Volume 156 — New York Reports

Feeny, opposing candidates for the office of president of the borough of Richmond, at the charter election in the city of ¡New York ¡November 2, 1897. The facts, so far as material, are stated in the opinions. All erasures of writing or marks are expressly prohibited by the statute and render the ballot void, (Election Law, ¡§ 105 ; People ex rel. v. Collin, 19 App.

This action was brought to recover damages for a personal injury alleged to have been occasioned by the negligence of the defendant. The facts, so far as material, are stated in the opinion. The relation of master and servant must be shown to exist between the defendant.and the persons whose acts or omissions cansed.tlie injury before any liability can be established.

Black, Timothy E. Woodruff, James M. E. O’Grady and Frederick P. Easton, commanding them as trustees and superintendent of public buildings to reinstate the relator, Michael Broderick, in his employment as laborer in the Capitol building, without prejudice to an action or proceeding to recover damages for his removal. The facts, so far as material, are stated in the opinions.

<p>Appeal, by certification, from, a' judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 17, 1898, reversing an interlocutory judgment which sustained a demurrer to the complaint.</p> <p>The nature of the action, the facts, so far as material, and the question certified are stated in the opinion.</p> <p>A receiver of a foreign corporation appointed by the courts of another state cannot sue the corporation of which he is receiver in the courts of this state. (Hoyt v. Thompson, 5 N. Y. 320; Willitts v. Waite, 25 N. Y. 577; Petersen v. Chemical Bank, 32 N. Y. 43; Toronto G. T. Co. v. C., B. & Q. R. R. Co., 123 N. Y. 47; L. Bank v. Thorp, 6 Cow. 46; Barth v. Backus, 140 N. Y. 230; Runk v. St. John, 29 Barb. 585; Pugh v. Hurtt, 52 How. Pr. 22; Matter of Waite, 99 N. Y. 433; Gluck & Becker on ¡Receivers, etc., 223, § 52; Boswell v. Supreme S. O. I. H., 36 N. E. Rep. 1065; 161 Mass. 224; Hubbard v. Bank, 7 Metc. 340; Taylor v. Ins. Co., 14 Allen, 353; Folger v. Ins. Co., 99 Mass. 267; Verplanck v. M. Ins. Co., 2 Paige, 438; Attorney-General v. G. M. L. Ins. Co., 77 N. Y. 272; L. of New Jersey, 1896, ch. 185; Wilkinson v. Rutherford, 30 Vr. 241; Witlink v. Morris Canal Co., 3 Gr. [N. J.] Ch. 400; Corrigan v. T. D. F. Co., 5 Halst. [N. J.] Ch. 496; Freeholders v. State Bank, 2 Stew. 268; Nat. Trust Co. v. Miller, 6 Stew. 160; Rec. State Bank v. First Nat. Bank, 7 Stew. 456; Minchin v. Second Nat. Bank, 9 Stew. 436; Kirkpatrick v. Corning, 10 Stew. 54, 59.) The appointment of a receiver of a corporation is expressly prohibited by statute except in specified cases, of which the case at bar is not one. (Decker v. Gardner, 124 N. Y. 334; Slee v. Bloom, 5 Johns. Ch. 366-381; Attorney-General v. Utica Ins. Co., 2 Johns. Ch. 389; Bangs v. McIntosh, 23 Barb. 591; Howe v. Deuel, 43 Barb. 504; Waterbury v. M. U. Ex. Co., 50 Barb. 157; Belmont v. Erie R. Co., 52 Barb. 637; Hallenbeck v. Donnell, 94 N. Y. 342; Keeney v. Home Ins. Co., 71 N. Y. 396; U. S. Trust Co. v. N. Y.,. W. S. & B. R. Co., 101 N. Y. 478; Code Civ. Pro.. § 1810; Burgoyne v. E. & W. R. R. Co., 13 N. Y. Supp. 537; Hamilton v. Accessory T. Co., 26 Barb. 46; Code Civ. Pro. § 2463; Lehigh Coal & N. Co. v. Central R. R. of N. J., 43 Hun, 546.) A foreign receiver lias no standing in our courts to maintain an action of this character. (Code Civ. Pro. § 1780; Beach on Receivers, §§ 2, 7.)</p> <p>It is now well settled in this state that foreign receivers and assignees, taking their property by virtue of foreign laws or local proceedings in foreign courts, may come here and maintain suits in our courts when they do not come in conflict with the rights or interests of domestic creditors. (Toronto G. T. Co. v. C., B. & Q. R. R. Co., 123 N. Y. 37, 47; Petersen v. Chemical Bank, 32 N. Y. 21, 43; Matter of Waite, 99 N. Y. 433, 448.) The cause of action is local and the action is properly brought. (Code Civ. Pro. § 1780, subd. 3.) Administration of the property of a foreign corporation by means of an ancillary receiver is a well-recognized mode of relief. (Alderson’s Beach on Recrs. §§ 3, 28a; Woerishoeffer v. North River C. Co., 6 Civ. Pro. Rep. 113; Redmond v. Hoge, 3 Hun, 171; Walter v. McAlister Co., 21 Misc. Rep. 747; National Trust Co. v. Miller, 33 N. J. Eq. 155; Platt v. P. & R. R. Co., 54 Fed. Rep. 569.) The action is not primarily for the appointment of a receiver, but to secure the due administration of the property of the defendant within this state. Under the peculiar circumstances which here exist, however, the intermediate appointment of an ancillary receiver is the only means whereby the result sought can properly be attained, and such appointment is, therefore, prayed for in the complaint. (Alderson’s Beach on Recrs. §§ 131, 433 ; Gluck & Becker on Recrs. § 2.) The objection that the receiver cannot sue the corporation whose property is placed in his charge, because of his alleged identity with that corporation, is not a valid one. (Gluck & Becker on Recrs. § 42; Attorney-General v. Guardian M. L. Ins. Co., 77 N. Y. 272, 275.) The action is properly brought. (Buswell v. Order of I. H., 36 N. E. Rep. 1065; Williams v. Hintermeister, 26 Fed. Rep. 889; Redmond v. Hoge, 3 Hun, 171.)</p>

This action was brought to recover damages for personal injuries, alleged to have been caused by the negligence of defendants. The facts, so far as material, are stated in the opinion. Eo negligence was proven against the defendant-appellant. (L. 1890, ch. 398; Flannigan v. American G. Co., 11 N. Y. Supp. 688; L. 1887, ch. 566, § 15; Boehm v. Mace, 18 N. Y. Supp. 106.) . Eo error was committed in denying the defendant’s motion to dismiss the complaint.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff, on his‘own showing, was clearly guilty of contributory negligence.

This action was brought to recover damages for personal injuries'alleged to have been caused by the negligence of the defendant. The facts, so far as material, are stated in the opinion. The court erred in sustaining plaintiff’s objection to the question put to witness Julia F. Haywood relating to her opinion expressed on the first trial as to the permanency of plaintiff’s injuries, and to the question as to whether or not she was still of the same opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The contract of July 20, 1893, was valid and binding on botli parties, and could have been enforced by the defendant. (L. 1881, cli. 175, § 2; Lehigh Appeal, 129 Penn. St. 405; People v. Stephens, 71 N. Y. 549; Brooklyn H. R. R. Co. v. City of Brooklyn, 152 N. Y. 250; Meech v. City of Buffalo, 29 N. Y. 198, 219; Mayor, etc., v. Sands, 105 N. Y. 218; Sedgwick Const. & Stat.

This action was brought to recover damages for the publication of an alleged libelous article in “The Mail and Eatress” on the evening of the 7th day of November, 1892. The article reads as follows: “ British Gold to Help Cleveland. “ Democrats and their English Allies Attempt to Purchase Yotes.

The facts, so far as material, are stated in the opinion. When the interests of a holder in a liquor tax certificate have been duly assigned for value to an innocent third party, and that certificate has been surrendered and a duplicate rebate receipt issued to such assignee, he becomes the owner and holder thereof, and unless he is indicted within thirty days the said commissioner of excise has no right, whatever to retain the rebate moneys, and refuse to issue the orders…

The relator is an electric lighting corporation, and the assessment included $945,000 for United States patent rights. Further facts are stated in the opinion. The so-called patent-rights investment did not entitle relator to a deduction on the ground that there was an attempt to tax a patent of the United States. (Patterson v. Kentucky, 97 U. S. 501, 506; People v. Am. Bell Tel.

The plaintiff commenced this action to compel the Broadway Bank to transfer to its name certain shares of capital .stock, issued to and standing in the name of “ Philo P. Hotchkiss, trustee.” The6 defendant bank denied the plaintiffs ownership and set up the claim of title made thereto by Seth M. Tuttle, as alleged trustee of the shares, in succession to Hotchkiss.

<p>Appeal from a judgment of the late General Term of the Supreme Court in the first judicial department, entered January 26, 1895, affirming a judgment in favor of defendants entered upon a decision of the court dismissing the complaint on the merits on trial at Special Term.</p> <p>This action was commenced on the twentieth of November, 1891, to obtain an injunction perpetually restraining the further operation of the defendants’ railroad in Park avenue, formerly known as Fourth avenue, in the city of New York, opposite the-premises of the plaintiff, and for damages to the rental value thereof.</p> <p>In 1807, by chapter 115 of the laws of that year, three commissioners were appointed who were empowered to lay out streets and avenues upon the northern portion of Manhattan island, which included the locality in question. On April first, 1811, they filed a map showing the streets and avenues as they now generally ekist. Upon this map One Hundred and Fourth street was shown to be of the width of sixty feet, and Fourth avenue of the width of one hundred feet. That act also provided that the map, plans and surveys so made and filed should be final and conclusive as to the mayor, aldermen and commonalty of the city of New York, the owners and occupants of lands within the boundaries of the streets, and in respect to all other persons whomsoever. For many years after the filing of this map these streets remained unopened and had no existence, except that which resulted from their being designated as such on the map.</p> <p>In 1831, by a special act of the legislature (Oh. 263), the New York and Harlem Bailroad Company was incorporated,, with power to construct a railroad from any point on the north bounds of Twenty-third street to the Harlem river, between the east bounds of Third avenue and the west bounds of Eighth avenue, with the right to operate it by steam, or by any mechanical or other power that the company might choose to employ. By that act it was given the right' to locate its railroad and to file a map thereof in the office of the register of New York, but it was not to be filed until it should have been submitted to, and approved by, the common council. It was then authorized to build its road, to take all lands and real estate necessary for its construction, and to receive or take all voluntary grants or donations of land to aid in the accomplishment of that work. The act likewise provided that lands thus-taken, which were not donated, should, if the parties could agree, be purchased of the owners at a price agreed upon between them, and then provided for condemnation when an agreement could not be had. It declared that the corporation was authorized to construct such a railroad, to use single or double tracks, and that in case its railroad was located along any public street or avenue then laid out upon the map or plan of the city of New York, it should leave sufficient space in the street on each side of the railroad for a public highway for carriages and a sidewalk for foot passengers. It also provided that the corporation should not be deemed to be authorized to construct a railway across or along any of the streets-thus designated, whether open or not, without the consent of the mayor and aldermen, who were authorized to grant permission to the corporation to construct its railroad across or along the streets or avenues of the city.</p> <p>The provisions of this act were complied with by the New York and Harlem Bailroad Company, and it located its- roirte along the center line of Fourth avenue, from Twenty-third street to the Harlem river, and filed a map in the register’s-office, October 22, 1831, together with a resolution of the common council, approved by the mayor, authorizing the company to construct its road over' Fourth avenue. It obtained the consent of the municipal authorities to the loca1 tion of such road by an ordinance approved by the mayor December 22, 1831.</p> <p>At that time the locality which included the premises in question consisted of farm lands and salt meadows, known as a part of the “ Harlem Flats,” a portion of which was owned by one Margaret McGown. On the eighteenth of January, 1832, Mrs. McGown conveyed to the New York and Harlem Railroad Company and its successors a portion of the land owned by her, consisting of twenty-four feet of land running through the center of Fourth avenue between Ninety-seventh and One Hundred and Sixth streets for and during the period it might remain an incorporated company, on which to construct its railroad, but for no other purpose, with the right to slope its embankments or excavations so much farther beyond the line of the premises granted as might be necessary to support its work, not, however, to extend beyond the width of the avenue, which was one hundred feet.</p> <p>Some time anterior to 1835, the railroad company constructed along this portion of Fourth avenue a stone viaduct upon the land in question, upon which two tracks were laid. The only difference between the old viaduct and the one now complained of is that the width of the latter was increased sixteen feet on each side, and accommodated two additional tracks.</p> <p>In 1835, the matter of widening Fourth avenue from one hundred to one hundred and forty feet was brought before the common council by a petition requesting that the avenue be thus widened. One, if not the chief, ground upon which this was asked was the existence of the railroad in the center of that avenue. Subsequently, and in 1837, the street was widened to one hundred and forty feet.</p> <p>Fourth avenue was not opened until nearly twenty years after the construction of the defendants’ road over this part of it. In the proceedings for opening that street,. the city of New York assumed to acquire the title to the strip of land upon which the defendants’ road was constructed, and for which a nominal award of one dollar was made for each of the lots across which it passed. Bo attempt was made by the city to acquire the easements secured by the railroad company under its deed from Mrs. McGown, either as to its right to build and maintain its road along the strip purchased of her, or to slope its embankments and excavations so far as necessary to support the work. The possession by the railroad company of the portion of the street thus occupied was not attempted to be disturbed by the city. When the street was opened in December, 1853, the railroad was upon a high viaduct along the center of the avenue, which was in the exclusive possession of the Bew York and Harlem Bailroad Company. The portion so occupied has never been used as any part of the public street.</p> <p>In 1872, by chapter 702 of the laws of that year, the legislature passed an act to improve and regulate the use of Fourth avenue in the city of Bew York. That act authorized and required the railroad company to regulate the grade of its railroad in Fourth avenue in a manner specified, and to construct such viaducts, bridges, excavations, tunnels and openings as were therein described. It provided that from Fifty-sixth to Binetysixth street the railroad should run through a covered way with openings therein, and thence continue upon the grade as it then existed to the center of One Hundred and Fifth street. It also authorized the railroad company, for the purpose of facilitating rapid transit and accommodating local traffic, to lay two additional .tracks on such avenue, and to make such landings and excavations therein as might be required for the tracks and the entrance and delivery of its passengers outside of the excavations and viaduct. It created a board of engineers to execute, direct and superintend the construction of such improvement, the expense thereof to be borne by the city and the railroad company in equal proportions. It forbade the municipal authorities of the city from obstructing the use of Fourth avenue for that purpose above Forty-second street, authorized the municipal corporation to pass such ordinances as might be requisite or necessary to facilitate the improvement, provided that the railway be exclusively for the uses and purposes of the railroad company, and that the legislature might at any time alter, amend or repeal that act.</p> <p>This improvement -was carried on and completed under the direction of a board of engineers appointed by the legislature for that purpose. The height of the old viaduct at One Hundred and Fourth street, opposite the premises now owned by the plaintiff, was unchanged. The improvement at that point consisted in taking down the old viaduct and erecting a new one of the same height, but fifty-six feet wide. It was completed in 1813, in which year the Hew York and Harlem Railroad Company leased to the Hew York Central and Hudson River Railroad Company its railway for four hundred and one years. Since that time the railroad as then constructed has been in the possession of and operated by the latter company as such lessee.</p> <p>In 1881, fourteen years after the improvement directed by the statute of 1812 was completed, the plaintiff purchased her lot at the corner of Fourth avenue and One Hundred and Fourth street. It was a part of the premises owned by Mrs. McGown in 1832 when she deeded the land in Fourth avenue to the Harlem Railroad Company. Hpon the plaintiff’s lot there was at the time of her purchase, and still is, a three-story and basement brick and stone building used as a dwelling house. Since June, 1881, she has been the owner in fee and in possession and occupancy of the premises thus purchased.</p> <p>Since the lease to the Hew York Central and Hudson River Railroad Company it has maintained and operated the railroad upon such viaduct and runs thereon a large number of trains during the day and night drawn by locomotives, and in its operation steam, smoke, noxious and unpleasant gases, vapors, coal, soot, cinders, ashes and sparks have been and are frequently emitted from such locomotives which fall upon the plaintiff’s premises; loud and disagreeable noises have been and are produced by its operation; the free, steady and natural passage of light is interrupted, and dark shadows> and bright flashes of light are produced. The viaduct and railway structure are of a lasting and permanent nature, intended for continuous and permanent use, and the defendants intend to continue to maintain, use and operate a railroad thereon.</p> <p>The viaduct is about forty feet from the building line upon Fourth avenue. Of this, twenty-five feet in width on each side are used as a roadway for teams, carriages and other vehicles, and fifteen feet as a sidewalk. The street line is now forty-two feet from such viaduct, while before the widening of Fourth avenue the street line was only thirty-eight feet from the viaduct as first constructed.</p> <p>The use of the avenue in question is not a public or street use. (Fobes v. R., W. & O. R. R. Co., 121 N. Y. 505; Abendroth v. M. R. Co., 122 N. Y. 1; Reining v. N. Y., L. & W. R. R. Co., 128 N. Y. 157.) The principles laid down in the elevated railroad litigations are conclusive of the main issues in the case at bar. (Lahr v. M. E. R. Co., 104 N. Y. 268; Kane v. N. Y. E. R. R. Co., 125 N. Y. 164; Rumsey v. N. Y. & N. E. R. R. Co., 133 N. Y. 79; Story v. N. Y. E. R. R. Co., 90 N. Y. 122; Eels v. A. T. & T. Co., 143 N. Y. 133, 140.) The building of the viaduct cannot be defended as a change of grade of the avenue. (L. 1872, ch. 702, p. 1674; Reining v. N. Y., L. & W. R. Co., 128 N. Y. 157; Egerer v. N. Y. C. & H. R. R. R. Co., 130 N. Y. 108; Rauenstein v. N. Y., L. & W. R. Co., 136 N. Y. 528; Matter of Grade Crossing Comrs., 154 N. Y. 550, 560.) The defendants cannot justify under legislative or municipal authority. (Pappenheim v. M. E. R. Co., 128 N. Y. 436; L. 1872, ch. 702, § 9.) The grant by Margaret McGown is no defense to this action. (Am. B. N. Co. v. N. Y. E. R. R. Co., 129 N. Y. 252; Prentice v. Geiger, 74 N. Y. 341; Maitland v. M. R. Co., 9 Misc. Rep. 616; Taylor v. N. Y. & H. R. R. Co., 27 App. Div. 190; L. 1837, ch. 274; R. L. 1813, ch. 86, § 178, p. 414; Sweet v. B., N. Y. & P. R. Co., 79 N. Y. 293, 300; Matter of Water Comrs., 96 N. Y. 351, 357; Riker v. Mayor, etc., 3 Daly, 174; Lewis on Em. Domain, §§ 253, 254; Embury v. Conner, 3 N. Y. 511; People v. Kerr, 27 N. Y. 188, 211; De Camp v. Hibernia R. R. Co., 47 N. J. L. 43; Watson v. Water Co., 7 Vroom, 195; Hill v. Mohawk & H. R. R. Co., 5 Den. 206; 7 N. Y. 152.) The plaintiffs action is not barred by the Statute of Limitations. (Galway v. M. E. R. Co., 128 N. Y. 132; Prentice v. Geiger, 74 N. Y. 341.)</p> <p>The railroad structure- complained of is within the terms of the deed from Margaret McGown to the 27ew York and Harlem Eailroad Company. (Arnold v. Fee, 87 Hun, 507; Haight v. Littlefield, 147 N. Y. 343; Am. B. N. Co. v. N. Y. E. R. R. Co., 129 N. Y. 252; Prentice v. Geiger, 74 N. Y. 341; Band v. Kingscote, 6 M. & W. 174; Holt v. Sargent, 15 Gray [Mass.], 97; 19 Am. & Eng. Ency. of Law, 107; Washb. on Ease. [4th ed.] 254, 269; Cox v. James, 45 N. Y. 557; Welsh v. Taylor, 134 N. Y. 450; Hall v. Sterling I. & R. Co., 148 N. Y. 432.) By the street opening proceedings, consummated in 1853, the rights of the 27ew York and Harlem Eailroad Company to maintain and operate its present structure were fully recognized and protected. (Brooklyn Park Comrs. v. Armstrong, 45 N. Y. 234; People v. O'Brien, 111 N. Y. 1; Mills on Em. Dom. [2d ed.] §§ 46, 47; Suburban R. T. Co. v. Mayor, etc., 128 N. Y. 510; Matter of City of Buffalo, 68 N. Y. 167; People ex rel. v. Comrs. of Taxes, 101 N. Y. 322; Schuchardt v. Mayor, etc., 53 N. Y. 210; Lahr v. M. E. R. Co., 104 N. Y. 268.)</p>

March 22, 1898, affirming an order of the Special Term directing that a peremptory writ of mandamus issue against the defendant company requiring it to cause Ideal street, in the city of Buffalo, to be taken across certain of its tracks. The facts, so far as material, are stated in the opinion. The affidavits read on behalf of the defendant in opposition to the application for a peremptory writ of mandamus have not been controverted in any manner by the relator.

On the first of June, 1870, the Tebo and Meosho Railroad' Company of Missouri made a mortgage to the Union Trust Company of Mew York upon its railroad line extending from Sedalia, Missouri, to the western boundary of that state, to secure two thousand seven per cent gold bonds for $1,000 each, payable on the first of June, 1903.

This was an action upon a ¡New York standard fire insurance policy to recover for a loss by fire. The facts, so far as material, are stated in the opinion. The waiver of a condition rendering a policy void, when such condition existed at the time of its issuance, may be by parol, or by any act on the part of the insurers indicating an intention on their part not to insist upon it. (Van Schoick v. N. F. Ins. Co., 68 N. Y. 434; Whited v. Ger. F. Ins.

<p>Motion for reargument. (See 156 N. Y. 70.)</p>

<p>Appeal from judgment and order of the Appellate Division of the Supreme Court in the third judicial department, entered December 8, 1896, affirming, on certiorari, a determination of the state comptroller in assessing a corporation tax upon the relator.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, made January 15, 1897, affirming, on certiorari, a determination of respondents'dismissing the relator from the police force of the city of New York.</p>