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York City & N. R. Co, Opinion by Peclcbam, J.


AND BANKING.— Laws of Ncw York of 1866, chap-
ter 761, subjects the real estate of banks to ordi-
nary taxation, and provides for the assessment of the
stock after deducting the assessed value of the real es-
tate. Laws of 1859, chapter 802, provides that any one
aggrieved by an assessment may before the 1st day of
May make application to have the same corrected, and
the commissioners, if they judge the assessment errone-
ous, may correct it. The same act authorizes the com-
missioners at any time before the 2d of April to In-
crease any assessed valuation, but not without giving
notice to the party affected by the increase twenty
days before the closing of the books, which were
closed on the 1st day of May. HeZd, that where the
assessed valuation of the real estate of a bank has
been reduced upon application made April 80, the com-
missioners may increase proportionately the assess-
ment on the stock, though the required notice of such
increase is then impossible. If we look at the literal
language of the statute of 1866 (fmpra)y and the literal
language of section 10 of the act of 1859 (supra), it is
impossible not to see that the defendants have kept
within the terms of each, and we think they were jus-
tified in correcting the record as to the shares by mak-
ing it conform to the result required by these statutes.
They did not in fact increase the assessed value of the
shares, but simply withdrew from the shareholder the
benefit of a credit to which he became disentitled,
and which was in fact erroneous In consequence of the
reduction involuntarily made In the valuation of the
banking-house. There seems to be an essential differ-
ence between an Increase of assessed valuation of an
Item of property standing by itself, and an item of
property which for the purpose of valuation cannot be
separated from other property, and upon the true
value of which the assessed value of the item must
depend. In the latter case the change is rather for-
mal than substantial, and as applied to the case before
us is like an error in arithmetic— clerical, and not sub-
stantial. The tax Is not increased, but is differently
distributed, yet practically coming from the same
fund ; for whether paid directly by the bank out of
the dividends, as under section 6 of the Laws of 1866
{supra) it might have been, or by tbe stockholder di-
rectly, as in fact it was, would make no difference. In
either case It would cofte out of his funds or credits,
and the aggregate, whether Imposed on real estate or
on the shares, would be the same, and In no respect
exceed his just proportion of the general tax. But
however that maybe, It Is apparent that the defend-
ants, as commissioners, had Jurisdiction over the per-
son of tbe shareholder and over the subject of the tax.
In dealing with the question brought before them,
they exercised a judicial function, and If in error, no
action lies against them unless that error was perpe-

trated maliciously. The judgment appealed from
should therefore l>e reversed, and a new trial granted,
with costs to abide the event. Oct. 2, 1888. Apgcar v.
Haytoard. Opinion by Danforth, J. Peck^m, J.,


The State of New York by letters-patent in 1858 gare
to plaintiffs predecessor In title authority to ereei
docks on certain land under water, to promote tbs
commerce of the State, ** and for no other purpose,*'
with privilege of charging dockage therefor, to l>e rego-
lated by the Legislature, reserving to the public the
right to use the land until actually appropriated for
such docks ; and provided that unless the same be so
constructed within five years the grant was to l>e void.
After the dock was constructed a street was opened
leading to it, and to high- water mark on each side.
JEZeld, that pUln tiff could not by injunction prohibit
the use of the dock for commercial purposes, it being
free to the public therefor upon payment of the pre-
scribed dockage. The consideration of the grant is
the erection of a dock, not for private use aooordlng
to the views or interest of the g^^ntee as au indlTidoal,
but such dock as "shall be necessary to promote tbe
commerce of the State,*' and upon a compensation
** from persons using it,** not fixed at the whim or by
the caprice or pleasure of the grantee, but by the Leg-
islature. As the object of the act is pabllc and co-
extensive with the State, it must follow that all may
use the thing granted who are engaged in promoting
that object; and as the use of the thing alone raises
the right of compensation, it cannot be made to de-
pend upon the selection by the grantee either of the
time of using or of the persons who shall use the dock
or wharf. These things are as independent of his con-
trol as are the winds and tides, upon whose favorable
condition an easy access to the dock may at times de-
pend. The plaintiff puts his right to maintain the
dock upon the letters quoted, and that right seems to
us inconsistent with an individual control, which if
now tolerated would permit him to substitute his own
pleasure for the public interest, and devote a doek,
which came Into existence because ** necessary to pro-
mote the commerce of the State," to such domestie
business or other uses as his views of Individual Inter-
est or profit might suggest. The incongruity of snch
a conclusion with the purpose declared by the State
through Its commissioners Is scarcely lessened by the
assertion of the plaintiff ** that the dock in question
did subserve the Interests of commerce, though its use
was limited to the needs of the immediate neighbor-
hood.** The grant provides for the whole State, and
not the traffic of a single neighborhood. Got 2, 188&
Harper v. WiUiams, Opinion by Danforth, J.
Wills— PBOBATK and contest— pboof of exbcu-


The attestation clause of a will stated that the wit-
nesses had ** signed the within In the presence of esob
other and of the testator, who acknowledged it to be
his last will and testament.** The entire instnimeot
was in the handwriting of the testator. The recollec-
tion of the witnesses was Imperfect, and there was no
positive proof that the subscription of the testator
was made in their presence or acknowledged to them,
but each of them testified that the circumstances most
have been as stated In the attestation. Held sufficient
proof of publication. No particular form of words Is
required or necessary to effect publication. iJ*°* Tl
Lane, 96 N. Y. 4M. And recently In Re Beckett, 1»
N. y. 1C7, a case of a holographic will, so close and se-
vere a criticism of the terms and manner of publica-
tion was considered needless. We have here a testa-
mentary disposition of the estate, which the witnesses
recognized to be In the handwriting of deceased,
signed unquestionably by him; and an attestation

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clause, aUo ia the handwriting of deceased, signed by
them, which states it was signed bj them in the pres-
ence of each other, and of the testator, and that the
testator aclcnowledged the instrument to be his last
will and testament. The only supposed doubt as to
the matter is cast by the inability of the witnesses to
recollect precisely what took place in detail. We
think that it is a sufficient compliance with the statu-
tory requirements. If in some way or mode the testa-
tor indicates that the Instruments the witnesses are
requested to subscribe as such is intended and under-
stood by him to be his executed will. In probate oases
the courts should look to the substance of the transac-
tion, and see that there was no opportunity for im-
position 'or fraud. This will must have been pre-
sented to the witnesses by the testator for them to
signi it* and such an act was equivalent to a communi-
cation by him that he intended to give effect to the
paper as his will. If t he paper was signed in the pres-
ence of the witnesses, that act was a sufficient com-
pliance with the statute as to acknowledgment of the
subscription. If signed before being presented to
them, the exhibition of the paper, with his acknowl-
edgment that it was his last will and testament, was a
sufficient aclcnowledgment of the signature and publi-
cation of the will, within the rule laid down by this
court in Re Phillips. 96 K. T. 267. In the case of
Lewis ▼. Lewis, 11 N. T. 220, cited by the surrogate, it
appeared affirmatively by the witnesses that the paper
was so folded that they did not see any subscription,
and that testator only said that *' I declare the within
to be my free will and deed." Such affirmative proof
of what took place brought the case clearly within the
operation of the statute, and invalidated the execu-
tion. In that case however Allen, J., said: ''Mere
want of recollection on the part of the witnesses will
not invalidate the instrument, and in the cases cited
by counsel the courts establishing the wills propounded
have done so upon the ground that they were satisfied
from the circumstances proved that the wills were
duly executed, and that the witnesses had forgotten,
thus relieving the parties interested against the in-
firmities of humanity and the uncertainty of human
recollection." The attestation clause here is entirely
consistent with the execution of the paper by testator
in the presence of the witnesses, and nothing in the
circumstances of this case pointing to any fraud or un-
due influence, and none l>eing charged, we think the
presumption should prevail that all formalities have
been observed, and we therefore are disposed to sus-
tain rather than to reject this testament, for we feel
satisfied that it was duly executed and published. (2)
Section 2688 of the New York Code of Civil Proced-
ure, providing that on the reversal of a decree made
on an application for the probate of a will, or for the
revocation of the probate, if the reversal is upon a
question of fact, the appellate court shall direct a trial
by jury of the material questions of fact arising, does
not apply to a case where there is no confiict as to
the facts, the only question being as to the conclusion
to be drawn from these facts, although the judgment
of reversal states that it was made upon questions of
fact as well as of law. Oct. 2, 1888. WiU of HxmL
Opinion by Gray, J.


Highways — obsthuotion — bkids — pbovino* or
JURY. — Defendant, in order to unload several barrels
of sugar, weighing 800 pounds each, Into his store,
placed a skid across the sidewalk in front of the store,
and plaintiff, in attempting to pass over it, fell, and
was injured. There was an alley leading to the rear of
the store, but the unloading could not have been there
accomplished without great inconvenience, and de-

fendant followed the customary method of handling
such goods. Held, that the necessity required to
justify such use of the sidewalk need only be reason-
able, and not absolute, and that the question of rea-
sonable necessity was for the jury. Wis. Sup. Ct., Sept
18, 1888. Jochttn v. Robinson. Opinion by Cassoday, J.

TIONS— PliBADINGS IN ACTIONS.— All charges, allega-
tions and averments contained in regular pleadings ad-
dressed to and filed in a court of competent jurisdic-
tion, which are pertinent and material to the redress
or relief sought, whether legally sufficient to obtain it
or not, are absolutely privileged. However false and
malicious, they are not libellous. This privilege rests
on public policy, which allows all suitors (however
bold and wicked, however virtuous and timid) to se-
cure access to the tribunals of justice with whatever
complaint, true or false, real or fictitious, they choose
to present, provided only that it be such as the court
whose jurisdiction is invoked has power to entertain
and adjudicate. The alleged libellous matter in the
present case, being contained in a bill praying for an
injunction, was relevant and material; consequently,
absolutely privileged. The bill was sworn to by Wil-
son on the 21st of February, 1884. The alleged libel
consists in the imputation to Sullivan of the crimes of
perjury, and attempting to bribe or suborn witnesses
to commit perjury. The allegations of the bill upon
both these topics— though upon the former they are
much less specific than they should be— are all perti-
nent to the object for which the bill was filed. They
come up to any sound test which has ever been laid
down in England or America, so far as we know,
touching the privilege of pleading. They constitute
matter of absolute, unconditional privilege, according
to all authorities; because they are both relevant and
material to the object contemplated- by the bill. In
connection with the necessary details as to the matter
of 8ullivan*s testimony, the fact that he testified
falsely, and the fact that he attempted to suborn wit-
nesses to corroborate his false testimony would, in re-
ply to him, have been admissible evidence in the orig-
inal case— the one in which he testified ; and had they
been proved to the satisfaction of the jury which de-
termined that case, the verdict might have been the
reverse of what it was, and the judgment which the
bill sought to enjoin might never have been rendered.
And as to the injunction applied for by the bill, if
these facts were not material and relevant, the bill
contained nothing that was, for the whole stress of the
bill was upon them. They contributed the entire
basis upon which it rested. The case made was one
in which the complainant sought relief by injunction
against a judgment procured by the false and corrupt
testimony of the plaintiff in that judgment, because
of such perjury, and because of newly-discovered evi-
dence (to- wit, an attempt to suborn witnesses) tend-
ing to prove the perjury. Unless it can be said that a
whole bill is irrelevant to itself, these facts are rele-
vant; unless it can be said that a whol^ bill is imma-
terial to its own structure, these facts are material.
They are not only material, but the most material
which the bill contains. True, they are not legally
sufficient, especially as the bill does not set out in
what the false testimony consisted, nor show that the
judgment or verdict could not have l>een obtained
without it. Richardson v. Rol>erts, 25 Gkt. 671. But
that the bill lacked sufficiency either in substance or
fullness did not deprive it of privilege; the very ob-
ject of the privilege being to allow unstinted oppor-
tunity to take the opinion of the court upon questions
of sufficiency, as well as others arising in the cause.
It is not necessary that a bill shall be able to with-
stand a demurrer, general or special, in order that the
matter It contains, though false and malicious, shall
not be libellous. On the contrary, if brought In the

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proper court, it stauds olear of the law of libel, save as
to such of its matter as is irrelevaut or immaterial. A
wealc bill eujoys preoiselj the same immooitj as a
stroug one ; before the law of lil>el thej are equals.
Ou the general subjeot of privtlege, and partiouiarlj
ou the absolute protection of pleadings in judicial pro-
oeediugs, see Starkie Sland. 246 et aeq.; Townsh.
Slaud. & Lib. 881; Odger Sland. & Lib. 191. Our Code,
ill section 2980, enumerates various iustauces of con-
ditional privilege, but deals not at all with uncondi-
tional or absolute privilege. This is shown clearly by
the next section, which declares that ** in every case
of privileged communications, if the privilege is used
merely as a cloak for venting private malice, and not
bona fide in promotion of the object for which the
privilege. is granted, the party defamed has a right of
action." The characteristic feature of absolute, as dis-
tinguished from conditional, privilege, is that in the
former the question of malice is not open ; all inquiry
into good faith is closed. And in testing pleadings,
the marks of absolute privilege are relevancy and ma-
teriality. Where these are wanting there is no privi-
lege, or only conditional privilege at most. The Code
does not mention pleading as a class or instance of
privilege ; and, unless it had done so, we cannot sup-
pose that it meant to change the prior law concerning
It. The terms "every case,'' in the section we have
quoted, are to l>e construed, every case of conditional
privilege; that is, such privilege as the preceding sec-
tion deals with. Qeneralizing the law of the matter,
as we understand it, and applying the same to this
case, we hold as follows : All charges, all allegations
and averments contained in regnilar pleadings ad-
dressed to and filed in a court of competent jurisdic-
tion, which are pertinent and material to the redress
or relief sought, whether legally sufficient to obtain it
or not, are absolutely privileged. However false and
malicious, they are not libellous. This privilege rests
on public policy, which allows all suitors (however
bold and wicked, however virtuous and timid) to se-
cure access to the tribunals of justice with whatever
complaint, true or false, real or fictitious, they choose
to present, provided only that it be such as the court
whose jurisdiction is involved has power to entertain
and adjudicate. The alleged libellous matter in the
present case, being contained in a bill praying for an
injunction, was relevant and material, consequently
absolutely privileged. Ga. Sup. Ct., May 23, 1888.
WlUon V. Sidlivan. Opinion by Bleckley, C. J.


N the following petition, the County Court of
Chautauqua county, N. Y., orderedTthat the peti-
tioner might assume the name of George Vere Hobart :
The petition of George Vere Hobart Philpott respect-
fully represents unto this honorable court: That at
Port Hawkesbury, Cape Breton, Nova Scotia, on the
seventeenth day of January, in the year one thousand
eight hundred and sixty-five, your petitioner was
born and straightway, as soon thereafter as was con-
sonant with the age and strength of your petitioner, in
combination of the surname of his father and his fore-
fathers and certain family likes and traditions, with-
out the affirmative consent of your petitioner who oc-
cupied a purely negative position, except as your peti-
tioner is informed and is willing to believe, your peti-
tioner rebelled insomuch as was compatible with con-
comitant circumstances, by no right save parental
prerogative and the rite of the church, he had thrust
upon him the cumbersome and mirth-provoking name
by him, amidst the jeers and taunts of an unfeeling
kind, for near the fourth of a century, borne in seem-
ing fortitude and he hopes with rectitude, and by
which, now being of full age and a permanent resident
of this State and of the said county of Cliautauqua,

there being no suits pending nor outstand i ng com-
mercial paper, nor judgments against him, whsLtM>-
ever, he now petitions for such relief in the premlsaa
as is agreeable to equity and good oonsoieooe, and
within, following the just laws and statutes in soeh
case made and provided, the province of this hooor-
able court, and prays, upon and because of the groanda
and for the reasons herein and hereinafter, as by law
required, fully and at large set out, that he znaj' be
lawfully stripped of his surname, and as Geoiv:e Vere
Hobart, from then, thenceforth and forever be known,
because and for that the first syllable of the surname
of your petitioner, when pronounced as phonetioallj
spelled and then associated with the last syllable
thereof, suggests to that vast and humorously in-
clined and punning portion of the common publie
many and annoying calembours upon utensils more or
less intimately connected with the household and the
kitchen, of many metals and divers wares, which bj-
many quibbles, much play upon words, and oertain
presumed apt expressions, with exasperating laughter
and self-satisfied smiles, with never ending and ever
varying changes constantly rung apon degrees of
emptiness and f uUness, and pots and kettles of aD
manner of use and kind, from the humble yet sedoo-
tive jack-pot unto those of tinkling brass, *'' up and
down and aU around they liammer away like a nailer,''
with much synthetic reasoning and synonyms galore,
until both puns and punsters unto your petitioner are
moss grown and ivy covered in their antiquity. And
again, innocently, persons who never dreamed a pun.
nor would they know one if they saw it, having never
heard the name, right common too in England, are at
loss how to proceed therewith, contort the same by
speech and pen into all manner of shapes and forms
and combinations of sounds, vowels, consonants and
combinations of the alphabet, and the name the fore-
fathers of your petitioner bore in honor, resignation,
England and Nova Scotia where the good people are
more staid and less humorously inclined, straightway
is a byword in the land and in the mouth of the un-
refined, and is, in many renderings, lost in identity,
and your petitioner, by ignorant metamorphosis, is
Mr. Phillip Pott, Filpot, or worse than all. Full Pot,
in which pseudonyme those same humorously inclined
and merry friends with a keen sense of the ridiculous
find much themselves and admiring auditors to please,
and many suggestions of the symposium, and the
more vulgar ones, by tentative and that same syn-
thetic reasoning and apt association of ideas snd
things, are led to common-place expressions relative
the ** growler," whatever that same may be, and by
quick transition, unto the chasing thereof. Where-
fore, with DO disposition to lessen the sum of human
happiness, having passed thro' the stages of " menliog
infancy; of school boy days" now proudly treading
the busy stage of manhood ; having stood the ** taunts
and jeers of outrageous fortune ** through all those
years of puns and punishment for no wrong by him
committed ; desiring a name that in this cosmopoliti-
cal country will add dignity to rather than detract
from a promise to pay, through the conscience of this
honorable court he seeks an equalization of amuse-
ment and protection in the years to come as be glides
down or struggles up the pathway of life, as the fates
decree, toward a setting sun, feeling that this honor-
able court will presume, for the reasons aforesaid, and
believe with him that all the *" foul deeds " which mi^
by him have been committed, or by those who came
before htm, lived like him affilcted, and died without
an epitaph, for what will rhyme with pot, even unto
the third and fourth generation are outlawed or have
in the crucible of puns been *' burnt and purged
away," your petitioner entreats the granting of his re-
quest and your petitioner will ever pray.

Smith & Brown, attorneys for petitioner, 410 Fi^-
ette street, Jamestown, New Torlt.

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The Albany Law Journal.

ALBANTy November 17, 1888,


THE sixth of this month signalized the retirement
of a distinguished lawyer from practice, and
the return of another to practice or his retirement.
Also the lien that the lawyers of this country seem
to have on the presidency. Very possibly also the
great number of the profession who have been neg-
lecting their professional business, and running up
and down the land in the production or direction
of public opinion, will now consent to return to
their anxious clients and the stagnant courts. Very
possibly that great lawyer and statesman, guardian
of public morals and champion of public order,
Col. Fellows, will now consent to come off the
stump and start a boodler or two on his way to
acquittal. We have not heard what has become of
the proposed amendment to the Constitution, pro-
viding for a commission to help the Court of
Appeals out of the lurch, but we suppose it has
been lost for want of the requisite number of votes
on the question. If so, we hope it will never be
found, but that our law-makers will address them-
selves to the evident duty of furnishing a perma-
nent and sufficient number of judges, and thus
reducing the surplus of causes. Nor have we
heard whether Judge Gray or Judge Rumsey
has been elected, but it probably does not make
much difference except to the gentlemen them-
selves, even if it much concerns them. We hope

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