« ForrigeFortsett »
pality on this assessment, in the pro- insurance, to establish and maintain portion which the length of the road uniformity among its members in polwithin such municipality, bears to the ices oi contracts of insurance, and acwhole length of the road within the quire, preserve, and disseminate valuastate.
ble information relative to the business 10. The action of the board of equal- in which they are engaged.” It was ization in increasing the assessed value empowered “to make all needful byof the property of a railroad company laws not contrary to the provisions of the or an individual, above the return made act, or to the Constitution and laws of to the board, does not require a notice this state or the United States.” Among to the party to make it valid, and the other by laws one was adopted providcourts cannot substitute their judgment ing that the board might establish and as to such valuation for that of the alter the rates of premiums for insurboard.
ance by a majority vote. 11. The Supreme Court of the State The Relief Fire Insurance Company, of Illinois having decided that the law of which Jas. II. Pinkney is the presicomplained of in these cases is valid un- dent, subscribed to the charter and byder her constitution, and having con- laws, and agreed to be governed and to strued the statute, this court adopts the maintain the rates, rules, &c., of the decision of that court as a rule to be board, but, afterwards violated the rules followed in the federal courts.
by insuring two steamers below the Decree reversed and case remanded board-rates For this, after a proper to the Circuit Court, with directions to investigation, it was expelled the board. dissolve the injunction and to dismiss The board owned no property other the bill.
than what was necessary for carrying Opinion by Miller, J.
out the purposes of its incorporation, NEW YORK BOARD OF UNDER
the necessary funds being raised by as
sessment upon its members. It issued WRITERS. MANDAMUS.
no stock and declared no dividends. N. Y. SUPREME COURT-GEN'L TERM.,
The members, individually, owned FIRST DEPT.
no part or interest in the property acPeople ex rel., James II. Pinckney quired and had no participation in the and The Relief Fire Insurance Com- earnings. pany, applts. v. New York Board of
The relator sought to compel the Fire Underwriters., respts.
board to receive it back by a writ of Decided May 5, 1876.
mandamus, but its application was deMembers of a corporation having no nied by the court below.
proprietary interest in its capital, On appeal.
Wm. A. Butler, for respts. Appeal from an order denying mo Held, That the board was not a cortion for writ of mandamus.
poration whose members could resist The New York Board of Under- expulsion on the ground of a propriewriters was incorporated by chap. 816 tary interest in its capital or earnings, laws of 1867, "for inculcating just and no such interest belonging to any of equitable principles in the business of them.
It was organized mcrely to promote This action was brought to recover the proper management of insurance damages for the conversion of a certifibusiness by its members, and in a uni- cate of deposit for $4,000. Plaintiff form manner.
had been the defendant's clerk, with Its usefulness depended largely on power of attorney to draw checks for their faithful observance of its regula- him. Plaintiff drew a check on de tions, and it necessarily possessed the fendant's bank account for $4,000, power to expel members who violated which included a debt due him from their obligations in that respect; for, defendant of $3,000, borrowed money, if they might violate its rules and still for which he held defendant's note, maintain their membership, its useful- and the balance was for salary due and ness would be defeated—its very exist- unpaid and included a month's salary in ence destroyed.
advance. Plaintiff deposited the $4,000 There is a tacit condition annexed to to his own account, and received a the franchise of a member that he will certificate of deposit for it. This cernot oppose or injure the interests of the tificate was in plaintiff's possession corporate body, which, if he breaks, he when, as the court below found, demay be disfranchised.
fendant by force and violence took it The leading purpose of defendant from him, plaintiff having previously was to secure uniformity in all substan- endorsed the $3,000 note as paid, and tial respects in the policies of its mem- passed it over the desk to defendant, bers. The rates of premiums being an who said he did not want it, and laid important feature both of the business it upon the desk. Plaintiff said, “Pass and the policy, uniformity could only it back to me and I will retain it with be gained by declaring its rates. the rest of my vouchers.” This de
The by-laws enacted to secure this fendant did not do, but he did not reend were reasonable, were necessary to fuse to allow plaintiff to take it, or the welfare of the board, contained no claim any right to retain it. The note thing in conflict with its charter or the remained on the desk several days, and Constitution of the State, or United was then put in the safe by defendant's States.
clerk. Defendant had just before the Relator having violated these by-laws above transaction denounced the plaincould properly be expelled.
tiff's act in drawing the money, as havOrder appealed from affirmed. ing done it without right, and demand
Opinion by Daniels, J.; Davis, P. ed that he should return it. J., and Brady, J., concurring.
Asher P. Nichols for respt.
Wm. II. Gurney and John T. HoffTROVER
man for respt. N. Y. COURT OF APPEALS.
Held, That the action for conversion Voltz, respt., v. Blackmar, applt.
could not be maintained ; that plaintiff Decided March 21, 1876.
having drawn the check without an
thority, the money received on it beTrover does not lie to recover chattels from the owner who has violently longed to his principal, as did also the and forcibly retaken them from the certificate of deposit which represented plaintiff, although the latter, held it
, and the rights of the parties were them uuiler a claim of ownership. not changed by the deposit of it to
plaintiff's credit; that the taking of the ment,” the rate on which was 2 1-2 per certificate by force from plaintiff did cent., that upon the dwelling adjoining not give him any right of action against being 1 1-2 per cent. In April, 1871,
, defendant to recover the money speci- F. removed from the dwelling he had fied in it; that the retention of the been occupying to the two and a half $3,000 note by defendant, under the cir- story building adjoining. F. wrote to D., cumstances proved, cannot be regarded “I would like you to make out a policy as a ratification or consent by him that of $800 on my house,” &c. D. issued plaintiff should retain sufficient of the a policy, describing the property as money drawn from the bank to pay it, his two story frame dwelling, situate, and no inference could be drawn that|&c., and charged 1 1-2 per cent. predefendant intended to ratify the draw-mium. The premises occupied by F. ing of the check, or that he accepted were destroyed by fire, and this and retained the note as paid.
action was brought by plaintiffs, to Judgment of General Term, affirm- whom the loss was made payable. D. ing judgment for plaintiff, reversed, testified, on his direct examination, and new trial granted.
that he supposed F.'s letter referred to Opinion by Andrews, J.
property that had since been burned,
and which was described in his book; REFORMATION OF CONTRACT. but upon his cross-examination, being NEW YORK COURT OF APPEALS.
asked whether when the policy was Meade, et al., applts., v. Westchester issued he supposed the applicant reFire Insurance Company.
ferred to the building he forinerly ocDecided March 21, 1876.
cupied, he answered, “I was in doubt.” To justify the reformation of an in- The simple question was, if it was on
strument, except in case of" fraud, it the building in which he lived it was must be established beyond doubt, by 2 1-2 per cent., and if on the one he the-proof, that the parties agreed to formerly occupied, 1 1-2 per cent. He something different from what is ex- was then asked, “You issued it for pressed.
1 1-2-which was it on ?" and answered, This action was brought to reform a “ My idea was, it was on the one forpolicy of insurance, issued July 1, merly occupied.” 1871, to one F., by D., an agent of de
C. F. Brown for applts. fendant. It appeared that prior to
Calvin Frost for respt. April, 1871, F. had occupied a dwelling house, and D. had insured the furniture
Held, That the policy could not be in it. F. owned the adjoining build-reformed ; that there was not suffiing, and D. had insured that. He had cient proof that the minds of the para description of both buildings on his ties had met. books. The dwelling house was de To justify a court in changing the scribed as a “two-story framed dwell. I language of an instrument sought to ing house, situate,” &c., and the adjoin- be reformed, except in case of fraud, it ing building as a “two and a half story must be established that both parties frame building and the addition at- agreed to something different from what tached, occupied as a dwelling and is expressed in the writing, and the paint shop, with stable in the base proof on this point should be so clear
and convincing that there can be no commenced in 1861, by Mr. Wheeler as room for doubt.
the plaintiff's attorney, and judgment Order of General Term, reversing was entered against the defendant in judgment for plaintift, on report of March 1862, for $1,377.24, which referee, affirmed.
amount included the sum of $117.51 Opinion by Rapallo, J.
costs and extra aliowance. In July,
1862, the plaintiff assigned the judgATTORNEY'S LIEN FOR COSTS. ment to John C. Barnes. In October, LIMITATIONS.
1862, Mr. Wheeler inforined the asN. Y. SUPREME Court-GEN’L TERM. signee, by letter, that lie, Wheeler, SECOND DEPARTMENT.
should decline doing anything more in Charles O. Richardson, respt., v. The the suit until he was paid, and stating B. & N. Railroad Company, cpplt.
that he should allow the defendant to Decided February Term, 1876.
proceed and take a new trial and dismis
sal of the action. Prior to the 9th of The court will extend its aid to an
attorney, to prevent his being de- December, 1862, the judgment was frauded by any collusive action be further assigned to William Cutter. *tween the parties to a suit out of his On the 10th of December, 1862, on a compensation, but he is called upon motion in behalf of Cutter, the asto seek the aid of the court with dili- signce, the special term ordered a refergence; and an unreasonable delay aud laches on his part will be as fa erence to George G. Reynolds, Esq., to tal to his claim as it would be to the ascertain and report to the court the claim of any other suitor.
taxable costs due to Mr. Wheeler, and Proceedings by an attorney to enforce that on the payment of such costs by
his claim do not constitute an action Cutter, Mr. Hitchcock be substituted as within the literal operation of the statute of limitations, but in enforc- the attorney for the plaintiff, and that ing it the court will be be governed Wheeler deliver to said Hitchcock the by the analogy of the statute.
papers in the action. On the 26th day Appeal from an order granting a motion of January, 1863, this order was on the part of C. B. Wheeler, formerly amended by requiring the referee to replaintiff's attorney, to establish a lien port separately the lien or right of upon the judgments in this action, and said Wheeler, if he has any beyond the directing the record of satisfaction of taxable costs referred to, as against the the judgments to be vacated, and giv- assignee of the judgment, without preing the said Wheeler leave to issue an judice to the further lien of said Wheelexecution for $179.30.
er, if he has any. In March, 1863, on This appeal is from an order made at motion of Mr. IIitchcock, as attorney a special term, on the 17th of May, for Cutter, the order was again amend1875, vacating a satisfaction-piece of the ed by striking out the words requiring judgment in this action, and authoriz- the referee to report the amount of ing Clark B. Wheeler, Esq., formerly Wheeler's lien, it any, beyond the taxthe attorney for the plaintiff, to issue able costs. Mr. Wheeler appealed from an execution upon the said judgment the order, as thus modified, to the genagainst the defendant for the sum eral term, and the order was affirmed $179.30, with interest. The action was in May, 1863. The referee, Reynolds,
reported as remaining unpaid to Mr. but without reporting any amount due Wheeler the sum of fifty-three dollars to Mr. Wheeler, or the nature and exand fifty-nine cents. Mr. Wheeler filed tent of his lien. exceptions to this report, which excep The order appealed from, made at tions where overruled and the report special term, May 7, 1875, orders that confirmed. From the order overruling Mr. Wheeler have leave to enforce his the exceptions and confirming the re- lien for $419.70, with certain costs and port Mr. Wheeler appealed ; but the expenses, amounting in all to $179.30, papers do not show that any disposi- and vacating and setting aside the sattion has ever been made of the appeal. isfaction of the judgment, and giving The next movement on the part of Mr. Wheeler the power to issue execution Wheeler, so far as the papers disclose, on the judgment against the defendant is an application to the special term in for $179.30, with interest from the Kings county, for an order, which was date of the order. granted on the 4th day of October, Dudley Field, for the applt. 1869, whereby it was referred to John S. D. Lewis, for Wheeler. P. Rolfe, Esq., to take proof of the na Nel, There appears to have been ture, extent and value of Mr. Wheel- the most extraordinary delay and lacher's professional services, the nature es on the part of Mr. Wheeler in prosand extent of his lien upon the judg- ecuting this claim for compensation in ment for such services and for the ex- excess of the taxable costs, in this case. penses and disbursements incurred by If the question of Mr. Wheeler's comhim, and what he has become liable to pensation beyond the taxable costs was pay to associate counsel, employed by embraced in the order of reference to him at the request of the plaintiff, to Mr. Reynolds, it is still pending, so far the end that, upon the coming in and as the papers show, on the appeal from filing of said report, the defendants the order contirming the report of Mr. shall pay the amount reported due, Reynolds. If it was not embraced in with costs of the motion and the ex- that reference then it was intended to pense of the reference, and the order be embraced in the reference to Mr. expressly reserved the question whether Rolfe of the 4th day of October, 1869, Wheeler had any lien at all. It does more than six years after the last modinot appear that any further proceedings fication of the order of reference to were had until January 1875, when an Reynolds; and the order of reference to order was made by the special Term, Rolfe was suffered to remain unexecuton a motion in behalf of Mr. Wheeler, ed, and without any movement, on the that Mr. Greenwold be substituted as part of Mr. Wheeler, to cause the same the referee in place of Mr. Rolfe. It to be executed for nearly five years would seem, thongh the fact does not more. The court will extend its aid to very distinctly appear, that Mr. Wheel- an attorney to prevent his being deer at some time received the amount frauded by any collusive action bereported by Mr. Reynolds.
tween the parties out of his reasonable On the 30 of April, 1875, Mr. Green- compensation, but he is called upon to wood reported to the court that he had invoke the aid of the court with due taken proof, etc., as directed by the or- diligence, and great and unreasonable der of reference, and reports the same, I delay and laches on his part in assert