Volume 23 — New York State Reporter

<p>1. Judgments—Interpretation.</p> <p>Where, in a suit between partners, the special term of the supreme court adjudged that the order appointing a receiver be vacated, and that “all compensation and expenses of said receiver be paid out of the plaintiff’s share of the moneys and property received by him,-’ the general term, on appeal, affirmed this judgment in all respects. The general term afterwards construed the meaning of the clause above quoted to be that only the receiver’s commissions and two other small items should be paid out of plaintiff’s share, and that all other expenses of the receivership should be paid out of the fund. The general term, on appeal, reversed this ruling, and held that the judgment as affirmed by it meant that all the expenses of the receivership were to be paid out of plaintiff’s share. Held, that the interpretation of the special term of its own judgment must control. Bugeb, Oh. J., and Daneorth, J., dissenting.</p> <p>3. Courts (supreme)—Power oe special term.</p> <p>It is beyond the power of the special term in a collateral proceeding to readjust rights which have been definitely settled by a judgment. Per Ruger, Ch. J., and Daneorth, J.</p> <p>3. Same—Judgment oe lower court, how construed.</p> <p>It has been the uniform practice of this court to defer to the judgment of the court below in the construction of its own zules and decisions, and when any question arises as to their meaning, to refer to the interpretation of that court as a conclusive authority upon the question. Per Ruger, Oh. J., and Daneorth, J.</p> <p>4. Judgment—Meaning oe—How interpreted.</p> <p>In considering the meaning of expressions used in a judgment of the supreme court, that meaning should be «scribed to them which is adopted by the highest branch of that court, and orders íesting in the discretion of the supreme court mean a discretion exercised by that court at general term. Per Ruger, Ch. J., and Danforth, J.</p> <p>8 Same—Construction, when court has exclusive jurisdiction.</p> <p>A construction ought not to be given to a subject over which the supreme court ha' exclusive jurisdiction, which shall adopt the views of a subordinate branch as a correct exposition of the opinion of the court when opposed to an explicit expression of views made by the general term. Per Huger Ch J., and Danforth, J.</p> <p>6. Receiver—Accounts of—Appeal.</p> <p>Upon an appeal from an order settling the accounts of the receiver apuointed herein and providing for the distribution of the property coming into hi. hands. Held, that if there were any items of the account which were no' fairly included within the spirit and meaning of the judg ment, the appellants should have requested a finding of fact from the referee upon such items so that the question could have been raised on appeal; that in the absence of such finding it was entirely competent for the general term to reverse the order of the special term, exempting the plaintiffs from payment for the items charged them. Per Huger, Ch. J., and Danforth J</p>

On August 1, 1884, James McGay, who was the owner of the premises, entered into contract with James D. McGown for the completion of the house. McGown afterwards took William A. Hyde into partnership with him in the work, and the materials in question were furnished to the firm as the contractors. The building was finally completed, and under the terms of the contract $15,500, thereupon became due by the defendant, McGay, to the contractors.

<p>1. Pleading—Complaint—Demurrer—Effect of.</p> <p>A demurrer to a complaint admits the facts stated therein if properly pleaded, but does not admit the conclusions of law stated in it. Many of the material allegations in this complaint are only conclusions of law, and are, therefore, not admitted by the demurrer.</p> <p>3. Knights of labor—Expulsion of members—When attempted Expulsion A VIOLATION OF NATURAL JUSTICE.</p> <p>The plaintiff corporation is a domestic corporation, incorporated under chap. 267, Laws of 1875. The complaint alleges that the defendant, Mc-Grath, was lawfully elected a trustee of the plaintiff corporation; that he subsequently ceased to be such trustee, and another person was elected in his place; that the plaintiff corporation was formed of several local assemblies of the Knights of Labor, and the constitution of the corporation provided that each of such local assemblies should be under the jurisdiction of District Assembly Ntx 49; that the defendant was, when elected, a member of Local Assembly, No. 5407, but that this whole assembly, on the complaint of the master workman of District Assembly No. 49, had been expelled, and that by a by-law of the-plaintiff corporation all the members of any such local assembly were to be considered as having voluntarily withdrawn from the corporation. The plaintiff, thereupon, instituted this action to enjoin the defendant from acting as their trustee, and for other relief. There was no allegation of any wrongful act committed by the defendant or that he had ever been tried. To this complaint defendant demurred. Reid (1), that as the statute provided the methods by which the defendant’s membership might be terminated, (1), by death; (%), voluntary withdrawal; (8), by expulsion, the by-law of the plaintiff was an attempt to defeat and lústrate the plain provision and intent of the law. A court of equity could not give its countenance or aid to such a proceeding, and the attempted expulsion of the demurrant, without a hearing or trial, and for no fault of his, was a flagrant violation of natural justice.</p> <p>8. Same—When court of equity will interfere.</p> <p>Courts of equity are adverse to interference in the informal contentions of such societies, but this freedom from judicial interference is only secured when they observe the principles of natural justice. It is a principle of natural justice that no man shall be deprived of any franchise or position of value without a fair trial and opportunity to be heard in his defense</p>

This case comes before the court on an application of the relator, by habeas corpus, who is in custody of the defendant under a warrant issued by the speaker of the assembly, by order of the house. The petition of the relator, and the return of the defendant thereto, discloses the undisputed facts upon which the legal questions involved in this application arise.

The action is to recover damages for an alleged breach of warranty on the sale by the defendants to the plaintiffs of a quantity of oil manufactured by the former, and known as “Breton oil.” The plaintiffs are manufactures of carpets in the city of Auburn, and, as the evidence shows, were doing an extensive business.

<p>Trust—Execution of trust by court.</p> <p>Where, on the death of a trustee appointed by the supreme court, an order is made directing a trustee of said estate, appointed by the surrogate’s court in the place of said deceased trustee, to execute a satisfaction proie of a mortgage given to such deceased.trustee, Held, that the court, by granting such order, executed the trust reposed in it in the manner prescribed by statute.</p>

<p>Re-argument—When motion for will be denied.</p> <p>A re-argument will not be ordered upon the ground that the court mistook a fact where their assumption of the fact was in accordance with the record before the court.</p>

<p>Municipal corporations—Liabilility of for certain payments— Board of town auditors—Power of—1 R. S., 357; 2 lb. (8th ed.) 913—Code Civ. Pro. , § 1931.</p> <p>Under the statute (1 R. S., 357; 2 lb. [8th ed.], 913), and section 1931 of the Code Civil Procedure, an absolute liability is not imposed upon towns for all judgments recovered against a sole commissioner of highways in an action prosecuted in his official name. The board of town auditors have the power to examine and determine whether the action is one which the commissioner had the right to prosecute in his official character, and whether it was carried on in good or bad faith, and it is its duty to examine and allow, or disallow, in whole or in part, a claim presented to it for money expended in litigation. In determining whether the town is liable for claims of this character, the board acts judicially, and such action cannot be revived or controlled by courts through the writ of mandmnus.</p>

<p>1. Principal and agent—When principals bound by act of general AGENT CONTRARY TO SPECIAL INSTRUCTIONS.</p> <p>A general agent may bind his principals by acts within the scope of his authority, although it may be contrary to his special instructions.</p> <p>2. Same—Insurance (fire)—Manner of conducting business—Effects of.</p> <p>The manner of conducting the business of insurance is so well known that persons may reasonably assume, that one having the apparent power of a general agent is not limited by his instructions as to class of risk he may insure. Persons dealing with agents in good faith have the right to assume that they possess the powers usually exercised by that class of officers, and unless the limitation on their authority is brought to their knowledge, the contract made with them will be binding upon the company. This rule applies to corporations organized under the laws of other states and having their general officers in those states, who do business in this state through agents.</p> <p>3. When appointed general agents.</p> <p>S. and H. having applied to the defendant to act as its general agents in and for the city of Brooklyn, received from an agent of that company a letter containing the following: “ If your appointment is confirmed, your jurisdiction will be the city of Brooklyn outside the shore line, but we shall 'expect you to write no large risk for us until you know for certain that we are notin through our New York office. As we are now on all Brooklyn specials of any size that we will write, please do not undertake to write any specials for us at present,” and a few days later they received a letter from the secretary of the company, which states: “We take very great pleasure in forwarding to your address by mail to-day a commission of authority, as agents of this company, in the city of Brooklyn. We deem it unnecessary to enter into any detailed instructions as to the conduct of our business at your agency, as our Mr V. has written you upon that subject.” Held, that H. and S. were general agents authorized to take special risks within the shore line in the city of Brooklyn,</p>