text:
    Gertrude Dean, an Infant, by Samuel K. Munger, her Guardian ad litem, Respondent, v. Miners Raplee, Appellant.

      Assault and rcmshment — action for damages — proof required — delay in making disclosure — preponderance of evidence.

      Semite, that an action brought by a female to recover damages for an assault and ravishment, in which the ravishment is matter in aggravation of damages, may be maintained and a recovery had, upon proof of an assault and carnal connection committed without the plaintiff’s consent and against her will throughout, without proof of all the elements requisite to support a charge of rape, as, e. g., that the plaintiff resisted the consummation of the defendant’s purpose to the extent of her ability.
    The utmost resistance possible, which is otherwise required of a female to justify a charge of rape, may not be requisite to the offense if the female has not the possession of her mental or physical powers, or is terrified by threats serious in character, or is in such a place and position as to render resistance useless.

      Submission on tile part of a female is not necessarily consent, and certainly is not when attributable solely to overpowering force on the part of her assailant.
    In considering the effect of delay on the part of a girl fifteen years of age in disclosing a rape claimed to have been committed upon her, the jury may take into consideration her youth and inexperience, and the restraint induced by the threats of her assailant.
    A. preponderance of evidence is sufficient to support an action brought to recover damages for an assault and ravishment.
    Appeal by the defendant, Miners Raplee, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk 6f Wyoming county on the 9th day of December, 1892, upon the verdict of a jury for $2,000, rendered at the Wyoming Circuit, and from an order entered in said clerk’s office on the 5th day of July, 1893, denying the defendant’s motion for a new trial.
    The purpose of the action, as appears by the complaint, was to recover damages resulting from an alleged assault by the defendant upon the plaintiff and for- his ravishment of her. It appears that in the spring of 1885 the plaintiff, then of the age of'fourteen years, went to reside in the defendant’s family, and there is evidence tending to prove that she did so by his solicitation and upon his promise to treat her as a member of his family, he then having a wife and no children. The plaintiff became fifteen years old in February, 1886. She testified that about the first of April of that year, when she was in the hay mow in the barn looking for eggs, as she was in the habit of doing, the defendant came there, put his arm around her and proceeded to throw her down; that she told him to stop; that lie pushed her over and lia4 connection with her; that she begged of him to let her go and not to do it, and that following it, he lifted her up, told her to stop crying, go to the house and keep still about it, and said to her that if she told it to any one it would be the worse for her; and that afterwards, on several occasions, under circumstances which she relates, he threw her down and had and attempted to have connection with her. And she testified she did not on any of the occasions consent to the intercourse, and that she tried to push him away and resisted him to the best of her ability. That she did not disclose the fact that these matters had transpired between the defendant and herself for a very considerable period of time. The defendant by his testimony denied having or attempting to have any carnal connection with the plaintiff and contradicted all her testimony in that respect.

      I. Sam Johnson, for the appellant.

      E M. Bartlett, for the respondent.
   Bradley, J.:

It is not claimed that the plaintiff was subjected to any indignity Until the spring of 1886. The fact that the plaintiff on none of the occasions to which she refers made any outcry, although some of the •places to which she refers as those where the assaults were committed were so near the house that she might have been heard; also that she remained at the defendant’s house so long after the alleged transactions occurred, and that she did not then inform her 'grandmother or aunts of the treatment she had received from the defendant, were circumstances bearing with some force against her credibility. But this was a question for the jury in view of all the evidence given, not only by the parties, but by the other witnesses, so far as it tended to bear in either direction upon it. The jury were permitted by the plaintiff’s evidence to find that she did not consent to the connection, but that the defendant took hold of her, threw her down and accomplished his purpose against her will. This would seem to have been sufficient to support the denial of the defendant’s motion to dismiss the complaint if no further reason for such ruling appeared by the evidence.

The action is for assault and battery by the defendant upon the plaintiff, and his defilement of her is matter in aggravation of damages. And while the charge of the assault could not be sustained if she consented to the connection, if she did not so consent the jury were authorized to find a verdict in faivor of the plaintiff. (People v. Bransby, 32 N. Y. 525 ; Regina v. Hallett, 9 Carr. & Payne, 148.) In that view, irrespective of the question whether the facts which the evidence tended to prove constituted all the elements requisite to support the charge of rape, the plaintiff may have been entitled to recover. And no question was raised at the trial to the effect that in the event she had a verdict she was not entitled to recover any damages oil account of the sexual intercourse had with her by the defendant. The cases cited by the defendant’s counsel do not necessarily hold to the contrary of the proposition above stated. Tlie remarle in that respect of the justice who delivered tlie prevailing opinion in Crossman v. Bradley (53 Barb. 125) was not necessary to the determination of the questions presented by the exceptions upon which the new trial was granted, nor does it appear by the case as reported what the facts were, other than such' as gave force to the exceptions taken. In the brief digest of the decision in Smith v. Fingar (1 Alb. L. J. 101), it appeal’s that the exception to a refusal to charge that if the plaintiff finally consented to the sexual intercourse, she could not recover damages resulting therefrom, was held well taken. This was as far as it was essential for the court to go for the purpose of the result of the review. In Young v. Johnson (46 Hun, 164) the charge of the trial court does not appear, but it is said by the defendant’s counsel that the court was requested to and did charge that if the jury found that carnal connection was had they, to enable her to recover, must further find that it was had without her consent and against her utmost resistance, and that if she finally yielded her consent and ceased her resistance she could not recover. This was well enough. It was approved by the General Term, and the Court of Appeals affirmed the judgment without expressing any views upon that question. (123 N. Y. 226.) In such cases the evidence of resistance or of non-resistance has an important bearing upon the question whether or not the female consents to the conduct of the person charged with the act. In People v. Bransby (supra), Judge Porter said : “It is manifest that the testimony of the prosecutrix did not establish a case of rape, but did establish reluctance and some degree of resistance.” And Judge Potter in the same case said : “ The real and only' question it will be seen is, did all this constitute an assault and battery 1 It is clear that it did in the view taken by the jury, and yet the judge by implication left it to the jury in this proposition to find that all this would not be an assault and battery if she did not make all the resistance she could, unless the failure to make such extreme resistance was from fear or under the belief that further resistance would be useless. Such is not the law * * * if she did not invite or willingly consent 'to his presence and to his conduct (of which the case furnishes no evidence), he was guilty of an assault and battery.” And he added that “ The judge at the trial in his charge upon this proposition, improperly introduced tlie law in relation to tlie resistance demanded of eómplainants in cases of rape, which had no application to a case of assault and battery.” The indictment in that case was for assault and battery, and it appeared by the evidence that the alleged assault was for the purpose of having sexual intercourse with the prosecutrix’ which was accomplished. While Judge Potter’s opinion was not the prevailing opinion, it "was one of concurrence in the result. And it is difficult to see that what is above quoted from it did not state the reasons for the result, as the conclusion reached by the court was, that as the verdict of the jury was intended to negative any assent on the part of the complainant to the act, the conviction was sustained. The present action is also one for alleged assault and battery, and if the defendant did commit an assault and battery upon the plaintiff by taking hold of her anct throwing her down, and what he did was without her consent and against her will throughout, it does not seem that he can justify it by asserting that she did not resist, to the extent which she might have resisted, the consummation of his purpose. Although she might not in that case be entitled to recover damages arising from the matters alleged in aggravation of the assardt, no reason necessarily appears why her action might not be maintained. But upon the assumption that it may be effectually urged on the part of the defendant that, unless he is chargeable for the consequences of the more aggravated act in his conduct, he is not liable for the less offensive or degrading act in his assault, there seems to have been sufficient in .the facts which the evidence tended to prove to send the case to the jury. It is essential to constitute the charge of rape that the attempt, and its consummation throughout, be against the will of the female, and that she resist the attempt to ravish her to the extent of her ability at the time and under the circumstances. (People v. Dohring, 59 N. Y. 374.) The utmost resistance, which otherwise is required, may not lie requisite to the offense if the female has not the possession of her mental or physical powers, or is terrified by threats serious in character, or is in such a place and position as to render resistance useless. The plaintiff was fourteen years of age when she went into the family of the defendant. The relation which it was supposed the defendant assumed to her was in its nature parental. It would seem that slie owed him obedience, and was subject to bis direction and that of Mrs. Raplee. So far as appears such was the apparent relation the first year, and she was subjected to no indecent insult during that time. The occurrences in question commenced in the spring of 1886, when the plaintiff had arrived at the age of fifteen years. The defendant then sought her in a secluded place, and, as she says, suddenly threw her down against her protest and such resistance as she was, under the circumstances, able to make, and had connection with her. Nothing appears to indicate that she had any reason to apprehend such purpose or conduct on his part until he made the alleged assault. The fact that he was a man of mature age, assuming the relation which he did to her when she became a member of his household, and that she was a girl of such tender years, and the influence which he may have had upon her, are circumstances entitled to some consideration. The evidence tends to prove that she was a nervous, slender girl and that he was a strong, vigorous man, and, therefore, she might be helpless to successfully resist him in his purpose when he had her in his possession, with the controlling intent on his part to gratify his passion. "While the utmost resistance on her part, and the greatest resistance which she, under the circumstances, could make, were required of the plaintiff to support the more aggravated charge against the defendant, submission was not necessarily consent. It certainly was not if it was attributable solely to overpowering force on his part. (Regina v. Day, 9 Carr. & Payne, 722; People v. Clemons, 37 Hun, 580.) And as was said by the court in People v. Connor (126 N. Y. 278): “ When an assault is committed by the sudden and unexpected exercise of overpowering forde upon a timid and inexperienced girl under circumstances indicating the power and will of the aggressor to effect his object, and an intention to use any means necessary to accomplish it, it would seem to present a case for a jury to say whether the fear naturally inspired by such circumstances had not taken away or impaired the ability of the assaulted party to make effectual resistance to the assault.” The jury in the case at bar were permitted by the evidence to find a state of facts as strong in support of the charge against the defendant as those expressed in the opinion of Chief Judge Bugee, and they are not weakened by the fact that the duty of the defendant, arising out of tbe relation lie had assumed, -was to care for the plaintiff and give her advice and protection. It would be more difficult to account for the failure of the plaintiff to disclose, soon after it was committed by him, this conduct of the defendant, consistently with the facts requisite to sustain the charge against him if the inference was not permitted that she was so subject to his influence as to render liis imperative direction in that respect effectual upon her, or that she was restrained from so doing by the fear of the consequences of his threats, or both. She says that this injunction of silence on the subject was imposed upon her, and threats of the consequences which she otherwise would suffer were made on each of the occasions referred to. As bearing upon the question as to the effect of her delay in making the disclosures, the jury could also properly take into consideration the youth .and inexperience of the plaintiff. They have found that her evidence had the support of her credibility, and having so found, the jury were at liberty to determine the questions of fact as they did against the defendant. The rule in criminal cases that the jury must, by evidence, be satisfied beyond a reasonable doubt of the guilt of the party charged with an offense, has no application to this case. A preponderance of evidence is sufficient to support the action. (People v. Briggs, 114 N. Y. 56.) The court having charged substantially the propositions embraced in some of the requests to charge, was not required to repeat them, and there was no error in his refusal to change its phraseology as requested. Nor was there any error in the refusal to charge as requested upon the subject of threats. There was no evidence of threats of the defendant to cause the plaintiff to submit to his connection with her. "While the failure of the plaintiff to make any outcry may have been regarded by the jury as a potent fact against her, there was no error in the refusal of the court to charge that in such case she could not recover unless She was prevented by fear of personal violence. This was a question for the jury and it was submitted to them.

There seems to have been no error in the rulings at the trial. The judgment and order should be affirmed.

• Dwight, P. J., Lewis and Haight, JJ., concurred.

Judgment and order appealed from affirmed.


source: Caselaw Access Project

author: Bradley, J.:

license: Public Domain

text:
    Buffalo, Rochester and Pittsburgh Railway Company, Appellant, v. Georgia Lavery, Respondent.

      Indian reservation — legislative power of the State over ■ — Federal control — lease to a railroad —prior invalid lease to an individual validated by the act of Gongress of February 19, 1875 — right of possession —judgment in ejectment recovered by the Seneea Nation.

    It. is not within the legislative power of the State of New York to empower Indian nations to make, or others to take from them, grants or leases of lands within Indian reservations.
    It is only pursuant to the Federal authority that lands belonging to an Indian reservation can he granted or demised or acquired by conveyance or lease from an Indian nation.
    Chapter 316 of the Laws of 1836 of the State of New York, authorizing railroad companies to contract with Indian nations for the right to construct railroads over Indian lands, is not within the legislative power of the State so as to give a railroad company, by virtue of a lease made in accordance with its provisions, by the Seneca Nation of Indians, without the intervention of Federal authority, prior to the act of Congress of February 19, 1875, of lands in the village of Salamanca in the Allegany Indian reservation, a right to the possession of such lands superior to that of an individual in possession under a prior lease, which, although originally invalid and giving no right as against the Seneca Nation, had been ratified and validated Under'the said act of Congress by a renewal thereof by the Seneca Nation.

      Semble, that such railroad company, having a lease from the Seneca Nation, had. the right to acquire the land in question by condemnation proceedings under the statute, although not entitled to recover in ejectment.
    A judgment was recovered by the Seneca Nation in an action of ejectment against a person in possession of reservation land under an invalid lease, which judgment was not executed, and after its recovery the defendant continued in possession until his right to a renewal of the lease under the act of Congress of 1875 was recognized, and the lease was renewed accordingly by the Seneca Nation.

      Held, that such judgment in the action of ejectment 'brought by the Seneca Nation against the same defendant did not inure to the benefit of a railroad company claiming a right to the possession of the land under a lease from the Seneca Nation, made after the original lease to such defendant.
    Appeal by tlie plaintiff, the Buffalo, Rochester and Pittsburgh Railway Company, from a judgment of the Supreme Court, entered in the office' of the clerk of Cattaraugus county oil the 22d day of May, 1893, upon the report of a referee, dismissing the complaint.

      John, 8. Roclmell, for the appellant.

      G. W. dole and William II. Henderson, for the respondent.
   Bradley, J.:

The action is ejectment, brought to recover the possession of a piece of land situate in the village of Salamanca, in the county of Cattaraugus, and within the Allegany Indian Reservation. The claim made by both parties is founded upon leases or grants from the Seneca Nation of Indians. And the question is one of priority of right. The facts, as found by the referee, are not challenged by any exception.

In July, 1866, Charles Snow, a Seneca Indian, by instrument in writing executed by him, leased the premises to Allen McDonald, a white man, for the term of ten years, and shortly thereafter the latter, in like manner, assigned or sub-let to Lawrence Cere, who went into possession, and prior to 1870 erected there a dwelling house. And he was in the actual occupancy of the premises at the time the lease, hereinafter mentioned, to the Cattaraugus Railroad Company was made. In' or about the year 1872, Cere, by an instrument in writing, assigned the lease to William Dinter, who soon after went into the actual occupancy of the premises under the lease, and paid an annual rental reserved of five dollars. In March, 1880, Dinter applied to the council of the Seneca Nation of Indians for a renewal of the lease for the term of twelve years, and on the twelfth day of that month the lease was renewed for that term (reserving the annual rental of five dollars), in accordance with the usage of .the nation and pursuant to the act of Congress of February 19, 1875, hereinafter more particularly mentioned. In May, 1889, Dinter sold and transferred to the defendant all his right, title and interest in the premises. And about the time of the expiration of the term of the lease, and upon the application of the defendant therefor, a lease was made by the Seneca Nation of Indians to her for the term of ninety-nine years. It is upon this lease, with the support of those prior leases, that the defendant relies for her defense. The plaintiff’s claim to the right of possession has for its support a lease of the premises made by the Seneca Nation of Indians to the Cattaraugus Railway Company June 7,1872, to all the rights of which company, under such lease, the Rochester and State Line Railroad Company succeeded. And afterwards, in April, 1880, the Seneca Nation of Indians made a lease of the premises to the last-named company. The plaintiff afterwards, in March, 1887, was incorporated, .and became vested with all the rights of its predecessor under the lease, and all its rights derived from the lease before mentioned to the Cattaraugus Railway Company.

It may be assumed that the lease of Snow to McDonald, the transfer or sub-lease of the latter to Cere and his to Dinter, wei’e invalid at the time they were made, and gave no right, as against the Seneca Nation of Indians, to the premises. And unless they were rendered effectual by or through the act of Congress approved February 19, 1875 (Chap. 90), the plaintiff is entitled to the possession of the premises. By that act of Congress it was provided that all leases of lands within the Cattaraugus and Allegany reservations theretofore made by or with the authority of the Seneca Nation to railroad corporations were ratified, and that the Seneca Nation might lease lands within those reservations for railroad purposes. (§ 1.) That the president of the United States should appoint three commissioners to survey, create and establish the boundaries of the village of Salamanca and certain other villages within the Allegany reservation, including therein as far as practicable all lands then occupied by white settlers. (§ 2.)

That all leases of land situate within the limits of such villages in which Indians, or the Seneca Nation, or persons claiming under them, were lessors, should be valid and binding upon the parties thereto, and upon the Seneca Nation for a period of five years after the passage of the act, except such as should before then expire; and that at the expiration of that period or the termination of the leases they should be renewable for periods not exceeding twelve years, and the persons who should then be the owner or owners of improvements erected upon such lands should be entitled to such renewed leases and to continue in possession on such conditions as might be agreed upon, and when any lease should expire, after its renewal, it might, at the option of the lessee, his heirs or assigns, be renewed. (§ 3.)

That the Seneca Nation was authorized to lease lands within such villages to which no individual Indian or Indians or other person claiming under him or them was entitled to the rightful possession. (§*•) ^

And that it was made the duty of the commissioners so appointed to cause lands, then leased as before mentioned, to be surveyed and defined and designated on tlie maps of the villages, and that all leases then existing or thereafter made should be recorded in the office of the cleric of Cattaraugus county. (§ 5.)

Leases to railroad corporations were not embraced within the provisions of the third section.

By virtue of this act of Congress the lease to McDonald, the. transfer or sub-lease from him to Cere and from him to Dinter were validated as effectually as they could be without prejudice to intervening vested rights in others to the possession of the premises. (Ryan v. Knorr, 19 Hun, 540; Baker v. Johns, 38 id. 625 ; Wait v. Jameson, 15 Abb. N. C. 382.) It is urged by the plaintiffs counsel that the possessory right was effectually given to the Cattaraugus railway at the time the lease was made to it in 1812, and the plaintiff’s right of possession was not dependent upon the provisions of the act of Congress before mentioned. And reference is made to the provisions of the statute of this State passed May 12, 1836, that “ It shall be lawful for any railroad company that has been, or may hereafter be chartered by the Legislature of this State, to contract' with the chiefs of any nation of Indians over whose lands it may be necessary to construct such railroad, for the right to 'mate such road upon such lands ; but no such contract shall vest in such railroad company the fee to such lands, nor the right to occupy the same for any purpose other than what may be necessary for the construction, occupancy and maintenance of such railroad.” The contract, however, not to be effectual until ratified by the Court of Common Pleas of the county. (Laws 1836, chap. 316; 4 Edm. 368.)

The lease to the Cattaraugus Railway Company was made- and ratified in accordance with the provisions of that statute, and if it was within the legislative power of the State to effectually authorize to be accomplished that which its provisions import, the defendant has the superior right to the possession .of the lands in question.

It may be assumed that the plaintiff, having the lease from the nation, has the right to acquire the land in question by condemnation proceedings under the statute. But it is not within the legislative power of the State to enable the Indian nation to mate, or others to take from the Indians, grants or leases of lands within them reservations. In that matter the Federal government, having the power under the Constitution to do so, has assumed to control it by the act of Congress of June 30, 1834 (Chap. 161), which provides that: “No purchase, graiit, lease or other conveyance of lands, or of any title or claim thereto from any Indian nation or tribe of Indians, shall be of any validity ” in law or equity, unless the same is made by treaty or convention entered into pursuant to the Constitution. (U. S. R. S. § 2116.) This succeeded the act of Congress of March 30, 1802, which was substantially the same, and in like manner provided for the presence of the agent of the State for the purposes there mentioned, with the commissioner of the United States appointed to hold the treaty. As respects their lands, subject only to the pre-emptive title, the Indians are treated as- the wards of the United States, and it is oidy pursuant to the Federal authority that their lands can be granted or demised by or acquired by conveyance or lease from them. (Worcester v. Georgia, 6 Pet. 580 ; Mitchel v. U. S., 9 id. 748; The New York, Indians, 5 Wall. 761.)

The claim of the plaintiff, founded upon chapter 316 of the Laws of 1836 before mentioned, has no support in Seneca Nation v. Christie (126 N. Y. 122). There the persons taking the grant had the right of pre-emption, and it was made pursuant to treaty with the Indians, at which the State of Massachusetts and the United States were represented, in compliance with the act of Congress of 1802. The only question in that action was whether a ratification of the treaty by the Senate of the United States was essential to the validity of the grant. And it was disposed of on the able and instructive opinion of Judge ANDkews upon the subject. It may be observed that the provisions of the act of Congress of 1834 were modified by that of 1875, so far as relates to those parts of the Allegany reservation within the villages mentioned in the latter act of Congress. The Cattaraugus Railway Company and its successors, therefore, acquired no right from the lease to it, except such as was derived from the act of Congress of 1875. By virtue of the; same act, the prior lease, the source of the defendant’s claim of right to possession, was also ratified. There does not seem to be anything inconsistent with this view in the determination made in People v. Beardsley (52 Barb. 105) of the questions there presented. While it is within the legislative power of the State to prohibit intrusion or residence upon the reservations by persons other than Indians, and to provide for police regulations there, it has no power to impose taxes upon their lands. (People v. Dibble, 16 N. Y. 203; S. C., 21 How. [U. S.] 366; The New York Indians, 5 Wall. 761.)

As bearing upon the matter of the priority of the leases in question, the plaintiff put in evidence a judgment recovered October 23, 1873, by the Seneca Nation of Indians against William Dinter in an action of ejectment brought to recover possession of premises, including those in question. The judgment, by force of the statute, was conclusive as to the title established in such action upon Dinter and against all persons claiming from,, through or under him by title accruing after the commencement of the action in which the recovery was had. (2 R. S. 309, § 36 ; Bates v. Stearns, 23 Wend. 482; Briggs v. Wells, 12 Barb. 567; Dawley v. Brown, 79 N. Y. 390.) The judgment was not executed ; Dinter remained in possession. And afterwards, in 1880, the lease under which he went into occupancy of the premises was renewed by the Seneca Nation. He, at the time the judgment was recovered, had as against the nation, no right to the possession, for the reason before stated, nor had the plaintiff then any right to it. He remained in the possession of the premises when the act of Congress of 1875 was approved, and thereafter until his right under the act to renewal of the McDonald lease was pursuant to it recognized, and the lease renewed by the Seneca Nation. In view of those facts, it is not seen that the recovery of the judgment in the ejectment action against him can inure to the benefit of the plaintiff so as to give the leases under or through which it claims priority over that under which Dinter may be deemed to have occupied the premises, when support came to it from the act of Congress and by its renewal to him pursuant to such act.

These views lead to the conclusion that the plaintiff is not entitled to recover.

None of the rulings at the trial reqjiire consideration.

The judgment should be affirmed.

Dwight, P. J"., Lewis and Haight, JJ., concurred.

Judgment appealed from affirmed.


author: Dwight, P. J.:

text:
    In the Matter of the Administration of the Estate of Elmer E. Frye, Deceased; Dean Alvord, Appellant, W. D. McGuire, Respondent.

      Incorporation .of a private business — payment for stock to the owner of the business before the transfer of the business to the corporation — relation of debtor and creditor not created — administratorship.

    Elmer E. Erye, being engaged in business, procured tbe organization of an incorporated company to purchase bis business ; tbe proper certificate of incorporation was duly executed and filed, which showed that not less than ten per cent of the capital stock was subscribed for, and that ten per cent of the amount subscribed had been paid in cash to the directors; and officers of the company were duly elected, of whom Frye was the treasurer, but the company never became qualified to do business, because one-half of the capital stock was never subscribed for. Dean Alvord, an original subscriber for five shares of the stock at the price fixed, of fifty dollars a share, paid ten per cent (twenty-five dollars) thereon at the time of the organization.
    The business was never transferred to the company but, pending the expected transfer, was carried on as before by Frye, individually.' Frye being in want of money for the business, Alvord paid him §975, and took from him a certificate for twenty shares of full-paid stock of the company, of the value of §1,000, which included the five shares originally subscribed for by Alvord, and also received from Frye a promise of interest on the §975, until the business should be transferred to the company, it being understood between them that Fry would use the money in his own business until that time. The certificate given to Alvord bore the names of the president and treasurer of the company, it having been one of a number signed in blank by the president for the convenience of the treasurer, in case of the sale of stock.

      Held, that these facts did not create the relation of debtor and creditor between Frye and Alvord;
    And, hence, that, on Frye’s death Alvord was not entitled to be appointed his administrator on the ground of his being a creditor.
    Appeal by Dean Alvord from a decree of tbe Surrogate’s Court of Monroe county, entered in tbe office of tbe surrogate on tbe 19th day of May, 1893, revoking letters of administration upon tbe estate of Elmer E. Frye, deceased, theretofore granted to said Dean Alvord, and awarding letters of administration to W. D. McGuire, petitioner.

      George A. Carnahan, for the administrator, Dean Alvord, appellant.

      Horace McGuire, for petitioner, W. D. McGuire, respondent.
   Dwight, P. J.:

Letters of administration were granted to tbe appellant, on bis own petition, as a creditor of the estate; they were revoked by tbe order bere appealed from, on the ground that be was not, in fact/ such creditor The facts established by tbe evidence were, briefly, as follows: Tbe decedent, Frye, being engaged in the business of buying and selling grain at Rochester, procured tbe organization of an incorporated company to purchase tbe business from him. Tbe organization was, in all respects, in accordance with law; the proper certificate of incorporation was duly executed and filed, which showed that not less than ten per cent of the capital stock was subscribed, and that ten per cent of the amount subscribed had been paid in cash to the directors, and officers were duly elected, of whom Frye was the treasurer; but the company never became qualified to do business because one-half of the capital stock was never subscribed.

The appellant was an original subscriber for five shares of the stock at the price, fixed, of fifty dollars a share, and paid ten per cent (twenty-five dollars) thereon at the time of the organization. Very few, if any, subscriptions to the stock were ever made beyond the ten per cent mentioned in the certificate, and the business was never transferred to the company, but, pending the expected transfer, was carried on as before, by Frye, individually. Frye came to be in want of money for the business, and upon that fact becoming known to Alvord, the latter paid him $975, and took from him a certificate of twenty shares of full-paid stock of the company, of the par value of $1,000, which included the five shares originally subscribed by him, on which he had paid twenty-five dollars at the time of the organization. Alvord also received from Frye the promise' to pay him the interest on the $975 until the business should be transferred to the company, it being understood between them that Frye would make use of the money in his own business until that time. The certificate given to Alvord bore the names of the president and treasurer of the company, it. having been one of a number which were signed in. blank by the president for the convenience of the treasurer, in case of the sale of stock.

This was the transaction between Frye and Alvord, out of which, if at all, arose the relation of debtor and creditor between them. "We think it reasonably clear that the relation was not created thereby. The transaction was, no doubt, irregular in some respects, but its character was not obscure. It was clearly the intention of Alvord to increase his holding of the stock of the company from five shares to twenty shares, and to pay for the whole of it in full. This it was entirely competent for him to do, and this was, undoubtedly, the effect of the transaction. He testifies that he dealt with Frye as the treasurer of the company, and paid him the money as such, and the certificate which he received, if not in all respects regularly issued to him, was good, at least, as a voucher and entitled him to a certificate for twenty shares of full-paid stock. The money paid by him, therefore, belonged to the company, and he had no claim to recover it from Frye. It was not paid to the latter under any mistake of fact, and there is no ground for imputing to him any fraud in the transaction as between himself and Alvord. All the facts of the case were equally known to both parties, and it was the intention of both that Frye should use' the- money in the business until the business should be transferred to the company. The facts of the case are, we think, equally fatal to the contention of the appellant that he was the creditor of the decedent in respect to rne interest which the latter agreed to pay him for the use of the money pending the transfer of the business to the company. Such an agreement was, clearly, an unlawful one as being; in effect, if not in intention, a fraud upon the company, to which the money belonged; and, the parties thereto being vn jpari deUcbu, neither will be heard to assert a claim against the other, based upon that agreement.

The views here expressed are based, we conceive, upon elementary principles, and if correct they result in the denial to the appellant of the relation of creditor, to any extent, of the decedent, and, consequently, in the affirmance of the order revoking the letters of administration which were issued to him in that capacity.

Lewis and Haight, JJ., concurred.

Decree of the Surrogate’s Court of Monroe 'county appealed from affirmed, without costs to either party.


author: Lewis, J.:

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    Charles B. Armstrong, as Receiver of the Buffalo Railway Supply Company, Plaintiff, v. James Danahy, Defendant.

      Corporation — subscriptions to stock induced by fraud — not a defense to an action fot' its collection — pleading a negative pregnant — alteration of a subscription book.

    In an action 'brought by the receiver of a corporation to recover the amount of an unpaid subscription to its capital stock, the defendant offered to prove as a defense that one of the other subscribers to the stock was induced to make his subscription under an arrangement by which paid-úp stock to the amount of his subscription was to be delivered to him, without his actually paying any part of the amount subscribed by liim, and that the defendant was induced to make his subscription for stock in reliance upon the genuineness of such subscription, which evidence was excluded; the defendant also claimed that no call was made upon him for his subscription prior to the bringing of the action for its collection.
    Held, that a secret agreement of a corporation with certain of its subscribers, by which they are to have some advantage not common to all the stockholders, of be released from payment for the stock, is no defense to an action brought to collect the subscription of one. who was not promised the same advantages, and that an order of the court directing a receiver to collect the outstanding assets of a company justified the bringing of an action without previous demand for the payment of the subscription.
    Such secret agreements are void, and the subscribers making them are liable on their subscriptions as though no special terms had been offered them.
    A denial in the form of a negative pregnant is good where the plaintiff goes to trial with such a denial in the answer, without availing himself of his remedy by motion to make the answer more definite and certain.
    Where it is intended to prove an alteration of a subscription book of a corporation, as a defense, in an action brought to collect a subscription to the stock of such corporation, the answer should contain an allegation with reference to such alteration, to the effect that it was fraudulently made, and that the defendant was injured thereby.
    Motion by tbe defendant, James Danahy, for a new trial on exceptions ordered to be heard at the General Term in the first instance, after a judgment in favor of the plaintiff, entered on the 8th day of June, 1893, on the verdict of a jury for $515, rendered by direction of the court on a trial at the Erie County Circuit.

      Hervry W. jBrush, for the plaintiff.

      J. L. Qioackenbush, for the defendant.
   Lewis, J.:

This action was brought by the plaintiff, as receiver of the Buffalo Railway Supply Company, to recover of the defendant $500, his subscription to the capital stock of the company. The company was organized on the 30th day of September, 1890, as a domestic corporation under the laws of the State of New York. By an order of this court, dated the 14th day of November, 1892, the corporation -was dissolved, and the plaintiff was duly appointed receiver, and by an order of the court, dated the 18th day of November, 1892, he was directed, as such receiver, to enforce the collection of all the outstanding assets of the company, and he thereupon brought this action, and alleged in his complaint that the defendant subscribed for $500 of the capital stock of the company, which he had failed to pay.

Evidence was given tending to show that the defendant subscribed for stock as alleged in the complaint, and that many others were 'subscribers to the stock of the company. The defendant offered to show, as a defense, that one of the other subscribers to the stock was induced to make his subscription under an arrangement that paid-up stock to the amount of his subscription should be delivered to him without his paying therefor, and that he (defendant) was induced to make his subscription for stock, relying upon the genuineness of such subscription and others. The evidence was excluded. The evidence was too indefinite to avail the defendant; if such an agreement were, in fact, made, it did not release the subscriber, or affect 'his liability upon his subscription.

“ A secret agreement of the corporation with certain subscribers to stock, whereby they are to be released from payment, or to have some other advantage not common to all the subscribers, is no defense for a subscriber who was not promised the same advantages. All such secret agreements are void, and the subscribers receiving them are liable.on their subscriptions absolutely as though no special advantages had been promised.” (Cook on the Law of Stock and Stockholders, § 191, and authorities referred to in the marginal note Thompson on Liability of Stockholders, § 124.) Defendant contends that no call was made upon him for his subscription before the action was commenced. The order of the court that the receiver should proceed to collect the outstanding assets of the company is an answer to this contention. The defendant was called as a witness and testified that the subscription hook was brought to him for his signature in the spring of 1890, and then the following questions were asked and rulings made : “ Q. "Was it (the subscription book) any different from what it is now when you signed it? [Objected to by plaintiff’s counsel. Objection sustained and exception taken.] Q. Was this line, this interlineation cone hundred thousand dollars which is to be increased to,’ was that in there when you signed it ? [Objected to by plaintiff’s counsel. Objection sustained and exception taken.] ”

The defendant claims that the court erred in excluding this evidence. It does not appear upon what ground it was excluded, whether because it was not admissible, as the answer failed to raise any issue, or for the reason that the alleged alteration was not material. It was alleged in the complaint that in or about the month of October, 1890, this defendant subscribed for five shares of the capital stock of the said corporation at the par value of one hundred dollars each, and .agreed to pay therefor the sum of five hundred dollars ($500) in the manner and at the time or times the same might be called for by the board of directors of said company.” The defendant in his answer denied that he “ in or about the month of October, 1890,” etc., following on in the identical language of the allegation of the complaint.

This was the only manner in which the allegations in the complaint referred to were put in issue. The answer might be true, and every material allegation in the complaint at the same time be true. Pomeroy, speaking of such a pleading in his work on Remedies and Remedial Rights (§ 623), says: To say the least, a denial in the form of a negative pregnant is such a glaring violation of logical and legal principles that it exhibits, on the part of the pleader, either the ignorance which does not comprehend the nature of an issue or the astute cunning which is able to conceal the want of a defense under the appearance of a direct answer. In either instance it should be condemned by the courts.” There are authorities in our State sustaining this doctrine of Pomeroy. But it was held in Wall v. The Buffalo Water Works Company (18 N. Y. 119) that if the plaintiff go to trial with such an answer, without availing himself of the remedy of a motion that it be made more definite and certain, it must be held to put the allegations of the complaint in issue. The doctrine of this case does not appear to have been overruled.

This evidence was not, therefore, properly excluded because the answer failed to make an issue. We are, however, of the opinion that the defendant’s evidence and offers of evidence did not go far enough to show that the alleged alterations in the subscription were material. It appears on examination of the subscription paper printed in the record, that the words “ one hundred thousand dollars which is to be increased to ” were interlined. As first drawn it read: “ We, the undersigned, do hereby subscribe for the number of shares of the capital stock of the Buffalo Railway Supply Company, a corporation formed under the Laws of the State of New York, and having a capital stock of two hundred thousand dollars ($200,000), divided into Two Thousand (2,000) shares at a par value of one hundred dollars,” etc. By the interlineation it was made to read, “having a capital stock of one hundred thousand dollars ($100,000) which is to be increased to two hundred thousand dollars,” etc. The company had not been organized at the time the defendant made his subscription.

In the articlés of association when filed, the stock was fixed at $100,000, with a statement that it was to be increased to $200,000. How the capital came to be fixed at $100,000 instead of the larger sum was not made to appear upon the trial, and nothing is stated in the answer in reference thereto.

Who was responsible for the change, or whether it was made with or without the knowledge and consent of the defendant, was not made to appear. There was no allegation in the answer that the alteration was fraudulently made, or that the defendant was in any manner injured thereby.

We see no reason for setting aside the verdict. Defendant’s exceptions should be overruled, and judgment directed for the plaintiff upon the verdict.

Dwight, P. J., IIaight and Bkadlby, J\L, concurred.

Defendant’s motion for a new trial denied, with costs, and judgment ordered for the plaintiff on the verdict.


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    William O. Wyckoff and Others, Respondents, v. William H. Vicary, Appellant.

      Replevin — the title to chattels is not parted with, by a sale to a supposed, but nonexistent coiporation.

    In an action of replevin brought to recover possession of a type writer and desk, it was proved that the agent of the plaintiffs negotiated tile sale of the property with and delivered it to a person who represented himself to he the manager of a corporation, and who stated that the corporation was desirous of purchasing the machine and desk, and that he would have its directors authorize him to make the purchase.
    The agent left the machine and desk with the alleged manager, who afterwards informed him that the directors had met and authorized him to purchase the property, which the plaintiffs thereupon charged to the corporation. It was shown that the corporation was never organized, and that the alleged manager had no authority to hind tile proposed company. The property was not paid for. The manager subsequently sold the property to the defendant, and this action was brought by the plaintiffs to recover possession of it.

      Held, that inasmuch as the plaintiffs intended to make a sale to a company which did not exist, there was no sale on their part;
    That while the alleged manager was unquestionably liable to the plaintiffs, at their option, for the price of the machine and desk, he did not acquire such a title to them as would enable him to give a good title to an innocent purchaser for value from him;
    That the corporation having no existence the alleged manager could not, as agent of the corporation, give his vendee title to the property, nor could he do so by virtue of the delivery of the property to him, as there was no intention on the part of the plaintiffs or their agent to confer any title or control of the property on the manager individually.
    Appeal by tbe defendant, William II. Yieary, from a judgment ■of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Niagara on the 2oth day of April, 1893, for the possession of certain personal property, or for the sum of seventy-five dollars, and costs.

      A. A. Bradley, for the appellant.

      Devoe P. Jlodson, for the respondents.
   Lewis, J.:

The plaintiffs were co-partners. Their salesman, in October, 1891, called at an office in the city of Lockport, having upon the door the name of Lockport Electric Railroad, Light and Power Company/’ and found in the office Mr. Charles II. Laurence. Lie entered into negotiations with Laurence for the sale of a type-writing machine and a desk. Laurence told the agent that he was the manager of the Lockport Electric Railroad, Light and Power Company; that the company desired to purchase a type writer and desk; that he would bring the matter before the directors of the company the following Monday and have them authorize him to make the purchase, and that if the company consented he would so inform the agent. Upon inquiry being made by the agent, Laurence stated that lie should charge the machine and desk to the company if it consented to buy them. The agent thereupon delivered the machine and the desk at the office, and Laurence thereafter informed him that the directors had had a meeting and authorized him to make the purchase, and the plaintiffs thereupon charged the company with the price of the machine and desk, amounting to the sum of $105. There had been some preliminary steps taken at this time looking to the formation of a company of the name mentioned, but it had not in fact been organized and has not since. Laurence had been trying to organize the company but had failed to do so ; lie had no express authority to act for the company in making the purchase in question. The plaintiffs, learning the situation, made efforts to collect the $105 of Laurence but failed. The defendant in good faith purchased the machine and desk of Laurence, and paid him therefor $75. Plaintiffs failing to get pay for their property, replevied it from the possession of the defendant.

The jury, under proper instructions from the court, found that it was the intention of plaintiffs’ agent to sell the property to the company and not to Laurence. There being no such company in existence it could not take title, hence there was no sale. (Rodliff v. Dallinger, 141 Mass. 1; The Peters Box Co. v. Lesh, 119 Ind. 98.)

The defendant contends that Laurence, having assumed the right to purchase the property for a corporation not then formed, but which was expected to be organized, made himself liable to the plaintiffs for the purchase price of the property, and hence had the right to sell it to the defendant. Laurence, having falsely represented that he was authorized to purchase the property, was unquestionably liable to the plaintiffs for its purchase price, but it does not follow that the plaintiffs were obliged, to look only to Laurence. It was optional with them to either hold him or reclaim their property. The sale which the plaintiffs intended and supposed they had made having failed for lack of a purchaser was not thereby turned into a sale to Laurence, who conducted the transaction. If plaintiffs had parted with possession of the property with the intention of passing title to Laurence, then, the defendant being an innocent purchaser for value from Laurence, would have obtained good title even if Laurence had obtained possession thereof by fraud. (Davis v. Bechstein, 69 N. Y. 440.)

But the evidence tended to show, and the jury found, that the sale was not made to Laurence. He was not, therefore, the owner of the property, and could not give the defendant a good title to it. The plaintiffs had not clothed him with apparent authority to sell it. They delivered the property, as they supposed, to a corporation.

A bona fide purchaser of personal property other than commercial paper, although from one who has the possession, acquires no better title than that of his vendor. (Ballard v. Burgett, 40 N. Y. 314.)

Laurence was at the time of the delivery of the property in qharge of the office, and ostensibly had charge of the affairs of the proposed corporation, but the evidence shows that he had no authority from the company to make the purchase. It cannot be successfully maintained that Laurence could give the defendant title to the property as agent for the corporation. Tire corporation not having been organized, could not have an agent, neither could it take title to the property, and, then, the defendant does not claim title from the corporation, but through Laurence. In the cases to which we are referred in the appellant’s brief the vendors intended to confer the real or apparent ownership upon the party under whom the defendants claimed title and right of possession, which distinguishes these cases from the one at bar. The case Avas submitted to the jury Avith proper-instructions, and Ave find no reason for disturbing the verdict.

The judgment and order appealed from should be affirmed.

Davight, P. «L, and Haight, J., concurred.

Judgment and order of the Niagara County Court appealed from affirmed.


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    Maude M. Burke, Appellant, v. John J. A. Burke, Respondent.

      Separation — acts that do not justify the court in granting it.

    The evidence of contentions and quarrels between husband and wife which is insufficient to sustain an action by the wife for a separation on the ground of cruel and inhuman treatment and of conduct such as renders it unsafe and improper for her to cohabit with her husband, reviewed and commented upon.
    When the report of a referee to the effect that a woman has failed to establish the allegations of her complaint, that her husband has neglected to provide for her support, will not be disturbed.
    Appeal by tlie plaintiff, Maude M.' Burlce, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of Monroe county on the 11th day of February, 1892, on the report of a referee dismissing the complaint on the merits, without costs.

      John P. Bowmctm, for the appellant.

      Wm. F. Cogswell, for the respondent.
   Lewis, J.:

This action was brought for a limited divorce, the plaintiff in her complaint charging that the defendant had been guilty of such cruel and inhuman treatment of her, and of such conduct as to render it unsafe and improper for her to cohabit with him, and upon the further ground that the defendant had neglected to provide for her.

The action was referred to Ex-Judge James C. Smith, who, after an extended trial of the issues, made his report, dismissing the plaintiff’s complaint. A judgment was directed for the defendant upon the report of the referee, and from the judgment entered plaintiff brought this appeal.

The parties were married in the city of Rochester on the 22d day of February, 1887, and lived together as husband and wife in that city until the 9th day of May, 1889, when the plaintiff left the defendant’s home and thereupon brought this action for separation.

The cause was tried at great length; the evidence contained in the record covers more than 350 pages of printed matter; the story of the bickerings and altercations of the parties during the two years and over that they lived together, as related by them and their witnesses, tends pretty conclusively to show that tbeir home life was anything but a pleasant one.

Their contentions and quarrels seem to have resulted, in many instances, from very trivial causes, and were exaggerated by the irascible and ungovernable temper of both of the parties. It is difficult to arrive at a satisfactory conclusion, after a careful perusal of the evidence, as to which one conduced most to bring about the final separation. It is very apparent that they failed to appreciate the obligations they assumed to each other when they entered into their marriage vows.

The maturer years and larger experience of Dr. Burke should have enabled him to have better controlled his temper and language, and to have induced him to treat his young wife with greater tenderness and respect. The evidence tends to show that his treatment of her was, on many occasions, severe and unjust.

The serious and irritating physical malady from which the doctor was suffering during the time should have admonished the plaintiff that it was her duty to be kind and attentive to his wants and wishes. He was for a long time very seriously ill, so much so that his life was despaired of. He was exceedingly nervous and irritable. He had been subjected to a severe surgical operation and had resorted to the use of anaesthetics to allay his pains and nervousness.

All this tends to account in a measure for his language and conduct. There was much evidence tending to show that while the defendant was in this condition the plaintiff was irritable and guilty of conduct and the use of language to her husband which tended to annoy and provoke him. Much of the time the parties lived peaceably with each other, but their altercations and quarrels were quite frequent and very bitter.

It is the policy of the law not to grant separations or divorces for slight and trivial causes. When parties have deliberately entered into such relations it is incumbent upon them to do everything in their power to make the union a happy one; and while it is not uncommon that at first misunderstandings and bickerings arise, as a rule the- parties finally adapt themselves to their new relations and live comparatively happily with each other.

The testimony does not sustain the charge that the defendant failed to provide for the plaintiff. The learned referee, a man of large experience and great legal learning, after bearing the testimony and seeing the witnesses, concluded that the plaintiff had failed to establish the allegations of her complaint, and made a report dismissing her action. His report Was confirmed at the Special Term, and, after a careful review of all of the evidence, we think the referee arrived at the correct conclusion, and we find no reason for disturbing the judgment.

The judgment should be affirmed, without costs of the appeal to either party.

Dwight, P. J., and Haight, J., concurred.

Judgment appealed from affirmed, without costs to either party.


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    Henry C. Phelps, Respondent, v. Lucian Rowe, Appellant.

      Oral promise to pay out of an assigned claim a debt of the assignor to a third person — not void under the Statute of Frauds.

    Where a person, being under no legal obligation to do so, transfers a claim to another upon the oral condition that the assignee will, out of the moneys collected thereon, pay the indebtedness of the assignor to a third person, and the assignment is accepted upon that condition, the promise is not void under the Statute of Frauds, and the assignee, upon the collection of the claim by him, becomes liable to such third person in the amount of such indebtedness.
    Appeal by the defendant, Lucian Rowe, from a judgment of the Monroe County Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 3d day of March, 1893, upon the verdict of a jury for $291.60, and also from an order entered in said clerk’s office on the 6th day of June, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      P. M. French, for the appellant.

      John Desmond, for the respondent
   Lewis, J.:

One Jackson Htter owed the defendant about $1,500 for rent of a farm ; he at the same time was indebted to plaintiff in the sum of $240 for apple barrels which he had purchased of him and for which he had agreed to pay the plaintiff when he sold his apples.

Utter sold Ms apple crop, including the barrels so purchased of plaintiff, to a Mr. Burlingame for the sum of $931.25.

A controversy arose between Utter and Burlingame concerning the apple bargain' and Burlingame refused to pay for them. Utter thereupon made a verbal agreement with the defendant to the following effect: Utter was to transfer his claim against Bur-lingame to the defendant; defendant was to collect it, and when collected he was to pay to the plaintiff out of the money received the amount of his claim against Utter.

Utter made, accordingly,.a formal written assignment of the said claim to defendant. Nothing was said in the writing as to what should be done with the money when collected.

Plaintiff was not cognizant of the agreement or assignment until after they were made.

,

. When informed of them he called upon the defendant, and the defendant promised him that he would pay his claim against Utter when he succeeded in collecting the money of Burlingame.

. Burlingame paid the money to- Hie defendant, and though requested so to do the latter refused to pay plaintiff’s claim, and this action was prosecuted in -Jthe Municipal Court of Rochester, where plaintiff had a verdict against, the, defendant for the $240.

- - The action was retried in the-Monroe County Court, where plaintiff obtained another verdict, and an appeal was taken to this court. It is the contention of the counsel for the appellant that the promise not being in writing was void under the Statute of Frauds.

We do not think so. Utter was under no legal obligations to transfer his claim against Burlingame to the defendant; he did so upon condition that defendant would, out of the moneys when collected, pay plaintiff’s claim.

’ The defendant having accepted the claim upon that condition, he became the debtor to plaintiff for the amount of the Utter debt when he obtained the money of Burlingame, and was liable to the plaintiff in an action therefor. (Lawrence v. Fox, 20 N. Y. 268.)

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

Dwight, P. J., and Haight, J., concurred.

Judgment and order of the County Court of Monroe county appealed from affirmed, with costs.


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    Hiram Truesdell, Plaintiff, v. Charles. H. Chumar, Defendant.

      Manufacturing corporation — liability of a stockholder for debts to laborers — action by an assignee of a laborer’s judgment — evidence as to the employment — declarations of an officer not part of the res gestee — judgment against the corporation not evidence against the stockholder.

    In an action brought, by the assignee of an unsatisfied judgment against a corporation organized under the Manufacturing Corporations Act of 1848 (Chap. 40), to recover from a stockholder the amount thereof under section 18 of that act, on the ground that the money was due the plaintiff’s assignor as a laborer for the corporation, evidence was offered by the plaintiff of declarations, made by a person who it was claimed acted as president of the corporation, in a conversation with the plaintiff’s assignor after he had ceased to work for the corporation, in order to show the nature of his assignor’s employment and the amount due him.

      Held, that the declarations were not competent unless shown to have been part of the res gestee in a transaction in which the alleged officer of the corporation was legitimately acting as its representative as, e. g., in an accounting or by way of adjustment or settlement.
    In such an action against a stockholder, by the assignee of a judgment against the corporation, the judgment is of itself no evidence of the alleged indebtedness of the corporation to the person by whom the judgment was recovered.
    MotxoN by the defendant, Charles II. Chumar, for a new trial oil exceptions taken at the "Wyoming Circuit and ordered on the 26th day of April, 1893, to be heard at General T.enn in the first instance.
    The action was brought against the defendant as a stockholder in the Eldridge Salt Company, a corporation created pursuant to chapter 40 of the Laws of 1848, authorizing the formation of corporations for manufacturing, mining, mechanical or chemical purposes, and the acts amendatory thereof. The complaint charges that one Andrew Johnson, having performed services as a laborer for the corporation, and not having been paid therefor, commenced an action against the corporation, and on April 26,1892, recovered judgment against it for $355.03 for the value of such services; that execution thereon was returned unsatisfied; that the company is insolvent; that the defendant is a stockholder to an amount exceeding such claim; that the whole amount of stock has not been paid in, and that the judgment has been assigned to the plaintiff, who is the owner of it.
    Verdict ivas directed for the plaintiff.

      J. L. Woodworth and I. Sam Johnson, for tbe plaintiff.

      Oho/rles N. Morgan, for the' defendant.
   Bradley, J.:

The complaint alleges the elements of two grounds of liability of the defendant. The one, the non-payment in full of the amount of the capital stock of the corporation as required by the statute (Laws 1848, chap. 40, § 10); and the other, that the money was due to the plaintiff’s assignor for his services as-laborer for the corporation. (Id. § 18.) The defendant, by his answer, put in issue both alleged . propositions ; and the plaintiff proceeded at the trial with the view to recovery upon the latter ground. The defendant was a stockholder of the company to an. amount exceeding the plaintiff’s alleged claim. The plaintiff was the assignee of a judgment which had been recovered by Andrew'Johnson against the company, and. execution thereon had been returned wholly unsatisfied. The question, therefore, was whether-or not the company was indebted to Johnson for services rendered by him as a laborer within the meaning of the statute, and such is the claim upon which the judgment was recovered by him. And upon that subject a witness on the part of the plaintiff testified that he knew Johnson; that about the time the action was commenced by Johnson against the salt company he saw Daniel Eldridge and Johnson together; that Eldridge was then acting as president of the company, and that he heard a conversation between them in reference to the claim. He was then asked to state what it was. Objection was made to it “ as incompetent to prove any issue or any fact raised by the pleadings.” “By the court: You seek to. show that Mr. Eldridge, acting as president, admitted to Mr. Jolmson that he had employed him, and that that claim was. owing to him by reason of that employment? By plaintiff’s counsel: “Yes, sir; and that they looked o^er and made an accounting, and stated the amount between employer and employee. Now, it is to show that amount, and to show the nature of the employment, that I offer this evidence. "We propose to show what' this contract was.” The objection was overruled and exception taken. The witness testified that Johnson was in the witness’ office, and when Eldridge came in, said to him: “You owe me $230, you agreed to pay me $4 a day, and I have worked there seventy days, and you have only paid me $50, and there is $230 due; ” that Eldridge replied, I know I agreed to pay you $4 a day and I only paid you $50, and if you had done as you agreed it would have been that amount.” This interview was sometime after Johnson had ceased to work for the company, and the conversation merely as such between him and Eldridge was not competent evidence against the defendant. Nor is it seen that what was said of the purpose of the evidence before the ruling was made by the court tended to show that it was part of the res gestas in a transaction between those persons in which Eldridge, as president of'tlie company, was legitimately acting as its representative. The oiler, as a whole, did not purport to make the conversation a part of any transaction in the business of the company, nor did the evidence given tend to make it so. The exception was well taken. (Thallhimer v. Brinckerhoff, 4 Wend. 394; Cortland Co. v. Herkimer Co., 44 N. Y. 22; Anderson v. R., W. & O. R. R. Co., 54 id. 334.) The objection to the conversation remained, and after the ruling no inquiry was made whether they were engaged in any act of accounting or by way of adjustment or settlement, but the question was repeated, what was the conversation ? And the answer to it closed the examination of the witness on the part of the plaintiff. In Hoag v. Lamont (16 Abb. [N. S.] 91; 60 N. Y. 96) the declarations proved, of the officer of the corporation, had relation to the contract out of which the liability in question there arose, were made at the time it was entered into, and constituted part of the transaction of making it.

The judgment recovered by Johnson against the salt company was, of itself, no evidence as against the defendant of the alleged indebtedness of the company to him. (Miller v. White, 50 N. Y. 137.)

For the error before mentioned in the reception of evidence, the motion for a new trial should be granted, costs to abide the event.

All concurred.

Defendant’s motion for a new trial granted, with costs to abide the event.


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    Seligman Baer, Respondent, v. Hudson Street Permanent Savings and Loan Association, Appellant.

      Sewings and loan corporation — application by a member to witlidrem money due Mm- — -erasure in corporate books — effect of a second application.

    Where a loan corporation, the articles of association of which provide that members not having received a loan may, at any'time on written application to the ' hoard of directors, draw from dues paid in by him all or part thereof, the same ■ to he paid after all prior applications for loans and withdrawals have been satisfied, is sued by a member on its refusal to pay over on his application the amount of money due him, the question as to whether the application has been . made or not should be submitted to the jury; and where the plaintiff testifies that he regularly made the application required, and it was entered on the books of the association by an officer thereof, which testimony is corrbborated, the verdict of a jury in favor of the plaintiff will not be disturbed, although the books of the defendant were produced and did not show an entry of the plaintiff’s application, but did show that an entry, which appeared to have been erased, had been made upon them on'the‘day that the plaintiff testified that his application was entered. ‘ „ ' :
    The making of a subsequent application on the suggestion of the defendant does not estop the plaintiff from proceeding under'his first application.
    Appeal by the defendant, the Hudson Street Permanent Savings and Loan Association, from a judgment-of the Monroe County Court, entered in the office of the clerk of the County of Monroe on the 9th day of March, 1893, and from an order denying a motion for a new trial made upon the minutes and' entered in said clerk’s office on the 28th day of April, 1893, denying defendant’s motion for a pew trial made on the minutes. - ’
    • "The articles of association of the defendant provided among other things that members not having received a loan may, at any time, on- written application to the board of directors, draw from dues paid in by him all or part thereof, the same to be paid after all prior applications for loans and withdrawals have been satisfied.

      E. G. Wtruer, for the appellant.

      IT. J. Stull, for the respondent.
   Lewis, J.:

The defendant is a public corporation duly organized and incorporated under the laws of the State of New York.

Its members. pay in at stated periods dues ; it is provided in its articles of association tbat any one of its members not having received a loan may at any time, on written application to the board of directors, draw from dues paid by him all or any part thereof, the same to be paid after all prior applications for loans and withdrawals have been satisfied.

The plaintiff was, on the • 1st day of April, 1892, a member and shareholder of the defendant, and, as such, held shares of stock upon which there had accumulated at that time in dues and dividends the sum of $152.

There was, at the time of the commencement of the action, that sum to his credit on the books of the defendant in dues paid in by him, exclusive of the- dividends paid thereon. He had, prior to the 1st of April, 1892, received two loans from the defendant, but they had been paid up and canceled and he had not received any other loan, so that he was entitled to withdraw from the association the amount of money claimed in his complaint, if he did, as claimed by him, give the proper notice to defendant on the 1st day of April, 1892.

. That was the principal and main question litigated upon th'e trial.

The plaintiff testified positively to making such an application on that day at the office of the defendant; he testified that his application was entered upon the books of the association pursuant to its rules and regulations, by a Mr. Hertel, one of the trustees, and that Hertel made the proper entry upon the books and signed the plaintiff’s name thereto at his, plaintiff’s, request. Other witnesses were called by the plaintiff who gave evidence tending to corroborate his contention.

Mr. Hertel was called as a witness for the defendant and flatly contradicted the plaintiff’s testimony. Other witnesses gave testimony tending to controvert the plaintiff’s contention.

The books of the defendant were produced at the trial, and upon an inspection thereof the plaintiff’s application did not appear to be entered, but it did appear that an entry was made upon the books on the day that the plaintiff testified his application was entered, which entry appeared to have been erased. "Whether it was the plaintiff’s application that was erased was a subject of conflicting evidence.

The jury found, upon conflicting ¡testimony, in the plaintiff’s favor, and we cannot say that their verdict was not justified by the evidence.

. Whether the plaintiff made the application in April being a matter of dispute between the parties, at. the suggestion of the defendant he made another application in -October, 1892. If the last application was made under the circumstances as related by the plaintiff it did not, we think, estop him from claiming under the previous application made in April.

As the plaintiff did. not base 'his 'claim to recover upon the October application, but under that of April, and it being conceded upon -the trial that if the application -was in fact made in April the sum claimed was due before the commencement of the action, it was immaterial whether the amount claimed was due if the claim was in fact made in October and not,.in April, as contended by the defendant.

We have examined the defendant’s exceptions and find nothing in them calling for a new trial.

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

Dwight, P. J., and Haight, J., concurred.

Judgment and order of the Monroe County Court appealed from affirmed, with costs. ...


author: Hardin, P. J.:

text:
    Joseph C. Drake, Respondent, v. The New York, Lackawanna and Western Railway Company, Appellant.

      When a raibvad company is negligent in not providing a sufficient sluiceway.

    The facts and circumstances considered which present the question, to be determined by a jury, whether, in the exercise of reasonable diligence, a railroad company should have made a larger sluiceway through its roadbed, and as to whether, if it was negligent in not doing so, such negligence caused injury to real estate.
    Appeal by the defendant, The New York, Lackawanna and "Western Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 5th day of April, 1893, upon the verdict of a jury for $1,216, after a trial at the Chemung County Circuit, and also from an order entered in said clerk’s office on the 30th day of March, 1893, denying the defendant’s motion for a new trial.

      Robert T. Turner, for the appellant.

      Reynolds, Stcmchfield c& OollA/n, for the respondent.
   Hardin, P. J.:

Plaintiff has been the owner of a farm for some twenty-four years, consisting of about 180 acres situated in the town of Horseheads, a short distance west of West Junction. Under the laws of the State of New York the defendant constructed its road between the city of Binghamton and the city of Buffalo, and in doing so crossed the farm of the plaintiff, having acquired the right so to do by condemnation proceedings, its road passing in a westerly direction, severing his farm so that a portion thereof lies on the north side of the railroad and a portion thereof on the south side of the road. Plaintiff lias recovered damages alleged to have been sustained by reason of water reaching his land on the south side of the defendant’s road. Near the close of the trial it was held that there is no right of recovery here for any damages done to the land north of the railroad, and the question finally submitted to the jury was “ whether, in the exercise of reasonable diligence, they should have made a larger sluiceway through the railroad, and as to whether, if they were negligent in that, that such negligence caused the injury.” In delivering to the jury the charge tlielearned judge said : “There are two propositions which the plaintiff must establish before he can recover in this action. The first proposition is: That the defendant has been guilty of negligence. And the second proposition: That 'such negligence has caused this injury of which the plaintiff complains.” And further on he proceeded to say “ that that canal constituted in the sense of law a water course so that this defendant owed a duty in the construction of this road to provide a waterway or water course there sufficient to carry off all the waters that might reasonably be expected to flow through it. Then the first question for you to determine is, did it fulfill its duty, and did it provide a sufficient waterway to carry off all the waters that might reasonably be expected to flow there. * * * .You are to consider all those facts, and to determine the single question as to whether, under the circumstances, as they existed at the time that this company built its road, they supplied a -water course which was sufficient to carry off such water as might reasonably be expected to flow down through the channel of the canal, and through this waterway or sluicewáy. Now, gentlemen of the jury, if you find that they provided such a course as would be sufficient to carry off the water that might reasonably be expected at that time, then I charge you that they were not guilty of negligence, and, the plaintiff cannot recover. If they have failed, however, to provide such a water course as would carry off the waters that might reasonably be expected at that time, their the plaintiff must establish another proposition, before he can recover, and that is, that such negligence on the part of tbe defendant lias caused this injury.” After -the body of the charge had been delivered, in response to a request made in behalf of the defendant, the court charged that the defendant was not “ absolutely required to furnish such a passageway for water, but they were only held to reasonable care in providing a waterway sufficient.” It is alleged in the complaint “That at the time defendant constructed its roadbed or railway as hereinbefore alleged through the said towns of Horselieads and Big Flats and the farm of this plaintiff, there existed and ran a natural water course or brook or creek from Sing Sing creek or the vicinity or locality of Sing Sing creek, easterly or northeasterly through the said towns mentioned and plaintiff’s said farm, which, although liable by reason of the nature of the adjoining lands or territories to sudden rises or increase of the volume of water, was, within said towns and through plaintiff’s said farm, confined to. a certain well-defined course and channel by reason of the high banks on either side thereof.” And it is alleged that prior to the construction of the defendant’s road “ the water of the said water course in times of freshet and flood, as well- as in ordinary times, was confined and flowed within” the banks of said stream.

Evidence was given upon the trial tending to support the allegations of the complaint, and it justified the instructions as to the law given by the trial judge to the jury. (Vernum v. Wheeler, 35 Hun, 53 ; Mitchell v. N. Y., L. E. & W. R. R. Co., 36 id. 177; Brown v. The Cayuga & Susquehanna Railroad Co., 12 N. Y. 486.)

In Bellinger v. N. Y. C. & H. R. R. R. Co. (23 N. Y. 42), in the course of the opinion delivered, it was said that the defendant had a right to construct its road, and in doing so it was “ bound to do this with all necessary care and skill, so as to save the adjacent proprietors from any injurious consequences which might arise on account of the necessary modification of the natural surface of the ground, so far as should be reasonably practicable.” The quotations we have made from the charge delivered in this case seem to indicate that the rule was observed. (See MS. opinion of Merwin, J., in Mundy v. N. Y., L. E. & W. R. R. Co., and cases therein cited.)

(2) The evidence does not indicate any affirmative act or omission of duty on the part of the State which relieves the defendant of its obligation to so use its property as not to cause injury to tbe plaintiff, an adjacent owner. (Masterson v. N. Y. C. & H. R. R. R. Co., 84 N. Y. 241.)

(3) Tbe evidence relating to tbe damages sustained by tbe plaintiff was properly received. (Hartshorn v. Chaddock, 135 N. Y. 122.)

(4). ¥e are of opinion that tbe court committed no error in denying tbe defendant’s motion for a nonsuit.

(5) It may be tliat tbe verdict of tbe jury awards tbe plaintiff a liberal compensation for tbe injury wbicb be sustained, but upon an inspection of all tbe evidence we. are of tbe opinion that tbe Special Term was warranted in refusing to grant a new trial, on tbe ground that tbe damages were excessive. Tbe foregoing views lead to an affirmance.

MaétiN and MjsuwiN, JJ., concurred.

Judgment and order affirmed, with costs.


author: HakdiN, P. J. :

text:
    The City of Ithaca, Appellant, v. Frank C. Cornell, Respondent.

      Demarren' — motion to make a complaint more definite — complaint to enforce a personal liability for an assessment — chapter 212 of 1888.
    A'demurrer admits all the allegations of a complaint, and a defendant who desires to have a complaint state more fully the details of a cause of action, should seek his remedy by motion. *
    The complaint in an action brought to recover the amount of a tax assessed against a person by a municipal corporation, alleged that the common council, on a specified date, duly assessed the defendant for a specified sum; that a notice of the assessment was given to him; and that such tax thereafter was duly confirmed, all as provided for by the charter of the said city; that such tax had not been paid within twenty days after its confirmation; that on a specified date, pursuant to a resolution, the ‘said common council issued a warrant to the collector of taxes, directing him to collect the same; that such warrant was duly delivered to such tax collector; that more than three months had passed since the date of such warrant; that said tax remained wholly unpaid, and that there was due front the defendant such specified sum with interest.

      Held, that, within, the somewhat liberal rule now existing as to pleadings, such complaint stated facts sufficient to constitute a cause of action.
    It seems that under the provisions of the charter of the city of Ithaca, chapter SIS of the Laws of 1888, both classes of assessments therein provided for are under the supervision and control of the common council of such city, and that as to hath classes there is a personal liability created by statute against the several persons assessed thereunder.
    Appeal by the plaintiff, The City of Ithaca, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Tompkins on the 10th day of January, 1893, after the decision of the court, rendered at the Tioga County Special Term, sustaining a demurrer to the complaint.

      Jlf. N. Tonvphins, for the appellant.

      Mynderse Van Gleef, for the res]3ondent.
   HakdiN, P. J. :

Chapter 212 of the Laws of 1888 is the act to incorporate the city of Ithaca, and in title 4 and section 4 is a provision that the assessors shall return to the common council and file with the clerk a tax roll and assessment of each tax directed to be levied upon the taxable inhabitants and property of said city ; and in title 5, section 1, power is given to the common council to raise not exceeding' $30,000, “ by general tax from the taxable inhabitants of said city, on the property'therein liable to taxation; ” and in section 2 power is given to raise a further sum to pay interest on bonds; and in section 3 it is provided as follows: The tax so directed to be raised shall be assessed upon all the taxable real and personal property in the city, except as stated in section two, according to the valuation of the same in the assessment roll of the current year, filed by the assessor or assessors, after said roll shall be corrected;” and in section 4 it is provided: Tire tax roll, when perfected, shall be delivered by the mayor or common council to the collector, with a warrant * * commanding him to receive, levy and collect the sums in the roll specified as assessed against the persons or property therein mentioned or described. * * * ” Section 5 provides as follows : “ All taxes and assessments that shall remain unpaid for three months after the date of the warrant authorizing the collection thereof shall bear interest at twelve per centum per annum from tbe date of tbe warrant, and sacb tax and interest may be sued for and recovered by tbe city against any person liable therefor.” In section 9 of title 6 is found a provision authorizing tbe common council to make assessments for certain improvements, and tbe common council by that section is given power to collect such assessment, and it is expressly provided that “ all tbe provisions of sections five, six, seven and eight, title five, of this act, shall be in force and apply, so far as tbe same may be applicable, to all proceédings for tbe collection of unpaid taxes, and tbe right and duties of all persons concerned shall be same as provided in said sections.” It seems that both classes of assessments are under the supervision and control of tbe common council, and that, as to both classes, there is a personal liability created by statute against tbe several persons so assessed.

In Torrey v. Willard (55 Hun, 78) it was held that an action would lie against a party assessed to pay, and it was said: The obligation pf the citizen to pay is inferred from the authority to levy the tax,” and in the course of the opinion delivered by Macomber, J., he said : Whenever there is a legal obligation resting upon a party to pay, this form of action is available at common law. * * * The obligation of the citizen to pay is inferred from the authority to levy the tax. (Litchfield v. McComber, 42 Barb. 288.)” In the complaint it is alleged that the common council on the 15th of July, 1889, duly assessed ” the defendant for the sum of $322. It is also alleged that a notice of the same was given to him, and that the tax was thereafter duly confirmed by said common council at a meeting of the common council held at their chamber on the 5th day of August, 1891. All as provided by the charter of the city of Ithaca.” And it is further alleged that the tax assessed against the defendant was -not paid to the treasurer of the city within twenty days after its confirmation, and that on the 2d of September, 1891, pursuant to a resolution, the common council issued a warrant to the collector of taxes directing him to collect the tax aforesaid of the defendant, and that the tax warrant was dated on the 2d of September, 1891, and was duly delivered by the plaintiff to the tax collector. It was also alleged that more than three months have passed since the date of said warrant for the collection of said taxes, and said tax remains'wholly unpaid, and there is due from the defendant the sum of three hundred and twenty-two dollars ($322), with, interest thereon at 12$ per annum since the 2d day of September, 1891, as provided by section 5 of title 5 of the charter of the city of Ithaca.” By the demurrer all the allegations of the complaint are admitted; and reading those allegations, accepting all the facts as stated in the complaint as true, and applying the provisions of the plaintiff’s chai-ter to the facts, a cause of action is established against the defendant. And we are of the opinion that the complaint states facts sufficient to constitute a cause of action, and within a somewhat liberalized rule now existing as to pleading we think it should be held sufficient. (Rochester Railway Co. v. Robinson, 133 N. Y. 242; McCorkle v. Herrman, 22 N. Y. St. Repr. 520 ; Thayer v. Gile, 42 Hun, 268; Code Civ. Proc. § 532; L. S. & M. S. R. R. Co. v. City of Dunkirk, 20 N. Y. Supp. 599; Brownell v. Town of Greenwich, 114 N. Y. 518.)

If the defendant desires to have the complaint more definite and state more fully the details of the cause of action, he should seek his remedy by a motion. (Laney v. Laney, 33 N. Y. St. Repr. 673 ; Marie v. Garrison, 83 N. Y. 14.)

The foregoing views lead to the conclusion that the demurrer to the complaint was improperly sustained.

Martin and Merwin, JJ., concurred.

Interlocutory judgment reversed, with costs, and demurrer overruled, with costs, with leave to the defendant to answer upon payment of costs of the demurrer and of the appeal within twenty days.