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with testimony that it was the execution under which the plaintiff was arrested. This execution was objected to upon the ground that it appeared upon its face that it was not an execution such as was complained of in the complaint, but in a wholly different action, by different persons, not at all identical with the defendants in this suit, or any of them. The court thereupon excluded the execution. We think this objection was entirely untenable. The allegation in the complaint was that on the 27th of February, 1889, the plaintiff was arrested under an execution issued upon a judgment obtained in favor of the defendants Grinnell and Bowdoin on the 23d of November, 1886, which is precisely the judgment described in the execution in question. The introduction of the word "executors” in the execution, in the manner in which it is introduced, was entirely surplusage, and meant nothing. The judgment is not recited to have been obtained by them as executors, but they are simply stated to be executors,—of what or of whom there is no statement. The plaintiff had a right to introduce this paper in evidence for the purpose of showing the connection of the defendants with this arrest, and then it became necessary for the defendants to justify the issuing of the execution by showing the existence of a proper judgment as a foundation therefor; but in the very commencement of the proof the evidence of the plaintiff is shut out by which he sought to connect these defendants with the act of the sheriff. This, we think, was error which calls for a reversal of the judgment. It is difficult to see upon what theory the defendants Grinnell and Bowdoin could be sued as executors for a wrong, if any, committed against the plaintiff, even if they did the wrong in the administration of the estate. It is a well-settled principle that for all acts of executors they are liable individually, and not in their representative capacity; and therefore, even if the process was issued in their name as executors, and was improperly issued, they would be individually liable only for the wrong.
Certain other evidence was attempted to be offered upon the part of the plaintiff which was excluded, and the court thereupon directed a verdict for the defendant, and granted the exorbitant allowance of $1,000. We cannot see upon what theory the court directed a verdict in favor of the defendants, because for failure of proof the most that could have been done under such circumstances was to dismiss the complaint. The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.
BARRETT, J., concurs.
FOLLETT, J., dissents.
(70 Hun, 261.)
BROWN et al. V. GRAY et al. (Supreme Court, General Term, First Department. June 30, 1893.) 1. CHARTER PARTY-CONSTRUCTION-VESSEL NAVIGATED AT OWNER'S EXPENSE.
Where, by the terms of a charter party, a vessel is to be navigated at the
expense of the owners, they will be deemed to be in possession. 2. STATE COURTS-JURISDICTION-MARITIME LIENS-ENFORCEMENT.
Const. U. S. art. 3, § 2, provides that the judicial power of the courts of the United States shall extend to all cases of admiralty and maritime jurisdiction. Rev. St. U. S. $ 711, provides that "the jurisdiction vested in the courts of the United States in the cases and proceedings hereinafter mentioned shall be exclusive of the courts of the several states:
(3) Of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy when the common law is competent to give it." Held, that the state courts have no jurisdiction of equitable actions to enforce maritime liens.
Appeal from special term, New York county.
Action by John Crosby Brown and others against James Gray, John Stephens, and Henry Mauson, impleaded with others, to enforce certain maritime liens. From orders directing defendants to deposit with the Central Trust Company of New York all moneys collected on account of freight, less certain charges for wharfage, lighterage, and port charges, defendants appeal. Reversed.
The United States & Brazil Steamship Company is a corporation organized under the laws of this state, and when the transactions occurred out of which this litigation arises it was a common carrier of freight and passengers between the port of New York and various ports in South America. Among other steamers used in their business were the Kate and Joshua Nicholson, both British vessels. The Kate was owned by the defendant James Gray, and on the 15th of December, 1892, was hired to the corporation for two round trips from ports in the United States north of Cape Hatteras to ports in Brazil or in the Argentine Republic. The Joshua Nicholson was owned by the defendants Stephens and Mauson, and on the 16th of December, 1892, was hired to the corporation for two round trips from the port of New York to ports in Brazil or in the Argentine Republic. Each vessel made one round trip from the port of New York, and about the time of the termination of their trips the corporation became insolvent, and a receiver of it was appointed. The owners of the vessels agreed to furnish sufficient officers, seamen, and employes to navigate the steamers. The charterers agreed to pay a sum specified for each calendar month for the time which the steamers were employed. Both charter parties contained a provision that the owners should have a lien on all cargoes of freight for the amount due them on the contract. In 1892 and 1893 the plaintiffs issued to the corporation certain letters of credit, under which the steamship company became indebted to the plaintiff in large sums of money. When the letters were issued it was agreed that all freight, moneys earned and to be earned by the corporation were "pledged and hypothecated to the plaintiffs as collateral security for the payment" of all moneys advanced under the letters of credit. This action was brought originally against the corporation as the sole defendant, for the purpose of having the sums advanced by the plaintiffs under their letters charged as a lien on the freight moneys earned and to be earned, and to restrain the corporation from collecting those moneys. A temporary injunction was granted restraining the corporation from collecting the moneys due for freight. The Atlantic Trust Company is a trustee for holders of bonds secured by a mortgage, executed by the corporation July 1, 1889, upon its property, as security for the bonds issued pursuant to the mortgage. The trust company claims to have a lien upon the freight moneys, and March 15, 1893, it was by an order of the court, on its own petition, brought in as a party defendant in the
action. On the same date an order was made that the steamship company deposit with the Central Trust Company, to the credit of this action, all freight moneys then in its possession, and all which should thereafter be earned. March 23, 1893, upon the motion of the plaintiffs, James Gray, the owner of the Kate, and John Stephens and Henry Mauson, the owners of the Joshua Nicholson, were ordered to be brought in as parties defendant. Pursuant to this order the summons and complaint were amended, and these persons named as defendants in the action. By the amended complaint it is alleged that James Gray was the owner of the Kate, and that Stephens and Mauson were the owners of the Joshua Nicholson, and chartered them to the steamship company. It iş also alleged that said owners have or claim to have some interest in the freight moneys earned by those vessels “on the voyages of said steamers last terminated or about to be terminated, by reason of certain unpaid charter hire due or owing to them upon said steamers, and certain moneys advanced by them for disbursements of said steamers." It is also alleged that the owners, through their agents in the city of New York, are collecting the freight moneys, and threaten to apply it to their own use, and have refused to deliver it to the plaintiffs, though requested so to do. The sums which the steamship company agreed to pay for the use of the vessels have not been paid, and the owners were compelled to pay certain sums for port charges. The owners, through their agents in the city of New York, have collected the freight moneys due at the port of New York, and claim to hold them as security for the amount due under the charters for disbursements in delivering the cargo, for a claim made for coal, and for damages for refusing to load the vessels for the second agreed voyages. The appellants have not been served with process, nor have they appeared in the action except specially for the purpose of moving to vacate the injunction, and for the purpose of this appeal.
Argued before VAN BRUNT, P. J., and FOLLETT, J.
Cary & Whitridge, (Willard Parker Butler, of counsel,) for respondents.
FOLLETT, J. Under the charter parties the owners of the vessels had liens on the freight moneys for the sums due them for the use of their ships. 4,885 Bags of Linseed, 1 Black, 108; The Bird of Paradise, 5 Wall. 545. By the terms of the charter parties the vessels were to be navigated by officers and crews furnished by the owners, and at their expense, and at the time when the owners enforced their liens upon the freight they had legal possession of the ships. In Clarkson v. Edes, 4 Cow. 470, it was held, that when by the terms of a charter party a vessel is to be navigated at the expense of the owners, they must be deemed to be the owners in possession. Whether the owners have a lien on the freight moneys for all the items which they claim is not necessary to be determined, for we are of the opinion that this court has not jurisdiction to adjudicate upon the conflicting claims of these litigants. Section 3 of article 3 of the constitution of the United States provides that the judicial power of the courts of the United States shall extend to all cases of admiralty and maritime jurisdiction. Pursuant to this provision, section 711 of the Revised Statutes of the United States was passed, which provides:
"The jurisdiction vested in the courts of the United States in the cases and proceedings hereinafter mentioned shall be exclusive of the courts of the several states:
Third. Of all civil causes of admiralty and maritime
jurisdiction, saving to suitors in all cases the right of a common-law remedy when the common law is competent to give it.”
The same statutory provision is contained in subdivision 8, 8 563, Rev. St. U. S. Under this statute it has been repeatedly held that controversies arising out of maritime contracts must be enforced in the United States courts, unless the remedy sought is one which can be obtained in a common-law court. The Hine v. Trevor, 4 Wall. 555; The Belfast, 7 Wall. 625; Town of Pelham v. The R. F. Woolsey, 3 Fed. Rep. 457. The learned counsel for the respondent cites many cases, and many more might be added, holding that actions for the recovery of damages-common-law actionsfor breach of maritime contracts may be maintained in the courts of the several states; but he cites no authority holding that an equitable action, brought to enforce a maritime lien, can be prosecuted in such courts. Of such actions the federal courts have exclusive jurisdiction. The case at bar is an equitable action, brought in the first instance to enforce a maritime lien in favor of the plaintiff, and by the amendment to the complaint it is sought to adjudicate as to the existence of the maritime liens claimed by the appellant, and, if found to exist, to determine their amount. This, under the decisions, we think cannot be done. The orders appealed from should be reversed, with $10 costs and printing disbursements, and the motion to vacate the injunctions granted, with $10 costs.
(70 Hun, 397.) PEOPLE ex rel. LORRILLARD v. BARKER et al., Tax Commissioners.
(Supreme Court, General Term, First Department. June 30, 1893.) TAXATION OF PERSONALTY-RESIDENCE OF OWNER.
Laws 1883, c. 392, provides that all debts and obligations for the payment of money due or owing to persons residing in this state, however or wherever secured, shall, for the purposes of taxation, be deemed personal estate within the state. Held, that one whose main establishment is in the city of Newport, R. I., where he votes and is taxed, but who also has a winter residence in New York, is not a resident of New York, within the statute.
Appeal from special term, New York county.
Proceedings under Laws 1880, c. 269, on the relation of Louis L. Lorrillard, against Edward T. Barker and others, as commissioners of taxes, to review defendants' action in taxing relator's personal property. From an order setting aside the assessment, defendants appeal. Affirmed.
The relator was born in ihe city of New York, where he resided until 1887. He then moved to Newport, R. I., where he has since lived from April to December of each year, in a house owned by him. The balance of the year, i. e. from December to April, he spends with his family in New York city, in a house hired by him for the purpose, and where he was at the time of the assessment in question.
The following is the opinion of Mr. Justice INGRAHAM at special term: "To justify the respondents in imposing a tax it must appear that on the Tuesday after the first Monday of January, in the year 1891, the relator was a resident of this state. If he was not such a resident at that time the action
of the respondents in taxing his personal property was unauthorized. The mere fact that the relator was in the city of New York at the time mentioned would not justify the respondents in their action, unless he was then a resident of the state. It is the policy of the law to tax personal property at the place of the owner's residence; and by chapter 392 of the Laws of 1883 it is provided that all debts and obligations for the payment of money due or owing to persons residing in this state, however secured or wherever secured, shall be deemed, for the purposes of taxation, personal estate within this state. This provision, however, applies only to persols residing in this state; and by the Revised Statutes in relation to the taxation upon property it is provided that every person shall be assessed in the town or ward where he resides when the assessment is made, for all personal estate owned by him.' 1 Rev. St. p. 383, § 5. The only provision for the taxation of personal property in this state, owned by nonresidents, is that taxing property eniployed in business within this state, and tbe relator has no money invested in business in this state. The simple question is whether this relator is a resident within this state, within the meaning of the provisions of the statute before referred to. The testimony taken this proceeding, I think, clearly shows that the relator was not a resident of this state at the time this taxation was imposed. The relator is taxed upon his personal estate in Rhode Island, and has been so taxed for six years. He votes in the city of Newport, state of Rhode Island, and he spends a part of the winter in New York, but that cannot be said to be his residence. To hold this relator liable for taxation in New York would be to tax his personal estate both in New York and Rhode Island, woich would be double taxation, and is opposed to the principle established in the case of People v. Coleman, 119 N. Y. 137, 23 N. E. Rep. 488. I do not think the case of People v. Tax Commissioners, (Sup.) 17 N. Y. Supp. 923, applies, for the question there determined was not whether Mr. Day was a resident of this state, or not, and it was not there decided that a person residing in the state of Rhode Island can be taxed upon personal property merely because he spends a few months of the winter in New York; and the appeal in that case was by the tax commissioners, and not by the relator, and consequently the affirmance of that order does not require me to hold that the taxation of personal property belonging to a resident of Rhode Island can be imposed in this state. I think, therefore, the action of the respondents must be reversed, and the tax canceled, with costs."
Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.
William H. Clark, (G. S. Coleman, of counsel,) for appellants.
Platt & Bowers, (J. M. Bowers and L. G. Reed, of counsel,) for respondent.
PER CURIAM. The order appealed from should be affirmed, with $10 costs and disbursements, upon the opinion of the court below.
(70 Hun, 230.)
(Supreme Court, General Term, First Department. June 30, 1903.) 1. ADMINISTRATOR-REMOVAL-SUFFICIENCY OF EVIDENCE.
Where, in a proceeding for the removal of an administratrix with the will annexed on the ground of waste in selling property for less than its value, the evidence is conflicting as to whether or not the sum received for the property was less than its value, the finding of the surrogate will not be disturbed.