at the time of the commencement of this action, June 13, 1887, there was a debt due the plaintiff from the company on which a present right of action existed.

When the parties plaintiff and the company entered into the contract of August 13, 1886, it is quite apparent that the corporation was indebted to the plaintiffs, but in what amount does not appear. By that contract the corporation obtained an extension until January 1,1887, and by that extension the plaintiffs postponed any right of action that might then have existed against the corporation, and consequently no claim could, during' that period, be enforced against the defendants as trustees:

In Jones v. Barlow (62 N. Y., 202) it was held that trustees are only liable to an action for debts actually due, and for which a present right of action exists against the corporation. But it was also held that an extension of the time of payment by the creditor to the corporation did not operate to discharge the trustees if the corporation failed to ¡jay at the end of the extension, as the act of extension is to be regarded as a transaction between them and the creditor.

It follows, therefore, that if, after the expiration of the extension, the debt still exists, and if it has not in some way been discharged, the trustee or director in default in making the report required by law will still be liable for the debt.

The extension in this case, either by the contract of August 13 or the mortgage of August 24,1886, did n'ot defer payment beyond January 1,1887, and in the meantime the corporation did not pay the debt unless the acceptance of the property under the contract of August thirteenth, or the possession of the same under the chattel' mortgage of August twenty-fourth operated as a payment of the same.

The defendants insist that taking possession of property largely in excess - in 'value of thie amount of the debt, and holding it •after default, vested the title in the plaintiffs and operated as payment of the debt, and, was tantamount to-a satisfaction of the same after the first of January when the company defaulted in the payment after, maturity of the mortgage.

If this position can be successfully maintained, then the plaintiffs .at the time'of-the-commencement of the action, June 13, 188J, which was after.default in the mortgage, had no claim, and the corporation at that time owed them no debt, and the defendants would, consequently, be exonerated from any forfeiture or liability. '

In this State the- law seems well settled that, after, default in a chattel mortgage, the title vests in the mortgagee,-and he may, if not in possession, reduce the property to his possession, and is not .required to sell; and- in such case, if the property is equal in value -to the amount of the debt,-taking possession- amounts to,a satisfaction of the debt..

In Morgan v. Plumb (9 Wend., 392), Savage, Ch. J., in delivering the opinion of the • court,- says: - - “ When the defendants in this case took possession under the mortgage, the property, was worth the debt, and.-accordingi to- the decisions referred to in Massachusetts and in this State, the debt-was-paid.”

In Case v. Boughton (11 Wend., 109) the court says: ££If thé mortgagee,simply..re-enters, but does not.sell, .and- the property-is of .sufficient-value to. satisfy.the .debt, the debt is paid-.”

The .title in.the chattel mortgaged,-.after default, under a.chattel mortgage is.absolute in the-.mortgagee. (Thomas on.Mortgages, 445, 446.) Unquestionably the mortgagee- after defaultmay sell the mortgaged chattel- under the. power. of sale; and must do so or he .waives his claim for deficiency; but, in order to fix the amount of the deficiency .and foreclose -the rights of- -the mortgagor and prevent him from redeeming in equity, he must make a fair and bona ficle sale under the power contained in the mortgage, or have recourse to actual foreclosure of the equity by judicial proceedings. (Porter v. Parmly, 43 How., 445.) But the plaintiff in this casé made a sale under the power of sale in the mortgage, and if that sale was a fair and just and bona fide sale for a reasonably fair price, which was fairly applied upon the debt, then the defendants cannot complain and would be bound by it; and hence we are brought to a consideration of the circumstances of that sale. On the 8th and lOtli of January, 1 «87, plaintiffs caused to be posted in three or more public places at Port Henry written or printed notice of sale of all the right and interest of the Port Henry Steel and Iron Company, in and to the buildings, machinery, erections, tools, fixtures and appliances; also hoisting machines or engines, all machinery or apparatus connected therewith, placed by it upon the premises; and also all scraps and scrap-iron owned by it on said premises. The property includes the buildings, machinery and fixtures on the south side of the furnace erected for use in making steel and for other purposes by said company. The notice also recited that it was by virtue of the chattel mortgage, and that the property was to be sold at public auction on the eighteenth of January at 1 o’clock p. m. at the Cedar Point furnace. The case shows that the sale took place at the time fixed in the notice, and was made under an arch-way between the furnaces. The notice was read by the auctioneer and all the property offered for sale together, and not in parcels. There were but two or three persons there, except the members of the plaintiffs’ firm.

There was but one bid made, and that was for $1,000, and the property was sold on that bid to Thomas W itherbee, one of plaintiffs’ firm; some of the property sold was not in view at the time of the sale.

The referee finds that the property exceeded in value the amount of plaintiffs’ debts or claim at the time of the sale, and the undisputed evidence shows it to be largely in excess of such indebtedness. Had there been no sale, as we have seen, the possession and retention of the property by the mortgagee would, in law, have operated as payment and satisfaction of the plaintiffs’ claim. (Morgan v. Plumb, 9 Wend., 392, supra; Case v. Boughton, 11 id., supra.) Hid this sale to the mortgagee, one of the plaintiffs, for a grossly inadequate consideration, under the circumstances of this case, change the situation of the plaintiffs, as mortgagees in possession of mortgaged property after default sufficient to satisfy their debt? I think not. It is true that a mortgagee of chattels may purchase at the mortgage sale, and that circumstance alone does not render the sale void. (Casserly v. Witherbee, 119 N. Y., 522.) But it may be seriously questioned whether the situation of a mortgagee in possession, who sells the mortgaged property under the power of sale and becomes himself the purchaser, does not still occupy the position of a mortgagee in possession with bis mortgage debt paid by reason of the value of the property exceeding the amount of the mortgage debt. In the Buffalo Steam Engine Works v. The Sun Mutual Insurance Company (17 N. Y., 403) it was held that a sale of a chattel under a mortgage by a mortgagee in possession to himself, by virtue of the power of sale in the mortgage, did not divest the equity of redemption of the mortgagor, and the court says: “ He (the mortgagor) still held the equity of redemption. Of this he was not absolutely divested even after forfeiture of the condition of the second mortgage The pretended foreclosure and sale could have no effect to divest him of that interest. It was not a judicial sale, but simply an attempt to sell by virtue of the power of sale contained in the mortgage. The mortgagee, therefore, becoming himself the purr-chaser, acquired no additional title by the sale, but remained mortgagee still. As owner of the property by virtue of the mortgage he could not sell to himself, and as the grantee of a power, although coupled with an interest, he would be equally unable to sell to himself without some statutory aid.”

Applying this rule to the case at bar, the plaintiffs would still be mortgagees in possession of the mortgaged property after default, and the property exceeding in value the amount of the plaintiffs* claim against the corporation there would be no debt due the plaintiffs from the corporation upon which forfeiture by the defendants could be predicated.

The referee found that this sale was fairly conducted and was a valid sale, and that the $1,000 bid should be deducted from the plaintiffs’ claim, and ordered judgment against the defendants for the balance. To these findings and conclusions the defendants except. We think the exceptions well taken. We cannot agree with the learned referee that in this action, as against these defendants, upon the testimony as it stands in this case, the sale should be upheld, It is quite apparent that the object of this sale was to cut off the defendants’ right to redeem in equity, and to effect that purpose we have seen that the sale must in all respects be regular, fair and bona fide, and one that would be upheld as a valid sale at common law;.

In Shimer v. Mosher (39 Hun, 155), the court says: “It is a rule of the common law, that when personal property is sold at a public sale, either judicial or statutory, the same should be in view of the bidders and should be sold in such separate parcels as is-best calculated to bring the highest price.

In Stief v. Hart (1 N. Y., 20), it was said that a sale of personal property without having it within .the view of the bidders, for the purpose of ascertaining and estimating its value, was an abuse of .the process of the. court, and was condemned by the common law without the aid of the statute as to the manner of conducting the sale. (Linnendoll v. Doe, 14 Johns., 222, Sheldon v. Soper, Id., 352; Cresson v. Stout, 17 id., 116.)

These cases are quoted with approbation in Shimer v. Mosher (supra) and the court adds: “This rule has been uniformly enforced by. the courts and has its foundation in the plainest precepts of fairness and public policy.” ~We think it has been disregarded in this case, and as it is a case highly penal in its character ¿we think that the safeguards and guarantees furnished by law, and ordinarily available for the protection of parties und for’the due administration of the law, should be applied.'

The judgment is reversed, the referee discharged’ and a new trial ordered, costs to abide’the event.

LearNed, P. J.: .

I think that the decision in Casserly v. Witherbee (119. N. Y., 522)-is practically decisive-of this, case, and, therefore, concur in the result.

LaNdoN, J.:

- It was held in Casserly v. Witherbee (119 N. Y.. 522, 526), añ action in which the mortgage sale here in question was Involved, that the fact that1 the mortgagees bought the property at the sale under their chattel mortgage does not, of itself, render the sale void. It •was alleged in the complaint in that case that the property 'bought by the mortgagees under their mortgage for $1,000 was worth $60,000, and similar allegations were made in that complaint as to the sale of the property in bulk, while invisible to the persons attending the sale, as are here shown by the evidence to be true. The court held that such a sale was invalid. The referee in this action finds that, after the mortgage sale, the plaintiffs sold and disposed of some of the property and applied other portions thereof to their own use, and that the value of the portion applied to their own .iise added to the amounts received by them upon sales of other portions, are in excess of the indebtedness of the company to the plaintiffs, namely, $17,086.84. The case cited came up on demurrer to the complaint The sale of property, worth to exceed $17,086.84 for $1,000, offends the sense of justice .in the' same manner, but to a less degree than the sale of $60,000 worth of property for $1,000. It is still violent injustice, and we cannot but believe that it was suffered to take place under a misapprehension by the company of the purpose for which the plaintiffs made it.. Looking for the causes of this misapprehension, we find that the chattel mortgage was given August 2é, 1886, but that on the 13th of August 1886, the Steel and Iron Company delivered to the plaintiffs an agreement under which the latter took possession of the leased property and ,the plant and appliances of the company .thereon, and extended .payment of the.company’s indebtedness, to them until .January 1, 1887. This agreement was intended to suspend the lease and rent while the company was out of. possession, and to permit the plaintiffs to operate the works. The company was to be restored to possession at its election upon the performance of certain specified conditions, but in case it should not demand it on or before January 1, 1887, then “ all right of said Steel and Iron Company under said lease and to all said property is surrendered and the same is to be regarded as the property of said 'W’itkerbees,' Sherman & Co.”

Thus, when the chattel mortgage was given, the plaintiffs were in possession of the property under the agreement. The company did not demand re-possession of the property on or before January 1, 18877 and, theteforej when the-plaintiffs subsequently sold it under the chattel mortgage they sold what was regarded under the agreement as their own property. If, under the agreement, they had the legal title, they had it for the purpose of realizing the amount due them. Between the agreement and the chattel mortgage they have so managed their security as to realize from it more than the amount due them. "W"hy should they not credit the company with it ? The foreclosure of the chattel mortgage could hardly be regarded by the company as a hostile proceeding at the date it .was made. If the agreement had not conferred full title, the company naturally would not object to the plaintiffs making it as complete as possible, in order tbe better to realize upon the security. The company "certainly could not have understood that the plaintiffs thereby intended to deprive the company of nineteen out of every twenty dollars to be realized from the security. The plaintiffs would have disclaimed any such intention.

I think that sale should be regarded as merely perfecting the plaintiffs’ legal title in order the better to dispose of the security for the benefit of both debtor and creditor, and lienee that the, plaintiffs should account to the company for all they have realized upon the security.

Again, though the plaintiffs might be buyers as well as sellers at their mortgage sale, yet the sale to themselves should be above just suspicion as to its propriety and fairness; the result here shows that this sale was unjust whether there was any wrong intended or not; and as in this action no third persons are to be injured by setting it aside, it should be set aside unless treated as vesting the title in the plaintiffs in trust to apply the proceeds of the property to the benefit of the company.

I, therefore, concur in the result reached by Justice Mayham.

Learned, P. J., concurred.

Judgment reversed, new trial granted, referee discharged, costs to abide event.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. THE ULSTER AND DELAWARE RAILROAD COMPANY, Respondent.

      Board of Railroad Commissioners—power of, to ¡¡ire a certificate dispensing with the farther extension of a railroad—an action by the people, to annul the corporation, does not preclude its so doing—its reasons for so doing not renewable — additional allowance—tax on franchise not abasis therefor.

    Chapter 236 of the Laws of 1889, amending chapter 480 of the Laws of 1874, authorizing the Board of Railroad Commissioners to certify that the public interests do not require that a railroad corporation should extend its railroad beyond that portion thereof actually constructed at the time that title to the road has been acquired by it, is not an assumption of judicial power upon the part of the legislature, nor is it unconstitutional as conferring judicial power upon the Board, of Bailroad Commissioners.
    The fact that an action has been brought and is pending on behalf of the people to annul the charter of the railroad corporation, because of its failure to complete its road in accordance with the requirements of its certificate of incorporation, does not affect the right or restrict the power of the Railroad Commissioners to give a certificate under such acts.
    The courts nave no power to pass upon the reasons given for the issuing of such a certificate by the Railroad Commissioners.
    Evidence of the amount of taxes paid by the railroad company, under chapter 361 of the Laws of 1881, upon its corporate franchises, is not competent proof of the value thereof, nor does it afford a basis for determining the amount upon which an extra allowance may be computed.
    Appeal by tbe People of the State of New York, the plaintiff, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Albany on the 24th day of May, 1890, with, notice of an intention to bring up for review, upon such appeal, both questions of law and of fact.
    The action was brought to annul the defendant’s charter on the ground that it had not completed its railroad within the time required by law.
    Upon the trial, which was had at the Albany Circuit on the 15th day of January, 1890, the jury, by direction of the Court, found a verdict for the defendant. An additional allowance of $1,500 was also granted by the court to the defendant.

      E. Countryman, for the appellant.

      J. E. Burrill, George Zabrishie and Ed/win Young, for the respondent.
   LearNed, P. J.:

We have nothing to do in this case with the alleged bad faith or breach of contract in the dealings of the Pond out and Oswego Railroad with the town of Harpersfield. That town is not the plaintiff.

The only question is whether the people have a right to annul the charter of the Ulster and Delaware Railroad Company for the failure-to construct a certain part of the route originally laid out. We do not consider it necessary to decide the question whether the defendant, taking title under the foreclosure of a mortgage made by the Rondout and Oswego Railroad Company (or New York,. Kingston and Syracuse Railroad Company) and organizing under chapter 430 of tbe Laws of 1874, became bound to complete the road as originally laid out. We have great doubt whether it came under any such liability. But, as we think there is a conclusive defense to this action, we deem it .best to pass the question above mentioned.

Chapter 236 of the Laws of 1889 adds a new section to chapter 430, Laws of 1874, being the reorganization act. This declared that nothing therein contained shall be construed to compel a corporation organized under that act to extend its road beyond the portion thereof constructed at the time the corporation acquired title, provided the Board of Railroad Commissioners should certify that the public interests did net require such extension.

It provided that if such certificate should be made the corporation should not be deemed-to have incurred any obligation so to extend its road; and that such certificate should be a bar to any proceedings to compel it to make such extension or to annul its existence for failure so to do, and should be final and conclusive in all courts and proceedings whatever. Under this statute the defendant petitioned the Railroad Commissioners. Notice of the presentation of the petition was published and was served on the town of Harpersfield, which had .been' the active party in instigating the present action. On the 24th of .Tune, 1890, the board made and filéd its certificate in compliance with said act. This is set up by defendant in an amended answer.

Now, it is plain that this certificate is a bar. to this action unless the plaintiff can show some reason why the statute does not apply or why it should be held unconstitutional or void. The plaintiff insists that the statute is void because it assumes judicial power. We do not think that the language that the reorganization act “be construed to compel a corporation” to do a certain thing is an assumption of judicial power. It is simply a mode of stating the meaning of the legislature in making the amendment, But the further language that the certificate when made should be a bar to proceedings like the present is certainly not open to the objection that it assumes judicial power in construing statutes.

Further, the plaintiff insists that this act is unconstitutional in giving judicial power to the Board of Railroad Commissioners. We do not see that judicial power is given to the board. Administrative duties often require an administrative officer to decide on tbe proper course of action, and for that purpose to ascertain wbat are tbe facts in tbe matter before liim. But be is not, therefore, exercising judicial functions. In the present case the people have the right to annul the charter, if they show good cause. The legislature, has the right, in behalf of the people, to refuse to annul the charter, even if there be good cause. And it has a right to say that the charter shall not be ■ annulled and that the corporation shall be relieved from any obligation which it might have owed to the State to do a certain act. Such being the right of the legislature, we see no reason why it may not authorize a board of its adminstrative officers to inquire what the public interests demand in that respect, and to decide whether the public interests do or do not require the corporation to do a certain act. The only parties are the people speaking through the legislature, on the one hand, and the corporation on the other. We have no occasion to say, if there were a controversy between the corporation on the one side and some individual on the other, whether the legislature could compel the submission of that controversy to this board. That does not arise here. It is only the State itself which says, if our Board of Railroad Commissioners certify that the public interests do not require the building of a certain piece of road, then it need not be built.

Yery possibly the legislature could not declare that a certificate of the Railroad Commissioners should be a bar to an action by one private individual against another. But it is certainly competent for the State to surrender any right of action which it may have. It could declare that no action on its behalf for the annulling of a charter should be further prosecuted. So here the legislature has declared that if the Board of Railroad Commissioners give a certificate, then the State will not further prosecute its action.

The legislature is' certainly competent to stop a litigation which is prosecuted on behalf of the State. There is no interference with the judicial power when a plaintiff declines further to prosecute his case. And this statute, by which the legislature says that a certain certificate of State officers shall put an end to State prosecution, does not interfere with any judicial authority.

There is no need of a discussion about the power of the legis« lature to enact laws which shall take effect upon certain conditions, or upon its power to delegate legislative functions, for there is nothing in this statute but a waiver of a forfeiture, or, in other words, a refusal to annul a charter. The legislature authorizes certain boards to convey the property of the State, as, for instance, land under water. Cannot it authorize another board to give a certificate which shall practically waive a forfeiture which no one but the State could enforce? The State has frequently, by statute, extended the time within which a corporation was to build a road. This was a waiver of the forfeiture for not building. And a statute of that kind would be a bar to an action for forfeiture, if such an action should be commenced, or if such an action were pending. The State is not bound to enforce a forfeiture, and if it waives a forfeiture, no private individual or body can object.

It seems to us that the error on the part of the plaintiff’s counsel is in the application of very sound and important doctrines. If this were a controversy between two private individuals, it might well be doubted whether the legislature could enact that a certificate of Railroad Commissioners should be a bar. But the real meaning and plain effect of the statute are simply that the State will not continue a litigation when its own board of officers have said that the public interests do not require it. The Attorney-General stands in the strange position of insisting upon prosecuting an action for the State which the State has said shall be barred. Of course, tins is explained by the not unusual circumstances that the Attorney-General allows some other party to use his name of office. But that other party, the town of Harpersfield, has no right to enforce a forfeiture which the State has waived, or to seek to annul a charter on grounds which the State has declared shall not be a cause for such annulling.

The plaintiff further insists that the- reasons given by the Board of Railroad Commissioners for its certificate are not satisfactory. It was not bound to give any reasons, though this was a very proper course. But it is not in our power to review the action of the board, even if we thought its reasons improper or insufficient, which we do not. It is enough that the statute makes the certificate, not the reasons, conclusive and a bar.

The judgment of the learned justice is correct and should be affirmed, with costs.

Another question is presented by the appeal from the order granting an extra allowance. There is no doubt that the case is one in which an extra allowance was proper. But the plaintiff urges that there was no proof of the value of the corporate franchise, and that only upon that value could the allowance be based. (Conaughty v. Saratoga County Bank, 92 N. Y., 401.)

The defendant, to show the value of this franchise, showed the taxes which it had paid for several years under the statute, chapter 361, Laws of 1881, etc. The defendant claims that these statutes impose a tax on corporate franchises, and not on corporate property. (People v. Home Ins. Co., 92 N. Y., 328.) That hence the valuation on which the tax is assessed must be a measure for the franchise taxed. Now the statute may impose a tax on an amount which shall greatly exceed the real value of the franchise. The mode in which a corporation is assessed under these statutes merely determines the amount at which, for the purpose of taxation, its franchise shall be estimated.

We think that this assessment does not bind the State as to the actual value of the franchise when such value had to be ascertained on the motion. Not only does it not bind the State, but we do not see that it is evidence. The question before the learned justice was, what was the value involved, that is, what was the value of the franchise. And upon that point these several taxations of the defendant do not seem to us to be evidence.

We think, therefore, that the order should be reversed only on the ground that the value of the franchise was not shown.

The judgment must be affirmed, with costs; order of extra allowance reversed on the ground that the value of the franchise was not shown.

Landon and Mayham, JJ., concurred.

Judgment affirmed, with costs; order for extra allowance reversed on ground that there is no proof of value of franchise.