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First DEPARTMENT, MARCH TERM, 1897.
[Vol. 15. INGRAHAM, J.:
The charge against this relator was neglect of duty, the specification being that “said patrolman, Michael Howard, was sitting on a box at the foot of East 130th street with a tin pail containing lager beer alongside of him at 9:24 P. M., April 15th, 1896, in company with Patrolman George Weidecke, during his tour of patrol duty.”
To justify a conviction of a member of the uniformed force upon such a charge, it seems to me quite clear that there must be evidence of a neglect on the part of the officer to perform the duty imposed upon him by his office or by some rule of the department. No rule of the department is presented which makes it a duty of the officer to maintain an erect position at all times while on duty. If it appears that the officer had neglected to patrol his post for such a period as would justify a finding that the post was unprotected or his duty neglected, then it might be that such action of the officer would justify such a charge. Here there was no evi. dence that the officer was absent from his post at all, and no evidence that he was seated for any period of time. To sustain the charge, an acting inspector testified that he found Howard sitting on a box on the dock; that another officer was near him eating oysters, and that there was a can of beer on the box alongside of Howard. From the testimony it would appear that the dock on which Howard was sitting on a box was on his post. Howard was not eating oysters; and the inspector expressly disclaims seeing him drink any beer or touch the can at all. It seems to me that this evidence is not sufficient to justify the conviction. The only thing that is proved against the officer is that he sat down on the box. It does not appear that he sat there any length of time. He says that he felt the effects of a wound that he had received in the discharge of his duty, and went on the dock and sat down; and there is not the slightest evidence to contradict his statement as to his illness and the cause of it, and no evidence that he was sitting on the box for any considerable time. It is difficult to see upon what principle this evidence tends to show that he was guilty of a neglect of duty. In these cases, where it is sought to review the action of the police commissioners, we have considered it our duty to give to the testimony a construction, if it will legitimately bear such construction, that would sustain the finding of the commissioners, realizing that the App. Div.] FIRST DEPARTMENT, MARCH TERM, 1897. discipline of the force requires that the commissioners should be upheld in their determination to maintain the strictest discipline, and to impress upon the members of the force a necessity of a strict obedience to the rules of the department. We think, however, that this is a case where, accepting the testimony of the inspector, there was yet no fact testified to which would justify a finding of a neglect of duty on the part of the officer; that the mere sitting down on a box is not, under any rule of the department to which our attention has been called, or which has been made a part of the record, a neglect of duty that would justify a dismissal.
We think, therefore, that the proceedings should be reversed and the relator reinstated, with fifty dollars costs and disbursements.
VAN Brunt, P. J., Williams, PATTERSON and O'BRIEN, JJ., concurred.
Proceedings reversed and relator reinstated, with fifty dollars costs and disbursements.
THE BUTTERICK Publishing COMPANY (LIMITED), Respondent, v. HERBERT Booth King and FREDERICK Louis King, Composing the Firm of HERBERT Booth King & BROTHER, Appellants.
Judgment by default — allegations as to misrepresentations by a corporation, without
disclosing the agent who made them, are insufficient to justify opening it.
A default, taken in an action, should not be opened after judgment, unless the
defendants frankly disclose to the court the facts upon which the defense, which they intend to interpose, is founded, so that it may be seen whether they
bare a substantial defense upon the merits. Where the proposed answer of the defendants merely alleges that a corporation
made certain material representations, without stating by what person the representations were made, or alleging any authority from the corporation to such person to make the representations, the court may properly refuse to allow the defendants to come in and answer,
APPEAL by the defendants, Herbert Booth King and another, froin an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New
First DEPARTMENT, MARCH TERM, 1897. [Vol. 15. York on the 21st day of January, 1897, denying their motion to open their default and for leave to interpose a proposed answer.
Thos. C. T. Crain, for the appellants.
Maxwell Evarts and Edward C. Perkins, for the respondent.
We think that the court below was right in denying the defendants' motion. The defendants were intentionally in default, allowing the time to answer to go by, as they say, because they then supposed that they had no defense to the action. Judgment was entered and proceedings had been commenced to examine the defendants as to their property. They say that they then discovered a defense ; but, to entitle them to set aside the judgment under such circumstances, it is only fair that they should frankly disclose to the court the facts upon which the defense is founded, so that it can be seen whether or not there is a substantial defense upon the merits. In this case, both in the affidavit upon which the motion was made, and in the proposed answer, the defendants carefully avoid stating the facts wliich would enable the court to determine whether or not they have a valid defense upon the merits. The plaintiff is a corporation, and can act only by its officers or agents. In the defendants' affidavit they state that, “at the time of the making of the contract between deponent's firm and the said Butterick Publishing Company (Limited), it was understood and agreed, and such contract was made upon the express representation in that behalf, on the part of the Butterick Publishing Company Limited), that the terms mentioned in such contract were as low, and as favorable as those which they gave to any other advertising agency." There is no allegation that the person who made such representation on the part of the plaintiffs was anthorized to do so, or had any authority to act on its behalf, and the answer is also silent as to those who made the representation.
The officers of the plaintiff swear that no such representations were made by them. In the face of that affidavit, the defendants were at least bound to state to the court who it was that had assumed to represent the plaintiff. In the proposed answer, the defendants simply allege that the company made the representations. How the App. Div.] First DEPARTMENT, MARCH TERM, 1897. corporation could make any representations is not apparent, unless it may be said that the act of the corporation's agent is the act of the corporation itself, in which case the material question would be whether the person assuming to act for the corporation occupied such a relation to it that his act could be said to be the act of the corporation. We think that, upon the facts before the court below, there was nothing to show that the application to answer was really made in good faith, and that the court was right in refusing to grant leave to the defendants to come in and answer a cause of action which they had knowingly and intentionally conceded to be true, and allowed judgment to be taken for it.
Order affirmed, with ten dollars costs and disbursements.
VAN Bruxt, P. J., WILLIAMS, PATTERSON and O'BRIEN, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.
CHARLES HOFFMAN, JR., and Mayor, LANE & COMPANY, Appellants,
v. THEODORE SUSEMIHL, Jr., and Others, Respondents.
A debtor may pay one bona fide creditor to the exclusion of others — specific denial of
a numbered paragraph.
A creditor has a right to transfer to any particular debtor property sufficient to pay his debt, although he thereby puts it out of his power to pay his other creditors, and as long as his object is simply to pay a bona fide debt and that is the only result accomplished, the transaction is not fraudulent as to other
creditors. A statement in an answer specifically denying a particular numbered paragraph of the complaint, is a good denial of that paragraph, and the mere fact that the answer, after specifying the number of the paragraph which it is intended to deny, repeats the allegations of the paragraph, does not make it any the less a denial of the allegations contained therein.
APPEAL by the plaintiffs, Charles Hoffman, Jr., and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 7th day of August, 1896, upon the decision of the court rendered after a trial
FIRST DEPARTMENT, MARCI TERM, 1897.
[Vol. 15. at the New York Special Term dismissing their complaint upon the merits.
William S. Lewis and Halcyon M. Close, for the appellants.
John J. Gleason, for the respondents, The J. L. Mott Iron Works and Henry Huber Company.
R. McKinlay Power, for the respondent Theodore Susemill, Jr.
The complaint alleges that certain transfers of book accounts by the defendant Susemihl to the other defendants were made with the intent to hinder, delay and defraud the creditors of the said Susemihl. These allegations are denied, and the trial court has found that such transfers were not made with such intent. This was a question of fact. The evidence relied upon to prove such fraudulent arrangement between the assignor and the assignees of these claims was the examination of the judgment debtor in the proceeding supplementary to execution. The assignees were not present or parties to that proceeding. The examination was made long after the transfer. Both assignees swore positively that no such agreement was made as is alleged in the complaint; and the assignor also swore that no such agreement was made, and that he made a mistake, which is explained, in the testimony given in the supplementary proceedings. The learned judge believed this testimony of the defendants. As a matter of fact it is extremely doubtful whether there was any testimony that would justify a finding that any such agreement was made or that the transfers were made with such fraudulent intent. The court, however, has found that no such agreement was made, and that finding is amply sustained by the evidence. Upon the evidence of the defendants it is quite clear that the transfer of these book accounts was made in payment of the debt of the judgment debtor ; that such transferees were actual bona file creditors of the judgment debtor, and that these plaintiffs at the time had under execution levied upon all of the personal property of the debtor. There was certainly nothing fraudulent in the debtor's paying to certain of his other creditors the portion of his property that these plaintiffs had not been able to obtain a lien