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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 twentysix 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
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.
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.
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 not go to Feltenstein until the tenth, and if the order was issued, its date would be quite a pertinent piece of evidence, as would be the affidavits upon which it was based. It is also pertinent to observe that Schleimer nowhere in his affidavit denies that proceedings were instituted against him by Sanders and Feltenstein to compel the payment by him of this money. Such subject seems to have been studiously avoided in all of the opposing affidavits, although such matter was plainly and fully stated in the petition. It is pertinent also in this connection to call attention to the fact that, although the payment of the judgments is stated to have been made in one sum and upon the same day, the checks which are produced show that one is for $200 and the other for $75. It would materially aid in this matter if it had been made to appear when these checks were delivered and when they were paid by the bank, and why it was necessary to draw two checks when, confessedly, Schleimer had the defendant's money for the full amount with which to pay before he drew either. It may be that all of these matters can be shown to be fair and honest and that the transaction can be made so to appear when the witnesses are sworn and the papers are produced. It is enough for us now to say that the court was entirely justified in requiring further proof before disposing of the charge. The amount involved is small, but the proceeding is important and should provoke a careful examination into the facts. We are of opinion, however, that a reference ought not to have been ordered, nor the petitioner attendant expense be subjected to th thereon. The facts are not complicated and the proof lies in a small compass. Either the attorney should be vindicated of the charge or be summarily dealt with. The rights of both parties ought to be speedily settled; and we think, in view of the nature of the charge and the character of the proof, that the court ought to dispose of the matter without the intervention of an expensive reference. It follows, therefore, that the order of reference should be set aside and the case remitted to the Special Term for disposition. No costs of this appeal to either party. Present-Van Brunt, P. J., Patterson, Ingraham, Hatch and Laughlin, JJ. Louise Winthrop Koues, Respondent, v. Metropolitan Street Railway Company, Appellant.-Judgment and order reversed, new trial ordered, costs to appellant to abide event.-Appeal from a judgment entered upon the verdict of a jury and from an order denying the defendant's motion for a new trial.
PER CURIAM: This action was brought to recover damages for personal injuries, claimed to have been sustained by the plaintiff on July 9, 1899, in alighting from a southbound car of the defendant on Eighth avenue at the corner of Forty-second street. Plaintiff boarded the car at Eighty-ninth street for transportation to Forty-fourth
FIRST DEPARTMENT, JULY TERM, 1903.
street, in which street she resided. Inadvertently she passed Forty-fourth street, and did not realize her mistake until the car stopped on the north side of Forty-second street. She testified that after the car started up to cross the street she arose in her seat and motioned to the conductor just before the car reached the south side. The car came to a stop there and the plaintiff "proceeded to alight, took hold of the support of the car with my left hand and put my right foot down on the step, in process of alighting, and followed that with my left foot, and then another step with the right foot to the ground, and before I could get the left foot - before I could really step firmly on the ground and let go of the sup port of which I had hold, the car gave a jerk and I was thrown." The plaintif was the only witness who testified in her behalf as to the circumstances connected with the accident. The evidence which she gave was sufficient to charge the defendant with negligence and to relieve her from contributory negligence. A case was, therefore, made requiring its submission to the jury. We are of opinion, however, that the testimony given by the defendant so far preponderated in its favor as to call for the setting aside of the verdict and the judgment entered thereon, as being against the clear weight of the testimony. Martin J. Kiernan, the motorman, was called and testified that, while he did not see the accident, he heard a scream; that when he heard it, he had not stopped, but came to a stop immediately after. Charles Kalmo, a passenger upon the car, testified that when the plaintiff attempted to alight, the car was going very slow; just about to stop, and that the plaintiff stepped off backwards; that the conductor "hollered wait until the car stops,' but she paid no heed, but stepped off backward and stepped down, and the car stopped right away, from where she sat down." Catherine Esler, a passenger, testified that she saw the plaintiff arise in her seat as the car was crossing Forty-second street; that she heard the conductor call to her to wait. She didn't wait until the car got to the further crossing, you know; she got off. I don't know how she got off. The car was in motion when she got off. I don't know which way she was facing.*** As to how far the car went after she had fallen from the car, it went a short distance only, moved scarcely." William J. Finnan, a police officer, testified that he saw the plaintiff after she was removed from the place where she fell to Eighth avenue. "I asked her how she came to be hurt. She said she told the conductor to stop at 44th street; she thought the car had stopped when she got to 420 street. She stated that she thought the car had come to a stop, and that she fell while it was in motion." Cornelius Brosnahan, a car inspector of the defendant, testified that he overheard a conversation between the plaintiff and the police officer. "I heard her state in response to a question of the police officer, as to how the accident happened, that she fell from a moving car, and that she was entirely to blame.' Henry M. Davidson testified that he was in the employment of the defendant at the time of the accident as a switchman and was a passenger upon the car at the time of the accident. He assisted in carrying the plaintiff home. His version of the accident is as follows: "As I was riding south on an Eighth Avenue car at 42d street the car had come to a stop on the north-bound side, and received two bells from the conductor to go ahead, and just before it stopped on the south-bound
side of the crossing I heard the conductor shout, Wait until the car stops, madam,' and I was interested at the time in a paper, and I looked up and saw this lady about to alight from the running-board to the street. *** After she had fallen from the car it went before it came to a standstill, I should judge, about four feet **At the time she fell the car had not been brought to a full stop yet." Dr. Sanfers, a physician who attended upon the plaintiff, testified that when she was brought home she stated to him that she fell from a moving car. The conductor was not called as a witness, but his absence was explained by showing that he was in the Philippines. We think the ver. diet of the jury, based upon the testimony of plaintiff, was against the clear weight of the evidence. The judgment and order should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event. Present-Van Brunt, P. J., Patterson, Ingraham, Hatch and Laughlin, JJ. John M. Jones and Others, as Executors of and Trustees under the Last Will and Testament of Morgan Jones, Deceased, Respondents, v. Margaret T. Reilly and Others, Defendants, Impleaded with Hannah R. Rockwell and George H. Brooke, Appellants.-Order modified as directed in opinion, and as modified affirmed, without costs. --Appeal from an order granting plaintiffs' motion to serve an amended or supplemental complaint.-
PER CURIAM: The order appealed from is modified by requiring the plaintiffs, as a condition of the amendment, to pay all the taxable costs in the action to the time the amendment was made, and as thus modified, affirmed, without costs to either party. Present-Van Brunt, P. J. (dissenting); O'Brien, Ingraham, McLaughlin and Hatch, JJ.
VAN BRUNT, P. J. (dissenting): I dissent. There is not the slightest particle of evidence to show that all the facts in the amended complaint were not known to the plaintiffs at the time of the commencement of the original action; and the rule is well settled, except in this department, that where such is the case a motion to amend should be denied.
The People of the State of New York, Respondent, v. Otto Hufland and Burt Adams, Appellants.-Judgment reversed, and defendants discharged.- Appeal from an order of the recorder affirining a judgment of conviction by a magistrate.— PER CURIAM: The question presented in this case is the same as that presented in People v. Green (85 App. Div. 400), and for the reasons there stated the judgment appealed from must be reversed and the defendants discharged. Present-Van Brunt, P. J., Patterson, Ingraham, Hatch and Laughlin, JJ.; Patterson and Hatch, JJ., dissenting, Hermann Hamberg, Respondent, v. Charles Counselman and Albert M. Day, Doing Busi ness as Counselman & Day, Appellants.Order reversed and motion granted, without costs on the conditions stated in opinion. -Appeal from an order denying a motion for leave to amend answer.
PER CURIAM: The order should be reversed, without costs and the motion granted, without costs on condition that the defendants pay fifteen dollars costs after notice of trial and ten dollars costs of opposing this motion, and on the further condition that the plaintiff be allowed to serve an amended summons and complaint, the case to retain its place upon the calendar and proceed to trial without further notice, and without preju⚫