author: Daniels, J.: Daniels, J.:

text:
    In the Matter of the Application of the BOARD OF FOREIGN MISSIONS OF THE PRESBYTERIAN CHURCH IN THE UNITED STATES, in the Estate of HENRIETTA A. LENOX, Deceased. In the Matter of the Application of the BOARD OF HOME MISSIONS OF THE PRESBYTERIAN CHURCH IN THE UNITED STATES, in the Estate of HENRIETTA, A. LENOX, Deceased. THE PEOPLE OF THE STATE OF NEW YORK and THE COMPTROLLER OF THE CITY OF NEW YORK, Appellants, v. ALEXANDER MAITLAND and Others, as Executors and Others, Respondents.

      The. Board of Foreign Missions and Bowd of Home Missions of the Presbyterian Church we not exempt from the collateral inheritance tax.

    The Board of Foreign Missions of the Presbyterian Church, created by chapter 187 of the Laws of 1862, is liable, under chapter 483 of the Laws of 1885, to the collateral inheritance tax upon a legacy bequeathed to it, as such board is not exempt from taxation by the act under which it is created, nor does it fall within any of the general classes of exemption fiom taxation specified in the general statutes of the State.
    The Board of Home Missions of the Presbyterian Church created by chapter 287 of the Laws of 1872, is also liable to such collateral inheritance tax for the same reason.
    Appeal by tbe People of the State of New York and the Comptroller of the City and- County of New York from an order of the Surrogate of the county of New York, made and entered in the above-entitled proceeding on the 17th day of October, 1887, in the office of said surrogate, directing the executors under the will of Henrietta A. Lenox, deceased, to pay over to the Board of Foreign Missions of the Presbyterian Church the sum of $2,500.
    Also an appeal by the same parties from a like order' of the said surrogate, entered on the 17th day of October, 1887,'iii the office of said surrogate, directing the executors under the will of Henrietta ■A. Lenox, deceased, to pay over to the Board'of Home Missions of the Presbyterian Church the sum of $2,500.
    In the Matter of the Board of Foreign Missions:'

      JBenj. F. Dos Passos, for the People, appellant.

      Hamilton Odell, for the executors and others, respondents.
   Daniels, J.:

The'testatrix by her will, which has been duly admitted to probate, bequeathed the sum of $50,000 to the Board of Foreign Missions, the petitioner in this proceeding. The sum of $17,500 of the legacy has been paid to the board, but the residue was withheld under the authority 'of' chapter 483 of the Laws óf 1885, for the payment of the collateral inheritance tax. The board considered that to be unauthorized and petitioned the surrogate to direct the payment to it of this residue. And on the. hearing of the petition an order was made directing that payment. And it is from that order that the appeal has been brought. And it rests wholly upon the question whether the legacy was liable to the payment of this tax.

The first section of the act has exempted certain devises and bequests from the payment of the collateral inheritance tax, made payable by its provisions. Among these are, “ the societies, corporatiens and institutions now exempted by law from taxation.” And if the petitioner was not exempt from taxation, then its legacy was liable to pay this tax, and the order of the surrogate directing the payment of the amount to the board was made without authority.

The board was incorporated by chapter 187 of the Laws of 1862. But this act did not exempt it from taxation. And its claim to such exemption must depend upen the general statutes of the State. The exemptions which have been thereby declared are contained in volume 1 of the Revised Statutes ([6th ed.], 932-934, §§ 5-16). Those relating to colleges, seminaries of learning and religious organizations are contained in subdivision 3 of section 5, as that has been amended by chapter 397 of the Laws of 1883. But this subdivision, as it has been amended, does not include the case of the petitioner. It is expressly restricted to the creation of other and different exemptions, nor is the petitioner exempt from taxation under subdivision 7 of that section, exempting corporations not made liable to taxation on their capital by the fourth title of the same chapter. That subdivision was considered and construed in the case of Catlin v. Trustees, etc. (113 N. Y., 133). And the construction then given to it limited it to certain business and stock corporations, excluding all those of the description of the petitioner. Under neither of these provisions has this board been exempted from taxation. And no other has been made by which exemption from taxation has been secured to it. Consequently it must follow from the general provision, declaring all lands and personal estate liable to taxation, which has not been thereafter exempted (1 R. S. [6th ed.], 931, § 1), that this legacy was liable to the collateral tax mentioned in the first section of the act of 1885.

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

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

Order reversed, with ten dollars costs and disbursements.

In the Matter of the Board of Home Missions.

Daniels, J.:

The Board of Home Missions of the'Presbyterians Church in the United States was created a corporation by chapter 287 of the Laws of 1872. But the act did not exempt it -from liability to taxation under the general laws of the State.

A legacy of $50,000 was given to this board by the will of the testatrix Henrietta A. Lenox. . And the executors paid the sum of $47,500 of the amount to the board, reserving the residue for the collateral inheritance tax. The board considered that to be unauthorized and petitioned the surrogate for an order directing the payment to it of this reserved amount. And the surrogate made the order from which the appeal has been brought.

This board has not been exempted from taxation by any law of the State. In that respect it stands precisely as the Board of Foreign Missions does, whose case has been already examined. And for the reasons then given, the order made on the application of this board should be reversed, with ten dollars costs and the disbursements.'

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

Order reversed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Van Brunt, P. J.:

license: Public Domain

text:
    CELIA R. SIMMONS, Respondent, v. EDWARD C. HAZARD and Another, Appellants.

      Affidavit for the examination of a party before trial—when the plaintiff must make it himself.

    The affidavit upon which an application is made for the examination of parties defendant before trial should be verified by the plaintiff, as the plaintiff is the only person who can state, as to his own knowledge or intention, in the material allegations thereof.
    The affidavit, if verified by the attorney for the plaintiff without any sufficient, reason being given therefor, will not justify the granting of an order for such examination.
    It is not a sufficient reason that the plaintiff is not within the county in which his attorney resides.
    Appeal by the defendants, Edward C. Hazard and Lewis A. Osborn, from an order made and entered at the New York Special Term on the 10th day of April, 1890, denying the motion of said defendants to vacate an order for their examination as adverse parties, and for tlie taking of their depositions pursuant to section 873 of the Code of Civil Procedure.
    The affidavit, upon which the application for an order for the examination of the defendants was based, was made by one of the attorneys for the plaintiff in the action, who stated therein that “ this affidavit is made by deponent for the reasons stated in the verification of the complaint herein.” The ground stated in the verification of the complaint was as follows: “ That the grounds of deponent’s belief are the policies of insurance referred to in said complaint and receipts for money paid thereunder by the insured, all of which are in deponent’s possession, the books of the said company and letters and communications received by him from the plaintiff. This affidavit is made by deponent for the reason that plaintiff in this action is not within the county where deponent resides.”

      O. O. Leeds and Henry Bacon, for the appellants.

      Morse c& Haynes, for the respondent.
   Van Brunt, P. J.:

The order for the examination of the defendants Hazard and Osborn should have been vacated, if for no other reason, because the affidavit upon which it was granted was verified by the attorney for the plaintiff without any sufficient reason being given therefor. The reasons given for the verification by the attorney are stated to be those stated in the verification of the complaint, and we find nothing stated in the verification of the complaint as to the affidavit. If the attorney intended to state as a reason the one because of which he states that the complaint was verified by him, it was entirely insufficient. These affidavits should be made by the party, he or she being the only one who can asseverate as of his or her own knowledge or intention; material allegations.

There is nothing in the affidavit under consideration to show that the attorney had any peculiar knowledge as to any of the facts necessary to be established; and as to those as to which he swears he has no knowledge, it may well be that the plaintiff was fully informed.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the order for examination vacated, with leave to the plaintiff, upon payment of these costs and ten dollars costs of the motion below, to apply upon additional papers for a new order.

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

Order reversed, with ten dollars costs and disbursements, and the order for examination vacated, with leave to the plaintiff, upon payment of these costs and ten dollars costs of the motion below, to apply upon.additional papers for a new order.


author: Yan Brunt, P. J.:

text:
    ANDREW ROSEBERRY, Respondent, v. KATE M. H. NIXON, Appellant.

      When a case should be submitted to the jury, although the evidence is uncontradicted.

    Although the general rule is that where a witness testifies distinctly and positively to a fact, and is uncontradicted, his testimony should be credited, yet where the witness, called .to prove the defendant’s case, was the husband and agent of the defendant, having an interest in the success of the defense, in fact a party to it, the court is bound, under this condition of the evidence, to submit the case to the jury.
    Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 14th day of January, 1889, after a trial before the court and a jury at the New York circuit, at which a verdict was rendered in favor of the plaintiff for the sum of $300.

      E. Ba/rtletb, for the appellant.

      GornélÁVjS FisTce, for the respondent.
   Yan Brunt, P. J.:

This appellant claims a reversal of this judgment upon two grounds: Eirst, because the court refused to direct a verdict; and, second, because of some remarks which the court made in submitting the case to the jury.

The last objection is clearly untenable, because the judge expressly told the jury to disregard what he had said to counsel, and that which is objected to formed no part of his instructions to the jury.

The court was'right iu refusing a direction. It is, undoubtedly, true that the general rule is that where a witness testifies distinctly and positively to a fact, and is uncontradicted, his testimony should be credited; but this rule is subject to many qualifications. One is, that where a witness may be biased by his interest, the case is one for the jury. (Elwood v. Western Union Telegraph Co., 45 N. Y., 549.)

The same principle has been held in numerous other cases. This interest need not necessarily be pecuniary; it may arise from the relationship of the witness to one of the parties. The only witness to prove the defendant’s case was the husband and agent of the defendant having an interest in the success of the defense, in fact, a party to it. The court was bound, under this condition of the evidence, to submit the question to the jury.

The judgment appealed from should be affirmed, with costs.

Brady and Daniels, JJ., concurred.

Judgment affirmed, with costs.


author: Daniels, J.:

text:
    ANDREW LANGDON, SUMNER W. WHITE and CHARLES R. HENEAGE, Composing the Firm of ANDREW LANGDON & CO , Appellants, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Respondent.

      Gommon ca/rner — discrimination in its rates between different customers—a complaint, based upon a penal statute of another state, will not be sustained in the State of New York—common-law right.

    In an action brought against a common carrier by a shipper of merchandise, it was alleged in the complaint that the common carrier had allowed other shippers certain concessions and draw-oacks upon the public rates or prices fixed by it for transportation of merchandise over its lines, which it had failed and refused to allow to the plaintiffs, and that by reason thereof the rates demanded and received by the defendant from the plaintiffs exceeded the rates charged to other parties for like services. It further alleged that these discriminations were made under, controlled by and were in violation of the act of the State of Pennsylvania, through which the defendant’s line extended, declaring “ that any undue or unreasonable discrimination by any railroad company or other common carrier * * * is hereby declared to be unlawful,” and further providing “ nor shall any such railroad company or common carrier make any undue or unreasonable discrimination between individuals or between individuals and transportation, companies in tbe furnishing of facilities for transportation. Any violation of this provision shall make the offending company or common carrier liable to the party injured for damages treble the amount of injury suffered.”
    For a second cause of action the complaint alleged that the defendant furnished cars to other companies suitable for receiving their merchandise, whereas they required the plaintiffs, at their own expense, to furnish lumber for and do the work of fitting up the cars in a suitable condition to carry their merchandise, and thereby discriminated to the extent of one dollar for each car against the plaintiffs, and then repeated the allegations in reference to the statute of the State of Pennsylvania.
    For the third cause of action the complaint alleged-that the defendant discriminated against the plaintiffs, when its cars were insufficient to carry all the merchandise offered, in the apportionment of its cars between the plaintiffs and other shippers, to the plaintiffs’ damage, and again repeated the reference to-the statute of the State of Pennsylvania.
    In each count the complaint claimed to recover, for damages, treble the amount of the injuries suffered by the plaintiffs in the premises.
    Upon the hearing of a demurrer interposed to this complaint on the ground that the complaint did not state facts sufficient to constitute a cause of action, and of the absence of jurisdiction of the courts of the State of New York over the subject-matter of the action:

      Held, that the object of the action being to bring the case within the statute of the State of Pennsylvania, and the remedy afforded by that statute being penal in its nature, that the action thereunder was not .maintainable in the courts of the State of New York, as such courts would not enforce the penal laws of another State.
    That a statute enacted for the purpose of providing a punishment, as distinguished from one affording an indemnity, is penal in its nature.

      Semble, that while an action would lie at common law against a common carrier for withholding from a shipper of merchandise -the equality of right which such shipper is entitled to enjoy with other patrons of the common carrier, yet a complaint which restricts the character of the action to a recovery under a, particular statute of another State, which provides a penalty for such action on the part of the common carrier, will not justify a recovery of the damages to-which the common carrier would be liable at common law for such discrimination between shippers upon its line.
    Appeal by the plaintiffs from an interlocutory judgmént of the Supreme Court sustaining the defendant’s demurrer, interposed to the complaint in the above-entitled action, and entered in the office of the clerk of the county of New York on the 11th day of February, 1890.

      The action was brought to recover damages for the alleged discriminations exercised by the defendant in the transportation of coal over its line, as between the plaintiffs and certain other shippers of coal upon the defendant’s railroad. ' To the complaint in this action the defendant interposed a demurrer on the ground, first, that the court had no jurisdiction of the subject-matter of the action; and, second, that the complaint did not state facts sufficient to constitute a cause of action.

      Benjamim, S. Harmon, for the appellants.

      Benjamin H. Bristoio ánd Charles Steele, 'for the respondent.
   Daniels, J.:

It appears from the complaint that the plaintiffs, as copartners, were miners, shippers and dealers in coal from, the 1st of May, 1885, until September,-18S9, when this action, was commenced. The 'mines from which their coal was obtained were'located in the region of the Carbondale, Lackawanna and Wyoming anthracite coal fields, in the State of Pennsylvania. During the same time it is also alleged the defendant was and- continues to be a corporation created under the laws of the1 State of New York, and engaged as a common carrier in the transportation of passengers and freight over its different lines, and those controlled, by it, including a main line from Jersey City, in the State of New Jersey, to-Buffalo and Dunkirk, in the State of New York, and a branch line from Carbondale, in tlie State of Pennsylvania, to á junction with the main line at Susquehanna in that State. It is also alleged that the plaintiffs’ business in part consisted in shipping- their coal, for sale to the markets north-east and west, reached by the defendant’s lines, and that the defendant’s lines of railway and its connection's supplied the only means of shipment for the plaintiffs’ coal to these markets. It is then stated that the Delaware and Ilúdéon' Canal Company and the Hillside Coal and 'Iron Company, two other"'corporations, were mining coal in the same region during the sanie timé and shipping it to the same general markets and by the same "route as that -employed and those reached by the plaintiffs. Ánd that "the Delaware and Hudson Canal Company mined and carried coal from its -own collieries in the same region, and shipped the same over the lines of road under its ownership and control, and as a common carrier. And that the other company was a nominal organization, devised and maintained by the defendant to provide the means, without detection, of exercising unjust and unlawful discriminations against the plaintiffs and other individual coal operators.

The plaintiffs then aver' that during this period of time they mined, or bought at the mines in the region which has been mentioned, 778,753 tons, more or less, of anthracite coal and shipped it over the lines of the defendant from Carbondale to the markets north, east and west reached by the defendant’s lines and connections previously mentioned. That during these times the' defendant, directly or indirectly, allowed to these other companies certain concessions and draw-backs upon the public rates or prices fixed by it for the transportation of anthracite coal over its lines, which it failed and refused to allow to the plaintiffs, and by reason1 thereof the rates and sums demanded and received by the defendant from the plaintiffs for the transportation of their coal exceeded the rates or sums charged, demanded and received by it from these other companies for the like service from the'same place, upon like conditions, and under similar circumstances, to the amount of sixty cents' a ton upon all the anthracite coal shipped over the defendant’s lines during the time which has been mentioned, whereby they have been injured and damaged in the sum of $506,189.45. It is then added that these discriminations were made under, controlled by, and in violation of an act of the State of Pennsylvania, approved on the 4th of June, 1883, providing as follows:

“ Section 1. That any undue or unreasonable discrimination by any railroad company or other common carrier, or any officer, superintendent, manager or agent thereof, in charges for or in facilities for transportation of freight within this State, or coming from or going to any other State, is hereby declared to be unlawful.
“Section 2. No railroad company or other common carrier engaged in the transportation of property, shall charge, demand or receive from any person, company or corporation, for the transportation of property or for any other service, a greater sum than it shall charge or receive from any other person, company or corporation for a like service, from the same place, upon like conditions and under similar circumstances, and all concessions in rates and drawbacks shall be allowed to all persons, companies or corporations alike, for such transportations and service, upon like conditions, and under similar circumstances and during the same period of time. Nor shall any such railroad company or common carrier make any undue or unreasonable discrimination between individuals or between individuals and transportation companies, in the furnishing of facilities for transportation. Any violation of this provision shall make the offending company or common carrier liable to the party injured for damages treble the amount of injury suffered.”

And concluding that by reason of the premises the defendant had become liable to the plaintiffs for damages treble the amount of the injuries suffered by them, being the sum of $1,518,588.35.

The second cause of action is alleged to have arisen under the same attendant facts by furnishing box and stock cars, for the shipment of the plaintiff’s coal, which they were obliged, at their own expense, to furnish lumber for, and do work in fitting and cleaning and putting them in a suitable condition to carry their coal, while the defendant furnished the ears to these other companies and shippers without expense to' them in the condition suitable for receiving their coal, and thereby discriminated to the extent of one dollar for each ear, amounting to $26,3S1 against the plaintiffs. The allegations before made concerning the statute of Pennsylvania are then repeated, followed, by the averment that the defendant, by this discrimination, had become liable to the plaintiffs for damages treble the amount of the injuries suffered, and being the sum of $79,143.

A third cause of action is presented by a reiteration of the same introductory facts, caused by a violation of the defendant’s duty in the apportionment of its cars between the plaintiffs and these other shippers, when its cars were deficient in number to take all the coal offered for transportation, by themselves and these two other shippers, and'by giving preference to the latter. By this discrimination it is .'alleged that the plaintiffs were obliged to close their mines, or run them on reduced time, thereby increasing the cost of the production of their coal to the extent of twenty cents a ton upon all the anthracite coal mined at the collieries and shipped over the defendant’s lines, and causing injury and damage to the plaintiffs amounting to $155,750.60. The same references are then made to the statute and the same liability for treble damages repeated which are stated at the sum for this cause of $467,251.80.

Like causes of action are in the same form set forth and alleged to have accrued to the plaintiff Andrew Langdon, between the 1st of August, 1883, and the 1st of May, 1885, for which treble damages are stated to have accrued-in his favor, and to have been assigned by him to the plaintiffs. And for all the damages at this rate accruing the judgment has been demanded.

The defendant demurred to this complaint, assigning as causes of demurrer, the failure to state facts presenting a cause of action, and the absence of jurisdiction of this court over the action.

The object of the complaint throughout has been to place the case made within the statute of the State of Pennsylvania. That intention is disclosed by closely following the verbiage of the act, in stating the obligations created and the wrongs suffered from the acts of the defendant by the plaintiffs and their assignor. Important facts, it is true, are alleged, which would form material grounds for an action at common law for withholding from the plaintiffs and the assignor that equality of right which they were entitled to enjoy with these other patrons of the defendant. But these facts have not been set forth to present any cause of action for damages suffered by the violation of that common-law equality, but as essential, and only so far as they are essential, to place the case within the restraints and remedies of this statute. The concessions and rebates which were given to the other shippers and denied to the plaintiffs and the assignor, the obligation to clean the cars and the work of putting them in a suitable condition for the carriage of coal before they could be used, and the omission and failure to allot to them their fair proportion of ears, when the supply was deficient, are all brought forward in such language as to directly apply the statute and to entitle the plaintiffs to its own express measure of relief. Not only that, but the express averment has been made as to each cause of complaint, that it arose from an undue and unreasonable discrimination, made under and controlled by, and in violation of this statute of the State of Pennsylvania; no plainer or more distinct effort could be made than has been in this instance to place the right of recovery wholly within and upon the statute. And that has led to the omission of other and different averments of tacts required for the creation of a right of action at common law.

That causes of action within the statute have been alleged is reasonably free from all ground of controversy. But that alone, while it would maintain the action in the State of Pennsylvania, will not entitle the plaintiffs to succeed in the courts of this State, if the redress prescribed by the statute must be held to be penal in its nature, for the principle seems to be quite well settled that the courts of one State will not enforce the penal laws of another State. Upon the existence of this principle there is no disagreement in the authorities. But numerous disagreements have arisen in the definition of what are to be regarded or held to be penalties.

In this State the liability created by statute for the payment of a debt not owing by the defendant, but for the omission of an act or report required from him as a corporate officer, has uniformly been held to be a penalty. (Merchants’ Bk. v. Bliss, 35 N. Y., 412; Rector, etc., v. Vanderbilt, 98 id., 170; Gadsden v. Woodward, 103 id., 242; Whitaker v. Masterton, 106 id., 277; Roediger v. Simmons, 14 Abb. [N. S.], 256.) And this construction of the law has also been maintained in other States. (Lebanon Bank v. Karmany, 98 Penn., 65, 75; Halsey v. McLean, 12 Allen, 438; Breitung v. Lindauer, 37 Mich., 217; Steam Engine Co. v. Hubbard, 101 U. S., 188.) As to this being the effect of the law, the decided cases are quite uniform. But they are not so much so upon the question of the enforcement of the liability in the courts of another State than that by whose laws it has been created. The propriety of the rule, so far as it has been adopted, has been partially, at «least, conceded, owing to the circumstance that no preceding liability existed in these cases against the defendant for the debt or demand itself. But that which the statute declared was wholly by way of punishment for the violation or neglect of a statutory duty. But while this has been a fundamental fact in that class of cases the same principle has also been applied to the redress of an injury to the rights of the party entitled to recover enhanced damages or amounts on account of a wrong suffered by himself. In Blaine v. Curtis (59 Vt., 120), the principle was applied to an action for the recovery of three times the excess of usurious interest reserved and taken in the State of New Hampshire, in violation of a statute of that State, and which was held incapable of being maintained in tbe State of Yermont. In Newcomb v. Butterfield (8 Johns., 343), it was held to include treble damages for a trespass on public lands; and in Strong v. Stebbins (5 Cow., 210; Warren v. Doolittle, id., 678), to be applicable to a person assisting in the removal of a tenant’s property from demised premises, depriving the landlord of his distress for non-payment of rent. And Cohn v. Neeves (40 Wis., 393) conforms to this rule.

Copious references have been made in the brief of the plaintiffs’ counsel to other cases bearing on this part of the present controversy. And they are far from being uniform in the application of the principle, as will be seen from United States v. Chouteau (102 U. S., 603); Reed v. Northfield (13 Pick., 94); Le Forest v. Tolman (117 Mass., 109); Quimby v. Carter (20 Me., 218); Stockwell v. United States (13 Wall., 531).

In this diversity of judgment the only safe and sure criterion is that of the scope and language of the statute itself. If it has been so enacted as to provide a punishment, as distinguished from an indemnity, then it should certainly be held to impose a penalty. This statute has been so framed as to regulate the entire subject included in the action. It has declared the acts complained of to be unlawful, and the consequences which will follow their performance. It has not provided for any recovery of mere damages for its violation, but a gross sum has been prescribed as the amount of the recovery. It is indivisible, except in ascertaining the amount, which is to be treble the sum of the actual injury or damage. The utmost extent to which the courts have gone in distinguishing between an indemnity and a punishment fails to include this act. Por its object is to prescribe punishment for the violation of its provisions. And it is no less a punishment by reason of the fact that the amounts which are payable are to be recovered by the injured party. By the complaint a case has been stated requiring this punishment to be imposed, and nothing less than that has been demanded by the plaintiffs. It is the penalty, and that alone, which is designed to be enforced. That is the entire theory of the action, and it has in each subdivision of the complaint been prominently set forth as well as in the final demand made. And in this manner the action has been unmistakenly defined as one for the recovery of the penalties created by the statute. To hold it to be otherwise would be a direct departure from the action as it has been framed and presented. And the cases of Conaughty v. Nicholls (42 N. Y., 83) and Williams v. Freeman (12 Civ. Pro., 334) do not sanction such a departure. But those of Kelly v. Downing (42 N. Y., 71), requiring special stress to be placed on the demand for judgment when a demurrer to the complaint has been served, and Arnold v. Angell (62 N. Y., 508), Hollister v. Englehart (11 Hun, 446) and Grover v. Morris (73 N. Y., 473, 479) maintain the principle that the theory of the action, as the pleadings disclose it, should ordinarily be followed. The plaintiffs themselves have given their action the restricted nature which it has as a suit for penalties. As such this court cannot entertain it, for the reason that it is to carry into effect the penal law of another State. ( Wisconsin v. Pelican Ins. Co., 127 U. S., 265; Western T. and Co. v. Kilderhouse, 87 N. Y., 435.) Indeed, this proposition has been practically conceded by the plaintiffs. That they have been seriously injured by the discriminations of the defendant, and are entitled to redress, is free from doubt as the facts now appear. But that redress must be sought through the courts of the State whose laws in this manner have been violated.

The judgment should be affirmed, with costs; but, as the complaint may yet be amended so as to present causes of action at common law, the plaintiffs should be allowed to amend in twenty days on payment of the costs of the demurrer.

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

Judgment affirmed, with costs; plaintiffs to be allowed to amend in twenty days on payment of costs.


text:
    CAROLINE LIVINGSTON, Appellant, v. THE NEW YORK ELEVATED RAILROAD COMPANY and THE MANHATTAN RAILWAY COMPANY, Respondents.

      Service of a notice on an attorney through a slot in his office door.

    The service of a notice of appeal was attempted to be made upon the adverse attorney by sliding the same through a slot in the center of his office door, which was surmounted with a brass plate with the word “Letters” upon it. The notice was not inclosed in a sealed wrapper directed to the attorney.

      Meld, that the service was ineffectual.

      Duval v. Busch (13 Civ. Pro. R., 366) disapproved.
    In order that a service may be made, under the provision authorizing the leaving of the paper in a conspicuous place in the office, it is necessary that access to the office should have been first attained, and where the office is closed the service must be made by depositing the paper in a sealed wrapper, directed to the attorney, in his office letter-box, or at his place of residence, by leaving it with a person of suitable age and discretion, or by a service upon the attorney himself personally.
    Appeal by the plaintiff from an order, entered in the office of the clerk of the county of New York on the 2d day of July, 1890, permitting the defendants in the above-entitled action to file with the clerk of the Supreme Court, nunc pro tuno, as of the 7th day of June, 1890, a notice of appeal from a judgment entered in said action on the 8th day of May, 1890.

      8. B. Lwingston, for the appellant.

      Davies dk Rapallo, for the respondents.
   Daniels, J.:

The power to make the order from which the appeal has been taken depends upon the fact whether a legal service of the notice of appeal was made upon the attorney for the plaintiff on the 7th of June, 1890. For if no such service took place on that day, then the court had no power to permit this service of the notice to be made upon the county clerk.

To prove that the notice was legally served upon the plaintiff’s attorney, it was shown that a person employed in the office of the ' defendant’s attorneys repaired with the notice of appeal to the office of the plaintiff’s attorney on the afternoon of- the 7th of June, 1890, intending there to make service of the notice. When he reached the office the door was locked and he was unable to enter it to make service of the notice. But a slot was in the center of the door, surmounted with a brass plate with the word Letters ” upon it, and the notice was slid through this slot into the office, and that is the only service which was made, or attempted to be made, upon the attorney for the plaintiff of the notice of appeal; and whether this was a legal service of the notice depends upon the construction to be placed upon subdivision 3 of section 797 of the Code of Civil Procedure. That subdivision is the same, so far as it affects this service, as the rule previously existing, declaratory of the manner in which legal papers should be served, and under that rule it was held that this service could only be made by leaving the paper served in a conspicuous place in the attorney’s office when the office door was unlocked (Anon., 18 Wend., 578), and this decision has been followed in other cases where access has been obtained to the office without the consent of the attorney after the door had been closed and locked. (Campbell v. Spencer, 1 How. Pr., 199; Livingston v. McIntyre, Id., 253; Vail v. Lane, 4 Hun, 653.) These authorities all indicate the proper construction of the language of the subdivision to be, that the office must be left by the attorney in such a condition that a person may enter it and leave the paper to be served in a conspicuous place in the office, regularly to make that service. And the language of the subdivision indicates that to have been the intention of the legislature in making the enactment, for it has merely provided that service of a paper may be made when it shall be left in the office of the attorney, between six o’clock in the morning and nine o’clock in the evening, by leaving it in a conspicuous place in the office. It has also provided for depositing the paper in a sealed wrapper, directed to the attorney in his office letter-box, where one may have been provided. But no service under this part of the subdivision was intended or attempted. What it was intended to do was to leave the notice of appeal in a conspicuous place in the office of the plaintiff’s attorney. But, inasmuch as the office was locked at the time, it was not so made, for no entry could be made into the office to make that service. That it was intended by the subdivision that it could only be made in this manner by entering the office is still more evident from the concluding portion of the subdivision, for that has provided, further, that if the office is not open so as-to admit of leaving the paper therein, then 'the service is' to be made, where that shall not he. done by means of the letter-box, by leaving the paper to he served at the residence of the attorney with a person of suitable age and discretion. This latter clause still more clearly restricts the service where it may be made by leaving the paper in a conspicuous place in the office, to a case where the office itself shall °be found open. If it is not open so as to admit of such service, and no service is made by depositing the paper as directed by the section, in a sealed wrapper, directed to the attorney in his office letter-box, then it must he made either upon himself personally or at his place of residence with a person of suitable age and discretion.

The service of a notice of appeal not only forms no exception to this requirement, but it has been provided by section 1300 of the Code of Civil Procedure that it may be served in this manner; and such a service of it has not been made.

It is true that it was held in Duval v. Busch (13 Civ. Pro., 366), by the Special Term of the City Court, that such a service as was made in this instance, would be regular. But this decision is opposed to the clear import of the language used in the subdivision, and also to the current of authorities, by which it had been previously construed.

The attorney for the plaintiff did not accept this service, but returned the notice of appeal to the attorneys for the defendant, who in return sent the same to him again as having been regularly served on the Ith of June, 1890. He at no time acquiesced in, but resisted, the service, as irregular and unauthorized. And such appears to have been the character of this service.

There was, accordingly, no authority, which permitted the notice of appeal to be afterwards served upon the clerk for the completion of the appeal, and the order should be reversed, with ten dollars costs and the disbursements.

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

Order reversed, with ten dollars costs and disbursements.


author:
Barrett, J.: Yan Brunt, P. J.:
      Bartlett, J.:

text:
    MICHAEL SNOW, Respondent, v. THE RUSSEL COE FERTILIZER COMPANY. ROBERT C. DAVIDGE, Appellant.

      Agreement by the president of a corporation to postpone the enforcement of his daim against it—not enforceable by a receiver — consideration.

    An agreement made by a creditor, the president and largest stockholder of a ' corporation, with a firm to which such corporation was also indebted, “in consideration of said firm’s not pressing their claim to compulsory collection,” that such president and stockholder would not enforce a claim existing in his favor for a balance of salary due him until after the other creditors of the corporation should have been fully paid, is not enforceable by a receiver, subsequently appointed, of the assets of such corporation, nor has the receiver a right in such a case to defer any payment to the president of the balance due him for salary until the claims of all other persons, creditors of such corporation, shall have been paid.

      Lcmrence v. Fox (20 N. Y., 268) distinguished.
    Such agreement on the part of the president of the corporation is not enforceable by the receiver thereof, as the representative of the company or of its stockholders, nor as the representative of the particular firm, the creditor of the corporation making such agreement with its president. (Barrett, J., dissenting.) Semble, that such agreement must be enforced, if at all, by the creditor of the corporation with whom it has been made, and not by the receiver thereof for the benefit of such creditor.
    In such a case the agreement is too vague and indefinite for enforcement, as the firm creditor does not bind itself to refrain from proceeding against the company for any given period of time, nor is the period of forbearance by the president for the enforcement of his salary stipulated, and there is, therefore, neither a valid consideration nor mutuality.
    Appeal by Robert 0. Davidge from so much of an order made in the above-entitled action, April 27, 1889, and entered in the office of the clerk of the county of New York on May 15, 1889, as ordered that the receiver of the Russel Coe Fertilizer Company, upon his accounting and distribution of the assets of said company among its creditors, pay the amounts of the claims of all its creditors, excepting the claim of said Davidge, in full, or so much thereof as said assets would pay, and that the claim of said Davidge be paid only after all other claims against said company shall have been paid, and out of the residue of said assets, and from every part of said order which postponed the claim of said Davidge, to the claims of other creditors of said company.
    The order appealed from was made upon the report of a referee appointed by the court to take testimony and report concerning the dispute between the receiver of the defendant, the Russel Coe Fertilizer Company and Robert C. Davidge, touching claims of said Davidge against said company.
    The referee found, among other things in his report, that the said Robert C. Davidge was president and general manager of the Russel Coe Fertilizer Company, and as such had agreed with the trustees thereof that he should receive a salary for his services at the rate of $4,000 a year; that he had acted as president and general manager of the company from about the 24th day of January,' 1885, to August 25, 1886, and had drawn during said period from said company at different times various sums of money, which paid his salary up to January 1, 1886; that on or about the 25th day of August, 1886, the plaintiff Michael Snow was appointed receiver of the Russel Coe Fertilizer Company, and that the said Davidge had not been paid for the services he had rendered to the Russel Coe Fertilizer Company from January 1, 1886, to August 25, 1886, which, at the rate above mentioned, would amount to the sum of $1,945.87; and that said Davidge’s services to the defendant’s company were fairly and reasonably worth the sum of $4,000 per annum. The referee further found as follows:
    "VIL That George H. Nichols & Co. were creditors of the defendant and were pressing the company for the payment of their claims, and in the month of July, 1885, said Davidge, the defendant’s president as aforesaid and its principal stockholder, agreed with said Nichols & Co. not to draw nor receive any salary from the defendant during the company’s period of liquidation, in consideration of said iirm’s not pressing their claim to compulsory collection; that said Nichols & Co. complied with said agreement, did not sue the defendant nor collect their demands, and are now creditors of the company.
    In my opinion, on the evidence taken by me pursuant to said order, Robert C. Davidge has established no valid claim against the defendant in the matter submitted to me, and is not a creditor of the said, the Russel Coe Fertilizer Company.

      F. C. Oantme, for the appellant.

      Henry Sanger Snow, for the respondent.
   Barrett, J.:

I agree with Mr. Justice Bartlett that the promise alleged to have been made by Davidge to Nichols & Co. is not enforceable by the receivei as the representative of the company, or of its stockholders generally. But I cannot concur in the conclusion that such promise is enforceable by the receiver as the representative of Nichols & Co. The receiver does not represent any particular creditor, nor has he any privity in the disputes between individual creditors growing out of special arrangements between themselves, such as are set up in this proceeding.

If Nichols & Co. are entitled to exclude Davidge, or to take for themselves the whole or any part of the dividend coming to him, they must act directly.

The receiver cannot, for their benefit, avail himself of any estoppel which may have inured to them.

But, further, I am of opinion that no case for Davidge’s exclusion, even as against Nichols & Co., has been made out: J) The agreement on that head is too vague and indefinite for enforcement. Nichols & Co. did not bind themselves to refrain from proceeding against the company for any given period, nor was the period of Davidge’s forbearance, with regard to his salary, stipulated. There was neither a valid consideration nor mutuality. 7;

Now that the company is in the hands of a receiver, I can see no good reason for discriminating between these creditors. They should share alike. Davidge’s claim, however, is only for the sum of $1,945.87, that being the amount which had accrued at the date of the appointment of the temporary receiver.

The order should be reversed and the receiver directed to admit Davidge’s claim to the above extent as valid, and to pay it pro rata with the other claims against the company.

Yan Brunt, P. J.:

I concur with Mr. Justice Barrett upon the ground that no valid agreement has been proven..

Bartlett, J.:

This proceeding appears to have been instituted by the receiver of the Russel Coe Fertilizer Company, an insolvent corporation; to obtain the direction of the court in respect to the payment of the claim of Robert C. Davidge. The first paper in the appeal book is a notice of motion for the appointment of a referee “ to take testimony and report concerning the controversy between the said receiver and Robert C. Davidge, respecting the claim of said Davidge, submitted to the said receiver, for $3,279.20, which claim said receiver has disallowed.”

Upon this notice an order was made appointing a referee “ to take' testimony and report the same with his opinion thereupon, touching the claims in controversy aforesaid.” The evidence which appears in the appeal papers was taken before the referee, who, instead of simply reporting the same with his opinion, made findings in the form usual upon the trial of issues, followed by a conclusion of law to the effect that Robert C. Davidge was not a creditor of the defendant and had established no valid claim against the corporation. The appellant thereupon filed exceptions to certain portions of the report, and the matter was brought to a hearing at Special Term, where an order was made in effect modifying the decision of the referee that the claimant was not entitled to be paid at all, and directing that his claim be paid, if sufficient assets remained in the hands of tbe receiver after the payment in full of all other claims against the Russel Ooe Fertilizer Company. From that portion of the order which thus postpones his claim Mr. Davidge has appealed.

The opinion of the learned judge at Special Term indicates that he regarded the view of the facts adopted by the referee in his so-called findings as substantially correct. According to these findings the trustees of the defendant corporation entered into an agreement with the appellant to pay him a salary at the rate of $4,000 a year for his services as president and general manager of the company, and a balance of $1,945.87 on account of such salary still remains unpaid. The referee’s opinion that Mr. Davidge is not entitled to receive this balance in any event, and the opinion of the court at Special Term that he should receive it only after the other creditors shall have been fully paid, are based upon an agreement which was made in July, 1885, between Mr. Davidge, the president of the corporation, and Messrs. George H. Nichols & Co., who were creditors of the Russel Coe Fertilizer Company. The firm were pressing the corporation for the payment of their claims. Mr. Davidge, the president and largest stockholder, agreed with the firm not to draw or receive any salary from the company while its affairs were being liquidated, “ in consideration of said firm’s not pressing their claim to compulsory collection.”

George H. Nichols & Co. fulfilled their part of the agreement and did not sue the company and have not collected their demands, but still remain creditors of the corporation. The effect of this agreement, as held by the court below, was to defer any right on the part of Mr. Davidge to enforce his claim until after the payment of all other persons having claims against the corporation.

As the receiver has not appealed from any portion of the order of the Special Term, he is not in a position to attack that part of the decision which adjudges Mr. Davidge to be a creditor of the defendant. The only question which is now presented for consideration is that which arises upon Mr. Davidge’s appeal, to wit, whether it was proper to postpone the payment of his claim for salary as president and general manager of the Russel Ooe Fertilizer Company until all other claims against the company should have been satisfied.

The theory of the respondent is that the case is governed by the doctrine of Lawrence v. Fox (20 N. Y., 268), as that doctrine has been modified by later decisions. According to this view, the receiver, as the representative of the corporation, is entitled to enforce for its benefit the promise made by Mr. Davidge to Messrs. George H. Nichols & Co., that he would not draw any salary during the period of liquidation. The learned counsel for the respondent concedes that, to render the promise thus enforceable, however, it must appear either that some obligation or duty existed on the part of the promisee toward the third party, that is, on the part of Messrs. George II. Nichols & Co., toward the Russel Coe Fertilizer Company, or that the promisee intended that some benefit should result to the third party from the promise, that is to' say, there must have been an intent by Messrs. George H. Nichols & Co. to secure some benefit to the corporation. In the case of Vrooman v. Turner (69 N. Y., 280, 284), Judge Allen declares that both the obligation and intent must exist in order to give a third party a right of action on the promise. In the case at bar, however, I am unable to discover either. Certainly, the firm of George H. Nichols & Co., owed no duty to the Russel Coe Fertilizer Company, and were under no obligation to it. The duty and obligation were entirely on the other side. The firm were simply creditors of the corporation. Nor can I find anything to indicate an intention on their part to benefit the company by getting Mr. Davidge to promise not to draw any salary. Their sole purpose would seem rather to have been to benefit themselves, by thus increasing the amount applicable to the payment of their own claim ; but it is difficult to see how this arrangement could do the company any good if it still remained liable to pay Mr. Davidge’s salary afterward, as the court below has held that it did.

For these reasons I do not think the promise of Mr. Davidge is enforceable by the receiver as the representative of the company or its stockholders. There is no difficulty in the way of its enforcement by him, however, to a certain extent, as the representative of the creditors of the corporation. The promise was made, not for the benefit of the creditors generally, but for the particular benefit of particular creditors, Messrs George H. Nichols & Co. The receiver represents these creditors, and it is his duty to protect their rights. They have the right to priority in payment over Mr. Davidge. They abstained from pressing their claims to. a compulsory collection in consideration of his promise not to draw any -salary during-the period of liquidation, and he is estopped from enforcing any claim for such salary which will operate to lessen the amount-receivable by them. In other words, the appellant’s claim for salary must be postponed to the claim of Messrs. George H. Nichols & Co., but not to the claims of the other creditors of the Russell Coe Fertilizer Company.

This result can be brought about by paying Messrs. George H. Nichols & Co. just what they would receive if the appellant’s claim of $1,945.87 were not considered as a claim against the assets in the-hands of the receiver. After this has been done the appellant will be entitled to his ratable dividend like the other creditors.

The order appealed from should be modified in accoi’dance with the views which have been expressed, without costs to either party on this appeal.

Order reversed and the receiver directed to admit Davidge’s claim to the extent of $1,945.87 as valid, and to pay it pro rata with the other claims against the company.


text:
    ARCHIBALD C. HAYNES, Respondent, v. J. BLAKELEY CREIGHTON, Appellant.

      JSxamination of a party before trial—when pn’oper to encéle plaintiff to frame Ms complaint.

    In an action brought to recover the amount due upon a promissory note made by the defendant, payable to his own order and indorsed by him, an application was made by the defendant for an order authorizing an examination of the plaintiff in order to enable the defendant to obtain information necessary for use in the framing of his answer. The information desired by the defendant related to the transfer of the note to the plaintiff, in regard to which the defendant’s affidavit stated that he was not only ignorant, but that the knowledge of such facts could only be obtained from the plaintiff, and that such knowledge was necessary to enable the defendant to frame and serve his answer.
    An order was made directing the examination to include answers to such questions as should be put to the plaintiff touching the alleged transfer of the note to him, the date of the transfer, the parties to it, the consideration thereof, and such other matters as might be relevant or material thereto. It was restricted to the facts known to the plaintiff, and necessary for the information of the defendant in answering the complaint.

      Held, that the order was properly made.
    That it was not an answer to the application, that the defendant might examine the plaintiff as a witness upon the trial, for such examination would be restricted to the issue made by the pleadings, while the application in question was for an examination necessary to enable the defendant to make the issues as broad as the facts would warrant.
    Appeal by the defendant J. Blakeley Creighton from an order of the Supreme Court, made in the above-entitled action and entered in the office of the clerk of the county of New York on the 25th day of June, 1890.
    The order appealed from vacated an order theretofore made in the action for the examination of the plaintiff, and set the same aside, with ten dollars costs to the plaintiff. The order so set aside directed the plaintiff to appear before a justice of the Supreme Court, at chambers, at a time therein specified, to “ answer such questions as shall be put to him touching the alleged transfer to him of the alleged promissory note in suit, the parties to such transfer aforesaid, the date of such, transfer aforesaid, and the consideration or considerations, if any therefor, and touching such other matters as may be relevant or material thereto.”

      William Mam,, for the appellant.

      Boot & Gla/rke, for the respondent.
   Daniels, J.:

This action is upon a promissory note made by the defendant, payable to his own order, and indorsed by him, for the sum of $4,500, and due in five months from its date. This note was shown to have been one of a series in the same form amounting to the sum of $16,500. They were made and indorsed -to replace bonds and stock delivered to Charles T. Russell, of Pittsburgh, upon what was represented to be a loan of that sum of money obtained from him for a company in which the defendant was the owner of both stock and mortgage bonds. The notes were delivered to A. D. Jones, the treasurer of the company, to be used for that object. But he used no more than $6,000 in amount in that manner. The residue he misappropriated and used for his own benefit, and the note in suit is one of this residue.

The defendant applied for and obtained an order for the examination of the plaintiff to enable him to obtain such information as was necessary to frame his answer. As to the making, indorsement and diversion of the note no examination of the plaintiff was necessary, for these were facts within the knowledge of the defendant. But what the defendant desired to ascertain was information of the facts attending the transfer of the note to the plaintiff. Of those facts his affidavit not only showed him to be ignorant, but also that a knowledge of them could only be obtained from the plaintiff, and that such knowledge was necessary for him to frame and serve his answer. And the order which was made directed the examination to include answers to such questions as should be put to the plaintiff, touching the alleged transfer of the note to him, the date of the transfer, the parties to it, the consideration therefor, and such other matters as might be relevant or material thereto. It was restricted to the facts known to the plaintiff, and unknown to, and necessary for the information of, the defendant in answering the complaint. If the note had been transferred to the plaintiff under circumstances rendering him incapable of recovering upon it, and which it was necessary should be alleged by way of answer to entitle the defendant to make proof of them on the trial, he was entitled to that information from the plaintiff, and it could be obtained only by his examination. The consideration paid or allowed may have been such as to render the transfer usurious. But that could only become known in this manner. And without alleging it in the answer the defendant would not be permitted to prove it even by the plaintiff himself upon the trial. And that of itself was sufficient to authorize this examination. The defendant had been defrauded by his own agent, and he was entitled to avail himself of all such methods of redress as the law had provided for his protection. And this was one of them, by which he could be placed in the position requisite for the intelligent presentation of any defenses arising out of facts unknown to him, and which were necessarily within the knowledge of the plaintiff. It does not answer the application that the defendant may examine the plaintiff as a witness upon the trial. For that examination would then be restricted to the issue. What is necessary for him is to make the issue as broad as the facts will warrant it, and then he will be entitled to introduce whatever proof may be within his power and necessary for his own protection.

The affidavit has fully complied with all that can be required under the rples referred to in Spero v. West Side Bank (27 N. Y. State Rep., 29). And as the essential information can be obtained by the defendant in no other way, he is entitled to this examination of the plaintiff. It has been said in the points that the defendant has, since the order was made, served his answer. But if such is the fact, it cannot be here considered, for it was not before the court when this order was made. Neither is it stated that the answer served includes the defenses expected to be made as the result of the examination of the plaintiff.

The order should be reversed, with ten dollars costs and the disbursements, and the motion to vacate the order for the examination of the plaintiff denied.

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

Order reversed, with ten dollars costs and disbursements and the motion to vacate the order for the examination of the plaintiff denied.


author: Brady, J.:

text:
    BENJAMIN F. SHERMAN, Respondent, v. THE BEACON CONSTRUCTION COMPANY (Limited), Appellant.

      Examination of a party before trial, to enable the plaintiff to amend his complaint— it will not be ordered unless the party be first applied to, to furnish the information voluntarily.

    By an affidavit, made in proceedings to obtain the examination of one Addicks in order to enable tbe plaintiff to obtain facts necessary for use in the preparation of his complaint, it appeared that the action was brought to enforce an agreement alleged to have been made by the défendant to'pay the plaintiff, as compensation for his services, a percentage of ten per cent upon the profits of certain contracts made by the defendant; that judgment was sought for the payment of such amount; that no complaint had been served; that the agreement was not denied by the defendant; that the said Addicks was chairman of the defendant and familiar with all its transactions; that he resided in the city of Boston, but came from time to time to New York city on business of the company, whichhad at the time, or until recently, an office in said city; that the testimony Of said Addicks was material and necessary to enable plaintiff to prepare his complaint, as he had no knowledge as to what contracts embraced within said agreement had been closed, and what the profits thereof were, etc.
    It was objected, that the affidavit did not show that the plaintiff had ever made any application at the office of the company, or to any person connected with it, for the desired information.

      Held, that the objection was well taken.
    That no person should be subjected to a compulsory examination on an application of this kind, unless it appeared that an application had been made to the company for the information desired, followed by a refusal to give it, or that an imperfect response had been made to the.application.
    That while parties might not be bound to go out of the State for the purpose of applying for such information, yet as it appeared in this case that Addicks occasionally came to the city of New York on business, and as such information might be obtained by a letter properly addressed to the company, the order for the examination of Addicks should not be granted until such efforts to obtain the information had been made.

      Appeal by the defendant, the Beacon Construction Company (Limited), from on order of the Supreme Court, entered in the office of the clerk of the county of New York on the 25th day of July, 1890, denying defendant’s motion to vacate and set aside an order of this court, bearing date ’ the 14th day of May, 1890, directing J Edward Addicks to appear before George B Newell, Esq., as referee, and submit to an examination concerning the matters referred to in the affidavit upon which such order was made.

      Gary dk Whitridge, for the appellant.

      George Bliss for the respondent.
   Brady, J.:

The defendant is a foreign corporation and the person sought to be examined is its chairman. The affidavit upon which the order was made, so far as it relates to the merits of the motion, is as follows: That the action is brought to enforce cm agreement made by defendant to pay to plaintiff, as compensation for services, a percentage of ten per cent upon the profits of certain contracts made by defendant, and judgment is demanded for the payment of the amount; that no complaint has yet been served, but that the contract is not, as deponent believes, denied by defendant; that J. Edward Addicks is the chairman of the defendant, and the person familiar with all its transactions and who controls it; that he resides in the city of Boston, but comes from time to time to the city of New York on business of the company, which has, or had till recently, an office at No. 120 Broadway, New York city; that the testimony of said Addicks is material and necessarv for deponent to enable the complaint to be prepared, inasmuch as deponent has no knowledge as to what contracts embraced in said agreement with him have been closed, and what the profits are, though he has been informed by officers of defendant that some contracts have been closed and large profits have been earned, and that he cannot obtain such information except from the examination of some officer of defendant, as the books are not within this State; that no officer of defendant resides in the State, and that, with the exception of said Addicks, no officer of defendant who is in a position to furnish the necessary information comes habitually, or is likely to be within' this State, but that said Addicks possesses and can furnish the necessary information.

Several objections were taken to the sufficiency of this affidavit which áre set out seriatim,, but, nevertheless, as these- motions are sui generis, and each must, therefore, be determined on its own merits, it will not be necessary to refer to the numerous authorities bearing upon the question of the sufficiency of an affidavit made for the purpose of obtaining an order for the examination of a party before trial and for the purpose of framing a complaint. The affidavit recited is subject to the criticism of indefiniteness, but, nevertheless, it is quite as comprehensive as that presented for the consideration of the court in Glenney v. Stedwell (64 N. Y., 120). Indeed, it so closely resembles it that it may be said to be based upon its form and substance. But the objection taken here, and which was not presented in the case just referred to (and could not well be, as the defendant was not a company), is that the affidavit fails to show that the examination of Addicks is necessary to enable the plaintiff .to prepare his complaint; and it is founded upon the proposition that there is no evidence that the plaintiff has ever made any application at the office of the company, or to any person connected with it, for the desired information. It is not contended, on the part of the respondent, that it is not necessary to show, on such an application as this, that the examination of the person sought is necessary to enable the plaintiff to prepare a complaint.

It cannot be said either, as .has been said in some cases, that the affidavit does not specify a single fact or circumstance showing the necessity for the examination of Mr. Addicks to prepare the complaint, inasmuch as it alleges, as we have seen, that the right of the plaintiff to recover, and the extent of the recovery, depend upon the closing of certain contracts, in which, by the agreement, he had an interest, and as to which he has no information, except that the contracts, or some of them, have been closed. His case is, substantially and briefly stated, that he made a contract with the defendant by which it was agreed, for services rendered, to pay him a percentage upon the profits of certain other contracts made by the defendant, some of which have been closed, but which of them he is not able to state, and that Mr. Addicks, being familiar with all the transactions of the defendant, and controlling them, his examination is material and necessary to enable the plaintiff to get the information desired.

The point seems to be well taken, however, that no person should be subjected to a compulsory examination in an application such as this, unless it appear that an application was made to the company for the information desired, followed by a refusal to give it, or that there was an imperfect response made to the application.

It is true it has been held that, under circumstances such as those disclosed by the affidavit, parties are not bound to go out of the State for the purpose of getting information, but that will not be necessary in this case, because the affidavit shows that Mr. Addicks, who, as we have seen, is chairman of the defendant and occasionally comes to New York on business, has an office here which is, or recently was, at 120 Broadway; beside which it could be obtained by letter properly addressed to the company, or refused. In the absence of this ceremony it seems to be incorrectly asserted that the examination of the person is material and necessary for the purpose of framing the complaint.

The learned counsel for the respondent has taken the point that this is not an appealable order, and rests that proposition upon certain cases; but they do not relate to such an application as this, and are not, therefore, applicable.

The appellant may he said to be aggrieved by any order which affects its standing in court in any way, although it involves only the development of such information as may be possessed by one of its officers.

For these reasons the order appealed from should be reversed,, with costs, and without prejudice to the right of the plaintiff to renew this proceeding after application made for the information desired.

Yan Brunt, P. J., concurred; Daniels, J., concurred in the result.

Order reversed, with costs, but without prejudice to plaintiff to renew proceeding after application made for the information desired.


text:
    WILLIAM H. WESTERVELT and Others, Respondents, v. AGRUMARIA SICULA, SOCIETA ANONIMA di TRANSPORTI MARITTIMI, Appellant.

      Affidavit on an application for an attachment—must set forth facts showing that damages have been sustained!, and the facts establishing their amount.

    The affidavit upon which, an application for an attachment is founded, where the damages are unliquidated, must set forth the facts which establish the damages, as the amount of damages must be shown in order to entitle the plaintiff to an attachment.
    Such affidavit must also allege, not simply the conclusion that the plaintiff has suffered damage by reason of the breach of contract set forth to an amount specified, but must state the facts from which such conclusion may properly be drawn.
    A.ppeal by the defendant from an order made at Special Term, and entered in the office of the clerk of the county of New York on September 25, 1890, denying the defendant’s motion to vacate a warrant of attachment theretofore granted in the above-entitled action on August 7, 1890.
    The affidavit upon which the warrant of attachment was issued alleged that the firm, of which the plaintiffs were members, were large importers of Italian green fruits from Sicily ; that defendant was a foreign corporation, transacting its principal business at the city of Palermo, Sicily; that the plaintiffs’ firm was appointed the American agent of such corporation, and were to receive for services, as consignees of the said corporation, first, two and one-half per cent on freight to be collected on boxes of fruit; second, two per cent on general merchandise; third, one per cent ón sulphur and other minerals, of which commissions a certain percentage specified in the affidavit was to be returned to the directors of the corporation at Palermo; that said appointment was accepted by the firm, and the agreement in respect thereto was fully performed by it, and that services were rendered under such agreement.
    The affidavit further stated as follows: “We have duly demanded of the defendant, through Angelo Tagliavia, our agent in Palermo, the carrying out of their contract of agency with us, or at least the payment to us of commissions earned, and of such return commisgions as are due us as consignees of fruit. Our damages through the absolute refusal of the defendant thus to pay us, and through the summary breach of their contract with us, amounts to $5,000. Said Hirzel, Feltmann & Co. have also refused to account to us for om- said commissions, or for any sum whatever, which said firm has been collecting for us. My firm is entitled to recover said sum of $5,000 from defendant, over and above all counter-claims known to me or my said firm.”

      J. W. MoElhinney, for the appellant.

      F. W. Hinrichs, for the respondents.
   Van Brunt, P. J.:

We think that the motion should have been granted. There are no facts set up in the affidavits upon which the attachment was granted from which the court can judge what amount, if any, of damages have been sustained by the plaintiffs. In an action upon contract for the payment of a sum certain, it appears from the contract itself what the damages will be. In an action, however, for unliquidated damages it depends upon the facts of the case as to whether the plaintiff has sustained merely nominal or real damage. A cause of action may be completely set forth where only nominal damages can be recovered, and, therefore, in an affidavit upon which to found an application for an attachment, where the damages are unliquidated, it is necessary for the plaintiff to set out the facts which he claims proves his damages, in order that the court may judge as to whether he has evidence of damage, and that his allegation of damage is not mere matter of speculation. The Code requires an affidavit which must show, a cause of action, and, necessarily, where the damages are unliquidated, show the amount of damage in order to entitle the party to an attachment. A complaint will not suffice, because it is the office of a complaint to allege conclusions of fact deduced from evidence, whereas, it is the office of an affidavit to. set out the evidence establishing these conclusions of fact. Therefore, although an allegation in the complaint that the plaintiff has suffered damage by reason of the breach of a contract to the amount of $5,000 may be sufficient; yet in an affidavit such an allegation amounts to nothing because, the . evidence, from which that eonclusion is drawn is not set forth. The court must determine, from the evidence placed before it, whether a case is made out or. not, and it is not for the party to judge for himself, which latter seems to be the opinion in view of the manner in which allegations in affidavits are frequently made. In the case at bar there is nothing from which the court can adjudge that the plaintiff has sustained a single dollar of damage. He may set out facts showing nominal damages, but no facts are spread upon this record going to show any real substantial injury which the plaintiff has sustained; this allegation that he has been damnified to the extent of $5,000 is nothing but an expression of his opinion so far as these papers are concerned, and his opinion upon the subject cannot be considered by the court.

We think, therefore, in view of the deficiency of the affidavits in this case, the motion to vacate should have been granted, and the order should be reversed and the attachment vacated, with ten dollars costs of appeal and the disbursements.

Beady and Daniels, JJ., concurred.

Order reversed and attachment vacated, with ten dollars costs of appeal and the disbursements.


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    ENOS T. THROOP, Appellant, v. THE HATCH LITHOGRAPHIC COMPANY, Respondent.

      A trustee and stockholder of an insolvent corporation cannot, as a creditor, attach its property.

    A trustee and stockholder of a corporation which has become insolvent cannot, as a creditor thereof, commence an action against such corporation and obtain an attachment against its property upon the ground that the corporation has unlawfully assigned and disposed of its property with intent to defraud its creditors.
    A trustee of a corporation is disabled, by the provision of the statute, from, in such manner, securing a preference over other creditors thereof in the payment of his debt.
    The fact that such trustee has not been an active trustee in the management of the affairs of the corporation, and has had no influence with the other trustees, and that he has urged his co-trustees to take steps to put the company in the hands • of a receiver, and that his co-trustees have conspired together to defraud him and the other creditors' of the company, does not change his rights or position or remove his disability in the premises.

      Appeal by the plaintiff Enos T. Throop from an order of the Supreme Court, made at a Special Term thereof held at chambers in the city of New York, and entered in the office of the clerk of the county of New York on the 3d day of July, 1890, vacating the warrant of attachment granted in the above-entitled action, and any and all levy made by virtue thereof on any property of the defendant, substituting James J. Nellis, as receiver of the Hatch Lithographic Company, in the place of the defendant in the action, and directing the sheriff of the county of New York to deliver to him, as such receiver, all property that had been levied upon, or was in possession of said sheriff, by virtue of said warrant of attachment or the levy made thereunder.

      Page <& Taft, for the appellant.

      J. H. Hogan and H. F. Lcmrence, for the respondent.
   Yan Brunt, P. J.:

The plaintiff was a trustee and stockholder of the defendant company, which, for many months prior to the application for the attachment in question, was hopelessly insolvent, and being a creditor of the corporation commenced this action and obtained an attachment against the defendant upon the ground that it had unlawfully assigned, disposed of and secreted its property, and was about to unlawfully assign, dispose of and secrete its property with intent to defraud its> creditors.

A motion was made to vacate this attachment upon the ground that the plaintiff, being a stockholder and trustee of the company, could not secure a preference over the other creditors in the payment of his debt; which motion being granted, from the order thereupon entered this appeal is taken.

The question involved in this appeal was clearly decided in Kingsley v. First National Bank of Bath (31 Hun, 329).

It is urged that the language of the court in that case was more sweeping than was necessary to dispose of the questions there involved, and that it cannot be regarded as controlling the decision herein, because Riggs was a director and stockholder, and presumably an active one, and that it did not appear that he had any opposition in the board of directors, and that no defense was interposed to his suit, and judgment was entered by default.

In the case at bar it is claimed that the plaintiff was not an active trustee and had no influence with the othe-r trustees; that three months before he obtained his attachment he urged his co-trustees to take steps to put the company in the hands of a receiver; that during this time he did nothing to secure his debt, and in the meantime the other trustees were conspiring to defraud him and the other creditors, the company being at the time entirely insolvent, having refused the payment of its debts; and, finally, the plaintiff having brought suit and obtained’ his attachment, the trustees put in an answer, although they allowed all other suits to go by default.

The claim of the counsel, therefore, seems to be that because a trustee is not active in the management of the company, therefore, the disabilities attaching to his office do not prevail, and, also, because his co-trustees are committing frauds upon the creditors in violation of the provisions of the statute, that the statute becomes inoperative as to him.

We fail to see that this condition of affairs makes any difference between the position of the plaintiff in this action and the plaintiff in the ease cited.

That the mere fact of acquiescence upon the part of directors in allowing judgments to be taken by default is not a fraud under the statute is distinctly determined by the Court of Appeals in the case of Varnum v. Hart (119 N. Y., 101).

The disability to seize upon the assets of a corporation attaches upon the office of trustee or officer of the corporation, and while an officer may bring his action against the corporation for the purpose of securing an equal division of the assets amongst the creditors of the corporation, he cannot use any judgment obtained by him in such an action for the purpose of obtaining a preference in the payment of his own debt.

The courts have construed the provisions of the statute according to the intention of the legislature, and not according to its strict language. It seems to have been the intention of the legislature to prevent persons occupying confidential relations towards corporations from either directly or indirectly profiting by the information which they may have acquired because of their relation to the corporation, and which information they could use to the detriment of the general creditors of the corporation. Therefore, it has been provided that where a corporation is insolvent, an officer of such corporation shall be unable to take any of the property of the corporation to pay his particular debt. The malfeasance of his co-trustees does not remove the disability under which he rested because of being a trustee, nor does it repeal the statute, and whatever hardships the plaintiff may have been compelled to submit to they afford no ground for the violation of the salutary rule which has so long prevailed.

The order should be affirmed, with costs.

Brady and Daniels, JJ., concurred.

Order affirmed, with costs.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. DAVID J. BRANT v. CHARLES F. MacLEAN and Others, Commissioners, etc.

      Removal of a clerk in the New York police department—no trial necessary— notice to the clerk of the cha/t'ge is required.

    A clerk in the police department of the city of New York may be removed by the board of police commissioners, under section 48 of chapter 410 of the Laws of 1882, after he has been informed of the cause of the proposed removal, and has been ■ allowed an opportunity for explanation. No trial is contemplated by the act, nor is the production of evidence to establish the charge. The knowledge of the existence of the cause of removal by the head of the department is sufficient.
    The head of the department is the sole judge to determine the question whether the removal shall take place or not, but he can only act after hearing the explanation of the clerk whom it is proposed to remove.

      People ex rel. Keech v. Thompson (94 N. Y., 451) followed.
    Certiorari to review the action of the board of police commissioners of the police department of the city of New York in the removal of David J. Brant, theretofore a clerk in the police department in said city.
    The writ was issued under date of January 31, 1890.

      Louis J. Grant, for the relator.

      John J. Delany, for the respondents.
   Yan Brunt, P. J.:

The relator was a clerk in the police department. On the 27th day of December, 1889, he was notified to show cause why he should not be removed from his office as clerk, because of neglect of duty and frequent and continued absence during official hours from the office of the department during the then present month and year, and that he would be allowed an opportunity of making an explanation in regard thereto at a meeting of the board of police on December 31,1889, at 1.30 o’clock p. m. At the time appointed the relator appeared with his counsel, who demanded that the complaint be made more definite and certain, and also a bill of particulars.’ The relator denied having neglected his duty, or being absent “ except on permission given him by his superiors, and case of sickness,” etc. He was then asked as to his absences during the then present month. His counsel objected that he could not be called as a witness against himself, and that there was no evidence adduced against him, and ended by stating: “ The board has refused to make the specifications more definite so that the defendant will have an opportunity to put himself on his defense and prepare his evidence.” ' Subsequently, on the same date, the relator was called before the board and informed that he was charged with drunkenness. The relator denied the charge, and the commissioners called witnesses to prove the fact, and also that he was absent without leave. The relator offered no explanation, his counsel having,left, which fact the relator wished noted. He was on the same afternoon removed.

If this removal cannot be sustained without considering what took place at the second hearing, we think that the relator is entitled to be reinstated. He was entitled by the statute to an opportunity to explain, and this necessarily means a reasonable opportunity. An opportunity does not seem to be reasonable where the clerk is called almost at the instant of being informed of the charge for his explanation. A reasonable time should elapse to allow the clerk proposed to be removed to prepare his defense.

But we think that the board of police commissioners had a right to remove the relator, independent of the charge- of drunkenness. His counsel seems to have been of the opinion that the relator was entitled to a trial, to offer evidence to be confronted with witnesses proving the charge. The section under which his removal was had contemplates no such procedure. (Laws of 1882, chap. 410, § 48.) It provides that no regular clerk or head of bureau shall be removed until he has been informed of the cause of the proposed removal, and has been allowed an opportunity for explanation, and in every case of removal the true grounds thereof shall be forthwith entered upon the records of the department. Prior to this enactment in the charter of 18Y3, the clerk could be removed at will, and it was intended as a restraint upon this absolute power. No trial is contemplated, and the production of evidence to prove the charge is not even hinted at. It seems to be only required that a cause should be assigned for which the clerk may be responsible, and of its existence the head of the department is the sole judge; but he can only act after hearing the explanation of the clerk proposed to be removed.

Here it may not be improper to notice the criticisms of the counsel for the relator upon the commissioners, because one of them made use of the expression, “ contemplated action of the board.” If the learned counsel had read the section in question he might have learned that it only applies to those cases where action is contemplated or where a removal is proposed, or, in other words, contemplated, because by its terms the clerk is to be informed of the cause of the proposed removal, and consequently the commissioners, in speaking of contemplated action of the board, did nothing but state what the statute required to exist before the relator could be called upon for an explanation.

If any authority is required to support the views above expressed, in respect to the rights of a clerk proposed to be removed, it is afforded by the case of People ex rel. Keech v. Thompson (94 N. Y., 451). The court say: The next inquiry which arises is whether the commissioner committed an error in his decision in refusing to require that evidence should be given to establish the allegations made, and in not allowing testimony to be introduced in favor of the relator. The commissioner was acting by virtue of the statute already cited, and he was bound to follow its provisions and to fulfill its requirements and nothing more. There is nothing in the statute which requires that the cause of removal shall be established by proof taken before the commissioner. It seems to have been intended that the commissioner should exercise this power upon facts within his own knowledge, or based upon information received by him, after communicating to the relator his purpose of removing him, with notice of the reason why he proposed to take such action, and after allowing him an opportunity to make explanation as to the facts assigned as grounds for the removal. No testimony is required to be taken as to the basis of the commissioner’s action. It is enough that he assigns a sufficient cause for the removal and furnishes an opportunity to 'the relator for explanation of the same. This tends to prevent removals without any cause whatever or upon personal or political grounds. It would be unnecessary to take proof of neglect or omission of duty within the knowledge of the chief of the department, and the statute does not require any such formality.”

“ The chief of a department, under the statute, is authorized and required to inform the subordinate of the ground which induced him- to believe the subordinate to be negligent, unfit for duty or incapacitated to perform his duties, and for which he proposes to remove him. The statute makes no provision for a formal trial. It does not require that witnesses shall be produced by the commissioner, and that the officer shall be permitted to cross-examine the same, or that he shall be allowed to produce witnesses for himself, or to be heard upon a trial, but simply and alone allows him to make explanation and then leaves the matter of removal in the discretion of the commissioner.”

“ Having in view the fact that the commissioner, in the proper discharge of his duties would have knowledge generally as to any neglect or remissness of his subordinate officer, or that he would have information from which he would be justified in drawing an inference as to his acts and conduct, it is a fair and reasonable assumption that it was the intention of the statute to commit to the commissioner the power to remove for reasonable cause, to act upon his own knowledge as to the facts, and to determine when within his knowledge, so far as they were denied by the relator, and to judge whether the excuses presented by him were reasonable and sufficient so far as they were not denied. Such a discretion is not unlimited,, and can only be exercised for some reasonable cause, as was held by Allen, J., in People ex rel. Sims v. Fire Commissioners (73 N. Y., 440). Without it the power of removal might be of little avail. If tbe commissioner was to be constituted a court for tbe purpose of trying every charge which might property be preferred for violation of duty, it would tend very much to embarrass the action of that officer, and also interfere with the interest of the public. If a trial was to be had, the law, no doubt, would have so provided, and not for an explanation merely. In cases where the legislature intended that the removal should not be made without cause proven, provision is made for the preferring of charges and an examination of the same.” (Laws of 1873, chap. 335, §§ él, 77.)

It seems to be entirety unnecessary to add anything to this language; as it is as applicable to the case at bar as it was to the case cited.

The writ should be dismissed, with costs.

Bradt and Daniels, JJ., concurred.

"Writ dismissed, with costs.


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    THE METROPOLITAN ELEVATED RAILWAY COMPANY, Respondent, v. CHARLES DUGGIN and JOHN D. SLAYBACK, Appellants, Impleaded with Others.

      Additional allowance to several defendants—how appm'tioned where the judgment is reversed on appeal as to some of such defendants.

    On the trial of an action brought against nine defendants, who had interposed . demurrers to the plaintiff’s complaint, judgment was rendered in favor of the defendants, and separate bills of costs were awarded to some of the defendants, and $750 was awarded to all of the defendants as an additional allowance. This judgment was affirmed at General Term, and separate bills of cost were taxed by the same defendants.
    On appeal to the Court of Appeals that court reversed the judgment as to all of the defendants except two, as to whom it was affirmed, without costs.

      Seld, that the two defendants, in whose favor judgment of affirmance was rendered by the Court of Appeals, were entitled to full bills of costs at the General and Special Terms, but, if to any part thereof, only to their proportionate share of ' the additional allowance of $750, namely, two-ninths thereof.
    Appeal by the defendants Charles Duggin and JohnD. Slayback from an order made at the New York Special Term, and entered in the office of the clerk of the county of New York on the 7th day of July, 1890, so far as it directed that the clerk of the city and county of New York satisfy of record the judgment entered in the office of the clerk of the City and County of New York on the 16th day of July, 1886, in favor of the above-named defendants and against the above-named plaintiff, upon payment or tender to the defendants Charles Duggin and John D. Slayback of the sum of ninety-six dollars and seventy-two cents, with interest thereon, being the full amount of the costs contained in said judgment, and the sum of $166.67, being two-ninths of the extra allowance contained in said judgment.

      George W. Weiffenbaoh, for the appellants.

      JBrainerd Tolies, for the respondent.
   Yan Brunt, P. J.:

This action was brought against the defendants Duggin and Slay-back, together with seven others. Judgment was rendered in favor of the defendants upon demurrers, and separate bills of costs were awarded to some of the defendants, and $750 was awarded to all of the defendants in addition to costs.

The judgment was affirmed at General Term, and separate bills of costs were taxed by the same defendants. The Court of Appeals reversed the judgment as to all of the defendants except Duggin and Slayback, as to whom it was affirmed, without costs.

These.defendants claimed that they were entitled to be paid in full the judgments of General and Special Term for costs, and, also, the allowance, in addition to costs, of $750.- The plaintiff claimed that they were only entitled to tlieir proportionate share of each. A motion was made foi’ ah order that the clerk satisfy judgments oh. payment of such proportion. The court denied this motion, but held that Duggin and Slayback were entitled to full costs at General and Special Terms, and to their proportionate share of the allowance, viz., two-ninths.

Prom this order Duggin and Slayback appealed, and the only question presented is, are they entitled to' the whole allowance ?

It would seem to be a sufficient answer to this claim that no such allowance has ever been made to them. Additional allowances are within the discretion of the court, and no .court has., as yet, exercised its discretion in their favor. The allowance, as made, was to all the defendants, not to Duggin and Slayback, and if the respondent had appealed it might be claimed, with much greater force, that they were not entitled to receive any allowance, as the court has never awarded any to them alone.

It is urged that there is no difference, as far as the right of Duggin and Slayback are concerned, between the costs and the allowance, and that it is just as idle to speculate what allowance would have been awarded to them alone as it is to speculate on the amount of costs which they would have had.

¥e think that a part of this proposition is probably true, and that it is idle to speculate what allowance Duggin and Slayback would have had if successful alone; and, therefore, probably no part of the allowance should have been awarded them, as the discretion of the court, as we have said, has never been exercised in their favor under these circumstances.

As to the costs, however, the situation is different. As far as appears from the appeal papers, Duggin and Slayback were entitled, as matter of right, to costs; their amount is fixed by statute, and there is no speculation about it when they are awarded statutory costs.

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

Beady and Daniels, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.