author: Rolle rr, J.:

text:
    Kate Ryan, as Administratrix, etc., of William Ryan, Deceased, Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York, Appellant.

      Municipal corporation — aqueduct commissioners of New York, an independent body — request for the resignation of an employee, when equivalent to a discharge — the employees right to salary depends upon a certificate of the commissioners.

    The employees of tlie aqueduct commissioners of the city of New York, a body created by chapter 490 of the Laws of 1888, an act to supply the city of New York with an increased supply of water, are not the employees of the city, but of an independent body.
    Where the commissioners, because of charges preferred against an inspector of mason work to the effect that he was incompetent by reason of intoxication and insubordination, demand his resignation, such a demand is tantamount to a discharge, and its effect is not altered or impaired by the fact that the commissioners at a stated meeting, held about two years later, formally dismissed the inspector from their service.

      Semble, that the compensation of an employee of the aqueduct commissioners can be paid by the comptroller of the city of New York only upon their certificate, and that a recovery against the city is not justified where it does not appear that the claimant ever received or asked for a certificate as to the work done by him.
    Appeal by the defendant, The Mayor, Aldermen and Commonalty of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of May, 1895, upton the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 24th day of June, 1895, denying the defendant’s mojfcion for a new trial made upon the minutes.

      Jwmes T. Malone, for the appellant.

      L. E. Warren, for the respondent.
   Rolle rr, J.:

This action was-begun July 15, 1891, to recover the arrears of salary alleged to be due the plaintiff’s intestate from tlie defendant. By chapter 490, Laws of 1883 (amended by chapters 337, Laws of 1886, 196, Laws of 1887, and 584, Laws of 1888), an act to supply tbe city of New York with an increased supply of water, it was provided that certain officers of the city and certain persons named in tbe act should be “ aqueduct commissioners ” and empowered to carry the provisions of tbe act into effect.

By the 80th section of tbe act it is provided: “ The work and materials called for by said contract shall be done and furnished under tbe direction and supervision, and subject to tbe inspection of tbe said aqueduct commissioners, their engineers, supervisors and inspectors, * * *.”

.By the 31st section it is provided: “ Tbe salaries and compensation of tbe persons employed, as provided for in this act, to prepare tbe necessary surveys, plans and estimates, and to direct, supervise and inspect tbe work required to be done under the provisions of this act, * * * shall be paid by tbe comptroller of the city of New York, on the certification of tbe said aqueduct commissioners or of such person or persons as may be designated by them.”

By tbe 40th section it is provided : “ Sec. 40. No person shall be appointed by tbe said aqueduct commissioners as inspector or superintendent, who shall not be certified by at least three members of tbe commission to be competent and fit for tlie duties of tbe position for which be is an applicant and experienced in tbe subject-matter of tbe employment.”

These are tbe only provisions in tbe act relating to tbe employment and compensation of tbe employees of the aqueduct commissioners. June 8, 1887, tbe plaintiff’s intestate, by a resolution of tbe aqueduct commissioners, was employed or appointed as an “ inspector of masonry,” and June 10, 1887, be filed an oath of office with tbe aqueduct commissioners, and July 21, 1887, be entered upon his duties. Bor July be was paid for eleven days’ service. In August be was paid for twenty-eight days, in September for a month’s service, and in October be was paid for service up to tbe twenty-fourth, at tbe rate of $120 per month. Tbe plaintiff, for tbe purpose of establishing her cause of action, introduced a letter of tbe division engineer, dated October 25, 1887, addressed to tbe chief engineer, in which it was stated that on the previous morning, October 24, 1887, William Ryan reported for duty about ten a. m. considerably intoxicated; that he was reprimanded and told that lie was to be suspended, and that Ryan replied that if he was going to do it he had better do it at once, as he wanted to go to the city for a week. It was also stated in this letter that Ryan was otherwise insubordinate, and that he had caused considerable-trouble while on duty when under the influence of liquor. The letter further stated that he was of no use on the work. Upon the receipt of this letter, the chief engineer asked that the resignation of Ryan be demanded. At a meeting of the aqueduct commissioners, held October 26,1887, a resolution was adopted directing the chief engineer to ask for the resignation of Ryan. Upon this resolution the 'chief engineer, on the 27th of October, 1887, directed the division engineer to require that “the resignation of Inspector William Ryan be demanded forthwith.” On the next day the division engineer delivered to William Ryan a letter referring to the action of the commissioners on the twenty-sixth of October, which concluded as follows: “ I hereby call upon you for your resignation forthwith.” It does not appear that after October 21, 1887, William Ryan ever performed any service as an inspector of-masonry, or that he ever offered to perform such service, but it does appear that on many occasions subsequent to the date mentioned he applied to be “ reinstated ” as an inspector of masonry, which was never complied with. Neither does it appear that William Ryan ever received or asked for a certificate for work done, as provided- by the portion of section 31 above quoted. The employees of the aqueduct commissioners are not the employees of the city, but of an independent body.

December 19,1889, the following letter was written and delivered to Ryan:

“New York, Deo. 19, 1889.

“William Ryan, Esq., One Hundred and Tenth Street, and Boulevard:

“Dear Sir. — -At a stated meeting of the aqueduct commissioners, held on the 18th instant, it appearing that your services would be no longer required as an inspector of masonry, you are dismissed from the service of said commissioners.

“ Respectfully,

“JOHN C. SHEEHAN,

“Secretary.”

Upon this evidence the learned trial judge submitted to the jury the question whether the commissioners and Ryan understood that the action taken amounted to a discharge. The jury decided this question in favor of the plaintiff, and rendered a verdict for $4,126.20, which was based on the theory that Ryan was entitled to compensation at the rate of $120 per month from October 24, 18S7, to December 19, 1889, the date of his formal discharge. Assuming, as we must, that Ryan was an “ officer ” (Emmitt v. The Mayor, 128 N. Y. 117; Meyers v. The Mayor, 69 Hun, 291), we are of the opinion that this verdict is contrary to the evidence. From the nature of the charge preferred against Ryan, that he was incompetent by reason of intoxication and insubordination, it must have been understood by him as well as by the commissioners that the demand for his resignation was tantamount to a discharge. From this time to the date of the formal discharge, which was evidently induced by certain decisions which had been made, Ryan performed no service for the commissioners, and, so far as it appears, he did not report at the work as ready and willing to serve in the capacity in which he had previously been employed. Under the act, inspectors of masonry do not seem to be entitled to any greater consideration than laborers, or any of the other employees of the commissioners. There is no period of service fixed by the statute, and their employment is for such time as the commissioners may deem wise. There was no conflict in the evidence, and we think the jury erred in the inference which it drew therefrom, and that the trial court erred in denying the defendant’s motion for a new trial made on the minutes upon the ground that the verdict was contrary to the evidence.

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

Yan Brunt, P. J., and Parker, J., concurred.

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


source: Caselaw Access Project

author: Follett, J.: Yan Brunt, P. J.; and Parker, J.:

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Caroline Kraft, Appellant.

      Evidence — abortion — weight to be given to dying declarations.

    Dying declarations are not entitled to as much, weight as should be given to the highest species of testimony, nor to as great weight as should be given to the same statements testified to by the declarant when in health, and subjected to a cross-examination before the trial court.
    The person receiving the dying declaration seldom has sufficient knowledge of' the circumstances of the alleged offense to conduct a proper cross-examination, and the situation of the dying person usually prevents a searching inquiry; nolis it the experience of mankind that the apprehension of immediate death, from which there is no hope of escape, is always sufficient to induce persons so situated to speak the truth.
    Appeal by the defendant, Caroline Kraft, from a judgment of conviction of the crime of manslaughter in the first degree, rendered by the Court of General Sessions of the Peace in and for the city and county of New York on the 30th day of April, 1895, upon the verdict of a jury.

      William F. JTown, for the appellant.

      John D. Jaindmy, for the respondent.
   Follett, J.:

The indictment charges that the defendant, on January 14, 1893,. by the use of an instrument called a catheter, attempted to procure the miscarriage of Bertha Kern, who was then pregnant, and that by means thereof she died. The evidence upon which the defendant was convicted consisted of the dying declaration of Bertha Kern, which was made January 28, 1893, to Michael J. B. Messemer, a coroner, and was reduced to writing and signed by the-decedent. "

Hearsay evidence is evidence given as to a statement made by a person not called as a witness which is received in evidence on the trial, to -which class dying declarations belong. Declarations made in apprehension of death by a sick or wounded person, in respect to-the cause of his condition, are admissible in trials for murder or manslaughter when the cause of the declarant’s death is a fact in issue.. It is unnecessary to state the reasons for this rule which has so long-prevailed. Its history is given by Mr. Justice Stephen at page 446 in the first volume of his History of the Criminal Law of England.

Whether the declarations were made in apprehension of death and after the declarant had lost all hope of recovery is to be determined bythe judge, and the learned recorder rightly determined this question and properly received the declaration in evidence. In instructing the jury as to the weight which should be given to it, he said : “ So that I charge you, gentlemen, that this testimony which has been introduced relative to the dying declaration of this girl is competent testimony and proper for you to consider, and it is your duty to take it into consideration, because it is evidence for you, and it is given all the sanction of evidence which the law can give to evidence.” To this instruction the defendant’s counsel took an exception, and it is now urged that it was error for the court to instruct the jury that “ it (the dying declaration) is given all the sanction of evidence which the law can give to evidence.”

The highest species of testimony is that given by an intelligent and wholly disinterested witness who observed under favorable circumstances the facts testified to. The recorder by his instruction declared that a dying declaration is given all the sanction or weight which the law can give to evidence. This was more than saying to the jury that the declaration was entitled to the same weight as if the same facts had been testified to by the declarant under an examination and cross-examination before the jury. One of the principal means of testing the credibility of testimony is the right to cross-examine a witness and develop every fact legitimately bearing upon the statement. When a dying declaration is read in evidence there is no opportunity to cross-examine the declarant, and no opportunity for tbe jury to see the witness and determine in respect to his intelligence and fairness. So far as we know, the question as to the weight to be given to such evidence has been considered in but one reported case in this State. In People v. Knapp (1 Edm. S. C. 179) Mr. Justice EdSionds instructed the jury as follows: “ And though that statement (the dying declaration) had been made with all the solemnity of a consciousness of approaching death, and-, therefore, entitled to the same weight as her testimony would have been if given personally before them, yet it was not entitled to any more, and was to be weighed and tested as to its credibility by all the other circumstances of the case.” In that case the defendant was acquitted and the instruction! was not reviewed.

The question as to the weight of such declarations has been discussed by many text writers, and all agree that it is not entitled to the same weight as though the declarant had stated the same facts on the trial, and an opportunity had been given to cross-examine and •observe the demeanor of the witness. (3 Russ. Cr. [5th ed.] 361, 362 ; 1 Taylor Ev. [6th ed.] 646, § 652 ; Rose. Or. Ev. [9th ed.] 37; Field’s Law of Ev., British India [4th ed.], Calcutta, 157 et seq.; Best Ev. [5th ed.] 637; Whart. Horn. [2d ed.] § 742; Whart. Or. Ev. [8th ed.] § 276 ; 1 Greenl. Ev. [13th ed.] § 162; 1 Phill. Ev. [Edwards’ ed.] 298; 2 Potli. Ob. [3d Am. ed.] 250.)

The dangers of implicitly relying on dying declarations are ■clearly pointed out by Mr. Justice Appleton in his learned work on Evidence, at page 202 et seq.

But we are not left wholly to the authority of text writers. The ■question has been considered in three of the States of this Union, where it was held that the same weight should not be given to a ■dying declaration as would be given to the same statements testified to in the presence of the jury. (State v. Green, 13 Mo. 382; McCannon v. State, 51 id. 160; State v. Vansant, 80 id. 67; State v. Mathes, 90 id. 571; Lambeth v. State, 23 Miss. 322, 358; Walker v. State, 37 Tex. 366.)

Upon principle such declarations are not entitled to as much weight as should be given to the highest species of testimony, nor to as great weight as should be given to the same statements testified to by the declarant when in health and subjected to- a cross-examination before the trial court. The person receiving the declaration ■seldom lias sufficient knowledge of the circumstances of the alleged ■offense to conduct a proper cross-examination, and the situation ■of the dying person usually prevents a searching inquiry. Again, it is not the experience of mankind that the apprehension of immediate death, from which there is no hope of escape, is always sufficient to induce persons so situated to speak the truth. Criminals ■convicted on the most convincing evidence often assert their innocence while standing face to face with their executioners, and those who have committed offenses frequently impute their downfall to others, on the theory that their conduct will seem less culpable in the eyes of their friends and of the world, and in such cases the conduct of each wrongdoer is seldom as fully and accurately disclosed in the dying declaration as it would be by an examination in. court.

Without further giving the reasons why such declarations are not. entitled to the highest degree of credit, which are fully stated in the authorities cited, we are of the opinion that the court erred in instructing the jury in respect to the weight which should be given to the declaration, and, for this reason, that the judgment should be reversed and a new trial granted.

Yan Brunt, P. J.; and Parker, J.:

We concur in the opinion of Mr. Justice Follett, except in so-far as it holds that the dying declaration was admissible under the proofs in this case. We think it was not.

Judgment reversed and new trial granted.


author: Follett, J.:

text:
    In the Matter of the Application of The Board of Street Opening and Improvement of the City of New York, Relative to Opening One Hundred and Thirty-sixth Street from Amsterdam Avenue to the Boulevard. Andrew J. Connick, Appellant; The Mayor, Aldermen and Commonalty of the City of New York, Respondent.

      Municipal corporation — hoard of street opening of New York — power to lay out new streets without the permission of the common council — fixing the time when the city shall acquire title.

    The board of street opening and improvement of the city of New York is authorized, by section 955 of the Consolidation Act (Chap. 410 of 1882, as amended), to lay out new streets, without the approbation and permission of the common, council of the city, granted pursuant to section 94 of that act.
    It is provided by the Consolidation Act that, when lands are taken for street, purposes upon which there are no buildings, the date when the title is to be-acquired shall be fixed and specified, and that where there are buildings upon the lands to be acquired, the time fixed shall be upon a day, not less than six months from the date of the filing of the oaths of the commissioners of estimate and assessment.

      The petition in such a proceeding- alleged that the petitioners had directed that upon a date to he thereafter more fully specified, not less than six months after the filing- of such oaths, the title to every piece of land lying- within the lines of the proposed street should be vested in the city of New York, and a similar allegation was inserted in the order appointing the commissioners.

      Held, that this was a sufficient compliance with' the statute.
    Appeal by Andrew J. Connick from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of May, 1895, granting the motion of The Board of Street Opening and Improvement of the City of New York for the appointment of commissioners of estimate and assessment.

      James A. Jeering, for the appellant.

      Henry de Forest Baldwin, for the respondent.
   Follett, J.:

The principal question involved in this appeal is whether “ The Board of Street Opening and Improvement ” is authorized by section 955 of the Consolidation Act to lay out new streets without the approbation and permission of the common council, granted pursuant to section 94 of that act. Upon this question the reasoning- and conclusion of the learned judge at Special Term is satisfactory, and we are quite willing to adopt his opinion on this question.

The learned counsel for the appellant urges that it does not appear in the application for the appointment of commissioners that the corporation counsel had been requested by the board of street opening and improvement to institute these proceedings. At folio 22 of the petition we find the following allegation : That they (the petitioners) have duly requested the counsel to the corporation to .take proceedings in the name of the mayor, aldermen and commonalty of said city to acquire title for the use of the public to the lands required for the opening and extending of 136th street (although not yet named by proper authority) from Amsterdam avenue to the Boulevard, in the 12th ward of the city of New York.”

At folio 29 of the petition is the following allegation : And your petitioners further show that on or about the 2d day of January, •1895, they requested the counsel to the corporation, in writing, to take proceedings in the name of the mayor, aldermen and commonalty of tlic city of New York, to acquire title for the use of the public to the land required for the opening and extending of One Hundred and Thirty-sixth street (although not yet named by proper authority), from Amsterdam avenue to the Boulevard, in the Twelfth ward of the city of New York, and for,that purpose to make application to the Supremo Court in the first judicial district for the appointment of commissioners of estimate and assessment in the manner now provided by law.”

These allegations seem to us quite sufficient. It is also urged that the proceedings are irregular because a “fixed or specified time ” is not named when the city shall become seized in fee of the lands sought to be acquired. Section 956 of the Consolidation Act, as amended by chapter 000 of the Laws of 1893, provides that, when lands are taken, upon which there are no buildings, the date when the title is to he acquired shall he fixed and specified, but it provides that where there are buildings upon the lands to be acquired, then the time fixed shall be “ upon a day not less than six months from the date of the filing of such oath.” (Referring to the oaths of the commissioners of estimate and assessment.)

At folio 25 of the petition we find the following allegation : “ That they (the petitioners) have accordingly directed that upon a date to be hereafter more fully specified, not less than six months after the filing of the oaths of the Commissioners of Estimate and Assessment who may be appointed by the Supreme Court in proceedings for the acquisition of title to said street, the title to each and every piece or parcel of land lying within the lines of said One Hundred and Thirty-sixth street (although not yet named by proper authority) from Amsterdam avenue to the Boulevard, in Twelfth ward of the city of New York, so to be opened and so required and hereinbefore particularly described and set forth, shall be vested in the mayor, aldermen and commonalty of the city of New York.”

At folio 105 the allegation above quoted is inserted in the oi'der appointing commissioners. This seems to he a complete compliance with the provisions of the statute.

The order should be affirmed, with costs

Yan Brunt, P. J., and Parker, J., concurred.

Order affirmed, with costs.


text:
    M. Jacoby & Co. (Limited), Respondent, v. George D. Payson and Alice D. Adams, as Executors, etc., of Elisha J. Denison, Deceased, Appellants.

      Principal and agent — construction of a power of attorney— when the agent has no authority to indorse checks for negotiation.

    In an action brought against the executors of. Elisha J. Denison, deceased, to recover damages for the alleged conversion of a check, it appeared that the check in question was made by the I-I. B. Clafiin Company to the order of the plaintiff, and that it was indorsed apparently by the plaintiff and by Denison.
    It further appeared that the plaintiff was a foreign corporation, doing business at Nottingham, England; that, in August, 1888, it entered into a written agreement with-H. L. Fesler & Co., of New York, by which the latter firm were appointed agents of the plaintiff for the United States, and as such agents were to receive commissions upon the sales made by them; that, in November, 1890, Wight & Co., of the city of New York, were indebted to the plaintiff for goods which had been sold by the plaintiff direct and not through the agents, and on November eighth, H. L. Fesler & Co., learning that Wight & Co. were embarrassed, so notified the plaintiff by cable, whereupon the plaintiff executed and delivered to one Fritz Reinhold, of Nottingham, England, a power of attorney, authorizing him to adjust any claims or differences which the plaintiffhad against or with its debtors in New York, but the power of attorney, while authorizing Reinhold to receive all sums of money, to settle and compromise claims, to prosecute and defend actions, and to give receipts and discharges, contained no express authority to indorse checks. Reinhold arriving- in New York on November nineteenth with the power of attorney found that Henry L. Fesler had just made a settlement with Wight & Co., under which afterwards he received from them the clieck in question.
    At about the same time Reinhold transferred in writing his power of attorney to Henry L. Fesler, and immediately thereafter Fesler indorsed upon the check the signature of the plaintiff, but did not do this for collection, and the check in some manner not described came into the possession of Denison, was deposited by him and was paid.

      Reid, that as the goods out of which the compromised indebtedness arose were not sold for the plaintiff by Fesler & Co., nor by Henry L. Fesler, the agreement, made in August, 1888, gave no power to Fesler to compromise the claim of the plaintiff against Wight & Co.; or to indorse the check which ho received upon the compromise;
    That, assuming that the assignment of the power of attorney by Reinhold to Fesler gave to Fesler the powers of Reinhold, the power of attorney contained nothing which gave Fesler authority to indorse checks and to negotiate them after he had indorsed them, thus assuming to impose a liability upon his principal;

      That this was especially so in view of the fact that no proof was given enlarging the authority conferred by the power of attorney, or showing that Denison relied on the apparent authority of Fesler or had knowledge of any fact tending to show apparent authority on his part.
    Aei’eal by the defendants, George D. Payson and another, as executors, etc., of Elisha J. Denison, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of May, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 27th day of May, 1895, denying the defendants’ motion for a n.ew trial made upon the minutes.
    This action was begun April 12, 1892, against Elisha J. Denison to recover damages for the alleged conversion of the following check :
    “ No. 230. New York, Nov. 20th, 1890.
    “ Bank of America.
    “Pay to the order of M. Jacoby & Co. Eorty-six hundred and thirty-nine 27-100 dollars.
    “ $4,639.27. THE H. B. CLAFLIN COMPANY,
    By D. N. Forge.”
    (Indorsed:) “ M. Jacoby & Co., E. J. Denison.”
    (Stamped on face:) “8. 21 Nov., 1890.”
    (Stamped on left-hand margin :) “ C. The Bank of America.' Certified. Payable only through N. Y. Clearing House.”
    Afterwards Denison died and this action was revived and continued against his representatives.
    The plaintiff is a foreign corporation existing under the laws of the United Kingdom of - Great Britain and Ireland, having its chief place of business at Nottingham, England, and is engaged in the manufacture and sale of lace curtains. August 1, 1888, the plaintiff and H. L. Fesler & Co. of New York entered into a contract of which the following is a copy:
    “ New York, August 1, 1888.
    ’ “Articles of agreement, made and entered into this day by and between Messrs. M. Jacoby & Co., Nottingham, England, parties of the first part, and Messrs. H. L. Fesler & Co., of New York, parties of the second part.
    “ Wherein Messrs. M. Jacob j & Go. appoint Messrs. II. I/. Fesler & Co. their sole agents for the United States and Canada (In letter 25 June, ’80, II. L. F. & Co. give irp all their claim for Canada, authorizing us to appoint another agent for Canada), for the term of three years on the following conditions :
    “ Messrs. II. L. Fesler & Go. to pay all the expenses on this side for postage and such traveling expenses on journeys as are raider-taken by Mr. W. Behrend, who is under contract with Messrs. Fesler & Go. to manage this department. Gable expenses to the account of M. Jacoby & Co., who are to furnish all samples free of charge to Messrs. Fesler & Co., and the same to be sold by Messrs. Fesler & Co., for account of Messrs. M. Jacoby & Co., at the end of each season or be returned.
    “All orders taken at the risk of M. Jacoby & Co. for the present; Messi’s. M. Jacoby & Go. will not pay any commission for goods sold by them to the following houses:
    Lawson Bros., Messrs. Fletcher & Co.................New York.
    S. E. Block & Bros.
    L. Y. Asiel & Co., Mills & Gibbs....................New York.
    Meiser Bros., Einstein, Ilirscli & Co.................New York,
    E. Erdmann & Co., Welker & Biess.................New York.
    Lahey & Dubord,
    Boyd, Stretton & Co., Jaffray & Co.................New York.
    Aronstein & Wolfers., Modry & Co...........E. Mommer & Co.
    ■Cohen Bros. & Co., Mauloir & Co.......Arnold, Constable & Go.

    Hariman & Co.
    Messrs. (H) Bauer Bros. & Co. (II) Mr. Y. J. Bounds.
    (II) Tafft, Weller & Co.
    (H) Tlios.'May & Co.
    (H) J. Patterson & Co. (II.) L. F. & Co.
    (II) W. G. Caldwell & Go.

    “ Excepting the above-named firms, a commission of five per cent on the net amount of all sales made in sterling on our goods, to be paid by Messrs. M. Jacoby & Co. to Messrs. II. L. Fesler & Co.; a commission of one and one-half per cent on the net amount of all sales made in sterling on town goods, a monthly statement to be rendered by Messrs. M. Jacoby & Co. of all sales, and a fly-sheet eopy of each invoice to be sent to Messrs. H. L. Fesler & Co., commission to be paid Messrs. H. L. Fesler & Co. when bills are due, as per terms given when orders are taken from the customers.
    “ Signature for M. JACOBY & CO., W. J. Massey. Witness, A. Auerbach.
    “ Signature, II. L. FESLER & CO.
    Witness, W. Beiirenh.”
    Afterwards the plaintiff and H. L. Fesler & Co. extended the foregoing contract by the following agreement:
    “ This agreement is hereby extended authorizing Messrs. II. L. Fesler & Co. to take orders in currency, selling same in their name and account, it being understood that Messrs. Fesler & Co. guarantee all goods so sold by them. On all such orders taken by them, Messrs. Fesler & Co. will name the houses to whom goods are sold. Also time of delivery, terms of payment, prices, and so forth, furnishing a report of the financial standing of the said firm. Messrs. Fesler & Co. to advance the freight, 'duty and other incidental expenses, adding same to the sterling price, which they will so calculate to return Messrs. M. Jacoby & Co., Limited, the net amount in sterling, sending account sales showing the transactions in detail. Remittances to be made by Messrs. Fesler & Co. in accordance with the terms stated by them in the original orders.
    “ Consular invoices: Messrs. Fesler & Co. will give in sterling the prices to be invoiced.
    “For M. JACOBY & CO. (Limited),
    “ Arthur J. Butler, Director. “II. L. FESLER & CO.”
    In November, 1890, Wight & Co., of the city of New York, were ndebted to the plaintiff in a considerable sum for goods sold. These goods were not sold through Henry L. Fesler or II. L. Fesler & Co November 8, 1890, H. L. Fesler & Co. learned that Wight fc Co. were embarrassed, and on that day cabled the plaintiff as follows:
    “Have private information Wight & Co. failing very soon. Shall I act %

    “FESLER.”

      On the 11th of November, 1890, the plaintiff executed, and delivered the following power of attorney to Fritz Reinliold, of Nottingham, England:
    “ To all to whom these presents shall come:
    “We, John Henry Jacoby and Arthur Joynes Butler, Directors of M. Jacoby & Company, Limited, Nottingham, England, Lace Manufacturers and Merchants, send Greeting :
    “Whereas, we, the aforesaid John Henry Jacoby and Arthur Joynes Butler, having reason to believe that several firms in New York, in the United States of America, are not in a position to meet their indebtedness to the firm of M. Jacoby & Company, Limited, desire to give a general power of attorney to Fritz Beinliold to act for them in such manner as he, in his discretion, may think the circumstances of each case may require, and to adjust any claims or differences in account that may arise with these New York firms.
    “Now these presents witness that the said John Henry Jacoby and Arthur Joynes Butler,-do hereby make, ordain, constitute and appoint Fritz Iiein hold, of Nottingham, in the United Kingdom of Great Britain and Ireland, their true and lawful attorney and agent for them and in their name or otherwise, and on their behalf to ask, demand, receive and recover all and every sum and sums of money whatsoever, that are or is now due and owing to the said company, of and on our behalf to investigate, adjust, settle and to compromise all accounts, debts, claims, disputes and matters which or shall or may subsist or arise, and also, if necessary, to commence and prosecute and defend all actions, suits, claims, demands and proceedings touching the premises, and in any way connected therewith, and also to receive and give effectual receipts and discharges for all sums of money, claims or demands by the said company, and to prove and receive dividends and to give receipts for the proceeds arising from and, also to give an effectual receipt in full discharge of all claims. And generally to do, perform and execute all and ever) such act and acts, deed and deeds, in and about the premises as he the said Fritz Reinhold, shall think proper, as fully and as effectual!) to all intents and purposes whatsoever as the said John Henrj Jacoby and Arthur Joynes Butler might or could do if personal!) present, and also to substitute and appoint any person or persons t( act under, or in the place of the said Fritz Reinhold in all or any of the matters aforesaid, and every such substitution at pleasure to revoke, the said John Henry Jacoby and Arthur Joynes Butler hereby agreeing to ratify, confirm whatsoever the said Fritz Reinhold or his substitute or substitutes shall lawfully do or cause to be done in or about the premises by virtue of these presents.
    “ In witness whereof the said John Henry Jacoby and' Arthur Joynes Butler have hereunto set their hands and seals and also affixed the common seal of the said company the eleventh day of November in the year of our Lord one thousand eight hundred and ninety.
    “ For M. JACOBY & CO., Limited,
    “ J. Henry Jacoby, [seal.]

      “ Director.

      “ Signed, sealed and delivered
    in the presence of Geo. Richards.
    “ J. II. WARNER.
    “For M. JACOBY & CO. (Limited).
    “ Arthur J. Butler, [seal.]
    “ Director.” .
    On the 19th of November, 1890, Fritz Reinhold arrived in New York, bringing with him his power of attorney. On the 21st of November, 1890, he -wrote the plaintiff as follows :
    “ Nov. 21si„ 1*890.
    “ Messrs. M. Jacoby & Co. (Limited),
    “Nottingham, Eng.:
    “ Dear Sir : —• I arrived on the 19th, late at night. Called yesterday on Messrs. Welcker & Reis. * * * With reference to
    Wight & Co., Reis asked me to avail myself of Mr. Fesler’s assistance whom he believes had already done something in the matter. When calling on Fesler & Co., I did not find Fesler at home; had just gone to Wight & Co., and after one-lialf hour’s waiting, he came back and having everything settled, but, having no further power he could not give receipt and agree to abandonment of all further claims. The last two invoices are given back to Fesler, the remainder about £1,000, they pay 90$. Fesler assures me that the
    of 90$ is overdue to him, being first to look after our interests.

      “ I have given my full power to Fesler to arrange everything finally to-day. He shall very likely give you exact particulars later on by-same mail. Without more for the moment,
    “ I remain, dear sirs,
    “ Yours faithfully,
    “FRITZ REINHOLD.”
    “ Wight & Go.:
    “Fesler will write you to-day. On Monday I shall see the color of their money. * * * ”
    On the power of attorney, produced by the defendants, the execution of which was proved by one of the plaintiff’s directors, was indorsed the following:
    “ I herewith transfer this power of attorney to Mr. II. L. Fesler, 464 Broome st., New York.
    “FRITZ REINHOLD.
    “ [seal.] Nov. 20, 1890.
    ■The execution of this transfer by Reinliold was not proved, except as established by his letter to the plaintiff, which was produced by the plaintiff and formed in part an answer to one of the interrogatories propounded to plaintiff’s managing director by the commission issued to take evidence in England. On November 20, 1890, Henry L. Fesler, and before he had seen Fritz Reinhold, effected a settlement with Wight & Co. and received the cheek in question. On that day or on the next, Fesler indorsed upon the check the signature “ M. Jacoby & Co.,” and on the twentieth or twenty-first of November, the defendants’ testator indorsed the check “'E. J. Denison,” and on the same day deposited it to his credit in the National City Bank of New York, which presented it to the Bank of America on the same day, by which bank it was paid. Neither the check nor any part of the avails thereof was received by the plaintiff, and before this action was begun, the check and its avails were demanded of the defendants’ testator, who refused to deliver the check or pay over the money he had received thereon.

      Lawrence Godkin, for the appellants.

      John J. Adams, for the respondent.
   Follett, J.:

It is agreed that the check, which is the subject of this actien, was the property of the plaintiff, and that its title thereto could not be divested without its act or the act of an agent having power to transfer it. It is conceded that the check was not received by the plaintiff. The defendants insist that their testator acquired title to the check through the indorsement thereon of the plaintiff’s name by Henry L. Fesler. On the former trial it appeared that defendants’ testator received the check from Fesler in part payment of a debt owing by the latter to the former, but that fact was not proved on this trial, nor was it shown from whom Denison received the check, nor was the consideration or the circumstances of its transfer to him shown or in any wise explained.

The learned counsel for the defendants asserts that Henry L. Fesler was authorized to indorse the plaintiff’s name and negotiate the check, (1) by the contract of August 8, 1888, and the continuation thereof; (2) by the power of attorney of November 11, 1890, and the transfer thereof of November 20, 1890. It is plain that neither Henry L. Fesler nor H. L. Fesler & Co. had power under the contract of August 8, 1888, to compromise the claim against Wight & Co., or to indorse the check received upon the compromise. The goods out of which the compromised indebtedness arose were not sold through H. L. Fesler & Co., but directly by the plaintiff to Wight & Co. The only authority of Henry L. Fesler to compromise the debt is derived from the power of attorney, which, for the purpose of this decision, we shall assume was transferred to him by Fritz Keinliold.

By the substitution of November 20, 1890, Henry L. Fesler stood in the place of Keinliold and was vested with his powers, which were not derived from him but through him from the plaintiff.

The case at bar cannot, we think, be distinguished in principle from Holstinger v. National Corn Exchange Bank (1 Sweeny, 64; 6 Abb. [N. S.] 292; 37 How. 203; and affirmed by the Court of Appeals, 3 Alb. L. J. 30C ; 40 How. 720.)

In the case cited the original power was as broad and general as the one in the case at bar. It contains this provision: “ I do hereby grant unto my said attorneys full power to execute and deliver all needful instruments and papers, and to perform all and every act and thing whatsoever requisite and necessary to he done in and about the premises, as fully and completely, to all intents and purposes, as 1 might and could do if personally present, hereby ratifying and confirming all the acts of my said attorneys, or either of them, done by virtue and in pursuance of these presents.” The power was given to enable the attorneys to collect arrears of pay due the principal from the United States. The attorneys received two checks drawn by a paymaster on the assistant treasurer of the United States at New York, payable to the order of the principal. Under the power the agents indorsed and collected the checks, and it was held that the indorsements were not authorized by the power, and that the defendant, a bank, which had received the money from the assistant treasurer, was liable to the principal. The only distinction between the cases is that this plaintiff is a foreign corporation, and it is the custom to pay commercial debts by checks, and it is urged that the power to collect embraces the power to do it in the usual way and to perform every act necessary to make the check available, or, in other words, to convert it into money. Had Fesler indorsed the name of his principal on the cheek and received payment thereof directly from the drawee, a somewhat different question would have been presented, for, in that case, no liability would have been assumed to have been created against the principal by the indorsement, but Fesler, after indorsing the name of his principal, -negotiated the check, thus assuming to impose a liability on his principal. There is no evidence that Fesler indorsed the check for collection, or that he ever received the avails of the cheek.

We find no authority broad enough to justify this court in holding that the case at bar is not within the rule declared in the case before cited. (See, also, Filley v. Gilman, 2 J. & S. 339; Chatham National Bank v. Hochstadter, 11 Daly, 343; Hogg v. Snaith, 1 Taunt. 347.)

The learned counsel for the appellants seeks to reverse this judgment on the ground that the plaintiff had clothed IT. L. Fesler with apparent authority to indorse the check. There is no question of apparent authority in this case. No fact was proved which enlarged the authority conferred by the power of attorney, and there is no evidence that Denison relied on the apparent authority of Eesler, or had knowledge, of any fact tending to show that he had apparent authority. It does not appear that Denison had ever heard of the plaintiff, or of the relations existing between it and Eesler when ho received the check, nor is there any evidence that Denison received the check from Eesler. From whom he received it does not appear.

The judgment and order should he affirmed, with costs.

O’Brien, J., concurred; Van .Brunt, P. J., concurred in result.

Judgment and order affirmed, with costs.


text:
    Mark Davis, Respondent, v. Julius Zimmerman and Others, Appellants.

      Tort — conspiracy to injure business or property — power of the Supreme Court to' protect property by injunction— rule as to the denial of eqwitiés, considered.

    The business of a person, conducted according to law, is a property right, and a loss resulting from a suspension or interruption of business is an injury to property.
    A court of equity has jurisdiction to restrain by injunction the carrying out of a conspiracy to destroy or injure property, and the court is not deprived of this power hy the fact that the acts in question are criminal.
    A conspiracy to injure a person's business by preventing, by means of threats and intimidation, persons from entering liis employment is a crime at common law and under tlie Penal Code.
    In an action brought to procure an injunction, tlie complaint alleged that the defendants induced the plaiutiff's employees to^ leave his service by using force, threats and intimidation, that hy the same means they prevented persons from entering his service and also alleged a conspiracy to destroy his properly and ills business and charged that some of liis property had been actually destroyed.

      Held, that all tlie acts in question constituted injuries to property or to property rights of a nature which entitled the plaintiff to relief;
    That as it appeared that tlie defendants were numerous and irresponsible and that the damages were of a nature difficult or impossible to ascertain, it was a proper case for tlie court to interfere by enjoining- the defendants from tlie further commission of the acts and offenses in question;
    That the Supreme Court, having original and general jurisdiction, would protect the rights of persons and property hy adopting all those remedies adequate for that purpose which were not inconsistent with, the. Constitution of the State of New York;
    That inasmuch as the defendants did not assert any right to do the acts complained of, the rule, that where all the equities of a complaint are denied in the answer an injunction will not he granted pending the action, had no application.
    Appeal by the defendants, Julius Zimmerman and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of August, 1895, continuing pendente lite an injunction theretofore granted in the action.

      Moses II Grossman and JEdward Ilymes, for the appellants.

      Leonard Bronner, for the respondent.
   Follett, J.:

This action was begun June 21, 1895, to restrain the defendants (1) from inducing the plaintiff’s employees to leave his service by force, threats or intimidation; (2) from preventing persons from entering plaintiff’s service by force, threats or intimidation ; (3) from destroying plaintiff’s property. This is the gist of the relief sought by the action and granted by the temporary injunction issued June 21, 1895, and continued by an order of the Special Term entered August 26, 1895.

The plaintiff now is, and for fifteen years last passed has been, a manufacturer of hats and caps at the city of New York, employing a large amount of capital and about seventy-five employees, known as “hat and cap operators,” who are members of the “ Cloth Hat & Cap Operators’ Union,” a society, the members of which reside in or near the city of New York.

It is alleged in the complaint that on the 8th of June, 1S95, the plaintiff’s employees and other members of said union, demanded that the plaintiff should enter into certain contracts with his employees relating to the conduct of his business, and that in default thereof said employees threatened to quit work and cause the suspension of business in the plaintiff’s factory until such time as the demands of the union should be acceded to. The plaintiff refused to execute the contracts, and thereupon a strike was ordered, and plaintiff’s employees left his service. It is also alleged that the defendants entered into a conspiracy to destroy plaintiff’s business, and to prevent him from carrying it on, and to carry out the conspiracy the defendants stationed a large number of persons, called pickets and patrolers, in front of and near the plaintiff’s factory, who by threats and personal violence intimidated other persons from entering plaintiff’s service. It is further alleged that many of the defendants, in furtherance of their conspiracy, have violently assaulted and injured the new employees of the plaintiff. It is alleged that the plaintiff, by the defendants’ acts, has been compelled to establish factories in other towns ; that he had one at Rutherford, New Jersey, and that on June 18, 1895, several of the defendants, at the instigation and upon the order of said union,destroyed the plaintiff’s machinery and property at that place, of the value of $500, and by force, threats and violence induced the hands there employed to leave their work. The complaint contains other allegations of like nature not necessary to be described particularly. It is alleged that the damages to his business occasioned by these acts are great and irreparable; that they cannot be ascertained and recovered in an action at law, and that the defendants are unable to respond in damages.

The defendants, in their answer, deny the existence of the conspiracy and the acts of violence alleged, but they admit that they have stationed pickets and patrolers near the plaintiff’s factories, have tried to prevent, by persuasion and argument, persons from entering the plaintiff’s service, and also that some of plaintiff’s property has been destroyed, but aver that they believe the plaintiff procured the destruction of his own property for the purpose of charging the act on the defendants. The defendants also allege that the plaintiff and other persons engaged in the same business, have entered into a conspiracy unjustly to reduce the wages of emplojmes, and to refuse to employ members of the union, and they ask for a judgment restraining the execution of such alleged conspiracy.

Protection to property is guaranteed by the Constitutions of the United States and the State of New York, and it is the duty of the courts to enforce these guarantees. The business of a person conducted according to law is a property right. (People v. Barondess, 61 Hun, 571.) In that case Mr. Justice Daniels held that a loss resulting from a suspension or interruption of a lawful business was an injury to property, and liis opinion was adopted by the Court of Appeals. (133 N. Y. 649; State v. Stewart, 59 Vt. 273; Barr v. Essex Trade Council, 30 Atl. Rep. 881.) A court of equity has jurisdiction to restrain by injunction the carrying out of a conspiracy to destroy or injure property, and the court is not deprived of its power because the acts are criminal. (Cranford v. Tyrrell, 128 N. Y. 341; In re Debs, 158 U. S. 564-593.)

Many of the acts which, it is alleged, the defendants committed, and threatened to commit, are not only violations of the rights of property guaranteed by the Constitution and the laws of the State, but are violations of the criminal laws of the State. A conspiracy to injure a person’s business by preventing persons from entering his employment, by threats and intimidation, is a crime at common law. ' (People v. Melvin & Others—The Journeymen Cordwainers’ Case — Yates’ Select Cases, 112; S. C., 2 "Wheeler’s Crim. Cases, 262. See, also, Wright’s Crim. Conspiracies [1st Am. ed.], chap. 3, and cases there cited.) ' Such a conspiracy is now a crime by statute. (Penal Code, § 168.) Some of the plaintiff’s property Was destroyed, his employees were attacked, and the persons who .sought his employment were threatened and menaced. For these acts the perpetrators are liable in damages, but they being, as it is alleged, irresponsible, a judgment for damages would be unavailing, would not suppress the wrongs, and would necessitate a multitude of actions. Resides this the damages which arise from the destruction of a business, with a loss of contracts, cannot be ascertained ■oven approximately. In such cases an injunction restraining the commission of such acts is an appropriate remedy. It is urged that there is no precedent in this State which sustains an injunction in such a case. To this it may be answered that there is no case denying the power of this court to grant such relief, and there are many cases in other jurisdictions where the exercise of this power has been sustained. (In re Dels, 158 U. S. 564; Casey v. Cincinnati T. Union, 45 Fed. Rep. 135; Coeur D'Alene C. & M. Co. v. Miners' Union, 51 id. 260; Blindell v. Hagan, 54 id. 40; aff'd., 56 id. 696; 13 U. S. App. 354; Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania Co., 54 Fed. Rep. 730, 746; United States v. Workmen's A. C., Id. 994; Farmers' Loan & Trust Co. v. Northern Pac. R. Co., 60 id. 803; Lake Erie & W. Ry. Co. v. Bailey, 61 id. 494; United States v. Alger, 62 id. 824; Arthur v. Oaks, 63 id. 310; S. C., 11 C. C. A. 209 ; United States v. Elliott, 64 id. 27; Sherry v. Perkins, 147 Mass. 212; Murdock, Keer & Co. v. Walker, 152 Penn. St. 595; Wick China Co. v. Brown, 164 id. 449; Barr v. Essex Trades Council, 30 Atl. Rep. 881; McCandless v. O’Brien, 2 Pittsb. L. J. [N. S.] 435 ; N. Y., L. E & W. R. Co. v. Wenger, 17 Wkly. Law Bull. 306; S. C., 24 Abb. N. C. 267.)

In Johnston Harvester Co. v. Meinhardt (60 How. Pr. 168; S. C., 9 Abb. N. C. 393; affd., 24 Hun, 489) an injunction was refused on tlie ground tliat “ tliere is no fact shown which -would, in any legal sense,,amount to an intimidation of the persons who are actually in or were about to enter the employ of the plaintiff, and no facts showing acts of the defendants which would, in any legal sense, amount to a coercion of any such persons.”

Reynolds v. Everett (144 N. Y. 189, affg. S. C., 67 Hun, 294, which affirmed S. O., sitb. n-om. Royers v. Everts, 17 N. Y. Supp. 264) was brought to restrain striking cigar makers in which an injunction jpendente lite was granted and continued until the action was tiled. On the trial the complaint was dismissed, without costs, on the ground that the strike had ceased and there was no occasion for a permanent injunction restraining defendants, and also on the ground that the defendants had committed no acts of "violence against persons or property, but had simply persuaded laborers not to remain in the plaintiffs’ employ and had persuaded others not to enter tlieir employ.

In Sinsheimer v. United Garment Workers (77 Hun, 215, reversing S. C., 5 Misc. Rep. 448) the temporary injunction was vacated on the ground that there is no proof of any acts of violence upon the part of the defendants or of any injury to property or of any threats or intimidation.” The defendants in that case had simply mailed circulars to the plaintiffs’ customers requesting them not to deal with the plaintiffs until the difference between them and the defendants should be settled.

The Supreme Court of this State has original and general jurisdiction of all cases in law and equity (Const, art. 6), with unlimited power to protect the rights of persons and property by adopting and enforcing all of the remedies afforded by an enlightened jurisprudence which are not inconsistent with the Constitution of the State, and it is its privilege and duty to mould and expand its processes so as to afford adequate protection to the rights of all citizens. (In re Hallet's Estate, 13 Ch. Div. 710; Joy v. St. Louis, 138 U. S. 50.) It is far better for employers and employees, and for the peace and safety of the State, that such relief be exercised by the courts, where parties can be heard, than to permit such violations of law to go unrestrained until force is arrayed against force, and the strong arm of the executive is compelled to intervene with troops to prevent disorder and the destruction of property. The defendants invoke the general rule that when all of the equities of a complaint are denied in the answer, an injunction will not bo granted pendente lite, or, if granted, will be vacated. This rule applies when the litigants claim adversely in respect to property, or the right to do some act in connection therewith, and the plaintiff’s asserted right being doubtful, an injunction will not be granted. Rut this rule is not applicable to the case at bar, for the defendants do not assort the right to do any of the acts which they are restrained from doing. They do not assert that they have a right to intimidate, by threats or by violence, persons in the employment of the plaintiff or those who seek his employment, nor do they claim that they have a right to destroy the jdaintiff’s property, and it is only from doing and conspiring to do such acts that they are restrained.

The order should be affirmed, with costs.

VaN BbüNt, P. J., and O’BrieN, J., concurned in result.

Order affirmed, with costs.


author: Eollett, J.: Yan Brunt, P. J.:

text:
    George Barker, Respondent, v. The Cunard Steamship Company (Limited), Appellant.
    Jurisdiction■— allegation as to plaintiff’s residence — refers to the time when the action was begun — waiver, of an objection to jurisdiction — testimony of a, physician — solicit is not a soaiuer of the privilege of the patient— ageneral exception to refusals to charge, when insufficient. .
    Where a complaint alleges that the plaintiff is a resident of the State of New York, the allegation is presumed to refer to his residence at the time when the. action was begun, unless it is controlled by other allegations showing that a different dale was intended.
    Where a complaint alleges, among other things, that the plaintiff is a resident of the State of New York, and that the defendant is a foreign corporation, and the answer admits that the defendant is a foreign corporation, and then denies that it has any knowledge or information sufficient to form a belief as to the other allegations of the complaint, the residence of the plaintiff when the action was begun is put iu issue and becomes a question of fact.
    Where, upon the trial of such an action, the defendant raises no question of jurisdiction, and a general verdict is rendered for the plaintiff, it will be presumed that all the issues of fact, including that of residence, were determined in favor of the plaintiff, and the question of jurisdiction cannot be raised for the first time on appeal.
    The jurisdiction of a court of general jurisdiction is alwaj'S presumed and can never be questioned, even in an action against a foreign corporation, unless the want of j urisdiction is shown at the trial or appears on the record. Van Brunt, P. J., dissenting.
    In case the j urisdiction of a court of general jurisdiction turns upon a question of fact, the issue must be determined by the jury.
    A physician cannot testify to facts, in regard to the previous condition of the health of a person, where his knowledge was acquired from an inspection of and conversations with such person while the relation of physician and patient existed between them.
    Tlie privilege of the patient is not waived by his calling, upon the trial of an action, other physicians to testify to his condition anterior and subsequent to the time when he was under treatment by the physician whose testimony he claims is privileged.
    Where a number of requests to charge are presented and some are charged as requested while others are refused, a general exception to the refusal of the court to charge the requests which it declined to charge, raises no question, upon an appeal, unless every one of the requests should have been granted in the terms in which they were preferred.
    Appeal by tlie defendant, Tlie Cunard Steamship Company (Limited), from a judgment of tlie Supreme Court in favor of the plaintiff, entered in tbe office of the clerk of the comity of New York on the 15th day of March, 1895, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 18th day of March, 1895, denying the defendant’s motion for a new trial made upon the minutes.

      Willimn M. Ivins, for the appéllant.

      Franklin Pierce, Edward B. Thomas and Abraham Gruber, for the respondent.
   Eollett, J.:

This action was begun December 12, 1890, by a passenger against a common carrier to recover damages claimed to have been sustained by the alleged negligence of the defendant. September 23, 1890, the plaintiff took a second cabin passage from Liverpool on defendant’s boat Gallia for New York, at which port the ship arrived October fourth. It is alleged that a defective port, which was a few inches above the plaintiff’s berth, admitted such quantities of water that he was constantly wet and thereby ■contracted pneumonia which resulted in the permanent impairment of his health. The question lying at the threshold of this case is, has the court jurisdiction of the action ? “ An action against a foreign corporation may be maintained by a resident of the State, or by a domestic corporation, for any cause of action.” (Code Civ. Proc. § 17S0.) It is alleged in the complaint that the defendant is a foreign corporation, “and that the plaintiff is a resident of the State of New York.” The defendant, in its answer, admits that it is a foreign' corporation, is the owner of a steamship line, and is a common carrier of passengers, as alleged in the complaint, and “ then denies that it has any knowledge or information sufficient to form a belief as to any of the other allegations contained in the complaint.” Allegations of time in a complaint are presumed to refer to the conditions existing when the action was begun,,unless controlled by other allegations showing that a different date is intended. (Townshend v. Norris, 7 Hun, 239; Broome v. Taylor, 9 id. 155; Burns v. O'Neil, 10 id. 494.) Under the pleadings, the residence of the plaintiff, when the action was begun, was a fact in issue. The defendant, on the trial, raised no question in respect to the jurisdiction of the court or the residence of the plaintiff. A general verdict (Code Civ. Proc. § 1186) was rendered, and it is presumed that all material issues of fact raised by the pleadings were determined in favor of the prevailing party. (Wolf v. Goodhue Fire Insurance Co., 43 Barb. 400; affd., 41 N. Y. 620; Van Pelt v. Otter, 2 Sweeny, 202; Murphy v. Lippe, 3 J. & S. 542; Soria v. Davidson, 21 id. 52; S. C., 9 N. Y. Civ. Proc. Rep. 23). The jurisdiction of a court of general jurisdiction is always presumed and can never be questioned, unless the want of jurisdiction is shown at the trial or appears on the record. (Mills v. Martin, 19 Johns. 7; Bloom v. Burdick, 1 Hill, 130; Downes v. The Phœnix Bank, 6 id. 298; Hutchins v. Brand, 6 How. Pr. 73.) If no evidence had been given in respect to the residence of the plaintiff, the jurisdiction of the court could not have been questioned on appeal .unless the non-residence of the plaintiff is disclosed by the record. The plaintiff testified on the trial, which occurred March 7, 1895, “ I reside at 156 East 127th street in the city of New York.” He was not asked by either side where he resided at any time previous to the trial, and there was no fact inconsistent with the idea that he was a resident of this State on the 12th of December, 1890, when the action was begun.

The vessel on which the plaintiff was a passenger arrived in New York October 4, 1890, and from that date until November 6, 1890, he was a patient in St. Yincent’s Hospital in this city. The plaintiff was a cabinet maker. Later in the year he worked for the Pullman Palace Oar Company in Chicago, Ill., which employment he left in the summer of 1891* and came east. In the winter of 1891 and 1892 he worked for that company at St. Charles, Mo. Afterwards he worked for the same company at Buffalo until the spring of 1893, when he began work for the same company in their shop at Chicago and continued there until June, 1893. Afterwards he worked for the Illinois Central Railroad at Chicago, and at the time of the trial he was at work for the Manhattan Elevated Railroad Company. The defendant asked no questions of the plaintiff in respect to his residence and gave no evidence on that issue. Again, upon the defendant’s offer the complaint was received in evidence. The testimony does not conclusively show that the plaintiff was not a resident of this State when the action was begun, and the presumption of jurisdiction is not rebutted. If it can be said that the evidence is capable of different inferences as to the place of residence of the plaintiff, the answer is that the jury has drawn the inference and determined the question in his favor. In case the jurisdiction of a court of general jurisdiction turns upon a question of fact, the issue must be determined by the jury. (United States v. Sanders, Hemp. 483; Thomp. Tri. § 2180 ; Roderigas v. East River Savings Inst., 63 N. Y. 460, 464.)

Section 421 of the Code of Procedure provided that an action could be brought by a resident of this State against a foreign corporation for any cause of action; that an action could be brought against such a corporation by a non-resident in case the cause of action arose in this State, or the subject of the action be situated within this State.

Root v. The Great Western Ry. Co. (65 Barb. 619; S. C., 1 T. & C. 10 ; affd., 55 N. Y. 636) was brought by a resident of the State of Michigan against a Canadian corporation for the loss of the plaintiff’s goods in Canada or in the State of Michigan. It was held that the cause of action did not arise in this State; that the plaintiff was a non-resident, and that the action could not have been maintained had the defendant pleaded the plaintiff’s non-residence, but that the objection was waived by failure to -raise it on the trial, and that it could not be raised for the ñrst time on appeal. In Downes v. The Phœnix Bank (6 Hill, 297) it was held that the non-residence of a plaintiff in an action against a foreign corporation was a plea in abatement, and must be pleaded. The same rule was held in Pease v. Delaware, Lackawanna & Western R. R. Co. (10 Daly, 459) and in Steers v. Liverpool, N. Y. & P. Steamship Co. (57 N. Y. 1, 7). The issue in respect to the plaintiff’s residence having been found in his favor by the general verdict, and the question not having been raised at the trial, it must be held that the court had jurisdiction of this action.

The position of the learned counsel for the defendant, that the court erred in submitting the questions as to the defendalit’s negligence and the plaintiff’s freedom from contributory negligence to the jury, cannot be sustained. The plaintiff testified that the port leaked so badly that his berth and the one underneath were saturated with water. Measures, who occupied a stateroom near the plaintiff’s, testified that on the morning of the twenty-fifth he was in the plaintiff’s room, saw that his berth and the one underneath it were wet; that the next day he was in the plaintiff’s room and that the water had come through the port as before; that he saw water coming through it, and that on the third and fourth days he saw water coming through it. The plaintiff complained of the condition of the port to the employees of the ship, as they admit, though they testified that it was in perfect order and did not leak. This evidence presented a question of fact, which was rightly submitted to the jury, and it cannot be said that the verdict was contrary to the weight of evidence. The defendant did not deny that, in case the port leaked in the manner described, it was defective and might have been easily remedied. The defendant’s marine superintendent testified that when the ports are perfect, as they should be, they do not admit water, and that they should be kept in a condition so as not to leak. The learned counsel for the defendant asserts that the plaintiff was guilty of contributory negligence by non-compliance with the following rule, which was posted in his stateroom: “ 6. Passengers having any cause for complaint are requested to communicate at once with the chief steward.” The plaintiff did complain of the condition of the port to the first and second intermediate stewards, to the bedroom steward, and the chief steward testified that he went into the plaintiff’s room on Wednesday, October first, and the plaintiff told him that his bed was damp and pointed to the port. The ship’s physician testified that the plaintiff complained to him that water had come through the port. and wet his bed. There is certainly no foundation for the claim that the plaintiff was guilty of contributory negligence in not bringing to the attention of the defendant’s servants the condition of the port.

The court did not err in refusing to permit the defendant to prove by Hr. Haubold the condition of the plaintiff when he entered St. Yincent’s Hospital, and the statements made by him in respect to the previous condition of his health. The knowledge of this witness was acquired from an inspection of and conversations with the plaintiff while the relation of physician and patient existed between them, and was privileged. (Code Civ. Proc. § 834.) This privilege was not waived by the plaintiff having called other physicians to testify to his condition' anterior and subsequent to the time he was in the hospital. (Hope v. Troy & Lansingburgh R. R. Co., 40 Hun, 438; affd., 110 N. Y. 643; Record v. Village of Saratoga Springs, 46 Hun, 448; affd., 120 N. Y. 646.)

The charge was eminently fair and elaborate,1 /covering every issue of fact in the case, and by it the jury was correctly instructed in the rules of law applicable to those issues. The learned counsel for the defendant, not being satisfied with this presentation of the case to the jury, preferred thirty-eight requests to charge, eighteen of which were charged without qualification, though many of them were immaterial, and others were covered by the instructions previously given. Twenty requests were refused, some partially, and others wholly. Thereupon theMefendant’s coxinsel took this exception : “ I except to your honor’s refusal to charge those requests which you declined.” Many of the requests were untenable, others were irrelevant, and others had been covered by the charge as delivered. A general exception of this kind raises no question unless every one of the requests should have been granted in the terms in which they were preferred. (Hoyt v. The long Island R. R. Co., 57 N. Y. 678; Smedis v. Rockaway Beach R. R. Co., 88 id. 13; Read v. Nichols, 118 id. 224; Huerzeler v. C. C. T. R. R. Co., 139 id. 490; Bearer v. Taylor, 93 U. S. 46.)

An examination of the entire record fails to disclose any error calling for a reversal of the judgment, which, and the order denying a motion for a new trial, should be affirmed, with costs.

Parker, J., concurred.

Yan Brunt, P. J.:

I concur in the conclusion arrived at by Mr. Justice Follett in the case at bar. I cannot, however, concur in the statement in his opinion, as applicable to this case, that the Supreme Court being a court of general jurisdiction, its jurisdiction must be presumed and cannot be questioned, unless the want of jurisdiction is shown at the trial, or appears upon the record. In respect to foreign corporations the Supreme Court has never been a court of general jurisdiction. It has no jurisdiction of actions against foreign corporations, except sucli as is conferred by statute. Hence the rule which ordinarily applies to this court as a court of general jurisdiction cannot obtain in actions against foreign corporations. It must appear somewhere in the record that jurisdiction exists.

The.pleader, in drawing the complaint in the case at bar, evidently understood this position, because he alleges that the defendant is a foreign corporation, and that the plaintiff is a resident of the State of New York, bringing himself within the class of persons who may resort to the courts of this State for the purpose of redressing wrongs received by them from foreign corporations. This allegation in regard to the residence of the plaintiff is presumed, under the ordinary rules governing allegations of time in a complaint, to refer to the conditions existing when the action was begun, unless it appears otherwise from the pleading. It is true that this allegation of residence was denied by the answer; but the record contains evidence in regard to the residence of the plaintiff, and no objection seems to have been taken at the trial that this allegation of the complaint was not proven. We may, therefore, fairly infer that all claim in that behalf was abandoned, no point having been made in respect thereto, and that the evidence, meagre as it is, was considered sufficient.' Under these circumstances it is too late now to raise the question of residence, and-claim want of jurisdiction because that fact is not established.

It is undoubtedly true that if the record had contained evidence showing that this plaintiff was not a resident of this State at the time of the commencement of the action, the court might, at any stage of the action, of its own motion, raise the question and dismiss the action. (Robinson v. Oceanic Steam Navigation Company, 112 N. Y. 315.)

Eor the other reasons stated in the opinion of Mr. Justice. 3?!ol-lett I concur in the affirmance of the judgment. . ’:

Judgment and order affirmed, with costs..


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    Herbert L. Harding and Edward J. H. Tamsen, as Sheriff of New York County, Appellants, v. John M. Elliott, Respondent, Impleaded with Others.

      Attachment against a non-resident debtor who has defaulted but against whom judgment has not been entered — action by sheriff in aid of the attachment — the solvency of the debtor, hindering and delaying a creditor, by reason of his having sufficient property in another State, not material — a decision not stating separately the law cmd the facts justifies a final judgment by the appellate court.

    Where a judgment is entered upon a decision which does not state the facts found separately from the conclusions of law, the court is required to review all questions hoth of fact and law; and is authorized, instead of granting a new trial, to grant to either party the judgment which the facts warrant.
    A conveyance of property situated in the State of New York made "by a nonresident debtor is fraudulent if made with intent to hinder or delay a creditor in the collection of his debt, although such debtor has ample property in another State to pay her debts.
    Since the amendments made by chapter 504 of the Laws of 1889 to sections 649 and 655 of the Code of Civil Procedure relating to the subject of attachments, property held by the fraudulent transferees of a non-resident debtor may be attached by his creditor and the fraudulent conveyance may be set aside in an action brought by the sheriff and the-creditor in aid of the attachment, notwithstanding the fact that no judgment has been recovered by the creditor against his debtor.
    In an action brought under article 2, title 3, chapter 7, of the Code of Civil Procedure, in aid of an attachment and to set aside an assignment, it appeared that Annie C. Severance, a non-resident of the State of New'York, was indebted to Herbert L. Harding, who was joined with the sheriff as a plaintiff in the action; that Harding had begun an action in the Supreme Court against Mrs. Severance upon a claim against her for professional services; that she was served with the summons by publication, had not appeared generally in that action, and that no judgment had been entered therein; that an attachment was granted therein, and was served on bankers who then held moneys of Mrs. Severance in excess of Harding’s claim; that Mrs. Severance appeared specially in that action, and succeeded in having the attachment vacated; that a second attachment was granted; that in the meantime the bankers had paid out most of the money, although there still remained enough to satisfy Harding’s claim, but that the bankers made a return to the sheriff that Mrs. Severance had assigned the moneys on deposit with them to J. M. Elliott, whom they understood to be a resident of the State of California.
    The bankers, pursuant to an order of the court, paid the deposit to a trust company to await the decision of the action between Harding and Elliott, upon the trial of which it appeared that the transfer was made to prevent Harding from collecting his debt from Mrs. Severance.

      Held, that, as the transaction was intended to hinder and delay Harding in the collection of his claim, it was fraudulent and void, notwithstanding the fact that. Mrs. Severance had property in a foreign State sufficient to pay'all her debts;
    That under subdivision 2 of section 655 of the Code of Civil Procedure the action could be maintained, although no j udgment had been recovered • for the debt.
    Appeal by the plaintiffs, Herbert L. Harding and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 10th day of July, 1895, upon the decision of the court rendered after a trial at the New York Special Term dismissing the plaintiffs’ complaint upon the merits.

      John 8. Meloher, for-the appellants.

      David Murray, for the respondent.
   Follett, J.:

This action was begun October 5,1893, to set aside an assignment of Annie C. Severance to John M. Elliott of $15,000 on deposit with Kountze Bros., on the ground that it was made with intent to hinder, delay and defraud the plaintiff Harding. The action was brought by leave of the court in aid of an attachment, pursuant to article 2, title 3, chapter J of the Code of Civil Procedure.

June 27,1893, Herbert L. Harding began an action in the Supreme Court against Annie C. Severance to recover a judgment for $10,100 alleged to be due him from her for professional services and disbursements rendered in the State of Massachusetts, of which State Harding is a resident. Mrs. Severance is a resident of the State of California, and the summons was served on her by publication June 29, 1893, but she has not appeared in the action, and no judgment has been entered therein. June 27, 1893, an attachment was granted in the action, which, June 29, 1893, was served onKountze Bros., bankers in the city of New York, who then held on deposit $148,125 belonging to Annie C. Severance. This deposit was held under the following receipt:

“ KoüNTZE BROTHERS, BANKERS.

“ $148,125. New Yore, June 27, 1893.

“Received from Merchants’ Natl. Bk., N. Y., One hundred.& forty-eight thousand one hundred & twenty-five dollars, which, at tbeir request, we credit to account of Bank of America, Loe Angeles, Cal., for use of Annie C. Severance, as per our Letter of Advice No. 9525, issued this day.

“ per pro KOUNTZE BROTHERS,

“ H. R. Phillips.”

July third Mrs. Severance appeared specially in the action, and served a notice of motion for July 11, 1893, for an order vacating the attachment, which motion was granted July 20, 1893, and the next day an order vacating the attachment was entered. After the service of the first attachment, and before July 15, 1893, Kountze Bros, paid out all of the money held under the foregoing receipt upon the checks of the Bank of America, except $15,000. July 20, 1893, a second attachment was issued in the action, which on the same day was served on Kountze Bros., who, on the day following, gave the sheriff this certificate:

“Hon. JohN J. GoRMAN, Sheriff,

“ City and County of New York :

“ Dear Sir — Asa return to the W rit of Attachment served upon us July 20, 1893, in the above-entitled suit, we have to state that the balance • of the moneys, to wit, Fifteen Thousand Dollars ($15,000),- remaining out of the moneys heretofore deposited with us June 27,1893, by the Merchants’ National Bank of New York, for the credit of the Bank of America of Los Angeles, Cal., for the use of Annie C. Severance with them, was on or before July 12, 1893, assigned by said Annie O. Severance to J. M. Elliott, who, we understand, is a resident of the State of California. The said $15,000 is still in our possession.

“Yours respectfully,

. “KOUNTZE BROS.”

Upon the levy of the first attachment Kountze Bros, telegraphed the fact to the Bank of America at Los Angeles, which, July 12, 1893, telegraphed Kountze Bros, as follows:

“ Referring to letter Yan Slyck 6th, accept his instructions in disposing of special $15,000, so that second attachment cannot lie. When delivered deposit less counsel fees and just charges with First National Bank for personal credit J. M. Elliott. Advise by telegram such deposit.”

Kountze Bros, did not make tbe deposit pursuant to this telegram, but held tbe fund until July 13,1895, when they paid it over to the Farmers’ Loan and Trust Company pursuant to an order of tbe Special Term, entered July 8, 1895. Kountze Bros, bad previously answered in tbe action, but on making this deposit they were discharged from further liability, and have no further interest in the result of this litigation, which has become simply a contest between the plaintiff and John M. Elliott as to which has the better right to the fund.

. The learned justice who rendered the judgment appealed from did not “ state separately the facts found,” but filed “ a decision stating concisely the grounds ” on which the issues were decided, as permitted by section 1022 of the Code of Civil Procedure, as amended in 1894, and so the issue whether the transfer by Annie C. Severance to John M. Elliott of the fund held by Kountze Bros, was made with intent to hinder and delay Herbert L. Harding has not been specifically determined. However, the learned justice, in his opinion, states that the evidence would fairly justify a finding that the transfer was. made to prevent Harding from collecting his debt. The testimony of Annie C. Severance and of John hi. Elliott, read in connection with the documents in evidence, shows beyond doubt that the transfer by her to him of the $15,000 standing to her credit with Kountze Bros, was made by her and received by him for the sole purpose of hindering, delaying and preventing the plaintiff from collecting a just debt (the amount of which only was in dispute) by means of an action brought in this State. It is asserted that a conveyance made for this purpose by a person having ample property in another State to pay all her debts is not fraudulent, and that it is necessary to show the insolvency of the debtor. We think that the solvency of Mrs. Severance does not render the transaction valid, for it is shown beyond dispute that she has no other property within this State, and that by this transfer she sought to prevent Harding from enforcing his demands by an action. It is enough under the statute if the creditor is hindered or delayed in the collection of his debt by a transfer executed for that purpose.

In Chamley v. Dunsany (2 Sch. & Lef. 690, 114) it was held by the House of Lords that a conveyance by a debtor, made with intent to binder or delay his creditor, may be set aside, though the creditor lias sufficient property remaining undisposed of out of which the debt could have been collected. This rule was declared by Lord EldoN in the case cited, and, so far as we know, has never been questioned. It was distinctly recognized in Fox v. Moyer (54 N. Y. 125), where it was held : “ It is only when one makes a voluntary conveyance in good faith, with no intent to defraud his creditors, that it will be upheld by proof showing that when he made it he retained an ample estate to pay all his debts.”

In Kimball v. Thompson (58 Mass. 441) it was held that a conveyance by a debtor of his property to prevent it from being attached was void, although the debtor believed that it would be better for his creditors to make the conveyance, and intended in the end to pay ali bis creditors. The same rule was declared by Mr. Justice Stoby in Bean v. Smith (2 Mason, 252, 284), in which he said: “ It is far from being necessary in all cases that it should appear that a creditor would sustain a loss unless a fraudulent conveyance be set aside.”

In Hager v. Shindler (29 Cal. 48) it was held that if the conveyance were made with intent to hinder or delay creditors, it should be set aside without regard to the financial condition of the fraudulent transferer. It was tersely said in that case : “ A rich man may make a fraudulent deed as well as one who is insolvent.”

The same principle was recognized in Billings v. Russell (101 N. Y. 226), where it was held that a mortgage given to secure a just debt might be set aside by a creditor if it were shown that the parties to the instrument executed it for the purpose of preventing the property mortgaged from being reached by a creditor.

"We have no doubt that the transfer attempted to be made by Mrs. Severance to the defendant Elliott was fraudulent and void as against TIarding, and that Elliott held the $15,000 as trustee ex m,alefieio for Harding. The only remaining question is, can the interest of Mrs. Severance and Elliott be reached by an attachment and an action brought in aid thereof ?

In 1888 it was held that the right of a creditor to set aside a fraudulent transfer by a debtor could not be enforced through an attachment ■.and-an action brought in aid thereof, unless the creditor bad recovered a judgment for his debt. (Throop Grain Cleaner Co. v. Smith, 110 N. Y. 83; S. C., 34 Hun, 91; 3 How. Pr. [N. S.] 290.) In 1889 (Chap. 504, Laws of 1889) subdivision 4 was added to section 649 and subdivision 2 to section 655 of the Code of Civil Procedure.

“ Sec. 649, subdiv. 1. * * *

“ Subdiv. 2. * * *

“ Subdiv. 3. * * *

“ Subdiv. 4. Upon property discovered in any action brought as prescribed in subdivision two of section six hundred and fifty-five of this act, by entering in the proper clerk’s office the judgment rendered in said action, and thereafter levying on said property in the manner prescribed in subdivisions one, two and three of this section.”

“ Sec. 655. * * *

“ Subdiv. 2. Where the summons was served without the State, or by publication, pursuant to an order obtained for that purpose, as prescribed in chapter fifth of this act, and where the defendant has not appeared in the action (otherwise than specially) but has made default and before entering final judgment, the sheriff may, in aid of said attachment, maintain an action against the attachment debtor, and any other person or persons, or against any other person or persons, to compel the discovery of anything in action, or other property belonging to the attachment debtor; and of any money, thing in action, or other property due to him, or held in trust for him, or to prevent the transfer thereof, or the payment or delivery thereof, to him or any other person, and the sheriff may, in aid of said attachment, also maintain any other action against the attachment debtor and any other person or persons, or against any other person or persons, which may now be maintained by a judgment creditor in a court of equity, either before the return of an execution in aid thereof, or after the return of an execution unsatisfied. The judgment in any of the above-mentioned actions must provide and direct that the said property shall be applied by the sheriff to the satisfaction of any judgment which the plaintiff may obtain in the attachment action.”

It is apparent, we think, that these provisions were added to the Code to change the rule declared' in the case last cited and to enable creditors to collect their debts out of the property of non-resident debtors which should be conveyed for the purpose of defrauding creditors, and that, under the Code as amended, property held by fraudulent transferees may be attached by the creditors of a fraudulent transferer and the conveyance set ■ aside by an action brought by the sheriff in aid of the attachment. That such was the purpose of the section is held in Backus v. Kimball (62 Hun, 122) and in Whitney v. Davis (88 id. 168). The case provided for by section 655 is precisely the one at bar. The fraudulent transferer is a nonresident of the State; the summons in the action in which the attachment was issued has been served by publication; the defendant has not appeared, but has made default, and no judgment has been recovered. These facts are alleged in the complaint and were proved on the trial, and we are of the opinion that the plaintiffs established the right to have the transfer set aside as fraudulent. Under section 1022 of the Code of Civil Procedure, when a judgment is entered on a decision which does not state separately the facts found, this court is required to review all questions of fact and law, and is authorized, instead of granting a new trial, to grant to either party the judgment which the facts warrant. The fraudulent character of the transfer being established by the testimony of the defendant Elliott and by Mrs. Severance, the fraudulent transferer, there is no reason for a new trial of the issue, and a judgment should be ordered reversing the judgment of the court below, with costs, and declaring that the transfer from Mrs. Severance to the defendant Elliott was fraudulent and void as against the plaintiff Harding; that it should be set aside and the money paid over by ICountze Bros, to the Fanners’ Loan and Trust Company should be held to be subject to the attachment and paid over in satisfaction of the debt of Harding when the amount thereof shall be judicially established. The plaintiffs are entitled to costs in this court and in the court below, to be taxed, and the judgment to be entered thereupon will be a lien on the fund and payable therefrom.

VaN BeüNt, P. J., and Paekeb, J.; concurred.

Judgment reversed and judgment directed for plaintiffs as directed in opinion, with costs in this court and in the court below.