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THIRD DEPARTMENT, SEPTEMBER TERM, 1903.

[Vol. 86.

the defendant, has obtained from the board of directors resolutions accepting the work of the contractors when the contracts were but partially performed, and that such contracts remain unfinished and unperformed

If these allegations are true, it is manifest that some other person should take charge of the property and effects of the defendant as its receiver.

The defendant and the receiver dispute the title of said Nichols and Burnett to a large portion of the bonds claimed to be owned by them, and subsequent to the appointment of a receiver and before the hearing of July thirtieth, an action had been brought by the receiver to obtain a large number of the bonds so alleged to be owned by them. It does not appear that any bondholder or creditor of the defendant, except said Nichols and Burnett, oppose the continuance of Jennings as receiver.

We cannot overlook the fact that the court appointed Jennings receiver July fourth upon papers and consents that were at least regular upon the face thereof.

The order to show cause why the order of July fourth should not be vacated and set aside was not based upon papers in any way attacking the qualifications and fitness of Jennings as such receiver, and no papers of any kind relating thereto were served or brought to the attention of the defendant or the receiver until the argument of the motion.

The fact that Jennings had been a director and the treasurer of the defendant was not alone a sufficient reason why he should not have been appointed the receiver or to require his removal after an appointment. At the time of the hearing on July thirtieth he was in the actual possession of the property and effects of the defendant and engaged in the operation of its business. The application to vacate and set aside the order appointing a receiver was not made for the purpose of saving the defendant from dissolution, but it proved to be an effort to remove Jennings as receiver, which position he had then occupied under an order of the court for twenty

six days.

A reasonable opportunity was not given to the receiver to explain the serious charges made against him. An order removing him as receiver for cause should not have been made without a direct

App. Div.] THIRD DEPARTMENT, SEPTEMBER TERM, 1903. application therefor, or, at least, without giving him a reasonable opportunity to present to the court a statement showing fully and in detail the disposition made by him as treasurer of the moneys received from the proceeds of the defendant's bonds, stock and discounted notes, and also explaining the several charges referred to in the attacking affidavits.

We are of the opinion that the order should be affirmed without prejudice to a direct application to remove the receiver, upon the hearing of which motion full opportunity can be given, not only to the receiver, but to all parties legally interested, and a determination can be had after the court is in possession of the claims of the interested parties, deliberately and fully stated.

All concurred.

Order of July 30, 1903, continuing receiver affirmed without prejudice to a direct application to remove the receiver, with ten dollars costs and disbursements.

Motions to dismiss appeals denied. Appeal from order of July 4 1903, dismissed.

NOTE.— The rest of the cases of this term will be found in volume 87 App. Div. - [REP.

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DECISIONS

IN

CASES NOT REPORTED IN FULL.

FIRST DEPARTMENT, JULY TERM, 1903. In the Matter of the Application of Morris D. record. The petitioner swears that he did Weiss v. Abraham Schleimer, an Attorney.- not go to Feltenstein until the tenth, and if Order set aside and case remitted to Special the order was issued, its date would be quite Term.- Appeal from an order sending issues a pertinent piece of evidence, as would be of fact to a referee to hear the testimony the affidavits upon which it was based. Jt is and report to the court thereon.

also pertinent to observe that Schleimer noPER CURIAM: This proceeding was insti. where in his affidavit denies that proceedings tuted by an order to show cause, based upon were instituted against him by Sanders and the petition of the respondent Weiss, why Feltenstein to compel the payment by him the attorney, the appellant herein, should of this money. Such subject seems to have not pay to the petitioner $200. The petition been studiously avoided in all of the opposing sets forth that Schleimer was the attorney affidavits, although such matter was plainly for the petitioner in an action brought by and fully stated in the petition. It is pertinent him against Solomon Silverman and one also in this connection to call attention to the Abramson. The petitioner was defeated in fact that, although the payment of the judgsuch action, and judgments were awarded ments is stated to have been made in one against him in a total sum of $433.38. After sum and upon the same day, the checks these judgment were entered the petitioner, which are produced show that one is for $200 for the purpose of settling the same, delivered and the other for $75. It would materially to Schleimer $275 under an agreement that, aid in this matter if it had been made to if the judgments were not satisfied within appear when these checks were delivered three days, the money was to be returned to and when they were paid by the bank, and the petitioner. Thereafter the petitioner why it was necessary to draw two checks was informed that the judgments had been when, confessedly, Schleimer had the de. settled for $175, and he demanded of his at fendant's money for the full amount with torney the return to him of the difference. which to pay before he drew either. It may which was refused. Thereupon he applied be that all of these matters can be shown to to the attorneys for the defendants, and was be fair and honest and that the transaction informed by Feitenstein, one of said attor can be made so to appear when the witnesses neys, that he had only been paid in satisfac are sworn and the papers are produced. tion of the judgment $75. Thereupon pro It is enough for us now to say that the court ceedings were instituted by the last-named was entirely justified in requiring further attorney in favor of the petitioner to compel proof before disposing of the charge. The the payment over to him by Schleimer of amount involved is small, but the proceeding the $200. The petition further states that af is important and should provoke a careter this proceeding was instituted Schleimer ful examination into the facts. We are of paid to the attorneys Sanders and Felten opinion, however, that a reference ought stein $125, and the proceeding instituted by not to have been ordered, nor the petitioner them was thereupon discontinued without be subjected to th expenso attendant the consent of the petitioner. Thereupon thereon. The facts are not complicated and he instituted this proceeding. The motion the proof lies in a small compass. Either came on to be heard, and, as the aflidavits the attorney should be vindicated of the were conflicting, the court directed a refer charge or be summarily dealt with. The ence to take proof concerning the matter rights of both parties ought to be speedily and report the same to ihe court. From the settled; and we think, in view of the nature order so made the attorney Schleimer ap of the charge and the character of the proof, peals. It is conceded that the petitioner that the court ought to dispose of the matter delivered to his attorney Schleimer $275 to without the intervention of an expensive be used in settling the judgments which had reference. It follows, therefore, that the been obtained against him. Both Sanders order of reference should be set aside and and Feltenstein make affidavits to the effect the case remitted to the Special Term for that Schleimer paid to them $250 in satisfac disposition. No costs of this appeal to either tion of the judgments, but neither denies party. Present- Van Brunt, P. J., Patterthat the proceeding was instituted to compel son, Ingraham, Hatch and Laughlin, JJ. Schleimer to pay the money, as stated by Louise Winthrop Koues, Respondent, v. Metrothe petitioner; nor does either devy that the politan Street Railway Company, Appelfirst payment made by Schleimer was only lant.-Judgment and order reversed, new the sum of $75; nor does either deny that the trial ordered, costs to appellant to abide proceeding to compel Schleitner to pay was event.-- Appeal from a judgment entered discontinued after he had paid an additional upon the verdict of a jury and from an or$125. So far as appears Sanders and Felten der denying the defendant's motion for a stein were acting in this proceeding for the

new trial. petitioner, and although they are charged PER CURIAM: This action was brought to with having settled the same after payment recover damages for personal injuries, by Schleimer without the consent of the claimed to have been sustained by the plainpetitioner, each is entirely silent in his affi. tiff on July 9, 1899, in alighting from a southdavit upon such subject, and each contents bound car of the defendant on Eighth himself with the statement that $275 was avenue at the corner of Forty-second street. paid upon the eighth day of December. The Plaintiff boarded the car at Eighty-ninth order to show cause does not appear in the street for transportation to Forty-fourth

First DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

street, in which street she resided. Inadvert side of the crossing I heard the conductor ently she passed Forty-fourth street, and shout, “Wait until the car stops, madam,' did not realize her mistake until the car and I was interested at the time in a paper, stopped on the north side of Forty-second and I looked up and saw this lady about to street. She testified that after the car alight from the running-board to the street. started up to cross the street she arose in

After she had fallen from the car it her seat and motioned to the conductor went before it came to a standstill, I should just before the car reached the south side. judge, about four feet * At the time The car came to a stop there and the plain she fell the car had not been brought to a full proceeded to alight, took hold of the

stop yet. Dr. Sanfers, a physician who at. support of the car with my left hand and tended upon the plaintiff, testified that when put my right foot down on the step, in she was brought home she stated to him process of alighting, and followed that with that she fell from a moving car. The conmy left foot, and then another step with the ductor was not called as a witness, but his right foot to the ground, and before I could absence was explained by showing that he get the left foot – before I could really step was in the Philippines. We think the ver. firmly on the ground and let go of the sup dict of the jury, based upon the testimony of port of which I had hold the car gave a plaintiff, was against the clear weight of the jerk and I was thrown." The plaintiil was evidence. The judgment and order should, the only witness who testified in her behalf therefore, be reversed and a new trial as to the circumstances connected with the granted, with costs to the appellant to accident. The evidence which she gave was abide the event. Present - Van Brunt, P.J., sufficient to charge the defendant with neg Patterson, Ingraham, Hatch and Laughlin, ligence and to relieve her from contribu. JJ. tory negligence. A case was, therefore, John M. Jones and Others, as Executors of made requiring its submission to the jury. and Trustees under the Last Will and TestaWe are of opinion, however, that the testi ment of Morgan Jones, Deceased, Respond. mony given by the defendant so far pro ents, V. Margaret T. Reilly and Others, ponderated in its favor as to call for the set Defendants, Impleaded with Hannah R. ting aside of the verdict and the judgment Rockwell and George H. Brooke, Appel. entered thereon, as being against the clear lants.- Order modified as directed in opinweight of the testimony. Martin J. Kiernan, ion, and as modified affirmed, without costs. the motorman, was called and testified that, - Appeal from an order granting plaintifis' while he did not see the accident, he heard motion to serve an amended or supplemental a scream; that when he heard it, he had not complaint.stopped, but came to a stop immediately Per CURIAM: The order appealed from is after. Charles Kalmo, a passenger upon modified by requiring the plaintiffs, as a the car, testified that when the plaintiff at condition of the amendinent, to pay all the tempted to alight, the car was going very taxable costs in the action to the time the slow; just about to stop, and that the amendment was made, and as thus modified, plaintiir stepped off backwards; that the affirmed, without costs to either party, conductor hollered "wait until the car Present - Van Brunt, P. J. (dissenting); stops,' but she paid no heed, but steppeil O'Brien, Ingraham, McLaughlin and Hatch, off backward and stepped down, and the car JJ. stopped right away, from where she sat VAN Brunt, P. J. (dissenting): I dissent. down."

Catherine Esler, a passenger, testi There is not the slightest particle of erified that she saw the plaintill arise in her dence to show that all the facts in the seat as the car was crossing Forty-second amended complaint were not known to the street; that she heard the conductor call to plaintiffs at the time of the commencement her to wait. * She didn't wait until the car of the original action; and the rule is well got to the further crossing, you know; she got settled, except in this department, that ofl. I don't know how she got off. The car where such is the case a motion to amend was in motion when she gototr. I don't know should be denied. which way she was facing. *** As to how The People of the State of New York, Refar the car went after she had from spondent, v. Otto uti

Adams, the car, it went a short distance only, moved Appellants.-- Judgment reversed, and de. scarcely." William J. Finnan, a police offi. fendants discharged.-- Appeal from cer, testified that he saw the plaintiff after order of the recorder affirining a judgment she was removed from the place where she of conviction by a magistrate.fell to Eighth avenue. * I asked her how Per CURIAN: The question presented in this she came to be hurt. She said she told the case is the same as that presented in People conductor to stop at Hih street; she thought v. Green (85 App. Div. 400), and for the the car had stopped when she got to 4241 reasons there stated the judgment appealed street. She stated that she thought the car from must be reversed and the defendants had come to a stop, and that she fell while it discharged. Present - Van Brunt, P. J., was in motion, Cornelius Brosnahan, a car Patterson, Ingraham, Hatch and Laughlin, inspector of the defendant, testified that he JJ.; Patterson and Hatch, JJ., dissenting; overheard a conversation between the plain. Hermann Hamberg, Respondent, v. Charles tiff and the police officer. “I heard her Counselman and Albert M. Day, Doing Busistate in response to a question of the police ness as Counselman & Day, Appellants.officer, as to how the accident happened, Order reversed and motion granted, with. that she fell from a moving car, and that out costs on the conditions stated in opinion. she was entirely to blame.' Henry M. Da --Appeal from an order denying a motion vidson testified that he was in the employ for leave to amend answer. -ment of the defendant at the time of the PER CURIAM: The order should be reversed, accident as a switchman and was a passenger without costs and the motion granted, with. upon the car at the time of the accident, out costs on condition that the defendants He assisted in carrying the plaintiff home. pay fifteen dollars costs after notice of trial His version of the accident is as follows: and ten dollars costs of opposing this motion, “As I was riding south on an Eighth Avenue and on the further condition that the plaincar at 42d street the car had come to a stop tiff be allowed to serve an amended sumon the north-bound side, and received two mous and complaint, the case to retain its bells from the conductor to go ahead, and place upon the calendar and proceed to trial just before it stopped on the south.bound without further notice, and without preju.

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