But the record shows that the plaintiff Evansville and Illinois Railroad Company, in that case declined to amend his decla- on the taking place of the alleged consolition, and that the court rendered judg-dation, as set forth in the complaint ceased ment for the defendants. An appeal was to exist as a separate corporation, and that prayed by the plaintiff, but it does not the complairt did not state any matter of appear that the appeal, if it was allowed, fact showing a revivor of the suit against was ever prosecuted, and the present de- the consolidated company, or any facts fendants aver, in their plea in bar, that which rendered such a revivor unnecessathe matters and things set forth in the ry; that the following allegations contained declaration in that case are the same mat- in the declarations in this case, and which ters and things as those set forth in the were not contained in the complaint in declaration in the present suit, and that the prior case, fully supply all the facts the plaintiff impleaded the defendants in for the want of which the demurrer was that suit, in a court of competent juris- so sustained by the judge of the county diction, upon the same cause of action, circuit court, and in the de'ence of which disclosing the same ground of claim, and he, the said judge, held that the suit had alleging the same facts to sustain the abated by the consolidation. same, as are described and alleged in the Matters omitted in the former declarapresent declaration, and that the court tion and supplied in the present, as alleged had jurisdiction of the parties and sub- in the replication of the plaintiff, are the ject matter, and rendered a final judgment following: (1) That the two companies, upon the merits in favor of the defendants on the eighteenth of November, 1852, by and against the plaintiff, and that the virtue of the act to incorporate the Wajudgment remains unreversed and in full bash Railroad Company, consolidated their force.

charters and united into one company Plaintiff demurred to the plea and the under the name and style of the Evansdefendants joined in the demurrer and ville and Illinois Railroad Company, and the cause was continued. During the that the consolidated company under that vacation the original plaintiff deceased, name continued to appear to and defend and it was ordered that the cause be the said action in the said Supreme Court. revived in the name of the executrix of (2) That the Legislature of the State of his last will and testament. Both parties Indiana subsequently enacted that the subsequently appeared and were heard, corporate name of the consolidated comand the court, consisting of the Circuit pany should be changed, and that the and District Judges, overruled the de- same should be called and known by the murrer to the plea in bar and decided name of the Evansville and Crawfordsthat the plea is a good bar to the action. ville Railroad Company, by which name

Instead of amending the declaration the defendants have ever since and now pursuant to the leave granted, the plain- are known and called. (3) That the act tiff filed a replication to the plea in bar, to of the legislature changing the name of the effect following, that the decision of the consolidated company was subsethe county circuit court of the state was quently duly and fully accepted by the not a decision and judgment on the directors of the company, and that the merits of the case, but, on the contrary company became and was liable for all thereof, the judgment of that court only acts done by the two companies and each decided that the complaint or declaration of them. (4) That the consolidated com

ate facts sufficient to sustain the pany appeared and defended the said acaction, in this, that according to the alle- tion in the Supreme Court of the State of gations of the complaint, the original New York by the name of the Evansville

and Illinois Railroad Company, and con- ties in the suit decided in the County tinued to defend the same until final Circuit Court. Where the parties and judgment was rendered in the case. (5) the cause of action are the same, the That it did not in any manner appear in prima facie presumption is that the questhe former suit that the act of the legisla- tions presented for decision were the same ture changing the name of the consoli- unless it appears that the merits of the dated company ever went into force by its controversy were not involved in the isacceptance, or that the consolidated com- eue, the rule in such a case being, that pany had thereby and by the acceptance where every objection urged in the second of said act become liable for all acts done suit was open to the party, within the by the said two companies before the con- legitimate scope of the pleadings, in the solidation, as is provided in the second first suit, and might have been presented section of said legislative act. Wherefore in that trial, the matter must be considthe plaintiff says that the decision in that ered as having passed in rem judicatum, case was not in any manner a decision and the former judgment in such a case upon its merits, nor in any manner a bar is conclusive between the parties. to this action.

3. That a judgment rendered upon de Responsive to the replication the de- murrer to the declaration, or to a material fendants filed a special demurrer and pleading, setting forth the facts, is equally showed the following causes: (1) That conclusive of the matters confessed by the the reply is insufficient in law to enable demurrer as a verdict finding the same the plaintiff to have and maintain her ac- facts would be, since the matters in contion. (2) That the reply does not state troversy are established in the former case, facts sufficient to constitute a defence to as well as in the latter, by matter of rethe defendants' plea (3) That the reply cord, and the rule is that facts thus estabdoes not state facts sufficient to consti- lished can never after be contested between tute a good reply nor to avoid the de- the same parties or those in privity with fendants' plea.

them, and that if judgment is rendered Hearing was had and the court sus- for the defendant on demurrer to the tained the demurrer to the replication and declaration, or to a material pleading in rendered judgment for the defendants, and chief, the plaintiff can never after mainthe plaintiff sued out the present writ of tain, against the same defendants or bis

privies, any similar or concurrent action Held, 1. Technical estoppels must be for the same cause, upon the same grounds pleaded with great strictness, but when a as were disclosed in the first declaration, former judgment is set up in bar to a for the reason that the judgment upon pending action, or as having determined such a demurrer determines the merits of the entire merits of the controversy in- the cause, and a final judgment deciding volved in the second suit, it is not re- the right must put an end to the dispute, quired to be pleaded with any greater else the litigation would be endless. strictness than any other plea in bar, or That if the plaintiff fail on demurrer any plea in avoidance of the matters al- in his first action, from the omission of an leged in the antecedent pleading. essential allegation in his declaration

2. It is clear that the parties in the which is fully supplied in the second suit, present suit are the same as the parties in the judgment in the first suit is no bar the former suit, and it can not be success to the second, although the respective acfully denied that the cause of action in tions were instituted to enforce the same the pending suit is identical with that right, for the reason that the merits of the which was in issue between the same par-'cause, as disclosed in the second declara




tion, were not heard and decided in the The assignees under the first bankruptfirst action,


did not attack the transfer to G., or

from G. to plaintiff. 4. That the declarations in the former and the present suit are substantially the The referee to whom the issues were same; that the averment in the replica- referred found that the sale from L. to tion to the plea in bar to the contrary was plaintiff was good and valid, and not in an averment of a legal conclusion, and fraud, &c. was not admitted by the defendant's demurrer thereto.

Geo. R. Collins, for respt.

Sedgwick, Kennedy & Tracy, for applt. Judgment affirmed. Opinion by Clifford, J.

Held, That although a referee's conclusions of fact are necessarily conclusive, they may be reviewed by this court, and no exception to such finding is necessary.

That there is no reason in this case to reCONVERSION. BANKRUPTCY.

ject the referee's conclusions of fact that MARRIED WOMEN.

the assignees under the present bankruptcannot attack fraudulent



fer under the former bankruptcy. FOURTH DEPT.

That a married woman may make purCrawford respt v. Everson, et al, appts.

chases of property formerly belonging to Decided January, 1876.

her husband, and she may make it through

the intervention of her husband as her The facts found by a referee may be re

viewed by the Appellate Court. agent, &c., and she may conduct business A married woman may deal through her | by reason of the agency of her husband husband as her agent.

and without personally participating in Notice under $5056 Bankrupt Act. its management. This was an action for conversion. The

That the sale to L. was in no way frauddefendants are the assignees in Bankrupt

ulent. cy of one C., and plaintiff is CI's wife. The defendants insist that the property That a referee cannot be required to alleged to be converted was the property of find a particular fact unless it is proven the bankrupt C. It seems that in 1866, by uncontradicted testimony. C. being in failing circumstances sold, or pretended to sell, to one G. certain person That the defendants precluded themal property. and shortly after went into selves from objecting that a previous nobankruptcy.

G. then transferred this tice of 20 days, as required by the Bankproperty to plaintiff, and in 1868 C. got rupt Act (1 R. S. U.S. SS 982 and 5,056), his discharge in bankruptcy, went into was not given to them by retaining the business, and in November, 1871, he went property instead of tendering amends, and into bankruptcy again; prior to this he they also waived it by going to trial upon transferred all his property to one L. Both the merits. these transfers were for value. L. subsequently transferred to plaintiff. After the

Judgment affirmed. transfer to L. the property remained in Opinion by Gilbert, J. C's possession.

NEW YORK WEEKLY DIGEST, . uary and until May at the rate of $1,200,

which was received under protest. VOL 2.] MONDAY APRIL 3, 1876.

[No. 8.

Plaintiff read in evidence a resolution DISTRICT JUSTICES.

by the Common Council, authorizing the

justices of the District Court to appoint a N. Y. SUPREME COURT, GENERAL TERM. janitor and fixing the salary at $1,500 per FIRST DEPARTMENT.

annum, payable monthly. Also plainJames McCullough, respt., v. The May- tiff's appointment by letter by one of the or, Aldermen, &c., of New York, applt. justices of the District Couit. Decided March 6, 1876.

Defendant put in evidence a resolution

of the Court of Apportionment reducing The Justices of the District Courts, the salaries of janitors of the Civil District under the resolution of the Common

Courts to $1,200 per annum, pass d Dec. Council, approved Mar. 16, 1870, are authorized and empowered to ap- 13, 1873, to take effect Jan. 1st, 1874.

point janitors for the District Courts. Defendant then moved to dismiss the The provision of the charter, Chapter complaint, on the ground:

335 laws, of 1873, sec. 97, with reference to the Board of Apportionment

1. That the justice had no right to apfiring the salaries of applies to pub- point the plaintiff janitor. lic officials, not to mere servants or

2. That the Common Council were not employees.

authorized to delegate the power of apAction to recover alleged balance due pointment to the justices. to plaintiff of $625 for labor as janitor of

3. That under the charter the Commisthe Second District Court, it being com- sioner of Public Works had sole and expensation fixed by the Common Council,

clusive power of employing janitors. at the rate of $1,500 a year, for the months from June to October inclusive in the

The judge directed a verdict for plaintiff for amount claimed_$655.55, and di

rected the exceptions to be heard in the Answer set up tha plaintiff was never

first instance at the General Term. employed by the Commissioner of Public Works, who had the sole and exclusive

Elliott Sanford, for respt. power to appoint janitors of the District W. C. Whitney, corp. counsel. Courts; and for a second defense that

Held, By Sec. 65, Chap. 334 laws of plaintiff's salary had been fixed by the 1857, it was enacted that the corporation Board of Estimate and Apportionment, of the City of New York shall furnish, at pursuant to the powers conferred upon the expense of the city, all necessary atthem by Chapter 335, laws of 1873, at tendance, fuel, lights, and furniture for $1,200 per annum, and that plaintiff was the District Courts. By resolution of the entitled to recover compensation at the Common Council, approved March 16, rate of $1,200 per annum, and no more. 1870, the Justices of the District

On the trial it appeared that plaintiff Courts were empowered to appoint a janiwas employed by the judge of the District tor at the annual salary of $1500 a year Court; that his work was to keep the payable monthly. That the point that the rooms clean, make fires and go on errands Common Council could not delegate the for the justice, and take care of the prop- power of appointment to the Justice of erty of the Court. That plaintiff had the District Court, is not well taken. The been paid for his services to June 1st, janitor, being but a mere employee or ser1875, at the rate of $1,500 a year, for Jan-'vant and not a public officer, the duty im.

year 1875.

posed by the Legislature on the corpora relations, rather than that she claims tion in respect to his employment was ex

control or possession. ecutive and ministerial, and could we

This action was brought to recover think he exercised as well through the au- damages for breaking and entering a thority given to the civil justice as by a dwelling-house in which plaintiff, his wife, direct employment by the Common Coun- and family resided, and for trespasses alcil itself.

leged to have been committed by defendThe objection that, under the charter, ants while in the house. It appeared in the Commissioner of Public Works had evidence that the house was upon a farm the sole, exclusive power of employing of which plaintiff's wife owned 'the fee janitors, is disposed of by the case of Ber- simple, that plaintiff built the house, and gen vs. the Mayor. 12 N. Y. S. C. R., had lived there with his wife and children 243.

for six years. He testified without objecAs the plaintiff was in no sense a pub- tion that during that time he had been in lic officer but a mere servant or employe, possession of the house and had control the provision of the charter, Chap. 335 of of it. It further appeared that he had 1873, Sec. 97, with reference to the Board operated the farm in his own name, owned of Apportionment fixing the salaries does the stock upon it, cultivated and provided not apply. That provision applies and for his family. The judge instructed the was intended to apply, to the public offi- jury that plaintiff was not entitled to cials of the city coming within its descrip- maintain an action against the defendants tion, and does not extend to mere em- for breaking and entering the house, but ployees or servants, (47 How., 491.) The permitted the case to go to the jury for Common Council could of course dis- the other damages proved. charge him altogether, and abolish the

H. G. Hotchkiss for respt. place or confer its duties upon any other servant or employee. Plaintiff is entitled

0. W. Chapman for applt. to the compensation fixed by the resolu

Held, error: That from the facts proved tion.

the jury might have inferred that plainMotion for new trial denied, and judg- tiff's wife had put him in possession of ment ordered for the plaintiff upon the the farm, and consented to his building verdict.

upon, occupying and controlling it, in his Opinion by Davis, P. J.; Brady and own name and on his own account, for Daniels, J. J., concurring.

the support of himself and his family;

that this would be a sufficient possession

to entitle him to maintain an action TRESPASS.

against a trespasser for breaking and

entering the house. N. Y. COURT OF APPEALS.

Also Held, That it was more reasonaAlexander, respt. v. Hard, et al., applts. ble, under the facts proved, to attribute Decided February 22, 1876.

the presence of the plaintiff's wife in the A husband who, with his wife, resides in house to a compliance with her marital

a house built by him, upon his wife's obligations than to an intention to retain land, the house and land being under possession of the property. his control, may maintain trespass for Order of General Term, granting a new breaking and entering the house.

trial, affirmed. Under such circumstances, the presump

tion is rather that the wife is residing Opinion by Rapallo, J. in the house by reason of her marital

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