author: Werner, J.:

text:
    Thomas Larkin, Plaintiff, v. The Village of Brockport, Defendant.

      Implied contract — wages of a State employee under chapter 380 of 1889 — existing implied contract, not abrogated.

    The acts of the parties, not the secret operations of their minds, are the elements of which implied contraéis are composed.
    Chapter 118 of the Laws of 1887 provided for the construction of a lift bridge over the canal at Brockport, the operation of which was to be under the direction of the Superintendent of Public Works, the expense of operation to be paid by the village. On June 6, 1889, chapter 380 of the laws of that year was passed, which fixed the wages of laborers employed by the State at not less than two dollars a day or twenty-five cents an hour.
    Thomas Larkin had been employed as bridge tender at the lift bridge during the season of 1888 at a salary fixed at forty five dollars per month. He was reappointed in 1889, about two weeks before the opening of the canal on May first. At this latter date the trustees of the village of Brockport fixed his salary at forty-five dollars per month, and he learned of their action. Larkin then knew that chapter 380 of the Laws of 1889 was pending under consideration in the Legislature, but he accepted the salary fixed and signed monthly receipts therefor on several occasions.
    After chapter 380 of the Laws of 1889 became a law, he told the village president and some of the trustees that he wanted his extra pay, and thereafter brought an action to recover it.

      Held, that the facts justified the conclusion that the plaintiff was working under an implied contract to accept the same wages that he received in 1888, and that chapter 380 of the Laws of 1889 did not apply to the case and did not abrogate the contract existing between the village and Larkin.
    Motion by the plaintiff, Thomas Larkin, for a new trial in a case containing exceptions, ordered to be heard at the General Term in the first instance upon a nonsuit directed by the court after a trial at the Monroe Circuits on the 7th day of January, 1895. •

      George P. Decker, for the plaintiff.

      John N. Drake, for the defendant.
   Werner, J.:

In 1887 the Legislature of this State passed an act (Chap. 118) making an appropriation for, and directing the construction of, a lift briclge over the Erie canal in the village of Brockport. By the terms of the act the operation of said bridge was to “ be under the direction of the Superintendent of Public "Works, but the expenses thereof shall be paid by the village of Brockport,” and the authorities of the said village were authorized to levy taxes for that purpose.

The bridge was constructed and in the spring of 1888 the plaintiff was appointed bridge tender by the Assistant Superintendent of Public Works. Soon after such appointment the salary of said bridge tender was fixed by the board of trustees of said village at forty-five dollars péf month or one dollar and a half per day, at which rate plaintiff was paid monthly during that entire season, for twelve hours’ work each day.

Before the opening of the canal season of 1889 the plaintiff sought and obtained appointment to the same position for the season of that year. The canal opened on or about May first and plaintiff was appointed about ten days or two weeks prior to that time. There was no talk between the Assistant Superintendent of Public "Works and the plaintiff as to the rate of wages or who should pay them Plaintiff knew that there was then pending in the Legislature an act which subsequently, and on June sixth, became chapter 380, Laws of 1889, and which provided that “from and after the passage of this act wages of day laborers employed by the State, or any officer thereof, shall not be less than two dollars per day and for all-such employed otherwise than day laborers, at a rate of not less than twenty-five cents per hour.”

About two weeks after the plaintiff began work the board of village trustees again fixed the wages at forty-five dollars per month. Plaintiff received no formal or official notification of this action, but obtained knowledge of it from outside sources. He thereafter signed and verified his monthly bills, signed receipts and indorsed orders for his wages, all of .which papers were prepared for his signature by Mr. Drake, the clerk of the village board. Immediately after said chapter 380 became a law plaintiff had talks with the president and two trustees of the village, in which he stated that he wanted his extra pay. On various occasions thereafter, when signing the necessary papers to obtain his monthly wages, he called said Drake’s attention to his claim for additional compensation under the law above referred to.

At the close of plaintiff’s case the defendant moved for a nonsuit upon tlie grounds which appear upon the record, and the motion was granted. It is evident that the learned trial justice took the view that said chapter 380 did not apply to this case, because tlie plaintiff was working under an implied contract for the same wages he had received the previous year, as fixed by the village trustees two weeks after his appointment in 1889.

If plaintiff’s case is governed by the provisions of the act in question he was entitled to just double the amount of pay he actually received.

The plaintiff was unquestionably an employee of the State, and in the absence of a pre-existing contract, express or implied, to work for a different rate of wages, was entitled to the compensation fixed by said chapter 380. (Clark v. State, 142 N. Y. 105.)

But if there was an express or implied contract between plaintiff and defendant as to the rate of wages to be received by the former, it was not affected by the subsequent passage of the act in question. (Clark v. State, supra.)

There is no express contract. "Was there an implied contract? The circumstances of the case, as disclosed by the present record, seem to require an affirmative answer to this question, unless tlie decision of this court upon the former appeal, reported in 81 Hun, 364, is a determination that there was a question of fact for the jury.

Upon the first trial the cause of action now under consideration was sent to the jury without instructions upon the law relating to implied contracts. Defendant’s requests for a proper charge upon that subject were denied. Upon the-assumption that there was no express contract, and that tlie facts warranted the submission of the case to the jury, this court held that defendant was entitled to have the jury instructed upon the law of implied contracts. But the question whether, upon the facts and circumstances disclosed by the record, the trial court would have been justified in holding as matter of law that there was an implied contract, was not before the court. We are, therefore, called upon to consider the case upon the record as now presented. From this it appears that plaintiff knew what the wages had been the year before. After the village board had fixed the wages at forty-five dollars per month he accepted, without protest or objection, that sum for his first month’s pay. He says that he expected to get more in case the pending bill in question should become a law. He admits that he said nothing about it to any of the village officials.

The action of the village board in fixing his wages, as above stated, was taken about two weeks after he entered upon his duties. While the record does not disclose just when plaintiff received knowledge of this fact, it may fairly be inferred that in a village like Brock-port, a resident particularly affected by any action of the trustees would be advised thereof through the usual channels of publication and general discussion. Moreover, plaintiff’s own statement is a practical admission that he had knowledge of the action of the board immediately after it was taken. He made no protest or suggestion until after the sixth day of June, when said chapter 308 became law. Then, instead of making an immediate formal demand upon the board for increased pay in accordance with the terms of the statute, he contented himself by conversing in a casual way with individual trustees. It also appears that he talked with Drake, the village clerk, about the passage of this law, and claimed to be entitled to increased pay, but never made any formal demand. Upon Drake’s statement that he had no authority to pay more, and that it was for the trustees to say what should be done, plaintiff continued to accept his wages from month to month precisely as he had done in 1888.

The presentation of plaintiff’s claim to the State Board of Claims, after the close of the season of 1889, while not in any sense controlling of his actual rights, reflects a strong light upon his apparent understanding of the situation prior to the decision of the State board. Notwithstanding his statement that he always thought the village would have to pay, this circumstance, in connection with others, indicates that plaintiff had no serious thought of attempting to collect extra pay from the village until after his attempt to collect from the State. His own testimony indicates that his efforts to obtain this increase were not those of a man standing upon his supposed legal rights, but rather evinced a desire to get the increased pay if he could make the authorities believe that he was entitled to it.

When plaintiff was presented with the vouchers for his first month’s pay, he had notice that the village authorities understood that he was to work under the same arrangement which existed in 1888. Plaintiff’s acceptance of the money without protest expressed his acquiescence in, that understanding and in the action of the board taken in May, 1889. In this transaction we find the circumstances upon which the law rests an implied contract. The rights of the parties became fixed then and there. The mental reservations of the plaintiff as to the possible effect of the proposed State law are not in any sense an element of this implied contract. (Riley v. Mayor, etc., of N. Y., 96 N. Y. 331.) The acts of the parties and not the secret operations of their minds are the elements of which implied contracts are composed.

"We agree with counsel for the plaintiff that the cases in which an implied contract has been based upon uninterrupted and continuous service beyond the period of the original contract are not controlling here. There was here no such continuance. But the knowledge which both parties had of the previous contract, considered in connection with the action of the village board in May, 1889, and plaintiff’s acquiescence therein, furnish ample ground for holding that at the time of the passage of said chapter 380 there was an existing implied contract between the parties which was not affected by the passage of said act. If said act had become a law before the fixing of plaintiff’s wages by the village trustees, and before knowledge thereof by him, or his acceptance of the sum fixed, we would have a case from which a contract to work for forty-five dollars per month might be implied, but such circumstances would clearly present a question of fact for the jury because of conflicting inferences which might be drawn from the existing conditions. Here there are no conflicting inferences. Up to the moment when chapter 380 became a law plaintiff’s acts were utterly at variance with the alleged operations of his mind. His lights are to be determined by his acts and the apparent understanding of the parties prior to the passage of said law. His subsequent conduct can have no more effect upon the implied contract than could an attempted repudiation of a written contract plain in its terms. As to their binding effect both classes of contracts rest upon the same principles.

The case of McCarthy v. Mayor, etc. (96 N. Y. 1), is not like this in its facts, but the language of the court in discussing the principle of implied contracts is particularly applicable to this case: An agreement for extra pay may be implied from circumstances; but “such an implication arises only when the services are rendered under circumstances authorizing an expectation of compensation therefor, or the inference that they would not otherwise have been rendered.”

What circumstance was there in this case to authorize the expectation of increased compensation, except the pendency of a proposed statute which so far as plaintiff knew might never ripen into a law ?

It is not pretended that the pendency of this law was a circumstance upon which plaintiff definitely based his rights. If he desired to reserve to himself the prospective benefits of this law, he should have communicated the fact to defendant’s agents or officers.

This question is not met by the suggestion that the defendant is the mere debtor and not the employer of the plaintiff. While it is true that the State was the employer, the defendant was by the very terms of the statute, which required it to pay the plaintiff, necessarily made a party to the contract of employment. Plaintiff had not only legal but actual notice of this fact, and he cannot now be heard' to say that there was no privity of contract between him and the defendant.

The statute required the Superintendent of Public Works to employ the necessary working force on this bridge, but it also directed the defendant to pay for the same; and while it is unnecessary to decide what plaintiff's rights would have been, had the State Superintendent assumed to fix plaintiff’s compensation, we are convinced that the statute, by implication at least, authorized the making of a contract between the plaintiff and defendant.

Was there any inference that plaintiff would not render the service if he did not get the pay? We think not. On the contrary, every inference which may properly be indulged in from the testimony indicates that the plaintiff was ready to begin and continue his work whether he obtained increased pay or not.

The Clark case differs from the one before us in the important circumstance that no rate of compensation was ever fixed by the State or agreed upon between the parties, except as it was fixed by the statute passed subsequent to Clark’s employment. So far as appears he had never been employed by the State before, and simply received and receipted for the same wages which he and others were getting, and had previously received for similar work. Nothing had occurred prior to the passage of said chapter 380 from which a contract could be implied, but the acceptance by Clark without objection of his monthly wages. This, in the absence of a finding, or a request to find, a contract from the facts disclosed, was .sufficient authority to treat the case as one of employment without any contract as to compensation, and, therefore, notwithstanding Clark’s acceptance of less than was provided by the statute, he was held entitled to its provisions.

Here the acceptance by Larkin, after the passage of said chapter 380, of the wages fixed by the village board is an incident which is no more controlling than was the same act in the Glarlt case. It is what Larkin did prior to the passage of the act which gave the trial court the right to say as matter of law that 'lie was bound by an implied contract which was in force when chapter 380 became a law.

This is not in conflict with Kehn v. State (93 N. Y. 291) or Riley v. Mayor (96 id. 331).

In the former of these cases the attempt of the Superintendent •of the Capitol to reduce the plaintiff’s pay "was in plain contravention of the statute which was in force at the time of his employment.

In the case of Riley v. Mayor (supra) it was held that by the act providing for the organization and control of the New York fire department, the fire commissioners were authorized to transfer employees of the department from one class of duties to another ; .and in case of such transfer to a class of duties less profitable to the •department the employee was entitled only to the compensation adapted to the duty required. It was also held, however, that in such a case the employee’s acceptance, without objection, of the •salary attached to the inferior position, was a waiver of the right to claim the salary of the superior one.

Plaintiff’s counsel contends that the wage act in question superseded any contract which may have existed prior to its enactment. We do not concur in this view. The defendant as a municipality of course derived its powers from the Legislature; but one of these powers was created by chapter 118, Laws of 1887, requiring it to pay the operating expenses of this .bridge, and authorizing it to levy taxes for that purpose.

Assuming that the Legislature liad authority to abrogate any existing contract by subsequent enactment, a power which we do not concede (Const. U. S. art 1, § 10), it would be an unwarranted stretch of the rules of judicial construction to hold that such a result is to be obtained by mere implication when the absence in the statute of language disclosing such an intent clearly indicates that it did not exist.

The ruling of the court at folio 36 was not erroneous, but even if so it was not prejudicial to-plaintiff.

Plaintiff’s conversations with individual trustees of the defendant would not work a rescission of any existing contract. But even if we assume that evidence of these conversations was competent for that purpose it appears at folio 23 that plaintiff had already testified in substance to these same conversations, and was, therefore, not prejudiced by the ruling.

Plaintiff’s motion for a new trial is, therefore, denied and the judgment of the trial court affirmed, with costs.

Lewis, Bradley and Ward, JJ., concurred.

Motion for a new trial denied and judgment directed for the defendant on the nonsuit.


source: Caselaw Access Project

license: Public Domain

text:
    Ellen D. Carter, Respondent, v. William Pitcher, Appellant.

      Trespass — right of action therefor rests on possession — evidence of ownership and, possession — measure of damages — rules of evidence in a Justice’s Court.

    In order to maintain an action of trespass the plaintiff must show either actual or constructive possession on her part of the premises in question.
    A plaintiff cannot give oral testimony to the effect that she owns certain premises, but, when she is not in actual occupation, she is entitled to prove constructive possession by showing- who lives upon the premises.
    The measure of damages in the case of a trespass upon real estate is the difference between the value of the premises before the injury and their value after it.
    While a judgment rendered in a Justice’s Court will not be reversed because of the admission of testimony which, although improper, has not resulted in injury to the appellant, yet the rules of evidence must be followed and damages claimed must be prqved by competent testimony.
    Appeal by the defendant, William Pitcher, from a judgment of the County Court of Allegany county in favor of the plaintiff, entered in the clerk’s office of said county on tlie 31st day of August, 1891, affirming a judgment rendered in a court of a justice of the peace of the town of Granger, Allegany county.

      E. C. Olney, for the appellant.

      Charles D. Newton, for the respondent.
   Werner, J.:

Tlie trespass complained of was that the defendant entered upon the premises of the plaintiff in the town of Grove, Allegany county, and wrongfully cut down and carried away ten apple trees which were the property of the plaintiff. The defendant’s answer was a general denial. This put in issue, not only the alleged trespass, but the ownership of the premises upon which it took place.

The evidence discloses that on or about the 2d day of January, 1891, the plaintiff and the defendant entered into a contract under which the defendant was to cut down certain apple trees upon the premises in question, and pay the plaintiff seventy-five cents a cord for the wood. The trees with reference to which this contract was made were situate in a pasture to which plaintiff claims title, and about forty rods distant from the trees which it is claimed the defendant wrongfully cut down and carried away.

The appellant relies upon certain exceptions taken at the trial which we will proceed to consider. The plaintiff was asked the question: “ Do you own a farm ? ” This question was properly objected to.

It appeared upon the trial that the plaintiff was not in actual possession of the farm in question, and that she resided in the town of Nunda in Livingston county. It was evidently considered necessary for her to prove title in order to raise the presumption of possession which such proof creates. While it was, therefore, competent for the plaintiff to attempt to prove her title, it was essential that this should be done in the proper way.

Parol evidence was not competent to make this proof (Miller et al. v. Long Island Railroad Company, 71 N. Y. 385), and it was error for the court to permit the plaintiff to testify orally as to her ownership of the premises in question.

In answer to respondent’s proposition that the right to maintain an action of trespass depends not upon title but upon possession of the premises, and that proof of title is in some cases presumptive proof of possession, we are confronted with another difficulty which stands in the way of an affirmance of this judgment. The case is. barren of evidence tending to show who was in actual possession of the premises. It clearly appears that the plaintiff did not reside there. It also appears by inference at least that the premises were not vacant, and, therefore, the plaintiff is not entitled to maintain the action under the rule laid down in Randall v. Sanders (87 N. Y. 578), that an owner of premises, not actually occupied, has constructive possession which enables him to maintain trespass.

The question was asked the plaintiff: “ Who lives on your farm?” To this question the defendant objected, and the justice, with the same misapprehension as to the rules of evidence in such cases which led him to receive the oral testimony of the plaintiff as to the title of the premises, excluded the evidence offered to. show who was in possession.

It was incumbent upon the plaintiff to show that she was in actual or constructive possession, and consequently had the right to maintain this action. (Wood v. Lafayette, 68 N. Y. 181.) The latter ruling of the justice made it impossible for her to produce the evidence from which it might appear that she had such possession. This proof was essential in the absence of evidence of a title from which possession could be presumed.

It is also argued that the sale of a portion of these trees by the plaintiff to the defendant is sufficient to raise the presumption of possession of the premises, in the plaintiff ; but the difficulty is that all the evidence negatives any such presumption. For aught that appears the plaintiff may have been as much of a trespasser as the defendant. If such were the case, the defendant would certainly not be precluded from urging that, as a reason why the plaintiff should not maintain this action. It was incumbent upon plaintiff to show the facts upon which the right to maintain the action rested, and this she failed to do.

It is further claimed for the defendant that fatal errors were com mitted in the rulings relating to the admission of evidence upon the question of damages. We think that the proper measure of damages was applied. (Sedg. on Dam. [8th ed.] § 933.) That is the difference between the value of the premises before the injury and their value thereafter. But the trial court seems to have utterly disregarded defendant’s objections that none of the witnesses who' were called upon the question of damages were shown to be competent or qualified. Not one of the witnesses who were called to testify upon the question of damages was shown to have any knowledge upon the subject; we have simply their naked statements as to their idea of the extent of- the damage.

It is of course well settled that a judgment rendered in a Justice’s Court will not be reversed for the admission of improper, irrelevant, immaterial or cumulative testimony when there is abundant competent evidence to sustain it, and the court can see that no injury has been occasioned to the party complaining (Milliner v. Lucas, 3 Hun, 496); but it is also equally well settled that “ rules of evidence are rules of law. * * * They are of imperative obligation, and are not to be put aside in the discretion of the court from solicitude for the supposed interests of justice. The only justice known to courts is such justice as is ascertained and certified by legal evidence ; ” and the rules may not be disregarded but at the risk of a reversal of the judgment that proceeds in disregard of them. (Mt. Morris Electric Light Company v. U. S. Horse & Cattle Show Soc., 29 N. Y. Supp. 584.)

However just, therefore, this judgment may in fact be, it is not sustained by competent evidence. On the contrary, when we exclude the incompetent evidence in the case, there is nothing whatever to support the judgment of the court below.

The judgment of the courts below must be reversed, with costs.

Lewis, Bradley and Ward, JJ., concurred.

Judgment of the County Court and that of the justice reversed, with costs.


text:
    Lafayette Cole, Respondent, v. The Fall Brook Coal Company, Appellant.

      Injuries resulting from negligence — statement of counsel to the jury as to the result of a former trial — medical experts' — •hypothetical questions — physical examination of plaintiff, not newly-discovered evidence— effect of a former recovery.

    In an action brought to recover 'damages for personal injuries alleged to have resulted from the negligence of the defendant, it is improper for the plaintiff’s counsel to state to the jury that upon a former trial the plaintiff recovered $8,000; but such error is cured where the court explicitly directs the jury to disregard the statement.
    The consequences of an injury are to be determined by the jury, but the symptoms which may aid the jury in deciding what the consequences are may properly be testified to by a qualified expert.
    Where a full hypothetical statement of the facts relative to any injury and its apparent results is read to a medical expert, he may properly answer a question put to him by the plaintiff’s counsel in this form : “ Taking all these symptoms into consideration, are they the natural and ordinary symptoms that would flow from an accident of this character ? ”
    Prior to the amendments made in 1893 and 1894 to section 873 of the Code of Civil Procedure, the court had no power to compel a plaintiff who had suffered personal injuries to submit to a physical examination either before or upon the trial of the action, at the instance of the defendant, or in default thereof to have his evidence stricken out.
    Where a statutory enactment permitting a physical examination takes effect after the trial of an action, but before the entry of judgment, the evidence which might have been produced under the new enactment cannot be treated as newly-discovered evidence and affords no reason for the granting of a new trial on that ground.
    An appellate tribunal in deciding the question whether there is evidence to sustain a verdict may properly give weight to the fact that the defendant’s motion for a new trial was denied and that on former trials two j uries had found in favor of the plaintiff.
    Appeal by the defendant, The Fall Brook Coal Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Steuben on the 19th day of November, 1894, upon the verdict of a jury rendered after a trial at the Steuben Circuit, and also from an order made at the Ontario Special Term and entered in the office of the clerk of the county of Steuben on the 19th day of November, 1894, denying a motion for a new trial made on a case containing exceptions and also denying such motion made upon a certain - affidavit alleging misconduct on the part of the plaintiff’s counsel during the trial.

      Gabriel L. Smith, for the appellant.

      Charles Marvin, for the respondent.
   Werner, J.:

The plaintiff was on the 9th day of November, 1887, employed by the defendant as a brakeman. On that day, while engaged in coupling cars, he was caught between the rear end of the fender and the front end of a gondola car, and sustained serious injuries. The alleged negligence of the defendant, upon which this action is brought, consisted in the use of a car from which the left-hand bumper was gone, thus permitting the cars between which plaintiff was required to go in making couplings to come so closely together as to crush him between the sills. The condition of the car in question, the manner in which the accident occurred and the nature and extent of plaintiff’s alleged injuries were all contested questions submitted to the jury upon conflicting testimony.

The defendant moved for a new trial upon a case and exceptions, and upon an affidavit alleging misconduct on the part of plaintiff’s counsel during the trial by which defendant’s rights were prejudiced. The motion was denied.

Before proceeding to consider the exceptions upon which the appellant relies for a reversal of the judgment herein, we will briefly discuss the alleged misconduct of plaintiff’s counsel.

It consisted in a statement to the jury by plaintiff’s counsel in summing up that upon a former trial the plaintiff had recovered .a verdict for §8,000. This incident was brought to the attention of the court by a note from defendant’s counsel. The presiding justice, in the course of his charge to the jury, called attention to the matter in the following language: “ The fact has crept out here, improperly, that upon a former trial the plaintiff recovered a verdict, and the amount of that verdict has been stated to you ; but the fact that the plaintiff recovered in a former trial of this action is no reason why he should recover in this action. The fact that he recovered a certain amount on the former trial has nothing to do with the amount he should recover upon this trial, if he recovers at all. Yon are aware, I take it, that the evidence which has been fnrnislied on either side of this trial varies very materially from that which was furnished upon the former trial. Witnesses have been sworn hero who were not sworn there; testimony has been given here which was not given then ; and you are to dispose of this case upon the evidence which' has been furnished here, and upon that-evidence alone, and not upon any evidence furnished on the former trial, -save where that evidence has been read before you with a view of contradicting evidence which has been given here.”

The statement of plaintiff’s counsel as to the action of the jury upon the former trial was manifestly improper, but it was eliminated from the case by the very explicit charge of the court, and the error which might have been committed in permitting it to pass unchallenged was thus prevented.

In Chesebrough v. Conover (140 N. Y. 388) this identical question was discussed in the following language : “ Where a case has-been once tried, it is not generally possible to keep from the jury the result of the former trial, and it would be an embarrassing and mischievous rule to lay down that if such result be brought out by statement or evidence a fatal and incurable error has been committed ; and that, although the jury may be instructed to wholly disregard it, yet the vice is not eliminated and the judgment upon the second trial is necessarily to be reversed. * * * It is also like the case where upon the trial of an action the trial judge erroneously receives objectionable and damaging evidence, which he subsequently strikes out and directs the jury to disregard. In such cases-we have uniformly held that the vice is eliminated, and that theoretically, at least, the erroneous evidence found no lodgment in the-minds of the jury.”

To the same effect is Brusie v. Peck Bros. & Co. (42 N. Y. St. Repr. 801).

Defendant contends that error was committed in permitting physicians, who were called as experts, to answer certain hypothetical questions, the length of which precludes their reproduction in full here. An examination of these questions convinces us that none of the rulings of the court upon this subject transcended the now well-settled rules relating to the subject of expert testimony in actionsfór damages for personal injuries.

The plaintiff and other witnesses had testified as to the plaintiff’s' condition, and upon the assumption that plaintiff’s evidence was to be taken as true, certain facts bearing upon his condition were established. Whether this evidence was to believed or not, and whether plaintiff’s condition was such as he claims, were questions for the determination of the jury, and it was plaintiff’s right to fortify and corroborate that evidence by all proper means.

Dr. Pratt, one of plaintiff’s experts, was asked to “ describe the symptoms which would ordinarily and necessarily accompany an injury such as you found this man suffering under.”

Dr. Webb, another of plaintiff’s experts, after hearing the hypothetical statement of facts which plaintiff claimed to have established, was asked this question : “ Taking all these symptoms into consideration, are they the natural and ordinary symptoms that would flow from an accident of this character ? ”

Dr. Jonas Jacobs was asked : “Are you able to state from your observation of cases of this character, founded upon the information which you obtained from the examination of this man, what some of the ordinary and usual symptoms are accompanying an injury of this character ? ”

Dr. Henry Flood was asked : “ State what are the ordinary and usual symptoms from an injury in that locality — from such an injury as you found this patient suffering from.”

The rule is too firmly established to require the citation of authorities that in actions for personal injuries physicians may be called as experts to testify to matters involving learning and skill in the science of medicine and surgery, which bear upon the nature and extent of the injuries complained of, and the only question we are called upon to determine is whether the questions were proper in form, and the answers thereto were within the scope of the inquiry, as to w’hicli expert testimony was properly admissible.

Did these questions call for conclusions of fact not embracing subjects of science or skill peculiarly within the knowledge of the witnesses to whom they were addressed ?

The answer to this inquiry may be found in the language of this court in Schwander v. Birge (46 Hun, 66): “ The governing rule deduced from the cases permitting the opinions of witnesses is that the subject must be one of science or skill, or one of which observation and experience have given the opportunity and means of knowledge which exists i/n reasons rather than descriptive facts, and, therefore, cannot be intelligently communicated to others not familiar with the subject so as to possess them with a full understanding of it.”

The forceful application of this language to the case at bar can best be illustrated by a brief consideration of the facts of the case in which it was employed.

Schwander’s intestate was killed in a fire at Birge’s factory where he was employed. It was sought to charge defendants with negligence in failing to provide suitable means of escape from the building for their employees. Defendants’ superintendent, after having testified to the existing conditions, was asked the question : “Was that, in your judgment, a proper and sufficient mode of access and egress from the building under any circumstances ? ”

This was a question .requiring the witness to draw a conclusion from a purely descriptive fact, and, in permitting him to answer, the province of the jury was clearly invaded.

The present case is one, however, in which the learning and skill of witnesses, based upon their knowledge and experience, enabled them to testify to matters not within the knowledge'of ordinary men, and not capable of elucidation by a mere statement of facts showing the manner of the accident and the plaintiff’s present condition.

Let us suppose that the plaintiff’s case had rested solely upon the evidence of himself and other non-expert witnesses. . The jury might have concluded that plaintiff’s condition resulted from the accident. But this conclusion, instead of being based upon evidence showing with reasonable certainty that cause and effect were considered in their logical relation to each other, would merely have given the jury an opportunity to supply by surmise and conjecture that which should have been furnished by legal evidence.

It is necessary and proper for the plaintiff to show that his condition at the trial, as well as his probable future condition, was such as might, and probably would, result from such an accident as liad been described, and that no intervening cause was responsible therefor.

The questions addressed to the plaintiff’s experts herein were not open to the objections which resulted in the reversal of Page v. Mayor, etc. (51 Hun, 124). In that case the physician had heard only a portion of the evidence of the plaintiff. He was asked the following question: “ Take such a fall as he describes here, resulting from a collision of two cars, and of the symptoms following that fall, he having theretofore been a sound and healthy man, can you state with reasonable certainty that the consequences that have flowed are natural and usual ? ” That question was not only based upon an incomplete hypothesis, but it called upon the witness to say that the “ consequences that have flowed are natural and usual.”

There is a material difference between that question and those here under consideration. In that case the “ consequences ” flowing from the accident are testified to; in this case the evidence deals with symptoms which are “natural and ordinary” in connection with the injury stated. The “consequences” of an injury are to be determined by the jury; but the symptoms which may aid the jury in deciding what the consequences are may properly be testified to by a qualified expert. But, even upon the assumption that there is no essential difference between the question in Page v. Mayor, etc. (supra), and the questions here, we are disposed to hold that the rules which govern the admission of expert testimony in cases of this character have not been violated.

In Turner v. City of Newburgh (109 N. Y. 308) the court says :

“We see no objection to the expression of opinions by competent medical experts upon an ascertained physical condition of suffering or bad health, as to whether that condition might have been caused by or be the result of a previous injury. It was for the jury to decide whether the injuries or sufferings of which the plaintiff complained were the direct result of the accident, and to that end it was proper to give evidence tending to show, in the opinion of witnesses competent to speak upon the point, that they were the results of the plaintiff’s fall.”

The long line of cases exhaustively and. learnedly discussed by appellant’s counsel, in which the admissibility of expert testimony is considered, present questions of mechanical construction and kindred subjects which have no application.

The question whether the trial court erred in refusing to make an order compelling the- plaintiff to submit to a physical examination, .at the instance of defendant, or in default thereof to have his evidence stricken out, need not be discussed at length.

The case of McQuigan v. D., L. & W. R. R. Co. (129 N. Y. 50) sets at rest any doubt as to whether the courts had power to make such order prior to the amendments to section 873, Code of Civil Procedure, in 1893 and in 1894.

It is true the statutes and the case above referred to deal with the .question of power to compel submission to such an examination before trial. Here the application was made upon, the trial. But the question of power, in the absence of statutory authority, rests upon the same principle in both cases. In some States this power has been held to exist and has been exercised, but the courts of this State and the Supreme Court of the United States (Union Pacific R. R. Co. v. Botsford, 141 U. S. 250) have held that neither the common law nor the inherent power of courts in the exercise of their jurisdiction warrant or authorize a physical .examination of a party without his consent.

What is referred to by plaintiff’s counsel as an exception to the rule is really not within the rule. When a party in open court voluntarily submits his person to inspection for his own benefit he ■confers upon the opposing party a right to the-further inspection precisely the same as a party who becomes a witness must submit to .cross-examination.

But the counsel for the appellant ingeniously argues that even if the court was correct in ruling that it had no power to make the order asked for, yet, since the power was conferred by express statutory enactment after the trial and before the entry of judgment, the evidence which he could have produced if the examination asked for had been ordered, should be treated as newly-discovered evidence, and upon that ground a new trial should be granted.

We cannot'concur in this unique proposition ; we have no means of knowing what evidence would have been produced if the physical examination had been made. Experts were called for the defendant, and it is impossible to say that their evidence would have been different after such examination than it was without it. However that may be, it cannot be said that evidence produced under such circumstances can be called “newly-discovered evidencef” within the legal meaning of that phrase.

The case was properly submitted to the jury. Every material question of fact was contested. The apparent preponderance in volume of the testimony offered by the defendant does not authorize us to reverse the finding of the jury. It was its province to decide upon the conflicting evidence, and it cannot be said that the testimony does not support the verdict.

The fact that two juries have found for the plaintiff and that the trial court denied defendant’s motion for a new trial are circumstances entitled to some weight in deciding the action of the appellate court upon the question whether there is evidence to sustain the verdict. (Ferguson v. Gill, 74 Hun, 566.)

The appellate tribunal is not warranted in reversing a judgment so far as it is based upon questions of fact, upon the sole ground that in its opinion a different conclusion should have been reached upon conflicting evidence. (Baird v. Mayor, etc., 96 N. Y. 567.)

There are numerous exceptions in the case which have not been specifically discussed, because we believe them to be within the rules above considered. A careful examination of the record leads us' to the conclusion that no material error was committed upon the trial which was prejudicial to the defendant.

These views necessarily lead us to hold that defendant’s motion for a new trial was properly denied, and that the judgment of the court below must be affirmed.

Lewis, Bradley and Ward, JJ., concurred.

Judgment and order affirmed.


text:
    Anna King, Respondent, v. Masonic Life Association of Western New York, Appellant.

      Assessment life insurance —proof of service of notice of assessment — toaiver — admissions of an attorney upon a trial.

    Where a person is a certificate holder in an assessment insurance company, the by-laws of which require payment of an assessment within twenty days after notice thereof, it is incumbent upon the company, if it refuses payment of the certificate, to show affirmatively that the notice was sent; it is not enough that the usual course of business required such sending nor that the books of the company indicate that the notice was sent; it is, however, the duty of the jury to consider such evidence, but it is not conclusive

      Where an assessment insurance company received assessments from a member after the same were due and by a course of such dealing established in the mind of the member a belief that it would continue to receive his assessments in this manner, his claim will not be cut off absolutely by the fact that he is in arrears, under a strict construction of the by-laws, at the time of his death. The question of waiver in such a case is one for the jury.
    While the admissions of an attorney, made in open court upon a question germane to the issue, are binding upon his client, the client’s responsibility cannot be extended beyond the fair import and meaning of the admissions.
    Appeal by tlie defendant, the Masonic Life Association of Western New York, from a judgment of the Supreme Court in favor the plaintiff, entered in the office of the clerk of the county of Erie on the 7th day of November, 1894, upon the verdict of a jury rendered after a trial at the Erie Circuit.

      Daniel H. McMillan, for the appellant.

      George W. Wheeler, for the respondent.
   Werner, J.:

The defendant, a mutual, fraternal, assessment insurance association, issued to the plaintiff’s husband, Job King, on the 14th day of April, 1890, two certificates of insurance for $2,000 and $3,000 respectively, designated as being in classes “B” and “C ” respectively. Job King died June 2, 1891, leaving the plaintiff, his widow, as the beneficiary named in said certificates. At the time of King’s death there were sufficient funds in the treasury to pay the full amount of $2,000 upon certificate No. 1 in class “B,” and as to certificate No. 2 in class “ C ” the membership was sufficiently large to pay $1,813.24. It was, therefore, conceded by the defendant that if the plaintiff was entitled to recover at all it would be for the sum of $4,232.68, which included interest to the date of the trial.

Those becoming members of the defendant association were required by article 10 of its by-laws to pay a membership fee and an advance assessment, and thereafter to pay assessments as made by the board of directors, in accordance with the table of rates set forth in said article 10.

By article 13 of said by-laws it was made' the duty of members to pay each such assessment within twenty days after receiving the notification thereof from the secretary, who was required to send tbe same to the members of the class or classes in which the assessment was made.

Section 2 of said article 13 provides for the form of notice and the manner of sending the same. It was the custom of the defendant to send its notices by mail to the members, whose names were taken from the books.

'Under section 6, article 7 of the by-laws, the board of directors adopted a resolution requiring health certificates to be signed by delinquent members who desired to be reinstated and delegated to the secretary of the defendant the power to demand in such cases either such certificate or a re-examination.

It is claimed for the defendant that a notice of assessment was sent to Job King on the 1st day of March, 1891, which was not attempted to be paid until the succeeding twenty-fifth of May, when the plaintiff mailed to the defendant a check for fifteen dollars. Defendant’s secretary immediately wrote to King, inclosing a health certificate, and stated in his letter that “ your remittance is held subject to the return of this certificate signed.” This health certificate was not signed or returned, and on June third, after learning of King’s death, said secretary returned said check of May 25, 1891. Between April 14, 1890, and March 1, 1891, various assessments were made upon the members in classes “ B ” and “ 0,” upon which said King had- been in arrears, and his delinquency had been the subject of correspondence between him and the defendant through its secretary. This feature of the case will be referred to in greater detail further on.

Two questions are presented for our consideration. The first of these relates to the service of the assessment notice of March 1, 1891; was it duly served? The evidence given by defendant’s secretary and clerk shows that it was the custom of the -defendant to send out notices on the first or second day in each month when assessments were made, and that according to the books of the defendant a notice was mailed to Job King on the 2d of March, 1891. But Tiffany, the secretary, testifies simply upon information derived from the clerk and the books, and Leonard, the clerk, says he has no personal recollection of sending the notices to King, but relies entirely upon the fact that the usual course of business required it, and that the books indicate that it was sent.

There is no affirmative evidence that the notice was ever received by King. To meet this difficulty defendant offers two suggestions: First. That the presumption of regularity as to defendant’s corporate acts is sufficient to place the burden upon plaintiff of proving that the notice was not received; second, that plaintiff’s counsel in summing up the case admitted the receipt of notice, and that his admissions are binding upon the plaintiff.

As to the first of these suggestions it may be enough to say that it was incumbent upon defendant to prove affirmatively that this member had, by some act or omission on his part, forfeited his rights under these certificates. Defendant’s custom of sending notices, as proved upon the trial, was of course evidence which it was the duty of the jury to consider, but it ivas not conclusive.

We do not concur in the view of defendant’s counsel,'that the admissions of plaintiff’s counsel upon the subject of notice take that question out of the case. It is undoubtedly the rule that an admission made by an attorney in open court, upon a question germane to the issue, is binding upon his client. (Adee v. Howe, 15 Hun, 20.) But this rule has its limitations; the client’s responsibility cannot be extended beyond the fair import and meaning of the admission.

There is nothing upon the record to show precisely what the admissions were in this case. The court in its charge upon this subject says: “It has been suggested on the part of the counsel in the submission of the case that it was admitted that they had received these notices from time to time; while that admission has not gone upon the record, yet you have a right to take it into account in determining this question, which is submitted to you for your determination.”

Thereafter defendant’s counsel requested the court to charge that they have 'the right to take into consideration, in arriving at tlieir verdict, the admissions made by the counsel for the plaintiff upon his argument before the jury, the same as though it had been admitted in open court before submission.” And the court so charged.

It will be observed that while defendant’s request to charge -was complied with, there is nothing upon the record which indicates the extent or the precise purport of the alleged admissions, or which permits us to assume that the question as to the notice of March first was no longer one of dispute. The charge, which was quite as broad as the request, simply instructed the jury that they had a right to consider these admissions, whatever they were, the same as though they had been made in open court before the submission of the case.

How are we to determine, therefore, that the jury did not find against the defendant upon the question of notice % And if such was the finding, how can we say that it was not justified by the evidence ?

The only remaining question to be considered relates to the exception taken by the defendant to that portion of the charge in which the jury were instructed “ that unless the defendant association had received from the deceased from time to time these assessments after they became due according to the terms of the notices of assessment, and had established that line of credit with the deceased that led him to believe that it would be conducted in the future as in the past, then it would not be absolute to cut him off, it is a question for the jury,” and to the exceptions taken upon the refusal of the court to charge as requested at folios 192 and 194 of the case.

¥e think the submission to the jury of the question whether the defendant, by its course of dealing with King, had waived any of the provisions of defendant’s by-laws was proper. King became a member April 14, 1890. On December 30, 1890, defendant’s secretary wrote a letter to King in which his attention was called to the fact that he had not paid his admission fee., and that he was “ in arrears for an advance assessment in the ‘ O ’ class, $2.40, together with ass. No. 2 for same (which expired Sept. 5th), making a total of $6.80.” The letter concluded as follows: Kindly let us know what disposition you wish made of the matter.” In relation to this delinquency the secretary testifies: “ I cannot tell whether the health certificate was required in this letter or not.” Payment of this six dollars and eighty cents was received on January 30, 1891, and again the secretary says: “Ihave no means of knowing personally that any health certificate was required at the time this $6.80 was paid.” On February 12, 1891, a payment for eight dollars and thirty-four cents was received, on account of assessment for Nov., Dec. and Jan.” Upon the receipt was indorsed this memorandum: “ Feb. ass’t $2.J8 expires Feb. 20th, ’91. Please remit.”

The secretary again testifies: “ I do not know whether any health certificate was required at this time or not.” Receipts given by the defendant to King, dated July 15, 1890, August 5,1890, October 6, 1890, and October 20, 1890, show that payments were credited to King “ to be applied as the condition of his account may indicate.” Health certificates were required in only two instances before the receipt by the defendant on May 25, 1891, of the fifteen-dollar check; one on October 1, 1890, because, of the non-payment of the assessment due September 20, 1890, and the other on March 10, 1891, for non-payment of assessment due February 20, 1891.

It is true that in March and April, 1891, assessment notices were sent out containing the following clause : The sending of this notice shall not be held to waive any forfeiture or lapse of certificate caused by non-payment of an amount previously due,” and the further indorsement in red letters: This notice is sent as a matter of information that you may know the amount of arrearages which you will be required to pay should you desire to make application for reinstatement. Bear in mind that so long as you are in arrears you are not entitled to the benefits of the association.”

There is, however, no evidence showing that these notices were in fact served upon King, except as appeal’s by the statements of Tiffany and Leonard, which must be taken with the qualification that they testify from their knowledge of the usual course of business rather than from personal recollection in this instance.

The admissions of counsel, above referred to, cannot be said to apply more specifically to these notices than to any other; but a more conclusive answer to the argument which these notices seem to furnish the defendant lies in the fact that there is nothing to show that the same form of notice was not used during the period of 1890 when the payments from King were repeatedly received after they had lapsed. Neither is there any evidence showing that anything was ever done by defendant to terminate King’s membership except by the sending of notices, the terms of which it disregarded when it chose to do so.

It was entirely reasonable for the jury to infer that the course of dealing between the defendant and King had not been changed and was not strictly in conformity with the by-laws or the provisions of these notices. It does not lie in. the mouth of the defendant to say that its members are bound by the strict letter of its by-laws and resolutions so long as it appears that they were waived or ignored by the defendant.

It should be borne in mind that neither the saving clause of these notices nor the provision requiring health certificates from lapsed members, is a subject which is regulated by the by-laws of the defendant. These matters seem to have been acted upon by the secretary in the exercise of the power and discretion given him by the board of directors.

The presumption of regularity which is claimed for defendant’s corporate acts cannot he held conclusive as against evidence to the contrary, and all disputed questions arising therefrom were properly submitted to the jury.

This discussion leads us to conclude that the case is brought fairly within the rule of Baker v. N. Y. S. Mutual Benefit Assn. (9 N. Y. St. Repr. 653) and Griesa v. The Mass. Ben. Assn. (39 id. 1), holding that prompt payment of assessments may be waived, and the right to treat the contract as forfeited suspended, by a course of dealing between the association and a member, which gives the latter a right to assume that prompt payment will not b.e strictly enforced; and of Shay v. National Benefit Society (54 Hun, 109), deciding that the sending of a second notice, when a member is in arrears, is a waiver by the association of its right to treat the contract as terminated; and of Kolgers v. Guardian Life Insurance Co. (10 Abb. Pr. [N. S.] 176), that upon disputed evidence the question of waiver is for the jury.

It having been conceded upon the trial that the refusal of defendant’s secretary to furnish plaintiff with blanks for proofs of death constituted a waiver of the right to demand such proofs, that question need not be considered.

We are of the opinion, therefore, that the charge contains no errors which were detrimental to the defendant; that the case was properly submitted to the jury, and that the verdict is' sustained by the evidence.

Judgment affirmed, with costs.

Lewis, Bradley and Ward, JJ., concurred.

Judgment affirmed.


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    Silas H. Cummings, Respondent, v. American Gear and Spring Company and Others, Defendants; Langford S. Keating and Others, Appellants.

      Joinder of canses of action against a corporation to set asida a mortgage and a judgment recovered collusively and, to enforce the liability of directors and obtain a distribution of the assets — a demurrer too general, overruled — annual report of a practically dissolved corporation.

    The complaint in an action against a corporation and five other parties, three of whom were directors, another of whom was a judgment creditor, and the other a grantee of the corporation, alleging that the plaintiff’s assignor had recovered a judgment against a corporation and that an execution issued thereon had been returned unsatisfied, aslted: Mrst, to have set aside a mortgage and bill of sale executed by the corporation, as alleged, in contemplation of insolvency and with intent to hinder and defraud creditors; second, to have set aside a judgment recovered, as alleged, collusively by one of the defendants against the corporation; third, to have enforced the liability of three of the defendants for their failure as directors to file an annual report; finally, it prayed for a sequestration of the property of the corporation and a division thereof among its creditors and also made a general demand for costs against all the defendants.
    Upon the hearing upon demurrers interposed by several of the defendants, setting up a misjoinder of causes of action,

      Held, that under the provisions of section 484 of the Code of Civil Procedure the first and second causes of action were properly joined in one complaint;
    That the third cause of action could not be joined with the other two under the provisions of said section 484 alone, but that reading that section with section 1790 of the Code, providing that where an action is brought by a creditor of a corporation and the directors are made liable by law, in any event or contingency, for the payment of his debt the persons so made liable may be made parties defendant by the original or by a supplemental complaint, the joinder was proper;
    That while the plaintiff sued alone and there might be other creditors of the corporation not entitled to enforce the liability of the directors for their failure to file an annual report, that difficulty was obviated by sections 1792 and 1793 of the Code of Civil Procedure providing for the distribution of the assets of a corporation among its creditors;
    That the fact that a corporation and its directors permit a person, not a stockholder or director, to recover a judgment against the corporation, upon a claim to which so far as appears there was no defense, does not amount to an unlawful preference nor render the judgment voidable.
    A demurrer which is too general in demurring to several causes of action where it should only have demurred to one of them must be overruled.
    The fact that a corporation is practically dissolved does not relieve its directors from the statutory duty of filing an annual report.

      Appeal by the defendants, Edward P. Hollister, Langford S. Keating and Algar M. Wheeler, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Erie on the 14th day of December, 1894, overruling their demurrers to the complaint, and also from an order dated September 3, 1894, upon which the said interlocutory judgment was entered.

      Irving W. Cole, for the respondent.

      Wheeler & Norton, for the appellant Edward P. Hollister.

      George P. Keating, for the appellant Langford S. Keating.

      W. Algar Wheeler, for the appellant Algar M. Wheeler.
   Werner, J.:

It cannot be doubted that the complaint contains in a single statement three separate causes of action, namely: First, to set aside a mortgage and bill of sale alleged to have been executed by the American Gear and Spring Company in contemplation of insolvency, and with intent to hinder, defraud and delay creditors.

Second, to set aside a judgment alleged to have been obtained collusively.

Third, to enforce the liability of three of the defendants for their failure as directors of said company to file an annual report in January, 1894.

The complaint prays also for a sequestration of the property of the gear and spring company and division among its creditors.

There are six defendants : The American Gear and Spring Company, the Third National Bank of Buffalo, Robert Keating, Langford S. Keating, Algar M. Wheeler and Edward P. Hollister. The complaint alleges the recovery of a judgment by the plaintiff’s assignor against the gear and spring company, the issue of an execution thereon and its return unsatisfied, and, therefore, justifies the prayer for sequestration and furnishes the requisite basis for calling in question the validity of the transfer of property by the gear and spring company to the Third National Bank, of the judgment recovered by the defendant Robert Keating and the enforcement of the liability as directors of the defendants Langford S. Keating, Wheeler and Hollister. The first cause of action, aside from that requiring the sequestration, to be spelled out of the complaint, is that the gear and spring company, in contemplation of its insolvency, and with intent to hinder, delay and defraud its creditors, transferred by mortgage and bill of sale substantially all of its property to the defendant the Third National Bank of Buffalo. The complaint alleges also that the transfer was made “upon the written request and authority” of the defendants Wheeler, Hollister and Langford S. Keating. The allegation last mentioned is the only one tending in any way to connect the defendants Wheeler, Hollister and Langford S. Keating with that fraudulent transfer, and there is nothing in the complaint tending to show that the defendant Robert Keating was in any way connected therewith.

From the second cause of action it appears that the gear and spring company, being insolvent, suffered the defendant Robert Keating to obtain a judgment against the company, and it is charged that the judgment was recovered by the collusion of said company and Langford S. Keating and the Third National Bank with Robert Keating. The complaint does not charge that the judgment is fraudulent or founded upon a fictitious indebtedness, and evidently proceeds upon the theory that the gear and spring company, being insolvent, was precluded from suffering a judgment to be recovered against it by the defendant Robert Keating, even upon a bona fide indebtedness.

The third cause of action is for the enforcement of the statutory liability of the defendants Langford S. Keating, Wheeler and Hollister, as directors of the gear and spring company, for their failure to file a report in the month of January, 1894, as required by statute, and the prayer based thereon is that 'said defendants be adjudged jointly and severally personally liable for all the debts of the gear and spring company, and that they may be required to'pay any deficiency of assets necessary to satisfy the claims of creditors.

It is evident from what has been stated that the cause of action against the Third National Bank does not affect any of the other defendants, except the gear and spring company, unless the defendants Wheeler, Hollister and Langford S. Keating are proper parties defendant because they procured the transfer of the property to the bank, and this in no event affects the defendant Robert Keating. It is equally evident that the second cause of action affects only the gear and spring company and the defendant Robert Keating, unless the allegation that the bank and Langford S. Keating colluded with the other defendants just named to permit the judgment to be obtained makes their joinder proper. So the third cause of action affects only the defendants Wheeler, Hollister and Langford S. Keating. The defendants Hollister, Wheeler and Langford S. Keating have separately demurred to the complaint upon the ground that causes of action are improperly joined therein. This appeal is taken from the judgment overruling the demurrers at Special Term.

It is provided by section 484 of the Code of Civil Procedure that various causes of action may be united as classified in that section, but with the restriction that “ it must appear upon the face of the complaint that all the causes of action so united * * * affect all the parties to the action.” The limitation which has been quoted is aimed agaiust what was known in the chancery practice as multifariousness, and is but a restatement of one of the earliest rules of the Court of Chancery. (Story’s Eq. Pl. [9th ed.] § 271.) The rule is designed not only to avoid the hardship of compelling a defendant to litigate a question in which he has no interest, but also to avoid confusion in the pleadings and in the decrees of the court.

In order to determine whether the demurrers should have been sustained the first inquiry is whether the allegations of the complaint, to the effect that the appellants procured and were concerned, in the fraudulent transfer to the bank, and colluded with Robert Keating to permit his judgment to be obtained, state a cause of action against them with respect to those acts.

It appears from the complaint that the appellants, while not in possession of any of the assets of the gear and spring company, were instruments of the alleged illegal acts assailed by the plaintiff, and it follows, therefore, that they are proper parties so far as those causes of action are concerned. It has long been a rule of equity practice that one who participates in a fraudulent act, even though he be concerned only as agent, may be made a defendant in a bill to obtain relief from that act for the purpose of charging him with costs. (Story’s Eq. Pl. [9th ed.] § 232; Brady v. McCosker, 1 Comst. 214.)

The complaint in this action contains a general prayer for costs which must be construed as applying to all the defendants, and insufficient, therefore, to avoid the objection that the appellants are not proper parties defendant to the first and second causes of action. It follows, therefore, that the complaint as to these defendants is not objectionable upon the ground that it unites causes of action which do not all affect the appellants. It is not necessary to discuss or decide here the question whether this.objection might have been more successfully taken by some of the other defendants who did not demur.

It remains to be determined whether the complaint is demurrable on account of the joinder of the third cause of action with the other two. It has not been questioned by the counsel for the appellants that the first and second causes of action are of such a nature that they may be united in the same complaint, and no such objection could successfully be made.

The third cause of action, for the enforcement of the statutory liability of the appellants as directors of the gear and spring company, cannot properly be joined with the other two causes of action, consistently with any reasonable construction of section 484 of the Code of Civil Procedure.

By section 1790 of the Code it is, however, provided that where the action is brought by a creditor of a corporation, and. the stockholders, directors, trustees or other officers, or any of them, are made liable by law, in cmy event or contingency, for the payment of his debt, the persons so made liable may be made parties defendant by the original or by a supplemental complaint, and their liability may be declared and enforced by the judgment in the action.” This section is one of the general provisions for the dissolution of a corporation and the enforcement of the individual liability of the officers and members thereof. By reading that section in connection with section 484 we are able to find a statutory rule for the joinder of causes of action in cases of this character, which is not provided by the provisions of the later section alone. Section 1790 is not a new enactment, but is substantially the provision contained in the original revision of the statutes (2 R. S. 464, § 43). This and similar provisions have always formed a part of the remedies provided by statute for the enforcement of the performance of corporate duties at the suit of the People, and for the collection of corporate debts at the suit of creditors.

It is true that the plaintiff sues for himself alone and not in behalf of other creditors, and that there may be creditors of the corporation who could not enforce the liability of the directors for failure to file the report. But the difficulty seems to be obviated by sections 1192 and 1193 of the Code of Civil Procedure, providing for a distribution of the assets of the corporation, and, as was held in Pfohl v. Simpson (74 N. Y. 137), the decree can provide for the distribution of such sumso as the directors may be required to pay among such creditors as are in a situation to avail themselves of the liability imposed by the statute.

The question whether even in this view of the statute referred to the third cause of action is one which can properly be joined with the other two, is not free from doubt. In Farnsworth, v. Wood et al. (91 N. Y. 308) it was held that a receiver of a corporation organized under the General Manufacturing Act (Chap. 40 of 1848), is not vested with the right of action given by that act to creditors of the corporation against the stockholders thereof. "We are inclined to think, however, that the limitations of the act referred to distinguish that case from this one in particulars which need not here be discussed. We are inclined to the view that these causes of action can, under the statutes above referred to, be properly joined. But a- different question is presented by the demurrers of the defendants Hollister and Wheeler, who have demurred, not only upon the ground of misjoinder, but have also made the objection that the complaint does not state facts sufficient to constitute a cause of action against them. The first cause of action is sufficient, as has been shown, and as to that the demurrers of the defendants Hollister and Wheeler are not well taken.

With respect to the second cause of action set forth in the complaint herein a demurrer might properly have been interposed upon the ground that the complaint as to the facts therein set forth does not state a cause of action. There is no allegation that the judgment obtained by Robert Keating is in fact fraudulent or based upon a fictitious indebtedness, and the complaint seems to proceed purely upon the theory that the judgment is voidable, because the gear and spring company and its directors permitted the judgment to be taken collusively; that is, with the consent and connivance of the directors. It does not appear that the company had any defense to the action, and Robert Keating was neither a stockholder nor a director thereof. He was entitled, therefore, to obtain the judgment, and we do not think that the directors by merely suffering it to be taken gave an unlawful preference. (Varnum v. Hart, 119 N. Y. 101; French v. Andrews, 145 id. 441.)

But the defendant Robert Keating has not demurred, and the defendants Hollister and Wheeler have made their demurrers unsustainable by demurring to the entire complaint-instead of only to the second cause of action.

It is true that the plaintiff could not, by violating the rule of practice requiring different causes of action to be separately stated and numbered, deprive the defendants of the right to demur. (Wiles v. Suydam, 64 N. Y. 173.) Defendants Hollister and Wheeler might properly have demurred to the second cause of action, but it is an established rule that a demurrer which is too general must be overruled. (Story’s Eq. Pl. [9th ed.] § 445.)

If we are correct in .the conclusion that under existing statutes the third cause of action is properly joined with the other two, the contention of counsel for the appellants, that the complaint shows that prior to January, 1894, the gear and spring company was practically dissolved, and, therefore, it was not necessary for the directors to file a report in January, 1894, cannot be sustained. It is settled that under such conditions as are alleged in the complaint the directors of a corporation are not relieved from the obligation to file an annual report. (Brown v. Clark, 81 Hun, 267; Bruce v. Platt, 80 N. Y. 379.)

Our conclusion, therefore, is that all the demurrers were properly overruled, and that the judgment appealed from should be affirmed, with costs, with leave to defendants to answer within twenty days after entry of this judgment upon payment of the costs of the demurrer and of this appeal.

Ward, J., concurred; Bradley, J., concurred in result; Lewis, J., not sitting.

Interlocutory judgment affirmed, with costs, with leave to the defendants to answer within twenty days on payment of the costs of the demurrer and of this appeal.


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    Henry J. Peirson, as Supervisor of the Town of Arcadia, Appellant, v. The Board of Supervisors of Wayne County and Andrew F. Sheldon, Respondents.

      Taxation — town railroad aid bonds — failure of county treasurer to pay them— action by the town — Statute of Limitations — defenses.
    Where a county treasurer fails to apply taxes assessed upon the property of a railroad corporation in a town to the payment or redemption of bonds issued by the town in'aid of the construction of such railroad, as required by the provisions of chapter 907 of the Laws of 1869, and the acts amendatory thereof, but mingles them with other taxes and applies all to the ordinary purposes of town taxation, an action, as for money had and received, may be maintained by the town against the county to recover the amount of such taxes.
    The cause of action arises when the misappropriation is made; the Statute of Limitations begins to run against the claim at that time, and at the end of six years the cause of action is barred
    The defense of the statute is made out by proof of the misappropriation, and where there is no evidence upon the subject the court will not assume that there were funds in the county treasury sufficient to create the sinking fund required by the statute.
    Such an action is governed by the ordinary rules as to defenses limiting the plaintiff’s right of recovery, and the town is not entitled to recover the amount already paid to the town, out of the railroad taxes, for town purposes.
    The plaintiff cannot recover in such an action for excessive assessment and taxation resulting as alleged from the failure of the board of supervisors to deduct the valuation of the railroad from the aggregate valuation of the county and from the total valuation of the town.

      Semble, that it must pursue the statutory remedy for an over assessment.
    Appeal by the plaintiff, Henry J. Peirson, as supervisor of the town of Arcadia, from a final judgment of the Supreme Court, entered in the office of the clerk of the county of Wayne on the 28th day of September, 1894, upon the report of a referee, and also from an interlocutory judgment entered in said clerk’s office on the 32th day of December, 1891.
    This action was brought by the plaintiff, as supervisor of the town of Arcadia in said county, against the board of supervisors and the county treasurer of said county to recover certain tax moneys which were levied upon and paid by the Sodus Bay and Southern Division of the Northern Central Railway Company from the years 1872 to 1886 inclusive, and to which said town of Arcadia claims to be entitled, under the provisions of chapter 907, Laws of 1869, and the acts amendatory thereof, and commonly known as the “ Funding Law,” by section 4 of which, as amended by chapter 283 of the Laws of 1871, it is provided that:
    “ All taxes, except school and road taxes, collected for the next thirty years, or so much thereof as may be necessary, in any town, village or city, on the assessed valuation of any railroad in said town, village or city, for which said town, village or city has issued or shall issue bonds to aid in the construction of said railroad, shall be paid over to the treasurer of the county in which said town, city or village lies. It shall be the duty of said.treasurer, with the money arising from taxes levied and collected as aforesaid, which has heretofore been or shall hereafter be paid to him (including the interest thereon) to purchase the bonds of said town, issued by said town, to aid in the construction of any railroad or railroads, when the same can be purchased at or below.par; the bonds so purchased to be immediately canceled by said treasurer and the county judge, and deposited with the board of supervisors. In case said bonds so issued cannot be purchased at or below the par value thereof, then it shall be the duty of said treasurer, and he is hereby directed to invest said money so paid to him as above mentioned, with the accumulated interest thereon, in the bonds of this State or of any city, county, town or village thereof, issued pursuant to the laws of this State, or in bonds of the United States. The bonds so purchased, with the accumulated interest thereon, shall be held by said county treasurer as a sinking fund for the redemption and payment of the bonds issued or to be issued by said town, village or city in aid of the construction of said railroad or railroads.”
    The total amount of taxes levied upon and collected from said railroad company in said town, during the years aforesaid, was $9,213.28, as more fully appears from the schedule set forth in the complaint. It is also claimed that by reason of the failure of said board of supervisors to deduct the valuation of said railroad from the aggregate valuation of the county, and to deduct the assessed valuation of said railroad from the total valuation of said town, a larger sum was levied and assessed upon said town in each of said years than should have been assessed and levied, by the sum of $3,783.12, as more fully appears in the schedule contained in the complaint. Judgment is asked for said sums of $9,213.28 and $3,783.12 respectively, and also tliat said first-mentioned sum and interest thereon be levied and collected from the taxable property of said county and paid into the treasury thereof, and that the said county treasurer thereof be directed to apply the same to the purchase and payment of the bonds of said town issued by it in aid of said railroad in accordance with the provisions of the statutes above referred to.
    The court found, as facts, that the taxes levied and collected of said railroad company in said town from 1872 to 1886, inclusive, amounted to $9,213.28, and that said railroad company had paid during said period $3,783.12 more in State and comity taxes than it should have paid. That the amounts for each year were received by said board of supervisors on the fifteenth day of February next succeeding the year in Avliicli they were paid. That in each of said years said board of supervisors levied, assessed and collected taxes upon all taxable property of said town, including said railroad, and in each of said years ordered and directed certain sums to be paid therefrom to the supervisors, commissioner of highways and overseer of the poor of said town, which sums were so paid to them. That the taxes assessed on and collected from said railroad were not separate or set apart from said other taxes collected in said town, but were mingled therewith, a share or proportion thereof being paid to said supervisor, commissioner of highways and overseer of the poor of said town by order of said supervisors in each of said years. That the moneys collected and received as taxes from said railroad were paid out by said county treasurer by order and direction of said board of supervisors for other purposes chan those named in section 4 of chapter 907 of the Laws of 1869, as amended, and that none of said moneys have been used or invested as in said acts required.
    This action was commenced on the 11th day of January, 1887. The court found, as conclusion of law, that the cause of action alleged in the complaint for and in regard to the taxes which were levied and assessed in and for the years 1871 to 1880, inclusive, and which were paid to said county treasurer more than six years before the commencement of the action, was barred by the Statute of Limitations, and that the plaintiff was entitled to judgment for the amount of the taxes levied, assessed on and collected from said railroad in the years 1881 to 1886, inclusive. That the taxes so levied, assessed and collected during said years amounted to $1,825.26, which sum plaintiff was entitled to recover, after deducting therefrom the share or portion thereof which has been paid to the supervisor, commissioner of highways and overseer of the poor of said town. The court ordered a reference to ascertain said amount, according to the rule laid down in its opinion, and said referee reported the sum of $1,533.48 as the amount which the county treasurer of Wayne county shall invest and use for the purposes ordered and directed in the interlocutory judgment herein, and which should be furnished and raised by the board of supervisors as directed. Pinal judgment was granted on the 27th day of August, 1894, confirming the interlocutory judgment and the referee’s report thereon, and overruling the plaintiff’s exceptions thereto. The final judgment directed said county treasurer to apply and invest said sum of $1,533.48 and interest in the manner prescribed by chapter 283 of the Laws of 1871, and in case there were not sufficient moneys in the county treasury of Wayne-county the defendant board of supervisors was directed to levy, assess and collect the moneys necessary to carry the judgment of the' court into effect.

      Stephen K. Williams, for the appellant.

      J. W. Dunwell, for the respondents.
   Werner, J.:

The first question which requires consideration is whether the six years’ Statute of Limitations applies to this case. Appellant’s counsel insists that the defendants are trustees of an expi-ess trust created by chapter 907, Laws of .1869, and the law-s amendatory thereof, and that the six years’ Statute of Limitations does not apply. It is contended that this is not an action for moneys had and received, but to enforce by equitable decree the performance of a continuing-duty to apply the moneys received from taxes upon said railroad for the benefit of said town, according to the provisions of said statutes.

In view of the decisions upon this question there is no doubt as to the character of the action. It is now definitely settled that the six years’ Statute of Limitations does apply.

While the duty of the defendants is in the nature of a public trust the law provides two remedies in case of a breach thereof. The first is by a proceeding under the statute to compel the application of moneys in accordance with the terms thereof, and this proceeding may be instituted by any taxpayer of the town whose interests are affected. The second is by action which, although brought in equity, is in effect an action for moneys had and received. Where the former remedy is invoked the Statute of Limitations may have no application. This question we do not decide. Where the right is sought to be enforced by action the remedy must be pursued within the period fixed by the Statute of Limitations.

In such a case as this the cause of action arises when the misappropriation is made; the statute then begins to run against it, and an action brought more than six years thereafter is barred. (Strough v. Board of Supervisors, 119 N. Y. 212.)

The case of Spaulding v. Arnold (125 N. Y. 194), cited to sustain the contention that the trust duty imposed upon the defendants is a continuing one, from the performance of which they cannot. be relieved by pleading the Statute of Limitations, is not in conflict with the rule laid down in Strough v. Board of Supervisors (supra).

The Spaulding case was a proceeding under the statute, but it was also clearly distinguishable from the present case upon another ground, as appears from the language of the court at page 199.

Referring to the Strough case the court says: “ From that moment of misappropriation a cause of action arose in favor of the town, and the Statute of Limitations commenced to run. Here there has been no misappropriation. The fund still remains in the hands of the county treasurer, and liis duty to invest it as the statute requires is still as imperative as it was the first moment the funds came into his hands.”

The case of Kilbourne v. The Board of Supervisors of Sullivan County (137 N. Y. 170) was an action like this. It was held that the six years’ Statute of Limitations applies. The Court of Appeals-in arriving at this conclusion has evidently taken the ground that while the action is in equity, and the decree may provide for the specific performance of the duties imposed by the statute which are necessary to make the judgment of the court effectual, the gist of the action is that the defendants have received to and for the use of the town, on whose behalf the action is brought, moneys which have been wrongfully appropriated to other uses.

If the moneys received by the county treasurer from the town of Arcadia for taxes collected from the Sodus Bay and Southern Division of the Northern Central Railway Company between 1872 and 1886 had remained in the county treasury, or there had been at all times since 1872 a general fund not appropriated to other specific purposes, which was sufficient to create the sinking fund provided f qr by this statute, this case would be analogous to Spaulding v. Arnold {supra), in which the continuous jiossession of the fund, and the continuing character of the duty imposed upon the county treasurer, was held to prevent the application of the Statute of Limitations ; or, if the Statute of Limitations having been properly pleaded there had been no proof showing the appropriation of the fund to other purposes than those directed by the statute, the case would come within the rule laid down in Kilbourne v. Supervisors (supra). But neither of these features are presented here. The evidence shows that all of the railroad taxes received by the county treasurer went into one general account with other tax moneys, and were paid out from time to time in payment of debts of the county, and that no portion of the same were applied to the purposes provided for in the statute under consideration,

A careful perusal of this evidence convinces us that while it is not so explicit and detailed as to show precisely when and for what purposes said moneys were paid out, it is, nevertheless, sufficient to warrant and sustain the'conclusion that they were misappropriated from year to year as they were received by the county treasurer.

The fact of misappropriation having been established, the application of the Statute of Limitations necessarily follows, unless it was the duty of the defendants to show affirmatively that there Avere not sufficient funds in the county treasury to create the sinking fund required by the statute.

While the defense of the Statute of Limitations is an affirmative one, we think it is made out when the misappropriation of the funds designed for that purpose is shown. There is no evidence to show that there were other funds in the hands of the county treasurer during the years referred to which might have been applied to this purpose; and we are not at liberty to assume that there were such funds. The evidence was, therefore, sufficient to warrant and sustain the fifteenth finding of fact, to which an exception was taken, but not upon the ground that it is contrary to or not warranted by the evidence.

This finding of fact justifies the fifth and sixth conclusions of law, to the effect that plaintiff’s claim is barred, except as to taxes paid, within six years prior to the commencement of the action.

The next question raised by plaintiff’s exceptions is whether the trial court erred in deducting from the railroad taxes, collected in said town in each of the six years for which a recovery was had, the part thereof paid to the town for town purposes.

If this were a proceeding under the statute, Clark v. Sheldon (134 N. Y. 337) would be decisive of the question; but since this is an action in effect for moneys had and received, we do not perceive why it is not governed by the principles ajiplicable to actions of this character. Such an action is subject to counterclaim, set-off, recoupment and such other defenses as will tend to limit plaintiff’s recovery to the actual amount to which he is entitled. It would be absurd and unjust to hold that in an action governed by these principles a plaintiff could again recover what he has once had.

In Clark v. Sheldon (134 N. Y. 337) the Court of Appeals in discussing this question, says: If this proceeding can be decided upon principles applicable to an action between the town and county, the decision of the General Term could probably be upheld, but that view I think proceeds from a misconception of the purposes and provisions of the statute, and the assumed analogy cannot be sustained. * * * The cases that have been referred to in the opinion of the General Term and the brief of the respondent, were actions by towns against the counties to compel the application to fhe sinking fund of State and county taxes which the county had misappropriated by directing the county treasurer to apply to purposes other than the sinking fund. They proceeded upon the doctrine of money had and received by the county which the law had appropriated to the payment of a corporate obligation of the town, and of course in sucli an action the town taxes were not involved as they never came into the possession or under tlie control of the county, and consequently no question of estoppel or waiver was presented.”

We think the trial court decided correctly in deducting that portion of the railroad taxes which has been received, by the town.

The court did not err in holding that plaintiff was not entitled to • recover for over assessment or over payment of taxes from 1872 to 1885 inclusive by reason of the failure of the board of supervisors to set aside or deduct the valuation of the said railroad from the aggregate valuation of the county, and to deduct the assessed'valuation of the said railroad from the total valuation of said town. A clear remedy is provided for over assessment by the statutes which need not here be referred to.

The judgment of the court below should be affirmed, with costs.

Lewis, Bradley and Ward, JJ., concurred.

Judgment affirmed, with costs.