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THE

New York Supplement

VOLUME 80.

AND

New York State Reporter,

VOLUME 114.

BUTCHER v. HARVIE DRUG 00.

(Supreme Court, Appellate Division, Second Department. January 30, 1903.) 1. ATTORNEY-EMPLOYMENT BY CORPORATION PRESIDENT-LIABILITY FOR Com.

PENSATION

In an action against a corporation for compensation, an attorney testified that the company's then president asked him to see a certain stockholder, as the company was then negotiating a sale of its entire stock, and it was necessary for bim (the president) to have that stock, and that bis (the attorney's) object was to purchase the stock for the company. No corporate action was taken looking towards the acquisition of the stock. Held, that the attorney was employed by the president in his individual capacity, to whom he must look for compensation.

Hirschberg, J., dissenting.
Appeal from municipal court, borough of Brooklyn.

Action by William W. Butcher against the Harvie Drug Company. Judgment for plaintiff, and defendant appeals. Reversed.

Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, and HIRSCHBERG, JJ.

Avery F. Cushman, for appellant.
William W. Butcher, pro se.

PER CURIAM. A careful reading of the stenographer's minutes forces us to the conclusion that this is one of that class of cases in which the proof so clearly preponderates in favor of a contrary result that it can be said with a reasonable degree of certainty that the trial court has erred in its conclusions. Foster v. Bookwalter, 152 N. Y. 166, 46 N. E. 299. The plaintiff sued to recover $50, as and 114 New York State Reporter the value of professional services rendered by him, as an attorney and counselor at law, in endeavoring to purchase certain stock in the Harvie Drug Company, held by a Mrs. Koch. There was no dispute as to the value of such services or their rendition, but the defense was that they were performed, not for the defendant corporation, but for Mr. William Harvie, the president of the Harvie Drug Company, as an individual. It seems to us that the evidence fully sustains this defense, and, indeed, that the testimony of Mr. Butcher himself is insufficient to make out employment on behalf of the corporation. There is no proof or suggestion that any corporate action was ever taken looking toward the acquisition of Mrs. Koch's stock. Mr. Butcher testifies :

80 N.Y.S.-1

"Its then president, William Harvie, saw me, and asked me to see a Mrs. Koch, who was then the holder of fifty per cent of the stock of the company, as the company was then negotiating a sale of its entire stock, and it was necessary for him to have that stock."

It is true, he says further on in his testimony that his object was to purchase half the stock for the company; but that is a mere conclusion of the purpose which he had in mind, and not a statement of fact relative to the issue. On the whole case, we think that Mr. Butcher's claim is against Mr. Harvie individually, and not against the company of which he was the president.

It follows that the judgment must be reversed, and a new trial ordered; costs to abide the event.

HIRSCHBERG, J., dissents.

PEOPLE V. STATON. (Supreme Court, Appellate Division, Second Department. January 30, 1903.) 1. CHATTEL MORTGAGES-REMOVAL FROM STATE-FRAUDULENT INTENT—CRIMI

NAL LIABILITY.

Pen. Code, $ 571, punishes a chattel mortgagor who sells, secretes, or disposes of the property "with intent thereby to defraud" the mortgagee, etc. A mortgage provided that, if the mortgagor removed the goods from the house where then located without the mortgagee's written consent, the latter might elect that the whole debt should become due. The mortgagor had effected one removal without such consent, after which the mortgagee, with knowledge, accepted installments of the debt. When in advance on his weekly payments, and having paid one-half of the debt, the mortgagor shipped the goods to North Carolina. When asked to make further payments, he informed the mortgagee of their present location, and also made a further payment. Held, that there was no

intent to defraud, so as to create a criminal liability. Appeal from court of special sessions of city of New York.

General G. Staton was convicted of fraudulently removing chattel mortgaged goods from the state, and appeals. Reversed.

Argued before GOODRICH, P. J., and JENKS, WOODWARD, HIRSCHBERG, and HOOKER, JJ.

Alfred C. Cowan, for appellant.
Frederick B. Bailey, for respondent.

HOOKER, J. The defendant bought certain household goods of the complaining witness in May, 1902, at the agreed price of $62, paying $5 in cash and promising to pay $1 weekly until the whole amount should be paid. To secure these payments, he executed and delivered to the complaining witness a chattel mortgage upon the same property. He was a married man, keeping house in the borough of Brooklyn, to which place he had recently moved from his former home in Goldsboro, state of North Carolina. For a period of five weeks after this transaction the defendant paid $2 weekly upon his account, and until the latter part of September paid at about the same rate as called for in the agreement. On or about October Ist his wife became ill, and defendant sent her back to his former home in North Carolina for the benefit of her health. On October 27th the defendant paid $3 on account, and early in November thereafter, finding he could not care for the household goods in Brooklyn, he shipped them to his wife in Goldsboro. On December 6th, being in default in his weekly payments, he was solicited by one of the agents of the complaining witness to resume payment. The defendant informed him that he had sent his goods to his wife, and indicated where she was, and where the goods might be found, and promised to call at the office of the complaining witness and make further payments. Accordingly, on the same day he called there, again told of the whereabouts of the goods, and paid $2 on account, which was accepted. Two days later he was arrested for a violation of section 571 of the Penal Code. That section provides as follows:

“A person who, having theretofore executed a mortgage of personal property, or any instrument intended to operate as such, sells, assigns, exchanges, secretes, or otherwise disposes of any part of the property, upon which the mortgage or other instrument is at the time a lien, with intent thereby to defraud the mortgagee, or a purchaser thereof, is guilty of a misdemeanor.”

No conviction under this section can be sustained unless the act of the defendant is "with intent thereby to defraud.” We are unable to discover in this case any evidence pointing to a criminal intent on the part of the defendant. At the time of the removal of the goods to North Carolina the defendant was in advance of his $1 a week engagement, and had paid more than was then due under the contract of sale. He had then paid approximately one-half of the purchase price. When asked to resume payments, he volunteered the information as to the location of the goods, and immediately complied with the request. Intent to defraud cannot be predicated upon such a course of action. The special sessions seems to have laid stress upon the supposed undertaking in the mortgage that the defendant would not remove the goods from the house to which they were originally delivered by the vendor. No such agreement is contained therein. The defendant covenanted that, in case he made any attempt to effect such a removal without written consent, the mortgagee might elect that the whole amount of the mortgage should become due, and sell the mortgaged property to satisfy the debt. Further than that, it is to be noticed that the property was removed from the house where the defendant lived at the time of the purchase to another residence in the same borough, and that the venand 114 New York State Reporter dor's agents knew of that removal, which was, as far as appears, without the written consent of the vendor, and accepted defendant's weekly payments thereafter. The language of the instrument, particularly in the light of the course of dealings between the parties, furnishes no evidence or presumption of a criminal intent on the part of the defendant.

The judgment of conviction should be reversed, and a new trial ordered. All concur.

(79 App. Div. 171.)

SMITH et al. v. LONG ISLAND R. 00. (Supreme Court, Appellate Division, Second Department. January 30, 1903.) 1. RAILROADS-FIRES-EVIDENCE-SUFFICIENCY FOR JURY.

Testimony by plaintiff and his sister, in an action against a railroad for damage to land by fire, that shortly after a mail train of defendant had passed they smelled smoke, and went back, and found a fire in the right of way, and live coals lying there, etc., made a case for the jury. Appeal from trial term, Suffolk county.

Action by William E. T. Smith and others against the Long Island Railroad Company. Judgment dismissing complaint, and plaintiffs appeal. Reversed.

Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.

Clarence G. T. Smith (John R. Reid, on the brief), for appellants. William J. Kelly, for respondent.

GOODRICH, P. J. The plaintiffs are owners of a large tract of land on the southerly side of the Long Island Railroad between Mastic and Brookhaven. On April 6, 1900, a fire occurred, burning over a portion of the tract. The complaint alleged "that the defendant negligently operated its engines over its tracks, and negligently forced large quantities of live coals from its engines, and did negligently permit and allow quantities of dried grass and leaves to accumulate upon its tract (sic) and right of way, and did negligently set fire to the same on or about the 6th day of April, 1900, and did negligently permit and allow said fires to extend to plaintiffs' lands, and burned over about a thousand acres thereof, destroying the growing trees thereon, to their damage of five thousand ($5,000) dollars." The defendant denied this allegation, and the case came on for trial, when, at the close of the plaintiffs' evidence, the court dismissed the complaint, and the plaintiffs appeal, contending that the evidence was sufficient to require its submission to the jury.

There was evidence that Mr. Smith, one of the plaintiffs, and his sister, were driving in the vicinity of their land, and saw a mail train of the defendant at Mastic, which lies to the eastward of the plaintiffs' land; that as they crossed the track this train passed by their land, going toward Brookhaven, which is three miles west of Mastic; that they smelled smoke; that they went back, and found that there was a fire burning between the railroad and a fire road which is 5 or 6 rods south of the railroad; that one of them, Mr. Smith, tried to whip out the fire, but was unable to do so; that the wind was blowing hard from the north; that there were inflammable bushes and grasses on the railroad right of way; that he saw and picked up cinders and seven or eight live coals as large as his thumb on the railroad right of way and about 15 feet from the track, it being conceded that the defendant's right of way extended 27 feet south of the center line between the rails; and that there were bushes and dried grass on this right of way near the place where the coals were picked up. Miss Smith testified that there was "fire burning between the telegraph pole and the railroad"; that there was no fire in the vicinity before the mail train passed, and that the smoke appeared four or five minutes afterwards. This evidence was sufficient to require the submission to the jury of the question whether the fire was caused by coals dropped by the defendant's engine onto inflammable matter on its right of way, and thence communicated to the plaintiffs' land. O'Reilly v. Railroad Co., 72 App. Div. 228, 76 N. Y. Supp. 171. The rule is well stated in 2 Thomp. Neg. $ 2291, where it is said, citing authorities:

“The negligence of the railroad company in communicating the fire may be proved wholly by circumstantial evidence, and there need not necessarily be direct proof of any particular act or omission upon which the law predicates negligence. Circumstantial evidence raising an inference of negligence is as good, for the purpose of taking the question to the jury, as is direct evidence; and when it is so taken to them the judge cannot properly withdraw it from them merely because he may suppose-usurping their functions—that the evidence of negligence has been rebutted by evidence adduced for the defendant. It is for the jury to judge of the weight and sufficiency of the countervailing evidence. The discovery of a fire on or near the company's right of way shortly after a locomotive has passed warrants the inference that it was set by sparks thrown from the engine, it being a matter of common knowledge that locomotives do emit sparks."

It was error to dismiss the complaint, and the judgment should be reversed. All concur.

(39 Misc. Rep. 412.)

TOBIN V. GRAF et al. (Supreme Court, Special Term, New York County. December, 1902.) 1. WILLS-CONSTRUCTION-VALIDITY OF TRUBT.

Testatrix devised certain personalty to her daughter if her husband dled before testatrix, otherwise to trustees, to accumulate the profits and transfer the estate to the daughter upon her husband's death, with a provision that, if the daughter died before the husband, the property was to pass to a grandson. Held to create, if the husband was living on the death of the testatrix, a valid active trust, which was not rendered invalid by a void direction for an accumulation, which was not for the benefit or during the minority of an infant or infants, and therefore un

lawful, under Real Property Law, $ 51. 2. SAME-ACCUMULATED PROFITS.

Where a devise of a personal estate to testatrix's daughter was made in trust, and authorized the accumulation of profits until death of the daughter's husband, the profits accumulated thereunder belong to the daughter, upder Laws 1896, c. 547, providing that when, in consequence of a valid limitation of an expectant estate, the rents and profits are undisposed of, and no valid direction for their accumulation is given, they sball belong to tbe persons presumptively entitled to the next eventual estate,

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