Page images

But, as well upon reason as authority, the proposition that the defendant “has assigned, disposed of, or secreted” his property, involves a single ground of attachment only. It is by putting his property beyond the reach of creditors, no matter by which means, whether by disposing of, assigning, or secreting it, that the debtor subjects it to attachment. The baffling of creditors is the controlling fact, and it exists whether by one expedient or another of those mentioned in the clause. The three agencies of fraud in the group, namely, assigning, disposing of, and secreting, are legally identical and equivalent. Van Alstyne v. Ervine, 11 N. Y. 331, 339. "Secreting does not mean hiding alone, but any making away with property which shall put it unlawfully out of the reach of the creditor." 21 Am. & Eng. Enc. Law, p. 994. One may secrete prop erty by putting legal impediments in the way of creditors. Gault v. Dupault, 4 Can. Leg. News, 321. Where the disjunctive "or" is used, not to connect two distinct facts of different natures, but to characterize and include two or more phases of the same fact at. tended with the same result, but a single ground of attachment is stated. Drake, Attachm. $ 102. In Garson v. Brumberg, 75 Hun, 336, 26 N. Y. Supp. 1003, it was held that a warrant is not invalidated by the recital of these grounds of attachment, namely, that "the said defendant did depart from the state with intent to de fraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent." In Smith, Perkins & Co. v. Wilson, 76 Hun, 565, 28 N. Y. Supp. 212, the precise point in controversy was adjudicated; the court holding that the state ment in a warrant of attachment that "the defendants have assigned, disposed of, or secreted their property," is a recital of one class only of the grounds set forth in section 636 of the Code, and is suflicient. The defendant contends, however, that the authority of this ruling is discredited by the decision of the court of appeals in Cronin v. Crooks, supra. But the cases are not indentical. In the latter the recital in the warrant was that the defendant “has assigned or disposed of, or is about to assign or dispose of, her prop erty." Were the recital in the warrant under review the same, then, of course, Cronin v. Crooks would control the decision. Con. trary to first impression, my conclusion is that the warrant is valid.

Motion denied.

In re QUINN. (Supreme Court, Special Term, Kings County. January 9, 1896.) POLICE JUSTICES-TERM OF OFFICE-POWER TO TERMINATE,

Laws 1895, C. 601, which abolishes the office of police justice in the city of New York, and provides for the appointment of city magistrates instead, does not violate Const. 1895, art. 6, $ 22, providing that justices of the peace and other local officers, in office when the article takes effect, shall hold their offices until the expiration of their respective terms. 1

i See, also, People v. Hogan (Sup.) 35 N. Y. Supp. 226; Keating v. Fitch, Id. 641,

Application by John Quinn for habeas corpus. Granted.
William Sullivan, for the petitioner.
Noah Davis, George Hoadley, and A. L. Pincoffs, opposed.

GAYNOR, J. John J. Ryan, claiming to be a police justice of the city of New York, issued a warrant on October 22d last for the arrest of the petitioner for the abandonment of his wife, and leaving her without adequate support. The said warrant was indorsed by a police justice of the city of Brooklyn with a direction that it might be executed in the city of Brooklyn, and thereupon he was arrested in that city. He sues out the writ of habeas corpus, claim. ing to be illegally deprived of his liberty. He contends that the said Ryan was not a police justice of the city of New York when he issued the warrant, and that therefore it is void. He bases this contention upon the act (chapter 601, Laws 1895) which in terms abolished the office of police justice in the city of New York from and after June 30, 1895, and provided for the appointment of city magistrates instead. On the other hand, it is contended that the said act is unconstitutional, and therefore void, which would leave the said Ryan a police justice.

After the case was argued, counsel for the said city magistrates intervened and made a private suggestion to the court that the proceeding was collusive, and should not be heard. Out of regard to the eminent counsel who had appeared in and argued the case, the court declined to entertain such a suggestion unless it were substantiated by affidavits. Thereafter affidavits were handed in, and, being submitted to the counsel in the case, affidavits in opposition were handed in. The court disavows responsibility for the main affidavits submitted by the intervening counsel. They were not obtained under any proceeding or authority of the court. Instead, papers purporting to be subpænas from the district attorney of New York county were served upon the said Quinn (the petitioner herein), and the marshal who arrested him, to appear before the grand jury of New York county as witnesses “in a criminal action prosecuted by the people of the state of New York against John Doe.” Upon presenting themselves they were not taken before the grand jury, but before an assistant district attorney, who put them through a rigid examination, in the presence of the said intervening counsel, which was taken down by a stenographer. Quinn was then put in the custody of an officer by the direction of the said assistant district attorney, and taken through the streets to the private office of the said intervening counsel, to sign his examination after the stenographer should have written it out. No charge or warrant was pending against Quinn, and no official or officer had the right to detain him, or take him through the streets, nor does it appear that any criminal action concerning the matter was pending before the grand jury at all. The subpænas mention a criminal action against John Doe, viz. some one whose name was not known. Moreover, testimony given before the grand jury is made secret by law. I regret that it was thought that evidence obtained in this way could find favor with any court. The straining of the machinery of the criminal law, whether to get convictions or for any other purpose, is a dangerous evil. Immediate results may be so obtained, but they do not stand the test of either just opinion or review upon appeal. As to the so-called examination of the marshal, obtained in the way I have stated, it is not sworn to at all.

Coming to the merits of the case, and the question of law involved, I am of opinion that the said statute abolishing the office of police justice is valid. Concededly, before the constitution of 1894 was adopted, the legislature had full power over the tenure of police justices in New York city. It was able to shorten it, or abolish the offices altogether. But it is claimed that section 22 of the judiciary article of the said constitution put the terms of office of the then existing police justices beyond the power of the legislature. It is as follows:

“Justices of the peace and other local judicial officers provided for in sections 17 and 18, in office when this article takes effect, sball hold their offices until the expiration of their respective terms."

Reference to the history and terminology of prior constitutions shows that this provision was adopted only out of caution, lest a question might arise whether the general effect of the revision might not be to oust such judicial officers from their offices. It grew out of that overcaution common in constitutional and statutory revision. It was not meant to take away the power of the legislature over the tenure of such police justices. That would produce the strange result of giving such immunity to the then incumbents only; and upon the expiration of their terms, those of their successors would again be at the pleasure of the legislature. I see no reason for such an interregnum of legislative power. I cannot find any intention in the constitutional convention to deal with such incumbents with such strange favor and tenderness. The reference to the terms of the said police justices by the words in the said section of the constitution, viz. "until the expiration of their respective terms," was to their terms as they then were, or as they might thereafter be abridged by the legislature.

The petitioner is discharged.

(15 Misc. Rep. 187.)

GENESEE & W. V. RY. CO. V. RETSOF MIN. CO. (Supreme Court, Special Term, Monroe County. November, 1895.) 1. INJUNCTION-WHEN GRANTED-RESTRAINING INJURY TO PROPERTY.

A court will enjoin pendente lite the destruction of property of which

a lessor has repossessed himself by fraud and trickery from his lessee. 2. EVIDENCE-WRITTEN CONTRACT-INTENTION OF PARTIES.

Where the language of a written contract is neither vague nor equivocal, parol evidence is inadmissible as to whether or not it was intended to

modify a prior contract between the parties. 3. CORPORATIONS-MANAGEMENT-POWERS OF DIRECTORS.

The business management of corporations is vested in their boards of directors, and contracts made by them, on which the interests of other parties depend, cannot afterwards be annulled by the stockholders.


In the absence of fraud or bad faith, a contract between two corporations is not rendered invalid by the fact that the directors of one hold an interest in the other.

Action by the Genesee & Wyoming Valley Railway Company against the Retsof Mining Company. Plaintiff moves for an injunction to restrain any interference by defendant with plaintiff's rail. road pending the action. Granted.

The parties are corporations duly organized under the laws of this state; the plaintiff being engaged in the operation of a railroad originally constructed by the defendant, which is the owner of large and valuable salt mines and interests in the town of York, Livingston county, as well as of the fee of the land upon which a portion of the railroad was constructed. In June, 1891, the plaintiff became the assignee of a lease made by the defendant to William Foster, Jr., and Charles Q. Freeman, of the railroad above mentioned, and the equipment thereof, for the term of 999 years. This lease contained certain covenants and provisions of mutual benefit and obligation, one of which is the principal source from which tlows the controversy between the parties. This provision reads as follows, viz.: “Third. The rates of freight to be charged by the lessees, or their assigns, of said railway company from Retsof, shall at no time be more than one cent per barrel (or per 300 lbs. of merchandise in not less than car-load lots) in excess of the rates from time to time in effect from the existing junction points of said road on the Delaware, Lackawanna and Western Railroad and Western New York and Pennsylvania Railroad, and such additional tariff shall be charged only on such shipments as are not covered by contracts between the Genesee and Wyoming Valley Railway and connecting railroads." And it is followed by another, which permits the defendant, in the event of the failure of the lessee to observe any and all of the covenants of said lease, “to enter upon and take possession of and use and dispose of and for its own exclusive right all and singular the premises, property, and rights hereby demised, and all contracts, fixtures, improvements, and permanent property and appurtenant rolling stock which may be hereafter constructed on or added to the demised premises, or any part thereof; and to exclude the lessees and all other persons wholly therefrom.” Subsequently, and upon the 25th of October, 1894, the parties hereto entered into a supplemental agreement in writing, by the terms of which the defendant agreed to ship all the "salt and products of manufacture produced by it at the works at Retsof,” and to receive "all merchandise and material of every description which shall be coming to it,” upon the plaintiff's railroad, in consideration of which the plaintiff agreed that it would "transport the same at not exceeding the rates that are charged and received by other railroad companies for similar transportation and service." After this agreement had been entered into, the plaintiff undertook to transport the products of the defendant's mines to the various connecting lines of railroad, and in doing so charged therefor a rate which was in excess of one cent per barrel, but which was not greater than the rates charged by other railroads, and by this very road while it was owned by the same parties who compose the defendant's corporation, for similar service. The defendaat's officers, claiming that the plaintiff fad violated its contract, undertook to a vail themselves of the re-entry clause of the lease. But, instead of resorting to the usual legal remedy, they waited until all the plaintiff's employés save a solitary watchman had returned to their homes upon the night of October 30, 1895, and then sending for the watchman to come to the defendant's office upon the pretext that they desired to make him a present, delivered to him a written notification of the alleged violation of the third clause of he lease, and of their intention to enforce the penalty therefor; and while this interview was in progress a gang of men, numbering more than 100, armed with clubs, and some of them with guns, took possession of the plaintiff's railroad and rolling stock, and proceeded tu tear up the tracks, and destroy or render useless all the property upon the premises. In order to make certain that the work of destruction should be completed, cans of dynamite were–57

subsequently placed at convenient points along the bank and in the abutments of the railroad bridge, a few rous from the head house, and those were connected with electric wires, so that they could be exploded upon a moment's notice in the event of any attempted interference upon the part of the plaintiff. Fortunately, at this juncture the court intervened with a preliminary injunction, and the parties responsible for the condition of affairs above described were considerate enough to forbear the further assertion of their rights in the manner at first attempted until this motion could be heard and decided.

Saterlee, Yeoman & Taylor, for plaintiff.
Charles J. Bissell and William B. Putney, for defendant.

ADAMS, J. This motion involves the question of whether or not one corporation, for some real or fancied wrong received at the hands of another rival or obnoxious corporation, may take the law into its own hands, declare war, and proceed to destroy property and imperil human life. Incidentally, to be sure, some questions of construction are to be considered, the decision of which, in ordinary circumstances, would be controlling upon the rights of the parties. These will, of course, receive proper attention; but, after all, the important and overshadowing subject of inquiry is the one first ad. verted to. It is difficult to contemplate the condition of affairs which the undisputed facts of this case present with judicial calmness, or to characterize conduct such as some of the officers of the defendant have been confessedly guilty of, without indulging in language more or less fervid. Not only have they resorted to force and violence, and thereby occasioned a disturbance of the public peace in the attempted assertion of what they have determined to be their legal rights, but they have wantonly destroyed property of great value, and have not hesitated to proclaim their entire willingness to incur even more serious consequences if their work of de struction was interfered with. Now, I am not unmindful of the rule of law which enables a landlord who has obtained peaceable possession of premises under the re-entry clause of a lease, where there has been a breach of covenant, to maintain the possession therein obtained as against the lessee and the whole world. Cain v. Flood (Com. Pl.) 14 N. Y. Supp. 776; Alexander v. Griswold (Com. Pl.) 17 N. Y. Supp. 522; Wood v. Phillips, 43 N. Y. 152; Bliss v. Johnson, 73 N. Y. 529. Nor do I overlook the language of the lease in question, which provides that the defendant, in the event of a breach thereof, may not only enter upon and possess itself of the demised property, but may also “use and dispose of it for its own exclusive right"; and, had the lessor in this case contented itself with resorting to nothing worse than trickery to obtain possession, and, having thus obtained it, maintained its possessory privileges in a quiet and orderly manner, no other question could have arisen than the rights secured to the respective parties by the original lease and in the supplemental contract. Wood v. Phillips, supra. But that is not this case. Not only was fraud employed to compass possession, but, as soon as it was obtained, force was resorted to, in order that it might be maintained, and, instead of resting satisfied with securing the possession of the demised property, its

« PreviousContinue »