author: HeeRICK, J.:

text:
    Bridget Moran, Respondent, v. Harris Friedman, Appellant.

      Assault — newly-discovered evidence — when a 'new trial will he granted.

    Motions for new trials made upon the ground of newly-discovered evidence will not usually he granted where such evidence is cumulative, or where it merely impeaches the veracity of a witness; nor will a new trial he granted unless it can he seen that the newly-discovered evidence is of such importance as to admit of the supposition that the result reached upon a second trial will he different from that of the trial already had.
    "Where the alleged new evidence could hy the exercise of reasonable diligence have "been discovered and presented on the trial, the motion for a now trial will he denied.
    In an action brought to recover damages resulting from an alleged assault there were two witnesses on each side, and their testimony was in direct conflict. The defendant moved for a new trial upon newly-discovered evidence, relating to statements made hy the plaintiff, which tended to show that there was no foundation for the charge of an assault; the motion was denied.

      Held, that such denial was improper.
    Appeal by tbe defendant, Harris Friedman, from a judgment of the County Court of Rensselaer county in favor of tbe plaintiff, entered in tbe clerk’s office of said county on tbe 24th day of December, 1894, upon tbe verdict of a jury; also from an ordér entered in said clerk’s office on tbe same day, denying a motion for a new trial made upon tbe minutes; also an appeal from an order entered in said clerk’s office on tbe l'Tth day of April, 1895, denying a motion for a new trial made upon tbe ground of newly-discovered evidence.
    Tbe action was brought to recover damages resulting from an assault committed upon the plaintiff by tbe defendant, as alleged, in attempting to reclaim furniture sold upon tbe installment plan.
    Tbe newly-discovered evidence principally relied on was that of Ida Allen, who made an affidavit stating that she lived near the plaintiff in Cohoes at tbe time of tbe assault, and then bad a con-, versation with the plaintiff. “ That during said conversation as aforesaid said Bridget Moran asked deponent if she knew a Jew in Troy by tbe name of Friedman, who was engaged in tbe installment business, to which she, deponent, answered that she did not know him. Said Bridget Moran then said to deponent: {I have sued tbe Jew; I understand he is very rich, but I should like to know for sure.’ Deponent then asked said Bridget Moran what she sued Friedman for, to which she replied that Friedman had sold Mrs. Flynn a bed and some other things, and that he came to her house (Bridget Moran’s) looking for Mr. Flynn, and saying that he wanted his money, so I (Mrs. Bridget Moran) threw a box at the Jew and run him out of the house. During the aforesaid conversation said Bridget Moran also said to deponent: £ Two days before I (Bridget Moran) had the trouble with the Jew I fell down stairs and hurt my side very bad; but, if the old woman sticks to me,' I’ll make the Jew pay for that.’ ”
    The daughter of Ida Allen made an affidavit that she was present at this conversation, and her affidavit repeated it in substance.

      F. B. Taylor and Fellows di MeEl/wain, for the appellant.

      John Sccmlon and James R. Stevens, for the respondent.
   HeeRICK, J.:

One of the appeals above entitled is from a judgment entered in favor of the plaintiff and against the defendant, and the other two are appeals from an order denying a motion made for a new trial on the minutes and from an order denying a motion made for a new trial upon the ground of newly-discovered evidence.

These appeals were argued together. Ordinarily motions for new trials upon the ground of newly-discovered evidence will not be granted where such evidence is cumulative or is merely to impeach the veracity of witnesses sworn upon the trial; neither will it be granted unless it can. be seen that the newly-discovered evidence is of such importance as to admit the supposition that the result will be different from that of the trial previously had. (Brady v. Industrial Benefit Association, 79 Hun, 150.)

In this case the evidence was of such a character that a verdict by a jury for either the plaintiff or the defendant would not have been set aside as against the weight of evidence.

There were only four witnesses to the transaction in question, the plaintiff, the defendant, the plaintiff’s mother and the man who accompanied the defendant to plaintiff’s house.

Two witnesses on each side, including the parties to the action, and their stories as to what took place, were in direct conflict.

Such being the state of the testimony upon the trial it seems to me that there can be but little doubt that the newly-discovered evidence may produce a result different from that of the trial previously "had.”

The new evidence is not simply to impeach the veracity of a witness ; it goes farther than that; it not only, if true, impeaches the veracity of the plaintiff, but impeaches the good faith with which the action is brought, to the extent of indicating that the charge made by her against the defendant is a trumped-up one.

It has also been held that where the alleged new evidence is evidence that could, by the exercise of reasonable diligence, have been discovered and presented at the trial the motion will be denied. (Smith v. Rentz, 73 Hun, 195.)

I do not see in this case that there has been any lack of diligence upon the part of the defendant; the newly-discovered evidence is not that of witnesses to the transaction in question, whose presence and what they saw or heard could have been ascertained by diligent investigation, but is that of persons who have had conversations with the plaintiff, and it is hardly to be expected that the defendant should make inquiries as to who amongst plaintiff’s neighbors had had conversations with her in reference to the transaction in question, and except by such an investigation there was no method for the defendant to discover the evidence in question, except by some accident, such'as happened in this case. It seems to me, therefore, that the defendant’s motion should not be denied upon the ground of a lack of diligence in not heretofore discovering the existence of the testimony he now desires to present.

The order denying the motion for a new trial on the ground of newly-discovered evidence should, therefore, be reversed and the motion granted. The motion for a new trial being granted, there is no occasion to investigate the appeal from the judgment.

Upon the plaintiff’s stipulating thereto, the appeal from the judgment may be withdrawn, without costs of the appeal to either party; if the plaintiff refuses to make such stipulation, the defendant may enter a judgment of reversal and for a new trial, with costs and disbursements of the appeal-.

The order denying motion for a new trial should be reversed and motion granted, with ten dollars costs of motion and ten dollars costs and printing disbursements of this appeal.

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

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


source: Caselaw Access Project

author: Herrick, J.:

license: Public Domain

text:
    Samuel D. Kendrick and William A. Brown, Appellants, v. George L. Wandall, Respondent.

      Contempt — witness refusing to answer a question in supplementa/ry proceedings— the oral direction of a referee is sufficient.

    Where a referee orally directs a judgment debtor, who is being examined before him in proceedings supplementary to execution, to answer a question, and the witness refuses, the witness is punishable for contempt under section 3457 of the Code of Civil Procedure.
    That section does not require that a written order of the referee he directed to or be served upon the witness as a basis for a proceeding to punish him for contempt in refusing to answer.
    Appeal by the plain tiffs, Samuel D. Kendrick and another, from an order of the county judge of Saratoga county, entered in the clerk’s office of said county on the 23d day of February, 1895, denying a motion made by the plaintiffs to punish the defendant for contempt in refusing to answer certain questions propounded to the defendant upon his examination in proceedings supplementary to execution.

      Louis Armstrong, for the appellants.

      T. JD. Trumbull, Jr., for the respondent.
   Herrick, J.:

The respondent, a judgment debtor, was being examined before a referee in proceedings supplementary to execution. He refused to answer a number of questions propounded to him; being orally directed by the referee to answer such questions, he again declined. The appellants thereupon took proceedings before the county judge, who granted the order under which the respondent was being examined, to punish him for contempt for refusing to answer such questions.

The county judge denied the motion to punish the respondent for contempt, and the order denying such motion states that it is denied upon the ground that a party cannot be punished for contempt for refusing to answer a question upon the oral direction of a referee.”

This same question arose under the old Code of Procedure (§ 302), which read as follows: “ If any person, party or witness, disobey an order of the judge or referee, duly served, such person, party or witness may be punished by the judge as for a contempt.” And the court in the case of Lathrop v. Clapp (40 N. Y. 328-336) says: “ The object and design of this 302d section of the Code was to’ give full power to the judge to punish any witness for contempt of referee’s orders, that a full and complete examination of the witness might be secured without a special application to the court to compel it; and I think when the referee orders the witnesses to answer to questions, that is a sufficient service, if the witness is present when the referee orders him to answer. The practice, I am sure, has been so understood, and it would be almost intolerable to require the referee to make 150 or 200 or any number of orders, in writing, requiring the witness to answer, and have them formally served upon the witness.”

While there may have been gome doubt under the phraseology of section 302 of the Code of Proceedure, which required a construction by the court, the present Code is so clear and explicit that it needs no discussion or argument to explain its meaning. The attention of the county judge was probably not called to it.

Section 2451 of the Code of Civil Procedure reads as follows: “A person who refuses, or without sufficient excuse neglects, to obey an order of a judge or referee, made pursuant to the last two sections, or to any other provision of this article, and duly served upon him, or an oral direction, given directly to him by a judge or referee, in the course of the special proceeding, or to attend before a judge or referee, according to the command of a subpoena, duly served upon him, may be punished by the judge, or by the court out of which the execution was issued, as for a contempt.”

This section puts it beyond all question that there is no necessity for a written order of the referee directed to, or served upon, the party under examination, as a basis of a proceeding against him for contempt. It expressly provides that a person guilty of disobeying the oral direction of the referee is guilty of contempt.

The sole and only ground, as stated in the order, upon which the county judge refused to punish the respondent for contempt, being erroneous, the order denying the motion must be reversed, and the proceedings remitted to the county judge for further action.

Mayham, P. J., and Putham, J., concurred.

Order reversed, with costs and disbursements.


author: HebRick, J.:

text:
    The People of the State of New York, Appellant, v. James H. Bean, Respondent.

      Verdict — set aside for perjury — witness hostile to the side calling him — effect upon the question whether a case is made for the jury.

    A verdict which, has "been obtained by means of perjury will not be permitted to stand.
    The fact that a witness called by the plaintiff is hostile to the plaintiff, and that his testimony is evidently false, will be considered in determining whether a sufficient case has been presented for the consideration of the jury.
    Appeal by the plaintiff, The People of the State of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Franklin on the 22d day of October, 1894, upon the verdict of a jury rendered after a trial at the Franklin Circuit, and also from an order entered in said clerk’s office on the 19th day of October, 1894, denying the plaintiff’s motion for a new trial made upon the minutes.
    The action was brought to recover a penalty of $100 for an alleged violation of section 1, chapter 534 of the Laws of 18T9, known as the Game Law. The complaint charged that the defendant had venison in his possession on the 2d day of January, 1892, contrary to the statute.

      William P. Oantwell, for the appellant.

      Samuel A. Beman and Okas. A. Burke, for the respondent.
   HebRick, J.:

Where the court can see that a verdict has been obtained by transparent perjury I do not think it should permit such verdict to stand.

It is true that in this case it is extremely doubtful whether upon the plaintiffs’ own ease there was sufficient evidence to warrant a verdict in their favor, yet I am inclined to think, as did the trial court, that there was some slight evidence upon which the jury might find the nature of the article in question.

The weakness of the plaintiffs’ case arises from the palpable perjury of the witness Miller. The fact that he was a hostile witness, although sworn on behalf of the plaintiffs, and the evident falsity of his testimony, might well be taken into consideration in weighing those portions of his evidence which slightly tend to prove the plaintiffs’ case.

The equally palpable perjury of Perkins, the only witness sworn for the defendant, exclusive of the defendant himself, rather gives weight to, than detracts from, the slight case made by the plaintiffs’ evidence. A judgment founded upon such evidence should not be permitted to stand. The plaintiffs should be given, if they so elect, another opportunity to establish their cause of action, and the witnesses a chance to repent and tell the truth, if that be possible.

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

Mayham, P. J., concurred in result; PutNAM, J., not acting.

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


author: Herrick, .J.:

text:
    Ruth E. Barber and Morgan F. Barber, Respondents, v. The Town of New Scotland, Appellant.

      Town — the test of liability as to highways — liability purely statutory — the statute is to be strictly construed — a culvert insufficient to caA'ry off the water in freshets is not a defective highway.

    The liability of a town under section 16 of chapter 568 of the Laws of 1890, which provides that “Every town shall be liable for all damages to person or property sustained by reason of any defect in its highways or bridges, existing because of the neglect of any commissioner of highways of such town,” is commensurate with the liability of the commissioners of highways before the statute was passed.
    To impose upon a town a liability under the statute, it must appear that the proximate cause of the injury was a failure upon the part of the highway commissioner of the town, in the performance of his duties, to use ordinary care under all the circumstances of the case.
    The liability of a town is purely statutory, and in derogation of the common law, and the statute, therefore, must be strictly construed. The negligence of a highway commissioner which will render his town liable in such cases is negligence which creates or permits such a defect in a highway as interferes with public travel upon it.
    In an action brought against a town to recover damages for its alleged negligence in failing to keep a certain culvert in proper repair, it appeared that a creek flowed through such culvert in a turnpike near the plaintiff’s promises, and then after crossing the turnpike it flowed through the plaintiff’s lands; that this culvert had been built many years before by a turnpike stock company; that for some years prior to the injury complained of the culvert had proved insufficient to carry off the stream' in times of rain, and that on certain occasions when there were severe storms the water backed up, overflowed the turnpike, ran from it to and over the plaintiff’s lands, and damaged them.

      field, that there being no defect in the highway proper, there was no duty resting upon the highway commissioner to provide a culvert to carry off water in times of freshet.
    Appeal by tbe defendant, Tbe Town of New Scotland, from a judgment of tbe Oonnty Court of Albany county, entered in tbe office of tbe clerk of said county on tbe 30tb day of April, 1894, upon tbe verdict of a jury.

      J. Newton Fiero, for tbe appellant.

      O'Brien <& Addwngton and Eugene Burlingame, for tbe respondents.
   Herrick, .J.:

This is an appeal from a judgment, rendered upon the. verdict of a jury in the Albany County Court, for the sum of $487.15, damages- and costs.

The plaintiffs, in their complaint, allege that they are the owners of certain real estate in the town of New Scotland, situated on what-is known as the Delaware turnpike or road, in said town; that at. the time of the said injury to the premises, and for many years, prior thereto, a creek or stream of water flowed through a culvert on said Delaware turnpike in front of or near the premises of the-plaintiffs, and thence flowed across and over the lands of the plaintiffs ; that for some years past, and at the time of the injury mentioned, said culvert through which said creek or stream flowed was, and is now, too small and insufficient to carry the water that came-from said creek or stream, so that the water was stopped in part in flowing through the same, and that said culvert was improperly constructed, and that it was not large enough to let the water pass through.

That on the 4th day of May, 1893, and also on the 23d and 24th days of August, 1893, on account of said condition of said culvert, the water backed up in said culvert and overflowed the same, and passed over and upon the said turnpike, thence to the plaintiffs’ lands, overflowing the same, and damaging the real and personal property of the plaintiffs in the sum of $500. And the plaintiffs further allege that before said overflow and damage, and for the past three years, they had notified and advised the highway commissioners of the defendant of the defective condition of said culvert, and recpiested them to repair and enlarge the same; but that they had failed and neglected to do so. They further allege that said injury was caused solely through the neglect of the defendant, its servants, agents or officers, in failing to keep the culvert, highway and road in proper repair and condition.

Upon the trial it appeared that at the times named in the complaint there were severe storms, and the surface waters and the water from the creek in question, and from a place designated as a- eave,” were too great in amount to pass through such culvert, but-backed up, overflowed the road, and passed upon and over the plaintiffs’ premises, causing considerable damage and destruction of property.

In addition to what was alleged in the complaint, it appeared upon the trial that the culvert in question was one that had been built many years ago, and at a time when the Delaware turnpike or road was owned by a stock company.

At common latv a town would not be liable for damages caused in the manner set forth in the complaint. The towns of this State are corporations for certain specified and limited purposes only, and have a limited corporate capacity.

In caring for the bridges, roads and highways' of the town they are not corporations, but political divisions of the State, organized for the convenient exercise of portions of the power of the State. The town officers are not agents of the town, but independent officers selected to discharge certain public duties, and for the neglect or improper discharge of such duties the town is not liable. (Lorillard v. Town of Monroe, 11 N. Y. 392; Ward v. Town of Southfield, 102 id. 287-295.)

A town in its corporate character has no control over the highways. It cannot lay out a highway or discontinue one. It is not liable for failure to keep highways in repair. Under our system no corporate duty is imposed upon towns in respect to the superintendence or regulation of highways within their limits. (People ex rel. Van Keuren v. Town Auditors, 74 N. Y. 310-315; People ex rel. Loomis v. Board of Town Auditors, 75 id. 316.)

By section 4 of chapter 568 of the Laws of 1890, the commissioners of highways, in the several towns, have the care and superintendence of highways and bridges in such towns, and it is made their duty to cause “such highways and bridges to be kept in repair.”

Highway officers are not agents of the town, so as to subject the town to liability for their acts. (People ex rel. Van Keuren v. Town Auditors, 74 N. Y. 310-316; People ex rel. Loomis v. Board of Town Auditors, 75 id. 316; People ex rel. Everett v. Board of Supervisors, 93 id. 397.)

But this rule of the common law has been, to an extent, changed by statute. »

By section 16 of chapter 568 of the Laws of 1890 it is provided that “ every town shall be liable for all damages to person or property, sustained by reason of any defect in its highways or bridges, existing because of the neglect of any commissioner of highways of such town.’’

These provisions are similar to those of chapter 700 of the Laws of 1881, and under such statute it has been held that the liability of the town is commensurate with that of the commissioner of highways before the act was passed (Bryant v. Town of Randolph, 133 N. Y. 70; Clapper v. Town of Waterford, 131 id. 382; Lane v. Town of Hancock, 142 id. 510.)

Tinder the act of 1881 (Chap. 700, Laws of 1881), transferring the primary responsibility for injuries to persons or property resulting from, defects in highways from the commissioner of highways to the towns, the negligence of the commissioner is still the basis of liability, and a town is now only liable for neglect of its commissioner in a case where he would have been liable had the injury occurred prior to the passage of the act, and where the negligence of the commissioner is such as to render him liable, under the act, to the town for the recovery had against it. To impose the liability it must be shown that the proximate cause of the injury was an omission on the part of the commissioner to use ordinary care under all the circumstances in the performance of his duties, i. e., such care as-a reasonable and prudent person would ordinarily have exercised under those circumstances. (Lane v. Town of Hancock, supra.)

The test, then, is, would the highway commissioner have been liable prior to the statute ? Is he liable over to the town upon this judgment ?

The negligence charged must be negligence in the performance’ of, or omission to perform an official duty.

In Gould v. Booth et al. (66 N. Y. 62), which was an action brought against the defendants as commissioners of highways to recover damages by reason of an insufficient culvert in an embankment in the highway, it was held that such commissioners were not liable, the court saying: Culverts and sluices are proper and necessary in highways, but their location and manner of construction are very much within the discretion of the public officers, and they should not be harassed by personal actions for injuries occasioned by inadvertence or error of judgment, nor for a mere omission to perform an act which, although proper or even necessary to prevent incidental injury, when tbe performance cannot be exacted as a legal right.”

In Acker v. Town of New Castle (48 Hun, 312), where an action was brought to recover damages sustained by the plaintiff because in repairing the highway it had been done in such a manner as to throw the surface water upon the plaintiff’s lands, it was held that it was not part of the duty of the defendant to provide culverts to carry off such water.

This is not a case where, by the building of a drain or sluiceway, waters have been concentrated together and cast upon the plaintiff’s premises, where otherwise they would not have gone, as in Noonan v. City of Albany (79 N. Y. 470), and cases of like character; at the most, all that can be said is, that a culvert has been provided insufficient in size to carry off the surface water and the water of a running stream in times of storms. But assuming that to be negligence, it is not every negligence of a highway commissioner, even in performing or omitting to' perform an official duty, that renders a town liable.

The liability of a town is, as we have seen, a purely statutory one. “ Statutes changing the common law must be strictly construed, and that the common law must be held no further abrogated than the clear import of the language used in the statutes absolutely requires.” (Fitzgerald v. Quann, 109 N. Y. 441.)

The language of the statute is that the town shall be liable for all damages “sustained by reason of any defect in its highways or bridges existing because of the neglect of any commissioner of highways of such town.”

The negligence of a commissioner of highways then which will render a town liable is negligence 'which creates or permits a defect in a highway.

In Whitney v. Town of Ticonderoga (127 N. Y. 40) it was held that the term “defective highways,” as used in chapter 700 of the Laws of 1881, “ was used in reference to their condition for public 'travel upon them, which their designation as highways imports, and in view of the purpose for which they are established and maintained.”

In this case there is no claim that the plaintiffs’ damages resulted from any defect in the highway as such ; they did not happen ¡because of the condition of the road for public travel.

In Robinson v. Town of Fowler (80 Hun, 105) this court held that an action could not be maintained against a town for negligence of the highway commissioners in blasting rock for the purpose of widening a highway so that vehicles could pass each other. No defect in the highway itself caused the injury.

Por these reasons the j udgmént should be reversed and a new-trial granted, costs to abide the event.

Mayhayc, P. J., and Putnam, J., concurred.

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


author: HerricK, J.:

text:
    The People of the State of New York ex rel. Edison Electric Light Company, Relator, v. Frank Campbell, Comptroller of the State of New York, Respondent.
    No. 1.

      Taxation of corporations — review of an assessment — the.Statute of Limitations does not apply to it — what return does not deny the allegations of a petition— extent of the manufacture which, exempts a corporation.

    An application to the Comptroller, under chapter 463 oí the Laws of 1889, to review the assessment of taxes imposed upon a corporation in the years 1881, 1882, 1883, 1884 and 1885, under chapter 542 of the Laws of 1880, and the acts amendatory thereof, may be made at any time; the Statute of Limitations does not apply to it.
    The petition of a corporation for a writ of certiorari to review such an assessment, after stating that in the course of its business it did, during the years in question, make contracts with certain corporations and persons to construct, operate and sell complete central station plants to furnish electric light, heat and power, specifically alleged that during the same period it owned and operated electric light and power plants, and manufactured and distributed, by conductors from its central station, electricity to its customers.
    The return made by the Comptroller to the writ stated that during the years mentioned the principal business of the corporation was the owning of, and the licensing parties to use, various patents relating to electricity; that its principal income was derived from royalties upon its patents; that its capital was largely represented by its ownership of bonds and stocks in other companies, and finally stated: “And, as I believe, relator did not furnish but little, if any, light, or run or operate wires to any extent during said time.”

      Held, that the return did not deny the relator’s statement that it manufactured and furnished electricity to its customers;

      That the production of electricity was a manufacture, and that as the relator was engaged in manufacturing to some extent it was exempt from taxation under the provisions of chapter 542 of the Laws of 1880, and the acts amendatory thereof.
    CebtioRARi issued out of the Supreme Court and. attested on the 12th day of September, 1892, directed to Prank Campbell, Comptroller of the State of New York, requiring him to certify and return to the office of the clerk of the county of Albany all his acts and proceedings, with all papers and documents relating to the assessment of certain taxes upon the capital stock of the relator for the five years ending November 1, 1885.
    The proceeding was taken under chapter 463 of the Laws of 1889. The taxes in question were assessed under chapter 542 of the Laws of 1880 and the acts amending that statute.

      Eugene II. Lewis and O. R. Waterbury, for the relator.

      T. E. Hancoch, Attorney-General, and G. D. B. Hasbrouch, Deputy Attorney-General, for the respondent.
   HerricK, J.:

This is a certiorari to review the assessment of certain taxes levied by the Comptroller of the State of New York upon the capital stock of the relator for the years 1881, 1882, 1883, 1884 and 1885 inclusive.

Except for the decision in the case of The People ex rel. Edison Electric Illuminating Company v. Wemple (133 N. Y. 617) I should hold that these proceedings were barred by the Statute of Limitations ; but until the court of last resort, upon a more careful and deliberate consideration of that question, sees fit to reverse its then holding, I feel compelled to follow the decision there made.

The assessing of taxes upon the defendant for the years mentioned proceeded upon the assumption that during such years the relator was not engaged in the manufacturing business.

The petition of the relator, after setting forth that in the course of its business it did during such years make contracts with licensee companies and individuals to construct, operate and sell complete central station plants for the purpose of furnishing electric light, beat and power, and describing wbat it did in connection with its contracts, alleges that during the same period the light company-owned and operated electric light and power plants and manufactured and distributed, by conductors from the central stations, electricity to its customers.”

The return of the Comptroller cannot be said to deny this statement of the petition. It states that “ during the several years mentioned the relator’s principal business was the owning and licensing the use of various kinds of patents employed in lighting, heating or furnishing motive power by electricity, and its principal income and revenue during those years resulted from the sale of royalties for the use of patents owned by relator, which patents were used by other companies or corporations, and the relator’s cajrital was largely represented by its ownership of bonds and stocks of other companies, and, as I believe, relator did not furnish but little, if any, light, or run or operate wires to any extent during said time.”

The return of the Comptroller in these proceedings has been held conclusive as to the facts. But here, it will be perceived, there is no definite return by the Comptroller as to the facts ; he does not deny the relator’s statement, that it manufactured electricity and furnished it to its customers; he asserts that he believes that' the relator did not furnish but little, if any light, or run or operate wires to any extent; this leaves it open to the inference that the relator did furnish some light; that it did run and operate wires to some extent; and, taken in connection, as we must under the circumstances, with the allegations in the petition of the relator, it appears that during the years in question the relator was engaged in the production and distribution to its customers of electricity. The production of electricity has been held to be manufacturing within the meaniug of the statute. (People ex rel. Brush Elec. Manuf. Co. v. Wemple, 129 N. Y. 543.).

The Comptroller having proceeded upon the assumption that the relator was not engaged in the manufacturing business, his determination must be reversed.

PutNAM, J., concurred; Mayham, P. J\, not acting.

Determination of the Comptroller reversed, with fifty dollars costs and disbursements.


author: HbrrioK, J.:

text:
    The People of the State of New York ex rel. Edison Electric Light Company, Relator, v. Frank Campbell, Comptroller of the State of New York, Respondent.
    No. 2.

      Taxation of corporation — certiorari to review an assessment — return of the Comptroller conclusive — what business is not manufacturing— Comptroller’s valuation, when conclusive.

    The return of the Comptroller to a writ of certiorari issued to review his action in assessing taxes upon a corporation is conclusive.
    Where such a return alleges that tlio principal business of a corporation, during the time for which such assessment is laid, was the owning and leasing of various patents relating to electricity; that its principal income was derived from royalties upon its patents or from the sale of its patents; that it was a large stockholder and bondholder in various corporations using the patents, and that the corporation was running no wires and furnishing no light during the time in question, and denies that it was engaged in carrying on any manufacturing whatever, the corporation is taxable under chapter 542 of the Laws of 1880, and the acts amendatory thereof.
    The business described by such return is not the production of a new article by the application of skill and labor to raw materials, and is not a manufacture. Where a corporation is taxable to any extent whatever the determination of the 'Comptroller upon the question -of valuation will prevail unless it is clearly ■shown to be erroneous.
    ■■CeRtiobaRI issued out of tlie Supreme Court and attested on the 12th day of September, 1892, directed to Frank Campbell, as Comptroller of the State of New York, requiring him to certify and return to the office of the clerk of the county of Albany all his acts and proceedings, with all papers and documents relating to the assessment of certain taxes upon the capital stock of the relator for the three years ending November 1, 1888.
    The proceeding was taken under chapter 463 of the Laws of 1889 to review assessments for taxes assessed under chapter 542 of the Laws of 1880, and the acts amending that statute.

      Eugene H. Lewis and O. B. Waterbury, for the relator.

      T. E. Hanooclc, Attorney-General, and G. D. B. Hasbrouoh, Deputy Attorney-General, for the respondent.
   HbrrioK, J.:

This is a proceeding to review by certiorari the assessment of certain taxes made by the Comptroller of the State of New York upon the capital stock of the relator for the years 1886, 1881 and 1888.

' This proceeding is similar to the one we have just considered. The allegations of the petitioner, as to the character of the business carried on by it during the years in question, are substantially the same as those of the case we have just considered, but the return by the Comptroller thereto is very different. That portion of it relating to the business of the relator is as follows: “ That it appeared from the information and evidence in the possession of the Comptroller, that neither the relator nor either of said constituent companies was, during either of said years, engaged in the manufacture of appurtenances for, or used in producing light, heat and power by electricity.

“That during each of said years the principal business of the relator was the owning and leasing of various kinds of patents employed in lighting, heating or furnishing motive power by electricity, and its principal income and revenue during each of said years resulted from the sale of royalties or the sale of patents owned by it, which patents are used by other companies and corporations, and in which companies and corporations the relator is a large stockholder as well as owner of bonds of such companies or corporations, and the relator was running no wires and furnishing no light during said term.”

And again, as follows: “And upon information and belief denies that the relator herein was engaged in carrying on any manufacturing whatever or any business other than as stated hereinbefore during the years in question.”

The return of the Comptroller must be taken as conclusive as to the facts. (People ex rel. Sims v. Fire Commissioners, 73 N. Y. 437; People ex rel. Roebling's Sons' Co. v. Wemple, 138 id. 582-586; People ex rel. Press Pub. Co. v. Martin, 142 id. 228, 235.)

The business of the relator, as described in the return of the Comptroller, is not a manufacturing business within the meaning of the statute. “ The process of manufacture is supposed to produce some new article by the application of skill and labor to the raw material.” (People ex rel. Union Pac. Tea Co. v. Roberts, 145 N. Y. 375-377.)

The relator’s business clearly does not come within this definition. The relator, then, was taxable.

It appears that from the sale of patents to other .companies and corporations it received stocks and bonds in return. The bonds so received from corporations existing in this or other States are taxable as part of its property. (People ex rel. Edison Elec. L. Co. v. Campbell, 138 N. Y. 543.)

Iiow much of its property it has invested in stocks and how much in bonds does not appear, neither does it clearly apjiear that the Comptroller took into consideration such stocks in fixing the amount of the relator’s taxes.

The relator being taxable to some amount, the determination of the Comptroller upon the question of valuation, unless clearly shown to be erroneous, is conclusive. (People ex rel. Western Elec. Co. v. Campbell, 145 N. Y. 587.)

The determination of the Comptroller should be affirmed, the cer-tiorari quashed, with fifty dollars costs and disbursements.

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

Determination of the Comptroller affirmed, writ of certiorari quashed, with fifty dollars costs and disbursements.

       See ante, page 527.


author: PutNAm, J.:

text:
    Charles B. Rouss, Respondent, v. Russell J. McDowell, Appellant.

      Action for goods sold ¡and delivered — -use by a witness of a copy, instead of the original, memorandum of the goods returned — proof necessary to make it competent.

    In an action brought to recover an alleged balance due for merchandise sold and delivered, the defense interposed was that a part of the goods for which the plaintiff sought to recover had been returned, and that the amount due for the goods retained had been paid.
    A witness sworn for the plaintiff, who testified that at the time in question he was the receiving clerk for the plaintiff, gave the items of all the goods which he testified were returned by the defendant to the plaintiff.
    The defendant objected to his testimony on the ground that the original memorandum of the goods that were returned, called the receiving book, was not produced, but that a copy thereof was used by the wicness on the examination. The objection was overruled and defendant excepted.
    The witness testified : “I keep a receiving book which shows all goods received; this memorandum which I have used in testifying is taken from that book; one of the men in my department opened this box under my supervision; I can remember independently of the memorandum that about that time a case of goods was received by plaintiff from defendant by freight, but I cannot remember what the contents were; I say those goods (referring to the goods which he had testified to as having been returned) were received because I find entries to such effect, and that is the only reason I have for saying that those were the goods received.” After the witness had so testified, the defendant renewed his objections, which were overruled, and an exception taken.
    There was no proof given to show that the original memorandum was destroyed, or that it could not be produced.

      Held, that the referee erred in not sustaining the objections of the defendant; That the memorandum was not used to refresh the memory of the witness, but was received and read in evidence to prove the items of goods that were returned;
    That if the copy could, under any circumstances, have been properly read in evidence, it was incumbent upon the plaintiff, before that could he done, to show the correctness of the original memorandum from which the copy was made.
    Appeal by the defendant, Russell J. McDowell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 18th day of September, 1894, upon the report of a referee.

      H. 8. Haff and G. II. Beohwith, for the appellant.

      L. L. Shedden, for the respondent.
   PutNAm, J.:

This action was brought to recover an alleged balance due for merchandise sold and delivered hy the plaintiff to the defendant. The defense was interposed that a part of the goods for which the plaintiff sought to recover had been returned, and defendant also set up payment of whatever sum was due plaintiff for those retained. On the trial the question chiefly litigated was as to the amount of the articles in fact returned; the defendant offering evidence tending to show that articles embraced in the account of plaintiff of the value of $287.38 had been returned to him, while testimony produced by the plaintiff tended to show that the value of the goods so returned was only $102.33.

George H. Hoer, a witness sworn for the plaintiff, testified that he was at the time in question receiving clerk for the plaintiff, and he gave the items of all the goods which he testified were returned by the defendant to the plaintiff. Defendant, on the direct examination of the witness, objected to his testimony because the original memorandum of the goods that were returned, called the receiving book, was not produced, but a copy thereof was used by the witness on the examination. The objection was overruled and the defendant excepted. The witness testified as follows : “ I keep a receiving book which shows all goods received ; this memorandum which I have used in testifying is taken from that book ; one of the men in my department opened this box under my supervision ; I can remember independently of the memorandum -that about that time a case of goods was received by plaintiff from defendant by freight, but I cannot remember what the contents were; I say those goods (referring to the goods he had testified had been returned) were received because I find entries to such effect, and that is the only reason I have for saying that those were the goods received.” After the witness had so testified the defendant renewed his objections, which were overruled and an exception taken.

We think that the referee erred in not sustaining the objections of the defendant to the testimony of IToer. The memorandum was not used to refresh the memory of the witness. It was in fact received and read in evidence to prove the items of goods on plaintiff’s account that were returned. There was no proof given that the original memorandum was destroyed or could not be produced. It was clearly error under the circumstances to show the articles returned to plaintiff by a copy of the original memorandum. (See Peck v. Valentine, 94 N. Y. 569.)

Again, if the said copy could, under any circumstances, have been properly read in evidence, before that could be done it was incumbent on the plaintiff to show the correctness of the original memorandum from which the copy was made. In this case the witness Hoer failed to prove that the receiving book, of which a copy was used by him on the trial, was correctly made. (See National Ulster Co. Bank v. Madden, 114 N. Y. 280-284.)

In the absence of testimony as to the correctness of the original memoranda there was no competent evidence in the case to sustain plaintiff’s contention as to tlie goods in fact returned by defendant to plaintiff.

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

Mayham, P. J., and Herrick, J., concurred.

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


author: Putnam, J.:

text:
    John J. Sheldon, as Administrator of Mary E. Sheldon, Deceased, Appellant, v. Rufus Heaton, Respondent. Same, Appellant, v. Same, Respondent.

      Deposit of money — Statute of Limitations does not commence to run until a demand has been made — presumption of payment arising from the lapse of time — effect of the failure to appoint an administrator' of a deceased depositor'.

    Where a person receives the money of another as a deposit the amount so received is not due until demanded, and the Statute of Limitations does not commence to run until a demand has been made.
    The presumption of payment arising from lapse of time, in a case where the Statute of Limitations has not run, is not conclusive and merely presents a question of fact for the determination of the jury upon the trial of an action brought to recover money alleged to be due the plaintiff, yet where the evidence is such that a jury must find that such payment has been made, the court may dismiss the complaint and direct a verdict.
    Upon the trial of an action brought to recover the amount of a deposit made by the plaintiff’s intestate thirty years prior to the commencement thereof, it was shown that the intestate died about eight years after making the same, and that from that time until the demand was made immediately preceding the commencement of the action there was no administrator of her estate.

      Held, that the case was substantially the same as if only eight years had elapsed between the delivery of the money and the demand made of the person with whom it was deposited;
    That under the circumstances the presumption of payment arising from the lapse of time was not so irresistible as to justify the withdrawal of that question from the jury.

      Promissory note— when a demand is unnecessa/ry — parol evidence to varry a written instrument.

    An action was brought to recover money deposited with the defendant by the plaintiff’s intestate, for which the defendant gave an instrument in the following words:

      “§178.83.
    “Due Mrs. M. E. Sheldon, one hundred and seventy-eight 38-100 dollars.
    “ Rouses Point, April 29, 1863. (Signed) R. HEATON.”

      Held, that the instrument was a promissory note and that, as no time of payment was mentioned therein, it was payable immediately;
    That under the written contract the plaintiff’s intestate could have sued at once without a demand, as an action would have been a demand;
    That the parties to the transaction having voluntarily entered into the written contract, their rights were to be determined by the writing and its terms could not be varied by parol evidence.
    Appeal in the first above-entitled case by the plaintiff, John J. Sheldon, as administrator of Mary E. Sheldon, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Clinton on the 7th day of December, 1894, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the Clinton Circuit, with notice of an intention to bring up for review upon such appeal the order of the court directing a nonsuit.
    Appeal in the second above-entitled case by the plaintiff, John J. Sheldon, as administrator of Mary E. Sheldon, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Clinton on the 7th day of December, 1894, upon the dismissal of the complaint directed by the court after a trial before the court and a jury,at the Clinton Circuit, with notice of an intention to bring up for review upon such appeal the order directing a nonsuit.

      William, II. Dunn and T. F. Conway, for the appellant.

      James B. Stearns and G. II. Bealcwith, for the respondent.
   Putnam, J.:

These cases were tried and may be considered together.

The first above-entitled action was brought to recover for money deposited with defendant and for which he delivered to plaintiff’s intestate an instrument of which the following is a copy :

‘ $300.
“ Rec’d of Mrs. M. M. Sheldon three hundred dollars on deposit.
“ Rouses Point, August 20, 1864. R. HEATON.”

The action was commenced thirty years after the execution of the instrument. Mary E. Sheldon, the party to whom the paper was delivered, died on August 21, 18'72, and plaintiff was appointed her administrator on May 2, 1893. Defendant, among other defenses, set up in his answer the Statute of Limitations as a bar to the action. On the trial the court below held that the Statute of Limitations had run against the demand of the plaintiff; that an action could have been brought at once on the instrument above set out, and the beginning of the action would have been a sufficient demand, and the trial justice granted defendant’s motion for a nonsuit.

It seems quite clear from the written contract between the parties above set .out, as well as from the oral evidence given on the trial, that the transaction between the defendant and Mrs. Sheldon was a deposit and not a loan; that there was no right of action against the defendant until after a demand, and hence that plaintiff’s claim was not barred by the Statute of Limitations. (Payne v. Gardiner, 29 N. Y. 146; Smiley v. Fry, 100 id. 262; Boughton et al. v. Flint, 74 id. 476-482.)

None of the authorities cited by the learned counsel for respondent conflict with the doctrine settled in Payne v. Gardiner (supra).

In this case the parties by their written contract have said that the money which the plaintiff sues to recover was received as a deposit. Hence it wras not due until demanded, and the action was not barred by the Statute of Limitations.

It is possible that the plaintiff’s demand could have been defeated as stale, and presumed paid on account of the great lapse of time between the deposit of the money and the commencement of the action. But it is held that the presumption of payment arising from lapse of time in a case where the Statute of Limitations has not run is not conclusive, but merely presents a question of fact for the jury. (Macaulay, as Survivor, v. Palmer, 125 N. Y. 742.)

In Bean v. Tonnele (94 N. Y. 381-385) Andrews, J., says: “ In Jackson v. Sackett (7 Wend. 94) many of the cases on the presumption arising from lapse of time were referred to, and it was held that the presumption was one of fact and not of law, and that it was for the jury to draw the conclusion upon all the facts and circumstances of the case.”

In Owen v. Calhoun (8 N. Y. Supp. 447) it was said that the presumption of payment arising from lapse of time was one of fact, yet where the evidence is such that the jury must give effect to the presumption and a contrary verdict would be set aside as against the weight of evidence, the court may dismiss the complaint and direct a verdict.

In this case we are of opinion that the court was not justified in taking the case from the jury under the doctrine stated in the ease last cited. Plaintiff’s intestate, who made the deposit with defendant, died- about eight years after the transaction, and from that time until the demand was made immediately preceding the action by the plaintiff, there was no administrator of her estate, and hence no person who could have demanded the deposit of defendant. No person in fact to whom the defendant could have paid the money left with him by deceased. Hence the case is substantially the same as if only eight years had elapsed between the delivery of the money and the demand made of defendant. Under the circumstances we think the presumption of payment arising from the lapse of time was not so irresistible as to justify the withdrawal of the question of fact from the jury. In Macaulay, as Survivor, v. Palmer (supra) we judge from the recitals contained in the report of the cause that the action was not commenced for over twenty years after the cause of action accrued. In Boughton et al. v. Flint (supra) the proceeding before the surrogate appears to have been had very many years after the money had been placed in the hands of the testator.

Assuming, therefore, that there could arise a presumption of payment of a claim for money deposited not barred by the Statute of Limitations, and where no demand of payment had been made owing to the lapse of time, we think that under the facts and circumstances appearing in this case the trial judge should have submitted the question to the jury. It follows that the judgment in the first above-entitled action should be reversed and a new trial granted, costs to abide the event.

The second action was also brought to recover money deposited with defendant by plaintiff’s intestate, and for which defendant gave her the following paper:

“ $178.33.
“Due Mrs. M. E. Sheldon one hundred and seventy-eight dollars.
“ Bouses PoiNT, April 29, 1863.
“ (Signed) E. HEATON.”

The defendant, in his answer, set up with other defenses the Statute of Limitations as a bar to the action, and the court below dismissed the complaint on that ground.

The paper given by defendant to Mrs. Sheldon was a promissory note (Russell v. Whipple, 2 Cow. 536; Kimball v. Huntington, 10 Wend. 675; Sackett v. Spencer, 29 Barb. 180), and no time of payment being mentioned, it was payable immediately. (Cornell v. Moulton, 3 Den. 12, 13.)

Therefore, it appears that on April 29, 1863, the defendant and Mrs. Sheldon liad a transaction by which the latter delivered to the former $178.33, and a written agreement was then made between the parties by which defendant agreed to pay the sum advanced to Mrs. Sheldon immediately. Under the written contract deceased could have sued at once without a demand. An action would have been a demand. We are of opinion that the parties to the transaction in question having voluntarily entered into a written contract, their rights are to be determined by the writing, and its terms cannot be varied by parol testimony. Plaintiff would not claim that it could be shown by parol evidence that the defendant was to allow Mrs. Sheldon interest at less than the legal rate on the money advanced, or that it could be shown that there was an agreement that the money should not be paid for a year or more. Under the written contract the $178.33 advanced was payable immediately. Yet the plaintiff seeks to show by parol testimony that .the oral contract of the parties was that the money should not be paid until after a demand, which demand was not made until over thirty years had elapsed. We are of the opinion that the terms of the written contract could not be varied by an oral agreement made at the time of its delivery. (See Read v. Bank of Attica, 36 N. Y. St. Repr. 894; Carter v. Hamilton, 11 Barb. 147-150.)

It follows that the trial judge disposed of the case properly on the trial, and hence that the judgment should be affirmed, with costs.

MayhaM, P. J., and Hebbiok, J., concurred.

In the first above-entitled action judgment reversed and a new trial granted, costs to abide the event; in the second above-entitled action judgment affirmed, with costs.

        Sic.


author: PUTNAM, J.:

text:
    Marcus P. Mason, Respondent, v. Amasa Corbin, Jr., Appellant.

      False representations — remedy of the party defrauded — -findings of a referee as to fraud — impeaching a witness — when a complaint will he deemed sufficient on appeal.

    A party defrauded on discovering the fraud may rescind the contract, returning whatever he has received thereunder and recover the purchase price paid, or he may retain the property he has received and sue to recover his damages.
    An action may he maintained to recover damages resulting from the alleged fraud of the defendant in falsely representing the .condition of a corporation at the time of the sale by him to the plaintiff of its stock, notwithstanding the fact that soon after the plaintiff’s purchase of the stock he was informed of the true condition of the corporation and retained his stock and afterwards became an officer thereof.
    In an action brought to recover damages resulting from such fraudulent representations, if the referee, to whom the action is referred, finds that the defendant made the alleged representations about the condition of the company, knowing them to be false and for the purpose of inducing the plaintiff to purchase the stock in question, he finds as a fact that the defendant in such transaction acted fraudulently and with the intent to defraud the plaintiff.
    The plaintiff in an action cannot be allowed to prove by his own witness conversations had between the plaintiff- and such witness, not in the presence of the defendant, and to impeach the statements of his own witness as to such conversations by proving contradictory statements made by the witness out of court.
    Where no objection to a complaint was presented either by motion or demurrer, or upon the trial, it will be deemed sufficient on appeal.
    Appeal by the defendant, Amasa Corbin, Jr., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of tfie clerk of the county of St. Lawrence on the 19th day of June, 1893, noon the report of a referee.

      E. S. Weary, for the appellant.

      A. E. Kilby, for the respondent.
   PUTNAM, J.:

The action was brought to recover damages for the alleged fraud of the defendant on the sale of stock of the St. Lawrence Manufacturing Company to the plaintiff in falsely representing the condition of said company.

The learned counsel for appellant urges that plaintiff cannot maintain the action ; that he is estopped by his conduct since January, 1889 ; that soon after his subscription for the stocki, in December, 1888, he was informed of the true condition of the company, and that retaining his stock and afterwards becoming an officer of the company, and acting as such, he cannot now maintain the action.

The referee, however, found as a fact that plaintiff did not learn the real condition of the company until the month of May, 1890. "Were it otherwise, however, the action was brought to recover damages. The plaintiff did not claim to rescind. It is well settled that a party defrauded, on discovering the fraud, may rescind, returning whatever he has received, and recover the purchase price paid, or he may retain the property he has received and sue to recover his damages. Such an action the plaintiff has brought. We see no reason why he should not recover if the facts are as claimed by him. (Miller v. Barber, 66 N. Y. 558; Krumm v. Beach et al., 96 id. 398; Strong v. Strong, 102 id. 69; Pryor v. Foster, 17 N. Y. St. Repr. 472.)

It is suggested by the appellant that the complaint does not allege, nor does the referee find, that on the sale of the stock in question the defendant acted fraudulently or made the alleged representations with intent to defraud or deceive.

The complaint, no objection to it having been raised by motion, demurrer or upon the trial, should be deemed sufficient on appeal. On examining the referee’s report and findings we think he does find as a fact that the defendant in the transaction which is the subject of tbe action acted fraudulently and witli intent to defraud the plaintiff. The referee finds that the defendant made the alleged representations about the condition of the company knowing them to be false, and with intent to and for the purpose of inducing the plaintiff to purchase the stock in question.

The appellant further urges that the referee’s findings were not supported by the evidence. "We will not undertake to discuss the evidence in the case. After a careful consideration of it we are of opinion that it was such that this court could not properly reverse the judgment directed by the learned and experienced referee on the facts.

Nor do we think it necessary to discuss the many exceptions made by the appellant on the trial, which are referred to in his brief, and which it is now claimed should cause a reversal of the judgment entered in the action.

After a careful reading of the case and consideration of the briefs presented by the parties we should be in favor of an affirmance of the judgment, were it not for what was doubtless an inadvertent error of the learned referee in overruling the objections of defendant to improper evidence offered by the plaintiff.

On the trial the plaintiff read the reports of the St. Lawrence Manufacturing Company for January 1, 1888, and January 1, 1889. Plaintiff also called as a witness Sylvester F. Hartley, who was a trustee of said company at said periods, and acted as treasurer or secretary. It was shown by the witness that he was at plaintiff’s house on one occasion in 1890. He was asked : “ Did you on that occasion state that Mr. Corbin (defendant) stated that it was necessary to put in these patents to cover the deficiency ? ” The question referred to the report of 1889. The witness answered: “No, sir.” He was further asked : “ Q. Did you state to him that these were put in to cover a deficiency ? * * * A. Not to my knowledge. I will not swear that I didn’t. Q. Did you state to Mr. Mason what else could they be put there for except to cover a deficiency?, * * * A. That was the position taken by Mr. Mason. Question repeated. A. No, sir. Possibly Mr. Mason did ask me if I put my name on that statement, and possibly I did tell him that I didn’t put it there, but that I suppose Mr. Corbin did.” The witness further testified : “ I was not aware that any old and worthless accounts went into the statement of January 1, 1888. Did not so state to Mr. Mason at his house at Carthage. Did not state to him that of $5,000 that went into that inventory they were not worth five cents on the dollar. Did not state to him that for the $7,000 I would not give over $2,000.”

The above-quoted evidence of conversations of the witness with plaintiff was properly objected to by the defendant. It did not appear that the defendant was present. Hartley was plaintiff’s witness, and, under well-settled principles, his testimony as to said conversations was hearsay and incompetent.

Afterwards Ezra E. J enne was called by plaintiff, and testified as to the interview of Hartley with plaintiff at the latter’s house. The witness was then, among other things, asked the following questions and made the following answers, defendant interposing the proper objections, after the witness had stated : <s Met Mr. Hartley at Mr. Mason’s house in February or March last. There was a conversation between them in reference to the annual statement of 1889. Q. Hpon that occasion did Mr. Mason ask Mr. Hartley this question : "What are the patents put in for ? * * * A. Tes, sir. Q. Did he reply, you can judge for yourself? * * * A. That was not just the answer. Q. Did Mr. Mason say to him, I have my own opinion about it; what do you think they were put in for ? * * * A. That was not the conversation. Q. Did Mr. Hartley say, what else could they be put in for except to cover up a deficit ? * * * A. Tes; he did say that. On that occasion Hartley and plaintiff talked with reference to the statement of January 1st, 1888. Q. Did Mr. Hartley upon that occasion say that worthless accounts went into that statement under his objection? * * * A. Yes, sir. Q. Did Hartley say there were $5,000 put in that he would not give five cents upon the dollar for? * * * A. Yes, sir; he said that. Q. Did he say with reference to the statement of January 1st, 1889, that he refused to sign that statement? * * * A. He did. * * * Q. Did Mr. Hartley say to you on the train going to Champlain that he declined to sign the statement and left the room ? - * * A. He did.”

. The plaintiff was thus allowed by the referee to prove by his own witness conversations had between the plaintiff and the witness, and to impeach the statement of his own witness as to said conversations by proving contradictory statements made out of court. If is clear that such evidence was incompetent. (People v. Safford, 5 Den. 112; Thompson v. Blanchard, 4 N. Y. 303; Pollock v. Pollock, 71 id. 137, 138; Becker et al. v. Koch, 104 id. 394-401.)

Ye are unable to say that the evidence so improperly received was immaterial and did not affect the result. No such claim is made by the counsel for respondent.

For this error we feel compelled to direct a reversal of the judgment and a new trial of the case, with costs to abide the event.

Mayham, P. J., and Herrick, J., concurred.

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


author: PüTNAM, J.:

text:
    The People of the State of New York v. Frank Campbell, as Late Comptroller of the State of New York, and James A. Roberts, Comptroller of the State of New York, Respondents.

      Railroad corporation, —readjustment of a franchise tax under section 19 of chapter 542 of 1880 [added by chapter 463 of 1889] — sufficiency of the verification of the petition — discretion of the Comptroller in receiving evidence — property employed without the State — bonds and stock of foreign corporations, their legal situs.

    A petition was made to the Comptroller of the State of New York by a railroad corporation, under the provisions of section 19 of chapter 542 of the Laws of 1880 (added by chapter 463 of the Laws of 1889), for the readjustment of the franchise tax assessed against it for certain years. The petition was signed by John Carstensen, comptroller of such corporation. The verification to the petition was not signed by him and was in the following form :
    “State of New York, ) . City and County of New York, '
    “John Carstensen, being duly sworn, and being duly known to me as the Comptroller of the New York Central and Hudson River Railroad, states that he is the said comptroller and that the facts set forth in the foregoing statements are correct and true to the best of his knowledge and belief.
    “ [l. s.] _ D. "W. PARDEE,
    “ Notary Public, Kings Couhty.

      ‘ Cert, filed in New York County, Nov. 28, 1893.”

      Held, that Carstensen, Raving signed the petition and being named in the affidavit of verification, it was not necessary for him to sign the verification;
    That the effect of the affidavit of verification was not impaired because of the words “ to the best of his knowledge and belief ” at the end thereof.
    In reviewing the decision of the Comptroller, under the provisions of section 19 of chapter 548 of the Laws of 1880 (added by chapter 468 of the Laws of 1889), the General Term of the Supreme Court is not governed by the same rules as are applicable on an appeal from a judgment entered in an ordinary action of law. The strict rules of evidence applied fn actions do not govern in a proceeding before the Comptroller, and he may receive affidavits as well as evidence.
    The Comptroller of the State of New York, in a proceeding brought before him for a readjustment of a franchise tax under the provisions of section 19 of chapter 543 of the Laws of 1880 (added by chapter 468 of the Laws of 1889), is in fact an assessor; and, on a motion for the revision of an assessment on account of a mistake as to the amount of the capital stock of a corporation employed in the State, the Comptroller inay usually determine for himself what evidence he requires of the facts) and it is competent for him to rely upon the books and records of the corporation showing the amount of its property employed out of the State, and the General Term of the Supreme Court will not reverse his finding on the ground that it was based on such evidence.
    That part of the capital stock of a railroad company which is invested in freight cars, permanently engaged out of the State, is not subject to a franchise tax under the provisions of chapter 542 of the Laws of 1880, and the acts amenda-tory thereof and supplemental thereto, and the stock of foreign corporations, in which a portion of the capital stock of such railroad company is invested, is not capital stock used in the State of New York.
    The bonds of foreign corporations, owned by a railroad company incorporated under the laws of the State of New York, are presumably held at the office of such company within this State, and, in determining the amount of its franchise tax, such bonds, as well as all choses in action, unless kept, employed or used without the State, have their situs at the domicile of the owner, and are properly included as part of the capital stock of the railroad corporation.
    OuRTioRARi issued out of the Supreme Court and attested on tlie 24th clay of March, 1894, directed to Eranlc Campbell, as late Comptroller of tlie State of New York, and James A. [Roberts, as Comptroller of the State of New York, commanding them to certify and return to tlie office of the clerk of the county of Albany all tlieir acts and proceedings relative to the revision and readjustment of the amount of taxes of the New York Central and Hudson [River ’Railroad Company.

      T. E. Hancock, 'Attorney-General, and G. D. B. Easbrouck, Deputy Attorney-General, for The People.

      J. Newton Fiero, Willard Brown and Charles W. Wells, for Frank Campbell, late Comptroller.

      Nathaniel W. Norton, for Comptroller James A. Roberts.
   PüTNAM, J.:

The New York Central and Hudson River Railroad Company, for the years 1885, 1886, 1887, 1888, 1889, 1890 and 1891, made tbe annual report required by chapter 542, Laws of 1880, and tli.e several acts amendatory and supplementary thereto, and paid the tax required by said statute-on its franchise or business. It will be seen by an examination of its reports contained in the case, on which the annual franchise tax was computed, that it failed to state in either the amount of its capital stock employed within the State, as required by section 11 of chapter 542 of the Laws of 3 880 (added by chapter 151, Laws of 1882), as amended by chapter 501, Laws of 1885.'

The Comptroller, therefore, assessed the corporation for each year above mentioned upon its full capital stock, and the tax by him assessed was duly paid.

On or about November 29, 1893, in pursuance of the provisions of section 19 of chapter 542 of the Laws of 1880 (added by chapter 463 of the Laws of 1889), the said corporation applied to the Comptroller for a revision or readjustment of said franchise tax so assessed for each of the years above mentioned.

The application was made by a petition or communication to the Comptroller, purporting to be made by the New York Central and Hudson River Railroad Company, and signed by J. Carstensen, its comptroller. The verification to said communication was not signed by said Carstensen, and was as follows:

City cmd County of New Work, )
“John Carstensen, being duly sworn, and being duly known to me as the Comptroller of the New York Central and Hudson River Railroad, states that he is the said comptroller, and that the facts set forth in the foregoing statements ai-e correct and true to the best of his knowledge and belief.
[L. S.]
D. ~W. PARDEE,
Notary Public, Kings County.
“Cert, filed in New York county, Nov. 28, 1893/

Tbe application for a revision was beard and granted. Tbe Comptroller allowed tbe railroad company tbe following credit upon its tax for tbe years above mentioned : 1885, $10,749.93 ; 1886, $12,455.71; 1887, $13,179.81; 1888, $13,430.60; 1889, $12,381.06; 1890, $12,735.13; 1891, $12,795.24,” a total of $87;727.48.

Tbe matter comes before tbis court upon a certiorari issued pursuant to tbe provisions of section 20 of chapter 542 of tbe Laws of 1880 (added by chapter 463 of tbe Laws of 1889). The learned Attorney-General urges that tbe statement of tbe railroad company used before tbe Comptroller on tbe revision was not properly verified, and was not evidence of tbe facts therein stated, and that tbe Comptroller bad no sufficient proof before him to justify tbe correction of taxes which bad been duly assessed and paid. Also, that no notice of tbe application for tbe revision was served upon the Attorney-General according to tbe previous practice of tbe Comptroller’s office. Also, that certain bonds owned by tbe corporation during tbe years in question were illegally held by tbe Comptroller to be a part of its capital stock employed out of the State.

As to tbe objection that tbe petition for tbe revision signed by J. Carstensen, tbe comptroller of tbe railroad, was not properly verified, we are of tbe opinion that Mr. Carstensen, having signed tbe petition and being named in tbe affidavit of verification, it was not necessary for him to sign tbe latter. (Haff v. Spicer & Ano., 3 Caines, 190; Jackson ex dem. Kenyon v. Virgil, 3 Johns. 540.)

Nor was tbe effect of tbe affidavit of verification impaired because of tbe words to tbe best of his knowledge and belief ” at tbe end thereof. (Pratt v. Stevens, 94 N. Y. 387.)

By tbe petition of tbe railroad company signed by Carstensen it appears that be bad examined tbe records kept by tbe company, and that during tbe years in question, as shown by the said records, a certain amount of the capital stock of tbe railroad company was employed out of tbe State. It is claimed by tbe People that there was no proof before tbe Comptroller that tbe books and records of tbe railroad company were correct, and hence there was no competent evidence before him to justify tbe revision.

As we understand the petition and affidavit, Mr. Carstensen states in tbe petition that be bad obtained tbe figures appearing in bis statement from tbe records and books, and believes them correct, and in the affidavit says that the facts set forth in the petition are. correct and true. We think that in such a case the papers were sufficient to authorize the determination of the Comptroller.

In reviewing a decision of the Comptroller*, under the provisions of the act of 1889, we are not governed by the same rules as are applicable on an appeal from a judgment entered in an ordinary action of law. The strict rules of evidence applied in actions do not govern in a proceeding before the Comptroller. He may receive affidavits as evidence. (People ex rel. Harlan & Hollingsworth Co. v. Campbell, 139 N. Y. 68.)

The Comptroller is in fact an assessor, and may determine the matter submitted to him upon evidence which would not be deemed admissible in a common-law action. (People ex rel. Roebling’s Sons’ Co. v. Wemple, 138 N. Y. 582, 583.)

On the application for a revision, the railroad company submitted a statement taken from its records as evidence. As said in People ex rel. Harlan & Hollingsworth Co. v. Campbell (supra) at page 71, the case shows that the Comptroller received the petition as evidence of the facts therein set forth, and it does not appear that any one objected to it as not competent. The Comptroller might have required further proof, but he was satisfied that the statement taken from the books of the company showed the actual amount of its capital stock employed out of the State. In his return he says: “ The New York Central and Hudson River Railroad Company submitted evidence to the Comptroller which showed the employment of a portion of its capital stock out of the State and how much thereof was so employed, and the Comptroller thereupon resettled the accounts of such company so as to confine the tax to the capital stock employed within the State of New York as required by law. * The evidence submitted satisfied him of the truth of the facts alleged, and warranted him in entering the order correcting the error in the accounts as theretofore settled.”

We suppose, as a matter of fact, that the reports made to the Comptroller by corporations in pursuance of the act of 1880 are usually drawn from their books and records. It is difficult to see how otherwise corporations could make a report required by the act. Had this railroad company, in making its annual reports for the years, given the amount of capital stock employed out of the State, and so stated from statistics contained in its books and records, the Comptroller undoubtedly would have been authorized to deduct the amount of capital stock so said to be employed out of the State from information derived from the books of the company. We see no reason to doubt that, on the motion for a revision of an assessment on account of a mistake as to the amount of capital stock employed in the State, the Comptroller may also rely upon information derived from the books of the company. We are of opinion that the Comptroller may usually determine for himself what evidence he requires of the facts on the motion for a revision; that it was competent for him to rely upon the books and records of the company showing the amount of its property employed out of the State, and that this court cannot properly reverse the finding of the Comptroller on the ground that it was based on such evidence.

The objection is also taken to the revision made by the Comptroller on the ground that no notice of the application for a revision was given to the Attorney-General according to the usual practice. It is sufficient to say in answer to this position that the return in the case of Comptroller Campbell controverts the affidavit of Charles E. Kilmer in regard to the existence of any such practice in cases of revision when the application therefor is made subsequent to the payment of the tax.

The statement from the records of the New York Central and Hudson Hiver Nailroad Company which the Comptroller received in evidence and which we think he had, in his discretion, a right to regard, as to the amount of the capital stock of the company employed out of the State during the years in question, showed that during each of said years a large number of freight cars were permanently occupied out of the State and tliat the company also had a portion of its capital stock invested in the stock of foreign corporations and also in corporate bonds.

It does not require a discussion or citation of authorities to show that such part of the capital stock of the railroad company as was invested in freight cars permanently engaged out of the State was n°t subject to the franchise tax under the provisions of chapter 542, Laws of 1880, and the acts amendatory and supplementary thereto. (Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18; Commonwealth v. Del., L. & W. R. R. Co., 145 Penn. St. 96.)

It is equally clear that the stock of foreign corporations in which a portion of the capital stock of the company was invested was not capital stock used in the State. (People ex rel. Edison Electric Light Co. v. Campbell, 138 N. Y. 543-546.)

We, therefore, think that the Comptroller was justified in making the revision he did of the tax assessed against the railroad company as far as it was assessed on that portion of the capital stock of the corporation invested in freight cars permanently engaged out of the State and in the stock of foreign corporations.

We, however, are unable to agree with the Comptroller that the bonds of foreign corporations held by the.New York Central and Hudson River Railroad Company were a part of its capital stock employed out of the State. The amount allowed by the Comptroller on account of such bonds during the years in question is stated to be $13,560.15. Nothing appears in the case to show that those bonds were employed, out of the State. In People ex rel. E. E. L. Co. v. Campbell (supra), at page 547, it is said, a similar question arising in that case to the one under consideration: “ Those bonds were presumably held at its office in this State, and such bonds, as well as all ehoses in action, unless kept, employed or used outside of the State, have their situs at the domicile of the owner.” It is suggested by the learned counsel for the respondents that the clause in the opinion of Eael, J., above quoted, was obiter. We think, however, that the opinion of the eminent judge who delivered the opinion of the Court of Appeals in the case cited may be considered an authority and properly followed, although not absolutely necessary in the decision of the case in which it was written.

Our conclusion, therefore, is that the allowance made to the New York Central and Hudson River Railroad Company on the revision should be corrected by deducting therefrom the amount allowed on account of capital stock invested in the bonds of foreign corporations during the years in question, and as so modified the decision of the Comptroller should be confirmed, without costs to either party.

Mayham, P. J., and HeeeioK, J., concurred.

Decision of the Comptroller modified as per opinion and as modified affirmed, without costs to either party.


author: PutNam, P. J.:

text:
    Margaret A. Swift, Appellant, v. Charles H. Swift and Mary Louisa Swift, Respondents.

      Bower — reference to assess damages for the loithholding thereof — costs set off against the costs of an adverse pcvrty.

    In. an action brought to recover dower in real estate occupied by one of the defendants, and damages for withholding the same, the defendants appeared, but did not answer. After the usual reference commissioners were appointed, who made a report admeasuring the plaintiff’s dower, but did not report on the question of damages.
    After such report was made, and before the entry of judgment, the plaintiff ■ applied for and obtained an order of reference to compute her damages. Such order of reference provided that the referee was authorized to determine whether the plaintiff’s damages, “ if any, were taken into consideration by the commissioners heretofore'appointed herein for the admeasurement of plain tiff’s dower in said premises, and whether said commissioners made plaintiff due and full compensation for such damages in their award.”
    The referee reported as follows : “ That said commissioners took into consideration the farm as it stood when the division was made, as to the crops being on the land or off, and made plaintiff due, full, complete and adequate compensation for any and all inequalities which existed in the land set apart to her by reason of hay or pasture being removed therefrom, and any and all damages which she sustained by reason of the dower being withheld from her in said farm by the defendant.”

      Held, that under the order of reference which was obtained and entered by the plaintiff, the referee was authorized to receive evidence as to the action and finding of the commissioners, although the latter made no formal report on the question of the plaintiff’s damages.
    The judgment as entered contained no provisions in reference to the plaintiff’s claim for damages, or for the costs of the defendants on their motion for an order confirming the referee’s report denying plaintiff’s claim for damages.

      Held, that the proper procedure when the final judgment was entered would have been to deduct the motion costs of the defendants from the amount of the plaintiff’s claim and insert in the judgment a clause denying the plaintiff’s claim for damages;
    That the judgment might be amended by an order confirming the report of the referee denying the plaintiff’s claim for damages and directing that the costs of such motion as taxed be set off against the plaintiff’s costs in the final judgment.
    Appeal by the plaintiff, Margaret A. Swift, from an order of the Supreme Court, made at the Ulster Special Term and entered in the ofBce of the cleric of the county of Albany on the 22d day of March, 1895, confirming the report of tlio referee and offsetting the costs allowed and taxed to the defendants upon their motion for such order, against the costs allowed and taxed to the plaintiff in the final judgment, with notice of an intention to bring up for review upon such appeal an order of the Supreme Court, made at the Albany Special Term and entered in the office of the cleric of the county of Albany on the 26th day of February, 1895, granting a stay of proceedings.

      8. A. Hungerford, and Lewis Gass, for the appellant.

      Walter E. Ward, for the respondents.
   PutNam, P. J.:

The practice adopted in this action is not to be commended. It was brought to recover dower in real estate occupied by defendant Charles TI. Swift, and damages for withholding the same. The defendants apjieared in the action, but served no answer. After the usual reference, commissioners were appointed, who made a report, admeasuring plaintiff’s dower, dated July 30, 1892. The commissioners did not report on the question of damages. After such report was made and before the entry of judgment plaintiff applied for an order of reference to a referee to compute her damages. The order asked for was granted on the 26th day of November, 1892. It appeared that defendants had paid plaintiff for the use of her part of the premises up to April 1,. 1892, so that the only damage, if any, she was entitled to was for the withholding her dower from that date until July 30, 1892, the date of the report of the commissioners.

It is claimed by plaintiff that defendants not having answered or set up any counterclaim, the referee to compute damages for the withholding of plaintiff’s dower erred in receiving evidence tending to show a counterclaim offered by defendants and in acting upon such evidence. But it will be observed that the order of reference which plaintiff obtained provided that the referee was authorized to determine whether plaintiff’s damages, if any, were taken into consideration by the commissioners heretofore appointed herein for the admeasurement of plaintiff’s dower in said premises and whether said commissioners made plaintiff due and full compensation for such damages in their award.” And the referee reported as follows: “ That said commissioners took into consideration the farm as it stood when the division was made, as to the crops being-on the land or off, and made plaintiff due, full, complete and adequate compensation for any and all inequalities which existed in the land set apart to her by reason of hay or pasture being removed therefrom, and any and all damages which she sustained by reason of the dower being withheld from her in said farm by the defendant Charles IT. Swift from April 1st, 1892, to the time such division was made.”

We are of opinion that the evidence sustained this finding of the íeferee, and that under the order of reference which was obtained and entered by the plaintiff the referee was authorized to receive evidence as to the action and finding of the commissioners although the latter made no formal report on the question of plaintiff’s damages.

We think, therefore, that the conclusion reached by the referee against plaintiff’s claim for damages for withholding her dower for the three months in question was right and should be sustained. The commissioners had considered her claim, compensated her, and the order of reference which plaintiff obtained allowed the referee to consider the action of the commissioners.

On the report of the referee disallowing plaintiff’s claim defendants entered a separate judgment for costs as if a separate action were pending for damages. The judgment was afterward set aside by the court. Afterward the plaintiff entered a final judgment in favor of herself for the admeasurement of her dower with costs. This judgment contained no provisions in reference to plaintiff’s ■claim for damages. The defendants then made a motion that the report of the referee denying plaintiff’s claim for damages be confirmed and that the costs of such motion, which were taxed at $159.53, be set off against plaintiff’s costs in the final judgment. The motion was granted and the order made, from which this appeal is taken.

The proper .procedure would have been, when the final judgment was entered, to have deducted such motion costs as defendants were entitled to from the amount of plaintiff’s claim, and also to bave inserted in tbe judgment a clause denying plaintiffs claim for damages. But tbe judgment containing no provisions in regard to tbe claim of plaintiff for damages or for tbe costs of tbe defendants on tbe motion, we see no legal objection to tbe remedying of tbe omission by tbe order in question. It may be regarded as an amendment of the judgment.

■We think, however, there was an error in tbe amount of costs allowed. No answer was served; there was no issue; hence defendants were only entitled to motion costs, ten dollars ; referee’s fees, eighty dollars; witness fees, three dollars and ten cents ; and postage, twenty-four cents; in all ninety-three dollars and thirty-four cents.

Tbe order should be modified accordingly, and as modified affirmed, without costs to either party.

FuesmaN, J., concurred; Heeeiok, J., not acting.

Order modified as per opinion and as modified affirmed, without costs to either party.