Volume 147 — New York Reports

The appeal was heard September 17, 1895, at a special session of the court, convened in accordance with the provision of the Constitution (Art. 3, § 5), that “ any court before which a cause may be pending involving an apportionment, shall give precedence thereto over all other causes and proceedings, and if said court be not in session, it shall convene promptly for the disposition of the same.” On September 27, 1895, the court rendered the following decision: “ 1st. That…

Appeals from orders of the General Term of the Supreme Court in the first judicial department, made April 11, 1895, which affirmed orders of Special Term dismissing writs of certiorari. The facts, so far as material, are stated in the opinion. The sum invested in this state by the relator was the surplus of its assets in this state after deducting the indebtedness incurred by it in the acquisition of such assets.

The action was brought against Daniel W. Powers, personally and as executor of, and trustee under, the will of Martha Dunlap, deceased, and the following corporations: The Rochester City Hospital, the Rochester Home for the Friendless, the Industrial School of Rochester, the Rochester Orphan Asylum and the Rochester Female Charitable Society. The nature of the action and the. facts, so far as material, are stated in the opinion.

<p>Appeal from portions of a judgment of the General Term of the Supreme Court in the fifth judicial department, entered October 18, 1894, which modified and affirmed, as modified, a judgment in favor of the plaintiff entered upon a decision of the court on trial at Special Term.</p> <p>This action was brought to determine the conflicting classes of creditors of Benjamin F. Van Camp to a fund of $6,423.20, in the hands of the sheriff of Orleans county, ¡proceeds of real estate of van Camp sold by the sheriff upon execution on the 15th of February, 1889. In June, 1888, the debtor van Camp absconded from the state owing debts to a large amount. IJpon the facts becoming known various suits were commenced by creditors, in which attachments were obtained on the ground that Yan Camp, being a resident of the state, had departed therefrom with intent to cheat and defraud his creditors and to avoid the service of summons, and were levied upon his real and personal property in the county of Orleans. Judgments were subsequently recovered in favor of. the several plaintiffs in the attachment actions, and executions thereon issued to the sheriff of Orleans county in the form prescribed by sec. 1310 of the Code of Civil Procedure. The sheriff collected several thousand dollars out of the" personal property of van Camp5 which has been distributed and as to which no question arises on this appeal. The controversy is narrowed to two questions: First, as to the correctness of that part of the decree of the Special Term which "awarded payment of the Brown judgment, so called, out of the fund, in priority to the Orleans County Bank judgment and the judgment in favor of Sawyer, and, second, whether the Special Term correctly awarded priority of payment of the Kelsey judgment over the bank and Sawyer judgments.</p> <p>The General Term affirmed the decree of the Special Term in both of these particulars, and from such affirmance the Orleans County Bank and Sawyer appeal. In general it may be stated that the appellants claim that the sale of the real estate was not on the Brown judgment and execution, but was made 'subject thereto, and was not, therefore, entitled to be paid out of the fund. In respect to the Kelsey judgment the claim is that the bank and Sawyer judgments were prior in date, and that the Kelsey attachment, though first issued and levied, was ineffectual because the action was not one in ■which an attachment is allowed.</p> <p>The material facts may be briefly stated. The Brown judgment long antedated the absconding of Van Cam}). It was recovered June 17, 1882, for $418.25. In April, 1886, it was conditionally discharged by order of the court, the condition being that the lien of the jflaintiff’s attorneys thereon and the right to enforce it for their protection should not be prejudiced by the offset allowed. In November, 1888, the court on application of the attorneys (Keeler and Salisbury), and on proof that the plaintiff in the judgment was a non-resident, and that the lien of the attorneys for legal services exceeded the amount of the judgment, made an order permitting execution to be issued thereon against Van Camp, and execution was issued and delivered to the sheriff December 1,1888, and remained in his hands until after the sale of February 15, 1889. The Kelsey judgment for $2,084.11 was entered December 7, 1888. An attachment in the action was issued June 11,1888, and was levied on the real estate of Van Camp June 12, 1888. The first of the two judgments in favor of the Orleans County Bank and the judgment in favor of Sawyer were entered September 14, 1888, on suits commenced June 14, 1888, in which attachments were issued and levied on the same real estate on the same day. The first attachments against Van Camp were issued and levied June 11, 1888, in three separate suits commenced respectively by Briggs, Buell and others, and Ilallock, and judgments in these several actions were entered on or before September 13,1888, these attachments being earlier in date than the Kelsey attachment and judgment, or the attachments and judgments in favor of the Orleans County Bank and Sawyer. The Kelsey attachment was issued and levied before the attachments in favor of the bank and Sawyer, but the Kelsey judgment was subsequent to the bank and Sawyer judgments.</p> <p>The plaintiff in this action claims as assignee of the Kelsey judgment priority of lien on the fund to the lien under the bank judgment and the judgment of Sawyer. The bank and Sawyer contest the plaintiff’s alleged lien under the attachment in the Kelsey action on the ground above indicated. The judgment roll in the Kelsey action and the proceeding therein are contained in the record and disclose the following facts:</p> <p>The action was brought by one Adason Kelsey, as administrator with the will annexed of Amos Kelsey, deceased, against Benjamin F. Aan Camp. The complaint in the action alleged in substance that Aan Camp had been the executor of the will of Amos Kelsey from October 24, 1881, to June 1, 1888 ; that on the 21st of December, 1883, lie accounted before the surrogate of Orleans county, the county in which the will was proved, and liis accounts up to that date were judicially settled, and a decree entered adjudging that he then had in his hands as executor, after payment of all expenses of . the execution, of the will up to said date, the sum of $5,704.74, which sum he was directed by the decree to retain in his hands as executor during the life of the widow of the testator, or until the further order of the court, paying meanwhile the income to the widow ; that the widow died February 15,1887, and that no further order of the court had been made for the disposition of the fund; that the defendant Van Camp had, since the death of the widow, sold real and personal property of the estate and converted the same into money, and had received as executor the sum of at least $10,000; that the defendant was duly cited to render an account before the surrogate on June 11, 1888 ; that he failed and neglected to appear on the return day of the citation, although the citation had been duly served on him, or to render any account; that thereupon, on said 11th day of June, 1888, Van Camp Avas duly removed from his office as executor and his letters were revoked, and letters of administration AAÚtk the will annexed Avere issued to the plaintiff. The complaint further alleged that the defendant had wrongfully and unlawfully disposed of and converted the said property and moneys to his own use to the damage to the estate of §10,000, for which sum judgment was demanded, with interest. The complaint was verified, and was read on the application for an attachment. In addition, the affidavit of the plaintiff was presented, stating, among other things, that “ a cause of action exists in favor of the plaintiff against the defendant above named, for the unlawful and wrongful disposing of and conversion of personal property of the estate of Amos Kelsey, deceased, of the amount of §10,000, and that the business of the estate was substantially closed a long time ago.” The affidavits presented also set forth facts tending to show that the defendant had absconded from the state, with intent to defraud his creditors and to avoid the service of a summons. A warrant of attachment was, therefore, issued, and no question is made as to the validity of the attachment, except that there was no jurisdiction to issue an attachment for the cause of action stated in the complaint.</p> <p>The sale of Yan Camp’s real estate (which produced the fund in question) was made under the following circumstances: On the 29tli day of October, 1888, the sheriff of Orleans county, who then held execution on the Briggs, Buell and Hallock judgments, and also on the first judgment in favor of the Orleans County Bank and on the Sawyer judgment, duly advertised the real estate for sale on December 15,1888. The notice recited that “ by virtue of several executions issued out of the Smpreme Court and to me directed and delivered against the property of Benjamin F. Yan Camp, I have seized all the right, title and interest which the said Benjamin F. Yan Camp had in and to the following described real property, on the 11th day of June, 1888, or at any time thereafter, and I shall expose for sale,” etc. On December 15, 1888, the sheriff duly postponed the sale “ pursuant to the above notice ” (of October 29, 1888) to February 15, 1889. Other executions, had come to the sheriff’s hands after October 29, 1888, and prior to December 15, 1888, and, among others, executions on the Brown judgment, the Kelsey judgment, and a second judgment in favor of the Orleans County Bank. On the 18th day of December, 1888, a supplementary notice of sale for the 15th of February, 1889, on executions “ in favor of the Orleans County Bank and Sawyer,” was advertised by the sheriff. On February 15, 1889, the sale took place. The sheriff announced that the sale was to be made on the Briggs, Buell, Hallock, Orleans County Bank and Sawyer judgments. The Kelsey execution was withdrawn immediately before the salej and the execution on the Brown judgment, although held by the sheriff (issued after the publication of the original notice), was not one of the executions mentioned in the sheriff’s announcement.</p> <p>The judgment below directed distribution of the fund after payment of costs in payment of the judgments in the following order: (1) Brown judgment; (2) Hallock id.; (3) Briggs id.; (4) Kelsey id.; (5) bank and Sawyer id. This appeal calls in question alone the priority awarded to the Brown and Kelsey judgments and the bank and Sawyer judgments. Other facts are stated in the opinion.</p> <p>The plaintiff, by withdrawing the Kelsey execution from the hands of the sheriff, took from him all power and authority to sell real estate. (Abeel v. Anderson, 39 Hun, 515 ; Valicer v. Henry, 85 N. Y. 130; Watrous v. Lathrop, 4 Sandf. 700; Code Civ. Pro. §§ 697, 1251, 1405, 1406, 1440, 1457, 2472.) Plaintiff had no right to an attachment and has no valid claim upon the fund. (Morse v. Smith, 42 N. Y. S. R. 168; Hard v. Ashley, 117 N. Y. 606; Thorington v. Merrick, 101 N. Y. 5; Ackroyd v. Ackroyd, 20 How. Pr, 93; Williams v. Furman, 26 Wkly. Dig. 493; Goldsmith v. Huston, 28 Wkly. Dig. 160; Code Civ. Pro. § 635 ; Williams v. Furman, 9 N. Y. S. R. 373.) The sheriff had no authority to sell on the Brown judgment. ( Wehmon v. Asseppermot, 18 N. Y. S. R. 339 ; In re W. S. E. P. Co., 12 N. Y. Supp. 478; Lamont v. Cheshire, 65 N. Y. 30; Code Civ. Pro. § 1434; Husted v. Dakin,, 17 Abb. Pr. 137; Mascraft v. Van Antwerp, 3 Cow. 334.) The plaintiff and Keeler & Salisbury are estopped from setting up an entirely different claim. (Reynolds v. Parks, 53 N. Y. 36; Winslow v. McCall, 32 Barb. 247; In re W. S. E. P. Co., 12 27. Y. Supp. 478.) The bank and Sawyer only having appealed to this court, if their contention prevails, are entitled to the money adjudged by the courts below to belong to the Kelsey and Brown judgments. (Cudahy v. Rhinebeck, 133 N. Y. 248.)</p> <p>The provision of the judgment, so far as it relates to the proceeds of the personal property, is right. The rule is the same as to the proceeds of the real estate. (Code Civ. Pro. §§ 697, 1405, 1406; Lewis v. Douglass, 25 N. Y. S. R. 240; 53 Hun, 587; Yale v. Mathews, 12 Abb. Pr. 379.) The appellants are not in position to challenge the judgment as to the plaintiff. (West v. Exch. Bank, 44 Barb. 175; Fleischman v. Stern, 90 N. Y. 110.) The findings of facts are supported by the evidence.. (Buell v. Van Camp, 119 N. Y. 160.) By the papers a cause of action was shown to exist in the plaintiff’s favor. (Code Civ. Pro. §§ 635, 732; Young v. IIeermans, 66 N. Y. 383; Walton v. Walton, 4 Abb. Ct. App. Dec. 516; Clapp v. Meserole, 1 Abb. Ct. App. Dec. 362; Kissock v. Grant, 34 Barb. 144; Miller v. Brinkerhoff, 4 Den. 118; Skinnion v. Kelly, 18 N. Y. 354; Kibbe v. Wetmore, 31 Hun, 424.) The judgment cannot be attacked in this action except for fraud or want of jurisdiction either of the subject of the action or of the defendant. ( White v. Bogart, 73 N. Y. 256; Mӕschler v. Lochte, 12 N. Y. S. R. 855; Denman v. McGuire, 17 Wkly. Dig. 504; Gere v. Gundlach, 57 Barb. 13; Gilmore v. Ham, 29 N. Y. S. R. 751.) The judgment is conclusive upon defendant as to all matters which were or could have been litigated in the action. (Parker v. Rochester, 4 Johns. Ch. 329; People v. II. P. Co., 88 N. Y. 623 ; Goebel v. Iffla, 111 N. Y. 170 ; Gates v. Preston, 41. N. Y. 113; Newton v. Hook, 48 N. Y. 676; Bulger v. Rosa, 47 Hun, 436.) All intendments are in favor of the validity of a judgment rendered by a court of general jurisdiction until the Avant of jurisdiction is conclusively shown. (Maples v. Mackey, 89 N. Y. 146; Fischer v. Langbien, 103 N Y. 84.) By the sale of the land under the executions upon the judgments in the Hallock and Briggs action in which such attachments had been so delivered and levied prior to the delivery and levy of the attachment in Kelsey’s action the lien of Kelsey’s judgment, except for the purposes of redemption, was transferred to the proceeds of the sale of the lands. (Averill v. Loucks, 6 Barb. 470; Code Civ. Pro. § 1449.) These appellants did not controvert the allegations of the complaint; they are not now in a position to assail the rights of Keeler & Salisbury under the judgment. (Code Civ. Pro. §§ 521, 1434, 1435; Edwards v. Woodruff, 90 N. Y. 396 ; Ostrander v. Hart, 130 N Y. 406.) Appellants seem to base their contentions against the right of Keeler & Salisbury to take proceeds of the sale under the Brown judgment upon the fact that the sheriffs certificate of sale did not state that the sale was made upon the execution upon the Brown judgment. It was not necessary that the certificate should specify under what judgment or execution it was sold. (Code Civ. Pro. § 1438.) Yan Camp was personally liable to Keeler & Salisbury and Jones, Keeler & Salisbury for services rendered, to recover for which the action was brought, and upon his accounting would have been entitled to reimbursement for the same. (Mygatt v. Wilcox, 45 N. Y. 306; 1 Lans. 58; McMahon v. Allen, 4 E. D. Smith, 519 ; Bowman v. Tollman, 2 Robt. 385.) The affidavits upon which the attachment was granted were sufficient. (Buell v. Van Camp, 119 N. Y. 160.)</p>

' The nature of the action and the facts, so far as material, are stated in the opinion. The exclusion of the evidence that the demised premises became untenantable and dangerous for occupancy by reason of the use made by the plaintiff of the open sewer was improper, and the exception was well taken. (Dyett v. Pendleton, 8 Cow. 728; Edgerton v. Page, 20 N. Y. 281; Tollman v. Murphy, 120 N. Y. 345; H. L. Ins.

The mandate of commitment, or final order entered in the proceeding in the court of sessions, was as follows: “ On the 12th day of May, 1894, the matter again came before us, on all the papers in the proceeding, the parties appeared in person and by counsel and after hearing Matthew Hale, Esq., of counsel for the defendants, and James W. Eaton, Esq., district attorney of the county of Albany, we did determine and adjudge the said William Barnes, Jr., George N. South wick and…

606). The award should have been set aside and a new appraisal ordered, the commissioners having erred in failing to allow for benefits to the defendant by reason of the operation of the plaintiff’s elevated railroad. (Code Civ. Pro. § 3360 ; N. Y., L. & W. R. Co. v. Arnot, 27 Hun, 151; N. Y., W. S. &. B. R. Co. v. Le Fevre, 27 Hun, 537; Rich v. N. Y. El.

<p>1. Street. Railroads—§ 46 of the Railroad Law of 1850. Section 46 of the General Railroad Law of 1850 (Chap. 140), exempting railroad companies from liability for injuries received by a passenger while on the platform of a car in violation of posted regulations, provided proper accommodation was furnished inside the car, was never intended to apply to a street railroad operated by horse cars.</p> <p>2. Railroad Law of 1850. The charter of a street railroad company contained a provision permitting it to be organized under the General Railroad Law of 1850, and providing that if so organized the provisions ■of that law should apply to it. Held, that this did not give section 46 of that law any broader application than was intended by the legislature when originally enacting it, and, heneo, did not render that section applicable to the company.</p> <p>3. Riding on Platform—Regulation and Notice. A passenger having been injured while riding on the front platform of a horse car, smoking a cigar, brought an action against the street railroad company to recover damages on the ground of negligence, and recovered a judgment. There was at the time a notice posted in the car prohibiting riding on the front platform, but there was a regulation of the company in force that “smoking on the closed cars is prohibited except on the front platform." Held, on affirming the judgment, that the exemption from liability conferred by section 46 of the Railroad Law of 1850 did not apply to the street railroad company; but that, if this were otherwise,"’the regulation might well be deemed to modify the notice and operate as a waiver of any immunity conferred by that law.</p>

This action was brought upon an alleged account stated. The answer, while admitting the co-partnership of plaintiffs as alleged, denied that any account had been stated between the parties, but admitted that an account had been rendered by the plaintiffs upon the day upon which it was alleged the account had been stated, showing the balance claimed, and alleging that defendant had not then the means of ascertaining whether the same was correct or not; and he denied that he…

<p>1, Religious Corporation—Unauthorized Employment—Ratification. In an action brought against an incorporated Methodist Episcopal church to recover for services alleged to have been rendered and expenses incurred in prosecuting its pastor before the church tribunal and obtaining his suspension from the ministry, it appeared that defendant’s board of trustees, acting officially, never employed the plaintiff or authorized his expenditures. Held, upon a review of the evidence, that the facts failed to establish an alleged ratification of the unauthorized employment, and hence plaintiff could not recover.</p> <p>2. Religious Corporation — Power op Trustees. Qucere, whether the trustees of an incorporated Methodist Episcopal church, having charge of its temporalities and representing it in its corporate capacity, have a legal right to contract a debt for the purpose of prosecuting before a church tribunal a minister charged with immorality.</p>

<p>1. Manufacturing Corporations — Leasehold. A leasehold of a "building required by a manufacturing corporation for a manufactory is “ property ” necessary for the business of the corporation, within the meaning of chapter 333, Laws of 1853.</p> <p>2. Stockholder’s Liability— Exemption. The exemption from personal liability under section 10 of the Manufacturing Act of 1848 (Chap. 40), formerly conferred by chapter 333, Laws of 1853, upon holders of stock issued in payment for “ manufactories and other property necessary for the business of” the corporation, held, to extend to the lessor of a building required by a corporation for a manufactory, on stock issued to him prior to the repeal of said acts under an agreement, made on his consenting to an assignment of a lease of the building to the corporation, to accept stock in lieu of cash for the rent to accrue during the first year thereafter.</p> <p>3. Repeal op Statute. Held, also, that the right of exemption accrued! when the holder of the stock became its owner, and, therefore, was not affected by the subsequent repeal of chapter 40, Laws of 1848, and chapter 333, Laws of 1853, by the Stock Corporation Law of 1890 (Chap. 564), but was protected by the saving clause (§ 71) of that law.</p>

<p>1. City of Buffalo—Local Assessments. The provision of section 145 of the charter of the city of Buffalo (Chap. 105, Laws of 1891) which declares that the board of assessors shall assess the amount ordered to be assessed for local improvements upon the parcels of land benefited by the improvement, in proportion to such benefit, has the effect of making the board of assessors the proper body to fix the district of assessment for local improvements.</p> <p>2. Correction of Assessment. When, on a proceeding by certiorari, under section 101 of the charter of the city of Buffalo, to review an assessment for a local improvement, it appears that through inadvertence or an error of judgment on the part of the assessors property of the relator not benefited by the proposed improvement, and, therefore, not assessable, had been included in the assessment with benefited property belonging to him which was properly assessable, and no illegality is found going to the jurisdiction of the assessors to assess the benefited property, such inclusion is to be deemed a defect which will warrant the court in sending the assessment roll back to the common council “to amend or correct, it according to law," as provided by subdivision 5 of said section, instead of ordering it to be canceled as illegal.</p> <p>3. Local Impboyement ■—Pbopebty Benefited. ' On the review of a local assessment for the improvement of a stream it cannot be said as matter of law that land abutting on the stream, although above the point where the improvement terminates, is not benefited thereby, when by the removal of obstructions below, at a comparatively small' expense, the extension of navigation along the land above is rendered possible.</p>

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made December 14, 1894, which affirmed an order of Special Term denying a petition by appellant to be made a party to the action.</p>

<p>Motion to amend remittitur.</p>