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and 140 New York State Reporter his conduct. If he had knowledge that the law was being violated, it was his duty to suppress the violation; but if, in failing to do this, he acted under orders of his superior, we think the punishment was too severe, while if he did not refrain from acting in consequence of any superior interference, but simply neglected his duty, the decision ought to stand. The crucial question, therefore, is: Did relator fail to act upon the advice of Howell, or from notives of his own?

We are not entirely satisfied that he did not honestly intend to sup press the place. Howell testifies that he did not receive any such report as to the premises in question from relator, or give him any directions regarding the case, that he can remember. It is incredible that he should not remember whether such report was made and directions given. The relator had been a member of the force for 14 years, and only about a month before this occurrence had received honorable mention from the commissioner for "exceptional zeal, intelligence, fidelity, integrity, and marked good results of police service.” He had just before that time raided this same house. He had applied for hundreds of warrants, and caused hundreds of raids to be made, as the uncontradicted averments of his petition show. At the same time that he directed the procurement of evidence against this house, he directed similar action against a house located at 204 West Forty-Sixth street, and upon receiving the reports of his officers directed the procurement of a warrant, which was refused by the magistrate to whom application was made because of the insufficiency of the evidence. Upon the hearing he repeatedly sought to show that in pursuance of his general order from the police commissioner, and with his knowledge and approval, he had repeatedly reported to Howell in this class of cases, and received orders from him which he had obeyed. This evidence was both material and competent, and its exclusion was error.

When the witness Johnson was on the stand, he was permitted on his direct examination to state the conversations between the relator and himself when the former directed no further proceedings to be taken against the premises in question. Upon his cross-examination counsel for the relator asked him if in those conversations, and particularly the last one, the relator did not say to him: “Don't do anything for a while, as I have received orders from Mr. Howell not to do anything in regard to that house at present.” At different times during the cross-examination counsel labored strenuously to get this evidence on the record, with the same result. It requires no argument to establish the legal proposition that when one litigant upon a trial proves part of a conversation, competent and material, his adversary is entitled to the whole of it, and the exclusion of this evidence was error. An officer ought not to be deprived of an enviable record honestly and meritoriously earned by years of faithful and commendable service, unless the evidence against him shall be convincing and preponderating in weight, and nothing short of this should be held to justify a punishment as severe as that inflicted upon the relator.

The proceedings of the police commissioner must be annulled and set aside, and the relator restored to his position, with $50 costs and his disbursements in this court. All concur, except MILLER, J., who dissents.

(121 App. Div. 032.)

CITY REAL ESTATE CO. V. MacFARLAND et al.

(Supreme Court, Appellate Division, First Department. October 25, 1907.)

ABATEMENT-ANOTHER ACTION PENDING.

The assignee of a mortgage, the validity of which was involved in two actions then pending against its assignor, in which all other parties in interest were before the court, will not be permitted to require the committee of an incompetent person, such committee being plaintiff in one of the actions and the incompetent person in the other, by an action to foreclose the mortgage, to litigate in defense thereof matters affirmatively averred in the actions attacking the mortgage; but such assignee will be left to its remedy in the actions then pending against its assignor.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 1, Abatement and Revival, $$ 39, 40, 52.]

Appeal from Special Term.

Action by the City Real Estate Company against Archibald J. MacFarland, George I. Malcom, as committee, etc., of Louisa Malcom Stenton, and others. From an order granting plaintiff's motion for leave nunc pro tunc to join Louisa Malcom Stenton and George I. Malcom, as committee of her person and property, as parties defendant, and for leave nunc pro tunc to serve the summons and complaint on them, George 1. Malcom, as committee, appeals. Order reversed, and motion denied.

Argued before PATTERSON, P. J, and INGRAHAM, LAUGHLIN, CLARKE, and HOUGHTON, JJ.

Nelson S. Spencer, for appellant.

Harold Swain (Norman Wilmer Chandler, on the brief), for respondent.

LAUGHLIN, J. If it were proper to grant leave to sue the incompetent person, it was competent for the court to make the order denying the motion to set aside the service from which an appeal has been taken, which was argued with this appeal, and to make the order allowing the service nunc pro tunc; but we are of opinion that leave should not have been granted. The action is brought to foreclose a mortgage for $45,000 on premises situate in the county of New York, made by Archibald J. MacFarland to the Farmers' Loan & Trust Company on the 13th day of December, 1905, which was assigned to the plaintiff prior to the commencement of the action. Louisa Malcom Stenton was duly adjudged an incompetent person, and George I. Malcom was duly appointed committee of her person and property, on the 22d day of November, 1906. It appears that in March, 1903, she was in possession of the premises described in the mortgage, claiming to be seised in fee thereof, and that during that month proceedings were instituted by the executor of one John Munn in the Municipal Court of the City of New York, Borough of the Bronx, to recover possession upon the ground that she was a squatter.

The affidavit of the committee presented in opposition to the motion for leave to sue shows that said Louisa Malcom Stenton executed a deed of an undivided two-fifths interest in the premises to the attorneys

and 140 New York State Reporter employed by her to defend the summary proceedings, in consideration for their services and disbursements, covenanting that she was seised in fee simple absolute, and assuming all taxes, assessments, and water rates then a lien upon the premises; that subsequently an action in partition was brought by one of the grantees against her and the other, in which the executor of Munn was joined as a party defendant; that she was not served, but an appearance was entered for her without knowledge or consent; that the action was conducted throughout in the interests of her grantees and in disregard of her rights and interests, which were adverse to theirs; that an interlocutory judgment for a sale of the premises was entered, adjudging that she was the owner of an undivided three-fifths interest, and the referee appointed to sell was directed to pay out of the proceeds of the sale all taxes, assessments, and water rates which were liens upon the premises, and to charge against her share all of those which were liens at the time of the conveyance to her attorneys; that the premises were purchased by MacFarland for her grantee defendant, and the purchaser was allowed, in violation of the direction contained in the interlocutory judgment, to retain the sum of $45,865.65 on account of taxes, assessments, and water rates, which was the apparent amount thereof, notwithstanding the fact that, simultaneously with the execution of the referee's deed to MacFarland, he executed the mortgage to the Farmers' Loan & Trust Company, and at that time, to the knowledge of the mortgagor and mortgagee, the taxes, assessments, and water rates had been compromised with the city for $27,274.10, the amount being paid by her grantee, whom the purchaser represented; that the surplus of the purchase price was divided between her grantees upon the theory that her share was insufficient to pay her portion of the taxes, assessments, and water rates, and she therefore received nothing. It appears that during all this time she remained in undisturbed possession of the premises. MacFarland executed a second mortgage to another party on the premises to secure the payment of $6,000. This mortgage was foreclosed, and said Louisa Malcom Stenton was made a party defendant and interposed a defense. The action was thereupon discontinued as to her. She subsequently commenced an action against the mortgagees, her grantees, McFarland, and others, charging in effect that these mortgages were collusive, fraudulent, and void as to her; that the Farmers' Loan & Trust Company appeared and answered in that action, and the case is now upon the calendar awaiting trial. The committee subsequently brought a similar action against the Farmers' Loan & Trust Company and others, and after service upon it in that action the Farmers' Loan & Trust Company assigned the mortgage to the plaintiff, who brought this action to foreclose it.

The plaintiff having taken an assignment of this mortgage when Its validity was involved in two actions then pending against its assignor, in which all other parties in interest were before the court, it should not now be permitted to require the committee to litigate in defense of this action, in which, for want of necessary parties, full relief may not be obtained, matters affirmatively averred by him and by the incompetent person in the others. The plaintiff having purchased a mortgage, the validity of which was then involved in litiga

tion, should be left to its remedy to defend its rights in the actions then pending against its assignor.

It follows that the order should be reversed with $10 costs and disbursements, and motion denied, with $10 costs. All concur.

(121 App. Div. 655.)

CITY REAL ESTATE CO. V. MacFARLAND et al. (Supreme Court, Appellate Division, First Department. October 25, 1907.)

Appeal from Special Term.

Action by the City Real Estate Company against Archibald J. MacFarland and others, and George I. Malcom, as committee, etc., of Louisa Malcom Stenton. From an order denying the motion of George I. Malcom, as committee, to set aside service of summons on him, he appeals. Order reversed, and motion granted.

Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CLARKE and HOUGHTON, JJ.

Nelson S. Spencer, for appellant.
Harold Swain, for respondent.

PER CURIAM. For the reasons assigned in the opinion in City Real Estate Company v. MacFarland, 106 N. Y. Supp. 333, on the appeal from the order granting leave to sue the committee, the order denying the motion to set aside the service upon the committee should have been granted.

It follows that the order denying the motion to vacate the service should be reversed, with $10 costs and disbursements, and motion granted, with $10 costs.

(121 App. Div. 611.)

CRISENZA V. AUCHMUTY. (Supreme Court, Appellate Division, First Department. October 25, 1907.) DISMISSAL-RIGHTS OF ATTORNEY.

It was improper to refuse to dismiss a complaint for lack of prosecution, as expressly authorized by Code Civ. Proc. $ 822, and rule 36 of the general rules of practice; plaintiff's attorney's only excuse being that his client had settled the claim, and he having taken no steps since the joinder of issue to enforce his lien, though advised by the answer of the settlement. Appeal from Special Term.

Action by Luca Crisenza against Ellen S. Auchmuty. From an order denying a motion to dismiss the complaint for neglect to prosecute, defendant appeals. Reversed, and motion granted.

Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CLARKE and HOUGHTON, JJ.

Harold S. Recknagel, for appellant.
Nelson L. Keach, for respondent.

PER CURIAM. The action was begun by the service of a summons on January 15, 1904, and the issue was joined on March 2, 1904.

and 140 New York State Reporter The case has never been noticed for trial, and, junior issues having been reached and tried in their regular order, defendant moved to dismiss the complaint for lack of prosecution, as provided for by section 822 of the Code of Civil Procedure and rule 36 of the general rules of practice. The only excuse offered by the plaintiff's attorney is that his client had settled and compromised the claim, and, indeed, the answer, verified on the 2d day of March, 1904, alleges compromise of the claim and the execution and delivery by the defendant of a general release.

It is suggested that, in spite of the fact that the plaintiff's attorney has taken no steps in the action since the joinder of issue and made no move for the purpose of enforcing his lien, the case ought to be kept upon the calendar and treated as a live issue, solely for the attorney's protection. There seems to be no good reason for this. The attorney's rights, if he had any, accrued upon the compromise and settlement of which he was advised by the answer served. The facts do not differ essentially from those passed upon by the learned Appellate Division in the Second Department in Russo v. Darmstadt, 116 App. Div. 887, 102 N. Y. Supp. 209; and for the reasons there stated the order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.

(121 App. Div. 661.) PEOPLE ex rel. METROPOLITAN ST. RY. CO. v. BARKER et al., Tax

Com'rs. (Supreme Court, Appellate Division, First Departinent. October 25, 1907.) 1. TAXATION-CORPORATIONS-CAPITAL STOCK.

Tax Law, Laws 1896, p. 802, c. 908, $ 12, provides that the capital stock of every company liable to taxation, etc., after deducting the assessed value of its real estate and all shares of stock actually owned by such company in other corporations which are taxable on their capital stock, shall be assessed at its actual value. Held that, where a street railway company leasing property from other companies paid taxes on the property of the lessor companies as part of the rent, it could not be com

pelled to again pay taxes based on the fee value of the leased property. 2. SAME-LEASES.

In valuing the interest of a lessee in leased property for taxation, the value of the lease to the lessee is to be ascertained, and not the value

of the property leased. 3. EVIDENCE-ADMISSIONS-CORPORATE OFFICERS.

Where the value of property of a corporation on a certain date was in issue for purposes of taxation, a speech of the president of the corporation at a meeting of the stockholders, made several years thereafter, wherein be commented on the profits the corporation bad realized, was

not admissible in evidence. 4. SAME-VALUE OF PROPERTY-TIME OF VALUATION.

Where the value of the property of a corporation at a certain date was in issue for purposes of taxation, evidence of actual results in the way of

profits, ascertained years after such date, was incompetent. 5. TAXATION-ASSESSMENT CORPORATE PROPERTY-LEASED PROPERTY.

The fact that property of corporations leased to another corporation was assessed at a sum considerably less than the actual value of the property did not justify an assessment against the lessee corporation for the difference between the actual and the assessed value of the property.

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