author: O’BRIEN, J.:

text:
    In the Matter of VALENTINE MULLER.

      'Contempt — commitment therefor— when it is sufficient notwithstanding a failure to recite service upon the relator of the order disobeged — habeas coo'pus.

    'Valentine Muller was committed for a civil contempt by the order of a court wbicb bad jurisdiction of his person and of the subject-matter, but the order did not .recite that the original order which he had disobeyed had been served upon him. Muller thereupon took proceedings by writ of habeas corpus for his discharge ffrom imprisonment, upon the ground that the failure to show service upon him ■of the original order was a jurisdictional defect.
    TJpon an appeal from an order discharging him upon this ground:

      .Held, that the discharge was improper.
    'That it was not necessary that the process of commitment should recite all the facts and proceedings necessary to confer jurisdiction, it being sufficient when, upon its face, it appeared to have been issued in a proceeding of which the court had jurisdiction, stated in substance the cause of the commitment, and specified the act or duty to be performed and the expenses to be paid.
    The distinction between an appeal involving all the proceedings and a proceeding initiated by habeas corpus, presenting only the question as to the validity of the commitment upon its face, stated.
    Appeal by Balthazar Schmitt, the plaintiff, in an action in the ■Court of Common Pleas for the city and county of New York, against Yalentine Muller, as receiver, in which action the said Muller, was committed to the common jail of the city and county of New York for contempt under a warrant issued pursuant to an order of commitment of said Court of Common Pleas, from an order of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 21st day of December, 1892, discharging said Muller from imprisonment.
    The order for commitment was as follows:
    BALTHAZAR SCHMITT, Plaintiff, I against ) Order for commitment. VALENTINE MULLER, Defendant. )
    A motion coming regularly on to be heard on the order to show cause herein, dated the 22d day of November, 1892, why Yalentine Muller, the receiver heretofore appointed in this action, should not be punished for contempt of court for misconduct in the office of receiver, and for willful neglect of his duty as receiver, as set forth in the papers herein; now, on reading and filing the said order to show cause, and the affidavit of Franklin J. Bischoff, verified the 22d day of November, 1892, and affidavit of service of a copy of said order to show cause, and affidavit on Yalentine Muller, receiver, and on the order of this court, bearing date the 2d day of September, 1892, duly entered in this action, the order of this court, bearing date the 15th day of September, 1892, and duly entered in this action, and on all the proceedings herein, and after hearing Franklin J. Bischoff, of counsel for plaintiff herein, in support of said motion, and August P. "Wagener, Esq., of counsel for said Yalentine Muller, receiver, in opposition thereto, it is

      Considered m«d Adjudged, That the said Yalentine Muller has been and is guilty of the misconduct alleged against him in this proceeding, in having willfully disobeyed the said order of this court, bearing date the 2d day of September, 1892, by failing to pay to the plaintiff or his attorney, Franklin J. Bischoff, the sum of two hundred and seventy and yLL dollars, costs of the reference therein referred to, and in failing to pay into court to the credit of this action within five days after the service upon him or his attorney of a copy of said order, bearing date the 2d day of September, 1892, the sum of eight hundred and forty-eight dollars and seventy-five cents, pursuant to said order, and that such misconduct was calculated to and did actually defeat, impair, impede and prejudice the rights and remedies of the plaintiff in this proceeding; and it is further

      Ordered and Adjudged, That the said Valentine Muller be and he is hereby directed to stand committed to the common jail of the city and county of New York, there to remain charged upon said contempt until he shall comply with the said order of this court in this action, dated the 2d day of September, 1892, by the payment into court to the credit of this action of the sum of eight hundred and forty-eight dollars and seyenty-five cents, and the payment to the plaintiff or his attorney, Franklin J. Bisclioff,-the sum of two1 hundred and seventy dollars and fifty-five cents, together with ten dollars costs of this motion, unless he shall be sooner discharged by the court, and that a warrant of commitment issue to carry this order into effect.
    (Ent.) EL W. BOOKSTAVER,

      J. O. O. P.

      William G. Clifford, for the apptellant.

      A. P. Wagner, for the respondent.
   O’BRIEN, J.:

The relator applied for his discharge by writ of habeas corpus, alleging, amongst other things, that he was held by virtue of a commitment for civil contempt, which did not recite all the jurisdictional facts, and was, therefore, void.

The point suggested, and the ground upon which the relator was discharged was, that the commitment did not recite that the order requiring him to pay the amount specified was ever served upon him, or any demand made upon him to comply therewith. This was held to be fatal, and the relator was discharged.

Upon the return the commitment shows that it was issued by the Court of Common Pleas in a proceeding had to punish the relator for contempt. No question can arise but that the court had jurisdiction of tlfe subject-matter, and of the person of .the relator. All the other facts required in the Code are recited; and the question left for determination is, whether the failure to recite the service of the original order in the commitment itself rendered the latter void. We think that this case, in principle, is controlled by that of Seaman v. Duryea (11 N. Y., 324), wbicb, in effect, bolds that it is not requisite that the process of commitment should recite all the facts and proceedings necessary to confer jurisdiction; that it is sufficient if, upon its face, it appears to have been issued in a proceeding of which the court had jurisdiction, states, in substance, the cause of the commitment, and specify the act or duty to be performed, and the expenses to be paid.

In this connection we think it important to keep in view the distinction between an appeal, which would involve all the proceedings and in which the steps leading up to the final commitment would be set forth and presented for review, and a proceeding initiated by habeas corpus for the purpose of inquiring into the regularity of the commitment and which presents simply the question of its validity on its face. As held by IN&eaham, J., in Davison's Case (13 Abb., 138, head-note), if it appears on the return to a writ of habeas corpus that the prisoner is detained in custody for a contempt specially and plainly charged in the commitment by some court having authority to commit for the contempt charged, it is the duty of the officer conducting the proceedings forthwith to remand the prisoner into custody. In a commitment for contempt by a court of general jurisdiction all the preliminaries to warrant the imprisonment need not be set out. The proper remedy in cases of irregularities in proceedings by which a party had been adjudged guilty of contempt by a court of general jurisdiction is by motion in the court in which the judgment was rendered.”

An examination of this commitment will show that such jurisdictional facts, as are required by the Code, are recited in the commitment; and we do not think the validity of the commitment is ajfected by the failure to recite the evidence or the preliminary steps which led up to the granting of the writ, one of which was the service of the order requiring him to do the acts for failure to do which he was punished as for a contempt.

Ve are of opinion, therefore, that the order should be reversed and the sheriff directed to retake the relator into his custody.

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

Order reversed and the sheriff directed to retake the relator into his custody.


source: Caselaw Access Project

author: Follett, J.:

license: Public Domain

text:
    ALBERT W. TODD and Another, Composing the Firm of L. FEUCHTWANGER & CO., Respondents, v. JAMES GAMBLE and Others, Composing the Firm of PROCTOR & GAMBLE, Appellants.

      Contracts to manufacture — breach thereof by purchaser — delivery, when excused — measure of damages — cost of production, when it may be shown — burden of proof.

    In an action brought to recover damages upon an executory contract to manufacture certain merchandise, it appeared that the plaintiffs were manufacturers of silicate of soda used in the manufacture of soap; that the defendants, who were soap manufacturers, agreed to receive of the plaintiffs all the silicate of soda which the defendants would use in their business for one year at a definite price, and that after a part of the silicate had been manufactured and delivered the defendants refused to accept any more.
    The plaintiffs sued for the breach of contract and recovered judgment for the damages resulting therefrom.

      B&d, that, in the case of an executory contract to manufacture goods, if after a part has been delivered the vendee notifies the vendor that he will not receive further goods, the vendor may recover damages without manufacturing and tendering the quantity still to be delivered.
    That the measure of damages in such case is the difference between the contract- ■ price and the actual, that is to say, the market-value of the goods.
    That where no market-value can be determined thp cost of production may be shown.
    Upon the trial of the action one of the plaintiffs testified that silicate of soda had no market-value, and upon this point the plaintiffs offered no other testimony. Held, that as the witness was an interested party, the question whether silicate of soda had a market-value was one of fact which it was erroneous to withdraw from the jury
    That, unless it was found that silicate of soda had no market-value, the burden of showing which was upon the plaintiffs, evidence of the cost of production was incompetent.
    Appeal by the defendants, James Gamble and others, composing the firm of Proctor & Gamble, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 28th day of October, 1892, upon a verdict for the plaintiffs for $9,777.27 and costs, after a trial at the'New York Circuit by the court and a jury; and also from an order of said court, entered in said clerk’s office on the 27th day of October, 1892, denying a motion for a new trial made upon the usual grounds.

      Tbis action was brought to recover damages for defendants’ failure to receive and pay for silicate of soda, to be manufactured- and delivered under an executory contract.
    The plaintiffs were engaged, in this State, in the manufacture' and sale of silicate of soda, which is used in manufacturing laundry soap, in which business the defendants were engaged in the State off Ohio, The parties entered into a written contract by which the' plaintiffs agreed to thereafter deliver, and the defendants to receive,, free, on board the cars at the city of New York, all of the American-silicate of soda of the plaintiffs’ regular standard make, which the-defendants should use in their business between March 1, 1887, an& March 1, 1888, for one dollar and ten cents per hundred pounds.. Under this contract, the plaintiffs delivered 150 barrels of soda in> March, and 200 in April, 1887, containing 192,308 pounds, which was accepted and paid for. April 22, 1887, the defendants notified-the plaintiffs that no more silicate of soda would be received under the contract. It was conceded on the trial, that between the date last mentioned and March 1, 1888, the defendants purchased from other manufacturers and used in their business 1,582,468 pounds oí American silicate of soda.

      Frederick R. Kellogg, for the appellants.

      Albert B. Bodrdman, for the respondents.
   Follett, J.:

The existence of the contract, and that it was broken by the defendants, were facts conceded on the trial, as was also the quantity of American silicate of soda which defendants purchased of manufacturers other than the plaintiff, and used in their business during the term for which the contract ran. In case a vendor agrees, by an executory contract, to manufacture goods, to be delivered from time to time, as ordered by the vendee, to be paid for after each successive delivery, and the vendee, after having accepted and paid for a part, gives notice that he will not receive or pay for the rest, the vendor may recover damages for the breach of the contract without manufacturing or tendering the remainder of the goods. (Windmuller v. Pope, 107 N. Y., 674; Dingley v. Oler, 11 Fed. Rep., 373; Ripley v. McClure 4 Exc. Rep., 345.) In such a case, 'tbe vendor is not entitled to elect between several remedies, as in ■case of a sale of goods in existence and identified, or in case goods ■are manufactured before the contract is rescinded, but be is confined to recovering the difference between the contract-price and the actual money value of the property at the time and place • appointed for their delivery. (Windmuller v. Pope, supra; Borries v. Hutchinson, 18 C. B. [N. S.], 445.) This rule of liability, ■as well as the one above stated for ascertaining the amount of the .liability, seems to be acquiesced in by the learned counsel for both parties to this litigation. Both agree that when an executory sale ¡is made of articles having a market-value, which the vendee refuses ’to accept, the measure of his liability is the difference between the • contract-price and their actual value, which the law deems equivalent, to their value in the market. But, if the subject of the sale .has no market-value, the measure of the vendee’s liability is still the ■difference between the contract-price and the actual value of the {goods, the actual value being a factor in each case in determining the question of damages. "When the valué of the article cannot be ■determined by what it will sell for in the market, it must be ascertained in other ways, sometimes by showing the cost of production.

In this case the court ruled that the measure of the defendant’s liability was the difference between the contract-price and the cost •of production, impliedly holding that, under the evidence, there was :no question of fact as to whether the goods had or had not a market-'value. The court was requested to charge that the jury could not •consider the cost of producing the soda, unless they found that it had no market-value, which was refused and an exception taken. ’The defendants also requested the court to rule and charge that the hurden was on the plaintiffs to show that the silicate of soda had no .market-value, before evidence of the cost of production could be .received or considered by the jury, which was also refused and ■an exception taken. Thus the court determined, as a matter of law, that the article was without a market-value. "We think this was ■error. One of the plaintiffs was the only witness called in their behalf on this question who testified to facts which would have authorized the jury to have found that the goods had no market-walue, but he admitted that, on a former trial, he testified to the market-price of the article at the time the contract was made, and for six months following. This witness being an interested one bis credibility was for the jury. The evidence of Mr. Lincoln, taken on the former trial, was admitted on the last one, in which he stated the market-prices of silicate of soda between March 1, 188Y, and March 1, 1888. The burden was on the plaintiffs to show that the article had no market-value, and under the state of the evidence disclosed by the record, whether it had or had not such a value, was a question of fact for the jury, and not one of law for the court. In New Pork and Maine Granite Paving Company v. Howell (7 N. T. St. Rep., 494) damages were sought to be recovered from a vendee for refusing to accept paving granite. The plaintiff insisted that the actual value of the goods was to be ascertained by proving the cost of production, while the defendants contended that their market-value was proof of actual value. The trial court held, as a matter of law, that the granite had no market-value, and refused to submit that question, as one of fact, to the jury, which was held to be error.

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

O’BRIEN and Barrett, JJ., concurred.

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


author: POLLETT, J. :

text:
    THE SOUTH PUBLISHING COMPANY, Appellant, v. THE FIRE ASSOCIATION OF PHILADELPHIA, Respondent.

      Foreign insurance corporation — service of a summons upon, by its delvm'y to the superintendent of the insurance department — when service upon a clerk is sufficient.

    The statutes of the State of New York require a foreign fire insurance corporation, desiring to do business in this State, to appoint the superintendent of the State Insurance Department its attorney, and provide that, so far as relates to the service of papers, in an action or proceeding brought against the foreign corporation, such service upon the superintendent shall be equivalent to service upon the corporation.

      The superintendent, wlio had power to appoint clerks and deputies, and to prescribe their duties, appointed a clerk to take charge of the service of papers upon him for foreign corporations.
    In the absence of the superintendent service of a summons and complaint, in an action brought by the South Publishing Company against the Fire Association of Philadelphia, a foreign corporation organized under the laws of Pennsylvania, was made upon the clerk, and subsequently the superintendent admitted service of the papers, which service the court, upon motion of the defendant, set aside.
    Upon an appeal by the plaintiff from the order setting aside the service:

      Held, that the statute, being remedial and designed to permit our courts to obtain jurisdiction of foreign corporations doing business in this State, should be liberally construed.
    That the superintendent had power to appoint a clerk to take charge of the matter of such service; and where service upon the clerk was authenticated by the written admission of the superintendent, it was valid and binding upon the foreign corporation.
    Appeal by the plaintiff, the South Publishing Company, from an order of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 25th day of October, 1892, granting the defendant’s motion to set aside the service of the summons in this action.

      W. H. Arnoux, for the appellant.

      H. Cardoso, for the respondent.
   POLLETT, J. :

The defendant is a fire insurance corporation, organized under the laws of the State of Pennsylvania. Section 1 of chapter 346 of the Laws of 1884 of this State provides:

“No fire, fire marine, life or casualty insurance company or association, organized oi' incorporated under the laws of any other State of the United States, or of any foreign government, shall directly or indirectly issue policies, take risks or transact business in this State, until it has complied with the insurance laws, and having first appointed in writing, the superintendent of the insurance department of this State to be the true and lawful attorney of such company in and for this State, upon whom all lawful process in any action or proceeding against the company may be served with the same effect as if the company or association existed in this State. A certificate of such appointment, duly certified and authenticated, shall be filed in the office of the superintendent of the insurance department, and copies certified by him shall be deemed sufficient evidence in regard thereto. Service upon such attorney shall thereafter be deemed a service upon the company or association.”

The defendant was authorized to transact business in this State, and on July 7, 1884, duly appointed “the superintendent of the insurance department of said State, or his successor in office, its true and lawful attorney in and for the State of New York, on whom all process of law, whether mesne, or final, against said fire association, may be served in any action or special proceeding against said association in the State of New York, subject to and in accordance with all the provisions of the statutes of said State of New York now in force. * * * And the said attorney is hereby duly authorized and empowered, as the agent of said association, to receive and accept service of process in all cases as provided for by the laws of the State of New York, and such service shall be deemed valid personal service upon such association.”

It is evident from the language of the statute that the legislature intended that the superintendent, as a public officer and not as an individual, should be the one designated on whom process should be served. Such was the defendant’s construction of the act as appears from its power of attorney, and the learned counsel for both parties agree that this is the interpretation which should be given to the statute. '

August 18, 1892, the summons and complaint in this action were served upon the defendant by the sheriff of the county of Albany, by delivery to and leaving copies with a clerk in the office of the superintendent, at Albany, the superintendent then being absent. On the same day a registered letter covering the summons and complaint was mailed to the defendant. The superintendent signed a written admission of service, which, on the 13th of September, 1892, he duly acknowledged and delivered to the plaintiff. The clerk, with whom the summons and complaint were left, was specially designated by the superintendent to receive the service of processes and forward them to the defendants for whom intended.

The motion to set aside this service is upon the sole ground that it was not made personally upon the superintendent. Necessity requires and the statutes authorize many of the duties of the various departments of the government of this State to be performed by •deputies and clerks specially assigned by tbe beads of departments for sucli purposes. By statute the superintendent of insurance is ■authorized to appoint deputies, employ clerks and prescribe the •duties to be performed by them; and under this general power he had authority to designate a clerk with whom processes intended for him might be left at the department. In case a summons so ■served is subsequently brought to the attention of the superintendent, and he admits service, it is binding on defendants. The design of the statute was to afford a certain and easy method by which the courts of this_ State may acquire jurisdiction of foreign corporations who, as a favor, are permitted to carry on their business within this ■State, and it should be liberally construed so as to advance the remedy which was intended to be provided for those having occasion to bring actions against such corporations.

In this case the defendant authorized the superintendent to receive •and accept service of process in all cases, as provided for m the laws of the State, and the superintendent having power under those laws to appoint deputies and clerks and prescribe their duties, we think the service in this case, authenticated as it was by the written admission of the superintendent, duly acknowledged, was valid.

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

Yan Beunt, P. J. and O’Beien, J., concurred.

Order reversed, with ten dollars costs and printing disbursements, and the motion denied, with ten dollars costs.


text:
    THE MANUFACTURERS AND TRADERS’ BANK, Appellant, v. THE C. W. F. DARE COMPANY and Others, Respondents.

      Undertaking given upon obtaining an injunction — a discontinuance for want of prosecution is a final decision of the action.

    A bank brought an action against a corporation, of which it was a judgment-creditor, also making parties defendant the former manager of the corporation and one Abram Folk, and alleged in the complaint that certain judgments, upon a sale under which the property of the corporation had passed to Folk, were intended to defraud the bank and to procure a sale of the assets of the corporation, and that Folk was a party to the scheme and asked that the transaction be- ' set aside. The bank procured an injunction which restrained the defendants, from disposing of the merchandise and goods of the corporation, giving the usual undertaking, under section 620 of the Code of Civil Procedure, conditioned to pay the parties enjoined the damages sustained by reason of the injunction, “ if the court shall finally decide that the said plaintiff was not entitled thereto. ”
    Folk appeared in the action and denied the alleged fraud, and the corporation and its managers appeared by another attorney and made a similar denial.
    The issues, as between the plaintiff and the corporation and its manager, were tried before a referee, who decided to dismiss the complaint upon the merits, and judgment to that effect was entered. After the referee had reported, an order was granted dismissing the action against Folk “ for want of--prosecution,” upon which order judgment was entered. Upon a reference ordered to take-proof of the damages sustained from the injunction by the defendants, the referee-found that Folk had sustained damages, but that the other defendants had not. From the judgment entered upon the referee’s report the plaintiff appealed.

      Held, that, by the judgments in favor of Folk, and in favor of the other defendants, it was “ finally decided ” that the plaintiff was not entitled to the injunction.
    That the decision as to Folk’s rights was final, because the discontinuance of the-action as to him was not by agreement, but resulted from the want of prosecution-of the action by the plaintiff.
    Appeal by tbe plaintiff, Tbe Manufacturers and Traders’ Bank,, from an order of tbe Supreme Court, entered in tbe office of tbe clerk, of tbe city ana county of New York, on tbe lltli day of October, 1892, confirming tbe report of a referee appointed to ascertain the damages-sustained by tbe defendants by reason of t-be gran ting of an injun ction, and overruling certain exceptions to bis report filed by tbe plaintiff.
    For some time prior to October, 1887, tbe C. W. F. Dare Company, a corporation, bad been engaged in manufacturing toys at the-city of New York. On tbe 5th day of October, 1887, the corporation was insolvent and indebted to many creditors. On tbe seventh of October Charles F. Lawrence, Charles Frazier and Henry C. Marshall recovered a judgment against tbe corporation for $1,211.97, and on the next day tbe same plaintiffs recovered against the corporation a second judgment for $2,060.02. October eighth, Thomas. Frazier recovered against the corporation a judgment for $1,803.20.. These judgments were all entered and docketed in the city and county of New York, and on October 8, 1887, executions were issued upon them to tbe sheriff, who levied upon the property of tbe corporation, and October 18, 1887, sold it pursuant to the. executions, tbe judgment-creditors in the- first two judgments becoming tbe purchasers. The amount bid was applied towards the satisfaction of the executions of the purchasers, and the execution issued upon the Thomas Frazier judgment was returned wholly unsatisfied. October 14, 1887, the Manufacturers and Traders’ Bank, the appellant, recovered a judgment against the corporation for $1,841.33, which, on the next day, was docketed in the office of the clerk of the city and county of New York and an execution issued thereon, which was returned wholly unsatisfied. The purchasers at the execution sale sold the property to one Campora, who, in October, sold it to Abram Folk, who immediately began to carry on the business of manufacturing toys and continued therein until December 6, 1887, when he was restrained by the injunction issued in this action, which was begun on that date against the corporation, Charles "W. F. Dare (who had been the general manager of the corporation), and Abram Folk. It was alleged in the eomjdaint that the judgments upon which the executions were issued and the jirop-erty sold were fraudulent, without consideration, and recovered for the purjjose of procuring a sale of the assets of the corporation in order to defraud the plaintiff and other creditors. It was also alleged that Folk was a party to the fraudulent scheme. An injunction was obtained and served, which enjoined and restrained the defendants and each of them “ from disposing of, selling, incumbering or in any manner interfering with any of the goods, merchandise or chattels, or stock in trade which was the property of the defendant corporation at the time of the sale by the sheriff, * * * or which are the proceeds of any of the property held by said corporation at the time of such sale.” This injunction was served on the 6th of December, 1887, and was obeyed by the defendants. Folk appeared in the action by P. & £). Mitchell, his attorneys, and answered, denying the allegations of fraud contained in the corhplaint. The corporation and Charles W. F. Dare appeared by another attorney and filed separate answers denying the allegations of fraud. After the service of the answers, and on the 23d of January, 1888, the injunction was vacated by an order, the defendants having executed an undertaking with sureties, conditioned for the payment of any judgment the plaintiff might recover in the action. The issues joined in the action between the plaintiff, the corporation and Charles W. F. Dare were referred to a referee to hear and determine, who afterwards made his report that the judgments under which the sale was made were valid, Recovered on claims justly due and owing by the corporation, and that there was no conspiracy or attempt to defraud its creditors. This report was made on the 14th of May, 1890, and on the twenty-eighth day of that month an order was granted dismissing the action as against Folk “ for want of prosecution,” with costs, together with costs of the motion. The motion to dismiss was not contested by the plaintiff. May 29,1890, a judgment was entered on the referee’s report “ dismissing the complaint on the merits,” with costs in favor of the corporation and Charles W. F. Dare. On the 25th of July, 1890, a judgment was entered on the order of May 28, 1890, dismissing the complaint as against Folk, with costs against the plaintiff. When the injunction was granted, an undertaking was executed and filed by which the sureties undertook “that the plaintiff will pay to the defendants en joined such damages, not exceeding the sum of $2,000, as they may sustain by reason of such injunction, if the court shall finally decide that the said plaintiff was not entitled thereto ; such damages to be ascertained by a reference, or in such other manner as the court may direct.”
    The defendants obtained an order to take proof and report as to damages, if any, sustained by them, or either of them, by reason of the injunction. A report was rendered in favor of the defendant Folk, which was confirmed at Special Term, but was reversed by the General Term (40 N. Y. St. Rep., 736), and afterwards the present referee was appointed to take proof and report. ITe found that the defendant Folk had sustained damages by reason of the injunction to the amount of $3,740.66, but that the other defendants had not been damaged. The plaintiff excepted to the report, but the exceptions were overruled and the report confirmed at Special Term.
    Rogers, Locke ds Milburn, for the plaintiff, appellant.

      L. A. Gould, for the defendants, respondents.
   Follett, J.:

The appellant asks for a reversal of the order assessing the damages sustained by the respondent on two grounds : (1.) That the court has not finally decided, within the meaning of section 620 of the Code of Civil Procedure, that the plaintiff was not entitled to the injunction as against the defendant, Abrarh Folk. (2.) That several of tbe items allowed were too remote and contingent to be included within the term damages sustained by reason of the injunction.” A few minor grounds of alleged error are argued on the brief submitted, some of which may be considered later.

Section 620 of the Code of Civil Procedure provides that an undertaking must be given when an injunction is applied for “ to the effect that the plaintiff will pay to the party enjoined such damages, not exceeding a sum specified in the undertaking, as he may sustain by reason of the injunction, if the court finally decides that the plaintiff was not entitled thereto.”

The final clause of the foregoing paragraph is the one which it is important to consider, “ if the court finally decides that the plaintiff was not entitled thereto.” This provision, and in the same words, was contained in section 195 of the Code of 1848, and remained part of the Code of Procedure until it was superseded by the present Code. Before the Code of 1848, the thirty-first rule of chancery provided that an undertaking should be given, conditioned to pay to the party enjoined, “ such damages as he may sustain by reason of the injunction, if the court shall eventually decide that the complainant was not equitably entitled to such injunction.”

The injunction in this action was not granted on affidavits, but on the verified complaint, and the plaintiff’s right to injunctive' relief depended upon the establishment, judicially, of the facts-pleaded as the cause of action. The onus of-proving the cause of action alleged was upon the plaintiff, and if, for any-reason, it failed to sustain this burden, the action fell, and with it the injunction. Upon the trial of the issues joined, between the plaintiff and the C. W. P. Dare Company and Charles "W. F. Dare, two of tile-defendants, the plaintiff failed to establish the allegations of the-complaint, and it was decided that the transactions complained of were free from fraud, and a judgment was entered in favor of those-two defendants dismissing the complaint on the- merits. After this, decision on the merits and before the entry of the-judgment thereon,. Folk made a motion, on notice to the plaintiff,, that the action be-dismissed as against him for want of prosecutiem The plaintiff did not contest the motion and it was granted by default, and subsequently a judgment was entered on this order dismissing the complaint as against Folk, for want of prosecution.. By these two finals judgments it was determined by the court that the plaintiff was not entitled to a judgment in the action against either of the defendants. The right to the injunction being dependent upon the same facts as those alleged as a cause of action, it was in effect decided that the plaintiff was not entitled to the injunction. In Palmer v. Foley (11 N. Y., 106), the action was discontinued upon the agreement of the parties, the plaintiff paying to the defendant $100 as costs. It was held that this was not equivalent to a final decision of the court, that the plaintiff was not entitled to the injunction order when it was granted. In discussing the case, it was said : “ It is claimed that this is equivalent to the court finally deciding that the plaintiff was not entitled to the injunction order. Cases are cited which almost hold to that effect. I will not name them. In most of them there was some action of the court, upon the validity or merit of the injunction order, adverse to the plaintiff’s right to have it allowed. The plaintiff, after such action, discontinued of his own motion, and, presumably, in consequence thereof. In none of them was the discontinuance a matter of agreement between the parties to the action.” In the case at bar the action was not discontinued by agreement, but by an order of the court upon a motion made, which was undefended, presumably upon the ground that it had already been decided that the action could not be sustained. Benedict v. Benedict (76 N. Y., 600) was brought to compel the defendant to convey to the plaintiff land which the defendant was restrained from selling or incumbering during the pendency of the action. The final judgment rendered was that the plaintiff was not entitled to a conveyance of the land, but that he had an equitable lien thereon, and a sale was ordered to satisfy the lien and costs. The defendant moved for a reference to ascertain his damages sustained by reason of the injunction, which was refused upon the ground that it had not been finally decided that the plaintiff was not entitled to it. In that case the action had not been determined in favor of the defendant, and it may well have been that the plaintiff wa® entitled to the injunction to restrain the conveyance or incumbrance of land on which the plaintiff had an equitable lien. In The Pacific Mail Steamship Company v. Toel (9 Daly, 301; 85 N. Y., 646), a temporary injunction was granted which the plaintiff’s attorney afterwards voluntarily vacated. After the cause was at issue, tlie plaintiff entered an ex powte order without the consent of the defendant, discontinuing the action on payment of Costs. The right to damages sustained by reason of the injunction was contested on the ground that the court had not finally decided that the plaintiff was not entitled to the injunction. In considering this question, it ■ was said in the Court of Appeals: “ The orders vacating the injunc tion and discontinuing the action entered by the plaintiff are, in effect, a ^determination, or, at least, equivalent to a determination that the plaintiff was not entitled to the injunction granted.”

In Amberg v. Kramer (29 N. Y. St. Rep., 958), the General Term of this department held that a voluntary vacation of an injunction and the subsequent discontinuance of the action on the plaintiff’s motion was equivalent to a determination that he was not entitled to the injunction. The rule contended for by the appellant would require defendants, in all cases where injunctions are granted on verified complaints, and the actions are dismissed for want of prosecution, or by voluntary discontinuance, to take upon themselves the burden of showing that the allegations in the complaint were unfounded, and of procuring an express adjudication that the plaintiff was not entitled to the injunction, as a prerequisite to the right to have the damages assessed. Such was not the intended effect of the provisions of the Code under consideration.

The referee reported that Abram Folic sustained damages by reason of the injunction to the amount of $3,740.66. The items found by him seem to overrun this sum, and it is not exactly apparent how his conclusion was reached.

The following axe the items reported:

Rent paid for factory while use was enjoined.'. $416 66
Watchman for 7 weeks, at $12 per week. 84 00
Keeping horse, use restrained. 20 00
Salary of manager, 7 weeks, at $25 a week. 175 00
Loss of wages paid. 25 00
Defendant’s counsel fees on the reference. 250 00
Orders on hand when injunction was served and received during its continuance, $4,826.77; ten per cent profit thereon, lost . 482 67
$1,453 33
Tbe factory bad capacity to produce toys during tbe 7 weeks tbe injunction was in operation of tbe value of $17,500; loss *of profit tbereon, 10 per cent.$1,750 00
Injury to good will. 500 00
Referee’s fees on first reference. 120 00
Counsel fees on first reference. 150 00
$3,973 33

Upon an examination of tbe record we think tbe evidence was sufficient to sustain tbe first seven items, aggregating $1,453.33, but that it was insufficient to sustain the last four items. It cannot be fairly inferred from tbe evidence that tbe defendant, during tbe seven weeks be was under restraint, would have received orders for, and been able to manufacture, toys of tbe value of $17,500. Nor is there any evidence that be lost $500 by tbe injury to good will. Tbe defendant is no more entitled to recover tbe $270 paid in tbe first reference, which was not sustained, than be would have been to recover counsel fees paid in an unsuccessful attempt to have procured tbe injunction to be vacated. ¥e think, under the evidence, that tbe defendant’s damages recoverable on tbe bond are $1,453.33.

It appears that after tbe conclusion of tbe first reference Folk assigned bis interest in the sum reported to one Marshall, and it is urged that tbe respondent lias no interest in tbe damages, and that tbe reference cannot be prosecuted in bis name. Tbe terms of tbe assignment do not appear. It may have been absolute, but it may have been conditional or by way of security. "We do not think that tbe record discloses such a want of interest in tbe damages as to preclude tbe defendant from the right to prosecute this proceeding.

Tbe referee’s report and tbe order of tbe Special Term entered thereon should be modified by fixing tbe amount of damages sustained by reason of tbe injunction at $1,453.33, and, as modified, affirmed, without costs to either party.

YaN Beunt, P. J., and O’Beien, J., concurred.

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


author:
BaeNARd, P. J.:
      DyKMAN, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOSEPH ROSENBERG, Appellant.

      Chapter 646 of Lams of 1892 prohibiting fat rendering, etc. —constitutionality of— scope of the police power of the State — due process of law in legislative proceedings.

    Chapter 646 of the Laws of 1892, which prohibits the business of fat rendering, bone boiling or the manufacture of fertilizers within the corporate limits of any incorporated city of the State, or within three miles therefrom, and makes an infraction thereof a misdemeanor (by its terms being inapplicable to certain counties of- the State), is not within the inhibitions of the Federal and State Constitutions against the abridgment of the privileges or immunities of citizens, and the deprivation of liberty or property without due process of law, and the denial of the equal protection of the laws, but is valid as an exercise of the police power of the State, and will support an indictment and conviction for a misdemeanor.
    In legislative proceedings due process of law requires no more than conformity to rules and methods of free government, and the omission to exercise powers inhibited by the Constitution, or delegated to the other great departments of government.
    The police power of the State, when exercised in subordination to the Constitution, justifies all legislation pertaining to the health, comfort, safety and welfare of the public.
    The business of fat rendering, i e., melting and clarifying animal fat, is noxious and prima facie a nuisance, and its prohibition falls within the scope of the police power of the State.

      Appeal by the defendant, Joseph Rosenberg, from a judgment of the Court of Sessions for the county of Kings, entered, on the 29th day of November, 1892, on a verdict convicting the defendant of a misdemeanor, upon an indictment for unlawfully carrying on the business of fat rendering within the corporate limits of an incorporated city of the State, namely, within the city of Brooklyn, in Kings county.

      A. Bimis, Jr., for the appellant.

      James W. Ridgwap, district attorney, for the respondent.
   BaeNARd, P. J.:

The legislature, by chapter 646 of Laws of 1892, made it a misdemeanor for any person to carry on the business of fat rendering in any incorporated city in the State, with some counties excepted, but not the city of Brooklyn or Kings county. Before the passage of the act the defendant had carried on his business under a permit from the board of health, at least that fact must be assumed, as the defendant’s evidence to prove it was excluded. The only question, therefore, is, whether the act in question is constitutional. The act is good. (Cronin v. The People, 82 N. Y., 318; Metropolitan, Board of Health v. Heister, 31 id., 661.)

There is no conflict between these cases and the subsequent cases decided by the Court of Appeals. (People v. Marx, 99 N. Y., 377; Matter of Jacobs, 98 id., 98, and People v. Gillson, 109 id., 389.)

The Jacob’s case was under an act prohibiting the manufacture of cigars and tobacco in tenement-houses. • The Marx case was under an act which prohibited the sale of any article of food as a substitute of butter. The Gillson case came under chapter 691, Laws of 1887, which amended the Penal Code so that it was made a misdemeanor to sell an article of food with an understanding or promise that something else is to be given to the purchaser by way of reward. It is manifest that none of these cases conflict with preceding cases, which necessarily involve the question presented by the record. The legislature can determine that fat rendering in the city of Brooklyn is a nuisance, without the power of review by the courts.

The conviction and judgment should be affirmed.

Pbatt, J., concurred.

DyKMAN, J.:

This is an appeal from a judgment of conviction in the Court of Sessions of Kings county.

The defendant was indicted, tried and convicted for a violation of chapter 646 of the Laws of 1892, entitled “An act ro prevent fat rendering, bone boiling or the manufacture of fertilizers within the corporate limits of any incorporated city of this State, or within a distance of three miles from the corporate limits thereof.”

The statute is as follows:

Sec. 1. It shall ndPbe lawful for any person or persons to engage in or carry on the business of fat rendering, bone boiling, or the manufacture of fertilizers or any business as a public nuisance within the corporate limits of any incorporated city of this State, or within a distance of three miles from the corporate limits of any incorporated city; provided, however, that nothing herein contained shall prevent the rendering of fresh hilled cattle or swine.

Sec. 2. All departments of health, or the commissioner or commissioners thereof in any incorporated city of this State, shall have power to enforce the provisions of this act.

Sec. 3. Any person or persons offending against the provisions of this act shall, upon conviction thereof, be guilty of a misdemeanor. This act shall not apply to the counties of Fulton, Wayne, Tompkins, Chautauqua, Orange, Dutchess, Erie, Monroe, Oneida, Onondaga, New York, Schoharie, Ulster, Green, Oayuga, Cattaraugus, Niagara, Saratoga, Schenectady, Hamilton, Montgomery and Orleans.

Sec. 4. This act shall take effect immediately. <f

The indictment charged the defendant with carrying on the business of rendering the fat from animal matter, not from freshly slain cattle and swine. 4

The testimony upon the trial sustained the allegation in the indictment, and all testimony tending to show that no noxious odors arose from the process of rendering fat; that the defendant carried on the business under permission of the board of health of the city of Brooklyn; that he had erected buildings and putin boilers for the purposes of the business and invested capital therefor, and that the neighborhood where the business was conducted was sparsely populated was excluded by the court, and the defendant excepted to such exclusion.

The only question involved in this appeal is the constitutionality of the law under which the indictment was framed, and the defendant insists upon its unconstitutionality because it interferes with the enjoyment of his property and business without compensation, and that it is beyond the competence of the legislature to prohibit his business without evidence that it is a nuisance.

The constitutional provisions relied upon by the defendant are these: “■ No person shall be * * * deprived of life, liberty or property without due process of law.” “No member of this State shall-be * * * deprived of any of the rights or privileges secured to any citizen thereof.” (Section 6 of article 1 and section 1 of article 1 of the State Constitution.) • “ No State shall make or enforce any law which will abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” (United States Constitution, fourteenth amendment.)

The term liberty, as it is here employed, implies much more than personal unrestraint. It has been said many times of late, in learned and exhaustive opinions in our highest appellate tribunal, that it includes freedom in the use of the faculties with which the God of Nature has endowed mankind, freedom in the acquisition and use of property, and freedom to follow a lawful avocation. The rigidity with which the rights of the citizen will be protected from the effects of unauthorized legislation is exemplified in several recent decisions to which allusion may be made here.

In the case of Jacobs (98 N. Y., 98) a statute had been enacted which prohibited the manufacture of cigars or preparation of tobacco in any form on any floor in a tenement house, if such floor was occupied as a residence. The title of the act was, “An act to improve the public health by prohibiting the manufacture of cigars and preparation of tobacco in any form in tenement houses in certain cases,” etc., and the Court of Appeals held it to be unconstitutional.

In the case of Marx (99 N. Y., 377), the title of the act brought in question was, “ An act to prevent deception in sales of dairy products,” and section 6 of the act declared, among other things, that no person should manufacture out of any oleaginous substances or any compound of the same other than that produced from unadrd-terated milk or cream from the same, anj article designed to take the place of butter or cheese produced from pure unadulterated milk or cream of the same, or should sell or offer to sell the same as an article of food. And then there was a proviso that the section should not apply to pure skim milk, cheese produced from pure skim milk. That law was also held to be unconstitutional.

In Gillson’s Case (109 N. Y., 389) the statute was designed to amend the Penal Code by prohibiting the sale of any article of food upon any representation that anything else would be delivered as a gift or reward to the purchaser, and it was held to be unconstitutional and void. These three cases and some others of the same class are relied upon by the defendant to sustain his attack upon the law under which he was indicted.

It is undeniable that the statute in question impairs the value of the defendant’s property by imposing restrictions upon its use, and thus depriving it of one of its essential attributes, ancj also abridges his own freedom of action in respect thereto.

It does not follow, however, that because a statute regulates the use of property or abridges freedom of action in relation to the same, it is, therefore, unconstitutional, or a deprivation of property in the constitutional sense.

Neither individual rights nor the right to property are absolute, and both may be diminished for the welfare of the public without encroachment upon constitutional rights.

In fact, such limitation is implied in all of the constitutional provisions quoted, and although the language employed is negative and prohibitive, it yet contains an implication that such deprivation may be wrought by such due process of law. It is simply the converse of the implication which confers the immunity so essential to freedom.

In legislative proceedings due process of law requires no more than conformity to rules and methods of free governments, and the omission to exercise powers inhibited by the Constitution or delegated to the other great departments of government.

There is ever a condition annexed to the ownership of property that its use shall not be injurious or detrimental to the public, and that principle is but the outgrowth and enlargement of the maxim “ sie utere tuo ui alienum non laedas,” a fundamental maxim of unlimited obligation as old as civilization, which contains an ethical principle of universal applicability, and wliicb lies at tbe foundation of what is known as the police power of the State. A power which pertains to sovereignty and is frequently exerted to enforce the observance of the maxim, and is, therefore, co-extensive with the obligation it imposes. Its sphere of operation is wide and it is far reaching in its legitimate scope. It need not be accurately defined or circumscribed, but when it is exerted in subordination to the Constitution, it justifies all legislation pertaining to the health, comfort, safety and welfare of the public. It often justifies the total destruction of property and the removal of everything dangerous ■to health.

The power is often exerted to prohibit the use of property for any business in densely populated communities which raises baneful and insalubrious exhalations injurious to health and dangerous to life. But these cases do not bound its sphere of operation. In the ■case of the People v. King (110 N. Y., 418) it was permitted a much wider range. It was there decided that the owner of a skating rink subjected it to public regulation so long as he devoted it to purposes of public entertainment.

The full scope and extent of the power was recognized in the three cases first above mentioned and in all kindred cases, but it was held that the statutes under consideration in those cases did not fall within its operation.

In speaking of the power in the Jacobs Case (supra), Judge Eabl said: Tinder it the conduct of an individual and the use of property may be regulated so as to interfere to some extent with the freedom of the one and the enjoyment of the other.” * * *

Judge Cooley says : ‘‘The regulation must have reference to the comfort, safety and welfare of society.” (Const. Lim., 719.) And as that seems to be in harmony with both principle and authority, we will now turn to the act under consideration and ascertain where it must be placed.

In this country many elements enter into the consideration of every question of constitutional law. We live under two governments, the State and the national. Each of these has its constitution to which all owe obedience, and each has its peculiar sphere of action. The powers of the -national government are definite and restricted, and those of the State government are general and residuary.

All legislative power of this State is vested in tbe senate and assembly, and that power comprehends every subject which belongs to the legislative department of government, subject to the limitations imposed by the Constitution of the State or of the United States.

By reason of the generality of the legislative power in the State legislature the presumption is in favor of the constitutionality of legislative acts. Starting, therefore, with the presumption in favor of the validity of this statute, we must determine whether it is violative of any constitutional limitations or restraints.

■ The statute renders it unlawful for any'person to carry on the business of fat rendering, and some other business of the same-character within the limits of any incorporated city in this State, or within three miles from the limits thereof. Certain counties are exempted from its operation, but Kings county is not so excluded.

The indictment against the defendant is for fat rendering, that is, for melting and clarifying animal fat, and that business has ever been classed with bone boiling, slaughter-houses, soap boiling and the like as noxious and, primeo facie, a nuisance. (Dubois v. Budlong, 15 Abb. Pr., 446; Catlin v. Valentine, 9 Paige, 575 ; Brady v. Weeks, 3 Barb., 157 Peck v. Elder, 3 Sandf. Sup. Ct., 129.)

Such uses of property axe, prima faeie, a nuisance, because experience has demonstrated their productivity of ill results. Offensive . odors are liberated in the process of melting the tallow, and the fumes and stenches arising therefrom impregnate the air and render it impure, uncomfortable and unwholesome.

It was decided in the case of Peck v. Elder (3 Sandf., 126), that a fat-melting house in a city, for the purpose of trying animal fat from the slaughter-houses, was presumptively a nuisance to the inhabitants of the city. Such being the character of the business prohibited by this statute, it falls easily within the scope of the police power of the State. The preservation of the public health has ever been a primary object of the legislature, boards of health are organized for that purpose in the towns, cities and Tillages of this State, and the power to make by-laws and ordinances to secure sanity and health has been delegated by the legislature to municipal corporations. All health laws and the quarantine laws are also based upon the same power, and the right to make all necessary laws for the preservation of the public health has been exercised since the formation of the State government and cannot now be successfully questioned.

At the first sessiou of the legislature a law was passed on the 4th day of April, 1778, to prevent the spreading of small-pox, by which the justices of the peace were authorized to appoint houses whes persons infected with the small-pox might reside, and provided f®_ the forcible removal of such persons to such houses.

On the 13th day of April, 1784, the legislature of the State passed an act making it unlawful for any person to keep more than twenty-eight pounds of gunpowder in any one place, less than one mile to the northward of the city hall in New York city, except at the public magazine, at the Fresh Water, meaning the old Collect pond.

The first quarantine law in the State was passed May 4, 1784, soon after the close of the Revolutionary War, and was entitled an act to prevent the bringing in and spreading of infectious distempers in this State. It provided that all vessels having on board any person infected with any contagious distemper or coming from any place infected with such contagious disease should not come into any port in this State and should not come nearer to New York than Bedloe’s island, and should be obliged to perform quarantine under certain specified regulations.

That kind of legislation has remained unchallenged and has been continued with augmented severity so that now the largest vessels are arrested and searched, the liberty of the passengers restrained and the infected cargo cast into the sea. The same power which justifies the destruction of property and the removal of everything dangerous to health and subordinates private interests to the welfare of the public is sufficiently cogent and coercive to justify a law which prohibits the use of private property in a large city for a purpose which is noxious and injurious to the health of the community.

It is the sovereign power of the State committed to the legislature for the safety of the community to be exerted for the production of the end by adequate means, not violative of constitutional limitations. It was within the province of the legislature to determine that the exigency existed in the cities of this State for the exercise of the power, and we conclude that the business conducted by the defendant was a proper subject for its exercise.

The law was enacted and designed to promote and protect the public health, and it was appropriate to the accomplishment of that end. It does not, therefore, infringe upon the liberty guaranteed to all to adopt any lawful pursuit not injurious to the community, because we have seen this particular business is so injurious. That the statute is new or more stringent than former laws is no argument against its validity. Judge ANDREWS, in the opinion in Lawton v. Steele (119 N. Y., 233), said: “ But we know of no limitation of legislative power which precludes the legislature from enlarging the category of public nuisances or from declaring places or property used to the detriment of public interests or to the injury of the health, morals or welfare of the community, public nuisances although not such at common law.”

Statutes regulating trade and controlling the use of private property in the public interest have been upheld in recent years in this State, and in the Supreme Court of the United States.

In 1883, the legislature of this State passed a law declaring any fish net found in any of the waters of the State, in violation of existing laws for the preservation of fish, to be a nuisance, and authorizing their destruction, and that act was held to be a valid exercise of the legislative power. (Lawton v Steele, 119 N.Y., 226.)

Section 383 of the Penal Code, declaring that no citizen can be excluded from places of amusement by reason of race or color, was held to be a valid exercise of the police power of this State over a subject within the cognizance of the legislature. (People v. King, 110 N. Y., 418.)

The act fixing the maximum charge for elevating grain was held to be a legitimate exercise of the police power of the State over a business affected with a public interest. (People v. Budd., 117 N. Y., 1; People ex rel. Annan v. Walsh, id., 621.) This last case involved the same question as Budd case, and was subsequently affirmed by the Supreme Court of the United States.

The case of Munn v. Illinois (94 U. S. [4 Otto], 113), has become a leading case, and it holds the same doctrine.

In the case of Bertholf v. O'Reilly (74 N. Y., 509) the Court of Appeals decided that the legislature had power to create a cause of action for damages in favor of a person injured, in person or property, by the act of an intoxicated person against tbe owner of real property, whose only connection with the injury was that he leased the premises with knowledge that intoxicating liquors were to be sold thereon.

The operation of that statute certainly was to restrain the freedom of the owner in the use of his property and so impair its value, and so far was parallel with this, and yet it received the sanction of our highest court.

We are, therefore, led to the conclusion that the statute under consideration is a valid exercise of legislative power, and that the conviction should be affirmed.

PRAtt, J., concurred.

Conviction and judgment thereon affirmed.


author: Pratt, «J.:

text:
    WILLIAM F. LAWRENCE and Another, Respondents, v. EDWARD L’ESTRANGE PHIPPS, Appellant.

      Building contract — order by a contractor upon an owner for payment to a material-man, accepted — construction and effect of.

    A contractor wIlo had agreed to erect certain buildings, while the buildings were in course of construction, drew and delivered to material-men two orders upon the owner of the buildings, substantially as follows: “ Please pay to Lawrence Brothers the sum of $593.58 from and out of any money due and to become due me under my contract for building your two houses, * * * and charge said sum to my account. Said Lawrence Brothers having furnished me with the building materials for the erection of said houses, this instrument is intended as an absolute transfer to them of so much money arising out of said contract as will satisfy their said claim for building materials furnished for said houses.”
    The orders were respectively accepted by the owner asfollows: “ The within order accepted, payable when the buildings are entirely finished.” “ The within order accepted, payable as the buildings progress or when the same are completed.”

      Held, in an action by the material-men against the owner, on the orders and acceptances, 'that the instruments disclosed an intent not to pay the sums named absolutely, but only to pay out of moneys due, or to become due, the contractor upon his contract.
    That the orders must be regarded as assignments, and that if nothing was ever due the contractor no liability arose upon the acceptances.

      Appeal by tbe defendant, Edward L’Estrange Phipps, from a judgment in favor of the plaintiffs and against the defendant, entered in the office of the clerk of the county of Westchester on the 10th day of October, 1892, on a verdict for $1,802.87, directed by the court at the Westchester Circuit, and from an order denying the defendant’s motion for a new trial on the minutes, entered in said clerk’s office on the same day.

      Isaac W. Miller, for the appellant.

      James M. Htmt, for the respondents.
   Pratt, «J.:

This is an appeal by the defendant from a judgment, entered upon a verdict which was directed by the court at the circuit against the defendant in favor of the plaintiffs for the sum of $1,802.87. The action was brought to recover the amount of two certain orders or drafts drawn by Albert W. Mott in favor of the plaintiffs upon the defendant, Edward L’ Estrange Phipps, each dated September 28,1891, and each accepted by the defendant. The orders and acceptances are as follows :

“YoNeers, N. Y., Sept. 28, 1891.
“ Mr. Edward L’EstraNoe Phipps :
“ Dear Sir. — Please pay to Lawrence Brothers the sum of five hundred and ninety-three dollars and fifty-eight cents ($593.58) from and out of any money due and to become due me under my contract for building your two houses, the one at Washingtonville and the other on lot 40, Monroe street, and charge said sum to my account. Said Lawrence Brothers having furnished me with the building materials for the erection of said houses, this instrument is intended as an absolute transfer to them of so much money arising out of said contract as will satisfy their said claim for building materials fur-
nished for said houses.
“ALBERT W. MOTT.”
“Indorsed: MottNT YerNON, 10 Oct., 1891.
“The within order accepted, payable when the buildings are entirely finished.
“EDW. L’E. PHIPPS,”
“ToNKees, N. Y.,'/Sept. 28, 1891.
“ Mr. Edwabd L’EstbaNG-e Phipps, Mount Vernon, JV. V.:
“Dear Sib. — Please pay to Lawrence Brothers, of Yonkers, from and ont of any money due and to become due me for building four houses for you on Monroe street, in Mount Yernon, the sum of eleven hundred and forty-nine dollars and one cent ($1,149.01), said sum to be equally divided between said four houses, and charge the same to my account. Said Lawrence Brothers having supplied me with the building materials for said four houses, this instrument is intended as an absolute transfer to them of so much money arising from said contract as will satisfy their said claim for building materials furnished.
« T.RER.T W MOTT ”
“ Indorsed : Oct. 10th, 1891.
The within order accepted payable as the buildings progress, or when the same are completed.
¡¡ ETHY L^E PHIPPS ”

The answer, among other defenses, set up substantially that Mott abandoned the contract, and that the defendant was obliged to finish the buildings at his own expense, and that no sum of money ever became due to said Mott out of which a payment of the orders could be made. The court excluded proof to substantiate the defense, holding that the acceptance of the orders made the defendant liable as soon as the houses were completed. Such is not our construction of the transaction.

We think the orders must be regarded as assignments, and that if nothing ever became due to Mott no liability arose upon the acceptance. The defendant accepted the orders as drawn. The order was pay * * * dollars from, and out of a/ny money due and to become due me under my contract for building.” It was simply an order to pay money due or to become due Mott, not to pay absolutely, and if the order had stopped there and been accepted no one would claim that the defendant could be held liable unless money was or did become due.

The balance of the writing in the contract simply states the considerations moving from the plaintiff to Mott, for the orders and the intention on Mott’s part that the order should be regarded as an assignment or transfer of the money expressed in the order, to wit, of the sum then due or to become due. Now, what is the effect of the acceptance in those words: “ The within order accepted, payable when the building is finished.”

This was an acceptance to pay according to the terms of the order, with limitations, that even the amount due or to become due should not be paid until the contract was completed in one case, and in the other to pay the amount due or to become due at the option of the defendant during the progress of the work or at the completion of the contract. Neither order required the defendant to pay any money absolutely, the requirement being to pay money due or to become due under Mott’s contract. It was an acceptance to pay-money upon the happening of the event of money becoming due the drawer under his contract, but payable only when the contract was completed. The acceptance was general except as to the time of payment. It was only to be paid out of a certain fund, and upon condition that such a fund should exist.

I think it is plain, from the reading of the orders and all the sur-rouixding circumstances, that it was the intent of both parties that the orders should be paid out of moneys due Mott upon the completion of his contract. Nothing appears upon the face of the contract showing any intent, either upon the part of Mott or the defendant, that the defendant should bind himself in any way to pay any money only such as should be due under the contract and at the time only when the contract was completed. (Home Bank v. Drumgoole, 109 N. Y., 63; Van, Wagner v. Terrett, 27 Barb., 181.)

We also think it was en-or to exclude proof offered by the defendant tending to show that nothing ever became due to Mott after the giving of the oi’ders to plaintiff in order to rebut any presumption that might ai’ise that something was due to Mott when the orders-were accepted.

There are vai’ious other exceptions, but they require no notice as. these views, if correct, must result in a reversal of the judgment. But it is claimed by the plaintiff that, even assuming the orders to be mere assignments, still that it appeared upon the tidal thei’e was. due to Mott fi'om defendant the sum of $626.76, upon the two contracts, and for that sum he is entitled to judgment; and such appeal’s to be the conclusion as derived from the pleadings.

Judgment reversed and new trial granted, costs to abide event,. with leave to plaintiff to offer to reduce the judgment to $626.VT6, and to apply for judgment upon the pleadings for that amount, with costs.

Barnard, P. J., concurred; DyxMAN, J., not sitting.

Judgment reversed and new trial granted; order to be settled by Pbatt, J.


author: Peatt, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. FLAVIUS J. ALLEN, Respondent, v. C. J. BADGLEY and Others, as Assessors of the Town of Poughkeepsie, Appellants.

      Chapter 269 of Laws of 1880 — remetió of taz assessment — compa/rison of valuations.

    In a proceeding by certiorari, under chapter 269 of the Laws of 1880, to review a tax assessment, the court will change a valuation on property only where manifest injustice has resulted from the action of the assessors.
    In such a proceeding the claim that an assessment upon the relator’s property was unequal and out of proportion with that upon the bulk of the property, and much higher than upon other property upon the same tax-roll, involves primarily a question of fact, and the only question of law that can be raised thereon is whether the evidence is sufficient to bring the case within the terms of the statute.
    It is not necessary that every piece of property in the same town be compared with the property, the assessment upon which is sought to be corrected, but the comparison should be made with the valuation of the surrounding property on the same roll.
    Appeal by the Assessors of the Town of Poughkeepsie from a judgment of the Supreme Court, entered in the office of the clerk of Dutchess county on the lJth day of October, 1892, upon the decision made at Special Term upon a trial, on evidence taken and reported by a referee, in a proceeding by certiorari, under chapter 269 of the Laws of 1880, to review an assessment upon the relator’s real estate.
    The property in question consisted of eight acres of land, with a dwelling-house and barn thereon, and-was entered on the assessment-roll for 1892 as valued at $6,000. The Special Term found as facts that this assessment was out of proportion with the bulk of the land in tbe town, and that the assessed value of said real estate of the relator was much higher than the other property, and, as a conclusion of law, that the assessment should be reduced to $4,500, and on this decision the judgment appealed from was entered.

      W. Farrmgton, for the appellants.

      WilUam JR. Woodin, for the respondent.
   Peatt, J.:

This is a proceeding by certiorcvri, under chapter 269 Laws of . 1880, to review the action of the- assessors, so far as the assessment of the real estate of the relator'is concerned.

The courts will not strain to find occasion to review and change the valuation set upon property by officers chosen for that purpose. It is only, therefore, where manifest injustice has resulted from the action of assessors, that any change will be made.

The statute, chapter 269, Laws of 1880, was passed to give a summary remedy to an aggrieved taxpayer. To review an assessment which is erroneous by reason of over valuation, or is unequal in that the assessment has been made at a higher proportionate valuation than other real or personal property on the same roll by the same officers, and that the petitioner is or will be injured by such illegal, erroneous or unequal assessment.”

In this case, the claim was that the assessment upon the relator’s property was unequal and out of proportion with the bulle of property, and much higher than other property upon the same tax-roll.

That issue involved primarily a question of fact. The only question of law that can be raised is whether the evidence is sufficient to bring the case within the terms of the statute. Undoubtedly, the petitioner must produce sufficient proof to satisfy the court that his case fairly falls under the scope of the remedy which the statute provides.

There are various ways in which assessors estimate the value of property for the purposes of taxation, such as its cost, its earning capacity, or its desirability as residence property or as farming land; each of these estimates are considered, and it is one of the difficulties to be encountered by the court in reviewing the action of assessors to ascertain accurately these various values. Even adjoining farms of an equal number of acres may be very unequal in value.

The statute does not seem to lay down any precise rule, but the Court of Appeals, in the case of People ex rel. Warren v. Carter et al. (109 N. Y., 576), says: “Without undertaking to define the precise scope of the remedy for disprojiortionate valuations of property, given by the act of 1880, we think it may be safely said that the petitioner must show a state of facts from which a presumption justly arises, that the inequality of which he complains will subject him to the payment of more than his just proportion of the aggregate tax, and that this presumption is not raised by proof that, in a particular instance, property is assessed at a proportionately lower valuation than his own.”

In this case the only evidence to sustain the finding of inequality in the assessment of one lot was that the assessment of one adjoining lot was lower in amount.

It cannot be necessary that every piece of property in a town -should be compared with the property upon which the tax is sought to be corrected as that would furnish no safe or proper rule, but it must be of the surrounding property upon the same roll that will furnish a safe test of comparison with the property in question.

In this case many pieces of real estate adjoining and surrounding the relator’s property were compared with his valuation, both in regard to farming land and residence property, and they fairly showed a lower assessment than that put upon the relator.

We think the findings of fact made by the court below are fully .•sustained by the evidence, and that the conclusions of law are correct and the order should be affirmed.

DykhaN, J., concurred; BaeNAed, P. J., not sitting.

Order affirmed, with costs.


author: HyKmaN, J.: Peatt, J.:

text:
    JOHN DONOVAN Respondent, v. THOMAS E. WHEELER and Another, Appellants.

      Pleading — a statement of an eiyidentim'y fact in am answer does not constitute a distinct defense — extra allowance.

    In an action brought to procure the cancellation of a deed, in which the complaint, alleged that the plaintiff never intended to grant the premises to the defendant, who had never paid the consideration mentioned in the deed, the answer denied that the plaintiff never intended to grant the premises to the defendant, and then stated that, on the contrary, the plaintiff did, by the deed in suit, grant the premises to the defendant, and did, after such conveyance, declare to the defend- ■ ant that the grant was effectual and an absolute gift of the property.

      Meld, that this statement of a declaration of a gift was but the statement of an evidentiary fact, by way of enlargement of the preceding denial, and did not amount to an allegation of a donation, as a distinct defense, so as to render evidence of a gift of the premises admissible.
    An additional allowance of costs is improper, in an action brought to procure the cancellation of a deed, where no sum was claimed or recovered, and the only “subject-matter involved” was the validity of a deed having no value.
    The fact that the determination remotely affected the property described in the deed, is not sufficient to justify such allowance.
    Appeal by the defendants, Thomas E. Wheeler and Mary A, Wheeler, respectively, from a judgment of the Supreme Court rendered at the Queens County Special Term, and entered in the-office of the clerk of Queens county on the 15th day of April, 1892, in favor of the plaintiff, canceling a deed, and the record thereof,, with costs, and granting an extra allowance.
    The action was brought to set aside a deed conveying certain premises in Queens county, executed by the plaintiff to the defendant Thomas E. Wheéler, upon the ground that the deed constituted a cloud on the plaintiff’s title.
    The complaint, after alleging the execution and recording of the deed, states “that the plaintiff never decided to grant and convey the said premises to the said grantee, or to make the said grant effectual by delivering the said deed to the said grantee, Thomas E. Wheeler, though he had a mind so to do, but, on the contrary, h& did not deliver the same, and has always retained possession and control thereof, and the said grantee has not paid the consideration-mentioned in the said deed of conveyance, or any part thereof,. namely, $12,000, wbicb was the true value of the said premises, and the plaintiff had no intention of conveying the said property to the said grantee and giving him the same for nothing.”
    The answer contains the following paragraph:
    “ IV. He denies that the plaintiff never intended to grant and convey said premises to this defendant or make said grant effectual, but, on the contrary, the plaintiff did, in and by said instrument of conveyance, effectually grant and convey to this defendant the lands and premises in said complaint described ; and did, after said conveyance, declare to this defendant that said grant was effectual and an absolute gift of said real property from plaintiff to this defendant.”
    Section 3253 of the Code of Civil Procedure provides that in any difficult and extraordinary case, where a defense has been interposed, the court may, in its discretion, award, in addition to costs, a further sum, not exceeding five per centum, upon the sum recovered or claimed,' or the value of the subject-matter involved.

      James Kearney and James W. Ridgeway, for the appellant Thomas E. Wheeler.

      John B. Bhanahan, for the respondent.
   HyKmaN, J.:

This action is brought to obtain a judgment of this court which shall determine that a certain deed of conveyance of real property was not delivered, and the title to the premises therein described was not conveyed to the defendant, Thomas E. Wheeler, by the said deed and that the deed and the record thereof be canceled.

The claim of the plaintiff is that the deed was executed to sub-serve a special purpose, which was not carried into execution, and that the deed was not delivered and there never was any intention to vest the title absolutely in the grantee. The cause was tried before a judge, at Special Term, who found the facts in favor of the plaintiff and directed a judgment in his favor for the relief demanded in the complaint. The defendants have appealed from' the judgment, but we find the appeal destitute of merit upon the main question. The testimony on the part of the plaintiff was contradicted by the defendants, but we think the trial judge took the correct view of the evidence and the circumstances surrounding the transaction.

The appellants contend, that an error was committed upon the trial by the exclusion of testimony tending to prove and establish a gift of the premises to the grantee. That testimony was excluded, because no such defense was set up in the answer, and we think that the trial judge gave the correct construction of the answer and that it manifests no intention to set up a donation of the premises.

True, the fourth clause of the answer contains a statement that the plaintiff, after the conveyance, declared to the defendant that the grant was effectual and an absolute gift of the real property from the plaintiff to the defendant, but that is but the statement of an evidentiary fact by way of enlargement of the first part of the paragraph which denied that the plaintiff never intended to grant the premises to the defendant. It falls far short of an independent defense which was necessary to the reception of the testimony.

The trial judge made the plaintiff an additional allowance of $200, which was erroneous. Such allowances are made in a proper case based upon the sum recovered or claimed or the value of the subject-matter involved. In this case no sum was claimed or recovered and nothing was involved but the validity of a deed, and that had no value. The fact that the determination of the question remotely affected the property described in the deed is not sufficient to justify an additional allowance under the statute. (Conaughty v. Saratoga County Bank, 92 N. Y., 404)

The judgment should be modified by striking out the $200 from the costs, and, as so modified, affirmed, without costs to either party upon this appeal.

Peatt, J.:

This is an action brought to set aside a conveyance of certain lands in Queens county, executed by the plaintiff to the defendant, Thomas E. Wheeler, upon the ground that the deed constitutes a cloud upon the title.

Upon the trial the defendant claimed that the deed was a gift, and, further, that it was executed to perpetuate a fraud upon a third party.

It clearly appeared from the evidence that the deed was never delivered to the defendant, and never was intended to be delivered except simultaneously with a deed from the defendant to the plaintiff for the same property.

Tbe intention of tbe plaintiff was to bave it appear upon tbe records that tbe defendant was tbe owner, so as to facilitate a sale thereof by tbe plaintiff as broker, while, in fact, it was bis own property.

Tbe defendant paid nothing for tbe conveyance, and, in fact, no fraud was proved in tbe transaction.

The proof was all one way that tbe plaintiff never intended to vest tbe title to tbe property in tbe defendant as a gift, but tbe motive seems to have been a matter of convenience to tbe plaintiff to enable him to appear as a broker in making a sale. To permit such a transaction to stand as a valid gift would be a gross fraud. There being no delivery of tbe deed there was no valid conveyance.

Tbe judgment must be modified by striking out $200 from tbe costs, and affirmed, as modified, without costs of this appeal.

BabNabd, P. J., not sitting.

Judgment modified by striking out $200 j from the costs and affirmed, as modified, without costs of appeal.


author: BaeNARd, P. J.:

text:
    ELIZABETH O’ROURKE, Respondent, v. CHARLES PIATT, Appellant, Impleaded with JOHN De GRAW.

      Civil damage act of 1873 — sale of intoxicating liquor on leased premises — landlord’s liability.

    A landlord’s liability, under tbe civil damage act of 1873 (chap. 646), for damages resulting from tbe sale of intoxicating liquors by the tenant on leased premises, resulting from tbe statutory words creating tbe liability, “and having knowledge that intoxicating liquors are to be sold therein ” is to be determined by the landlord’s knowledge at tbe time tbe lease was given; and be can only be made liable when it is shown that be knew, when tbe lease was executed, that tbe premises were to be used for tbe sale of liquor.

      Hall v. Germain (131 N. Y., 536) followed.
    Appeal by tbe defendant, Charles Piatt, from a judgment of tbe Supreme Court, entered in tbe office of the clerk of Orange county on tbe 28th day of August, 1892, in favor of tbe plantiff, on a verdict for $1,500 against both tbe defendants, John De Graw and Charles Piatt, rendered at the Orange County Circuit, and from an order denying a motion for a new trial made on the minutes.
    The action was brought April 13, 1892, under the civil damage act of 1873 (chap. 646 of Laws of 1873), by Elizabeth O’Rourke, widow of Patrick O’Rourke, deceased.

      W. F. O'Neill, for the appellant.

      W. J. Groo, for the respondent.
   BaeNARd, P. J.:

A recovery was had in the case against the defendant De Craw for creating an intoxication, in whole or in part, which resulted in the death of Patrick O’Rourke in August, 1891. The defendant Piatt was made a defendant as the owner of the premises where the intoxicating liquors were sold. The allegations against him being that he rented said building and premises to the defendant De Graw, and permitted him to occupy and use the same during all of said time as a place for the sale of intoxicating liquors, with the full knowledge that they were to be and were being so used.” The Court of Appeals, in a recent case, has held that the landlord’s liabilty under chapter 646, Laws of 1873, derived from the words creating the liability “ and having knowledge that intoxicating liquors are to be sold therein,” is to be determined by his knowledge at the time the lease was given, and that he could only be made liable when it was shown that she knew when the lease was executed that the premises were to be used for the sale of liquor. (Hall v. Germain, 131 N. Y., 536.)

Under this rule there was a complete failure of proof against the landlord. De Graw, the tenant, was called by the plaintiff and testified that the premises were rented by him from Piatt “ for a restaurant,” and Piatt “ said he would not rent his place to sell liquor and beer in,” and that he took the premises with that understanding. The case against the landlord stood solely on this proof when the plaintiff rested and the case against him should have been then dismissed. It should have been also dismissed at the close of the evidence. It then appeared that the lease was given upon the condition that the premises were not to be used to sell strong drink in. That although the landlord went monthly to collect his rent, he never ■saw any sale of liquor there. That the bar and its fixtures came from a former tenant. That the beer pump was not used, but the beer sold was drawn from a faucet under the bar so as to deceive the owner. That the bar appearance would fit the restaurant as well as the ordinary liquor business, and the lease was expressly given upon the assurance that the bar would be kept to sell small and birch beer and cigars. If a liability would be established by knowledge subsequent to the lease that it was being violated, there was an entire absence of proof to show that.

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

Peatt, J., concurred.

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


author: DteMAN, J.: Pratt, J.:

text:
    JAMES DONOVAN, Respondent, v. THE LONG ISLAND RAILROAD COMPANY, Appellant.

      Personal injury at a railroad crossing — negligence — evidence.

    'The General Term cannot reverse, on the ground of contributory negligence, a judgment in favor of the plaintiff on a verdict recovered for an injuiy received at a street crossing, through the alleged negligence of a railroad company, where there was some evidence of care on the part of the plaintiff, such as, that before going upon the track he looked to see whether there was any engine approaching, and whether he could see any head-light, and that he saw no light and heard no bell,
    ;Such testimony of the plaintiff cannot, on appeal after a verdict in his favor, be disregarded as false, when the facts in the case disclose a condition of affairs under which the jury may have thought his testimony credible.
    The jury have a right to find a railroad company guilty of negligence when its engine was propelled through a city street two hours after sundown, in the winter, without a head-light and without ringing a bell.
    Appeal by tbe defendant, the Long Island Railroad Company, from a judgment, entered in the office of the clerk of Kings county on the 22d day of October, 1892, on a verdict for $2,500, in favor of the plaintiff, recovered on a trial at the circuit; and also from an order, entered in said clerk’s office on the 24th day of October, 1892, denying the defendant’s motion for a new trial on the minutes.

      JE. JB. Hinsdale, for the appellant.

      J. Stewart Ross, for the respondent.
   DteMAN, J.:

This is an appeal from a judgment, entered upon the verdict of a jury, and from an order denying a motion for a new trial upon the minutes of the court.

The action is for negligence. The plaintiff was struck and injured by one of the engines of the defendant while he was crossing the tracks of the railroad in Atlantic avenue, in the city of Brooklyn, for the purpose of taking a train on that road going westward towards the city of Brooklyn.

The appellant seeks to reverse the judgment upon the ground of contributory negligence of the plaintiff. The contention being that the testimony not only failed to show the absence of negligence on the part of the plaintiff, but did show the presence of such negligence.

In this case, as in many others of a similar character, the appellate tribunal is powerless. There is some evidence of care on the part of the plaintiff. He testified that before going upon the track he looked to see whether there was any engine approaching, and was very particular to look and see if he saw any head-light, and that he saw no light and heard no bell. That he looked up and down both and saw no light.

That testimony was sufficient to carry the case to the jury upon that question, and if it commanded belief it manifested care. We cannot substitute our judgment for that of the jury.

We cannot, therefore, interfere with the verdict, and the judgment and order denying the motion for a new trial should be affirmed, with costs.

BaeNAed, P. J., concurred.

Pratt, J.:

As plaintiff has recovered the verdict below, we must, in discussing the appeal, regard the testimony in the light most favorable to tbe plaintiff. That requires us to believe that defendant’s engine was propelled through a city street two hours after sundown, in the winter, without a head-light, and without ringing a bell. On these facts the jury had a right to find the defendant guilty of negligence.

The principal reliance of defendant on this appeal is upon the argument that plaintiff must, by the nature of the case, have been guilty of contributory negligence, that is to say, he would surely have seen or heard the engine had he exercised proper care.

The plaintiff testified that he carefully looked and listened, and did not hear or see the engine, and he is corroborated by a witness who crossed with him at the same time and place, who also looked and listened, and heard nothing.

The defendants ask to disregard this evidence on the ground that it must be false. It is plain that the jury must have given it credit.

How far it is possible to see a moving engine in a winter night would depend something on the degree of darkness; something on the rapidity of motion; somewhat on the acutness of vision of the observer. There being no train attached to the engine, the ordinary roar of a train would be absent.

Ordinarily, trains moving through the streets in the night-time give warning by head-light and bell, and by the reverberation produced by a heavy train of cars. As these were wanting in the present case, and as the engines used for the rapid trains are extremely light and comparatively noiseless, the jury may have thought the plaintiff’s testimony entirely credible.

It is said that, as the engineer saw the plaintiff 200 feet away, the plaintiff should have seen the engine at an equal distance. As the plaintiff came out of a lighted cigar store, and also into the illumination caused by the gas light at the crossing, he would, doubtless, be easily visible to persons 200 feet away in the darkness. But when-his gaze was directed into the darkness, it would not follow that he could, see as far.

Ve are not able to say the jury were in error.

The judgment should be affirmed, with costs.

Judgment and order denying new trial affirmed, with costs.


author: BaRNAed, P. J.: PRATT, J.:

text:
    FREDERICK M. LOTTERLE, Landlord, Respondent, v. JOHN MURPHY, Tenant, Appellant.

      Landlord and tenant — summary proceedings — jurisdiction of State courts over the United States Lfamy Yard.

    The State courts have jurisdiction of a summary proceeding, instituted under the Code of Civil Procedure, to dispossess a tenant, whose landlord is a lessee from the United States, of premises belonging to the United States as part of the Brooklyn Navy Yard.
    Appeal by tbe tenant, John Murphy, from an order and judgment of the County Court of Kings county, entered in the office of the clerk of that county on the 20th day of September, 1892, affirming a final order in summary proceedings, instituted under the Code of Civil Procedure, before a justice of the peace of the city of Brooklyn, because of the non-payment of rent by the said John Murphy.
    The tenant’s answer to the jtetition in the Justice’s Court was, in .addition to the general denial, as follows:
    “ And, for a further defense, he shows that the magistrate, before whom this proceeding is pending, has no jurisdiction over the subject-matter involved herein, for the reason that the premises mentioned in the petition herein are part of a reservation or territory of the property of the United States of America, over which the courts of the United States have sole and exclusive jurisdiction. Wherefore he prays for judgment of dismissal.”
    Jurisdiction over the land, comprised in the Brooklyn Navy Yard, has been ceded to the United States by the State of New York by chapter 181 of Laws of 1833; chapter 355 of Laws of 1853, and section 29 of chapter 678 of Laws of 1892, being chapter 2 of the general laws, “ The State Law.”

      James J. Rogers, for the appellant.

      8. T. Maddox, for the respondent.
   BaRNAed, P. J.:

The United States government rent by written lease to the plaintiff, landlord, certain premises in Wallabout bay, Kings county, which are part of the Navy Yard premises. The defendant, John Murphy, hired of Lotterle a part of the premises at a fixed rent and he has failed to pay. The case is a clear one tinder our laws, in respect to the dispossessing of delinquent tenants, if the State courts have jurisdiction over the lands. The point seems to be settled in Barrett v. Palmer (47 N. Y. St. Rep., 876), that the jurisdiction of the State courts continues unchanged, except so far as the use of the lands is antagonistic to the interference of the State courts. As the case stands there is no such antagonism. The government of the United States has put the lands in the possession of the plaintiff for rent and for the private use of the plaintiff, and the defendant has taken these lands under similar conditions. The United States government has passed no laws so as to enable its tenant to get his right of one who leases from him. The ordinary State laws cover the case, therefore, of necessity.

The judgment should be affirmed, with costs.

PRATT, J.:

We are not able to distinguish this case from Barrett v. Palmer (47 N. Y. St. Rep., 876), where the Court of Appeals held that the acquisition of lands by the general government does not operate to oust the judicial authority of the State. From that it follows that, the justice of the peace had jurisdiction of the proceeding.

We have examined the other objections raised and do not find error and the judgment should be affirmed, with costs.

Judgment affirmed, with costs.