author: HeRuioK, J.:

text:
    Edward Marshall, Respondent, v. George R. Sherman, Appellant.

      Stockholders of a corporation incorporated, under the laws of the State of Kansas — liability thereof to creditors of the corporation — how and where such liability 'may be enforced.

    The ordinary statutory liability of a stockholder of an insolvent bank to its creditors is a contract liability, and as such is enforcible in any State or court where jurisdiction can be obtained of the person.
    Every shareholder in a corporation is supposed to be cognizant of the provisions of its charter and the general laws of the State under which the corporation is organized, which relate to his duties and obligations as such shareholder, and which define the nature and extent of his liability to the creditors of the corporation.
    The personal liability of stockholders created by the charter of a corporation, for the corporate debts, is not in the nature of a penalty or forfeiture, and does not exist solely as a liability imposed by statute. It is not enforced simply as a statutory obligation, but is regarded as having been voluntarily assumed by the act of becoming a stockholder.

      By such act the stockholder assents to he hound, or that his property shall he charged with the debts of the corporation, to the extent and in the manner prescribed hv the act of incorporation. Where, therefore, the act of incorporation of a foreign corporation declares in terms that each stockholder shall be individually liable for the debts of the corporation, the courts of the State of New York are open to a creditor of such corporation to enforce the liability of the^ stockholder for such debts, according to the terms of the charter, unless an exclusive remedy for such enforcement is provided in the State where the corporation was organized.
    No exclusive remedy is provided by the statutes of'the State of Kansas in behalf of a creditor of a banking corporation against the stockholders thereof; and a creditor of an insolvent corporation organized under the laws of such State, who desires to charge the stockholders personally and who has obtained a judgment against the corporation, and has issued an execution thereon, if no property of such corporation can be found whereon to make a levy, may then issue an execution against any of the stockholders of such corporation and enforce it to an extent equal in amount to the amount of stock owned by such stockholder, together with any sum unpaid thereon, or “ the plaintiff in the execution may proceed by action to charge the stockholders with the amount of his judgment.”
    The first of such remedies can only be availed of in the State where the judgment is obtained against the corporation and only against the stockholders in such State, or those of them who have property therein, and is not available against foreign stockholders.
    The second remedy is not exclusive, but may be taken advantage of in any jurisdiction, and the action contemplated by such statute may be maintained against a single stockholder of such corporation.
    Appeal by the defendant, George R. Sherman, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, made on the 13th day of February, 1894, and entered in the office of the clerk of the county of Essex U]Don the decision of the court rendered after a trial at the Clinton Special Term overruling the defendant’s demurrer to the complaint, with notice of an intention to bring up for review upon such appeal an order made at the Clinton Special Term on the 13th day of February, 1894, and entered in said clerk’s office overruling said demurrer.

      G. B. McLaughlin, for the appellant.

      Riley (& Gantwéll and Franlü N. llagar, for the respondent.
   HeRuioK, J.:

This is an appeal from a judgment against the defendant over ruling his demurrer to the plaintiffs complaint.

Tbe plaintiff is a judgment creditor of tbe “ Miltonvale State ' Bank,” a corporation existing under tbe laws of tbe State of Kansas ; tbe defendant is a stockholder in the same bank.

Tbe plaintiff’s complaint shows that in 1859 tbe people of tbe State of Kansas adopted a Constitution, which, amongst other provisions, contains tbe following: Dues from corporations shall be secured by individual liability of tbe stockholders to an additional amount equal to tbe stock owned, by each stockholder, and such other means as shall be provided by law, but such individual liabilities shall not apply to railroad corporations nor corporations for religious or charitable purposes.”

In October, 1868, the Legislature of the State of Kansas passed a law providing for the incorporation of banking institutions; said act provided, amongst other things, as follows: If any corporation created under this or any general statute of this State, except railway, or charitable or religious corporations, be dissolved, leaving debts unpaid, suits may be brought against any person or persons who were stockholders at the time of such dissolution without joining the corporation in such suit, and if judgment be rendered and execution satisfied, the defendant or defendants may sue all who were stockholders at the time of the dissolution for the recovery of the portion of such debt for which they were liable, and the execution upon the judgment shall direct the collection to be made from property of each stockholder respectively; and if any number of stockholders (defendants in the case) shall not have property enough to satisfy his or their portion of the execution, then the amount of deficiency shall be divided equally among all the remaining stockholders, and collections made accordingly, deducting from the amount a sum in proportion to the amount of stock owned by the plaintiff at the time the company dissolved.”

Said act also contains a further provision, reading as follows: “ Execution Against Stockholder; Action. If any execution shall have been issued against the property or effects of a corporation, except a railway, or a religious or charitable corporation, and there cannot be found any property whereon to levy such execution, then execution may be issued against any of the stockholders to an extent equal in amount to the amount, of stock by him or her owned, together with any amount unpaid thereon; but no execution shall issue against any stockholder, except upon an order of the court in which the action, suit or other proceeding shall have been brought or instituted, made upon motion in open court, after reasonable notice in writing to the person or persons sought to be charged; and upon such motion such court may order execution to issue accordingly, or the plaintiff in the execution may proceed by action to charge the stockholders with the amount of his judgment.”

Such statutes were subsequently embodied in a revision of the laws of the State of Kansas, made in 1879 and 1889; and the complaint alleges that they are now, and ever since their enactment have been, the law of the State of Kansas.

The complaint sets forth the manner of incorporation provided by statute, and that in July, 1886, a corporation was duly organized under such laws of the State of Kansas, under the name of the “ Miltonvale State Bank.”

The complaint also, by appropriate allegations, shows that the plaintiff became a creditor of said bank; that he obtained a judgment against such banking corporation upon his claim against the same, and tliat execution was issued thereon and returned unsatisfied.

It also sets forth that such banking corporation has been dissolved and has ceased to do business, and that a receiver thereof has been appointed; that such receiver has paid a portion of plaintiff’s said judgment, but that there is a balance remaining unpaid to the amount of $943.32, with interest from September 5, 1891. It further alleges tliat such banking corporation's wholly insolvent, and has no assets of any kind, nature or description, from which can be realized the money due the plaintiff upon the various demands set out in the complaint, and the judgment recovered thereon.

Plaintiff also alleges that the stockholders of said corporation who reside in Kansas have paid to the creditors thereof the full amount for which they are liable under the Constitution and laws of the State of Kansas, but that the defendant has not paid any part of his liability as a stockholder. This is the substance of the plaintiff’s complaint.

The defendant demurred to the complaint on the ground “ that it appears upon the face of the complaint that there is a defect of parties defendant, in that all of the stockholders of the ‘Miltonvale State Bank’ are not made defendants herein.” Also, that it appears upon tlie face of the complaint “ that causes of action have been improperly united therein, in that plaintiff seeks to recover as a judgment creditor upon a statute purporting to give a joint cause of action against all of the stockholders of the Miltonvale State Bank ’ in said complaint mentioned ; and also seeks to recover as a general creditor upon a statute purporting to give a cause of action against this defendant as a stockholder of said bank separately.” And for a third ground of demurrer asserts “ that the complaint does not state facts sufficient to constitute a cause of action.”

I think the complaint sets forth a good cause of action, and that the judgment overruling the demurrer should be affirmed.

The court has been referred to a large number of authorities in other States, and in considering the questions here presented has examined many others; but it seems to me that a review and discussion of the various decisions that have been rendered in other States, where similar, or somewhat similar, questions were involved, is unnecessary, and will lead to confusion rather than clearness in expressing the determination that I have arrived at in this case. A brief reference to general principles, together with a few cases in our own State, and in the Supreme Court of the United States, seems to me abundantly sufficient.

It is alleged that the defendant is a stockholder in a dissolved and insolvent bank in the State of Kansas; that by the Constitution and statutes of that State, under which such banking corporation was organized, the stockholders of such bank are liable to the creditors thereof to an additional amount equal to the stock owned by each stockholder.”

The ordinary statutory liability of a stockholder is a contract liability, and as such is enforcible in any State or court where jurisdiction may be'obtained of the person. (Cook’s Stock and Stockholders, § 223 ; Ex parte Van Riper, 20 Wend. 614; Corning v. McCullough, 1 N. Y. 47; Dennick v. R. R. Co., 103 U. S. 11; Flash v. Conn, 109 id. 371-379.)

“ Every shareholder in a corporation is supposed to be cognizant of the provisions of its charter and the general laws of the State which relate to his duties as such shareholder, and which define the nature and extent of his liability to the creditors of the corporation.” (Savings Association v. O’Brien, 51 Hun, 45.)

The personal liability of stockholders for the debts of a corporation. by virtue of its charter is not in the nature of a penalty or forfeiture, and does not exist solely as a liability imposed by statute. It is not enforced simply as a statutory obligation, but is regarded-as voluntarily assumed by the act of becoming a stockholder. By such act the stockholder assents to be bound, or that his property shall be charged with the debts of the corporation, to the extent and in the manner prescribed by the act of incorporation. Where, therefore, the act of incorporation declares in terms that each stockholder shall be individually liable for the debts of the corporation the courts of this State are open to a creditor of such corporation to enforce the liability of the stockholder for such debts according to the terms of the charter. (Lowry v. Inman, 46 N. Y. 119-126.)

Morawetz, in his excellent work on Private Corporations (§ 815), lays down the following as a general rule: “ It seems clear, upon principle, that a creditor of a corporation whose shareholders are individually liable for its debts, may maintain a suit to enforce this liability wherever he can obtain jurisdiction over the necessary parties. The right to maintain a suit of this character outside of the jurisdiction of the State by which the corporation was chartered, does not depend upon the comity of the State where the suit is brought, or its willingness to recognize and give effect to the laws of a foreign State j it depends upon the willingness of the courts to enforce a contract validly entered into between the parties in another jurisdiction. A refusal to grant a remedy in a case of this kind would not be a refusal to enforce a foreign law; it would be simply, a denial of justice.”

I think it may be laid down as the settled law of this State that a liability like that of the one in question here is a contract liability, and one that can be enforced in this State, unless an exclusive remedy is provided in tho State where the corporation is organized.

In the case of Lowry v. Inman (supra) it was held the plaintiff could not maintain his action in this State, because there was a special and exclusive remedy provided, which in its nature could only be enforced in the State of Georgia.

By the statutes of that State a judgment and execution against a corporation was made a lien upon, and enforcible against, the property of the stockholders, and no provision was made for an independent action against a stockholder. It is perfectly apparent that a remedy of that kind could only be enforced in the State where the corporation existed.

Again, in Christensen v. Eno (106 N. Y. 97-103) it was held that the liability of the stockholder could not be enforced in this State because the remedy provided in that case authorized a creditor of the corporation who should have obtained a judgment, the execution whereon was returned unsatisfied, to issue an execution against any stockholder to an amount equal in amount to the stock held by him, together with the amount unpaid thereon.

In Barnes v. Wheaton (80 Hun, 8), where the Ohio statute in relation to the liability of stockholders was in question, it was held, “ That an independent action could not be maintained in Ohio against one stockholder alone, and that the remedy to enforce such liability being specially provided by the statutes of that State, is exclusive and not available here.”

As I read the statute of Kansas, no exclusive remedy is provided. The creditor who desires to charge the stockholders personally, and who has obtained a judgment against the corporation, and has issued an execution thereon, and no property of such corporation can be found whereon to make a levy, may then issue an execution against any of the stockholders to an extent equal in amount to the amount of stock owned, together with any sum unpaid thereon, or “ the plaintiff in the execution may proceed by action to charge the stockholders with the amount of his judgment.”

The first remedy is obviously one that can only be availed of in the State where the judgment is obtained against the corporation and only against the stockholders in such State, or those who may have property in such State, and cannot be availed of as against foreign stockholders.

The second remedy is not exclusive, but under the authorities heretofore cited may be availed of in any jurisdiction.

But it is contended that an action cannot be maintained against a single stockholder; that it must be brought against all. Under a statute of our State, reading as follows : “ Where the whole capital of a corporation shall not have been paid in, and the capital paid shall be insufficient to satisfy the claims of its creditors, each stockholder shall be bound to pay on each share held by him the sum necessary to complete the amount of such share as fixed by the charter of the company, or such proportion of that sum as shall be required to satisfy the debts of the conrpany ” (1 R. S. 600, § 5), it has been held that one stockholder could not be sued alone; that, no remedy being prescribed by the statute, it was to be enforced by such practice and in such form as the nature of the right and the relief sought demanded.

It was decided that a bill in equity, bringing in the corporation and the delinquent stockholders, was the proper- course; then an accounting of all the debts and of the assets could be had, together with the amount unpaid by each of the stockholders, so that they could be made equally liable. (Mann v. Pentz, 3 N. Y. 415.)

And it was held of a similar statute of New Jersey that the liability could not be enforced against a single stockholder in this State for the same reason. (Griffith v. Mangam, 73 N. Y. 611.)

Under that statute no provision was made for distributing the indebtedness equally amongst the stockholders.

Under the statute of Kansas such provision is made, the stockholder who is compelled to pay the judgment may bring an action against all who are stockholders, at the time of the dissolution of the corporation, for the recovery of the portion of the debt for which they are liable, thus bringing about an equitable distribution of the debt amongst all the stockholders. Again, the statute in terms provides that “ suits may be brought against any person or persons who were stockholders at the time of such dissolution, without joining the corporation in such suit;” this obviously means permission to sue one or all of the stockholders. That view is further supported by the ensuing sentence, reading as follows : If judgment be rendered and execution satisfied, the defendant or defendants may sue all who were stockholders at the time of the dissolution,” etc.

It seems to me, therefore, that one of the remedies provided by the statute of the State of Kansas, that is, “ by action,” is one that is not exclusive; it simply gives a right of action, the same as exists upon any contract liability, and is one that may be pursued in this State, and that such statute contemplates and provides for an action against a single stockholder.

Eor tliese reasons-the interlocutory judgment appealed from should be affirmed, with costs.

Mayham, P. J., aud PutNAM, J., concurred.

Interlocutory; judgment affirmed, with costs.


source: Caselaw Access Project

author: Mayham, P. J. :

license: Public Domain

text:
    Edwin Albert Merritt and Another, Respondents, v. Herbert P. Bissell, Appellant.

      Ratification of an unauthorized act of an agent relates hack — an allegation that the act was done hy the duly authorized agent is sufficient.

    An unauthorized act of one assuming to he the agent of another may he ratified by the one for whom such agent assumed to act, so as to bind the principal as effectually as if the agent had precedent authority; such ratification gives to the act the same effect as if it were previously duly authorized.
    ■Where a person is clothed with some authority as agent, the ratification hy his principal of his unauthorized act relates hack and makes such act of the agent the act of the principal ah initio, and an allegation contained in a complaint in an action that such act was done hy a duly authorized agent is, under such circumstances, sustained hy proof of the ratification of such act by the principal.
    Aípeal by tbe defendant, Herbert P. Bissell, from a judgment of tbe Supreme Court in favor of tbe plaintiffs, entered in tbe office of tbe clerk of tlie county of St. Lawrence on tbe 18th day of May, 1894, upon the report of a referee.

      Mwtin Cwrey, for the appellant.

      Charles 0. Tappan, for the respondents.
   Mayham, P. J. :

This action was brought by the plaintiffs to recover a balance, claimed to be dne tliem on a contract alleged to liave been made by tbe plaintiffs with defendant by Ms agent, under which the plaintiffs claim to have delivered a quantity of red sandstone for the construction of the defendant’s house in Buffalo, and for which the defendant refused to pay.

The answer of the defendant denied the making of the contract by him, and denied that the defendant’s alleged agent had any authority to make tbe same, or that he ever ratified any contract made by such alleged agent.

The case discloses that in the winter of 1891-1892 defendant employed Charles D. Swan to submit plans and specifications of a house which he contemplated building in the city of Buffalo, and to superintend the work of construction. Plans were submitted by the architect, and on examination of the same by the defendant and his wife, it was found that the specification of the masonry proposed rock-faced limestone, while the defendant’s wife preferred red sandstone, used to some extent in that city in the construction of residences. Upon the assurance of the contractor that it was no more expensive than limestone, it was decided to substitute red sandstone in the specification.

Afterwards, upon the specification of that kind of stone, bids were called for upon the masonry, and one Schumacher was the successful bidder, and the evidence shows that the contractor, architect and defendant all understood that the masonry was to be constructed of red sandstone.

The contract with Schumacher provided that “the contractor shall and will well and sufficiently perform and finish, under the direction and to the satisfaction of Charles D. Swan, architect (acting as agent of said owner), all the works included in the masonry work of a proposed new dwelling house, * * * according to the true intent and meaning of said drawings and specifications, and of these presents, including all labor and materials incident thereto, and shall provide all scaffolding, implements and cartage necessary for the due performance of the said work.”

The contract was minute in all details relating to the time and manner of performance by the contractor, and provided, in ease of failure or neglect of the contractor to perform the- contract according to its terms, on the certificate of the architect of such failure of the contractor to perform such work and to furnish materials, that the owner should be at liberty to terminate such employment, and that the contractor should not be entitled to receive any further payment under the contract, Until the owner should have completed the construction according to the specifications of the contract, when he was to deduct the expense of such completion, and the excess, if any, over such expense, was to be paid to the contractor. The contract price for such, work and materials was fixed at $2,600, payable at different times as specified in the contract as the work progressed. The contract between the defendant and Schumacher was dated on the 28th day of June, 1892. The evidence tends to show that Swan, assuming to represent the defendant, on the 2'lst of May, 1892, contracted with the plaintiffs’ company to furnish the red sandstone to defendant at Buffalo o'n the cars, cut and fitted as required by the specifications, at the price of $1,385.

Plaintiffs’ counsel put in evidence a letter written by plaintiffs to Charles D. Swan, dated May 21, 1892; this letter was admitted in evidence under the objection of the defendant. It contained the terms on which the plaintiffs proposed to furnish the red sandstone at defendant’s place in Buffalo.

There was no proof that the defendant had ever seen the letter.

There were several other letters, some of which passed between the stone company, now represented by the plaintiffs, and this defendant, and some of which passed between the plaintiffs and Swan, whom the plaintiffs treated and seemed to recognize as the agent of the defendant.

• Immediately on making the contract with Swan the plaintiffs commenced getting out and cutting the stones and loading them on the cars as fast as they were dressed, and on the twenty-ninth of June shipped two carloads of stone, cut and prepared to lay in the defendant’s building, consigned to the defendant at the city of Buffalo, and on the first day of July notified Swan, the defendant’s architect, of such shipment. On the 27th of July, 1892, the plaintiffs addressed a letter to the defendant, informing him of the shipment of June twenty-ninth, and also duplicate receipt for cars and itemized bill of the stone shipped on the two cars, and in the letter they called attention to the contract for stone, made with' Swan as agent for defendant, and the amount of the plaintiffs’ bill for stone under that contract.

On the twenty-ninth of June the defendant, by John O’Sullivan, agent, acknowledged the receipt of the two carloads of stone from the plaintiffs’ company. On the 29th of August, 1892, the defendant replied to the letter of the plaintiffs of July twenty-seventh, stating, among other things, that he understood from his architect that he had ordered the stone from the Potsdam Red Sandstone Company in the defendant’s name, but that the bills would be paid by the contractor, and therein referred the plaintiffs to the architect and contractor.

It will be observed that in the letter the defendant did not repudiate the contract made by Swan with the plaintiffs or dispute the power of Swan to make the contract as his agent.

To the letter of the defendant the plaintiffs replied on the fifth of September, asking that the defendant’s check for the stono should be payable to the order of the plaintiffs, and not to the defendant’s contractor. On the 15th of September, 1892, the defendant paid the cartmen for transferring the stone from the railroad to the site of the building, on the certificate of Swan, the architect, and charged the same to the contractor. The referee finds that on the 19th of October, 1892, the defendant paid plaintiffs on the price of these stones, $500, and that with the amount of freight and transportation is all that he has paid the plaintiffs on these stones. There is much more evidence offered by the respective parties to the controversy, tending on the one side to establish the validity of the contract by Swan with the plaintiffs as the agent of defendant, and also on the other side tending to prove a want of authority on the part of Swan to bind the defendant bj the contract made with the plaintiffs.

The referee finds that there was no original authority in Swan as the agent of the defendant- to make the contract of May 21, 1892, with the plaintiffs; but that by the payment of $500 and the freight and cartage and the use of the stone shipped by the plaintiffs under that contract, the defendant, with knowledge of the existence of the contract and its terms, ratified and adopted the same and became liable to pay the plaintiffs according to its terms.

"We think the evidence is sufficient to uphold such finding and conclusion. Under the conflicting evidence and theories of the respective parties, it was a cpiestion of fact for the referee to determine whether or not the defendant, with full knowledge, ratified and adopted that contract.

Upon that question of fact the referee’s finding was supported by some competent evidence, and there is no sufficient preponderance of evidence against such finding as to justify the court on appeal to interfere with such conclusion.

It is a familiar rule of universal application that an unauthorized act of one assuming to be the agent of another may be ratified by the one for whom such agent assumes to act, so as to bind the principal as effectually as if such agent had precedent authority.

This rule is stated in 1 American and English Encyclopaedia of Law on page 429, as follows : “ An unauthorized act by one assuming to be an agent for another may be ratified by the principal, and .such ratification gives to the act the same effect as if it were previously duly authorized.”

And the learned author and compiler cites under this principle a large, number of authorities in this and other States, as well as in the Federal and English courts.

There seems to be great propriety in the application of this rule to the case at bar. The defendant liad invested Swan, the architect, with large powers to act for him in the construction of this house. He and the defendant and defendant’s wife had agreed and settled upon red sandstone as the material to be used in the construction, although the specification with the builder was for limestone. This change of plan was made b.etween defendant and the architect before any stone had been contracted for by any one.

Clothed as he was with some authority as agent, the ratification by the principal related back to and made his act in making this contract the act of the principal ab initio, so that the allegation that the act was done by a duly authorized agent is sustained by the ratification of the act by the principal. (Hoyt v. Thompson, 19 N. Y. 207-219.)

We have examined the exceptions taken by the defendant to the ruling of the referee in regard to the receipt and rejection of evidence upon the trial, and to his findings and refusals to find, and see no error for which this judgment should be reversed.

Putnam and Hkrkick, JJ., concurred.

Judgment affirmed, with costs.


author: Matha.m, P. J.:

text:
    Lizzie Byrnes, Appellant, v. Robert Rayner, Respondent.

      Married woman — contract made by her for her own and her husband’s support — liability of the husband thereunder.

    When a married woman, availing lierseif of the powers and privileges conferred ■ upon her by chapter 881 of the Laws of 1884, makes express contracts in her own name for her necessary support, she will not be deemed to have acted as agent for her husband in procuring- such support, nor is there any implied agreement on the part of her husband to pay for such necessaries.
    Where a person makes an express contract with a married woman for the joint support of herself and husband, if the wife is the sole contracting party, and the credit is given to her alone, and she is in all respects competent to make a valid contract and bind herself, such person will not be permitted to shift the liability upon the husband, who is not a party to the contract, upon the failure of the wife to pay the amount due thereunder.
    In the absence of any contract with a wife, the common-law liability of the husband for the suitable support of his wife still remains and such liability continues, unless there is an express contract between the wife and the person furnishing the articles necessary for her suitable support.
    Abpjsal by tbe plaintiff, lizzie Byrnes, from a judgment of tbe County Court of Saratoga county in favor of tbe defendant, entered in the office of tbe clerk of tbe county of Saratoga on tbe lOtb day of July, 189J, upon the decision of tbe court reversing tlie judgment of a justice of tbe peace of tbe town of Saratoga Springs, Saratoga county, with notice of an intention to bring up for review upon such appeal said judgment and order of reversal.

      Charles 11. Tefft, for tbe appellant.

      Hash liochwood, for tbe respondent. .
   Matha.m, P. J.:

Tbe defendant’s wife, a married woman, contracted with the plaintiff to board herself and husband and keep her horse at a stipulated price per week.

Under such agreement, tbe plaintiff furnished board to the defendant and wife and kept tbe horse of. tbe latter, and an indebtedness therefor accrued to the plaintiff.

The plaintiff rendered a bill to tbe defendant’s wife in her name for a portion of such board and horsekeeping, which was paid by her. To recover for an unpaid balance arising under the agreement, this action was brought against the defendant, the husband of the contracting party, in which a recovery was had before a justice of the peace, and, on an appeal to the County Court, the judgment was reversed, from which judgment of reversal the plaintiff appeals to this court. The only question on this appeal is, whether the common-law liability of the husband to support his wife making him liable on the express contracts of his wife, for their joint support, remains when she is the sole contracting jiarty and the credit is given to her.

By chapter 381 of the Laws of 1884 all disabilities of married women to make valid contracts were removed, and a married woman ■was invested with all the powers of a feme sole to make contracts and bind herself thereby.

When, therefore, she avails herself of the powers and privileges conferred by that statute, by making an express contract in her own name, even for her necessary support, she will no longer be deemed as acting as agent for her husband in procuring such support, nor will there be any implied agreement on his part, as exists at common law, to pay for such necessaries. The plaintiff, by contracting with defendant’s wife, wdio was in all respects competent to make a valid contract and bind herself, and upon whom the plaintiff, by her contract, relied for payment, cannot, we think, he permitted to shift the liability upon the husband, who is in no sense a party to the contract.

In the absence of any contract with the wife, the common-law liability of the husband for her suitable support still remains (Strong v. Moul, 22 N. Y. St. Repr. 762), and that liability continues unless there is an express contract with the wife.

But when the contract is primarily with the wife, and credit is given to her by the plaintiff, he cannot now ignore that contract and shift the liability to the husband.

In Travis v. Lee (34 N. Y. St. Repr. 233) the liability of the husband for necessaries furnished for his family was put upon the express ground that the board was not furnished upon the agreement of the wife nor was the credit given to her.

I have found no case since the act of 1884 where the husband was held liable under his common-law obligation, when the contract for necessaries was made by express agreement of the wife and the credit was given to her. In Maxon v. Scott (55 N. Y. 247), which was decided before the act of 1884, the court held that a wife was liable upon her express contract for the board of herself and husband, but her contract at that time had reference to and charged her separate estate. That restriction was entirely removed by chapter 381 of tbe Laws of 1884.

That act seems so completely to habilitate the wife with power to contract as a single female, that it would seem a violation of its terms to hold the husband, any more than a stranger, liable upon her contract.

We think the judgment of the County Court correct, and that it should be affirmed.

Putnam and Herrick, JJ., concurred.

Judgment affirmed, with costs.


author: Mayham, R. J.:

text:
    Orlo M. Bump, as Administrator, etc., of Susannah G. Warren, Deceased, Appellant, v. Mary Pratt and Another, Respondents.

      Declarations of a decedent — competency of, under Code of Oivil Procedure, § 829.— valid gift causa mortis or inter vivos — upheld through a trust — acceptance thereof implied.

    The deceased person referred to in section 829 of the Code of Civil Procedure is the one over whose property the controversy in issue is made.
    The declarations of a deceased person are not inadmissible in evidence upon the trial of an action by reason of such section, if neither the party testifying to them, nor the party against whom they are offered derives any title to or interest in the property in question under the decedent.
    Proof of the declaration of a deceased person, whether verbal or written, will, if relevant, be received in evidence upon the trial of'an action, when the deceased had knowledge of the facts in regard to the subject of the declaration, and the declaration was against his interest.
    To constitute a valid gift either causa mortis or inter vivos there must be such an actual or constructive delivery of the possession of the subject of the gift as to place it in the actual possession of the donee, or of some person for the donee and beyond the possession and control of the donor.

      The delivery of bonds by a donor to a third person, with directions to deliver the same to the donee at some future time, creates such a trust in the person to whom the bonds are delivered as to vest both the title in the donee and the possession in the third person as trustee for the use and benefit of the donee, and is such a parting with the possession and title of the donor as to work an absolute change of title, and prevent even the donor from reclaiming the possession thereof, without the consent of the cestui que trust or donee.
    To uphold a gift through a trust, there must be an explicit declaration of trust or circumstances which show, beyond a reasonable doubt, that a trust was intended to be created, and there must be, on the part of the donor, an intent to give, and a delivery in pursuance of such intent to or for the doñeo, and such delivery, whether actual or constructive, must be such as will operate to divest the donor of possession, and of dominion over the subject of the gift, and in such a case acceptance may be implied, when the gift, otherwise complete, is beneficial to the donee.
    Herrick, J., dissenting.
    Appeal by the plaintiff, Orlo M. Bmnp, as administrator, etc., of Susannah (x. Warren, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Rensselaer on the 22d day of June, 1894, upon the report of a referee dismissing the plaintiff’s complaint, and adjudging the defendant Mary Pratt to be the owner of certain bonds.

      Calvin 8. MeGhesney and Charles E. Patterson, for the appellant.

      ET. Davenport, for the respondents.
   Mayham, R. J.:

The reception of the evidence of Mary Pratt, one of the defendants, in her own behalf, under the objections of the plaintiff, was not error. The declarations of Miss Cornell testified to by the defendant, were not against the survivor of Miss Cornell in the sense in which such declarations are prohibited by section 829 of the Code of Civil Procedure, for the reason that the survivor acquired no interest under or through his deceased co-administrator. Nor does defendant derive her title to or interest in the property in controversy from Miss Cornell, to whose declarations she testified.

As was said by the learned referee, “ The deceased person referred to in § 829 is clearly one over whose property the controversy at issue is made.” The controversy is over the property of the plaintiff’s intestate, and not that of Millicent Cornell, whose declarations were sought to be proved.

While the declaration of Miss Cornell (to which the defendant testified) was hearsay, it was not that kind of hearsay which is condemned by the rules of evidence, but comes within one of the well-established exceptions to the general rule which excludes hearsay evidence, and that exception to the general rule seems to have been the ground upon which the learned referee received the evidence.

That exception allows proof of the declarations of deceased persons, whether verbal or written, to be received in evidence when the deceased had possession of competent knowledge, and the declaration is against the interest of the person making it.

G-reenleaf, in his elementary treatise on Evidence, states the raleas follows: This class embraces not only entries in books, but all other declarations or statements of facts, whether verbal or in writing, and whether they were made at the time of the fact declared, or at a subsequent day. But to render them admissible it must appear that the declarant is deceased; that he possessed competent knowledge of the facts, or that it was his duty to know them, and that, the declarations were at variance with bis interest. When these circumstances concur the evidence is received, leaving its weight and value to be determined by other considerations.” (1 Greenl. Ev. § 141.) In support of this rule the author cites numerous cases, English and American. It seems that the evidence offered and received was fortified by all the essential requirements to make it competent within this exception. Miss Cornell was an heir at law of the intestate, and her declaration tended to diminish her share of her inheritance and was against her interest.

She was possessed of knowledge of all the facts of the subject upon which she assumed to speak, and at the time her statement was offered in evidence she was deceased.

The evidence being, therefore, competent it was the duty of the referee to receive it, and with the other evidence in the case to give it such weight as it deserved. This brings us to the consideration of the main question in this case, whether the transaction as proved establishes a gift inter vivos of these bonds to the defendant Mrs. Pratt.

The referee states in his opinion that the intestate in her lifetime,, “ in pursuance of her previously declared intention to give property of about that value to Mrs. Pratt, and as she subsequently stated that she had done, deliver the bonds to Miss Cornell, with the instructions to which Mrs. Pratt testifies, and that she did it with intent to transfer the bonds to Mrs. Pratt.”

These findings of fact seem to be supported by sufficient evidence. Do they establish a valid gift so as to vest the title in the defendant Pratt?’

To constitute a valid gift, either caicsa mortis or inter vivos, there must be such an actual or constructive delivery of the possession as to place the subject of the gift beyond the possession and control of the donor and place it in the actual possession of the donee, or of some person for the donee. Assuming, as I think we must, that the referee’s finding of the cpiestion of fact upon this point is supported by the evidence, then there was a delivery of these bonds by the intestate in her lifetime to Miss Cornell for the defendant Pratt, with directions that they should at some time thereafter be delivered to the donee. That, avo think, within the authorities, was such a parting with the possession by the donor, and delivery to another for the donee, as to vest the title in the donee. From that time the defendant had such a title and possession through Cornell, as her trustee or agent, as would have enabled her to maintain an action for their delivery to her in person, or against any other person, for their conversion or destruction.

The delivery of these bonds by the donor to Cornell, with directions to deliver them to the donee, created such a trust in Cornell as to vest both the title in the donee and the possession in the trustee for the use and benefit of the donee, and -was such a parting with the possession and title of the donor by her, as to work an absolute change of title and prevent even the donor from reclaiming the possession without the consent of the cestui que trust or donee.

In Young v. Young (80 N. Y. 430) the court, by Rapallo, J., in discussing the necessity of delivery to constitute a valid gift, uses this language: “ To establish a valid gift, a delivery of the subject of the gift to the donee, or to some person for him, so as to divest the possession and title of the donor, must be shown.”

Tn that case the bonds were not delivered by the donor to a third person for the donee, but were kept among the donor’s papers in an ■envelope indorsed with a statement that the interest was to belong to the donor during his life, and at his death they were to belong absolutely to the donee, aud the court held that there was not such a delivery as to constitute a gift. While the lang-uage above quoted from the opinion in Young v. Young (supra) was not, perhaps, necessary to the decision of that case, and as to that case was obiter, still, it is doubtless a correct statement of the law in cases of gifts of personal property.

In Beaver v. Beaver (117 N. Y. 421) it was held that in order to uphold a gift through a trust, there must be an explicit declaration of trust or circumstances which show beyond a reasonable doubt that a trust was intended to be created, and there must be on the part of the donor an intent to give, and a delivery in pursuance of such intent to, or for, the donee, and such delivery, whether actual or constructive, must be such as will operate to divest the owner of possession, and of dominion over the subject of the gift, and in such a case acceptance may be implied, when the gift, otherwise complete, is beneficial to the donee.

Starting with the assumption of the facts as found, and applying-them to the rules of law above adverted to, it would seem to follow ' that, in the case at bar, there was a valid gift inter_ vimos of these bonds to the defendant Mrs. Pratt.

The intention to make this gift by the donor does not rest entirely in the declaration of the intestate to Miss Cornell as disclosed by her statement to the defendant Pratt of the delivery of the bonds to her. The intestate had, on numerous occasions, signified by her statement a purpose of making a gift to the defendant as a compensation for losses she had indirectly suffered by the failure of a relative to pay defendant’s mother a debt due her.

That purpose, as it would seem from the evidence, she put into execution by giving these bonds to the defendant, and delivering them to Miss Cornell for her. And while the hearsay proof by which this gift is established is not of the most satisfactory character, yet as it was, as we have seen, competent evidence, and was with other facts before the referee sufficient to convince him of -thefaetum of the gift, and is in no way contradicted or assailed by counter proof, his determination of that question of fact should not be interfered with on this appeal.

It is urged by the learned counsel for the appellant that some suspicion attaches to the conduct of these defendants in not dis•closing to the plaintiff the fact of the defendant’s claimed ownership •of these bonds. But it is to be observed that Miss Cornell, the plaintiff’s co-administratrix, failed to claim these bonds for inventory, ■although it was her sworn duty to do so if the bonds belonged to the estate of the intestate, and as she knew of the existence of these bonds, and that they were in the possession of the defendant Pratt, the presumption that she knew and recognized the validity of the defendant Pratt’s title and possession would seem to be stronger than any presumption arising from the failure of the defendants to inform the plaintiff of the existence and whereabouts of these bonds.

Indeed, if these facts have any significance, they tend to strengthen the theory that Miss Cornell, the administrator and the defendants all knew that the bonds did not belong to the estate 'of plaintiff’s intestate.'

On the whole case, we think the conclusion of the referee was correct, and that the judgment, upon his report, should be affirmed.

Putnam, J., concurred ; Herrick, J., dissenting.

Judgment affirmed, with costs against the administrator as such.


author: Mayham, P. J.:

text:
    Robert W. Evans, Appellant, v. The Board of Street Commissioners of the City of Hudson, Respondent.

      Allegation of ownership of a lot on a street — a demurrer admits ownership to the center of the street ■ — rigid to prevent the removal of trees from such street in the city of Hudson —• a resolution of the board, of street commissioners thereof establishes prima facie jurisdiction — review thereof by csrtion'ari — judicial power and jurisdiction of such board.

    An allegation, in a complaint demurred to, that the plaintiff in the action was the owner of a locus in quo bounded by a designated street, is admitted by the demurrer, and if unexplained is an allegation to the effect that the plaintiff is the owner of the fee to the center of such street, subject to the rights of the public therein.
    Where the owner of premises abutting on a street in the city of Hudson is the owner of the fee to the center of the street, subject to the rights of the public therein, such person has the right to prevent by injunction the removal of trees, standing on such street in front of his premises, if their removal would work an irreparable injury to his premises, unless the trees have become detrimental or destructive to the highway or interfere with its safe and full use, In which case, only, the board of street commissioners of tbe city of Hudson has the power, and it is its duty, to remove or prune tbe same, having in view tbe proper maintenance thereof when not detrimental to tbe highway.
    Where a resolution of the board of street commissioners of the city of Hudson recited facts, showing that certain trees upon a street came within the class of trees which it was authorized to remove, and adjudged the same to be the subject of removal, and was followed by a resolution ordering the removal thereof, such recitals are prima facie proof that such board had jurisdiction of the subject-matter; under such circumstances the remedy of a person desiring to review the action of such board, in passing such resolution and taking proceedings for the enforcement thereof, would be a review of their determination by a writ of certiorari.
    The board of street commissioners of the city of Hudson, while acting within the scope of its authority and jurisdiction, is clothed with judicial power, and its determination upon matters apparently within its jurisdiction cannot be questioned collaterally, but, if its acts or determinations are questioned in a proper proceeding' instituted for that purpose, it must be able to' establish a state of facts upon which it can base its special judicial discretion.
    Appeal by the plaintiff, Robert "VV. Evans, from a final judgment of tlie Supreme Court in favor of the defendant, entered in tlie office of the clerk of the county of Columbia on the 28th day of May, 1894, upon the decision of the court rendered at the Ulster Special Term, sustaining the defendant’s demurrer to tlie complaint, and dismissing the complaint, with notice of an intention to bring up for review upon such appeal an order made at the Ulster Special Term and entered in said clerk’s office on tlie 28th day of May, 1894, sustaining tlie defendant’s demurrer to the plaintiff’s complaint.

      Samuel B. Coffin, for the appellant.

      Richard B. Aldcroftt, for the respondent.
   Mayham, P. J.:

This is an appeal from a final judgment entered upon the decision of the Special Term sustaining tlie defendant’s demurrer to the plaintiff’s complaint.

This action was brought by the plaintiff, who is the owner of land situate on the north side of "Warren street, in tlie city of Hudson, and bounded upon that street. The complaint alleges that the defendant, “ The Board of Street Commissioners ” of the city of Hudson, was created by chapter 276 of the Laws of 1891, as amended by chapter 697 of the Laws of 1892, and that prior to the enactment of chapter 276 of the Laws of 1891 the control of the streets of the city of Hudson and the regulation thereof was in the common council; that section 56 of the charter of the city of Hudson, passed May 1, 1872, defined the powers of the common council over the streets of that city as follows; the common council has power to require, direct and regulate the planting, rearing and preserving ornamental trees in the streets and public grounds of the city,”' and that pursuant to that authority it passed the following ordinance which was in force until superseded by those passed by the defendant:

“Section 51. No person shall put out or plant any shade or ornamental tree otherwise than on the inside of the curbstone of the gutter without permission of the Common Council. * * , * But if there be no gutter laid, then the Street Committee shall fix the place where they shall be respectively put.”

The complaint also set out the general powers and duties of the street commissioners, among which are the right to sue and be sued, and that they are invested with all the powers and duties of commissioners of highways of towns, and that they are especially vested by section 8 of chapter 276 of the Laws of 1891 with the following powers and duties:

“ They shall also have power and it shall be their duty to regulate and control the planting and setting out of trees upon the streets and public places of said city, and in case any tree or trees, growing or standing upon any of the aforesaid highways of the city, become detrimental or destructive to said liiglrways, or interfere with their safe and full use, the board shall have power, and it shall be their duty, to remove or prune the same, having in view at all times the proper maintenance of the same, when not detrimental to such highways, for ornament and shade.”

The complaint alleges that under section 20 of the last-mentioned act the defendant was authorized to make all needful rules and regulations for the exercise of the power conferred upon it, and do whatever the board might deem necessary for the performance of the provisions of that act.

The complaint also alleges that under the power conferred by the last-named section the defendant in the year 1893 passed the following ordinance : “ It shall be lawful for any owner or occupant of premises fronting on any public street or alley, and, upon notice from the board of street commissioners, it shall be his duty, to plant shade trees in the sidewalk in front of such premises; such trees, however, shall not be placed nearer than one foot from the curb-line, nor shall they be placed within a space of six feet along the center of the sidewalk, except by permission of the Street Commissioners.” Section 11 of that ordinance provides as follows:

“ All shade trees growing in the sidewalk must be kept trimmed at least twelve feet from the ground.” The complaint also alleges that in the spring of 1893 the defendant provided by contract for the repaving of Main street, and on the twentieth of May of that year, at a special meeting of the board of street commissioners, a resolution was passed requiring the removal of all trees on that street between points named in the resolution, standing between the northerly and southerly curbline of the street, and directing the superintendent of highways to remove the same.
The complaint shows that this resolution did not embrace trees standing inside of the curbstone, but that all trees standing between the curblines were removed pursuant to it, and that subsequent to such removal, certain lot owners on that street, pursuant to the ordinance of the defendant, planted and set out trees in the sidewalk, which are still standing and growing where so set out and planted. Warren street, where plaintiff’s premises are located, runs for about a mile and a half, the length of the city, from the hill overlooking the river, known as Promenade Hill, to Prospect Avenue.”

Plaintiff’s premises are situated on the northerly side of the street, between Fourth and Fifth streets, the house standing' about fifteen feet from the street. The street at this point is sixty-six feet in width, and the sidewalk in front of plaintiff’s lot is twelve feet seven inches in width, and at the outer edge thereof, within the sidewalk, stand four elm trees, thrifty and properly trimmed, the largest being about two feet in diameter. They were planted ■about thirty-five years ago, pursuant to authority, and have ever since been maintained and cared for by the plaintiff and his predecessors in title.

The complaint further alleges, among other things, as follows:

“ That the said defendant, at a special meeting held by it in said city, on the 29th day of January, 1894, passed the following resolution:

Resolved. That all trees, posts, horseblocks and other obstructions, between the northerly and southerly lines of Warren St. from Promenade I lili to Seventh street, be removed, and that notice be served upon all persons, corporations and companies, owning or having charge of said trees, posts and horseblocks, to remove the same in accordance with section 7, chapter 276 of the Laws of 1891, as amended by chapter 697 of the Laws of 1892, before the first day of March, 1894, also that all wood awnings on Warren street, from Promenade Hill tó Seventh street, shall be removed and that the secretary be and is hereby directed to serve a notice on owners to remove the same ; and

Resolved. That if said trees, posts, horseblocks and awnings be not removed by the first day of March, 1894, that the same shall be done under the direction of the Superintendent of streets.

“ That section 7 of said act, in the last-mentioned resolution, does not provide for the removal of trees.

“ That no notice of intention to offer such resolution last mentioned was given at any meeting previous to the special meeting last above mentioned.

“ That no notice of the adoption of that last-mentioned resolution was served on the plaintiff herein.

“That said Warren street is sixty-six feet in width, and the sidewalk in front of the plaintiff’s premises is twelve feet seven inches in width; that plaintiff’s house stands about fifteen feet from the northerly line of said street.

“ That there are now standing and growing on the outer edge of said sidewalk in front of plaintiff’s house four large, thrifty elm trees, the diameter of the largest tree being about two feet one and one-half inches. That said trees are well trimmed and the lowest branch is twenty feet from the ground.

“ That three of said trees were planted in said sidewalk, pursuant to authority of the city authorities more than thirty-five years ago, and the fourth some years after said time, and have ever since been carefully nourished and preserved by plaintiff and his predecessors in title.

“ That said trees were left standing by the said defendant when said street was excavated in 1893, and the roots of said trees were at that time excavated and dug out and removed so that they should not interfere with the new pavement then laid by said defendant.

“ That said four trees do not in any way interfere with the safe and full use of said street, and have not become detrimental or destructive to said highway, and do not interfere with the lighting of said highway. Nor has said defendant decided that said trees have become destructive or detrimental to said street.

“That plaintiff’s premises aforementioned are on the north or sunny side of said street, and said trees greatly enhance the value of his premises, and are greatly beneficial to the same for ornament and shade, and for preventing the spread of any conflagration. That the removal of said trees would greatly depreciate the value of plaintiff’s premises, and would be an irreparable injury to his property rights, which could not be compensated in damages.

“ That said sidewalk in front of plaintiff’s premises is clear and free from any obstruction between the said trees and the northerly line of said street.

“ That, with few exceptions, the sidewalk of said street, throughout the full length thereof, is obstructed, with permission of said defendant, and pursuant to ordinances heretofore passed, with stoops, areaways, railings and fences extending from the northerly and southerly lines of said street into said sidewalks about four feet, and along the outer edge of such walks are lines of telegraph, telephone and electric railway poles, placed and standing there by permission of said defendant.

“ That plaintiff’s sidewalk is free and clear from any such obstruction.

“ That the northerly side of said street is the least traveled side, the number of those traveling there being about half as many as those traveling on the southerly side.

“ The said defendant threatens to remove said four trees belonging to plaintiff.

“ That said defendant has exceeded the power conferred upon it by sections 7 and 8 of said Act of 1891 in passing the resolution hereinabove mentioned in.the XVIII clause of this complaint.

“ That the power that is vested in said defendant by the Acts of 1891 and 1892, to remove and prune and regulate the planting and setting out of trees on Warren street between Third and Seventh streets was fully exercised by said Board when it repaved said street in 1898, and when it then removed all trees found to bo detrimental and destructive to said highway, and left standing and carefully maintained and preserved for ornament and shade those standing in the sidewalk of said street, and especially those belonging to plaintiff, hereinabove mentioned, and that such power is now functus oficio.

“ That the threatened removal of said trees by the defendants is a wanton, willful and perverse abuse of the discretion vested in them, and that all said acts and doings of said board in relation or tending to the removal of said trees are in bad faith, and in direct opposition and contrary to the interest and property rights of plaintiff, andaré in defiance to and in opposition to the true meaning and intent of sections 7 and 8 of said chapter 27(3 of the Laws of 1891, and of the ordinances of said board of Street Commissioners. That the injury which will be done to the plaintiff, if the defendant removes said trees in front of his premises, which are valuable premises, will bo constant, continuous and irreparable, and that in no, way can this plaintiff obtain adequate redress but by the equitable interference of this court in preventing the wrong and injury threatened to him and to his said property by the defendant.

Wherefore, the plaintiff demands judgment that the defendant, its counsellors, attorneys, agents and servants, and each and every one of them, be forever restrained from cutting down, felling, barking, removing or otherwise wasting or impairing the four elm trees now standing and. growing in front of plaintiff’s house on Warren street, herein above described, and from removing any and all such trees, and for such other and further relief in the premises as may be just, and for the costs and disbursements of this action.”

This complaint, upon its statement of facts, presents upon its face, it seems to us, grounds for equitable relief, unless from its statements of the law under which the defendant assumed to act, and the resolutions and ordinances of the defendant set out in the complaint, the threatened acts of the defendant are justified.

We are not favored by the learned trial court with any opinion, and must, therefore, examine and determine the question raised on appeal unaided by the light which his opinion would throw upon the case. The material allegations of. fact set out in the complaint being admitted by the demurrer, we must first determine whether such facts entitle the plaintiff to the relief demanded in the complaint. The demurrer admits that the plaintiff is the owner of the locus in quo bounded by Warren street on the south.

That makes him, unexplained, the owner of the fee to the center of Warren street, subject to the rights of the public in it as as a public street. This doctrine seems too well settled to require a citation of the numerous authorities cited by the learned counsel for the appellant. Reference to a few of the authorities upon that subject may, however, be allowable. (Matter of Seventeenth, Street, 1 Wend. 262; Matter of John & Cherry Streets, 19 id. 659; Jackson v. Hathaway, 15 Johns. 452; People v. Law, 34 Barb. 502; Hennessy v. Murdock, 137 N. Y. 317; Cunningham v. Fitzgerald, 138 id. 165.)

That being so, the plaintiff has a right to prevent the removal of these trees by injunction, if such removal would work an irreparable injury to his premises, unless in the language of section 8, chapter 276 of the Laws of 1891, they have “become detrimental and destructive to said highways, or interfere with their safe and full use,” in which case, “ the board shall have power and it shall be their duty to remove or prune the same, having in view at all times the proper maintenance of the same when not detrimental to such highways, for ornament and shade.”

It will be observed that the resolution of the board of street commissioners of June 29, 1894, under which these trees of the plaintiff were to be removed, does not recite, nor does it appear any where in the complaint, that they were, or had become detrimental or destructive to such street or highway or that they interfered with the safe and full use of the same, which seems to be the only condition, under section 8, above quoted, under which the defendant can remove them,, while in the complaint it is expressly averred that the. four trees do not in any way interfere with the safe and full use of said street, and have not become detrimental or destructive to. - said highway, and do not interfere with the light of the same, and tlie complaint affirmatively alleges that the defendant has not decided that the said trees have become detrimental or destructive, so as to bring them witlpn the condemnation of the statute.

As alleged in the complaint the case presents no adjudication that the trees which the defendant threatens to remove are within the condemnation of the statute or subject to the judicial discretion vested in the defendant, while on the other hand the complaint contains affirmative allegations that the trees, as matter of fact, are not such as the commissioners are authorized to remove under section 8 of the statute above quoted. Assuming, therefore, as we must, on this demurrer, that the allegations of fact in the plaintiff’s complaint are admitted and, therefore, true, the defendant without right or authority of law is threatening to do an act which will result in an irreparable injury to the plaintiff’s premises.

Had the defendant in the resolution recited facts showing that these trees came within the class of trees which the defendant was authorized to remove, and that it adjudged them to be the subjects of removal, followed by a resolution or order for such removal, such recitals would prima facie show that it had jurisdiction of the subject-matter, and its determination upon matters apparently within its jurisdiction, being of a judicial character, could not be questioned collaterally in this action, and the remedy of the plaintiff would in such case have been by certiorari or some other appropriate proceeding to review the action of the commissioners in passing the resolution and taking proceedings for its enforcement.

But the attitude in which this complaint places the defendant is that of capricious and unauthorized meddling with the rights and property of the jdaintiff, doing him an irreparable injury without bringing itself within the conditions by which it can justify its acts under the statute from which it claims to derive its authority. There is no doubt that the defendant, while acting within the scope of its authority and jurisdiction, is clothed with judicial powers, and, when acting in such judicial character within its jurisdiction, its determinations cannot be attacked collaterally.

.But when its acts or determinations are questioned, it must be able to show a state of facts upon which it can establish its special judicial discretion.

In Underwood v. Green (42 N. Y. 140) the court, in discussing the incidental judicial powers of administrative officers, uses this language: “ While it must be conceded that the inspector, in the discharge of his duties, * * * is clothed with a judicial discretion, yet he is an officer of a limited and special jurisdiction, and when in any given case his power is challenged, he must prove some facts invoking, or tending to invoke, the exorcise of his discretion.”

It is by no means improbable that if an issue of fact were joined in this case the defendant might, upon the proof, show that these trees came within some of the provisions of the statute which would justify the defendant in making the order for their removal; but taking the allegations of this complaint all together, these trees are not brought within the condemnation of the statute which would justify the defendant in removing them. .

We think, therefore, that a valid cause of action is set out in the complaint for the equitable relief demanded.

First. The property sought to be interfered with or taken belongs to the plaintiff.

Second. The proposed interference by'the defendant would produce irreparable injury.

Third. For that injury the plaintiff would have no adequate redress at law. (Flood v. Van Wormer, 70 Hun, 415.)

Fourth. The jurisdiction of the defendant to make the removal is not, from the allegations of> the complaint, established.

The order sustaining the demurrer and the judgment entered thereon should be reversed and demurrer overruled, with costs, and the defendant should have leave to answer upon payment of costs of the demurrer, including costs on this appeal.

Putnam and IIkkriok, JJ., concurred.

Judgment and order reversed and demurrer overruled, with costs and costs of this appeal, the defendant to have leave to answer upon payment of costs.


text:
    William Bennett, Appellant, v. The Greenwich and Johnsonville Railway Company, Respondent.

      Failure of a railroad company to furnish an inspector, and a crooked, link for coupling cans — negligence predicated thereon — its duty as to can's received by it— damages for personal injuries.

    Upon the trial of an action brought to recover damages arising from personal injuries resulting from the defendant’s alleged negligence, the failure of a railroad company to provide an inspector for its cars, or to furnish a crooked link suitable for the coupling of cars of different heights, raises a question for the determination of the jury as to whether or not the defendant had furnished for the use of its injured employee reasonably safe tools and implements for the performance of his work.
    A railroad company in receiving cars upon its road is bound to use reasonable care in the inspection of the same, and in adapting them to the use of its employees, so as not to subject its employees to undue hazard in their use.
    Appeal by the plaintiff, William Bennett, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the 15th day of May, 1894, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the Washington Circuit.

      Frank B. Hull and T. F. Hamilton, for the appellant.

      G. G. Van .Kirk, for the respondent.
   Mayham, P. J.:

The plaintiff was injured while attempting to couple cars on the defendant’s railroad.

The proof shows that the cars, in attempting to couple which he was injured, were -cars from other railroads than that of the defendant. That there was a difference in the height of the drawheads in which the coupling link was to be inserted, of about four inches. That the plaintiff was ordered by the conductor of the train to couple the cars, and when the cars were within four feet of each other, one moving slowly and the other stationary, the plaintiff discovered the difference in the height of the drawheads, and that there was no crooked link provided for such conditions; that the link was in the lower drawhead, and at about the time of the discovery of the difference in the height of the bumpers the conductor directed. him -to change the link from the lower to the higher drawhead, but he was unable to do so by reason of the proximity of the cars to each other; that in his attempt either to couple the cars in the condition in which they were, or to change the link from the lower to the upper drawhead, the plaintiff’s arm caught between the bumpers, and was so injured as to necessitate amputation.

The evidence discloses that the defendant kept no car inspector, and had no printed, written or other rules for the government of its employees, or the management or equipment of its cars.

The proof showed that it was customary for railroads to furnish crooked links with which to couple cars of different height.

There was also evidence tending to show that a crooked link was safe, and in many cases necessary, in coupling cars of different height of drawheads. The evidence also tended to show that other railroad companies generally, if not universally, provided inspectors for cars, and rules for the government of their trains.

To meet that contention it was shown by the defendant that its railroad was but a single track extending but a few miles, with few cars and small capital, and that the strictness of management and completeness of equipment was not required of it that would be exacted of more important and extensive railroad systems.

At the conclusion of the evidence the judge nonsuited the plaintiff, mainly, as it appears, 'upon the ground that the defendant had not been proved to have been guilty of negligence which caused the injury. The plaintiff was not chargeable with contributory negligence, but the accident was the result of the dangerous character of the plaintiff’s employment, the risk of which was incident to the employment, and was assumed by him.

It is conceded by the learned trial judge that he did not place the nonsuit on the ground of the plaintiff’s contributory negligence. In Goodrich v. N. Y. C. & H. R. R. R. Co. (116 N. Y. 404) it was held that when the defendant failed to show that it provided a car with bumpers in good order, and the injury was traceable to defective bumpers, it was liable -unless the proof showed that the plaintiff was in some way responsible for that condition.

It is not pretended in the case at bar that the plaintiff had anything to do with the difference in height of these bumpers, or with the furnishing of the straight links. We are inclined to think that failure to provide an inspector for its cars, or to furnish a crooked link suitable to the coupling of this class of cars, raised a question of fact for the jury to say whether or not the defendant had furnished for the use of the plaintiff reasonably safe tools and implements for the performance of his work, and that it was error to hold as matter of law that the defendant had performed its whole duty to the plaintiff in requiring him to couple cars in the condition in which these were proved to have been.

The defendant in receiving these cars on to its road was bound .to use reasonable care in the inspection of the same and in adapting them to the use of its employees, so as not to subject such employees to undue hazard in their use. (Gottlieb v. N. Y., Lake Erie & W. R. R. Co., 100 N. Y. 462.)

Without stopping to examine the question of the increased obligation resting upon the defendant, growing out of the alleged incapacity of the plaintiff, we think there was enough in the case, independently of that question, to have required its submission to the jury and that it was error to take it from the jury.

The judgment must be reversed and a new trial ordered, costs to abide the event.

Putnam and Herrick, JJ., concurred.

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


author: May ham, P. J.:

text:
    Jane E. Guy, Appellant, v. Charles A. Langdon and Hannah Langdon, his Wife, Respondents.

      Oontraat between a father and a son, who agrees to pay a certain smn to a daughter — gift to the daughter void for want of delivery — not made valid by a decree in f'amor of the son for specific performance of the contract by the father.

    To constitute a valid gift inter vivos the donor must part with all dominion and control over the thing given. '
    A verbal agreement was made between a father and his son, whereby the son agreed to support the father and his wife during their respective lives, and the father agreed to give to the son all his property; such agreement further provided that after the death of the father and mother the son should pay out of the property of his father a certain specified sum to his sister, as a gift.

      Meld, that although the son took possession of his father’s property, it could not be said that there was such complete delivery, by the father to his son, of the amount to go to the sister, at the time of making the contract, as would put it beyond the power of the father to reclaim it, or such as to work an immediate transfer of the title, and vest the same in the son as trustee for the benefit of his sister;
    That the son’s interest in such property would be forfeited upon his failure to perform the agreement under the contract;
    That the fact that the specific performance of such a contract was decreed in an equity action, brought by the son against his father and sister, would not relate back .and validate the gift to the sister, not a party to the contract, which was void in its inception for want of delivery, where the sister, prior to the determination of such action, treated such gift as invalid and did not accept of it in the form in which it was left by the contract.
    Appear by tbe plaintiff, Jane E. Guy, from a judgment of the Supreme Court in favor of the defendants, entered in tlie office of the clerk of the county of "Washington on the 10th day of July, 1894, upon the decision of the court dismissing the plaintiff’s complaint rendered after a trial at the "Washington Circuit before the court without a jury.

      Charles B. Patterson, for the appellant.

      J. M. Whitman, for the respondents.
   May ham, P. J.:

The complaint in this action alleges in substance that on the 1st day of January, 1865, and from that time until the making of the parol agreement thereinafter mentioned, Henry D. Langdon, the plaintiff’s father, was the owner of real and personal property of the value of over $10,000, and that subsequently, and in the month of January, 1865, Henry D. Langdon entered into an agreement with his son, Charles A. Langdon, defendant herein, in and by which, among other things, he agreed to give Charles A. Langdon all of his real and personal property, in consideration of which the defendant Charles A. Langdon agreed to support his father and mother during their respective lives, and their daughter Jjydia, so long as she chose to reside at home, and pay to his two sisters, Lydia and this plaintiff, each the sum of $1,000, deducting, however, from the sum so to be paid the plaintiff t)ie sum of $188,13, before that time advanced to her by her father.

The complaint also alleged that the agreement between her father and the defendant Charles A. Langdon was duly consummated by the said defendant taking possession of all the real and personal property of his father and supporting him and his wife during their lives, and that he has, ever since the 'making of the contract, owned, used and disposed of all the personal property of his father, Henry D. Langdon, and still has the possession and occupancy of the real estate covered by such contract.

That Henry D. Langdon died on the 20th of July, 1892, and his wife died some years previously. The complaint charges that the sum of $811.87 is due her on the contract above referred to, for which she asks judgment, and that the same be adjudged a specifio lien upon the premises described in the complaint, prior and superior to any other incumbrance.

The answer admits substantially the allegations of the complaint, but alleges, among other things, that Henry D. Langdon violated the agreement set up in the complaint, by executing a mortgage to plaintiff and Lydia I. Boyce, each of $1,000 ; also, by giving to other parties a deed of the premises described in the complaint, while the defendant was in the possession of the same, under the agreement set out in the plaintiff’s complaint.

The answer also alleges that said defendant was compelled to and did bring an action in the Supreme Court against Henry D. Lang-don and this plaintiff and others, to set aside such mortgage and deed, on the ground that the same were in fraud of the rights of said defendant. The answer also, among other things, alleges that at the time of taking the mortgage of Henry D. Langdon the plaintiff induced the said Henry D. Langdon to destroy the will devising the real estate to the defendant, which he was, as a part of the contract, bound to make. The answer also alleges that said defendant recovered in the action to set aside the mortgage and deed, and therein recovered a judgment for costs, which has not been paid, and Avhich he, in said answer, offers to set off against the plaintiff’s claim.

On the trial the judgment roll, in the action brought by said defendant against this plaintiff and others to set aside the mortgage and deed referred to in the answer in this action, was put in evidence, wherein it appears that it Avas adjudged in that action that the contract was one enforcible in equity.

The referee in that action found as follows: That the plaintiff should take possession of said farm and the personal property therein, and have such personal property, and should support the said Henry and his wife during their lives and their unmarried daughter Lydia until she married, and pay the said Henry’s two daughters, Lydia and Jane, the sum of $1,000 each (less what Henry had advanced them), and that said plaintiff should have the personal property on said place and the use of the real estate, and said Henry would by will devise the real estate to plaintiff on his death; said payments to daughters was to be made on the death of said Henry, or before if plaintiff was able to make the payments ”

The referee in that, action found the following as conclusions of law: “ I find that plaintiff is the equitable owner of the estate described in the complaint, and that said Henry D. Langdon held the title therefor in trust, and had no right to make the deeds and mortgages above mentioned. His execution of said deeds and mortgages was in violation of plaintiff’s rights, and a fraud upon plaintiff; that the plaintiff is entitled to a judgment setting aside said mortgages and deeds. T, therefore, direct that judgment be entered in favor of plaintiff against the defendant, adjudging the said mortgages and said deeds fraudulent and void, and that said mortgages and deeds, and each of them, be cancelled and set aside, and the said premises covered by them be adjudged and decreed free and clear from any lien or charge on account of said mortgages or deeds, or either, and that said Henry convey said ten-acre lot to plaintiff, and that the plaintiff recover the costs of this action of the defendants.”

Upon these findings of fact and conclusions of law a decree was perfected containing the following provisions: “ And it is further ordered, adjudged and decreed that the equitable title to the premises last aforesaid is in'the said plaintiff Charles A. Langdon, free, clear and discharged of any and every lien, charge or incumbrance whatsoever, so created by or on account of said mortgages to said defendants Jane E. Guy and.Lydia I. Boyce, and the deed to the defendants Thomas, James and Alexander Densmore.”

The evidence discloses that after the date of the report of the referee in the action to set aside the mortgage and deed above referred to, Henry D. Langdon entered into a written agreement with the defendant Charles A. Langdon. reciting the existence of the agreement first above referred to, and tlie costs and expense to which the defendant had been subjected by reason of the giving of the mortgage and deed, which had been vacated by the court, and reciting also the agreement of the defendant to pay his sisters each $1,000, and in and by such agreement assumed to release the defendant from the payment of such sums to his sisters and required him only to support Henry D. and his wife, as the consideration of the transfer of his property, real and personal, to the defendant.

The plaintiff in this action contends that by the first contract between Henry D. Langdon and Charles A. Langdon, the validity of which was established in the action of Charles A. Langdon v. Henry D., this defendant and others, a valid trust was created in her favor for $1,000, and that the same is, and was, irrevocable either by the settlor or by any one else in the contract creating the trust, either to annul or modify the same; and that the defendant, by accepting the personal property and the possession of the real estate, and thereafter asserting and enforcing his rights to the same under the terms of that contract, became the trustee for this plaintiff for the $1,000 given by Henry D. Langdon to her, and having as such trustee taken possession of the property out of which this $1,000 was to be paid, the gift to her became a valid gift inter vinos from her father with a valid and immediate delivery of the property given to the defendant as trustee for her use, and could not be divested by the donor or trustee without her consent.

To uphold this contention it must, it seems, be held that the delivery of the property of Henry D. Langdon to the defendant constituted a valid gift of the $1,000 to the plaintiff, and for her benefit, delivered to the trustee for her use.

There being no legal liability from Henry D. to the plaintiff for payment of this $1,000 to her, this transaction is unlike the case of Lawrence v. Fox (20 N. Y. 268), and the plaintiff cannot rest a recovery upon the authority of that case.

In that case the party to whom the promise was made, for the benefit of the plaintiff, was the debtor of the plaintiff. No such condition exists here, and the plaintiff, if she can recover at all, must do so upon the theory that Henry D. made a valid executed gift of this money to her, with a valid delivery to the defendant as trustee for her benefit.

To constitute a valid gift inter vivos tlie donor must part with all dominion and control over the thing given.

It seems to me that, in this respect, the transaction failed to constitute a gift. The most that can be claimed for the contract ■ between the defendant and his father was that a parol executory agreement was made between them for the payment by the defendant at some future time of the sum of $1,000 in consideration of the transfer to the defendant of all the personal and real property of Henry D., the legal title to the real property to remain in Henry D. during his life, and the transfer to depend upon the support of Henry D. and wife by the defendant during- their lives. Clearly the vesting of this property in the defendant depended upon fhe happening of some future event. •

Suppose, after the making of this contract the defendant had failed to furnish the support, and thus lost his equitable rights under this contract, could it be insisted that an equitable charge had been created against this property for the jfiaintiff’s $1,000, which she could enforce through the defendant as her trustee? The answer is that she could not. There was, therefore, no such valid gift as would divest tire donor of the title and possession of the subject gift. Nor was there such a vesting- of the title and possession in the defendant, as trustee, at the time of making tbe contract so as to make him liable to the plaintiff as her trustee for this $1,000.

Failure on the part of the defendant to perform this contract for support would clearly have worked a forfeiture of his claim, under the contract, to this property.

That being so, it cannot be said that there was such a complete delivery of this $1,000 by Henry D. Langdon to the defendant, at the time of making this contract, as to put it beyond the power of the alleged donor to reclaim tbe same, or beyond the power of the defendant, by his failure to perform, to forfeit his rights, to the property under the contract.

There was not, therefore, such a complete delivery of tbe subject of the alleged gift as to work an immediate transfer of the title, and vest the same in a trustee for the benefit of the plaintiff as is necessary to constitute a valid gift inter vivos. \

But it is insisted by the appellant that the defendant, by invoking the aid of a court of equity in the enforcement of this contract lias estopped himself from alleging the invalidity of the gift of this $1,000 to the appellant, as that gift constituted a part of the consideration for this contract.

There would be force in that contention had the plaintiff accepted and adopted the gift under the contract, and not by her own act in conjunction with the alleged donor repudiated it and taken a mortgage on the premises embraced in the contract, thus denying the validity of the gift; but by that act it is manifest that she treated the gift as invalid and did not accept of it in the form in which the contract left it. But the equitable relief sought and obtained by the defendant grew out of a performance on his part, and operated only between the parties to the contract, and did not relate back and validate a gift to a stranger not a party to the contract, which was void in its inception for want of delivery.

As was said by the learned trial court, the equity in this case, which was enforced by the action, arose only between the parties creating it — clearly not for the benefit of strangers to the contract — and he adds: “To say an equity was worked out in favor of (the plaintiff) Jane is to admit that she had no gift of anything in the beginning; that the gift to her * * was wholly dependent at all times upon the will of both of the contracting parties. This quality defeats the contention of a gift in ¡prmenti and no other kind of a gift is recognizable.”

The weakness in this case on the part of the plaintiff arises out of the fact that there was no valid gift of .this $1,000 to the plaintiff or to the defendant as her trustee for her use.

This being so, we think the learned trial court was correct in its conclusions, and that the judgment must be aflirmed.

Putnam and Herrick, JJ., concurred.

Judgment affirmed, with costs.