The warrants of attachments, under the Code, ances. A transcript of this judgment was to be issued against the property of filed in the County Clerk's office and exethe plaintiff in this action to defendant cution issued thereon, erroneously, under as sheriff, copies of which, defendant Sect. 68 of the Code. Defendant mistook alleges, he served on the judgment-debtors the practice, for the Code authorized the with a notice endorsed thereon, that he issuing of an execution when the recovery levied upon and attached all goods, chattels exceeded $25, exclusive of costs. and credits in their hands, belonging to Marine Court subsequently vacated the plaintiff, and upon all debts due her from judgment for irregularity in the taxation them; and said sheriff thereafter received of costs, and for want of notice of taxafrom them a certificate under each war- tion. The levy was afterwards withrant that they were indebted to the plain- drawn. tiff, in the amount of the judgments upon which he had the executions, and that the judgments and each of them remained in full force. Leave was denied and defendant appealed. Held. 1. Leave was properly refused, as there is no defence set up in the proposed amendment, the sheriff being bound to proceed under the executions. 4. The sheriff is an officer of the Court, and has no judicial discretion. The plaintiffs recovered and the General Term affirmed the judgment, and defendant appealed to the General Term of the Common Pleas. On the trial it appeared that defendant was entitled to an execution out of the Marine Court on the judgment reversed in his favor, and no malice was shown beyond that inferrible from his irregularities in taxing his costs, and in issuing it was unauthorized. It appeared that the defendant had been a practising 2. By the Statute, the sheriff is liable, for not returning the executions, unless execution from the Common Pleas when he can justify his omission, and he cannot justify under the attachments. 3. The sheriff is bound, as the agent attorney for twenty-five years. The of the plaintiff, to proceed with all the question on appeal was the correctness diligence of a person accustomed to act of the judge's charge, which was as folin his own business. lows, viz: "I charge you to this effect: the defendant is a practising attorney, and has been for twenty-five years; he is supposed to know what the law is, and if he entered up a judgment in this case which the judgment did not sustain for want of regularity, I charge you it is the attorney's fault, and you are at liberty to infer, if you please, upon the testimony in this case, malice on the part of the defendant; that is, that these proceedings were instituted, to some extent, for the pur Wehle v. Conner, Sheriff. N. Y. Superior Court, Aug. 3, 1875. Opinion by Curtis, J., Sedgwick, J. concurring. TRESPASS. Held. This charge was erroneous in Evidence of malice. Charge of Judge. Attorney's knowledge of practice. I. Plaintiffs sued for an alleged tres-pose of injuring the plaintiffs." pass in levying on their goods by execution issued out of the Common Pleas for imputing malice to defendant's acts, the City and County of New York, upon however predicated upon any presumed a judgment of the Marine Court of the or mistaken views of his rights. City of New York in defendant's favor, which was rendered on a reversal of the General Term of judgment at Special Term of that Court, for costs and allow Rosenfield et al v. Palmer. N. Y. General Term June 28, 1875. VOL. I.] MONDAY, AUGUST 23, 1875. [No. 2. APPEALS FROM ORDERS. NEW YORK WEEKLY DIGEST. court to grant an extra allowance of five per cent. under Sec. 309 of the Code; that an extra allowance on the foreclosure of a mortgage, is governed by Sec. 308, except where the case is difficult or extraordinary, when a defence has been interposed, or in such cases where a trial 309, the court may make allowance has been had. In such a case, by Sec. not exceeding two and a-half per cent. Hunt, respdt., v. Chapman, applt. N. Y. Court of Appeals. EXTRA ALLOWANCE. Appealability of order not heard at Gen eral Term. Allowance in foreclosure suit, when the case is not difficult or extraordinary. I. This action was brought to foreclose a mortgage. The issues were tried by a referee, who reported in favor of the plaintiff. Upon this report final judgment was given for plaintiff at Special Term. In July, 1874, defendant appealed therefrom to the General Term. In December following, he moved for an order for further findings of fact by the referee, which motion was denied on December 16. Seven days after, an appeal was taken therefrom to the General Term. On February 12, 1875, the judgment was affirmed. It does not appear from the record that the appeal from the order was heard at General Term. Held, 1. That the order of the Special Term, not having been passed upon by the General Term, was not reviewable here. 2. To entitle a party to be heard in review of an order or judgment of the General Term, the record must show an actual determination by that court. Code, Sec. 11. Opinion by Allen J. Case not yet reported. ASSESSMENTS. Compliance with statute as to assessment. The Sufficiency of assessment list. amount of the assessment not affected by Act of 1861. I. This action was brought to set aside. certain assessments upon plaintiffs' lots, and sales thereunder and certificates thereon, as a cloud upon the title, on the ground that they are void. The work was performed under Chap. 298, Laws of 1861, which appointed a Commission to improve Atlantic avenue, in the City of Brooklyn, and the assessors were directed to lay out and regulate the avenue, and to estimate the cost of grading and paving the same, and to certify this cost to the Commission, and this amount was to be assessed by the Board of Assessors upon the property owners, and included, 3. Orders reviewable on appeal from a with interest thereon, in the actual taxes judgment under Sec. 329 of the Code, upon said land. No certificate was are those made in the progress of the made to the Commission, and no assessaction, and before the judgment from ment was made under this act. By which the appeal is taken and by which Chap. 44, Laws of 1869, the Commisthat judgment is affected. sioners were ordered to complete the im4. An order of the General Term affirm-provement without delay, and to report ing an order of the Special Term denying to the Common Council the total cost a motion to compel a referee to make fur- on or before June 1, 1869, and the Comther special findings is an intermediate mission on that day dissolved, and their order, and is reviewable in this court on duties devolved upon the Common Counappeal from the judgment. cil. The act also provided that, upon Also Held, That it was error for the making the Commissioners' report, the assessors should determine the cost of signed to plaintiffs, and on the day followgrading, etc., and certify the same to the ing receipt of goods scnt plaintiff's the folCommon Council, and said cost was to lowing advice note: be assessed as provided by Chap. 298, Laws of 1861. Plaintiffs claim the assessments are void upon three grounds: "Lancashire and Yorkshire Railway, Newchurch Station. "Advice of goods. July 26, 1873. "MESSRS. MITCHELL:-The undermen 1. That the amount was never certified according to law. 2. That the assess- tioned goods, consigned to you, having ment list was not signed by the assessors. arrived at this station, I will thank you 3. That the amount of the assessment for instructions as to their removal hence exceeded half of the assessed value of the as soon as possible, as they remain here to lands. your order, and are now held by the company, not as carriers, but as warehousemen, at owner's sole risk, and subject to the usual warehouse charges in addition to the charges now advised. When you send for the goods, please to send this note. As to the first objection, it was proved that the Board of Assessors passed a resolution specifying the sum they determined, the expense of grading, etc. Held, That this was a substantial compliance with the act, and was equivalent to a certificate. "For the Lancashire and Yorkshire As to the second objection, a prelimi- Railway Company, nary list was made by the assessors which was not signed; from this an official assessment was made, which was incorporated in the general tax-roll, in a separate column, which was duly signed by the assessors, and sworn to according to law. Held, That this was sufficient. "J. TAYLOR, Agent. 'Sixty bags flax carriage, so much. Total to pay, £15 11s. weight, freight, etc., Paid out, so much. 1d." Nine bales of tow were taken by plaintiffs' carter on July 25, and soon after receipt of notice plaintiffs went down to The third objection was founded on station and had more removed. There Chap. 169, Laws of 1861. Held, That that act did not apply to this improvement; that the Legislature here required the whole amount to be levied, irrespective of the value of the land. were no warehouses at station, and plaintiffs saw how the tow was stacked. At that time the weather was fair. The tow not being according to sample, plaintiffs refused to accept it, and gave defendants notice that they were not the owners. Shan et al. v. The City of Brooklyn but on removing it, Oct. 10, they found Plaintiffs afterwards arranged to take it, et al. N. Y. Court of Appeals. the tow completely spoiled by the wet. The tow had been stacked on the ground, Opinion by Church, Ch. J. Case not and the tarpaulins put over it were inyet reported. Carriers. BAILMENT. When warehousemen. Negligence. Liability. Effect of advice note with words "at owner's sole risk." sufficient and let the rain through. Defendants pleaded no liability. Held, 1. That defendants were liable as warehousemen, as bailees for reward, there being nothing in the advice note to change that relation. 2. That they would have been liable as I. Defendants as common carriers ordinary bailees, not having shown ordibrought sixty bags of tow and flax con-nary and reasonable care. Mitchell et al. v. The Lancashire and Yorkshire Railway Co. 10 Queen's Bench, pp. 256-263. 3. The defendants having paid a valuable consideration for the bonds, they can hold them, unless guilty knowledge or Opinions by Blackburn and Field, J. J. willful ignorance is shown in them; and April 22, 1875. BONA-FIDE HOLDER. Effect of agreement to convert bond into stock. Who is a bona-fide holder. Burden of proof. I. Appellant brought suit to compel the surrender of $3,000 of the bonds of the Milwaukee and St. Paul Railway Co., which had been stolen from him, and which were held by the defendants as collateral security for notes which they had discounted. These bonds contained the ordinary acknowledgment of the debt and promise of payment, and then followed an agreement of the company that it would make what it termed "the scrip preferred stock" full-paid stock, on the surrender of the bond and the coupons not due, as provided therein. The certificate to that effect, which was referred to in the body of the bond, and which had been attached to the bond by a pin, had been detached. The defendants had no actual notice of the defect of title in the holder, but complainant claimed that the absence of the certificate was sufficient to put them on their inquiry as to the title of the holder, and that the agreement as to the preferred stock affected the negotiability of the bonds. The judgment was the defendants', and the complainant appealed. Held, 1. The admission of the debt, and the unconditional promise of its payment, being complete and distinct from the subsequent agreement, made each bond negotiable. 2. The option as to the conversion of the bonds into stock was with the owner of the bonds, not with the company, and the absence of the certificates indicated nothing more in legal effect than that the owner deemed the privilege worthless. the burden of proof is with him who attacks their title. 4. There is no pretence of actual bad faith in the defendants' action in taking the bonds. Hotchkiss, appellant, v. The National U. S. Supreme Court. CARRIER. Negligence, what is and what is not. "Grave inconvenience" to traveler, an illustration of-traveler's right to avoid liability. Contributory negli gence examined: I. Plaintiff, a woman, took passage on defendant's road to B. The car in which she was was driven past the platform, which was small, and she, seeing the sta tion-master loading or unloading baggage in or out of the van, after waiting a rea sonable time, fearing the train would gɔ on, and thinking she was invited to alight, none of the company's servants coming to her assistance, she essayed to get down herself. She carried a small bag on her left arm, and an umbrella and two small articles in her left hand, and nothing in her right hand. The descent was by an iron step and footboard, and she went out with her back to the carriage, holding the door with her right hand. She got one foot on the footboard, and slipped in attempting to put the other on, and fell, from which the injury came. Plaintiff was non-suited below. Held, 1. That the mere overshooting of the platform was not negligence. 2. That the acts of defendant's ser rants in stopping train beyond the plat- the corporation, so that they may repreform impliedly invited plaintiff to sent and defend for the benefit of all such alight. stockholders. They demurred to the 3. That when a person by a negligent complaint upon the ground, among others, breach of duty exposes the person to that they were improperly joined, and whom the duty is contracted to a "grave inconvenience," if the inconvenience is so great that it is reasonable to get rid of it by an act not obviously dangerous, and executed without carelessness, the person causing the inconvenience by his negligence is liable for any injury resulting from an attempt to avoid such inconvenience. 4. There is not such conclusive evidence of negligence on part of the plaintiff as to justify taking the case from the jury. Robson v. The North-Eastern R. R. Co. 271-275. Opinion by Field, J. May 8, 1875. CORPORATIONS. Parties to suit to compel payment of dividends. Demurrer. Who represent stockholders for purpose of suit. I. This was an action brought to compel the payment of dividends agreed to be paid by the Michigan Southern and Northern Indiana R. R. Co. out of its net carnings, upon certain shares of preferred and guaranteed stock issued by said company, in 1857. The complaint alleges the merger and consolidation of that corporation with others to form the Lake Shore and Michigan S. R. R. Co., one of the defendants herein, and that such new company assumed and promised to provide for, pay, and discharge "all just debts. guarantees, liabilities, and obligations" existing against the previous corporation. The directors and treasurer of the L. S. & M. S. R. R. Co. are individually made defendants with the corporation, the complaint alleging that they were so joined as the holders of shares of the common or unpreferred stock of that the court has no power to grant or decrce any relief against them personally. It appeared that the corporation of which defendants are directors and stockholders was not in existence until in 1869, long after the alleged liability accrued. Held, That defendants having neither contracted nor assumed individually any legal obligation which rendered them liable personally or officially, they stand as independent official representatives of the existing corporation. That plaintiff's claim is against the company, and not against them, and as it does not appear that it was required or in any sense important in prosecuting the suit, in obtaining the relief demanded, or in the defense of the action, that they should be parties; the demurrer was properly sustained and the order of the General Term, affirming order of Special Term sustaining defendants' demurrer, is affirmed. Thompson v. Erie R. Co., 45 N. Y., 48, distinguished. The directors of a railroad corporation do not represent any particular class of stockholders, but have a duty to perform as to all, and they should not be compelled to occupy a position in conflict with this general obligation. They cannot be charged in an action with the duty of specially taking care of the interests of one class of stockholders as against the others. If the common stockholders, in person or by representatives, are necessary or proper parties to the action, the plaintiff should select those not haring an official relation to the company. Chase, applt., v. Vanderbilt et al., im- N. Y. Court of Appeals. |