N. Y., 581; 6 N. Y. State Rep., 477, as an authority sustaining the proposition claimed. The association, the plaintiff in the case cited, was incorporated "to provide and maintain a place of refuge for colored orphans where they shall be boarded and suitably educated, and it was held that its building came within the fair meaning of an almshouse, which had been defined to be a house appropriated for the poor, because the building was appropriated wholly for the poor, who were colored orphans, and where they were to have a place of refuge, and to be boarded, clothed and suitably educated, etc., gratuitously. The court in its opinion. further say: "The plaintiff is performing a work of pure charity, and is taking upon its shoulders a portion of the burden that would otherwise fall upon the public.'

"

The principle upon which this exemption from taxation is based seems to be because such an association in performing the duty for which it was incorporated takes a portion of a public burden upon its own shoulders. In the case at bar the association not only does not support its inmates gratuitously, but almost invariably demands the payment of a substantial entrance fee from each applicant for admission, and a transfer of all property then owned or subsequently acquired by such applicant, and express provision is made for the reception of boarders who shall give satisfactory security for the regular payment of their board.

It is true that persons nominated by patrons of the society are admitted free, but to become a patron requires the payment of at least $1,000 to the association, and only one person can be kept by a patron in the home at one time; thus the equivalent of an entrance fee and probably more has been received by the society.

It is also true that in some instances the payment of an entrance fee has been waived, but it would seem from the guarded way in which the statement is made, that the cases are not numerous.

The good offices, therefore, of the appellant society are not rendered wholly gratuitously; payments must be made as a rule to enjoy its benefits, and hence it does not come under the definition of an almshouse. Our attention is also called to the case of The People ex rel. The Seminary of our Lady of Angels v. Barber, 42 Hun, 27; 3 N. Y. State Rep., 367; affirmed 106 N. Y., 669; 11 N. Y. State Rep., 880, as sustaining the view that the receipt of fees or compensation from inmates does not exclude from the benefit of the statute. In that case it was held that a farm attached to a seminary of learning, all of whose products were used upon the premises to supply those engaged as teachers, students and servants, was exempt from taxation. This exemption arose from the statute exempting from taxation every building erected for the use of a college, incorporated academy or other seminary of learning, and the several lots whereon such buildings so used are situated, etc.

It will be noted that exemption does not depend upon the institution being open to the poor. The only condition being that its buildings shall be used for the purposes named in the statute. Fees may be charged sufficient to pay its expenses, without forfeiting its claim to exemption, the theory being that such exemp

tion is in furtherance of the policy of this state to encourage, foster and protect corporate institutions of a religious and literary character, because of the beneficial influence by them exerted, and because they are necessary to the advancement of civilization. and to the promotion of the welfare of society.

In the case at bar, however, the right to exemption rests upon a different basis, viz., that the association entitled to exemption is performing a work of charity and is taking upon its own shoulders a portion of the burden that would otherwise fall upon the public.

We have also examined the opinion in the case of St. Vincent's Hospital v. The Mayor, etc., and without expressing any opinion as to the correctness of that decision it is sufficient to say that the facts differ radically from the case at bar, in that no one was refused admission because of unwillingness or inability to pay, whereas in the present case the rule was, pay or be excluded. It is true there are exceptions to the rule, but the exception does not abolish the rule.

Upon the whole case we think that the appellant affords a refuge for those who can pay and not for those who cannot, and therefore does not maintain an almshouse, which is defined to be a house appropriated for the poor.

The order appealed from should be affirmed, with costs.
BARTLETT, J., concurs.

FRANK C. HOLLINS et al., App'lts, v. THE ST. LOUIS & CHICAGO RAILWAY CO., Resp't.

(Supreme Court, General Term, First Department, Filed June 6, 1890.) ATTORNEYS-DISCLOSURE OF AUTHORITY.

Where it appears from affidavits that the attorney appearing for the defendant may not have been invested with lawful authority to represent it in the action, the court has the power to solve the doubt by directing the attorney to exhibit, or in some other authentic manner disclose, the evidence of his authority.

APPEAL from an order denying a motion for an order directing the attorney appearing for the defendant to disclose his authority. Fred. W. Hinrichs, for app'lts; W. M. Safford, for resp't.

DANIELS, J.-The affidavits read in support of the motion are sufficient to prove that the attorney appearing for the defendant may not have been invested with lawful authority to represent it in the action. And where that may be the fact, the control which the court has over the attorney, whose officer he is, will authorize it to solve the doubt, by directing him to exhibit, or in some other authentic manner disclose, the evidence of his authority. This is no more than just to the party whose action he may contest, for he should not be subjected to either interference or expense by the intervention in the litigation of an attorney without power to represent the party in whose nominal behalf he assumes to act.

The observance and enforcement of this rule on the part of the court will in a very great degree remove all cause for the con

spicuous inconsistency which has found its way into the courts, from the want of authority on the part of the attorney. As the law has been declared, and now exists, an attorney may appear in the courts of this state for a party without even a semblance of authority for doing so, and subject him to a judgment whose enforcement he will be powerless to resist. Hamilton v. Wright, 37 N. Y., 502; Brown v. Nichols, 42 id., 26. While if that is done in another state, and the judgment is afterwards brought here for suit and enforcement, the fact that it has been recovered upon an appearance by an attorney without authority to represent the party for whom he appears, will be permitted to avoid the judgment for want of jurisdiction over the person against whom it has been recovered. Kerr v. Kerr, 41 N. Y., 272. There is no principle supporting this distinction. But the absence of authority to appear should be attended with the same result in each case. It is little less than absurd to hold a judgment recovered in this state, on the appearance of an attorney, to be conclusive, and a judgment recovered in the same manner in another state to be void for want of jurisdiction over the person. And a liberal exercise of the authority requiring the attorney to present proof of his power to represent a party, to his adversary, will have a beneficial effect in the way of correcting and removing this injustice. It was applied in a salutary manner in Nordlinger v. De Mier, 27 N. Y. State Rep., 16; 7 N. Y. Supp., 463. And the probability proceeding from the affidavits produced will justify the application of the principle in this case. The order should be reversed with ten dollars costs and the disbursements, and an order made. requiring the attorney appearing for the defendant to furnish, within ten days after notice of this decision, proof of his authority to appear as attorney for the defendant in this action, or in default thereof that his notice of appearance and any other paper served by him be stricken from the record.

VAN BRUNT, P. J., and BRADY J., concur.

MARGARET RUPPEL, Resp't, v. MICHAEL DONOHUE, App'lt.

(City Court of New York, General Term, Filed May 23, 1890.) STATUTE OF FRAUDS-SALE OF GOODS TO APPLY ON ANOTHER'S DEBT.

In an action for fats sold and delivered to defendant, the answer alleged that plaintiff's husband being indebted to defendant, plaintiff agreed that if defendant would forbear bringing action against him she would pay the debt by delivering fats and that those sued for were delivered under the agreement. The reply denied the agreement and set up the Statute of Frauds. Held, that a delivery under such agreement was a mode of paying his debt which, if assented to, was open to no objection, and that the court erred in excluding evidence to prove such agreement and in refusing to submit the question to the jury.

APPEAL from judgment directed in favor of plaintiff.

Between the 8th day of September, 1888, and April 22d, 1889, the plaintiff, who was the owner of a butcher shop at No. 590 Tenth avenue, New York, sold and delivered to the defendant certain fats.

Prior to the 8th day of September, 1888, the butcher shop of

the plaintiff was owned and conducted by her husband, George Ruppel, from whom plaintiff purchased it.

Immediately after purchasing the place the plaintiff told the collector of the defendant that she had bought the place and a book was made out in her name.

Previous to that time, all fats delivered by George Ruppel to defendant had been entered in a book made out in his name.

On the 15th day of July, 1889, plaintiff called at defendant's place of business to have her book balanced and to receive payment for fats delivered by her, but instead of paying her, defendant handed back to her her book marked: "Paid per beef bill," together with a bill against George Ruppel, on which was a credit of $93.32.

Defendant alleges in his answer that George Ruppel, the husband, was indebted to him in the sum of $166.10; that the plaintiff promised and agreed to and with defendant, that if he would forbear bringing any action against said Ruppel, upon his indebtedness, she would pay it by delivering to defendant fats from time to time, and that in pursuance of that agreement she delivered the fats in question.

Plaintiff served a reply, denying the making of any such agreement, and pleading the statute of frauds upon the theory that the agreement asserted by the defendant was in the nature of a promise to answer for the debt of another.

The trial judge refused to send the case to the jury to determine whether the fats were delivered under an agreement of sale, or under an agreement by which the fats were delivered in part satisfaction of the husband's debt, and directed a verdict for the plaintiff, from which the defendant appeals.

Guggenheimer & Untermeyer, for app'lt; D. Frank Lloyd, for

resp't.

PER CURIAM.-We think the question should have gone to the jury to determine whether the fat delivered to the defendant was sold to him in the ordinary way, or whether it was delivered in performance of an agreement that it was to go in payment of the debt owing by the husband to the defendant. It was a mode of paying his debt which, if assented to (and the proof shows it was), is open to no legal objection.

For this reason and for error in excluding evidence tending to prove this agreement, the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the

event.

MCADAM, Ch. J., and FITZSIMONS, J., concur.

JOHN J. LYONS, Resp't, v. THE BROADWAY & SEVENTH AVENUE R. R. Co., App'lt.

(City Court of New York, General Term, Filed May 28, 1890.)

MASTER AND SERVANT-LIABILITY OF STREET RAILROADS FOR ACTS OF

DRIVER.

A street railroad company is liable for the act of its driver in throwing

CityCt. N.Y.] LYONS v. B'WAY & SEVENTH AVE. R. R. Co. 233 a passenger from the platform, even though the act is willfully done. The driver being in charge of the front platform and having power to expel improper persons therefrom, the company is liable for his mistakes committed in the exercise of this authority.

APPEAL from judgment entered on verdict of jury in favor of plaintiff.

Root & Clarke, for app'lt; John Klein, for resp't.

PER CURIAM.-The case was fairly tried, and the exceptions taken to the admission of evidence seem to be without force. The complaint, as amended, claims damages for loss of service arising from inability to work, and charges that the injuries were of a permanent character, so that the testimony upon these subjects was within the issue. The only exception to the charge is that part wherein the court said: "The company is liable for the willful acts of its servants while performing duties which it owes to its passengers." The plaintiff was riding upon the front platform of the car. Neither the conductor nor driver objected to his presence there. He gave the conductor a twenty-five cent piece in payment of the fares of the plaintiff and a friend who was with him. The conductor handed him fifteen cents in change.

The plaintiff found fault with the ten cent piece he received, and the conductor gave him another instead. The driver took offense at the passenger ringing the conductor up, and threw the plaintiff off the car. We think the defendant is liable for the consequences of this act. The driver was in charge of the front platform of the car, had the power to keep any improper person from it, and had the right to put any disorderly person off it. He was not bound to ask the conductor to do this or consult him about doing it. If he put the wrong person off, it was a mistake for which the master was liable. Having the power as servant of the corporation to expel improper persons from the platform, and the master being liable for his mistakes committed in the exercise of this authority, the defendant is answerable, though the act was willfully done. The North Chicago R. Co. v. Gastka, 21 No. Ea. Rep., 522; Mott v. Consumers' Ice City., 73 N. Y., 543; Dwinelle v. NY. C. & H. R. R. R. Co., 30 N. Y. State Rep., 579, 582.

The trial judge was careful not to hold that the master was liable for acts outside of the servant's duty and his master's business, or for things done maliciously for the servant's own purposes, for he confined the liability to willful acts of the servant "while performing duties which the corporation owed to its passengers. One of these duties, we apprehend, was to protect rather than endanger the lives and limbs of passengers. In Stewart v. Brooklyn R. R. Co., 90 N. Y., 588, the court of appeals declared that a carrier undertakes to protect the passengers against any injury arising from the negligence or willful misconduct of its servants while engaged in performing a duty which the carrier owes to the passenger, and held that the rule relieving a master from liability for a malicious injury inflicted by his servant does not apply as between a common carrier of passengers and a passenger. N. Y. STATE REP., VOL. XXXII. 30