Volume 177 — New York Reports

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant being the owner and proprietor of a school, farm and manufacturing establishment, which are conducted with the proceeds and profits of the business under its control, it is not a charitable corporation.

The facts, so far as material, are stated in the opinion. If the trust company was assessable at all, it was only assessable on its capital stock and surplus spread out over twelve months; that is, on -g-$T of $360,000, and the tax would be g-f-g- of $3,600, or $59.18. (People ex rel. v. Morgan, 168 N. Y. 672; 51 App. Div. 335 ; People ex rel. v. Morgan, 47 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The persistency of counsel for plaintiff and the well-nigh unlimited latitude permitted by the court in the examination and cross-examination of medical experts call for a reversal of the judgment.

The facts, so far as material, are stated in the opinion. The “ninth” clause of the “ third ” codicil is void for the reason that it suspends the power of alienation of the trust estate beyond the period of two lives. (Rothschild v. Roux, 78 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The award of a sum, on payment or tender of which the defendant may continue the operation of its Spring Creek pumping station as against the plaintiffs, is a judgment authorizing the taking of private property without due process of law and by a procedure violative of the Constitution of the United States and of this state.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 14, 1903, which reversed a judgment of the Court of Claims dismissing plaintiff’s claim and granted a new trial.</p> <p>Under various statutes a number of the towns in Ulster county issued bonds to aid in the construction of certain railroads running through them.</p> <p>In 1869 the legislature passed an act (Chap. 907, sec. 4) providing that “ All taxes except school and road taxes, collected for the next thirty years, or so much thereof as may be necessary, in any town, village or city, on the assessed valuation of any railroad in said town, village or city, for which said town, village or city has issued or shall issue bonds to aid in the construction of said railroad, shall be paid over to the treasurer of the county in which said town, village or city lies, and said money so paid over, including interest collected on bonds held by said treasurer as a sinking fund, shall be invested by said treasurer in state, city, town, county or village bonds, issued pursuant to law of this state on United States bonds, within sixty days after receiving the same, and shall be held by said county treasurer as a sinking fund for the redemption and payment of the bonds issued or to be issued by said town, village or city, to aid in the construction of said railroad.”</p> <p>This act was amended in 1871 (Chap. 283) so as to permit the purchase of such railroad bonds with moneys arising from the taxes levied upon such railroads. The amended act further provided for the cancellation of the bonds so purchased, and for other things not material to the present inquiry.</p> <p>For many years after the passage of these acts no attempt was made to carry out their provisions in Ulster county or the bonded towns thereof. In 1888 the bonded towns commenced proceedings to compel the treasurer of Ulster county to set aside the state and county taxes levied upon such railroads for the purposes specified in the statutes of 1869 and 1871. Considerable litigation ensued between the bonded towns and the county, which resulted in the establishment of the right of the former to recover of the latter all state and county taxes not devoted to the purposes of the sinking fund provided for in said acts. Some of the claims thus created have been paid, while others are yet to be paid.</p> <p>In various years and from the moneys arising from taxes levied upon and collected from railroads which had been assisted by the issuance of bonds by the towns of Ulster county, the treasurer of that county paid into the state treasury, in the form of state taxes, the sum of §42,451.87.</p> <p>In 1899 the legislature passed an act (Chap. 336) to confer jurisdiction upon the State Court of Claims to hear, audit and determine the alleged claims of the several counties containing towns, villages and cities bonded to aid in the construction of railroads, etc., on account of the payment to the state of the state taxes collected from such railroads, etc. By the first section of this act jurisdiction to hear, audit and determine such claims is conferred upon the Court of Claims, with power to award judgments without interest. The second section directs the disposition of the moneys paid under any such judgment. The third section provides that awards shall be made and judgments rendered only when the facts proved shall make out. a case against the state, which would create a liability were the same established in a court of law or- equity against an individual, corporation or municipality. It further provides that the lapse of time shall not aifect such claims, if filed within one year after the passage of the act. Under this act the present action was brought with the result above stated.</p> <p>The Appellate Division erred in holding that the state received more money from Ulster county than it was entitled to receive. (Strough v. Bd. Suprs., 119 N. Y. 218 ; Mayor, etc., v. Davenport, 92 N. Y. 604.) The court below erred in assuming : (1) That any part of the money collected from these railroad valuations reached the state treasury ; and (2) in assuming that if it did the county could recover it back. (Kilbourne v. Bd. Suprs., 137 N. Y. 170.)</p> <p>The taxes (other than school and road taxes) collected for thirty years after and including 1869, in any town, on the assessed valuation of any railroad therein, to aid in the construction pf which railroad such town had issued bonds, belonged to such town up to the amount necessary to pay principal or interest of any such outstanding bond or bonds issued in renewal of or to refund the same. (L. 1869, ch. 907, § 4; L. 1871, ch. 283; Clark v. Sheldon, 106 N. Y. 104; Strough v. Bd. of Suprs., 119 N. Y. 212; Crowninshield v. Bd. of Suprs., 124 N. Y. 583; Clark v. Sheldon, 134 N. Y. 333 ; Barnum v. Bd. of Suprs., 137 N. Y. 179; 62 Hun, 190 ; Van Tassell v. Derrenbacher, 56 Hun, 477; 123 N. Y. 661.) If such taxes were diverted to other purposes the beneficiaries thereof became liable to the bonded towns as for money had and received to the use of the latter. (Bridges v. Bd. of Suprs., 92 N. Y. 570 ; Strough v. Bd. of Suprs., 119 N. Y. 212; Vinton v. Bd. of Suprs., 18 N. Y. S. U. 435; Kilbourne v. Bd. of Suprs., 137 N. Y. 170; Barnum v. Bd. of Suprs., 137 N. Y. 179; Clark v. Sheldon, 106 N. Y. 104.) The county having refunded to the towns the proportion of the state taxes paid by the railroads, an equity arises in its favor as between it and the state to be reimbursed pro tcmto by the latter, the state having received so much of such specific funds as goes to make up such proportion. As to any moneys not so refunded the county is entitled to receive the same in trust for the towns. (L. 1899, ch. 336; Crowninshield v. Bd. of Suprs., 124 N. Y. 583 ; Clark v. Sheldon, 106 N. Y. 104.) The cause of action is completely made out within the requirements of the 3d section of the enabling act. (Roberts v. Ely, 113 N. Y. 131; Chapman v. Forbes, 123 N. Y. 537; Dumond v. Carpenter, 3 Johns. 183; Sturdevant v. Waterbury, 2 Hall, 453; Ripley v. Gelston, 9 Johns. 201; Hathaway v. Cincinnatus, 62 N. Y. 434; Peyser v. Mayor, etc., 70 N. Y. 497; Horn v. Town of New Lots, 83 N. Y. 100 ; Gerard v. McCormick, 130 N. Y. 261; Baker v. N. Y. Nat. E. Bank, 100 N. Y. 31; Royce v. B ryne, 145 N. Y. 183: I. & T. N. Bank v. Peters, 123 N. Y. 273.)</p>

The action was originally brought by Chris J. Smith to recover damages for personal injuries sustained by him, and for the destruction of his horse, carriage and harness. Pending the appeal to this court the original plaintiff died, and the action was revived and continued in the names of the present plaintiffs as his representatives. The only part of the action that survives is that .which relates to the recovery of damages for the destruction of the personal property.

The nature of the action and the facts, so far as material, are stated in the opinion. The bond is conditioned upon Otto Kucli’s conduct of the business, and cannot be extended beyond its exact terms by construction.

<p>1. Railroads—Grade Crossings—Powers and Duties op Railroad Corporations in Respect to Change op Grade op Railroad at Highway Crossings under Provisions op Railroad Law—Mandamus. Under section 13 of the Railroad Law (L. 1890, ch. 565), any railroad corporation may change the grade of any part of its road as it may deem necessary to avoid accidents and facililate the use of the road; if the exercise of this power affects a highway crossing, the case does not fall within section 63 of the Railroad Law (added thereto by the Grade Crossing Act, L. 1897, ch. 754, as amd. by L. 1898, ch. 530, § 3, and L. 1899, ch. 359), relating to alterations in crossings, but the railroad company is required by the statute (Old Railroad Law, L. 1850, ch. 140, § 38, subd. 5, re-enacted in the present Railroad Law, L. 1890, ch. 565, § 11), and at its own expense, to restore the highway to its former state, or to such state as not to have unnecessarily impaired its usefulness, and this -duty may be enforced by mandamus upon the application of the town controlling the highway affected.</p> <p>3. Restoration op Highway to Its Former State op Usefulness When Affected by Change of Grade of Railroad — What Is Sufficient Compliance with Statute. While the highway may be carried over or under the track, as may be found most expedient in the discretion of the railroad company, subject to the obligation of the company to restore the highway to its former state or to such a state as not to impair its usefulness, yet if the restoration in one manner seriously affects its use, though it still remains practicable to use it, while by restoration in another manner the use would be wholly unimpaired, the company, in adopting the first method, cannot be said to have restored the highway to such a state as not to have unnecessarily impaired its use.</p> <p>3. Same — When Court of Appeals Concluded by Findings of Trial Court Thereon. Where a railroad company, after raising the grade of its railroad at a crossing, restores the highway by raising it to the new grade of the railroad, and the trial court has found, upon the trial of a proceeding for a mandamus to compel the railroad company to restore the highway to its former state, or such a state as not to unnecessarily impair its usefulness hy the construction of an undergrade crossing, that it “was not convinced that the highway could he restored to a reasonable state of usefulness only hy the construction of an undercrossing,” the term “reasonable state” is equivalent to "a state as not to have unnecessarily impaired its usefulness,” and such finding, supported by some evidence and affirmed by the Appellate Division, is conclusive upon the Court of Appeals, notwithstanding the evidence would have amply justified a finding that the restoration of the highway could only be properly effected by an undercrossing.</p>

The facts, so far as material, are stated in the opinion. There is no authority of law for taking the photograph or measuring a person condemned to death. (Delafield v. Brady, 108 N. Y. 524; L. S. & M. S. R. R. Co. v. Roach, 80 N. Y. 339; Parker v. E. C. M. R. R. Co., 165 N. Y. 279; People ex rel. v. Davenport, 91 N. Y. 585; Spencer v. Myers, 73 Hun, 278; 150 N. Y. 269; Schleissner v. Schleissner, 72 App. Div. 492.) Mandamus is the proper remedy.

Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, made January 5, 1904, which reversed an order of Special Term denying a motion to compel Frank E. Randall to answer certain questions, and granted such motion. The motion was made upon the ground that the order was not appealable to the Court of Appeals.

The facts, so far as material, are stated in the opinión. The comptroller erred in not computing the amount of relator’s surplus according to the provisions of the Banking Law. (Smith v. People, 47 N. Y. 330 ; Matter of Livingston, 121 N. Y. 94; Chase v. Lord, 77 N. Y. 1.) The comptroller did not err in taking the par instead of the market value of securities in determining the par value of the relator’s surplus and undivided earnings.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 30, 1903, which reversed an interlocutory judgment of Special Term sustaining demurrer to the complaint. The nature of the action, the facts, so far as material, and the question certified are stated in the dissenting 'opinion.

Appeal, in first action, from an order of the Appellate Division in the third judicial department, entered November 20, 1903, which affirmed an order of Special Term granting a. motion for a peremptory ivrit of mandamus to compel defendant to pay to relator an amount claimed to he due him for salary as superintendent of the Albany County Penitentiary .and to accept from him certain moneys received by him in such capacity.

order of the Appellate Division of the Supreme Court in the first judicial department, entered April 14, 1903, which reversed a judgment of Special Term sustaining a demurrer to the answer and directed that the complaint be dismissed.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 22, 1903, affirming a judgment in favor of defendant entered upon a verdict directed by the court and an order denying a motion for a new trial.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered April 10, 1903, reversing a judgment in favor of plaintiff and defendants other than the respondent herein, entered upon a decision of the court on trial at Special Term and granting a new trial.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 30, 1903, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial.</p>

1903j- affirming a judgment in favor of plaintiff entered .upon a .decision of the court' at a Trial Term and an order, denying a motion for á new trial. ■

Appeal — General Exception to Decision of Trial Judge, When It Presents No Question of Law Reviewable by Appellate Division. A general exception to the decision of a trial judge and to each and every part thereof, with no specific exception to any particular finding or conclusion, is insufficient to present any question of law for review by the Appellate Division on an appeal from a judgment of the Special Term entered upon such decision.

Appeals from judgments of the Appellate Division of the Supreme Court in the second judicial department, entered June 19,1902, modifying and affirming as modified judgments in favor of plaintiffs entered upon decisions of the court on trial at Special Term.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 20, 1903, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 22, 1902, affirming a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered September 15, 1903, which affirmed an order of Special Term denying the application of petitioner for leave to commence an action against the respondent herein. The following questions were certified: “ I. As between the sureties on all the bonds mentioned in the record, was the appellant first and primarily liable on the last appeal bond ? . “ II.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 14, 1902, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 3, 1902, which reversed a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new. trial and granted a new trial.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered October 14, 1902, affirming a judgment in favor of plaintiff entered upon a verdict.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 11, 1902, which reversed a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial and granted a new trial.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 28, 1903, affirming a judgment.in favor of plaintiff entered upon a decision of the Court of Claims.</p>

Appeals from orders of the Appellate Division of the Supreme Court in the third judicial department, entered December 10, 1903, which affirmed determinations of the defendant in imposing a tax upon the relator for the years 1900 and 1901 under section 182 of the Tax Law.