author: O’Brien, J.: Van Brunt, P. J.: .Follett, J.

text:
    Henry L. Herbert and Another, Respondents, v. John Duryea, Appellant.

      Motion to dismiss a complaint — liability of a stockholder of a corporation, where stock was issued for property — pleading must allege the contra/ry — failure to file a certificate of paid-up stock.

    Where at the commencement of the trial of an action, before any evidence is taken, the defendant moves for a dismissal of the complaint on the ground that it does not state facts sufficient to constitute a cause of action, the question presented, being as to the sufficiency of the complaint, is a question of pleading.
    The complaint in an action, brought by a creditor of a corporation organized under the General Manufacturing Act, to recover the amount of his claim from the defendant, a stockholder of such corporation, on the ground that no certificate of paid-up stock has been filed, must contain an allegation that the stock of the corporation was issued for cash rather than for property. The fact that the stock was issued for property is not an affirmative defense to the action to be set up by the defendant.
    If the stock was issued for property at its value the stockholder is not liable, whether the whole amount of the capital stock has been paid in or not.
    The liability of a person holding stock issued for property must be predicated upon allegations and proof that the stock held by him was issued for property at a fraudulent valuation for the purpose of evading the statute.
    Follett, J., dissenting.
    Appeal by the defendant, John Duryea, from a judgment of tbe Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 29th day of June, 1894, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from au order entered in said clerk’s office on the 11th day of July, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Reuben L. Maynard, for the appellant.

      W. R. Knapp, for the respondents.
   O’Brien, J.:

This is an action against a stockholder of an insolvent corporation, based upon an alleged statutory liability for the debt of the corporation to the plaintiffs. The respect in which the corporation failed to comply with the statute and out of which plaintiffs’ cause of action arose, is thus stated : “ Upon information and belief, that the whole amount of capital stock fixed and limited by such company has never been paid in, and that no proper certificate stating the. amount of the capital so fixed has ever been recorded in the 'office-of the county clerk of the county wherein the business of said company was carried on.” At the commencement of the trial, before-any evidence was taken, the defendant moved for a dismissal of the complaint on the ground that it did not state facts sufficient to constitute a cause of action, which motion was denied and an exception duly taken.

The question thus presented, being as to the sufficiency of the complaint, is one of pleading. In this court the question has been settled by the case of Rowell v. Lambert (66 Hun, 4). There, as in this case, an action was brought by a creditor of a corporation organized under the General Manufacturing Act, to recover the amount of his claim from the defendant as a stockholder of such corporation, upon the ground that no certificate of paid-up stock had been filed, and there, as here, a motion was made to dismiss the complaint because there was no allegation in it that the stock was issued for cash rather than for property. It was therein held that such an allegation was necessary, and that the issuing of stock for property was not an affirmative defense. As therein said (which is equally applicable to the complaint here): “ It is plain from an examination of the complaint that the theory upon which the action was tried was, that because no certificate that the whole amount of the capital stock fixed and limited by the articles of incorporation of said corporation had been paid in, had been filed and recorded as required by sections 10 and 11 of chapter 40 of the Laws of 1848 and their amendments, a liability existed upon the paid of the defendant as a stockholder.” Attention is then called to the amendment passed in 1853 (Chap. 333, § 2) permitting trustees to purchase property necessary for their business, and issue stock to the amount of the value thereof in payment therefor, and providing that “ the stock so issued shall be declared and taken to be full stock and not liable to any further calls; neither shall the holders thereof be liable for any further payments under the provisions of the tenth section of the said act.” In construing the original act as thus amended, it was in that case held that it is necessary, in order to make out a complete cause of action against a stockholder, to show either that the stock was issued apparently for cash, and no certificate filed, or that it was issued for property at a fraudulent valuation for the purpose of evading the statute.” And that a complaint simply alleging the failure to file such certificate did not state a cause of action, since a stockholder might hold stock issued for property; that if one seeks to attack an issue of stock for property, and thereby create in his favor a cause of action, he must allege that such issue was made for property acquired by the corporation at a fraudulent valuation, and that the burden of establishing fraud is upon the person asserting it.

It will thus be seen that in one aspect the question of whether a stockholder is liable depends upon the consideration given for the stock. If it is issued for property at its value, that ends the matter ¡so far as the stockholder’s liability is concerned, and this is true whether the whole amount of the capital stock has been paid in or not. The filing of a certificate of full payment adds nothing to his ¡advantage or protection, and failure to file the certificate creates no .liability against him. In other words, he is relieved from the liability imposed by statute upon holders of stock issued for cash. The stock is full paid and subject to no further call of the corporation or of third parties. And the liability of a person holding stock issued for property is predicated upon allegations and proof that the stock so held by him was issued for property at a fraudulent valuation for the purpose of evading the statute.

Our attention is called to the case of Herbert v. Uhl (20 N. Y. Supp. 713), handed down at the same term as the case of Rowell v. Lambert, which it is claimed contains something contrary to the views expressed in the latter case. An examination, however, will show that in this the respondents are mistaken. It may be true that -the complaint in that case was similar to the one in the case at bar, "but there the motion to dismiss the complaint was not made at the opening of the trial on the ground that the same was insufficient as .not stating a good cause of action, but it was made at the conclusion of the testimony on the ground that the plaintiffs had not made out a cause of action against the defendant, the claim being that the stockholder’s liability ceased immediately upon the filing of a certificate of the full payment of the capital stock, and that unless the plaintiffs could show that there was some falsity with reference -thereto, that the property purchased for the use of the company was purchased at an exorbitant figure and with fraudulent intent to evade the statute, they had not made out their case. To the granting of that motion the plaintiffs excepted, and this, upon appeal, was held to be error. Two of the judges, however, in that case concurred in the result, one having in mind the principle laid down in Rowell v. Lambert, saying: “ The statute does not require filing certificate where stock is issued for property.” In Herbert v. Uhl the question was whether the evidence was sufficient to make out a prima facie case for the jury, and the sufficiency of the complaint was not, as it is here, involved, and testimony having been introduced sufficient to justify a submission of the question to the jury, it was held error at that stage to dismiss the complaint. The question of the sufficiency of the complaint does not appear to have been raised, but even though it had been after all the testimony was in, the pleadings might have been made to conform to the proof. Here, however, the motion was made at the commencement of the trial, and it was practically a demurrer to the complaint and, therefore, presented the question as to whether there was a good cause of action alleged.. Under the authority of Rowell v. Lambert we think that the trial judge should have granted the motion to dismiss and that the exception taken to his refusal was good.

The judgment should accordingly be reversed and a new trial ■ordered, with costs to appellant to abide the event.

Van Brunt, P. J.:

I concur. It is evident that the statute did not intend that a person receiving stock in payment for property conveyed to a corporation in good faith should be held liable because of the failure of other stockholders to pay for the stock taken by them. The statute expressly provides that such stock shall be full paid, and not liable for any further calls, nor shall the holders thereof be liable for any other payments under the provisions of section 10 of said act, section 10 being the section under which liability for failure to file certificate, etc., can be predicated.

.Follett, J.

(dissenting):

December 8, 1881, the Consumers’ Coal Company was incorporated pursuant to chapter 40, Laws of 1848 (the Manufacturing Act), the acts amendatory thereof and supplementary thereto, with a capital stock of $500,000,'divided into 100,000 shares of five dollars each. In 1890 it was dissolved for insolvency and a receiver appointed. March 16 and May 25, 1882, 250 shares of the stock were issued to the defendant, and it is alleged in the complaint, and admitted in the answer, that he was the owner of 100 shares when (October, 1889) the liability of ’ the corporation to plaintiffs arose. The defendant alleges that $35,500 of the stock was paid for in cash and $100,000 was paid for in property and services of the president of the corporation, to whom 20,000 shares were issued. It is conceded that the remainder of the capital stock, $361,500, was neither paid for nor issued. The defendant sought to escape liability by showing that the capital stock of the corporation had been reduced to $135,500, but he utterly failed to establish that it had been reduced pursuant to the statute. A good cause of action was alleged in the plaintiffs’ complaint and proved on the trial.

The judgment and order should be affirmed, with costs.

Judgment reversed, new trial ordered, costs to appellant to abide event.


source: Caselaw Access Project

author: Per Curiam :

license: Public Domain

text:
    State of South Dakota, Appellant, v. John T. McChesney, Respondent, Impleaded, etc.

      An affirmative defense (except a counterclaim), cannot include a denial.

    An affirmative defense, not including a counterclaim, necessarily admits and avoids the cause of action set out in the complaint, and a denial, general or specific, cannot be included in and form a part of such defense.
    A denial, general or specific, may be pleaded in the same answer as a separate defense, but not as a part of a plea of new matter.
    In an action brought to recover on a bond executed by a surety the complaint alleged that the principal in the bond was a defaulter in a sum exceeding the penalty thereof. The answer contained several specific denials which were set forth in the first defense. In all the other defenses new matter was set up, and in all of them appeared the statement that the defendant “ reiterates the denials of the first defense and alleges,” etc.

      Held, that a motion by the plaintiff to strike out such statement should be granted.
    Appeal by the plaintiff, the State of South Dakota, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of April, 1895, denying its motion to strike out certain parts of the answer of the defendant, John T. McChesney.

      John S. Melcher, for the appellant.

      Charles A. Deshon, for the respondent.
   Per Curiam :

This action was begun February 11, 1895, to recover' on a bond executed by the defendant as surety for 'William W. Taylor, the treasurer of the plaintiff. It is alleged that the treasurer is a defaulter to the State in a sum exceeding the penalty of the bond. The answer does not contain a general denial — a denial of all the allegations in the complaint- — but there are several specific denials set forth in the first defense. In all the other defenses, second to eighth, inclusive, new matter is set up as defenses, and in all of them, the following words appear which the plaintiff moves to strike out: “ Reiterates the denials of the first defense and alleges.” Then follows the new matter.

An affirmative defense, not including a counterclaim, necessarily admits and avoids the cause of action set out in the complaint, and a denial, general or specific, cannot be included and form a part of such defense. A denial, general or specific, may be pleaded in the same answer as a separate defense, but not as a part of a plea of new matter. It is elementary that a defense of new matter should be pleaded; and as new matter must of necessity be a distinct defense from a denial, it follows that it cannot properly be associated or mingled up with denials, general or specific, in one paragraph or plea.” (Pom. Code Rem. § 690.) By permitting a general or specific denial to be joined with an affirmative defense, a plaintiff would be effectually deprived of the right to demur to the new matter pleaded as an affirmative defense. In case an action should be brought to recover on a contract for the payment of money, and the defendant should plead as a separate defense that the contracting parties being more than fifty years of age, the contract was void, and then conclude the new matter with a general or specific-denial, the plaintiff could not safely demur to the defense. In the case supposed the plaintiff could move to strike out the new matter as frivolous; but in case the new matter should require argument to-show that the defense was frivolous, the validity of the defense could not be tested on motion.

The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Present — Van Brunt, P. J., O’Brien and Follett, JJ.

Order reversed, with ten dollars costs and disbursements, 'and motion granted, with ten dollars costs.


text:
    The Aultman & Taylor Company, Respondent, v. Frederick J. Syme, Appellant.

      Execution, issued after fine years without leave of the court — supplementary proceedings not sustained thereby.

    The judgment in an action was entered on November 14, 1889; on which an execution was issued on the 14th day of November, 1894, without leave of the court.

      Held, that, as the execution was not issued within five years after the entry of the judgment, no jurisdiction was conferred thereby on the court, and that an order granted thereon, to examine the judgment debtor in proceedings supplementary to execution, should be vacated.
    Appeal by the defendant, Frederick J. Syme, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of May, 1895, denying his motion to vacate and set aside the orders heretofore made in the above proceeding for the examinations of Frederick J. Syme and Mary Allen Syme, or that said examinations be suspended until the trial of the cause between the parties now pending in this court, in which the validity of the execution herein is directly raised.

      E. F. Brown, for the appellant.

      W. H. Blymyer, for the respondent.
   Per Curiam :

The judgment in this action was entered on the 14th of November, 1889. The execution which formed the foundation of this order was issued on the 14th day of November, 1894, and was/ therefore, not issued within five years after the entry of the judgment, the five years having expired upon the 13th of November, 1894. The court, in considering the question of time, takes no notice of the fractions of a day. The time commenced to run on the day upon which the judgment was entered, and expired upon the termination of five years thereafter, which was the 13th of November, 1894. The authority to issue an execution only existed during those five years. After the expiration of that time execution can only be issued upon application to tbe court. The execution not having been issued until after the expiration of that period, and no application to the court having been made, no jurisdiction was conferred.

The order appealed from should he reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Present — Van Brunt, P. J., O’Brien and Follett, JJ.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.


author: Per Curiam:

text:
    Louis A. Jackson, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent.

      Assistant secretary of the commissioners of docks of the city of New York — not a public officer— subject to discharge at will of commissioners — words necessary to effect discharge.

      A person who had been appointed assistant secretary of the dock department of the city of New York by a resolution of the commissioners of said department, was thereafter, in pursuance of a resolution of the commissioners of the dock department, suspended from further duty. He subsequently sought to review such suspension by means of a writ of certiorari, which was dismissed.
    In an action brought by him to recover his salary as such assistant secretary subsequent to the time of his discharge, he having been paid for his services up to that time,

      Yield, that the assistant secretary of the commissioners of docks in the city of New York was not a public officer, and was subject to be discharged at the will of the commissioners;
    That no particular form of words was necessary to effect a discharge, and that any language that indicated to such employee that his services were no longer required was sufficient, and that the plaintiff was not entitled to recover.
    Appeal by the plaintiff, Louis A. Jackson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 11th day of February, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the New York Circuit.

      John D. Townsend, for the appellant.

      Robert Shaw Barlow, for the respondent.
   Per Curiam:

This action was begun January 13, 1893, to recover $42,295 claimed by the plaintiff to be due him as assistant secretary of the dock department for salary at the rate of $2,500 per year from February 1, 1876, to January 1, 1893, a period of sixteen years and eleven months.

August 2, 1873, the plaintiff was appointed assistant secretary of the dock department by the following resolution of the board of commissioners of that department:

Hesolved, That Louis A. Jackson be appointed, subject to the pleasure of the board, assistant secretary, vice William F. Whitney, promoted, at an annual salary of $2,500, to take effect August 4th.”

August 4, 1873, the plaintiff began service under the resolution and continued to discharge the duties of his position until February 1, 1876, when his employment ceased, pursuant to the following resolution and letter:

January 14, 1876.
“ Commissioner Dimock, chairman of the committee on organization, made a further report, stating that, in view of the limited extent of the work now being prosecuted by the department, it becomes necessary to reduce the clerical force, and recommended for adoption the following resolution:
Hesolved, That Louis A. Jackson, assistant secretary, George W. Sterritt, assistant bookkeeper, and William F. Cosgrove, messenger, be, and they are hereby suspended from further duty in the department from and after 31st inst.”
January 14, 1876.
“ Louis A. Jackson, Esq.,
“ Assistant Secretary:
“Sir — Pursuant to a resolution adopted at a meeting of the board governing this department, held this day, you are hereby suspended from further duty from and after 31st inst., the work of the department as at present carried on requiring a reduction of the force employed.
“ Respectfully,
“ EUGENE T. LYNCH,
Seereta/ryP

In March, 1878, the plaintiff obtained a writ of certiorari on a-petition verified by him, which contained, among other allegations, the following: “That on or about the 15th day of January, 1876,. a written notice from said board was delivered to your petitioner,, notifying him that he had been removed from his position of record clerk, as aforesaid, said removal to take effect on the 1st of February,. 1876; that your petitioner protested against his removal, and has-ever since held himself ready and frequently offered to perform the duties thereof; that your petitioner’s removal from his regular clerkship as aforesaid, as he is advised, was without justifiable cause,, and illegal and void, and in contravention of the provisions of an act to reorganize the local government of the city of New York, passed April 30th, 1873.” The writ issued upon this petition was-dismissed.

The plaintiff was paid for his services up to February 1, 1876,. since which time he has not been employed by the board.

The assistant secretary of the commissioners of docks is not a-public officer. (Consol. Act, § 718 .[Laws of 1882, chap. 410]; People ex rel. Cummings v. Koch, 2 N. Y. St. Repr. 110 ; Meyers v. The Mayor, 69 Hun, 291.) The plaintiff, not being an officer, was subject to be discharged at the will of the commissioners. No particular form of words is necessary to effect a discharge. Any language that communicated to the employee that his services are no longer required is sufficient to effect his discharge. (People ex rel. Cummings v. Koch, supra; Meyers v. The Mayor, supra; Beach v. The Mayor, 32 N. Y. St. Repr. 939; Wardlaw v. The Mayor, 137 N. Y. 194.)

The judgment should be affirmed, with costs.

Present — Van Brunt, P. J., O’Brien and Follett, JJ.

Judgment affirmed, with costs.


author: O’Brien, J.: Van Brunt, P. J.:

text:
    Abbott-Downing Company, Respondent, v. Eberhard Faber, Appellant.

      Examination of a party before trial — a necessity therefor must be shown — not ordered when the witness is privileged to refuse to testify.

    It is only under special conditions showing the necessity therefor that the court-will grant leave to examine a witness before trial. A mere statement that the-examination is material and necessary is not sufficient. Facts should be presented to the judge from which it can be seen not only that such testimony is-material and necessary, but also that there are reasons why the testimony should-be given prior to rather than at the trial.
    The real purpose of the examination of a witness was to obtain from him, with the aid of the books of a company of which he was formerly the secretary and treasurer, proof of the falsity of a report filed by such company, in the making' of which the witness as a director of the company joined.

      Held, that as the affidavit upon which an order for such examination was granted did not show that there was any fact to which the witness could testify, except-such as would be privileged, an order directing such examination should b& reversed on appeal.
    Appeal by the defendant, Eberhard Faber, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of April, 1895, denying his motion to vacate an order granted in this action for the examination before trial of one Edward E. Huber' as a witness.

      Peter P. Pope, for the appellant.

      C. E. Souther, for the respondent.
   O’Brien, J.:

The action now at issue was brought to charge the defendant with the statutory liability for filing a false report in 1889, while a director' of Piercy’s Express Company. The witness sought to be examined is not a party to the action, but it is stated that his testimony is material and necessary for reasons, among others, that he was “ at the time of the * * * transactions the secretary and treasurer of said express company and a director thereof, who united with said defendant in the making and filing of its said annual report. * * * Said plaintiff desires to examine said Huber before trial as to all and every of the material allegations in said complaint and answer, and deems it necessary so to do in advance of the trial for the purpose of obtaining from him or from the books of said express company admissions or other evidence of facts in issue, and I am informed and believe that a subjpcena duces tecum to him for the production of said books at the trial would not give said plaintiff sufficient opportunity to examine the same, or him in respect to the same, and to pursue inquiries which may be suggested by such examination, or to investigate or verify information afforded thereby, in respect of matters hereinbefore mentioned, which, as I am informed and verily believe, are pertinent to said facts.”

Under our procedure witnesses should be examined upon the trial, and it is only under special conditions arising and showing the necessity therefor, that the court will vary the practice. It has been many times held that a mere- statement that the examination is material and necessary is not sufficient, hut that facts should be presented to the judge from which it can be seen not only that it is material and necessary, but that there are reasons why the testimony should be given prior to rather than at the trial. The whole tenor of section 872 of the Code of Civil Procedure, under which alone an examination of a witness not a party can be obtained, looks to the taking and perpetuation of testimony which, if not secured before trial, might be lost or otherwise not available upon such trial. The section of the Code, therefore, sets forth with considerable particularity what the affidavit must contain upon which the order shall be based, and rule 83 of the General Rules of Practice requires that “ the affidavit shall specify the facts and circumstances which show * * * that the examination of the person is material and necessary.” It is too vague and general to base such an application merely, as here, upon the expression of a desire to examine the witness “ as to all and every of the material allegations in said complaint and answer,” for the papers used upon the motion show that most of the facts which plaintiff desires to prove by the witness are within its own knowledge. Thus the fact that he was the secretary and treasurer and a director of the company in 1889, and that he joined with the defendant in making and filing the report; that he furnished a statement of the condition of the company, and that the plaintiff was unable to find on record the chattel mortgage, are within the plaintiff’s knowledge.

The real purpose of the examination of this witness was to obtain from him, by the aid of the books of the express company, proof of the falsity of the report. It is not shown, however, that the witness sought to be examined is now the secretary and treasurer or a director, or that he has any interest in or relation to the company, or that the books are within his possession or under his control. And the reason for the examination is furnished by the argument of the respondent, who says that any answer that the witness would make “ would probably require him to examine the books to refresh his recollection of the facts, and take more time than would be granted upon the trial even if the books were at hand, and, if not, their absence would be the excuse for not answering at all.” This not being an order for the examination and inspection of the books and papers of a party under section 803 of the Code of Civil Procedure, but, as already stated, for the examination of a person not a party to the action, who concededly could give little of the desired information without reference to books which he neither has nor controls; and it not being stated or shown that he has any information exclusive of what may be contained in the books of the express company, we do not see upon what theory the right to this examination should have been accorded. The affidavit, moreover, states that the witness was a director of the express company and joined with the defendant in making the alleged false report. If so, undoubtedly he would be privileged from answering any questions upon the examination which might tend to expose him to a penalty by reason of the making of such report; and while this court has held that the fact that one is privileged from testifying does not prevent the making of an order for his examination' — the proper practice requiring that where it is necessary and a sufficient showing is made, the examination should be ordered, leaving it until the person is actually under examination to claim the privilege — nevertheless, where it is not shown that there is any fact which the witness could testify to except such as would be privileged, it would be useless to make the order for the examination.

Considering, then, the nature and character of the action, the attitude which the witness sought to be examined occupies, and the vague and indefinite way in which what is sought of this witness is stated, coupled with the clear inference that such information is in 'books of the express company, and that as to other knowledge possessed by him he would be privileged from testifying, we •think, upon the merits and for failure to comply with the Code ¡and Rules of Practice, that the motion to vacate the order should have been granted.

Order accordingly reversed, with ten dollars costs and disbursements, but with leave to plaintiff upon payment thereof to renew its ¡application.

Parker, J., concurred.

Van Brunt, P. J.:

I concur in result. There are no circumstances shown which make it necessary to examine the proposed witness before trial to perpetuate his evidence.

Order reversed, with ten dollars costs and disbursements, but with leave to plaintiff upon payment thereof to renew application.


text:
    Edward D. Farrell, Respondent, v. The Manhattan Railway Company and Another, Appellants.

      JSasements taken by an elevated railroad — rental dmnages — damages to the freehold.

    The allowance of rental damages because of the construction of an elevated railroad depends very largely upon the use to which the premises may be put for the time being.
    In an action brought against an elevated railroad company to recover damages caused by the construction and maintenance of its road in front of the plaintiff’s property, the fact that no rental damages are awarded does not prevent the recovery of damages for injury to the freehold.
    Appeal by the defendants, The Manhattan Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of November, 1894, upon the decision of the court rendered after a trial at the New York Special Term.
    This was an action brought to recover fee and rental damages sustained by the construction and maintenance of an elevated railyoad in front of the plaintiff’s premises.

      E. A. Tuttle, for the appellants.

      E. M. Felt, for the respondent.
   Per Curiam :

We do not think that the evidence in this case furnished any foundation for an award of rental damage. The fee value of the premises, however, seems to have been seriously affected by the existence of the elevated railroad in front thereof. And this damage is accentuated by the method of construction of the said elevated road and the manner of its use.

The suggestion that if no rental damage is awarded, then no fee damage can be allowed, is without merit. It depends very largely npon the use to which the premises may happen to be put for the time being as to whether rental damage is suffered or not. Thus, the lot may be used for a coal yard, and the rental damage because of the existence and operation of the elevated railroad would be nothing. And yet such existence and operation might seriously affect the value of the lot for the purpose of improvement, and, hence, fee damage be suffered.

We think the judgment should be modified by striking out the rental damage and affirmed as to the fee damage and the costs, without costs of appeal.

Present — Van Brunt, P. J., O’Brien and Parker, JJ.

Judgment modified by striking out rental damage and affirmed as to the fee damage and the costs, without costs of appeal.


text:
    William S. Williams, Appellant, v. Robert Lindblom, Respondent, Impleaded, etc.

      Case on appeal — stricken from calendar.

    Where a case upon appeal has never been settled nor ordered on file by any one who participated in any portion of the proceedings, it must be stricken from the calendar.
    Appeal by the plaintiff, William S. Williams, from a judgment of the Supreme Court in favor of the defendant, Robert Lindblom, entered in the office of the clerk of the county of New York on the 12th day of March, 1895, upon the report of a referee, and also from an order, made at the New York Special Term and entered in said clerk’s office on the 11th day of March, 1895, affirming the report of the referee.

      John M. Mitchell, for the appellant.

      Linus A. Gould, for the respondent.
   Per Curiam :

We find upon an examination of this case that it has never been settled ; nor has it ever been ordered on file by any one who participated in any portion of the proceedings.

The case must be stricken from the calendar.

Present — Van Brunt, P. J., Follett and Parker, JJ.

Case stricken from calendar.


author: Van Brunt, P. J.: O’Brien, J.

text:
    The People of the State of New York ex rel. Rachel Purdy, Respondent, v. Ashbel P. Fitch, as Comptroller of the City of New York, Appellant.

      Commissioners of appraisal in New York city — validity of an appointment under chapter 537 of 1893, as amended, by chapter 567 of 1894.
    By the amendment of chapter 537 of the Laws of 1,893 by chapter 567 of the Laws of 1894 a new statute was substantially enacted, and proceedings which had been taken under the law of 1893 prior to the passage of the act of 1894, and not completed, in order to be made the foundation of a claim against the city of New York, must be shown to have complied with the provisions of the act of 1894.
    As powers were conferred by the act of 1894 upon the commissioners to be appointed thereunder, additional to those which the commissioners had originally enjoyed under the act of 1893, it became necessary for the mayor of the city of New York, after the passage of the act of 1894, to reappoint commissioners thereunder.
    An appointment by the mayor of the city of New York, after the passage of the act of 1894, of certain persons as commissioners “to ascertain and pay the amount of damages to lands and buildings suffered by reason of changes of grades of streets and avenues made pursuant to chapter 731 of the Laws of 1887,” is fatally defective, and the proceedings of the commissioners so appointed are invalid.
    O’Brien, J., dissenting.
    Appeal by the defendant, Ashbel P. Pitch, as comptroller of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of January, 1895, directing that a peremptory writ of mandamus issue out of and under the seal of the Supreme Coui’t directed to Ashbel P. Pitch, as comptroller of the city of New York, directing .him to issue certain bonds specified in said order.

      Theo. Connoly, for the appellant.

      T. S. Bassford, for the respondent.
   Van Brunt, P. J.:

In May, 1893, the Legislature passed an act entitled “An act providing for ascertaining and paying the amount of damages to lands and buildings suffered by reason of changes of grade of streets or avenues made pursuant to chapter 721 of the Laws of 1887, providing for the depression of railroad tracks in the twenty-third and twenty-fourth wards in the city of New York or otherwise.”

By the 1st section of this act certain property owners were entitled to prove and recover certaiix damages as in said act provided. By the 2d section, within thirty days after its passage, the mayor of the city of New York was authorized and directed to appoint three commissioners for the purpose. of estimating such loss and damage. The duties and powers of the commissioners were.then provided for in the act.

On the 8th day of May, 1893, the mayor appointed Daniel Lord, James M. Varnum and James A. Deering as commissioners “to ascertain and pay the amount of damages to lands'and buildings suffered by reasons of the changes of grade of streets or avenues, made pursuant to chapter 721 of the Laws of 1887 or otherwise.” On the same day the said commissioners accepted said appointment and each subscribed and took the oath required by said act of 1893. (Chap. 537, Laws of 1893.) On the 7th .of June, 1893, one Rachel Purdy filed her claim with the comptroller, and hearings were had upon said claim commencing in October, 1893, and continuing until the 6th of July, 1894. On the 28th of February, 1894, the claimant moved to amend the amount of damages alleged in the claim filed with the comptroller and corporation counsel by increasing the amount of the damage. On the 2d of May, 1894, the Legislature passed another act known as chapter 567 of the Laws of 1894, which was entitled as follows : “ An act to amend chapter 537 of the Laws of 1S93, entitled An act providing for ascertaining and paying the amount of damages to lands and buildings suffered by reason of changes of grade of streets or avenues made pursuant to chapter 721 of the Laws of 1887, jn’oviding for the depression of railroad tracks in the twenty-third and twenty-fourth wards in the city of New York or otherwise.’ ”

By this act sections 1 to 7, inclusive, of chapter 537 of the Laws of 1893 were amended. The amendment to section 1 consisted of inserting after the words have sustained damages the words or will sustain damages,” and also inserting therein reference to certain-other session laws. Section 2 of said act was amended by inserting therein the words or will sustain by reason of such change.” Sections 3 and 4 are substantially t-lie same in both acts. Sections 5, 6 and 7 were amended in particulars not necessary to mention here.

By the said act the title of the act of 1893 was amended so as to read as follows: “ An act for ascertaining and paying the amount of damages to lauds and buildings suffered by reason of changes of grades of streets or avenues in the twenty-third and twenty-fourth wards of the city of New York, made pursuant to chapter eight hundred and forty-one of the laws of eighteen hundred and sixty-eight, chapter three hundred and twenty-nine and six hundred and four of the laws of eighteen hundred and seventy-four, chapter four hundred and thirty-six of the laws of eighteen hundred and seventy-six, chapter seven hundred and twenty-one of the laws of eighteen hundred and eighty-seven, and chapter three hundred and twenty-nine of the laws of eighteen hundred and ninety-two.”

Subsequent to the passage of this act, on the 8th of June, 1894, James A. Leering, one of the commissioners appointed under the provisions of chapter 537 of the Laws of 1893, having theretofore, and on the 10th of November, 1893, resigned as one of said commissioners, and Daniel P. Hays having been appointed a commissioner in his place and stead, the then mayor of the city of New York, under the provisions of chapter 567 of the Laws of 1891, appointed Daniel Lord, James M. Varnum and Daniel P. Hays as commissioners to ascertain and pay the amount of damages to lands and buildings suffered by reason of changes of grades of streets and avenues made pursuant to chapter 721 of the Laws of 1887.” The said commissioners accepted the appointment and qualified as commissioners, and entered upon the discharge of their duties as such commissioners, holding tlieir first public meeting on the 11th of June, 1891. On the lltli of November, 1891, the said commissioners made an award to said Rachel Purdy, claiming to act as commissioners appointed pursuant to the provisions of chapter 537 of the Laws of 1893, as amended by chapter 567 of the- Laws of 1891; and said award purported to be for damages sustained, or which will be sustained, by reason of change of grade to certain premises located in the twenty-third ward of the city of New York, and designated on the tax map of the city of New York as ward No. 1 in block No. 1667. The comptroller having refused to issue bonds to pay the amount of said award, a motion was made for a peremptory mandamus directing the issue of such bonds. That motion having been granted, this appeal from the order thereupon entered was taken.

It does not seem to be necessary to consider all the numerous objections which are raised to the constitutionality of the laws as they appear upon the statute book, the mistakes contained therein, their references to statutes, or the various omissions in the proceedings. It must be conceded, however, that in the amendment of chapter 537 of the Laws of 1893, made by chapter 567 of the Laws of 1891, a new statute was substantially enacted, and that proceedings which had been taken prior to the passage of the act of 1891 and not completed, in order to be made the foundation of a claim against the city, must be shown to have complied with the provisions of the act of 1891. It seems also, in view of the nature of the acts, to have been necessary for the mayor to reappoint commissioners, for the reason that by the provisions of the law of 1891 additional powers were conferred upon the commissioners appointed under the act of 1893, to those which they had originally enjoyed. The act of 1891 enjoined additional duties upon the commissioners looking to the assessment of future damages, which was not the province of the commissioners appointed under 'the act of 1893. Hence, the act of 1891 provided that commissioners should be appointed under that act for that purpose as well as the other. This was the construction placed upon the act by the mayor in making the appointment which he did under the act of 1891. But unfortunately in the making of this appointment he did not follow the act of 1891, but followed the language of the previous appointment; and, hence, he did not appoint the commissioners to do the things for which he was authorized to appoint them under the act of 1891.

This would seem to make his appointment fatally defective. The authority of the commissioners to act was necessarily derived from the appointment of the mayor ; and the attempted appointment of commissioners under the act of 1891 seems to fail of effect because of the defective manner of its execution. This is an objection which seems to lie at the root of the whole of these proceedings. It is more than a mere clerical omission; and the additional powers cannot be attached to the appointment because the mayor had the authority to make an appointment of commissioners to do additional things. He appointed commissioners to ascertain the amount of damages to lands and buildings suffered by reason of changes of grade of streets and avenues pursuant to chapter 721 of the Laws ©f 1887. He did not appoint new commissioners to assess any damages which might be sustained in the future by reason of such change; neither did he appoint new commissioners to ascertain any damages which might be sustained by reason of changes of grade arising under other acts.

It seems, therefore, that there lias been a defective exercise of the power of appointment upon the part of the mayor, and that under such defective exercise of that power, these commissioners had conferred upon them no authority to do the additional things which were provided for by the act of 1891. It is contemjilated in those acts that these commissioners shall take an oath to faithfully perform their duties as such. It is clear that such oath could not cover acts which they had not been commissioned to perform.

These considerations seem to show that this irregularity of proceeding is of substance, and cannot be treated or overlooked as trivial. It appears from the award of tire commissioners themselves that they have given prospective damages, which certainly was not embraced within the terms of their appointment. We see no method in which this difficulty can be met except by commencing anew under the act of 1894, or by some legislative action such as was resorted to for the purpose of curing the defects alleged to exist in the legislation of 1893.

The order appealed from should be reversed, with costs, and the motion denied, with costs.

Parker, J., concurred.

O’Brien, J.

(dissenting):

I do not concur in the conclusion readied by the presiding justice as to the effect of the recital in the appointment of the commissioners. The facts bearing upon such appointment are stated in the affidavit of the comptroller and are as follows: “ That subsequently to the passage of the said act, on or about the 8th day of June, 1894, James A. Deering, one of the commissioners appointed under the provisions of chapter 537 of the Laws of 1893, having theretofore, and on November 10, 1893, resigned as one of said commissioners, and Daniel P. Hays having been appointed a commissioner in his place and stead, under the provisions of said chapter 537 of the Laws of 1893, and having duly qualified on or about the 15th day of November, 1893, Thomas E. Gilroy, then mayor of the city of New York, under the provisions of chapter 567 of the Laws of 1894, on 8th June, 1894, appointed Daniel Lord, James M. Varnum and Daniel P. Hays as commissioners ‘to ascertain and pay the amount of damages to lands and buildings suffered by reason of changes of grades of streets and avenues made pursuant to chapter 721 of the Laws of 1887,’ and the said Daniel Lord, James M. Varnum and Daniel P. Hays, and each of them, accepted the said appointment and duly qualified as commissioners under chapter 567 of the Laws of 1894, and thereafter entered upon the discharge of their duties as said commissioners.”

Here we have the statement that they “ duly qualified as commissioners ” under the Laws of 1894, and this is supplemented by evideuce in tlie record that in tbe discharge of their duty they conformed to such law. It is true that in the appointment of the commissioners a special reference is made to the law of 1887, and from this that the .presiding justice reached the conclusion that the powers of the commissioners were limited by such act. In view of the other facts appearing, this seems to me to be too narrow a construction to give to the language used in the appointment. This at best is but a mere recital, and should not be regarded as a limitation upon the powers of the commissioners. It was a very natural recital, for, as appears, such act of 1887 (Ohap. 721) was the original act which provided for ascertaining and paying the amount of damages for lands and buildings suffered by reason of the change of grade, which, as amended by the Laws of 1893 (Chap. 537), and as finally amended by the Laws of 1894 (Chap. 567), comprises the legislation on the subject, and a mere reference to the original act, therefore, should not be held restrictive upon the powers and duties of the commissioners, who, as stated, “ duly qualified ” and entered upon the discharge of their duties as commissioners under the Laws of 1894.

Order reversed, with costs, and motion denied, with costs.


author: Van Brunt, P. J.:

text:
    James McGrath, as Administrator, etc., of Thomas McGrath, Deceased, Respondent, v. Brooklyn, Queens County and Suburban Railroad Company, Appellant.

      Negligence — injury while riding on the step of a motor cal' — contributory negligence as a matter of lam — charge of* the trial court.

    In an action brought to recover damages resulting from the death of the plaintiff’s intestate, by reason of the alleged negligence of the defendant, it cannot be said that the deceased was guilty of contributory negligence as a matter of law in riding upon the step of a motor car on a surface railroad, where the evidence in the case shows that the car was crowded to overflowing; that the passengers were compelled to hang on wherever they could, and that they were permitted to do so, and, in fact, invited to do so by the persons in charge of the car, who permitted them to enter it in its crowded condition.
    Upon the trial of an action brought to recover the damages occasioned by the death of the plaintiff’s intestate, by reason of the alleged negligence of the defendant, the court charged, at the request of tlie plaintiff’s counsel, that “a conductor permitting a passenger on a crowded car, where there are no seats or platform room, to stand on the footrail of the car, is an implied assurance that the speed will not he accelerated in a way to endanger the passenger while he-stands there.” The defendant’s counsel stated: “I desire to except, on the ground that the facts of the request are not applicable to this case, it being-shown that this man was within the body of the car before the accident.”

      Held, that, as the jury had the right to find from the evidence the contrary of the assumption upon which the exception was based, no error was committed.
    Immediately thereafter the court expressly charged the proposition, ‘ ‘ that if a passenger enters the car and obtains a place of safety, and voluntarily leaves the place of safety and places himself in a place of danger, and if, through putting himself in that place of danger, injury is sustained,” then no recovery could bo had.

      Held, that no error was committed.
    Appeal by tbe defendant, tbe Brooklyn, Queens County and Suburban Railroad Company, from a judgment, of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of tbe county of New York on tbe 2d day of April, 1895, upon tbe verdict of a jury rendered after a trial at tbe New York Circuit, and also from an order entered in said clerk’s office on tbe 15tb day of April, 1895, denying the defendant’s motion for a new trial made upon tbe minutes.

      J. C. Bergen, for tbe appellant.

      J. McG. Goodale, for tbe respondent.
   Van Brunt, P. J.:

This action was brought by tbe administrator to recover damages for the negligent killing of bis son, the intestate, while the latter was a passenger upon a train of trolley cars owned and operated by tbe defendant. Tbe evidence in tbe case showed that on tbe 1st of July, 1894, tbe deceased, together with a large party of friends and companions, boarded this train at a station known as 'W’oodliaven. The cars were very much crowded by tbe accession of tbe party which accompanied tbe deceased, and there were nothing like enough seats to accommodate all the passengers, and it would appear that all tbe standing places were also occupied, many of tbe passengers being- obliged to stand on tbe footrails, a few of them only being fortunate enough to get into tbe aisles.

It is claimed upon tbe part of tbe appellant that tbe deceased, upon boarding tbe train, entered into the rear car, and that be was in the middle of the body of the car, and that after the train had started he moved from his position and passed to the front or motor car. And it is urged that he was guilty of contributory negligence in leaving a position of safety in the second car and occupying a place of danger in the first car. If the evidence supported the contention of the appellant, so that the jury were compelled to find the facts as now claimed by them, a grave question might be presented as to whether the court would not have been bound to dismiss the complaint upon the ground of contributory negligence. But the difficulty with the appellant’s position is that there was ample evidence from which the jury might find that the deceased never entered the rear car, but boarded the first car and was transported— as far as he was transported — upon this car.

It is true that one of the witnesses, Hannah Fuchs, testified to seeing him upon the second car amongst the crowd, and that subsequently she saw him on the front car standing on the step of the car, the car going fast and rocking, and she shouted to him, “ Look out, you will fall,” and that he said, “ I am all right,” and almost immediately he fell back and was killed. But the evidence of this witness in regard to the fact of having seen the plaintiff in this second car is.not entirely satisfactory, because upon examination it will be observed that she took but little notice of the deceased, and that she did not see him leave the second car and go to the first car, or anything of that kind.

It is also claimed on the part of the appellant that the witness Klein testified that the deceased boarded the second car. An examination of Klein’s testimony, however, shows exactly the contrary. It is true that he says, I seen him board the second car.” But he qualified that immediately after, when he was asked, “Was he on the platform of the car, or on the step?” by saying that he saw him on the step, that he heard him speak to the young-men and girls to hurry up and not keep the car waiting, and the witness refused'to testify that he saw him upon the platform. He further testified that he and the deceased boarded the car together, 'Klein going through the car to take his seat. Klein boarded the first car. From this evidence it is ajiparent that the jury had the right to come to the conclusion that -the deceased never boarded the second car, but that when the car started he was riding on the step of the first car, the car being so crowded that it was impossible to accommodate all the passengers which had been taken.

Under these circumstances it does not appear that there was contributory negligence as matter of law, the jury not being required to find, as is claimed on the part of the appellant, that the deceased left a position of safety and voluntarily got upon the step of the front car, from which he fell, thus putting himself into a position of danger.

Neither can it be held, as matter of law, under the evidence in this case, that it was contributory negligence to ride upon the step of the car. The evidence is that the cars were crowded to overflowing; that these passengers wére compelled to hang on wherever they could, and that they were permitted to do so, and in fact invited to do so by the persons in charge of these cars permitting them to enter the cars in their crowded condition. It is true that the witness Fuchs swears that she warned the deceased, but her action appears to have been occasioned by the high rate of speed at which the cars were running and the jolting and jerking which such high rate of speed caused.

Another question which is suggested is, that there was no evidence of negligence in the management of the cars by the defendant’s employee; that the evidence in regard to speed is entirely conjectural and is not sufficient to support a finding of negligence. All evidence of this character must necessarily be examined with care in order to determine as to what its foundation is. Questions of time and questions of speed are matters of such a character that evidence in respect to them has very little reliability. But the pliysi-. cal effects of the running of this train are established by several witnesses. People are shaken around or shaken off their'seat either by the speed of the car or the roughness of the road, and that in a manner which certainly is not consistent with prudent maintenance and skillful management. The jury had a right to find that this violent and unequal motion was the cause of the deceased being-shaken off and of his falling between the cars.

It is urged that the refusal of the court to charge that “ the fact that he (deceased) was riding upon the step instead of within the car or upon the platform of the car is negligence p&r se, which bars his recovery,” was error.

Upon an examination of the record it will be seen that this request to charge was coupled with other propositions, the whole request being:

“I ask your Honor to charge that if plaintiff’s injury arose not from the fact of his jumping off the car, but was the result of an involuntary act, being simply falling from the step running alongside of the car, the fact that he was riding upon the step instead of within the car or upon the platform of the car, is negligence per se, which bars his recovery.”

It is clear that the defendant was not entitled to these propositions. Under the circumstances of the case the jury had a right to find that the deceased, in riding upon the step of the car, was not necessarily negligent. In fact the court charged the jury that it was not for the court to say arbitrarily that it was negligence in and of itself, as called for by the proposition which it was asked to charge; and it instructed the jury to take that fact into consideration, and if they thought that under all the circumstances of the case, as laid before them by the witnesses, it was negligent for the deceased to stand where he stood, and in consequence of that negligence he was injured, they should render a verdict for the defendant.

This was submitting to the jury all that could be required. The evidence in the case justified the jury in finding that in consequence of' the crowded condition of these cars the passengers were compelled to ride upon the steps, and that they had been accepted as passengers in such a condition of the cars, and that notwithstanding the dangerous position in which these passengers were undoubtedly placed, the cars were run at a high rate of speed and the deceased was thereby shaken off.

Exception is also taken to the following charge of the court. The plaintiff’s counsel asked the court to charge as follows : “ I ask your honor to charge that a conductor permitting a passenger on a crowded car, where there are no seats or platform room, to stand on the feotrail of the car, is an implied assurance that the speed will not be accelerated in a way to endanger the passenger while he stands there.” This the court charged. The appellant’s counsel stated: I desire to except, on the ground that the facts of the request are not applicable to this case, it being shown that this man was within the body of the car before the accident.”

Tlius the exception is based upon an assumption, the contrary of which the jury had a right to find. Immediately thereafter the court expressly charged the proposition' “ that if a passenger enters the car and obtains a place of safety, and voluntarily leaves the place of safety and places himself in a place of danger, and if, through putting himself in that place of danger injury is sustained,” then no recovery could be had.

It will thus be seen upon an examination of the whole case that the rights of the appellant were protected by the learned judge in his charge, and the employees of the appellant were held to no stricter accountability than the law requires.

There are other exceptions to the charge, but it is not necessary to notice them. Upon the whole case, we are of the opinion that no error was committed which calls for a reversal of the judgment.

The judgment and order appealed from should, therefore, be affirmed, with costs.

O’Brien and Follett, JJ., concurred.

Judgment and order affirmed, with costs.


text:
    John Francis Maher and Another, Respondents, v. Della Garry and Others, Appellants.

      Allegation of an oral modification of a written contract — failure to deny it— validity of such modification not determined on a motion.

    Where the complaint in an action alleges the oral modification of a written contract upon which the action is based, the question whether the oral modification can be proved by the testimony of witnesses presentwhen the modification was made will not arise, unless such allegation is denied in the answer.
    The question whether the oral modification of a written contract was valid, where it lies at the foundation of an action, will not be determined on a motion unless the question is so clear as to admit of little doubt.
    Appeal by the defendants, Della Garry and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of May, 1895, continuing an injunction order made on the 20th day of April, 1895, during the pendency of the action.

      Samuel Untermyer, for the appellants.

      Frederick K Kellogg, for the respondents.
   Per Curiam :

It is clear that in case the written contract under seal, entered into May 14, 1892, between the defendants’ testator and the plaintiffs, has not been modified, this action cannot be maintained.

It is alleged in the complaint: “ That the arrangement set forth in the said contract was first suggested by the said Thomas Garry and was made and entered into at his request; that after the said contract was drafted and presented to those plaintiffs for signature, said plaintiffs, in the presence of said Thomas Garry and other witnesses, objected to signing the said contract in its then existing form, their objection being specifically based upon the paragraphs marked ‘ Eleventh ’ and ‘ Twenty-third ; ’ that the said • plaintiffs and each of them positively refused to become parties to any agreement on such conditions; that thereupon said Thomas Garry, after consideration of the matter, stated to the plaintiffs, in the presence of witnesses, that if the plaintiffs would sign the contract in the form as drawn, he would have a codicil attached to his will, providing that his executors should have no right or power to exercise or avail themselves of any power set forth in the agreement, or any part thereof, to terminate, rescind, annul or alter said contract as long as the plaintiffs should comply with the duties imposed upon them thereby; that thereupon the said plaintiffs.consented to and did sign the said contract, stating distinctly to the said Thomas Garry, in the presence of witnesses, that they did so solely in reliance upon his said promise and on the condition that he should fully carry out the same ; that in signing said contract said plaintiffs and each of them did so rely.”

An answer has not been served; the equities of the complaint are not denied; neither is this allegation controverted by affidavits ; it is supported in behalf of plaintiffs by an affidavit of one of the executors and by the draftsman of the contract, who testify that they were present and heard the oral agreement made, which is averred in the paragraph of the complaint above quoted.

Unless this allegation is denied in the answer, the question whether the oral modification can be proved by the testimony of witnesses who were present when made, will not arise. The question will be, is such an oral modification valid % This question lies at the foundation of the case, and ought not to be determined on a motion, unless so clear as to admit of little doubt. If the allegations contained in the paragraph quoted are not to be denied, the defendants can raise the question of their sufficiency by demurrer. The injunction does not change, but preserves, the relation of the parties in their business as established by the contract under which it has been carried on for the past three years. Should the plaintiffs establish the right to liave the modified agreement specifically performed, and in the meantime should the business be broken up and destroyed, it would be well nigh impossible to compensate them in damages.

Under the circumstances, we think the order should be affirmed, with ten dollars costs and disbursements.

Present — Van Brunt, P. J., O’Brien and Follett, JJ.

Order affirmed, with ten dollars costs and disbursements.


text:
    Louisa Becker, Individually and as Executrix and Trustee, etc., of Daniel Becker, Deceased, and Others, Respondents, v. The Manhattan Railway Company and Another, Appellants.

      Testimony of a party, rendered unreliable by want of memory as 'to other facts.

    The testimony of a party to an action, upon which the judgment rendered therein in her -favor was largely based, is insufficient to sustain the judgment if it is rendered unreliable by her incorrect testimony in one instance, and her failure to remember certain facts and circumstances as likely to be in her memory as those facts upon which the case depended, and in respect to which latter she testified with great particularity.
    Appeal by the defendants, The Manhattan Railway Company and another, from a judgment of the Supreme Court in favor of the plain tiff, entered in the office of the clerk of the county of New York on the 30th day of November, 1894, upon the decision of the court rendered after a trial at the New York Special Term, awarding tbe plaintiffs damages, and enjoining and restraining the defendants from maintaining or operating their elevated railway structure in front of tlie plaintiffs’ premises unless within a specified time the said defendants acquire by condemnation proceedings the title to the easements belonging to the plaintiffs.

      J. C. Bushby, for the appellants.

      J. A. Week.es, Jr., for the respondents.
   Per Curiam :

The judgment which was awarded in this case depends largely upon the testimony of the plaintiff. An examination of the evidence given by her shows that she was able to tell the story which she had learned ; but when taken from that which she had evidently committed to memory, she was utterly unable to testify as to circumstances which were as likely to be in her memory as those in respect to which she had given evidence. She testified with great distinctness as to the rents received in 1870, but was unable to remember the names of any of the tenants at other times or to give the rents of other years with the certainty of those of 1870. When she did attempt to do so, in one instance at least, she was shown by the evidence of the tenant not to have testified correctly. This obliviousness upon tlie part of the witness in reference to other periods of time in which rents were collected necessarily rendered all her testimony unreliable.

We think, therefore, that no basis was laid for the judgment which was given, and the same should be reversed and a new trial ordered, with costs to the appellants to abide the event.

Present — Van Brunt, P. J., Follett and Parker, JJ.

Judgment reversed, new trial ordered, costs to appellants to abide event.


author: O’Brien, J.:

text:
    Marshall S. Driggs, Appellant, v. Robert J. Dean and Another, Respondents.

      Warehouse receipts — pledged as collateral security — liability of the pledgee for subseseqxient storage.

    In an action brought by a public warehouseman to recover storage on a number of barrels of cement, it appeared that in March, 1885, one Max Yon Angern, being the owner of the cement, placed the same in the plaintiff’s warehouse upon storage, agreeing to pay therefor a certain sum per barrel per month, and took two warehouse receipts therefor. On these receipts were indorsed the conditions upon which the goods were held on storage, in accordance with the provisions of chapter 326 of the Laws of 1858, in order that the receipts might be transferred by indorsement thereon, and that any person to whom they might be so transferred should be deemed and taken to be the owner of the goods therein specified so far as to give validity to any pledge, lien or transfer made or credited.
    In July, 1885,. Yon Angern made his promissory noté payable to a bank, and pledged as collateral security for the payment thereof the two warehouse receipts. The note was guaranteed by the defendants. Yon Angern failed to pay the note upon maturity, and the bank called upon the defendants to pay the same, which they did, the bank delivering to the defendants the promissory note and the two warehouse receipts.
    On October 24, 1885, one of the defendants went to the warehouse of the plaintiff with tiie receipts, showed the plaintiff the receipts, and told him that the defendants had loaned money on the goods to Yon Angern, who had defaulted, and that they had been obliged to take the goods. Such defendant, upon being asked by plaintiff’s bookkeeper whether he would have a bill for the storage, replied that he would, which bill was accordingly made out and delivered to the defendant. This bill was for accrued storage up to the 24th of October, 1885. Between October 24,1885, and July 6, 1891, the cement remained in the warehouse of the plaintiff, during which time the defendants made and delivered to various persons orders for the inspection and examination of the goods with a view to effecting a sale thereof. The plaintiff accepted the orders, and in pursuance thereof exhibited the goods to the parties presenting them. The goods were sold in July, 1891, and were not worth the amount of the note for which the defendants held the warehouse receipts as collateral.
    The plaintiff sought to recover for storing the cement from October 24, 1885, until the cement was sold.

      Held, that upon the transfer and delivery of the warehouse receipts to the defendants, under the terms of the receipts and the conditions of storage, they became the owners of the property covered thereby and entitled to the possession thereof;
    That the plaintiff became their bailee and was liable to them for the proper care of the property, and thereafter bound to hold it subject to their order and demand;

      That as the defendants took possession of the cement on October 24, 1885, at which time they requested that the bill for past storage should be made out, a contract for subsequent storage was thereby implied, and the plaintiff was entitled to recover.
    Appeal by tlie plaintiff, Marshall S. Driggs, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 6th day of March, 1895, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the New York Circuit, and also from an order entered in said clerk’s office on the 8th day of March, 1895, denying his motion for a new trial made upon the minutes.

      John Berry, for the appellant.

      L. E. Warren, for the respondents.
   O’Brien, J.:

This action was brought to recover storage on 2,463 barrels of cement in the warehouse of the plaintiff, who was a public warehouseman in the city of New York. In March, 1885, one Max Von Angern, being the owner of the cement, placed the same in plaintiff’s warehouse upon storage, agreeing to pay therefor at tlie rate of four cents a 'barrel per month, and took two warehouse receipts therefor, one for 1,500 barrels and one for 963 barrels. On these receipts were indorsed conditions upon which the goods were held on storage in accordance with the provisions of chapter 326 of the Laws of 1858, that the receipts might be transferred by indorsement thereof, and that any person to whom they might be so transferred should be deemed and taken to be the owner of the goods therein specified, so far as. to give-validity to any pledge, lienor transfer made or created. Thereafter, and in July, 1885, Von Angern made his promissory note for $3,500 payable to the Chemical National Bank, and pledged as collateral security for the payment of said note the two warehouse receipts. The note was guaranteed by the defendants. When it became due Von Angern failed to pay it and the bank called upon defendants to pay, which they did. Whereupon the Chemical Bank delivered to defendants the ’ promissory note and the two warehouse receipts which were then held by said bank as collateral for tlie payment of the note. On October 24,1885, tlie defendant Wills wrent to the warehouse of the plaintiff with the receipts, saw the plaintiff, showed him the receipts, told him the defendants had loaned money on the goods to Yon Angern who had defaulted, and that defendants had been obliged to take'the goods. Wills was asked by plaintiff’s bookkeeper whether he should have the bills for storage on the goods made out. Wills told him to do so, and they were accordingly made out by the plaintiff and delivered by the bookkeeper to Wills, who took them away with him. These bills were for accrued storage from March 28 to October 24, 1885. They were not paid, and the cement remained in the warehouse from October 24, 1885, until July 6, 1891, during which time defendants made and delivered to various persons their orders upon plaintiff for the inspection and examination of the goods with the object of effecting a sale thereof, which orders plaintiff accepted, and in pursuance thereof exhibited the goods to parties presenting such orders and permitted an examination. The goods when sold in July, 1891, were not worth the amount of the note for which the defendants held the warehouse receipts as collateral.

Upon these facts plaintiff sought to recover for storing the cement from October 24, 1885, until plaintiff sold them on the Oth day of July, 1891; but at the close of plaintiff’s case the defendants moved to dismiss the complaint upon the grounds that no contract, specific or implied, to pay the storage had been shown; that no liability existed on the part of the defendants to pay the storage upon the goods, and that the defendants.were not the owners of the goods, their interest being merely that of owners of the warehouse receipts as collateral security for the payment of the debt. These grounds the trial judge deemed sufficient and granted the motion to dismiss the complaint.

The question presented upon this appeal is, did the plaintiff make a sufficient showing to charge the defendants with liability for the storage between October 24,1885, when the defendant Wills, as narrated, called at the warehouse, and the 6th day of July, 1891, when the goods were sold ? , If, on October 24, 1885, the defendants were the owners of the property and entitled to possession thereof by the transfer and delivery to them of the warehouse receipts, and then asserted such ownership by notifying plaintiff thereof and assuming rights pertaining thereto, it seems reasonably free from doubt, as contended by appellant, that under such circumstances, if the defendants allowed the cement to remain on storage with the plaintiff’s consent, and thereafter made their orders on the plaintiff for the inspection and examination of the same, which were executed by the plaintiff, the plaintiff having thus become a bailee for hire, holding the property for them, subject to their order and liable to them for the proper care and storage thereof, the defendants as bailors became liable tc%ay him for such care and storage. The inferences and assumptions which we have indulged in are, of course, all dependent upon the conclusion to be reached upon the crucial question presented on this appeal as to whether or not when the defendants, by the payment of the note became subrogated to all the rights of the bank, they became the owners of the property covered by the receipts. It is not claimed that the defendants at any time expressly requested the plaintiff to store the goods or promised to pay for the storage, and there is no question but that originally the receipts were transferred to the bank as collateral security for the payment of the note, and that upon its payment by the defendants the latter received a transfer and delivery of the receipts. The liability for the storage, therefore, must be predicated upon the theory that by the transfer and delivery of the receipts defendants became the owners of the property mentioned therein, and that plaintiff became their bailee, liable to them for the proper care of the property, and that through the relation of a bailee and bailor thus created, the former held the property subject to the order and demand of the bailor, and the latter impliedly agreed to pay the storage.

It will thus be seen, as already said, that the real question upon this appeal is, did the defendants, on the transfer and delivery of the warehouse receipts to them, become the owners of the property covered by such receipts % We do not regard this as being any longer an open question. In Oolebrooke on Collateral Securities it is said:

“ Section 413. * * * The transfer for value, as collateral security,.of warehouse receipts, by indorsement and delivery, or by delivery only, where such receipts are made payable to ‘ holder ’ or only upon the return of this receipt,’ vests the legal title and possession of the property in the pledgee and is equivalent to an actual delivery of the property. The warehouseman at once, without notice, becomes the bailee of the lender of money upon the receipt lie has issued. The title to the property passes by such transfer to the pledgee, under the law merchant, independent of any statute. A formal assignment of the document is not required, as the indorsement of itself sufficiently indicates the intention of the pledgor to pass the title and possession.” * * *
Section 414. * * * The pledgee of warehouse receipts, receiving the same, with or without indorsement, as collateral upon a bona fide loan or discount of commercial paper, stands in the same privileged position as a bona fide purchaser for value of like receipts. An indefeasible title to the property represented by the receipts is vested in the bona fide pledgee for value and lie is entitled to its possession. * * * Such innocent pledgee is a bona fide holder for value in the usual course of business and has something more than a mere lien for his advances, taking the title to the property and the right to its actual possession. (Citing Gibson v. Stevens, 8 How. [H. S.] 384.) * * * The pledgee of warehouse receipts is under no obligation to notify the warehouseman of the transfer to him of such receipts as collateral security.”

Among the many authorities in support of the rule laid down in the text the main reliance is placed upon the leading case of Gibson v. Stevens (8 How. [U. S.] 384). In that case McQueen and McKay were the holders of warehouse receipts of certain pork and flour then on storage Gibson advanced money to them and they delivered to him the warehouse receipts as security for the loan.

Taney, Ch. J., delivering the opinion of the court, said: “ What was the legal effect of the indorsement and delivery of the warehouse documents in consideration of the advance of money he then made to McQueen and McKay ? In the opinion of the court it transferred to him the legal title and constructive possession of the property, and the warehouseman from the time of this transfer became liis bailee and held the pork and flour for him. The delivery of the evidences of title and the orders indorsed upon them was equivalent, in the then situation of the property, to the delivery of the property itself. * * * It is hardly necessary to refer to adjudged cases to prove a doctrine so familiar in the courts. *. * * Nor, as respects tlie legal title, can there be any distinction between the advance made by Gibson and the case of an actual purchaser. To the extent of his advances he is a purchaser, and the legal title was conveyed to him to protect his advances. It is not the lien of a factor. * * * In the case before us the title of Gibson is not a mere lien. The legal title, the right of property, passed to him.”

In Hoyt v. Hartford Fire Ins. Co. (26 Hun, 416), which was a decision of this General Term (affd., without opinion, 96 N. Y. 650), the case of Gibson v. Stevens was referred to, cited and followed. And in Niagara County Nat. Bank v. Lord (33 Hun, 561), which was a decision of the General Term in the fifth department, the cases of Gibson v. Stevens and Hoyt v. Hartford Fire Ins. Co. were cited and approved. In addition we have been referred to decisions in many States in which Gibson v. Stevens has been followed ; but without regard to them we think the approval which it has received in this State in the cases cited, one of which has been affirmed by the Court of Appeals, leaves it no longer a debatable question.

"Were it an open question it might be doubted if a mere pledgee of personal property, to whom.the title was transferred as collateral security, thereby became owner to an extent that would render him liable for charges for storage. If, upon acquiring such legal title, the pledgee, with reference to the warehouseman, should exercise such acts of control and ownership over the property as would be inconsistent with any position other than such as would be occupied by the real and absolute owner, then such conduct, coupled with the legal title, would be sufficient to create an obligation to pay the storage. But under such a rule of law, considering the attitude of the defendants here with respect to the" property, in assuming dominion and control and direction of the same, conditions are present which create in the case at bar a liability for the storage. Whatever, therefore, may be the individual views of the members of the court upon the question as to whether a mere pledgee, holding title as collateral security, is liable for storage, there is controlling authority upon the facts here disclosed respecting the conduct of the defendants towards the property which favors the plaintiff’s view, that on the transfer and delivery of the warehouse receipts to the defendants, under the terms of the receipts and the conditions of storage, they became the owners of the property covered by the receijits and entitled to the possession thereof, and the plaintiff became their bailee, liable to them for the proper care of the property and thereafter bound to hold it subject to their order and demand; and when, in recognition of such relation-, the defendants assumed to and did exercise acts of ownership and control they rendered themselves liable for the storage; because such included the reciprocal relations of bailor and bailee, and an implied obligation upon the former, growing out of such relation and conduct, to pay the storage.

We think, therefore, that the learned judge was in error in dismissing the complaint, and the judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

Van Brunt, P. J., Parker, J.:

We concur in the result reached by Ur. Justice O’Brien in his opinion, and in the following propositions which led to it:

First. That the transfer of the warehouse receipts by indorsement and delivery vested in these defendants the legal title and right of possession.

Second. That the defendant took possession of the merchandise pledged on October 24, 1885, at which time he requested that bills for past storage should be made out.

Third. That a contract for subsequent storage was thereby implied.

As the action was brought to recover such storage, it was error to dismiss the complaint.

Judgment reversed, new trial ordered, costs to appellant to abide event.


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    Henry Julian v. Mary A. Woolsey. Rebecca Julian, as Administratrix of Henry Julian, Deceased, Appellant; Sarah J. Wood, Ancillary Executrix of Mary A. Woolsey, Deceased, Respondent.

      A motion to set aside a judgment for non-sermce of the summons is not based on “ vrregula/rity.”

    An objection, that a judgment was obtained in an action in which, the summons was not served upon the defendant, is not an objection taken on the ground of irregularity, but goes to the validity of the judgment, and may be taken ab any time.
    Appeal by Rebecca Julian, as administratrix of Henry Julian, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of December, 1894, confirming the report of a referee, and granting the motion of Sarah J. Wood, ancillary executrix of Mary A. Woolsey, deceased, to vacate and set aside the judgment heretofore granted in the above-entitled action.

      George C. Genet, for the appellant.

      George J. Greenfield, for the respondent.
   O’Brien, J.:

In 1893 a motion' was made to vacate a judgment entered by default on the 24th day of December, 1875, against Mary A. Woolsey, on the ground that the said defendant had never been served with the summons in the action. As aj>pears from> the judgment roll, the affidavit of service was made by one John Casey, who swore that he served the defendant Woolsey with a summons without the complaint on the 29th day of November, 1875. It 'is claimed that at the time of the alleged service Mary A. Woolsey was not at Staten Island, nor within this State, but was at the towA of North East, Pennsylvania; and this claim is supported by sev - eral witnesses, the credibility of whose testimony is only affected by the circumstance that they are related to or connected in some way with Sarah J. Wood, who upon the death of Mary A. Woolsey became her executrix and beneficiary, and who made the motion tc vacate the judgment. The original plaintiff and defendant, as well. as the plaintiffs attorney, are deceased, and the contest is now between the personal representatives of the two former. The plaintiff died October 8,1893 ; the defendant died in the month of March, 1891. It was shown by the deposition of Casey that he had never, before or since the alleged service, seen or known the defendant Woolsey, and that she had not been introduced or identified to him by any person.

After the entry of judgment no execution was issued, or, so far as appears, notice given to Mrs. Woolsey; in fact, no steps whatever appear to have been taken to collect the judgment from 1875 to 1891, a period of over sixteen years, although during all that time Mrs. Woolsey resided on Staten Island and had means out of which the judgment could have been collected. It is claimed that in the fall of 1889, fourteen years after the judgment was obtained, plaintiff put the matter in the hands of his lawyer, and the latter states that in 1891 he attempted to obtain leave to issue execution, but was unable to serve Mrs. Woolsey owing to her absence from Staten Island. It does not appear that Mrs. Woolsey ever had any knowledge of the existence of the judgment or notice of the proceeding to obtain leave to issue execution.

Upon turning to the complaint annexed to the judgment roll we find that the claims which are the basis of the judgment were, Jirsi, mutual dealings had between the parties prior to January 1, 1870, and an accounting on or about that date between them, upon which there was found to be due the plaintiff a balance of $471.07; and, second, that prior to June 1, 1870, the defendant became indebted upon an account for horses and for cash advances in the sum of $193.14. It will thus be seen that as to the larger part of this claim five years and eleven months had run, within less than a month of the time when it would have been outlawed unless sued upon. As to these accounts between the parties, no dates or items are given, and it is conceded by plaintiff that the summons was served without the complaint. And in connection with the doubt that has beecreated as to the validity of any claim in favor of Henry Julian, it is to be noticed that while he was still alive, and after this motion was made, Mrs. Wood, the executrix of Mrs. Woolsey, made a pointed allusion to the absence of any specifications with respect to this claim in her affidavit, which reads as follows : “ I call attention' to the fact that Mr. Julian, in his affidavit, fails to state what were the dealings and transactions between himself and Mrs. Woolsey which resulted in the judgment, nor does the complaint in this action give any more satisfactory statement.” Notwithstanding the challenge thus made to the good faith and validity of this claim, neither in the answering affidavits nor in the proceedings before the referee was any information given.

The failure to meet the charge thus pointedly made, that the claim itself was without foundation, naturally creates suspicion, which, when coupled with the failure for years to demand payment from Mrs. WAolsey, or to notify her of the entry of judgment, or to do anything towards enforcing it, properly throws upon the appellant the necessity of supporting the validity of the judgment. As against the assault thus made the appellant confidently relies ■upon the presumption which arises in favor of the judgment itself, and upon evidence which was introduced tending to show that the testimony given by certain of the respondent’s witnesses was erroneous.

There is force in the suggestion of appellant, that a judgment which appears to be valid is presumptively so until successfully assailed ; and there are provisions of the Code which prevent' advantage being taken of irregularities in judgments after a certain period. The claim here made, however, is not that the judgment is irregular, but that it is void because the court never obtained jurisdiction by service on the defendant. Such an objection is not to an irregularity, but goes to the validity of the judgment, and may be taken at any time. And where, as' here, the judgment was so vigorously assailed, and the service which was the basis of the judgment was supported only by the affidavit and deposition of a man who had never seen, did not know, and had never been introduced to the defendant prior to the alleged service, more is required than a reliance upon the fact that the judgment appears to have been properly entered. In other words, upon the showing made by the moving party to vacate the judgment, and before the referee, the question of whether the defendant was served was fairly open as a question of fact, and, after an examination of the record and the conclusions of the referee and the learned judge, we see no reason to' differ with them.

In discussing tlie merits of tlie original claim, and the failure to furnish any information in reference thereto, we do not hold that this is in any way controlling or important upon the crucial question as to whether the summons was actually served. But where, as here, the claim is made that the whole course of the plaintiff, resulting in the entry of the judgment against Mrs. Woolsey, was fraudulent, it is a circumstance to be considered in connection with the judgment as to whether or not the latter had for its basis any real and. just indebtedness.

Our conclusion is that the order should be affirmed, with ten dol-' lars costs and disbursements.

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

Order affirmed, with ten dollars costs and disbursements.