author: Putnam, J. :

text:
    Calvin Robinson, Respondent, v. Town of Fowler, Appellant.

      Appropriations for highways made by a town— the highway commissioner is not its agent — it is not liable for his negligence — statutes changing the common law.

    A master owes the duty to his employees to intrust the handling of dangerous material only to competent and careful workmen.
    A town, hy making an appropriation, asked for by a highway commissioner in order that he may do the work he is called upon to perform on roads and bridges, cannot be deemed to be the party who prosecutes the work afterwards ordered by such commissioner.
    A town, in its corporate capacity has no control over highways, and is under no obligation to keep them in repair, nor has it the right, by reason of the provisions of chapter 700 of the Laws of 1881, or of section 16 of chapter 568 of the Laws of 1890, to repair highways or bridges, or divest the commissioners of highways of control thereof.

      The provisions of section 183 of chapter 569 of the Laws of 1890 do not enlarge the liability of towns for the acts of town officers, except as plainly declared in the statute.
    A town is not liable for the negligence of its highway commissioner while engaged in the prosecution of the work of repairing the highways under his jurisdiction.
    Statutes changing the common law must be strictly cqpstrued, and the common law must be held to be no further abrogated than the clear import of the language used in the statutes absolutely requires.
    Appeal by the defendant, the Town of Fowler, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 8th day of May, 1893, upon the verdict of a jury rendered after a trial at the St. Lawrence Circuit, and also from a,u order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

      V. P. Abbott, for the appellant.

      Levi LL. Brown, for the respondent.
   Putnam, J. :

This action was brought to recover damages for injuries received by plaintiff in May, 1891, while at work under the direction of Aschel C. Johnson, the highway commissioner elected for the town of Fowler, in blasting rock for the purpose of widening the roadway in one of the highways of said town and making it of sufficient width to enable vehicles to pass each other. Johnson employed plaintiff and other workmen in such blasting. The testimony also shows that he hired one Abner Wight to superintend the work; that Wight was inexperienced and unskilled in blasting with dynamite, which explosive was used in the work in question. On the 28th of May, 1891, several blasts were set off; an inspection should have been directed by Wight after the blast to determine whether the explosion was complete, but no such inspection was made. The next morning Wight ordered plaintiff and one Hannon to drill deeper a hole that had been made the day before. Obeying such direction, and in ignorance that there was any dynamite in the hole, plaintiff and Ilarmon commenced work, Harmon holding the drill and Wight and plaintiff striking it. At the first heavy blow an explosion occurred and plaintiff received the injuries to recover the damages resulting from which the action is brought. We are not prepared to say that if an action can be maintained against a town for injuries received by one employed by a commissioner of highways to aid in repairing a road, in consequence of the negligent manner in which said work is conducted, the trial court erred in submitting to the jury the question whether or not the highway commissioner of the town of Fowler performed the duty he owed to plaintiff as an employer to select competent workmen to superintend the work of blasting with dynamite. There was testimony from which the jury could have properly found that the commissioner employed Wight to superintend the job and that he ivas incompetent.

The master OAves the duty to his employee to intrust the handling of dangerous material only to competent and careful workmen. (Stewart v. The N. Y., O. & W. R. R. Co., 28 N. Y. St. Repr. 215; Mann v. President, etc., of D. & H. C. Co., 91 N. Y. 495-500.) In the vieAV Ave have taken of the case, however, Ave do not deem it necessary to discuss this question.

On the trial, after the case had been opened to the jury by the plaintiff, the defendant moA'ed for a nonsuit on the ground : “ That facts sufficient are not stated to constitute a cause of action against the toAvn.” The trial judge remarked: ‘‘ The acts of 1881 and 1890 do not create a liability, but at the same time they do impose such duties upon the municipality, the toAvn, that the toAvn may laAvfully take charge of and improve the highways; and if the toAvn undertakes to do that, it must be held to the same accountability that an individual or a corporation Avon!d be if it undertook such Avork. It becomes one of the incidental duties of the town, Avhieh, in the exercise of its corporate poAvers, it may perform. Therefore, if the toivn undertakes to do this Avork, it must be held to the same rale as an individual or a corporation.” And the case Avas tried and submitted to the jury by the learned trial judge on the assumption that the Avork of blasting, in the prosecution of ivhi'ch the plaintiff Avas injured, Avas done by the toivn of Foivler and not by the higliivay commissioner of the town.

In this assumption, we think, the court beloiv erred.

First. There ivas no sufficient evidence given on the trial to show that the blasting, done under tlié direction of Highway Commissioner Johnson at Popple Hill, was work undertaken by the defendant. The testimony merely shows that Johnson, as highway commissioner, posted the usual notices in regard to the appropriations he proposed to ask for at the town meeting, and that such appropriations were made by the electors of the town. This has always been the course adopted in the raising of money for the repairing of highways and bridges in towns, and the town, by making the appropriations asked for by the highway commissioner, in order that he may do the work he is called upon to perform on roads-and bridges, cannot he deemed to he the party who prosecutes the work afterwards ordered by the commissioner.

Second. We are of the opinion that the town had no power to do the work in question. The blasting at Popple Hill was done to repair a highway in said town. The roadway was too narrow, and to make it wider so that wagons could pass each other this job of blasting was undertaken. It has been. deemed well settled that a town in its corporate capacity has no control over and is under no obligation to keep highways in repair. (People ex rel. Loomis v. Board of Town Auditors, 75 N. Y. 316; People ex rel. Van Keuren v. Town Auditors, 74 id. 310-315.)

In the case last cited Andrews, J., uses the following language: “ Under our system no corporate duty is imposed upon towns in respect to the care, superintendence or regulation of highways within their limits. Commissioners of highways have, by the statute, the care and superintendence of highways (1 R. S. 501, § 1), and in the administration of the highway system they, and the overseers of highways in subordination'to them, are independent public officers, exercising public powers, and charged with public duties specially prescribed by law.”

We are not aware that any change has been made in regard to the control or repairing of highways in towns since the above cases were decided. It is true that by chapter 700 of the Laws of 1881 towns were made liable for damages suffered by any person by reason of defective' highways or bridges in cases where the commissioners of highways in such towns were before liable. This statute was substantially re-enacted in chapter 568, Laws of 1890, section 16. But these statutes did not give to towns the right to repair highways or bridges or divest the commmissionérs of highways of control thereof. (Bidwell v. Town of Murray, 40 Hun, 190-193; Rhines v. Town of Royalton, 11 N. Y. St. Repr. 231; Clapper v. Town of Waterford, 131 N. Y. 382-389.)

In the case last cited O’Brikn, J., remarked : “ The act of 1881 has not changed the powers or duties of the commissioner of highways. He still has charge of the roads and bridges in the town, and it is his duty to keep them in repair. The town is liable only when negligence on the part of the commissioner is shown, and he is not guilty of negligence in omitting to make repairs when he has no funds in his hands.”

We conclude that the work of repairing the highway at Popple Hill, in the prosecution of which the plaintiff was injured, was done by Johnson, the commissioner of highways of the town of Fowler, and that it "was work the defendant had no power to perform, and, as a matter of fact, did not undertake to do.

It is not claimed by the learned counsel for the respondent that the action could be maintained under the provisions contained in the acts of 1881 or 1890, above referred to. Those statutes only give a right of action for damages to persons or property occasioned by a defective highway. This action was brought for alleged negligence of the town, its agents or servants, while engaged in the work of repairing the highway.

It was held by the trial court that the acts of 1881 and 1890 imposed such duties and liabilities upon the town in reference to the highways that it could lawfully take charge of and improve them. The decision in Clapper v. The Town of Waterford (supra) and other cases cited seems to render a discussion of this proposition unnecessary.

. In Bidwell v. Town of Murray (supra) the following language is used : “ The statute in question does not change the relation of the town to the highways in the town or to the commissioner so far as relates to the control and supervision of them and tlie duty to keep them in repair. That duty is still upon those officers as such and not as agents of the town, to which no corporate power is given in that respect.”

The counsel for the respondent calls our attention to the fact that chapter 569 of the Laws of 1890 declares the town a municipal corporation, and section 182 of said act provides that any action for any liability of the town, for acts or omissions of its town officers, shall be in the name of the town. But it will be observed that the section referred to only authorizes such an action where there is a liability of the town. The section in question of the act of 1890, under principles that are well settled, cannot be deemed to enlarge the liability of towns for the acts of town officers, except as plainly declared in the statute.

Our attention is also called to numerous acts passed by the Legislature of the State by which the powers and liabilities of towns are affected or increased. But such statutes cannot be deemed to enlarge or increase the liabilities of towns except to the extent specifically prescribed therein.

It is well settled that statutes changing the common law must be strictly construed, and that the common law must be held no further abrogated than the clear import of the language used in the statutes absolutely requires.5 (Fitzgerald v. Quann, 109 N. Y. 441—445.) We are not referred to any statute that confers upon towns the light to engage in the work of repairing the highways and bridges or which divests the commissioners of highways of towns of their power over the roads therein.

We conclude, therefore, that the work of repairing the highway at Popple TIill was not work done by the defendant, but was prosecuted by Johnson, the highway commissioner, and that for his negligence while engaged on that work an action cannot be maintained against the town.

It follows that defendant’s motion for a dismissal of the complaint on the opening of the case by plaintiff should have been granted, and, hence, that the judgment should be reversed and a new trial granted, costs to abide the event.

Mayiiam, P. J., concurred; Herrick, J., concurred in result.

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


source: Caselaw Access Project

author: Putnam, J. :■

license: Public Domain

text:
    Nancy E. Van Dermoor, Appellant, v. William Van Dermoor, Respondent.

      Life insurance — effect, upon the widow’s right to the moneys due thereunder, of an ante-nuptial agreement.

    A life insurance policy was issued .by a corporation Whereby the insurer agreed sixty days after due notice and proof of the death of tile assured, during the continuance of the policy, to pay the amount therein stated to the assured, his executors, administrators or assigns, for the benefit of his widow, if any.
    The assured was then living with his first wife, who thereafter died, and the assured married again. On the day preceding the latter marriage, and in contemplation thereof, a marriage contract was entered into between the parties, by the terms of which the assured conveyed to his second wife, in fee, after his decease, in case she should survive him, a house and lot, in consideration of which she covenanted that “the lands and premises so assigned and set apart to her shall be in full satisfaction of her dower, or claim of dower, in his, said Adolph R.Yan Dermoor’s (the assured’s) estate, and shall bar her from claiming any dower, if she shall survive him, after said marriage, and that she will not claim any share or interest in his personal estate, unless the said Adolph R. Yan Dermoor shall give her some part thereof by his will or by some act done by him subsequent to the execution of these presents.”
    Thereafter the assured died, not having by any act done by him subsequent to the execution of the ante-nuptial contract or marriage settlement given his widow anj' share, interest or portion in or to the polic3r in question, or the money’s payable thereunder. The insurance company paid the executor of the assured the amount due on such insurance policy, and an action was thereafter brought by the widow of the assured to recover the amount thereof.

      Held, that b3’ virtue of the provisions of the insurance policy the widow of the assured was entitled to recover in the action, unless estopped by the covenant contained in the ante-nuptial contract;
    That she was not estopped b3' the ante-nuptial agreement from claiming the amount of the insurance money paid under such policy to the executor of the assured;
    That she was entitled to the amount of such money, not by virtue of her right as the widow of the assured to a distributive share in his estate, but as her own property under a contract made by the deceased for her benefit, under which on Iris death the title to the money at once vested in her and never became a part of his estate.
    Appeal by the plaintiff, Nancy E. Van Dermoor, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schenectady on the 24th day of October, 1893, upon the report of a referee dismissing the plaintiff’s complaint upon the merits, with notice of an intention to bring: up for review on such appeal the said judgment, referee’s report and exceptions.

      P. A. Pa/rmenter, for the appellant.

      Alonzo P. Strong, for the respondent.
   Putnam, J. :■

This is an appeal by the plaintiff from a judgment of the Supreme Court entered upon the report of a referee dismissing the complaint upon the merits. The action is brought to recover the amount of un insurance policy issued by the New England Life Insurance Company on the 3d day of July, 1861, on the life of one Adolph R. Yan Dermoor for the sum of $2,000.

The policy contained the following provision as to the payment -of said sum : And the said company do hereby promise to, and agree, with the said assured, his executors, administrators, and assigns, well and truly to pay the said sum insured to the said assured, his executors, administrators or assigns, sixty days after due notice and proof of the death of the said assured during the continuance and before the determination of this policy, for the l)eneflt of his widow, if cm,yP

The assured was then about fifty years of age, and was living with his first wife, Harriet J., whom.he had married in 1843, and who was of about the same age as her husband.

Harriet, the first wife of the assured, died on the 9th day of November, 1881, leaving her surviving said Adolph and certain of their children. On the 26th day of September, 1882, Adolph married the plaintiff in the action. On the day preceding this latter marriage, and in contemplation thereof, a marriage contract was entered into between the parties, by the terms of which the said Adolph R. conveyed to the plaintiff, in fee, after his decease, in case she should survive him, a house and lot in the city of Schenectady, in consideration of which the plaintiff covenanted that “ the lands and premises so assigned and set apart to her shall be in full satisfaction of her dower, or claim of dower, in his, said Adolph R. Yan Dermoor’s estate, and shall bar her from claiming any dower, if she shall survive him, after said marriage; and that she will not claim ¿my share or interest in his personal estate, unless the said Adolph R. Yan Dermoor shall give her some part thereof by his will, or by some act done by him subsequent to the execution of these presents.”

On the 8th day of October, 1885, the said Adolph R. Yan Dermoor died, not having by any act done by him subsequent to the execution of the ante-nuptial contract, or marriage settlement, given the plaintiff any share, interest or portion in or to the policy of insurance above mentioned, or in or to the moneys payable or to be paid thereunder.

On the 7th day of January, 1886, the insurance company paid to the defendant, as executor, etc., of deceased, $1,727.69 in full of the amount payable under the policy above mentioned. It is for the recovery of this sum that this action is brought.

I have carefully examined and considered the brief of the learned counsel for the respondent, and the authorities by him cited, but am of the same opinion as that entertained by the learned referee, that by virtue of the provisions of the insurance policy issued to Adolph R. Yan Dermoor by the New England Life Insurance Company on the 3d day of July, 1867, plaintiff, as his widow, was entitled to recover in the action, unless estopped by the covenant contained in the ante-nuptial contract. Under the policy the sum insured was to be paid to the deceased, his executors, administrators or assigns “for the benefit of his widow, if any.” It was not provided in the policy that such payment should go to any particular person who might become his widow, as, for instance, his wife at that time. The provision was a general one, that the insurance money should be for the benefit of his widow, if any. I think it does not require any discussion to show that plaintiff, by the plain language of the policy., was entitled to the money payable thereunder.

The referee, while holding that plaintiff, as the widow of Adolph 'R. Yan Dermoor, was entitled under the provisions contained in said policy to the money that became due and payable thereunder on his death, finds, however, that she was estopped from claiming the same by the ante-nuptial contract, in which she covenanted and agreed that in case she should survive him she would not claim any share or interest in his personal estate.

Although with some hesitation, I have reached a conclusion different from that arrived at by the referee as to the construction that should be given to this contract.

It was made in contemplation of tbe marriage of plaintiff with the deceased and of her surviving him, and the personal property referred to therein was not that which was owned by him at the time of making the contract, but the personal property he should have at the time of his death. The question is, did the contract refer to the policy of insurance or to the money payable thereunder after the death of deceased ?

The ante-nuptial contract did not expressly refer to said policy of life insurance. It provided that if plaintiff should survive the said Adolph R. Van Dermoor, from and after his death, she should become seized in fee and the owner of a lot of land described therein. And in that event she covenanted not to claim dower in his real estate or any interest or share in his personal estate. If plaintiff did not .survive the said Adolph R. Van Dermoor the agreement should become null and void. The agreement only became operative in ■case the said Adolph R. Van Dermoor left the plaintiff surviving him, and hence the personal property that plaintiff covenanted not to claim any share or interest in was, as above suggested, such as he left at the time of his death. He had at the time of making the ;ante-nuptial contract an agreement with an insurance company by which that company insured his life for $2,000, agreeing to pay said sum on his death to his executors, administrators or assigns for the benefit of his widow, if any. In other words, the insurance company had entered into a contract with the said Adolph to pay to his executors, administrators or assigns, when the ante-nuptial agreement should become operative by his death leaving the plaintiff surviving him, the sum of $2,000 for her benefit. This insurance contract was never changed during the lifetime of the insured.

I am unable to see how plaintiff, in claiming the money paid by the insurance company under said policy, is violating her covenant contained in the ante-nuptial contract. She agreed not to demand any interest in the personal property left by the said Adolph at his' decease, that is, in the estate that should go to his personal representatives. The money in question never belonged to his estate. It was received by his personal representatives as trustees for the benefit of plaintiff. (Matter of Van Dermoor, 42 Hun, 326.)

When the ante-nuptial contract was made plaintiff did not agree to waive the benefit of the insurance contract then in force, made by deceased for her benefit when the said ante-nuptial contract, by its terms, should become operative. When Adolph R. Yan Dermoor died the insurance moneys in question belonged to plaintiff as his widow. She was not estopped by the ante-nuptial agreement from claiming it. That paper referred to the personal property that went to the personal representatives of the deceased as a part of his estate. The insurance money, by the terms of the insurance contract between the company and deceased, at his death went to the plaintiff. She claims it, not by virtue of her right as his ividow to a distributive share of his estate, but as her oivn property under a contract made by deceased, for her benefit, with an insurance company, under which, on his death, the money at once vested in her, and hence never became a part of his estate. In claiming her own property she is not violating the covenant in the contract not to demand any interest in the personal estate left by deceased..

I conclude, therefore, that the judgment should be reversed and a new trial ordered, costs to abide the event.

Mayiiam, P. J., and Herrick, J., concurred.

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


author: Putnam, <7.:

text:
    The Importers and Traders’ National Bank of New York, Respondent, v. Cebra Quackenbush, Appellant, Impleaded with Others.

      A second execution may be issued without an order of the court — supplementary proceedings within ten years after the return of any execution, and after the judgment has ceased to be a lien on real estate.

    Under the provisions of section 1377 of the Code of Civil Procedure, where a judgment has been docketed in a county and an execution, issued thereon within five years after the rendition of the judgment, has been returned unsatisfied, a second execution may be issued upon such judgment without an order from the court, although fifteen years have elapsed since the rendition of the judgment. The right to issue such second execution is general. It may be issued to any county whore the judgment has been docketed, and not alone to the county to which the execution was issued within the five years after the rendition of the judgment.

      Under the provisions of section 2435 of tlie Code of Civil Procedure proceedings supplementary to execution may he instituted upon a judgment, within ten years after the return unsatisfied of any execution regularly and properly issued upon the judgment, and such proceedings need not necessarily be taken within ten years after the return unsatisfied of the first execution issued upon such judgment; such supplementary proceedings maybe instituted upon a judgment after it has ceased to be a lien upon real estate.
    Appeal by the defendant, Cebra Quackenbush, a judgment debtor, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 14th day of April, 1894, vacating an order made on the 2d day of April, 1894, which granted a stay of proceedings in proceedings supplementary to execution, and directed the defendant Cebra Quackenbush to appear before a referee for examination.

      Abraham Lapsing, for the appellant.

      A. S. Dyebt, for the respondent.
   Putnam, <7.:

The plaintiff obtained a judgment against defendant on January 22, 1879, which on that day was docketed in the county of New York, and on January 23, 1879, in the county of Rensselaer. An execution was issued thereon to the sheriff of the last-mentioned county on January 24, 1879, and afterwards returned unsatisfied. On March 22, 1894, said judgment was docketed in Albany county, and an execution was issued thereon to the sheriff of that county, and afterwards returned unsatisfied.

Plaintiff obtained a second judgment against defendant in the county of New York on January 22, 1879, which, on tlie next day, was docketed in Rensselaer county, and on February 20, 1879, in Albany county. On January 26, 1879, an execution was issued on said judgment to the sheriff of Rensselaer county, and afterwards returned unsatisfied. On February 22, 1879, one was also issued to the sheriff of Albany county, and also' returned unsatisfied. On March 22, 1894, another execution was issued on said judgment in the last-named county, and also returned unsatisfied. Defendant at the time of the obtaining of said judgments was, and ever since has .been, a resident of Albany county.

On March 27, 1894, plaintiff, upon affidavits showing the above facts, obtained from a judge of the Supreme Court on eacli of said judgments an order in supplementary proceedings requiring defendant to appear before a referee named in said orders, to make discovery on oath concerning his property. The defendant thereupon moved to vacate such orders, and to set aside the executions issued upon the aforesaid judgments in 1894, and the returns thereon, and for other relief. Prom the order denying said motion this appeal is taken, bringing up for our consideration the question of the validity of the said orders for the examination of said defendant in supplementary proceedings.

The second judgment above specified having been docketed in Albany county on February 20,1879, and an execution having been then issued and returned unsatisfied, a second execution could issue thereon without an order of the court, under the provisions of section 1377 of the Code of Civil Procedure. Hence the execution issued by plaintiff on said judgment on March 22, 1894, although issued about fifteen years after the rendition of the judgment, was regular, and authorized by the statute.

It is claimed by appellant that the order in supplementary proceedings for the examination of defendant was improperly granted after the expiration of ten years from the return of the first execution issued in 1879 on the judgment in question, under the provisions of section 2435 of the Code of Civil Procedure.. The following is a copy of said section, viz.: “ At any time within ten years after the return, wholly or partly unsatisfied, of an execution against property, issued upon a judgment, as prescribed in section two thousand four hundred and fifty-eight of this act, the judgment creditor, upon proof of the facts by affidavit, or other competent written evidence, is entitled to an order requiring the judgment debtor to attend and be examined concerning his property, at a time and place specified in the order.”

Appellant urges that the right to institute supplementary proceedings accrued to plaintiff in 1879, on the return of the first execution, and that as it permitted over ten years to expire before instituting these proceedings, it was precluded from doing so under the provisions of the above-quoted section. It is claimed on the other hand that when an execution has been regularly and properly issued on a judgment, be it the second or third execution, an order in supplementary proceedings can be, granted within ten years thereafter.

The-statute says an order in supplementary proceedings may be granted within ten years after the return of an execution. "With some hesitation we reach the conclusion that the language means within ten years after the return of any execution legally and properly issued upon a judgment. In the case under consideration the proceeding was instituted in 1894, shortly after and within ten years from the return of an execution unsatisfied. Section 2435 {supra) does not prescribe that the proceedings should be taken within ten years after the return of the first execution, but from the return of an execution. This view of the statute in question was taken by the Superior Court of the city of New York in Levy v. Kirby (51 N. Y. Super. Ct. 69). (See, also, 3 Rumsey’s Pr. 411; Piero’s Spec. Proc. 517, 518.) In the case of Conyngham v. Duffy (125 N. Y. 200), cited by defendant, it does not appear that a second execution had been issued, and the question here raised was not before the court in that case. In Baumler v. Ackerman (63 Hun, 40) the court was apparently influenced by the fact that the plaintiff’s judgment had ceased to be a lien upon the real property of defendant, and that the execution issued in that action was ineffectual to reach that class of property, and that in order to institute supplementary’ proceedings an execution should be issued and returned unsatisfied against real estate as in the case of a creditor’s bill; that the provisions of section 1252 of the Code of Civil Procedure did not apply in that case as the judgment had been obtained in 1876. In this case, however, the judgment was obtained in 1879, and under the provisions of section 1252 the execution issued in 1894 could be collected out of any real or personal property of the defendant in the county of Albany. We conclude, therefore, that supplementary proceedings may be instituted at any time within ten years from the return of any execution properly issued on a judgment. Under the provisions of section 2436, which provides for the examination of a defendant after the issuing and before the return of an execution unsatisfied, it is quite clear that supplementary proceedings may be taken at any time while -the judgment remains in force after the issuing of any execution, whether the first or second. There seems to be no satisfactory reason why the provisions of section 2435, prescribing the limitation of ten years, should not be deemed to refer to the last execution legally issued.

The first above-described judgment was not docketed in Albany county, where the judgment debtor resided, until March 22, 1894, and the execution was not issued thereon until that time. Section 2435 {supra) provides that the ten-year limitation applies where an execution against the property of the judgment debtor has been issued as prescribed in section 2458, that is, in the county where the defendant resides or has a place of business. As no execution had been issued in the county of Albany, where defendant resides, until 1894, the limitation prescribed by section 2435 did not commence to run until that time, and the only question to be considered is whether the execution then issued by plaintiff in Albany county was authorized by the statute. The judgment had been docketed in Rensselaer county in 1819, and an execution had in that year been issued and returned unsatisfied in that county. Hence, in 1894, under the provisions of section 1311 {supra), plaintiff could, without any order of the court, have issued a new execution in Rensselaer county. The defendant contends that under the provisions of said section a second execution, after the expiration of five years from the rendition of the judgment, could only go to the same county where the first was issued. No authority is cited to sustain this contention, and we think that the language of section 1311 does not admit of this construction. If an execution has been regularly issued in five years after the entry of the judgment in any county where the judgment was docketed, the statute provides that another execution may be issued thereon. There is no limitation in the said section. The right given by the statute to issue an execution is general, and should be deemed such a right as the plaintiff had, to issue execution within five years from- the rendition of the judgment, to any county where the judgment was or may be docketed.

As suggested above, in 1894, under the provisions of section 1252 {supra), the execution issued and returned unsatisfied may be deemed an exhaustion of plaintiff’s remedy as against the personal and real estate of the judgment debtor. It is clear that supplementary proceedings may be instituted after a judgment has ceased to be a lien on real estate. Under the provisions of section 2435 such proceedings may be instituted ten years, after the return of an execution unsatisfied. In a case whore the first execution was-issued at the end of five years after the rendition of the judgment, supplementary proceedings could clearly be instituted within ten years thereafter, that is, within fourteen or fifteen years after the rendition of the judgment, and when it had ceased to be a lien upon real estate.

We conclude, therefore, that the order should be affirmed, with costs and disbursements. As defendant desires to submit the question involved to the Court of Appeals, proceedings may be stayed until the decision of that court.

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

Order affirmed.


author: Mayham, P. J.:

text:
    Mary Le Bahn, as Administratrix, etc., of John Le Bahn, Deceased, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.

      Death caused by the negligence of a railroad company — failure of the deceased to-make use of methods of protection.

    In an action brought against a railroad company to recover the damages sustained by reason of the death of the plaintiff’s intestate, caused by his being run into by a railroad train, while the deceased was an employee of such company, it is. immaterial whether or not the place of his employment could or could not have been made more secure, when it appears that the company had placed in the hands of the deceased, and under his control, two effectual methods of protecting himself from injury, the use of either of which would have saved him from harm.
    Appeal by the plaintiff, Mary Le Balm, as administratrix, etc., of John Le Bahn, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Montgomery on the 25th day of October, 1893, upon the dismissal of the complaint directed by the court after a trial at the Montgomery Circuit before the court and a jury.
    This action was brought to recover the damages sustained by reason of the death of the plaintiff’s intestate, caused by his being run into by a railroad train.

      D. S. Morrel, for the appellant.

      G. P. Prescott, for the respondent.
   Mayham, P. J.:

The learned judge at the Circuit dismissed the plaintiff’s complaint on the ground that the plaintiff’s intestate was guilty of contributory negligence in not signalling the east-bound train, by which he was struck and killed, to stop, by the use of the lantern signal, as he was instructed to do in case it ivas necessary to stop an east-bound train which had passed the semaphore signal, stationed 3,000 feet west of the station.

The undisputed evidence shows that the lantern signal could be seen for about 1,400 feet west of the station, and that an approaching train from the west could be seen from the station for that distance, and that if the lantern signal had been displayed, the eastbound train could and would have been stopped before reaching the station and thus the accident would have been averted. It was clearly a part of the duty of the deceased, as well for the protection of himself as that of the passengers and other persons on westbound trains stopping at this station, either to turn the reel and thus display the danger signal at the semaphore, or, if the train going east passed the semaphore before that signal could be displayed, then to swing his lantern as soon as an approaching train from the west came in view, at as we* have seen a distance of 1,400 feet from the station, and in that way halt the approaching train.

This the deceased failed to do, although he was notified that the east-bound train, then past due, had not passed, and might at any moment arrive. Had either of these precautions been adopted the fatal train would have been brought to a standstill before reaching the place of the accident.

It is idle to speculate whether or not the ]fiace of the employment of the deceased could or could not have been made more secure for the employees of the defendant at that point.

The defendant had, it would seem, done its whole duty to the deceased by placing in his hands and under his control two effectual methods of protecting himself from injury, either of which, if applied in this case, would have saved him from harm.

It can hardly be said as matter of law that the plaintiff in this case proved tlie deceased free from contributory negligence. Nor was this one of tbe class of cases where the question of contributory negligence was involved in such doubt as to mate it a question of fact for the jury.

The rule of law in this class of cases has been so frequently adverted to, and repeated in the courts, and so thoroughly settled in the courts of last resort, in this and other States, that the citation of authorities seems unnecessary.

The rule is well summarized by the learned trial judge in dismissing the plaintiff’s complaint.

The judgment should be affirmed, with costs.

Putnam and Herrick,• JJ., concurred.

Judgment affirmed, with costs.


author: Putnam, J.:

text:
    Stephen Smith and Another, as Executors, etc., of Erastus D. Culver, Deceased, Appellants, v. The Town of Greenwich, Respondent. Action No. 1.

      Action to recovar the amount of coupons attached to a void bond issued by a town — recovery f or money received — Statute of Limitations.

    Tlie town of Greenwich issued certain bonds, purporting to be issued pursuant to the provisions of chapter 907 of the Laws of 1869, prior to the amendment thereof contained in chapter 925 of the Laws of 1871. These bonds were made payable in twenty years from their date, ihstead of thirty years, as provided in the statute authorizing their issuance.
    An action was thereafter brought against such town upon certain of the coupons . attached to certain of such bonds.

      Held, that the bonds as such were void, but that the town by which they were issued was liable for the money advanced thereon, as on an implied contract to repay the same;
    That the plaintiffs were entitled to recover, unless their claim on the coupons was barred by the Statute of Limitations ;
    That a claim existed on account of said loan to such town in favor of the holders of the bonds for the principal sum- loaned, and also a separate claim for the accrued semi-annual interest in favor of tlie holders of the coupons ;
    That as the bonds were void, and the action was brought upon the assumption that the coupons attached thereto for the semi-annual interest, payable to bearer, were valid, the transfer of such coupons to the testator of the plaintiffs in such action gave a right of action, but that, the bonds being void, the coupons could not be deemed to be sealed instruments, and hence that such action, if brought after the expiration of six years, was barred by the statute.

      Semble, that if the bonds had been valid the coupons detached therefrom would have been deemed specialties, and in an action brought thereon a twenty-year limitation would apply ;
    Appeal by tlie. plaintiffs, Stephen Smith and another, as executors, etc., of Erastus I). Culver, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Saratoga on the 29th day of March, 1894, upon the decision of the court rendered after a trial at the Montgomery Special Term dismissing the plaintiffs’ complaint upon the merits, with notice of an intention to bring up for review on such appeal an order entered in said cleric’s office on the 16th day of February, 1894, overruling the plaintiffs’ demurrer to the separate defenses stated in the eighth and ninth paragraphs of the defendant’s amended 'answer, and directing judgment.
    The action was brought on the 30th day of December, 1892.

      Sidney Smith, for the appellants.

      Charles G. Van Kiri', for the respondent.
   Putnam, J.:

The coupons described in the complaint were detached from bonds issued by the town of Greenwich, Washington county, N. Y., between April 1 and May 12, IS71, pursuant to the provisions of chapter 907 of the Laws of 1869, and prior to the amendment thereof contained in chapter 925 of the Laws of 1S71. The bonds from which said coupons were taken were made payable in twenty years from their date, instead of thirty years, as provided in the statute.

Under the decision of the Court of Appeals in Hoag v. The Town of Greenwich (133 N. Y. 152), the said bonds, as such, were void as “ bonds, as vouchers or securities,” but the agents of the town who issued them had the power to borrow the money, which, in good faith, was advanced thereon, and although they issued unauthorized securities, yet, the town, in the transaction, became liable on account of the money advanced on the faith of the bonds on an implied contract to repay the loan at the time when by the statute the bond should have been made payable. In the case cited Judge FiNCii uses tlie following language: I think, therefore, that we should hold that the town of Greenwich is indebted to the plaintiff in the sum * * * for which tlie void bonds were executed, payable at tlie end of thirty years from the date of the loan, with interest thereon, payable semi-annually, and should recover judgment for so much of the interest unpaid and in arrears as was due and payable at the commencement of the action.”

It follows, therefore, that the bonds from which plaintiffs’ coupons were taken are not valid securities, but the town being liable for the money advanced thereon on an implied contract to repay the same, plaintiffs, under the doctrine established in the case above cited, were entitled to recover on said coupons unless their claim was barred by the Statute of Limitations.

If the town bonds in question had been valid securities the coupons detached therefrom probably would have been deemed specialties, like the securities from which they were taken, and in an action thereon a twenty-year limitation would have applied. It is said by Judge Eaui, in Bailey v. County of Buchanan (115 N. Y. 291-301): “ It is true that past-due coupons, payable to bearer when detached from the bonds, are for many purposes independent, separate instruments. They may be negotiated and may be sued upon by the holder without the production of the bonds. 'x' * * But the coupons, nevertheless, always have some relation to the bonds. Their force and effect and character may be determined by reference to the bonds. They are secured by the same mortgage, and, although unsealed, are specialties like the bonds and are governed by the same Statute of Limitations which is applicable to the bonds.” (See, also, City of Lexington v. Butler, 14 Wall. 282-292; Williamsburgh Savings Bank v. Town of Solon, 136 N. Y. 481; McClelland v. Norfolk Southern R. R. Co., 110 id. 469.)

But in the case under consideration there were in fact no bonds. The instruments, so called, were void. The indebtedness was not secured by any writing, but was merely an implied obligation arising on account of money paid and advanced.

While the bonds, however, were void, plaintiffs brought this action upon the assumption that the coupons for semi-annual interest payable to bearer attached thereto were valid, and that the transfer of those mentioned in the complaint to their testator gave them a right of action thereon. Assuming that this assumption is correct, it then appears that the defendant was indebted to the holders of the void bonds for the amount thereof payable at the end of thirty years from their date, with semi-annual interest, and also to the plaintiffs for interest on said indebtedness accruing in 1874, which accrued interest had been transferred to the plaintiffs’ testator by a sale to him of the coupons described in the complaint.

Thereafter said plaintiffs or their testator could at any time have maintained an action on' said coupons. A satisfaction or payment of the principal debt would not have extinguished such right. A claim existed on account of said loan to the town of Greenwich in favor of the holders of the bonds for the principal sum loaned, and a separate demand for the accrued semi-annual interest to the holders of the coupons. (The City v. Lamson, 9 Wall. 477; Bailey v. County of Buchanan, 115 N. Y. 297-301.)

It is alleged in the answers, to which demurrers were interposed, that plaintiffs’ cause of action did not accrue within six or ten years prior to the commencement of the suit. The allegations contained in said answers may be deemed an averment that the coupons were transferred to plaintiffs’ testator over six or ten years prior to the commencement of the action. When so transferred a cause of action at once accrued on the coupons in favor of the deceased. It was a cause of action on a demand separate from that, of the persons to whom the town was indebted for the principal sum loaned. The cause of action so transferred by the sale of the coupons was not one on a sealed instrument, because the loan wras not secured by a valid or legal bond. Plaintiffs’ claim on the coupons was like one on an unsealed note. The action thereon, we think, was barred after the expiration of six years.

The learned counsel for the appellants apparently assumes that the bonds in question, which have been held by the Court of Appeals void as securities, should be deemed sealed instruments in this action, with the coupons attached thereto, as far as necessary to give such coupons the character of specialties. As we understand the decision of the Court of Appeals in Hoag v. Town of Greenwich (supra), the bonds issued prior to May 12, 1871, by the town of Greenwich were absolutely void. They are not to be regarded as sealed instruments or securities for any purpose. Hence the coupons transferred to plaintiff’s testator were not specialties. They were simply written instruments providing for the payment of semiannual interest upon a loan to the town, for which no valid evidence of debt had ever been executed. If the sum loaned had been payable by the terms of the statute in one year, instead of thirty, an action to recover the principal sum would have been barred by the Statute of Limitations after the lapse of seven years. We conclude that the principal sum loaned to the town of Greenwich, not being secured by any legal bonds, the coupons for the semi-annual interest thereon transferred to deceased cannot be deemed sealed instruments, and hence the six-year limitation applies.

The judgment should be affirmed, with costs.

MayiiaM, P. J., and Heebicis:, J., concurred.

Judgment affirmed, with costs.


text:
    In the Matter of the Application of Caroline Peek, Respondent, for an Order Directing The Board of Supervisors of Schenectady County, Appellant, to Refund Taxes Alleged to have been Illegally Assessed and Collected of said Petitioner.

      Tax —when the County Court may^ direct its return — assessors, when presumed to ha/oe done their duty ■ — ■ adjudication of the assessors coivilv sire until reversed — real estate purchased in whole or in pcvrt. with pension money— hoto far exempt from tax.

    It is only when a tax is illegally or improperly assessed or levied that the County Court can order the supervisors to return the same.
    A tax was assessed and collected by public officers charged with the performance of that public duty, who had jurisdiction of the person and subject-matter bjr reason of the fact that the residence of the person whose property was assessed, and the location of such property, were within the territorial jurisdiction of the assessors who made the assessment and of the supervisors who levied the tax.

      Held, that the presumption of law was that they did their duty, and that the tax was legally assessed and was collectible, and that the burden of proving its illegality was cast upon the person disputing the same.
    Beal estate purchased by the widow of a deceased soldier with.pension money received from the United States government is exempt from taxation, and where a portion of the real estate purchased by such person has been paid for with pension money the part so purchased is exempt from taxation.

      It is the duty of assessors to ascertain and assess the value of the real property of a person not exempt from taxation, and, if they have jurisdiction of the party and the subject-matter, their judgment on that subject, fixing the value of such property for the purpose of taxation, is of a judicial character, amounting to a valid adjudication, and, until reversed or set aside upon a direct proceeding l'or that purpose, is conclusive, and cannot be assailed in a collateral proceeding.
    When part of a taxpayer’s property is exempt by law from taxation, and a portion of the same is liable tobe taxed, the assessors must act judicially in determining the portion to be assessed and taxed; and the fact that a portion of the purchase price of such property was paid out of pension money does not give immunity from taxation to the whole property.
    That if the amount of the pension money paid as a part of the consideration therefor covered the full value of the property and left no margin of value; beyond that amount, the whole property would be exempt from taxation.
    Appeal by the defendant, The Board of Supervisors of Schenectady County, from an order of the County Court of Schenectady county, entered in the office of the clerk of the county of Schenectady on the 6th day of March, 1894, directing the said defendant to refund to Caroline Peek the amount of certain taxes paid by her.

      Alonzo P. Strong, for the appellant, The Board of Supervisors.

      A. M. Vedder, for the respondent, petitioner.
   Mayham, P. J.:

The petitioner and respondent in these proceedings received from the United States government, as the widow of' a deceased soldier,. $2,700 pension money, and thereafter purchased a house and lot in the city of Schenectady, agreeing to pay therefor the sum of $1,450, on which she paid $1,000 of the pension money, and gave a purchase-money mortgage on the premises for the remaining $450 of the purchase price.

In 1891 the assessors of Schenectady assessed the premises of the petitioner at $800, on which she paid a tax of thirteen dollars and forty-four cents, and again in 1892 the assessors assessed the premises, &t $700, on which she paid a tax of eleven dollars and twenty-seven cents.

No objection w'as made before the board of assessors on grievance day to either of these assessments, and, so far as appears from the record, these taxes were paid without protest or objection by the petitioner.

On the 26tb of December, 1893, the respondent presented her petition to the County Court of Schenectady county, alleging in substance the above facts as to her purchase of the house and lot and the assessment and collection of the taxes thereon against her, and praying an order of that court directing the board of' supervisors to refund such tax to her.

The County Court thereupon granted an order requiring the supervisors to show cause before it, on the return of which the supervisors answered the allegations of the petition, and the court, after hearing the proofs of the parties, made an order directing the supervisors to refund such tax. From that order the supervisors appeal. It is insisted on this appeal that the evidence did not justify the conclusion of the County Court that this tax was illegally and improperly levied. It is only when the tax is “ illegally or improperly assessed or levied ” that the County Court can order the supervisors to return it.

The tax having been assessed and collected by public officers charged with the performance of that public duty, and such officers liaving jurisdiction of the person and subject-matter by reason of the residence of the petitioner, and the location of the property within the territorial jurisdiction of the assessors who made the assessment, and of the supervisors who levied the tax, the presumption of law is that they did their duty and that the tax was legally assessed and collected, and the burden of proving its illegality is cast upon the petitioner.

¥e think she failed in establishing that affirmative proposition. It does not seem to be denied by the appellant, and we think it must be conceded, that the petitioner is entitled to an exemption from taxation on this land to the extent of $1,000 of its value, as she had invested that amount of her pension money in its purchase. By part 1 of chapter 13, title 1, section 1 of the Revised Statutes, it is provided that: “‘All lands * * * within this State, whether owned by individuals or corporations, shall be liable to taxation, subject to the exemptions hereinafter provided.” TTnder this provision of law the assessor’s were called upon to assess only such real property as was owned by the petitioner, and could not lawfully assess property owned by her which was exempt from taxation, and their affidavit to the assessment roll can only be construed to embrace and refer to property of tlie petitioner which was not exempted by law from taxation, and applying the rule of presumption to which we have referred, in the absence of any evidence to the contrary, we must assume that they allowed the exemption, and levied their assessment upon the balance of the real property owned by the petitioner, after deducting the value of the exemption from the value of the whole of the real estate owned by her. (Hartwell v. Root, 19 Johns. 345; People v. Carpenter, 24 N. Y. 92; Leland v. Cameron, 31 id. 122; Wood v. Morehouse, 45 id. 366-375.)

It was the duty of the assessors to ascertain and assess the value of the real property of the petitioner not exempt from taxation, and having, as we have seen, jurisdiction of the party and the subject-matter, their judgment on that subject fixing the value of such property for the purpose of taxation was of a judicial character, amounting to a valid adjudication, and until reversed or set aside upon a direct proceeding for that purpose is conclusive, and cannot be assailed in a collateral proceeding.

This rule is too. well settled upon authority to require the citation of many authorities. In the somewhat recent case of The Mayor of N. Y. v. Davenport (92 N. Y. 610) this' doctrine was stated as follows: The assessors of the several towns first make out their rolls and determine the valuations. In this respect they act judicially, and any erroneous decision can only be corrected by a direct review of their proceedings whenever they have kept within their jurisdiction. If they have so acted their conclusions cannot be assailed, either by suit at law against them, or against those who take the further steps towards collection based upon their action.” And this doctrine is well buttressed by the authorities cited by Judge Finch in his opinion. It follows that when part of a taxpayer’s property is exempt by law from taxation and a portion of the same is liable to be taxed, the assessors must act judicially in determining the portion to be assessed and taxed. (Weaver v. Devendorf, 3 Den. 119, 120; Vail v. Owen et al., 19 Barb. 22; Barhyte v. Shephard, 35 N. Y. 238.)

It appears to be contended in this matter by the learned counsel for the respondent, that, as some of the pension money of the petitioner went into the purchase of this real property, that that fact gave immunity to the whole property from taxation. We cannot concur in that doctrine to the extent contended for by the counsel. It is quite true that if the $1,000 pension money paid upon this property had covered its full value, and left no margin of value beyond that amount, the whole property would have been exempt from taxation, and the petitioner would not in that event have been a taxable inhabitant of the city of Schenectady, and the assessors would have acquired no jurisdiction either of her person or property, to make an assessment against her. Rut that fact the petitioner would be required to establish by proof. None of the cases cited by the learned counsel for the respondent hold that the County Court has power under the provision of section 16 of chapter 686. of the Laws of 1892 to compel a restoration of tax based upon an assessment when the assessors had jurisdiction to make an assessment.

The only evidence of value of this real property before the County Court or this court, is that the petitioner paid $1,450 for it. Of that sum $1,000 was represented by the pension money, leaving the assessors to fix the value of the balance above the $1,000. Of that value they were made the sole and exclusive judges, in the absence of any proof before them on grievance day that their estimate was an overvaluation. No such proof was given or offered, and it follows, therefore, that the value of the petitioner’s real property liable to taxation was in 1891 $800, and in 1892 $700, and that the order of the County Court directing the supervisors to refund the tax paid upon such assessment was erroneous, and should be reversed.

PutNAM and HeebioK, JJ., concurred.

Order reversed, with ten dollars costs and printing disbursements.


author: PutNAm, J.:

text:
    James H. Manning and Another, Appellants, v. Lucie R. Cassidy and Others, Respondents.

      Order discontinuing an action— an adjudication that the plaintiff was not entitled to an injunction therein — reference to compute damages.

    The granting of an order discontinuing an action in which an injunction has been issued, where the motion therefor is opposed by the defendant, is an adjudication that the plaintiff was not entitled to the injunction, and authorizes the making of an order of reference to ascertain the damages sustained by the defendant by reason of such injunction.
    Appeal by the plaintiffs, James II. Manning and another, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 6th day of March, 1894, appointing a referee to ascertain and determine the damages sustained by the defendants by reason of the granting of an injunction against them.

      John A. Delelumty, for the appellants.

      Albert G. Tennant, for the respondents.
   PutNAm, J.:

This is an appeal from an order appointing a referee to ascertain and determine the damages sustained by defendants by reason of the temporary injunction granted on the application of the plaintiffs on the 12th day of April, 1893.

The action was brought to restrain certain of the defendants from voting at the election of the Argus Company, to declare void certain sales of the stock of the said company, and for other relief.

The plaintiffs served a notice of motion on defendants on April 12, 1893, for a temporary injunction during the pendency of the action, to be heard at a Special Term in Albany on the 25th day of April, 1893, together with a preliminary injunction granted on the 11th day of April, 1893, which enjoined defendants, as prayed for in the complaint, until the hearing and decision of said motion. It does not appear that the motion so noticed for the 25th day of April, 1893, was ever made. On obtaining said preliminary injunction order of the eleventh day of April, plaintiffs made and filed tbe usual undertaking, conditioned to pay defendants such damage, not exceeding tbe sum of $2,000, as tbey might sustain by reason of such injunction if tbe court should finally decide that the plaintiffs were not entitled thereto. Said preliminary injunction was, on July 8, 1893, on motion of defendants’ attorney and on a stipulation signed by the parties, vacated by the court.

Afterwards, on the motion of plaintiffs, the defendants objecting, the court granted an order of discontinuance -which contained the following provisions, viz.: “ It is ordered that this action be, and the same is hereby discontinued as to said defendants, upon the payment by the plaintiffs to said defendants of their taxable costs herein, such discontinuance, however, to be without prejudice to any right the said defendants may have to recover damages upon the said undertaking, or to enforce the same as provided in said undertaking, or in any legal manner, said costs to be paid within ten days after the same shall be taxed.”

In the undertaking by plaintiffs it is provided that they shall pay to the defendants enjoined such damages, not exceeding the sum of $2,000, as said defendants may sustain by reason of such injunction, if the court shall finally decide that the said plaintiffs were not entitled thereto. If the court has so decided, the order of reference from which the appeal was taken should be sustained.

It seems to be well settled that “ the granting of an order of discontinuance where the motion therefor is opposed, is an adjudication that the plaintiff was not entitled to the injunction issued in the action, so as to permit a reference to ascertain the damages sustained by the defendant by reason of such injunction.” (Amberg v. Kramer, 29 N. Y. St. Repr. 958; Wynkoop v. Van Beuren, 63 Hun, 500; Pacific Mail S. S. Co. v. Toel, 85 N. Y. 616.)

These authorities hold that an order of discontinuance entered ex parte, or when the defendant opposes, is equivalent to a determination that the plaintiff was not entitled to an injunction, and an order of reference to compute damages can be properly granted. The above cases are so similar to the one under consideration that any discussion of it is unnecessary.

The stipulation signed by the respective parties and recited in the' order of July eighth, vacating the preliminary injunction, is not contained in the case. No reason is stated, however, -and none can be given, wliy such a stipulation should interfere with defendants’ right to damages sustained prior thereto, unless the paper contained an agreement* to waive damages, and no such waiver is shown or claimed.

We think that the authorities cited by the learned counsel for the appellants do not conflict with those above referred to. The case of Palmer v. Foley (71 N. Y. 106) was an action in which the plaintiffs title to the office of chamberlain of the city of New York was involved. Under an act of the Legislature, passed during the pendency of the action, plaintiff was deposed from the said office. Thereupon leave was granted to defendant to put in a supplemental answer setting up the statute and plaintiffs removal thereunder. Thereafter, on the stipulation and consent of the defendant, and on payment of $100, an order of discontinuance was made. It will be observed that in the case under consideration the defendant objected to the discontinuance, while in Palmer v. Foley the order was entered by consent. In that case it was held that there was no judicial determination as to what were the rights of the parties in reference to the injunction at the time of the commencement of the suit, because the discontinuance was presumably in consequence of the legislative act subsequent to the granting of the injunction, and also that the order of discontinuance was granted on the written consent of the defendant with no saving of his right to damages by virtue of the undertaking. In this case defendants did not consent to the order of discontinuance, and in the order their right to damages was preserved. The distinction between the two cases is apparent.

In Johnson v. Elwood (82 N. Y. 362) the defendant died during the pendency of the action, and it was held that the action abated by his death; that the cause of action did not survive; that the court had no authority to direct a discontinuance or to make any other order than that the action be deemed abated by the death of the defendant, and hence there had been no judicial determination as to the right of the plaintiff to the injunction originally.

In Drummond v. Husson (14 N. Y. 60) an action was brought on an undertaking on an appeal which contained a covenant that if the judgment appealed from, or any part thereof, be affirmed, the appellant would pay the amount directed to be paid. The appeal was dismissed. It was lield tliat the language in the undertaking did not apply to a case of dismissal of the appeal; that the dismissal of an appeal for want of prosecution was clearly not an affirmcmee of the judgment.

We conclude, therefore, that under the authorities first above cited the order in question was properly granted, and should be affirmed, with costs.

Mayham:, P. J., concurred; HerrioK, J., not acting.

Order affirmed.


text:
    The People of the State of New York, Appellant, v. Benjamin W. Winner, Respondent.

      Indictment under a statute — when defective — when it may be quashed by the cou/rt — section 315 of the Code of Criminal Procedure applies only to a motion to dismiss an indictment on the grounds authorized by section 313 thereof.

    An indictment under a statute must state all sucli facts and circumstances as constitute the statutory offense, so as to bring the party indicted precisely within the provisions of the statute.
    A person was indicted hy the grand jury for the alleged offense of obtaining the signature of one Schoonmaker to a written instrument by false pretenses. After charging the crime, the indictment stated the acts constituting the crime, as follows, to wit:
    “The said Benjamin W. Winner, at said time and place, falsely pretended and stated to said James Schoonmaker that his real estate at Liberty, Sullivan county, New York, was free and clear of and from all liens and incumbrances by mortgage or otherwise, which said false pretense or x>retenses were made for the purpose of inducing said James Schoonmaker to sign his name and indorse, for the use and accommodation of said Benjamin W. Winner, a certain negotiable promissory note made and executed by said Benjamin W. Winner, bearing date September 8th, 1890, for the sum of six hundred dollars, payable one month after date at the Merchants and Manufacturers’ National Bank, located at Middletown, N. Y.; and, by color or aid of said false pretenses, so made as aforesaid, by the said Benjamin W. Winner, the said James Schoonmaker believing them to be true, did sign his name on the back of said note,- as an indorser thereof, by reason whereof he was made to suffer great financial loss and damage.”

      Held, that the indictment was defective, as it failed to apprise the defendant of what he should be prepared to answer on the trial, and failed to state in what regard the representations were false — whether the real'estate was incumbered by a mortgage, judgment or mechanics’ lien, or otherwise;

      That it failed to falsify by specific and distinct averments such of the pretenses as the pleader intended to prove upon the trial were falsely made;
    The provisions of section 315 of the Code of Criminal Procedure apply only to a motion to dismiss an indictment on the grounds authorized by section 313 thereof, viz., when an indictment is not indorsed and presented as prescribed by sections 268-272 of the Code of Criminal Procedure, or when a person has been permitted to be present during the session of the grand jury where the charge embraced in the indictment was under consideration.
    When an indictment is insufficient, in not alleging facts sufficient to constitute a crime, and is one under which a defendant could not be convicted, the court before which such defendant is brought for trial possesses the right at any stage of the proceedings to grant a motion to quash the indictment.
    Appeal by tbe plaintiff, The People of the State of New York, from a judgment of the Court of Sessions held in and for the county of Sullivan, rendered on the 27th day of February, 1894, dismissing the indictment against the defendant.

      John W. Lyon, for the appellant.

      T. F. Bush, for the respondent.
   Putnam, J.:

The defendant was indicted by the grand jury of Sullivan county for the alleged offense of obtaining the signature of one James Schoonmaker to a written instrument by jfalse pretenses. • After charging the crime the indictment stated the acts constituting the crime, as follows: The said Benjamin W. Winner, at said time and place, falsely pretended and stated to said James Schoonmaker that his real estate at Liberty, Sullivan county, New York, was free and clear of and from all liens and incumbrances by mortgage or otherwise, which said false pretense or pretenses were made for the purpose of inducing said James Schoonmaker to sign his name and indorse for the use and accommodation of said Benjamin W. Winner a certain negotiable promissory note, made and executed by said Benjamin W. Winner, bearing date September 8th, 1890, for the sum of six hundred dollars, payable one month after date at the Merchants and Manufacturers’ National Bank, located at Middletown, N. Y., and by color or aid of said false pretenses, so made as aforesaid, by the said Benjamin W. Winner, the said James Schoonmaker believing them to be true, did sign his name on the back of said note, as an indorser thereof, by reason whereof he was made to suffer great financial loss and damage.”

The case came on for trial at the Court of Sessions of said county. After the jury were impanelled and sworn, and, presumably, after the defendant had plead, a motion to quash the indictment on the ground that it did not allege facts sufficient to constitute a crime was entertained by the court and granted, and from the judgment of dismissal of the indictment the People appeal.

It is plain that the indictment in question failed to apprise the defendant of what he should be prepared to answer on the trial. It recites that he falsely pretended and stated that his real estate was free and clear of incumbrances. But it does not state in what regard such representations were false — whether the real estate was incumbered by a mortgage or judgment or mechanic’s lien or otherwise. Had it alleged that the premises in question were incumbered by a mortgage, describing it, the defendant on the trial perhaps could have shown that the mortgage was satisfied. If the indictment had stated that the incumbrance was a judgment, defendant might have been able to show that the judgment had been reversed. If the incumbrance had been stated as a mechanic’s lien defendant possibly could have shown that such lien was invalid.

As the indictment was drawn, however, the respondent was compelled to enter into the trial, without being apprised of the real charge upon which the People intended to rely. We think the indictment should have stated with reasonable certainty the representations actually made, the falsity thereof, and the facts intended to be relied upon to establish such falsity.

It has been held that an indictment upon a statute must state all such facts and circumstances as constitute the statute offense so as to bring the party indicted precisely within the provisions of the statute.” (The People v. Allen, 5 Den. 76-79; The People ex rel. Benjamin K. Phelps v. The Court of Oyer & Terminer, 83 N. Y. 438-448.)

In the opinion in The People v. Stone (9 Wend. 182-191) the following language is used : It is not necessary to negative all the pretenses set forth in the indictment. Those relied upon by the pleader, and which he expects to prove were false, must be specifically and directly negatived. It is not sufficient to charge that the defendant falsely pretended, etc., setting forth the means used, and then to aver that by the means of such false pretenses he obtained the property; but the pleader must go on as in an assignment of perju/ry, and falsify by specific anid distinct averments such of the pretenses as he intends to prove upon the triad were used and were false. (3 Chitty’s Cr. Law, 762, 999; 2 id. 163, 311; 2 Maulé & Selw. 379.)

The object of this specification is to give notice to the defendant of what he is to come prepared to answer.”

The same doctrine was stated in The People v. Samuel Miller (2 Park. Cr. Rep. 197), and in Barber v. The People (17 Hun, 366).

It will be seen that under the doctrine laid down in the above cases the indictment under consideration was clearly defective and insufficient. It failed to falsify by specific and distinct averments such of-the pretenses as the pleader intended to prove on the trial had been made and were false.

The doctrine settled by the decisions above referred to, and many other similar cases, has not been abrogated by the Code of Criminal Procedure. That act requires “a plain and concise statement of the acts constituting the crime.” In People v. Dumar (106 N. Y. 502-512) it is held that “ the general principle of pleading has not been substantially changed. Under either system an offense consists of certain acts done or omitted under certain circumstances, and under neither is any indictment sufficient which does not accurately and. clearly allege all the ingredients of which the offense is composed, so as to bring the accused within the true meaning and intent of the statute defining the offense. Under the forme]’ this end was secured by rules formulated and applied by the courts through long-series ' of decisions; under the latter it is made imperative by the provisions of the statute.” To the same effect, see, also, People v. Albow (140 N. Y. 130-134.)

Under the above authorities it does not require discussion to show that the indictment in question was insufficient, and we conclude, therefore, that the court below did not err in so holding.

But the appellant insists that it was error for the court below to grant the motion to quash the indictment after the defendant had plead; and after the case had come on for trial before the jury. That the only proper course for defendant, at that time, was to wait until the evidence had been submitted and then move for a dismissal. And the appellant cites section 315 of the Code of Criminal Procedure. That section, we think, must be deemed to apply to a motion to dismiss on the grounds authorized by section 313. Tlia' is, when an indictment is not indorsed and presented as prescribed by sections 268-272 of the said Code ; or when a person has bee t permitted to'be present during the session of the grand jury where the charge embraced in the indictment was under consideration.

Certainly where an indictment is insufficient-— in not alleging facts sufficient to constitute a crime, and under which a defendant could not be convicted, the court before whom such defendant is brought for trial should possess the right, at any stage of the proceedings, to grant a motion to quash it. Nor can the People be injured by such a disposition of the case.

Ye think a motion to quash or set aside an indictment, upon a ground which would be fatal to a verdict, may be made at any time. The court should not be compelled to spend time in a trial which must be futile. (See Abb. Tr. Pr. Crim. Causes, § 51; People of the State of New York v. Davis, 56 N. Y. 95-100; People v. Judson, 11 Daly, 1; Code Crim. Proc. § 331.)

We, therefore, conclude that the judgment should be affirmed.

Mayiiam, P. J., and Herrick, J., concurred.

Judgment affirmed.


author: Herrick, J.:

text:
    Martin Grampp, Respondent, v. John Watts De Peyster, Appellant.

      Oral agreement to pay the debt of another, void under the Statute of Frauds— enforced where the Statxite of Frauds is not pleaded, as a defense and no objection is taken on the trial.

    In an action brought to recover the value of extra work rendered in the erection and decoration of a building, where the evidence shows a promise or agreement on the part of the defendant to pay the plaintiff for certain work which he was doing, for which work the defendant was not primarily liable to pay, a judgment in favor of the plaintiff must be sustained, although such promise to pay was not in writing, where the defense of the Statute of Frauds was not raised ■ by answer, and the evidence establishing the parol contract of the defendant to pay the debt of another was not objected to upon the trial.

      Appeal by the defendant, John Watts De Peyster, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Columbia on the 3d day of March, 1894, upon the report of a referee.

      C. P. Gollier, for the appellant.

      A. Frank B. Chace, for the respondent.
   Herrick, J.:

The referee has found that during the year 1892 the plaintiff, by himself, his agents and employees, did extra work upon a church that was being erected at Madalin, N. Y., cleaning, painting, etc., amounting in value for the labor and material so furnished to the sum of $290.60 ; “that such extra work was done at the request and under the direction of the defendant, and under and subsequent to the promise and agreement of the defendant to pay for the same.”

Of course, if such findings of fact are correct, the judgment recovered in this case by the plaintiff necessarily follows; but the defendant and appellant contends that such findings of fact, are not warranted by the evidence.

The defendant contends that the evidence shows that the plaintiff, in truth and fact, was employed by another, or others than the defendant, and that the requests and promises made by him are within the Statute of Frauds, being promises to pay for the debt, default or miscarriage of another, and not being in writing are void.

It seems to me that a discussion of the evidence in this case to determine whether there was an original contract of hiring between the plaintiff and defendant is unnecessary, because I think it must be conceded that, whatever view is taken of the evidence, it establishes one of two things, either an original hiring between the plaintiff and defendant, or a promise or agreement on the part of the defendant to pay the plaintiff for woi’k that he was doing, for which work the defendant was not primarily liable.

Whichever conclusion we come to, the judgment must be sustained.

If we arrive at the conclusion that it was an agreement to pay the debt of another, then the defense of the Statute of Frauds, asserted by the defendant, is not available to him now, because he did not raise it in his answer, and the evidence establishing such parol contract to pay the debt of another was not objected to by him upon the trial. (Crane v. Powell, 139 N. Y. 379.)

The judgment should be affirmed, with costs.

Mayham, P. J., and Putnam, J., concurred.

Judgment affirmed, with costs.


text:
    Annie Ives, Appellant, v. James Ives, Respondent.

      Action of divoi'ce — order of reference to a referee chosen by the pm'ties — modified, by changing the referee ■ — force of the General Buies of Practice — relief granted under “ other further or different rules or order” — agreement of an attorney conclusive on his client.

    An order of reference made in an action brought to obtain a divorce, which designates as referee a person who is agreed upon by the counsel for the respective parties, is irregular, and should, upon motion, be modified by designating another referee.
    The spirit and intention of section 1012 of the Code of Civil Procedure is that the court, when a reference of an action brought for a divorce lias been already consented to, must name a referee of its own motion and without the consent or agreement, as to the person to be named, of the counsel or parties.
    In an action brought to secure a divorce, the parties thereto consented in open court to a reference, not to any particular person, but simply that the case should be referred, the plaintiff agreeing to it as a condition of her not at once proceeding to trial. Thereafter, by a stipulation entered into between the parties, to which the court acceded, a certain person was named as referee.

      Held, that the plaintiff was not entitled to have the whole order vacated because that portion of the order, designating the particular person before whom the reference was to be tried, was improperly made.
    Where amotion is made to vacate and set aside an order of reference, and “for such other, further or different rules or order as the court may deem proper,” upon the hearing thereof it is proper to modify the order previously granted and correct any error therein.
    The General Rules of Practice have the same force and effect that statutes have, and the General Term of the Supreme Court has no more right to disregard one than the other.
    The court can only deal with parties to actions before it [when they are represented by attorneys] through their attorneys ; the agreements and stipulations of such attorneys are the agreements and stipulations of the parties, and where an attorney for a party lias entered into an agreement, and the court has acted upon it, it is too late for the party to repudiate the authority of the attorney after reaping the benefit of his action.

      Appeal by tbe plaintiff, Annie Ives, from an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of St. Lawrence on the 14th day of February, 1894, denying the plaintiff’s motion to set aside the order of reference granted in the action.

      John Ooiiboy, for the appellant.

      Daniel May one for the respondent.
   Herrick, J.:

The casé of the appellant upon this appeal is one that does not commend itself to the favorable consideration of the court. The action is one for divorce on the ground of adultery. "When the case was upon the Circuit calendar for trial a motion was made on behalf of the plaintiff to put it over the term, on account of the illness of the plaintiff, and, in deciding the motion for a postponement, the court announced that the case could be set down for trial the following-week of the term, or, if the plaintiff preferred, it might go to the Special Term for trial, or to a referee; thereupon the counsel for the respective parties agreed to a reference, and presented to the court an order containing the name of the person who liad been agreed upon by them as the referee in the case, and the court directed the entry of the order. Thereafter, and after the adjournment of the Circuit Court, a motion was made on behalf of the plaintiff to vacate and set aside such order of reference, as having been improvidently made, and being in violation of the rules and practice of the court, the plaintiff stating in the moving affidavit, That she did not consent or know that a reference was to bo had or ordered in this case, until after the return of her said attorney.” That she then informed her attorney that she was dissatisfied with the order of reference; and that she at no time consented to a reference.

The Special Term denied the motion to vacate such reference, whereupon the plaintiff appeals to this court.

In so far as the order appealed from designates a person as referee who was agreed upon by counsel for the respective parties, I think it was irregular and should have been modified, and the court at Special Term should have designated another referee.

Section 1012 of the Code of Civil Procedure, after referring to several classes of actions, amongst them actions for divorce, says : In a case specified in this section, where the parties consent to a reference, the court maj', in its discretion, grant or refuse a reference ; but where a reference is granted, the court must designate the referee.”

It seems to me that the spirit and -intention of the section that I have quoted is, that the court, in case a reference of the case has been already consented to, must of its own motion, and without consent or agreement thereto by the counsel or parties as to the person, name the referee.

This construction of the section is strengthened when section 1012 is read in connection with section 1011, which provides that all cases except those specified in section 1012, must be referred upon the consent of the parties, manifested by a written stipulation signed by the attorneys for the parties and filed with the clerk, and that Where the stipulation does not name the referee, he may be designated by the court, on motion of either party. Where the stipulation names the referee, the clerk must enter an order, of course, referring the issue or issues for trial to that person only.” That is, the section provides that in all cases except those mentioned in section 1012, the parties can absolutely control the selection of the person before whom their case shall be tried. It is in sharp contrast to section 1012; the provisions of each emphasize and bring out distinctly the spirit and intention of the other.

Section 1012 is supplemented and made certain by rule T3 of the rules of practice of the Supreme Court, which in the case of divorce provides that “ the court shall, in no case, order the reference to the referee nominated by either party nor to the referee agreed upon by the parties.”

The reason for the adoption of that portion of section 1012 of the Code and of rule 13, that I have cited, was to prevent collusion between parties in the procuring of divorces. It is said in this case that there is a genuine contest, evidenced by the nature of the issues, and the behavior of the parties and their counsel, and that, therefore, the reason for the adoption of the rule in question does not apply to this case, and that consequently there is no occasion for its enforcement.

I do not think that such reasoning can justify the violation of a very plain rule of practice; to permit it would be to throw the •burden upon the court in every case coming before it where an application is made for a reference, and the referee named by the parties, of determining whether there is a bona fide and genuine contest between the parties.

The court will have to determine whether the hostility exhibited is real or simulated, and in a large majority of the cases presented to the court it has no means of determining any such questions.

As heretofore stated, the selection of the referee was in violation of .the spirit, if not of the letter, of section 1012 of the Code, and in plain violation of the spirit and letter of rule 73.

The case of Fullmer v. Fullmer (6 Wkly. Dig. 42) I do not think in point in this case; the questions there raised came up upon the coming in of the referee’s report and the application for a judgment thereon ; the court said : The reference was not void for a selection of a referee contrary to the rules. The failure of the plaintiff to attend was a matter in regard to which he must seek relief by application to the discretion of the court or of the referee. These affidavits should have been presented to the court by way of a special motion, not on a hearing upon the merits, upon the application for judgment.”

That is a plain recognition that a reference so made is a violation of the rule, and it simply decides that it is too late to raise such questions after the case has been tried by the referee agreed upon, and indicates that an application for relief from such an order should be made before trial, as has been done here in this case.

In addition thereto it may be stated that at the time of this decision (1878) that portion of section 1012 of the Code, before alluded to, had not been enacted.

We are not at liberty to disregard the rules of the court; they have the same force and effect that the statutes have, and we have no more right to disregard them than we have to disregard the statutes of the State. (Matter of Moore, 108 N. Y. 280.)

I think, therefore, that the court was in error in designating the person agreed upon by the parties to the action as the referee therein.

The appellant’s contention, however, goes farther than simply vacating the order of reference as to the person designated as referee ; she insists that the referee being improperly named, the whole order of reference falls through, citing the case of Preston v. Morrow (66 N. Y. 452), which says that: By consenting to refer to a particular referee, named in the consent and in the order, the parties did not Avaive the right to a trial either by the court or by a jury, if for any reason the reference agreed upon should fall through. Upon the death, removal or refusal of the referee to act, the actions were again in the court for trial as prescribed by law, as if no reference had been consented to.”

That case was de.cided under the old Code of Procedure, which differed materially in respect to the control of the court over references from the present Code.

But in addition to that there are features in this case that distinguish it from the case of Preston v. Morrow; in this case there was a consent in open court to a reference, not to any particular person, but that the case should be referred ; the plaintiff agreed to it as a condition of not then and there going to trial.

The naming of a particular person as referee Avas an after matter; and because a stipulation Avas entered into which the court .acceded to, and which was in violation of the rules of practice and the Code, the plaintiff cannot iioav in good faith, after she has received the benefit derived from the stipulation to refer the case for trial, ask to have the Avhole order vacated because that portion of the order designating the jmrticular person before whom the reference Avas to be tried, was improperly made.

Further than that, the plaintiff’s motion is capable of division; her motion Avas not simply for an order Aracating and setting aside the order of reference, but was for such other, further or different rules or order as the court may deem proper.” Under such a prayer for relief the court can modify the order previously granted, and correct the error into which it had been led by the plaintiff’s counsel.

The plaintiff, in her affidavit, states that she never consented to a reference. The court can only deal Avith parties to actions before it, when they are represented by attorneys, through their attorneys; the agreements and stipulations of such attorneys are the agreements and stipulations of the parties; and where an attorney for a party has entered into an agreement, and the court has acted upon it, it is too late for the party to repudiate the authority of the attorney after reaping the benefit of his action. The plaintiif’s attorney here elected to have the case tried by a referee as a condition of postponing the trial; the trial of the case was accordingly postponed she must be held to his agreement in open court to try the case as a reference, the referee to be designated according to law and the rules and practice of this court.

The order appealed from should, therefore,'be modified, find the original order of reference also modified, by striking therefrom the' name of the person therein designated as referee, with ten dollars cost of sirch motion, to be paid by the plaintiff, without costs of this-appeal to either party.

Either party may apply, upon notice, to a Special Term of the court for the appointment of a referee to hear and determine this action, pursuant to the consent of the parties entered into in open court that this case should be tried before a referee.

Mayham, P. J., and Putnam, J., concurred.

Order appealed from modified, as per opinion, without costs.